Calvert News May 2005 The ‘War on Drugs’ : A Reconsideration After Forty Years

Former Gov. Gary E. Johnson (R.-N.M.): Donald E. Santarelli, Associate Deputy Attorney General of the United States, 1969-73; Administrator, Law Enforcement Assistance Administration, 1973-74; Dr. Robert L. Du Pont, President, Institute for Behavior and Health, Inc.; Director, National Institute on Drug Abuse, 1973-78; Director, White House Special Action Office for Drug Abuse Prevention,1973-75; Dr. Jerome H. Jaffe, Director, White House Special Action Office for Drug Abuse Prevention, 1971-73

Moderator: George W. Liebmann. Author, The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books,2005).

The Engineering Society of Maryland, Baltimore, April 13, 2005

MR. LIEBMANN: Ladies and gentlemen, welcome to a symposium on the war on drugs, a reconsideration after 40 years, sponsored by the Calvert Institute. It seemed to us that the time was opportune for a more detached look at drug policy issues than that which is usually presented. And it seemed to us that one way of obtaining such a detached look would be by asking some of the people who were present at the start of our national drug agencies to review the developments of the last 40 years.

We also are honored to have as our kick-off speaker former Governor Gary Johnson ofNew Mexico. His participation is explained by the fact that he has invested more of himself in seeking to foster change in national drug policy than any other public official participating in the frequently unenlightening controversies over this subject.

Before we begin with his remarks, I would like to introduce Alan Friedman of Governor Ehrlich’s office to present some greetings on behalf of the Governor.

MR. FRIEDMAN: Thank you, George, for inviting me to join you. My name is Alan Friedman. I’m the policy advisor to the Governor, specifically on issues of substance abuse and criminal justice and juvenile justice.

As you know, the Governor is just finishing dealing with the legislative session, which ended on Monday. He had a Board of Public Works meeting today and then he is heading outfor a few days of rest and relaxation, so he couldn’t be with us this afternoon. But he did ask me to come up. Actually, I wanted to come up anyway, so it worked out well.

I think many of you know the Governor has really, in this state, been in the forefront of some very cutting edge things in terms of substance abuse policy. Last year, with the help of a bipartisan group of senators and delegates, including the legislative black caucus, the Governor proposed and the legislature enacted significant reforms in terms of diversion, allowing State’s Attorneys to divert, and I know marijuana issues are on the agenda for this afternoon, to divert low level offenders from even going through the criminal justice system. We have some people here from Baltimore County, who are involved in that very cutting edge program in that county, and I heard at lunch that that is really taking off and becoming extremely successful.

The legislation has become meaningful to a lot of people, very real. The legislation also provides, as I mentioned during lunch to Judge [Thomas J.S.] Waxter, for a better fit between the judiciary and treatment resources, that is, specifically in certain sentencing decisions for the ability for courts to get a standardized assessment so that judges in all the counties can use to determine amenability to treatment, identifying what type of treatment a offender needs, and, for the first time identifying a specific program and determining when a spot is available in that program for an offender.

We’re developing almost an airline reservation system where all treatment providers in the state report online realtime in this system, and we are taking that capability and hooking it to the judiciary so that they have that information available when they’re making their sentencing decisions.

So we have diversion, we have a better linkage between judiciary and their treatment resources, and also the legislation provided a local planning structure. Each county now is required under state law to have a local drug and alcohol abuse council. The structure of that council is set in law, but the counties are free to add additional people onto that group. And that group is charged under state law with developing a program, a plan for the local jurisdiction, from the ground up, not from the state down, to say what the jurisdiction needs, what the demands are based on the data that we now have, what priorities do we want to assign to the dollars that we are receiving from the state, and this process is going on and will be finished for the first round of planning this summer, and we will begin for the first time to get a handle on local priorities. And this is extremely important.

And finally, the Governor, by executive order, established the State Drug and Alcohol Abuse Council, which mirrors the local groups, and is getting the state agencies involved in the same planning process that the locals are doing as a result of the legislation. And we then have the fit between the state planning and the local planing structures, and hopefully we will have a system which is, as one of my colleagues calls it, moving away from design by whine. Whoever could complain the loudest, managed to get resources. And we’re now trying to move the great ship of state in the direction of what our data shows us, where we need to assign resources, where we need to shift resources, and hopefully we will get very good value for our dollars both at the state level and the local level.

So on behalf of Governor Ehrlich, thank you for having this discussion. It’s extremely important. He always says that with respect to substance abuse , both as a public health issue and as a criminal justice issue, that his approach is very much like Nixon going to China, because people don’t think that a Republican governor would be doing this type of thing. As you know, he is a lawyer, very in touch with the criminal justice system. The first lady was both a public defender and a prosecutor. These are people intimately
familiar with the effects of substance abuse both in the public health field and in our criminal justice field.

GOVERNOR JOHNSON: I’d like to tell you a little bit about myself. I’ve got a great family. My wife, Dee, is here with me, 27 years. We’ve got a couple of great kids, Eric, who graduated from the University of Denver, who is now working in Chicago, and daughter Seah,who graduated from the University of Colorado – Boulder, and Seah actually graduated as valedictorian of her class out of like 9,000 students. I hope you see a little bit of brains by association. I need a little bit of help as I go along.

I’m also an entrepreneur. I started a construction business in 1974 as a one-person handyman, me. And along with my wife, Dee, over a period of 20 years we grew that construction company in Albuquerque to employ over a thousand people, electrical, mechanical, plumbing, pipe fitting, really the American dream come true, do what you say you’re going to do, show up on time, do a little bit more for people than what you say you’ll do for them. And that’s what grew the business.

And six years ago we sold that business. And I’ve always believed that money ultimately represents freedom, and Dee and I are free people. We have enough money to do what we
want to do, and again, I think it’s the American dream. I’d also like to tell you that I am an athlete. And I’m a self-declared adventurer these days. You would be hard-pressed to find anybody at the age of 52 that is more fit than myself. I’ve competed in five Ironman competitions. A couple weeks ago I finished skiing 125 days this season. We live in Taos Ski Valley. A couple weeks ago there was a competition in Taos called the Ridgeathon, how many ridge runs could you ski — could you hikeand then ski. There were about 70 participants, and I want to tell you that the oldest participant was a 52-year-old ex-governor of
New Mexico. And I want to tell you that the winner of the event was also the 52-year-old ex-governor of New Mexico. And a couple years ago after I left the office of governor I summited Mount Everest, which was really a great thrill, something I’ve wanted to do for a long time, and it was one of those dreams come true.

When I started in politics, I had had no prior political experience, none. I introduced myself to the Republican party a couple of weeks before I announced my candidacy. How did I win? New Mexico is 2 to 1 Democrat versus Republican. I’m a Republican. I won the race. I won because I paid for my own campaign. It was something that I wanted to do. I really felt it was a high calling. But I won on the basis, look, I’ve never been involved in politics before. This is my message. I’m going to bring a common sense business approach to state government. I’m going to take on the issues that need to be taken on regardless of the political consequences because I’m not a politician. There is no political consequence. I also told people that if they thought about that a little bit, they would realize that at some point I would piss every single one of them off, and I want you to know that I did. In that, I was completely successful as governor of New Mexico.

So in that context we really took it on, one issue to the next. And this is how I arrived at the war on drugs. I think it’s the biggest problem facing the United States today that actually has a
practical solution. And I came at it from the standpoint, I’m governor of the state, and again, I’m not unlike any other governor of any other state. Half of what we spend on law enforcement, half of what we spend on the courts, and half of what we spend on prisons is drug-related. I want to crack down on DWI; I want to make a difference on a lot of the laws that are on the books that aren’t being enforced; but they’re not being enforced because quite simply law enforcement is out to catch people selling small amounts of marijuana. That’s just the way that it is. And the courts, all they want is more and more
money, yet half of what they do deals with the drug problem that we have in this country.And then prisons, half the prisons. I’m going to suggest half the resources, half the money that we put
in the prisons has to do with drugs.

I was shocked to find out, really shocked, to find out that there are 1.6 million arrests in this country every single year. The population of New Mexico is 1.8 million people. It’s like looking at every single person in New Mexico and realizing they’re being arrested every single year. I mean, that’s really staggering.

What should the goal be? Well, the goal should be to reduce death, disease, and crime. The goal should be to educate better. The goal should be to offer treatment to individuals that need treatment. Look, I don’t do drugs; I don’t smoke marijuana; I don’t smoke cigarettes; I don’t drink. I haven’t had a drink since 1987, one of the best decisions that I ever made personally. So this is not being about doing drugs.

But I have come to believe that 90 percent of the drug problem today is
prohibition- related, not use-related, and that is not to discount the problems with use, abuse, but that ought to be our focus. I think we’ve become absolutely anesthetized to what prohibition is. We look at the news every night and these are disputes we’re looking at in the news that are played out with guns rather than in the courts. How many burglaries and deaths do we need to
see that are prohibition-related, not actually use-related? Death rates, I was not shocked to find out that they estimate 450,000 die every year from their use of tobacco, 150,000 every year die from their use of alcohol, and I’m not talking about drinking and driving, I’m talking about the health consequences of drinking, and 100,000 die every year as a consequence of legal prescription drugs, and 10,000 people a year die as a result of heroin and cocaine.

There are those that argue that those deaths occur because it’s illegal. Well, actually when you look at it a little bit, the quality and /quantity of these drugs is unknown by their consumers, and you can make the argument that the deaths have to do with prohibition. And if these substances were controlled and regulated you could argue that perhaps there would be even fewer deaths. And to no one’s surprise there are no deaths attributed to marijuana. And yet I’m sure there are a few people who have smoked themselves to death.

So what do we need to do? I think we need to legalize marijuana. I think we need to control it. I think we need to regulate it, and I think we need to tax it. When I talk about legalizing I’m not talking about kids ever being able to legally smoke marijuana, or that it would ever be legal to sell marijuana to kids. And it’s never going to be legal to smoke marijuana, become impaired, and get behind the wheel of a car, similar to drinking and driving.

That’s another issue that we have today is that we’ve come up with this zero tolerance for drugs use, so we detect the presence of marijuana and not the impairment by marijuana. This is also a big huge issue. But if you’re impaired as a result of smoking marijuana and you’re behind the wheel of a car, I think you should be punished. I think that should be criminal, again, the same as drinking and driving. I think we need to adopt harm reduction strategies for all of the other drugs. Again, legalize marijuana, but let’s adopt harm reduction strategies for the other drugs. Harm reduction strategies, reducing death, disease, and crime, providing education, better education, providing treatment for these individuals that need treatment.

