Replacing the law of the jungle with the rule of law

Mr. Pannella, Ms. Bonino, Mr. Turco, Mr. Davies, Mr. Perduca, Mr. Cappato, and distinguished guests:

I am delighted beyond words to be here with you today and to open this historic conference, which is the beginning of a new, bold international campaign to revise or repeal the major international treaties that mandate drug prohibition. That campaign is bound to succeed in its mission of creating an international legal framework for the full legalization of drugs.

In my bones I know the time is right to make this effort to strike boldly at the head and brains of the drug prohibition monster rather than at its hands or toes. I know that the faint of heart will view this campaign as quixotic, like tilting at windmills. However, I would gladly accept for us the mantle of the Man of La Mancha who dreamed impossible dreams and who in the end won. His spirit motivates the decent people of the whole civilized world, as evidenced by the statue of him and his faithful Pancho I happened upon yesterday in the middle of Brussels. I now believe in signs from the heavens and that definitely was one. I can assure you that the gods are with us.

The international treaties are the head and the brains of prohibition. They direct the defeat of any serious attempt to enact effective reforms of drug laws at the national and local level. In light of the determination of some far-sighted leaders around the world to change their national drug laws, the treaties are an endangered species.

Great honor should be bestowed on the Transnational Radical Party for leading this effort and for breathing new life into the International Antiprohibitionist League, which will do the major share of the heavy lifting and hard work in this noble campaign. Among many others, the Marcos – Pannella, Perduca, and Cappato – obviously deserve the profound thanks of everyone involved. Moreover, much praise should be heaped on our wonderful colleague, David Borden of DRCnet, who has brought quiet and persistent dedication to our campaign.

Each of us approaches this campaign based upon his or her own experience. I approach it initially as a scholar of history. As a result, I have gone back and read the original treaties and conventions – and the explanations given at the time for their enactment. Of course, I have done the same thing over several decades in my work on national laws. In all cases, I came to similar conclusions.

There was no adequate reason for the original prohibition laws. That is the core of my position.

I say that with great confidence and not a little embarrassment. The reasons for both the confidence and the embarrassment are intertwined. In my research I have tried to trace the forces and ideas that led to the extraordinary step of applying the criminal law to chemicals and plants that millions, even billions, of people eagerly and voluntarily want to sell, buy, and consume. The dominant forces and ideas came from Americans, and my countrymen led the campaigns that produced the international treaties that created the worldwide system of drug prohibition. In my work looking into the rationale for this extraordinary action, I looked almost exclusively at American sources because that is where most of the evidence was to be found. There is no doubt in my mind, based upon all that research over many years, that the zealous American anti-drug crusaders sold the world a hysterical bill of goods, a destructive fraud that has hurt millions and helped very few.

I am also embarrassed that some twenty years ago I stated in print that had I been alive at the time the Harrison Act was enacted (I deny the rumors that I was) I would have supported it as a wise piece of legislation. My support was based upon the fact that I accepted the 1913 report of Congressman Francis Burton Harrison that there was a great need for a tough criminal law to deal with the “dire situation” created by the relatively free trade in narcotics. (Trebach, The Heroin Solution, Yale University Press, 1982, p. 121.) It was also my position that in time that prohibition law no longer worked well. Only later, did subsequent research convince me of my present position -- that it was a terrible mistake from the start.

Thus, you see the causes of my intertwined confidence and embarrassment. Americans did it. They were wrong from the very start. Americans are the lead drug warriors even to this day. It is fitting that you have asked an American to take a leadership role, to make amends, to say we are sorry, to admit it was a terrible mistake, and to destroy drug prohibition.

In making this criticism of American drug warriors and American drug policy, please understand that I do not thereby join the sour chorus that blames America for all of the evil in the world. You have before you an old, dewy-eyed American patriot. I love my country and its people, especially its heroes of whom we have many, such as those who covered themselves with glory not too far away in Bastogne some 58 years ago. When I criticize American policy, I distinguish it from the heart of America that in my eyes is the bright shining hope of the world. It is my patriotic duty to denounce those American policies that deserve it.

