Jefferson, Freedom, and Drugs
Arnold S. Trebach
President, The Drug Policy Foundation
and
Professor, The American University
Washington, D.C.

Speech Before
The Jefferson Literary and Debating Society
Jefferson Hall
University of Virginia
Charlottesville
November 15, 1996

Good evening to you all.

I am most indebted to the members of the Jefferson Literary and Debating Society for the invitation to speak before this distinguished body, the oldest literary and debating organization in the nation. Thanks especially to your vice president, Demetria Howard, for patiently making all of the arrangements for me to visit your historic university.

THE WORDS OF THE SAGE OF MONTICELLO: LIBERTARIAN ROOTS

Because of this invitation I am happy to say that I was impelled to go back and read again some of the inspiring words of the Sage of Monticello. As it happens, I am an avid, though amateur, student of Thomas Jefferson. In my mind, his life, works, and words epitomize the best of Virginia, of America, indeed, of humankind. I will confess that almost never do I spend an hour reading Jefferson without being reduced to tears of gratitude that he lived and wrote and that I have the privilege of being able to share in the gentle, eloquent inheritance he left us all.

As you all know better than I, he asked that his remains be placed under a plain monument with these words and "not a word more"

Here Was Buried
Thomas Jefferson

Author of the Declaration of American Independence
Of the Statute of Virginia for Religious Freedom,
And Father of the University of Virginia.

He explained that "because by these as testimonials that I have lived I wish most to be remembered." Like many of you, I have made pilgrimages to that simple obelisk that contains the words he requested.

Reflect for a moment on some of the essential ideas of those "testimonials." There are natural rights of human beings which are superior to the powers of government. Among those natural rights is the power in the people to resist a tyrannical government and to institute a new government along lines most likely to secure their safety and happiness. There should be no state-imposed set of religious beliefs and no state religion. All human beings should be free to worship the gods they choose. Free inquiry and rational debate, aided by science and experimentation, should guide society and education.

SPECULATIONS ABOUT JEFFERSON AND DRUGS

I have no idea how Jefferson would have felt about using drugs himself, although he did write in 1819 about his daily routine at the age of 76 that he attempted to follow the advice of his friend, Doctor Benjamin Rush. His routine involved: "eating little animal food.... I double, however, the doctor's glass and a half of wine, and even treble it with a friend; but halve its effects by drinking the weak wines only. The ardent wines I cannot drink nor do I use ardent spirits in any form. Malt liquors and cider are my table drinks."

Allow me to assume for the purposes of argument, however, that were he alive today he would be -- forgive the vanity -- somewhat like myself in terms of personal tastes. He would still eat little animal food, save perhaps for fowl on occasion; he would regularly enjoy a variety of good though mildly intoxicating wines and beers; and he would have no interest in the currently illegal drugs, such as marijuana or cocaine. Nevertheless, he would be horrified at the peculiar institution of drug prohibition and would campaign against it as vigorously as he did against other hallowed though perverse American institutions, such as a state-imposed religion and slavery.

My understanding of his life's work is that, were he alive now, he would have been fighting drug prohibition for years. The war on drugs is after all as repugnant to basic American and Jeffersonian traditions as religious intolerance and slavery.

In addition to more general statements on freedom in the documents he authored, there are those that seem particularly applicable to drug control by force of governmentally or state- imposed criminal laws and sanctions. In October 1776 he wrote, "The care of every man's soul belongs to himself. But what if he neglect the care of it? Well what if he neglect the care of his health or his estate, which more nearly relate to the state? Will the magistrate make a law that he not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills."

This was not a selfish philosophy but part of a broader traditional libertarian view of the proper limits of government intervention into the lives of free citizens in a vibrant democracy. That philosophy also argued that excessive government control would harm the advance of civilization by impeding personal and social experimentation with new ideas whether in food, medicine, or the sciences. In "Notes on Virginia" he put forth ideas that seem particularly pertinent to drug control: "Were the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now. Thus in France the emetic was once forbidden as a medicine, and the potato as an article of food. Government is just as infallible,[sic] too, when it fixes systems in physics. Galileo was sent to the Inquisition for affirming that the earth was a sphere.... It is error alone which needs the support of government. Truth can stand by itself."