Zurich, Switzerland has a heroin maintenance program You’ve got to get a prescription from a doctor, but you can get free heroin. I talked to the chief of police from Zurich, Switzerland. He said, look, I’m in law enforcement; they came out with this idea that they’re going to give free heroin to addicts. I’ve been in law enforcement my whole life; this was going to be a disaster. Death, disease, and crime were going to skyrocket. You know what he said? He said Zurich is a much better place today to live. Death, disease, and crime have plummeted. You don’t have to go out and rob and steal for the product. It’s free. You’re not out recruiting other heroin addicts. Hepatitis and HIV, again, the needles are clean. The dose doesn’t kill you.

Look at Holland’s statistics. Holland has 60 percent the drug use as that of the United States, and that’s among kids and adults, and that’s marijuana and harder drugs, and yet
they have effectively decriminalized the use of drugs. I’ve talked to people who live in Holland and they say it’s very, very second class to be doing drugs, not like it is here in the United States, because it’s got a little bit of glamor attached to it. The current laws are terribly discriminatory. There’s seven times more likelihood that if you are of color and you’re arrested on a drug-related charge that you’ll go to jail.

I met with judges in Portland, Oregon. I didn’t know what that meeting was going to be like, but what they said was, you know, Governor Johnson, we want you to know that what
you’re saying is correct. We want to help you with a few stories that maybe anecdotally will help you out. One of the things that they had to say that was very interesting related to methamphetamine. Methamphetamine is a very, very dangerous drug, and not that we don’t know that, but it is. People ingest methamphetamine and really do nutty, crazy things. What they said was methamphetamine is a prohibition drug, that it would not exist if it weren’t so cheap and easy to make. So it disproportionately falls on the poorest individuals. They said we’re not advocating this at all, but if cocaine were legal, if cocaine were available as an alternative to methamphetamine, we would not have the problems that we have today.

Now, again, they were not suggesting that that occur, but they just wanted to point out the consequences of what it is that we’re doing in this country. Marijuana sells for more than gold today. Do you realize that? It is said that this is all about the children– what kind of message do we send if we say that we’re going to legalize pot? We need to understand that another consequence of prohibition arises because of mandatory sentencing. We’ve got an estimate of one million kids today selling pot. And they can go to prison when they’ve been caught three times.

So again, what should the message be to kids? I always want to tell kids the truth, understand about these substances. I’ve smoked pot; I’ve drank alcohol. What it is when you do this stuff for the first time, for the first several times, it’s really kind of an enlightenment. It’s kind of a cool thing. It’s like, wow, I’ve never felt this way before. I’m able to say things that I’ve never been able to say before. I feel more loving toward people than I have before. Kids need to know that.

But then kids also need to know that it’s a diminishing return thing. The more and more you use this stuff, it actually ends up having the opposite consequence. The message I want to send to my kids is that I love them; I love them. I don’t want them to do drugs, but I would be naive to not think that they might fall into that 50 percent plus category of kids that try drugs. So I don’t want them doing drugs and driving; I don’t want them doing drugs and getting caught and getting precluded from the opportunities that this country has to provide.

Look, this is America. You know, don’t do drugs. But this is America, and isn’t it our right to be stupid? And I say stupid. I don’t think it should be a crime to smoke
marijuana in the confines of your own home doing no harm, arguably, to anyone other than yourself. And I say legalize rather than decriminalize because you’ve got to take care of this marketplace. The fact is the profile of the person in prison today is the person who has sold small amounts of drugs on numerous occasions and been caught.

MR. LIEBMANN: It seems appropriate that someone who has been described by many people as something of an angel should be succeeded by someone who 40 years ago was popularly
described, at least in the eastern liberal press, as the ultimate demon. Donald Santarelli first came to public note as the principal criminal justice advisor in the early years of the Nixon administration. He played a part not only in the enactment of some of the early wiretap and bail reform legislation, but also in the 1968 drug law.

MR. SANTARELLI: The demon has been a bit dehorned by these subsequent years. Thank you for the generous introduction, and a contraposition with the distinguished governor, I’m not going to entertain you nearly as much. I now find in my mature years I tend to reflect more than talk. My wife says that she’s disappointed that I have become no longer ableto keep up with her. 6,000 words, that’s not like 26,000. Mars and Venus disappear already in the fleeting moments of life.

I think I’m more interested in reflecting than advocating. I’ve spent a long time in my life as an advocate, as a prosecutor. Yes, I was the demon for proposing changes from the old no-knock-before-entering police rules to quick entry. Also what was then called preventive detention or pretrial detention, having learned my ABCs from the distinguished Sam Ervin, who was the constitutional king of the Senate for many, many years, and who viewed bail as one of his great contributions to the western world.

I’m going to take a minute to say something about that. Think of bail in the criminal justice system. Bail, the ticket to the temporary jail, the overnight jail before you’re presented. The guy who comes up with bail gets out, and the guy who doesn’t have bail stays in. Is that a rational basis for incarceration? Therefore, I thought in my addled youth that reform of that might make sense, that we have a presumption of release, and only detention not based on whether you can make bail or not, but on judicial determination. Now, who trusts judges? Certainly not these days if you’re a Republican in Washington. So you have to give the judge a little guidance, give him a checklist. At first he has to determine whether he’s likely to flee, whether he’s likely to commit another crime, whether he has significant community ties. And only after you’ve gone through all of those could you order detention on some potential prediction that he might be dangerous to the community.

Now, if you practice law or know anything about what goes on in the courtroom, the presumptions that are included in that statute are dealt with like this, next, next, next, bail. It’s impossible, it seems, to alter man’s natural tendencies to go on straight lines between two places. The community has struggled over the years over when to use the third-party police power and when to use the community power, whatever the community may be, whether it’s the church in the neighborhood or whether it’s a club in the neighborhood or a civic organization or a culmination of disapprovals rendered by society on conduct. You ride the metro or the subway and a loud testosterone-filled young man may use some abusive language, and there’s no one to say shut up or bad manners, kid. That’s lost in our modern culture. And so we have tended, sadly, to rely more and more on the police power to enforceall of these community norms. It’s troublesome, because if you think of Mark Twain’s rather crude but wonderfully descriptive phrase, if your only tool is a hammer, all your problems look like nails, and when you rely on the police power it has a very limited function.

I came to age at the tail end of our liberal theory of sociology in the 1950s and `60s when we were very concerned with civil rights; we were very concerned with the causes of antisocial conduct; and we naturally and probably somewhat accurately gravitated to the position that they were causative factors in antisocial conduct,such as common law crime, were poverty and ignorance.

Well, we really made a lot of progress on that front, haven’t we, in the past forty years, poverty and ignorance? Now it’s poverty of intellectual honesty in our public officials, except for the distinguished former governor of New Mexico and the present governor of Maryland, who I admiringly commend for his natural instinctive progressiveness, not just on this drug policy issue, but on his outlook toward the criminal justice system and its limitations.

So we started out in the 1960s with this notion that we wanted to be understanding about young people who didn’t know no better. And so they acted out their ignorance and poverty in public ways that were antisocial, and committed crimes. Then we began to recognize an early factor in that, and that was widespread — well, I won’t say widespread–heroin use in cases Relating to armed and otherwise robbery, robbery being the confrontation of an individual with another individual with some form of threat, whether it’s a gun or just he’s a big guy, and wants to take something from you, to feed the heroin habit. So that was the first confrontation with the drug issue.

Now, what was the answer to that? Well, the answer, on one hand was the hammer, but it was a fairly enlightened time. And in the Nixon administration Dr. Jaffe and subsequently Dr. Du Pont were the drug czars. They are medical men. They are scientists. They weren’t cops. So whatever you may think of Mr. Nixon and Mr. Ford, you will have a lot of wrong impressions because it’s the nature of our society. The tabloids succeed, Fox News is popular. Controversy and negativity and accusations are delightful fodder of our distinctive gossipy natures, which we, of course, don’t admit to. The Catholic church has the perfect solution. Confession, they don’t call it that anymore, you get over it and try to do it again. But you don’t at least carry the guilt. The trouble with that was we really looked to Jaffe; we looked to Du Pont to give us guidance on how to deal with antisocial conduct that was the fall-out of drug abuse.

So what did the reactionary Nixon administration, Nixon with a swastika insteadof an X, the Nixon administration do? In the model city, the District of Columbia, we had free methadone clinics, free methadone clinics. Ask Tom Delay about methadone clinics. Get it? What has happened to this Republican party , once mine, and its preoccupation with the hammer? This talk may not be very understandable to the young people who live in such a superficial world of endless kaleidoscopic images.

There are scientific and/or sociological and/or legal models for dealing with problems. There was a time when we looked at criminal justice with at least a partial eye to what we’ll call treatment, the medical model; something is wrong here; this guy is wrong; he’s done something wrong. Why? Let’s look at why; let’s look to see what we can do about it. Alas, years of political mal-leadership, pandering politicians, and public ignorance lead us back to the hammer. We now have the enforcement model by which we deal with antisocial conduct. And in a sense maybe there’s nothing wrong with that, because we found that we couldn’t do a whole hell of a lot about changing the sociology which might be the underpinnings of antisocial conduct. So The pendulum swung back again to the enforcement model.

Look at the federal sentencing guidelines. They are literally Draconian. And they’re the result of adding it up, adding it up. I’m not going to get into esoterica about marijuana and enforcement, except to say I don’t like the enforcement model. I think it’s counter-productive. I think it is harmful to the sociology of a culture. I think it turns us into either/or kinds of people, and it essentially feeds hypocrisy. In the Renaissance thinking men, ladies, thinking men began to come to the confrontation of the cerebral and the physical, the confrontation with this horrible body that we drag around which deteriorates over the years and is susceptible to what Aquinas called concupiscence, the natural tendency of man to surrender to his natural appetites, whether they be of the intellect or whether they be of the lower regions. Naturally appetites go on and we need to recognize them.

How do we regulate them? With hammer and nails like stupid Americans who refuse to look at more mature societies and how they recognize the concupiscence of man.

