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Issues by George W. Liebmann Issue 100 - January 30, 2008 Americans in both parties report themselves uninspired by the current
crop of Presidential candidates. Yet Americans know that significant domestic problems are unaddressed: that the public high
school system is a disaster area; that the savings rate is nonexistent, being discouraged by over-liberal credit and justified
fear of eventual inflation; that transportation infrastructure is deteriorating; that both local and national policies favor
sprawl development and the mismanagement of public lands; that families with young children are under great economic pressure,
while the elderly are the darlings of the tax and benefit systems; and that police, prison, and judicial bureaucracies are
ever-expanding. The cause of these difficulties is found in the over-centralization of domestic government; in what Paul Freund
described as "apoplexy at the center and anemia at the extremities." That in turn is the product of wars, both real
and rhetorical (the Cold War, the wars on poverty, drugs, and terrorism), as well as a by-product of the Depression, when
denial of direct federal authority stimulated resort to conditional grants to state and local government, destructive of the
competence of both donor and recipient. The result resembles Tocqueville's description of the ancien regime : "One
set of people did the actual administration; another set laid down the abstract principles on which all administration ought
to be founded; one set took the particular measures indicated by routine; the other set proclaimed general laws without ever
thinking of the means to apply them; one set had the conduct of affairs; the other set, the control of mind." Failure
of leadership has been aggravated by erosion of the devices once provided for selection of high public officers: the Electoral
College; its successor, the party convention; and the indirect election of Senators. Tocqueville urged an opposite development:
"Able men retire from the political arena, in which it is so difficult to retain their independence, or to advance without
becoming servile...the American republics will be obliged more frequently to introduce the plan of election by an elected
body into their system of representation or run the risk of perishing miserably among the shoals of democracy." The products
of a system are rarely constructive critics of it. President Nixon's timid efforts on behalf of revenue sharing are almost
the lone recent exception. Tax sharing, like that adopted in the major Western European countries is nowhere on the political
agenda. One party favors Washington control; the other disparages anything that might enhance the legitimacy and size of government.
Since the demise of the tax reforms fostered by President Reagan and Senator Bradley and the re-institution of preferences
for capital gains, Tocqueville' description of the French tax system has become apropos: "in France, the nobles retained
to the very end exemption from taxation to console them for having lost the right to govern... taxation had for its object
not to reach those most capable of paying it but those least able of protecting themselves." There are other measures
that are not on the agenda. There are efforts to foster self-governing public charter schools, but no suggestion that all
state schools be given their own boards, as in Britain, Australia, New Zealand, and parts of Germany. The Democrats, urged
on by teachers' unions, foster centralization at every turn; the Republicans tilt at the windmill of privatization and
vouchers without educating the public as to how bad the schools are. The taxation of families with small children has vastly
increased since the 1960s, with increases in the rate and base of the payroll tax and a decade in which personal exemptions
were eroded prior to their indexing. The Norwegians and Canadians have effectively devolved to families responsibility for
pre-school care by providing adequate tax credits; the American approach involves subsidies and credits for institutional
care only. Overreaching federal legislation mandates only criminal-law approaches to the 'drug war'. Schools and colleges
are reluctant to assume responsibility for testing and treatment programs when the effect of so doing may be to disclose law
violations by their students. Despite forty years of constant use levels and a growing flood of corruption and dirty money,
even the most modest state experiments are precluded by law and opposed by a federal propaganda machine. The elderly receive
expanding and unsustainable social benefits. The devices that other nations have used to foster mutual aid, family responsibility,
and self-help, incentives for accessory and duplex apartments and small tax concessions for cooperatives of the elderly, are
unspoken of. The troubled portions of cities are showered with federal programs by the Democrats and ignored by the Republicans.
The cooperative, developer-sponsored devices for block-by-block renewal known as 'land readjustment' are legally unauthorized
in the United States, though responsible for the post-war renewal of Japanese, Korean and European cities. Although business
improvement districts with assessment powers florish in New York, their creation elsewhere is anathema to municipal bureaucracies
and prevented by state law. Armed with the printing press, the federal Congress, President and bureaucracy, unlike their local
counterparts, are fiscally undisciplined. No one, after Katrina and the savings and loan and sub-prime mortgage debacles can
urge the superior efficiency of federal administration. No state could afford the orgy of prison-building that is the product
of the federal sentencing guidelines. Until recently, the national government prevented congestion pricing on important public
roads, and neither party has rushed to embrace it, though it is the only device that can give hard-pressed commuters relief
in the short term. The antiquated regimes governing grazing and mineral rights on public lands are defended by the Republicans
at the instance of business interests, their survival also owes much to the Democratic hostility toward any form of devolution
or privatization. The suggestions of the Comptroller General, David Walker, a Democrat, have been anathema to both parties.
The Republicans are intent on buying votes, as with the ethanol and farm-subsidy legislation and much of the defense budget;
the Democrats fear that the punch bowl might be removed as they approach the table. Someday, one of our politicians besides
the doctrinaire Congressman Paul may re-discover the Messrs. Jefferson and Brandeis. He or she will receive no help from our
press, which is now more centralized than the government, but may find greater popularity than the current crop of candidates.
George Liebmann, a Baltimore lawyer and currently a Visiting Scholar at Wolfson College, Cambridge, is the author of a number
of books on local government, including Solving Problems Without Large Government (Praeger,1999), reprinted as Neighborhood
Futures (Transaction Books, 2004) -------------------------------------------------------------------------------- ©
2008 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602 Move beyond school
voucher fantasy to focus on real reforms By George Liebmann Baltimore Sun,January 6, 2008 The recent, ringing defeat of a
referendum on school vouchers in Utah - generally thought of as America's most conservative state - should be a wake-up
call to critics of our public school system. The proposal failed for several reasons apart from the might of the teachers
unions. Chief among these is that it was perceived as a solution in search of a problem: an effort by a group of doctrinaire
conservatives to sell an intellectually tidy "free market" panacea without taking the trouble to first convince
the electorate that schools, and particularly high schools, have serious flaws. The fact is, if not for the obstructionism
of the teachers unions, schools could be fixed with the scalpel of reform rather than the sledgehammer of vouchers. Consider:
Most parents are generally pleased by the state of public high schools. (The exception is the inner cities, where vouchers
do have a constituency - albeit one not often exploited by conservatives.) Most parents graduated from such institutions and
feel that they turned out just fine. Moreover, public schools perform many valuable services. These include getting offspring
out of the house when they are at their most difficult; transporting them to distant locations free of charge; providing free,
or at least very cheap, lunches and sometimes breakfasts too; introducing them to the opposite sex in a controlled environment;
providing some physical activity, thus preventing them from being couch potatoes; providing spectator sports to entertain
them on weekends; instilling some basic literacy and the ability to read clocks and timetables; and, at the end of the process,
bestowing a diploma entitling the recipient to further subsidized education. The benefits of the system are obvious, its costs
delayed and diffuse. Though few realize it, the system is one of the most expensive in the world, and large portions of its
costs take the form of bricks, mortar, "Cadillac" health insurance policies and defined-benefit teacher pensions.
More consequential are the costs its graduates will pay in middle life for deficiencies in scientific and mathematical training,
as skilled American jobs are exported and properly trained workers from abroad are imported. Test after test and commission
after commission has decried the fact that American schools are close to the bottom of the league in these subjects, and that
differentials with foreign countries grow greater at higher grade levels. Parents indulge the illusion that our foreign competitors
have elitist systems, not universal ones, but such is no longer the case: Their secondary-school completion rates frequently
exceed ours. Teacher shortages are decried, but the only remedies acceptable to unions and the politicians that fear them
are scholarships for college students willing to become teachers - not extra pay for scarce disciplines. But scholarships
do not pay mortgages and children's college tuitions, leading science teachers to leave the system as their families mature.
Then there are certification procedures requiring a year of education courses to enter the system and two or three years to
become a school administrator. It would be nice if conservatives ceased dreaming Milton Friedman's dreams of a more privatized
system and got down to brass tacks. Our public schools need three major reforms: building-level governance (like that provided
by the 1988 Education Act of the Thatcher government in England); a reduction of certification requirements to not more than
one term of education courses; and differential pay for teachers in scarce disciplines. Each of these reforms has a potential
constituency: parents and teachers frustrated by bureaucracies for the first; liberal arts graduates and retiring military
and civil servants for the second; and the business, scientific, medical and higher-education community for the third. The
energy applied to statewide voucher schemes should be directed to these reforms. If teachers unions resist them as obstinately
as in the past, the public arguments over them will make the case for vouchers more obvious. George W. Liebmann, a Baltimore
lawyer, is executive director of the Calvert Institute for Policy Research and the author of "The Agreement: How Federal,
State and Union Regulations are Destroying Public Education in Maryland." His e-mail is georgeliebmann2@verizon.net.
Clinton Coronation? by George Liebmann Conservative Battleline Online Issue 95 - November 7, 2007 A rash of recent newspaper
stories have proclaimed, a year in advance of the Presidential election, Sen. Hillary Clinton to be the next Democratic nominee,
and the next President. The fixation of these stories is on campaign contributions and poll results, a sort of ‘inside
baseball’ that our great newspapers now seem to regard as central to their informing function. But the oceans of ink
expended in recirculating data provided by campaign organizations shed remarkably little light on what her interests in life
are, what sort of public officer she has been, what her education has been, what methods she regards as acceptable or unacceptable,
what campaign promises she has made and what their implications are, what sorts of people she surrounds herself with, what
standards she will apply in making appointments, whether her political style is characterized by candor or the opposite, what
importance she attaches to the less fashionable guarantees of the Bill of Rights, the vertical separation of powers, or federalism
and localism, whether she is tolerant or vengeful in her attitude to those who differ, and whether she is a realist, a chauvinist,
an opportunist, or a ‘liberal imperialist’ in her approach to international relations. Such questions have not
been seriously asked about her, or about any of the other candidates. They deserve answers. The conviction of many that Mrs.
Clinton’s presidency will be the Clinton Presidency redux finds little support in history. Men and women equipped with
power do not necessarily behave as their close relatives have done. For this we have the example of the current President,
as well as innumerable illustrations from the history of monarchies. Filial ties, based on a common upbringing and social
background, are apt to be deeper than spousal ones in predicting political behavior, even that of parties to a less unconventional
marriage than that of the Clintons. The behavior of Edward VIII, we may recall, bore little resemblance to that of either
his father or his brother. Kaiser Wilhelm II did not vindicate the hopes placed in his short-lived father. The list of available
examples is a long one. Bill Clinton, a man who desired to be universally loved, may be regarded as the most benign emigrant
from Arkansas since Al Capp’s Schmoo. The bunker may be his wife’s natural habitat. What we do know prompts more
questions. What, to ask a very British question, is Mrs. Clinton’s ‘hinterland’? What interests does she
have in life other than the acquisition and exercise of political power? What are we to make of her much-vaunted educational
reform campaign in Arkansas, productive of many speaking opportunities but few tangible achievements? What of her tenure as
Chairperson of the federal Legal Services Corporation, which thought that political contributions to state referendum campaigns
was a suitable use of federal funds? What of the over-enthusiasm for the criminalization of politics attributed to her during
her stint as a Watergate special prosecutor, or the investigations of the New York police department threatened while Giuliani
was a Senate candidate, which disappeared when he withdrew? What of the health care task force, with its anti-democratic premise
that ‘complexity is our ally’ and its fiscal projections, deflated by the Congressional Budget Office, asserting
that the improvements could be fully financed by ‘savings’ and an increase in the cigarette tax? This was not
the style of David Lloyd-George who declared, in presenting the National Insurance Act of 1911 to the House of Commons "it
will cost money, and it will be worth it!". Nor was its substance respectful of professional values, stampeding once-independent
physicians into ‘managed care’ groups. Mrs. Clinton says she has learned from this experience. And what has she
learned? To do more for the insurance companies! That the system is complex, that the country is diverse, that its civil service
is not up to French or British standards, and that reforms require local governance and market signals–this we have
not heard from Mrs. Clinton. The United States cannot be a Greater Sweden. Mrs. Clinton’s memoirs, unlike those of her
husband, reflect no intellectual curiosity, quest, or pilgrimage. What does she read, what has she read, what impact has it
had? This we do not know. As for methodology, we do know some things, and they are not encouraging. Does her presentation
of an award to Anita Hill, for her ‘courage’ in being dragged forward by congressional staff to make ten-year-old
allegations that were both unprovable and irrelevant presage further use of sexual defamation as a political weapon, or have
lessons been learned from the Lewinsky saga? Will dissenters within her party be denied speaking rights, like the elected
Governors of Pennsylvania and Kansas in 1992? Will there again be a clean sweep of U.S. Attorneys, invoked by the Bush administration
to justify its purge of ‘difficult’ U.S. Attorneys, or has something been learned from this experience also? Mrs.
Clinton professes to believe that the first action was legitimate, the second not. But it was Mr. Churchill who advanced as
one of the tests by which freedom might be known in the modern world "Are the courts of justice free from all association
with political parties?" What of her promise of universal federally-funded preschool? What does that say to parents who
want to stay home, at least part-time, during ‘the magic years’ when their children are very young? "Parents",
Bertrand Russell once said, "are apt to be fond of their children and do not want them to be fodder for political schemes.
The state cannot be expected to have the same attitude." What of the $5,000 child bond she has proposed? Why is this
use of funds deemed more prudent than a comparable investment in science education in high schools? Or is the virtue of this
scheme that it does not make trouble for the teacher’s union, however inconsistent it may be with the notions of earned
entitlement that have informed most successful American social legislation: the Homestead Act, the Social Security Act, the
G.I.Bill, the Welfare Reform law (which Mrs. Clinton opposed and which her husband twice vetoed)? What of "Hillaryland",
a staff rivaled in its secretiveness only by that of the Vice President? Have any of its denizens drafted a successful statute
or administered a successful program, or are they all obsessed with electoral mechanics, and only electoral mechanics? Are
pollsters and political consultants likely again to participate on equal terms with the Secretary of the Treasury in meetings
to determine domestic policy? Are we to have another ‘affirmative action’ domestic cabinet, whose members spend
inordinate amounts of time dodging indictments, seeking pardons, or enjoying expense accounts, or will our problems of transportation
infrastructure, secondary education, and mismanagement of public lands be effectively dealt with? Is the moral authority of
the administration likely to be squandered by early and obvious payoffs to interest groups? What does Mrs. Clinton believe
about the budget deficit, about social security, about medicare? She has declined to say. She appears to be against raising
the retirement age in a rapidly aging society, against private accounts, and against benefit reductions. The remaining options
are not pretty ones: increased wage bases, which erode political support for social security and fall heavily on small businessmen,
increases in already high and regressive payroll tax rates, or the vigourous operation of the printing press. Where does Mrs.
Clinton stand, or is she to be given a free pass? Finally, there are the questions of separation and division of powers. With
respect to both Iraq and Iran, Mrs. Clinton has voted to aggrandize presidential power. Her defense of the writ of habeas
corpus, and her opposition to the confirmation of Alberto Gonzales, were scarcely robust. In her memoirs, she refers to the
posse commitatus act as something in the nature of an obscure nuisance. Her husband greatly expanded federal criminal jurisdiction;
she has been an enthusiastic supporter of the ‘hate crimes’ bill. What, in her view, are the limits on federal
executive and prosecutorial power, or are there any? Has there not been essential continuity between the Justice Department
of Reno and that of Ashcroft and Gonzales; between the thinking that led to the Kosovo War and the first bombing of a European
capital since 1945 and that which led to the Iraq War? Is she pleased by the present state of Kosovo, or does she, like the
press, avert her eyes? How can a President lead, without disclosing her views and purposes? Elections are where mandates are
obtained. And what reason is there to think that accountability and constitutional government can survive a President who
has never held a proper press conference? It is not too soon to seek answers to these questions. George Liebmann, a Baltimore
lawyer, is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005).
-------------------------------------------------------------------------------- © 2007 American Conservative Union Foundation
1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602
- Contract holds back city schools
By George W. Liebmann
- Baltimore Sun, July 24, 2007
A new schools chief has come to Baltimore. Andres Alonso's arrival coincides with the last stages of negotiation
of a multiyear teachers union contract, which will effectively tie his hands if its provisions are unwise.
There is much in the current contract that was carelessly accepted, and much that needs revision. Political realities preclude
drastic revisions, but there are steps in the right direction that should be taken.
The two drivers of the system's recurrent fiscal crises are teachers' automatic step salary increases, up to the 21st year
of service, and their "Cadillac" health insurance plan. The panel under the chairmanship of former Baltimore County Circuit
Judge Barbara Kerr Howe that investigated the last fiscal crisis determined that these items increase personnel costs by 8
percent per year, while the district normally sees about a 2 percent increase in tax revenues. The difference creates a structural
deficit of $42 million per year.
The system cuts off seniority increments at the 10th year for teachers without master's degrees; it should
ultimately do the same for all teachers. A start should be made by lowering, perhaps to 18, the years of step increases, and/or
lowering them to 10 for new entrants into the system.
The health plan contains a $150 individual and $400 family annual deductible with no co-pays for most in-network services,
and co-pays of only $10 for branded drugs, well below those in Medicare Part D. Middle-class professionals should be expected
to budget for routine health care.
In addition to exorbitant health care costs and wage increases, the contract provides the most liberal provisions for cash
conversion of sick leave of any school district in Maryland.
