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FIRinG Line
HOST: WILLIAM F. BUCKLEY JR.
GUESTS: THOMAS SZASZ, ROBERT SWEET, ETHAN NADELMANN,
STEVEN DUKE
SUBJECT: "WHY WE SHOULD LEGALIZE DRUGS" PART I
FIRING LINE is produced and directed by WARREN STEIBEL.
This is a transcript of the Firing Line program (#1073/2523)
taped in New York City on January 16, 1996, and telecast
later on public television stations.

copyright 1996 FIRING LINE

MR. BUCKLEY: We are here for three sessions on drug policy in America.
National Review, the journal I serve, has declared in favor of classifying the war
on drugs as a failure and moving on toward some form of legalization. The
National Review issue has essays written by six contributors, four of whom are
with us. Today we will focus on the cost of the war against drugs and why in
our judgment that war is lost; next week, on approaches to legalization; and
the final program on the political problem of drug reform.

Ethan Nadelmann is the director of the Lindesmith Center in New York,

where he continues his studies and his writing on drug policy. Professor
Nadelmann attended McGill University, received his doctorate in political
science from Harvard, and studied also at the London School of Economics.
He served on the faculty at Princeton and is the co-editor of Psychoactive Drugs
and Harm Reduction, and the author of numerous papers and several books.

Robert Sweet is a judge in the District Court of New York. After graduating
from Yale and the Yale Law School, he practiced law, served as assistant
district attorney, and in the administration of John Lindsay as deputy mayor
of New York City. He was appointed judge in 1978 and has served as
chairman of the Bar Association's Special Committee on Drugs and the Law.

Thomas Szasz was born in Budapest, came to America in 1938, attended the
University of Cincinnati, where he received his medical degree. He is
professor of psychiatry at SUNY Health Science Center in Syracuse and is the
author of many books, .including The Myth of Mental Illness: Foundations of a
Theory of Personal Conduct.

And finally, Steven Duke is a professor of law at Yale. He is a graduate of the

University of Arizona and of the Yale Law School. He co-wrote the book,
America's Longest War: Rethinking Our Crusade Against Drugs, and has written
widely in many journals on drug policy and other matters.

We're off! Mr. Nadelmann: When you say we have lost the war on drugs,
how do you document this loss?

MR. NADELMANN: Well, I think what you have to do is start looldng at

how long we have been in it. We started this war at the beginning of the
century, criminalizing opiates and cocaine and then marijuana. Now it's been

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going on for about 80 or 90 years, and by any criteria, it appears to be a
failure. If this war on drugs had worked, we would not have millions, tens of
millions of Americans using illicit drugs today. If this war had worked, we
would not have hundreds of thousands of people behind bars. If this war had
worked, we would not be spending tens of billions of dollars each years as a
society to try to deal with illicit drugs.

MR. BUCKLEY: Now I asked you a rather more specific question. Since the
war on drugs was declared, what, in 1984--

MR. NADELMANN: Well, the most recent one--

MR. BUCKLEY: Seventy-four, 74. By Nixon.

MR. NADELMANN: Well, we have a Nixon-declared war on drugs in the

early 70s, we have another war on drugs beginning in the late '80s, we've had
wars on drugs before that even.

MR. BUCKLEY: Well, I think it's interesting to focus on the period during
which the intensification of this effort became so conspicuous. I think Lyndon
Johnson had a budget of $10 million or something like that. It's up a
thousandfold now. So in terms of the last 20 years, what is it that convinces
you especially that the war is not working?

MR. NADELMANN: Well, Bill, look at it this way. The claim has always
been made that we could somehow keep drugs from being produced around
the world and thereby deal with our drug problem. We have never succeeded.
Drugs continue to be produced virtually throughout the world, throughout
South America, throughout Europe--cocaine, marijuana, heroin, what have
you. The claim has been made that we could keep drugs from coming into the
country. Well, once again we have spent billions on the Coast Guard,
Customs, Air Force: hasn't worked. The claim has been made that if we throw
hundreds of thousands of people behind bars, that somehow we could deal
with our drug problem that way. Once again drug use is increasing, drug abuse
is increasing. That hasn't worked. So one claim after another has been made
about how we can win this war on drugs, and repeatedly, the evidence for
victory has not emerged.

