Smoke and Mirrors:
The War on Drugs and the Politics of Failure
by Dan Baum
When the D.E.A. came to my town in Missoula, Montana, in 1991,
and started busting people for five and ten marijuana plants in their base--ment,
confiscating their houses, and sending them to federal prison for five years,
I started looking into it. It's hard to surprise a reporter. Usually you
know what the story is when you set out, and it's a matter of getting the
quotes and facts and figures to back it up. But I would spend a day looking
into the drug war, and come home and say to my wife, "You won't believe
what the government can do now! You won't believe how many people are in
prison, how much violence we're causing, how much racial division we're
causing, what we've done to the Constitution!"
My book Smoke and Mirrors: The War on Drugs and the Politics of Failure
begins with the presidential campaign of 1968 when Richard Nixon won the
White House. Nixon depended in the 1968 campaign on mobilizing the white
middle-class constituency to resent and fear the anti-war left and inner
city blacks. Drugs began to be used as a code to stand for problems we could
not discuss in open language-race, class, politics. Nixon mobilized a white
middle-class constituency and won the White House on a law-and-order campaign.Then
he had to deliver, and that was the problem. The federal government had
no role in law and order except customs, organized crime, and interstate
crime. The average person on the street never saw federal law enforcement.
John Ehrlichman said to me, "Look, we understood we could not make
it illegal to be young or poor or black in the United States, but we could
criminalize their common pleasure. We understood that drugs were not the
health problem we were making them out to be, but it was such a perfect
issue for the Nixon White House that we couldn't resist it." Bob Haldeman,
Richard Nixon's Chief of Staff, wrote in his diary, "President Nixon
emphasized that you have to face the fact that the whole problem is really
the blacks. The key is to devise a system that recognizes this while not
appearing to."
That's the genesis of the modern war on drugs. And it has worked so well
for every administration since then that nobody can let go of it.
Lyndon Johnson had the Law Enforcement Assistance Administration in one
of his bills at the end of his presidency. He envisioned that as a $15 million
program, but it became a $1 billion program under Nixon. It was a way for
police to get radios and guns and cars and tac squads, and it set the precedent
for police expecting large funding from the federal government for certain
types of law enforcement. State and local police are under the same kind
of financial pressure that state and local school boards and social service
agencies are. But only the police can augment their budgets from drug crime.
Rapists go to prison but they don't lose their houses. Murderers go to prison
but they don't lose their houses. The Chief of Detectives in Missoula told
the local paper that drug enforcement is the only type of police work where
you get a return on your dollar. We have "free market" law enforcement.
Part of Carter's contribution was to combine two kinds of forfeiture that
existed in the law, criminal forfeiture in which you can take away property
that was bought with ill-gotten gains of people convicted of a crime and
civil forfeiture, which existed from the Continental Congress when dangerous
stuff could be taken out of circulation-bank robbers' guns, a slave ship,
etc. Carter sewed those two halves of forfeiture together-the low burden
of proof involved in civil forfeiture combined with the extended reach of
criminal forfeiture. Now, if the police suspect that your car was used in
a drug crime or if you have too much cash in your pocket, they can take
it. I have stories in my book of people-black men usually-who simply had
too much cash in their pocket to be believed. One guy had $9,600 in cash
because he was going to a conference to buy shrubbery for his business-a
cash business. The DEA decided how else could a black man have $9,600 in
his pocket if he wasn't a drug dealer? They took the money-never even charged
him with a crime. In 1991, 80% of the people who had property confiscated
in drug cases were never even charged with a crime, let alone convicted.
There's a story in the book about the L.A. County Sheriff Department killing
a man on his ranch in Malp;ibu because they wanted the ranch. They were
so convinced that he had marijuana growing on that ranch they did a guns-drawn
raid. They were banging on the door. He came out of his bedroom with a gun
in his hand, and they killed him. The Ventura County D.A. who investigated
all this concluded that they were doing this because they wanted to seize
his five mil-lion dollar ranch-but no criminal prosecutions resulted.