Should we criminalize it? I’m troubled by the criminalization of drug use. I’m troubled by the impact that it has life-long on the person in an experimental stage. I’ll try not to be too crude, but as young women andyoung men discover that their genitals become more influential in their lives at a certain period, there is the tendency to pay attention to them or to surrender to them. The same is true with respect to the imbibing of spirits, which is a wonderful euphoric experimental stage in life which you soon grow out of when you find it to be counter-productive to the objective that you may want to pursue, whether it be playing the piano, singing, or going to work some day. And the same is true with many experimental drug-users in that little period. The hard core drug-users almost become statistically insignificant in our larger culture and preoccupy us unnecessarily.

The real problem is that we continue to look to the law enforcement community as the model. Why? Because there are lots of people selling that which lots of people use. If we can’t come to a mechanism for reducing demand other than law enforcement, then we will just continue to run the local sewage system. What comes in must go out. I commend you to an honest public debate on what is the best way for a society to discourage, as opposed to punish, these experimental tendencies in the beginning and the habitual results thereafter, other than with the hammer. So let’s go at it and hear from the guys who really understand the limits and the benefits of the medical model for antisocial conduct control.

MR. LIEBMANN: The first of our medical speakers will be the first of the drug czars, Dr. Jerome Jaffe, who is a native Baltimorean.

DR. JAFFE: Thank you. I’m not physically fit; I don’t ski. I have great kids, all of whom are smart. I’ve reached an age that I don’t always remember exactly what I said a few hours after I say it.

It may come as a surprise to some of you that I count myself among those who do not proclaim that the war on drugs has failed. I’m part of that group not because I believe that America’s drug problems are solved or even that they’re under good control, but because I see very little to be gained in criticizing a metaphor. The terms war on drugs, war on cancer, war on poverty have been used to communicate
a sense of urgency and commitment to deal with problems affecting our society, and over the last 35 years the U.S. federal government has spent billions of dollars on efforts to reduce the extent of illicit drug use and collectively the states and local communities have also devoted additional substantial resources to achieve these ends, yet 35 years later there’s still disagreement not only on whether we are
better off for the efforts we’ve made, but even on the goals of our policies and the means we have selected to achieve them.

Now, some believe that our goal must be nothing less than a drug-free America. By this they usually mean no use of any of those drugsnow defined as illegal. Others argue that our policy goals should be to minimize the harms associated with all drug use, and that the actual rates of drug use should be a secondary consideration. Currently the goals of our policies at the national level are aimed at rates of use, and only to a lesser extent at the harms.

Further, at the federal level, the dominant policy-makers tend to look away when confronted with the costs and the harms that are caused by the means we’ve selected to achieve our social goals, our chosen goals. Before I go further I want to point out that when it comes to social policy, a scientific background conveys no special expertise. Policy inevitably involves value judgments, and value judgments are mostly subjective and non-rational. Thus, policy can never be wholly rational. Usually it is not even entirely consistent.

Several years ago I was a member of a working group of the Royal College of Psychiatrists and the Royal College of Physicians that met to craft a book on drug use in the United Kingdom, and how that society might best confront the problems such use poses, and over the course of a year or so we met periodically to hear testimony from a variety of witnesses and experts to draft our report, a little book which is somewhere in my briefcase called Drugs: Dilemmas and Choices.

In the section on policy, we laid out what we believe represented some general principles. Let me tell you those five general principles. First, drugs that give pleasure or competitive advantage will be used by some people if they can afford them. And if they are prohibited, an illicit market will emerge.

Second, greater drug availability will lead tomore drug use, and except where the drugs are relatively innocuous, more health problems associated with drug use will occur. Third, it’s impossible to keep drugs that are available to adults out of the hands of children and adolescents. These three points were offered, incidentally, to the working group by Professor Mark Klieman of UCLA. Fourth, laws and law enforcement have effects on demand as well as supply. For a variety of reasons most people tend to obey the law.

Fifth, not all people respond the same way to drug control strategies and prevention efforts.

Now, the major point that I want to talk about here is that there are a range of options available to deal with behaviors that we, as a society, think are harmful, and perhaps just wrong. For example, speeding on the highway endangers the driver and others. So we set speed limits. Drivers know that there will be penalties if they’re caught exceeding those limits. Most of the time the police will issue a ticket and the offending driver must pay a fine. With repeated offenses, however, the consequences escalate and for those who refuse to pay or continue to drive without a license, there’s the threat of prosecution and jail.

But every one of us at some time or another probably has driven above the speed limit. I could ask people to raise hands who’ve never driven above the speed limit on I-95. I don’t know how many we’d count. Should we, therefore, however, count the number of law-breakers and, observing that so many have broken the law, decide that we should do away with the notion of speed limits? I think not. For those drugs which are currently illegal, the choice we have is not simply between legalizing them and treating them as ordinary commodities, because so many people use them, or continuing to prohibit them absolutely and imposing as a first response criminal penalties for possession oruse.

There are a number of policy options between those extremes, each of which has its advantages and disadvantages, and has a cost to society and to the individual who chooses to use those particular drugs. Drugs differ substantially in the harms they cause to the individual and to society. Some such as alcohol and tobacco also differ in that they have become accepted elements in most of our lives. No one set of policy options is best suited to deal with the diversity. Over time we should be aiming for policies that minimize drug use, based on harms, while bearing in mind the costs of the means we choose to implement the policies.

Given the diversity of drugs, and different kinds of harms, each with their different history of social acceptance, our response must be multifaceted and tailored to the particulars of the problem. There is no one best solution, no silver bullet. But there are a variety of ways in which we can modify our current policies to make them more realistic, more efficient, more effective, and in many cases more fair. For the past 35 years many groups and individuals have focused on the marijuana policies that we now have in place, criticizing particularly the use
of criminal law as the best way to reduce or eliminate marijuana use.

Some have advocated complete legalization of marijuana. Others have argued, and with good evidence, that marijuana causes health and social problems, and its use must be discouraged, but that we can do so at less cost to society by treating it as we do speeding on the highway. This has been called decriminalization. It is not the same as legalization.

Possession of marijuana, or at least more than a specified amount for personal use, would still be an offense. But it would be punishable by a fine much like a driving violation. The sale of marijuana would still be criminal.

In the United States in 2001 there were three quarters of a million arrests having to do with marijuana. Many, no doubt, were arrestsin connection with sales. But many, perhaps most, were probably for simple possession. Even if only a very few of those persons charged with simple possession were sentenced to jail, I believe our criminal justice resources, our police and our courts and our prisons could have been used more efficiently by allowing them to be more focused on more dangerous drugs and violent offenders. So did the bipartisan National Commission on Marijuana and Dangerous Drugs in 1973, and the Canadian LeDain Commission in 1971, and so does the government of Canada today.

All of these have called for the use of fines rather than arrests and threat of imprisonment as a way to continue to discourage marijuana use without the social and individual costs of criminal penalties. In the United Kingdom there has been a considerable degree of de facto decriminalization with no actual change in the law. The police can, at their discretion, deal with marijuana possession by confiscation or by fines. To the best of my knowledge, Canada, the UK, as well as the Netherlands, where there has also been de facto decriminalization, continue to function as vibrant, productive democracies. We might consider examining how these policy shifts have altered the patterns of use and the cost of use in those countries.

Some states have, at times in the past, also chosen this approach, and their experiences should also be studied. Even so, there are those who say that these policies that have modified and reduced legal sanctions inflict more damage on societies than does the use of cannabis. Some still argue for complete legalization which would permit the sale and taxation of cannabis. Such a shift would do much to eliminate illicit traffic in marijuana but it would also, without question, result in an increased use by both adults and adolescents. And as I previously asserted, there is no product that when made more available to adults, does not become more available to children.

Let me say again, cannabis is not a harmless drug, and its impact on the development of adolescents should not be underestimated. People do become dependent on cannabis. Cannabis dependence and cannabis-related problems are the most frequent reasons why young people are referred to treatment programs.

Our policies need to discourage its use. The issue is how best to do this without harming those we are trying to protect. Our policies represent a balancing of competing interests and values. In a secular society we presume that the goal of those policies is to minimize drug-related health and social problems at the lowest cost both monetarily and in terms of personal freedom. The impact of the use of any particular drug is difficult to predict. Sometimes the policies that are put in place misjudge the health effects by the overall cost of implementation.

Whatever policies are in place will have their supporters and their beneficiaries as well as their critics and sometimes victims. Policy revisions typically occur slowly. Consider tobacco. It’s been more than 50 years since we learned about the health impact of cigarette smoking, and we’ve only begun in the last few years to revise our policies. Consider also alcohol. International panels have repeatedly pointed out that in developed countries, alcohol consumption is the third most detrimental factor contributing to disease, accounting for 9 percent of all burden of disease, about the same amount as for tobacco. And the harms are not limited to those who are alcoholic. They have urged that we reduce the overall consumption of alcohol. They have provided in some of the books they have produced ten major policies that would be effective in doing so. In the United States we have implemented only two of those, raising the age limit for the sale of alcohol, and at least in most states, lowering the blood alcohol levels for presumptive evidence of intoxication among drivers.

Taken together, alcohol and illicit drug problems cost this country $386 billion a year, roughly a little over a third of a trillion, if that makes it any easier to remember. Alcohol costs slightly more than drugs, but the distribution of the cost is different. Alcohol exacts more costs in terms of health care and lost productivity; drug abuse more in terms of law enforcement and criminal justice. Policies once in place are hard to change. And today’s discussion I think will provide further evidence of how difficult it is to even reach consensus.

Let me end by repeating my major three points. First, the alcohol, drug and tobacco problems that we have in this country are costly in terms of money and human suffering. There is no quick fix, no single silver bullet that will solve all of the problems. Each drug, those which are legal and those which are now illegal, brings its own special issues and harms that must be thoughtfully addressed. Second, the choice of any drug policy for a society is not a simple choice between prohibition and legalization. There are a number of different legislative options available with different optimal choices for different drugs. Further, it’s important to consider the ways in which the laws are applied.

Lastly, there are other countries that have followed paths significantly different from those we have followed in the United States. We should consider them as natural experiments
and try to learn whether we can make our drug policies less costly and more humane.

MR. LIEBMANN: Our next speaker is Dr. Robert Du Pont, Dr. Jaffe’s successor at the White House Office of Drug Control. and also a speaker with a particular interest in techniques of drug testing.

