"We found that the nation lacks the necessary information to gauge the effectiveness of current enforcement activities. For a program of this magnitude, that is simply unconscionable." Charles F. Manski, chair of the National Research Council committee of the National Academy of Sciences, April 13, 2001, Washington, D.C.

A POLICE VIEW OF DRUG USERS

It seems to me that the conclusion reached by Professor Manski and committee on United States drug control efforts also applies to California drug control policies, since they mirror those of the national government.

My own philosophy on drug enforcement began to take shape almost half a century ago when I began my police career as a foot patrolman in Harlem in New York City. The precinct I was assigned to had the highest crime rate in the city. In the early 1960's what was referred to as the "Heroin Epidemic" swept through Harlem. Thousands of people seemed almost overnight to become addicted. The results were dramatic and terrible. Whole families and streets and neighborhoods in Harlem were overwhelmed with the spread of addiction. Many addicts drifting into comas were rushed to hospitals and intense efforts were made to save their lives, yet numerous addicts died of overdoses. Some were children barely into their teens. Police officers, at the urging of the NYPD, became willing soldiers in the fight against drugs, making thousands of arrests. Yet as the years passed, even the most ardent cops realized that police efforts were not reducing drug selling or drug use and the accompanying crime and health damages related to the illegal drug trade. In fact, some of us were convinced that our efforts actually stimulated the illegal drug market and increased violence in the illegal drug trade.

Nevertheless, the commitment of the New York City Police Department to increase drug arrests continued. Police officers were not trained to think in terms of policy, nor did we. Although there were a few treatment programs available, we were cynical about their effectiveness. One reason for our skepticism was that we had been trained from our first days in the police academy to view all drug users as addicts or on the road to addiction. We were also conditioned to believe that all drug users committed crimes either under the influence of the drugs or to obtain money to purchase drugs. Since drug use was illegal, the conduct of users and sellers was secretive and police and public perceptions of their behavior were formed on the basis of stereotypes. And that difference from other serious crimes creates major difficulties in how the police approach drug offenses.

California's alcohol and drug abuse treatment policies, like those of other states throughout the nation, are largely driven by policies of the federal government. For nearly a century, incremental increases in federal control, funding, regulation, and the preeminence of federal law over state and local laws have diminished the discretion exercised by state and local governments in the area of alcohol and drug controls. Unfortunately, the finding by the National Research Committee on United States drug policy cited above received little national attention. It appears to have also been virtually ignored by California drug control policy makers, who suffer from the same "lack of necessary information" as those who set national drug policies.

OVERVIEW OF FEDERAL CONTROL

In 1998, as President William Clinton's administration drew to a close, the White House Office of National Drug Control Policy requested the National Academy of Sciences to assess data on the impact of federal drug control policies. The Academy delegated the task to the Research Council of the Academy, which formed the "Committee on Data and Research for Policy on Illegal Drugs." In 2001, this committee, chaired by Professor Manski, reported that "the data were unavailable to inform the impact of government drug control policies and that conducting a program of such magnitude without providing data on its impact was unconscionable." The social scientists added, "In particular, the report neither endorses nor condemns current drug control policy."

It is fair to assume, however, that the committee was clearly uncomfortable in confirming countless government declarations of progress or victories in the "war on drugs," and equally uncomfortable in suggesting that evaluating the evolving government programs was as simplistic as measuring annual rainfall. Nevertheless, the statement by the Chairman, Charles F. Manski, cited at the beginning of these remarks suggests that these objective scholars view the escalation government drug control policies to the present magnitude without adequate measurement data as to their impact as unconscionable, was startling. Equally startling was the lack of attention paid to the report by the news media and the Bush administration. The inference from the committee's conclusion is that hundreds of billions of taxpayer dollars were spent and millions of Americans arrested and incarcerated without any clear notion by the government of the impact.

The National Research Committee was content to use the term "unconscionable." Others, including this writer, have used the terms: unsuccessful, violent, corrupt, counterproductive, and inhumane. We who criticized the escalation of a "drug war" called attention to the fact that a century of accelerating efforts by the United States government has failed to:

1. Reduce foreign production of illegal drugs.
2. Reduce domestic production of illegal drugs.
3. Succeed in interdicting the vast majority of illegal drugs entering the nation.
4. Reduce the supply of illegal drugs in the United States.
5. Intervene to increase the price and availability of illegal drugs in the United States.
6. Reduce the potency of illegal drugs in the United States.
7. Significantly affect the level of use of illegal drugs in the United States and the resulting negative health consequences.
8. Significantly reduce the amount of violence associated with the illegal trade in drugs.
9. Stem the increase in corruption of police and other government officials in the United States and throughout the world.
10. Reduce the number of patients mentioning illegal drug use when seeking emergency hospital treatment.
11. Reduce the number of deaths attributed to the use of illegal drugs.
12. Reduce the disparate arrest and incarceration rates of people of color, compared to per capita drug use by different groups.
13. Provide adequate treatment opportunities for those drug users seeking assistance.

