By Dave Kopel & Mike Krause. Mr. Kopel is research director of the Independence Institute. Mr. Krause is a scholar there.
National Review Online, April 11, 2001 10:45 a.m. More by Kopel on South America.
America's certification process for determining which countries are doing their part in the international drug "war" turned fifteen this spring, and the certification program is showing its age: experienced enough to know the difference between fantasy and reality, but lacking the self-control to act on that difference.
Senators from both sides of the aisle have been introducing bills to suspend, amend, or otherwise rethink certification. Sen. Kay Bailey Hutchinson of Texas states, "The drug certification ritual results in resentment and is counterproductive." Sen. Joe Biden, an original sponsor of the certification mandate, says that some certification in Latin America should be temporarily suspended because some Latin American officials are "laying their lives on the line" in the drug "war."
Although the purpose of the certification process was to get the drug-producing nations of the world to address the wholesale corruption within their own borders, the tumult surrounding the certification process has turned the spotlight on America's own failure in combating drugs and corruption.
One criticism of the certification process is to point out that the U.S. is the world's largest consumer of drugs. (This is hardly surprising, since the U.S. is the largest consumer of almost every other consumer product, especially expensive ones.) Yet the American government has hardly been slack in attempting to suppress U.S. drug demand. Indeed, when it comes to tossing people in prison for drug crimes, the U.S is second to none.
A new report from the Justice Policy Institute shows that during the eight years of the Clinton administration, the federal prison population roughly doubled, to more than 147,000 as of February 2001. In fact, the federal prison population during Clinton's watch grew more than under the Bush and Reagan years combined, with 58% of those prisoners serving time for drug offenses. State prison populations have also soared, with many state prisons taking in more drug offenders than violent criminals or property felons.
Overall, there are two million Americans in prison, and another 4.5 million on probation or parole. Two million more people work in the prison business — making prison employees (like government school teachers), one of the most powerful lobbies in many state legislatures. Some of the prison-population increase is attributable to sterner attitudes toward violent and property crimes, but the explosive growth of the prison population over the last two decades would have been impossible without the massive incarceration of people for victimless crimes, primarily drug offenses.
While Clinton oversaw a doubling of the federal prison population, the federal black prison population tripled. This has mostly been based on the brutally severe mandatory-minimum sentences for crack cocaine. Mere possession (not sale) of very small amount of crack for personal use — 5 grams (which weighs less than a George Washington quarter) — triggers a 5-year mandatory federal sentence. Unfortunately, the main congressional response to the unfairness of this sentence has been to move toward imposing similarly inappropriate sentences for powdered cocaine.
Yet despite America's "success" in turning the United States into the world's largest jailer (and thus, into the world's largest employer of de facto slave labor), illegal drugs are as available today as they were 15 years ago and both heroin and cocaine are purer and cheaper than when we began the certification process.
One of the original purposes of the certification law was to force other countries to deal with their corruption. Here, the U.S. blew its biggest chance to show some leadership. In July of 2000, U.S. Army Colonel James Hiett, the commander of all Army anti-drug operations in Latin America, was convicted of covering up for his wife's own smuggling operation using the diplomatic mail pouch of the U.S. Embassy in Bogota. Despite the fact that he knew about the smuggling scheme and helped launder the loot, he was charged with the lightest possible crime: misprision of a felony, for failing to report his wife's activities.
Eric Sterling of the Criminal Justice Policy Foundation did an analysis of the crimes that the Colonel could have been convicted of under current federal guidelines:
"If Colonel Hiett had been Mr. Hiett, he would have been charged with conspiracy to traffic in more than a kilogram of heroin with a mandatory minimum sentence of 10 years, with a possibility of life without parole. He would have been charged with possession of a firearm (his army-issued weapons) in the furtherance of drug trafficking, with a mandatory 5 year consecutive sentence. If his weapon were an assault weapon or an automatic weapon (most Army weapons are) he would face a mandatory 10-year, or 30 years on top of the drug sentence. Mr. Hiett would have been charged with money laundering, facing up to 20 years. Mr. Hiett would have been charged at a minimum with aiding and abetting his wife's money laundering, facing 20 years."
What he got was a whopping five months in prison. For all the breast thumping and browbeating for Latin American countries to crack down on drug-related corruption in their police and military, when it came time to walk the walk, American drug warriors at the highest level just didn't have it in them to do to one of their own what the federal government routinely does to low-level dealers, mules, and users. Luis Ernesto, Colombia's National Police Chief, called the sentence "a joke."
But while the federal government may be squeamish about corruption at the highest international level of "drug warriordom" in cities across America, drug-related police corruption is demoralizing police departments and fueling new levels of cynicism and mistrust of law enforcement.
Police corruption in America is difficult to quantify, partly because there is little centralized documentation of locally investigated law-enforcement corruption cases; what data are available on federal investigations are disheartening.
According to a 1998 Government Accounting Office report of 950 FBI-led corruption cases opened against law-enforcement officers between 1993 and 1997, 640 resulted in convictions, with over half being drug-related.
The sheer volume and shocking nature of drug-related police scandals reported over the last decade are reminiscent of Al Capone's prohibition-era Chicago. (One of the reasons that alcohol prohibition was repealed was the intolerable level of police corruption that it produced).
In New Orleans, more than 11 police officers were convicted in a 1994 cocaine-distribution and murder-for-hire scandal. Between 1992 and 1996, 30 police from Manhattan's 30th Precinct were convicted, mostly on drug-related offenses. In Jacksonville, Miami, and Cincinnati, police have pled guilty or been convicted of protecting drug-running operations or of smuggling drugs themselves.
