The Intuition Network, A Thinking Allowed Television Underwriter, presents the following transcript from the series Thinking Allowed, Conversations On the Leading Edge of Knowledge and Discovery, with Dr. Jeffrey Mishlove.

DRUGS AND THE LAW Part I: THE PRICE OF PROHIBITION with STEVEN B. DUKE, LL.M.  

JEFFREY MISHLOVE, Ph.D.: Hello and welcome. I'm Jeffrey Mishlove. Our topic today is a little bit unusual for Thinking Allowed. Normally we focus on philosophy, psychology, health, science, and spirituality, topics that are timeless and very abstract in nature. Today we're going to focus in on a subject that is immediate, a subject related to current affairs. We'll be looking at "Drugs and the Law," particularly the legalization of illegal drugs. With me is Professor Steven Duke, who holds the chair of Law of Science and Technology at Yale University, and is the coauthor of America's Longest War: Rethinking Our Tragic Crusade Against Drugs. Welcome, Steven.

STEVEN B. DUKE, LL.M.: Thank you.

MISHLOVE: It's a pleasure to be with you. I've been looking at the issue of the decriminalization of drugs since I was a graduate student in criminology over twenty years ago. Back then it seemed obvious to me that the laws that we had against various drugs were illogical -- that some drugs like alcohol and tobacco, which are legal, were actually more dangerous than other drugs that were illegal. I know in the research that you have done you emphasize that point, but you go further. You suggest that the war against drugs, the criminalization of drugs, actually creates more problems than it solves.

DUKE: It certainly does. It even creates more health problems and more social problems. The only ostensible, quasi-legitimate reason to prohibit drugs is that they're harmful either to the user or to someone associated with the user, and as you mentioned, tobacco and alcohol are clearly more harmful, not only to the society, but per user. Tobacco is the most harmful drug that we've ever discovered, that is in common use -- by far the deadliest drug that humans have ever voluntarily consumed.

MISHLOVE: Certainly one of the most addicting.

DUKE: Yes, absolutely, far more addicting probably than any other illicit drug in common use, although some of the opiates are pretty addictive too. But yes, the problem with drug prohibition is that the fiercer it gets, the more intensely we try to keep people from using drugs, the more crime and corruption we generate, and the more our whole quality of life tends to collapse. But worse than that, the problem of drug use becomes a more serious health problem, because the more expensive the drugs get, the more likely the sellers of the drugs are to poison them or to dilute them with chemicals that are more dangerous than the drugs themselves. There's no kind of potency control or quality control, so users of the drugs don't know what drugs they're getting, what the potency is, or anything else, and that probably accounts for 80 percent of the so-called drug overdose deaths in this country. That is, they are attributable not to the drugs but to the drug prohibition.

MISHLOVE: In effect the prohibition against illegal drugs today -- cocaine, marijuana, heroin -- is not very different, you would argue, from the prohibition we had against alcohol in the 1920s.

DUKE: Indeed it is not. The only major difference is that alcohol was and is a more popular drug by far than any of the currently illegal drugs. Marijuana has been fairly popular over the last 20 years or so, but even then its popularity has not rivaled that of alcohol. But leaving that aside, the parallels are just amazingly similar, and it's to me amazing that we didn't learn the complete lesson from alcohol prohibition. The fact of the matter is alcohol is a drug, it's a psychoactive drug. It is pharmacologically indistinguishable in most respects from most of the illicit drugs that we put people in prison for life for selling. What happened to us during the thirteen years of alcohol prohibition was that people began to get poisoned with alcohol that wasn't edible alcohol. They became addicted to hard liquor. Prior to alcohol prohibition, for example, we were a country of wine and beer drinkers, mostly beer. Any kind of drug prohibition tends to concentrate the potency of the drug that's prohibited, so we became, during alcohol prohibition, drinkers of whiskey, gin, other spirits, and we are still recovering from that. But each year, even though it's been sixty years since we've repealed alcohol prohibition, each year we're moving back to wine and beer, and away from hard liquor.

MISHLOVE: So you're suggesting that if we were to decriminalize or legalize the drugs that are now illegal, that their use might actually decline rather than increase.

