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The Facts About Drug Abuse

The Drug Abuse Council, 1980

Drug-Law Enforcement Efforts

John R. Pekkanen

When the city of San Francisco passed an ordinance n 1875 banning the smoking o opium in opium dens." it marked the first time a law prohibiting the use of narcotics was enacted in this country. Since then cities, states and the federal government have enacted a great number of drug laws. Some have been stringent, others more lenient. Some were passed during politically volatile periods when "get tough" approaches were thought to be the answer; others were passed during calmer times when more moderate approaches were sought.

To understand why we embarked on a course of prohibition for particular drugs is a difficult and elusive undertaking, too affected by deeply rooted attitudes and prejudices to allow for completely dispassionate inquiry. Drug laws from their inception were a special breed. In effect, the passage of these prohibitory laws created crimes by definition; drug activities derived their criminal label more from prevailing attitudes and prejudices than from actual threats to persons or property. These were laws by which people could and did express social disapproval, and were not in the tradition of laws enacted to protect us from those who steal, murder, or commit fraud. They were the means by which right and wrong were distinguished according to popular but arbitrary national values and mores.

In many instances, a proposed drug law would begin as an attempt to control the use of a certain substance, such as opium, cocaine, or marijuana. The rhetoric surrounding the proposed antidrug law would usually call for the preservation of predominant social and moral values, and it would be offered as a means of restoring those "lost" values. Frequently such a law would be directed at an outcast or minority segment of society identified with the use of the drug. I Supporters of the law would offer it as a solution to a wide range of social, moral, racial, political, and economic problems-from unemployment and crime in the streets to preserving the white race.

Early in the consideration of the Harrison Narcotic Act (the first major federal antinarcotics act2), there was some discussion about the hazards of legislating morality, but these cautions were soon put aside. In essence, the Harrison Narcotic Act was a tax law enacted to achieve a moral end, similar in that regard to the Volstead Act prohibiting alcohol. Since then, drug laws and the enforcement policies which flow from them have never been seriously challenged.

In his study of alcohol prohibition, Symbolic Crusade: Status Politics and the American Temperance Movement,3 Joseph Gusfield examines the components of criminal law and separates them into "instrumental" and "symbolic" aspects. Applied to antidrug laws, the "instrumental" aspect is what the law states as its intention-i.e., the prevention of the use and availability of certain drugs. The "symbolic" aspect may have an importance as great as or greater than that of the instrumental*: In the case of antidrug laws, part of the symbolic function has been to define users of particular drugs as abnormal and to designate their behavior as criminal. When this labelling process was attempted with alcohol prohibition as w ell, it failed because the number of alcohol users in the country was so large and diverse that no one group could be singled out and designated as "abnormal" exclusively because of drinking alcohol.

*These two functions of the law were best exemplified by the report of the National Commission on Marihuana and Drug Abuse, which called for the retention of laws against simple marijuana possession but not enforcement of those laws. The law by itself would discourage use, it was argued, and not enforcing it would avoid stigmatizing those who did use the drug.

However, the use of certain drugs, such as opium, heroin, and-until the 1970s-marijuana was most often primarily confined to subgroups and minorities, whose separation and isolation were more easily accomplished. This fact partly explains why only congressional approval was needed to ban narcotics and marijuana, while alcohol prohibition required a constitutional amendment, and why when antidrug laws have appeared to be unsuccessful their total repeal has never been seriously considered, although repeal was possible with alcohol prohibition.

In the material that follows, the law enforcement approach to the control of certain drugs will be discussed from five perspectives: the development of the laws themselves; how the agencies charged with enforcing drug control laws have gone about their task; the relationship between drug use and crime; a case study of the impact of the nation's "toughest" drug control law, the New York State Drug Law Amendments of 1973; and the impact of drug law enforcement on illicit drug-using behavior.

Drug Control Laws and Policies

Efforts to control certain drugs have come in cycles, focusing on specific drugs during specific periods. 4 Generally, the demand for tough drug control has been most vociferous during periods of economic or political turmoil in the United States. The antiopium crusade began during the depression of the 1870s; the anticocaine crusade came during a period of racial turmoil in the South . 5 Federal sanctions against selected drugs toughened considerably between 1915 and 1920, during the first "Red Scare"; the prohibition of alcohol was of course also effected during this period. Later, during the depression of the 1930s, the entry of many Mexicans and Mexican-Americans into the labor market in the Southwest appears to have been a major cause of the antimarijuana crusade and attendant laws. The creation of the Federal Bureau of Narcotics (FBN) in 1930 established the preeminence of law enforcement in the drug field, a fact which has not changed over the years. The FBN's initial major drug targets were heroin and marijuana; this policy lasted for more than thirty five years."

In the 1940s drug control activities remained relatively stable. There were no new demands for harsh laws or policies. States adopted legislation comparable to the Harrison Act, the major federal drug law, and this tightened the nation's drug prohibition policy, There were also outbreaks of concern over the misuse of legitimately produced drugs-amphetamines and barbiturates were the most widely abused-but these drugs escaped the full force of the antidrug effort. By 1950, however, the atmosphere had changed, and many voices demanded new, tougher antidrug laws.7

Between 1947 and 1950, an apparent increase in illicit drug use was reported among blacks and Puerto Ricans in many northern cities. This caused alarm, creating support for passage of a new, more stringent drug law in 1951. Commonly called the Boggs Act after its sponsor, the late Representative Hale Boggs, it enacted the harshest penalties for drug law violations to date . 8 Historian David Musto notes in The American Disease, "Hale Boggs's bill, which contained mandatory sentences, was passed in 1951 at the beginning of the McCarthy era and fears of Soviet aggression, the 'betrayal' of China to the Communists, and suspicion of domestic groups and persons who seemed to threaten overthrow of the government."" In 1956 an even more severe federal narcotics bill was enacted which empowered a jury to impose the death penalty on anyone over the age of eighteen selling heroin to anyone Under the age of eighteen. 10 Several states also enacted extremely harsh laws during this period, imposing heavy penalties for both sellers and users.

This "tough" approach was eventually moderated: the mid-1960s marked the beginning of a more comprehensive approach to drug law enforcement. New criminal laws regulated "dangerous drugs"-i.e., legally produced hallucinogens, stimulants, and depressants. These laws were more moderate in tone and substance, and marked a belated attempt at more uniform policy at the federal level for the control of legitimate and illegitimately produced drugs. The previous concern had been exclusively with a very few illicit drugs like heroin, cocaine, and marijuana.

The present era in drug law enforcement, an outgrowth of the 1960s, was inaugurated during the Nixon administration which organized an intensified, coordinated federal antidrug program. This was the heralded "war on drug abuse."" The Comprehensive Drug Abuse Prevention and Control Act of 1970 replaced the former crazy-quilt of criminal drug law statutes which had been gradually patched together since the beginning of the century. 12 Through the Controlled Substances Act portion of the legislation, psychoactive drugs were placed into five schedules according to their presumed potential hazards. The federal drug bureaucracy, which had gradually grown since the 1920s, was restructured and further expanded.

As important as these steps were in modernizing the American approach to drug control and in moderating the Draconian criminal penalties of the 1950s, the new era did not break significantly with the past in any fundamental way. The law enforcement approach to drug use remained fixed and, except for a relatively brief period, continued to receive the bulk of federal dollars expended in the drug field. Popular notions about drugs were not significantly altered, nor were traditional responses seriously questioned. The beliefs in the almost mystical power of illicit drugs over people may have become more sophisticated, but they did not change radically. Users of opiate drugs, instead of being viewed merely as criminals, were now charitably viewed as "sick" criminals. But they were still viewed as criminals, and still are.

Perhaps one of the most important ideas to remain unchanged was the belief in a direct link between illicit drugs and crime. This presumed link, which had been the basis for the harsh drug laws of the past, remained a permanent fixture. The nature of this assumed relationship-as is discussed in later sections of this chapter-has undergone some changes, but the basic belief in a causal link has not.

Whatever the causes and motives behind the nation's drug laws, the inescapable conclusion from the more than one hundred years of experience since the first prohibitory law was enacted is that they have not stopped or even diminished the use of illicit drugs. For example, in 1924 the U.S. Public Health Service estimated the opiate addict population at two hundred fifteen thousands ; although imprecise, this figure is considered to be the most reliable of that period. In 1976 the National Institute on Drug Abuse (NIDA) estimated the heroin addict population at five hundred thousand; other recent studies indicate that the figure for all types of heroin users may be two to four million. 14 Allowing for population increases, there are more heroin users today than there were a half century ago. The same appears to hold true for users of other illicit drugs.

