Harmful Substances, Legal Control of
HARMFUL SUBSTANCES, LEGAL CONTROL OF•••
At the beginning of the twenty-first century, opium, its constituent morphine, and the derivative heroin were viewed with fear and suspicion. As both popular and professional attitudes in the United States turned against drug use in the United States around 1980, physicians began to fear prescribing potentially addictive analgesics, and likewise, patients began to fear taking them. This attitude contrasts sharply with that of one of the leading American physicians in the mid-nineteenth century, George Wood, of the University of Pennsylvania, who wrote in 1868 that opium produces "an exaltation of our better mental qualities, a warmer glow of benevolence, a disposition to do great things, but nobly and beneficently, a higher devotional spirit, and withal a stronger self-reliance, and consciousness of power" (Vol. 1, p. 712).
Clearly, the ethical position a person takes regarding the availability of a drug is affected profoundly by whether that person believes that the drug is risky in any amount or that reasonable doses of the drug are a boon to humankind. These two positions have alternately influenced experts and the public since at least the eighteenth century in English-speaking countries. In times when one of these attitudes has held sway, the opposite ethical position has been dismissed as wrongheaded and refuted both morally and scientifically.
Attitudes toward Alcohol
Alcohol, a drug with a long history of easy availability and widespread consumption in the West, provides instructive examples of these dramatic shifts of opinion and their impact on ethical positions. The history of fermented beverages such as beer and wine goes back millennia, and distilled spirits began to be produced by about 1300 in Europe. For centuries afterward, nearly pure alcohol was produced in small amounts, and extraordinary characteristics were attributed to it. Aqua vitae, as certain distilled alcohol products were termed, was said to prolong life. In its qualities it approached the quintessence, or fifth element (along with earth, air, fire, and water). The "spirit" derived from distillation, according to John French, a seventeenth-century English physician, had wonderful "vertues … for there is no disease, whether inward or outward, that can withstand it"(p. 132).
In England, new scientific data challenged the old beliefs during the "gin epidemic" of the eighteenth century. For the first half of the century a battle raged between the populace—especially in London, where gin was cheaper than an equal volume of beer—and some religious and secular leaders who were appalled by the spiraling number of public drunks, "weak, feeble, and distempered children" (Plant, p. 9), and deaths attributed to the massive and cheap consumption of distilled spirits. Hogarth's print Gin Lane of 1751 captures the social destruction resulting from a substance that once had been thought of as an unadulterated good.
The new view of distilled spirits was incorporated into voluntaristic plans for self-improvement, most notably the religious movement led by John Wesley. In his attempt to revitalize the Church of England and establish a strict morality of behavior, Wesley argued for a distinction between fermented spirits and distilled spirits. He described distilled spirits as "a certain, tho' a slow poison," although he conceded that they might have medicinal uses (Wesley, p.xix). Eventually Wesley's Methodism moved, especially in the United States under the guidance of Wesley's chosen missionary, Francis Asbury, to a rejection of alcohol in any form.
In addition to moral objections, in the United States criticism of alcohol was based upon social and medical observations. Benjamin Rush, perhaps the most distinguished American physician of his time, launched an attack on alcohol that was based on his experiences as a physician in the War of Independence. Rush countered the popular notion that distilled spirits were a healthy means of invigorating soldiers and field workers, and a stimulant to intellectual activity. However, like Wesley, he focused on spirits, not on all forms of alcohol. His pamphlet An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind, written in the 1780s (reprinted in Musto, 2002a, p. 27), was distributed by the thousands throughout the nation and was still being reprinted and distributed four decades later.
TEMPERANCE MOVEMENTS. Later reformers, most notably Lyman Beecher in his monumental Six Sermons on Intemperance (reprinted in Musto, 2002a, p. 44), which first appeared in 1826 (reprinted 1828), adopted a more extreme attitude, condemning not only distilled spirits but all alcoholic beverages. Moderation was no longer recommended as an ideal; instead, it was presented as a dangerous delusion that would draw many people into alcohol abuse. Alcohol itself, Beecher argued, not the amount or type consumed, was an evil.
