Sunday, January 27, 2013

One Life to Save

One Life to Save


President Obama, in his January 16 speech on gun control, quoted an old truism: “If there’s one life that can be saved, we have an obligation to try.”  This statement, like most folk wisdom, contains a kernel of truth, but is on the whole misleading. The major problem is that it ignores that even saving a life incurs some cost, and that cost may be measured in lives itself.

For instance, requiring pleasure boats to carry life preservers does save lives, but it costs lives as well.  Life preservers have to be manufactured, and manufacturing processes entail industrial accidents, some of them deadly.  The manufactured preservers have to be trucked from factory to boaters; every additional truck on the highways adds fractionally to the total of automobile deaths.  In the example the number of lives saved far exceeds the number of lives lost, thus the requirement of life preservers is justified.  But the calculus is often not that simple.  As the life preserver example suggests, determining the actual cost can become complex, indirect and confusing.

It can also be psychologically confusing.  One favorite experiment used, with many variations, by game theoreticians and social economists involves the following scenario.  The subject is told that he controls a railroad switch and a runaway train is speeding toward it.  If he does nothing, the train will run over and kill a group of five workers trapped on the track, but if he throws the switch, the train will be diverted onto the alternate track and run over only one person trapped there.  This dilemma should be a simple one for homo oeconomicus, the rational man so beloved by classical economists.  The sacrifice of one life to save five seems the only rational thing to do.  But real people have major problems reaching this conclusion.  They make a strong moral distinction between doing nothing, even if five people die, as opposed to some positive action that will intentionally kill one person, even if five are saved as a result.  (Dan Ariely, one of the pioneering experimental economists has several books explaining social economy to the general reader and both Freakonomics volumes contain information on these issues as well.)

A cost benefit analysis of the War on Drugs is complicated by all three of these problems.  Much of the pro-Prohibition argument hinges on the theme of saving lives at any cost.  The actual costs of Prohibition are hidden by long, complex, and indirect causal chains.  Psychological and subjective feelings greatly affect the weight of the prices assigned to actions taken to ban drugs and drug use.

The absolutism of “save one life at any price” shows up in the drug law debates in many guises.  The most common is the objection that a proposed reform will “send the wrong message to the children.”  Is it really true that telling a kid his grandmother uses marijuana to help treat her cancer will lead him to become a drug addict?  Does it matter that needle exchanges lead to precipitous drops in the rate of blood-borne infections and protect the families of drug users if they hypothetically encourage one user to continue his bad habit?

Tangled causation is also problematic in analyzing drug law problems.  What causes opioid overdose deaths?  In the pre-Harrison Act era, when most opiate users were middle class and with stable home lives, overdose deaths were so rare as to be unnoticed.  When Switzerland began distributing free medicinal grade heroin to addicts, their overdose death rate dropped to … zero.  On the other hand, in drug Prohibition America, overdose deaths are frequent; frequent that is until one looks closely.  The primary fact is that most street addicts – that stereotype most people have of drug users – don’t die drug-related deaths.  They die deaths of poverty and homelessness: starvation and malnutrition, exposure and hypothermia, infections, and muggings.  Even the drug-related deaths are usually casualties of the Drug War and not consequences of drug use.  They are deaths from drug adulteration (even strychnine has been used to cut heroin), drug substitution (fentanyl for heroin, heroin for cocaine), improper injection methods (embolisms, injected particles, infections), reduced tolerance after detox, or lack of medical assistance when friends fearing arrest refusal to take an overdosing companion to the emergency room (after all, overdose itself is rarely fatal, and it operates so slowly that time to get medical assistance is available).

The Drug War also adjusts the social and psychological costs to make the drug laws appear effective.  A century ago, middle-class housewives with opiate habits were perceived and treated sympathetically, but within a decade of passage of the Harrison Tax Act addicts were objects of scorn and fear.  Drug Prohibition grew from evil Chinese luring innocent white girls into their opium dens, to cocaine-fueled Blacks on rampages of rape, to violent Mexicans stoked on their loco-weed.  Later, marijuana smokers ranged from unwashed, Un-American dropouts and war protesters to coach-locked stoners.  In short, drug users became something outside toe pale of civilization, something non-human.  Their lives and well-being dropped out of the cost analysis entirely.

