textfiles/drugs/MARYJANE/hemp_ami.txt

 1:13 pm  Oct  8, 1990
 
 The following letter was written by Associate Professor of Law Jeffrey M.
 Blum of the University of Buffalo School of Law, in response to a request
 from a federal court judge, and is a good summary of many of the things
 that are wrong with the "war on drugs."
 
                                             May 21, 1990
 The Hon. John L. Elfvin
 United States District Court
 Western District of New York
 Buffalo, New York  14202
 
                Re:  United States v. Anderson, CR-89-210E
 
 Dear Judge Elfvin:
 
 I have received a request from your Chambers for a submission in the nature
 of an amicus curiae brief addressed to the question:
 
 "whether today's climate of allegedly rampant importation of contraband
 drugs ...justifies a `relaxation' of the Constitutional rules which would
 otherwise control."
 
 I am told that argument on this question is scheduled for June 4, 1990.
 Unfortunately my publishing deadlines and commitments at this time of year
 preclude me from preparing a full brief. However, because I appreciate the
 request and believe it is critically important for members of the judiciary
 to be well informed on this issue, I wish to offer three things in response:
 first, the instant letter brief which will simply list proposed findings of
 fact that bear centrally on the issue, second, the enclosed packet of
 readings that documents some of the proposed findings and assesses the drug
 war from a variety of perspectives, and third, my personal expression of
 willingness to speak free of charge regarding any or all of the proposed
 findings to any gathering containing influential members of the Western
 New York legal community.
 
 The proposed findings are based upon information I have gathered from a
 variety of what I believe to be reputable sources. In most cases more than
 one source is involved. The proposed findings are offered in support of
 the following answer to Your Honor's question:
 
 No, today's climate of allegedly rampant importation of contraband drugs
 ...does not justify a `relaxation' of the Constitutional rules which would
 otherwise control. Rather, it necessitates a strengthening of
 constitutional norms to safeguard reasonable exercises of personal liberty
 from arbitrary and unwarranted invasion, and to prevent uncontrolled cycles
 of hysteria from severely impairing our constitutional form of government.
 
 Professorial Amicus' Proposed Findings of Fact
 
 1. For several years now the United States government's "war on drugs" has
    been inspiring a series of decisions substantially cutting back on
    established constitutional rights, particularly in the areas of the
    fourth, fifth and sixth amendments to the U.S. Constitution. See-
    Wisotsky, Crackdown: The Emerging Drug Exception to the Bill of Rights,
    38 HASTINGS L. J. 889 (1987).
 
 2. The drug war has been directed against a variety of very different
    illicit substances, some highly addictive and posing a significant
    public health problem, and others not. Over three- fourths of the
    illicit drug use in the United States involves smoking or ingestion
    of marijuana. For each of the last ten years marijuana has accounted
    for a majority of drug-related arrests, seizures, property forfeitures,
    and expenditure of law enforcement funds. Because of marijuana's easy
    detectability, laws against it have generated an average of close to
    500,000 arrests annually in the United States. See- annual household
    surveys of the National Institute of Drug Abuse, and annual reports of
    the U.S. Department of Justice.
 
 3. There is not now, nor has there ever been, credible medical evidence to
    justify this level of law enforcement effort against marijuana. Rather,
    several presidential panels of experts and a number of other
    comprehensive reputable studies have consistently and unequivocally
    shown marijuana to be far less addictive, less toxic, less hazardous to
    health, less disruptive of family relationships, less impairing of
    workplace productivity and less likely to trigger release of inhibitions
    against violent behavior than alcohol. See- Hollister, Health Aspects of
    Cannabis, 38 PHARMACOLOGICAL REVIEWS 1 (1986) (included in enclosed
    packet).
 
 4.  Marijuana was first made illegal in the United States in the early
     twentieth century largely for two reasons, neither of which was
     health-related. The first publicly known large user group of marijuana
     was Mexican-Americans. Marijuana laws began being passed in
     Southwestern states as part of a self-conscious harassment campaign
     designed to drive Mexican-Americans out of the United States and "back"
     to Mexico. This harassment campaign intensified during the 1930's when
     the depression was making jobs scarce and causing Anglo-Americans to
     covet the jobs held by Chicanos. For proposed findings 4 through 7,
     infra, see- Riggenbach, Marijuana: Freedom is the Issue, 1980
     LIBERTARIAN REVIEW 18 (included in enclosed packet).
 
