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Kathleen Frydl, a historian by training, is the author of “The Drug Wars in America, 1940-1973,” which was released last week by Cambridge University Press. The book details how the federal approach to drug policy changed from largely being about regulating doctors and pharmacists and raising revenue to the punitive approach we see today. Her first book, “The GI Bill,” won the 2009 Louis Brownlow book award from the National Academy of Public Administration.
We spoke on the phone Monday afternoon. A lightly edited transcript follows.
Dylan Matthews: Just to start off, what did the legal approach to controlling narcotics look like at the start of the period you’re looking at? How did it change?
Kathleen Frydl: Let’s start with today. Illicit drugs are defined and regulated and prohibited under the 1970 Controlled Substances Act (CSA), and the book I wrote is a political and institutional history of that act, and how it represents a departure from the way that Congress had been regulating drugs with taxes and tariffs. I start with the earlier regime and explain why we abandoned it.
When we talk about totally prohibited drugs, they’re defined as schedule I substances in the CSA. At the time and even today, the DEA tries to justify which it picks as schedule I substances in scientific terms. What I show, I hope successfully, is that that schedule is just composed of all the drugs that were once under the Harrison Narcotics Tax Act: heroin and marijuana. Cocaine, which also fell under the original Act, is still used as a medicine, so is classified as schedule II, but unlike other similarly classified drugs, and like schedule I, simple possession is usually charged as felony. And so it’s just a vestige of that system. Schedule II drugs can often be just as addictive, and just as lethal. There’s no scientific separation; the separation is political and historical.
What are some examples of schedule II drugs?
Synthetic narcotics like Percocet and Oxycontin are there. These are drugs that are comparable to illicit street drugs.
You mentioned the Harrison Narcotics Tax Act. What was that? What problem was it trying to solve?
The Harrison Narcotics Tax Act actually wasn’t trying to solve a problem, even though it’s presented in the literature as doing that. It was the way we imported narcotic drugs in this country, because they were needed for medicinal purposes. It was the mechanism by which the U.S. defined how much heroin, morphine and cocaine it would import, and how it would distribute it, and it was the way in which those drugs were tracked. Once they arrived they were inventoried, and as they made their way through the distribution chain, a tax was levied at each stage in the process.
One of the most important points that I try to make is that when you regulate an illicit trade that is expressly tied to a licit one, you have much more success in disciplining it. In the 1930s, if a doctor was prescribing heroin for purposes he should not be, the Bureau of Narcotics wouldn’t threaten him with jail time, they would threaten him with the loss of a medical license, and that ends up being a much more effective threat than threatening a criminal with criminal punishment.
And far less costly to the state that’s imposing it.
Far less costly, much more effective, and without the perverse side effects that the drug wars have now introduced. You now have a class of criminals who can commit violence with near impunity. There’s a huge cost to the drug war that you don’t see with this system. Every system fails, but with regulation, at worst you have doctors prescribing drugs they shouldn’t. And we have that now.
What were drug use rates like under this regime?
At times, they were higher. There are horrific stories, both pre-Harrison and post-Harrison, of Southern doctors who would addict an entire small town on heroin. So there’s a huge and fluctuating rate of addiction. People forget the rate of abuse and dependence earlier in our history. Alcohol dependence in the 19th century would stagger the modern imagination.
We’ve gone through cycles with crests, typically following a war. In the Civil War many soldiers were dosed with some kind of narcotic. Ditto World War I, ditto World War II. You had cycles depending on which drugs were being imported in which quantities.
How did the regime handle the introduction of new drugs? Did they pose a problem for it?
One of the more interesting things in the book is the way that Congress refused to regulate domestic synthetic drugs throughout the 1950s and for most of the 1960s. With those drugs — amphetamines and barbiturates — the indecision of the government was astounding.
These new drugs clearly had addictive properties and were taking a public toll with car accidents, juvenile addiction rates, etc. Congress convened a series of hearings to consider adding these drugs to the Harrison narcotic model. They didn’t.
One reason why they didn’t was because the Bureau of Narcotics did not want that kind of enforcement responsibility. But more persuasive to Congress when it came to the decision to not even touch these drugs was that the IRS was trying to move away from taxes as a way to regulate behavior. It was, all of a sudden, much more interested in taxes as a way to raise revenue.
That’s a fairly modern phenomenon in the U.S. government. Of course, they always wanted to raise revenue through tariffs and things like that, but many federal taxes were in place to regulate behavior. In the 1950s, most Americans were paying income tax for the first time in peace. The IRS had such difficulty implementing a broad federal income tax that it vacated its historic role in excise taxes, and that, I think, was much more persuasive in getting Congress to leave these drugs alone. They knew they didn’t want to continue with taxes, but they didn’t know how they wanted to regulate them.