DR. DU PONT: I think This is a wonderful opportunity to look for new ideas in drug policy and I’m just delighted to be here and share this time with you and with the other distinguished speakers.

It’s also striking to me that Baltimore is our location. Baltimore has been ground zero in drug policy development for quite a long period of time. I don’t think it’s any accident that there’s more likely to be an interest here than in many other places around the country. And so I want to salute the Calvert Institute, my fellow speakers, and also the community here, the State of Maryland and the City of Baltimore.

Following the other speakers, I’ll say just a word about myself. As Don Santarelli said I am a physician, and like Jerry Jaffe, a psychiatrist. I’m distinguished in the panel and perhaps in the audience as well by being a practicing psychiatrist. I actually see my own patients and have for 35 years, many of them with problems with addiction. So my perspective is not just a policy perspective, but also a clinical perspective.

When I finished my training at the National Institutes of Health I was interested in making a contribution to society in some way, and I went to work for the D.C. Department of Corrections in 1968. It was an unusual career choice then. And I was interested in seeing what could be done to help the people who were in prison. And the D.C. Department of Corrections was where I went on a full-time basis. I was very much caught up in the fact that Washington, D.C. was then in the middle of a very rapidly-rising rate of crime. And there was a lot of interest in why this was happening.

In August of 1969, with six unemployed college students in the summer of that year, we did drug tests. Drug tests began early in the D.C. jail, and found that 44 percent of the people coming into jail were positive for heroin, and that we could graph what year they first used heroin. And it laid on absolutely perfectly with the rate of crime in the District of Columbia. Whatever else you could say, there was no question that the principal engine driving the rise in crime rate was heroin use in Washington D.C. And that was published in the New England Journal of Medicine. It was a very influential article. And then the next question became what do you do about that? And that led me to drug treatment, and it led me to Jerry Jaffe, who was a leader in that field for the whole country, for the whole world. And I have been a very revering, respectful student of Dr. Jaffe and supporter of him ever since. He’s had a tremendous influence on my career and my life.

In any event, what we did was start drug treatment, and that meant methadone treatment in Washington D.C. I was and am a registered Democrat. It was a disaster to me personally when the Republicans came to town in 1969. And the irony of that was, as Don said, nobody down at that White House seemed to give a damnwhat my political party was. The question was could I do anything to make a difference? If I could, that was fine. And if I couldn’t, if I was a Republican it wouldn’t have helped. It didn’t make any difference to them at that time. I was pleased with that. That mattered to me and I appreciated that.

Don was one of the people I worked with and I can tell you in my career I’ve never worked with as many talented people as we had
working on the problem in Washington at that time, just absolutely stunningly good administrators, very bright people, very dedicated to the public interest in every meaningful way, including our handler in the White House who was a 29-year-old recent law school graduate named Bud Krogh, who represented Richard Nixon in dealing with all this.

In any event, coming out of the city in the Department of Corrections, I headed the health department’s program in drug treatment in Washington, and then as George said, I followed Jerry Jaffe as the White House drug czar, and I was the first director of the National Institute of Drug Abuse, and I’m very proud of the contributions that were made at that time. This is when we developed what’s called the balance strategy. The federal government prior to that time, including administrations both Republican and Democrat had been virtually solely focused on problems with law enforcement, it was a justice function. And it was the Nixon administration that changed that balance by adding prevention, research and treatment, and major federal investments in all of those for the first time in the country’s history. And to be part of that was a wonderful experience, and there were a lot of very good people who were involved in it.

But it’s interesting that prior to that there was a very small but extremely influential group of individuals interested in learning the drug problem in Lexington, Kentucky, and that’s where Jerry Jaffe got his introduction to drugs learning from that very tiny group of people. And that organization has now moved to
Baltimore, the Addiction Research Center. So again this provides a Baltimore connection of these very distinguished researchers in understanding the nature of this.

I’m not sure I’m the only one, but I think there aren’t many people who have known all 11 drug czars, one of whom is myself. I’m very pleased to say that the, Bill Clinton’s very distinguished drug czar, General Barry McCaffrey, asked me to the White House. This is my book, The Selfish Brain. It was published in hardback in 1977, in an earlier edition. McCaffrey asked me to come in and sign copies of the book for him. He, as a bureaucrat, had bought five copies with his own money, which was pretty amazing. He said this was the best drug book he’d read in his five years in the White House drug office. Some of
my friends say that’s because Barry never read any other books. But he’s a very intellectual guy. I was honored by this. I asked, who are the autographed books for? Three were for his three kids, who are all grown, and the other two were for the President and the Vice President. And that was pretty heavy stuff for a guy who went down in his basement and wrote a book.

I’m also very close to the current drug czar, John Walters, who I think is a wonderful man. I mention those two people, the last two drug czars, because they are from opposite political parties. And I think this tradition of 35 years at work has been a bipartisan work, although there’s plenty of partisan battles going on. And then I’m one of five people who have been the directors of
NIDA. And like Jerry, I’ve known those people very well too.

Since that time I’ve been the president of the Institute for Behavior and Health, a non-profit research organization. I’m going to say a few more words about that. We haven’t talked much about what the drug problem is. We call it the war on drugs. What are we warring about? What is the problem; how will we know whether we’re making progress or not making progress? You have to be able to define what the problem is before you can assess whether you’re making progress or losing in whatever it is you’re doing. That’s a surprisingly challenging thing to do, to think about what the problem is.

I’m going to pose two polar opposite views, and let you think about what the problem is. One way to think about the problem is the amount of use of the drug and the problems that flow from the use. The measure we would take to that would be how much use is there, or some other measure of problems associated with it, automobile accidents, problems in family life, problems in employment, whatever, the health problems, we’ve got a lot of ways to do it. But anyway, related to the use.

And then there’s another way to look at it, and that is to say, no, the problem with drugs is the social response to the problem of the use of drugs. So there the measure becomes how many people are arrested; how much is spent on prisons; how much is spent on law enforcement; how much is spent on other activities that are socially imposed and flow from the prohibition?

One of the things I want to call your attention to in lot of the debate about drug policy is thatthere’s a kind of subtle switch as to what the problem is, and we end up talking about the problems of people in prison, or the problems of the cost of law enforcement, and we leave out the question of, well, how do we get to those problems which have to do with drug use? And I want to tell you from my point of view,the way I would measure progress and loss in the game is use. That’s the game.

Jerry was talking about alcohol. With alcohol policy, how do we measure it? Well, how much alcohol is used? With tobacco, how much is used? That to me is the most fundamental epidemiologic measure, and it is a radical way to think about the problem because once you move away from that, the ground is not steady under you.

Let me give you some numbers to give you an idea about this. We have, using the same standard, which is any use in the prior 30 days, the term of art in modern epidemiology is to call that current use, 50 percent of Americans 12 and older had at least one drink of alcohol in the last month, 50 percent. That’s the percentage of the American population. I spoke to the editorial board of the New York Times years ago about this and asked them to guess around this luncheon where we were having sherry for lunch, asked them what percentage of the American public had as much as one drink per day most days in the course of a month, and the guesses ranged from 50 percent to 75 percent. The actual number is 7 percent. They were stunned by this because their presumption of how much drinking there is going on in the country was so different. And two things happened as a result of that. One, they stopped serving sherry at their lunches, and two they never invited me back.

To me the question about drugs, as I say, is measured in use, and the numbers for use, to give you these, 50 percent for alcohol, 30 percent of Americans smoke tobacco, and 8.2 percent use any illegal drug, of which 6.4 percent is marijuana. Those are the 2003 national numbers. I didn’t make those up. What do those numbers mean? You could also look at the question of what the social costs are, what Jerry was talking about. Alcohol and tobacco produce much larger social costs to this country than do all illegal drugs put together. What do those numbers mean?

Does anybody think that any of the illegal drugs would be less attractive to the public than alcohol or tobacco were they treated in the same way? I think it’s hard to make an argument that if you had less social disapproval, to use a word other than prohibition, youwouldn’t have use levels on the alcohol or tobacco scale with any of these drugs, let alone all of them. And if you talk to people who have used these drugs, you get an idea of the attractiveness of the drugs.

Now, from my point of view, the fundamental problem we have is brain biology: drugs produce feelings users like. They actually do work. It’s not just an idea. It’s not a fad. It’s biology. And they are powerful. They are very powerful. A simple experiment to show about drug use is an experiment done to laboratory animals where a white rat or a laboratory rat will not walk across a grid that’s got electricity in it because the rats are very sensitive to shocks. When they’re put in there, if food is on the other side, or water, they will die of starvation. They will die of dehydration rather than walking across there. But give the rat a little cocaine and show him that it’s across there, and he’ll walk across as if there’s no problem.

This is not a white rat or a black rat. This is not a rich rat or a poor rat. This is the drug about which it has been suggested that we’re going to improve our situation with methamphetamines by making it more available. The biology here is pretty serious. And what has happened is we have the modern drug epidemic in this world because we have never before in the world introduced large segments of the population to many drugs of abuse, drugs that produce great reward — that’s the term of art — on a large scale. It never happened. The modern drug epidemic is as new as the computer. In the world’s history it never happened before. And it’s globally going on. And what we’re going to do about it is going to be a big challenge.

And it’s not just here. It’s not just new ideas we’re looking for here, but all over the world. Because at the same time that we have biology, we have a cultural and an economic process going on to expose more people to the drugs, and to have more responsibility of individual choice for their behavior. And if you think there’s a simple solution to that, you’re wrong. As Jerry said, there is no simple solution. We’re groping to find social responses to it that make sense.

I’m going to draw this quickly to an end. I’m going to quickly end this by saying two things. One, when you think about harm reduction, which is the term of art now for softening the social disapproval about illicit drug use, think about how a family approaches a family member who has a drug problem. What do you do with somebody in the family who has a drug problem? Would it be a great idea if you had a son, let’s say, or a brother or sister and they had a heroin problem and you would say, what I’m going to do to help that person is give them clean needles. Does that sound like a really helpful way to deal with your brother or your child?