In Los Angeles, the Rampart scandal — the largest police-corruption scandal in American history — was discovered only after an officer was caught stealing cocaine from the evidence locker. The Rampart Division police used drug laws to frame innocent people, and they used drug laws to steal valuable contraband, whose value was mainly a result of those drug laws.
Again in Los Angeles, 27 sheriff's deputies were convicted of skimming millions of dollars in drug money while serving on an "elite narcotics unit." And the list goes on, including Detroit, Chicago, and Washington, D.C.
Offering an explanation for the rationale behind growing drug-war corruption that could just as easily be applied to Mexico, Colombia, or any other country on the certification list, retired San Jose Police Chief Joseph McNamara of the Hoover Institution told the Los Angeles Times "Why should the enemy get to keep all the profits? Guys with modest salaries are suddenly looking at $10,000 or more and they go for it." The consequence of a drug "war" that stretches from Los Angeles to Bogota is to make the United States more like Colombia — not vice versa.
This point was succinctly underscored by Mexican President Vincente Fox. Talking about the bribing of Mexican officials to facilitate smuggling, he noted, "We Mexicans are smart, but not so smart as to be able to smuggle all of those drugs (into the U.S.) ourselves, so there must be some corruption in the United States."
Even if America's own hands were clean, the certification process would still be a painful example of unintended consequences. The supply-side-eradication and interdiction efforts that the certification process forces on other nations (with the threat of reduced aid and trading privileges), amounts to centralized planning by Washington, D.C., on behalf of the economies and cultures of certification countries. Certification has harmed existing democracies and thwarted moves toward democracy and open markets.
Colombia is a prime example. The Cato Institute's Handbook for Congress, which calls for elimination of the certification process, shows the dreadful result. In 1996-97, the Clinton administration de-certified Colombia. To stave off sanctions against lawful industries, Colombia began coca-eradication efforts, which drove many peasants out of business and increased peasant support for guerrillas, who protect drug traffickers in return for money. The result was a new wave of guerrilla violence and a displacement of government authority in large parts of Colombia. This in turn has caused the U.S. to send not just money ($1.3 billion in 2000), but also CIA and Special Forces "trainers" into Colombia to assist in further eradication and interdiction efforts. This is called "Plan Colombia," but a better title would be "Plan Vietnam: Cultivating an Unwinnable Jungle War in South America."
Because fighting Colombian coca growers necessarily means fighting insurgent guerrillas, U.S. drug-war aid is also being used to fight a civil war. As the Cato Handbook puts it, "the U.S.-orchestrated drug war in Colombia has thus weakened civilian rule, strengthened the role of the military and generated financial and popular support for leftist rebel groups."
It might be worth asking whether the United States is helping its long-term interests by destroying free-market democracy in Colombia in a futile effort to protect American cocaine users from their own foolish inclinations. Get rid of cocaine, and American cokeheads will still have dozens of other ways to ruin their lives. Get rid of the democratic government in Colombia, and we'll have Marxist an anti-American government on the mainland of the Western hemisphere.
Another core weakness of eradication policies, which the certification law mandates, is the pricing structure of drugs. The Cato Handbook points out that the production cost of cocaine outside the U.S. is around 3 percent, with smuggling to U.S. borders adding another 10 percent. So: Eradication and interdiction comprise a relatively small part of the cost of doing business for drug traffickers.
That the Colombia farmers receive no more than 3 percent of the street value of cocaine in the U.S. means that the drug importers have a lot of flexibility to increase the price that they pay to farmers. If the pressure from the U.S. military causes trouble for too many farmers, the Colombian traffickers can double or triple the price paid to farmers, without only minor price increases required at the U.S. retail market. With so much flexibility and such enormous profit margins, it is little wonder that narco-traffickers have been able to react to American prohibition policy with relative ease.
Recently, leaders from two Latin nations have broken ranks and publicly discussed decriminalization as a means to end the corruption and violence (and enormous profits) that accompany prohibition. At a November 2000 Iberoamerican Summit of Chiefs of State in Panama City, Uruguay President Jorge Batlle spoke out against "Plan Colombia," asking, "Do you think that as long as that substance (cocaine) has such fantastic market power there could be any mechanism created to prevent its trafficking?" President Batlle continued: "If that little powder were worth only 10 cents, there would be no organization dedicated to raising a billion dollars to finance armies in Colombia."
In December 2000, speaking at Vincente Fox's inauguration in Mexico City, President Batlle observed, "The day it is legalized in the U.S., it will lose value, and if it loses value there will be no profit."
Uruguay is a fairly small voice, but Mexico is another matter. Jorge Castenada, the country's new Foreign Minister, has publicly called not just for and end to America's certification of Mexico, but also for "the decriminalization in the long run of certain currently illegal substances…and the use of market mechanisms to minimize the profits derived from the prohibited character of the drug trade."
President Fox apparently agrees. In a recent interview, when asked if he agrees with Mexican Federal Preventative Police Chief Miguel Torres's claim that decriminalization would "collapse the global drug economy," President Fox affirmed, "that is true." But he added that it wouldn't work unilaterally. "The day when the alternative of freeing drug consumption from punishment comes, it will have to be done throughout the world." The statement leaves plenty of wiggle room, but vividly contrasts with the zero-tolerance blather of President Fox's predecessors.
Perhaps it is not surprising that the new Mexican President, who wants to reduce Mexican corruption rather than profit from it, is backing away from drug laws that guarantee widespread illegal wealth and corruption.
Washington, D.C., is never the first place to realize that a big-government program is a colossal failure. By now, though, even in Washington it ought to be clear that the drug-certification mandate and the international drug war are making America more like Colombia, and Colombia more like Vietnam.