When would you place that shift in the IRS?
In 1952, and 1953, when Hale Boggs held his hearings, and refused to place the new drugs under the taxing model. That would have been the sensible thing to do, but the government had neither the capacity nor the political will to do it.
At the time, the leader of the Federal Bureau of Narcotics — now the Drug Enforcement Administration (DEA) — was Harry Anslinger, who was not unlike J. Edgar Hoover in his persona and politics. He began to define his mission as the pursuit of illicit narcotics, and less so the regulation of licit narcotics. That’s an interesting story. It’s a very subtle shift.
Sure, they were checking on licit narcotic prescriptions, checking on prescriptions for heroin or morphine. But he only devoted 20 percent of the staff and work to that. Eighty percent he devoted to illicit narcotics. And once you separate those, deterrence becomes far less effective, and you push the market underground. That’s the second thing that endangered the Harrison regime.
Just to be clear on what this regime meant for people, I couldn’t just go to the local druggist and buy myself some heroin. You needed a prescription.
You needed a prescription. The Harrison act actually introduced the idea of prescription drugs. Until the 1950s, and this is a story I tell in my book, narcotics were the only prescription medicine. And it was a very different thing when they added other medicines to this category of prescription drugs. The government tried to discipline and police first the medical profession, and then the pharmacists, and tried to discipline the dispensation of narcotics. Prescription-only drugs were, for a long time, only narcotics, and then the FDA added different classes of drugs.
One of the parts of the book I hope gets some attention is the way that the drug lobby is behind the current structure of our drug war. Looked at from a political perspective, Schedule I drugs represent a regime of trade protection.
It privileges OxyContin producers over heroin producers, right.
Exactly. Like other acts of trade protectionism, this one has failed because heroin is often cheaper than OxyContin. So we have all these stories of people who got hooked on Oxy and moved over to heroin, and will go back and forth depending on availability and access. This approach costs us plenty but it hasn’t worked.
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Marijuana was treated a bit differently, if I recall correctly.
The 1937 Marijuana Tax Act was modeled on the Harrison Narcotics Tax Act, and legally it’s a distinct statute, but the mechanisms were the same. What was different was that no one was pretending there was any medicinal use for marijuana. The government was just creating this structure as a way of prohibiting it.
That logical inconsistency wound up bringing the entire tax and tariff structure down. In Timothy Leary v. U.S., that was a case that was about marijuana. It was not about heroin or cocaine, both of which had recognized medicinal uses for decades.
The justices ruled it didn’t make sense to tax something you wanted to prohibit. People would be incriminating themselves if they filed the forms to pay the tax. The government then followed in and said, “Let’s strike it all down, the heroin and cocaine parts too,” and that’s what’s interesting and goes unrecognized.
Was that just an accident emanating from that particular case or was there a broader push behind it?
Marijuana reform activists had been paying attention to it, but more decisive was that the government was willing to use it as a logical pretext to strike the whole machinery down. Around the same time, when the Bureau of Narcotics gets transferred from the Department of Treasury to Department of Justice, that was also a big move. When it’s in Treasury, drug regulation is a tax and trade matter. When it’s in Justice, what you’re talking about is “Drugs are a crime and we’re going to catch the criminals.”
Those are two totally different models of how to regulate drugs. The transfer is a move of tremendous importance, and it precedes the Leary case. Once it’s decided, they say, “Look at this, we have this agency in DOJ, and it’s dealing with a patchwork of drug laws, and they can arrest for some and not others, so let’s use this Leary case to pass a new legislative framework.”
Did that happen under Nixon or Johnson?
Johnson got the Bureau of Narcotics moved in his final year, but the administration which stepped forward to change the law was Nixon.
What was the congressional debate around that like?
Stepping back, people think the drug war happened in the 1980s, but mandatory minimums were around in the 1950s and ’60s. The CSA debate featured a lot of progressive voices who wanted to get rid of mandatory minimums, and they did. Federal minimums for possession were eliminated and came back in 1986. (However, it’s important to note that individual states imposed mandatory possession sentences starting in 1973 in New York.) In general, the congressional debate featured a lot of progressive voices who wanted to tone down what had been a very aggressive pursuit of illicit narcotics users over the past few decades.
The debate also features remarks upon the need to properly outfit the Bureau of Narcotics and Dangerous Drugs (as it had been renamed at this point, and was later christened the Drug Enforcement Agency) with new statutory authority. Very few politicians remarked on the change from the federal government’s taxing power to the commerce clause as the justification for regulating both licit and illicit drugs. And when it did get noted, it was a change that was applauded.