 5.  The second important reason for marijuana prohibition was the covert
     protectionist activities of paper and synthetic fiber industries in
     the 1930's. These interests, of which the Du Pont Corporation was the
     most important representative, wanted to eliminate possible competition
     from the hemp plant (marijuana is comprised of the buds or flowers of
     the hemp plant), which had recently become a serious "threat" as a
     result of the invention of the hemp decorticator machine. With such a
     machine in existence, competition could have become severe because
     hemp, in contrast to trees, is an annual plant with no clearcutting
     problem. Hemp also is believed to produce 4.1 times as much paper pulp
     as trees, acre for acre.
 
 6.  Several trends in government converged to make hemp/marijuana
     prohibition possible. The New Deal Court had recently swept away
     earlier established doctrines of economic due process which had
     limited covert protectionist uses of government agencies. Andrew
     Mellon, the chief financier of the Du Ponts, had become Secretary of
     the Treasury and appointed his nephew, Harry Anslinger, to head the
     newly created Federal Bureau of Narcotics. Anslinger proceeded to
     misclassify marijuana, which is a mild stimulant and euphoriant, as
     a narcotic, and to make its prohibition his agency's top priority. In
     addition, the recent lifting of alcohol prohibition had confronted a
     number of federal agents with the risk of unemployment if new forms
     of prohibition could not be instituted. All these factors contributed
     to passage of the Marijuana Tax Act, the initial federal prohibitory
     legislation, in 1937.
 
 7. Throughout the 1930's a lurid "reefer madness" propaganda campaign was
    carried on throughout the nation, largely through the Hearst newspaper
    chain. The Hearst chain, whose vertical integration had caused them to
    buy substantial amounts of timber land, had been accustomed to using
    lurid propaganda campaigns to sell newspapers since the Spanish-American
    War in 1898. The "reefer madness" campaign was based partly on the
    knowledge that Pancho Villa's army had smoked marijuana during the
    Mexican Revolution. It portrayed marijuana as a powerful drug capable of
    causing Anglo teenagers to turn instantly into hot blooded, irrational,
    violent people, much akin to the "Frito bandito" stereotype of Mexican-
    Americans.
 
 8.  The "reefer madness" campaign rested on a large number of anecdotal
     stories of violent incidents, almost all of which have turned out to
     have been fictitious and traceable to a single doctor who had worked
     closely with Harry Anslinger. One indication of the stories' falsity
     is that during the Second World War and Korean War Anslinger himself
     shifted from calling marijuana a violence-inducing drug to calling it
     a menace that had the capacity to turn large numbers of young people
     into pacifists. For proposed findings 8 through 11, infra, see Herer,
     THE EMPEROR WEARS NO CLOTHES (Los Angeles: HEMP Publishing, 5632 Van
     Nuys Blvd., Van Nuys, Calif. 91401).
 
 9.  Since marijuana began becoming popular among the white middle class in
     the mid-1960's a number of specious medical studies alleging great
     harm from marijuana have been widely publicized. The most important
     of these, and the source of the widespread myth that marijuana damages
     brain cells, involved force feeding rhesus monkeys marijuana smoke
     through gas masks. The monkeys consumed in a matter of minutes amounts
     of smoke far greater than what human beings would be likely to consume
     in a month. The monkeys suffered substantial brain damage that appears
     to have been caused by carbon monoxide poisoning from smoke inhalation.
 
10. Covert economic protectionism appears to have played a continuing
     important role in sustaining marijuana prohibition during the last
     decade. Pharmaceutical companies, possibly alarmed at the increasingly
     widespread use of marijuana as a versatile home remedy, provided most
     of the funding in the late 1970's and early 1980's for a network of
     "parents' groups against marijuana." By far the largest sponsor of the
     Partnership for Drug-free America, which blankets the airwaves with
     anti- marijuana commercials, has been the Philip Morris Company.
     Philip Morris owns several brands of tobacco cigarettes and is the
     parent company of Miller Beer, and possibly some other brands of beer
     as well.
 
