o firing line - · pdf filethomas szasz was born in budapest, came to america in 1938, ......

HOST: WILLIAM F. BUCKLEY JR.

GUESTS: THOMAS SZASZ, ROBERT SWEET, ETHAN NADELMANN,STEVEN DUKE

SUBJECT: "WHY WE SHOULD LEGALIZE DRUGS" PART I

FIRING LINE is produced and directed by WARREN STEIBEL.

This is a transcript of the Firing Line program (#1073/2523)taped in New York City on January 16, 1996, and telecastlater on public television stations.

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FIRinG Line

copyright 1996 FIRING LINE

MR. BUCKLEY: We are here for three sessions on drug policy in America.National Review, the journal I serve, has declared in favor of classifying the waron drugs as a failure and moving on toward some form of legalization. TheNational Review issue has essays written by six contributors, four of whom arewith us. Today we will focus on the cost of the war against drugs and why inour judgment that war is lost; next week, on approaches to legalization; andthe final program on the political problem of drug reform.

Ethan Nadelmann is the director of the Lindesmith Center in New York,where he continues his studies and his writing on drug policy. ProfessorNadelmann attended McGill University, received his doctorate in politicalscience from Harvard, and studied also at the London School of Economics.He served on the faculty at Princeton and is the co-editor of Psychoactive Drugsand Harm Reduction, and the author of numerous papers and several books.

Robert Sweet is a judge in the District Court of New York. After graduatingfrom Yale and the Yale Law School, he practiced law, served as assistantdistrict attorney, and in the administration of John Lindsay as deputy mayorof New York City. He was appointed judge in 1978 and has served aschairman of the Bar Association's Special Committee on Drugs and the Law.

Thomas Szasz was born in Budapest, came to America in 1938, attended theUniversity of Cincinnati, where he received his medical degree. He isprofessor of psychiatry at SUNY Health Science Center in Syracuse and is theauthor of many books, .including The Myth ofMental Illness: Foundations of aTheory ofPersonal Conduct.

And finally, Steven Duke is a professor of law at Yale. He is a graduate of theUniversity of Arizona and of the Yale Law School. He co-wrote the book,America's Longest War: Rethinking Our Crusade Against Drugs, and has writtenwidely in many journals on drug policy and other matters.

We're off! Mr. Nadelmann: When you say we have lost the war on drugs,how do you document this loss?

MR. NADELMANN: Well, I think what you have to do is start looldng athow long we have been in it. We started this war at the beginning of thecentury, criminalizing opiates and cocaine and then marijuana. Now it's been

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going on for about 80 or 90 years, and by any criteria, it appears to be afailure. If this war on drugs had worked, we would not have millions, tens ofmillions of Americans using illicit drugs today. If this war had worked, wewould not have hundreds of thousands of people behind bars. If this war hadworked, we would not be spending tens of billions of dollars each years as asociety to try to deal with illicit drugs.

MR. BUCKLEY: Now I asked you a rather more specific question. Since thewar on drugs was declared, what, in 1984--

MR. NADELMANN: Well, the most recent one--

MR. BUCKLEY: Seventy-four, 74. By Nixon.

MR. NADELMANN: Well, we have a Nixon-declared war on drugs in theearly 70s, we have another war on drugs beginning in the late '80s, we've hadwars on drugs before that even.

MR. BUCKLEY: Well, I think it's interesting to focus on the period duringwhich the intensification of this effort became so conspicuous. I think LyndonJohnson had a budget of $10 million or something like that. It's up athousandfold now. So in terms of the last 20 years, what is it that convincesyou especially that the war is not working?

MR. NADELMANN: Well, Bill, look at it this way. The claim has alwaysbeen made that we could somehow keep drugs from being produced aroundthe world and thereby deal with our drug problem. We have never succeeded.Drugs continue to be produced virtually throughout the world, throughoutSouth America, throughout Europe--cocaine, marijuana, heroin, what haveyou. The claim has been made that we could keep drugs from coming into thecountry. Well, once again we have spent billions on the Coast Guard,Customs, Air Force: hasn't worked. The claim has been made that if we throwhundreds of thousands of people behind bars, that somehow we could dealwith our drug problem that way. Once again drug use is increasing, drug abuseis increasing. That hasn't worked. So one claim after another has been madeabout how we can win this war on drugs, and repeatedly, the evidence forvictory has not emerged.

