Sign the Resolution for a Federal Commission on Drug Policy
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President's Commission on Organized Crime, 1986
Note from Cliff Schaffer:
This chapter is a summary of some of the major events in American drug prohibition. What is most interesting about this chapter is what it leaves out. For example, elsewhere in these pages you will find numerous historical references to the racial motives behind these laws. In this chapter, there is only a passing reference to an opium law restricting trade by the Chinese.
In addition, the chapter spends a good deal of time talking about President Nixon's administration and the reorganization which took place, but fails to mention that Nixon commissioned the largest study of drug policy in American history, which disagreed with his policy.
Federal Drug Strategy: Origins, Evolution, and Current Status
The Federal response to the national problems of drug abuse and drug trafficking over the years has been both dynamic and characterized by frustration. Drug use and its concomitant organized crime effects continue to challenge the Nation to develop a more effective and sophisticated response. Typically, a particular Federal enforcement reaction to drug abuse and drug trafficking has prompted drug traffickers and drug abusers to take defensive actions, which in turn have required new or different governmental responses. This reactive process has been particularly characteristic of the Federal effort over the last two decades.
The history of Federal drug policy that follows demonstrates that approaches to reduce supply have been the preferred and dominant Federal response over the last 75 years. It is only relatively recently that the nature of the drug supply-demand dynamic has become widely understood, leading to an increased appreciation for and emphasis on programs to reduce demand, and that there is still no consensus on what the role of the Federal government in the national campaign against drug trafficking and drug abuse should be.
The Early Years
Although use of drugs has been viewed by many Americans as a medical problem or a personal moral shortcoming throughout this country's history, laws regulating or proscribing such use are of relatively recent vintage. The first significant piece of prohibitory legislation relating to drugs in the United States was an ordinance enacted in 1875 by the city of San Francisco prohibiting the operation of opium dens, commercial establishments in which the smoking of opium occurred. One western state after another followed San Francisco's lead and enacted legislation prohibiting opium smoking. Within eight years of the passage of the San Francisco ordinance, Congress raised the tariff on smoking opium, which was a relatively mild form of opium, from $6 to $10 a pound; the tariff on opium had first been imposed in 1842. In 1887, apparently in response to obligations imposed upon the United States by a Chinese-American commercial treaty negotiated in 1880, Congress prohibited the importation of smoking opium by Chinese subjects. Despite these first legislative efforts, the incidence of drug use and addiction increased, as did societal concern and illegal drug smuggling.
Although estimates concerning the number of drug addicts during the 50 years prior to the passage of drug legislation in 1914 are inherently suspect, the available information suggests that drug abuse during that period was a "major medico-social problem." In fact, by 1909, the United States was confronted with a significant and growing drug problem. The increased opiate use and addiction in the United States subsequent to the Civil War has been attributed to several factors, including the indiscriminate use of morphine to treat battlefield casualties during the Civil War. The increase in morphine addiction was such that the phrase "army disease" was used to describe the drug use among ex-soldiers. The widespread administration of morphine by hypodermic syringe also contributed to the increase in opiate abuse. Other circumstances, which exacerbated the situation during the period of 1865-1914, included the spread of opium smoking from Chinese immigrants to American citizens, the use of opium and its derivatives by the American patent medicine industry, and the marketing of heroin beginning in 1898 as a safe, powerful, and non-addictive substitute for the opium derivatives morphine and codeine.
The American Opium Commission, established by an Act of Congress in early 1908, investigated domestic opium use during that year. In response to the results of this investigation, Congress passed "An Act to Prohibit the Importation and Use of Opium for Other Than Medicinal Purposes" in 1909, which among other things, permitted the importation of opium for medicinal purposes but only to 12 ports of entry. However, it did not regulate domestic opium production and manufacture or the interstate shipment of opium products:
Opium products were still available without a physician's prescription and were being marketed throughout the country through retail outlets and a growing mail order trade.
Another motivation for the passage of the 1909 Act was the realization that the United States could not continue to advocate measures to ameliorate the opium problem in the Far East without taking serious steps to deal with its own "home problem." Although considered a necessary first step, the 1909 Act was subsequently adjudged to be seriously defective in that it "contain[ed] no provision against the possible intrastate manufacture of smoking opium. It [did] no more than exclude this form of the drug from the United States." Because few States had effective laws against the manufacture of smoking opium in addition to the proscriptions on its sale and use, that gap could frustrate the objectives of Federal and State laws.
