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 II: HOW LEGALIZATION COULD WORK with STEVEN B. DUKE, LL.M.  

JEFFREY MISHLOVE, Ph.D.: Hello and welcome. I'm Jeffrey Mishlove. This is Part 2 of our two-part series on "Drugs and the Law." This is a bit of an unusual program for Thinking Allowed -- a bit less timeless and more timely, a bit more focused on contemporary affairs rather than issues of philosophy and the abstractions of science and psychology and spirituality. We've chosen to look at the issue of the legalization of drugs because we feel that this is a topic that is being ignored today in the meanstream media, and that honest discussion of these issues is needed. With me is Professor Steven Duke, who holds the chair in Law of Science and Technology at Yale University. He is also the coauthor of a book called America's Longest War: Rethinking Our Tragic Crusade Against Drugs. Welcome again, Steven.

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

MISHLOVE: We pointed out in Part 1 of this interview that the prohibition against popular drugs such as marijuana, heroin, and cocaine actually results in the tragic loss of life, the crowding of the criminal justice system, many deaths through overdoses, and actually the erosion of our civil liberties -- that oftentimes we attribute these social problems to use of drugs, whereas you believe the cause can properly be laid at the feet of the laws that make these drugs illegal.

DUKE: Quite clearly, yes. For example, if we were to prohibit tobacco and seriously enforced it, this country would simply collapse. We simply could not exist as a nation, trying to prohibit 46 million smokers from feeding their addiction. So that even though tobacco is a terrible drug, and the momentum certainly is against tobacco in the long run -- our government is spending a lot of money and a lot of effort to wean people away from tobacco and to keep kids from getting addicted to it, and so forth -- prohibition is simply not possible, because of the black market that would develop. And there's evidence for this. For example, in Vermont in 1992, in the prison in Vermont they forbade tobacco, and within a matter of weeks there was all sorts of violence breaking out over tobacco, black-market tobacco; the price of a pack of cigarettes went to about $30 a pack; people were trading sex for cigarettes; and all the terrible things that happen when a drug is outlawed.

MISHLOVE: Tobacco was also illegal in a number of states during the 1920s.

DUKE: Yes, about a dozen states took a little fling at prohibiting tobacco while we were prohibiting alcohol, but it wasn't really enforced. The state of Idaho, for example, enacted prohibition and repealed it in the same legislation; that's how long it lasted in Idaho.

MISHLOVE: Tobacco is a good case in point, I think, for several reasons -- one, because it's a very dangerous drug. In fact you've pointed out that there are more deaths due to tobacco than any other drug that we know of, and that it's actually more addicting even than heroin.

DUKE: Yes.

MISHLOVE: Not only that, we can see that, although tobacco use is unhealthy, and it's certainly something we would like to curtail, there are efforts to do that that don't require making it a criminal offense to use tobacco. In fact tobacco use is declining.

DUKE: Yes. Well, people are not suicidal. That is, our society is not generally suicidal. The use of cocaine is declining, because people don't take drugs, at least voluntarily, that they know are going to kill them, or that are going to do them terrible damage. And our government has done a job of educating the public about the harmfulness of tobacco. People realize that tobacco is a killer, so that we have more ex-smokers in American society today than we have smokers. That's never been the case. We have more people that have never smoked cigarettes in America than has ever -- that's a new phenomenon. So that yes, we're making great progress, and we're doing it by education, by pricing, by imposing high taxes, by limiting the places in which you can feed your addiction. It's very hard in many places to hold a job now and be a smoker, because it's simply too burdensome. You can't fly across the country comfortably if you're a smoker because you'll suffer. So that the discomfort associated with smoking, and the social stigma that is slowly attaching to smokers, is doing a job. It's a cultural change; it's an educational change. That's the way we should treat any drug problem, not prohibition.

MISHLOVE: So the model of the the situation with tobacco is the model you would suggest for, let's say, marijuana or cocaine.

DUKE: Yes, except I would make some changes. With tobacco we made some mistakes. For example, we never should have permitted the sale of tobacco in vending machines; that was a colossal mistake. If we want to keep drugs out of the hands of children we never should have permitted that. And I think any rational system makes an effort to keep drugs away from children, so that we would eliminate the machines. We would license tobacco dealers the way we would license any other drug dealer. If they sell to minors, take their license away, the way we do with a liquor store owner. In some respects the liquor store model is a little closer to the model that we would recommend for drugs generally.