Fiscal profligacy, however, is far from the only problem with the current contract. Consider the following provisions:
• A five-step grievance system subordinating the superintendent and the board to a third-party arbitrator. This renders
teachers virtually impossible to remove.
• A seven-hour, five-minute school day with a 45-minute lunch period. Nearly all counties have a seven-hour, 30-minute
school day with a 30-minute lunch period.
• Priority in requested transfers between schools is granted on the basis of seniority. The effect of this is that
highly paid, experienced teachers gravitate to the "least difficult" schools. A study in Baltimore County showed a disparity
in per pupil spending between schools of as much as 2-to-1 because of this phenomenon. The state has spent billions providing
equal school spending between school districts, only to have its objective undone within districts by the seniority provisions
of union contracts.
• The only contract variation allowing extra pay to math, science or special-education teachers is limited to $500
per year for three years. By contrast, Talbot County allows 10 years of extra seniority increments where necessary to attract
teachers in scarce disciplines.
Another deficiency of the contract is that the only way teachers may advance on the basis of good work is by becoming department
heads, in which case they are required to partially leave the classroom; by being designated "master teachers," entitling
them to an extra $4,000 per year but requiring that they "not be assigned regular full-time classroom duties"; or by being
certified by a union-controlled national board whose certificates have little correlation with classroom competence, which
brings an additional $4,000.
It is also stipulated that "enterprise schools" - presumably including charter schools - are allowed to make operational
decisions "in accordance with labor agreements," a vague provision that does far more than properly guarantee salaries and
benefits.
Numerous provisions in the contract discriminate against teachers whose seniority has been gained in other public school
systems; others transgress on curriculum and textbook issues reserved to management by state law. While state law wisely provides
that troubled schools be provided with community boards known as school improvement teams - a provision that could usefully
be extended to all high schools - the current contract seeks to vitiate this provision by packing the teams with teachers
at the expense of the dreaded "outsiders."
Mr. Alonso has his work cut out for him. He needs more help than the school board's negotiating committee has given to
his predecessors.
George W. Liebmann, a Baltimore lawyer, is executive director of the Calvert Institute for Policy
Research and the author of "The Agreement: How Federal, State and Union Regulations are Destroying Public Education in Maryland."
His e-mail is georgeliebmann@verizon.net
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Nationalizing Crime
by George W. Liebmann
 The endorsement by the Washington Post and too many ‘liberals’ of the proposed ‘hate crimes’ bill
exists in strange juxtaposition with recent articles and editorials on the U.S.Attorneys scandal revealing the abuse and over-centralization
of the existing system of federal law enforcement. The significance of the proposed bill is not found in the ludicrous ‘log-rolling’
leading to the inclusion of women and the disabled as well as ‘gays’ as new categories of protected persons, but
rather in its dilution of constitutionally mandated requirements of criminal intent, which would potentially ‘federalize,’
or rather nationalize, almost all crimes of violence and associated words .
The dangers of this sort of vagueness are why the Supreme Court in 1812 refused to allow federal courts to define
‘common law crimes’ since the ensuing body of law would be "much more extended" and "in its nature very indefinite."
"Behind the decision", according to one historian, was:
the concern that nonstatutory crimes would not be defined with sufficient particularity and could be made instruments
of political repression...In retrospect it is obvious that the common law of crimes was a potent political weapon wielded
by the party in power against its opposition...political leaders could and did use the doctrine of common law crime to stifle
the opposition press and perpetuate themselves in office.
Both the Roosevelt court in Screws v. United States and the Warren Court in United States v. Guest
stated that the federal criminal civil rights laws would be unconstitutionally vague unless circumscribed by specific intent
to deprive a victim of a federal constitutional right. Without this, Justice Douglas said in Screws, the law " lacks
the basic specificity necessary for criminal statutes under our system of government " Justices Frankfurter, Jackson and Roberts
further cautioned that even as limited, the statute has dangers:"a ‘policy of strict self-limitation’ is not accompanied
by assurance of permanent tenure and immortality of those who
make it the policy. Evil men are rarely given power; they
take it over from better men to whom it had been entrusted. There can be no doubt that this shapeless and all-embracing statute
can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined."
This supplies sufficient answer to the weasel words in the hate crimes bill about consultation with states.
The obvious dangers to free speech which gave rise to Jefferson’s successful opposition to federal common law crimes
are also present in the ‘hate crimes’ bill, and are revealingly sought to be avoided by statutory exceptions which
must be invoked and proven by defendants. Prosecutions under the bill would thus involve a witches’ brew of controversial
questions.
This “hate crimes” bill should be held up to law students as a model of bad draftsmanship, and any
presidential candidate of either party voting for it should be deemed disqualified thereby.
George Liebmann, a Baltimore lawyer, is the volunteer Executive Director of the Calvert Institute for Policy
Research and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005).
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© 2007 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel:
703.836.8602 |
The Calvert Institute announces publication of The Trimmer's Almanac: Ten Years of the Calvert
Institute, 1996-2006, available for $30 including postage (five or more copies, $15 each including postage). The Table of
Contents of this handsomely bound 660 page volume appears below:
Table of Contents
Table of Contents i
Preface v
I. Criminal Justice
1Charles E. Moylan, Jr., J. Frederick Motz, John Glynn,Timothy Doory, Elizabeth Julian, Page Croyder andPeter Saar;
The Baltimore Criminal Justice System:The Judges Speak 1
George Liebmann, Three Brief Comments: Gun Control,Citation Authority, Tenure of Police Commissioners 34
Robert M. McCarthy, Action Plan on Juvenile Crime 41
II. ‘Court Watching’ 49
George Liebmann, The Folly of Consent 49
Kalman Hettleman and George Liebmann;Special Education 60
George Liebmann, A Three Ring Circus 64
George Liebmann, Civil Gideon: An IdeaWhose Time Has Passed 76
III. Drug Policy 81
Alan Friedman, Gary Johnson, Donald Santarelli, Jerome Jaffe, and Robert DuPont; The War on Drugs:A Reconsideration After
40 Years 81
George Liebmann, Testing for Drugs in Schools,The Constitutional Issues 111
Douglas Munro, Why Maryland Should ScreenWelfare Applicants For Drug Use 120
IV. Education 127
Denis Doyle, David DeShryver and Douglas Munro;Reforming the Schools to Save the City 127
George Liebmann, The Agreement: How Federal,Estate and Union Regulations are Destroying PublicEducation in Maryland 192
Donald Langenburg, Peter Martin, and John Toll;High School Science and Mathematics in Maryland 231
Jeffrey Flake, Much Ado About Nothing: Fuss AboutCertification Protects Closed Shop 254
C. Steven Wallis, Civility: Key to Genuine School Reform 257
Douglas Munro, Public v. Private Schools:A Reality Check 267
Robert Lerner and Althea Nagai; Multi-culturism andthe Demise of the Liberal Arts at Maryland’s PublicColleges and
Universities, Except Morgan State 271
V. Devolution and Management 307
William Eggers, Timothy Burke, Adrian Moore,Richard Tradewell, and Douglas Munro; Cutting Costs:A Compendium of Competitive
Know-How and Privatization Source Materials 307
George Liebmann, A Contrast to Regionalism:Reversing Baltimore’s Decline through NeighborhoodEnterprise and Municipal
Discipline 389
Donald Stabile, Wayne Hyatt, Linda Schuett, MarcPorter Magee, Leta Mach, Charles Duff, Jr.;Creating Community in Planned
Communities 489
Peter Samuel, C. Kenneth Orski, Kenneth Reid andRonald Utt; Market Approaches to Congestion Control 528
William Ratchford, Nancy Kopp, Robert Neall, James Brady, Donald Devine and Nina Owcharenko; TheMaryland Budget: The Experts
Speak 564
George Liebmann, The Baltimore City Retirement System: Heading for Trouble 620
The Calvert Ethos 629
Douglas Munro, An Albanian Sojourn: A StafferRecalls an Unusual Odyssey 629
Christopher West, Partisan Politicking and theMaryland Judiciary 640
Ronald Dworkin, A Conservative Robespierre:A Review of Bork’s Gomorrah 643
Ronald Dworkin, Too Easy and Too Free: A Review of Murray’s Libertarianism 648
George Liebmann, Two Essays on Terrorism 653
| Commentary |
George Liebmann: There is another way to settle ‘eminent domain’ debate
George Liebmann, The Examiner
Dec 15, 2006 12:00 AM (1 day ago)
Current rank: # 13,548
of 13,559 articles WASHINGTON - The recent election has seen states adopt
constitutional amendments reversing the recent Kelo decision allowing New London, Conn., to condemn private homes for purposes
of development.
That decision was applauded by city officials, and was decried by many conservatives, including some seeking to ban all
redistributive government activity. A dialogue of the deaf, similar to that in the abortion and “gay rights” controversies,
is under way: A judicial decision ignites extravagant political responses; arguments are cast as absolutes, and underlying
problems are not rationally discussed.
Certainly, cities have not benefitted from “the federal bulldozer.” The condemnation of owner-occupied homes
so that land can be handed over to developers is wrong. But it is a fact that inner cities do not spontaneously regenerate.
Because of the splintering of lots and the complication of titles, private land assembly is a difficult process; developers
are held to ransom by “hold-outs”; and the line of least resistance is to develop on greenfields elsewhere.
Improving single properties is difficult; vandalism renders it infeasible. Although there is re-gentrification in historic
neighborhoods and around harbors, decay is the rule, renewal the exception. Those urging that rights of property and “law
and order” are all that is necessary to renewal overlook formidable transaction costs.
Several foreign countries have found a method of renewal that utilizes private developers and that minimizes, though it
does not completely eliminate, governmental coercion. The technique is known as “land readjustment” and supplies
the basis of re-development in the war-damaged cities of Japan, Korea and Taiwan, and in Kiel, Germany, and Rotterdam, Netherlands.
Under it, a percentage of owners in a city block petition a city council or court for creation of a readjustment district.
Unlike the situation with government takings, any owner-occupier can exclude his property. If creation of the district is
found reasonable, the properties within it are appraised.
Any owner not wishing to remain in the scheme has the right to be bought out at an appraised value, as in eminent domain.
The remaining owners frame a redevelopment plan, give shares in it to a developer, and on completion, receive either their
improved property and/or shares in a corporate owner.
The method relieves both developers and municipalities of land acquisition costs, and gives owners, in inner cities typically
landlords, absentee investors, or municipalities, an incentive to cooperate.
Although a number of American academics have sought to foster the technique, it has never caught fire here, although there
is no reason save unfamiliarity, why it should not. Similar devices have been used to consolidate land parcels in cemeteries
and failed recreational developments.
Provided that compensation of dissenters is immediate, there are no constitutional obstacles. When the defenders and foes
of Kelo are through screaming at each other and celebrating their victories and mourning their election defeats, they might
usefully turn their attention to this moderate and hopeful device.
George Liebmann, a Baltimore lawyer, is the author of “Neighborhood Futures: Citizen Rights and Local Control”
from Transaction Books, 2004. Examiner |
 
George Liebmann: Ask Gubernatorial Candidates About Schools and Education
George Liebmann
2006-10-18
The Examiner
BALTIMORE - Voters must ask the two main candidates for governor these three questions about schools before they vote for
either one:
Do you favor:
- Opening up teaching to people not trained in education schools?
- Pay structures resembling private labor markets, where schools compete?
- Building-level management of schools?
Why are these reforms needed? Schools are as good as the teachers in them. Teacher quality will not improve until barriers
to entry are removed, competitively determined pay is provided, and management autonomy is restored. Here is an overview of
where Baltimore Mayor Martin O’Malley, a Democrat, and Gov. Robert Ehrlich, a Republican, stand.
Opening up the teaching force
Ehrlich: Ehrlich has supported charter schools, which in most states don’t require many education course credits
of their teachers. But State School Superintendent Nancy Grasmick has not made it easier for liberal arts graduates, scientists
and retirees to teach. A state legislator withdrew a bill reducing required education courses at her request. A new law allows
100 science teachers annually to participate in an alternative certification program. Since the state hires several thousand
teachers, this represents pitiful progress.
O’Malley: Many teachers with alternative certification work in the city schools, thanks to the Abell Foundation.
O’Malley seeks large salaries for a limited group of school principals. Since principals must complete two years of
education courses, this creates an added incentive to take education rather than subject-matter courses. The mayor preserved
the Baltimore City union contract, which contains a provision denying teachers from the counties seniority credit for prior
service.
Reforming pay structures
O’Malley: The only incentive the Baltimore City contract provides to teachers in scarce disciplines, like math and
science, is a signing bonus of $1,500 spread over three years. The master teacher provisions provide rewards in the $3,000
area.
Ehrlich: The governor’s Steele Commission proposed merit pay and extra pay for scarce disciplines. Grasmick’s
version of merit pay makes such pay dependent on test results, rather than on local judgment of principals and peers. This
“control freakery’’ undermines the concept. Student performance depends not only on teacher skill but on
parental interest and discipline maintained by principals. Besides, students would have no incentive to take seriously tests
without personal consequences.
Building-level governance
O’Malley: In Baltimore City, union contracts leave even skilled principals with little authority. Senior teachers
can readily move to schools of their choice; this prevents principals from building a team. A five-step grievance procedure
makes it almost impossible to discipline bad teachers. The mayor deserves credit for seeking community aid for building repairs.
But these efforts have not been institutionalized, even though state law allows boards to appoint advisory committees for
each school. Even Baltimore’s magnet high schools lack such committees, leaving them at the mercy of the bureaucracy,
which recently tried to dilute admission standards.
Ehrlich: The governor’s record rests entirely on support for charter schools, which enroll less than 1 percent of
students.
So who is better?
Neither candidate’s agenda will do much, though Ehrlich’s offers more hope, particularly in its proposals for
liberalized certification, some form of merit pay and extra pay for teachers in scarce disciplines. And he is more independent
of the vested interests in unions and education schools.
George Liebmann is the volunteer executive director of the Calvert Institute for Policy Research Inc.
Review
of George Liebmann’s The Common Law Tradition:
A Collective Portrait of Five Legal Scholars
By Bradford
A. Berenson (from Engage: The Journal of the Federalist Society Practice Groups, May 2006))
What is the role and relevance
of legal academia in the larger society? Do law professors matter? If so, why and in what context? What attitudes and habits
of mind are most conducive to excellence in law teaching? How have law schools
and those who make their careers in them changed over the past four decades?
Anyone interested in these
questions will find abundant food for thought in George Liebmann’s new book, The
Common Law Tradition: A Collective Portrait of Five Legal Scholars.
At the center of the book
are biographical and bibliographical surveys of five law professors from the University of Chicago in the 1960s: its Dean, Edward H. Levi; Harry Kalven, Jr., who collaborated with sociologists on empirical studies of
the American jury in the Chicago Jury Project; legendary contracts scholar and father of the Uniform Commercial Code Karl
Llewellyn; constitutional law professor Philip Kurland; and the original serious student of the theory and practice of administrative
law, Kenneth Culp Davis. Liebmann was a student at Chicago during the time these
five men taught, and he appears to have been personally acquainted with all of them.
His portraits are therefore admiringly rendered, salted with enough anecdote and personal reflection to keep the reader’s
attention.
The chapters devoted to the
individual portraits of these legal scholars canvass their lives and work. At
times they devolve into fairly dry recitations of the career achievements of their subjects and summaries of their major works
and the reactions of other scholars to those works. But at their best, these
chapters bring their subjects to life and allow the reader to understand not only what these men did with their lives, but
why, and why it mattered.
The chapter devoted to perhaps
the most interesting of these figures, Ed Levi, discusses not only his academic work on antitrust law and legal process but
also his tenure as Dean of the Law School, as Provost and then President of the University of Chicago during the politically
and racially turbulent times of the 1960s, and his work in government in the Antitrust Division of the Justice Department
and then later as its Attorney General. We learn that although Levi was both
a founder of the law and economics movement and a legal realist, his career was devoted, in a sense, to an ideology of being
non-ideological. As Liebmann describes it, Levi was a consummate institutionalist
and process-oriented conservative. He led an effort to assimilate the teachings
of social science into law and favored a jurisprudence of restraint, according courts less latitude in interpreting statutes
and more in areas where the common law reigned, but always demanding gradualism and practical accommodation to the needs of
the democratic process. In the constitutional arena, “[h]is concerns centered
less on individual rights than on the structure of divided and separated government that protected them.”
In the 1950s and 1960s, Levi
became involved in a number of controversial episodes as a university administrator, and in each, he displayed the mature
professional and practical judgment that characterize the best lawyers. In 1951,
a star Chicago law student, George Anastaplo, precipitated what eventually became a 5-4 decision in the Supreme Court by refusing
on principle to respond to questions concerning affiliation with the Communist Party on his Illinois State Bar application. Levi attempted to dissuade Anastaplo from taking this position, correctly as it turned
out: Anastaplo lost his case. In
another incident involving the taping of jury deliberations by the Chicago Jury Project, Levi took responsibility for the
taping (which had court approval) in the subsequent congressional investigation, helping to defuse the crisis. And when racial politics reared its head on campus in the late 1960s – in the form of demands by
black radicals for quasi-separatist preferences in admissions, curriculum, housing, and faculty appointments, backed up by
sit-ins and boycotts of various kinds – Levi steadfastly refused to compromise and yet managed to avoid further provoking
the demonstrators or inflaming the situation. Avoiding mistakes made by other
university administrators, he neither used force nor offered amnesty or concessions; he allowed the passions of the agitators
to exhaust themselves and then used university disciplinary processes to mete out consequences. Levi explained that:
The university must stand for reason
and for persuasion by reasoning . . . It is most unfortunate and in the long
run disastrous for a university to exemplify expediency which avoids or solves conflicts by the acceptance of ideas imposed
by force . . . This approach requires candor, consistency and openness, but also
effective discipline. The discipline will be difficult. But the university owes this much to itself, and it also owes this much to the larger society.
