At the start of the new legislative session in January 1973, Nelson Rockefeller introduced a new and aggressive anti-drug law to the residents of New York State. Its aim was "to make the selling or conspiracy to sell hard drugs, the possession or conspiracy to possess large quantities of narcotics and the commission of violent crimes by persons who had ingested hard drugs punishable by the mandatory sentence of life imprisonment." This meant, in practice, that anyone convicted of selling or possessing any quantity of any "narcotic" drug (including marijuana), hallucinogens, amphetamines or depressants, would, if older than 19, be sentenced to prison for the remainder of his or her life. Furthermore, the defendant would not be permitted to plead guilty to a lesser charge, nor be eligible for probation or parole. The bill would also make it a new crime to commit any number of "conventional" offenses after having knowingly ingested one of the unlawful substances, Knowing ingestion was io be presumed if, within forty-eight hours after the crime, traces of a hard drug could be found in the defendant’s body. (This despite scientific evidence that many of these substances cannot be detected after as short a time as several hours.)
Governor Rockefeller’s proposal attempted to make the sanctions for possessing and selling even small quantities of "dangerous" drugs equal to or more severe than those available for seemingly more serious crimes—mur-der, assault, burglary, etc. Although the bill was changed somewhat in its passage through the legislature, it remained a hard-nosed attempt to control drug use and abuse in New York State.
Considering the immense amount of research conducted in the United States on drug use, and the almost overwhelming weight of opinion to support the liberalization of drug laws, it is difficult to understand how such a repressive bill could have found backers. However, a brief look at early drug legislation may point to an answer.
The first significant federal legislation dealing with the sale and use of narcotics was the Harrison Act of 1914. This had been preceded by the Hague Opium Conference of 1912, at which an international agreement was made to control the traffic in opium and other addicting drugs. The Harrison Act was passed to control the domestic sale and use of opium and coca products through the levying of taxes on them. Despite the fact that it was primarily a revenue measure, it contained exceptionally harsh and punitive penalties. Also included in its provisions were stipulations for registration and maintenance of records by individuals who handled the drugs. Further, it prohibited drug possession by those not registered, except for "legitimate medical purposes." Ostensibly, its purpose was to make drug distribution in this country visible and. thus controllable. There is little indication that its intent was to deprive addicts of legal access to drugs or to interfere with the medical treatment of addicts. Later Supreme Court rulings as to what were "legitimate medical purposes" were responsible for the repressive measures accorded addicts. The cases of Jin Fuey Moy (1920), Webb (1919) and Behrman (1925) sought to impose increasingly strict limits on the sources from which addicts could obtain maintenance doses of narcotics. For example, the Court held in Webb that a legal prescription for maintenance levels of narcotic drugs was not within the parameters of a law which did however allow doctors to prescribe these drugs "in the course of professional treatment." The other cases, essentially refinements of this theme, set further limits on the ability of the medical profession to alleviate the distress of drug users.
The extremely harsh implications of these cases were mitigated, nominally, by the Lindner case (1925), in which the Court reiterated that the Harrison Act was intended only as a revenue measure. The Act said nothing about addicts and did not undertake to prescribe methods for their treatment. Although intended as a rule of enlightenment, the effects of this case remained largely symbolic and yielded little to either addicts or their treatment by physicians. When the Harrison Act was passed there were thought to be 400,000 addicts in the United States, many of whom had been inadvertently "turned on" through the use of soothing syrups and painkillers, before these substances were known to be addictive. Prior to the passage of the Act, such persons could buy, legitimately and, inexpensively, the drugs necessary to sustain their habits. "Criminal" addicts were unheard of. The black market in drugs and all the related problems resulted from a law aimed at controlling and decreasing the availability of drugs. Society’s ameliorating attempts only aggravated a situation which previously had not existed as a problem. The implication is not that the laws generated addiction; rather, the fault lies in the manner in which they restricted access to the drugs.
