The following letter was written by Associate Professor of Law Jeffrey M.
Blum of the University of Buffalo School of Law, in response to a request
from a federal court judge, and is a good summary of many of the things
that are wrong with the "war on drugs."
Letter: Prof. Jeffrey Blum
May 21, 1990
- The Hon. John L. Elfvin
- United States District Court
- Western District of New York
- Buffalo, New York 14202
Re: United States v. Anderson, CR-89-210E
Dear Judge Elfvin:
I have received a request from your Chambers for a submission in the
nature of an amicus curiae brief addressed to the question:
"whether today's climate of allegedly rampant importation of
contraband drugs * * * * justifies a `relaxation' of the
Constitutional rules which would otherwise control."
I am told that argument on this question is scheduled for June 4, 1990.
Unfortunately my publishing deadlines and commitments at this time of year
preclude me from preparing a full brief. However, because I appreciate
the request and believe it is critically important for members of the
judiciary to be well informed on this issue, I wish to offer three things
in response: first, the instant letter brief which will simply list
proposed findings of fact that bear centrally on the issue, second, the
enclosed packet of readings that documents some of the proposed findings
and assesses the drug war from a variety of perspectives, and third, my
personal expression of willingness to speak free of charge regarding any
or all of the proposed findings to any gathering containing influential
members of the Western New York legal community.
The proposed findings are based upon information I have gathered from a
variety of what I believe to be reputable sources. In most cases more
than one source is involved. The proposed findings are offered in support
of the following answer to Your Honor's question:
No, today's climate of allegedly rampant importation of
contraband drugs * * * * does not justify a `relaxation'
of the Constitutional rules which would otherwise control.
Rather, it necessitates a strengthening of constitutional
norms to safeguard reasonable exercises of personal liberty
from arbitrary and unwarranted invasion, and to prevent
uncontrolled cycles of hysteria from severely impairing our
constitutional form of government.
Professorial Amicus' Proposed Findings of Fact
- For several years now the United States government's "war on drugs"
has been inspiring a series of decisions substantially cutting back on
established constitutional rights, particularly in the areas of the
fourth, fifth and sixth amendments to the U.S. Constitution. See -
Wisotsky, Crackdown: The Emerging Drug Exception to the Bill of Rights, 38
HASTINGS L. J. 889 (1987).
- The drug war has been directed against a variety of very different
illicit substances, some highly addictive and posing a significant public
health problem, and others not. Over three- fourths of the illicit drug
use in the United States involves smoking or ingestion of marijuana. For
each of the last ten years marijuana has accounted for a majority of
drug-related arrests, seizures, property forfeitures, and expenditure of
law enforcement funds. Because of marijuana's easy detectability, laws
against it have generated an average of close to 500,000 arrests annually
in the United States. See- annual household surveys of the National
Institute of Drug Abuse, and annual reports of the U.S. Department of
- There is not now, nor has there ever been, credible medical evidence
to justify this level of law enforcement effort against marijuana.
Rather, several presidential panels of experts and a number of other
comprehensive reputable studies have consistently and unequivocally shown
marijuana to be far less addictive, less toxic, less hazardous to health,
less disruptive of family relationships, less impairing of workplace
productivity and less likely to trigger release of inhibitions against
violent behavior than alcohol. See- Hollister, Health Aspects of Cannabis,
38 PHARMACOLOGICAL REVIEWS 1 (1986) (included in enclosed packet).
- Marijuana was first made illegal in the United States in the early
twentieth century largely for two reasons, neither of which was
health-related. The first publicly known large user group of marijuana
was Mexican-Americans. Marijuana laws began being passed in Southwestern
states as part of a self-conscious harassment campaign designed to drive
Mexican-Americans out of the United States and "back" to Mexico. This
harassment campaign intensified during the 1930's when the depression was
making jobs scarce and causing Anglo-Americans to covet the jobs held by
Chicanos. For proposed findings 4 through 7, infra, see- Riggenbach,
Marijuana: Freedom is the Issue, 1980 LIBERTARIAN REVIEW 18 (included in
- The second important reason for marijuana prohibition was the covert
protectionist activities of paper and synthetic fiber industries in the
1930's. These interests, of which the Du Pont Corporation was the most
important representative, wanted to eliminate possible competition from
the hemp plant (marijuana is comprised of the buds or flowers of the hemp
plant), which had recently become a serious "threat" as a result of the
invention of the hemp decorticator machine. With such a machine in
existence, competition could have become severe because hemp, in contrast
to trees, is an annual plant with no clearcutting problem. Hemp also is
believed to produce 4.1 times as much paper pulp as trees, acre for acre.
- Several trends in government converged to make hemp/marijuana
prohibition possible. The New Deal Court had recently swept away earlier
established doctrines of economic due process which had limited covert
protectionist uses of government agencies. Andrew Mellon, the chief
financier of the Du Ponts, had become Secretary of the Treasury and
appointed his nephew, Harry Anslinger, to head the newly created Federal
Bureau of Narcotics. Anslinger proceeded to misclassify marijuana, which
is a mild stimulant and euphoriant, as a narcotic, and to make its
prohibition his agency's top priority. In addition, the recent lifting of
alcohol prohibition had confronted a number of federal agents with the
risk of unemployment if new forms of prohibition could not be instituted.
All these factors contributed to passage of the Marijuana Tax Act, the
initial federal prohibitory legislation, in 1937.