Because of such findings, our drug laws and policies are more openly questioned today than at any point in the past. On one hand there are those who argue that government has no right at all to intervene in the private lives of individuals. This view holds that drug use is essentially a private act, and that therefore government ought not intervene unless drug-taking leads to socially disruptive or criminal behavior. A more pragmatic aspect of this position is the feeling that laws and policies can do little to diminish the supply of illicit substances because of the enormous profitability involved and the consequent development of highly organized "black market" distribution networks. It is argued that the government's resources could be better used in attempting to change the conditions that contribute to illicit drug use-i.e., poverty, unemployment, and other social problems-than to continue self-defeating efforts to eliminate the supply and use of particular drugs.

On the other hand, there are those who feel the government's antidrug effort is doing about as well as can be expected in cutting back the supply of illicit drugs, short of abridging everyone's civil liberties. They argue that if law enforcement programs did not attempt to diminish supply and frighten some individuals from using drugs, our drug problems might be far greater than they are. Then there are those who argue we are not doing nearly enough, that more severe and repressive approaches and policies are needed if we are to combat and eradicate the "enemy, drug abuse." In its extreme form, this latter view holds that no price is too great to pay in order to achieve this end.

However, much of the debate over drug control laws has failed to focus sufficiently on the difficulties involved in enforcing them. Passing a drug law is only one part of a control effort; enforcing it is quite another. It is important to understand that even when operating at maximum effectiveness, there are serious limits to what law enforcement agencies can achieve.

One of the primary problems that American drug law enforcement must face is that the drug laws and drug policies have been consistently oversold by public officials. Burglary laws are not expected to eliminate burglary, and penalties for armed robbery are not expected to eliminate that crime; yet drug laws are expected to eliminate illicit drug sale and use- a standard has been set for drug laws that was never set for other laws. More has frequently been promised than could possibly be delivered. Consequently, as long as illicit drug use has persisted, the policies against it have been regarded by some as abject failures. What is needed in any discussion of drug control policies is a realistic notion of what they can and cannot achieve, and what their costs and benefits are. Only when we understand this will the long cycle of overreaction to the use of particular drugs subside.

Law Enforcement Activities

Basically, there are two strategies by which law enforcement seeks to discourage illicit drug use: The first seeks to disrupt and discourage use by enforcing domestic laws against drug use and internal trafficking; the second seeks to prevent supplies of illicit drugs from entering the country, either by preventing their cultivation abroad or by intercepting shipments to the United States. The latter strategy is largely the work of federal agents, although state and local agencies may occasionally participate. The efforts to control illicit drug use within the United States are conducted by federal, state, and local agents. Occasionally these different levels of government join forces and work together; all too frequently, however, they act independently, jealously guarding their "turf" (i.e., their resources and sources of information) from one another.

At the federal level the Drug Enforcement Administration (DEA), at present the chief drug enforcement agency, has over four thousand employees, of whom over two thousand are agents. 15 (While this number may sound impressively large, it merely approximates the size of the New York City Transit Authority Police, a force that patrols the subways and buses in that city). Several other federal agencies play various roles in the enforcement of federal drug laws: Among these are the Customs Service, which attempts to screen incoming persons and freight for illicit drugs; the Internal Revenue Service, which pursues tax law violations of illicit drug traffickers; the Law Enforcement Assistance Administration, which provides research and funding support for state and local drug enforcement; and the U.S. Coast Guard, which patrols coastlines and harbor areas for illicit drug trafficking.

At the state and local level there is a substantially larger number of personnel actively engaged in drug enforcement-the police; but an exact count is not available, since regular -patrolmen generally enforce drug laws along with their other duties. Special narcotics units have been established in virtually every major-city police department as well as in many state police departments; most major cities also give some drug law enforcement training to their uniformed patrolmen.

The strategies for controlling both drug use and supplies incorporate a number of variables. The analyses that follow attempt to summarize each strategy and identify some of their costs and benefits.

Controlling Drug Use. Drug enforcement is unlike most other types of police enforcement activities where generally a crime is committed and reported and the police investigate, gathering evidence and making their case. The victim is central to this process; he or she initiates the police investigation; it is often the testimony of the victim during the trial that convicts the offender.

In drug cases, police usually do not have victims on whom to rely. Not only are there no complainants, but everyone involved conspires to conceal the crime from the police. As a result most illicit drug offenses go entirely undetected; the percentage of violations which result in arrest are extremely low.17

Of those drug violations which do result in arrest, more than 75 percent are "spontaneous" arrests involving no prior police investigation. 18 These drug arrests are often incidental to an another investigation. For example, if the driver of an automobile is stopped for a traffic violation and the arresting officer sees marijuana or suspects its presence and finds evidence of a drug law offense, a drug arrest may follow. Such arrests are not due to any overall drug enforcement strategy, but are rather the result of normal, day-to-day police enforcement activities. This helps explain why the overwhelming number of drug arrests are for simple possession, with a majority of these involving marijuana.

Arrests for simple illicit drug possession have little if any impact on the overall availability of illicit drugs because they largely fail to affect drug distribution. The major distributors of illicit drugs conduct their drug transactions in secret, and, as in other activities involving drugs, there are no complainants. Major drug dealers have developed very sophisticated methods of concealment, including drop systems and other subterfuges. Even well-known dealers are usually able to avoid creating probable cause for arrest. Because of this secrecy and the absence of complainants, the fundamental problem police face in making arrests for drug trafficking is proving that something illegal took place. While this can be difficult enough in cases of simple possession, it is extremely difficult with drug trafficking, particularly in developing the so-called "high-level" cases. While many who use illicit drugs participate to some degree in drug distribution (whether for profit or not), those who import and deal in large quantities of particular illicit drugs are not easy to identify, apprehend, or successfully prosecute.

Undercover Investigations. Narcotics officers at the federal, state, and local levels often work undercover, and may become participants in aspects of the offense in order to gather sufficient evidence to prove a crime has been committed. This work is hazardous, time-consuming, and, as one former Deputy Attorney General told Congress, "a dirty, miserable business.""' The most serious practical shortcoming of undercover operations is that, despite the publicity such operations receive when successful, they result in the arrest of only a miniscule proportion of those engaged in major drug trafficking. Moreover, each undercover operation is so time-consuming, and the number of policemen with the temperament and skill for this work so limited, that the percentage of major arrests would not increase substantially even if every undercover operation were successful.

These problems of investigation are as true at federal as at state and local levels. In fact, one of the persistent criticisms of the federal drug enforcement effort is that the overwhelming majority of arrests are of relatively low-level dealers. A 1975 analysis by the Government Accounting Office of 1974 Drug Enforcement Administration (DEA) arrests revealed that only 604 (3.6 percent) of the total 16,796 arrests were Class I violators, and of these only 63 were convicted. 20 (Class I violators are major international drug traffickers, drug laboratory operators, or wholesalers.)" In addition, GAO found only 5 percent of the arrests to be Class 11 violators, a lesser but still significant category of offenders. However, following congressional hearings and considerable public criticism, DEA appears to have made a major effort to pursue more Class I and H offenders even at the expense of overall arrest figures. DEA statistics for 1976 show only 6,143 total drug arrests, but of these 15 percent were for Class I and 1 1. 9 percent for Class 11 offenses. Still, nearly three-quarters of the arrests were Class III and IV arrests, a statistic that indicates that major drug trafficking arrests continue to be elusive in spite of increased efforts . 22

An important consequence of undercover operations is that with arrest and trial of the suspect the undercover officer's cover is "blown" and his usefulness in that line of work in that region is usually ended. This is a serious problem, because good undercover officers are few and far between. Undercover operations also pose a number of legal problems; for example, defense attorneys often argue, sometimes successfully, that the undercover officer is guilty of "entrapment" by having enticed the defendant into committing the crime in question.

Another hazard here is the potential for police corruption. The possibility of corruption through payoffs is always present, because the sums of money involved in illicit drug traffic are enormous-generally estimated to involve several billions of dollars nationally per year-and because the salaries of policemen are generally rather low. Additionally, substantial amounts of "buy" money are provided by law enforcement agencies for this work; in fiscal year 1976, for example, the DEA budget called for $9 million for "buy" money to be used in procuring information and allowing agents to "buy into" drug transactions in the gathering of evidence .23 All major-city and state narcotics enforcement agencies have substantial amounts of this "buy" money. With these great sums of money the possibilities for corruption can be great. Temptation can be abetted by the fact that the undercover agent is operating in a lawless environment where one's normal sense of right and wrong can become distorted. In New York City the corruption of narcotics investigators reached serious proportions .24 After the Knapp Commission revelations, the New York City Police Department instituted a procedure whereby any undercover officer on the Street Crime Unit is required to obtain specific approval by a superior officer to make a drug arrest, and, furthermore, that arrest must be witnessed by the superior officer. This rather cumbersome policy is still in effect today.