One of our major tasks is to convince ourselves and other leading officials and opinion makers that drug prohibition was not handed down from Mount Sinai or Mount Olympus or any other moral or rational mount. It was an absurd idea, even though many people assume that the drugs were always controlled by the criminal law. I recall some years ago riding in the car of a narcotic detective in California and mentioning in passing that narcotics and cocaine in America were not totally criminalized until March 1, 1915. This good, courageous officer was stunned. “I thought they were always illegal!” he fairly shouted in disbelief.

Here you see why we must take away the moral underpinning to drug prohibition. We must constantly remind the world that throughout almost all of recorded history drugs were legal. Even many drug reformers are uncomfortable with legalization because they fear the chaos that will result when the criminal law is removed from the center of drug control. In the minds of many, it seems that criminalized drugs represent the divinely ordained order of the universe. We must constantly make clear that the people who created this disaster were flawed mortals with intolerance in their hearts and with defective reasoning burdening their brains. They were far from divine. They displayed the same reasoning ability as the prohibitionists of this day, which is to say they were profoundly defective in those abilities.

For recent proof of this harsh condemnation, I offer the editorial published in The Washington Post by none other than the Director of the Drug Enforcement Administration, Asa Hutchinson. The editorial was entitled “Drug Legalization Doesn’t Work” and it appeared in the Post on the same day (October 9) as the front page story on the Japanese economy which might well have been entitled “The Japanese Economy Doesn’t Work.” The latter story showed how that wonderful economy was being destroyed because financial leaders refused to discard old, destructive habits of keeping failed institutions alive.

That is the equivalent of what the United States and many other nations have been doing for many years with the failed institution of drug prohibition, which simply does not work and which also causes immense harm to our people, including our children. Prohibition has created a situation where drugs are ruled by the law of the jungle. In that jungle there is found violent drug trafficking, crime by addicts, rampant drug abuse, interference with effective pain control for the seriously ill, and massive invasions of rights. Over the years many responsible leaders around the world have attempted to replace the law of the jungle with the rule of law. They have developed experiments seeking new, more effective ways to deal with drugs.

One of the latest such proposals came on September 4 from a special committee of the Canadian Senate in the form of an exhaustive, thoughtful 600-page report that recommended a complete overhaul of that country’s approach to all types of drug use and abuse. The report proposed that the Canadian government should adopt an integrated policy on the risks and harmful effects of all psychoactive substances including cannabis, medicines, alcohol, tobacco and now-illegal drugs, focusing on educating users, detecting and preventing at-risk use and treating excessive use. As for marijuana, the committee concluded that, “as a drug, it should be regulated by the State much as we do for wine and beer, hence our preference for legalization over decriminalization.”

The responses were as expected. U.S. Drug Czar John Walters urged the Canadians “not to fall for the same myths that too many Americans have fallen for.” Rep. Mark Souder (R-IN), chair of the House of Representatives drug policy committee, bluntly threatened Canadians that there would be tougher controls on our common border if marijuana were legalized. We also have Mr. Hutchinson’s response in his editorial, although Canada was not mentioned explicitly. Moreover, Antonio M. Costa, the Executive Director of the United Nations Office for Drug Control and Crime Prevention, declared that the international treaties prohibited legalization of marijuana.

Yet, the facts supporting those prohibition treaties at the beginning of the last century were as weak as the arguments now advanced by Mr. Hutchinson’s editorial, which is shot full of errors and myths. To name just a few of the latter: full drug legalization does not exist in England; it does not exist in any major country; there is no evidence of increased drug abuse because of the Alaskan interlude of very limited marijuana legalization; we never have been drug free; no program realistically offers that hope.

The most compelling evidence of how full legalization might work is found in the period before March 1, 1915 when the American Harrison Narcotic Act established national prohibition. It was passed to carry out our obligations under The Hague Opium Convention of 1912, the first of the major international drug prohibition treaties.

As I said, I have I have spent years researching reports on our history when drugs were relatively freely available. (There were indeed state and local drug laws but no national pattern of prohibition. It was possible to get drugs sent by mail from the Sears Roebuck catalogue.) I found no evidence that America was then a nation of zombies. When trusted to make mature decisions, free of the criminal law, the American people, as a whole, chose not to abuse drugs. Yes, too many people were addicted, but some research suggests that at least 99.6 percent were not. (Trebach and Inciardi, Legalize IT? Debating American Drug Policy, American University Press, 1993, p. 49.) The truth of the matter is that there is no solid evidence of the actual number of addicts before or after prohibition. Regardless of how many addicts there actually were before prohibition, we do know for sure that they did not constitute a threat to social stability. They were a threat to themselves and their families but not to the society at large. There is no evidence that ships did not sail or factories did not function or armies did not deploy because citizens could easily buy morphine, opium, marijuana, and many other drugs. Drug abuse by kids barely appears on the radar screen of history.

