Adam Sieff, Staff Writer
Ideology: Liberal | Writing From: Columbia University

Yesterday in Los Angeles, City and County attorneys gathered at a posh Country Club to announce their plans to prosecute more than 800 medical marijuana dispensaries in the county of Los Angeles. Given the bureaucratic and temporal constraints imposed on the attorneys’ offices, their efforts—if actually carried out—will likely consume the majority of their elective casework.

While a 1996 voter initiative allowed marijuana to be consumed and sold for medicinal purposes in Los Angeles, the attorneys are basing their plans on a questionable reading of a recent decision by the California State Supreme Court.

My concern here, however, is not the immediate juridical basis for the prosecution—dubious as it is— but rather the larger context in which these marijuana retailers are subject to criminal investigation in the first place.

The history of drug regulation is not as far-reaching as modern enforcement practices would seem to indicate. Before 1914, drugs like heroin, cocaine, marijuana and alcohol were bought and sold on the open-market similar to how we currently consume vitamins or aspirin. The Harrison Act of 1914 was the first effort to regulate drugs in the United States, and it was merely a tax law enforced by the Treasury Department to ensure that drugs like opium and cocaine were sold through legal markets that paid sales tax to the federal government.

It was not until, of all things, the Eighteenth Amendment was passed in 1919, prohibiting alcohol, that real efforts were made to regulate drug use. As director of the nascent “Narcotics Division” in that year, Levi G. Nutt misinterpreted Webb v. United States, 249 U.S. 96 (1919) as a legal mandate to prosecute any doctor prescribing, in his words, “habit-forming drugs” because “any such prescription is without legitimate medical purpose.”

In fact, Webb—controversial by itself—only stated that a drug could not be proscribed “in such quantities as the applicant desired for the sake of continuing his accustomed use.” In other words, Webb was not fulfilling his professional medical duties in his pharmaceutical judgment. How Nutt deduced from this case that it was constitutional to criminalize the proscription of all drugs deemed “habit-forming” by no particular standard is not at all clear.

Moreover, if we applied this standard in 2009, nearly every doctor, and certainly every surgeon and psychiatrist in the country would be subject to arrest for prescribing pain-killers, anti-depressants, weight-loss pills, sleep aids and even generic nasal decongestants.

Perhaps most remarkable is that Nutt pursued this Quixotic crusade against “habit-forming” drugs at a time when 1 in 400 Americans, or 0.25% of the country, was determined to be drug dependent. Consistent with the failed logic of Prohibition, Nutt sought to eliminate the existence of certain drugs instead of tackling the actual—yet at the time microscopic—problem of drug abuse. Nevertheless, the Narcotics Division arrested thousands of doctors and pharmacists in the twenties and early thirties.

The consequences were dire. Fear-stricken doctors refrained from prescribing many drugs altogether in fear that they would be declared “habit-forming” by Nutt’s agency. As a result, an illicit drug market developed in cities across the country. Not unlike the Anglo-Chinese experience in the nineteenth century, the revelation that drug use could be profitable led interested actors to disseminate an interest in drug consumption amongst the masses.

The Jones-Miller Act in 1922 responded to this growing drug market with stiffer penalties. As with any other market regulation, however, the higher penalties raised the effective “barriers to entry,” making the illicit drug market less competitive, more monopolistic and thus more profitable for those large providers (organized criminals) best able to compete. In other words, reactionary, misguided and extortionate Federal drug regulations created, inflamed and perpetuated the “Drug War” we fight today.

According to budget statistics, this mismanagement and tilting at windmills cost the United States government $12.7 billion in 2008 alone. These costs, however, do not include the costs associated with incarcerating 340,000 Americans convicted of non-violent drug felonies, nor the opportunity costs of expending valuable and limited law-enforcement resources on drug related crimes.

Obviously, the legalization or even major decriminalization of drugs is, at this point, imprudent. But while we cannot correct or ignore the past errors of ignorant men, we can endeavor to not re-commit them. This requires establishing some factual understandings

First, drugs are not evils in need of destruction. Drugs are, in fact, inanimate chemical compounds without consciousness. They exist naturally and have done so for as long, or longer, than there have been humans to ingest them.

Second, humans will always use drugs, no matter their regulation. Humans have been using drugs since the beginning of civilization. Incans chewed Coca leaves, Olmecs smoked peyote and the Mesopotamians and Babylonians robustly traded hallucinogenic leaves and spices. This is to say nothing of the Greco-Roman infatuation with alcohol. It would be foolish to think eliminating drug use would be possible, even if it were desirable.

Third, drug use is not injurious, nor even maladaptive, by itself. It is drug abuse with which we, as both individuals and members of a political community, need to be concerned. The vast majority of drug users are not abusers.

These things considered, what is a realistic approach to drugs in 2009?

Two things come to mind. For one, we could eliminate mandatory minimum sentencing requirements and amend the federal drug schedule that bankrupts governments and reinforces the solidarity of criminal organizations by creating and socially alienating criminal martyrs. Additionally, the success of methadone treatment centers for heroin abusers has demonstrated that such a policy shift would also encourage drug abusers to seek help overcoming their problem.

Second, we could also begin to decriminalize certain drugs that have particularly low-rates of abuse and negative social consequences, like marijuana. In other words, the exact opposite of what is about to happen in Los Angeles.

Ignorant prosecution brought against legitimate and licensed marijuana retailers who purchase from legal medical growers empowers and emboldens organized criminal organizations that commit the violent crimes erroneously attributed to drug use more generally. It is sad that electoral pressures have put these men—who have manifestly demonstrated their unfamiliarity with drug crime—in a position to further aggravate the real problem.

For better or worse, democracy puts important socio-political decisions in the hands of the public, whose whims are more often satiated by half-truths and misinformation than real understanding.

Consequently, if we are to escape from the Drug War we have made, among the other self-fabricated crises facing our country, we will have to speak with our votes.

The Honorable Carmen A. Trutanich

Los Angeles City Attorney
800 City Hall East
200 N. Main Street
Los Angeles, CA 90012

Tel: (213) 978-8100                                                                                                                                                                                                                                                         Fax: (213) 978-8312

The Honorable Steve Cooley

Los Angeles District Attorney
County of Los Angeles
210 West Temple Street, Suite 18000
Los Angeles, CA 90012-3210

Tel: (213) 974-3512
Fax:(213) 974-1484