11. Partnership commercials, while exaggerated but to some degree truthful
     about cocaine, have been uniformly uninformative about marijuana. They
     have ranged from merely casting negative stereotypes of marijuana users
     as lazy and shiftless to being instances of outright (and possibly
     legally actionable) fraud. One widely aired commercial compares the
     brainwaves of "a normal teenager" and "a teenager under the influence
     of marijuana." The latter was later admitted by Partnership officials
     to have been the brain waves of a person in a deep coma.
 
12. Largely as a result of such government and corporate- sponsored
     propaganda campaigns a majority of people have come to support an
     across-the-board crackdown on illicit drug use and sales. Due to this
     political climate a number of harsh statutes have been passed during
     the last five years and these, combined with various "relaxations" of
     constitutional restrictions on law enforcement activities, have
     resulted in large numbers of young people receiving ten, fifteen and
     twenty-year mandatory-minimum sentences for transport and sale of
     marijuana. Thousands of people have forfeited ownership of their
     farms, homes, shops and vehicles for growing, and in some instances
     merely possessing, marijuana. See generally- the Omnibus Anti-drug and
     Anti-crime Acts of 1984, 1986 and 1988.
 
13. Because of this wholly unjustified crackdown on marijuana, people around
    the country have come to view the term "Your Honor" as connoting a
    person of ill will, mean spirit and low principle. "The Government" has
    come to connote an organization that is both very inefficient in its
    processing of information and very casual in its willingness to
    disseminate falsehoods with abandon.
 
14. The attempt to portray marijuana use as an emergency that requires a
    serious crackdown on users strikes most of the nation's thirty million
    pot smokers as utterly ludicrous. Marijuana is not known to have caused
    even a single death. Yet there are longitudinal studies showing that
    people who have smoked marijuana frequently for decades appear normal,
    healthy and have life expectancies as great or slightly greater than
    those of nonsmokers. See- Hollister, supra; Herer, supra.
 
16. The total number of deaths annually attributable to overdose or
    poisoning from all illicit drugs combined is between 3,800 and 5,200,
    or approximately one percent of the number who die annually from
    alcohol or tobacco-induced illnesses. Of the overdose deaths it is
    believed that about 80% of these would be avoided if the illicit
    substances, instead of being obtained on the black market where they
    are frequently contaminated or of unknown purity, were dispensed
    lawfully in some sort of controlled maintenance program. See- Ostrowski,
    Thinking About Drug Legalization (Cato Institute 1989) at 14-15.
 
17. By far the largest number of deaths associated with illicit drug use
    will be coming from the AIDS plague. It is estimated that there are now
    about 100,000 intravenous drug users in New York City who have become
    infected and would test HIV positive as a result of blood contamination
    caused by use of shared needles or works. See- Lazare, How the Drug War
    Created Crack, VILLAGE VOICE, January 23 (1990) (included in enclosed
    packet).
 
18. In countries such as Holland where greater tolerance is accorded to
    intravenous drug users, such users obtain clean needles and about
    three-fourths of them receive medical care and counseling. As a result,
    the I.V. drug use contribution to AIDS in the Netherlands has been
    small, constituting only 8% of the country's 605 AIDS patients. In the
    United States the comparable figures are 26% of a much larger number of
    AIDS patients. Engelsman, The Dutch Model, NEW PERSPECTIVES QUARTERLY
    (Summer 1989) at 44-45.
 
19. It is estimated that the 100,000 HIV-positive intravenous drugs users in
    New York have infected 25,000 sexual partners and caused 4,000 infants
    to be born infected with the AIDS virus. It is also expected that blood
    contamination through use of intravenous drugs will be providing a major
    pathway for AIDS to spread into the American heterosexual population.
    For judges, politicians and retirees past the age of rampant sexual
    activity, this public health problem may appear remote and is
    susceptible to being ignored in the interests of continuing a morally
    satisfying crusade. However, to Americans now under the age of 30 this
    is a tragedy of enormous proportions. See Lazare, supra.
 