The Jones-Miller Act was passed in 1922. It, too, was presented as a tax measure, but its extreme penalties—a fine of $5,000 and imprisonment for anyone "who fraudulently or knowingly imports or brings any narcotic drugs into the United States…or who buys, sells or facilitates the transportation of any such narcotic drug"—suggest that its principal purpose was not to raise revenue but to deter and harass addicts. Between 1927 and 1932, the Uniform Narcotics Law was prepared by the Federal Bureau of Narcotics, which had been established under the Treasury Department in 1930. This law was "designed to facilitate enforcement by promoting cooperation between federal and non-federal officers and by creating uniform standards of record keeping."
The next federal legislation resulted from the tremendous escalation in narcotics use following World War II. The Boggs bill of 1951 greatly increased the penalties for those convicted of narcotic offenses and in addition made it much easier to obtain convictions. The bill enlarged the penalty from a ten-year maximum to a graduated schedule of penalties, The most severe penalty for a third or subsequent offense was a ten-to-twenty-year sentence, with probation and parole excluded, for sales to adults. If the buyer was a minor, the penalty was ten years to life, again without probation or parole, and with the death penalty applicable if recommended by. the jury. The bill’s main assault was upon the small street peddler, since the penalty for first offenses was a mere two-to-ten-years, with both probation and parole possible. Generally, large traffickers are first-time offenders, and the harshness of this law thus fell mainly on the pusher-addict, the least deterrable of all the players in the narcotics racket.
By the 1960s the drug problem had become overwhelming, especially in the cities. In 1965 a federal law regulating dangerous drugs was enacted in the form of enforcement to the Food, Drug and Cosmetic Act. Administration was to be carried out by the Food and Drug Administration, whose agents were given increased power in an attempt to control the "menace." They were permitted to carry firearms and were accorded search, seizure and arrest powers.
The drug control laws in the individual states followed essentially the provisions of the federal statutes. The penalties, however, varied considerably from state to state.
The Narcotic Addict Rehabilitation Act, passed in 1966, was a civil commitment bill which in a variety of ways allowed for the confinement of a "sick" addict for treatment. It was quickly judged a failure due to the fact that the rehabilitation programs closely resembled prison programs and so did little to "cure" addiction. The Comprehensive Drug Abuse Prevention and Control Act of 1970 embodied both a punitive and a rehabilitative approach to the drug problem. It abolished the extreme mandatory and minimum penalties and made sentencing more flexible by permitting the offender to be placed on probation for medical treatment.
In spite of apparent changes, actual government policy has remained much the same since the Webb decision. That it has not worked can be seen in part by the spread of addiction in the past ten years. From 1966 until 1969 the number of federal drug arrests increased from 22,000 to 67,000. Expenditures of police time and effort, money spent on drug education and prevention, and every new form of civil and criminal legislation have failed to solve the problem.
The alleged function of the various drug laws: including New York State’s Draconian measure, is to deter the use and sale of drugs. They would thus also eliminate the street crime that accompanies illicit drug use. Faith in deterrence assumes the individual’s fear of detection and consequent punishment. A study on deterrence has noted that:
It is very much a function of the psychologica1"state of the individual, as he perceives the stringency of the penalty and the capacity to have it imposed. If the individual fails to perceive the deterrent or perceiving it remains unimpressed) by it or decided that the risk of incurring it is acceptable or believing the risk to be intolerable, acts anyway, then there can be no deterrence at all. (Goodman, et al., 1966.)
While it is frequently assumed that, if penalties were severe enough, drug addiction and drug traffic would disappear, the fact is that attempts to deter addicts by these methods spring largely from the prevailing superficial views on the nature of addiction. A workable definition of addiction is that it begins at that moment when the user no longer takes drugs for pleasure but solely to avoid pain. Ai that point, drug use becomes involuntary and is observable mainly in its absence. The new drug law in New York State fails to distinguish between addicting and nonaddicting drugs. Few threats are sufficient to deter a habituated heroin addict; the "soft," non-addicted drug user may be deterred, although harsh punishment is neither the most efficient nor the most effective way to accomplish the goal. Unlike the addict, the user of LSD and marijuana has the advantage of being able to weigh the risks, and possible consequences of his behavior: the risk of getting caught, against the harshness of the penalties should that occur, Very few people knowingly commit criminal acts expecting to be detected, unless they have previously weighed the risks and decided that the acts are "worth" any potential penalties. If the latter is the case, little if anything would serve as a deterrent. On the other hand, if the individual does not believe he will be caught, the severity of the penalty can have little effect on his decision.