Let me give you another one; do you think that it would be helpful to your son or your brother or sister who had a heroin problem to say we’re going to set up a room in the house and give you heroin? Sound like a great idea to you? It doesn’t sound great to me. I have yet to see the first patient of mine who would have been better off with more drugs. I haven’t seen anybody like that in my practice. I think what’s needed is something entirely different. And what’s needed is tough love, which has to do with clear disapproval of the drug use, the family says absolutely not, not in this house. We will not support you; we will not send you to school; we will not give you the car; we will not — the wife will say or the husband will say– I’m not staying in this house if you’re drinking or you’re using drugs. That’s what really happens. That’s how people get well, when that happens.

And then you combine that with the secret weapon on the war on drugs, which nobody else has mentioned, and I’m going to mention it, and that is the 12-step program, Alcoholics Anonymous and Narcotics Anonymous. People really get well and stay well by going to those meetings, and that’s the secret you won’t hear anybody else saying, but that’s the truth. Drug treatment programs work to the extent that they get people into those fellowships. And they stay clean to the extent that they stay active in those fellowships. That’s the way it works. But I want to say I am proud to be part of this group, proud to be part of trying to find answers to this, and eager to work with you.

MR. LIEBMANN: The first question is from what I know of the sentiments of the panel, the easiest and least controversial, and that relates to mandatory minimum sentencing. I might just frame this in a more specific way by relating my only personal experience with mandatory minimum sentencing.

I was summoned to serve on a criminal jury some years ago, as I am every year. And on this occasion I was actually selected. And the reason I was selected to serve on a jury was that the case involved a defendant who insisted on picking his own jury, to the great distress of his public defender, and whose principal criterion seemed to be that he didn’t want anyone who looked remotely like his mother on the jury.

So in due course I was seated on the jury, and this fellow was not a rocket scientist because the facts, as revealed, were a typical episode of the drug war, an unmarked van, black van with one-way window glass pulled up in front of a rowhouse in east Baltimore, and this made noimpression on the defendant. The defendant was sitting on the front step of the rowhouse selling $10 bags of cocaine to various passers-by. He was, in due course, arrested. And the people inside the van, including for some reason both state and federal agents, were busy videotaping the whole thing. So when the jury went out to deliberate, and I was not the foreman, the foreman said let’s vote. Everybody voted and found him guilty. And I said, well, I think it would be good form if we discussed the evidence before we return to the courtroom, which we did, without any change in our opinion.

So my conscience didn’t bother me too much about this verdict. And when we went back in the courtroom the judge, who was Kenneth Johnson, read out the defendant’s rap sheet, which was an extremely long one, although I don’t remember the details. And, of course, we didn’t know what sentence was ultimately passed. My conscience didn’t bother me at all about this episode until some years later when I studied the Maryland version of the Rockefeller drug laws, the minimum sentence provisions of which are as follows: if you are convicted a second time of a drug distribution offense, even if the offense involves marijuana, a minimum sentence is two years. If you are convicted a second time of distributing a Class I or II drug, for example, heroin or cocaine, like our hero here, the minimum sentence is 10 years. If you are convicted a third time of dealing these $10 envelopes on your front stoop, the minimum sentence is 25 years. And if you are convicted a fourth time, the minimum sentence is 40 years. And this is not untypical of the so-called Rockefeller drug laws as they exist throughout the country.

Having begun with that somewhat biased beginning, let me just ask for comments on mandatory minimums as they now exist, beginning with Dr. Jaffe.

DR. JAFFE: When I served in Washington I had privileges to the White House mess. When Rockefeller passed his laws over my arguments to him that they were not wise, that they would cause problems, the Republican administration at that time decided that they had to go along with them. They could not let anybody get to the right of them. I wrote a memo suggesting that this was not the right time for that, and my White House mess privileges were immediately revoked.

I haven’t changed my views on it. I think that mandatory minimums take away a judge’s discretion to deal with differences that inevitably emerge in the criminal justice arena, and certainly to have sentences that are longer for a drug sale than for murder, as I mentioned to Governor Rockefeller, make it very
hazardous to be a witness in such a case. You think about it.

DR. DU PONT: I’m very interested. I don’t think the mandatory minimums have to dowith drugs. I think this is the criminal justice system changes that went on in the 1980s, so the mandatory minimums are with respect to all criminal behavior. My understanding is that it passed with a combination of liberal and conservative support. It was a very bipartisan issue. The reason for that is that on the liberal side was the presumption that judges favored white defendants against black defendants, and if you just did it the same for whatever the crime was, that this would be fair and work out fine.

I think mandatory minimums need to be thought about again, obviously. But I do think that there is a case to be made that crime rate reductions have to do with various stiff sentences. So I’m not — not just with drugs, but about anything– I’m not so quick to say it’s a terrible idea. Like Jerry, I’ve never been a supporter of mandatory minimums and I was not involved at all in those sentencing decisions. I call to your attention that it doesn’t have to do with drugs. It’s to do with crime. It’s a much broader focus and it was not a conservative activity. But it was a very much bipartisan thing that went on in the 1980s, and neither party has shown any sign of wanting to change that.

GOVERNOR JOHNSON: One of the things I was able to change as governor was actually to sign into law provisions that in New Mexico judges are given discretion with regard to numerous offenses. So that was really significant, and I think it will make a long-term impact. Again, I’m not in support of mandatory minimums. I think judges should have discretion.

I’ll just tell you the biggest horror story perhaps that I came across as governor in the state, involved a woman by the name of Marianne Gomez Velasquez. Her crime was that she wrote herself prescriptions for Tylenol 3, and she’d been doing this apparently since she was 17. She was addicted to Tylenol 3 for 20 years. She never received help for her addiction. She wrote herself hundreds of prescriptions. She got caught, and because of minimum sentencing regarding drugs and the writing of prescription drugs, on the third occasion that she was caught she was sentenced to 25 years in jail. And that’s more than second degree murder in the state of New Mexico. That’s almost three times the sentence for drinking, driving, and killing someone. When I got wind of this I pardoned her. I let her out of prison. She was to go into treatment. This was my sentiment, that if she had a problem with Tylenol 3 and if that problem reoccurred, that that was still not anywhere in the vicinity of a 25-year sentence. It should be against the law. Perhaps it should be criminal. But 25 years? Maybe 25 days. Again, I’m just trying to ground myself here in reality. And that certainly was not reality.

MR. SANTARELLI: This is a largerquestion than just a microscope looking just at mandatory sentences. This criminal justice system of ours is a football in the great struggle that began with our constitutional system, among and between the executive branch, the legislative branch, and the judicial branch.

We are essentially intellectually dishonest as a culture, as a political culture. We want the courts when they support us; we don’t want the courts when they don’t support us. We don’t trust the executive to make fair decisions all of the time, so we have a system of balance of powers. The Congress doesn’t like the courts. If I were on the court I’d like to say to the Congress, you dishonest bastards. Why did you shift this one to me?

I used to work in the Congress. The Congressmen would say let’s not argue about the fine points of this legislation; let the court figure it out. So the court figures it out, and the Congress says you’re wrong. Mandatory sentences as part of sentencing guidelines are all a reaction, a temporary reaction to this struggle between these three branches, that the Congress and the executive branch collude to tell the courts what they can’t do.

The moment that a judge makes a controversial decision, as took place in the Clinton administration a few years ago when a judge in New York City ruled properly, in my view, that the 4th Amendment protecting search and seizure had something to say about how a car or a truck can be searched, the immediate cry Is for his impeachment. We are in a phase right now where the judiciary now is under more criticism than ever before. So the sentencing guideline concept, the concept of the Congress setting out limitations and mandatory instructions upon the court is in high gear.

Honest men, including women drinking beer out of a bottle, say we can’t win this battle. So they created drug courts. Drug court is nothing more than the court that used to be with the discretion to sentence people to alternatives to incarceration, such as a drug treatment program. Everybody knows in their heart, even the bad guys like Delay, that that is a good idea, but they can’t admit that it’s a good idea in public because, like Clinton pulling the switch on the electric chair while he was campaigning for presidency, no one is going to be taken from the right. So all politicians declare, I can’t be soft on crime. I know in my heart I’m wrong with these mandatory sentences, so let’s create a drug court as an option, an escape valve from the rule that you must sentence to a term in prison. Legislation anticipating the proper punishment for a crime committed by a human being, an individual, is always and everywhere intrinsically wrong.

MR. LIEBMANN: Let’s now turn toa more controversial subject. And let me preface this with some statistics about marijuana, which are that the rate of
marijuana usage, and again, this is usage during the past 30 days, among persons from the age of 12 to 17 years in 2003 was about 8 percent; in the age group of 18 to 25 it was 17 percent, and among those 26 years or older it was 4 percent. This suggests that marijuana is essentially a drug of the young or a passing phase for many people, but not for all people. And that brings one to the question, if marijuana use is an evil, does the evil consist in physical damage or in intellectual damage, and in demoralization or demotivation? And if the evil is one of demotivation, is it not an evil which should be addressed not by the criminal justice system primarily, but by schools and colleges?

That leads me to the center of the question which relates to the decision of the Supreme Court three years ago upholding drug testing in Oklahoma, and thereby, eliminating some constitutional doubts which existed about mandatory drug screening in schools. So I would ask the panelists what they think the possibilities and pros and cons are of increasing school drug testing and what the relationship of such testing is toward criminalization. And I think I might perhaps begin by asking Dr. Du Pont, for whom this is something of a specialty.

DR. DU PONT: This is one of the two principal areas of interest to me right now in our organization, and that is random student drug testing. I was an expert in the original case, the 1995 case in Oregon, and very much supported the Supreme Court decision in the Tulsa, Oklahoma case. I think the confusing part is what happens when students test positive? And George is thinking about it as related to criminalization.

The answer is that the parents are called in and the student is assessed for the need for any intervention or treatment. Assuming that none is, usually there isn’t any, then the student is removed from extracurricular activities until the student produces a clean urine, and they go back to school and all that happens is they’re followed again to ensure that they don’t go back to using drugs. It’s not part of their academic record. It doesn’t go to colleges. It’s entirely confidential, but it does establish that they’re not going to use drugs.

I think that it’s the single best new idea to reduce the incidence of drug use, which occurs almost entirely in the teen-age years. What’s never been litigated is testing all students in public schools. There’s no barrier to testing in private schools. Remove the extracurricular activities and athletics. What would happen to public schools that tested all students? That’s not been litigated in the Supreme Court. But right now the idea is it’s perfectly legal, constitutional to test students for extracurricular activities and athletics, and I support that very much.