20. A common reason given for stepped-up anti-drug enforcement is the
    violence associated with illicit drug use. However, neither marijuana
    nor psychedelic drugs nor heroin or other opiates induces violent
    behavior. To the extent such were legally available and used in place
    of alcohol, which is violence-inducing and associated with 65% of all
    murders, the effect would be to make the society less violent overall.
 
21. Like alcohol crack and other forms of cocaine will sometimes encourage
    violent behavior.  However, the vast majority of drug- related violence
    comes not from the effects of the drugs, but from their illegality and
    the resulting lack of access to peaceful means of dispute resolution.
    A study of drug-related homicides in New York recently found 87% of
    those involving cocaine to stem from territorial disputes and debt
    collection or deals gone awry. Only 7.5% were related to the behavioral
    effects of drugs, and of these, two-thirds involved alcohol rather than
    cocaine. Summarized in Glasser, Talking Liberties: Taboo No More?, CIVIL
    LIBERTIES (Fall/Winter 1989) at 22.
 
22.  Attempts to create a drug-free America through stepped-up
      campaigns of border interdiction and crop eradication have had no
      substantial success. Various authorities agree that only about ten
      percent of the cocaine coming into the United States is being
      successfully interdicted and this has made no difference in the drug's
      availability because producing countries generate vastly more than
      enough cocaine to satisfy the U.S. market. Similarly, the massive
      Campaign Against Marijuana Planting (CAMP) has given marijuana growers
      a useful pretext for raising prices and has encouraged a more
      oligopolistic market structure, but the total amount of marijuana
      being grown has increased rather than decreased. In effect, law
      enforcement winds up producing a kind of artificial price support
      system for the growers and manufacturers of illegal drugs. See-
      Thompson, "California's Unwinnable War Against Marijuana," Wall
      Street Journal, January 8, 1990. Given the loss of tax revenues and
      the large crime problem generated by prohibition of drugs, the only
      possible benefit of such a system would be its progressive
      redistribution of wealth from wealthier users to poorer growers and
      sellers.
 
23. The most significant effects of "zero tolerance" and stepped up
    enforcement campaigns have been to encourage distributors to switch
    from delivering bulkier and more detectable drugs, such as marijuana,
    to more concentrated--and also more dangerous--ones such as cocaine
    and its derivative, crack. As a result, during the 1980's the price
    differential between cocaine and marijuana by weight dropped from about
    70:1 to about 3:1, and crack use became widespread among the inner
    city poor. This parallelled the phenomenon during alcohol prohibition
    where gin became more plentiful and cheaper than beer. See- Lazare,
    supra; Cowan, A War Against Ourselves, NATIONAL REVIEW (December 5,
    1986) (included in enclosed packet). Unless one takes the position
    that illicit drug use generally poses no significant harm, one must
    confront the fact that encouraging users to switch from marijuana to
    the vastly more addictive crack has posed a serious detriment to the
    public health. By contrast, the open legalization of marijuana in
    Holland caused no significant increase in rates of pot smoking, but
    rather a sharp drop in heroin use among the young because they no
    longer had to obtain marijuana from the same distributors who sold
    heroin. Engelsman, supra.
 
24. Notwithstanding its general ineffectiveness in curbing illicit drug
    use, the war on drugs may be posing a significant civil liberties
    threat to the American people generally. The nature of the threat
    differs according to class position. For the urban underclass and
    particularly its members under the age of thirty, this threat takes
    the form of a greatly elevated likelihood of imprisonment. Largely
    because of recurring drug wars, rates of imprisonment in the U.S. are
    projected to have risen more than four-fold between 1970 and 1994.
    See- National Council on Crime and Delinquency, The 1989 NCCD Prison
    Population Forecast: The Impact of the War on Drugs (December 1989)
    (included in enclosed packet). Given the projected expansions of prison
    population, the heavily (and increasingly) nonwhite composition of
    persons imprisoned on drug charges, the plans to require all prison
    inmates to work and for their products to be made more readily
    available for profitable sale in the private sector, see- enclosed
    Gramm-Gingrich National Drug and Crime Emergency Act, it is possible
    that we may be moving toward a partial reimplementation of the
    institution of Negro slavery under the aegis of the criminal justice
    system. It is already the case that the United States ranks either
    first or second (behind the Republic of South Africa) in the world in
    per capita imprisonment, and that there are more black males in prison
    than in college, graduate and professional school combined.
 