MISHLOVE: The irony, I suppose, is that most people will say, "Well, we are having enormous problems with both alcohol and with tobacco." They are the cause of hundreds of thousands of deaths every year. Combined, I think, more people die from alcohol- and tobacco-related causes than from heart disease.

DUKE: Probably, yes.

MISHLOVE: Wouldn't we be opening up the door for new social problems that we can't even begin to imagine right now, if we were to change the system?

DUKE: Well, first of all, the tobacco and alcohol costs, which are tremendous, would be far higher if we attempted to outlaw them. The fact of the matter is the appetite that human beings have for chemical intoxication is an innate appetite. It is virtually the same as the desire for procreation. We can't really eliminate that. All we can do is manage it, reduce the harm associated with it, educate people, and so forth. But the fact of the matter is there is no evidence, no evidence, that any of the presently illicit drugs are as damaging to the human body or to the human mind as either alcohol or tobacco.

MISHLOVE: You're saying the marijuana, cocaine, opium, heroin, morphine -- I probably could name others; I don't know how long the list should get -- none of these are more dangerous than alcohol and tobacco.

DUKE: Absolutely. Without a doubt. And there may be some others. Like LSD I'm not sure of; we don't know enough about it.

MISHLOVE: It sounds like what you're saying is we need to research some of these others. At the moment even researchers can't work with these drugs.

DUKE: That's right. You can't even do scientific research on illegal drugs. So it's anecdotal. But for example, with respect to marijuana you can go to Jamaica, where they smoke marijuana like kids eat candy; I mean, it's just part of their culture. They smoke it like cigars. And there have been studies of the health of the Jamaicans, and there have been no findings that marijuana has any adverse effects on their health or anyone else's. Now, I wouldn't eliminate the possibility that marijuana may have some adverse health effects. I'm simply saying it has not been established. And in any event it's clear that it doesn't rival in any way the adverse effects of tobacco or high uses of alcohol. Alcohol in moderation may be good for people; there's some evidence that it is. Immoderately consumed it is very damaging to the human body. There's simply no evidence that marijuana or cocaine or heroin has those effects.

MISHLOVE: Well, I suppose also if we were to take the billions of dollars that are spent trying to interdict drugs that are coming in, and in other ways to fight the war on drugs, that we might be able to establish more drug treatment programs.

DUKE: Absolutely. We spend $40 billion a year on the drug war, state and federal.

MISHLOVE: Forty billion?

DUKE: Forty. At least thirty of that, at least, is law enforcement. We're also losing, privately, about $200 billion a year in crime costs, the crime which is generated by drug prohibition. So privately and publicly we're up to about a quarter of a trillion dollars a year. That's a thousand dollars per year for every American. The most grandiose suggestion concerning the cost of making treatment available to every person that's drug dependent is in the nature of a billion dollars. We don't spend a billion dollars on drug treatment. We could spend $10 billion, $20 billion, $30 billion, and we'd be ahead of the game. A recent study found, for example, that a dollar spent on drug treatment is seven times as effective as a dollar spent on interdiction. I don't quite know how they reached those figures, but no one is disputing that the most cost-effective way to deal with drugs is treatment. I would simply suggest that the reason that people are somewhat skeptical about how well treatment can respond to the problem is that a lot of people don't really want treatment, they want their drugs. And if people are not motivated to respond to treatment, they won't respond to treatment very well. The problem is that those people, their lives are a mess. They're in psychic and sometimes physical pain; they're medicating their pain with drugs. You have to do something about the pain. You have to give these people some hope, particularly kids in the inner cities. You've got to give them some reason to think that there's a place for them in this society. If you give them some hope and some help, some job training, give them some skills, then I think we can work our way out of the drug addiction problem. But we can't war outselves out of it. That makes the problem worse.

MISHLOVE: It sounds like really what you're articulating is Lyndon Johnson's old idea of the war on poverty.

DUKE: Well, I think we should have given that a little longer try than we did, actually. We waste a lot of money in any kind of government program, and I think that's perhaps inevitable. We've made a lot of mistakes. I don't quite know the answer to how we're going to give a lot of people who are basically rejects from American society, I don't quite know how we're going to bring them back into the society, but that's what we have to do. And I think we ought to have a Marshall Plan on these inner cities. Any money we spend in there, even if we make a lot of mistakes, is much better than spending it on prisons, because that makes the problem worse, not better.