Not all forms of corruption involve money, however. As mentioned above, there can also be a corruption of attitude caused by a police officer's constant exposure to the mores of the underworld. In Buy and Bust Mark Moore writes, "They [undercover agents] will know more about the violation and the violators they attack than police usually do, and will sometimes have personal interests at stake in the arrests. This invites them to exercise their authority in accordance with their intimate knowledge rather than what the law requires. 1125 For example, in some cases undercover police might protect certain dealers who have acted as informants and select others for arrest. Such choices are made not on the basis of law but upon past collaboration or even friendship. Close relationships bred by undercover ' work can influence a police officer to change his views on the law, what it means, and his requirements to uphold it. 211

Intelligence Gathering. Many critics have argued that if drug enforcement agencies were to gather and organize intelligence in a more systematic way, more could be done to successfully investigate major drug traffickers. Such intelligence presumably would give more detailed information about the methods drug traffickers employ and accordingly provide a better overall picture of trafficking operations. However, the assumption that better intelligence would lead to more successful enforcement here is open to question. Nevertheless, this debate does highlight another basic problem: That drug enforcement agents traditionally have been hostile toward intelligence functions performed by special units within their own agencies. As Moore notes, "No investigator would be happy to admit [to an intelligence analyst] that he had not mined the files of his organization for every nugget of relevant information. 1117 One result is that different agents with different items of information, which if systematically collected and analyzed might provide greater information about drug transactions and networks, often do not share it. Thus the efforts of intelligence units within the DEA and other drug enforcement agencies are often thwarted.

I Lack of Coordination. Although many state and local police agencies rely on federal help to train and establish their narcotics units, there is a notable absence of uniformity and coordination between the various levels of law enforcement agencies. As a police chief in one large American city has remarked,

It's always been a problem over the years to sort out the roles of federal, state and local agencies. My obligations to the citizens of my city are not the same as the Bureau of Narcotics and Dangerous Drugs [now the DEA], for example. They take a systems approach, then make a management by objectives analysis, they can target people and work on them. In the metropolitan police departments, such as this one, we're at the low rung of the law enforcement ladder, and we can't do that. We have to be responsive to the citizen who calls in with just a meager amount of information but expects and is entitled to action on it. 28

Overlapping jurisdictions, as well as the different emphases given to different drugs and to various aspects of enforcement models, have created conflict. As a result, some local police believe federal drug enforcement should confine itself to interstate and international trafficking and should not involve itself in "local" investigations.

While the basic assumption has been that local police will enforce laws against small-time street dealers and users, state police will enforce laws against the larger dealers, and the federal government will concentrate on the major traffickers and wholesalers, this has not always been the case. The federal government investigates cases throughout the country, sometimes informing state or local police agencies and sometimes not doing so; its cases do not necessarily involve truly major interstate or international violations. Because of these overlaps, the three levels of drug enforcement remain to this day uncoordinated, competitive, and at times conflicting. This continuing lack of coordination, coupled with the other pitfalls of domestic drug enforcement, have at times led to an acute sense of frustration on the part of police, policymakers, and the public. As a consequence, excessive measures periodically find support. One recent, well-known example of this process of frustration and overreaction involved the now defunct Office of Drug Abuse Law Enforcement.

ODALE: A Case History. The Office of Drug Abuse Law Enforcement (ODALE) was established in early 1972 by executive order of President Nixon and charged with the mission of waging an even tougher "war" on illicit drug users and dealers than had been attempted in the past.211 The brief history of this short-lived agency illustrates the excesses to which a "war on drugs" philosophy can lead. It also highlights the difficult position of drug law enforcement in attempting to enforce the law justly without overstepping constitutional safeguards.

ODALE was criticized from its inception for being an "election-year stunt" while being simultaneously lauded as a bold attempt to fight drug traffickers. ODALE was ostensibly controlled by the justice Department but actually operated by direction of the White House. Its initial creation was something of a curiosity in that the federal government already had two competing agencies, the Bureau of Narcotics and Dangerous Drugs (BNDD) and the Customs Bureau, in the forefront of its drug control effort. ODALE's potential for engendering yet more bureaucratic rivalry was soon realized; within the space of a few months, the agency had eclipsed the other traditional federal drug enforcement efforts in influence. 30

ODALE was staffed by employees from a number of federal agencies, including BNDD, Customs, the Internal Revenue Service (IRS), and the Bureau of Alcohol, Tobacco, and Firearms. The agents from these departments were deployed into "strike forces" which were authorized to use "no-knock" search warrants, court-authorized wiretaps, and other search privileges when "incidental to arrest." Furthermore, ODALE could forward the names of suspected drug traffickers to a special committee in IRS which could then initiate special audits or investigations of them.31

ODALE received most of its funds from the Law Enforcement Assistance Administration (LEAA), which is empowered by Congress to fund state and local law enforcement units. While it was not within the authority of LEAA to directly fund ODALE, a federal agency, this barrier was skirted by having LEAA make grants to local police departments participating in drug raids with ODALE agents. This funding process also allowed ODALE to circumvent budget appropriation proceedings in Congress. These steps, while apparently within the letter of the law, were not in its spirit, but they went largely unchallenged in the name of fighting "drug abuse. "32

One of ODALE's first acts was to establish the "heroin hotline," a toll-free number which people could call if they knew or suspected someone of dealing in illicit drugs. Although the "hotline" received abundant publicity its accomplishments in aiding drug enforcement were minimal at most. Only a few months after it was installed, "hotline" callers were told by a recording to call another number; the "hotline" was out of business .33

The excesses this new agency fostered came vividly to light on the night of April 23, 1973 in Collinsville, Illinois, when ODALE agents broke into the house of Mr. and Mrs. Herbert J. Giglotto, asleep at the time, routed them out of bed, roughed them up, and accused them of drug dealing. But the ODALE agents had made a mistake and come to the wrong house. They made a second mistaken raid in another home that very night. These events led to the suspension of the involved agents. Eventually they were brought to trial on criminal charges, but were acquitted.34

The adverse publicity generated by the Collinsville raids crippled ODALE's effectiveness and power. But the creation of that agency and the extraordinary powers given to it demonstrate how the impulse to combat the use of particular drugs and the uncritical attitude accompanying that impulse can lead to an overzealous approach which can seriously erode constitutional safeguards. The excesses of ODALE were almost predictable, as in past instances when the climate for stamping out illicit drug use was equally extreme.

A number of questions surround ODALE even after its bureaucratic demise. Was it created solely to combat illicit drug use? Why was such a unique agency with unique powers believed to be needed? The answers to these questions are not and may never be clear, because of different interpretations of what ODALE was or attempted to be. What does seem to be clear, however, is that ODALE represented one more attempt to allay public fears by striking hard at illicit drug use with tough enforcement. What is also clear is that in spite of the hoopla surrounding its inception, ODALE's arrest statistics reveal that virtually every individual arrested by the agency was a minor, street-level dealer of little or no consequence. 35

Controlling Drug Supplies. In addition to efforts to control the numbers of users and distributors of illicit drugs through the criminal justice process, the federal government also has sought to reduce the quantity of illicit drugs available for use. There are two ways American law enforcement agencies have sought to control the supply of illicit drugs: intercepting them as they come into the country, and destroying them at their source in other countries.

Interdiction. Many of the illicit drugs used in this country are produced in foreign nations. One exception is marijuana, which is grown both within and without the United States, although the bulk of it is produced in foreign countries; other exceptions are synthetic psychoactive drugs produced in laboratories (rather than refined from a harvested plant)-e.g., amphetamines, barbiturates, and some hallucinogens. Cocaine and heroin, officially considered to be the major illicit drugs of abuse in the United States, originate in other countries. An obvious --some might say simplistic-drug control strategy is to try to prevent these illicit substances from reaching this country. Upon closer examination, this strategy proves to be an awesome task.