Although not unsympathetic
to the goals of the civil rights movement, Levi clearly hoped that the legal system could serve as a muffler or cooling pond
of sorts that would help sublimate the passions of the civil rights movement into constructive, responsible, incremental change. As Liebmann explains, “he defined the function of the bar not in the manner
of the rights-centered legal activist generation that followed but more modestly, as ‘a coordinating influence, a strategic
intermediary between the people, between the government and the individual, between ideas and their application.’” Levi also valued intellectual diversity on campus and declined invitations to pursue
other sorts through, for example, racial preferences: “Once you determine quality by race or creed, there will be a
leveling in this country. Then only universities outside this country will have
intellectual excellence.”
As Attorney General, Levi
was involved in numerous issues with contemporary resonance. He responded to
allegations of abuse of law enforcement, intelligence, and investigative resources during the Nixon years; adopted many of
the internal Justice Department guidelines that still govern certain activities of federal law enforcement agencies; helped
initiate the process of sentencing reform that culminated years later in the Sentencing Guidelines; managed controversies
over school busing; and grappled with issues relating to special prosecutors and what became independent counsels (he believed
the Independent Counsel Act unconstitutional). Although many of these issues
and controversies could benefit from more in-depth and multi-dimensional treatment than Liebmann affords them, even a cursory
description impresses the reader with the variety and significance of the issues Levi confronted.
Of special interest given
President Bush’s two recent Supreme Court appointments, Liebmann suggests that Levi was instrumental in securing the
appointment to the Supreme Court of John Paul Stevens, with whom he had taught a course in antitrust law. When Justice Douglas resigned, Levi counseled President Ford that it would be unwise to choose a nominee
from within his administration, expressly taking himself out of the running. He
then evaluated a number of leading candidates, and in internal administration deliberations apparently tipped subtly in favor
of Stevens, praising his “discipline and self-restraint.” Years later,
however, Levi also steadfastly supported the failed confirmation of Robert Bork, whom he had been responsible for hiring as
Solicitor General. The superficial paradox appears to be explained by the fact
that Levi valued quality and intellect above ideology and displayed a laudable, but from today’s perspective old-fashioned,
loyalty to persons he esteemed, regardless of the partisan politics of the moment.
The other four professors
surveyed in The Common Law Tradition covered less ground in their careers, but
their work and attitudes shared much in common with Levi’s. The profile
of Harry Kalven, perhaps the weakest of the five, emphasizes the broad range of his academic interests: in addition to being a celebrated torts professor, Kalven wrote influential works on income taxation, automobile
insurance, juries and jury reform, and the First Amendment, the latter of which receives extended treatment from Liebmann. Kalven devoted a substantial part of his professional energy to the Chicago
Jury Project, an extensive empirical study of the functioning of civil and criminal juries whose wealth of data is credited
in part with sustaining support for the jury system. Such work reflected what
Liebmann describes as the central animating principle of Kalven’s thought: a
concern “with values and doctrine, but doctrine conditioned by immersion in fact.”
Karl Llewellyn comes across
in Liebmann’s account as a more colorful character. An expatriate American
who joined the German army in World War I and earned the Iron Cross before the U.S. entered the war, Llewellyn was an idiosyncratic
master stylist, part poet and part legal technician, who passionately advocated the serious study of legislation and then
put his principles into practice as the father of the Uniform Commercial Code. From
his continental experiences, he also urged the study of comparative law. He inspired
first-year law students with rousing words about their chosen profession: the
law “is one part of wisdom: trade, culture, and profession in one . . .
a pitiful, brave flame. Some warmth, some light, some touch of burning courage. What have you more to ask – or to ask to be?” He also participated actively in the affairs of the real world, advocating strongly, for example, on behalf
of Sacco and Vanzetti (whom the light of history has now shown, along with other causes celebres of the American Left, to
be guilty of the offenses for which they were executed).
Llewellyn shared the deep
faith of the other subjects of Liebmann’s book in the common law process and in the values of judicial restraint. As Llewellyn himself described it, he “put [his] faith, rather, as to substance,
in a means; in that ongoing process of effort to come closer to the Good, that ongoing process of check-up and correction,
which is the very life of case law.” As Liebmann notes, “Law, for
him, was not a method by which the enlightened imposed their views on society. . . .
Courts as well as legislature were under a duty to be democratic in their approach and to enforce society’s preferences,
not their own.” Thus, Liebmann concludes, somewhat sardonically, that “[h]is
philosophy is one of bottom-up jurisprudence, of respect for private ordering, and of government by consent of the governed. Hence its current lack of appeal.”
Phillip Kurland began his
career in the Department of Justice and in private practice, but within several years of graduation from law school had found
his way back as a law teacher. His career as a professor was marked by a passionate
interest in the Supreme Court and its jurisprudence – Kurland was the founder and editor of The Supreme Court Review, a publication dedicated to responsible analysis and criticism of the Supreme Court –
and in matters of religious freedom. Indeed, his crowning achievement was the
publication of the The Founder’s Constitution, a collection of source materials
for constitutional interpretation grouped by the section of the Constitution to which they pertained. But Kurland was no originalist. Rather, “[h]e believed
in the relevance of history, not as a literal guide for the present, but as a means of exposing the interests at stake, and
for its assistance in elevating discourse from the immediate to the general. He
believed also in the common law, case-by-case method, and in the assimilation of the past that the method required.” As Liebmann remarks, “This made him a conservative in the Burkean sense, quite
a different thing from the legal conservatism now fashionable.”
Kurland’s process-oriented
conservatism and Frankfurter-style judicial restraint caused him to be a trenchant critic of the Warren Court. He felt that the Court was engaged in an arrogant jurisprudence by fiat, heedless of the soft but vital
constraints of persuasive reasoning and respect for precedent. Yet in 1987 he
testified against Robert Bork, primarily because he objected to Bork’s recourse to an overarching philosophy of originalism. Despite Kurland’s belief in judicial restraint, his highest belief was in a
style of restrained and modest legal reasoning that abjured grand theories or all-purpose approaches to interpretive questions. Liebmann tells us that “[h]e deplored ‘the widespread development of legal
theory to determine rules of law,’ favoring instead ‘a system of induction from examples to rules.’” Kurland pledged fealty to “the liberal tradition,” which he described
as “a tradition born in doubt rather than faith and maintained by skepticism rather than belief.”
Finally, Kenneth Culp Davis,
the great treatise-writer on administrative law, is portrayed as bulldog in the classroom and one of the original scholars
tasked with coming to grips with the vast administrative state wrought by the New Deal.
Serving while a junior professor as a staff attorney on the Attorney General’s Committee on Administrative Procedure,
Davis began the empirical study of administrative process for which he would long be known.
Davis placed his faith in procedural restraints and guarantees of regularity in the exercise of governmental power
that, by the end of his life, he found wanting in judicial process, especially at the Supreme Court level. Davis felt that “[t]he two best procedures clearly are Congressional procedure and rulemaking procedure.” He felt adjudicative processes, whether in courts or in agencies, were inferior “because
of the typical absence of factual studies even when needed and because nonparties who may be importantly affected are typically
denied notice and opportunity to submit written materials.” He remarked
that “[t]he astonishing but undeniable fact is that the Supreme Court in its own lawmaking commonly violates the standard
that courts of appeals unanimously require from agency lawmaking . . . forbidding an agency to depart from a precedent without
acknowledging it is doing so and explaining why.” Davis’s lodestars
were transparency, procedural fairness and regularity, and fact-based decisionmaking.
His celebration of “practical men” could well serve as a fitting coda to Liebmann’s survey not only
of Davis’s life but also of the other four Chicago professors covered in Liebmann’s book:
Practical men never work out detailed
values in advance; they keep their ‘system of values’ vague and flexible, and then they make value choices in
concrete contexts. . . . decisionmakers have a better sense for values when they can draw significantly from immediate facts
and circumstances than when they try to think about values in the abstract . . . rational decisionmaking usually includes
the further development of values. Practical men do not artificially separate
values from the compounds in which they come, and I am not convinced they should usually try to.
Although the chapters dedicated
to Levi, Kalven, Llewellyn, Kurland, and Davis form the physical heart of the book, much of its soul resides in the Introduction
and the Conclusion. This is where Liebmann synthesizes the larger lessons of
these mens’ lives and explores themes that run through their careers which cast into relief the current state of the
legal academy, clearly a subject of central concern to Liebmann.
In part Liebmann’s book
is a paean to a traditional and process-oriented form of judicial restraint. He
explains that one of the important themes that unites all of his subjects is that “[t]hey were convinced that the law
served best when it served its own values, and that predictability, incremental change, conformity to community needs and
customs, and respect for ascertainable legislative will were high among these.”
Indeed, The Common Law Tradition serves as a timely reminder that responsible
voices from the legal academy, including on the Left, were dismayed by Warren court activism and warned of the threat to judicial
legitimacy it posed. The five professors profiled by Liebmann all criticized
on principled, legal process grounds major decisions of that era, including in sensitive areas such as desegregation. All five indeed were openly critical of the reasoning of Brown v. Board. In the result-focused climate of legal discourse
evident today in the recent confirmation hearings of Judge Alito, many actors in the political process (and in the academy
as well) would do well to recall that one might level good-faith criticism at cases whose outcomes one considers desirable. Liebmann’s scholars remind us that legal reasoning is not, and should not be,
simply a tool by which a judge arrives at his preferred result; it is a method that, when practiced properly, has an integrity
all its own.
Liebmann’s book
also invites the reader to reconsider the importance of statutes, administrative processes, local government, and empirical
research in the world of law and legal scholarship. These were all areas of major
professional interest to the scholars profiled. Liebmann comments that the country’s
major law reviews are filled with articles that would not “be of the slightest use to practitioners” and that
“none contain fully worked out proposals for statutory reform. Legislation
remains a subject untaught in our law schools; state and local government remain stepchildren of our curriculum.” He notes that from the New Deal era forward, many of the most significant legislative
reforms – which in most meaningful respects have a greater power to transform society and solve its problems than do
judicial decisions – were originated and given life, at least in substantial part, by legal academics, whereas the most
significant legislation of the modern era (welfare reform comes to mind) have been reflexively opposed by most of the professoriate.
But at its core, The Common Law Tradition is a reminder of the relevance – or at least the potential relevance – of
the legal academy. It is clearly written from the perspective of an individual
who believes that legal thinkers can and should matter, and that their contributions to society ought to consist of more than
theoretical law review articles read only by their colleagues. The book is full
of distilled insights into the legal academy and its relationship to the legal profession and society as a whole. In essence, Liebmann offers the University of Chicago Law School of the 1960s as a yardstick by which to
measure the evolution and change, largely for the worse, of the legal academy in the ensuing decades.
Liebmann contrasts the practical,
real-world impact of the scholarship of his subjects with the airy theorizing of today’s elite professors. Whether building support for the jury system, designing a new architecture for commercial law, or writing
foundational treatises, the Chicago professors profiled by Liebmann were applying their legal minds to tasks that would have
an impact on how law was practiced in the private sector or in government, the two primary arenas in which law and the daily
life of the nation intersect. He believes that, as a result, “their influence
on the larger society was more considerable than any comparable group of today’s highly politicized law professors.” Liebmann quotes Anthony Kronman of Yale commenting on the “powerful . . . disdain
for practical wisdom” that characterizes today’s law professoriate and Judge Harry Edwards criticizing “today’s
legal academics, whose adventures in cloud-cuckoo land are of no interest to the bar.”
Liebmann contrasts this attitude with that of his subjects, all of whom “were vehement in their rejection of
the relevance of high theory to the work of lawyers.”
Indeed, in reading Liebmann’s
profiles, it is striking to note how many legal academics played leading roles in government during that era. In addition to the five scholars profiled, the pages of The Common
Law Tradition are peopled by individuals such as Nicholas Katzenbach, Thurman Arnold, Bernard Meltzer, Robert Bork, William
O. Douglas, Paul Bator, and Rex Lee, all legal academics whose knowledge and insights found practical outlet and application
in significant government service. By contrast, even a quick survey of the individuals
commanding the heights of legal policy in the government today reveals, with certain exceptions, a striking absence of talent
from the academy. The Attorneys General, Assistant Attorneys General, White House
Counsels, Solicitors General, and other major legal policymakers of today – think, for example, of Alberto Gonzales,
Harriet Miers, Ted Olson, Bill Barr, Paul Clement, Boyden Gray, Hew Pate, Tim Flanigan, David Addington, or David Leitch –
by and large come from backgrounds in private practice. The two newest additions
to our Supreme Court, John Roberts and Sam Alito, similarly exemplify the trend. It
seems almost impossible to imagine a law professor today duplicating Ed Levi’s feat and becoming Attorney General of
the United States.
Whether this is because of
some difference in the academy, some difference in law professors themselves, or some difference in government and society
at large is difficult to say. But most top lawyers and legal minds in the 21st
century who have any kind of a practical bent are shunning the academy. And the
changes illuminated by Liebmann’s book certainly suggest that is at least in part because the academy shuns them. As a result, the places where law is studied and the places where law is practiced
are increasingly divorced from one another. Liebmann appears to feel strongly
that all of those places are made the poorer for it.
The current intellectual
climate at elite law schools may be partly to blame. Liebmann also uses his portrait
of Chicago in the 1960s to indict that climate, which he perceives to be too often doctrinaire, uncivil, and intellectually
narrow-minded. During the era Liebmann writes about, “[t]he outlook was
empirical and tolerant, two words rarely used to describe today’s legal academy.
These common values were carried into expression by a group of men (and one woman) who did not think of themselves
as part of a cult or faction, and who were not ruled by the herd instinct.”
The passion for diversity among the scholars he profiles was a passion for intellectual diversity; Liebmann comments
that “for too many of [their] academic successors, at Chicago and elsewhere, ‘diversity’ is a cloak for
a spoils system whose real aim is conformity of opinion and the homogenization of society.” Liebmann argues that “the atmosphere of pluralism and tolerance,” which fostered reasoned and
civil debate, “was the seedbed of th[e] individual creativity” he celebrates in these scholars. By contrast, the universities of today, “and their outside rivals, ‘think tanks,’ are
harsher places, dedicated more to fostering competing orthodoxies.” Rather
than serve as earnest explorers of practical wisdom, “There are today too many law professors who have field marshals’
batons in their knapsacks.”
There are promising signs
that the trend may be turning back toward the ideal celebrated by Liebmann, at least in some places. Harvard Law School under the Deanship of Elena Kagan, for example, now offers courses in legislation, sponsors
the Berkmann Center, which is meaningfully engaged in the cutting edge issues of law and policy raised by information technology,
and has recently hired a number of the country’s most dynamic and creative young conservative legal thinkers. According to The Common Law Tradition, the prescription for
restoring America’s greatest law schools to health is clear, and the potential benefits to society great: Rediscover and celebrate the value of intellectual diversity; make law school campuses a place where respect,
civility, and reason reign in the place of partisanship and ideological strife; and above all, remember that law is the applied,
not theoretical, physics of American society.
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The Common Law Tradition |
| A Collective Portrait of Five Legal Scholars |
| George W. Liebmann |
ISBN: 1-4128-0560-0
Pages: 385
Publication Date: 04/30/06
Binding:
Paper
Reviews
|
$29.95
Discounts Applied at Checkout |
|
|
| |
|
Description:
This book commemorates a place and a time in American law teaching, but more importantly, an outlook:
the common law tradition. That outlook was empirical and tolerant. These values were carried into expression by a group of
people who were not part of a cult or faction nor ruled by the herd instinct. Now in paperback, The Common Law Tradition is
a collective portrait of five scholars who epitomize the tradition.
The focus is Chicago in the 1960s. The five figures considered—Edward H. Levi, Harry Kalven, Jr., Karl Llewellyn,
Philip Kurland, and Kenneth Culp Davis—did much to broaden the perspectives of the legal academy. Levi made use of sociology,
economics, and comparative law. Kalven collaborated with sociologists on the Jury Project and with economists on tax law and
auto compensation plans. Llewellyn’s commitment to empirical research underpinned his work on the Uniform Commercial
Code. Kurland’s approach to constitutional law was highlighted by his insistence on the relevance of legal history.
Davis was an energetic comparativist in his work on administrative law. What distinguished these Chicagoans is that their
work was practical and rooted in the law, and hence yielded concrete applications. The group’s diversity, the tolerant
atmosphere in which they taught and wrote, and the attachment of its individual members to empirical approaches differentiate
them from today’s legal scholars and make their ideas of continuing importance.
|
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Reviews:
“George Liebmann’s skillful blending of biography and legal history makes his Common Law
Tradition a must-read book for anyone who wants to understand the development of American law in the twentieth century. His
analysis... also prompts reflection on the qualities of mind and character that are needed to sustain the rule of law in a
democratic republic.”—Mary Ann Glendon, Learned Hand Professor of Law, Harvard University |
Calvert News May 2005 The ‘War on Drugs’ : A Reconsideration After Forty Years
Former Gov. Gary E. Johnson (R.-N.M.)