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MR. BUCKLEY: Judge Sweet, let me ask you this. The war on drugs seems
not to have any reference at all to stiff sentences. As I see it, no matter how
stiff it is, the incidence of transgressions don't seem to vary, do they?

JUDGE SWEET: Well, since this intensification period that you've

mentioned, when the society really seemed to adopt, or at least Congress
adopted, the view that the more stringent, the more draconian the
punishment, the more effective the war, since that period, which included the
mandatory minimum sentencing, the sentences have been dictated by the
sentencing guidelines on the one hand, and the mandatory minimums on the
others. And I think it's fair to say that those two methods have deprived the
judges of the discretion which they exercised formedy and has resulted in a
much more stringent punishment, longer penalties with, as Ethan has just
indicated, no visible effect on the people who are engaging in the practice.
The only thing that has been produced as a result of this enhanced
enforcement is to escalate the price of the drugs and to provide a very alive,
huge, underground financial market, a major industry that is untaxed and so
on. So it seems to me that the increased punishment, the idea--even getting to
the point in 1988 of a death penalty under certain circumstances, has been
unavailing in changing American habits, American attitudes. So from the
point of view of law enforcement, I think it has failed.

MR. BUCKLEY: My impression, Dr. Szasz--is this correct or not?--my

impression is that one index of the failure of the war is that in fact drugs have
been getting not more expensive, but cheaper, which suggests that their
growth in other countries and the capacity to infiltrate an essentially porous
nation like ours is not working. Am I correct in that?

DR. SZASZ: Well, you are certainly correct in that, and certainly what isn't
said is correct: It is self-evident that from the point of view of controlling their
views, the war on drugs is a failure. But I don't like to dwell on that because
to me it is self-evident that the state as a political apparatus cannot control
what John Stuart Mill called self-regarding behaviors, in other words, what you
put in your body. So I would also Wee to tum it around and point out that
the war on drugs is a howling success for all the millions of people who make
money off it, including all the growers, all the distributors, all the psychiatrists,
all the doctors--

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MR. BUCKLEY: [laughing] Well, we are not talking about their success.

DR. SZASZ: But this is very important--

MR. BUCKLEY: We're tallcing about the explicit objectives of that war are
not worlcing.

DR. SZASZ: But one cannot take that seriously, because to me this is like
Ludwig von Mises pointing out in 191 7, before the Soviet Union was even
formed, that Soviet economy cannot work. But it has worked wonderfully for
the Politburo for 80 years. And I think that's what we have. It is working for
Congressman Rangel, it's working for Newt Gingrich, it's working for Mrs.
Clinton. Look at their recent books. They are gushing on and on and on
about drugs. Republicans and Democrats agree on this like on nothing else:
Drugs are a plague, are an evil. So it's worlcing very, very well. There has not
been an American politician who has gotten up and said it's not the
government's business what you put in your body--

MR. BUCKLEY: Well, yes, but--

DR. SZASZ: --which was the case from 177[6]--

MR. BUCKLEY: --we're talking about slightly different things. I am saying

the war was declared intending X, Y, and Z, and--

DR. SZASZ: But if you believe that, you'll believe anything.

MR. BUCKLEY: --A, B, and C happened, and I don't deny this, but
meanwhile on the factor of X, Y, and Z, I think I am correct in saying the price
of cocaine was less expensive a year ago than it was 10 years ago, and doesn't
that always indicate that pressure against its circulation is not working, right?

MR. NADELMANN: Well, look at, Bill, the stats on heroin. The price has
gone down dramatically in the last 10 years, while the average potency of
heroin on the streets has gone from about four percent to about 40-50
percent. So we've had a resounding failure on our heroin policy. You have
virtually Afghanistan, Palcistan, Khazistan--almost every country in the world

© Board of Trustees of the Leland Stanford Jr. University.

whose last name ends in "stan" is now producing large amounts of opium and
heroin--

MIL BUCKLEY: Yes.

MR. NADELMANN: --and that's just going to increase over time. So your
analysis is right.

MIL BUCKLEY: Let me ask Professor Duke this. People, in assessing the
cost of this war, tend to say, Well, okay, we are spending $17 billion by the
federal government every year and so much by the states. But there are other
ways of measuring costs of this, and you have written about those. What kind
of thing do you have in mind?

