Letter: Prof. Jeffrey Blum

May 21, 1990

Re: United States v. Anderson, CR-89-210E

Dear Judge Elfvin:

I have received a request from your Chambers for a submission in the nature of an amicus curiae brief addressed to the question:

I am told that argument on this question is scheduled for June 4, 1990. Unfortunately my publishing deadlines and commitments at this time of year preclude me from preparing a full brief. However, because I appreciate the request and believe it is critically important for members of the judiciary to be well informed on this issue, I wish to offer three things in response: first, the instant letter brief which will simply list proposed findings of fact that bear centrally on the issue, second, the enclosed packet of readings that documents some of the proposed findings and assesses the drug war from a variety of perspectives, and third, my personal expression of willingness to speak free of charge regarding any or all of the proposed findings to any gathering containing influential members of the Western New York legal community.

The proposed findings are based upon information I have gathered from a variety of what I believe to be reputable sources. In most cases more than one source is involved. The proposed findings are offered in support of the following answer to Your Honor's question:

Professorial Amicus' Proposed Findings of Fact

  1. For several years now the United States government's "war on drugs" has been inspiring a series of decisions substantially cutting back on established constitutional rights, particularly in the areas of the fourth, fifth and sixth amendments to the U.S. Constitution. See - Wisotsky, Crackdown: The Emerging Drug Exception to the Bill of Rights, 38 HASTINGS L. J. 889 (1987).

  2. The drug war has been directed against a variety of very different illicit substances, some highly addictive and posing a significant public health problem, and others not. Over three- fourths of the illicit drug use in the United States involves smoking or ingestion of marijuana. For each of the last ten years marijuana has accounted for a majority of drug-related arrests, seizures, property forfeitures, and expenditure of law enforcement funds. Because of marijuana's easy detectability, laws against it have generated an average of close to 500,000 arrests annually in the United States. See- annual household surveys of the National Institute of Drug Abuse, and annual reports of the U.S. Department of Justice.

  3. There is not now, nor has there ever been, credible medical evidence to justify this level of law enforcement effort against marijuana. Rather, several presidential panels of experts and a number of other comprehensive reputable studies have consistently and unequivocally shown marijuana to be far less addictive, less toxic, less hazardous to health, less disruptive of family relationships, less impairing of workplace productivity and less likely to trigger release of inhibitions against violent behavior than alcohol. See- Hollister, Health Aspects of Cannabis, 38 PHARMACOLOGICAL REVIEWS 1 (1986) (included in enclosed packet).

  4. Marijuana was first made illegal in the United States in the early twentieth century largely for two reasons, neither of which was health-related. The first publicly known large user group of marijuana was Mexican-Americans. Marijuana laws began being passed in Southwestern states as part of a self-conscious harassment campaign designed to drive Mexican-Americans out of the United States and "back" to Mexico. This harassment campaign intensified during the 1930's when the depression was making jobs scarce and causing Anglo-Americans to covet the jobs held by Chicanos. For proposed findings 4 through 7, infra, see- Riggenbach, Marijuana: Freedom is the Issue, 1980 LIBERTARIAN REVIEW 18 (included in enclosed packet).

  5. The second important reason for marijuana prohibition was the covert protectionist activities of paper and synthetic fiber industries in the 1930's. These interests, of which the Du Pont Corporation was the most important representative, wanted to eliminate possible competition from the hemp plant (marijuana is comprised of the buds or flowers of the hemp plant), which had recently become a serious "threat" as a result of the invention of the hemp decorticator machine. With such a machine in existence, competition could have become severe because hemp, in contrast to trees, is an annual plant with no clearcutting problem. Hemp also is believed to produce 4.1 times as much paper pulp as trees, acre for acre.

  6. Several trends in government converged to make hemp/marijuana prohibition possible. The New Deal Court had recently swept away earlier established doctrines of economic due process which had limited covert protectionist uses of government agencies. Andrew Mellon, the chief financier of the Du Ponts, had become Secretary of the Treasury and appointed his nephew, Harry Anslinger, to head the newly created Federal Bureau of Narcotics. Anslinger proceeded to misclassify marijuana, which is a mild stimulant and euphoriant, as a narcotic, and to make its prohibition his agency's top priority. In addition, the recent lifting of alcohol prohibition had confronted a number of federal agents with the risk of unemployment if new forms of prohibition could not be instituted. All these factors contributed to passage of the Marijuana Tax Act, the initial federal prohibitory legislation, in 1937.

  7. Throughout the 1930's a lurid "reefer madness" propaganda campaign was carried on throughout the nation, largely through the Hearst newspaper chain. The Hearst chain, whose vertical integration had caused them to buy substantial amounts of timber land, had been accustomed to using lurid propaganda campaigns to sell newspapers since the Spanish-American War in 1898. The "reefer madness" campaign was based partly on the knowledge that Pancho Villa's army had smoked marijuana during the Mexican Revolution. It portrayed marijuana as a powerful drug capable of causing Anglo teenagers to turn instantly into hot blooded, irrational, violent people, much akin to the "Frito bandito" stereotype of Mexican-Americans.