2005-05-01
Former Gov. Gary E. Johnson (R.-N.M.): Donald E. Santarelli, Associate Deputy Attorney General of the United States,
1969-73; Administrator, Law Enforcement Assistance Administration, 1973-74; Dr. Robert L. Du Pont, President, Institute for
Behavior and Health, Inc.; Director, National Institute on Drug Abuse, 1973-78; Director, White House Special Action Office
for Drug Abuse Prevention,1973-75; Dr. Jerome H. Jaffe, Director, White House Special Action Office for Drug Abuse Prevention,
1971-73
Moderator: George W. Liebmann. Author, The Common Law Tradition: A Collective Portrait of Five Legal
Scholars (Transaction Books,2005).
The Engineering Society of Maryland, Baltimore, April 13, 2005
MR. LIEBMANN: Ladies and gentlemen, welcome to a symposium on the war on drugs, a reconsideration after 40 years,
sponsored by the Calvert Institute. It seemed to us that the time was opportune for a more detached look at drug policy issues
than that which is usually presented. And it seemed to us that one way of obtaining such a detached look would be by asking
some of the people who were present at the start of our national drug agencies to review the developments of the last 40 years.
We also are honored to have as our kick-off speaker former Governor Gary Johnson ofNew Mexico. His participation is explained
by the fact that he has invested more of himself in seeking to foster change in national drug policy than any other public
official participating in the frequently unenlightening controversies over this subject.
Before we begin with his remarks, I would like to introduce Alan Friedman of Governor Ehrlich's office to present some
greetings on behalf of the Governor.
MR. FRIEDMAN: Thank you, George, for inviting me to join you. My name is Alan Friedman. I'm the policy advisor to
the Governor, specifically on issues of substance abuse and criminal justice and juvenile justice.
As you know, the Governor is just finishing dealing with the legislative session, which ended on Monday. He had a Board
of Public Works meeting today and then he is heading outfor a few days of rest and relaxation, so he couldn't be with us this
afternoon. But he did ask me to come up. Actually, I wanted to come up anyway, so it worked out well.
I think many of you know the Governor has really, in this state, been in the forefront of some very cutting edge things
in terms of substance abuse policy. Last year, with the help of a bipartisan group of senators and delegates, including the
legislative black caucus, the Governor proposed and the legislature enacted significant reforms in terms of diversion, allowing
State's Attorneys to divert, and I know marijuana issues are on the agenda for this afternoon, to divert low level offenders
from even going through the criminal justice system. We have some people here from Baltimore County, who are involved in that
very cutting edge program in that county, and I heard at lunch that that is really taking off and becoming extremely successful.
The legislation has become meaningful to a lot of people, very real. The legislation also provides, as I mentioned during
lunch to Judge [Thomas J.S.] Waxter, for a better fit between the judiciary and treatment resources, that is, specifically
in certain sentencing decisions for the ability for courts to get a standardized assessment so that judges in all the counties
can use to determine amenability to treatment, identifying what type of treatment a offender needs, and, for the first time
identifying a specific program and determining when a spot is available in that program for an offender.
We're developing almost an airline reservation system where all treatment providers in the state report online realtime
in this system, and we are taking that capability and hooking it to the judiciary so that they have that information available
when they're making their sentencing decisions.
So we have diversion, we have a better linkage between judiciary and their treatment resources, and also the legislation
provided a local planning structure. Each county now is required under state law to have a local drug and alcohol abuse council.
The structure of that council is set in law, but the counties are free to add additional people onto that group. And that
group is charged under state law with developing a program, a plan for the local jurisdiction, from the ground up, not from
the state down, to say what the jurisdiction needs, what the demands are based on the data that we now have, what priorities
do we want to assign to the dollars that we are receiving from the state, and this process is going on and will be finished
for the first round of planning this summer, and we will begin for the first time to get a handle on local priorities. And
this is extremely important.
And finally, the Governor, by executive order, established the State Drug and Alcohol Abuse Council, which mirrors the
local groups, and is getting the state agencies involved in the same planning process that the locals are doing as a result
of the legislation. And we then have the fit between the state planning and the local planing structures, and hopefully we
will have a system which is, as one of my colleagues calls it, moving away from design by whine. Whoever could complain the
loudest, managed to get resources. And we're now trying to move the great ship of state in the direction of what our data
shows us, where we need to assign resources, where we need to shift resources, and hopefully we will get very good value for
our dollars both at the state level and the local level.
So on behalf of Governor Ehrlich, thank you for having this discussion. It's extremely important. He always says that with
respect to substance abuse , both as a public health issue and as a criminal justice issue, that his approach is very much
like Nixon going to China, because people don't think that a Republican governor would be doing this type of thing. As you
know, he is a lawyer, very in touch with the criminal justice system. The first lady was both a public defender and a prosecutor.
These are people intimately
\familiar with the effects of substance abuse both in the public health field and in our criminal
justice field.
GOVERNOR JOHNSON: I'd like to tell you a little bit about myself. I've got a great family. My wife, Dee, is here
with me, 27 years. We've got a couple of great kids, Eric, who graduated from the University of Denver, who is now working
in Chicago, and daughter Seah,who graduated from the University of Colorado - Boulder, and Seah actually graduated as valedictorian
of her class out of like 9,000 students. I hope you see a little bit of brains by association. I need a little bit of help
as I go along.
I'm also an entrepreneur. I started a construction business in 1974 as a one-person handyman, me. And along with my wife,
Dee, over a period of 20 years we grew that construction company in Albuquerque to employ over a thousand people, electrical,
mechanical, plumbing, pipe fitting, really the American dream come true, do what you say you're going to do, show up on time,
do a little bit more for people than what you say you'll do for them. And that's what grew the business.
And six years ago we sold that business. And I've always believed that money ultimately represents freedom, and Dee and
I are free people. We have enough money to do what we
want to do, and again, I think it's the American dream. I'd also
like to tell you that I am an athlete. And I'm a self-declared adventurer these days. You would be hard-pressed to find anybody
at the age of 52 that is more fit than myself. I've competed in five Ironman competitions. A couple weeks ago I finished skiing
125 days this season. We live in Taos Ski Valley. A couple weeks ago there was a competition in Taos called the Ridgeathon,
how many ridge runs could you ski -- could you hikeand then ski. There were about 70 participants, and I want to tell you
that the oldest participant was a 52-year-old ex-governor of
New Mexico. And I want to tell you that the winner of the
event was also the 52-year-old ex-governor of New Mexico. And a couple years ago after I left the office of governor I summited
Mount Everest, which was really a great thrill, something I've wanted to do for a long time, and it was one of those dreams
come true.
When I started in politics, I had had no prior political experience, none. I introduced myself to the Republican party
a couple of weeks before I announced my candidacy. How did I win? New Mexico is 2 to 1 Democrat versus Republican. I'm a Republican.
I won the race. I won because I paid for my own campaign. It was something that I wanted to do. I really felt it was a high
calling. But I won on the basis, look, I've never been involved in politics before. This is my message. I'm going to bring
a common sense business approach to state government. I'm going to take on the issues that need to be taken on regardless
of the political consequences because I'm not a politician. There is no political consequence. I also told people that if
they thought about that a little bit, they would realize that at some point I would piss every single one of them off, and
I want you to know that I did. In that, I was completely successful as governor of New Mexico.
So in that context we really took it on, one issue to the next. And this is how I arrived at the war on drugs. I think
it's the biggest problem facing the United States today that actually has a
practical solution. And I came at it from the
standpoint, I'm governor of the state, and again, I'm not unlike any other governor of any other state. Half of what we spend
on law enforcement, half of what we spend on the courts, and half of what we spend on prisons is drug-related. I want to crack
down on DWI; I want to make a difference on a lot of the laws that are on the books that aren't being enforced; but they're
not being enforced because quite simply law enforcement is out to catch people selling small amounts of marijuana. That's
just the way that it is. And the courts, all they want is more and more\
money, yet half of what they do deals with the
drug problem that we have in this country.And then prisons, half the prisons. I'm going to suggest half the resources, half
the money that we put
in the prisons has to do with drugs.
I was shocked to find out, really shocked, to find out that there are 1.6 million arrests in this country every single
year. The population of New Mexico is 1.8 million people. It's like looking at every single person in New Mexico and realizing
they're being arrested every single year. I mean, that's really staggering.
What should the goal be? Well, the goal should be to reduce death, disease, and crime. The goal should be to educate better.
The goal should be to offer treatment to individuals that need treatment. Look, I don't do drugs; I don't smoke marijuana;
I don't smoke cigarettes; I don't drink. I haven't had a drink since 1987, one of the best decisions that I ever made personally.
So this is not being about doing drugs.
But I have come to believe that 90 percent of the drug problem today is
prohibition- related, not use-related, and that
is not to discount the problems with use, abuse, but that ought to be our focus. I think we've become absolutely anesthetized
to what prohibition is. We look at the news every night and these are disputes we're looking at in the news that are played
out with guns rather than in the courts. How many burglaries and deaths do we need to
see that are prohibition-related,
not actually use-related? Death rates, I was not shocked to find out that they estimate 450,000 die every year from their
use of tobacco, 150,000 every year die from their use of alcohol, and I'm not talking about drinking and driving, I'm talking
about the health consequences of drinking, and 100,000 die every year as a consequence of legal prescription drugs, and 10,000
people a year die as a result of heroin and cocaine.
There are those that argue that those deaths occur because it's illegal. Well, actually when you look at it a little bit,
the quality and /quantity of these drugs is unknown by their consumers, and you can make the argument that the deaths have
to do with prohibition. And if these substances were controlled and regulated you could argue that perhaps there would be
even fewer deaths. And to no one's surprise there are no deaths attributed to marijuana. And yet I'm sure there are a few
people who have smoked themselves to death.
So what do we need to do? I think we need to legalize marijuana. I think we need to control it. I think we need to regulate
it, and I think we need to tax it. When I talk about legalizing I'm not talking about kids ever being able to legally smoke
marijuana, or that it would ever be legal to sell marijuana to kids. And it's never going to be legal to smoke marijuana,
become impaired, and get behind the wheel of a car, similar to drinking and driving.
That's another issue that we have today is that we've come up with this zero tolerance for drugs use, so we detect the
presence of marijuana and not the impairment by marijuana. This is also a big huge issue. But if you're impaired as a result
of smoking marijuana and you're behind the wheel of a car, I think you should be punished. I think that should be criminal,
again, the same as drinking and driving. I think we need to adopt harm reduction strategies for all of the other drugs. Again,
legalize marijuana, but let's adopt harm reduction strategies for the other drugs. Harm reduction strategies, reducing death,
disease, and crime, providing education, better education, providing treatment for these individuals that need treatment.
Zurich, Switzerland has a heroin maintenance program You've got to get a prescription from a doctor, but you can get free
heroin. I talked to the chief of police from Zurich, Switzerland. He said, look, I'm in law enforcement; they came out with
this idea that they're going to give free heroin to addicts. I've been in law enforcement my whole life; this was going to
be a disaster. Death, disease, and crime were going to skyrocket. You know what he said? He said Zurich is a much better place
today to live. Death, disease, and crime have plummeted. You don't have to go out and rob and steal for the product. It's
free. You're not out recruiting other heroin addicts. Hepatitis and HIV, again, the needles are clean. The dose doesn't kill
you.
Look at Holland's statistics. Holland has 60 percent the drug use as that of the United States, and that's among kids and
adults, and that's marijuana and harder drugs, and yet
they have effectively decriminalized the use of drugs. I've talked
to people who live in Holland and they say it's very, very second class to be doing drugs, not like it is here in the United
States, because it's got a little bit of glamor attached to it. The current laws are terribly discriminatory. There's seven
times more likelihood that if you are of color and you're arrested on a drug-related charge that you'll go to jail.
I met with judges in Portland, Oregon. I didn't know what that meeting was going to be like, but what they said was, you
know, Governor Johnson, we want you to know that what
you're saying is correct. We want to help you with a few stories
that maybe anecdotally will help you out. One of the things that they had to say that was very interesting related to methamphetamine.
Methamphetamine is a very, very dangerous drug, and not that we don't know that, but it is. People ingest methamphetamine
and really do nutty, crazy things. What they said was methamphetamine is a prohibition drug, that it would not exist if it
weren't so cheap and easy to make. So it disproportionately falls on the poorest individuals. They said we're not advocating
this at all, but if cocaine were legal, if cocaine were available as an alternative to methamphetamine, we would not have
the problems that we have today.
Now, again, they were not suggesting that that occur, but they just wanted to point out the consequences of what it is
that we're doing in this country. Marijuana sells for more than gold today. Do you realize that? It is said that this is all
about the children-- what kind of message do we send if we say that we're going to legalize pot? We need to understand that
another consequence of prohibition arises because of mandatory sentencing. We've got an estimate of one million kids today
selling pot. And they can go to prison when they've been caught three times.
So again, what should the message be to kids? I always want to tell kids the truth, understand about these substances.
I've smoked pot; I've drank alcohol. What it is when you do this stuff for the first time, for the first several times, it's
really kind of an enlightenment. It's kind of a cool thing. It's like, wow, I've never felt this way before. I'm able to say
things that I've never been able to say before. I feel more loving toward people than I have before. Kids need to know that.
But then kids also need to know that it's a diminishing return thing. The more and more you use this stuff, it actually
ends up having the opposite consequence. The message I want to send to my kids is that I love them; I love them. I don't want
them to do drugs, but I would be naive to not think that they might fall into that 50 percent plus category of kids that try
drugs. So I don't want them doing drugs and driving; I don't want them doing drugs and getting caught and getting precluded
from the opportunities that this country has to provide.
Look, this is America. You know, don't do drugs. But this is America, and isn't it our right to be stupid? And I say stupid.
I don't think it should be a crime to smoke
marijuana in the confines of your own home doing no harm, arguably, to anyone
other than yourself. And I say legalize rather than decriminalize because you've got to take care of this marketplace. The
fact is the profile of the person in prison today is the person who has sold small amounts of drugs on numerous occasions
and been caught.
MR. LIEBMANN: It seems appropriate that someone who has been described by many people as something of an angel should
be succeeded by someone who 40 years ago was popularly
described, at least in the eastern liberal press, as the ultimate
demon. Donald Santarelli first came to public note as the principal criminal justice advisor in the early years of the Nixon
administration. He played a part not only in the enactment of some of the early wiretap and bail reform legislation, but also
in the 1968 drug law.
MR. SANTARELLI: The demon has been a bit dehorned by these subsequent years. Thank you for the generous introduction,
and a contraposition with the distinguished governor, I'm not going to entertain you nearly as much. I now find in my mature
years I tend to reflect more than talk. My wife says that she's disappointed that I have become no longer ableto keep up with
her. 6,000 words, that's not like 26,000. Mars and Venus disappear already in the fleeting moments of life.
I think I'm more interested in reflecting than advocating. I've spent a long time in my life as an advocate, as a prosecutor.
Yes, I was the demon for proposing changes from the old no-knock-before-entering police rules to quick entry. Also what was
then called preventive detention or pretrial detention, having learned my ABCs from the distinguished Sam Ervin, who was the
constitutional king of the Senate for many, many years, and who viewed bail as one of his great contributions to the western
world.
I'm going to take a minute to say something about that. Think of bail in the criminal justice system. Bail, the ticket
to the temporary jail, the overnight jail before you're presented. The guy who comes up with bail gets out, and the guy who
doesn't have bail stays in. Is that a rational basis for incarceration? Therefore, I thought in my addled youth that reform
of that might make sense, that we have a presumption of release, and only detention not based on whether you can make bail
or not, but on judicial determination. Now, who trusts judges? Certainly not these days if you're a Republican in Washington.
So you have to give the judge a little guidance, give him a checklist. At first he has to determine whether he's likely to
flee, whether he's likely to commit another crime, whether he has significant community ties. And only after you've gone through
all of those could you order detention on some potential prediction that he might be dangerous to the community.
Now, if you practice law or know anything about what goes on in the courtroom, the presumptions that are included in that
statute are dealt with like this, next, next, next, bail. It's impossible, it seems, to alter man's natural tendencies to
go on straight lines between two places. The community has struggled over the years over when to use the third-party police
power and when to use the community power, whatever the community may be, whether it's the church in the neighborhood or whether
it's a club in the neighborhood or a civic organization or a culmination of disapprovals rendered by society on conduct. You
ride the metro or the subway and a loud testosterone-filled young man may use some abusive language, and there's no one to
say shut up or bad manners, kid. That's lost in our modern culture. And so we have tended, sadly, to rely more and more on
the police power to enforceall of these community norms. It's troublesome, because if you think of Mark Twain's rather crude
but wonderfully descriptive phrase, if your only tool is a hammer, all your problems look like nails, and when you rely on
the police power it has a very limited function.
I came to age at the tail end of our liberal theory of sociology in the 1950s and `60s when we were very concerned with
civil rights; we were very concerned with the causes of antisocial conduct; and we naturally and probably somewhat accurately
gravitated to the position that they were causative factors in antisocial conduct,such as common law crime, were poverty and
ignorance.
