This article is reprinted with permission from the November/December 2000 edition of Prison Policy News, Epimethian Press, P.O. Box 2143, Colorado Springs, CO 80901, 719.475.8059, email@example.com.
It is hard to imagine a resident of the United States who has not heard of the "War on Drugs." Recognized widely (but not unanimously) as a failure, the drug war depends on incarcerating staggering numbers of people in an attempt to curb illegal drug use. The current reliance on incarceration is fraught with problems-high costs, lack of treatment resources, and the impact on communities, to name a few.
One notable result of the growing prison population is a change in the nature of prison overcrowding. While prison overcrowding used to take the form of too many inmates in outdated facilities, the current trend centers around systems that are too big to support. What was recently an overcrowding problem (with state prisons at 115% of capacity in 1995) has become a building problem (as in "building too much").
Statistics from the most recent year available (1999) show that for the first time in years a majority of state prison systems are operating at or below capacity. On a national basis prisons exceed capacity by only 1%. Despite less crowded prisons the U.S. now incarcerates over two million people (US BJS "Prisoners"). Some activists regard the study of drug war history to be a largely academic activity, with no application to building an opposition movement. I object to this belief, since the U.S. attitude towards drug control was born out of a popular movement and has been continuosly shaped by such movements. In order to thoroughly understand the nature of the drug war and formulate ideas on how to challenge it, a brief history is quite useful.
Use of drugs such as opium, morphine, and their derivatives were quite commonplace in nineteenth century America. While most students of contemporary high school drug education programs know about the use of coca leaves in early Coca-Cola and the opium trade with China, the matter of drug addiction at the turn of the century is much more extensive than usually acknowledged. It is estimated that by 1900 there were somewhere in the neighborhood of 250,000 regular users of addictive drugs in the U.S.
While this number may seem large (taking into consideration the smaller population of the country in 1900 as compared to today) it is actually surprisingly small considering that such drugs were available over the counter. Cocaine, morphine, laudanum, and heroin were all available in drug stores and through the mail. Until the Pure Food and Drug Act of 1906, products containing such ingredients did not even need to list them on the label (Musto 1-5).
Taking into account the disproportionate impact of the contemporary Drug War on racial minorities in the U.S., it is particularly noteworthy that the origins of drug control were rooted in overt racism. Anti-drug crusaders of the early twentieth century spoke not only of the general "moral" destruction caused by drugs, but also capitalized on Southern fear of African-Americans and Western fears of Chinese immigrants. Crusader Dr. Hamilton Wright urged Congress to pass harsh drug laws, stating that "it has been authoritatively stated that cocaine is often the direct incentive to the crime of rape by the Negroes of the South and other sections of the country;" still other rhetoric warned that the effects of drugs "make Negro cocaine users 'oblivious of their prescribed bounds' and...lead them to 'attack white society'" (Bertram, et al. 64-66).
In 1902 the American Federation of Labor mounted a campaign which stated that "Chinese opium smokers had spread the 'deathly habit' to 'hundreds, aye thousands, of our American boys and girls'" (Bertram, et al. 64). By the early 1900s many people were concerned by the growing use of drugs in the U.S. and the medical community quickly rose to defend the proper use of drugs against the zeal of prohibitionists. Thus the battle lines were drawn between the medical community (advocating a treatment-based approach) and reformers (advocating a punitive-based prohibition).
The first major legislation to forge a compromise between doctors and reformers was the District of Columbia Pharmacy Act of 1906. Since federal control of the drug trade had not been clearly established, Congress passed a law which applied only to the Congressionally-controlled seat of the national government. The Act established procedures for prescriptions and registered pharmacists. While this legislation had limited scope it was held up as a model for narcotic drug reform (Musto 21-22).
By December of 1914 concern over drug use was substantial enough that a stronger (yet still relatively mild) attempt to curb drug addiction surfaced and was passed by Congress in the form of the Harrison Narcotics Act of 1914. There was certainly domestic concern and outrage on the part of the general public, and many politicians supported these sentiments; however, the factor which finally made passage of a narcotics bill possible actually originated on the international stage. The U.S. realized the multinational nature of the drug trade early on and -- despite isolationist tendencies in the U.S. government -- signed on to several international conventions agreeing to fight the drug trade (Boggress).
Now that the U.S. was party to these conventions, the country needed to comply with the spirit of them and, as a result, the Department of State proposed the Harrison bill. It should be noted that the Harrison Act looked quite different from today's Drug War. The aim was to control dispersal of drugs, not criminalize users. The specter of a federal drug police force made many politicians uneasy. The most significant opposition to the bill in congress came from southern Democrats who feared that federal control of narcotics would lead to state police powers being assumed by the federal government.
As a result the Harrison Act made the issue into one of taxation. The Act simply required that producers and distributors of drugs register with the Treasury Department, keep records of their transactions, and pay taxes on the drugs. In order to obtain narcotics, the Act required citizens to obtain "a prescription from a physician who 'prescribed [it] in good faith' and did so 'in the pursuit of his professional practice only'" (Bertram, et al. 67-68). It is noteworthy, however, that a scant four years after passage of the Act, the U.S. government itself argued before the Supreme Court that "Congress gave [the Harrison Act] the appearance of a taxing measure in order to give it a coating of constitutionality, but that it really was a police measure" (U.S. v. Jin Fuey Moy at 401).