Thus, the United States experienced a positive attitude toward alcohol consumption in the eighteenth century, followed by a reversal dominated by the image of alcohol as a fundamentally evil substance that led to widespread prohibition in the 1850s. That first peak of prohibition faded under the resentment of the public, the difficulty of enforcement, and the monumental distraction of the Civil War. Later in the nineteenth century, opposition to alcohol revived, centering on the burgeoning urban saloon, a center of political and moral corruption, and a symbol of the rising fear of recent immigrants crowding into the cities. This anti-alcohol campaign was even more successful than the previous crusade, achieving by 1920 a total legal prohibition of alcohol except for sacramental, industrial, and medicinal uses.
AFTER PROHIBITION. After 1933, the year of the repeal of the Eighteenth Amendment, the backlash against Prohibition made advocacy of alcohol control an object of ridicule until about 1980; then another change in attitude toward alcohol—perhaps the beginning of a third temperance movement—once again put the issue of the damaging social consequences of alcohol in the forefront of public concern. In 1984 the federal government established a national drinking age of twenty-one, and since 1989, all containers for beverage alcohol manufactured for sale in the United States have been required by federal law to bear a government label warning against the dangers of alcohol. Since the 1980s state drunk-driving laws have been made much more punitive. Per capita consumption of alcohol, which hit a third historical peak in 1980, has been in a gradual decline since that time.
Attitudes toward Other Drugs
The image of alcohol did not wax and wane in isolation from the public's perception of drugs such as morphine, heroin, and cocaine, although the peaks of their favorable and unfavorable public images did not coincide precisely with those of alcohol. The use of cocaine rose rapidly after its introduction into the United States in the mid-1880s. Not until the Harrison Act of 1914 did the federal government prohibit the sale of cocaine without a prescription. A similar restriction on alcohol, National Prohibition, was enacted five years later, and by the mid-1920s the federal government had moved to eliminate heroin completely as a legally obtainable substance (Musto, 2002b).
When one reviews the history of drugs and alcohol in the United States, it is apparent that the ethical debate and extent of control have been related to the healthy or poisonous image of those powerful substances. Interestingly, neither extreme was buried by the victory of the contrary position. The ascendancy of one point of view seems to have created the conditions for the gradual emergence of the opposite attitude. A further point worth noting is that in the campaign against drugs and alcohol, the American practice has been to condemn them as being without any but the most limited value as medicine, and to hedge any exemption with tight restrictions. The periods of favorable and unfavorable attitudes are rather lengthy compared with the human life span, and so each tends to be seen as the settled opinion of science and society, and the presence or absence of controls seems to be based on what appear to be established premises.
The Control of Drugs and Alcohol
The control of drugs and alcohol involves both practical and philosophical considerations. Practically, a nation or locality has a limited array of controls, and those controls usually depend on the compliance of the public.
EFFECT OF LICENSING AND TAXATION. During the English gin epidemic, Parliament was limited to using a variety of license fees and taxes, which were not always easily enforced, to curb the production of gin. Success in the campaign did not begin to be acknowledged by observers until after 1750, by which time, presumably, the baleful effects of gin and the prolonged campaign against it by reformers had changed public attitudes toward that form of alcohol.
Control of opiates and cocaine initially took a different turn because, by the late nineteenth century, the licensing of physicians and pharmacists had become widespread in the United States. As a result, the first form of control over those drugs, after a period of free access, consisted of making them available by prescription only, although commonly a small amount would be permitted in an over-the-counter remedy. To alert the public, the Pure Food and Drug Act of 1906 required that the amount of drugs in a remedy be included on the label.