Well, we really made a lot of progress on that front, haven't we, in the past forty years, poverty and ignorance? Now it's
poverty of intellectual honesty in our public officials, except for the distinguished former governor of New Mexico and the
present governor of Maryland, who I admiringly commend for his natural instinctive progressiveness, not just on this drug
policy issue, but on his outlook toward the criminal justice system and its limitations.
So we started out in the 1960s with this notion that we wanted to be understanding about young people who didn't know no
better. And so they acted out their ignorance and poverty in public ways that were antisocial, and committed crimes. Then
we began to recognize an early factor in that, and that was widespread -- well, I won't say widespread--heroin use in cases
Relating to armed and otherwise robbery, robbery being the confrontation of an individual with another individual with some
form of threat, whether it's a gun or just he's a big guy, and wants to take something from you, to feed the heroin habit.
So that was the first confrontation with the drug issue.
Now, what was the answer to that? Well, the answer, on one hand was the hammer, but it was a fairly enlightened time. And
in the Nixon administration Dr. Jaffe and subsequently Dr. Du Pont were the drug czars. They are medical men. They are scientists.
They weren't cops. So whatever you may think of Mr. Nixon and Mr. Ford, you will have a lot of wrong impressions because it's
the nature of our society. The tabloids succeed, Fox News is popular. Controversy and negativity and accusations are delightful
fodder of our distinctive gossipy natures, which we, of course, don't admit to. The Catholic church has the perfect solution.
Confession, they don't call it that anymore, you get over it and try to do it again. But you don't at least carry the guilt.
The trouble with that was we really looked to Jaffe; we looked to Du Pont to give us guidance on how to deal with antisocial
conduct that was the fall-out of drug abuse.
So what did the reactionary Nixon administration, Nixon with a swastika insteadof an X, the Nixon administration do? In
the model city, the District of Columbia, we had free methadone clinics, free methadone clinics. Ask Tom Delay about methadone
clinics. Get it? What has happened to this Republican party , once mine, and its preoccupation with the hammer? This talk
may not be very understandable to the young people who live in such a superficial world of endless kaleidoscopic images.
There are scientific and/or sociological and/or legal models for dealing with problems. There was a time when we looked
at criminal justice with at least a partial eye to what we'll call treatment, the medical model; something is wrong here;
this guy is wrong; he's done something wrong. Why? Let's look at why; let's look to see what we can do about it. Alas, years
of political mal-leadership, pandering politicians, and public ignorance lead us back to the hammer. We now have the enforcement
model by which we deal with antisocial conduct. And in a sense maybe there's nothing wrong with that, because we found that
we couldn't do a whole hell of a lot about changing the sociology which might be the underpinnings of antisocial conduct.
So The pendulum swung back again to the enforcement model.
Look at the federal sentencing guidelines. They are literally Draconian. And they're the result of adding it up, adding
it up. I'm not going to get into esoterica about marijuana and enforcement, except to say I don't like the enforcement model.
I think it's counter-productive. I think it is harmful to the sociology of a culture. I think it turns us into either/or kinds
of people, and it essentially feeds hypocrisy. In the Renaissance thinking men, ladies, thinking men began to come to the
confrontation of the cerebral and the physical, the confrontation with this horrible body that we drag around which deteriorates
over the years and is susceptible to what Aquinas called concupiscence, the natural tendency of man to surrender to his natural
appetites, whether they be of the intellect or whether they be of the lower regions. Naturally appetites go on and we need
to recognize them.
How do we regulate them? With hammer and nails like stupid Americans who refuse to look at more mature societies and how
they recognize the concupiscence of man.
Should we criminalize it? I'm troubled by the criminalization of drug use. I'm troubled by the impact that it has life-long
on the person in an experimental stage. I'll try not to be too crude, but as young women andyoung men discover that their
genitals become more influential in their lives at a certain period, there is the tendency to pay attention to them or to
surrender to them. The same is true with respect to the imbibing of spirits, which is a wonderful euphoric experimental stage
in life which you soon grow out of when you find it to be counter-productive to the objective that you may want to pursue,
whether it be playing the piano, singing, or going to work some day. And the same is true with many experimental drug-users
in that little period. The hard core drug-users almost become statistically insignificant in our larger culture and preoccupy
us unnecessarily.
The real problem is that we continue to look to the law enforcement community as the model. Why? Because there are lots
of people selling that which lots of people use. If we can't come to a mechanism for reducing demand other than law enforcement,
then we will just continue to run the local sewage system. What comes in must go out. I commend you to an honest public debate
on what is the best way for a society to discourage, as opposed to punish, these experimental tendencies in the beginning
and the habitual results thereafter, other than with the hammer. So let's go at it and hear from the guys who really understand
the limits and the benefits of the medical model for antisocial conduct control.
MR. LIEBMANN: The first of our medical speakers will be the first of the drug czars, Dr. Jerome Jaffe, who is a
native Baltimorean.
DR. JAFFE: Thank you. I'm not physically fit; I don't ski. I have great kids, all of whom are smart. I've reached
an age that I don't always remember exactly what I said a few hours after I say it.
It may come as a surprise to some of you that I count myself among those who do not proclaim that the war on drugs has
failed. I'm part of that group not because I believe that America's drug problems are solved or even that they're under good
control, but because I see very little to be gained in criticizing a metaphor. The terms war on drugs, war on cancer, war
on poverty have been used to communicate
a sense of urgency and commitment to deal with problems affecting our society,
and over the last 35 years the U.S. federal government has spent billions of dollars on efforts to reduce the extent of illicit
drug use and collectively the states and local communities have also devoted additional substantial resources to achieve these
ends, yet 35 years later there's still disagreement not only on whether we are
better off for the efforts we've made, but
even on the goals of our policies and the means we have selected to achieve them.
Now, some believe that our goal must be nothing less than a drug-free America. By this they usually mean no use of any
of those drugsnow defined as illegal. Others argue that our policy goals should be to minimize the harms associated with all
drug use, and that the actual rates of drug use should be a secondary consideration. Currently the goals of our policies at
the national level are aimed at rates of use, and only to a lesser extent at the harms.
Further, at the federal level, the dominant policy-makers tend to look away when confronted with the costs and the harms
that are caused by the means we've selected to achieve our social goals, our chosen goals. Before I go further I want to point
out that when it comes to social policy, a scientific background conveys no special expertise. Policy inevitably involves
value judgments, and value judgments are mostly subjective and non-rational. Thus, policy can never be wholly rational. Usually
it is not even entirely consistent.
Several years ago I was a member of a working group of the Royal College of Psychiatrists and the Royal College of Physicians
that met to craft a book on drug use in the United Kingdom, and how that society might best confront the problems such use
poses, and over the course of a year or so we met periodically to hear testimony from a variety of witnesses and experts to
draft our report, a little book which is somewhere in my briefcase called Drugs: Dilemmas and Choices.
In the section on policy, we laid out what we believe represented some general principles. Let me tell you those five general
principles. First, drugs that give pleasure or competitive advantage will be used by some people if they can afford them.
And if they are prohibited, an illicit market will emerge.
Second, greater drug availability will lead tomore drug use, and except where the drugs are relatively innocuous, more
health problems associated with drug use will occur. Third, it's impossible to keep drugs that are available to adults out
of the hands of children and adolescents. These three points were offered, incidentally, to the working group by Professor
Mark Klieman of UCLA. Fourth, laws and law enforcement have effects on demand as well as supply. For a variety of reasons
most people tend to obey the law.
Fifth, not all people respond the same way to drug control strategies and prevention efforts.
Now, the major point that I want to talk about here is that there are a range of options available to deal with behaviors
that we, as a society, think are harmful, and perhaps just wrong. For example, speeding on the highway endangers the driver
and others. So we set speed limits. Drivers know that there will be penalties if they're caught exceeding those limits. Most
of the time the police will issue a ticket and the offending driver must pay a fine. With repeated offenses, however, the
consequences escalate and for those who refuse to pay or continue to drive without a license, there's the threat of prosecution
and jail.
But every one of us at some time or another probably has driven above the speed limit. I could ask people to raise hands
who've never driven above the speed limit on I-95. I don't know how many we'd count. Should we, therefore, however, count
the number of law-breakers and, observing that so many have broken the law, decide that we should do away with the notion
of speed limits? I think not. For those drugs which are currently illegal, the choice we have is not simply between legalizing
them and treating them as ordinary commodities, because so many people use them, or continuing to prohibit them absolutely
and imposing as a first response criminal penalties for possession oruse.
There are a number of policy options between those extremes, each of which has its advantages and disadvantages, and has
a cost to society and to the individual who chooses to use those particular drugs. Drugs differ substantially in the harms
they cause to the individual and to society. Some such as alcohol and tobacco also differ in that they have become accepted
elements in most of our lives. No one set of policy options is best suited to deal with the diversity. Over time we should
be aiming for policies that minimize drug use, based on harms, while bearing in mind the costs of the means we choose to implement
the policies.
Given the diversity of drugs, and different kinds of harms, each with their different history of social acceptance, our
response must be multifaceted and tailored to the particulars of the problem. There is no one best solution, no silver bullet.
But there are a variety of ways in which we can modify our current policies to make them more realistic, more efficient, more
effective, and in many cases more fair. For the past 35 years many groups and individuals have focused on the marijuana policies
that we now have in place, criticizing particularly the use
of criminal law as the best way to reduce or eliminate marijuana
use.
Some have advocated complete legalization of marijuana. Others have argued, and with good evidence, that marijuana causes
health and social problems, and its use must be discouraged, but that we can do so at less cost to society by treating it
as we do speeding on the highway. This has been called decriminalization. It is not the same as legalization.
Possession of marijuana, or at least more than a specified amount for personal use, would still be an offense. But it would
be punishable by a fine much like a driving violation. The sale of marijuana would still be criminal.
In the United States in 2001 there were three quarters of a million arrests having to do with marijuana. Many, no doubt,
were arrestsin connection with sales. But many, perhaps most, were probably for simple possession. Even if only a very few
of those persons charged with simple possession were sentenced to jail, I believe our criminal justice resources, our police
and our courts and our prisons could have been used more efficiently by allowing them to be more focused on more dangerous
drugs and violent offenders. So did the bipartisan National Commission on Marijuana and Dangerous Drugs in 1973, and the Canadian
LeDain Commission in 1971, and so does the government of Canada today.
All of these have called for the use of fines rather than arrests and threat of imprisonment as a way to continue to discourage
marijuana use without the social and individual costs of criminal penalties. In the United Kingdom there has been a considerable
degree of de facto decriminalization with no actual change in the law. The police can, at their discretion, deal with marijuana
possession by confiscation or by fines. To the best of my knowledge, Canada, the UK, as well as the Netherlands, where there
has also been de facto decriminalization, continue to function as vibrant, productive democracies. We might consider examining
how these policy shifts have altered the patterns of use and the cost of use in those countries.
Some states have, at times in the past, also chosen this approach, and their experiences should also be studied. Even so,
there are those who say that these policies that have modified and reduced legal sanctions inflict more damage on societies
than does the use of cannabis. Some still argue for complete legalization which would permit the sale and taxation of cannabis.
Such a shift would do much to eliminate illicit traffic in marijuana but it would also, without question, result in an increased
use by both adults and adolescents. And as I previously asserted, there is no product that when made more available to adults,
does not become more available to children.
Let me say again, cannabis is not a harmless drug, and its impact on the development of adolescents should not be underestimated.
People do become dependent on cannabis. Cannabis dependence and cannabis-related problems are the most frequent reasons why
young people are referred to treatment programs.
Our policies need to discourage its use. The issue is how best to do this without harming those we are trying to protect.
Our policies represent a balancing of competing interests and values. In a secular society we presume that the goal of those
policies is to minimize drug-related health and social problems at the lowest cost both monetarily and in terms of personal
freedom. The impact of the use of any particular drug is difficult to predict. Sometimes the policies that are put in place
misjudge the health effects by the overall cost of implementation.
Whatever policies are in place will have their supporters and their beneficiaries as well as their critics and sometimes
victims. Policy revisions typically occur slowly. Consider tobacco. It's been more than 50 years since we learned about the
health impact of cigarette smoking, and we've only begun in the last few years to revise our policies. Consider also alcohol.
International panels have repeatedly pointed out that in developed countries, alcohol consumption is the third most detrimental
factor contributing to disease, accounting for 9 percent of all burden of disease, about the same amount as for tobacco. And
the harms are not limited to those who are alcoholic. They have urged that we reduce the overall consumption of alcohol. They
have provided in some of the books they have produced ten major policies that would be effective in doing so. In the United
States we have implemented only two of those, raising the age limit for the sale of alcohol, and at least in most states,
lowering the blood alcohol levels for presumptive evidence of intoxication among drivers.
Taken together, alcohol and illicit drug problems cost this country $386 billion a year, roughly a little over a third
of a trillion, if that makes it any easier to remember. Alcohol costs slightly more than drugs, but the distribution of the
cost is different. Alcohol exacts more costs in terms of health care and lost productivity; drug abuse more in terms of law
enforcement and criminal justice. Policies once in place are hard to change. And today's discussion I think will provide further
evidence of how difficult it is to even reach consensus.
Let me end by repeating my major three points. First, the alcohol, drug and tobacco problems that we have in this country
are costly in terms of money and human suffering. There is no quick fix, no single silver bullet that will solve all of the
problems. Each drug, those which are legal and those which are now illegal, brings its own special issues and harms that must
be thoughtfully addressed. Second, the choice of any drug policy for a society is not a simple choice between prohibition
and legalization. There are a number of different legislative options available with different optimal choices for different
drugs. Further, it's important to consider the ways in which the laws are applied.
Lastly, there are other countries that have followed paths significantly different from those we have followed in the United
States. We should consider them as natural experiments
and try to learn whether we can make our drug policies less costly
and more humane.
MR. LIEBMANN: Our next speaker is Dr. Robert Du Pont, Dr. Jaffe's successor at the White House Office of Drug Control.
and also a speaker with a particular interest in techniques of drug testing.
DR. DU PONT: I think This is a wonderful opportunity to look for new ideas in drug policy and I'm just delighted
to be here and share this time with you and with the other distinguished speakers.
It's also striking to me that Baltimore is our location. Baltimore has been ground zero in drug policy development for
quite a long period of time. I don't think it's any accident that there's more likely to be an interest here than in many
other places around the country. And so I want to salute the Calvert Institute, my fellow speakers, and also the community
here, the State of Maryland and the City of Baltimore.
Following the other speakers, I'll say just a word about myself. As Don Santarelli said I am a physician, and like Jerry
Jaffe, a psychiatrist. I'm distinguished in the panel and perhaps in the audience as well by being a practicing psychiatrist.
I actually see my own patients and have for 35 years, many of them with problems with addiction. So my perspective is not
just a policy perspective, but also a clinical perspective.
When I finished my training at the National Institutes of Health I was interested in making a contribution to society in
some way, and I went to work for the D.C. Department of Corrections in 1968. It was an unusual career choice then. And I was
interested in seeing what could be done to help the people who were in prison. And the D.C. Department of Corrections was
where I went on a full-time basis. I was very much caught up in the fact that Washington, D.C. was then in the middle of a
very rapidly-rising rate of crime. And there was a lot of interest in why this was happening.
In August of 1969, with six unemployed college students in the summer of that year, we did drug tests. Drug tests began
early in the D.C. jail, and found that 44 percent of the people coming into jail were positive for heroin, and that we could
graph what year they first used heroin. And it laid on absolutely perfectly with the rate of crime in the District of Columbia.
Whatever else you could say, there was no question that the principal engine driving the rise in crime rate was heroin use
in Washington D.C. And that was published in the New England Journal of Medicine. It was a very influential article. And then
the next question became what do you do about that? And that led me to drug treatment, and it led me to Jerry Jaffe, who was
a leader in that field for the whole country, for the whole world. And I have been a very revering, respectful student of
Dr. Jaffe and supporter of him ever since. He's had a tremendous influence on my career and my life.
In any event, what we did was start drug treatment, and that meant methadone treatment in Washington D.C. I was and am
a registered Democrat. It was a disaster to me personally when the Republicans came to town in 1969. And the irony of that
was, as Don said, nobody down at that White House seemed to give a damnwhat my political party was. The question was could
I do anything to make a difference? If I could, that was fine. And if I couldn't, if I was a Republican it wouldn't have helped.
It didn't make any difference to them at that time. I was pleased with that. That mattered to me and I appreciated that.
Don was one of the people I worked with and I can tell you in my career I've never worked with as many talented people
as we had
working on the problem in Washington at that time, just absolutely stunningly good administrators, very bright
people, very dedicated to the public interest in every meaningful way, including our handler in the White House who was a
29-year-old recent law school graduate named Bud Krogh, who represented Richard Nixon in dealing with all this.
In any event, coming out of the city in the Department of Corrections, I headed the health department's program in drug
treatment in Washington, and then as George said, I followed Jerry Jaffe as the White House drug czar, and I was the first
director of the National Institute of Drug Abuse, and I'm very proud of the contributions that were made at that time. This
is when we developed what's called the balance strategy. The federal government prior to that time, including administrations
both Republican and Democrat had been virtually solely focused on problems with law enforcement, it was a justice function.
And it was the Nixon administration that changed that balance by adding prevention, research and treatment, and major federal
investments in all of those for the first time in the country's history. And to be part of that was a wonderful experience,
and there were a lot of very good people who were involved in it.
