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Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom

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Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom South Carolina Law Review Volume 62 Issue 2 Article 3 Winter 2010 Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom Richard C. Boldt University of Maryland Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation Richard C. Boldt, Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom, 62 S. C. L. Rev. 261 (2010). This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Boldt: Drug Policy in Context: Rhetoric and Practice in the United State DRUG POLICY IN CONTEXT: RHETORIC AND PRACTICE IN THE UNITED STATES AND THE UNITED KINGDOM RICHARD C. BOLDT* I. THE LEGAL AND SOCIAL HISTORY OF DRUGS, DRUG ABUSE, AND DRUG CONTROL IN THE UNITED STATES.................................................... 265 A . Early H istory ....................................................................................... 269 B. The Supreme Court Weighs In ............................................................ 278 C. The Anslinger Years and the War on Drugs........................................ 285 II. DRUG PROHIBITION AND THE SOCIAL NEGOTIATION OF NORMS ............... 291 A. The ConsequentialistBasis for Drug Prohibition............................... 292 B. Legal Moralism and Drug Prohibition............................................... 296 III. THE LEGAL, MEDICAL, AND SOCIAL REGULATION OF DRUGS IN THE U NITED K INGDOM ...................................................................................... 309 A. Overview of the History of British Drug Policy.................................. 309 B. Underlying Cultural,Economic, and PoliticalFactors That Have Contributedto the "Criminalization" of British Drug Policy ............ 330 IV. THE INCOMPLETE CONVERGENCE OF DRUG POLICY IN THE UNITED STATES AND THE UNITED KINGDOM............................................. 336 A. Recent Developments in United States Drug Policy ........................... 338 B. M oralAnchoring.................................................................................347 Writing in 1962, Edwin Schur, a careful observer of drug policy in Britain and the United States, characterized as "rather startling" the different paths taken by the two countries with respect to the regulation of narcotics and the treatment of narcotics addiction. At least until the latter decades of the twentieth century, Professor of Law, University of Maryland School of Law. I thank Eileen Canfield, Danielle Citron, Phyllis Goldfarb, Leslie Meltzer Henry, and Gordon Young for their helpful comments on an earlier draft of this Article. Thanks also to Diane Hoffmann, Pamela Lichty, and Ellen Weber for helping me to develop the ideas and frame the analysis contained in this work, and to Susan McCarty for her careful research assistance. This project was supported by a research grant from the Unversity of Maryland School of Law. 1. EDWIN M. SCHUR, NARCOTIC ADDICTION IN BRITAIN AND AMERICA 69 (3d prtg. 1966). In everyday discussion, the term "narcotics" is often used interchangeably with the term "drugs." TROY DUSTER, THE LEGISLATION OF MORALITY: LAW, DRUGS, AND MORAL JUDGMENT 30 (1970). Technically, a narcotic is a substance that dulls the senses or produces sleep, SCHUR, supra, at 17, but the term most often is used to refer "to opium and its derivatives, especially morphine and heroin," and to the active element of coca, which is cocaine. DUSTER, supra, at 30-31. Coffee, 261 Published by Scholar Commons, 1 South Carolina Law Review, Vol. 62, Iss. 2 [], Art. 3 262 SOUTH CAROLINA LAW REVIEW [VOL. 62: 261 drug policy in Britain was heavily influenced by the recommendations contained in a report issued in 1924 by a committee of medical experts led by Sir Humphry Rolleston. The Rolleston Committee had advised that addiction to morphine and heroin should "be regarded as a manifestation of disease and not as a mere form[] of vicious indulgence." 3 The British "regarded [the addict] as a sick person in need of medical care and not as a criminal to be hounded by the Police."4 Consistent with the Rolleston Committee's perspective, the nature of legal regulation and practice in the United Kingdom until fairly recently has been pragmatic, therapeutic in its orientation, and respectful of the central role held by physicians in dealing with the issue of drugs and drug abuse. By contrast, the approach in the United States has been dominated by a criminal law enforcement focus that has reposed responsibility largely in the hands of law enforcement officials. 