MAGNITUDE OF THE WAR ON DRUGS

Professor Manski, chair of the national commission criticizing the lack of data, noted that expenditures on drug enforcement have increased almost tenfold since the 1980's. He adds, "in 1998, for example, 1.6 million people were arrested for drug offenses - three times as many as in 1980 - and 289,000 drug offenders landed in state prisons - 12 times the number in 1980."

In my own research, I found it more illustrative to trace the escalation in drug enforcement from 1972, when then - President Richard Nixon declared a "war on drugs." Total annual federal spending for drug enforcement in 1972 was roughly $100 million in comparison to the now approximately $20 billion in annual federal drug control efforts. By way of comparison, the average monthly social security retirement check in 1972 was $177. If social security benefits had increased at the same rate as federal drug control spending, the average social security compensation today would be in excess of $30,000 a month. Committing to fiscal increases of this magnitude without being able to measure the impact might well be described as irrational, as well as "unconscionable." But the human costs are even greater, albeit more difficult to quantify.

The fact that two million Americans are in confinement, and approximately six million are under supervision of criminal justice agencies, illustrates the grave likelihood that Americans will be in more danger of becoming crime victims in the future. Taking away the freedom of Americans and caging them (the dehumanizing term warehousing is often used) imposes enormous personal damage on individuals, families, communities and the nation. Certainly, violent, dangerous people need to be punished and separated from the general public in the name of safety, but the unnecessary incarceration of individuals can create career criminals and often turn non-threatening offenders and their offspring into menaces. The Federal Bureau of Justice Statistics in a special report in June of this year announced that a study had shown that 67.5 % of those released in 1994 in 15 states had been rearrested within 3 years, more than 60% for violent crimes.

The non-profit Sentencing Project in Washington, D.C. reported this month that:

1. A 1997 survey indicated "58% of drug prisoners have no history of violence or high level drug activity."
2. "Three-quarters of the drug offenders in state prisons have only been convicted of drug/and/or non-violent offenses; one third have only been convicted of drug crimes."
3. FOUR OF EVERY FIVE PRISONERS ARE AFRICAN-AMERICAN (56%) AND HISPANIC (23%), WELL ABOVE THEIR RESPECTIVE RATES (13% AND 9%) OF OVERALL DRUG USE. (emphasis added)

Further, in my view, the present policies produce an illegal black market whose huge profits resulting from prohibition are engines of crime. These funds are often used to undermine legitimate governments and finance dictatorships throughout the world. The administration of President Bush has even claimed that Americans using drugs are supporting terrorists who attacked the United States. Yet, no one claims that terrorists have profited from Prozac, Valium, Vicodin or other powerful mind-altering drugs. The vast illicit profits are limited to DRUGS PROHIBITED UNDER CRIMINAL LAW BY THE GOVERNMENT OF THE UNITED STATES.

CALIFORNIA

JUVENILE DRUG ARRESTS:

California's increase in drug enforcement without the necessary data to measure its impact mirrors the national dilemma. In 1990, the FBI estimated that 7.7% of all arrests nationally were for drug offenses, but in California 12.9% of total arrests were for drugs. In California, the juvenile drug arrest rate increased 39% (marijuana was the greatest factor) from 1990 to 1999. Total juvenile drug arrests increased in California by 70.1% while total juvenile arrests during the period decreased 1.6% and total adult arrests decreased 28.7%.

CORRECTIONS:

In 2001, 17.9% of adults convicted of violent crime were sent to state institutions. 21.6% of those convicted of drug offenses were sent to state institutions.

Since 1996, the rate of increase of adults under state supervision was 8.6%, and of those under local supervision 7.6%.

In 2001, 681,450 adults in California were under criminal justice supervision.

From 1996-2001, 60% under supervision were under local authority.

In 2001 there were 53,679 adults committed to state supervision, of whom 72.9% were new commitments and 27.1% parolees or outpatients returned with new commitment. 97.7% were sentenced to the California Department of Corrections.

The trends seem to indicate that those convicted of drug felonies are more likely to be sent to state prisons than those convicted of other felonies, including violent crimes. It also seems clear that the population of the state prisons is older and serving longer sentences than before the "Three Strikes" and mandatory sentencing laws. Many prosecutors aggressively charge drug crimes as a "strike."