Shortly before the enactment of the Act of 1909 an International Opium Commission, consisting of the representatives of 13 nations was convened in Shanghai at the initiative of the United States. The Shanghai Commission has been described as the "first international effort at the solution of the opium problem." Although originally conceived of as an organization for investigating Far East opium use and trafficking, the Shanghai Commission was transformed into a body for examining worldwide opium use and trafficking because opium addiction had spread to other parts of the world, especially to the United States, and because producer countries were not restricted to the Far East. The Shanghai Convention unanimously adopted several resolutions for consideration by the governments of the participating nations, including the following three:
(1) Consider the desirability of reviewing each country's system of regulation of the use of opium in light of the discrepancies among countries' regulatory systems;
(2) Adopt measures to prevent the exporting of opium and its derivatives to countries which prohibit the importation of such items; and
(3) Take measures for the gradual suppression of opium smoking in each country's own territories and possessions.
Because of the unanimity achieved by the Shanghai Commission, the United States on September 1, 1909, proposed to the other participating countries that an international conference be held to "conventionalize the resolutions adopted at Shanghai and their necessary consequences." The conference, which was held at The Hague, began on December 1, 1911, and resulted in the signing of the International Opium Convention on January 23, 1912. The Convention was ratified by the United States Senate on October 18, 1913. The International Opium Convention committed its signatories to the enactment of laws designed to suppress the "abuse of opium, morphine, cocaine as well as drugs prepared or derived from these substances . . . In response to this international obligation and to domestic considerations, the United States passed the Harrison Act on December 17, 1914 (Ch. 1, 38 Stat. 785) , which "became the cornerstone of domestic narcotics policy" for nearly 65 years.
The Harrison Act: 1914-1936, Early Years of Enforcement
Section 1 of the Harrison Act provided that any person who was in the business of dealing in the covered drugs was required to register annually and to pay a special annual tax of one dollar. Section 2 made it illegal for any person to sell or in any way to give away any of the covered drugs, except pursuant to the written order of the person to whom the drug was being sold or given; the written order was required to be on a form issued by the Commissioner of Internal Revenue. Section 4 made it unlawful for anyone who had not previously registered and paid the special tax, required by Section 1 of the Act, to engage in interstate trafficking in the drugs listed. With the exception of employees of registrants and patients of physicians and dentists, Section 8 prohibited the possession of any of the drugs covered by the Act by any person who had not registered and paid the special tax imposed by Section I. Section 9 provided that the punishment for any violation of the Act was to be not more than $2,000 or not more than 5 years in prison or both. Finally, Section 10 gave the Commissioner of Internal Revenue, subject to the approval of the Secretary of the Treasury, the responsibility for enforcing the Act.
The history of enforcement under the Harrison Act was tremendously affected by Congress' chosen source of authority for the legislation, its constitutional power to lay and collect taxes. The principle of Federalism and the related concept of the States' police power were effective constraints on the scope of the Federal government's powers at the time of the Harrison Act, hence the use of the constitutional authority to tax to regulate drug-related activity.
Because the Harrison Act was superficially a measure designed to raise revenue, its stated purpose dictated that the enforcement of the Statute be the responsibility of the Treasury Department and, by the statute's own terms, of the Commissioner of Internal Revenue. Despite its revenue-raising veneer, its regulatory purpose was acknowledged from the beginning:
Certain individuals viewed the Harrison Act as a rational way to limit addiction and drug abuse through taxation and regulation. It was a regulatory device which, according to the American opium Commission, "would bring the whole traffic and use of these drugs into the light of day and, therefore, create a public opinion against the use of them that would be more important, perhaps, than the Act itself" (Dr. Hamilton Wright, American Opium Commission). The Act was heralded as a method of drug abuse control and as a public awareness tool.
The history of early enforcement efforts under the Harrison Act, and of the nation's drug abuse problem and policy generally, was affected in no small degree by a series of Supreme Court decisions that were handed down during the decade immediately following passage of the Act.
The Supreme Court sustained the constitutionality of the Harrison Act in United States v. Doremus. In deciding the issues raised by the Government's appeal of the dismissal of the indictment against a physician who had been registered under the Act, the Supreme Court set forth general principles that governed its resolution of the issues:
If the legislation enacted has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed motives which induced it.
* * *
The Act may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue. If the legislation is within the taxing authority of Congress - that is sufficient to sustain it.
The Supreme Court sustained the constitutionality of Section 2 of the Act on the ground that it did relate to the raising of revenue.
On the same day that the Supreme Court decided Doremus, it also answered in Webb v. United States the following question in the negative: whether an order for morphine, which is issued by a physician to a habitual user who is not under his professional care and which is issued not for the purpose of curing the habit but for maintenance, is a "prescription." It did so because it concluded that "to call such an order . . . a physician's prescription would be so plain a perversion of meaning that no discussion of the subject is required."