Within the past few years, I believe that the Sage of Monticello would have lectured University of Virginia students about the dangers of drugs and would have tried moral suasion to get them not to use them-- or at least to use drugs and alcohol in moderation. At the same time I believe he would have been shocked at the use of police and undercover agents to infiltrate University of Virginia fraternity houses during the early 90's. I also suspect that he would have viewed it as an alien, despotic idea to have laws and enforcement practices that demanded as if by holy writ that students who sold chemicals and vegetable matter to willing buyers should be arrested and imprisoned. He would have been even more stunned to see the sanctity of private property, a right with support in every conservative quarter, despoiled in the name of the drug war. He simply could not have understood -- and would not have quietly tolerated-- the seizure of the fraternity houses by the agents of government in pursuit of the war on drugs during recent years in Charlottesville.

Perhaps the event that would have angered his planter's soul most was the demand of the DEA in 1991 that the Monticello garden shop cease selling opium poppy seeds -- and that the beautiful plants themselves be dug up. The poppies had been growing in the gardens since Mr. Jefferson planted the first group in 1812, but now they are gone. While I have not followed those sad events closely, I expected to hear either students, officials, or alumnae raise fundamental Jeffersonian questions about all of these actions. Is it the proper province of government to interfere with the private transactions of free citizens? With the private ingestion of chemicals and plants into one's own body?

WHAT PROHIBITION REALLY MEANS

Remember, that is at the core of drug prohibition and the war on drugs: we have allowed our governments the extreme power to make criminal the private ingestion of certain plant products and chemicals into our own bodies. All of the other difficulties in drug control -- the trafficking, the corruption, the violence -- flow from this fundamental, perverse intrusion. Under our system of drug control, if the most gentle, most professionally accomplished adult here goes home tonight to her sealed basement and smokes a joint of marijuana that she herself grew in that basement, the police have the power to obtain a search warrant, to forcibly break in, to arrest the criminal, to take her in handcuffs to jail, andto seize her mansion. After trial and conviction, the criminal could be sentenced to prison for many months, even years. Somehow this whole scenario seems inconsistent with Jeffersonian principles and with basic American traditions. Yet, I suspect that most people, including most students and professors at the American University, where I teach, and here at the University of Virginia, have been brainwashed by years of drug war propaganda to be blind to the inconsistency and the outrage.

IT IS, AFTER ALL, A HOLY WAR

At its angry core, current American drug policy is extremist, demagogic, undemocratic, ineffective, expensive, and at war with the best of our ideals. Drug users and abusers often are treated as enemies of the state in a holy war against certain chemicals and leaves and vegetables. It is a hopeless war without end and without any possibility of victory. However, as a Dutch drug policy expert once told me, the important thing in a holy war is to fight it, not win it. Police and prison keepers rule supreme in this hopeless holy war which enforces prohibition primarily with the crude weapon of the criminal law.

The harsh elements of American drug policy have been built up to new, destructive levels since Ronald Reagan entered the oval office in January 1981. President Bush continued and enlarged the Reagan war. And so has Bill Clinton, although for a time he cooled the harsh rhetoric of his two immediate predecessors and in other ways seemed more sensible. But now President Clinton has redefined himself as a tough warrior on this and other issues. During the recent election, candidate Clinton succumbed to the culture of intolerance that dominates American drug control. Both he and candidate Dole sought only to be as harsh as possible in their proposals for future drug control policies.

RECORD EXPENDITURES AND INCARCERATIONS In essence, for fifteen years we have had a massive Reagan-Bush-Clinton war on drugs. The results have not been encouraging. During 1981, the first year of the Reagan presidency, the total federal drug control budget (this includes enforcement, treatment, and prevention) was approximately $1.5 billion. Assuming that states and localities spent a roughly equal amount, the total for all levels of government in 1981 was approximately $3 billion. The total number of state and federal prisoners (those serving a year or more for all offenses) was 368,800 at the end of 1981. Expenditures for drug control in 1996 will be at least $30 billion at all levels of government. Total cost for drug control during this 15-year period will be at least $200 billion. These are record figures in the history of this and any other country for drug control.