The original intent of the legislation was to target irresponsible producers and vendors, not to criminalize drug users. How, then, did the tide shift? Partly it was thanks to societal changes, but the Supreme Court paved the way in the second decade of the twentieth century. Immediately after the act took effect, the Treasury Department waged a campaign to expand their powers (Bertram, et al. 69-71) and courts initially reacted skeptically.
In the 1915 case United States v. Jin Fuey Moy, the Supreme Court halted the Treasury Department's attempt to criminalize citizens in possession of illicit drugs by a vote of seven to two. Just three years later (with two new members of the court) the justices heard the case Webb v. United States, which centered around the definition of "prescription." As mentioned before, the Harrison Act allowed anyone to obtain narcotics with a prescription written "in good faith." Following passage of the law, it was common practice for doctors to prescribe morphine for addicts -- some did so to gradually wean patients off of drugs, others to maintain addictions without forcing addicts to turn to the black market. The Treasury Department decided to fight this practice.
In Webb, the Court decided (by a five to four vote) that prescriptions not written "in the course of professional treatment in the attempted cure of the [drug] habit" (emphasis added) were, in fact, not prescriptions, and doctors dispensing such prescriptions could be arrested and sent to prison (Webb v. U.S. at 99).
The final case in the series of opinions which turned the Drug War towards a punitive model came in 1922 when the Supreme Court decided (in United States v. Behrman) that any prescription issued to an addict whose only ailment was addiction itself, was illegal (Bertram, et al. 74-75). Thus the stage was finally set for the punishment-based drug policy which is the law of the land today.
The Modern Drug War
The creation the War on Drugs as we know it today came during the Nixon Administration. President Richard Nixon sensed that an increased effort to end drug use would play well to his conservative supporters. In addition to new programs and funding, Nixon helped to reinforce the concept of drugs equaling crime, thus necessitating a punitive approach to all drug use and distribution (Bertram, et al. 105-06).
Presidents Ford and Carter continued the Drug War, but on a much lower profile. It was during the Reagan Administration that the Drug War went into full tilt. But Reagan was not the only player who instigated the extreme measures that we live with today.
June 1986 was the fateful month that University of Maryland basketball player Len Bias was drafted by the Boston Celtics. The day after the draft Bias died from the side effects of cocaine -- his first time using the drug. This story rose to sensational proportions in the media and the entire country had drugs on their minds when Congress went home for their Fourth of July recess. After Congress was back in session, the Speaker of the House, Tip O'Neill, called a meeting of House Democrats and announced that they needed to have a drug law reform bill ready in one month, before Congress adjourned for August recess ("Status of America's War on Drugs").
Part of the reason O'Neill was so interested in this plan was that anti-drug rhetoric had worked very well for the Republicans in 1984, when they had won control of the Senate ("Sentencing"). The Legal Assistant to the House Judiciary Committee at the time, Eric Sterling, has remarked that the idea of drafting such major legislation (usually an 18 month process) in four weeks "was a horrifying prospect. We knew that mistakes were going to be made..." ("Status of America's War on Drugs").
One of the casualties of the rushed time-table was that there were no hearings. By the time mandatory minimums were inserted, there was no time to consult the DEA, Bureau of Prisons, the federal judiciary, or the Department of Justice. Once the mandatory minimums were inserted --giving a set sentence for a given amount of drugs -- Senate Republicans decided that they would be "tougher" on the issue. Thus, they simultaneously increased sentence lengths and decreased the corresponding amounts in the mandatory minimum formulas. While all this hurried posturing was going on, there was no discussion of the fact that Congress had already imposed mandatory minimums in the 1950s, but later repealed them because they had no effect on drug use ("Sentencing").
In a unique insight into the Congressional mindset, former Representative Dan Rostenkowski gave an interview in 1999 to talk about an encounter he had in prison. Rostenkowski was convicted of mail fraud and served time in the federal prison system after leaving the House. One day he met a young man who had received a seventeen year sentence for a first time offense for minor involvement in drug trafficking. Rostenkowski was shocked at the severity of the sentence, and then realized that he had voted for the bill which revised the sentencing guidelines. In a speech after his release from prison he admitted that when he had cast his vote he was "swept along by the rhetoric about getting tough on crime." After his revelation in prison, however, Rostenkowski now views the new drug sentencing laws as "a sham" ("Sentencing").
It is important to note that most members of Congress rely on the word of the committees which examine legislation. Because of the political forces in play in 1986, the House Judiciary Committee hurriedly endorsed Tip O'Neill's plan and paved the way for our current prison population of more than two-million.
Bertram, Eva et al. Drug War Politics: The Price of Denial. Berkeley:
U of California P, 1996.
Bogress, Brian. "Exporting United States drug law: An example of the
international legal ramifications of the "War on Drugs." Bringham Young U of Law Review (1992) 165-191.
Musto, David. The American Disease: Origins of Narcotic Control.
New Haven: Yale UP, 1973.
"Sentencing." This American Life. WBEZ/Public Radio International:
October 22, 1999.
"Status of America's War on Drugs and the Effects on People on Both
Sides of the Drug War." All Things Considered. Deborah Amos. National Public Radio. October 9, 2000.
United States. Department of Justice. Bureau of Justice Statistics
"Prisoners in 1999." By Allen Beck. Washington, DC: GPO, 2000.
United States v. Jin Fuey Moy. 241 U.S. 394. U.S. Supr. Ct. 1915. Webb v. United States. 249 U.S. 96. U.S. Supr. Ct. 1918.