Anyone who has ever passed through American Customs at the Canadian or Mexican borders or our sea- or airports realizes that there is rarely any thorough inspection. The vast numbers who daily cross into and out of American jurisdiction make thorough inspection of every traveler a practical impossibility. In addition, American borders have traditionally been open; constitutional safeguards define the manner and circumstances of searches. Successful seizures of illicit drugs therefore depend more on intelligence information than on the luck of random searches. This intelligence information is usually supplied by American drug agents in foreign countries, who attempt to identify drug traffickers to later be either arrested at the border or kept under surveillance and arrested within the United States. *

However, even with good intelligence information, preventing illicit drugs from entering this country is a difficult, indeed nearly impossible task .311 When the estimated amount of illicit drugs consumed in this nation is compared with amount seized at our borders or other ports of entry, it is clear that only a very small percentage of the drugs being smuggled into the country are confiscated.

It is estimated, for example, that from twelve to twenty thousand pounds of high-purity heroin are smuggled into this country each year"; but in fiscal year 1974 only 115 pounds of high-purity heroin was seized at all U.S. borders and ports. This means that, combining this with the amount of heroin seized internally by the authorities in domestic operations, only 670 pounds of heroin were confiscated that year .38 By fiscal year 1976, after intensive effort, domestic seizures had increased to a total of 1,124 pounds of heroin, still far short of the total incoming amount. The publicity accorded these seizures, however, often has conveyed the impression that law enforcement agencies are making major inroads against illicit drug smuggling. To a large extent this publicity has been generated by the agency involved in the seizure, for both political and bureaucratic reasons.

Perhaps the most widely used technique for embellishing the importance of a seizure of illicit drugs is to state the "street value" of the seized drug.311 A seizure of fifteen pounds of heroin, therefore, might not be merely a fifteen-pound seizure, but a seizure of "thirty million dollars' worth of drugs." The "street value" figure is elastic and sometimes exaggerated; it often reflects the most optimistic price a dealer might possibly ask for his drugs. This is analogous to estimating the value of rustled cattle by the price they would bring as steaks at the best restaurants. What is omitted in these claims of the "street value" of drugs seized is the fact that between $5 and $11 billion worth of illicit drugs is sold in this country each year .40 Thus, $30 million or even $300 million, while significant, is still but a tiny fraction of the total, and has little if any impact on the total amount of illicit sales. However, when seizures drop, enforcement agencies frequently also use the decline to indicate the success of their efforts.

*Additionally, international interdiction also has included investigations by U.S. agents abroad in cooperation with foreign governments, and the arrests of drug traffickers in certain countries. However, U.S. agents are now prohibited by law from participating in the arrest of individuals in foreign countries.

By this self-serving logic, the drug law enforcement agencies nearly always can appear to be successful.

Although drug seizure data have often been misused by competing drug agencies to enhance their public images, seizures can have a disruptive effect and present an economic risk to drug traffickers. In addition, limited amounts of these drugs are of course kept out of the illicit market.

Historically, border interdiction has been a major source of rivalry among the federal agencies charged with controlling illicit drugs-specifically, between the Customs Bureau and the justice Department's drug agencies, from the Federal Bureau of Narcotics to the Bureau of Narcotics and Dangerous Drugs to the present Drug Enforcement Administration." Government reorganizations, as well as a number of other attempts to reconcile these disputes-such as specifying which international areas each agency should be responsible for-have not completely succeeded in quieting this rivalry, although DEA's incorporation of some of the drug enforcement duties of Customs has certainly allayed it.

These jurisdictional disputes have appeared at many critical points in the federal drug enforcement effort. For example, when drug agents in a foreign country obtain information regarding a significant drug-smuggling attempt, this information would ideally be relayed to the U.S., in order to effect an arrest on U.S. territory; here, however, the federal drug law enforcement process often broke down. In some cases Customs would insist that the drugs be intercepted at the border, to make certain they did not enter the country, while FBN, BNDD, or DEA would insist that the smuggler be allowed through the border, whence he might lead to "higher ups" in the smuggling operation. In point of fact, however, many times the true reason for these differences was the desire of each agency to make the drug seizure and arrest itself. The competing agencies eventually began circumventing one another, refusing to reveal what they were doing or whom they were investigating. Sometimes one agency would deliberately interrupt the investigation of another with a premature arrest. In one celebrated instance, two agencies, unknown to one another, were involved in the same investigation; in a showdown shooting erupted, with agents from two federal agencies of the United States government mistakenly shooting at each other." How often disruptions of this kind occurred is difficult to estimate, but it is clear that the rivalry was a serious impediment to effective federal drug control and an embarrassment to the government generally.

Another problem with border interdiction is simply that our borders with both Mexico and Canada are so easily accessible; trying to make them less accessible in order to seize more drugs would not only erode freedom of entrance and egress, but probably would not work anyway. As noted, the major border drug seizures generally result from intelligence information supplied to border agents. Few illicit drugs are uncovered in random searches, as Operation Intercept-an attempt to cut off drug supplies at the Mexican border-amply demonstrated in September 1969. That effort affords another illustration of the ineffectiveness of extreme measures taken in the name of fighting illicit drugs.

Operation Intercept: A Case History. The Mexican border has traditionally been a major trafficking point, both because large quantities of illicit drugs are produced in Mexico and because the 1,945-mile border is mostly unguarded. In addition to bridge and river crossings, it is believed that 200 aircraft carrying illicit drugs daily fly illegally from Mexico into the United States. 43

In September 1909 President Nixon ordered "the country's largest peacetime search and seizure operation by civil authorities" along the United States-Mexico border. 44 Two thousand Customs and border patrol agents began systematically searching all cars and persons coming from Mexico into the United States. There were delays of several hours in what is normally a very quick crossing process over the border. Individuals who appeared suspicious or argumentative were often stripped and bodily searched. The tourism traffic between the two countries was seriously interrupted. And although more than five million people passed over this border during the three weeks Operation Intercept was in full gear, virtually no heroin or any other illicit drug was confiscated. In defense of the project, the government later explained that its primary intention was not to interdict drugs at the border, but rather to pressure Mexico into eradicating its crops of marijuana and Opium.41 While it may have had this effect eventually, the project had little direct impact on illicit drug trafficking.

Elimination of the Supply. The most recent major American supply reduction strategy is "eradication at the source." This policy was created in part because of the lack of success in controlling supply through traditional domestic enforcement and international interdiction and in part because advanced technology seemed to make it more feasible than before. In brief, the objective is to eliminate the crops which furnish illicit drugs to the American market.

Bolivia, Peru, and Columbia are the major U.S. sources of cocaine, while opium (the raw material for heroin) is grown in many countries throughout the world, including Thailand, Cambodia, Vietnam, Mexico, Turkey, India, and Iran. Marijuana is grown throughout Mexico and Central and South America in addition to the United States. However, heroin is the major drug priority of the federal government, and the most advanced "eradication at the source" program underway now is against the opium poppy. Although substantial amounts of cocaine-from fifteen to one hundred tons annually-regularly flow into the United States, cocaine remains a lower priority .411 No major cocaine eradication program has been attempted, because of the hardy nature of the coca plant (from which cocaine is derived) and because these plants are grown near drinking water supplies and closely intermingled with food crops, making eradication programs extremely difficult if not impossible to accomplish in safety. Marijuana, despite official disclaimers of interest, results in the greatest annual seizures47 and is the object of current American-supported eradication efforts in Mexico .41

The key to any eradication program's success is the cooperation of the foreign government in whose country the drug is grown and the ability of that government to effect an eradication policy in its rural areas. Basically, the theory of eradication rests on the simple premise that if opium poppies or marijuana plants are-eliminated in sufficient numbers the drug they produce will also be largely eliminated. To this end, the United States now actively participates in eradication programs for both of these illicit drugs.

Opium poppies are grown in many regions of the world; no special climate or soil conditions are needed. The main requirement is cheap, abundant manual labor to do the painstaking work of harvesting. It is estimated that only sixty to one hundred tons of raw opium are required each year to supply the entire illicit U.S. market with heroin, an amount which could be produced from only ten square miles of opium poppies." (One hundred tons of opium yields approximately ten tons of pure heroin5O; the raw opium, which is extracted directly from the opium poppy, is converted into a morphine base and then into heroin by a relatively simple cooking and chemical-bonding process.)

There are two other significant factors which work against the success of the eradication strategy. First, the opium poppy has a long tradition in many cultures where it is grown; it is used for fodder, fuel, oil, and as a pain-killing agent. In many regions of the world indigenous families have been growing opium poppies for centuries. Second, opium poppies are a valuable cash crop in those regions. Even when sold legally, the poppy crops support many farmers and their families. There are few substitute crops that will earn more per unit of land.51

Although the United States has encouraged worldwide prohibition of illicit opium cultivation through bilateral and multilateral agreements for more than sixty years, these efforts have largely failed. One of the reasons for this is that our prohibition of heroin has inflated the price of the drug, thereby making it even more profitable to cultivate opium poppies illegally.