25. For the white middle class, and particularly those segments of it in
    and around universities, the civil liberties threat takes a different
    and more subtle form. In this regard the seemingly arbitrary inclusion
    of marijuana among the list of targeted substances is crucial. During
    the 1970's marijuana gained widespread acceptance, particularly in and
    around university campuses, and was even proposed for nationwide
    decriminalization by President Carter. Because of its superiority over
    alcohol as a facilitator of creativity and intellectually engaged
    lifestyle, marijuana has come to be used with some regularity by a
    substantial proportion of writers, artists, musicians, teachers and
    others who might be thought of as avant-garde elements of society. A
    nationwide estimate of about one-third of university students and
    faculty under the age of 45 using marijuana would not be unreasonable.
    Included among this population of pot smokers is a high proportion of
    persons inclined to favor political change and hence likely to be
    viewed by the government as dissident elements during times of
    heightened political discord. Recent passage of laws, such as the
    1988 Anti-drug Abuse Amendments Act, which establish harsh penalties
    for possession of any amount of any drug anytime during the preceding
    five years--e.g., $10,000 fines, cutoff of all governmental benefits,
    commitment to "treatment" facilities-- creates a mechanism by which
    Soviet-style, KGB-type surveilence and selective repression of
    dissenters could be implemented in a way that circumvented established
    first amendment protection. The likelihood of this occurring at some
    future time is enhanced by provisions of the 1988 Act which divert
    monies in the Department of Justice Assets Forfeiture Fund from general
    federal revenues into a special account for "program-related expenses."
    The primary uses of money in this fund appear to include purchase of
    computerized equipment for record-keeping on the general population
    (the D.E.A. had been keeping files on 1.5 million people as early as
    1984) and purchase of evidence and payment to informants. As of the
    end of 1989 the amount of money and property in this fund was valued
    at approximately one billion dollars. See- Belkin, "Booty from Drug
    Cases Enriches Police Coffers," New York Times, January 7, 1990 at A
    19. It is reasonable to expect that such a system, once in place, could
    be used selectively to intimidate and quell political dissent, thereby
    impairing the society's capacity to adapt intelligently to a rapidly
    changing world.
 
26. Urine testing, which is now employed in some form by a majority of
    Fortune 500 companies, as well as by the military and significant
    sectors of the government, poses a civil liberties threat of a
    different type. Because marijuana is the most easily detectible
    substance for the tests, showing up as "positive" for up to four to
    six weeks after use, it accounts for 90% of the positive results on
    urine ("EMIT") tests. See- "Test Negative," SCIENTIFIC AMERICAN,
    March 1990 at 18. (included in enclosed packet). As a result, and due
    in no small measure to various "relaxations" of fourth amendment rights
    against unreasonable search and seizure, employers are now placed in
    the position of acting as an enforcement arm of federal government,
    particularly in relation to some of the government's most arbitrary
    and socially destructive laws. The situation where government and
    major employers unite to exert plenary control over how citizens
    behave in their off-duty leisure hours is one of the hallmarks of a
    totalitarian society. See generally- Hoffman & Silvers, STEAL THIS
    URINE TEST (1987).
 
27. During the last few months a number of my students have informed me
    that their elementary school children have been instructed in the
    Buffalo public schools to turn their parents in to the police if they
    detect marijuana smoke or other evidence of illicit drugs. When I was
    in elementary school we were taught that such practices occurred only
    in totalitarian societies, and that in order to ensure that they would
    not occur here we should be prepared to fight a war against the Soviet
    Union.  It would be sadly ironic if, in the wake of their country's
    "victory" in the Cold War Americans came to suffer some of the negative
    consequences associated with life under totalitarian regimes.
 