DUKE: The use of the highly potent drugs would probably decline. The use of marijuana would probably, hopefully, increase. I'm not sure it would, because there's many strands of data that suggest that decriminalization of marijuana has virtually no effect on consumption. But if it did increase, as hard as it is for some Americans to understand, we would be a much healthier nation, and the reason is that the increase would not come from people who don't use drugs at all, it would come from people that use alcohol, opiates, cocaine, LSD, you name it. And compared to any of those drugs marijuana is virtually harmless in comparison.

MISHLOVE: In other words, people would prefer to use a milder form of the drug if it were readily available, and the reason they choose the stronger form is because the underground market prefers to sell it that way. It's more cost effective, I suppose.

DUKE: Exactly. The more concentrated the drug that you're dealing with, the easier it is to transport, the easier it is to smuggle, the more money you can get for it. And the more concentrated the drug that you sell, the more concentrated the drug the user uses.

MISHLOVE: Now, there's a lot to say about this issue. There are many questions that are raised, but it seems to me that the first question we ought to address is why this subject is almost taboo in public conversation. I know there have been some TV shows that have touched upon it; particularly the right-wing libertarian elements of society seem to support your position. But in general this is not considered a subject that is acceptable for open debate.

DUKE: Well, I have some thoughts about that, but I'm not sure I have the complete answer. I think ultimately it's got to be somewhat mysterious. The main reason, I think, that the subject is not open to serious debate among politicians and many other people is that we have prohibited some drug or another for eighty years, and we have demonized some drug, or in some cases several drugs, for that entire period. Drugs are a very convenient scapegoat. They are also a convenient surrogate for racism. But beyond that, more recently, just going back to Nixon's period as President, we were losing the Vietnam War, and he, fortuitously, I suppose, decided to declare all-out global war on the drug menace, and he was going to eliminate it, and created the Drug Enforcement Administration, started creating this huge bureaucracy. Since that time we have spent at least $200 billion in taxpayers' dollars. We have caused the murders of hundreds of thousands of Americans, many of them totally innocent. We have racked up, we have tripled, virtually, the property crime rates. We have doubled the violent crime rates in this country, since Nixon declared war --

MISHLOVE: I just need to stop you to clarify. When you say we have caused the murders of hundreds of thousands of innocent Americans, could you explain that?

DUKE: The more intensely you enforce a drug prohibition law, the fiercer the participants are that are engaging in the black market. You've cranked up the risks to them from participating in the war, so you've increased the profits. And therefore you get turf battles, and you get -- people who are facing life imprisonment if they get caught tend to want to kill people that they think are ratting them out, or informing on them. And victims get killed because they get robbed by putative drug dealers, or real drug dealers, or other people rob the drug dealers of their money or their drugs. Everybody in this business uses guns; they use violence. So it's quite clear that we are killing today -- that is, the drug business, directly or indirectly, is murdering at least 5000 Americans a year.

MISHLOVE: Now, I can accept that. Here we are, in the San Francisco area, and probably in this metropolitan region two or three people a day are being murdered because of this. But the irony is, most of the time when the media presents this, it's considered a drug problem.

DUKE: Yes.

MISHLOVE: It's not considered a problem created by the prohibition of drugs.

DUKE: Right. Well, going back to the question of why the issue of legalization is almost unthinkable, or not a polite subject of discussion, in the past twenty years our governments have brainwashed us, and continue to brainwash us, into believing that all of these horrible problems associated with drug black marketing are caused by drugs. They don't even acknowledge that it is the prohibition of the drugs that is a necessary causal element in the crime. For example, I remember Lee Brown, the drug czar, talking, giving a speech not too long ago, in which he said drugs account for terrible numbers of murders and robberies and thefts, and create fear in America. He went on and on about the horrible problems of America that he attributed to drugs. And if the word prohibition had been inserted at the beginning of his speech, I would have to agree with him, but the idea that -- I mean, these people talk about drive-by shootings and turf battles, and they still don't think that has anything to do with drug prohibition. But there couldn't be a turf battle without drug prohibition.