MISHLOVE: So you're saying that if we were to take the problems that we now have, let's say, with cocaine, and make it a problem comparable to the kinds of problems we're now facing with alcohol or tobacco, that would be an improvement.

DUKE: Well, there is no way that the cocaine problem could approach the alcohol or the tobacco problem. That's simply inconceivable. The number of people that use cocaine, that abuse cocaine, in this country is about a million people.

MISHLOVE: A million people.

DUKE: The number of people that drink alcohol is something like 80 million. That distribution's not going to change radically.

MISHLOVE: Even if, if you legalize cocaine, all sorts of young people -- I mean, popular music might start promoting it. A youth culture could promote it. You don't see that happening?

DUKE: Cocaine is on its way out, no matter whether we legalize it or we don't, for the simple reason that it is a bad drug for a lot of people -- not everybody -- but it causes a lot of problems with a lot of users. People learn that. They don't learn it from the government. They learn it from their friends and from experience. Cocaine is on the way out.

MISHLOVE: But there's always something else on the horizon.

DUKE: Yes, absolutely. But ironically, the worst drugs, actually worse probably than tobacco, are household products that are used as drugs that are inhaled, like Scotch-gard or butane -- a lot of these things that are not regulated as drugs and can't be. Those are really killers.

MISHLOVE: And they're already legal.

DUKE: They're legal. So that if you turn people away, let's say, from marijuana, which is a relatively harmless drug, and they seek a substitute like butane, what have we accomplished? We're killing people when we do things like that. You look around the world. There are many parts of the world where cocaine or heroin are cheap, and at least de facto legal. Very few places in the world have the drug problems that we do, and Western Europe doesn't have anything remotely as serious a drug problem as we do.

MISHLOVE: So would you hold Western Europe up as a model for us?

DUKE: Yes. Well, as a model short of legalization. What's going on in Western Europe is this. Americans exported our attitudes about drugs. We demanded that Europe go along with us. We demanded that South America go along with us. We have bribed them, we have threatened them, we've cajoled them. And so they have gone along with us, and they prohibited the same drugs we prohibited. But they have seen what's happened to us. They've seen what's happened to Colombia and Peru. They've even seen, in some cases, what's happened to their countries from drug prohibition, and they are, in a rather dramatic way, stepping aside and saying, "Sorry, U.S., we're not going along with you anymore. We're not going to ruin our society. We're not going to increase the number of people that are getting AIDS from dirty needles just because you think we shouldn't allow people to use clean needles. That's crazy." Throughout much of the United States it's still illegal to possess a hypodermic needle.

MISHLOVE: Well, there's a difference between the legalization of drugs and what is often called, and was very popular twenty years ago when I was a student in criminology, the decriminalization of drugs -- the idea that drugs could be legal but highly regulated.

DUKE: Well, I think they could be illegal. Decriminalization is a vague term.

MISHLOVE: It means many different things.

DUKE: Yes. With respect to marijuana, for example, it frequently means that you can possess it for personal use, you can grow it, but you can't sell it, or you can't perhaps even give it away. That would work with marijuana. That would be progress, if we made it a crime to sell it but not to use it. But I think that would be inadvisable for a number of reasons. For one thing, it's just kind of silly to say to somebody in Brooklyn, "You have to grow your marijuana; otherwise you can't use it." So someone with a back yard where they can grow marijuana has free access to cheap marijuana, but someone in a big city can't buy it.

MISHLOVE: Can't even get the seeds, I suppose.

DUKE: And some people can't grow anything. They look at a plant and the plant dies. So it seems to me kind of silly to place a lot of distinction on whether you grow your own or you don't. But it still would be progress. I think essentially that system would result in the breakdown of prohibition generally. For example, in Holland, de facto it is legal -- not de jure, but they simply as a matter of formal policy do not prosecute people for use or possession of small quantities of marijuana. It is still the official policy that selling marijuana, at least in large quantities, is a crime. But in fact they don't enforce it, because it seems hypocritical. If it's all right to consume something, it ought to be all right to provide it to the consumer, as long as you do it honestly and you don't poison them or cheat them or whatever. Anyway, that's one definition of decriminalization that would be progress. But see, the Holland approach, and the decriminalization approach, really misses a great advantage that legalization would have, and that is certainly it should be regulated. The great advantage to health and addiction problems, and so forth, of regulated legalization is that we could control -- we could require all sorts of warnings on the package: "If you mix this drug with alcohol, it's dangerous. Don't mix this drug with the following drug. This contains X percent of THC."