But it's interesting that prior to that there was a very small but extremely influential group of individuals interested
in learning the drug problem in Lexington, Kentucky, and that's where Jerry Jaffe got his introduction to drugs learning from
that very tiny group of people. And that organization has now moved to
Baltimore, the Addiction Research Center. So again
this provides a Baltimore connection of these very distinguished researchers in understanding the nature of this.
I'm not sure I'm the only one, but I think there aren't many people who have known all 11 drug czars, one of whom is myself.
I'm very pleased to say that the, Bill Clinton's very distinguished drug czar, General Barry McCaffrey, asked me to the White
House. This is my book, The Selfish Brain. It was published in hardback in 1977, in an earlier edition. McCaffrey asked me
to come in and sign copies of the book for him. He, as a bureaucrat, had bought five copies with his own money, which was
pretty amazing. He said this was the best drug book he'd read in his five years in the White House drug office. Some of
my
friends say that's because Barry never read any other books. But he's a very intellectual guy. I was honored by this. I asked,
who are the autographed books for? Three were for his three kids, who are all grown, and the other two were for the President
and the Vice President. And that was pretty heavy stuff for a guy who went down in his basement and wrote a book.
I'm also very close to the current drug czar, John Walters, who I think is a wonderful man. I mention those two people,
the last two drug czars, because they are from opposite political parties. And I think this tradition of 35 years at work
has been a bipartisan work, although there's plenty of partisan battles going on. And then I'm one of five people who have
been the directors of
NIDA. And like Jerry, I've known those people very well too.
Since that time I've been the president of the Institute for Behavior and Health, a non-profit research organization. I'm
going to say a few more words about that. We haven't talked much about what the drug problem is. We call it the war on drugs.
What are we warring about? What is the problem; how will we know whether we're making progress or not making progress? You
have to be able to define what the problem is before you can assess whether you're making progress or losing in whatever it
is you're doing. That's a surprisingly challenging thing to do, to think about what the problem is.
I'm going to pose two polar opposite views, and let you think about what the problem is. One way to think about the problem
is the amount of use of the drug and the problems that flow from the use. The measure we would take to that would be how much
use is there, or some other measure of problems associated with it, automobile accidents, problems in family life, problems
in employment, whatever, the health problems, we've got a lot of ways to do it. But anyway, related to the use.
And then there's another way to look at it, and that is to say, no, the problem with drugs is the social response to the
problem of the use of drugs. So there the measure becomes how many people are arrested; how much is spent on prisons; how
much is spent on law enforcement; how much is spent on other activities that are socially imposed and flow from the prohibition?
One of the things I want to call your attention to in lot of the debate about drug policy is thatthere's a kind of subtle
switch as to what the problem is, and we end up talking about the problems of people in prison, or the problems of the cost
of law enforcement, and we leave out the question of, well, how do we get to those problems which have to do with drug use?
And I want to tell you from my point of view,the way I would measure progress and loss in the game is use. That's the game.
Jerry was talking about alcohol. With alcohol policy, how do we measure it? Well, how much alcohol is used? With tobacco,
how much is used? That to me is the most fundamental epidemiologic measure, and it is a radical way to think about the problem
because once you move away from that, the ground is not steady under you.
Let me give you some numbers to give you an idea about this. We have, using the same standard, which is any use in the
prior 30 days, the term of art in modern epidemiology is to call that current use, 50 percent of Americans 12 and older had
at least one drink of alcohol in the last month, 50 percent. That's the percentage of the American population. I spoke to
the editorial board of the New York Times years ago about this and asked them to guess around this luncheon where we were
having sherry for lunch, asked them what percentage of the American public had as much as one drink per day most days in the
course of a month, and the guesses ranged from 50 percent to 75 percent. The actual number is 7 percent. They were stunned
by this because their presumption of how much drinking there is going on in the country was so different. And two things happened
as a result of that. One, they stopped serving sherry at their lunches, and two they never invited me back.
To me the question about drugs, as I say, is measured in use, and the numbers for use, to give you these, 50 percent for
alcohol, 30 percent of Americans smoke tobacco, and 8.2 percent use any illegal drug, of which 6.4 percent is marijuana. Those
are the 2003 national numbers. I didn't make those up. What do those numbers mean? You could also look at the question of
what the social costs are, what Jerry was talking about. Alcohol and tobacco produce much larger social costs to this country
than do all illegal drugs put together. What do those numbers mean?
Does anybody think that any of the illegal drugs would be less attractive to the public than alcohol or tobacco were they
treated in the same way? I think it's hard to make an argument that if you had less social disapproval, to use a word other
than prohibition, youwouldn't have use levels on the alcohol or tobacco scale with any of these drugs, let alone all of them.
And if you talk to people who have used these drugs, you get an idea of the attractiveness of the drugs.
Now, from my point of view, the fundamental problem we have is brain biology: drugs produce feelings users like. They actually
do work. It's not just an idea. It's not a fad. It's biology. And they are powerful. They are very powerful. A simple experiment
to show about drug use is an experiment done to laboratory animals where a white rat or a laboratory rat will not walk across
a grid that's got electricity in it because the rats are very sensitive to shocks. When they're put in there, if food is on
the other side, or water, they will die of starvation. They will die of dehydration rather than walking across there. But
give the rat a little cocaine and show him that it's across there, and he'll walk across as if there's no problem.
This is not a white rat or a black rat. This is not a rich rat or a poor rat. This is the drug about which it has been
suggested that we're going to improve our situation with methamphetamines by making it more available. The biology here is
pretty serious. And what has happened is we have the modern drug epidemic in this world because we have never before in the
world introduced large segments of the population to many drugs of abuse, drugs that produce great reward -- that's the term
of art -- on a large scale. It never happened. The modern drug epidemic is as new as the computer. In the world's history
it never happened before. And it's globally going on. And what we're going to do about it is going to be a big challenge.
And it's not just here. It's not just new ideas we're looking for here, but all over the world. Because at the same time
that we have biology, we have a cultural and an economic process going on to expose more people to the drugs, and to have
more responsibility of individual choice for their behavior. And if you think there's a simple solution to that, you're wrong.
As Jerry said, there is no simple solution. We're groping to find social responses to it that make sense.
I'm going to draw this quickly to an end. I'm going to quickly end this by saying two things. One, when you think about
harm reduction, which is the term of art now for softening the social disapproval about illicit drug use, think about how
a family approaches a family member who has a drug problem. What do you do with somebody in the family who has a drug problem?
Would it be a great idea if you had a son, let's say, or a brother or sister and they had a heroin problem and you would say,
what I'm going to do to help that person is give them clean needles. Does that sound like a really helpful way to deal with
your brother or your child?
Let me give you another one; do you think that it would be helpful to your son or your brother or sister who had a heroin
problem to say we're going to set up a room in the house and give you heroin? Sound like a great idea to you? It doesn't sound
great to me. I have yet to see the first patient of mine who would have been better off with more drugs. I haven't seen anybody
like that in my practice. I think what's needed is something entirely different. And what's needed is tough love, which has
to do with clear disapproval of the drug use, the family says absolutely not, not in this house. We will not support you;
we will not send you to school; we will not give you the car; we will not -- the wife will say or the husband will say-- I'm
not staying in this house if you're drinking or you're using drugs. That's what really happens. That's how people get well,
when that happens.
And then you combine that with the secret weapon on the war on drugs, which nobody else has mentioned, and I'm going to
mention it, and that is the 12-step program, Alcoholics Anonymous and Narcotics Anonymous. People really get well and stay
well by going to those meetings, and that's the secret you won't hear anybody else saying, but that's the truth. Drug treatment
programs work to the extent that they get people into those fellowships. And they stay clean to the extent that they stay
active in those fellowships. That's the way it works. But I want to say I am proud to be part of this group, proud to be part
of trying to find answers to this, and eager to work with you.
MR. LIEBMANN: The first question is from what I know of the sentiments of the panel, the easiest and least controversial,
and that relates to mandatory minimum sentencing. I might just frame this in a more specific way by relating my only personal
experience with mandatory minimum sentencing.
I was summoned to serve on a criminal jury some years ago, as I am every year. And on this occasion I was actually selected.
And the reason I was selected to serve on a jury was that the case involved a defendant who insisted on picking his own jury,
to the great distress of his public defender, and whose principal criterion seemed to be that he didn't want anyone who looked
remotely like his mother on the jury.
So in due course I was seated on the jury, and this fellow was not a rocket scientist because the facts, as revealed, were
a typical episode of the drug war, an unmarked van, black van with one-way window glass pulled up in front of a rowhouse in
east Baltimore, and this made noimpression on the defendant. The defendant was sitting on the front step of the rowhouse selling
$10 bags of cocaine to various passers-by. He was, in due course, arrested. And the people inside the van, including for some
reason both state and federal agents, were busy videotaping the whole thing. So when the jury went out to deliberate, and
I was not the foreman, the foreman said let's vote. Everybody voted and found him guilty. And I said, well, I think it would
be good form if we discussed the evidence before we return to the courtroom, which we did, without any change in our opinion.
So my conscience didn't bother me too much about this verdict. And when we went back in the courtroom the judge, who was
Kenneth Johnson, read out the defendant's rap sheet, which was an extremely long one, although I don't remember the details.
And, of course, we didn't know what sentence was ultimately passed. My conscience didn't bother me at all about this episode
until some years later when I studied the Maryland version of the Rockefeller drug laws, the minimum sentence provisions of
which are as follows: if you are convicted a second time of a drug distribution offense, even if the offense involves marijuana,
a minimum sentence is two years. If you are convicted a second time of distributing a Class I or II drug, for example, heroin
or cocaine, like our hero here, the minimum sentence is 10 years. If you are convicted a third time of dealing these $10 envelopes
on your front stoop, the minimum sentence is 25 years. And if you are convicted a fourth time, the minimum sentence is 40
years. And this is not untypical of the so-called Rockefeller drug laws as they exist throughout the country.
Having begun with that somewhat biased beginning, let me just ask for comments on mandatory minimums as they now exist,
beginning with Dr. Jaffe.
DR. JAFFE: When I served in Washington I had privileges to the White House mess. When Rockefeller passed his laws
over my arguments to him that they were not wise, that they would cause problems, the Republican administration at that time
decided that they had to go along with them. They could not let anybody get to the right of them. I wrote a memo suggesting
that this was not the right time for that, and my White House mess privileges were immediately revoked.
I haven't changed my views on it. I think that mandatory minimums take away a judge's discretion to deal with differences
that inevitably emerge in the criminal justice arena, and certainly to have sentences that are longer for a drug sale than
for murder, as I mentioned to Governor Rockefeller, make it very
hazardous to be a witness in such a case. You think about
it.
DR. DU PONT: I'm very interested. I don't think the mandatory minimums have to dowith drugs. I think this is the
criminal justice system changes that went on in the 1980s, so the mandatory minimums are with respect to all criminal behavior.
My understanding is that it passed with a combination of liberal and conservative support. It was a very bipartisan issue.
The reason for that is that on the liberal side was the presumption that judges favored white defendants against black defendants,
and if you just did it the same for whatever the crime was, that this would be fair and work out fine.
I think mandatory minimums need to be thought about again, obviously. But I do think that there is a case to be made that
crime rate reductions have to do with various stiff sentences. So I'm not -- not just with drugs, but about anything-- I'm
not so quick to say it's a terrible idea. Like Jerry, I've never been a supporter of mandatory minimums and I was not involved
at all in those sentencing decisions. I call to your attention that it doesn't have to do with drugs. It's to do with crime.
It's a much broader focus and it was not a conservative activity. But it was a very much bipartisan thing that went on in
the 1980s, and neither party has shown any sign of wanting to change that.
GOVERNOR JOHNSON: One of the things I was able to change as governor was actually to sign into law provisions that
in New Mexico judges are given discretion with regard to numerous offenses. So that was really significant, and I think it
will make a long-term impact. Again, I'm not in support of mandatory minimums. I think judges should have discretion.
I'll just tell you the biggest horror story perhaps that I came across as governor in the state, involved a woman by the
name of Marianne Gomez Velasquez. Her crime was that she wrote herself prescriptions for Tylenol 3, and she'd been doing this
apparently since she was 17. She was addicted to Tylenol 3 for 20 years. She never received help for her addiction. She wrote
herself hundreds of prescriptions. She got caught, and because of minimum sentencing regarding drugs and the writing of prescription
drugs, on the third occasion that she was caught she was sentenced to 25 years in jail. And that's more than second degree
murder in the state of New Mexico. That's almost three times the sentence for drinking, driving, and killing someone. When
I got wind of this I pardoned her. I let her out of prison. She was to go into treatment. This was my sentiment, that if she
had a problem with Tylenol 3 and if that problem reoccurred, that that was still not anywhere in the vicinity of a 25-year
sentence. It should be against the law. Perhaps it should be criminal. But 25 years? Maybe 25 days. Again, I'm just trying
to ground myself here in reality. And that certainly was not reality.
MR. SANTARELLI: This is a largerquestion than just a microscope looking just at mandatory sentences. This criminal
justice system of ours is a football in the great struggle that began with our constitutional system, among and between the
executive branch, the legislative branch, and the judicial branch.
We are essentially intellectually dishonest as a culture, as a political culture. We want the courts when they support
us; we don't want the courts when they don't support us. We don't trust the executive to make fair decisions all of the time,
so we have a system of balance of powers. The Congress doesn't like the courts. If I were on the court I'd like to say to
the Congress, you dishonest bastards. Why did you shift this one to me?
I used to work in the Congress. The Congressmen would say let's not argue about the fine points of this legislation; let
the court figure it out. So the court figures it out, and the Congress says you're wrong. Mandatory sentences as part of sentencing
guidelines are all a reaction, a temporary reaction to this struggle between these three branches, that the Congress and the
executive branch collude to tell the courts what they can't do.
The moment that a judge makes a controversial decision, as took place in the Clinton administration a few years ago when
a judge in New York City ruled properly, in my view, that the 4th Amendment protecting search and seizure had something to
say about how a car or a truck can be searched, the immediate cry Is for his impeachment. We are in a phase right now where
the judiciary now is under more criticism than ever before. So the sentencing guideline concept, the concept of the Congress
setting out limitations and mandatory instructions upon the court is in high gear.
Honest men, including women drinking beer out of a bottle, say we can't win this battle. So they created drug courts. Drug
court is nothing more than the court that used to be with the discretion to sentence people to alternatives to incarceration,
such as a drug treatment program. Everybody knows in their heart, even the bad guys like Delay, that that is a good idea,
but they can't admit that it's a good idea in public because, like Clinton pulling the switch on the electric chair while
he was campaigning for presidency, no one is going to be taken from the right. So all politicians declare, I can't be soft
on crime. I know in my heart I'm wrong with these mandatory sentences, so let's create a drug court as an option, an escape
valve from the rule that you must sentence to a term in prison. Legislation anticipating the proper punishment for a crime
committed by a human being, an individual, is always and everywhere intrinsically wrong.
MR. LIEBMANN: Let's now turn toa more controversial subject. And let me preface this with some statistics about
marijuana, which are that the rate of
marijuana usage, and again, this is usage during the past 30 days, among persons
from the age of 12 to 17 years in 2003 was about 8 percent; in the age group of 18 to 25 it was 17 percent, and among those
26 years or older it was 4 percent. This suggests that marijuana is essentially a drug of the young or a passing phase for
many people, but not for all people. And that brings one to the question, if marijuana use is an evil, does the evil consist
in physical damage or in intellectual damage, and in demoralization or demotivation? And if the evil is one of demotivation,
is it not an evil which should be addressed not by the criminal justice system primarily, but by schools and colleges?
That leads me to the center of the question which relates to the decision of the Supreme Court three years ago upholding
drug testing in Oklahoma, and thereby, eliminating some constitutional doubts which existed about mandatory drug screening
in schools. So I would ask the panelists what they think the possibilities and pros and cons are of increasing school drug
testing and what the relationship of such testing is toward criminalization. And I think I might perhaps begin by asking Dr.
Du Pont, for whom this is something of a specialty.
DR. DU PONT: This is one of the two principal areas of interest to me right now in our organization, and that is
random student drug testing. I was an expert in the original case, the 1995 case in Oregon, and very much supported the Supreme
Court decision in the Tulsa, Oklahoma case. I think the confusing part is what happens when students test positive? And George
is thinking about it as related to criminalization.
The answer is that the parents are called in and the student is assessed for the need for any intervention or treatment.
Assuming that none is, usually there isn't any, then the student is removed from extracurricular activities until the student
produces a clean urine, and they go back to school and all that happens is they're followed again to ensure that they don't
go back to using drugs. It's not part of their academic record. It doesn't go to colleges. It's entirely confidential, but
it does establish that they're not going to use drugs.
I think that it's the single best new idea to reduce the incidence of drug use, which occurs almost entirely in the teen-age
years. What's never been litigated is testing all students in public schools. There's no barrier to testing in private schools.
Remove the extracurricular activities and athletics. What would happen to public schools that tested all students? That's
not been litigated in the Supreme Court. But right now the idea is it's perfectly legal, constitutional to test students for
extracurricular activities and athletics, and I support that very much.
MR. LIEBMANN: As I read the decision, There were five justices who were ready to support it across the board.