There are more sad records being set. For 1995, the U.S. Department of Justice reported that the total number of all prisoners and jail inmates in the growing American gulag reached 1,585,400. This represented an increase of over 200 percent since 1981. The U.S. incarceration rate of 600 per 100,000 is the highest in the world, at least among those nations keeping an honest count. Approximately 60 percent of federal prisoners and 30 percent of state prisoners are drug offenders.

For the first time in our recorded history, the number of blacks (who constitute only 12 percent of the total population) behind bars now exceeds those of whites. At the end of 1994, there were 683,200 black adult males in prisons and jails compared to 674,400 whites. Thus, 6.8 percent of all black adult males were behind bars as compared with less than one percent of white male adults. One in every 15 black male adults is incarcerated! I do not place all of the blame for this situation on the drug war or on government policies, but both play significant roles.

Another sad record set during 1994: the estimated number of arrests for drug possession (as distinguished from trafficking and manufacturing) reached one million for the first time in our history.

THE DRUG EXCEPTION TO THE CONSTITUTION

The culture of intolerance regarding drug control has infected all of the major institutions of American life. This includes the judiciary, especially the Supreme Court. For decades -- even before the Reagan era -- judges have been affected by fear of drugs to the extent that hallowed democratic traditions, one after the other, have been sacrificed to mollify the gods of the drug war. Deeply intrusive practices into the previously private lives of free citizens have been given constitutional sanction by the courts in order to save our society, especially our children, from the drug menace. This led the late Justice Thurgood Marshall to decry in 1989 the "drug exception to the Constitution" that his colleagues on the Supreme Court had created.

To cite only one example of these drug-war era decisions is United States v. Montoya de Hernandez, 473 U.S. 531 (1985.) In that case, the Supreme Court gave constitutional approval to the following repugnant set of practices. U.S. Customs officials may detain without probable cause or any evidence of guilt a person at the border (in this case, an airport) for at least 24 hours, and release him or her only if that person, first, defecates into a container under the eyes of an official; second, allows the official to examine the fecal waste; and, third, thereby demonstrates to the official's satisfaction that waste does not contain any contraband and thus that the suspect is not an alimentary-canal smuggler.

Justice William Brennan wrote an outraged dissent in that case for himself and Justice Marshall. He pointed out that the number of highly intrusive and undignified border searches of innocent travelers may be very high. Justice Brennan continued:

One physician who at the request of Customs officials conducted many "internal searches" -- rectal and vaginal examinations and stomach pumping -- estimated that he had found contraband in only 15 to20 percent of the persons he had examined. It has similarly been estimated that only 16 percent of the women subjected to body cavity searches were in fact found to be carrying contraband.

Such internal searches and other indignities have been accepted by most Americans as the price of vigilance in proper drug control.

DRUG WAR POLICIES SPREAD AIDS

An even more deadly policy is that regarding AIDS and drugs. The dominant American policy regarding these two matters, although not always expressed so starkly, is that drug abuse is a greater threat than AIDS. This would seem to turn simple common sense on its head and is at odds with the policies of many civilized nations. It flies in the face also of the grisly facts as recorded by the U.S. Centers for Disease Control: AIDS is the leading cause of death of Americans between the ages of 25 and 44. Over 300,000 Americans have died of AIDS between 1981 and 1996. Based upon earlier data I would estimate that the deaths of approximately 30 percent, 100,000 of our fellow and sister Americans, including many children, may be traced ultimately to injection drug use.

There is overwhelming scientific evidence that needle exchange programs can significantly reduce the number of new HIV infections and do not seem to increase drug use among injection drug users or in the general community. Yet, there is a legal ban on the use of federal funding to support needle exchange programs and a series of state and local legal restrictions on their easy operation. Americans are dying because public health authorities are prevented by politicians from implementing needle exchange programs. Such facts have had no effect on the Clinton Administration nor on Congress. Indeed, the leadership of both the Administration and Congress want a harsher drug war.