- Throughout the 1930's a lurid "reefer madness" propaganda campaign
was carried on throughout the nation, largely through the Hearst newspaper
chain. The Hearst chain, whose vertical integration had caused them to
buy substantial amounts of timber land, had been accustomed to using lurid
propaganda campaigns to sell newspapers since the Spanish-American War in
1898. The "reefer madness" campaign was based partly on the knowledge
that Pancho Villa's army had smoked marijuana during the Mexican
Revolution. It portrayed marijuana as a powerful drug capable of causing
Anglo teenagers to turn instantly into hot blooded, irrational, violent
people, much akin to the "Frito bandito" stereotype of Mexican-Americans.
- The "reefer madness" campaign rested on a large number of anecdotal
stories of violent incidents, almost all of which have turned out to have
been fictitious and traceable to a single doctor who had worked closely
with Harry Anslinger. One indication of the stories' falsity is that
during the Second World War and Korean War Anslinger himself shifted from
calling marijuana a violence-inducing drug to calling it a menace that had
the capacity to turn large numbers of young people into pacifists. For
proposed findings 8 through 11, infra, see Herer, THE EMPEROR WEARS NO
CLOTHES (Los Angeles: HEMP Publishing, 5632 Van Nuys Blvd., Van Nuys,
- Since marijuana began becoming popular among the white middle class
in the mid-1960's a number of specious medical studies alleging great harm
from marijuana have been widely publicized. The most important of these,
and the source of the widespread myth that marijuana damages brain cells,
involved force feeding rhesus monkeys marijuana smoke through gas masks.
The monkeys consumed in a matter of minutes amounts of smoke far greater
than what human beings would be likely to consume in a month. The monkeys
suffered substantial brain damage that appears to have been caused by
carbon monoxide poisoning from smoke inhalation.
- Covert economic protectionism appears to have played a continuing
important role in sustaining marijuana prohibition during the last decade.
Pharmaceutical companies, possibly alarmed at the increasingly widespread
use of marijuana as a versatile home remedy, provided most of the funding
in the late 1970's and early 1980's for a network of "parents' groups
against marijuana." By far the largest sponsor of the Partnership for
Drug-free America, which blankets the airwaves with anti-marijuana
commercials, has been the Philip Morris Company. Philip Morris owns
several brands of tobacco cigarettes and is the parent company of Miller
Beer, and possibly some other brands of beer as well.
- Partnership commercials, while exaggerated but to some degree
truthful about cocaine, have been uniformly uninformative about marijuana.
They have ranged from merely casting negative stereotypes of marijuana
users as lazy and shiftless to being instances of outright (and possibly
legally actionable) fraud. One widely aired commercial compares the
brainwaves of "a normal teenager" and "a teenager under the influence of
marijuana." The latter was later admitted by Partnership officials to
have been the brain waves of a person in a deep coma.
- Largely as a result of such government and corporate-sponsored
propaganda campaigns a majority of people have come to support an
across-the-board crackdown on illicit drug use and sales. Due to this
political climate a number of harsh statutes have been passed during the
last five years and these, combined with various "relaxations" of
constitutional restrictions on law enforcement activities, have resulted
in large numbers of young people receiving ten, fifteen and twenty-year
mandatory-minimum sentences for transport and sale of marijuana.
Thousands of people have forfeited ownership of their farms, homes, shops
and vehicles for growing, and in some instances merely possessing,
marijuana. See generally- the Omnibus Anti-drug and Anti-crime Acts of
1984, 1986 and 1988.
- Because of this wholly unjustified crackdown on marijuana, people
around the country have come to view the term "Your Honor" as connoting a
person of ill will, mean spirit and low principle. "The Government" has
come to connote an organization that is both very inefficient in its
processing of information and very casual current system of black market
distribution which generates widespread crime, escalating rates of
incarceration and a substantial hidden subsidy for organized crime.
Whatever disincentives were needed to keep large numbers of people from
choosing to become addicts (e.g., making addicts wait in line for two
hours to get their doses) could be built into the system of distribution.
Such a system worked quite well in Great Britain until the issue became
too politicized for it to continue. See Trebach, supra.
- Psychedelic drugs pose greater hazards than marijuana, but less than
those of addictive drugs like heroin and cocaine. While some
psychedelics, such as PCP, may be inherently dangerous and thus
appropriately prohibited altogether, most can be taken safely by most
people. The problems posed by LSD, for example, in some ways resemble
those presented by scuba diving. Each is seen as a form of exploration
that opens new vistas. Hence participants often find the activity
enormously stimulating and inspiring. Each activity poses a small but
significant risk of serious personal harm, these being death for one and
aggravation of pre-existing states of mental instability for the other.
Untrained, unsupervised use of unchecked substances or equipment are
ill-advised in both cases. Conversely, though, a government-orchestrated
campaign of persecution for either group of explorers is likely to be
viewed as barbaric by knowledgeable persons. In each case a premium
should be put on devising social policies that minimize the hazards of the
activities in question.
Thank you, Judge Elfvin, for the opportunity to place these proposed
findings of fact before the Court. I believe Your Honor can discern the
relationship between the information they present and the answer proposed
in response to the Court's question. If I may be of any further
assistance, please do not hesitate to call my secretary at (716) 636-2103.
I do, however, expect to be out of town during the period of May 21, 1990
to June 10, 1990.
- Jeffrey M. Blum
- Associate Professor of Law
- The Honorable Richard J. Arcara
- The Honorable Robert L. Carter
- The Honorable John J. Callahan
- The Honorable M. Dolores Denman
- The Honorable John H. Doerr
- The Honorable Samuel L. Green
- Susan Barbour, Esq.
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