DR. DU PONT: The original decision was 6 to 3, that was Vernonia. And the question would be what happens? I don't
know. Nobody knows. The ACLU is not eager to bring that case. They were shocked by losing in Oklahoma and they did not want
to set a precedent. So it may be a while before you see that go to the Supreme Court.
DR. JAFFE: I'm not familiar with the cases. I'm not familiar with to what extent Bob's circumstance about the way
in which the test is used was an integral part of the decision. It's important to know the constraints on what you do with
the information you obtain from the test before I'm willing to come down one way or the other on how you would use it. If
the Supreme Court says you're allowed to do it and there are no constraints on what you do with the information, and it's
then put in the hands of people who think that, well, we now have evidence of your use, that's the same as internal possession,
which was once the criteria in California, the punishment is a year in jail, then I guess I don't want to see it used.
It's a good diagnostic tool and diagnosis in medicine is useful. It can be very valuable for prevention. But when it gets
into the hands of people whose goal is a punitive one, then I'm not sure that I want to turn it loose. As I said, I am not
sure to what degree the protocol and the decision that it's okay were part of those legal decisions. So I can't really take
a position without knowing that.
DR. DU PONT: In both of the Supreme Court cases they met the criteria you're talking about, confidential, and there
was no involvement with anybody outside the school, except the parents.
DR. JAFFE: The real question is if somebody decided to do that. Would that have to be litigated all the way up to
the Supreme Court? If you're expelled from school because you have a positive, do you get your justice only ten years later
when the Supreme Court says that wasn't our intent? And that's my fear.
MR. SANTARELLI: Don't miss the point that this is a state action. This is a state action, intruding into both the
privacy of a person's life on no basis except fishing, arandom search. It's troublesome for those of us who think constitutionally
or who think from the promise perhaps not shared by everybody of essential personal privacy, personal freedom from the state's
intrusion into my underwear or my bloodstream or the contents of my lungs.
DR. JAFFE: Well, speaking of the contents of your lungs, the state has the right, I believe, to do TB screening.
And if it looks like you have a contagious disease, they can undertake activities to protect the public and treat you.
MR. SANTARELLI: That's correct. The exception to those rules are health and safety, have always been permissible
for intrusion. I merely take the proposition that I start with the presumption against intrusion. I don't say that I oppose
this particular practice. I wanted to start with we should make judgments from a fundamental proposition, is intrusion into
the privacy of the individual warranted by some significant public safety or public health issue?
DR. JAFFE: Don will recall that when we did the testing in Vietnam, the first thing we asked the President to do
was to change the Code of Military Justice so that a positive on a drug test was no longer a basis for a court martial offense.
And absent that, I would have not released the technology to the President, and that was an important issue.
MR. SANTARELLI: Where is that presumption in our present society; where is that presumption in your public debate;
where is that presumption whenever you're confronted with the proposition that your legislature is about to do something?
Where are you guys? Supine, fearful, weak, ignorant?
DR. JAFFE: Let's not confuse the idea of urine testing with its intrusiveness. Some day they'll have something where
you just have a little laser and it will tell you, and it doesn't intrude into anything. The point is what do you do with
the information? That is critical. It's critical that that be protected. If you're going to go on a fishing expedition, it
has to be for somebody's benefit, for their health and not punitive.
MR. SANTARELLI: You have to remember, there is no such thing as information that is secret. This is a long-term
problem that we confront as a society. Once information is developed for any purpose, it will no longer be secret. Look at
the fight we were in for 30 years over the rule of law that you didn't want the CIA to talk to the police, because the CIA
could conduct searches and surveillance and gather information without any control. So now we sit here in fear of the great
war on terror. Because we have a constitutional rule that either you play fair or you don't play. So now you guys have the
Patriot Act -- don't get me wrong. You're all asleep.
DR. JAFFE: The point is we weren't asleep. Because when we made treatment available we also created confidentiality
laws that were the best ever devised, that even in the case of a major offense, the police couldn't get at therecords of people
who were getting drug abuse treatment.
MR. SANTARELLI: That was before the world of the Internet and technology where you may transfer this information
among the related parties. This is like the King of England in the 16th century says you're a traitor; I define traitor. I
now define related parties; the bank, insurance company, actuarial folks and the law enforcement guy who says let me see that.
GOVERNOR JOHNSON: I don't know if I disagree with what either of the two of you are saying. I think there's a real
issue when it comes to drug testing about what you're testing for. In fact, I'm agreeing with both of you. Having had a thousand
employees, we drug-tested pre-hire for cause and random drug testing. And, of course, we told people up-front, here's what
we do at this company and we offered employee assistance. So we did not have zero tolerance. We wanted to help the people
out that may have had drug problems, and I think we were very successful in doing that. Again, I'm scared to death over new
legislation that will allow mandatory drug testing at the scene of an accident and that person then, because of a zero tolerance
policy where marijuana may be present in that person's bloodstream, but that person is not impaired, will have their life
adversely affected. So I think in this country we should have a choice of whether or not we want to work at McDonald's or
be an astronaut. And I think NASA should perhaps drug-test. I think that the airlines should drug-test, and I don't think
I'm going to find any disagreement here.
But where the drug testing issue becomes really troublesome is we're testing for presence and not impairment, and technologically
speaking, I think it's interesting that Dr. Jaffe would talk about a laser that would be able to detect instant impairment,
I think that day is coming, and that's going to be interesting as to how that information gets used. And again, let's draw
theline here.
DR. JAFFE: I didn't say that was really coming.
GOVERNOR JOHNSON: I think it's coming.
DR. JAFFE: I'm just trying to make it clear that there are things like hair tests things that are very non-intrusive.
And they now have a little thing that will swab the gums and it's just as effective as a urine test for opiates and cocaine.
The technology is changing, but it doesn't change the fact that you're getting personal information that really can't be kept
secret, and it can be misused by some people in an atmosphere where not everybody thinks that you get information for therapeutic
purposes. I also believe that it is beyond, at leastwithin my grasp of the science, it's beyond our capacity to develop levels
of drugs that will be solid evidence of impairment. People respond to drugs with tolerance and other things, so that where
a level for one person would be impairment, a level for some other person, even though it's even higher, will not be impairment.
Science is useful, but it has its limits. So all you can detect is presence. What we have for alcohol levels is presumptive
impairment. It is only presumptive. And very often there are some people who at the levels that are illegal are not impaired.
GOVERNOR JOHNSON: For marijuana currently –
DR. JAFFE: Marijuana can't be done to the best of our knowledge.
GOVERNOR JOHNSON: The level of presence of marijuana results in a guilty verdict today.
DR. JAFFE: Well, it's a positive verdict that people probably have used marijuana, except if they have spent several
hours in a room 4 by 4 with three other people smoking marijuana, they discovered that back in 1974 that you can inhale enough
marijuana in a room full of other marijuana smokers to come up positive in a urine test.
GOVERNOR JOHNSON: Actually, I understood that in a government test, constant blowing of smoke for three hours, they
weren't able to get to that level.
DR. DU PONT: It depends on what kind of air circulation. You can't do it in an open room. If you go into a phone
booth with ten people smoking one hour each day for six days, that person will test positive. But in the real world it doesn't
happen.
GOVERNOR JOHNSON: Not to get off on a cul-de-sac, remember the snowboarder that was tested positive for marijuana,
and he won a gold medal. They should have given him another gold medal for having won a gold medal under the influence of
marijuana. It's not an enhancing drug.
MR. LIEBMANN: Dr. Jaffe, what are the lessons of the military drug testing?
DR. JAFFE: Well, there were two phases -- actually three. The first phase was we used the testing to detect drug
use and offer people who are positive an opportunity to be detoxified, because we assumed that anybody who recognized that
they wouldn't be able to leave a particular situation as long as they were positive, must be dependent. They quickly learned
to stop using. So you could deter drug use by having a contingency other than a catastrophic bad conduct discharge or dishonorable
discharge, by simply saying you'll be delayed in returning to an environment that you want to go back to. And that was positive
and it was effective. They later decided not to use it. That was the third phase. I don't know why they discarded it. In the
third phase they used the sametesting in a much more punitive zero tolerance way after they had an all-volunteer Army, to
say if you're positive, we discharge you. That was also effective because most people who joined in peacetime in the old volunteer
Army wanted to keep their jobs. A diagnostic test with an adverse contingency can be effective. So the effectiveness is not
questioned. I think the issue of fairness sometimes is what it is. And the question of personal privacy, I think, is something
at issue. And that's the military experience.
AUDIENCE MEMBER: I've read recently in a couple of places where they think they might be able to have a drug that
would cause an alcoholic to not want to take alcohol, I think in England. Does anyone have any thoughts on that or have any
information on that, that they give someone like an antibiotic?
DR. JAFFE: There are three different drugs currently in use -- actually four. The old disulfiram is around. There
is the finding that the narcotic antagonist trexan can decrease the likelihood of relapse. There's another drug recently approved
call Acamprosate that tends to decrease the likelihood of relapse. And there is another drug not yet fully approved but coming
down the pike, that may be useful. But I can't recall it now. At any rate, yes, there are such drugs. Whether they'll be widely
used or not remains to be seen. The great bulk of people who have alcoholism problems go to the 12-step programs and the idea
of these support kind of drugs is not widely popular.
GOVERNOR JOHNSON: There's onedrug that is very useful for treating heroin addiction called naltrexone, which completely
blocks the effect of heroin and completely blocks overdose or any reward. It lasts for 24 hours. You can take it orally. It
is just about everything you could possibly want in a drug-related heroin addiction, and it's irrelevant to the treatment
of heroin addiction. How many heroin addicts want that? The only people who take it are physicians who are required by their
medical boards to take it. Otherwise, it's not used. I think that the issue of the pharmacologic treatments, you have to be
motivated to have that effect, to take the drug. And that's a tough sale.
MR. LIEBMANN: Let me ask a naive question. This just relates to heroin. How curable is a heroin addiction, and is
it not the case that it's very difficult to cure, and the case for the so-called harm reduction strategy is stronger with
heroin than with any other drug?
DR. JAFFE: Well, first, let me talk to you about the cure. If you want to talk about whether somebody is cured from
the injection of heroin, that's pretty common. What people will argue about is whether or not it really is a cure if somebody
is maintained on an oral opiate like methadone. And if that's the case, then there are many, many people who have once been
heroin addicts who haven't used heroin in many, many years.
Doctors who were addicted to opiates, but not heroin, routinely
recover, if you arrange the contingencies properly. There are a lot of people who can recover without being on methadone.
I know many can. But everything is relative. It's the way you frame the question. There are people who cannot avoid relapse,
even though they recognize the risks when treated without something like methadone. And so that's a very, very useful option
to have in the range of options that society ought to have for people. And then there are people who can accept regulated
heroin, as they have in Switzerland; they're willing to accept that. Whether you think that's a cure or not is a matter of
great debate. I'm not sure that's the answer you wanted, but it's a complicated question.
GOVERNOR JOHNSON: Heroin maintenance in no way is an end-all cure. But what it says up front is that we're going
to look at the problem as a health problem first, not a criminal justice problem. And maybe you guys know the statistics.
I'm not going to quote statistics here if I can't remember them properly. But there are a great number of heroin addicts that
quit after a certain number of years. If they just stay heroin addicts, at a certain point they quit. The problem in the United
States is we could not have policies more geared to killing addicts than we do here, and that is the fact that we don't care
about needle exchange. People die from hepatitis C and HIV, and they die from heroin quality/quantity unknown. I'm back to
heroin maintenance and treating it as a health crime. Where the quantity or the quality is not going to kill. And then you
have the whole trade that's involved in heroin; you have disputes played out with guns, and people do die from that. And you
have women that have to take up prostitution to pay for it. So again, in this country policies could not be more attuned to
killing heroin addicts. So they don't live long enough to just use it long enough to quit.
AUDIENCE MEMBER: Obviously, all of these drugs are not good for you, including marijuana. I think it's been shown
in teenagers that it delays emotional maturity, and so forth. And those things can be a gateway to worse things. But looking
at these statistics that you have on some of the hard things like cocaine, 1.9 percent were users in 2003 in the last 30 days,
that's not a lot. And I am wondering if some of these drugs have been used by some people to cover for
other illnesses,
like schizophrenia or bipolar or even obsessive compulsiveness. I think alcoholics -- I mean, have those things that are contributory
causes of their addictions. So I wonder if there is hope for some better medications for these other problems coming down
the pipeline. I hope so. I think there probably is. But I think that we have these other problems that are part of the so-called
problem in addition to them causing violence, and so forth.
DR. DU PONT: You're talking about co-morbidity. You've got higher rates of drug use in the population of those with
mental illness, more alcohol and drug problems, and people have used the term self-medication to describe what people are
doing about that. The problem with self-medication is that all of these problems are made worse by the use of these drugs.
All of them, OCD, schizophrenia, bipolar; there's a phrase in Narcotics Anonymous: there is no problem so bad that drugs and
alcohol won't make it worse. So to call it self-medication is a complete misnomer. It's the exact opposite. It's making all
of the problems worse. One of the things I find striking is how important it is for people who are dealing with people who
are mentally ill to identify the drug use in that population because they're not going to benefit while they're still using
drugs; there's no hope.
MR. LIEBMANN: Let me ask the panelists, beginning with Dr. Du Pont, whether you have in your present state of knowledge
one public policy recommendation that you're reasonably sure of, other than the need for further intelligent study and discussion,
and if so what would that be?
DR. DU PONT: I think the biggest impact on drug use in America would be to make drug testing on the highway as common
as alcohol testing is. I think that it would put illegal drug users at risk for their driver's license and exactly the thing
that Governor Johnson is concerned about is what I want to see happen. This happens now with commercial drivers. We have a
standard for commercial drivers, and we have since 1988. And it's worked very well in that population. The public does not
know that illegal drug use creates as many problems on the highway today as alcohol does. We have a national effort to deal
with drunk driving. We need to deal with drugged driving. So that would be my number one suggestion.
DR. JAFFE: I think, respectfully, I'm not going to try to rank-order all the things that I think we could do to
make things better. I'm very concerned that we're not doing what we can about tobacco and alcohol, and together they're bigger
than the illicit problems. I think that there are many areas where we could do better. It depends on -- it's been a problem
of mine for some time. I just see too many things to be done, and I find it too difficult to rank-order.
GOVERNOR JOHNSON: Legalize pot. I think that overnight you would see a difference in this country. I think overnight
things would be better. You wouldn't necessarily know what they were, but they would be. And part of that would have to do
with the fact that the police wouldn't be arresting 700,000 people a year. They might be out enforcing litter laws, which
I'd like to see. They might be out enforcing speed limit laws, which I'd like to see. They might be out enforcing the fact
that my credit card has been used illicitly, and they might go out and enforce that. I think there are a whole lot of things
that we would like to see happen in this country that aren't happening now because we are so preoccupied with pot. And back
to pot, I actually believe that there would be less substance abuse, overall substance abuse because I think people would
find pot as an alternative to alcohol, and alcohol, I think, is the real insidious culprit in our society. And for that matter
pot may be too, if we establish impairment. And that needs to be established, and it needs to be enforced. Back to traffic.
Again, it's never going to be an excuse for any sort of smoking pot, becoming impaired, driving, smoking pot, doing crime.
That's criminal, and that always should be.
AUDIENCE MEMBER: I think that when we're talking about drug policies -- sometimes it's hard to differentiate people
who are convicted of drug sales and manufacturing from people who are convicted of drug possession. And those are two very
different crimes. I'm interested in the drug sales and manufacturing. What I'm interested is in inner cities. Governor Johnson,
you said before money represents freedom, and I know some sociologists who look at inner cities who really
document the
lack of jobs, and some economists, Steven Levitt and Richard Friedman, say people are entering into drug sales because of
the same dream that you're after. They need money to sustain and they can't find legal jobs to do so. So I'm wondering if
the war on poverty and the war on drugs aren't really intermingled in this issue, and what could job creation and job programs,
how could that affect the drug market, especially residents who are living in inner cities?
DR. DU PONT: 70 percent of illegal drug-users are employed full time.
GOVERNOR JOHNSON: Well, with the exception of drug use, most drug-users, not all drug-users, are tax-paying, job-holding
parents. You also pointed out something that I see as a real hypocrisy, and that is with regard to our drug policies, our
current drug policies. How is it that users are any less guilty than the sellers? Because they're out on the street trying
to find it and somebody is just coming in and filling the gap? I see this as really hypocritical. Sellers, these people that
are going to prison, are those that are selling small amounts of drugs, small quantities of drugs, but they have been caught
before on numerous occasions. And now because of mandatory sentencing this is the profile of the person behind bars. When
you talk about job programs, jobs making a difference, yeah, jobs can make a difference. Can government create jobs? I thinkgovernment
can create an environment that promotes job creation. But government itself, I think we're into another topic, and that's
where I think I'm a Republican. Get government out of the way.
MR. SANTARELLI: You'll never get government out of the way.
MR. LIEBMANN: Let me ask a question. There is a case before the Supreme Court, the Ashcroft v. Raich case, which
has at least the possibility of blowing a hole in the present drug policy with respect to marijuana, either by carving out
a broad exception for home-produced marijuana or a narrower exception for so-called medical marijuana. What is your estimate
of the prognosis -- I'm not asking you to be a soothsayer about the Supreme Court, because that's a very difficult exercise.
Let us assume that there is an exception of some dimension carved out for medical marijuana. What does that imply for future
policy? Should Congress intervene to either regulate or tax it, or should the matter be left to the state governments?