What the dissent focused on were no-knock searches, or clear violations of constitutional principles that had been recognized for decades. Those civil libertarian voices, like Sam Ervin, denounced the bill in very strong terms for endorsing policies that they judged, in my opinion correctly, as violations of the Constitution.
The courts weren’t too sympathetic to that interpretation.
No, and they’re still not. Mandatory minimums themselves violate the whole conservative common law tradition in this country, but they’re a fact of life for us today. I think Sam Ervin even denounced this kind of escalation as a “narcotic” for which we are building up a tolerance. It becomes dangerous when we become accustomed to these violations of common law principles.
And then Nixon used the new powers to crack down on the drug trade.
He did. He did so at home as a way of consolidating his white ethnic majority, or the “Silent Majority” as he called it, and “law and order” rhetoric was one way he attempted to appeal to white ethnics he wanted to recruit.
But he also used different powers of the drug war abroad and he used them more aggressively than any president other than George H.W. Bush, who authorized the invasion of a country over a drug indictment.
You’re talking about Panama?
I am. That’s astounding, that you would contemplate the invasion of a country to satisfy a drug indictment. But anyway, Nixon was the first to introduce a drug threshold to foreign aid packages. If they weren’t meeting U.S. standards, President Nixon would threaten foreign aid. This was a very politically convenient standard, as a way of justifying foreign aid to the public at home, and it was politically convenient abroad, since some of the worst offenders like France never felt the brunt of U.S. diplomatic pressure or military pressure, but others who the government was already disposed to denounce, for one reason or another, felt the brunt of U.S. power, and still do today.
Talk a bit about the role that international treaties play here. The U.N. has three different treaties, with almost all members signing, on the topic.
They have a very important effect, and to the extent that we have a foreign policy literature that deals with the drug war, most of it deals with those treaties. And those treaties are often cited as a reason why countries can’t legalize or decriminalize X, Y, or Z drug. But in fact they can, and for all intents and purposes, this is a red herring. Portugal, for example, has pursued decriminalization without leaving, and actually the U.N. has recently come out in favor of Portugal’s approach.
The initial treaties were signed in the late years of the League of Nations. Those had a tremendous effect. Whereas the European pharmaceutical companies were once the biggest traders in illegal narcotics, those companies moved their market share in favor of their licit businesses in response to the League’s efforts. That drove the business underground.
Are there lessons we can take from this history for current drug policy debates?
I think so. One of my takeaways was reinforced when I read Dana Priest’s piece in The Post on Sunday, which is that these complex security regimes, like the war on drugs or the war on terror, have essentially produced their own feedback loops, and we’ve forgotten how to step back and ask “Is this even working?” Priest noted that the very close ties between the U.S. government and the just-ousted Mexican government produced no effect in terms of the production, price or potency of drugs, but U.S. policy officials are bemoaning the loss of those ties nonetheless.
It’s time to step back and look at the forest. In 1968, a dime bag of heroin cost $5 and was about 15-40 percent pure. Today, without adjusting for inflation, it costs $5 and it’s 15-40 percent pure. That’s a crude measure, but that’s the definition of failure, right there.
I came of age in the 1990s when social policy and in particular what was referred to as “welfare” came under much criticism. But those programs, at their worst, were guilty of a kind of stagnant mediocrity. Here we have total failure. It’s time to do a “Losing Ground” of the drug war, you know? It’s time to step back and recognize that these expenditures have performed a lot of functions for state, be it policing inner cities or justifying certain kinds of international engagement. But the one thing they have not done is control the price and purity of drug–the reasoning which ostensibly justifies our costly drug war.
Those price numbers are pretty astounding.
Those prices have fluctuated over time, and drought, war or something else can effect the price and purity. But, in sum, the drug war has had no meaningful effect, except to make those drug producers ruthlessly effective at what they do.
What policy changes would you like to see happen? It seems like the momentum is building for marijuana decriminalization or legalization but for other drugs it’s less clear.
I’m glad the marijuana policy portfolio is moving forward. I support the legalization of marijuana and I say so in the conclusion of my book. Right now, I’m more interested in other drug reform efforts. Race and class bias created and sustained the drug war, and I would hate for that race and class bias to be replicated in drug reform efforts.
The thing I have been suggesting, at the top of my list, is some kind of National Academy of Sciences study to formally model different approaches to the regulation of illicit drugs, including the way that we used to do it under Harrison, and also to address how costly the transition between one regime and another would be. We’re at the point where we want the hard social science and formal modeling to come in.
For example, if you’re negotiating trade agreements, as we are doing right now, what would it mean to include illicit narcotics reduction in those talks rather than requiring crop dusting for eradication? Which is more effective? There’s a lot of things I suggest that are traditional tactics of agriculture and trade policy, that I’d like to see assessed by neutral scholars.
Dylan Matthews | April 30, 2013
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