A proper study of the utility of the drug laws means that these complications must be accounted for.  The costs of action must be balanced against the usually overlooked or miscalculated costs of action.  Drug reformers must insist on a balanced and fact-based argument.

Tuesday, January 22, 2013

Roe v. Wade and Prohibition

Roe v. Wade and Prohibition


Today marks the fortieth anniversary of Roe v. Wade, the Supreme Court decision that held state laws prohibiting abortion are unconstitutional.

That’s right, Roe was a Prohibition case.  Until that case was decided, a thriving black market in abortions existed in all of the states, and it exhibited the flaws of all other black markets, including that for drugs now nourished by drug Prohibition laws.

Most of today’s population is too young to remember pre-Roe America, and many of them assume that abortions first became common after that date; but just as drugs did not disappear with the Harrison Tax Act, abortions took place frequently in the days before and people drank beer before Alcohol Prohibition was repealed.  Scholars may argue whether the total annual number of abortions went up or down after Roe (one of the problems with black markets is that reliable statistics do not exist), but prohibited abortions took place in the millions.

Just like prohibited liquor or drugs, prohibited abortions were dangerous.  The plaintiff’s lawyer in Roe still wears a lapel pin crafted to show a coathanger covered by a cancellation sign.  Women went to untrained, unlicensed back-alley abortionists who operated unsterilely. They tried to abort themselves by tumbling down stairs or ingesting poisons.  For many, that coathanger was the instrument of choice.  And many died.  Or became sterile from botched procedures.  Just as Switzerland saw overdose deaths disappear when they began distributing free, pure heroin to addicts, America saw abortion-related deaths disappear when abortions moved from the back alleys to the doctors’ offices.

Beyond the back alley butchers, illegal abortions built a thriving commerce, with transactions numbering in the millions.  Women who were well-off could simply travel to other countries (or to a very few of the states) for abortions legal at those destinations.  Ironically in light of its later role as a supplier of illegal drugs, Mexico was the abortion destination of those with less money.  When I was a teenager in Texas, we joked about the boys going to Juarez for the live sex shows while the girls went to erase the results of live sex.  Unscrupulous doctors managed to maintain abortion practices in the shadows, much like some doctors today run “pill mills”, selling opioid prescriptions to be filled by unquestioning pharmacists.  One typical arrangement would be for cooperating OB/Gyn practitioners in different towns to refer patients for consultation and possible D&C procedures.  The tissues removed by those D&Cs would almost always contain a fetus, quietly disposed of with the other medical waste from the examining room.

One other parallel should be noted.  All of the Prohibitions are rooted in attempts of powerful groups to impress their religious beliefs on the behavior of others.  The alcohol “temperance” movement, laws against prostitution and gambling, and drug Prohibition all sprang from the fundamentalist Christian activism of the nineteenth century, and the anti-abortion movement is an aspect of those more concerned with the immortal souls with which they believe fetuses are imbued with than with the health and safety of humans.

As we celebrate the fortieth anniversary of the end of one Prohibition, with the accompanying improvement of public health and safety, we must continue to work to repeal drug Prohibition as well.

Wednesday, January 16, 2013

Sneezing at the Drug Laws

Sneezing at the Drug Laws


I’m a retired law professor, one of that privileged class of moderately successful elderly white males.  So why is the DEA picking on me?  It’s because I – and millions of others like me – have a runny nose.  Allergic rhinitis plagues may life and I need regular doses of decongestants to function well.  These, primarily norepinepherine and pseudoephedrine, are over-the-counter drugs with more than a half century of safe, effective, reliable use.  But the DEA makes it as hard as it can to make it difficult for us to obtain.