During the Progressive Era (approximately 1890–1920), reformers worked to give the central government more power, so that the benefit of uniform national laws could be applied to problems such as tainted meat, adulterated medicines, the destruction of forests, and drug abuse. With regard to drug abuse, the knotty constitutional problem was addressed by basing the Harrison Act of 1914, which was meant to regulate the distribution of opiates and cocaine, on the federal power to tax. Each transaction, from importation to retail purchase, had to be recorded, and a small tax had to be paid. Evasion of that law would be punished as a violation of the tax statutes. The restriction on maintenance doses of opiates for addicts was effected through Treasury Department regulations that were promulgated to carry out the Harrison Act. That part of the regulation was overturned by the U.S. Supreme Court in 1916 as a violation of states' rights, but it was effectively reinstated on another basis by the Court in 1919 during a peak of concern over drug addiction and in the face of the impending prohibition of alcohol.
The impact of alcohol prohibition on the severity of other drug laws illustrates a common factor in the control of drugs that might be called the hydraulic model, which implies that repression of one drug shifts use to another substance. This analysis encourages a blanket control of drugs and is especially popular at times when it is believed that abuse of a particular drug is a sign of an "addictive personality" (as in the late twentieth century) or the affliction of "inebriety" (late nineteenth century). These diagnoses suggest that the afflicted individual is pressured to use alcohol and drugs, and that if one substance is not available, he or she will switch to another.
EFFECTIVENESS OF DRUG CONTROL MEASURES. The question of "availability" raises the controversial issue of the effectiveness of control measures. Do laws against drugs accomplish much more than raising the price of drugs? Can prescription controls or international interdiction reduce the supply of drugs? Can prohibition reduce the supply of alcohol? The answers to these questions are elusive, but one can say that in general the reduction in drug and alcohol use that accompanied the restrictions in the United States beginning with World War I (and ending with the start of a second drug epidemic in the 1960s) occurred during a period of extraordinary antagonism toward drugs. Drugs came under progressively more severe laws, with the exception of alcohol, whose prohibition was repealed in 1933. Confidence in legal control was reinforced by the obvious decline in drug use, and alcohol consumption fell from 1.7 U.S. gallons per capita in 1910, to about 0.6 gallons between 1920 and 1930, and did not return to the 1910 level until the mid-1960s (Rorabaugh, p. 232). Anti-drug legislation became increasingly severe, even after Prohibition was repealed in 1933, including mandatory minimum sentences and, in 1956, federal enactment of the death penalty as an option in some cases of drug trafficking.
To understand the doubts concerning legal sanctions in the late-twentieth-century drug "epidemic," it is necessary to compare the two drug epidemics. During the first wave of drug use, laws did not exist until the public's fear demanded them. The more recent wave of drug use found the most severe drug laws in effect at a time when a favorable attitude toward drug use was spreading across many sectors of American life. The apparent weakness in the enforcement of these laws, their clash with a new attitude among experts and the public, and the failure to recall the earlier experience with drugs led to ridicule and comfortable evasion of the law. A renewed harmony between anti-drug attitudes and anti-drug laws followed in the 1980s and later.
In the 1930s, at the end of the epidemic that peaked at about the time of World War I, the United States, after requiring general anti-drug and anti-alcohol education through state laws, adopted a policy of silence regarding drugs. When silence was not possible, exaggeration was instituted to complement the increasing severity of the drug laws. That policy may account for the loss of public memory of that early "epidemic"; the style of calling any drug use fraught with extreme danger (for the purpose of discouraging experimentation) contributed to the lack of balanced knowledge about drugs that characterized both adults and youth in the 1960s. The ultimate effect of the policy was to undercut the credibility of official statements on drug use.
In addition to the issue of changes in attitudes toward drugs and the practical problem of what control mechanisms exist, there is the broader question of control philosophy. Should drugs be controlled at all? Should the state try to protect citizens from their own desire to use drugs? Is drug control a law-enforcement problem, a public-health task, or a moral or religious issue? For Beecher (1828), alcohol had to be controlled because, whereas drunkenness ruined health and family life, it also impaired the individual's ability to hear and respond to God's message of salvation. Alcohol produced temporal death and eternal damnation.
