Item: A medical marijuana dispensary in South Lake Tahoe, California was raided recently by agents from the U.S. Drug Enforcement Agency and local and other federal authorities. Another day, another reminder that federalism is all but dead.

I’ll leave the facts behind this particular raid for courts to decide, but I’m skeptical. I am reminded of U.S. Supreme Court Justice Clarence Thomas’s stellar dissent from a six-to-three decision in June 2005 in another California medical marijuana case, Gonzales v. Raich. In that case, marijuana was grown for their own use by seriously ill persons. It was never bought nor sold, and it was never carried across a state line. Nevertheless, it was found to be banned by federal law under a bizarre construction of the “commerce” and “necessary and proper” clauses of the U.S. Constitution.

Further, it made no difference that the citizens of California had decided in a referendum to permit medical use of marijuana.

Concluding his 18-page dissent, J. Thomas said, “The [Court] majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. The majority’s rush to embrace federal power ‘is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Union.’ Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens.” (Citation omitted.)

Hastening the end of federalism is just one pernicious result – collateral damage – from America’s so-called War on Drugs. Just like Prohibition (of alcohol) 90 years ago, criminal profits have led to widespread corruption in our own country. (How, for instance, does one think a typical imprisoned criminal can get any drug he wants just about any time he wants it? Answer: bought guards.)

Drug-using Americans’ money in the hands of narco-traffickers has created damage immediately south of our southern border that goes far beyond tragic; it’s terrifying. Former U.S. House Speaker Newt Gingrich put it this way: "We have to rethink our entire strategy for working with Mexico. The war that’s under way in Mexico is an enormous national security threat to the U.S. If we allow the drug dealers to win we will have a nightmare on our southern border and no amount of fence and no amount of national security would compensate for the collapse of Mexico."

Many illicit drugs are bad stuff. But suppression of liberty is bad stuff, too. Alcohol Prohibition was doomed from the get-go because too many Americans wouldn’t lay off booze. It has been clear for a long time that, to the extent it relies on prohibition, the Drug War is a failure for the same reason. It’s a failure writ many tens of times larger than alcohol Prohibition.

I once lost the chairmanship of the Republican Party of New Mexico because some in that party deemed impermissible having the open and serious debate about drug policy that the Republican governor and I advocated. Decriminalization or legalization was simply off the table, as if (alcohol) Prohibition and its repeal had never happened. Some minor law changes designed for the governor by a task force that included a prominent federal judge and several others from law enforcement sent the state’s senior U.S. senator and some other party big-wigs into a conniption.

The ensuing hypocrisy was breathtaking. For example, the state’s two Republican U.S. representatives issued a statement saying, “While we agree that Mr. Dendahl has done good work for our party and has been a warrior for many of the party’s principles, he simply has broken faith with the party in this matter …” But when U.S. Sen. James Jeffords (R-Vt.) switched parties less than three months later and handed control of the U.S. Senate to the Democrats, one of those same two GOP congressmen unctuously opined, “He made a decision of conscience and you have to respect that. The party is big enough to reflect different views.”

Well, maybe not. But it had better learn to be.

By John Dendahl, Chairman, Republican Party of New Mexico

The Albuquerque Tribune – December 23, 1999

In June, Gov. Gary Johnson put his prestige as a high elected official behind those challenging the national War on Drugs.  During a conversation with me, he said something like, "I think illegal drug use is the worst problem facing us today.  Our current policies aren't working and are probably making the situation worse.  We should be discussing alternatives, including decriminalization"  I said I agreed with him.  So began one of New Mexico's top news stories of 1999.

In 1919, the U.S. Constitution was amended to prohibit manufacture, sale, transportation, import or export of "intoxicating liquors."  Many of Prohibition's most ardent supporters soon joined its most dedicated opponents, leading to repeal in less than 15 years.

Prohibition was overtaken by the Law of Unintended Consequences.  Al Capone and his ilk became a wealthy, violent threat to domestic tranquility.  Consumption of alcohol was neither eliminated nor, aside from a brief dip, even reduced.

Were the opponents of Prohibition pro-alcohol?  Some would answer "Certainly," but I think that would be wrong.  This was more a coalition of freedom lovers opposed to Prohibition in the first place, and realists sobered by the pernicious crime it spawned.

The drug war is alcohol Prohibition writ large.  Annual, inflation-adjusted enforcement costs are running at least 200 times those of Prohibition, yet the consensus estimate is only about ten percent of the available drugs are interdicted.  Instead of a few machine-gunnings among rival thugs, we have drug-financed guerilla wars in Colombia and Peru, and broad-daylight murders of a Catholic Cardinal and political leaders in Mexico.