Deterrence is also advocated on the assumption that stringent law-enforcement practices insure individual conformity to the law. A footnote in Robinson v. California, a 1960 Supreme Court decision, noted just the opposite:
It is the very severity of law enforcement [which] tends to increase the price of drugs on the illicit market and the profits to be made therefrom. The lure of profits and the risks of traffic simply challenge the ingenuity of the underworld to find new channels of distribution.
If one believes in the efficacy of harsh penalties as deterrents, the probability of detection and the speed of punishment are essential elements. The certainty of a six-month sentence would have greater deterring force than a possible, but unlikely, life sentence. If an individual does consider the risk involved, the probability of a swift and certain sentence is part of his calculation. The criminal justice process is at present so sluggish that even though criminal acts may eventually be punished, a penalty which is handed down several years in the future can hardly be an effective stop to present criminal behavior. Even the 100 additional judgeships mandated by the new drug law in New York are unlikely to speed up the process. The judicial stage is only one of many steps the defendant must pass through in his processing, and the rest of the system will operate as slowly as ever.
The primary thrust of the Rockefeller drug legislation is toward eliminating the visible presence of addiction: street crimes and the small pusher. The importers and wholesalers exist behind the scenes, and although they are the source from which drug traffic flows, their obscurity permits them to seem removed from the process. The more easily discernible pusher is the object of the anger, hatred and fear which the drug problem unleashes. The political expediency of the Rockefeller approach was thus obvious. It helped assuage the white majority of the state’s residents, who were thrown into terror by the escalation of the drug "menace." Many black leaders in the state felt that at last something was being done to alleviate a problem which until very recently had been theirs alone. It is interesting in this context to note that it was not until the 1960s, when large number of the white middle class began to view drugs as a personal problem, that anything at all was done.
On its face, the drug legislation is aimed at eliminating the upper ranks of the drug world as well as the street people; as it stands it will not succeed in that respect. The big dealers are physically detached from the actual maneuverings and manipulations of the drugs, and it is only through physical contact with drugs that convictions will be obtained. The legislation does contain a clause for conviction for conspiracy to sell, but conspiracy convictions are notoriously difficult to sustain. Even if it were possible to get at the present importers, hope of complete and total deterrence is an illusion. The profits are so high and the risks so minimal that there would be a steady flow of those eager to step in and fill any existing voids in the trafficking. Diversion, not deterrence, would be the outcome.
There are, other difficulties with this legislation. Not only may the law fail as a deterrent;, it may well exacerbate the situation. If the usual channels for moving drugs are closed, new ones will be opened. The drug traffic will not cease, but its base of operations may be forced to relocate. Foreseeing this problem, the Governor of Connecticut urged that a bill mandating the death penalty be adopted for twice-convicted narcotic peddlers. However, changing the locale of drug operations will neither alleviate the problem nor please the communities into which the operators move.
If the legislation has even a minuscule effect as a deterrent, and thereby decreases the quantity of drugs on the street, the results could be disastrous. The demand for heroin is inelastic and will not be reduced by diminished availability. However, a decrease in the supply will skyrocket the price. In order to satisfy his need, an addict will be forced to turn still more often to the easiest and most profitable source of money—street crime.
The provision for harsher penalties for those convicted of violent crimes while under the influence of drugs is unlikely to have a deterrent effect on either drug use or violent crime. Even employing what appears to be one of the law’s basic assumptions, it makes little sense. If drug addicts and users are incompetent, morally irresponsible individuals, it is difficult to understand the rationale for punishing them for deeds which they are incapable of controlling. Punishing an individual for something over which he has little or no control is not likely to inculcate a sense of respect for the law. Indeed, it smacks of retribution, an argument for punishment that is at present out of favor.