Beecher's British contemporary John Stuart Mill rejected American prohibition laws and similar restrictions on the buyers of alcohol as an unjustified interference with liberty. Mill was particularly harsh on actions designed to protect individuals from themselves. To questions of policy he applied this prime principal: "Over himself, over his own body and mind, the individual is sovereign" (p. 11).
The debate between law-enforcement and public-health approaches to drug and alcohol abuse is particularly sensitive to public attitudes toward the nature of the drugs themselves. In an era of drug toleration, public-health methods and medical treatment in general are advocated and practiced. The concern is not so much with a drug itself as with the bad effects that it may have on an unwise or excessive user. As the attitude turns against the use of drugs in any amount, frustration and anger support police action, arrests, and punishments for violations of a strict rejection of drug use that leaves no room for recreational drug use.
The War against Drugs
The nature of the American drug experience changed quickly in the mid-1960s. The use of illegal drugs, which had existed at the fringes of society for more than three decades, moved to the center of youth culture. The drugs of choice were cannabis and other psychedelics, such as LSD. Advocates claimed that using those substances gave a person an experience of ultimate reality, a kind of insight that saints had achieved only after lengthy meditation and asceticism. Aldous Huxley gave an early cachet to psychedelic use with two accounts, The Doors of Perception (1954) and Heaven and Hell (1956), based on his use of mescaline. Huxley believed, however, that such experiences were best confined to an intellectual elite. In the 1960s Timothy Leary expanded that concept in the 1960s to include everyone. "Turn on, tune in, and drop out" was his advice to America. A striking example of faith in the drug revolution was Charles Reich's The Greening of America (1970), which saw marijuana as the "truth serum" that would create a new consciousness and a new society.
Passage of the Drug Control Amendments of 1965—an early response to the use of psychedelics, stimulants such as amphetamine, and sleeping medications such as barbiturates—was intended to restrict licit pharmaceutical production. Legal production of amphetamines was reduced from 100,000 pounds annually to less than 1,000 pounds by 1990. By 2002 the amount had risen to 20,000 pounds, largely as a result of the use of amphetamines in treating hyperactive children. The basis of anti-drug laws beginning in 1965 was shifted from the taxing power of the federal government to the Interstate Commerce Clause, a precedent that would be followed in the future.
Another significant element in the 1965 law was the creation, within the U.S. Food and Drug Administration, of the Bureau of Drug Abuse Control (BDAC), which would have as its targets all dangerous drugs except the opiates, cocaine, and marijuana; those traditional substances continued to be the province of the U.S. Treasury's Bureau of Narcotics. Then, because separating out the turfs of the two control agencies proved difficult, they were merged in 1968 as the Bureau of Narcotics and Dangerous Drugs (BNDD) and moved from the U.S. Treasury Department and the U.S. Department of Health, Education, and Welfare Department to the U.S. Department of Justice.
The Nixon administration (1969–1974) confronted growing public alarm over rising drug use among youth and, in response, created the basic element of the war on drugs that continues to the present (Musto and Korsmeyer). One of the Nixon administration's major goals was to reduce crime. Persuaded by the successful record of methadone treatment in the District of Columbia that indicated adopting such treatment could lower crime rates, Nixon gradually came to favor the use of methadone as a substitute for the illegal opiates used by addicts. The fact that Nixon, who was known to have a visceral antagonism to drug use, would initiate a national policy of substituting a legal addiction for an illegal one surprised many people.
Out of the Nixon era came the first "drug czar"; the first federal strategy (1972) that attempted to coordinate all federal anti-drug efforts; the creation of the Drug Enforcement Administration (DEA), the successor to the BNDD and the Office of Drug Abuse Law Enforcement (a temporary effort by the federal government to affect local drug dealers); and the National Institute on Drug Abuse (NIDA).