The Court extended its Webb Ruling in United States v. Behrman by holding that an order issued by a physician for large doses of proscribed drugs, which were not prescribed for the purpose of treating a condition other than the addiction itself and which were to be self-administered by the addict, to a person, who was addicted and who was under the physician's personal care, constituted a violation of the Harrison Act. In doing so, the Court implicitly agreed with the district judge that "prescriptions in the regular course of practice did not include the indiscriminate doling out of narcotics in such quantity to addicts as charged in the indictments."
The Harrison Act, as construed by the Supreme Court, was the statutory framework within which Federal drug strategies were devised and implemented over the next half-century. However, early enforcement efforts and priorities under the Harrison Act did have somewhat unintended and undesirable consequences.
As noted previously, the responsibility for enforcement of the Harrison Act was given initially to the Commissioner of Revenue, subject to review by the Secretary of the Treasury. In 1915, 162 collectors and agents in the Miscellaneous Division of the Internal Revenue Service were given the responsibility under the Harrison Act for restricting the sale of proscribed drugs. Meanwhile, the administration and enforcement of the National Prohibition or the Volstead Act, which was adopted to enforce the Eighteenth Amendment, was committed to the Commissioner of Internal Revenue who created a prohibition unit. Because it seemed logical to place responsibility for enforcement of the Harrison Act within this Prohibition Unit, a Narcotics Division was created in that unit in 1919 with a staff of 170 agents and an appropriation of $270,000. This organizational unit for the enforcement of the Harrison Act existed until April 1, 1927, when legislation creating a Bureau of Prohibition and a Bureau of Customs, to be headed by Commissioners, within the Department of Treasury, was enacted. The 1927 legislation also transferred to the Secretary of the Treasury all powers and duties that had been conferred by the revenue and prohibition laws upon the Commissioner of Revenue relating to intoxicating liquors and narcotics. In addition, the Secretary was authorized to delegate such powers and duties to the Commissioners of Prohibition and Internal Revenue. The enforcement of the narcotics laws subsequently was delegated to a narcotics unit under the direction of the Deputy Commissioner of Prohibition.
Enforcement efforts under the Harrison Act from 1914 through 1929 were controversial. Following the expansive constructions of the Harrison Act by the Supreme Court in Doremus, Webb, and Behrman, thousands of additional prosecutions were undertaken as a result of investigations conducted by agents of the Narcotics Division of the Prohibition Unit. It has been estimated that over 50,000 individuals, including many physicians and others who were required to register under the Act, were charged with violating the Act during the period of 1914-1922. After this initial burst of arrest activity directed against registrants, the Narcotics Division turned its attention to closing clinics that had been established to conduct research and treat large numbers of addicts who could not afford private care. Because of pressure by the American Medical Association, which had initially welcomed the Harrison Act but which later came to view the actions of the Narcotics Division as harassment and an improper Federal intrusion into the practice of medicine, the Department of the Treasury encouraged its agents to focus on the "blatantly illegal importation and sale of narcotics."
Despite this change in enforcement direction, the earlier enforcement focus had a damaging, long-term impact. Because of the mere threat of prosecution under the Act, the "interest of physicians in these cases [of narcotic addiction]" declined and "they even began to refuse to prescribe." In closing the clinics, which had been established to treat those who were unable to afford private care, the Federal government may have impeded - albeit unintentionally - research into narcotic effects, use and addiction and as a result interfered with the development of efficacious medical treatment. Finally, the Federal government's early success in decreasing the supply of narcotic drugs from licit sources, i.e., registrants, to drug users forced those users to seek out illicit sources of supply.
The history of enforcement of the Harrison Act during the fifteen years following its enactment illustrates the operation of a principle that has been validated repeatedly since that tine: drug demand will result in the creation of supply channels to satisfy the demand. An effective drug abuse policy requires a systematic and long-term demand reduction component; unfortunately, there was no such component of the Federal policy in the more than 50 years following the enactment of the Harrison Act.
Enforcement efforts were burdened, however, by public dissatisfaction with the activities of the Narcotics Division, which was tainted by its association with the country's anti-liquor laws. The public dissatisfaction intensified because of a scandal involving falsification of arrest records and charges relating to payoffs by, and collusion with, drug dealers. In response, Congress removed the responsibility for enforcing the Federal drug laws from the Bureau of Prohibition, which was itself incorporated into the Department of Justice. Drug enforcement was transferred in 1930 to a newly created Federal Bureau of Narcotics (FBN) within the Department of the Treasury, which was headed by a Commissioner of Narcotics. Although the FBN was primarily responsible for the enforcement of the Harrison Act and related drug laws, the task of preventing and interdicting the illegal importation and smuggling of drugs remained with the Bureau of Customs. With one major exception to be discussed at the beginning of the next section, the Federal statutory and organizational structure relating to narcotics that existed on July 1, 1930, remained in place for the next 35 years.