MR. DUKE: Well, certainly the money that is spent by the consumers, which
is estimated to be around $50 billion, and some say even more, that's a major
cost. The crime that is generated by drug prohibition is a huge cost.

MR. BUCKLEY: Now wait a minute. That $50 billion is a cost in the sense
that it is not spent on something else?

MR. DUKE: Yes.

MR. BUCKLEY: But it is preferred to something else by the people who

spend it.

MR. DUKE: Yes. But they also have to acquire that money, and most of
them acquire it illegally.

MR. BUCKLEY: Okay.

MR. DUKE: So they commit crimes in order to generate the money to buy
the drugs.

MR. BUCKLEY: Right.

© Board of Trustees of the Leland Stanford Jr. University.

MR. DUKE: Now, some of it is made by selling drugs, but a lot of it is made
by robbing and stealing.

MR. BUCKLEY: Yes.

MR. DUKE: And so non-users pay a lot of the crime costs that are generated
by the high price of the drug. Even though as you point out, the price is lower
than it used to be, it is still very high in terms of--

MR. BUCKLEY: Yes. Correct, correct. So we have the cost of the war itself,
the cost of crime. Would you attach a value to the lost liberties of people who
are affected by this rampant crime?

MR. DUKE: Certainly. We're all very much affected by it. We live in a state
of fear, many of us, that is to a large extent generated by the drug war in that
much of the violent crime is either part and parcel of the drug business, or it is
generated by people who are robbing and stealing in order to get money to
buy the drugs. And of course much of the crime exists because the police are
distracted by drug crimes and drug prosecutions and drug busts and drug
forfeitures and various other activities that are essentially unproductive. They
are counterproductive in terms of the kinds of crime that affect most of us.

MR. BUCKLEY: You mean the fact that we preemptively have used them for
that purpose rather than for other purposes.

MR. DUKE: Yes, and of course we stack the deck now because through the
forfeiture laws we reward police and police departments by giving them some
of the money, some of the property that they acquire through forfeiture.
That's a reward that's built in that doesn't apply if they are investigating rapes,
murders, robberies, burglaries and so forth.

MR. BUCKLEY: So would you go so far as to say this: Even criminal activity
that is unrelated to the acquisition of money with which to buy drugs is
affected by the war on drugs in the sense there are fewer people around there
to restrain it.

© Board of Trustees of the Leland Stanford Jr. University.

MR. DUKE: Absolutely. And also there is less jail and prison space for .
robbers and rapists because they are filled up with drug sellers and drug users,
and there is less ability of the courts to process criminal cases, because the
courts are inundated with drug cases. The entire criminal justice system is
overburdened, weighed down with drug cases so that it can't process any
criminal case effectively.

MR. BUCKLEY: Okay. Well, that's certainly a cost. What about the cost to
our traditions of civil liberty, civil order, and due process, Judge Sweet?

JUDGE SWEET: There have been a number of writers on the subject. One
has characterized the rulings of the Supreme Court in the area of Fourth
Amendment protections as the drug war exception to the Fourth Amendment.
The law in that area has moved toward accepting stops, accepting arrests,
accepting, for example, an arrest on the basis of an informer known to be
unreliable. The law has moved to lessen the protection of the citizen under
the Fourth Amendment.

MR. BUCKLEY: The Supreme Court has recently agreed to rule on that,
hasn't it?

JUDGE SWEET: Well, they have ruled in various ways. There have been the
bust stops, there have been a whole series of-- the law with respect of how high
you can fly in order to surveil, that sort of thing--all of which are cutting away
at the Fourth Amendment protections. I think that is a real part of it. There
is also, laws have been used in a way to interfere with a relationship between
defendant and lawyer, and so I thinlc the liberties of our society have been
damaged by this in just the way that Professor Duke has mentioned. It's not
only that certain of our protections have been eroded, but also our safety has
been diminished because of the turf wars, because of the random violence,
because of the entire violence that surrounds this. There is another piece of it
too, and that is the cost that we suffer as a result of the drug war. If you
assume, as we have now, slightly under a million people in jail now in this
country--which is a shocking statistic in and of itself. We have the highest jail
rate of any of the civilized Western nations by far. And that is another
indication that this approach, this minatory, lock-'em-up approach is not
working. But there is also a cost to it. If you assume, as the statistics I guess