In most states under state law if police seize assets, the money has to
go into the state's general fund because they don't want police to be on
this free market crash of seizing assets to bolster their budgets. However,
since the mid '80s any drug crime, even a joint in your pocket, can be construed
as a federal crime. If your local prosecutor and your local police want
your house, your car, or your bank account, they can ask the DEA and the
local U.S. attorney to come in and make your case a federal case. Once it's
a federal case, federal law supersedes state law, and the local police can
get a cut of the assets. In my book, Congressman Larry Smith asks the U.S.
Attorney for the Northern District of California, "Well, you mean you
are deliberately circumventing California law?" He said, "Yeah,
that's what we do." Washington, which now professes to care so much
about states' rights and local control, is saying, "We don't care what
local communities say-we make the law!"
There's no such thing anymore in the United States as a search warrant.
A series of Supreme Court decisions since the early 1980s and laws to accompany
them from Congress have so reduced the burden of proof police officers need
to present to a judge to get a war-rant as to make a warrant virtually meaningless
or completely do away with the requirement to get it. The Supreme Court
ruled unanimously that police officers who make a traffic stop have free
rein to search the car for drugs, even if they admit that they followed
the car, waiting until it made a right turn without signalling, in order
to do a drug search. There's very little standing between the police and
the inside of your house, the inside of your pocket, or the trunk of your
car. This should concern drug users and non-drug users alike.
I argue in the book that the war on drugs has been part of an overall conservative
Republican ideology of the last 30 years to redefine what we used to call
social problems as being the fault of nothing but bad individuals with corrupt
values. Reagan's ideology depended on a drug war to say, "Look, drugs
are not a problem that the white middle class needs to worry about. In fact,
the horror of the inner cities is not something that the white middle class
needs to worry about because these people take drugs." The Reagan administration
would point to South Central Los Angeles and say, "The problem there
is crack," ignoring the structural problems, the pull-out of the corporations,
the neglect by the L.A. City Council, the cutting of federal funds-all of
the pressures that make the inner city such terrible places to live.
I went to Chicago's night drug court for four nights. I never saw a single
white defendant. I probably saw 500 people sentenced. It's basically a machine
for processing young black men into prison. I saw a 25-year-old HIV positive
man sent away for 15 months for having in his pocket less white powder than
you would find in a Sweet 'n Low packet. It is a horror show.
We now associate crack cocaine with inner city young black men. We have
a third of the nation's black men in their twenties under some form of correctional
control: jail, prison, probation, or parole. That's the operative policy.
In fact, this year, we have this disparity in federal sentencing between
crack cocaine and powder cocaine. Crack is associated with blacks; powder
is associated with whites. The penalties for crack are a hundred times more
severe than for powder. This came out of a last minute amendment tacked
on to a bill by Jesse Helms in 1989. There was no debate on it. This year,
the Federal Sentencing Commission, which is a bipartisan commission set
up by Congress to write and administer federal sentences, issued a report
specifically asking President Clinton and the Congress to repeal the racial
disparity in cocaine and crack sentencing. Clinton made a speech in order
to refuse to do that.
It is no coincidence that this society's current guru of values and virtues
is William Bennett, Bush's famous and aggressive drug czar. Bennett effected
the most radical redefinition of the drug war yet. He forbad his people
from talking about drugs as a health problem. It was now a matter of morality,
and he had the authority to imprison people who violated his personal moral
code. When you combine the power to imprison with a moral message, it's
a theocracy. It's Iran. Not only did it vastly widen the net, making anybody
who ever came into contact with a marijuana cigarette an immoral enemy of
the state, but it completely shut down the debate, shut down the way we
can talk about these drugs. To say, "Maybe we ought to find some other
way to control the harm these drugs do" is forbidden speech. And Joycelyn
Elders learned that lesson. The Surgeon General of the United States couldn't
suggest perhaps studying some other way to control this problem without
losing her job. Although the immediate cause was her comment about masturbation,
it was her "drugs" comment, by all accounts, that put her on the
edge and caused her firing. The debate has been willfully narrowed down.