1937-1969: Intensification of Pressure for Change in Federal Drug Policy
Marijuana was not made subject to the Harrison Act or to the Narcotic Drugs Import and Export Act (the Jones-Miller Act) because it was not viewed as a particularly dangerous drug. In addition, because of its use in the making of rope, twine, veterinary medicines, and other products, marijuana's commercial value was thought to outweigh any deleterious effects from its abuse. However, as marijuana use became widespread in America, concern about its use also spread. Due to the efforts of a "small but vocal group of crusaders," the States began to pass legislation to prohibit all marijuana-related activity. By 1931, "all but two states West of the Mississippi and several more in the East had enacted prohibitory legislation making it a criminal offense to possess or use the drug." The FBN initially minimized the dangers of marijuana use, and in its 1932 annual report, it instead urged the States to adopt a Uniform State Narcotics Law. Such a law was drafted in 1932, and it included an optional marijuana provision.
By 1937 every state had prohibited marijuana use. However, faced with continuing intensive lobbying efforts, the FBN did become an "ardent supporter" of marijuana legislation, which finally was embodied in the Marihuana Tax Act 1937.
The Marihuana Tax Act was nominally a revenue measure patterned after the Harrison Narcotic Act. It required that any person whose business related to marijuana to register and pay a special tax. In addition, the transference of marijuana had to be pursuant to a written order on a form issued by the Secretary of the Treasury and the transferee was required to pay a tax of $1.00/ounce if he had registered and $100.00/ounce if he had not. Finally, the Act made the transferor liable for the transfer tax if a transfer were made without an order form and without payment of the tax by the transferee.
From the late 1930's through the 1950's, the FBN's enforcement efforts were directed almost exclusively at disrupting the illegal importation of drugs into this country and to making cases against distributors and dealers. Indeed, in 1942 the FBN recognized that it was necessary to eradicate crops in Mexico if its interdiction efforts were to achieve greater success. In that same year Congress enacted the Opium Poppy Control Act of 1942, which, among other things, prohibited the domestic production of the poppy without FBN permission.
During a great part of this period the FBN was handicapped to some degree by a shortage of agents and inadequate budgets. In the Spring of 1956, a Congressional Committee found that:
[FBN] is one of the few Federal agencies whose personnel and funds have not been increased to reflect population growth and greater responsibility. Over a period of 25 years, the Federal narcotic laws have been enforced with a force of approximately 227 agents and an average budget of less than $2 million. This restriction on manpower and operating funds has seriously curtailed investigations of the illicit traffic in the United States and of sources of supply in foreign countries.
Because of budget limitations, the present force of 250 Federal narcotic agents is 25 short of the number authorized by the Congress. By way of comparison, New York City has approximately 200 police officers assigned specifically to narcotic enforcement.
These statistics suggest that, during this time, drug abuse and trafficking were not the Federal priorities that they are today.
Despite the handicaps that the FBN operated under during this period, it nevertheless enjoyed a degree of success. According to LCN informer Joseph Valachi, the tactics used by the FBN to infiltrate and disrupt trafficking organizations caused some LCN chieftains to rethink the advisability of their continued participation in the drug trade. According to Valachi, Frank Costello, then acting boss of the Luciano Family, ordered its members to stop trafficking in drugs in 1948. One of the principal reasons for the edict was explained as follows:
Much more important . . . was the dogged harassment of the Bureau of Narcotics. The Cosa Nostra despised - and feared - [the FBN] . . . .
The Narcotics Bureau, unlike the FBI, which tends to look down its nose at it, does not depend on the informant system for much of its intelligence but regularly engages its agents in dangerous undercover work; they are, as a result, . . . highly motivated, less disciplined, generally more daring and innovational, occasionally corruptible. Above all else, the [FBN] was the first to recognize the existence of an organization like the Cosa Nostra, and no other arm of the law has put more of a crimp in its operation.
Although continuing to warn of the dangers of drug use, the FBN, especially during the earlier part of the period, "adopted a more moderate approach in its dealings with Congress as well as the American people." The Bureau's approach reflected the attitude of the American public, which appeared to consider the drug problem to be restricted to small groups at the periphery of society, with no great societal impact.
In the 1950's the rather complacent attitude toward the drug problem began to change. The first indication of greater concern was reflected in the enactment of the Boggs Act on November 2, 1951, which generally increased the penalties for violations of the narcotic and marijuana laws. The primary motivations for the passage of the Boggs Act were the inadequacy of penalties under the existing law as deterrents and an increase in drug addiction. With respect to the former, Congress relied on statistics showing that the rate of recidivism among drug violators had increased substantially over a 15- year period of time; in 1935, 40 percent of those convicted of narcotics violations had prior drug convictions, while 63.6 percent of those convicted and sentenced during the fiscal year ending June 30, 1950 were recidivists. Congress concluded that drug addiction was increasing on the basis of statistics showing that between 1946 and 1950 there had been a 100 percent increase in the number of narcotic laws-related arrests and that the average age of persons committed to a Public Health Service Hospital had declined from 37.5 to 26.7 years, over a five year period.
