Our Immoral Drug Laws
If people are to feel a sense of obligation to the law, then the law must correspond with what they consider to be right and just, or, at any rate, must not unduly diverge from it. In other words, it must correspond, as near as may be, with justice. —Sir Alfred Denning
In current discussions of the drug problem, the concept of justice rarely enters. Emphasis is placed, instead, upon the “protection of society” by resort to more severe penalties—that sovereign, popular remedy for the control of sin. On the federal level, two major steps in this direction have been taken since the war, in 1951 and in 1956. In the meantime, the states have been passing laws which match or exceed the rigor of the national laws. Only rarely has there been any effective opposition to this trend, although the Governor of New Jersey did recently veto a narcotics bill in that state, characterizing it as an example of a lynch law.
In earlier articles in The Nation (“Traffic in Dope,” April 21, 1956; “Dope: Congress Encourages the Traffic,’’ March 16, 1957), I commented upon the 1951 and 1956 legislation. In this article, I propose to show that current laws in this field, because they are unjust in principle, are inefficient in practice. They punish the wrong people, encourage the police to lawlessness, and give society the dangerous illusion that the drug scourge is being brought under control.
The inefficiency of our drug-control methods is concealed behind misleading statistics. Estimates of the extent of drug addiction are based almost entirely upon police activity. When arrest rates rise, as they have been doing for the last fifteen years, this is interpreted as evidence of increased police efficiency; declining arrest rates are usually taken as an indication that the problem is diminishing because of effective police work. In this numbers game, the true situation is anybody’s guess. The large volume of arrests creates the pleasant illusion in the public mind that the dope peddler is being severely dealt with, and bad statistics save the public the disillusionment of discovering that it is not so much the drug peddler as his victim who is suffering the punishment.
Most people would agree that the addict is a sick person needing treatment rather than punishment. Nevertheless, the great bulk of recent state and local legislation has been designed to make it easier to put more addicts behind bars for longer periods of time, and to give the police a free hand in dealing with them. Meanwhile, genuine treatment facilities continue to be virtually non-existent.
Even the popuIar current idea that drug users should be given rather than criminal commitment procedures gets twisted in practice. The establishments to which addicts are sent for “involuntary treatment” invariably become prisons, although they may be called “hospitals.” The Riverside Hospital in New York and the Public Health Service Hospital in Lexington, Kentucky, are examples. In the meantime, thousands of addicts who annually give themselves up for "cure" on a voluntary basis are sent to jail for their “treatment."
The most important and basic inconsistency of present law is represented by the confllct between the federal courts’ doctrine that the addict is a diseased person and a proper subject of medical care, and the regulations issued by the Treasury Department which deny doctors the right to treat them, The physician who today acts according to the clear irnpllcations of the dactrine of the federal courts takes the risk of being prosecuted for violation of the narcotic laws. It is interesting to observe that this situation was brought about historically by administrative regulation, and not by legislative action, court decision or the pressures of public opinion.
Symbol of the moral bankruptcy of our narcotic laws is the dilemma in which it leaves the addict: if he does not secure drugs, he is puliished by his disease; if he does secure them, he is punished by the police. Drug users and those who know them at first hand recognize that withdrawal distress is often a serious, frightening and dangerous experience. It is no more than an act of common decency to assist an addict in avoiding or postponing this ordeal when there is no possibility of medical attention. To deny him this medical care on the grounds that he should not have acquired the habit in the first place is the moral equivalent of denying medical treatment for gonorrhea on the same grounds. And it has much the same effect in that it leads to the clandestine spread of the disease. Present laws have the practical result of defining as a crime a simple act of humanity to the drug user. The physician is denied the right to provide the addict with relief from the terrible symptoms of his habit; the addict must turn to the drug peddler.
Tacit official recognition of the idea that addiction ought to be regarded as a disease requiring medical treatment can be found in the way in which a few privileged addicts are handled. Ex-boxer Barney Ross, for example, testifying before the Senate Subcommittee on the Narcotics Trafflc, described his experiences when he gave himself up:
I went to my doctor in New York, and I said, “I must do something, what is your advice?” He says, “Barney, there is no sense in hiding anything. Take your best dress [clothes] and turn yourself in. and don’t go in as somebody ashamed of anything—go ahead, you are sick—and turn yourself In.” Which I did. Then the chief of narcotics took me to Judge McGohey, who was the attorney general, I believe, at that time, and I says, “I have nothing to hide, this is my story, and do with me what you can—what you wlll.”