THE LAWS OF ECONOMICS

Perhaps the most powerful arguments for fundamental changes in drug policies are found in the realm of economics. The drug laws seek to repeal the laws of economics. No government edict or bundle of edicts has the power to accomplish this feat. In the United States and many other countries, high demand for drugs and governmental policies have combined to make some simple chemicals with little intrinsic value worth more than gold. A kilo of cocaine may be worth $500-$1,000 in Colombia and $20,000-$50,000 on the streets of many American cities. Given the ease with which drugs may be smuggled, the temptations of such a profit will always attract many adventurers and risk takers. Gustavo de Greiff, the former prosecutor general of Colombia, observed to me that the work of his department in eliminating the notorious narcotrafficker Pablo Escobarin December 1993 did not cause the price of cocaine to change one penny in either Bogota or New York. "Not one penny!" he repeated.

THE SUPPRESSION OF OPEN DEBATE

The powerful chairman of the House Rules committee, Representative Gerald Solomon, specifically attacked The Drug Policy Foundation twice during 1995 on the floor of the House because we question the value of American drug control strategies and suggest the consideration of alternatives, including possible legalization of some drugs. Representative Solomon even went so far as to make the repressive proposal that simple advocacy of legalization by an organization, such as DPF, trigger the withdrawal of that group's tax-exempt status.

A major strategy of some powerful drug war supporters has been the suppression of debate and of the free discussion of alternatives to current policy. I and other DPF leaders have often been accused of seducing our children with "do-drug messages" because we have the audacity to question the wisdom and effectiveness of the war on drugs. Time and time again during the past quarter century I have seen government leaders refuse to debate with me in a neutral forum such as the Kennedy School at Harvard or on national or local television. All of this does violence to the core of the Jeffersonian tradition.

In late 1993, then-Surgeon General Joycelyn Elders innocently suggested a scholarly notion that, I would venture, would have pleased Mr. Jefferson. She ventured the off-hand thought that drug legalization ought to be studied (not adopted, just studied) because it might cut crime. The ultimate irony for this discussion tonight was reached when President William Clinton, who bears the middle name Jefferson and was a Rhodes Scholar, immediately despatched his press secretary to tell the world that, no, his administration would not even study such a question. Vice President Al Gore declared to the nation, "We're not even interested in studying it. That's a closed question." Both Republican and Democratic leaders generally take this no-discussion, no-debate position. American drug policy as practiced at the highest levels of power is the enemy of the core Jeffersonian ethic of free and open democratic debate.

THE ROLE OF THE DRUG POLICY FOUNDATION In many respects, we at The Drug Policy Foundation are flattered when we are attacked for being drug-war dissenters, even though the attacks are usually based on erroneous information. The Foundation is a big tent that has 20,000 dues-paying members, the largest such reform group in the world. Those thousands of members have a wide variety of reform opinions, and all are welcome. Indeed, we would welcome the many students and distinguished experts gathered here into our fold. We need you.

While I personally have evolved from being a supporter only of medicalization to being a supporter of legalization, the organization has never taken a position advocating legalization. As it happens most of our practical reform work focuses on the middle ground of harm reduction or medicalization. This means we often seek to advance programs that provide medical support for some of the most scorned citizens in any society, drug addicts and prostitutes, often the same people. Under our grant program, we have become perhaps the largest single financial supporter of needle exchange programs in the United States. We also have supported efforts to create an open debate on all manner of drug policy options in America and other countries. This has included providing modest seed money for the creation of drug policy foundations in Australia and Canada. Medicalization also involves providing banned drugs for relieving the suffering of the organically ill.

THE FUTURE OF DRUG POLICY REFORM

Whither the future of drug policy reform in civilized societies? Here are some thoughts.

We must look deeply into the true nature of drug use in society. It will be found that most drug use, even of the most feared drugs, is not truly abuse. Most users of heroin and cocaine, for example, are chippers; they use the drugs in a non-compulsive fashion. The major exceptions to that sweeping statement are the users of tobacco, the great majority of whom are hopelessly addicted after only a brief exposure to this deadly drug.

