Controlled Substances Act: 39 years of drug war tyranny.

Richard Nixon resigns in disgrace.

Richard Nixon resigns in disgrace, August 1974.

Thirty nine years ago this week an evil befell the USA.

President Richard Nixon, in cahoots with his fellow Watergate criminal (and Attorney General), John Mitchell, ramped up the war on drugs by prodding the misbegotten legislation, the Controlled Substances Act (CSA). This act crafted the schedule system for classifying the illegality of (some) drugs. In 1973 Nixon created the DEA to act as overseers of federal drug policy and enforcement.

Cannabis had actually been legal since a 1969 Supreme Court decision. Instigated by no less than Timothy Leary, the high court declared as unconstitutional the Marijuana Tax Act of 1937. The Controlled Substances Act of 1970 ended this short period of freedom, instituting a repressive, punishment-oriented approach. Because of Nixon’s direct actions, cannabis was classified as a Schedule I drug, the most restricted, illegal and penalized.

This draconian schedule for cannabis was purported to be just temporary, until a commission studied the question. This became the famous Shafer Commission. Kevin Zeese reported on the commission and Nixon’s attempts to declare marijuana dangerous. As Zeese reported, the commission took its task seriously and ended up having to conclude that marijuana is not very dangerous and does not justify harsh legal treatment of its users.

Nixon blew up, ranting (on tape) instead for laws that “tears the ass” out of marijuana users. He got his way. Even though Nixon had to resign in disgrace, the drug war he promoted has lived on. In the intervening 40 years, 20 million Americans have had their lives torn asunder in the form of needless and wasteful arrests, prosecutions and incarcerations for victimless cannabis “crimes.”

The CSA is is unconstitutional. An amendment to the US Constitution was required to prohibit alcohol. The same is true for marijuana and other drugs. Richard Nixon and the US congress ignored his requirement in passing the CSA. The courts, of course, should have quickly flagged this flagrant unconstitutionality. Instead the judiciary gave it a free pass under the “drug war exemption” to the Constitution and Bill of Rights.

Subsequent generations of congressional drug warriors such as Joe Biden found even this legislation too timid and schemed at “enhanced penalties” and evils such as asset forfeiture.  Mandatory minimums were reinstated again in the drug war-crazed 1980s. See Why 1984 WAS like 1984. Member of both political parties fought to out-do each other with ever more repressive legislation, including the Controlled Substance Penalties Amendment Act of 1984 and the Anti-Drug Abuse Act of 1986.

International legislation, the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances soon codified schedules and penalties world wide.

Under the 39 year-old CSA the DEA is given authority to classify substances. It can at will, stubbornly stick to obviously incorrect schedules, e.g. Schedule I for cannabis. The classification of various drugs by the DEA is not based whatsoever upon the actual dangers of the drugs, but is based on bureaucratic and turf reasons.

  • The most dangerous drug, cigarettes, for example is not even under DEA enforcement. Nor was it regulated even by FDA, until a few months ago. But cannabis, a far safer drug, is degraded by the most draconian Schedule I classification and brutally enforced by the DEA.

Constitutionally the  US government has no business in the prohibition business. Practically such prohibitions have become an incarceration nightmare. We need to drug war collateral damage. Harsh penalties conceived to “tear the ass out” of hippies 40 years ago should not be mandating continuation of prison state and police state policies.

Holder his feet to the fire. Eric Holder a drug reform disaster as Attorney General.

Tragically, Barack Obama’s Attorney General will very likely chart a more-of-the-same course on two of America’s greatest criminal justice problems, the fraudulent drug war and the related explosion of the American prison population. Barack Obama’s supporters had every right to hope that their winning candidate would provide a change of direction in America’s disastrous drug and incarceration policies.  But then came his cabinet announcements.

Bizarrely, conservative politicians in and out of congress alone oppose the nomination of Eric Holder as next Attorney General.  Holder’s nomination SHOULD be opposed by all those who love the Bill of Rights and who believe that America should be land of the free, not site of the world’s largest prison complex. Eric Holder, like all of Obama’s Clinton administration holdovers, was a hard core drug warrior, eager to smash the lives of young Americans with felonies, mandatory minimum sentences and fill newly-built prisons.

In just one generation the American prison population has quadrupled. During this same generation a succession of Attorneys General have used the “War on Drugs” as an easy escalator for riding huge expansions in the department. The drug war, especially the persecution of cannabis, has provided decades of high octane fuel for the Justice Department, along with the DEA, SWAT squads, prison industries and urine testers. More arrests are made for the “crime” of possession of cannabis alone, than for all the violent crimes, those with actual victims, put together.

Eric Holder, please note; Barack Obama please note: the Drug War verdict is in!  A July 2008 World Health Organization report found no relationship between severity and enforcement of drug laws and level of drug use by a country’s people. The USA, with its draconian approach (10 times more drug war inmates in USA that in all of Europe), actually still has the highest rates of illegal drug use out of 17 countries studied in new research. The entire war on drugs is a useless fraud. Actually far worse than just useless, in reality a horribly expensive and counterproductive betrayer of America’s key values, as embodied by our Bill of Rights. At this point the USA jails more of its citizens for violations of drug laws than Europe imprisons for all crimes. Europeans look on aghast as across the Atlantic former the land of the free locks away its citizens at a rate 6 times that of their own.

The quality of America’s Attorney General, for nearly all the last forty years at least, has been pathetic. Richard Nixon’s wretched John Mitchell was himself brought down by Watergate. During the long decades of the drug war, most of them have been enthusiastic proponents for jailing an ever larger proportion of the nation’s citizenry for victimless “crimes.” Clinton’s Janet Reno oversaw a massive expansion the Justice Department and corresponding swelling of the American prison population. When not scheming for ways to torture prisoners at Guantanamo or spy on American’s telephone calls, George W. Bush’s Hall of Shame Attorney’s General John Ashcroft and Alberto Gonzales eagerly oversaw the jailing of America’s two millionth prisoner in 2003. Finally, Barack Obama is elected and people hoped for the promised change. Instead, the appointment of another Clinton administration drug war hardliner Holder for Attorney General dashes hopes for change in cannabis, drug and incarceration policy.

Michael Pollan, writing about cannabis in The Botany of Desire, put it very well. He envisions future historians looking back on this era, scratching their heads as to “why Americans would have been so willing to give up so many of their hard-won liberties in the fight against this plant.” From every indication, Eric Holder will be yet another Attorney General eager to separate Americans and their liberties, and continue, without thinking or blinking, the federal war against, “this plant,” medical cannabis.

Another new aspects that makes the prospect of the new Attorney General thoughtlessly cloning the cannabis policies of his predecessors all the more ludicrous has been the discovery of the endocannabinoid receptor system and the major role this discovery portends for cannabinoids in health care. Ever protective of cannabis’ Schedule 1 designation, the Justice Department has lead the nearly across the board resistance to the study of medical cannabinoids.  As a result, many of the rapid advances in understanding the scope, importance and medical potential of our endocannabinoid receptor system has taken place outside the USA. Now it looks quite likely things will continue on as before, with ideology trumping science still. But let’s hope for the best.