The drugs must be kept behind the counter in a registered pharmacy and purchasers must provide an ID and sign a register.  Quantities are limited to one package per month.  In my case, I can purchase a pack of forty-eight capsules every thirty days.  I take two pills a day.  Do the math.  Forty-eight pills will last twenty-four days, so every three or four months I must get a friend to conspire with me to break the law by making a straw purchase.

I’m better off than many people.  I live in Houston, with many twenty-four hour pharmacies; but many people live in small towns with just one or two pharmacies in the town and those close early.  Many others live in small towns without a drugstore at all.  Of course, those people can go into the town’s convenience store or gas station and by unlimited quantities of aspirin, ibuprofen, or acetaminophen.  All of these drugs are more dangerous than the decongestants, each of them killing several hundred users a year.

Why is the DEA so hard on the users of these beneficial, harmless drugs?  These drugs can be used as precursor chemicals by a few people who use them to make small illegal batches of a legal drug.  That’s right: methamphetamine is a Schedule II drug that any doctor may prescribe and each months thousands of doses of it (under the trade name Desoxyn) are prescribed for children with Attention Spectrum Disorders.  It has been a legal drug since the 1930s and in the 50s and 60s was one of the most widely used prescription drugs.

The irony is that even if the DEA could be successful in keeping decongestants out of the hands of meth cookers (which is impossible), the effect on the availability of illegal methamphetamine would be minimal at best.  By far the largest share of illegal meth is smuggled (i. e., imported) from Mexico, where factories import their precursors from Asia.  (This share is probably 70 – 80% of the total, but one problem of forcing a market into illegality is that normal statistics are not available.)  The next largest fraction (probably over 10%) comes from diversions from the legal Desoxyn market.  The percentage attributable to illegal cookers is only in the single digits.  Millions of allergy sufferers are hampered in getting their medicine in a vain effort to deter a few hundred criminals.

Why am I obsessing on something that, I have to admit, is only a minor hassle in my life.  If I want to discuss the collateral damage from the War on Drugs, I could discuss many issues with more serious consequences.  Medical marijuana, which hundreds of thousands need to cope with deadly or debilitating conditions.  Eighty-three year old grandmothers brutally gunned down when police burst through her door executing a no-knock warrant on the wrong apartment.  Kids watching their pet dogs shot down by a SWAT team smashing into their house.  Children struggling to grow up while their mother sits in federal prison on a twenty-year drug sentence.  Drug users dying from contaminated black market drugs.  Young men denied education and hope of a career because of a drug conviction.  Inner-city babies sleeping in bathtubs to avoid stray bullets from street drug markets.

The utter banality of waiting in line at the pharmacy makes it ideal for studying the costs of the War on Drugs.  The individual cost of each episode is small enough to go unnoticed, but it quietly spreads to affect millions of innocent civilians.  It focuses a spotlight on the way the malignancy of Prohibition has metastasized throughout the entire social structure.  It’s clear evidence that the indirect costs of the WoD is paid by everyone.

So, please excuse me while I find a copy of the Controlled Substances Act to blow my nose on.  

Sunday, January 13, 2013

Enforcing the Law Enforcement Laws

Enforcing the Law Enforcement Laws


Society looks to police forces for protection and safety, but are these organizations protectors or predators?  The spectrum of armed groups in society ranges from somewhat disorganized criminal bands through vigilante posses and the Ku Klux Klan to police forces to secret and political police.  The question is what, if anything, distinguishes the police from criminals and klansmen on one hand and Gestapo and Chekhists on the other.

The rule of law plays a major role in controlling the spectrum of violence.  First, it limits those who can use violence only to state-sanctioned actors.  Armed robbers cannot legally shoot their victims and the Klan cannot form lynch mobs.  Criminal gangs face punishment if they settle their quarrels with machine guns.

On the other end of the spectrum, the rule of law limits and controls the process and procedures of violence.  Without these controls, including the one that the users act visibly, police agencies become Gestapo-like secret police.  Lack of both controls and procedures leads to midnight arrests, no-knock raids, secret and coercive interrogations, and ultimately to Gulags.