Criminal drug syndicates were rare; so was crime by addicts seeking money for a fix. Murders in the drug trade were virtually nonexistent. The presence of freely available drugs did not result in massive crime rates. In a detailed study of crime rates in ten major cities in 1889 and 1989, I found that they were dramatically lower in 1889, when drugs could be easily purchased. For example, in the nation’s capital, the arrest rate per 100,000 people for murder was 5.6 in 1889 and 47.9 in 1989. In Baltimore, the arrest rate for robbery was 10.6 in 1889 and 224.7 in 1989. In Manhattan, the arrest rate for robbery was 17 in 1889 and 608.5 in 1989. Thus, there is a lack of evidence that the availability of drugs created a criminalized citizenry. While not proven by this particular survey, it is of course likely that one of the main reasons for incredible rise in crime rates in those cities was the advent of drug prohibition.

For many thoughtful scholars, the principal answer to my line of reasoning -- drugs in the last century did not constitute a major social problem -- would be the oft-cited cautionary tale about Soldier's Disease in the American Civil War of 1861-65. The liberal dispensation of morphine by doctors to wounded and sick Civil War soldiers, the story goes, created a massive amount of addiction. So many dependent veterans of the civil war were created that morphine addiction earned the sobriquet of the Soldier's Disease. All of this allegedly proved the generally accepted idea that the widespread use of drugs, even in medical settings, almost always results in a large number of abusers and consequent major disruptions of the entire society.

In a seminal 1990 paper, however, addiction expert Jerry Mandel made an impressive case for a different interpretation. Mr. Mandel reviewed the records of the time and came to conclusions similar to mine. While there was some evidence of a good deal of drug use, there was none indicating a major social problem stemming from drugs. He observed, "Even the moralistic anti-opium writers of about a century ago, with rare and often unbelievable exceptions, did not point to a publicly noticed problem."

Mandel then went on to confront the reality and the implications of Soldier's Disease. A major part of his argument is: "The paradigm justifying U.S. opiate policy -- availability leads to use; use leads to addiction; addiction is long-term; and addiction becomes a publicly manifest problem -- conveys the idea that unavoidable social consequences of free access to opiates justify the enormous costs of contemporary U.S. policy. Of all the stories about the 'bad old days' when opiates were legal, only Soldier's Disease provides convincing 'evidence' that opiate availability led to a publicly manifest problem..."

The story of Soldier's Disease grew over the years until, like so much else in the addiction field, it was uncritically accepted by leading authorities. Since 1964, Mandel claimed, it was mentioned, usually in uncritical terms, in over 100 works, including books by leading critics (such as this writer) of American drug policy. Mandel's research found it was true that opium and morphine were handed out liberally, sometimes on the point of a helpful doctor's knife; thus it was passed on to wounded or sick soldiers. Often it was dusted or rubbed directly into wounds. Just after the Civil War, the Secretary of War reported that the Union Army alone had issued 10 million opium pills, over 2,840,000 ounces of other opiate preparations, and almost 30,000 ounces of morphine.

Mandel's research also convinced him that there was no solid support for the claim of widespread addiction by veterans immediately after the war. Because 63,000 veterans continued to suffer from chronic diarrhea and at least 20,000 were survivors of amputations, it might have been expected that they would have continued to use the most helpful medicines of the time for such conditions. They probably did use opiates, which restrict the motility of the lower bowel and control pain, but Mandel found almost no evidence of widespread addiction at the time.

When veterans filled such prisons as Auburn and Sing Sing in New York State, prison keepers told of all types of contraband smuggled into those tough institutions: whiskey, tobacco, sugar, tea, coffee, pies, cakes -- "yet opiates were not mentioned." The Mississippi State Hospital reported its first “narcotism” admission in 1884. Mandel states that "Not one case of addiction [by soldiers] was reported in medical records or the literature of the time; under ten references were made in the Nineteenth century to addiction the cause of which was the Civil War; and no pejorative nick-name for addicted veterans, like Soldier's Disease, appeared in the literature until 1915, and it did not become part of the Conventional Wisdom of drug experts until almost a century after Appomattox."