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MR. BUCKLEY: Judge Sweet, let me ask you this. The war on drugs seemsnot to have any reference at all to stiff sentences. As I see it, no matter howstiff it is, the incidence of transgressions don't seem to vary, do they?

JUDGE SWEET: Well, since this intensification period that you'vementioned, when the society really seemed to adopt, or at least Congressadopted, the view that the more stringent, the more draconian thepunishment, the more effective the war, since that period, which included themandatory minimum sentencing, the sentences have been dictated by thesentencing guidelines on the one hand, and the mandatory minimums on theothers. And I think it's fair to say that those two methods have deprived thejudges of the discretion which they exercised formedy and has resulted in amuch more stringent punishment, longer penalties with, as Ethan has justindicated, no visible effect on the people who are engaging in the practice.The only thing that has been produced as a result of this enhancedenforcement is to escalate the price of the drugs and to provide a very alive,huge, underground financial market, a major industry that is untaxed and soon. So it seems to me that the increased punishment, the idea--even getting tothe point in 1988 of a death penalty under certain circumstances, has beenunavailing in changing American habits, American attitudes. So from thepoint of view of law enforcement, I think it has failed.

MR. BUCKLEY: My impression, Dr. Szasz--is this correct or not?--myimpression is that one index of the failure of the war is that in fact drugs havebeen getting not more expensive, but cheaper, which suggests that theirgrowth in other countries and the capacity to infiltrate an essentially porousnation like ours is not working. Am I correct in that?

DR. SZASZ: Well, you are certainly correct in that, and certainly what isn'tsaid is correct: It is self-evident that from the point of view of controlling theirviews, the war on drugs is a failure. But I don't like to dwell on that becauseto me it is self-evident that the state as a political apparatus cannot controlwhat John Stuart Mill called self-regarding behaviors, in other words, what youput in your body. So I would also Wee to tum it around and point out thatthe war on drugs is a howling success for all the millions of people who makemoney off it, including all the growers, all the distributors, all the psychiatrists,all the doctors--

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MR. BUCKLEY: [laughing] Well, we are not talking about their success.

DR. SZASZ: But this is very important--

MR. BUCKLEY: We're tallcing about the explicit objectives of that war arenot worlcing.

DR. SZASZ: But one cannot take that seriously, because to me this is likeLudwig von Mises pointing out in 191 7, before the Soviet Union was evenformed, that Soviet economy cannot work. But it has worked wonderfully forthe Politburo for 80 years. And I think that's what we have. It is working forCongressman Rangel, it's working for Newt Gingrich, it's working for Mrs.Clinton. Look at their recent books. They are gushing on and on and onabout drugs. Republicans and Democrats agree on this like on nothing else:Drugs are a plague, are an evil. So it's worlcing very, very well. There has notbeen an American politician who has gotten up and said it's not thegovernment's business what you put in your body--

MR. BUCKLEY: Well, yes, but--

DR. SZASZ: --which was the case from 177[6]--

MR. BUCKLEY: --we're talking about slightly different things. I am sayingthe war was declared intending X, Y, and Z, and--

DR. SZASZ: But if you believe that, you'll believe anything.

MR. BUCKLEY: --A, B, and C happened, and I don't deny this, butmeanwhile on the factor of X, Y, and Z, I think I am correct in saying the priceof cocaine was less expensive a year ago than it was 10 years ago, and doesn'tthat always indicate that pressure against its circulation is not working, right?

MR. NADELMANN: Well, look at, Bill, the stats on heroin. The price hasgone down dramatically in the last 10 years, while the average potency ofheroin on the streets has gone from about four percent to about 40-50percent. So we've had a resounding failure on our heroin policy. You havevirtually Afghanistan, Palcistan, Khazistan--almost every country in the world

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whose last name ends in "stan" is now producing large amounts of opium andheroin--

MIL BUCKLEY: Yes.

MR. NADELMANN: --and that's just going to increase over time. So youranalysis is right.