6 In Schur's words: The medical profession in Britain, ... has taken a positive stand in support of its basic responsibility for the treatment of addiction. This stand has been an important factor in the continuance of Britain's medical approach. In contrast, American doctors have by their relative apathy contributed to the persistence of this country's punitive approach. The trajectory of drug policy in the United States was set by the passage of the Harrison Narcotics Act of 1914,8 which first brought criminal prohibitions into this field,9 and by a series of U.S. Supreme Court decisions interpreting that statute to limit the discretion of physicians to treat addicts with maintenance alcohol, tobacco, hemp, and other substances often used for therapeutic purposes such as amphetamines, barbiturates, and anabolic steroids, are all drugs in the broad sense, but the drugs that have "most dominated and colored the American conception of narcotics" are the opium-based substances and cocaine, id. at 6, and that is the usage intended in this Article. 2. SCHUR, supra note 1, at 71. 3. U.K. MINISTRY OF HEALTH, DEPARTMENTAL COMM. ON MORPHINE & HEROIN ADDICTION, REPORT 31 (1926) [hereinafter ROLLESTON COMM. REPORT]. 4. SCHUR, supra note 1, at 71 (quoting Jeffrey Bishop, A Commentary on the Management and Treatment ofDrug Addicts in the United Kingdom, in MARIE NYSWANDER, THE DRUG ADDICT AS A PATIENT 149, 150 (1956)) (internal quotation marks omitted). 5. See NORVAL MORRIS & GORDON HAWKINS, The Overreach of the CriminalLaw, in THE HONEST POLITICIAN'S GUIDE TO CRIME CONTROL 1, 9 (1970). 6. See id. at 8-9. 7. SCHUR, supra note 1, at 202. 8. Harrison Narcotics Act of 1914, Pub. L. No. 63-223, 38 Stat. 785, repealed by Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-971 (2006). 9. See JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 28 (2001) [hereinafter NOLAN, REINVENTING JUSTICE]. https://scholarcommons.sc.edu/sclr/vol62/iss2/3 2 Boldt: Drug Policy in Context: Rhetoric and Practice in the United State 2010] DRUG POLICY IN CONTEXT 263 doses of narcotics.10 U.S. drug policy was also influenced by the hard-headed perspective of government enforcement officials such as Harry J. Anslinger, who served for decades as the Commissioner of Narcotics in the Treasury Department." At the core of Anslinger's philosophy was an "insistence on the idea that addicts are bad characters and that addiction essentially is a police problem ... ."12 In light of this moral judgment about narcotics users, the position of officials in the federal government that doctors should not be permitted to prescribe narcotics to maintain addicts was also framed in moralistic terms. 13 Thus, a Senate committee report from the 1950s asserted that "it would be absolutely immoral to give in to drug addiction" and that the government "should not adopt any program to give the drug addict 'sustaining' doses of narcotics."14 Although moral disapproval may have been directed toward narcotics misuse in the United States in the nineteenth century, such judgments probably did not function as an absolute or totalizing moral characterization of users until some time after passage of the Harrison Act.15 This intense moral disapproval was reflected in drug policy adopted following World War II and in the "War on Drugs" that began in the Nixon administration.16 That policy, in turn, has reinforced and sustained the social opprobrium that has marked drug use and drug users. It may be tempting to think of the history of drug policy in Britain and the United States as distinct perfect types, the former a nonjudgmental medical approach and the latter a morally tinged criminal prohibition approach. 10. See Webb v. United States, 249 U.S. 96, 99-100 (1919); United States v. Doremus, 249 U.S. 86, 94 (1919); United States v. Jin Fuey Moy, 241 U.S. 394, 402 (1916). 11. See SCHUR, supra note 1, at 43, 196-98 (quoting Stanley Meisler, Federal Narcotics Czar, NATION, Feb. 20, 1960, at 159, 162). 12. Id. at 192. 13. The words "moral," "morality," and "moralistic" carry a wide range of different meanings, depending upon the context in which they are used. Duster suggests that generally "morality refers to the strong feelings which people have about right and wrong." DUSTER, supra note 1, at 4. These feelings (and beliefs) can be a function of the individual's "personality system," the community or social group's collective normative commitments, or the broader "cultural system," within which both the individual and the group are embedded. Id. at 80 (citing TOWARD A GENERAL THEORY OF ACTION 116 (Talcott Parsons & Edward A. Shils eds., Harper Torchbook 1962) (1951)). Moral judgments may be rooted in deontological commitments, or they may be founded on consequentialist considerations, or both. See infra note 256 and accompanying text. The enforcement of moral norms as positive legal obligations, in turn, can be seen in deontological or consequentialist terms as well. See infra note 256 and accompanying text. A consideration of the variety of deontological and consequentialist claims supporting the enforcement of legal prohibitions against the use of narcotics is taken up in Part II. 14. SCHUR, supra note 1, at 195 (quoting S. COMM. ON THE JUDICIARY, SUBCOMM. ON IMPROVEMENTS IN THE FED. CRIMINAL CODE, 84TH CONGRESS, 2D SESSION, REP. ON THE TREATMENT AND REHABILITATION OF NARCOTIC ADDICTS 9, 12 (1956)). 15. See infra Part I.A.
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