Encouraged by the purported success of the Boggs Act, Congress passed the Narcotic Control Act of 1956, which further increased the penalties for drug violations. Among other things, this 1956 Act raised the permissive maximum sentences for violations of the narcotic possession statutes; imposed new mandatory minimum sentences and increased the permissive maximums for trafficking violations; eliminated probation, suspension of service, or parole for all cases except those involving a first offender possessor; authorized FBN and Customs agents to carry firearms and to execute and serve search and arrest warrants; made the sale of heroin to individuals under 18 years of age a capital offense, although the death penalty was not made mandatory but could be imposed only if the jury specifically so directed; and made the smuggling of marijuana a violation of the Narcotic Drugs Import and Export Act.
The severe penalties imposed by the Narcotic Control Act of 1956 were adopted even though Congress found that, as a result of the Boggs Act, "narcotic addiction and the illicit narcotic traffic [were] generally on the decline in the United States." Because the stringent penalties imposed by the Boggs Act were thought to be successful in decreasing drug addiction, the 84th Congress concluded that the imposition of even more severe penalties would "be the strongest and most effective deterrent to narcotic addiction and illicit drug traffic." Finally, Congress was of the view in enacting the Narcotic Control Act of 1956 that "suppression of the illicit drug traffic" would be the most important contribution that the Federal Government could make to the successful and permanent rehabilitation of drug addicts. Congress thus sought to reduce the demand for drugs through reducing their supply.
Public concern over the problem of drug abuse, which had been relatively dormant during the 1940's and 1950's, flared during the 1960's. The intensification of the national concern resulted in increasing pressure for Federal initiatives in the area. In response to this development, a White House Conference on Narcotics and Drug Abuse was convened in 1962, which resulted in the establishment of the President's Advisory Commission on Narcotics and Drug Abuse (Prettyman Commission) on January 15, 1963.
The Prettyman Commission's final report, submitted to President Kennedy in November 1963, included 25 recommendations, the substance of several of which were:
(1) Transfer the enforcement and investigative functions of the FBN relating to illicit transactions in narcotic drugs and marijuana from the Department of Treasury to the Department of Justice;
(2) Transfer the responsibilities of the FBN relating to the regulation of the legitimate traffic in narcotic drugs and marijuana from the Department of the Treasury to the Department of Health, Education and Welfare;
(3) Substantially increase the number of Federal agents assigned to the investigation of the illicit importation of and trafficking in narcotic drugs, marijuana, and dangerous drugs;
(4) Transfer the responsibility for investigating the illicit traffic in dangerous drugs from the Department of Health, Education and Welfare to the Department of Justice; and
(5) Strictly control, by Federal statute, all non-narcotic drugs capable of producing serious psychotoxic effects when abused.
Within 18 months of the issuance of the Commission's final report, Congress adopted the recommendation regarding the diversion of "dangerous drugs" from legal channels. The resulting Drug Abuse Control Amendments of 1965 mandated, among other things, record-keeping and inspection requirements for depressant and stimulant drugs, and specifically for barbiturates and amphetamines, "throughout the chain of distribution, from the basic manufacturer to (but not including) the ultimate consumer." The Drug Abuse Control Amendments of 1965 were passed because of perceived serious problems associated with the diversion of depressant and stimulant drugs from licit channels:
[T]estimony showed that over 9 billion barbiturate and amphetamine tablets are produced annually in the United States. It is estimated that over 50 percent, or 4 1/2 billion tablets, are distributed through illicit channels. The human toll of drug abuse cannot be measured for it affects not only the abuser but his family and the community around him. Drug abuse is closely bound up with juvenile delinquency. It also contributes to the rising crime rate in the United States.
To carry out the new enforcement obligations imposed by the Drug Abuse Control Amendments of 1965 another agency was created; a Bureau of Drug Abuse Control (BDAC) was established within the Department's Food and Drug Administration. The Bureau of Customs, however, retained responsibility for the enforcement of laws relating to the importing and exporting of depressant and stimulants drugs. With the establishment of the BDAC on February 1, 1966, the Department of the Treasury's virtual monopoly of the enforcement of Federal drug laws ended.