MIL BUCKLEY: Let me ask Professor Duke this. People, in assessing thecost of this war, tend to say, Well, okay, we are spending $17 billion by thefederal government every year and so much by the states. But there are otherways of measuring costs of this, and you have written about those. What kindof thing do you have in mind?

MR. DUKE: Well, certainly the money that is spent by the consumers, whichis estimated to be around $50 billion, and some say even more, that's a majorcost. The crime that is generated by drug prohibition is a huge cost.

MR. BUCKLEY: Now wait a minute. That $50 billion is a cost in the sensethat it is not spent on something else?

MR. DUKE: Yes.

MR. BUCKLEY: But it is preferred to something else by the people whospend it.

MR. DUKE: Yes. But they also have to acquire that money, and most ofthem acquire it illegally.

MR. BUCKLEY: Okay.

MR. DUKE: So they commit crimes in order to generate the money to buythe drugs.

MR. BUCKLEY: Right.

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MR. DUKE: Now, some of it is made by selling drugs, but a lot of it is madeby robbing and stealing.

MR. BUCKLEY: Yes.

MR. DUKE: And so non-users pay a lot of the crime costs that are generatedby the high price of the drug. Even though as you point out, the price is lowerthan it used to be, it is still very high in terms of--

MR. BUCKLEY: Yes. Correct, correct. So we have the cost of the war itself,the cost of crime. Would you attach a value to the lost liberties of people whoare affected by this rampant crime?

MR. DUKE: Certainly. We're all very much affected by it. We live in a stateof fear, many of us, that is to a large extent generated by the drug war in thatmuch of the violent crime is either part and parcel of the drug business, or it isgenerated by people who are robbing and stealing in order to get money tobuy the drugs. And of course much of the crime exists because the police aredistracted by drug crimes and drug prosecutions and drug busts and drugforfeitures and various other activities that are essentially unproductive. Theyare counterproductive in terms of the kinds of crime that affect most of us.

MR. BUCKLEY: You mean the fact that we preemptively have used them forthat purpose rather than for other purposes.

MR. DUKE: Yes, and of course we stack the deck now because through theforfeiture laws we reward police and police departments by giving them someof the money, some of the property that they acquire through forfeiture.That's a reward that's built in that doesn't apply if they are investigating rapes,murders, robberies, burglaries and so forth.

MR. BUCKLEY: So would you go so far as to say this: Even criminal activitythat is unrelated to the acquisition of money with which to buy drugs isaffected by the war on drugs in the sense there are fewer people around thereto restrain it.

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MR. DUKE: Absolutely. And also there is less jail and prison space for .robbers and rapists because they are filled up with drug sellers and drug users,and there is less ability of the courts to process criminal cases, because thecourts are inundated with drug cases. The entire criminal justice system isoverburdened, weighed down with drug cases so that it can't process anycriminal case effectively.

MR. BUCKLEY: Okay. Well, that's certainly a cost. What about the cost toour traditions of civil liberty, civil order, and due process, Judge Sweet?

JUDGE SWEET: There have been a number of writers on the subject. Onehas characterized the rulings of the Supreme Court in the area of FourthAmendment protections as the drug war exception to the Fourth Amendment.The law in that area has moved toward accepting stops, accepting arrests,accepting, for example, an arrest on the basis of an informer known to beunreliable. The law has moved to lessen the protection of the citizen underthe Fourth Amendment.

MR. BUCKLEY: The Supreme Court has recently agreed to rule on that,hasn't it?

JUDGE SWEET: Well, they have ruled in various ways. There have been thebust stops, there have been a whole series of-- the law with respect of how highyou can fly in order to surveil, that sort of thing--all of which are cutting awayat the Fourth Amendment protections. I think that is a real part of it. Thereis also, laws have been used in a way to interfere with a relationship betweendefendant and lawyer, and so I thinlc the liberties of our society have beendamaged by this in just the way that Professor Duke has mentioned. It's notonly that certain of our protections have been eroded, but also our safety hasbeen diminished because of the turf wars, because of the random violence,because of the entire violence that surrounds this. There is another piece of ittoo, and that is the cost that we suffer as a result of the drug war. If youassume, as we have now, slightly under a million people in jail now in thiscountry--which is a shocking statistic in and of itself. We have the highest jailrate of any of the civilized Western nations by far. And that is anotherindication that this approach, this minatory, lock-'em-up approach is notworking. But there is also a cost to it. If you assume, as the statistics I guess