Limits on the targets of violence are also necessary.  One of the major flaws in American law enforcement has been to allow the police themselves to redefine their role from “serve and protect” to “get the bad guys”.  The rule of law limits the application of violence to those who have broken the law or who are reasonably perceived as posing an immediate and realistic threat to cause harm.  In those cases only that measured violence necessary to carry out those limited ends is permissible.  Viewing law enforcement as “getting the bad guys” reduces the police to just another street gang with badges (and one should wonder why they insist on covering their badges and wearing masks while executing that thuggish behavior).

While enforcement of the laws against murder, robbery, and rioting are important, strong enforcement of the laws governing law enforcement itself are even more important.  Insisting that the organs of the state scrupulously obey the laws themselves is the most important bulwark against the totalitarian state.

How do American police and judicial organs stack up?  The record is not very good.  Some examples tell the story.  First, a disclaimer is needed.  Most police officers, prosecutors, and judges do their jobs in a professional manner, but most is not enough.  The old adage is that one rotten apple can spoil the barrel – and just a few outlaw cops are enough to destroy public trust in the system.  Commercial air travel now averages less than one fatality for every four million flights, but many are still afraid to fly.  Law enforcement will never be as exactingly correct as air travel, but it should not fall as far short as it does.

The following is a short catalog of some of the major ways in which law enforcers violate the laws of law enforcement:

Profiling:  Anyone who has followed the history of the drug laws knows that who one is is a better predictor of arrest than is what one does.  The rate of arrest and prosecution of young black males is far above their proportion in the population in general or of drug users.  Around a third of black males are currently under judicial supervision – bail, probation, incarceration, or parole.  An Hispanic federal district judge in South Texas used to tell of the numerous times he was stopped while driving by the police (and when he identified himself, the “reason” for thee stop quickly vanished).  In the words of the old Big Bill Broonzy song, “If you’re white, alright; if you’re brown, stick around; but if you’re black, get back.”  In today’s terrorism hysteria, mid-eastern stereotypical characteristics can also land one in the hands of the police.

Testilying:  Police officers lie under oath; the lie on the witness stand and in oaths supporting search warrant applications.  Even though these lies are felonious, they are common enough that courthouse jargon has invented a word for the act: testilying.  Since many criminal cases boil down to a “he said; he said” contest between the officer and the defendant and since juries are strongly biased in favor of believing the cop, testilying most often results in getting the “bad guy”.  Many prosecutors know that the cop is lying, but they still adduce the testimony, getting a conviction for their records.  They are suborning perjury, itself a felony.

One of the most insidious effects of testilying is that it is the bedrock that allows the cop to carry out most of the other tactics discussed.

Snitches:  My career in the law – both practicing and teaching – extends only over forty years and three states, so I haven’t seen everything.  So when I say that I have never seen a jailhouse snitch tell the truth, I’m not stating a universal; but the evidence is pretty damn’ strong.  The problem is that snitches (“informants”, to use the mealy-mouthed euphemism) are paid for their testimony – and a policeman or prosecutor is not going to pay for exculpatory evidence.  Snitches are paid either in cash, usually from forfeited assets, or leniency in pleas or reduced sentences.  Some DEA professional snitches have averaged six-figure incomes over periods of several years, and one Mafia killer was released into the witness protection program in return for testimony against his boss.  He was later convicted for his violent activities in a drug gang organized while he was a protected witness.  The most notorious case was that of Whitey Bolger, a Boston mob boss with over twenty killings to his record, who was protected from both state and federal prosecution for seventeen years by the FBI.  Snitches are used primarily in organized crime and drug cases, in which neither complaining witnesses nor physical evidence are available.

Coerced Confessions:  In the 1990s, five teen-aged (one was still a juvenile) minority boys were convicted of the rape and murder of a jogger in Central Park (the case is the subject of a new book, The Central Park Five).  They were convicted on almost no evidence but their convictions.  Unfortunately, they had not done the crime.  Many years later the true murder was found and his guilt confirmed by DNA samples found on the corpse.  The boys were exonerated, but the question remained: why did they confess?  The sad story is that this kind of coerced false confession is wide-spread and the police have developed many techniques that walk right up to – and sometimes cross – the line of physical torture.  The goal of the cop, whose performance is based on arrests and not on convictions, is to clear the case, not to find the actual criminal.