Within 16 months of the enactment of the Drug Abuse Control Amendments of 1965 Congress passed an enlightened piece of legislation: The Narcotic Addict Rehabilitation Act of 1966. This Act did many things, including: authorizing a district court to order the civil commitment of an individual, who was an addict, who had been charged with certain offenses against the United States, and who elected to do so, to the Surgeon General for treatment of his addiction and rehabilitation, in lieu of prosecution; requiring a district court to commit an individual who had been convicted of certain offenses against the United States and who was an addict to the custody of the Attorney General for treatment and rehabilitation; permitting any narcotic addict to file a petition with a United States Attorney requesting that he be admitted to a Public Health Service hospital for treatment and rehabilitation; and authorizing the Surgeon General to establish rehabilitation and post-hospitalization care programs for narcotic addicts and to provide financial assistance to the States to establish similar programs.
As the House Committee on Judiciary, one of the Congressional committees which reported on the proposed bill, observed, the Narcotic Addict Rehabilitation Act of 1966:
. . . mark[e]d a fundamental reorientation toward the problem of narcotics addiction. The Attorney General in his testimony before the Committee stated that for too long the law had stressed punitive solutions and neglected medical and rehabilitative measures.
The 1966 Act embodied a proposition that had tended to be overlooked in the past: successful treatment and permanent rehabilitation of drug users, i.e., reduction of demand for drugs, must be an essential component of Federal law enforcement efforts.
A detailed evaluation of the Federal drug strategy that was released in 1979 accurately summarized what the Federal approach had been prior to the late 1960's:
Early efforts to deal with the problem primarily focused on reducing the supply of drugs, first through taxation, then by prohibition and strict legal control. The basic assumption . . . was that reducing supply and availability of drugs would lead to reduction in their use by encouraging drug-dependent individuals to detoxify, and by keeping drugs out of the hands of users.
By the end of the 1950's there was a general agreement on the part of both the public and legislators that the Federal policy of strict supply reduction by itself was not enough. During the 1960's and early 1970's, as drug abuse increased and spread to new markets, the almost exclusive emphasis on supply reduction and stiff penalties was challenged with growing frequency, leading to increased research and experimentation with treatment for drug abusers.
Beginning in 1968, in response to rising . . . concern . . ., a variety of changes occurred in an attempt to curtail drug abuse.
Despite the work of the Prettyman Commission and the enactment of the Drug Abuse Control Amendments of 1965, public agitation concerning crime in general, and drug abuse in particular, intensified. In response, President Lyndon B. Johnson established the President's Commission on Law Enforcement and Administration of Justice (Katzenbach Commission) in 1966 to undertake a "comprehensive study of the nation's crime problem and to provid[e] recommendations to coordinate its eradication on all fronts." The Katzenbach Commission issued a report in 1967, which included a chapter on drug abuse. The substance of several of the Katzenbach Commission's recommendations addressed both the demand and supply of drugs:
(1) Substantially increase the enforcement staffs of FBN and the Bureau of Customs;
(2) Permit courts and correctional authorities to deal flexibly with violators of the drug laws;
(3) Undertake research to develop a sound and effective framework of regulatory and criminal laws relating to dangerous drugs; and
(4) The National Institute of Mental Health should develop a core of educational and informational materials relating to drugs.
Drawing on the recommendations of the Prettyman Commission, President Johnson sent a reorganization plan restructuring the Federal drug law enforcement effort to Congress for its consideration on February 7, 1968. In terms that have been repeated often since that time, President Johnson explained the reason for the proposed consolidation of drug enforcement responsibilities:
Today, Federal investigation and enforcement of our narcotics laws are fragmented.
* * *
Neither [the FBN nor the BADC] is in the agency which is primarily concerned with Federal law enforcement - the Department of Justice.
This separation of responsibilities . . . has complicated and hindered our response to a national menace.
Among the most significant provisions of the plan, which became effective on April 7, 1968, were the following: the Department of Justice was given a major responsibility for the enforcement of the Federal drug laws for the first time in history by the creation within it of a Bureau of Narcotics and Dangerous Drugs (BNDD); the FBN was abolished, and its drug enforcement duties and responsibilities were shifted to BNDD; and BDAC was also abolished, and its drug enforcement duties and responsibilities were transferred to the Department of Justice.
The 1968 reorganization did not significantly affect the revenue collection functions exercised by IRS under the Harrison and Marijuana Tax Acts or the responsibility of the Bureau of Customs for interdicting the smuggling of narcotics and marijuana. The Plan that was intended to eliminate fragmentation in Federal drug law enforcement thus did not eliminate it entirely.