COSTS AND BENEFITS OF CALIFORNIA CRIMINAL JUSTICE POLICIES

It is somewhat easier to calculate the fiscal costs of California's surge in arrests and incarcerations than the benefits, but the difficulty of measuring significant intangible costs of strict enforcement policies should not be underestimated.

The Hoover Institution Police Drug Policy Conferences

I organized four conferences for police chiefs, senior command police officers, and other police specializing in drug enforcement over the course of eight years at the Hoover Institution located at Stanford University. Nobel Laureate Milton Friedman, former Secretary of State George P. Shultz, former United States Attorney Edwin Meese, then mayor of Baltimore Kurt Schmoke, Mayor Susan Hammer of San Jose, Mayor Frank Jordan of San Francisco, Federal Judges, Robert Sweet, John Kane and Vaughn Walker, Director of the American Civil Liberties Union, various medical doctors, scientists, law professors, criminologists and administrators in drug treatment and education programs all made presentations. Each of the four conferences was attended by approximately one hundred participants. At the conclusion of each of the two-day conferences, those participants remaining were asked to complete evaluations with the agreement that their identities would be kept anonymous. The evaluations were unanimous in stating that the drug war was being lost. All except one evaluation indicated that increasing prevention and education efforts would be more effective than increasing arrests and incarcerations. In other words, the opinions of the police were contrary to the national policies resulting in increasing arrests and incarceration of drug offenders. Underlying these noteworthy sentiments by so many senior police officers was concern over the inherent racial tensions caused by drug enforcement, the high possibility for violence, and the possible official corruption that could occur.

CALIFORNIA CRIME:

California, like the rest of the nation has, up until the last two years, enjoyed significant decreases in reported crime. For a variety of reasons, crime estimates are far less reliable than measuring annual rainfall and other subjects of the physical sciences. Shifts in crime sometimes reflect changes in demographics, police procedures or reporting systems, changes in state law or even in public perceptions and attitudes, and especially in the relative health of the economy and unemployment levels.

Nevertheless, there is broad consensus among experts that the decrease in crime of the last decade was "real." Homicides and auto thefts are regarded as the two crimes most accurately reported. In murder cases there is almost always a body discovered and a scientific determination of the cause of death. Automobile owners are most likely to report the theft of their vehicles, because they are liable for their operation, are often insured against theft, and are usually an essential part of life. The significant decrease in reports of these two crimes tends to validate the declines in other serious crimes such as robberies, rapes, assaults, burglaries, larcenies, etc.

We are fortunate that the California Crime Index has dropped from 3,922 in 1980 to 1,845.6 in 2001. California's violent crime rate is the lowest since 1974 and the state's crime rates are generally close to those in 1960. However, California crime increased by 3.7% during 2001. Generally, California has experienced crime rate increases during the past two years similar to other states. And here, as in the other states, explanations of the causes of crime fluctuations vary.

THE DIFFERENCE BETWEEN DRUG OFFENSES AND OTHER CRIMES FOR POLICE

On the other hand, few experts base opinions on why crime increases or decreases on levels of drug use. Since possession, sale and use of certain drugs are illegal, this behavior, as mentioned, is difficult, if not impossible to measure with precision. Murder, assault, rape, robbery, larceny, and arson are often referred to as mala-in-se crimes, wrong in themselves. These offenses existed in English common law from which our own legal heritage evolves. Drug possession, use, and sale, however, were perfectly legal in the United States (with a few local exceptions) until 1914, when the federal government passed the Harrison Act as a tax measure. Consequently, detection, arrest and conviction for drug offenses are considerably more difficult and raise troubling ethical questions for society. In a murder, robbery, assault, etc. there is a victim or victims, witnesses, physical evidence and, in general, much more public willingness to report these crimes and to aid the police by giving information and testimony. Drug crimes are, after all, consensual transactions without the usual victim to bring the crime to the attention of the police. With rare exceptions, law enforcement records a drug crime only when a drug arrest has been made.

August Vollmer wrote The Police and Modern Society for the University of California Press, Berkeley, California, in 1936. Vollmer had been police chief of Los Angeles and Berkeley, and was a professor of management at the University of California, Berkeley. He is often referred to as the father of professional police administration. Vollmer declared in 1936, "Stringent laws, spectacular police drives, vigorous prosecution, and imprisonment of addicts and peddlers have proved not only useless and enormously expensive as means of correcting this evil, but they are also unjustifiably and unbelievably cruel in their application to the unfortunate drug victims. Repression has driven this vice underground and produced the narcotic smugglers and supply agents, who have grown wealthy out of this evil practice and who by devious methods have stimulated traffic in drugs. Finally, and not the least of the evils associated with repression, the helpless addict has been forced to resort to crime in order to get money for the drug which is absolutely indispensable for his comfortable existence."

