High Court Fails its Own Drug Test
We as a nation are obsessed over drugs, and in a way we are quite schizophrenic about it. On the one hand we live in a culture that is almost drug-based, in the sense that millions of dollars are spent advertising and millions are spent buying various drugs. Literally millions of citizens virtually depend upon various drugs to survive (the elderly with their various ailments, ordinary people getting prescriptions filled, hospitals using them to ease the pain of their patients), while using perfectly legal drugs like alcohol and tobacco in their leisurely pursuits.
On the other hand, when it comes to those few drugs that have been made illegal - marijuana, heroin, cocaine, etc. - we are hell-bent to engage in the worst form of social control, ranging from arrest and imprisonment of thousands on a daily basis to mandatory drug testing of everyone from school children to adult workers and athletes. Yet despite more than a trillion dollars in expenditures on the Adrug war@ during the past couple of decades (not to mention the millions each year just to build and maintain all the prisons and jails we use to house those we send away), the drug Aproblem@ is still with us.
I emphasize Aproblem@ for a very specific reason. It is no accident that only certain drugs have been made illegal in this country. A cursory review of the history of drug laws (as documented in several scholarly histories) shows that virtually every drug that has been made illegal (starting with opium in the 19th century) has been used mostly by those with the least amount of power and status in society. Chinese in the 19th century (opium), Mexican-Americans in the 1930s (marijuana), African-Americans and other minorities in the 1960s (heroin), students and young people (especially Ahippies@) in the 1960s (marijuana), and African-Americans in the 1980s and 1990s (Acrack@). In the 19th century, by the way, the state of New York outlawed certain forms of alcohol used almost exclusively by the powerless and non-unionized working class (mostly beer) and after passage some legislators celebrated in their offices by drinking whiskey - a favorite of the upper class. Also, in the 1970s during the crackdown on marijuana it was discovered that in some parts of the country the sons and daughters of the business and professional class started getting busted (they discovered the pot was not nearly as dangerous as their parents had told them), the enforcement of the laws was lessened (can=t have our sons and daughters connected in any way with the Arabble@).
In other words, the drug war has been aimed almost exclusively at the poor and the powerless - just check jail and prison statistics on those convicted for drug offenses. It has nothing to do with the alleged Adangerousness@ of the drugs in question. If we were really concerned with eliminating the most dangerous drugs, then we would be targeting users of tobacco and alcohol, since these two drugs kill more than 500,000 every year. By the way, a mere 5,000 die each year from the illegal drugs - according to recent estimates by several different experts. No one seems to die from using marijuana. But of course we cannot outlaw tobacco and alcohol (we already tried alcohol and we know what happened), since corporations control these two drugs and engage in their own brand of Atrafficking,@ while spending millions of dollars lobbying our legislators. Speaking of Atrafficking,@ we send men and women away for 25 years or more for Atrafficking@ small amounts of heroin, marijuana and cocaine (who sell these drugs for the same reasons tobacco and alcohol are sold - pure capitalism and the law of Asupply and demand@), yet think nothing when we see people driving beer trucks or putting cartons of cigarettes on grocery store shelves all over the country.
The Supreme Court failed its own drug test in its recent 5-4 ruling in a case started by a high school honor student who was humiliated with one of these absurd drug tests (she is one of those who did not need harsh warnings). The majority of those on the high court are apparently ignorant of certain undeniable facts about drug use and our attempts to control it. In the first place is the drug testing, which is part of an overall flawed strategy of social control based upon the old deterrence argument that you can change people=s behavior through fear. Those who are really motivated to use drugs, will figure out a method of avoiding detection; those who are not motivated to use drugs will not need to be warned of the possibility of arrest. Also, when it comes to teenagers and young children, we are saying that we do not trust you and that everyone is suspect. Then there is the test itself, which is far from perfected and which, by the way, has become big business with dozens of companies getting in on the action. The problem is what researchers call Afalse positives@ and Afalse negatives.@ A false positive is where you say something is true but it turns out to be false, such as claiming that someone has used drugs and they have not. A false negative is where you claim that something is not true and it turns out to be true, such as saying someone did not use drugs when they did.
Now with our Azero tolerance@ mentality, if someone tests Apositive@ for drugs and it turns out that they did not use drugs, and you suspend them or segregate them into a separate school or program for drug users, what have we accomplished, other than unnecessarily alienate and stigmatize someone? But let=s say that the test is accurate and you identify a young person who has used an illegal drug (or a worker who has used an illegal drug). Does this mean that they are an Aaddict@ and need to be punished? Are we saying that if you smoke one marijuana cigarette you are therefore hopelessly Ahooked@ or are you merely experimenting? (By the way, why don=t we test people for alcohol or tobacco?) If a worker smokes a joint over the weekend or even experiments with some other drugs - like heroin or cocaine - does this mean that he or she is hopelessly addicted and unfit to perform their job? Research on drug use has consistently reported that millions use illegal drugs on a more or less regular basis and work full time with few problems.
Now I am not saying that drugs are good for you, nor am I saying that if you consistently use certain drugs there will be no problems. But why use the legal system to deal with this? We know the dangers of alcohol and tobacco and we have engaged in plenty of educational and treatment efforts to deal with these two problems, without having to resort to the criminal justice system. History tells us that whenever you try to use the law to control vice the failure is monumental and creates more problems, not the least of which is creating an underground supply for the prohibited and highly demanded substance and cause corruption throughout our legal system (I have yet to hear of a significant police scandal not tied directly to vice laws like alcohol, drugs, prostitution, etc.). We have all sorts of serious medical and health problems that are not dealt with by the legal system - imagine passing a law prohibiting overeating! (I can see it now, thousands rounded up for flunking their weigh-in!)
I have heard stories about this or that youngster (or even adult) who just sits around all day smoking pot or wastes away his or her life using all sorts of drugs. Certainly this is a problem that ought to be dealt with, just as the problem drinker, smoker or overeater in your family needs help. But, given the failure of the legal system, why arrest the pot smoker and not the alcoholic or overeater? The legal system only needs to become involved if someone gets behind the wheel of a car under the influence of a certain drug and causes a serious accident - just like we do with drinking and driving. We don=t lock up someone who has a couple drinks at home do we? Then why arrest someone who smokes a joint or snorts cocaine at home? And if someone is smoking pot or using cocaine or drinking alcohol on the job, then companies have policies to deal with it.
It is time to Aget smart@ rather than Aget tough@ in dealing with drug problems. Let our criminal justice system deal with serious crimes and stay away from drug use and other consensual crimes. We have more than 2 million people locked up and our incarceration rate has increased four-fold during the past 30 years, while hundreds of mostly poor and minority communities have been devastated by the drug war as fathers and sons, mothers and daughters have been arrested and summarily sent to prison or jail. At least one-third of the recent increase in prison populations can be directly attributed to drug convictions. Yes, we have a drug problem - with alcohol and tobacco heading the list, far ahead of illegal drugs. About the only groups who have benefited from the drug war are those representing the criminal justice industrial complex (I’ve had drug enforcement agents at both the federal and local level tell me what they are doing is useless against the drug traffic, yet provides them with a good living) along with politicians who merely want to get re-elected by sounding Atough on crime.@
Written in the spring, 2002, but never published.