At the federal prosecutor's office in the Southern District of New York, the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon.
It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you'd see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like "false statements" (a felony, up to five years), "obstructing the mails" (five years), or "false pretenses on the high seas" (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: "prison time."
As this story suggests, American law is underenforced—and we like it that way. Full enforcement of every last law on the books would put all of us in prison for crimes such as "injuring a mail bag." No enforcement of our laws, on the other hand, would mean anarchy. Somehow, officials must choose what laws really matter.
This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law—duly enacted and still on the books—lay fallow or near dead.
Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure—the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced—or even enforced at all.
This political failure can happen for many reasons. Sometimes a law was passed by another generation with different ideas of right and wrong, but the political will necessary to repeal the law does not exist. Sometimes, as we'll see with polygamy or obscenity, the issue is too sensitive to discuss in rational terms. And sometimes the law as written is a symbol of some behavior to which we may aspire, which nevertheless remains wholly out of touch with reality. Whatever the reason, when politics fails, institutional tolerance of lawbreaking takes over.
There will, of course, always be some lawbreaking that goes unpunished simply because law enforcement is expensive—not every shoplifter is caught, and it's not worth expending the resources to catch every kleptomaniac. But the areas we will look at here are different: What's going on here is that the parties all know the law is being broken, accept it, and—while almost never overtly saying so—both the "criminals" and law enforcement concede that everyone likes it better that way. The law in question thus continues to have a formal existence, and, as we shall see, it may become a kind of zoning ordinance, enforced only against very public or flagrant behavior. But few, except sometimes a vocal minority, actually think we'd be better off if the law were fully enforced.
The importance of understanding why and when we will tolerate lawbreaking cannot be overstated. Lawyers and journalists spend most of their time watching the president, Congress, and the courts as they make law. But tolerance of lawbreaking constitutes one of the nation's other major—yet most poorly understood—ways of creating social and legal policy. Almost as much as the laws that we enact, the lawbreaking to which we shut our eyes reflects how tolerant U.S. society really is to individual or group difference. It forms a major part of our understanding of how the nation deals with what was once called "vice." While messy, strange, hypocritical, and in a sense dishonest, widespread tolerance of lawbreaking forms a critical part of the U.S. legal system as it functions.
The motto of the Web site Erowid Experience Vaults is "You Cannot Deny the Experiences of Others." Erowid is the Web's best known site for recording drug experiences. Thousands of contributors describe in vivid detail their experiences with this or that pharmaceutical, creating something like a Zagat Guide for the discriminating drug user.
Erowid makes for an engaging read, if you've ever wondered what taking PCP is like ("began to feel weird. … my head detached and wriggled itself backward through some plants"). There are some surprises, such as the commonly noted observation that heroin is "overrated." But what's particularly interesting about the Experience Vaults is how many of the drugs reviewed there aren't actually classic "illegal drugs," like heroin or cocaine, but rather pharmaceuticals, like Clonazepam.
That's because over the last two decades, the pharmaceutical industry has developed a full set of substitutes for just about every illegal narcotic we have. Avoiding the highly charged politics of "illegal" drugs, the pharmaceutical industry, doctors, and citizens have thus quietly created the means for Americans to get at substitutes for almost all the drugs banned in the 20th century. Through the magic of tolerated use, it's actually the other drug legalization movement, and it has been much more successful than the one you read about in the papers.
Since 1970 and the beginning of Nixon's war on drugs, the Justice Department has regulated drugs likely to be abused under the Controlled Substances Act, which categorizes such drugs into five "Schedules." Those in Schedule I—the most tightly controlled—are supposed to have a "high potential for abuse," and "no currently accepted medical use in treatment." These drugs cannot be prescribed by a doctor. Those in Schedules II through V can be prescribed, and that is what makes all the difference.
Since the beginning of the war on drugs, the "formal" drug decriminalization movement has focused on trying to change the status of marijuana, often through state referendums. While in the late 1970s and late 1990s advocates were quite hopeful, the extent of real legal change they've achieved must be described as relatively minor. Certainly, several states have passed medical marijuana laws, which provide doctors and patients with an immunity when the drug is used for medical purposes. And some cities, like Seattle, do not arrest people for possessing small amounts. But there's been no significant change in federal drug laws, or in the political conversation surrounding them, in decades. A leading presidential candidate from either party endorsing a "free weed" movement seems unimaginable. And beyond marijuana, the drug legalization movement barely even makes an effort.