MISHLOVE: There are many questions that this raises. I want to stop for just a second, because you said that the government is brainwashing us, and many viewers might think that you're some sort of a radical. But you happen to be a professor of law at Yale University, and as I understand it you didn't always think this way.

DUKE: What? That the government was brainwashing us, or that drug prohibition was a disaster?

MISHLOVE: Well, I don't know how you felt about the government brainwashing us, but I know that you weren't always opposed to the prohibition against drugs.

DUKE: No. I was, I think, always opposed to the intense drug war and what it was doing to the criminal process and some of the incidental crime that it was producing, and the way it caused the courts to permit de facto repeal of the Bill of Rights. Those things I was opposed to. But I did at least assume that some benefit was achieved by drug prohibition.

MISHLOVE: Most people do.

DUKE: Yes. And when I finally had my epiphany, I was looking into the health aspects of drug prohibition, and when I discovered that most of the damage to the health of users of drugs was, indirectly at least, caused by drug prohibition, and that the drugs themselves, in a regulated market, were relatively harmless, not totally, and that even the addiction rates would be lower under a regulated system, for the reasons that I mentioned earlier, it became clear to me that there is no benefit to anyone other than drug dealers, drug warriors, and politicians that have made a career out of cranking up the drug war, no one else. And morticians in inner cities, foreign car dealers in inner cities -- people that have some kind of peripheral benefits. Everyone else in America suffers, including drug users.

MISHLOVE: You know, I think most of our listeners and viewers would assume that if what you're saying is true they would get right on the bandwagon and say, "We ought to legalize this stuff. Our life would be better." But they must all have, as I have myself, some reservations. For example, you talked about the violence, all of the murders going on, and I believe people assume that when a person is high on drugs and using that drug, they are more readily willing to kill, because their inhibitions are loosened.

DUKE: That's what our government's been telling us for the last fifty years. In the 1930s, to get marijuana declared illegal, they told us that one puff of marijuana would make you a homicidal maniac. And our so-called experts went around the country testifying and writing magazine articles, giving speeches, telling actual anecdotes about people that went berserk and ripped strangers up with their knives, and so forth. And that's basically the approach that our government still takes with respect to drugs. They still suggest that people become homicidal or rapists, or at least violent in some way, on illicit drugs. The fact of the matter is, the only drug that clearly triggers violent behavior is alcohol. Ask any policeman.

MISHLOVE: I would expect that most people would find it almost inconceivable to think that tobacco is a more dangerous substance than heroin.

DUKE: Yes, again because the government's been lying to us ever since we've been conducting a drug war. The government now has taken off the gloves as far as tobacco is concerned, and they do tell us the truth, I think, about tobacco, and occasionally they may even exaggerate some of the health risks of tobacco, but they do at least tell us -- recently the figure was 415,000 Americans a year are killed by tobacco. I don't think that there's any data that suggests that 5,000 people die from heroin. Indeed, tobacco kills a hundred times more Americans every year than all illicit drugs combined. Marijuana never killed anybody. The per-user death rate from heroin and cocaine is much lower than the per-user rate for alcohol or tobacco. That's a fact. Heroin itself does not do any measurable damage to the human mind or to the body. If people become addicted to it it creates problems, like any addiction, but it does not damage the organs of the body like tobacco or like alcohol does.

MISHLOVE: I think the classic argument against legalization of these drugs is to say, "Look, we have these horrible problems with alcohol and with tobacco. They are enormous social problems. We can't handle legalizing another drug. It would just cause similar problems to the ones we are now seeing."

