During the entire lives of everyone living today, the U.S. government has been waging the so-called war on drugs. Since 1914, beginning with the Harrison Narcotics Tax Act, the federal government has enacted laws that make it a criminal offense to possess or distribute certain drugs or to simply conspire (that is, agree) to do so. The objective has been to eradicate the use of illicit drugs in the United States. At the risk of belaboring the obvious, that objective has not yet been realized, and everyone would agree is a long way from being realized, despite many, many decades of drug warfare.
A war that’s never been won
I grew up in Laredo, Texas, which is located on the U.S.-Mexico border. Laredo has always been a major hub for the illegal importation of drugs into the United States. When I was kid, there were many people regularly busted for drugs — principally marijuana — at the international bridge that people returning from Nuevo Laredo, Mexico, would cross to enter the United States.
Criminal-defense lawyers in Laredo were making lots of money. I know this because my father was one of them. Family members or friends of people who were accused of drug-law violations would bring huge stacks of $100 bills to pay my father’s fee for representing the accused.
Later, my father got appointed U.S. magistrate in Laredo. People who were charged with drug offenses were brought before him for a hearing to set bail. I think my father was paid on a per-hearing basis. The hearings would be held in the conference room of his law office. Every week, there were many people accused of drug crimes to deal with. Among them was the famous LSD guru Timothy Leary, who got busted on a marijuana charge.
At that time, Laredo did not have a local federal judge, so a judge from Houston, Ben Connally, would regularly travel to Laredo to preside over federal cases in the local federal courthouse. One day, he summoned my dad, who was serving as U.S. magistrate at the time and was a personal friend of Connally (my parents and I would go bird hunting with Connally and his wife Sally), into his office and told him that there was a serious problem with “dropsy cases” at the international bridge. Those cases involved federal officials at the bridge who, objecting to long-haired hippies, would “drop” some marijuana into their vehicles and then arrest them for possession. After all, who are you going to believe — some long-haired, drug-consuming hippie or some decent, upstanding, short-haired federal law-enforcement officer? It was my first exposure to the corruption that comes with drug prohibition.
I had high-school friends who were caught with marijuana. They were charged and convicted of felonies in the federal court system. One of them had purchased an ounce of marijuana in Nuevo Laredo and then, as he was walking back to Laredo on the international bridge, dropped the package in some weeds on the U.S. side of the Rio Grande. Later that night, he went to retrieve it. Federal officials had seen him drop the package and were diligently waiting for him in the dark. He got busted and saddled with a federal felony conviction.
When I was in law school in Austin, I had a friend from Laredo who was living in Austin and had become a major nationwide marijuana dealer. He was an absolute genius at importation, marketing, and distribution and was making loads of money. I once walked into his house, and he had an entire bedroom filled to the ceiling with dozens of bales of marijuana. The feds knew what he was up to but couldn’t catch him. So, they instead used the IRS to go after him on tax-evasion charges. Once the IRS tightened the noose around my friend’s neck, he decided to check out and committed suicide. He was around 24 years old. He was undoubtedly one of the earliest victims of the war on drugs.
When I returned to Laredo to practice law, the city had just recently acquired its first local federal judge, who I had known growing up. He immediately appointed me to represent a man who was charged with a federal drug offense. Since my client contended he was innocent, we went to trial. During the course of the trial, the DEA and the federal prosecutor realized that I had figured out that they had conducted a sting operation against my client because they couldn’t catch him on a real drug offense. The prosecutor and the DEA were not happy that I was bringing that nefarious operation to the attention of the jury. In the midst of the trial, they accused me of jury tampering. I immediately went to the judge’s office and informed him about the accusation and demanded an evidentiary hearing to establish that the jury-tampering charge was bogus. On questioning by the judge, the prosecutor acknowledged that he had no evidence to support the charge and apologized to me for making it. It was my personal experience with the corrupting nature of the drug war.
Federal judges ruined thousands of lives
In the 1960s and 1970s, federal judges essentially became unofficial agents of the drug war. They were bound and determined to do their part to win the war. Some of them began meting out high jail sentences to people convicted of drug offenses, certain that those sentences would deter others from committing drug-war crimes and therefore bring a successful end to the drug war. One federal judge in San Antonio, John Wood, who had been a high-school friend of my father, was known as “Maximum John” because his policy was to automatically give every person convicted in his court of a drug offense the maximum possible jail sentence.
The policy, which other federal judges adopted, was essentially a judge-made mandatory-minimum sentence entailing the highest jail sentence the law allowed. My father and I once had a case in front of Maximum John. Our client and two of his friends were charged in a one-count indictment with conspiracy to possess heroin. Mind you, they had never touched any heroin. All they had done was agree to possess heroin and then made an effort to acquire it. Maximum John gave all three of them the maximum 15-year jail sentence. As I recall, they were all in their early 20s.
When I was in college, Judge Connally, the federal judge from Houston who would travel to Laredo to hear cases, was once presiding over a marijuana case in Laredo. The defendant took the witness stand and confessed to the crime. He explained that his family had been in very bad financial straits and that he needed the money to provide for them. His explanation was clearly irrelevant and should not have been admitted into evidence, but the federal prosecutor was undoubtedly so elated over the confession that he didn’t object to the explanatory evidence.