At home, instead of the occasional unconstitutional search, we have law enforcement agencies becoming addicted to property takings (forfeitures) that flout the Constitution's Fifth Amendment.  Children, enticed by money and knowing that juvenile crime is punished with light sentences, are the street pushers of choice, often selling to their impressionable peers: other children, who then turn to burglary or worse.

The list is endless, and the trend is terrifying.  All of this is fueled by an illicit international market, grossing an estimated $300 billion per year, in which we in the U.S. are the dominant buyer group.  Some say demand could be snuffed out by a stepped-up "war" effort.  For example, we could impose universal drug testing with stiff punishment of all users caught in the net.  That won't fly.

We don't need to throw in the towel.  We do need to get smart and heed George Santayana's observation, "Those who cannot remember the past are condemned to repeat it."

It seems to me the criminal enterprise and substance abuse parts of this situation can and should be considered separately.  As with alcohol during Prohibition, the enormous profitability in drugs arises from their being illegal.  Despite the incorruptibility and dedication of most law enforcement officers, the international criminals making and distributing drugs just keep truckin'.  Almost never are they caught, convicted and executed lawfully (though some die at the hands of their greedy rivals).  What if a change in public policy just dried up the expanding criminal profits buying ever-more-pervasive corruption?

There are some important things that decriminalization does not mean.  For one, use of alcohol and drugs by juveniles is not condoned.  To the contrary, every "decriminalizer" I have talked to supports increased state protection of minors, including more severe criminal penalties for adults who deal to kids.

Decriminalization does not mean barring employers from firing, or refusing to hire, drug users.  The same goes for admissions and internal discipline policies of educational institutions.  Decriminalization does not mean relieving users of strict liability for harm they cause others while under the influence.

Programs underway in other countries, like Switzerland, enable citizens to cope with addiction without resort to black markets and a life of crime.  The models are out there; we need only be sufficiently open-minded to examine and tailor them to fit our society and our needs.

Footnote:  The 1996 national platform of my party, the Republican Party, calls on Americans to step up the drug war, heavily emphasizing interdiction, testing and incarceration.  I share with my party's many other leaders profound concern about drug abuse.  However, I am persuaded that the Prohibition model is inconsistent with our love of liberty.  Perhaps discussion in a spirit of civility, hope and mutual respect will lead others to agree.

John Dendahl, for the Chili Club (a private social organization of 12 members)

May 19, 1997 (with sequel dated June 15, 1998)

One might suppose there's a "Newton's Law" that applies to markets:  For every benefit there is an equal and opposite cost.  Distillers profit and pay substantial public taxes on their products, but some consumers become alcoholics.  Drugs sold for nonmedicinal purposes create economic opportunity for farmers who grow, say, marijuana and coca, and for drug distribution organizations, but then there are the myriad related costs: direct harm done to the health of users and the collateral crime of users who believe others should pay for their habits.  One doubts that these benefits and costs always exhibit the equality governed by Newton's Law in physics.  More important than equality is, Who pays the costs?

            Answer 1:  Whether the addiction is to alcohol or drugs, the addict pays, and this addict is an adult who has freely exercised a choice.  Answer 2:  Anything that is not Answer 1.

            On January 16, 1919, the Eighteenth Amendment to the U.S. Constitution was ratified.  This was the liquor prohibition amendment.  Its repeal was ratified three constitutional amendments and fewer than 15 years later, December 5, 1933.  The campaign for Prohibition was largely waged on moral grounds, but one can be pretty sure that addiction and other problems associated with alcoholic consumption weighed heavily with some supporters of Prohibition.

            Unfortunately, the law of unintended consequences took over:  Consumption was reduced rather little if at all, an enormously profitable market in contraband liquor was created and American society paid hugely for criminalizing an activity that large numbers of adult Americans were unwilling to foreswear.  Nonetheless, federal enforcement expenditures during the first ten years of Prohibition were on the order of 750 million current (i.e., inflation-adjusted) dollars.¹

            Who paid?  Mostly Answer 2.  Taxpayers and the victims of crime.  What also suffered?  The rule of law, on account of imposition of a restriction too few citizens were willing to support and too many were determined to flout.  It was like our erstwhile 55 mile-per-hour national speed limit.  In fact, if books and movies depicting social life in the speakeasies are not overly romanticized, it appears flouting the law was a major part of the fun!

            George Santayana observed, "Progress, far from consisting in change, depends on retentiveness.  Those who cannot remember the past are condemned to repeat it."  We may be learning that United States policy on drug use is a stupendous and regrettable illustration of that statement.