DR. JAFFE: Well, since I happen to see this brief, amicus brief in front of you, and Dr. Du Pont is one of the people
named on it, I think he'd be more appropriate to speak to.
MR. LIEBMANN: I know what he's going to say. I don't know what you're going to say.
DR. DU PONT: It's interesting. I was at the Supreme Court for the argument of that case. I certainly am very involved
in the case. It's interesting that it's argued on the basis of state's rights and not on the basis of medical marijuana. That's
where the case comes down. The issue has to do with whether the states have the right to establish this medicine in the state
or whether the federal law supersedes that. And I think that's the way the case is going to be decided. I think it will affect
medical marijuana, but I don't think it's -- the way the court appeared to go I would say it's going to be 7 to 2 against
medical marijuana. That would be what I would predict. It could go either way. People on my side, which is opposing medical
marijuana, are generally concerned that our side could lose, and I think anything could happen. The case was argued November
29th and it's overdue right now. So any day it's going to come out and I think it's going to be a big headline case one way
or the other.
AUDIENCE MEMBER: Why do you oppose medical marijuana?
DR. DU PONT: The idea that you would deliver a medicine by burning leaves makes no sense. Smoke is, by definition,
toxic. To the extent that there's any chemical in marijuana smoke that is beneficial, treat the person with that chemical
in the known dose. There is no tradition of burning leaves for medicine, absolutely none. Smoke is toxic. It's a pathologic
drug delivery system. The people who want medical marijuana just want's a back door to legalize marijuana because they have
no
interest in the development of pharmaceutical products out of those chemicals, zero, none. And the reason is all they
want is to smoke dope, and they wouldn't settle for anything less. It's very well established that smoke is not an acceptable
medical delivery system for any drug to treat any illness.
GOVERNOR JOHNSON: I know Dr. Du Pont knows this. The criticism of that analysis is that in its pill form marijuana
just knocks you out. I mean, it absolutely obliterates the taker of marijuana by pill form versus being able to smoke, and
actually prescribe your dose by being able to take enough marijuana to actually get relief and not pass out. Secondly, I just
find it extraordinary that wherever medical marijuana has come up for vote in any state, that it has passed overwhelmingly.
DR. DU PONT: Everywhere it's lost.
GOVERNOR JOHNSON: Medical marijuana has never been defeated when put to vote by the public.
DR. DU PONT: 2002 was the first time it started to lose. The only place it passed last time was in Montana.
GOVERNOR JOHNSON: Where has it failed?
MR. SANTARELLI: Colorado.
GOVERNOR JOHNSON: No.
DR. DU PONT: It is a losing game.
GOVERNOR JOHNSON: Wherever medical marijuana has come up for a vote among the people of a state it has passed. When
legislatures have passed medical marijuana and it has been signed by the governor, for the federal government to say to states,
you cannot implement laws passed by the legislature signed by the governor or you cannot implement a program that the citizens
of that state have voted on is wrong.
DR. DU PONT: How many medicines do state legislatures vote on?
GOVERNOR JOHNSON: What you're saying, though –
DR. DU PONT: Zero.
GOVERNOR JOHNSON: But the precedent that you're talking about is one that the federal government is going to say
you states are wrong. And that is not the foundation of this country.
DR. DU PONT: It is for medicine.
GOVERNOR JOHNSON: This is really scary.
DR. DU PONT: Take it to the FDA to get approved. It's a crummy drug delivery system.
MR. SANTARELLI: There is a clear endless tension between federal regulation and state regulation of human conduct.
Typically health and safety have been state-regulated events. But in modern times the federal congress can't keep its hands
off of anything because there's votes in it. And on the other hand, to be even-handed, if it's possible, interstate commerce
needs to be regulated by one place. We are in a phase where we are recognizing that the concept of a federal republic is a
dream. In order to have a viable commerce and global commerce, macroregulation is practically required. It is difficult for
us old Jeffersonians whose image is of the library-educated, University of Virginia boy pushing a plow, to believe we just
are past that. Some of us can lament it, but recognize that it's inevitable. Federal regulation will ultimately succeed in
every field, will make states ever more irrelevant, except in the duplication of the regulation. And that brings us to the
next stage of the game and that is double criminal liability to two different sovereigns. So you get it both ways.
MR. LIEBMANN: Let me let that lead to another question. The question about double enforcement or double sovereignty
is one of peculiar interest in Maryland. It's not generally recognized, but it's true that Maryland was the only state that
refused to enforce national prohibition in any way. Governor Ritchie was gravely opposed to national prohibition. And Maryland
was ultimately followed in that first by New York state under Al Smith, and then by six or eight other states, which is one
of the things that gave rise to the ultimate collapse of national prohibition. That leads me to the question, what policy
should the state adopt in the allocation of its enforcement resources with respect to marijuana; should the state enforce
the law or should it say to the federal government, if you want to prohibit possession of marijuana, you enforce it? What
would you say if you were a governor or a state legislature or a policeman?
MR. SANTARELLI: I would take that policeman, in part because of my deep commitment to federalism, because I don't
trust anybody with power, including the religious right. And I’m an old Roman Catholic. And I would use every opportunity
to establish the state's authority to regulate its own conduct. However chaotic that may be in a modern world, it's the only
safeguard of liberty, fractured authority.
DR. JAFFE: Well, this has much more to do with law enforcement and policy issues. We should hear from the Governor.
GOVERNOR JOHNSON: I couldn't have said it better than Don.
AUDIENCE MEMBER: I just have a small comment. I know that current policy falls within the public health school.
I come from Hopkins and then we thought in terms of saving lives, and so I have a small concern, especially with regard to
legalization of marijuana, because the arguments I'm getting so far are arguments about saving money rather than really saving
lives kinds of arguments. I heard Dr. Jaffe talk about the fact that implementing these kinds of laws are diverts a group
of people from using marijuana itself. So I was wondering what kind of other arguments can be given in terms of legalization
saving lives rather than saving money.
GOVERNOR JOHNSON: There are no known deaths due to marijuana. Again, I thought there are some, but there aren't
any. That isn't to say that a person won't smoke marijuana and die as a result of their impairment because they do something
stupid. But actual inhalation of marijuana and dying as a result of it, I don't think there's anything in any –
AUDIENCE MEMBER: You're going to divert the problem to the medical sector by legalizing. It's my guess it is more
expensive medically than the legal system. I guess from the experience of prohibition of alcohol in the U.S., switching it
to legalization, alcohol, and that the alcohol bills, medical bills got to be more expensive than the illegal drug bills in
the U.S. So I'm guessing, how would legalization –
GOVERNOR JOHNSON: First of all, I think in a perfect world, to say that people shouldn't be able to smoke cigarettes,
they shouldn't be able to drink, or they shouldn't do drugs and they shouldn't do marijuana, in a perfect world, no, let's
pass laws and everybody obey those laws.
AUDIENCE MEMBER: A certain level of legalization has always been shown to prove that the fact something is socially
perceived as wrong is going to divert people from using it, like smoking or using alcohol or other substances.
GOVERNOR JOHNSON: I think your point is well taken. Health costs are going to at least initially probably increase
as a result of the legalization of marijuana. What is it to say that with education, that marijuana and drugs won't decline
in use, as cigarette smoking has declined in use strictly because of education. I just think we can do a better job in the
educational area. And again, I don't see the health costs outweighing the current costs, which again, back to the 1.6 million
arrests, back to half of law enforcement, half the courts, half the prisons, the fact that we made tens of millions of Americans
felons. I think that cost is just such that it can't continue.
MR. SANTARELLI: Let me add one more cost, and that's the ultimate cost, the cost of liberty. I'm troubled with the
proposition that we continue to use enforcement mechanisms to deal with conduct that is secondarily harmful and not primarily
harmful. I come from the perspective that I would rather somehow to take the law enforcement quotient out of the picture.
Because it's the law enforcement quotient that gives rise to the organized sale and distribution of drugs of all kinds, which
creates an enormous falseeconomy and an enormous black economy, and really leads to the shootings in Baltimore among the gangs
over who is going to distribute the stuff. It's the production and distribution of something that people want to use. Criminalizing
that diverts the law enforcement system not only away from other priorities, but also into incursions of ultimate individual
liberty. Now, I don't have the magic bullet. I'm articulating a problem, putting it on the table for us all to kick around
and worry about. That's the worry I bring to the table. Where medical people bring the medical worry to the table, I want
everybody to appreciate what it is we give up in the name of fear of harm from excessive use of different kinds of drugs that
affect people differently. We treat it all as one from a law enforcement standpoint. When I was in the government and in charge
of the Law Enforcement Assistance Administration, and at a time very unpopular, I took the position, let's look at the other
costs we have of using the criminal system to enforce the marijuana law, especially at a time in the `70s when marijuana smoking
was more a symbol of protest than it was a brain reward pleasure. It takes a while to get a brain reward just as it does it
does to get people who start smoking cigarettes. When I tried it it was so unpleasant that I didn't try very long. I took
the view that if the kid smoking dope on the sidewalk protesting the war in Vietnam looks at the policeman as his enemy, that's
a bad start for entering into a social compact with a community. If the kid from the street looks at the cop as his enemy
instead of his friend, the guy to go to report a crime he may have seen occur or suspicious activity or his own risks, he's
going to stay away from the policeman. That dichotomy of interests that early in the stage of development is bad for society.
You weigh that against the good of the policeman being a marijuana enforcer. I ask you to weigh that. When I look at that
I weigh it out on one side because I'm preoccupied with liberty. You're entitled to weigh it as you wish. But I want you to
do it intelligently and not just sit there and let it happen.
MR. LIEBMANN: What would a legalized regime look like with respect to marijuana? That is to say if you wanted to
tax and regulate, given the privilege against self-incrimination, you have to get rid of criminal penalties. You could probably
have some kind of civil penalties.
MR. SANTARELLI: Just like they do Pennsylvania and Virginia, state liquor stores, you sell one joint at a time.
There's a label on the liquor bottle that says 80 percent proof, 90 percent proof; there's a label on the cigarette says whatever
proof, I don't have any idea how you regulate the quality of marijuana.
MR. LIEBMANN: Who would manufacture it and what level of government would regulate sales?
MR. SANTARELLI: The same guy who makes whiskey, with the guy from the BATF watching them pull the tap.
MR. LIEBMANN: I'm asking this question because it is not self-evident to me who the substitute industry would be,
generic drug manufacturers, alcohol, tobacco, who would it be?
GOVERNOR JOHNSON: I think what you would have if you would go to implement this, what you should have is you should
have in this case states implementing the laws, and that they would determine those laws, and back to this country and what
it's founded on. You've got 50 laboratories of democracy. You're going to have 50 ways to get it done. But very quickly there's
going to be a best practices that is going to be developed. There are going to be mistakes made along the way. Again, if you've
got all states engaged in this, you will find best practices emerge.
MR. SANTARELLI: You couldn't buy a drink in Virginia when I was in school. But you could buy a bottle. If you wanted
to drink you would go across the border. It's entirely okay for states to have these goofy experiments within themselves.
MR. LIEBMANN: But you can't have one as long as there's the federal criminal prohibition, except to the extent that
the Supreme Court may carve out exceptions. Then this is the second question, a political question, and that is that no one
thinks that the National Organization for Reform of Marijuana Laws and Libertarian Party are going to be producing political
change in this area. In the prohibition period the political change, as a practical matter, came about because of a political
coalition between the former producers, brewers, distillers who still were in business making medicinal whiskey, near beer
and sacramental wine. The Calvert Institute for Policy Research,Inc. 8 West Hamilton Street Baltimore, Md. 21201 coalition
was between them and the very rich who hoped that alcoholic beverage taxation would replace what was left of the income tax.
Where is the lobby going to come from to produce legislative change in this area?
DR. JAFFE: The natural producers are the tobacco companies. They are now held in ill repute, and I don't see them
lobbying for this at this juncture.
MR. SANTARELLI: George is right. I don't think there is a critical mass, even in coalitions.
DR. JAFFE: You're talking about a plant product that's ground up and typically wrapped in paper. Does that sound
like another product that's sold? There are people who know how to do that with great precision and great regularity, and
with good quality control. They know exactly how that's done. I don't see that there are any generic drug manufacturers that
have those skills and technologies. But as I said, I don't see them, you know, becoming a force for this.
MR. LIEBMANN: As far as the taxation of sin is concerned, you don't see any state governor who would like to tax
this?
GOVERNOR JOHNSON: Talking about taxing the product, I think that that would be very secondary to just getting the
entire industry above the line when it comes to income tax.
MR. LIEBMANN: I think this has been a valuable exchange, and I am sure that members of the panel will be glad to
communicate with you individually if you have any individual questions.
A Note on Marijuana Referenda
According to the Initiative and Referendum Institute,www.iandrinstitute.org, referendum proposals to generally decriminalize
marijuana use failed in Arizona in 1996, in Alaska in 2000 and 2004, and in Arizona, Nevada, Ohio, and South Dakota in 2002.
Proposals for legalization of marijuana for medical uses were successful in California in 1996, in Nevada in 1998 and 2000
(required to pass twice), in Alaska, Oregon, and Washington in 1998, in Maine in 1999, in Colorado in 2000, and in Montana
in 2004. A medical marijuana proposal failed in Arizona in 2002. Referenda providing for mandatory diversion programs passed
in California in 1996 and 2000, and failed in Washington in 1997 and in Massachusetts in 2000.
Calvert News July 2005 - The Drug Symposium Summarized
Calvert Institute for Policy Research
2005-07-01
The Drug Symposium Summarized
The Calvert symposium on drugs on May 18 did not produce complete agreement
among all speakers on all subjects: few discussions do so. However, there was general agreement on some major themes:
1.
Treating marijuana possession as an arrestable offense, rather than one leading to a summons and fines or mandated treatment
makes little sense, and gives three-quarters of a million persons arrest records each year. Calvert’s earlier symposium
on criminal justice in Baltimore City disclosed that in that jurisdiction the allowable prison sentence of one year for a
first offense renders the law almost completely nugatory, since cases, once removed for jury trial, are plea-bargained in
order to clear dockets for violent crimes, under circumstances in which the bargaining power of prosecutors is known to be
nonexistent. The result is neither punishment nor treatment but unsupervised probation; the only consequence of the proceeding
is that the defendant has an arrest record. If criminal penalties are to be retained, the allowable sentence should be reduced
to 60 days; since there will be an actual threat of trial in the District Court, the penalty may make diversion and treatment
programs effective.
2. Mandatory minimum sentences for nonviolent drug offenders result in subjecting them to schools
for crime, to overcrowding prisons, and to no reduction in drug use by offenders.
3. The creation of ‘drug courts’
with authority to waive minimum penalties for those successfully completing treatment programs, is the politically most feasible
way to secure a reduction in penalties.
4. There are a variety of alternative approaches to drug control, most of which
do not implicate the criminal process. Those desiring to be ‘tough on drugs’ would do well to explore these, while
reducing criminal penalties, which as applied to users are valuable only to the extent that they foster entry into diversion
programs. One of the participants in the symposium, Dr. Robert Du Pont, catalogued some of them:
Improve and expand drug abuse treatment programs. Although 3.3 million Americans enter drug treatment each year,
the demand for treatment far exceeds availability. In 2000, only 1 person in 14 received the drug treatment they needed. Improving
drug treatment must include the development of more cost-effective treatment, rather than simply expanding existing models.
Encourage student drug testing programs. If a young person gets to be 21 without using an illegal drug, the likelihood
of that person ever having to struggle with drug abuse is extremely low. Drug testing programs give kids convincing reasons
to avoid using illegal drugs.
Expand workplace drug testing and treatment programs. Workplace testing initiatives have had significant impact
on the prevalence of drug use in this country. While maintaining this progress, the next step is to expand testing with special
focus on increased random testing of employees outside the limits of safety-sensitive jobs and use employers as leaders in
community drug abuse prevention efforts.
Reduce drug abuse in the criminal justice system through mandated treatment and progressive sanctions. Drug abuse
is endemic in the criminal justice system so success on this front is critical to the war on drug use. Americans must insist
that all offenders released into their communities be drug-free.
Promote wider public understanding and use of the 12-step programs for long-term recovery. 12-step programs are
the "secret weapon " in the war on illegal drugs. Broader support of this "modern miracle" will improve the success rates
for everyone striving to overcome addiction.
Institute drug testing and treatment for all recipients of public assistance programs. Illegal drug use thwarts
the humanitarian goals of public assistance programs by undermining the opportunity for recipients to become independent.
It is imperative that all programs providing public assistance include routine testing so that drug abusers can receive treatment.
Revitalize the Parents Movement. Started in the mid-1970s, the original Parents Movement was the principle reason
for the 50% drop in illegal drug use between 1979 and 1992. We can, once again, mobilize the power of ordinary parents and
provide the support they need to prevent and treat drug abuse in their homes, schools and communities.
Reduce prescription drug abuse. Non-medical use of prescription medicines is an increasingly serious problem. Responding
effectively will require expanded outreach to educate patients and their families about the dangers of medication misuse,
as well as increased involvement from pharmacists, physicians and pharmaceutical manufacturers, and the government.
Reduce drugged driving. New developments in biotechnology have made it possible to test for illegal drugs in the
way that alcohol is tested. Drugged driving programs will save lives and curb illegal drug use.
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