In 1971 this country launched a major effort to restrict the cultivation of foreign opium when it reached an agreement with Turkey to ban the cultivation of opium poppies there. In return, the United States agreed to reimburse the Turkish government $35 million for lost revenues.

(Ultimately, only part of this amount was actually paid to Turkey. )52 Although the United States selected Turkey as the site for trying its new policy because Turkish opium was believed to account for 80 _percent of the illicit heroin used in the U.S., there was no way to verify this estimate, since it is nearly impossible to trace heroin back to its original source. 53 It is in fact uncertain that Turkish opium poppies did supply 80 percent of American heroin, since it is also believed that Turkey grew only about 8 percent of the world's opium poppies.54 In addition, the existence of other opium-growing areas and the profitability of the American heroin trade would make the long-term impact of such a ban questionable; other countries growing larger amounts of opium had controls as lax as Turkey's, and much of the opium from these countries also found its way into the black market. It has also been suggested that Turkey was selected because, as a NATO ally, it was more susceptible to U.S. leverage than many other countries.

Whatever the reasons for choosing Turkey, the results of the opium ban not only failed to stop the flow of heroin into this country but seriously strained relations between the two countries until Turkey unilaterally rescinded the ban in 1975 . 5-1 In place of the opium-growing ban, the Turkish government at this time initiated a centralized poppy-harvesting method called the "poppy straw process": This process requires that the opium poppies be harvested whole rather than lanced, meaning that the raw opium is brought to secure, central locations before the extraction process is carried out, and forbids farmers to lance the poppy pods themselves. This change has reduced if not eliminated the export of illicit Turkish opium. This stoppage of Turkish opium, however, led to a substantial increase in illicit heroin from Mexican sources. As one study noted,

Although the opium ban in Turkey, together with a major enforcement effort in France which broke up a ring of French and French-Corsican chemists and traffickers in 1973, did put a temporary crimp in the supply of heroin in the U.S., Mexican opium growers and traffickers rapidly took over the market. By 1975 the U.S. government was declaring that over 80 percent of the heroin available in the U.S. came from Mexico, instead of Turkey. "

As the illicit Turkish opium supply dwindled and the price of heroin rose in response, the economics of heroin trafficking thus became even more favorable, and new suppliers were attracted to it. For example, in opium-producing countries an investment of $250 now buys one ounce of 90 percent pure heroin; when cut with forty dollars' worth of quinine, thereby converting the original ounce of heroin into one kilo of 21/2 percent purity (an average level for American heroin), the value becomes $15 per gram, or a total of $15,000 for the original investment of $290. 57 These economics keep the international heroin market flourishing and make significant and lasting eradication extremely difficult to accomplish.

Mexican heroin-noted for its brown color, a result of the refining process which has no effect on the quality of the heroin-quickly filled the vacuum created by the Turkish poppy ban. In fact, heroin is a great economic boon to regions in northern Mexico; that mountainous and largely inaccessible region produces some twenty tons of heroin a year. As noted in one report on the Mexican heroin trade,

Assuming, however, that only the 10 tons of heroin (from the tri-state area) reached the border where it would sell in 1975 at $45,000 a kilo (border value), the value of that crop alone would be $450 million. The heroin crop alone is thus Mexico's most valuable commodity. Sugar, shrimp, coffee and cotton, the next four most valuable commodities, do not total $450 million together. '8

In response to this new influx of heroin, the United States and Mexico agreed in 1973 to attempt another type of eradication strategy. Essentially, the United States agreed to provide technical assistance and equipment for a herbicide-spraying program to eradicate illicit Mexican drug producing crops. Although marijuana was included, the opium poppy was the primary target of the eradication program from the American point of view. This program remains the United States' most ambitious eradication effort. 59

During the early phases of the program less than ten thousand opium poppy fields per year were destroyed manually. These ten thousand fields represented approximately three to four thousand acres. In November 1975 aerial spraying began, and by 1976 the total number of fields reportedly destroyed had risen to twenty thousand. In 1977, some forty seven thousand poppy fields, representing an estimated fourteen thousand acres, were destroyed. This increase was primarily due to the change from manual to aerial herbicide spraying.60

The spraying program is conducted year-round and affects large sections of Mexico, including nearly half of the western coast. At the present time the herbicide paraquat is used to eradicate marijuana-a major goal of the Mexican government-and the chemical "2,4-D," is used on opium poppies. The program is assisted by the U.S. government in a number of ways. A State Department official recently described the Mexican eradication effort to a congressional committee thus:

The principal forms of State Department-administered support to the Mexican drug effort have included the furnishing of aircraft and telecommunications equipment, together with the requisite training to enable the Mexicans to use them in modern applications to drug detection, poppy eradication, and enforcement work. Our technical assistance together with certain commodities, is also helping them to establish and administer a network of forward bases in the important eradication areas and to improve intelligence collection, retrieval, and analysis. Training and salary supplements are provided to aid. the Mexican] Federal judicial Police to develop and hold a cadre of qualified narcotics agents."'

The United States provided Mexico with approximately $50 million in assistance funds for marijuana and opium poppy control from 1973 to 1977. Proposed assistance for 1978 was estimated to be about $13.3 million. Most of these funds are used to purchase aircraft and support services for the aerial eradication program. Aircraft supplied by the United States includes more than forty helicopters and thirty-five fixed-wing aircraft. In addition, some twenty to twenty-five DEA agents are assigned full time with the Mexican eradication effort to provide technical assistance. 112

As an enforcement strategy, eradication at the source may have some advantages over other reduction and control strategies. First, there is less potential for domestic police corruption. Second, as compared to interdiction and undercover efforts it is a relatively inexpensive way of preventing illicit drugs from entering the United States.

However, the criteria for determining the success of such an operation are uncertain. For instance, it is not known what quantity of illicit drugs were smuggled into this country from Mexico either before the program or now. However, the State Department and the Drug Enforcement Administration report that Mexican brown heroin, which formerly accounted for 80 to 85 percent of the heroin available in this country, has dropped to 60 to 65 percent of the total. Also, the retail and wholesale prices of heroin have reportedly increased as much as 50 to 75 percent along the U.S.-Mexican border, and increases of as much as 150 percent have been noted. 113 However, a rise in heroin prices is not in itself a totally accurate indication of the effects of a control strategy on heroin use. In fact, higher heroin prices may be, at best, a mixed blessing.

Eradication policies, when they successfully interrupt illicit drug production, as the Mexican opium poppy program has apparently done, may reduce the American heroin supply for a time, perhaps two or three years. In 1977, heroin-related deaths dropped approximately 40 percent in this country, a possible indication that the eradication program was having a beneficial effect.114 It was also reported by enforcement officials that American heroin supplies in 1978 were at their lowest level in several years; however, they admit they have little hard evidence on which to base that estimate. Moreover, as will be discussed later, reducing the heroin supply may lead to other social problems.

There are a number of possible side-effects to such an eradication program which must also be considered. For example, Mexican marijuana sprayed with paraquat has reached the United States; samples seized near the border after the eradication program began showed that 21 percent were contaminated with significant levels of paraquat.115 It has been indicated that paraquat may pose a significant health danger to those who ingest it. The Secretary of the Department of Health, Education, and Welfare announced a National Institute on Drug Abuse study in March 1978.

The report's preliminary findings suggest that if an individual smokes three to five heavily contaminated marihuana cigarettes each day for several months, irreversible lung damage will result. The report cautions, however, that there could be a risk of lung damage for individuals who use marihuana less often or in smaller amounts. Although these results are preliminary, the report concludes that Paraquat contamination may pose a serious risk to marihuana smokers. 66

Although one might argue that anyone who uses an illegal substance like marijuana must bear the consequences and the risks, the fact remains that as many as forty-five million Americans have tried marijuana and approximately eleven million are regular users. The preponderance of medical evidence to date shows that marijuana is a relatively harmless intoxicant when used moderately. Therefore, it seems ironic that an official program may itself produce a serious health risk for the individual smoker, when the ostensible reason for prohibition in the first place was to protect users from harming themselves.