© Board of Trustees of the Leland Stanford Jr. University.

are generally that maybe 50 percent--40 percent of those who are in jail are in
jail because of an enforcement of the drug laws. And if each one of these
people costs, as they do, $25,000-$30,000 per cell, you are getting into
astronomical numbers. And the substance of the attack from the point of view
of the enforcement budget, from the point of view of the corrections budget,
the penal budget, from the point of view of the loss to the society--I mean, the
numbers are appalling. And when you see this first up-- Ive had a case
recently where there was a ring here in New York City that was distributing
drugs, and they were netting $2 million every two weeks. Now the numbers,
the dollar value that we are losing because of this trade, is incredible when you
take all these things together.. And when you take it all together, it seems to
me the economic case is overwhelming that it just doesn't make sense.

MR. BUCKLEY: Let me ask Dr. Szasz this. Let's assume that the drug war
has kept some people from using drugs who might otherwise have used them.
Wouldn't you count it as a benefit? Wouldn't you think we would be bound
to calculate the benefit of those deprivations as an argument on the other
side?

DR. SZASZ: Well, I personally wouldn't. People who believe in the war on
drugs probably would. I just don't think it's any business of the government
what a competent adult--

MR. BUCKLEY: No, but that's a different point.

DR. SZASZ: --puts in his or her body.

MR. BUCKLEY: Look, it costs, I think, $1 7,000 a year to have drug

treatment. Now let's say 100 people didn't use drugs within a few blocks of
where we are sitting because of these laws. So that much money has been
saved, has it not?

DR. SZASZ: Mr. Buckley, you are drawing me into a discussion of the fact
that we have a socialized medical system, a kind of a communist medical
system where I have to pay for your self-induced disease, which is another
wrinkle in this.

© Board of Trustees of the Leland Stanford Jr. University.

MR. BUCKLEY: No, we're--

DR. SZASZ: There is no drug treatment. There is no drug disease. Taking

an illegal drug is not a disease. We don't have a war on drugs. The whole
language here is wrong, because you can only have a war on people, so the war
is on the American people. Drugs are an inanimate object.

MR. BUCKLEY: You're elevating this to a completely different mode. I am

talking about stated objectives and what actually is happening. I am saying
wouldn't people on the other side say you have to--

DR. SZASZ: -- I agree.

MR. BUCKLEY: --account in our war against the war on drugs for the people
who have not taleen drugs?

DR. SZASZ: Well, I go one step further on the other side. You see, the other
side, although it doesn't say this, it clearly indicates that it is waging a kind of
a holy war, that drugs are an evil, and that's why I have never argued
particularly that the war on drugs has failed, because that to me is like arguing
that Mother Teresa has failed, because she hasn't made a dent in poverty, but
it would be foolish to argue that she has failed. She is a waging a war on a
terrible condition. So it doesn't matter whether she fails or not. That malees
her already a sanctified figure. I thinle this is a posture that many American
politicians have taleen: I am waging a war on evil, the evil empire. Instead of
communism we have heroin.

MR. BUCKLEY: Well, I think they are in a position to malee a pretty

dramatic case about the evil consequences of drugs on some people. Now as I
understand, you and Mr. Nadelmann and Mr. Duke talk about the fact that
most people who experiment with these toxic drugs put them away after they
have sort of grown up. Some don't. Now although I agree with you that to
focus all of our energies on the problems of those who do is incorrect, still we
have to talee into account the public question, does the war on drugs keep X
number of people from consuming drugs?

© Board of Trustees of the Leland Stanford Jr. University.

DR. SZASZ: No, but does the war on drugs incite people on the Mark Twain
principle or the Biblical principle that forbidden fruit tastes sweeter? When I
went to medical school 50 years ago, more than 50 years ago, I never heard of
marijuana. How come? What happened in this country?

MR. BUCKLEY: Bad medical school. [laughter]

DR. SZASZ: No, it was a representative medical school. You know very well
that marijuana in some ways is a consequence of the disappearance of alcohol
prohibition.