Vollmer concluded, "Drug addiction, like prostitution, and like liquor, is not a police problem; it never has been, and never can be solved by policemen. (emphasis added) It is first and last a medical problem, and if there is a solution it will be discovered not by policemen, but by scientific and competently trained medical experts whose sole objective will be the reduction and possible eradication of this devastating appetite. There should be intelligent treatment of the incurables in outpatient clinics, hospitalization of those not too far gone to respond to therapeutic measures, and application of the prophylactic principles which medicine applies to all scourges of mankind. Here again, education of the masses is the keynote, first to cure or alleviation and ultimately to prevention."

A PERSONAL EXAMPLE

Let me relate a personal example from my early career as a patrolman in New York's Harlem. One day my partner and I made a routine arrest of an addict on the top floor landing of an apartment building. Addicts frequented these "shooting galleries" where they shared needles and getting off with a "rush." They would remove the cork from a metal bottle cap, (bottles did have corks in those days), empty a five dollar bag of heroin into the cap, add some water, and heat the mixture with a candle. Next, they would siphon the fix into a hypodermic needle, or spike, in street jargon. They would then inject the drug into any veins they could still find. These were pathetic and often sick individuals. Cops called the arrests "falling off a log" because they were so easy. Heroin is an opiate, a depressant. The users rarely resisted arrest. After booking them, we simply sent the bottle cap to the police lab, which invariably found a residue of heroin. Although the United States Supreme Court had ruled that being an addict, having the substance in your blood, was not a crime, the residue in the bottle cap constituted possession of an illegal substance and called for a six months jail term, as did possession of a spike.

Then, as well as now, the possibility of pricking one's finger with the needle during a search was a nightmare to officers, since the majority of addicts have AIDS, Hepatitis B, Syphilis or other diseases. A skin puncture by an infected needle may be a death sentence for a cop.

That day, in 1961, the addict we arrested was cooperative. He surrendered the needle he had hidden by inserting it into his belt, where it was invisible. He pleaded with us. He was just a junkie. He couldn't take a bust right now. If we let him go, he would give us a pusher. To my surprise, my partner agreed with the suggestion, and since he was senior, I reluctantly went along. We put the bottle cap and needle in the glove compartment of our police car and followed the addict. It was broad daylight on a warm summer day and there were many people on Lenox Avenue as we coasted along, never more than five feet from our prisoner. I had my hand on the door handle, ready to bolt after him if he decided to break the agreement. But he was good to his word. He walked down the street talking to one person after another. The third dealer agreed. When they went into a hallway, we charged in and arrested the dealer. He also was an addict and sold small amounts of heroin to finance his own drug use. The addict "escaped."

It amazed me that in broad daylight the man had talked to pushers about buying illegal drugs with a marked police car and two uniformed policemen five feet away. None of the men had been deterred by our presence. The first two dealers had already sold their supply. They found no reason to be hesitant. If we had not known what the addict was doing we would have guessed the men were talking about cars, girlfriends, sports, politics, or other innocent things. Drug dealing and drug use were confidential, consensual transactions between willing parties who treasured their secrecy. I began to realize that the criminal law had little ability to control what people put into their bloodstreams in private.

CONCLUSION

1. A committee created by the National Academy of Science described the lack of data to evaluate current United States drug control policies as "simply unconscionable."
2. California's vast expenditures for drug control and the arrest of hundreds of thousands of people for drug offenses without accompanying data on effectiveness is equally unconscionable.
3. Despite the magnitude of California drug enforcement policies there is a lack of data to gauge their effectiveness.
4. Budget shortfalls in the forthcoming years require that California refrain from beginning expensive new programs and ensure that current programs are operated as inexpensively as possible.
5. By shifting drug control expenditures from roughly one third for treatment and prevention and two thirds for enforcement, to the reverse, one third for enforcement and two thirds for prevention and education, California could reduce expenditures and probably reduce problems caused by drug use and certainly eliminate many of the inhumane aspects of current drug enforcement practices.

CALIFORNIA:

Lacks the ability to reduce foreign production of illegal drugs.