MR. LIEBMANN: As I read the decision, There were five justices who were ready to support it across the board.

DR. DU PONT: The original decision was 6 to 3, that was Vernonia. And the question would be what happens? I don’t know. Nobody knows. The ACLU is not eager to bring that case. They were shocked by losing in Oklahoma and they did not want to set a precedent. So it may be a while before you see that go to the Supreme Court.

DR. JAFFE: I’m not familiar with the cases. I’m not familiar with to what extent Bob’s circumstance about the way in which the test is used was an integral part of the decision. It’s important to know the constraints on what you do with the information you obtain from the test before I’m willing to come down one way or the other on how you would use it. If the Supreme Court says you’re allowed to do it and there are no constraints on what you do with the information, and it’s then put in the hands of people who think that, well, we now have evidence of your use, that’s the same as internal possession, which was once the criteria in California, the punishment is a year in jail, then I guess I don’t want to see it used.

It’s a good diagnostic tool and diagnosis in medicine is useful. It can be very valuable for prevention. But when it gets into the hands of people whose goal is a punitive one, then I’m not sure that I want to turn it loose. As I said, I am not sure to what degree the protocol and the decision that it’s okay were part of those legal decisions. So I can’t really take a position without knowing that.

DR. DU PONT: In both of the Supreme Court cases they met the criteria you’re talking about, confidential, and there was no involvement with anybody outside the school, except the parents.

DR. JAFFE: The real question is if somebody decided to do that. Would that have to be litigated all the way up to the Supreme Court? If you’re expelled from school because you have a positive, do you get your justice only ten years later when the Supreme Court says that wasn’t our intent? And that’s my fear.

MR. SANTARELLI: Don’t miss the point that this is a state action. This is a state action, intruding into both the privacy of a person’s life on no basis except fishing, arandom search. It’s troublesome for those of us who think constitutionally or who think from the promise perhaps not shared by everybody of essential personal privacy, personal freedom from the state’s intrusion into my underwear or my bloodstream or the contents of my lungs.

DR. JAFFE: Well, speaking of the contents of your lungs, the state has the right, I believe, to do TB screening. And if it looks like you have a contagious disease, they can undertake activities to protect the public and treat you.

MR. SANTARELLI: That’s correct. The exception to those rules are health and safety, have always been permissible for intrusion. I merely take the proposition that I start with the presumption against intrusion. I don’t say that I oppose this particular practice. I wanted to start with we should make judgments from a fundamental proposition, is intrusion into the privacy of the individual warranted by some significant public safety or public health issue?

DR. JAFFE: Don will recall that when we did the testing in Vietnam, the first thing we asked the President to do was to change the Code of Military Justice so that a positive on a drug test was no longer a basis for a court martial offense. And absent that, I would have not released the technology to the President, and that was an important issue.

MR. SANTARELLI: Where is that presumption in our present society; where is that presumption in your public debate; where is that presumption whenever you’re confronted with the proposition that your legislature is about to do something? Where are you guys? Supine, fearful, weak, ignorant?

DR. JAFFE: Let’s not confuse the idea of urine testing with its intrusiveness. Some day they’ll have something where you just have a little laser and it will tell you, and it doesn’t intrude into anything. The point is what do you do with the information? That is critical. It’s critical that that be protected. If you’re going to go on a fishing expedition, it has to be for somebody’s benefit, for their health and not punitive.

MR. SANTARELLI: You have to remember, there is no such thing as information that is secret. This is a long-term problem that we confront as a society. Once information is developed for any purpose, it will no longer be secret. Look at the fight we were in for 30 years over the rule of law that you didn’t want the CIA to talk to the police, because the CIA could conduct searches and surveillance and gather information without any control. So now we sit here in fear of the great war on terror. Because we have a constitutional rule that either you play fair or you don’t play. So now you guys have the Patriot Act — don’t get me wrong. You’re all asleep.

DR. JAFFE: The point is we weren’t asleep. Because when we made treatment available we also created confidentiality laws that were the best ever devised, that even in the case of a major offense, the police couldn’t get at therecords of people who were getting drug abuse treatment.

MR. SANTARELLI: That was before the world of the Internet and technology where you may transfer this information among the related parties. This is like the King of England in the 16th century says you’re a traitor; I define traitor. I now define related parties; the bank, insurance company, actuarial folks and the law enforcement guy who says let me see that.

GOVERNOR JOHNSON: I don’t know if I disagree with what either of the two of you are saying. I think there’s a real issue when it comes to drug testing about what you’re testing for. In fact, I’m agreeing with both of you. Having had a thousand employees, we drug-tested pre-hire for cause and random drug testing. And, of course, we told people up-front, here’s what we do at this company and we offered employee assistance. So we did not have zero tolerance. We wanted to help the people out that may have had drug problems, and I think we were very successful in doing that. Again, I’m scared to death over new legislation that will allow mandatory drug testing at the scene of an accident and that person then, because of a zero tolerance policy where marijuana may be present in that person’s bloodstream, but that person is not impaired, will have their life adversely affected. So I think in this country we should have a choice of whether or not we want to work at McDonald’s or be an astronaut. And I think NASA should perhaps drug-test. I think that the airlines should drug-test, and I don’t think I’m going to find any disagreement here.

But where the drug testing issue becomes really troublesome is we’re testing for presence and not impairment, and technologically speaking, I think it’s interesting that Dr. Jaffe would talk about a laser that would be able to detect instant impairment, I think that day is coming, and that’s going to be interesting as to how that information gets used. And again, let’s draw theline here.

DR. JAFFE: I didn’t say that was really coming.

GOVERNOR JOHNSON: I think it’s coming.

DR. JAFFE: I’m just trying to make it clear that there are things like hair tests things that are very non-intrusive. And they now have a little thing that will swab the gums and it’s just as effective as a urine test for opiates and cocaine. The technology is changing, but it doesn’t change the fact that you’re getting personal information that really can’t be kept secret, and it can be misused by some people in an atmosphere where not everybody thinks that you get information for therapeutic purposes. I also believe that it is beyond, at leastwithin my grasp of the science, it’s beyond our capacity to develop levels of drugs that will be solid evidence of impairment. People respond to drugs with tolerance and other things, so that where a level for one person would be impairment, a level for some other person, even though it’s even higher, will not be impairment. Science is useful, but it has its limits. So all you can detect is presence. What we have for alcohol levels is presumptive impairment. It is only presumptive. And very often there are some people who at the levels that are illegal are not impaired.

GOVERNOR JOHNSON: For marijuana currently –

DR. JAFFE: Marijuana can’t be done to the best of our knowledge.

GOVERNOR JOHNSON: The level of presence of marijuana results in a guilty verdict today.

DR. JAFFE: Well, it’s a positive verdict that people probably have used marijuana, except if they have spent several hours in a room 4 by 4 with three other people smoking marijuana, they discovered that back in 1974 that you can inhale enough marijuana in a room full of other marijuana smokers to come up positive in a urine test.

GOVERNOR JOHNSON: Actually, I understood that in a government test, constant blowing of smoke for three hours, they weren’t able to get to that level.

DR. DU PONT: It depends on what kind of air circulation. You can’t do it in an open room. If you go into a phone booth with ten people smoking one hour each day for six days, that person will test positive. But in the real world it doesn’t happen.

GOVERNOR JOHNSON: Not to get off on a cul-de-sac, remember the snowboarder that was tested positive for marijuana, and he won a gold medal. They should have given him another gold medal for having won a gold medal under the influence of marijuana. It’s not an enhancing drug.

MR. LIEBMANN: Dr. Jaffe, what are the lessons of the military drug testing?

DR. JAFFE: Well, there were two phases — actually three. The first phase was we used the testing to detect drug use and offer people who are positive an opportunity to be detoxified, because we assumed that anybody who recognized that they wouldn’t be able to leave a particular situation as long as they were positive, must be dependent. They quickly learned to stop using. So you could deter drug use by having a contingency other than a catastrophic bad conduct discharge or dishonorable discharge, by simply saying you’ll be delayed in returning to an environment that you want to go back to. And that was positive and it was effective. They later decided not to use it. That was the third phase. I don’t know why they discarded it. In the third phase they used the sametesting in a much more punitive zero tolerance way after they had an all-volunteer Army, to say if you’re positive, we discharge you. That was also effective because most people who joined in peacetime in the old volunteer Army wanted to keep their jobs. A diagnostic test with an adverse contingency can be effective. So the effectiveness is not questioned. I think the issue of fairness sometimes is what it is. And the question of personal privacy, I think, is something at issue. And that’s the military experience.

AUDIENCE MEMBER: I’ve read recently in a couple of places where they think they might be able to have a drug that would cause an alcoholic to not want to take alcohol, I think in England. Does anyone have any thoughts on that or have any information on that, that they give someone like an antibiotic?

DR. JAFFE: There are three different drugs currently in use — actually four. The old disulfiram is around. There is the finding that the narcotic antagonist trexan can decrease the likelihood of relapse. There’s another drug recently approved call Acamprosate that tends to decrease the likelihood of relapse. And there is another drug not yet fully approved but coming down the pike, that may be useful. But I can’t recall it now. At any rate, yes, there are such drugs. Whether they’ll be widely used or not remains to be seen. The great bulk of people who have alcoholism problems go to the 12-step programs and the idea of these support kind of drugs is not widely popular.

GOVERNOR JOHNSON: There’s onedrug that is very useful for treating heroin addiction called naltrexone, which completely blocks the effect of heroin and completely blocks overdose or any reward. It lasts for 24 hours. You can take it orally. It is just about everything you could possibly want in a drug-related heroin addiction, and it’s irrelevant to the treatment of heroin addiction. How many heroin addicts want that? The only people who take it are physicians who are required by their medical boards to take it. Otherwise, it’s not used. I think that the issue of the pharmacologic treatments, you have to be motivated to have that effect, to take the drug. And that’s a tough sale.

MR. LIEBMANN: Let me ask a naive question. This just relates to heroin. How curable is a heroin addiction, and is it not the case that it’s very difficult to cure, and the case for the so-called harm reduction strategy is stronger with heroin than with any other drug?

DR. JAFFE: Well, first, let me talk to you about the cure. If you want to talk about whether somebody is cured from the injection of heroin, that’s pretty common. What people will argue about is whether or not it really is a cure if somebody is maintained on an oral opiate like methadone. And if that’s the case, then there are many, many people who have once been heroin addicts who haven’t used heroin in many, many years.