MR. BUCKLEY: How do you weigh in on that, Mr. Nadelmann?

DR. SZASZ: The bureaucrats needed a new target.

MR. NADELMANN: Well, look at it this way. Among the people who
would be drug addicts if you legalized drugs--

MR. BUCKLEY: Yes.

MR. NADELMANN: --most of them are already drug addicts. The people
who are most likely to develop problems with drugs are also the same people
who are least likely to be deterred by our drug prohibition laws, right? That's
on the one hand. On the other hand, the vast majority of Americans, we
know absolutely, do not need a drug prohibition system to keep from
becoming drugs addicts. the vast majority of Americans-- We already live in a
society--alcohol, cigarettes, prescription drugs, over-the-counter drugs, all sorts
of things are widely and readily available. We have learned how to live in a
society with drugs, where the vast majority of us don't have problems with it.
And quite frankly if we were to legalize the vast majority of drugs tomorrow,
most Americans would never have a problem, would not use these things. So
what you're talking about, Bill, is a small subset of Americans. Granted, there
is a small percentage of Americans, one percent, half of one percent, one-and-
a-half percent, for whom the drug prohibition system does prevent them from
becoming a drug addict. Then the question becomes, Do we really need the
prohibition system or are there other ways to keep those people from
becoming drug addicts without relying on a $20 billion to $50 billion-a-year

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© Board of Trustees of the Leland Stanford Jr. University.

prohibition system?

MR. BUCKLEY: Good point. Good point. And Mr. Duke, you speculated
on how many people would be likely to take the option of buying drugs if they
were legal, i.e., that one percent would grow to what? Or do you know? Are
there any grounds to speculate?

MR. DUKE: Well, I would concede that it's plausible that the number of
users of illicit drugs would perhaps double or triple at least provisionally,
experimentally. But we have to consider also that the drugs that would be
consumed in a legalized system would be very different drugs and far less
dangerous, far less addicting, because they would be available in less potent
forms. And they would be labeled, they would be regulated so people wouldn't
be poisoned by drugs, so that the bad effects on health from drugs in a
legalized system would be far less serious than they now are. So it seems to
me, clearly, if we had twice or three times as many consumers of cocaine,
heroin and marijuana as we now do, which seems to me very unlikely, the
health of the nation would still be better off.

MR. BUCKLEY: So if we went-- The figures I think you have used are one
million cocaine users, right, and five million marijuana users?

MR. DUKE: There are, according to government studies, approximately three

million casual users of cocaine today and half-a-million--

MR. BUCKLEY: Regular users.

MR. DUKE: --addicts or weekly users. Marijuana, 5-10 million.

JUDGE SWEET: There is another piece of this, Bill, that it seems to me is

relevant, and that's the experience with the other prohibition we tried, alcohol
prohibition. Now obviously it's very hard to get authoritative information
about the use of alcohol during the Prohibition period, but the best
information that I've seen indicates that immediately after Prohibition there
was a fall-off in consumption. And these are statistics using objective means
like hospital entry applications and that sort of thing, hospital treatment and
so on. Immediately after Prohibition there was a drop-off and then it built

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back so that about halfway toward the end of Prohibition the use of alcohol
was just about what it was before Prohibition. And then after Prohibition
ended, again the usage stayed more or less level. And I think that supports
Ethan's theory that. this group that you're talking about that are affected by
the formality of the legal structure and thereby not using the substance, is a
very, very thin group.

MR. BUCKLEY: Yes, you probably should mention also that during
Prohibition a lot of people switched from beer to the hard stuff because in
terms of cubic content, they could get more of an alcoholic high off it, which
would not be the case if they had had the range of possibilities that they had
before. .

JUDGE SWEET: And you have the same question that Professor Duke has
just mentioned, that once you get into the illegality of it, the substance itself
becomes much more dangerous, both in terms of health, adulteration, potency,
all of those things. So it seems to me that even for those people who are
presently--assuming that there are people who are presently unwilling to
engage in drug use because of the present legal framework--even as to that
group, it seems to me, the structure hasn't worked.

MR. BUCKLEY: Thank you, gentlemen; thank you, ladies and gentlemen.
Come back next week and we'll continue.

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