|Let’s Hear it for Prohibition: an Interim Way out of the ‘Drug War’ Mess by Steve Jonas|
May 11, 2015
A feature of the immediate post-Baltimore police riot that resulted in the death of Freddie Gray was a call for the “reform of the criminal justice system.” There were even some Repubs. who chimed in on that one, although one has doubts as to just how long Repub. devotion to the cause will last. After all, for years they have been running on being “tough on crime” and as a major element of that “toughness,” on the “Drug War.”
The latter is of course the feature of our society that fills our prisons with so many black young men for the “drug crimes” of “possession and use.” It happens that that number is way out of proportion to the number of whites, percentage-wise, imprisoned for the same offenses. But supposing that the criminality elements of the “Drug War” were the same as they were for the earlier national prohibition aimed at the use of certain of the “Recreational Mood-Alerting Drugs,” the RMADs. Yes, just suppose.
A review of a 2013 exhibition at the National Constitution Center in Philadelphia, PA on what is formally known in the United States as “Prohibition” began this way:
“It has been a long time since anybody said: ‘You know, the 18th Amendment was a pretty good idea. Too bad it was overturned by the 21st.’ and perhaps only the most prescriptively devout among us is likely to advocate banning the sale of alcohol again in the United States [to which list Mr. Rothstein could have added the highly profitable alcohol industry and their political allies]. . . .
“[It was a] movement [that] altered the Constitution in a radical fashion, extending its reach to matters once considered personal and restricting freedoms rather than expanding them. In effect from 1920 to 1933, Prohibition drastically altered the legal system of every state, and overturned ordinary citizens’ behaviors and expectations. . . .
“We [now] tend to think of Prohibition as some kind of crazed moral paroxysm, reflecting the worst in the American character.”Ethyl alcohol, the intoxicating agent found in alcoholic beverages, is just one of the group of RMADs. (It is one that just happens to cause about 60,000 – 100,000 deaths per year in the U.S., depending upon how one counts, in comparison to virtually zero deaths for, let us say, marijuana. But that is a matter for another time.) Prohibition criminalized the importation, distribution, and sale, but not the use, of the criminalized substances. Another commonly used RMAD is nicotine, a mild central nervous system depressant, found in tobacco products. There are certain restrictions on its sale, by age, and by place of use for all persons. It happens that the manufacture, distribution, and sale but not the use of cigarettes were prohibited, in one form or another, in 15 U.S. states and the Dominion of Canada, between 1903 and 1927. Notice the term “but not the use” just above. That was a common feature of both cigarette and alcoholic beverage illegalization. The prohibition of both aimed at the trade for each.
But when it comes to the current “Drug War,” aimed primarily at marijuana, cocaine, and heroin, and to some extent methamphetamine, commonly known as the “illicits,” the law is rather different. For it not only illegalizes the trade, but also possession and use of the substances. In terms of the criminal justice system, its targets, and the outcomes of that targeting, this is the critical, nay crucial, difference between Prohibition for alcoholic beverages and prohibition for cigarettes and the “Drug War.” The former criminalized commerce in the target substances. Simple drinkers caught in raided speakeasies were simply sent home. They were not sent to jail or, eventually, prison. The latter targets commerce and possession/use of the target substances. It is the latter that has led to such high incarceration rates for “non-violent drug offences,” especially among the non-white population, and particularly in the United States. They do go to jail and prison.
“Alcohol causes… 60,000 – 100,000 deaths per year in the U.S., depending upon how one counts, in comparison to virtually zero deaths for, let us say, marijuana…”Funnily enough, while Prohibition was repealed in 1933, nowhere in Mr. Rothstein’s review of the Philadelphia exhibition was the fact that for certain of the RMADs its contemporary form, the “Drug War,” has been with us in a very forceful way for over 40 years. The “Drug War” was launched by President Nixon in 1969. It had predecessors going back to 1914, when the Harrison Act criminalized the use of opiates by “addicts”. But it was Nixon who made the “war” on the users of opiates and cocaine and marijuana into a national campaign. (It is interesting to note that presently on the street, low-potency heroin is known as “Nixon.” One can take that for what it is worth.) By criminalizing the use of, as well as the commerce in, the so-called “illicits,” this “war” came to be one on certain people who use certain drugs, rather than on the substances they might use (which is why “Drug War” is put in quotes).
Interestingly enough, many of the phrases that Mr. Rothstein applied to Prohibition certainly could be applied to the “Drug War.” Consider that it has: “altered the Constitution in a radical fashion,” and continues to alter it with every illicit drug detection case that reaches the Supreme Court. The “Drug War” has: “extended its reach to matters once considered personal and [has] restrict[ed] freedoms rather than expanding them.” The “Drug War” has: “drastically altered the legal system of every state, and overturned ordinary citizens’ behaviors and expectations. While claiming high virtue and utopian prospects, it [has] inspired spectacular violations and grotesque criminal violence.”
But another major difference between Prohibition and the “Drug War” is that to a major extent over the 13 years of its existence the former worked in reducing the use of the substances at which is what aimed, while over its 45 year life the latter has not (see also “SAMHSA: Substance Abuse and Mental Health Services Administration, Results for the 2011 National Survey on Drug Use and Health: Summary of National Findings, NSDUH Series H-44, HHS Pub. No. (SMA) 12-4713, Rockville, MD, SAMHSA, 2012”).
Why did the former work? Well, it was aimed at both spirits and beer. The latter can be described as “big,” big (back then at least) in the physical area required for the breweries and (relatively) big in the amount of the substance needed to get reasonably high. During Prohibition, beer consumption fell to almost nil (and in fact it took the beer industry almost 40 years of advertising to get per capita consumption back to where it had been in 1919. Any guesses as to why the industry currently spends so much money advertising the stuff?) Spirits on the other hand are relatively “small.” And so between bootlegging and domestic production of various kinds, per capita spirits consumption did not fall much.
But what then is the simple lesson that could be learned from Prohibition that could be applied to the “Drug War” that would lead to a very rapid change in the U.S. criminal justice system? Why just change the current law to apply only to the various aspects of the trade in the named substance and remove “possession and use” from the list of crimes as defined under it. In the next column (next week, I hope) we shall consider how such a change might be accomplished, who would be for it, who would be against it, what implications it would have for the nation, not only for the criminal justice system but for a range of social and economic issues that we face today, and how The Political Duopoly has dealt and might deal with it.
November 18, 2016
THE FIRST shock has passed. President-Elect Donald Trump. I am gradually getting used to the sound of these words.