  8. The "reefer madness" campaign rested on a large number of anecdotal stories of violent incidents, almost all of which have turned out to have been fictitious and traceable to a single doctor who had worked closely with Harry Anslinger. One indication of the stories' falsity is that during the Second World War and Korean War Anslinger himself shifted from calling marijuana a violence-inducing drug to calling it a menace that had the capacity to turn large numbers of young people into pacifists. For proposed findings 8 through 11, infra, see Herer, THE EMPEROR WEARS NO CLOTHES (Los Angeles: HEMP Publishing, 5632 Van Nuys Blvd., Van Nuys, Calif. 91401).

  9. Since marijuana began becoming popular among the white middle class in the mid-1960's a number of specious medical studies alleging great harm from marijuana have been widely publicized. The most important of these, and the source of the widespread myth that marijuana damages brain cells, involved force feeding rhesus monkeys marijuana smoke through gas masks. The monkeys consumed in a matter of minutes amounts of smoke far greater than what human beings would be likely to consume in a month. The monkeys suffered substantial brain damage that appears to have been caused by carbon monoxide poisoning from smoke inhalation.

  10. Covert economic protectionism appears to have played a continuing important role in sustaining marijuana prohibition during the last decade. Pharmaceutical companies, possibly alarmed at the increasingly widespread use of marijuana as a versatile home remedy, provided most of the funding in the late 1970's and early 1980's for a network of "parents' groups against marijuana." By far the largest sponsor of the Partnership for Drug-free America, which blankets the airwaves with anti-marijuana commercials, has been the Philip Morris Company. Philip Morris owns several brands of tobacco cigarettes and is the parent company of Miller Beer, and possibly some other brands of beer as well.

  11. Partnership commercials, while exaggerated but to some degree truthful about cocaine, have been uniformly uninformative about marijuana. They have ranged from merely casting negative stereotypes of marijuana users as lazy and shiftless to being instances of outright (and possibly legally actionable) fraud. One widely aired commercial compares the brainwaves of "a normal teenager" and "a teenager under the influence of marijuana." The latter was later admitted by Partnership officials to have been the brain waves of a person in a deep coma.

  12. Largely as a result of such government and corporate-sponsored propaganda campaigns a majority of people have come to support an across-the-board crackdown on illicit drug use and sales. Due to this political climate a number of harsh statutes have been passed during the last five years and these, combined with various "relaxations" of constitutional restrictions on law enforcement activities, have resulted in large numbers of young people receiving ten, fifteen and twenty-year mandatory-minimum sentences for transport and sale of marijuana. Thousands of people have forfeited ownership of their farms, homes, shops and vehicles for growing, and in some instances merely possessing, marijuana. See generally- the Omnibus Anti-drug and Anti-crime Acts of 1984, 1986 and 1988.

  13. Because of this wholly unjustified crackdown on marijuana, people around the country have come to view the term "Your Honor" as connoting a person of ill will, mean spirit and low principle. "The Government" has come to connote an organization that is both very inefficient in its processing of information and very casual current system of black market distribution which generates widespread crime, escalating rates of incarceration and a substantial hidden subsidy for organized crime. Whatever disincentives were needed to keep large numbers of people from choosing to become addicts (e.g., making addicts wait in line for two hours to get their doses) could be built into the system of distribution. Such a system worked quite well in Great Britain until the issue became too politicized for it to continue. See Trebach, supra.

  14. Psychedelic drugs pose greater hazards than marijuana, but less than those of addictive drugs like heroin and cocaine. While some psychedelics, such as PCP, may be inherently dangerous and thus appropriately prohibited altogether, most can be taken safely by most people. The problems posed by LSD, for example, in some ways resemble those presented by scuba diving. Each is seen as a form of exploration that opens new vistas. Hence participants often find the activity enormously stimulating and inspiring. Each activity poses a small but significant risk of serious personal harm, these being death for one and aggravation of pre-existing states of mental instability for the other. Untrained, unsupervised use of unchecked substances or equipment are ill-advised in both cases. Conversely, though, a government-orchestrated campaign of persecution for either group of explorers is likely to be viewed as barbaric by knowledgeable persons. In each case a premium should be put on devising social policies that minimize the hazards of the activities in question.

Thank you, Judge Elfvin, for the opportunity to place these proposed findings of fact before the Court. I believe Your Honor can discern the relationship between the information they present and the answer proposed in response to the Court's question. If I may be of any further assistance, please do not hesitate to call my secretary at (716) 636-2103. I do, however, expect to be out of town during the period of May 21, 1990 to June 10, 1990.

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