MISHLOVE: Which is the active ingredient in marijuana, for people who may not know.

DUKE: Yes. "It also contains the following fillers, or chemicals that are used to enhance flavor or whatever. And here they are. And you may be allergic to some of these." And so on and so forth. Like we just learned, for example, recently that tobacco companies are putting 700 chemicals in tobacco and not telling us. Well, I would say in a sensible regulatory system, at least the chemicals that are put in that are at all dangerous ought to be revealed, along with the dangers. We can control all sorts of things. We can't control anything if it's illegal.

MISHLOVE: And right now, if somebody should buy drugs illegally and be cheated in one way or another, or poisoned, they have very little recourse to go to the law for any help because they were already engaged in an illegal act.

DUKE: Yes. About the only recourse they can have is to get violent. But frequently marijuana is very low-grade, even non-marijuana. It's junk, it's garbage. And it's laced with other drugs, so that people that think they're buying marijuana are frequently not even getting marijuana.

MISHLOVE: Is that right?

DUKE: That's what I've heard our government say, anyway.

MISHLOVE: I see. I don't know whether you can trust that.

DUKE: I'm not sure either, but that's what --

MISHLOVE: I have a feeling that most marijuana smokers might know the difference.

DUKE: That's true. But I think, for example, that there are drugs that can be added to marijuana that will give an illusion of enhanced potency, or at least give some kind of a reaction that some people will regard as desirable.

MISHLOVE: Well, what all of this boils down to, I suppose, is the absolute absurdity of our present social policies, and when we maintain such absurd policies and reinforce them with all sorts of propaganda and social reinforcement, I would suspect it undermines the whole fabric of the society -- that people lose respect for social institutions in general.

DUKE: Certainly, certainly. The government has to lie to us in order to maintain this drug war. It's essential. And a lot of people know that they're being lied to, and it does undermine respect for law. It certainly does.

MISHLOVE: You know, an interesting thing that you wrote in your book -- you refer to Karl Marx's famous statement that religion is the opium of the people, and you suggest that maybe it's also the other way around -- that opium and other drugs are really the religion of the people.

DUKE: Well, they certainly compete, in a way, and that's one of the reasons I think that it's hard to have rational discussion about at least some drugs. Certainly some of the psychedelics, for example -- some people think that a psychedelic experience is a religious experience. And to the extent that one believes that -- for example, some of the Indians that use peyote, that is an essential part of their religious experience.

MISHLOVE: And has been for hundreds of years.

DUKE: And of course many of our mainstream religions use alcohol as part of their ceremonies.

MISHLOVE: Indians also use tobacco ceremonially.

DUKE: Yes. So there's a real linkage between drugs and religion. Some people, for example, suggest that the answer to our drug problem is religion, and in a way I guess I agree with that. If we were all sufficiently religious and enjoyed the experience that many people enjoy with religion, we would have very little need of drugs. But I don't know how to get people religious who aren't inclined to be religious.

MISHLOVE: But you also seem to be suggesting, without advocating the use of drugs, that the context in which they're used is quite important to the experience, and that, without advocating the use of drugs, maybe we're missing something by prohibiting them all -- that there are some positive uses we haven't been able to really understand well.

DUKE: Oh, I think that's quite likely. For example, there's substantial evidence that marijuana can be useful in the treatment of some kinds of mental illnesses. There's a fairly unknown drug called ibogaine that is thought to be useful in treating alcohol addiction and mental illness and various other problems. So again, making everything illegal makes it very hard even to investigate some of these claims.

MISHLOVE: At least legalization would open up a potential to research these questions.

DUKE: Yes, and we might in fact find that some drugs are terribly harmful, and if we found that out in an honest way, that would be desirable.

MISHLOVE: Better than the dishonest propaganda we now have. Well, we're out of time. Professor Steven Duke, thanks so much for being with me.

DUKE: Thank you. It's been a pleasure.

- END -


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