DUKE: But that's based on the assumption that if we legalize it vast numbers of people that never used these illicit drugs would begin to use them, and would not replace legal drugs with illegal drugs. But the evidence is clearly to the contrary. For example, marijuana and alcohol are substitutes. When we increased the drinking age nationwide from 18 to 21, that made alcohol at least temporarily much more difficult for people in that age group to acquire. The use of marijuana went up precipitously. So it's quite clear that marijuana and alcohol to some extent are substitutes; all drugs to some extent compete with other drugs -- all psychoactive drugs. The idea that people who do not use, let's say, marijuana, cocaine, or heroin, or any illicit drug, are suddenly, if they were to become legal, going to say, "Well, now I want to try these drugs and see what all the talk is about." I don't know anybody that's waiting for these drugs to become legal in order to try them. Furthermore, there's no place, there's simply no evidence in history, that legalizing a previously illegal drug drastically alters the consumption rates of that drug. The government's only argument on that subject, as far as the history of America is concerned, is alcohol prohibition. Dr. Lee Brown used to say, when people bring up the question of legalization -- in fact I heard him testify in Congress. When they said, "How about legalization? Have you studied the matter?" He said, "We don't need to study the matter, because all we have to do is look at alcohol prohibition. When alcohol prohibition was repealed, the use of alcohol shot straight up." He said, "That's the same thing that would happen today if we --" Well, it simply isn't true.

MISHLOVE: It's not true.

DUKE: It is not true. The use of alcohol could not have increased more than 20 percent by virtue of being made legal.

MISHLOVE: Why is that?

DUKE: Well, those are the facts.

MISHLOVE: Based on?

DUKE: Based upon study of cirrhosis of the liver trends, such data as are available about consumption. All the available data -- a recent study that's quite impressive suggests that the use of alcohol went up about 20 percent. And nobody really seriously claims otherwise.

MISHLOVE: Now, I think it's important to understand here that in advocating that we legalize these drugs -- and I assume that you would even include LSD and other psychedelic substances there -- that you're not advocating their use.

DUKE: No, I'm not. And actually I'm not sure I would legalize LSD. I think we have to know more about LSD than we do. I think there are some drugs that we can prohibit, and if you're suggesting I am inconsistent, I will have to simply point out that the reason that I am against drug prohibition generally, and certainly against the prohibition of popular drugs, is not that I want people to use the drugs more freely, or anything of that sort. It is that the consequences of drug prohibition are so horrendous on our society -- the crime, the corruption, and so forth. Any drug that is not immensely popular, and LSD is not immensely popular, does not create the kind of black market problems that heroin, cocaine, or marijuana do. So that we can prohibit some drugs without doing great damage to the quality of life.

MISHLOVE: You mentioned earlier that you thought that the prohibition against drugs was a policy of racism. Could you elaborate on that?

DUKE: Well, I said it's a surrogate for racism. Throughout history we have, when we changed our drug policies, generally speaking, when we became tougher, or when we made previously legal drugs illegal, the specter of some minority race going crazy on the drugs was always uppermost in the discussions. With marijuana in 1937 Hispanics along our southern border were allegedly raping and killing Americans because they got high on reefers, and the government even underwrote a movie called Reefer Madness that made that point. With respect to cocaine --

MISHLOVE: You're claiming that's just false.

DUKE: Absolutely false, and even the government admits that. Marijuana does not trigger violence; quite the opposite. In fact the government has now completely changed its argument. The problem with marijuana now, they say, is it makes people lazy. There are some fancy words for it; it makes them amotivational. But there's no claim it makes people violent.

MISHLOVE: And I suppose with heroin the argument had to do with Asians.

DUKE: Yes, early on it did. The claim was that Chinese in San Francisco and other places around the turn of the century were becoming maniacs and seducing American women and bringing them into their opium dens and destroying them. It was even argued by Samuel Gompers later on that we should prohibit opium because it gave unfair advantage to Chinese laborers; it gave them more pep and more staying power as workers.

MISHLOVE: So in other words, these drugs are being attacked from every side. Either they make you work too hard, or they make you work not hard enough.

DUKE: Yes, but almost always there's some minority race that is associated with it.

MISHLOVE: Yes. The racist arguments often work that way. I suppose in summary, then, we can say that the prohibition against drugs -- not drugs, the use of drugs -- is what has been causing the serious social problems that we see, in terms of violence, in terms of overdoses, in terms of overcrowding the penal system, and in terms of eroding our Constitutional rights.

DUKE: Absolutely. I think half of our serious crime is caused by drug prohibition. We could eliminate half of our serious crime if we repealed it.

DUKE: Professor Steven Duke, thanks so much for being with me. This has been a very interesting half hour, Part 1 of a two-part series.

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