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are generally that maybe 50 percent--40 percent of those who are in jail are injail because of an enforcement of the drug laws. And if each one of thesepeople costs, as they do, $25,000-$30,000 per cell, you are getting intoastronomical numbers. And the substance of the attack from the point of viewof the enforcement budget, from the point of view of the corrections budget,the penal budget, from the point of view of the loss to the society--I mean, thenumbers are appalling. And when you see this first up-- Ive had a caserecently where there was a ring here in New York City that was distributingdrugs, and they were netting $2 million every two weeks. Now the numbers,the dollar value that we are losing because of this trade, is incredible when youtake all these things together.. And when you take it all together, it seems tome the economic case is overwhelming that it just doesn't make sense.

MR. BUCKLEY: Let me ask Dr. Szasz this. Let's assume that the drug warhas kept some people from using drugs who might otherwise have used them.Wouldn't you count it as a benefit? Wouldn't you think we would be boundto calculate the benefit of those deprivations as an argument on the otherside?

DR. SZASZ: Well, I personally wouldn't. People who believe in the war ondrugs probably would. I just don't think it's any business of the governmentwhat a competent adult--

MR. BUCKLEY: No, but that's a different point.

DR. SZASZ: --puts in his or her body.

MR. BUCKLEY: Look, it costs, I think, $1 7,000 a year to have drugtreatment. Now let's say 100 people didn't use drugs within a few blocks ofwhere we are sitting because of these laws. So that much money has beensaved, has it not?

DR. SZASZ: Mr. Buckley, you are drawing me into a discussion of the factthat we have a socialized medical system, a kind of a communist medicalsystem where I have to pay for your self-induced disease, which is anotherwrinkle in this.

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MR. BUCKLEY: No, we're--

DR. SZASZ: There is no drug treatment. There is no drug disease. Takingan illegal drug is not a disease. We don't have a war on drugs. The wholelanguage here is wrong, because you can only have a war on people, so the waris on the American people. Drugs are an inanimate object.

MR. BUCKLEY: You're elevating this to a completely different mode. I amtalking about stated objectives and what actually is happening. I am sayingwouldn't people on the other side say you have to--

DR. SZASZ: -- I agree.

MR. BUCKLEY: --account in our war against the war on drugs for the peoplewho have not taleen drugs?

DR. SZASZ: Well, I go one step further on the other side. You see, the otherside, although it doesn't say this, it clearly indicates that it is waging a kind ofa holy war, that drugs are an evil, and that's why I have never arguedparticularly that the war on drugs has failed, because that to me is like arguingthat Mother Teresa has failed, because she hasn't made a dent in poverty, butit would be foolish to argue that she has failed. She is a waging a war on aterrible condition. So it doesn't matter whether she fails or not. That maleesher already a sanctified figure. I thinle this is a posture that many Americanpoliticians have taleen: I am waging a war on evil, the evil empire. Instead ofcommunism we have heroin.

MR. BUCKLEY: Well, I think they are in a position to malee a prettydramatic case about the evil consequences of drugs on some people. Now as Iunderstand, you and Mr. Nadelmann and Mr. Duke talk about the fact thatmost people who experiment with these toxic drugs put them away after theyhave sort of grown up. Some don't. Now although I agree with you that tofocus all of our energies on the problems of those who do is incorrect, still wehave to talee into account the public question, does the war on drugs keep Xnumber of people from consuming drugs?

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DR. SZASZ: No, but does the war on drugs incite people on the Mark Twainprinciple or the Biblical principle that forbidden fruit tastes sweeter? When Iwent to medical school 50 years ago, more than 50 years ago, I never heard ofmarijuana. How come? What happened in this country?

MR. BUCKLEY: Bad medical school. [laughter]

DR. SZASZ: No, it was a representative medical school. You know very wellthat marijuana in some ways is a consequence of the disappearance of alcoholprohibition.