Although neither House of Congress blocked the 1968 reorganization plan, criticism of it did develop. While in agreement that merger of the FBN and BDAC would eliminate friction and duplication of effort, Congressional opponents expressed skepticism that law enforcement relating to drugs and organized crime would be in any way improved by transferring the merged entity to the Department of Justice. Because Administration spokesmen had acknowledged that BDAC and the FBN had been effective law enforcement agencies, the opponents of the plan recommended that the merged entity should instead be located within the Department of the Treasury, where coordination with IRS and Customs, both of which had drug law enforcement responsibilities, could be better assured. That the BNDD was apparently not to be placed within the FBI was one factor leading the dissenters to conclude that "greater overall efficiency in crime enforcement" would not be achieved by the placement of the merged entity into Justice.
Federal Drug Law Enforcement: From Implementation of the 1968 Reorganization Plan to October 27, 1970.
Two major issues during the 1968 Presidential campaign were crime and drugs. Shortly after his inauguration, President Richard M. Nixon declared war on both and formed Task Force One in the spring of 1969 to "design programs that would have an immediate effect on the importation of heroin and other illegal drugs." Task Force One developed and implemented Operation Intercept, the "first major interagency attempt at border interdiction," which involved more than 2,000 Customs, INS Border Patrol, and BNDD agents. Because the amount of illegal drugs seized as a result of Operation Intercept was disappointingly small and because the venture seriously strained relations between Mexico and the United States, Justice Department officials concluded that successful interdiction programs required the cooperation of source countries. As a result, in the fall of 1969, Operation Intercept was transformed into Operation Cooperation, which in part provided U.S. financial aid to the Mexican Government to purchase aircraft and to train agents to interdict the flow of drugs before they reached the United States borders.
The Comprehensive Drug Abuse Prevention and Control Act of 1970
The year 1970 was an important one in the history of this Nation's war against drug trafficking and drug abuse. In February of that year, President Nixon clarified the responsibilities of the various Federal agencies involved in the effort against drug trafficking by issuing a directive announcing that BNDD "controls all investigations involving violations of the laws of the United States relating to narcotics, marijuana and dangerous drugs, both within the United States and beyond its borders. Several months later, the President approved guidelines, developed by the Attorney General and the Secretary of the Treasury, which increased the investigatory responsibility of Customs at ports and borders. However, the most significant event in 1970 was the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (1970 Comprehensive Act).
As of 1970, numerous Federal statutes dealt with various facets of the Nation's drug trafficking and abuse problems. These laws overlapped, were sometimes inconsistent, and required more than a dozen Federal agencies to enforce them. In response, the 1970 Comprehensive Act was passed to collect and conform "diverse laws in one piece of legislation based upon new scientific information, the restructured Federal law enforcement efforts under Reorganization Plan No. 1 of 1968, and greater information concerning the scope of the problem."
The 1970 Act comprised four titles: Title I authorized the Department of Health, Education, and Welfare to increase its efforts in drug rehabilitation, drug treatment and the prevention of drug abuse. Specifically, Title I authorized the appropriation of funds for drug abuse prevention and education programs and for special project grants to programs designed to treat and rehabilitate narcotic addicts or drug dependent persons. As a result of these steps, Congress provided for a "greatly increased Federal effort in the fields of prevention and rehabilitation" and made the National Institute of Mental Health the agency primarily responsible for drug education and prevention activities in the Federal government.
Title II of the 1970 Act, the "Controlled Substances Act," along with Title III, comprehensively addressed the law enforcement aspects of the attack on drug abuse. Among other things, Title II established five schedules into which controlled substances were and could be placed, required the registration of, and record-keeping by, manufacturers, distributors and dispensers of controlled substances, imposed penalties for violations of the Act, established a Commission on Marihuana and Drug Abuse, and authorized BNDD to add 300 agents to its staff during FY 1971.
Finally, Title III, the Controlled Substances Import and Export Act, governed the importation and exportation of controlled substances. The Attorney General was given the responsibility for maintaining the integrity of the import/export registration system that the Act created.
Although primarily an effort to consolidate the myriad of laws dealing with drug trafficking and abuse that had been adopted over the years, Congress's authority for enacting the 1970 Act was predicated upon its interstate commerce power and not, as with previous narcotics laws, on the constitutional power to tax. This shift had enormous implications for the way that the Federal government would and did approach drug enforcement in the future:
[The Controlled Substances Act] set the stage for an innovation in Federal drug enforcement techniques. That innovation was assigning large numbers of Federal narcotics agents to work in local communities. No longer was it necessary to demonstrate interstate traffic to justify Federal participation in combating illegal drug use.
Constitutional challenges to the 1970 Act that were predicated upon the intrastate nature of the conduct prosecuted were rejected.
Federal Drug Abuse Policy: 1970-1980
The decade of the 1970's was an extremely significant one for the development of Federal drug abuse policy in terms of new laws, organizational and operational reforms, and a growing recognition that the reduction of the demand for drugs must be given a greater emphasis. On the debit side the extent of the Nation's drug abuse problem at the end of 1980 was as great as, if not greater than, the problem in 1970. To some extent, the situation in 1980 was attributable to the continuing and unresolved debate concerning the appropriate Federal role in the national struggle against drug abuse and trafficking.