Mr. Ross had previously indicated that he had been obtaining his supply of drugs from doctors for several years—evidently illegally. He stated that the officials whom he contacted made telephone calls to Lexington to arrange for his admission within a few days and that he was flown there in a private plane. During the brief waiting period, he was evidently permitted to go on using drugs illegally. He remarked:
And I asked Judge McGohey if I could not go up to—I believe it was on a Friday, if I am not mistaken, because I asked him if I couldn’t spend a weekend up at Grossinger’s in the country where I did my training for my big fights, and that is practically my second home. He granted me that request.
Wlthdrawal of drugs was not undertaken until after the arrival at Lexington on Monday and Ross toId the subcommittee: “I don’t know whether you want me to go through with all the tortures of hell that went through me while I was there.” He was assured that the subcommittee wanted the whole story, and the witness continued:
Well, you start to scream. The nightmares, all kinds of horrors, you are always thinking that there are monkeys jumping up and down your back. You turn around and see there is nobody there, and you find yourself screaming and find yourself on the floor many times from rolling off the bed, and I got to a state one time where I was ready to cut my throat with a razor blade.
Ross went on to tell the Senators that after about ten or eleven days at Lexington, when the worst of withdrawal was passed, he wanted to leave. But he was prevailed upon to stay for the full 120 days which are necessary, according to Lexington officials, to give the addict a chance.
The Barney Ross story is important because it reveals an exampIe of humane treatment of the addict in contrast with the treatment of the ordinary user. Mr. Ross was not required to undergo withdrawal until he was under the care of physicians. No one begrudges Mr. Ross's cure, nor the means by which it was effected; yet insofar as the special treatment he was given is extended to other addicts who are “important” people (and this is not uncommon), it means that there is, in effect, one set of narcotic laws for the well-to-do and another for the poor. The former are ‘‘diseased,’’ “unfortunate victims”; the latter, "criminals” and “derelicts.”
Placing the addiction problem in the hands of the police puts them in a dilemma when they deal with the drug user. If drugs are withheld from the arrested addict, the user must go through the worst agony of withdrawal in the police lock-up lock-up or jail; if the police supply drugs, they are, of course, guilty of the same violation for which they send doctors and drug peddlers to prison. In practice, the police ordinarily withhold drugs in order to use the addict’s withdrawal distress as leverage to compel him to act as a stool pigeon.
The addict who agrees to cooperate is permitted to continue his addiction so long as he acts as an informer, and is later either exempted from punishment or given a lighter penalty. Various devices are employed by the police to allow the addicted stool pigeon to obtain drugs. Sometimes he is given them directly. The usual techniques are indirect, such as alIowing the addict-informer to use some of the heroin which he had purchased as evidence, or authorizing a doctor to prescribe for him. Another technique is simply to pay the informer with money and not inquire into what he does with it.
These police maneuvers are usually soft-pedaled in court or covered up by perjury. Some judges know that these things are done, and regard them as “dirty” but necessary if the narcotic laws are to be enforced at all. Indeed, it is true that without the reluctant cooperation of the drug addict, the narcotic laws would collapse altogether, and it is therefore futile to demand that the police cease these practices.
Treatment of this type is sometimes defended on the grounds that the user is a habitual thief or peddler himself, and deserves nothing better. Apart from the fact that the user is also inconsistently declared to be sick, it is clear that any law which specifically authorized the utilization of withdrawal distress as pupishment for crime would no doubt be nullified by the courts on the grounds that it prescribed “cruel and unusual punishment.”
Ironically, in his role as law-enforcement agent—(he is called a “special employee”), the addict succeeds mainly in sending other addicts, not important peddlers, to jail. The “built-in” third degree is not ayailable to the police when they deal with the big men in the dope traffic, who are not addicts.
The addict’s usefulness as an informer is not likely to last long, and when it is over, he is often marked for mayhem or death by the underworld. A common method used by the police in getting rid of informers who are no longer useful is known as “burning.” This consists of deliberately revealing the identity of the informer to addicts and peddlers. The practice is sometimes justified on the grounds that it will make it easier for the ex-informer to stay off the habit, since no one will trust him. It is also viewed as necessary because, once an addict has discovered the advantages of maintaining his addiction as an informer, he is very reluctant to give them up. He realizes that for squealers, equally satisfactory ways of raising money and getting drugs are not readily available in the criminal world.
.Obviously, the drug addict can escape from all his problems by simply quitting the habit. Why does the addict, once he has been forcibly separated from his drug, insist on returning to it? There is no satisfactory answer to this question. All that can be said is that the experience of many centuries in many countries has shown that none of the laws designed to control this behavior has had much effect. The authority of the drug habit is greater than the authority of the law; and once established, the desire for drugs cannot be eliminated by legislation.