Given Judge Connally’s reputation for meting out high jail sentences to help win the war on drugs, the jury knew that the defendant would receive at least a 15-year jail sentence. They returned with a verdict of not guilty. It was the first time I had heard of jury nullification. Connally screamed at the jury and told them that they were the dumbest jury that had ever served in his courtroom. He instructed the district clerk to permanently strike them from the pool of possible jurors. Connally’s remarks hit the wire services. What was fascinating to me was that there was nothing he could do to alter the verdict of the jury. It showed me the unbelievably awesome power of a jury in America’s criminal-justice system. The case made me more determined to go to law school and become a trial attorney.
Why am I detailing all of this? To show how long this drug-war nonsense has been going on and to give you just a few anecdotes demonstrating the utter futility of it. Believe me, there are thousands of lawyers in the borderlands, as well as in Florida, which was another hub for importing drugs, who could give you similar stories of drug enforcement in the 1960s and 1970s.
If it were possible to win the war on drugs, it would have been won back then. The borderlands were converted into a drug-war police state (and an immigration police state as well). DEA agents were everywhere, and more often than not, you didn’t know who was a DEA agent because they were often operating undercover. For example, when I got back to Laredo to practice law, I went to a bar one evening for a beer. A customer at the bar struck up a friendly conversation. I asked him what he did. He said he was a salesman. I asked him what he sold, and he smilingly responded, “Just a salesman.” Several months later, I saw him testifying in a federal drug case as a DEA undercover agent. Thank goodness I didn’t buy anything from him!
The drug war lobby
Despite all of these efforts, the drug war was not won. It just kept going and going, with new DEA agents replacing old DEA agents and new federal judges replacing old federal judges, with everyone doing his part to win the war on drugs.
Sometimes when I see this same phenomenon taking place today among DEA agents, federal prosecutors, and federal judges, I can’t help but ask myself: Are they really that dumb? Do they really think that they are going to win the drug war? Don’t they know that DEA agents, federal prosecutors, and federal judges did everything in their power back in the 1960s and 1970s (and ever since) to win the war on drugs? If the drug war wasn’t won back then, what makes this new crop of people think that they’re going to win it today?
Having witnessed the drug war my entire life, I have concluded that these DEA agents, federal prosecutors, and federal judges are not that dumb. They know full well that they will never win the war on drugs. At the same time, however, they also know that there is an entire federal bureaucracy that is financially dependent on the war on drugs. This vast drug-war bureaucracy consists of not just the DEA agents, the federal prosecutors, and the federal judges but also the court clerks, the secretaries, the people who answer the telephones, the law clerks, and many more. Many of them have families to raise. Many of them are putting kids through college. Many of them have mortgages and car payments. Some of them illegally receive drug-war bribes.
In other words, this vast army of drug-war bureaucrats is dependent on the drug war. They all have a vested interest in its continuation. Deep down, they know it’s not about winning the drug war. It’s about continuing the drug war so that they continue to have the generous amounts of taxpayer-funded money to raise their families, put their kids through college, make their mortgage and car payments, and make it to retirement.
There is another point that is worth mentioning. The U.S. Constitution does not delegate any power to the federal government to criminalize the possession, consumption, and distribution of drugs, just as it doesn’t delegate any power to the federal government to do the same things with respect to alcohol. That was why a constitutional amendment was needed to criminalize the possession, consumption, and distribution of alcohol. The same principle applies, needless to say, to drugs.
Today, proponents of the drug war lament the large amount of fentanyl coming into the United States and killing people. What is fascinating, however, is that they don’t view this in the obvious way — that their decades-long drug war has failed to achieve its end. After all, if their drug war had succeeded, there wouldn’t be a fentanyl problem. Instead, in one of the best examples ever of obtuseness, drug-war proponents use the fentanyl problem to justify the continuation of what is obviously one of the best examples in history of a government program that has failed to achieve its end.
If it were just a failure of a government program we were dealing with, that would be one thing. But it’s much more than that. The war on drugs has brought with it drug cartels, drug gangs, massive violence, and official corruption, not to mention grave infringements on civil liberties and privacy. That’s what happens when the government makes a purely peaceful activity illegal. One of the best examples of this phenomenon was when the federal government made the possession and distribute of alcohol illegal. Immediately, American society became besieged with booze gangs, massive violence and corruption, and severe assaults on civil liberties and privacy. As soon as Prohibition ended, those gangs, the violence and corruption, and the infringements on freedom evaporated.
Alcohol prohibition provides the solution to drug prohibition. The only way to bring about the eradication of drug cartels, drug gangs, and massive drug-war violence and corruption is by legalizing drugs. There is no other way to accomplish that.
Does this mean that people would be free to acquire, consume, and distribute whatever drugs they wanted, including heroin, cocaine, opioids, and fentanyl? That’s exactly what it means, just as people are free to acquire, consume, and distribute liquor, beer, and tobacco, which, by the way, kill vastly more people than illicit drugs do. People have been consuming drugs throughout history. With drug legalization, at least they would be purchasing them from reputable pharmacies and companies that care about their reputations and their customers rather than from back-alley, black-market, violent sellers who don’t care one whit for their reputation or for the welfare of their clients.
Most important in all this is not the failure of the war on drugs or the collateral damage that the drug war has inflicted on American society. What is most important is the concept of individual liberty. In a genuinely free society, people have the fundamental, God-given right to consume, possess, and distribute whatever they want. And that’s the best reason for immediately bringing an end to the war on drugs, one of the most immoral, destructive, and failed government programs in U.S. history.
This article was originally published in the January 2024 edition of Future of Freedom.