California lacks data on:

1. The state's effectiveness in reducing production of illegal drugs in California.
2. California's success in interdicting illegal drugs entering the state.
3. The effectiveness of the state's efforts to reduce the supply of illegal drugs in California.
4. The impact of the state's significant increases in drug law enforcement in increasing the price of illegal drugs in California and reducing their potency.
5. Whether its drug control programs have significantly affected the level of use of illegal drugs in the California and the resulting negative health consequences.
6. Whether drug law enforcement efforts in the state reduce or increase the amount of violence in California associated with the illegal trade in drugs.
7. What impact the state's drug enforcement efforts have on police corruption in California.
8. The effect of the state's drug enforcement in reducing the number of patients mentioning illegal drug use when seeking emergency hospital treatment throughout California.
9. Whether or not California's drug enforcement policies reduce the number of deaths attributed to the use of illegal drugs in the state.
10. Why the state's drug enforcement efforts produce such disparate arrest and incarceration rates for African-Americans and Hispanics in California compared to per capita drug use by different groups.
11. Why state drug control programs fail to provide adequate treatment opportunities for those drug users seeking assistance.

LIMITATIONS ON DRUG CONTROL

1. The entire supply of illegal drugs for the United States can be grown in forty to fifty square miles almost anywhere in the world (except in arctic climates).
2. The entire illegal supply of cocaine for the United States can be contained in approximately thirteen truck-loads of contraband.
3. Vast borders and an enormous volume of global trade in the United States prevent the interdiction of sufficient amounts of illegal drugs to significantly reduce supply.
4. Criminal prohibition of certain drugs creates a highly profitable black market leading to production and distribution of prohibited drugs which, in turn, cause widespread corruption and violence and stimulate the market demand for illegal drugs.
5. Because drug offenses are consensual in nature, as opposed to crimes such as murder, rape, robbery, assault, burglary, etc. there are no victims or witnesses as in the other crimes to report drug offenses to the police. This frequently leads to unethical and illegal behavior such as racial profiling, unlawful searches, unnecessary use of force, improper use of informants, and perjured testimony, by some police officers. When this law enforcement misconduct is perceived by the public, it erodes trust in all police, and reduces police effectiveness in preserving order and preventing crime. A citizenry that is hostile or distrustful of police integrity will not be as likely to report crime, serve as witnesses, or believe police testimony when sitting on juries.

RECOMMENDATIONS

IMMEDIATE:

1. The governor and state legislature should communicate their support of Attorney General Lockyer's protest to the federal government on questionable and unprecedented raids on California medical marijuana facilities by federal agents. These federal law enforcement actions display unprofessional and apparently personally motivated use of federal law to undermine the clear desire of a strong majority of California voters to utilize marijuana as a medicine under appropriate circumstances.
2. California's Peace Officer Standards and Training Commission requirements for drug enforcement training should be reviewed to ensure that police officers are not being conditioned to view drug users with contempt and to routinely assume that they are guilty of other crimes.
3. The legislature should again pass the bill vetoed by Governor Davis that would study the effects of the "Three Strikes" law. The public deserves to know the details of some of the unusually draconian sentences being given for non-violent crime under a law that voters clearly intended to focus on the type of violent criminal convicted of the murder of Polly Klaas, as opposed to petty thieves.
4. The state legislature should consider legislation reversing the disproportionate funding given to arrest and incarceration in drug enforcement. The bulk of expenditures should be directed toward voluntary treatment for drug users. It is unjust and unwise that California is willing to appropriate unlimited funding for the arrest and incarceration for possession of small amounts of illegal drugs, but is unwilling to provide voluntary treatment for drug users before they are arrested.
5. Individuals whose only crime is the private use and/or possession of chemical substances for personal use should not be subject to criminal law. By adopting this measure, the legislature could save enormous resources, some of which could be redirected to fund drug treatment and preventive education programs.
6. Proceeds from civil seizure of assets involved in criminal activities presently divided among law enforcement agencies should, instead, be used for drug prevention efforts.
7. The state of California should formally request that the federal government's funding for the Drug Abuse Resistance Education (DARE) programs in this state be used for other drug prevention education programs. Numerous independent evaluations have shown DARE to be ineffective. It is most unfortunate that funding for a failed drug education program forecloses the opportunities for experimenting with other drug prevention efforts that might be more successful.
8. California should not undermine the implementation of Proposition 36 approved by the voters in favor of drug courts.
9. We should remember former Drug Czar General Barry McCaffrey's admonition that viewing it as a "drug war" is the wrong, we should see it as a long term struggle like those against cancer or heart disease.
10. We should, however, also remember what McCaffrey and the government fail to acknowledgeÑwe do not lock up those with cancer, heart or other diseases. Nor do we arrest and punish people who ignore medical advice and engage in behavior that may lead to those or other problems.

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