            Residents of the United States apparently constitute the largest national market of illicit narcotics users in the world.  This and our government's pressure for governmental action elsewhere combine to form the "force" behind a great deal of the mischief about to be described.

            Item:    By adding an allure of law-breaking adventure, prohibition may be inducing some drug use that would not otherwise occur.  Whether or not that is so, most of the end-user prices of drugs are associated with the risks and rewards of criminal activity rather than with normal production and distribution costs.  Police officials have estimated that perhaps half of all crimes in major cities are committed by addicts to support their habits.^*

            Item:    Some national governments, ominously including that of our immediate neighbor and important trading partner, Mexico, are being infiltrated and destabilized by an international criminal element.  Just four days ago, an Albuquerque Journal story headlined "Mexico's PRI May Expel Ex-President" reported:

"Mexico's [Institutional Revolutionary Party, or PRI, its ruling party] is considering expelling former President Carlos Salinas de Gortari because it suspects him of tolerating illegal activities by his brother during his presidency . . . Raul Salinas is accused of murder, corruption and money-laundering while an official in his brother's government . . . The Washington Post reported Sunday that U.S. officials were separately investigating whether Raul Salinas used U.S. bank accounts of a Mexican food subsidy program to launder drug money . . . They are also investigating whether Raul Salinas used that agency -- known as Conasupo -- to protect cocaine shipments into the United States."

             Item:    Peru's Maoist Shining Path guerillas were receiving up to $100 million per year through a marriage of convenience with drug traffickers.  In 1992, Peruvian President Alberto Fujimori abrogated the country's constitution to fight institutional corruption and rebel groups, including the Shining Path, all problems that were nourished by illicit drug trade.^*

             Item:    The Cato Handbook for Congress states,

 "[Following Bill Clinton's 1996 decertification of Colombia, that country's] subsequent efforts to convince the United States it wishes to cooperate in the fight against narcotics led it to undertake coca eradication and other counter­narcotic initiatives.  Those initiatives have created resentment among peasant populations, who have consequently increased their support of major guerilla groups, and have reinforced the business relationship between drug traffickers and the rebels who protect illicit drug operation.  Indeed, Colombia's various guerilla organizations earn anywhere from $100 million to $150 million [per year] from drug-related activities.

 "Furthermore, the escalation of the drug war has recently provoked a wave of guerilla violence that has successfully displaced government authority in parts of the country.  'If you can single out one act that has played a decisive role,' Defense Minister Juan Carlos Esguerra explained, 'I have no doubt that it is our frontal offensive against narco-trafficking in the southeast of the country.' . . .

 "The United States has responded by increasing aid to the Colombian military, renowned for its human rights abuses and links to paramilitary groups.  The U.S.-orchestrated drug war in Colombia and elsewhere has thus weakened civilian rule, strengthened the role of the military, and generated financial and popular support for leftist rebel groups [like the Peruvian Shining Path]."

             Item:    The same Cato publication warns that Mexico may provide the most urgent warning to us in the United States:

 "Major Mexican drug cartels have gained strength and influence as the U.S.-led interdiction campaign in the Caribbean has rerouted narcotics traffic through Mexico.  Unfortunately, the result has been a sort of 'Colombian­ization' of Mexico . . . The 1993 killing of Cardinal Juan Jesús Posadas in Guadalajara, the assassinations of top ruling party officials, and the discovery of hundreds of millions of dollars in the overseas bank accounts of former president Carlos Salinas' brother all appear to be connected to the illicit drug business."

             The Cato statement goes on to observe the regional inconsistency of our decertifying Colombia while fully-certifying Mexico and suggests a reason:  "[T]he internal contradictions of U.S. foreign policy would probably become too conspicuous were Washington to threaten sanctions against a partner in the North American Free Trade Agreement."

            One of my political heroes, President Ronald Reagan, declared our "War on Drugs."  Until recently, unmindful of Santayana's observation about those who don't remember history, I never seriously questioned whether this was appropriate public policy.  It was and remains my opinion that most of the drug use we are talking about here is harmful to the user and has no redeeming benefit.  I was and remain angered by the local crimes against people and property committed by users to support their habits.  I was and remain appalled by the international criminality associated with drug trafficking.  So why not a war, so to speak?

             One factor I didn't consider was what we should have learned from Vietnam:  The United States cannot win a war without American public support.  In the Vietnam case, many Americans like Bill Clinton who were vulnerable to being called into uniform simply skipped, while many who weren't saw to it that the requisite political support vanished.  The metaphorical "skippers" in the war on drugs are the 25 million Americans who refuse not to be users.  The rest of us are -- or ought to be -- increasingly opposed to the assaults on Americans' civil liberties without which this "war" appears not to winnable.

