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District of New York and the Southern District of Florida, for example)
it is difficult to find the resources to try civil cases; yet, the
street-corner availability of drugs is known to every citizen.
The rights of the individual have been curtailed in the name of the War
on Drugs.  We have seen the elimination of an accused's right to
pretrial release for most charges under the drug laws; heightened
restrictions on post-conviction bail; and invasions into the attorney-
client relationship through criminal forfeiture.
The criteria for securing a search warrant have been relaxed.  In drug
cases, the Supreme Court has permitted the issuance of search warrants
based on anonymous tips and tips from informants known to be corrupt
and unreliable; permitted warrantless searches of fields, barns, and
private property near a residence; and upheld evidence obtained under
defective search warrants if the officers executing the warrant acted
in "good faith." Taken together, these holdings have been characterized
as "the drug exception to the Fourth Amendment."
Police corruption and the unwholesome practice of using confidential
informants (one of whom made over $100,000 in a case before me) have
been noted by Chief McNamara.
Finally, the fundamental flaw, which will ultimately destroy this
prohibition as it did the last one, is that criminal sanctions cannot,
and should not attempt to, prohibit personal conduct which does no harm
to others.  Personal liberty surely must extend to what, when, and how
much a citizen can ingest.
The Framers of our Constitution explicitly acknowledged that the
individual possesses certain rights not enumerated in the text of the
Constitution and not contingent upon the relationship between the
individual and the Federal Government.  When a right has been narrowly
defined as, for example, the right to possess marijuana or cocaine, the
courts have refused to recognize it as one that is fundamental in
nature.  However, when the right to ingest substances is considered in
more general terms as the right to self-determination, that right has a
constitutional foundation as yet undeclared.
To overturn the present policy will not be easy, given the established
bureaucracy, but President Kennedy at the Berlin Wall was correct:
"Change is the law of life." We must recognize that drug use is first
and foremost a health problem, and that, as Professor Nadelmann has
established, mind-altering substances are a part of modern life to be
understood and their effects ameliorated, rather than grounds for
prosecution.
Alcohol and tobacco have a social cost when abused, and society has
properly concluded that abuse of these drugs is a health problem, not a
criminal issue.  Indeed, our experience with the reduction of 50 per
cent in the use of tobacco-the most addicting of drugs, which results
in 400,000 deaths a year-confirms the wisdom of that policy.  To
distinguish between these substances and heroin or cocaine is mere
tautology.
While the medicalization of the issue is going forward, Congress should
accept the recommendations of President Nixon's commission on the drug
laws and of the National Academy of Sciences in 1982 and end the
criminalization of marijuana, which is now widely acknowledged to be
without deleterious effect.  That reform alone would take 450,000
arrests out of the system.
The latest crime bill proposed a study of violence and crime
encompassing drug policy but failed to fund it.  The Surgeon General
proposed such a study and got fired.  Such a study, if fairly
conducted, would compel the abolition of criminal prohibition of drugs
by the Federal Government, permitting all drugs to be treated much the
same as alcohol: restricted by the individual states as to time and
place of sale, barred from minors, subject to truth in advertising, and
made the source of tax revenue.  As with alcohol, those who harm or
pose a threat to others while under the influence of drugs would face
criminal sanctions.
The effect of the underworld drug economy, the debasement of the rule
of law, and the undermining of fundamental fairness and individual
rights under the war on drugs all combine to require that the criminal
prohibition against drug use and distribution be ended.
Thomas Szasz
Dr.  Szasz, of the Department of psychiatry at Syracuse University, has
for many years argued the medical case that proscribed drugs, while
catastrophic in their effect on some people, are, when used by most,
taken without permanent damage.  He has also, in his numerous books,
pleaded the libertarian point, namely that drug-taking is the
individual's business and responsibility.
The war on drugs is a mass movement characterized by the demonizing, as
Chief McNamara suggests of certain objects and persons ("drugs,"
"addicts," "traffickers") as the incarnations of evil.  Hence, it is
foolish to dwell on the drug prohibitionist's failure to attain his
avowed aims.  Since he wages war on evil, his very effort is synonymous
with success.  It is a fatal weakness of prudential critiques of drug
policy that they ignore the "religious" character of the war on drugs.
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