Editorial

Legalize It

by Fred E. Foldvary, Senior Editor

Intervention ruins lives. Carlos Gonzalez, a student at the University of California in Berkeley, was put in jail, lost a semester and his $3,000 tuition fees, had his graduation delayed, and may have had his career ruined by the government. His crime, as reported by the West County Times (December 6, 1997) was giving a friend a ride.

On November 5, 1997, Gonzalez gave a former co-worker a ride to a mall. Gonzalez was not aware that his friend was a small-time drug dealer, who sold methamphetamines. His friend's customer that day turned out to be an undercover police officer with the department at Walnut Creek, a city east of Berkeley. Gonzalez found himself surrounded by police in a drug bust.

Gonzalez, perhaps a bit naive, told the police he was innocent, and offered to let them search his belongings. He evidently did not realize that the police do not need evidence of actual drugs to make an arrest; they only need to come up with some item that they can claim is an accessory to the crime, even if there is no evidence that the item was used in connection with drugs. They found his engineering notes for the design of a wastewater treatment plant. That was good enough for the government. They claimed that the figures in the design, which Gonzalez said represented chemicals used to treat water, were calculations for drugs. That was the only "evidence" needed for a drug charge that put him in jail. The police report stated that Gonzalez was guilty by association. The District Attorney's Office charged him with possession of drugs with the intent to sell.

Thomas Fleming, Gonzalez's attorney, a public defender, finally got the case dismissed a month after his arrest after several court appearances. To Fleming, Gonzalez's innocence was obvious. Now, not only has Gonzalez's career been disrupted, but he worries he may be deported to Mexico, his native land. His life may never return to normal, since even though innocent, his stay in jail may leave a permanent mark on his record and ruin his reputation.

In a crime of violence or theft, the perpetrator must be proven guilty. In drug cases, a person may be considered already guilty by association, with no presumption of innocence. It is difficult, perhaps impossible, to reform the enforcement of drug laws so that the accused have the constitutional protections that violent criminals enjoy. The logic of making a substance illegal leads to the eradication of normal civil liberties and due process.

Any policy runs smack into two problems: knowledge and incentives. Since the illegal stuff can be hidden, indirect, circumstantial, or trace evidence needs to be used to thoroughly enforce the prohibition. For example, a dog that reacts to a suitcase or to money is considered sufficient proof that the item has traces of drugs. Once the prohibition is in place, incentives are strong for enforcement officials to exploit the law to rack up a fine record of arrests, as well as to confiscate property via civil asset forfeiture, which does not require any conviction at all.

Since these drugs are indeed harmful to health, the public backs the prohibition, being largely ignorant of the abuses of enforcement. Drug-law enforcement becomes a lottery, where any innocent party may become a victim of zealous police attacks, as happened to Gonzalez. The main beneficiary, as with the prohibition of alcohol from 1920-1933, is organized crime.

The only way to stop the enforcement abuses, the violations of civil liberties, the confiscation of property through seizure and forfeiture, and the billions of dollars spend in a futile effort to stop drug use, is to treat drugs as a health problem rather than a criminal problem. Some European countries are using this approach and have found that it reduces the spread of disease and the spread of drugs to the general population. Decriminalization would also reduce the congestion of prisons and courts. A rational drug policy would also eliminate the violence of drug wars in slums and the diversion of youth into the drug trade as the avenue to wealth. Criminalization has led to all sorts of other problems, such as using land in the national forests to grow marijuana, making it dangerous for innocent hikers to use some of our forests.

Legalization does not mean "anything goes." European countries that use the health approach practice "harm reduction." One approach is making these drugs available by prescription or in clinics. Organizations such as the Partnership for Responsible Drug Information in New York City, or the Drug Policy Foundation in Washington DC, have documented the failure of drug prohibition and offer sensible ways to solve the drug problem in ways that would prevent the travesty of justice that happened to Carlos Gonzalez.