MR. BUCKLEY: How do you weigh in on that, Mr. Nadelmann?

DR. SZASZ: The bureaucrats needed a new target.

MR. NADELMANN: Well, look at it this way. Among the people whowould be drug addicts if you legalized drugs--

MR. BUCKLEY: Yes.

MR. NADELMANN: --most of them are already drug addicts. The peoplewho are most likely to develop problems with drugs are also the same peoplewho are least likely to be deterred by our drug prohibition laws, right? That'son the one hand. On the other hand, the vast majority of Americans, weknow absolutely, do not need a drug prohibition system to keep frombecoming drugs addicts. the vast majority of Americans-- We already live in asociety--alcohol, cigarettes, prescription drugs, over-the-counter drugs, all sortsof things are widely and readily available. We have learned how to live in asociety with drugs, where the vast majority of us don't have problems with it.And quite frankly if we were to legalize the vast majority of drugs tomorrow,most Americans would never have a problem, would not use these things. Sowhat you're talking about, Bill, is a small subset of Americans. Granted, thereis a small percentage of Americans, one percent, half of one percent, one-anda-half percent, for whom the drug prohibition system does prevent them frombecoming a drug addict. Then the question becomes, Do we really need theprohibition system or are there other ways to keep those people frombecoming drug addicts without relying on a $20 billion to $50 billion-a-year

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prohibition system?

MR. BUCKLEY: Good point. Good point. And Mr. Duke, you speculatedon how many people would be likely to take the option of buying drugs if theywere legal, i.e., that one percent would grow to what? Or do you know? Arethere any grounds to speculate?

MR. DUKE: Well, I would concede that it's plausible that the number ofusers of illicit drugs would perhaps double or triple at least provisionally,experimentally. But we have to consider also that the drugs that would beconsumed in a legalized system would be very different drugs and far lessdangerous, far less addicting, because they would be available in less potentforms. And they would be labeled, they would be regulated so people wouldn'tbe poisoned by drugs, so that the bad effects on health from drugs in alegalized system would be far less serious than they now are. So it seems tome, clearly, if we had twice or three times as many consumers of cocaine,heroin and marijuana as we now do, which seems to me very unlikely, thehealth of the nation would still be better off.

MR. BUCKLEY: So if we went-- The figures I think you have used are onemillion cocaine users, right, and five million marijuana users?

MR. DUKE: There are, according to government studies, approximately threemillion casual users of cocaine today and half-a-million--

MR. BUCKLEY: Regular users.

MR. DUKE: --addicts or weekly users. Marijuana, 5-10 million.

JUDGE SWEET: There is another piece of this, Bill, that it seems to me isrelevant, and that's the experience with the other prohibition we tried, alcoholprohibition. Now obviously it's very hard to get authoritative informationabout the use of alcohol during the Prohibition period, but the bestinformation that I've seen indicates that immediately after Prohibition therewas a fall-off in consumption. And these are statistics using objective meanslike hospital entry applications and that sort of thing, hospital treatment andso on. Immediately after Prohibition there was a drop-off and then it built

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back so that about halfway toward the end of Prohibition the use of alcoholwas just about what it was before Prohibition. And then after Prohibitionended, again the usage stayed more or less level. And I think that supportsEthan's theory that. this group that you're talking about that are affected bythe formality of the legal structure and thereby not using the substance, is avery, very thin group.

MR. BUCKLEY: Yes, you probably should mention also that duringProhibition a lot of people switched from beer to the hard stuff because interms of cubic content, they could get more of an alcoholic high off it, whichwould not be the case if they had had the range of possibilities that they hadbefore. .

JUDGE SWEET: And you have the same question that Professor Duke hasjust mentioned, that once you get into the illegality of it, the substance itselfbecomes much more dangerous, both in terms of health, adulteration, potency,all of those things. So it seems to me that even for those people who arepresently--assuming that there are people who are presently unwilling toengage in drug use because of the present legal framework--even as to thatgroup, it seems to me, the structure hasn't worked.

MR. BUCKLEY: Thank you, gentlemen; thank you, ladies and gentlemen.Come back next week and we'll continue.

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