Bennett's people were proud of it. Carter's second drug czar told me in
so many words, "We wanted to close the debate." Reagan's drug
czars told me the same thing. "We wanted people to no longer talk about
hard drugs vs. soft drugs, drug use vs. drug abuse. We wanted all of it
declared wrong, all declared equally dangerous."
We've not only shut down the debate; we've put our children at risk because
the kids know this is a lie, and if we're lying to them about marijuana,
they figure we're lying to them about cocaine. Any kind of drug education
in such a climate is doomed to fail-as it is failing-and we've done ourselves
incalculable damage.
The prohibitionists are right when they say that prohibition in the '20s
reduced alcohol-related disease. When prohibition ended, the incidence of
alcohol-related disease went up, but in 1933, a cost benefit analysis showed
it was worth accepting this higher rate of alcoholism in order to end the
violence in the streets and the terrible corruption of police departments
and city governments. The public decided it could pay to treat those additional
alcoholics with the vast amount of money saved by ending prohibition. If
drug laws were liberalized there probably would be a similar increase in
drug addiction and we have to accept that. We have to also understand that
we're not going to get rid of drugs. We have to figure out what our real
problem is.
General McCaffrey, the current drug czar, talks about 67 million users of
illegal drugs in this country as though that's the drug problem. He also
refers to 2 1/2 million drug addicts. That tells me that 64 million Americans
in this country are using illegal drugs without apparent ill effect the
way people drink beer or scotch on the weekend. They do a line of cocaine
before a party or smoke a joint, and they're still hold-ing down their jobs.
Even William Bennett conceded that the vast majority of drug users are unaffected
by the drugs they take. The problem is, we have made it a matter of national
cabinet-level importance if a non-addicted grownup wants to touch a marijuana
cigarette. General McCaffrey defines the problem as the 67 million drug
users instead of as the 2 1/2 million people who can't handle it and are
genuinely hurt by these drugs.
When people ask me if I'm in favor of legalization, I tell them I don't
know what that word means because alcohol is legal in some circumstances
and not in others. We need to get away from the terms legalize and decriminalize.
They're buzz words and do us more harm than good. It is more constructive,
more honest to talk about how we can better protect ourselves from the problems
that drug abuse causes. Once we talk about reducing the harm of drug abuse,
we will no longer be pursuing every non-addicted grownup who has a marijuana
cigarette. We would focus on addicts and kids-breaking the cycle of addiction,
getting addicts off drugs and keeping them from committing crimes or doing
themselves and others harm, and keeping drugs away from kids.
David Foreman, the founder of Earth First!, said, "The earth is not
dying, the earth is being killed, and the people who are killing it have
names and addresses." He meant there are specific people whom we can
blame, whom we can target for political action. The war on drugs didn't
just happen. It was done to us, and the people who did it have names and
addresses. I'm very proud that my book is full of their names and addresses.
There are no anonymous sources in the book, no composite characters. The
drug warriors tell their story in their terms.
Anybody who professes to care about deficit spending, anybody who professes
to be upset about entrenched government bureaucracy perpetuating 30-year
programs that don't work in order to keep their own bureaucracies alive,
anybody who is offended by Washington intruding upon the lives of its citizens
and usurping state and local control, need look no farther than the war
on drugs. We've heard all the wailing and lamentation over welfare. The
Aid to Families of Dependent Children budget is infinitesimal next to the
federal drug budget. The federal drug budget exceeds that of the Commerce,
State, and Interior Departments put together. This is big, big money. And
it's the one budget item that is never questioned. I'm hoping that conservative
America is going to wake up to this.
Material for this article was excerpted and edited, with permission, from
the interview of Dan Baum on the "We The People" radio broadcast.
Smoke and Mirrors: The War on Drugs and the Politics of Failure ($24.95)
is published by Little, Brown & Co.