That's why drug legalization is happening in a wholly different way. Over the last two decades, the FDA has become increasingly open to drugs designed for the treatment of depression, pain, and anxiety—drugs that are, by their nature, likely to mimic the banned Schedule I narcotics. Part of this is the product of a well-documented relaxation of FDA practice that began under Clinton and has increased under Bush. But another part is the widespread public acceptance of the idea that the effects drug users have always been seeking in their illicit drugs—calmness, lack of pain, and bliss—are now "treatments" as opposed to recreation. We have reached a point at which it's commonly understood that when people snort cocaine because they're depressed or want to function better at work, that's drug trafficking; but taking antidepressants for similar purposes is practicing medicine.
This other drug legalization movement is an example of what theorists call legal avoision. As described by theorist Leon Katz, the idea is to reach "a forbidden outcome … as a by-product of a permitted act." In a classic tax shelter, for instance, you do something perfectly legal (like investing in a business guaranteed to lose money) in order to reach a result that would otherwise be illegal (evading taxes). In the drug context, asking Congress to legalize cocaine or repeal the Controlled Substances Act of 1970 is a fool's errand. But it's far easier to invent a new drug, X, with similar effects to cocaine, and ask the FDA to approve it as a new antidepressant or anxiety treatment. That's avoision in practice.
Are the new pharmaceuticals really substitutes for narcotics? The question, of course, is what counts as a substitute, which can depend not just on chemistry but on how the drug in question is being used. But as a chemical matter the question seems simple: In general, pharmaceuticals do the same things to the brain that the illegal drugs do, though sometimes they do so more gently.
As many have pointed out, drugs like Ritalin and cocaine act in nearly the exact same manner: Both are dopamine enhancers that block the ability of neurons to reabsorb dopamine. As a 2001 paper in the Journal of the American Medical Association concluded, Ritalin "acts much like cocaine." It may go further than that: Another drug with similar effects is nicotine, leading Malcolm Gladwell to speculate in The New Yorker that both Ritalin and cocaine use are our substitutes for smoking cigarettes. "Among adults," wrote Gladwell, "Ritalin is a drug that may fill the void left by nicotine." Anecdotally, when used recreationally, users report that Ritalin makes users alert, focused, and happy with themselves. Or as one satisfied user reports on Erowid, "this is the closest pharmaceutical *high* to street cocaine that I have experienced." In the words of another, "I felt very happy, and very energetic, and I had this feeling like everything was right with the world."
The Ritalin/cocaine intersection is but one example. Other substitutes are opoid-based drugs available in somewhat legalized versions, with names like Vicodin and OxyContin.* Clonazepam and valium may not be exact substitutes for marijuana, but they all seem to attract users seeking the same mellowing effects and loss of some forms of anxiety. In short, the differences between pharmaceuticals and illegal drugs may ultimately be much more social than chemical.
So, as the FDA has licensed chemical substitutes for what were once thought to be dangerous drugs, does that mean roughly the same thing as the legalization of cocaine, marijuana, and heroin? Not exactly. Drugs prescribed are usually taken differently than recreational drugs, of course, even if at some level the chemical hit is the same. More broadly, the current program of drug legalization in the United States is closely and explicitly tied to the strange economics of the U.S. health-care industry. The consequence is that how people get their dopamine or other brain chemicals is ever more explicitly, like the rest of medicine, tied to questions of class.
Antidepressants and anxiety treatments aren't cheap: A fancy drug like Wellbutrin can cost anywhere from $1,000 to $2,400 a year. These drugs also require access to a sympathetic doctor who will issue a prescription. That's why, generally speaking, the new legalization program is for better-off Americans. As the National Center on Addiction and Substance Abuse at Columbia University reports, rich people tend to abuse prescription drugs, while poorer Americans tend to self-medicate with old-fashioned illegal drugs or just get drunk.
The big picture reveals a nation that, let's face it, likes drugs: Expert Joseph Califano estimates that the United States, representing just 4 percent of the world's population, consumes nearly two-thirds of the world's recreational drugs. In pursuit of that habit, the country has, in slow motion, found ways for the better-off parts of society to use drugs without getting near the scary drug laws it promulgated in the 20th century. Our parents and grandparents banned drugs, but the current generation is re-legalizing them. That's why Rush Limbaugh, as a drug user, is in a sense a symbol of our times. He, like many celebrities, is a recovering addict. But with Limbaugh being somewhat outside of the 1960s drug culture, the medical marijuana movement was not for him. Instead, Limbaugh, the addicted culture warrior, has become the true poster child of the new drug legalization program.
Correction, Oct. 15, 2007: The original article suggested these drugs were opium-based. And a punctuation error initially listed Clonazepam and valium as opium-based drugs rather than marijuana substitutes. (Return to the corrected sentence.)
Labels: politics