Jerry Mandel's conclusions do much violence to the entire basis for prohibition in modern society:
* "Soldier's Disease ... is a myth."
* "[T]here is no other pre-Harrison Act example of a currently believable social problem."
* "It is in the illegal context that the modern 'opiate problem' arises, rather than in a legal context such as the Civil War. The chemistry lesson of the Civil War is that opiates per se do not cause the problem, the context does." (See Trebach and Inciardi, pp. 66-68.)

And the chemistry lesson of the last century, one might add, is that none of the drugs caused the people of America and the world as much difficulty as the public policies meant to save us all from them.

Our future lies in the past with some intelligent modern adaptations. That is why I am so pleased to be working with the Transnational Radical Party, the International Antiprohibitionist League, DRCNet, headed by David Borden, of Washington, and other groups in this vital campaign. I know that we can accomplish a great deal working together. At this conference we must think out the key strategies that will move us to our goal. Now I offer a few preliminary practical thoughts on elements of that strategy.

Our first task here at the IAL, I submit, is to get our message clarified and focused. My hope is that this conference helps us accomplish that task. Above I have suggested some possible parts of that message, but there are many more issues to be faced. I assume that we in the IAL stand for full legalization of drugs. I certainly do, all of them. Even crack and PCP. By that I mean that I do not see any value in attempting to control these powerful chemicals through the criminal law. We should seek to convince people not to use these two drugs but we should not send the police to arrest them if they do. How do we as an organization stand on such issues?

As the Canadian Senate just stated when it recommended legalizing marijuana, the criminal law would still apply to that drug when it was involved in a way that might be very harmful to others, such as driving a motor vehicle under its influence, trafficking outside the laws, and selling drugs to minors. We may want to include such ideas in our future pronouncements about all drugs.

To what extent do we want to get involved with related issues? For example, I believe that a major part of our message ought to emphasize that we oppose any form of drug use by children – and we obviously oppose drug abuse by young people. We could adopt the saying on an old poster from Delaware in the campaign to repeal Alcohol Prohibition: Save the Children! Repeal Prohibition! We can certainly say that because it is true. While many doubt it, I can assure everyone that young people will be infinitely safer when prohibition is repealed. However, should we develop materials dealing with education for young people in the new era of legal drugs? Will this admirable idea harmfully divert our limited resources from the main task? I do not have an easy answer.

In my view, I have an easy answer to another question: to what extent do we want to emphasize the links between the campaign to control terrorism and this campaign to legalize drugs? There are many connections here and I submit they deserve some attention from us. One idea that I have raised in the past is that there are only so many law enforcement and intelligence personnel in the world. We should properly look to the police and intelligence agencies to save us from bombs and bullets but not from drugs and our own personal habits and vices.

Should our work focus on a broad attack on rewriting many aspects of the international treaties or should we narrow our focus? At least in the initial stages, I would opt for developing a focused attack aimed at convincing legislators and parliamentarians to introduce legislation that would withdraw their nation’s ratification of the treaties. This could be easier than a wholesale revision of the entire treaty structure. At the same time, it could create its own problems. This is an important issue deserving of careful thought.

We must also develop models of legalization that can be implemented in different countries once they have withdrawn from the treaties. There are many approaches and we should help nations select those models with which they are most comfortable.

There are also many issues involving matters of simple organization. We will have to work out methods of cooperation between Brussels, Rome and Washington on a whole host of questions. However, I have every confidence that we will face all of these issues and resolve them in a compassionate and comradely fashion.

At the end of the day, we can succeed in taking drugs out of the jungle of prohibition and placing them and their users and abusers in a new legal framework, within the civilized confines of the rule of law. We can never make the drugs or their users simply go away, but I have every confidence that the people of the world will soon realize that through our work we have made a positive contribution to their health, safety, and general welfare.

Thank you so much.

Arnold S. Trebach, President of the International Antiprohibitionist League, Professor Emeritus American University Washington, District of Columbia