Doctors who were addicted to opiates, but not heroin, routinely recover, if you arrange the contingencies properly. There are a lot of people who can recover without being on methadone. I know many can. But everything is relative. It’s the way you frame the question. There are people who cannot avoid relapse, even though they recognize the risks when treated without something like methadone. And so that’s a very, very useful option to have in the range of options that society ought to have for people. And then there are people who can accept regulated heroin, as they have in Switzerland; they’re willing to accept that. Whether you think that’s a cure or not is a matter of great debate. I’m not sure that’s the answer you wanted, but it’s a complicated question.

GOVERNOR JOHNSON: Heroin maintenance in no way is an end-all cure. But what it says up front is that we’re going to look at the problem as a health problem first, not a criminal justice problem. And maybe you guys know the statistics. I’m not going to quote statistics here if I can’t remember them properly. But there are a great number of heroin addicts that quit after a certain number of years. If they just stay heroin addicts, at a certain point they quit. The problem in the United States is we could not have policies more geared to killing addicts than we do here, and that is the fact that we don’t care about needle exchange. People die from hepatitis C and HIV, and they die from heroin quality/quantity unknown. I’m back to heroin maintenance and treating it as a health crime. Where the quantity or the quality is not going to kill. And then you have the whole trade that’s involved in heroin; you have disputes played out with guns, and people do die from that. And you have women that have to take up prostitution to pay for it. So again, in this country policies could not be more attuned to killing heroin addicts. So they don’t live long enough to just use it long enough to quit.

AUDIENCE MEMBER: Obviously, all of these drugs are not good for you, including marijuana. I think it’s been shown in teenagers that it delays emotional maturity, and so forth. And those things can be a gateway to worse things. But looking at these statistics that you have on some of the hard things like cocaine, 1.9 percent were users in 2003 in the last 30 days, that’s not a lot. And I am wondering if some of these drugs have been used by some people to cover for
other illnesses, like schizophrenia or bipolar or even obsessive compulsiveness. I think alcoholics — I mean, have those things that are contributory causes of their addictions. So I wonder if there is hope for some better medications for these other problems coming down the pipeline. I hope so. I think there probably is. But I think that we have these other problems that are part of the so-called problem in addition to them causing violence, and so forth.

DR. DU PONT: You’re talking about co-morbidity. You’ve got higher rates of drug use in the population of those with mental illness, more alcohol and drug problems, and people have used the term self-medication to describe what people are doing about that. The problem with self-medication is that all of these problems are made worse by the use of these drugs. All of them, OCD, schizophrenia, bipolar; there’s a phrase in Narcotics Anonymous: there is no problem so bad that drugs and alcohol won’t make it worse. So to call it self-medication is a complete misnomer. It’s the exact opposite. It’s making all of the problems worse. One of the things I find striking is how important it is for people who are dealing with people who are mentally ill to identify the drug use in that population because they’re not going to benefit while they’re still using drugs; there’s no hope.

MR. LIEBMANN: Let me ask the panelists, beginning with Dr. Du Pont, whether you have in your present state of knowledge one public policy recommendation that you’re reasonably sure of, other than the need for further intelligent study and discussion, and if so what would that be?

DR. DU PONT: I think the biggest impact on drug use in America would be to make drug testing on the highway as common as alcohol testing is. I think that it would put illegal drug users at risk for their driver’s license and exactly the thing that Governor Johnson is concerned about is what I want to see happen. This happens now with commercial drivers. We have a standard for commercial drivers, and we have since 1988. And it’s worked very well in that population. The public does not know that illegal drug use creates as many problems on the highway today as alcohol does. We have a national effort to deal with drunk driving. We need to deal with drugged driving. So that would be my number one suggestion.

DR. JAFFE: I think, respectfully, I’m not going to try to rank-order all the things that I think we could do to make things better. I’m very concerned that we’re not doing what we can about tobacco and alcohol, and together they’re bigger than the illicit problems. I think that there are many areas where we could do better. It depends on — it’s been a problem of mine for some time. I just see too many things to be done, and I find it too difficult to rank-order.

GOVERNOR JOHNSON: Legalize pot. I think that overnight you would see a difference in this country. I think overnight things would be better. You wouldn’t necessarily know what they were, but they would be. And part of that would have to do with the fact that the police wouldn’t be arresting 700,000 people a year. They might be out enforcing litter laws, which I’d like to see. They might be out enforcing speed limit laws, which I’d like to see. They might be out enforcing the fact that my credit card has been used illicitly, and they might go out and enforce that. I think there are a whole lot of things that we would like to see happen in this country that aren’t happening now because we are so preoccupied with pot. And back to pot, I actually believe that there would be less substance abuse, overall substance abuse because I think people would find pot as an alternative to alcohol, and alcohol, I think, is the real insidious culprit in our society. And for that matter pot may be too, if we establish impairment. And that needs to be established, and it needs to be enforced. Back to traffic. Again, it’s never going to be an excuse for any sort of smoking pot, becoming impaired, driving, smoking pot, doing crime. That’s criminal, and that always should be.

AUDIENCE MEMBER: I think that when we’re talking about drug policies — sometimes it’s hard to differentiate people who are convicted of drug sales and manufacturing from people who are convicted of drug possession. And those are two very different crimes. I’m interested in the drug sales and manufacturing. What I’m interested is in inner cities. Governor Johnson, you said before money represents freedom, and I know some sociologists who look at inner cities who really
document the lack of jobs, and some economists, Steven Levitt and Richard Friedman, say people are entering into drug sales because of the same dream that you’re after. They need money to sustain and they can’t find legal jobs to do so. So I’m wondering if the war on poverty and the war on drugs aren’t really intermingled in this issue, and what could job creation and job programs, how could that affect the drug market, especially residents who are living in inner cities?

DR. DU PONT: 70 percent of illegal drug-users are employed full time.

GOVERNOR JOHNSON: Well, with the exception of drug use, most drug-users, not all drug-users, are tax-paying, job-holding parents. You also pointed out something that I see as a real hypocrisy, and that is with regard to our drug policies, our current drug policies. How is it that users are any less guilty than the sellers? Because they’re out on the street trying to find it and somebody is just coming in and filling the gap? I see this as really hypocritical. Sellers, these people that are going to prison, are those that are selling small amounts of drugs, small quantities of drugs, but they have been caught before on numerous occasions. And now because of mandatory sentencing this is the profile of the person behind bars. When you talk about job programs, jobs making a difference, yeah, jobs can make a difference. Can government create jobs? I thinkgovernment can create an environment that promotes job creation. But government itself, I think we’re into another topic, and that’s where I think I’m a Republican. Get government out of the way.

MR. SANTARELLI: You’ll never get government out of the way.

MR. LIEBMANN: Let me ask a question. There is a case before the Supreme Court, the Ashcroft v. Raich case, which has at least the possibility of blowing a hole in the present drug policy with respect to marijuana, either by carving out a broad exception for home-produced marijuana or a narrower exception for so-called medical marijuana. What is your estimate of the prognosis — I’m not asking you to be a soothsayer about the Supreme Court, because that’s a very difficult exercise. Let us assume that there is an exception of some dimension carved out for medical marijuana. What does that imply for future policy? Should Congress intervene to either regulate or tax it, or should the matter be left to the state governments?

DR. JAFFE: Well, since I happen to see this brief, amicus brief in front of you, and Dr. Du Pont is one of the people named on it, I think he’d be more appropriate to speak to.

MR. LIEBMANN: I know what he’s going to say. I don’t know what you’re going to say.

DR. DU PONT: It’s interesting. I was at the Supreme Court for the argument of that case. I certainly am very involved in the case. It’s interesting that it’s argued on the basis of state’s rights and not on the basis of medical marijuana. That’s where the case comes down. The issue has to do with whether the states have the right to establish this medicine in the state or whether the federal law supersedes that. And I think that’s the way the case is going to be decided. I think it will affect medical marijuana, but I don’t think it’s — the way the court appeared to go I would say it’s going to be 7 to 2 against medical marijuana. That would be what I would predict. It could go either way. People on my side, which is opposing medical marijuana, are generally concerned that our side could lose, and I think anything could happen. The case was argued November 29th and it’s overdue right now. So any day it’s going to come out and I think it’s going to be a big headline case one way or the other.

AUDIENCE MEMBER: Why do you oppose medical marijuana?

DR. DU PONT: The idea that you would deliver a medicine by burning leaves makes no sense. Smoke is, by definition, toxic. To the extent that there’s any chemical in marijuana smoke that is beneficial, treat the person with that chemical in the known dose. There is no tradition of burning leaves for medicine, absolutely none. Smoke is toxic. It’s a pathologic drug delivery system. The people who want medical marijuana just want’s a back door to legalize marijuana because they have no
interest in the development of pharmaceutical products out of those chemicals, zero, none. And the reason is all they want is to smoke dope, and they wouldn’t settle for anything less. It’s very well established that smoke is not an acceptable medical delivery system for any drug to treat any illness.

GOVERNOR JOHNSON: I know Dr. Du Pont knows this. The criticism of that analysis is that in its pill form marijuana just knocks you out. I mean, it absolutely obliterates the taker of marijuana by pill form versus being able to smoke, and actually prescribe your dose by being able to take enough marijuana to actually get relief and not pass out. Secondly, I just find it extraordinary that wherever medical marijuana has come up for vote in any state, that it has passed overwhelmingly.

DR. DU PONT: Everywhere it’s lost.

GOVERNOR JOHNSON: Medical marijuana has never been defeated when put to vote by the public.

DR. DU PONT: 2002 was the first time it started to lose. The only place it passed last time was in Montana.

GOVERNOR JOHNSON: Where has it failed?



DR. DU PONT: It is a losing game.

GOVERNOR JOHNSON: Wherever medical marijuana has come up for a vote among the people of a state it has passed. When legislatures have passed medical marijuana and it has been signed by the governor, for the federal government to say to states, you cannot implement laws passed by the legislature signed by the governor or you cannot implement a program that the citizens of that state have voted on is wrong.

DR. DU PONT: How many medicines do state legislatures vote on?

GOVERNOR JOHNSON: What you’re saying, though –

DR. DU PONT: Zero.