As depressing as this catalog is, it could be much longer.  It has not mentioned throw-down evidence, contempt of cop, or “You may beat the rap, but you can’t beat the ride” among many other defects in the ways the laws ar enforced.  The important point is that all of these behaviors involve the breaking of the law by the law enforcers.

And they are almost never prosecuted.  Convictions are regularly and routinely overturned because of these kinds of law enforcement behavior, but prosecution, let alone convictions of prosecutors or police for perjury or subornation of perjury, civil rights violations, or many other crimes are so rare as to be invisible.

It’s time to call the system to task.  Citizens must realize that a thug with a badge is just a thug and take responsibility for insisting that elected officials oversee the administration of justice as vigorously as they do other violations of  peoples’ rights and persons.

And in the meantime, make sure a recorder (preferably video) is running anytime you confront a cop.

Required Reading (necessary for any concerned citizen):

Alexander, Michelle, The New Jim Crow

Schenk, Barry, Peter Neufeld, and Jim Dwyer, Actual Innocence

Thursday, January 3, 2013

Children of Promise

Children of Promise


I have been hosting “Drugs. Crime & Politics”, a public affairs television program of the Drug Policy Forum of Texas, for about ten years now, but the interview that most sticks in my mind dates to the earliest years of that show.  The interviewee (whose name, I am ashamed to admit, I have forgotten) was a retired juvenile probation officer.  During her work with teens in trouble and with troubled teens she discovered that many of them – a surprising number – had one or both parents in prison.

When she retired, she visited the principals of several Houston high schools and convinced them to allow her to come on campus and set up self-help groups of teens with parents in prison.  The only assets required for this project were her time, knowledge, and concern for the kids.  The kids did the work themselves.  Meeting at school after the school day, they set the agenda, much of which was just talking and sharing with each other.

I lost touch with this effort, so I can’t give a long-term report on its success; but two news items this week brought it to mind.  One was tragic and the other optimistic.

The tragic event happened in Bellaire, Texas, a small suburb of Houston.  A police officer stopped a car, and when he approached that car the driver shot him.  The owner of a near-by business ran out to help and the driver killed him as well.  For the first time, this small town lost a officer killed in the line of duty.  The alleged killer was quickly arrested, ad soon details of his life history emerged.  This twenty-two year old had a non-violent criminal record, but the crucial fact in his life happened early.  He was three years old when his father was convicted of drug dealing and sentenced to forty years in Texas prison.

The optimistic event was a television interview with a young woman in New York City.  For several years she has helped operate Children of Promise, a charitable organization she had helped found.  Children of Promise offered material support, counseling, and just good friendship to children of all ages in Brooklyn who had a least one parent in prison.  The name “Children of Promise” illustrates the optimism this group brings to those they aid.

It’s a pity her group didn’t find the Bellaire shooter nineteen years ago.

This large group of abused children – abused by all of us through our unthinking penal policies – contains a large number of victims of the War on (People Who Use) Drugs.  These children are being punished, not for anything they have done, but because their parents ran afoul of unthinking social mores manifested in unenforceable laws.  They are punished not only by present deprivation, but by having their futures stolen from them.  I will not call them “collateral damage” because that term is too cold and clinical for what we are doing to these kids.  A better name for them is “Children of Perdition”  because they are damned to a life of harm and despair – and too often of harm to those around them.

The best thing we can do for this group of children is to keep it from growing by repealing the destructive War on Drugs which has already created too many casualties.  But in the interim, we can do like the retired probation officer or the woman in New York.  We can reach out personally and in groups to mitigate the harm already done to those children among us.

Help change the Children of Perdition into the Children of Promise.

[If anyone wants to watch selected programs from “Drugs, Crime & Politics”, they are archived at or can be accessed by links from .]