             Meanwhile, the only winners are criminals, whether we are talking about a 13-year-old who pays his mother's rent out of his drug earnings^* or the multi-billionaire leader of a Mexican or Colombian drug cartel.

             But we must be doing some good by keeping drugs away from someone, right?  Sure, there are doubtlessly some out there who, on account of U.S. government action, haven't become users and gotten hooked.  But the statistics are discouraging and the monetary costs are astronomical.

             Remember that ten years of Prohibition enforcement cost three-quarters of a billion of today's dollars.  During the Reagan and Bush presidencies, United States federal expenditures on the drug "war" were about $67 billion, and the current rate is about $15 billion a year.  Drug arrests in the United States now aggregate over 1 million per year, and drug offenders account for 60 percent of the federal prison population.^*  How many of those are pushers, contrasted to users, I don't know, but these are eye-popping costs.

             The public tragedy is that, even if one cannot prove conclusively that drug use is pretty much undeterred by these draconian measures, a credible argument  to that effect can be made.  How much more draconian do the measures have to become before this "war" can be won?  Martial law in the United States?  Bomb Colombia -- and any other country identified now or in the future as a significant source country -- back to the Stone Age?  Institute mandatory, universal testing and impose the death penalty for every third-time offender?

             Bear in mind that we are talking here about an illicit, $300 billion global industry, able to react to counternarcotics strategies with ease.^*  Maybe defeat of this arrogant, corrupting enemy requires a smarter approach.  What if it were just starved by elimination of the criminal enterprise profits?  What if drug use were decriminalized?

             In the Nineteenth Century, drug use was not illegal in the United States, and it is not currently illegal in the Netherlands.  Apparently, the only way America's drug problem is worse today is the cost of domestic law enforcement and the significant troubles we may be causing other nations' governments.  To the extent drug use, per se, is a problem, it apparently is neither significantly better nor worse.

             I have come to agree with those who advocate decriminalization of drug use.

             However, there are some caveats with that agreement.

             Caveat 1 -- Protection of the young.  It will be acknowledged that one's decision to be a drug user can be made responsibly only by an adult.  Since those who are not adults cannot make this decision responsibly, it will be a major crime for anyone, whether or not an adult, to be complicit in making drugs available to a non-adult.

             Caveat 2 -- Personal responsibility.

             a.         Those who choose to become drug users will be entirely responsible for themselves.  They will not, for example, be held financially harmless by government entitlements such as AFDC, SSI and the like.  Nor will their drug-induced deficiencies be excused by appeals, for example, to the Americans with Disabilities Act or the Civil Rights Act.

             b.         Financial or bodily harm caused to another by an individual under the influence will carry the same legal sanction(s) as if the harm were caused wantonly by someone not under the influence.

             Caveat 3 -- No protection against stigmatization.  Drug users will enjoy no protection against being stigmatized by others.   Thus employers, educational institutions and all others will be free, if they choose, to refuse any association with those whom they consider undesirable on account of drug use.

             So  this is my proposal:  Decriminalize drug use among adults.  Make adult users totally and personally responsible for any adverse consequences of their drug use.  Zealously protect non-adults against addiction until, as adults, they can be deemed capable of making the choice to be users.  Refuse users any legal protection against discrimination on account of their drug use.

 June 15, 1998 Sequel

 The drug lords continue to get richer; the expensive and ineffective War on Drugs continues to corrupt American foreign policy; and the threat to American civil liberties grows.

 The principal story on the front page of today's Albuquerque Journal is headlined "Border Troups Panned."  Its subject is opposition in Arizona to deployment of armed military personnel along our border with Mexico to combat "terrorists, drug traffickers and illegal aliens."

 Also today, The Santa Fe New Mexican reprinted a Los Angeles Times editorial about a sting recently carried out by American officials.  This operation, made possible in part by covert American activities in Mexico, resulted in the arrest of a number of Mexican bankers subsequently lured to the United States.  The Mexican bankers are charged with laundering drug money.  The Mexican government is understandably furious over what they view as a violation of Mexico's sovereignty by a purported ally.

 The Journal story mentioned above reported that the United States spent $1.7 billion in its last fiscal year on "drug-fighting efforts along the [Mexican] border."  Remember that ten years of Prohibition enforcement cost about half that amount in today's dollars.

 We're still losing the drug war.  Too bad Americans, most especially Republican Americans, continue heading in the same losing direction.  I submit that, without the criminal enterprise profits represented by the largely American market, the drug cartels would, along with users, be the losers.