Conclusion - The Issue of Prohibition

And one other thing I want to do with you this morning, and that's this -- I want to say one thing.  To tell you the real truth, my interest isn't in drugs, or in the criminalization of drugs although I think we should abolish the criminal penalties for drugs, and deal with it as the Europeans do, in a medical way, but who cares?  That's an opinion.

     What interests me though, isn't drugs.  What interests me is that larger issue, and the reason that I wrote the piece, and the reason they were my tenure pieces, I am interested in a much larger issue, and that is the idea of Prohibition — the use of criminal law to criminalize conduct that a large number of us seem to want to engage in.

     And, for my purposes, — now, Professor Bonnie went on to be associated with NIDA and with all kinds of drug-related organizations and continues to be interested in the drug laws — I am not.  My interest is in criminal prohibitions, and, for my purposes, as a criminal law scholar, we could have used any prohibition — alcohol prohibition, the prohibition against gambling that exists still in many states.  How about the prohibition in England from 1840 to 1880 against the drinking of gin?  Not drinking, just gin — got it?  We could have used any of these prohibitions.  We didn't.  We chose the marijuana prohibition because the story had never been told — and it is an amazing story.

     We could have used any of these prohibitions.  We could have used the alcohol prohibition.  The reason we didn't is because so much good stuff has been written about it.  And are you aware of this?  That every single — you know how fashionable it is to think that scholars can never agree?  — don't you believe that — every single person who has ever written seriously about the national alcohol prohibition agrees on why it collapsed.  Why?

     Because it violated that iron law of Prohibitions.  What is the iron law of Prohibitions?  Prohibitions are always enacted by US, to govern the conduct of THEM.  Do you have me?  Take the alcohol prohibition.  Every single person who has ever written about it agrees on why it collapsed.

     Large numbers of people supported the idea of prohibition who were not themselves, opposed to drinking.  Do you have me?  What?  The right answer to that one is Huh?  Want to hear it again?

     Large numbers of people supported the idea of prohibition who were not themselves, opposed to drinking.  Want to see it? 

     Let me give you an example.  1919.  You are a Republican in upstate New York.  Whether you drink, or you don't, you are for the alcohol prohibition because it will close the licensed saloons in the City of New York which you view to be the corrupt patronage and power base of the Democratic Party in New York.  So almost every Republican in New York was in favor of national alcohol prohibition.  And, as soon as it passed, what do you think they said?  "Well, what do you know?  Success.  Let's have a drink."  That's what they thought, "Let's have a drink."  "Let's drink to this."  A great success, you see.

     Do you understand me?  Huge numbers of people in this country were in favor of national alcohol prohibition who were not themselves opposed to drinking.

     I just want to go back to the prohibition against the drinking of gin.  How could a country prohibit just the drinking of gin, not the drinking of anything else for forty years?  Answer: The rich people drank whiskey and the poor people drank what?  — gin.  Do you see it? 

     Let's try the gambling prohibition.  You know when I came to Virginia, this was a very lively issue, the gambling prohibition.  By the way, I think it's a lively issue in California.  Are you ready for it?

     Have you ever seen the rhetoric that goes around the gambling prohibition?  You know what it is.  Look, we have had a good time.  We have been together yesterday, we have been together today, I have known a lot of you guys for ages.  How about after the talk, we have a minute or two, let's go on up to your room and we will play a little nickel, dime, quarter poker.  Want to play some poker this afternoon?  Why not?  It's a nice thing to do.

     Would we be outraged if the California State Police came barreling through the door and arrested us for violation of California's prohibition on gambling?  Of course we would.  Because, who is not supposed to gamble?  Oh, you know who is not supposed to gamble — them poor people, that's who.  My God, they will spend the milk money.  They don't know how to control it.  They can't handle it.  But us?  We know what we are doing.

     That's it.  Every criminal prohibition has that same touch to it, doesn't it?  It is enacted by US and it always regulates the conduct of THEM.  And so, if you understand that is the name of the game, you don't have to ask me, or any of the other people which prohibitions will be abolished and which ones won't because you will always know.  The iron law of prohibitions — all of them — is that they are passed by an identifiable US to control the conduct of an identifiable THEM.

     And a prohibition is absolutely done for when it does what?  Comes back and bothers US.  If, at any time, in any way, that prohibition comes back and bothers us, we will get rid of it for sure, every doggoned time.  Look at the alcohol prohibition if you want a quick example.  As long as it is only THEM — you know, them criminals, them crazy people, them young people, them minority group members — we are fine.  But any prohibition that comes back and bothers US is done for.