Under Nixon the budget to fight drugs rose to heights never before attained in the federal government; thousands of additional BNDD and DEA agents were trained and were placed internationally as well as nationally. Nevertheless, throughout the Nixon era the American people grew more tolerant of the use of drugs, particularly cannabis. Public opinion did not turn against drugs until about 1980, at the end of Jimmy Carter's presidency. The 1970 Drug Abuse Prevention and Control Act reflected a liberalization of the drug laws through the elimination of mandatory minimum sentences and a provision for clearing the record of an individual convicted of personal possession of cannabis. Although Nixon would seek a resumption of mandatory minimum sentences in 1974, as his administration was collapsing, that punishment was not resurrected until the Anti-Drug Abuse Acts of 1986 and 1988.
Perhaps the most alarming change in drug use habits in the 1970s and 1980s was the use of "crack" cocaine, a method that allows the user to inhale cocaine fumes and results in an intense brain response. The deaths of prominent sports figures from cocaine use crystallized public opinion against drugs and led Congress and a series of presidents to wage a war on drugs that was unprecedented in American history. Drug law convictions crowded prisons and caused a backlash to the anti-drug campaign.
In the era of increased drug use that started about 1965, an attack on prohibitory laws began with criticism of the extraordinarily long sentences meted out to persons who possessed small amounts of marijuana. By 1970 the federal law had been softened and advocates of legalizing marijuana were organized. With the rise in cocaine and heroin use, many people called for legalizing or "decriminalizing" those drugs on the grounds that their dangers had been exaggerated. In 1972 the term decriminalization was proposed in the first report of the U.S. Commission on Marihuana and Drug Abuse as a compromise between arresting persons with small amounts of marijuana for personal use, and allowing a free market in marijuana. Decriminalization would allow use while still permitting a national policy warning against the drug and maintaining legal sanctions against those who produced and distributed large amounts of the plant.
Libertarians, such as the economist Milton Friedman, added a philosophy of freedom from state interference in private acts, such as drug use, to the debate over controls. Although the public has been increasingly opposed to drug use (reflected also in reduced consumption of tobacco and alcohol) and in favor of strict anti-drug laws since about 1980, analyses questioning the campaign against drugs have continued (Friedman).
Opposition to the "war against drugs" has centered on two themes: interdiction of drugs from foreign nations and domestic enforcement of stricter anti-drug laws. Critics have argued that interdiction has not affected the availability of drugs, especially cocaine, the chief target of the U.S. Coast Guard and the other "uniformed" services as well as the U.S. Drug Enforcement Administration. With regard to domestic policy, application of harsh criminal penalties to drug offenders is condemned as a source of prison crowding that does little or nothing to reduce crime or hard-core drug use.
A recent suggestion offered by those opposed to over-reliance on the criminal justice approach is "harm reduction," a phrase that attempts to describe Dutch drug policy. The Netherlands is noted for allowing personal use of drugs, providing sterile needles to drug injectors, and generally tolerating drug availability. The expectation is that in the long run this policy will allow more users to survive and experience a life less dominated by, or free from, drug use.
Criticism of any policy that would appear to encourage or facilitate drug use has been severe. Arguments against legalization include the observation that laws pressure users into treatment, the symbolic importance of an anti-drug policy, and the fear that drug use would increase if drugs were easily available and inexpensive.
The history of drug and alcohol control illustrates the slowly shifting assumptions societies make regarding those powerful substances. At the extreme of each attitude the good or evil nature of drugs seems so obvious that contrary notions are rejected with dispatch. Consequently, the ethical debate is deeply influenced by these alterations in attitude. These contrary positions also make an indefinitely sustainable drug policy difficult to frame.
david f. musto (1995)
revised by author
SEE ALSO: Addiction and Dependence; Alcohol and Other Drugs in a Public Health Context; Alcoholism; Bioterrorism; Environmental Ethics; Hazardous Wastes and Toxic Substances; Smoking
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