Predicating more stringent penalties on the belief that drug ingestion leads to more violent crime has questionable value as a deterrent. The evidence does not support this theory. Furthermore, American criminal law stipulates that the penalty must be based on the act, rather than on the condition of the user. It would be difficult to imagine the justification for the increased penalty other than as a retributive measure. Inequitable and excessively harsh penalties often cause people to regard the law as unjust. Thus juries may become reluctant to convict.
A final aspect of the new drug law merits mention. The, bill authorizes a reward of $1,000 to be paid to persons who provide information leading to the apprehension and conviction of hard drug pushers. It must be noted that the application of this provision to the hard drug pusher alone assumes a belief that heroin and the other addicting drugs are the source of the urban crime problem, and thus the primary focus of the law. Appending LSD, marijuana and other soft drugs to the legislation was for effect only. It was, therefore, a dramatic appeal, based on the promulgated belief that users of these non-addicting substances are a threat to the established order. The soft drug users are to be hounded not so much for their behavior—drug use, sales or possession. They are to be hounded for being what they are—people who have a predilection toward using drugs, in a manner similar to those who use alcohol or even tobacco.
The bounty aspect of the drug law will certainly not deter the wholesalers and importers, who are protected by a complicated network of "front men." For several reasons, it is unlikely that this provision will deter addicts or pushers either. If an addict attempts to turn in a pusher, a report of his activity is certain to be circulated. It will, thereafter, be difficult if not impossible for him to obtain drugs, since few would risk selling to him. Desperate as this individual may be for the cash reward, it is unlikely that he would be willing to jeopardize his future supply. It is also conceivable that a pusher may be inclined to turn in a fellow pusher, either for the reward, or to rid himself of competition. If this did in fact occur, the crime problem would only escalate. A decrease in the total number of peddlers would enable those remaining to become more selective in their dealings and to charge higher prices. The addicts would be forced to increase their criminal activities in order to meet the higher prices.
Thus, in all its particulars the new drug law seeks to deter addiction and the ancillary street crime in a fashion a that is likely to aggravate an already mammoth problem. What it does not and cannot do is decrease or eliminate the need for drugs.
At present, however, much of the above is speculation. For all its inclusive measures, the legislation notably lacks any evaluative provisions. Only through evaluation and research can its deterrent claims be substantiated or proved false. Several private foundations have recently embarked upon evaluative studies, but the law is so new and the studies so recent that little information has as yet been collected. The Division of Criminal Justice Services is the department in the state machinery responsible for statistical information on criminal activity. It has published two quarterly reports which have some gross data on drug arrests. The reports show that in New York City drug arrests have fallen off; during the same time period drug arrests have risen upstate. The report makes no attempt to explain this development, but various interpretations are possible. One is that the law is in fact working as a deterrent in the city. Fewer people are using drugs, therefore fewer are eligible for arrest or are in fact arrested. A more likely interpretation involves law-enforcement patterns, and it is supported by another piece of information. A lawyer involved in the ABA-Vera Foundation evaluation noted that in New York City marijuana arrests are up, while heroin arrests have dropped. There is speculation that the police are making the easier arrests. Rather than going after heroin dealers, who are more likely to resist, since they have more to lose, the police arrest the soft drug users who are an easier mark for police tactics. Unfortunately, it is much too soon to judge the significance of the data. It will be several years before the full ramifications of the new law can be understood and the efficacy of the law determined.
A deterrent does not have to be a legal mandate; it may be anything that inhibits the activity at which it is aimed. And in the realm of criminal deterrence, punishments, whether moral or legal, are not the only possibilities. Such things as economic aid, special educational advantages and other positive action might take the place of the usual punitive deterrents—which, in the case of drug abuse, have been directed primarily toward the users.
Other tactics could be employed. For example, there have been few attacks on those who supply the dealer with the paraphernalia he needs to sustain his business. The large companies which manufacture glassine envelopes have a production rate that far exceeds the demands of philatelists. Quinine also has at present little use except for the dilution of heroin. Few if any governmental attempts have been made to inhibit the production of these commodities, even though it is known that their major use is by the illicit drug industry.