The confused and inconsistent thinking underlying present anti-narcotic laws is also clearly evident in current popular attitudes toward the dope peddler. He is charged with deliberately spreading or perpetuating the habit for mercenary gain, with exploiting his “victims” by charging exorbitant prices, and with deriving profit from the criminal activities of his customers. According to the Senate subcommittee, he “commits murder on the installment plan” and no punishment, even the death penalty, is too severe for him.
If one asks who is primarily injured by the peddler’s activities, the answer can only be that it is the addict. Are our laws, then, designed to protect the addict from the peddler? Obviously not, since addicts are sent to prison much more often and, in the aggregate, for much longer periods of time than are the non-addicted peddlers who make the large profits. Indeed, one can reasonably argue that at present the laws protect the peddler from the addict, for it is the latter whose frequent arrests deceive the public into believing that drug profiteers are being severely dealt with. At this point, the usefulness of bad statistics again becomes apparent.
If it is agreed that the addict is the victim of a disease and that he should not be forced to undergo withdrawal except under medical auspices, then the peddler is obviously his benefactor. There is no one else to whom he can go for relief. Ordinarily the addict has an ambivalent attitude toward the peddler, regarding him as a benefactor, while at the same time often resenting the high prices charged for drugs. His resentment is rareIy strong enough to make him want to cooperate with the police, however. The nub of the situation is simply that the retail drug traffic is based on a business relationship in which the customer willingly pays to a willing seller whatever he must to obtain the desired goods. There is in this relationship no party who feels that he has been wronged and can call upon the law to punish the wrong-doer.
While it is generally agreed that the drug habit is an evil, it should be recognized that it is inherently very much the same kind of evil as alcoholism. The direct harm which drugs inflict upon the addict’s body is probably less than that produced by alcoholism (a much more widespread habit and’a “legal” one). Like the alcoholic, the addlct actively seeks his "poison", and one may query whether the primary blame should be placed upon the peddler who sells or upon the addict who insists on buying.
A primary source of the degradation of the addict in this country is undeniably the high price of illicit drugs. It is this factor which makes it impossible for the ordinary addict to maintain legitimate employment. But before one blames the peddler entirely for the high cost of drugs, it should be noted (1) that the cost is determined by the balance of supply and demand and by the usual competitive processes which operate in any business activity, and (2) that the police have always taken credit for high black-market prices, insisting that they are an index of police efficiency.
The lower-echelon drug peddler who serves the addict cannot arbitrarily fix his own prices. To begin with he must pay high prices, and the inexorable logic of economics requires that he sell at still higher prices. At the same time, there is a ceiling to what he can charge, since the addict can usually turn to a competitor peddler. In general, drug prices must be high enough to cover: (1) the risks of arrest and loss of supplies to the police; (2) the cost of distribution through the many levels of an hierarchy designed to protect the top levels from undue police interference; (3) the payment of bribes; (4) bad debts; and (5) the costs and risks involved in smuggling drugs from abroad.
It is obvious that the poIice have more control over these factors than have the drug peddlers. If the high cost of drugs constitutes economic exploitation of addicts, the blame should be apportioned accordingly. The police regard it as desirable that the prices be high because, they say, high prices discourage addiction. The present dimensions of the drug problem strongly suggest that there is something wrong with this argument.
It is customarily argued that peddlers, always seeking to enlarge their business, deliberately spread the drug habit; indeed, this is one of the main reasons advanced for punishing them severely. But the contention does not square with the facts that the punishment prescribed by law is very much the same for both seller and buyer and that the deliberate spread of the habit is nowhere specifically defined as a separate offense. The thesis is aIso inconsistent with the fact that there are virtualIy no addicts in the higher reaches of the traffic, where the big operators (at whom the laws are said to be aimed) take great pains to avoid any association with addicts or even direct contact with the illicit drugs. Operations at this high level are carried on by non-addicts exclusively in great secrecy. This is often true of the next higher echelons of the trafflc as well. Among these big operators, contact with new addicts would be considered a danger to security. And even among the retail peddlers, there are many who absolutely refuse to do business with anyone who is not already a known addict, since they could never otherwise be certain that they were not seIling to a narcotics agent.
Of the many drug users who appeared before the Senate subcommittee, not one stated that he originally used drugs at the instigation of a peddler. The usual story was that initiation came through intimate association with users. The customary steps are association, curiosity, experimentation, addiction. Even within the underworId itself there is widespread agreement that persons should not be lured into the habit, and anyone guilty of the practice wodd be placed on the lowest rungs of the underworld’s social ladder.
But if it is the addict, rather than the peddler, who spreads the habit, is not the severe punishment of addicts thereby justified? Certainly it is not just to punish all for what some may do. What seems to be needed is a specific definition of a criminal offense, ie., the act of making drugs available to a non-addict for the purpose of inducing him to experiment with them, Such a law would require that the offense be proved in court on the usual basis. Actually, the law would probably result in few convictions, simply because most persons who become addicts do so of their own volition and against the advice of their addict friends. While the addict does spread the habit, as a ruIe he does so inadvertently or through a relationship so intimate that it is beyond the effective reach of the criminal law. Examples are the love relationship when one of the pair is addicted, and the juvenile gang in which the supply is collectively secured and divided among the members.