GOVERNOR JOHNSON: But the precedent that you’re talking about is one that the federal government is going to say you states are wrong. And that is not the foundation of this country.

DR. DU PONT: It is for medicine.

GOVERNOR JOHNSON: This is really scary.

DR. DU PONT: Take it to the FDA to get approved. It’s a crummy drug delivery system.

MR. SANTARELLI: There is a clear endless tension between federal regulation and state regulation of human conduct. Typically health and safety have been state-regulated events. But in modern times the federal congress can’t keep its hands off of anything because there’s votes in it. And on the other hand, to be even-handed, if it’s possible, interstate commerce needs to be regulated by one place. We are in a phase where we are recognizing that the concept of a federal republic is a dream. In order to have a viable commerce and global commerce, macroregulation is practically required. It is difficult for us old Jeffersonians whose image is of the library-educated, University of Virginia boy pushing a plow, to believe we just are past that. Some of us can lament it, but recognize that it’s inevitable. Federal regulation will ultimately succeed in every field, will make states ever more irrelevant, except in the duplication of the regulation. And that brings us to the next stage of the game and that is double criminal liability to two different sovereigns. So you get it both ways.

MR. LIEBMANN: Let me let that lead to another question. The question about double enforcement or double sovereignty is one of peculiar interest in Maryland. It’s not generally recognized, but it’s true that Maryland was the only state that refused to enforce national prohibition in any way. Governor Ritchie was gravely opposed to national prohibition. And Maryland was ultimately followed in that first by New York state under Al Smith, and then by six or eight other states, which is one of the things that gave rise to the ultimate collapse of national prohibition. That leads me to the question, what policy should the state adopt in the allocation of its enforcement resources with respect to marijuana; should the state enforce the law or should it say to the federal government, if you want to prohibit possession of marijuana, you enforce it? What would you say if you were a governor or a state legislature or a policeman?

MR. SANTARELLI: I would take that policeman, in part because of my deep commitment to federalism, because I don’t trust anybody with power, including the religious right. And I’m an old Roman Catholic. And I would use every opportunity to establish the state’s authority to regulate its own conduct. However chaotic that may be in a modern world, it’s the only safeguard of liberty, fractured authority.

DR. JAFFE: Well, this has much more to do with law enforcement and policy issues. We should hear from the Governor.

GOVERNOR JOHNSON: I couldn’t have said it better than Don.

AUDIENCE MEMBER: I just have a small comment. I know that current policy falls within the public health school. I come from Hopkins and then we thought in terms of saving lives, and so I have a small concern, especially with regard to legalization of marijuana, because the arguments I’m getting so far are arguments about saving money rather than really saving lives kinds of arguments. I heard Dr. Jaffe talk about the fact that implementing these kinds of laws are diverts a group of people from using marijuana itself. So I was wondering what kind of other arguments can be given in terms of legalization saving lives rather than saving money.

GOVERNOR JOHNSON: There are no known deaths due to marijuana. Again, I thought there are some, but there aren’t any. That isn’t to say that a person won’t smoke marijuana and die as a result of their impairment because they do something stupid. But actual inhalation of marijuana and dying as a result of it, I don’t think there’s anything in any –

AUDIENCE MEMBER: You’re going to divert the problem to the medical sector by legalizing. It’s my guess it is more expensive medically than the legal system. I guess from the experience of prohibition of alcohol in the U.S., switching it to legalization, alcohol, and that the alcohol bills, medical bills got to be more expensive than the illegal drug bills in the U.S. So I’m guessing, how would legalization –

GOVERNOR JOHNSON: First of all, I think in a perfect world, to say that people shouldn’t be able to smoke cigarettes, they shouldn’t be able to drink, or they shouldn’t do drugs and they shouldn’t do marijuana, in a perfect world, no, let’s pass laws and everybody obey those laws.

AUDIENCE MEMBER: A certain level of legalization has always been shown to prove that the fact something is socially perceived as wrong is going to divert people from using it, like smoking or using alcohol or other substances.

GOVERNOR JOHNSON: I think your point is well taken. Health costs are going to at least initially probably increase as a result of the legalization of marijuana. What is it to say that with education, that marijuana and drugs won’t decline in use, as cigarette smoking has declined in use strictly because of education. I just think we can do a better job in the educational area. And again, I don’t see the health costs outweighing the current costs, which again, back to the 1.6 million arrests, back to half of law enforcement, half the courts, half the prisons, the fact that we made tens of millions of Americans felons. I think that cost is just such that it can’t continue.

MR. SANTARELLI: Let me add one more cost, and that’s the ultimate cost, the cost of liberty. I’m troubled with the proposition that we continue to use enforcement mechanisms to deal with conduct that is secondarily harmful and not primarily harmful. I come from the perspective that I would rather somehow to take the law enforcement quotient out of the picture. Because it’s the law enforcement quotient that gives rise to the organized sale and distribution of drugs of all kinds, which creates an enormous falseeconomy and an enormous black economy, and really leads to the shootings in Baltimore among the gangs over who is going to distribute the stuff. It’s the production and distribution of something that people want to use. Criminalizing that diverts the law enforcement system not only away from other priorities, but also into incursions of ultimate individual liberty. Now, I don’t have the magic bullet. I’m articulating a problem, putting it on the table for us all to kick around and worry about. That’s the worry I bring to the table. Where medical people bring the medical worry to the table, I want everybody to appreciate what it is we give up in the name of fear of harm from excessive use of different kinds of drugs that affect people differently. We treat it all as one from a law enforcement standpoint. When I was in the government and in charge of the Law Enforcement Assistance Administration, and at a time very unpopular, I took the position, let’s look at the other costs we have of using the criminal system to enforce the marijuana law, especially at a time in the `70s when marijuana smoking was more a symbol of protest than it was a brain reward pleasure. It takes a while to get a brain reward just as it does it does to get people who start smoking cigarettes. When I tried it it was so unpleasant that I didn’t try very long. I took the view that if the kid smoking dope on the sidewalk protesting the war in Vietnam looks at the policeman as his enemy, that’s a bad start for entering into a social compact with a community. If the kid from the street looks at the cop as his enemy instead of his friend, the guy to go to report a crime he may have seen occur or suspicious activity or his own risks, he’s going to stay away from the policeman. That dichotomy of interests that early in the stage of development is bad for society. You weigh that against the good of the policeman being a marijuana enforcer. I ask you to weigh that. When I look at that I weigh it out on one side because I’m preoccupied with liberty. You’re entitled to weigh it as you wish. But I want you to do it intelligently and not just sit there and let it happen.

MR. LIEBMANN: What would a legalized regime look like with respect to marijuana? That is to say if you wanted to tax and regulate, given the privilege against self-incrimination, you have to get rid of criminal penalties. You could probably have some kind of civil penalties.

MR. SANTARELLI: Just like they do Pennsylvania and Virginia, state liquor stores, you sell one joint at a time. There’s a label on the liquor bottle that says 80 percent proof, 90 percent proof; there’s a label on the cigarette says whatever proof, I don’t have any idea how you regulate the quality of marijuana.

MR. LIEBMANN: Who would manufacture it and what level of government would regulate sales?

MR. SANTARELLI: The same guy who makes whiskey, with the guy from the BATF watching them pull the tap.

MR. LIEBMANN: I’m asking this question because it is not self-evident to me who the substitute industry would be, generic drug manufacturers, alcohol, tobacco, who would it be?

GOVERNOR JOHNSON: I think what you would have if you would go to implement this, what you should have is you should have in this case states implementing the laws, and that they would determine those laws, and back to this country and what it’s founded on. You’ve got 50 laboratories of democracy. You’re going to have 50 ways to get it done. But very quickly there’s going to be a best practices that is going to be developed. There are going to be mistakes made along the way. Again, if you’ve got all states engaged in this, you will find best practices emerge.

MR. SANTARELLI: You couldn’t buy a drink in Virginia when I was in school. But you could buy a bottle. If you wanted to drink you would go across the border. It’s entirely okay for states to have these goofy experiments within themselves.

MR. LIEBMANN: But you can’t have one as long as there’s the federal criminal prohibition, except to the extent that the Supreme Court may carve out exceptions. Then this is the second question, a political question, and that is that no one thinks that the National Organization for Reform of Marijuana Laws and Libertarian Party are going to be producing political change in this area. In the prohibition period the political change, as a practical matter, came about because of a political coalition between the former producers, brewers, distillers who still were in business making medicinal whiskey, near beer and sacramental wine. The Calvert Institute for Policy Research,Inc. 8 West Hamilton Street Baltimore, Md. 21201 coalition was between them and the very rich who hoped that alcoholic beverage taxation would replace what was left of the income tax. Where is the lobby going to come from to produce legislative change in this area?

DR. JAFFE: The natural producers are the tobacco companies. They are now held in ill repute, and I don’t see them lobbying for this at this juncture.

MR. SANTARELLI: George is right. I don’t think there is a critical mass, even in coalitions.

DR. JAFFE: You’re talking about a plant product that’s ground up and typically wrapped in paper. Does that sound like another product that’s sold? There are people who know how to do that with great precision and great regularity, and with good quality control. They know exactly how that’s done. I don’t see that there are any generic drug manufacturers that have those skills and technologies. But as I said, I don’t see them, you know, becoming a force for this.

MR. LIEBMANN: As far as the taxation of sin is concerned, you don’t see any state governor who would like to tax this?

GOVERNOR JOHNSON: Talking about taxing the product, I think that that would be very secondary to just getting the entire industry above the line when it comes to income tax.

MR. LIEBMANN: I think this has been a valuable exchange, and I am sure that members of the panel will be glad to communicate with you individually if you have any individual questions.

A Note on Marijuana Referenda

According to the Initiative and Referendum Institute,, referendum proposals to generally decriminalize marijuana use failed in Arizona in 1996, in Alaska in 2000 and 2004, and in Arizona, Nevada, Ohio, and South Dakota in 2002.

Proposals for legalization of marijuana for medical uses were successful in California in 1996, in Nevada in 1998 and 2000 (required to pass twice), in Alaska, Oregon, and Washington in 1998, in Maine in 1999, in Colorado in 2000, and in Montana in 2004. A medical marijuana proposal failed in Arizona in 2002. Referenda providing for mandatory diversion programs passed in California in 1996 and 2000, and failed in Washington in 1997 and in Massachusetts in 2000.

Posted in: Drugs, News Series