The eradication strategy has another shortcoming as well: Experience has shown that as one opium supply system is diminished, another develops to take its place, at even more attractive profits due to the rise in heroin prices caused by the temporary shortage. Shortly after the Mexican eradication program began, for example, white heroin from the "Golden Triangle" in Southeast Asia began to enter the country. Drug enforcement officials suspect that many Turkish nationals are involved in this Southeast Asian traffic, which suggests that the Turkish opium ban may have been more effective with the crop than with the traffickers.

There is a larger problem, however, which holds the greatest potential danger. If the country designated for crop eradication efforts-in this case Mexico-is not part of a vigorous ongoing program, then its illicit opium production will probably be revived after the eradication efforts slow or stop. And it may revive at a time when other areas of the world are also producing large amounts of illicit heroin for the U.S. market. Then, rather than facing illicit heroin smuggling from only one major area, this country could be faced with two or more major supply sources. This possibility remains a strong one, because the eradication program depends upon the internal policies and politics of foreign governments, any one of which for any reason could end existing agreements and permit the former state of affairs to reappear.

Drugs and Crime

The persistent belief that illicit drug use is inextricably linked to crime has traditionally been advanced as a reason for laws and policies against particular drugs. A 1972 survey by the National Commission on Marihuana and Drug Abuse found that 58 percent of adults believed that marijuana users often commit crimes they would not have committed had they not used marijuana. In that same survey, more than 90 percent of those interviewed believed that, in the commission's words, "Heroin users often commit crimes to get the money to buy more heroin. -117

Crimes that relate to illicit drugs can generally be placed into four categories."" Two of these are not germane to this discussion; these are crimes among individuals involved in the illicit-drug distribution system-e.g., drug or money thefts by one drug dealer from another-and the crimes of simply using, possessing, or selling the drug itself, activities which are criminal by definition, since they are illegal.

Generally, the perceived drug and crime relationship which most concerns the public falls into two basic categories. The first category involves the pharmacological effect of a drug on the user. Historically, the presumed pharmacological connection between illicit drug use and assaultive crime has been the impetus behind antidrug laws. However, the evidence to date shows that alcohol and secobarbital-both legally produced psychoactive substances-are the drugs most likely to be involved with subsequent assaultive behavior. There is no substantial evidence to link the use of any other drug, licit or illicit, with assaultive crime. Some stimulant drugs, such as the amphetamines, have reportedly led to aggressive behavior in some individuals, but there is insufficient evidence to show a causal link between their use and assaultive crime.

The second category consists of revenue-producing crimes like burglary, shoplifting, and larceny. More recently, the use of heroin has been linked to crimes of this sort. The assumption is that the use of heroin invariably results in addiction; that heroin addicts require ever-increasing amounts of the drug; and that, due to the high cost of the drug on the American market, they must commit various crimes to support their use. As pointed out by the press and electronic media, the stereotypic portrait of the heroin user is of a dishevelled, trembling individual without motivation or legitimate source of income. However, while there is evidence to suggest that many heroin users may commit property crimes to support use, 70 nobody really knows how much crime is actually committed to obtain money to support heroin habits. Police and court records do not contain this information, and estimates-which are not particularly reliable-vary, calling it anywhere from 10 to 50 percent of all revenue-producing crimes, depending upon the type of offense and the location .71

A survey by the Law Enforcement Assistance Administration of ten thousand inmates of correctional facilities concluded that 13 percent of the inmates had used heroin at the time of their arrest. The same survey estimated between 13 and 60 percent of incarcerated criminals to have been heroin users ' 12 Although this kind of data suggests links between heroin use and crime, nothing was established in that survey to demonstrate that these individuals began to commit crimes because of their heroin use, nor does the study indicate whether the correctional population surveyed was typical of all those arrested, or of all committing crimes. It may indicate a tendency to jail heroin users in disproportionate numbers.

The studies which indicate that after the onset of opiate addiction individuals generally increase their criminal activity come closest to demonstrating a causal link between drug use and crime .73 These studies suggest that although an individual may have been a criminal before he used heroin, his heavy use led to an increase in criminal activity to meet the new income need. On its face, this implies a connection between heroin use and crime. However, there is an across-the-board increase in crime among men between ages eighteen and twenty-five, irrespective of drug use. 74 Thus, any data suggesting increased crime because of heroin use would have to correct for the general increase in crime for this age bracket.

The evidence relating to a heroin-crime link could best be described as showing that regular, heavy opiate use in the United States probably means a higher rate of revenue-producing crime by the addict. Because of its broad political appeal, however, this connection has been repeatedly overstated and even misrepresented to support tough enforcement policies. For example, Governor Rockefeller of New York told the legislature, by way of introducing a "get tough" drug law, that addicts were "robbing, mugging, murdering day in and day out for their money to fix their habit. "75 The state estimated that drug addicts committed a total of $6.5 billion per year in crime. ff that were in fact the case, it would have meant that these addicts were committing on the order of 44 million robberies, muggings, and murders each year in New York to support their habit, 400 times more than all of the reported crimes in New York, well beyond any conceivable total of reported and unreported.crimes in that state .711

Other data indicate that such figures had little factual basis. The Federal Bureau of Investigation's 1971 Uniform Crime Index reported a total of $1.3 billion in theft in 1970 for the entire nation. Thus, New York State's claim of $6.5 billion in crime losses for New York alone exceeded the national figure by five times .77 Another study, an economic analysis by the Hudson Institute of New York of the extent of heroin use nationwide, estimated that in 1970 there were 250,000 addicts who were responsible for a maximum cf $1.7 billion in crime .78

The New York figures disseminated by Governor Rockefeller's office were misleading in another important respect. In New York City, which is generally acknowledged to have more illicit drug use than any other American city, only a small percentage of the 110,000 reported crimes in 1973 (the year of the "tougher" New York drug law's passage) were attributed by police to heroin users. The New York Police Department estimated only 4.4 percent of those arrested for felonies against a person-which would include robbery, muggings, and murder-could be classified as heroin users, and only a small percentage of those users could be classified as addicts .79

In a 1974 study by the Crime Analysis Unit of the New York City Police Department it was found that among arrested criminal heroin users and nonusers, the 'rates of property crime were about the same, suggesting that there is little difference in patterns of property crime between them. However, the percentage of nonusers who committed serious crimes against a person was substantially higher than for heroin users.80 A Hudson Institute study reported even lower figures for assaultive property crimes among heroin users in New York City. It reported that less than 2 percent supported their heroin use by either robbery or muggings.81

These studies call into question the more dramatic statements about the extent of crime committed by those who use illicit drugs, particularly heroin. It does seem that property crimes are. committed by some unknown proportion of regular heavy heroin users not as a result of the drug itself but of the high cost of obtaining it in America's black market. Little hard statistical evidence exists to show a cause-and-effect relationship between the use of any drug and criminal behavior.

The Impact of Demand and Price. One goal of drug enforcement is to cut back the supply of heroin and thereby raise the street price, which in theory will drive heroin addicts into treatment. This concept has proved to be more unpredictable and complex than simple cause-and-effect scenarios generally concede. There are studies which demonstrate that such law enforcement policies may be a double-edged sword, at least in the short run.

A study of heroin prices in Detroit indicates that as heroin prices rise because of diminished supply there is a consequent increase in property crime. The study, performed by the Public Research Institute of the Center for Naval Analyses noted,

The relationship between drug addiction and criminality is complex and, because of the lack of data, hard to supply. This study has shown that the level of property crime in Detroit is in part affected by the price of heroin. When the price rises, crime rises. When the price falls, crime falls. This finding supports the general hypothesis that criminal heroin users as a class try to maintain their level of consumption in the face of price increases, and that they rely partly on property crime for the additional funds. The level of personal crime is little affected by the price of heroin. 82

The Detroit study also found that the areas hardest hit by the crime increases were the poor neighborhoods. It said, "We have preliminary evidence that poor people are victimized by addict criminals; thus, law enforcement policies that tend to raise the price of heroin hurt this income class ."83 The impact of many national policy shifts is often felt most acutely in neighborhoods with the least political power; this phenomenon is particularly profound with drug policies.

The reason why diminished heroin availability may lead to more crime relates to the economics of the illicit heroin market, which lies at the raw edge of laissez-faire capitalism. It rests on the fundamental economic principle of supply and demand: When the supply is less, the price is more. It should be kept in mind, however, that supply is but one factor governing the price of heroin; the purity of the drug and experience of the dealer, as well as other factors, also affect its price. Supply of the drug remains, however, one of the strongest single influences on price. A 1971 East Coast dock strike, for example, is believed responsible for a temporary heroin shortage and a consequent rise in street-level prices. After settlement of the strike, supplies increased and prices dropped, from a high in New York of sixty-two dollars per gram (for a two-gram purchase at 10 percent purity) to fifty dollars, all over a period of three months. 84

The predicted crime increase is of course based on the idea that if it costs more for a heroin user to support his use and he has no other income sources than crime, he will need to commit more crimes to support use at the same level. Also, because many users support themselves by selling small quantities of drugs there is the possibility that they could turn to other forms of crime besides dealing.