     Let's just try the marijuana prohibition as a quick one.  Who do you think was arrested 650,000 strong two years ago for violation of the marijuana laws?  Do you think it was all minority group members?  Nope.  It was not.  It was some very identifiable children of US — children of the middle class.  You don't have to answer my opinion.  No prohibition will stand — ever — when it comes back and penalizes our children — the children of US who enacted it.  And in fact, do you have any real doubt about that?  Do you know what a fabulous sociological study we will be if we become the first society in the history of the world to penalize the sons and daughters of the wealthy class?  Unheard of.

     And so, yeah, we will continue the War on Drugs for a while until everybody sees its patent bankruptcy.  But, let me say that I am not confident that good sense will prevail.  Why?  Because we love this idea of prohibition.  We really do.  We love it in this country.  And so I will tell you what I predict.  You will always know which ones are going out and which ones are coming in.  And, can't you see the one coming right over the hill?  Well, folks, we are going to have a new prohibition because we love this idea that we can solve difficult medical, economic, and social problems by the simple enactment of a criminal law.  We adore this, and of course, you judges work it out, we have solved our problem.  Do you have it?  Our problem is over with the enactment of the law.  You and the cops work it out, but we have solved our problem.

     Here comes the new one?  What's it going to be?  No, it won't be guns, this one starts easy.  This one is the Surgeon General has what?  --determined -- not "we want a little more checking it out", not "we need a few more studies", not "reasonable people disagree" -- "The Surgeon General has determined that the smoking of cigarettes will kill you."

     Now, all you need, and here is my formula, for a new prohibition every time is what?  We need an intractable, difficult, social, economic, or medical problem.  But that is not enough.  There has to be another thing.  It has to divide by class --- by social or economic class, between US and THEM.

     And so, here it comes. 

     You know the Federal Government has been spending a lot of money since 1968 trying to persuade us not to smoke.  And, indeed, the absolute numbers on smoking have declined very little.  But, you know who has quit smoking, don't you?  In gigantic numbers?  The college-educated, that's who.  The college-educated, that's who doesn't smoke.  Who are they?  Tomorrow's what?  Movers and kickers, that's who.  Tomorrow's movers and kickers don't smoke.  Who does smoke?  Oh, you know who smokes out of all proportion to their numbers in the society — it is the people standing in your criminal courtrooms, that's who.  Who are they?  Tomorrow's moved and kicked, that's who.

     And, there it is friends, once it divides between the movers and kickers and the moved and kicked it is all over and it will be all over very shortly.

     It starts with "You know, they shouldn't smoke, they are killing themselves."  Then it turns, as it has — you see the ads out here — "They shouldn't smoke, they are killing us."  And pretty soon, that class division will happen, we will have the legislatures full of tomorrow's movers and kickers and they are going to say just what they are going to say any time now.  "You know, this has just gotta stop, and we got an answer for it."  We are going to have a criminal statute that forbids the manufacture, sale, or possession of tobacco cigarettes, or tobacco products period.

     You know that the cigarette companies are expecting it.  What have they been doing?  They have been shifting all of their operations out of the United States and diversifying like crazy.  Where are they going to sell their cigarettes?  In China, that's where.  And they are already moving, because they see it and I see it.

     Ready?  What are we going to have?  You know what we are going to have.  One day — when's it gonna happen, ten years, fifteen?  — some legislator will get up and, just as though it had never been said before, "You know we gotta solve this smoking problem and I got a solution -- a criminal prohibition against the manufacture, sale, or possession of tobacco cigarettes."  And then you know what happens.  Then everybody who did want a cigarette here today, if there is anyone here who smokes, you are going to have to hide in the bathroom.  And cigarettes are no longer going to be three dollars a pack, they are going to be three dollars a piece.  And who's going to sell them to you?  Who will always sell them to you?  The people who will sell you anything — organized crime.  You got the concept, we will go through the whole darn thing again because I am telling you this country is hooked on the notion of prohibition.

     Let me conclude, and again this is my prediction — I will tell you I don't think it is subject to opinion.  Just look at it.  Just take a look at what has happened now and what will happen.  I will tell you how inexorable it is.  If we get together here in the year 2005, I will bet you that it is as likely as not that the possession of marijuana may not be criminal in this state.  But the manufacture, sale, and possession of tobacco will be, and why?  Because we love this idea of prohibitions, we can't live without them.  They are our very favorite thing because we know how to solve difficult, social, economic, and medical problems -- a new criminal law with harsher penalties in every category for everybody.

1956 and the Daniel Act


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