Yet, we must treat most drug users and addicts to any drug as potentially decent and contributing members of society. We should not treat them as traitors or enemies of the state or of the dominant religion. The obverse of these propositions is that society should demand that drug users and addicts make real contributions to the welfare of society. Many true addicts simply cannot, but more of them will be failures if we do not demand decent, productive behavior.

We should become aware of the essentially irrational history of drug control in our country. I believe there is overwhelming evidence that here was no rational basis for the imposition of national criminal drug prohibition on March 1, 1915 in the United States.

Full legalization along the alcohol model must be contemplated in an open discussion of alternate models of control. It should not be the only model and it must be realized that there are dozens of models of legalization as there are dozens of models of control of the legal drug alcohol. However, unless some form of legalization is considered in the debate, it will not be a real discussion of all the possibilities.

For the immediate future we should concentrate on the harm reduction model, which I mentioned above. I call it "prohibition with a human face." Under this approach -- now followed in many countries other than the United States and in a few localities here -- the criminal drug laws remain essentially unchanged, except that legal and practical adjustments are made to implement harm reduction. The essence of harm reduction is the acceptance of drug use and abuse and the rejection of the destructive pursuit of a drug-free society; then, every attempt is made to reduce the undeniable harm that drug abuse often causes. In parts of some European countries can be found innovations and experiments that, for example, provide for complete, regular medical service for street drug addicts; needle exchange and a full array of prescribed injectable and oral drugs; psychiatric and social work counseling; and detoxification services, when the patient is ready to come off drugs, but not before.

Historic evidence of the harm reduction movement's new power was seen in the successful initiatives in California and Arizona during the recent elections. California voters approved a new law that makes marijuana available for medical purposes and allows citizens and doctors to grow their own if necessary. The new Arizona law is even more dramatic. It allows doctors to prescribe all banned drugs, including heroin, upon securing a second opinion from another doctor. Moreover, the Arizona law makes it likely that those arrested for simple possession will not go to prison and provides for the release of nonviolent prisoners now incarcerated for possession offenses.

The passage of the California and Arizona popular initiatives signals a new era in the evolution of drug policy in America -- and since America sets the standard for many countries, in the world. Millions of voters demonstrated that they are ahead of most politicians on this issue. Yet, the leaders of the United States government are reacting in typical fashion. During a brief discussion a few days ago with the nation's drug czar, General Barry McCaffrey, I suggested several times that I could arrange a meeting between him and the leaders of the two state initiatives. He was polite but noncommittal. Two of his staff members expressed stronger reservations. They said that there was really nothing to talk about, that the initiatives were a sham, that the children of those states were now put at greater risk of drug abuse by the actions of the reformers. General McCaffrey later said that intense discussions were going on at the highest levels of the federal government to determine the proper national response to the threat posed by these successful initiatives. He said that federal criminal prosecutions of doctors and patients who sought to take advantage of the new state laws might be a possibility. I heard nothing from the drug czar or his staff about the possible benefits to our sick people or to other citizens from the new laws.

Unless then there is a dramatic change of heart in Washington, there will be a whole new wave of conflicts between federal and state power over how to control drugs. The reform movement will continue to develop its state and local strategy until that time when national politicians see that their political survival depends of supporting drug reform. Thus I would expect more state initiatives in the future as part of a grassroots campaign to change the political underpinnings of the current drug war policy.

In American terms, the war on drugs is like a combination of alcohol prohibition and the Vietnam war. Each had the perverse effect of tearing at the social cohesion of the nation, which it was meant to preserve. Eventually, after we had suffered terrible losses in both noble, well-meaning ventures, we reluctantly declared defeat and moved on with our lives as a nation. We all must recognize that the time has at last come for America and the entire civilized world to do the same with the drug war.

Thomas Jefferson said that his passion was peace. That should be our passion now in the emotional arena of drug control. It is quite possible to be strongly opposed to drug use and just as strongly opposedto prohibition and the war on drugs. I suspect that the Sage of Monticello would join us in our efforts to control drugs through peaceful means, without a war on our own people and also on our own best ideals.