The American experience in Vietnam in attempting to eradicate use of a drug without fully considering the possible consequences is also instructive. When the army clamped down on marijuana use the demand for a drug among soldiers who had used it did not decrease; when they could not get marijuana, they turned in large numbers to another easily purchased and more easily concealed drug-heroin. It was a classic example of attempting to control supply without addressing demand.,"*

*The Vietnam drug experience also underscores other important points about illicit drug use, i.e., the setting and the availability. The setting in Vietnam, at once boring and very dangerous, created a situation which encouraged many individuals to use drugs there. Also, the fact that drug supplies were so plentiful contributed to their widespread use.

Despite these occurrences the notion persists that use of illicit drugs can be brought under control with enforcement policies, and that bringing it under control will in great measure solve the crime problem. In part, this notion persists because of the common stereotype of the heroin user as an unscrupulous individual willing to commit any crime for his next fix. Like all stereotypes, it does not encompass the diversity of the individuals who use drugs compulsively. Many illicit drug users and opiate addicts hold steady, legitimate jobs. Not all heroin users are, as previously assumed, heroin "addicts." Some, perhaps many, enjoy the euphoric effects of heroin but do not have a compulsive need for it."' Many, perhaps most, of these would not consider stealing in order to buy their drugs. These occasional heroin users, sometimes called "chippers," may, if mathematical projections are correct, outnumber compulsive heroin users by as much as six to one. 117 The very notion that they can exist is frequently met with skepticism because it is contrary to the well-entrenched belief that to use heroin is to be addicted to it.

Because heroin users are a diverse group with no uniform patterns of drug use and widely different ways of earning money, one cannot simply multiply estimated users by a single monetary figure to arrive at an accurate estimate of the amount of crime they commit. It is interesting, however, to speculate on what might happen to the crime rate if no heroin were available in this country. The Nixon administration, which like other administrations before it adopted the conventional assumption of a direct link between heroin and crime in many of its public utterances, did not find such a link in a private study it commissioned. While stating publicly that American drug-related crime amounted to $18 billion a year, a 1971 White House Domestic Council decision paper circulated within the Executive Office noted, "Even if all drug abuse were eradicated, there might not be a dramatic drop in crime statistics on a national level, since much crime is not related to drug abuse. -811

The difficulty of threading through all of the data on drugs and crime and arriving at any certainties will persist, as will the unpredictability of the effects of various enforcement policies. Despite these uncertainties, however, the drug-crime issue often invokes emotional responses having little to do with the facts. It is therefore likely that the presumed drug-crime link will continue to inspire "get tough" approaches to drug law enforcement in the future.

The New York Drug Law

During the early 1970s, a period when the country was greatly concerned about illicit drugs, New York State embarked on the strictest "get tough" enforcement approach to illicit drugs in the country. It is difficult to discern with precision how much of the zeal for the new law came from an angry and frustrated citizenry and how much came from the state's leaders, or how much they coincided. In any case, the new law received wide national publicity and was passed amid bold promises that it would squarely address the drug problem in that state.

There was general agreement that the practice of the 1960s of diverting low-level drug users into treatment and meting out harsher penalties for higher-level traffickers had largely failed. New York had heavily committed its resources to "civil commitment" during the 1960s, a prograin described -at the time as a model for other states to adopt. However, 1972 overdose deaths in New York were six times greater than they had been in 1960; the tougher new laws were regarded by many as a solution.

The new legislation, which went into effect on September 1, 1973, had two principal objectives. First, it sought to frighten illicit drug users out of using and drug dealers out of trafficking. Second, it aimed to reduce crimes commonly associated with drug addiction, i.e., burglaries, robberies, and theft; it was believed that potential illicit drug users would be frightened off by the law and that hardened criminals would be given long prison sentences, thus reducing the crime rate.119

The new law was aimed primarily at heroin trafficking, in particular at the lower-level "street" dealers. The law divided-heroin dealers into three groups, placed them in the highest felony category in the state, and required minimum periods of imprisonment plus mandatory lifetime parole supervision for each group. The groups were:

I. The highest level dealers. Those who sell one ounce or more, or possess more than two ounces. These dealers were subjected to the most severe penalty: a prison sentence of indefinite length, but with a minimum of between fifteen and twenty-five years and a lifetime maximum.

II The middle level dealers. Those who sell one-eighth of an ounce or more, or possess one or two ounces. These offenders were subjected to prison sentences of indefinite length, with a minimum term of between six and eight-and-one-third years, and a lifetime maximum.

III. Street level dealers, also referred to as "sharer-pushers." Those who sell less than one-eighth of an ounce or possess up to an ounce with the intent to sell. These dealers were made liable to prison sentences of indefinite length, with a minimum term of between one year and eight-and one-third years, and a lifetime maximum.110

The mandatory minimum prison sentences were made a major provision of the New York law, even though such sentences had previously been abandoned in federal and state drug laws. Restrictions on plea bargaining were another controversial aspect of this law; a person indicted on a low-level felony charge was not permitted to plead guilty to a misdemeanor, a provision which eventually led to court congestion and a slowdown of the judicial process as well as precluding any cooperation of suspects with police seeking information on higher-level dealers and suppliers.

New York State became in effect a laboratory in which the effectiveness of a "get tough" drug law could be examined. By comparing the drug-related statistics for New York before and after the new law went into effect, and by examining similar statistics from neighboring states whose laws had not changed, comparisons could be drawn and evidence could be weighed. A study commissioned by the Association of the Bar of the City of New York to find out the effects of the law concluded that neither heroin use nor the crime commonly associated with it declined in New York State as a result of the tough new legislation. With respect to heroin use, the study found the following:

Heroin use [in New York City] was as widespread in mid-1976 as it had been when the 1973 revision took effect, and ample supplies of the drug were available.

The pattern of stable heroin use in New York City between 1973 and mid-1976 was not appreciably different from the average pattern in other East Coast cities.

The new law may have temporarily deterred heroin use [in New York City and other New York State jurisdictions]-

There is no evidence of a sustained reduction in heroin use after 1973 [in New York State as a whole or in upstate New York].

Most evidence suggests that the illegal use of drugs other than narcotics in New York City was more widespread in 1976 than in 1973, and that in this respect New York was not unique among East Coast cities."

With respect to crime, the study found:

Serious property crime of the kind often associated with heroin users increased sharply [in New York State] between 1973 and 1975. The rise in New York State was similar to increases in nearby states.

There was a sharp rise in non-drug felony crimes between 1973 and 1975 [in New York City]. However, the rise was apparently unconnected with illegal narcotics use: non-drug felony crimes known to have been committed by narcotics users remained stable during that period.

The available evidence suggests that the recidivist sentencing [predicate felony] provisions of the 1973 law did not significantly deter prior felony offenders from committing additional crimes [in New York City].92

In addition, the study found little enthusiasm for the 1973 law within the criminal justice system.

Many judges and prosecutors felt that the mandatory minimum sentencing provisions reduced the of individual treatment of offenders and, therefore, the quality of justice.

Some were troubled because the penalties level drug traffickers were more severe than those applicable to crimes that most citizens consider heinous.... New York City prosecutors tended to believe that the 1973 law was forcing them to scatter their limited resources on what they considered relatively minor offenses. (Note: The Class III (lowest level) felony accounted for 41% of all drug indictments in New York City and 61% of the trial workload.) ... As for the police, the New York City Police Department believed that a policy of all-out street level enforcement would be only marginally productive and would hopelessly inundate the courts. 93

Because of the large volume of street-level drug activity in New York City, the New York City Police Department had the opportunity to make large numbers of street-level arrests under the new drug law. It did not elect to do so, for the reason that past efforts had been perceived as ineffective. As the study recorded,

In 1969, the Department had implemented a policy similar to the one implied by the new law. Large numbers of low-level drug arrests had been encouraged, and the number of felony drug arrests had risen from 7,199 in 1967 to 26,379 in 1970. In 1971, however, Police Commissioner Patrick Murphy abandoned this policy because (a) only a small percentage of the arrests were resulting in prison or jail sentences and (b) the mass arrest policy did not appear to be having a significant impact on the drug traffic. In the Department's view, the mass arrest policy was also creating serious workload problems for the courts. Immediately after the change in policy, arrests fell sharply; in 1973, there were only a little more than one-third as many as two years earlier.... According to Donald Cawley, New York City Police Commissioner when the 1973 law became effective, the Department decided not to change its enforcement policies in response to the 1973 legislation. The Department continued to focus its enforcement activities on the middle and upper levels of drug distribution rather than upon street-level drug activity."