A more drastic step would be to legalize heroin. It could then be dispensed free at clinics, or purchased without controls at drugstores. The British dispensing program has not been entirely free of trouble, but in England virtually no street crime is associated with the drug problem.
Thomas Szasz, in an article published prior to the Rockefeller announcement, pointed out that to support addicts in their habit would be much less expensive than all the preventive and rehabilitative programs now employed:
During the 1969-70 fiscal year, NACC had a budget of nearly $50 million, excluding capital construction. Using these figures as a tentative base for calculating, here is what we come to: $100 million will support 30,000 addicts at $3,300 per year.
It seems, then, that it might be cheaper to support legions of addicts than to attempt to cure or punish them. The fiscal appropriations suggested in the new law make the expenditures for drug control totally unrealistic. The economic burden imposed on the residents of New York State would far exceed any potential.deterrent value. For example, the, 1974-75 state budget allocates a whopping $197.3 million for its various drug-control programs. When one considers that the total budget for the state is $9.8 billion, that is an enormous chunk. Thus, one might ask not if drug use can be deterred, but should it be, if the expense is so great?
Immediately upon announcement of the Rockefeller anti-drug proposal, critics and advocates embarked on their respective courses of denunciation and praise. After several months of hot debate, the bill was passed in a special summer session of the New York State legislature. It went into effect in September 1973 and was launched with tremendous media coverage. Radio and TV stations ran spot commercials, and newspapers carried full-page ads, all exhorting people to turn themselves in to the NACC centers to avoid prosecution. The state seemed committed to proving to its residents that it meant business. One hundred new judgeships were authorized to expedite the anticipated horde of new drug cases—although as of the present budget, money has been provided for less than half of these posts.
The bill has been somewhat amended since its inception to include a specific schedule of penalties for given quantities of drugs. An important change in the final version stressed the imposition of a life sentence, rather than life imprisonment. Public outcry had forced the withdrawal of mandatory life imprisonment. However, life parole is hardly something to look forward to. As Rockefeller pointed out, a parolee can do nothing with his life—get married, for example—without the permission of his parole officer.
A little known fact is that this latest drug legislation was unnecessary from the standpoint of criminal justice. Many of the "new" sanctions were already available to prosecutors and judges, although in somewhat different form. For example, it was already possible to impose life imprisonment on anyone convicted of a Class A felony. While this did not apply specifically or solely to drug offenders, it could and had been applied to them. Second, extremely, harsh penalties for drug crimes already existed in the New York State statutes. However, they had little deterrent effect because of problems of detection, enforcement and conviction—the same problems that plague the new law.
While state law-enforcement agencies and NACC were busy decrying the evils of drug use, they were at the same time promulgating the concept that drug abuse is a treatable disease. This mode of attack would give the state additional powers over those possibly not qualifying for long-term incarceration under the criminal codes. Individuals not otherwise eligible for prison could conceivably qualify for civil commitment at one of the state-operated treatment centers. Immediately before the bill was passed, NACC had been eager to supply hints on ways to obtain entry into the treatment facilities. It was, however, silent on procedures leading to release.
In a separate provision, the new bill sought additional funds for increased treatment facilities. This seemed particularly incredible, in light of the acknowledged failures of the past. By the state’s own figures, and in the Governor’s own words, these centers have been spectacularly unsuccessful in fulfilling their promise of rehabilitation. Not only had drug use risen out of proportion to the rate of population increase since the 1966 declaration of "war on drugs," but the recidivism rate of "cured" drug users is phenomenally high.
The, conclusion to be drawn is quite clear: the aim of the Rockefeller drug legislation cannot be to deter drug use or its related crimes. What then was its purpose? It is easy and all too obvious to ascribe to Rockefeller "political motivations" for introducing such legislation. Perhaps it is not so much a question of "Why did he do, it?" as "How was he able to do it?’ To answer that, we must, as Wilhelm Reich suggested, search the heart of Everyman.