One of the damaging effects of the drug habit is that it is produced by prolonged and frequent repetition of "cures.” Older addicts have sometimes taken as many as fifty or more of these cures, some voluntarily and others involuntarily. Barney Ross had this to say:
...Addicts that have been repeaters and repeaters and repeaters for 20, 30, 40 and 50 different times, and there are so many of them, that are past the age of 50, should be given some consideratton, because past that age, when you are going to, as we say, kick the habit, it keeps tearing at your heartstrings and there could be sudden death.
It is the general practice of the police in most large cities to pick up addicts pretty much on sight. The practice has been encouraged by recent state and local legislation, such as that which defines the addict as a vagrant or a disorderly person, or which declares addiction itself to be a misdemeanor. A large proportion of those picked up are ordinarily held for twenty-four to forty-eight hours, during which period the addict gets very near the point at which his withdrawal distress is most acute. The period is long enough for the poIice to work on the prisoner for information, but is much too brief to provide hope of cure, as Barney Ross's story indicates. The addicts subjected to thls “harassment,” as it is officially called, are expected to relapse as soon as they are released, and they do—often to be plcked up again in a short time for a repeat performance. There can be little doubt that this practice contributes materially to shortening the addlct’s life expectancy; such repeated involuntary and “partial” cures are probably more damagmg than the habltual use of heroin itself. “Murder on the installment plan” more aptly describes this aspect of addiction than any other.
The practice is vigorously defended as the most effective manner of securing information. Here again, as in the case of the high price of illicit drugs, the pollce share with drug peddlers the responslbility for the exploitation and degradation of drug users. It is debatable where the lion’s share of responsibility should be piaced.
The use of the addict as a pawn in the game of smashing dope rings was neatly descrrbed to the Senate subcommittee by Assistant State’s Attorney Peter Grosse of Chicago:
...We operate on a premise that in order to catch a dope peddler you must have an addict. Before you catch a big dope peddler, you have got to have a small one. They fit into this picture. They form a part of this process whereby we acquire our Information, our intelligence about the traffic. . . .
Referring to the common practice of arbitrarily arresting and detaining addicts, Illinois State’s Attorney Gutknecht rounded out the picture:
I think you will also have to agree that neither Mr. Thieken [US Attorney] in his capacity nor I in my capacity—and we both have civilrlghts laws to enforce—can...get too exclted if a known addict has been unlawfully arrested and then discharged, knowing that because he is a known addict the police have to take little extra measures.
Actually the guilt of the drug peddler consists mainly of greed, the desire to make a “fast buck”—an attitude widely shared in our society. It is found even among those engaged in the administration of “justice” to narcotic offenders. An example was supplied by the disclosure, a few years ago, that the head of the- narcotic squad of the municipal police department of our national capital was himseff engaged in the illicit traffic.
It is possible to argue that the injustices and moral confusion which prevail in the handling of drug addiction arise primarily from inconslstency: that drug addiction ought either to be treated as a crime and consistentIy punished as such regardless of whether the addict is a doctor, a Barney Ross or an indigent; or that it be treated consistently as a disease, in which case it should be turned over to the medical profession, as has been done in most European countries. Actually, the first alternative is not practical, for experience has shown—and the police vigorously insist—that present narcotic laws cannot be enforced except by lawless means. The root of the difficulty is thus not to be found in the inconsistency of present legislation, but rather in the basic ideas underlying it.
The fatal weakness of our present system is that it fails to take into account the basic human situation with which it is supposed to deal. By denying the right of the physician to relieve the addict’s suffering during drug deprivation, it in effect rejects the idea of the sanctity of human life and the desirability of preventing needless suffering. By so doing, it flies in the face of the ordinary decent reactions of human beings which form the basis of sound and just law. In short, the narcotic laws are basicaIIy immoral and essentially unjust because of the manner in which they affect the addict, the way in which they distribute punishment, and because they require that the police engage either in immoral or criminal behavior, or both, in enforcement of the laws.
The needed reform is simple in nature. People ought not to be punished for disease or for actions which arise from it. This principle is accepted throughout the civilized world. Addiction to drugs should be “Iegalized” in the same sense that venereal disease and cancer are “legal”; and, like them, it should be declared the concern of the healing professions. Specific ideas as to how this might be accomplished are readily available from the study of many countries which have successfully done so. All of these countries combined, be it noted, do not have as many addicts as we do.