The study concluded, "The key lesson to be drawn from the experience with the 1973 drug law is that passing a new law is not enough. What criminal statutes say matters a great deal, but the efficiency, morale, and capacity of the criminal justice system is even more of a factor in determining whether the law is effectively implemented."95 In addition, the study noted that implementation of the new law, which included the hiring of new narcotics case judges, prosecutors, defense attorneys, and support staff, cost the state of New York $32 million.

What the study of the New York law indicates is that there are serious limits to what any law can control. It is apparent now that the rhetoric which helped create a climate for the new law-i.e., statements which attributed exaggerated amounts of crime to drug addicts-was also in part responsible for the failure of the law to live up to expectations. This is not to suggest that law enforcement approaches to illicit drug use should be abandoned because they fail in what they attempt to do. Rather, it means that our expectations should be realistic, because our ability to deal with these complex problems is limited. In New York, administrative problems, court congestion, the doubts which many judges and prosecutors had about the new law, and the difficulties of policing illicit drugs under any circumstances all joined together to reduce the law's effectiveness. The conclusion is that this law changed very little in New York.

The Impact of Drug Law Enforcement on Drug Using Behavior

An interesting contrast to the New York "get tough" law is the Oregon law of 1973 which "decriminalized" the possession of a small quantity of marijuana. The state took this action following the recommendations of the National Commission on Marihuana and Drug Abuse. The new Oregon law-and those in other states which subsequently enacted similar legislation-eliminated the possibility of imprisonment for simple possession of an ounce or less of marijuana. A civil fine, similar to a traffic citation, was substituted for the former criminal penalties. There were to be no criminal arrests for such offenses nor would there be court arraignment.

Critics of the new law predicted an explosion of both experimental and regular marijuana use in Oregon. This prediction was rooted in the persistent belief that it is primarily the law that restrains people from using illicit drugs-the same view which in part prompted the tough New York law.

However, annual surveys conducted in Oregon during the four years following enactment of the new law have shown little change at all in marijuana use patterns."" Marijuana users have increased gradually in number, but this is true across the nation. Regular users have remained relatively constant, a pattern that is also typical of other state and national trends.

Since Oregon passed its law, only ten other states have adopted the reduced penalty for possession of small amounts of marijuana, despite the preponderance of available evidence that marijuana is not a major health hazard when used moderately and that criminal laws apparently do not deter millions from using it.

The New York law was aimed primarily at heroin, and did little, if anything, to change use patterns there. The Oregon law was aimed at marijuana, and it too did little, if anything, to change use patterns. What both these experiences suggest is just how little the criminal law influences an individual's decision to use a particular drug, illegal or not. Similarly, the prohibition of alcohol in the early part of this century did little to prevent millions of Americans from consuming it.

These recent legislative developments underscore another point. Generally, the public and its policymakers have focused narrowly on eliminating the consumption of one or two drugs in particular, without giving much thought as to the effect of this restricted concentration. These policies seem to be based upon the theory that once marijuana or heroin or cocaine is eliminated then the problems of drug abuse in the United States will be solved.

In 1971 the Institute for Defense Analyses (IDA), an organization established by the joint Chiefs of Staff to develop independent information and analysis, examined aspects of illicit drug use in this country. The IDA study concluded that heroin addicts are probably willing to switch to amphetamines, barbiturates, and other drugs should heroin become prohibitively expensive or unavailable .97 Through studies of the urinalysis screening program of inmates of the Washington, D.C. jails, the Institute found that before the East Coast dock strike of 1971 nearly 20 percent of the inmates tested positive for opiates. During the strike, however, this percentage dropped to zero while that for barbiturate and amphetamine use rose from its former 3 or 4 percent level to nearly 20 percent.,,,, While it is not conclusive, the study did underscore the fact that we have very little hard data on the habits, preferences, alternatives, and attitudes of heroin users. Models, analyses, and other information offer a limited glimpse of these factors, and then for only a limited time frame.

This study and other more recent ones"" have suggested that the usage patterns for heroin may be more flexible than is generally believed, and therefore less vulnerable to strategies that focus on the elimination of supply. Although better domestic enforcement, border control, and foreign eradication efforts might tighten the heroin market to some extent, any long-range improvement as regards drug-related problems remains uncertain. Despite this, and the limited ability of the criminal justice system to alter human behavior, when laws fail to discourage an activity' that the majority in a society deems undesirable the natural impulse is to toughen them to attain the desired effect.

Concluding Thoughts

Since federal antinarcotics laws have been in force in this country for more than sixty years-and local ordinances for more than a century-it seems appropriate to ask what such laws can or have accomplished. if we were expecting our drug laws to eradicate illicit drug use, then the local, state, and federal antidrug effort must be judged an abject failure. Tough laws have not been a solution to the drug abuse crisis. If, however, one was hoping for a containment policy, then enforcement efforts might be judged a partial success, because only a relatively small number of people use heroin, the drug with which we seem most concerned today. This conclusion, of course, is impossible to prove. Moreover, mere containment of heroin use was never the stated goal of our drug control efforts.

The best way to judge the value of our present drug control policies is to weigh their benefits and costs. This may give us some clues with which to better analyze our current policies and reach a clearer understanding of their worth. In making this assessment, it is natural that drug law enforcement be examined more critically than other approaches, such as treatment or education. Drug enforcement has received the majority of the available time, money, technology, and hope and faith for the past seven decades. It is not unreasonable to say that law enforcement efforts have been given the greatest possible opportunity to respond to illicit drugs, and that those efforts ought to be evaluated in light of their performance.

What then are the costs of drug law enforcement? Several can be identified: money outlays for enforcement; such side effects as the stigma of arrest, the risk of impure drugs and associated health hazards, the creation of a black market, a potential rise in non-drug crime rates, and the risk of police corruption; the alienation of many segments of society; selective enforcement patterns; diversion of scarce resources; erosion of the rule of law; invasion of privacy; reduction of personal freedom; hostility between police and the community; and potential police perjury and official deception. These are some costs generally ascribed to the current prohibitionist policy approach to particular drugs.

The benefits are less specific and less provable. We can point to the arrest of individuals who traffic in illicit drugs as a benefit, at least in the small percentage of cases where arrest is followed by conviction and punishment But we cannot point to drug enforcement generally and argue that it has had a dramatically successful impact in prohibiting these activities. One benefit often cited is the channeling into treatment by means of criminal justice diversion of illicit drug users who might otherwise not have entered; however, this process may have a negative impact in deterring voluntary applicants from seeking help (see Staff Paper 3, "Heroin Treatment", below). Law enforcement efforts may also have had an impact in containing the spread of illicit drug use during years when strong penalties have been on the books and substantial efforts were made to enforce those laws. While drug law enforcement efforts undoubtedly do harass some low-level operatives in the illicit drug market and make them afraid to deal openly on the street, this may be a marginal benefit, in that it makes it likely that users will only become more cautious and harder to detect. While ease of availability does appear to have some influence on the numbers who will use a particular drug, making availability harder does not eliminate the demand for a particular drug or psychoactive substances generally.

The key question remains: Is the current system of drug control worthwhile? An abundance of data has been collected-some of it presented in this chapter-but it is consistently contradictory, imprecise, of questionable reliability, and laden with the values we impute to it. Nevertheless, we would conclude that the costs are greater than the benefits derived. Part of the difficulty with criminal law as a control measure lies in the fact that it has been consistently oversold as a cure for illicit drug use. A serious consequence of this is that drug law enforcement has rarely been viewed dispassionately; rather, it has been the object of either heated attack or staunch defense, and rarely the object of thoughtful analysis.

Our current drug control policies exact a heavy toll in social costs, while data showing a solid return on the investment are difficult to find. This imbalance has been known for some time, but the knowledge of it has not materially changed our drug control policies and laws. The basic policy established a century ago continues today, and there are no immediate prospects of the government, federal or state, seriously reconsidering its heavy reliance on the criminal justice system to deal with illicit drugs.


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