28. None of the serious threats to civil liberties mentioned in proposed
    findings 24 through 27, supra, is in any sense necessary. They stem
    simply from misguided policies. A major improvement in our current
    situation could be achieved simply by returning to enforcement
    strategies as they were practiced prior to 1980. Light handed
    enforcement directed solely against street dealing of the more
    dangerous and addictive drugs (e.g., refined, concentrated forms of
    cocaine and heroin) does about as much to limit dissemination of
    these through the population as does the current drug war strategy,
    and it does so at a small fraction of the social and economic costs.
    See generally,- Wisotsky et. al., The War on Drugs: In Search of a
    Breakthrough, 11 NOVA L. REV. 878 (1987).
 
29. Further improvement could be achieved by legalizing or securely
    decriminalizing marijuana, thereby allowing law enforcement efforts to
    be concentrated on the genuinely addictive drugs and tax revenues to be
    raised which could fund treatment and maintenance centers for persons
    addicted to such drugs. Serious efforts should be made to investigate
    current claims that widespread cultivation of hemp for non-drug uses
    would produce enormous ecological benefits by providing alternative
    sources of paper, fabric and fuel. If these claims are borne out, then
    government price-supports and subsidies for tobacco should be
    transferred to the cultivation of hemp, particularly for its non-drug
    uses. Curiously, widespread cultivation of hemp over substantial regions
    of the United States was being advocated by Presidents Washington and
    Jefferson shortly after the birth of the Republic. See- Herer, supra.
 
30. While there are good reasons for society to be very cautious about
     allowing open, free market legalization of heroin and cocaine, see-
     Wilson, Against the Legalization of Drugs, COMMENTARY (February 1990)
     at 21 (contained in enclosed packet), a government-controlled system
     of maintenance and treatment for certified drug-dependent people would
     be far preferable to the current system of black market distribution
     which generates widespread crime, escalating rates of incarceration
     and a substantial hidden subsidy for organized crime. Whatever
     disincentives were needed to keep large numbers of people from
     choosing to become addicts (e.g., making addicts wait in line for
     two hours to get their doses) could be built into the system of
     distribution. Such a system worked quite well in Great Britain until
     the issue became too politicized for it to continue. See Trebach, supra.
 
31. Psychedelic drugs pose greater hazards than marijuana, but less than
 those of addictive drugs like heroin and cocaine. While some psychedelics,
 such as PCP, may be inherently dangerous and thus appropriately prohibited
 altogether, most can be taken safely by most people. The problems posed by
 LSD, for example, in some ways resemble those presented by scuba diving.
 Each is seen as a form of exploration that opens new vistas. Hence
 participants often find the activity enormously stimulating and inspiring.
 Each activity poses a small but significant risk of serious personal harm,
 these being death for one and aggravation of pre-existing states of mental
 instability for the other. Untrained, unsupervised use of unchecked
 substances or equipment are ill-advised in both cases. Conversely, though,
 a government- orchestrated campaign of persecution for either group of
 explorers is likely to be viewed as barbaric by knowledgeable persons. In
 each case a premium should be put on devising social policies that minimize
 the hazards of the activities in question. ....
 
 Thank you, Judge Elfvin, for the opportunity to place these proposed
 findings of fact before the Court. I believe Your Honor can discern the
 relationship between the information they present and the answer proposed
 in response to the Court's question. If I may be of any further assistance,
 please do not hesitate to call my secretary at (716) 636-2103. I do,
 however, expect to be out of town during the period of May 21, 1990 to
 June 10, 1990.
 
 Sincerely,
 Jeffrey M. Blum
 Associate Professor of Law
 University of Buffalo Law School
 
 cc: The Honorable John T. Curtin
    The Honorable Richard J. Arcara
    The Honorable Robert L. Carter
    The Honorable John J. Callahan
    The Honorable M. Dolores Denman
    The Honorable John H. Doerr
    The Honorable Samuel L. Green
    Susan Barbour, Esq.
 
 (end)