New legislative initiatives, organizations, and operational reforms relating to the Nation's drug abuse problem were adopted and implemented within a relatively short period after the enactment of the 1970 Comprehensive Act. One of the most important and innovative of these reforms was the establishment, by executive order, of the Special Action Office for Drug Abuse Prevention (SAODAP) within the Executive Office of the President on June 17, 1971. The President made the Director of SAODAP his special representative with respect to all Federal drug abuse training, education, rehabilitation, research, treatment, and prevention programs and activities (exclusive of law enforcement activities and legal proceedings). In this capacity, the SAODAP Director's duties included prescribing "policies, guidelines, standards, and criteria for the maximum achievement of the goals and objectives" of Federal demand reduction programs and coordinating and evaluating all Federal drug abuse programs.
President Nixon did not neglect the supply reduction component of the Federal drug policy. Presidential initiatives in this area in 1971 included the establishment of the Cabinet Committee on International Narcotics Control (CCINC) and of the Narcotics Traffickers Program (NTP) within IRS. The CCINC, chaired by the Secretary of State, was given the responsibility for "developing a strategy to check the illegal flow of narcotics to the United States and coordinating the efforts undertaken abroad by involved Federal departments and agencies to implement that strategy."
The NTP was designed to function as a mechanism for disrupting drug trafficking by having the IRS intensively investigate top-echelon drug dealers. The IRS effectively ended the NTP sometime in 1975, both because it had a relatively low revenue yield and because IRS officials felt uncomfortable in operating a program whose primary objective was not tax-related.
On January 28, 1972, President Nixon took another step, designed to improve the Federal government's drug law enforcement efforts by establishing an Office for Drug Abuse Law Enforcement (ODALE) within the Department of Justice. This office was to be headed by a Director who would be a Special Assistant Attorney General and who would serve as a Special Consultant to the President concerning drug law enforcement. In this role the ODALE Director was responsible for advising the President on improving the effectiveness of Federal drug enforcement and on assisting the States and local governments in strengthening their own drug law enforcement. The Director was also required to develop and implement a "concentrated program" for enforcing Federal laws concerning drug abuse prevention and for cooperating with State and local governments in the enforcement of their drug abuse laws. Finally, to ensure that all steps permitted by law were taken by Federal, State and local governments and by the private sector to prevent drug abuse, the Director of ODALE was instructed to consult regularly with the SAODAP Director. With the establishment of ODALE and SAODAP, and the presidential instruction that their Directors consult, cooperate, and coordinate, a mechanism was created within the Federal Government that, at least theoretically, could have integrated Federal strategies to reduce drug supply and demand to achieve maximum results.
That ODALE was created in early 1972, so relatively soon after the implementation of the 1968 reorganization plan, bespoke a lack of confidence in the structure and operation of the drug law enforcement system created by that plan. Indeed, ODALE was established because of the "Administration's concern that BNDD and Customs could not act with the swiftness and precision that a single agency vested with authority and power could." In performing its duties and responsibilities ODALE "was empowered to take the lead in the Administration's 'war on heroin,' with a particular emphasis on street-level trafficking."
Several months after the creation of ODALE, another unit, the Office of National Narcotic Intelligence (ONNI), was established within the Department of Justice to function as a Clearinghouse Of information that would be useful in the Administration's campaign against drug trafficking. The Director of ONNI was instructed to collect and provide narcotics intelligence to any Federal, State, or local official determined to have a "legitimate official need" for the intelligence. The ONNI Director was also instructed to cooperate with the Director of ODALE to assist the latter in insuring that all feasible steps were taken to prevent drug abuse in the Nation. Although its mandate did not include the independent development of narcotics intelligence, the establishment of ONNI was the first concrete recognition by officials at the highest levels of the Federal government of the crucial role that intelligence had to play in supply reduction strategies.
Congress eventually responded positively to President Nixon's request that it enact legislation confirming his creation of SAODAP by passing the Drug Abuse Office and Treatment Act of 1972 (1972 Drug Abuse Office Act). This legislation was an important event in the history of Federal drug abuse policy:
With the enactment of the [Act] Federal policy clearly called for a balanced response to the problem of drug abuse by adding a vigorous prevention and treatment component to the existing law enforcement effort.
Although commitments to the "balanced response" enshrined in the 1972 Drug Abuse office Act have been proclaimed repeatedly ever since, they have not generally been translated into action, as measured by budget authorizations and expenditures.
Congress was persuaded to enact the 1972 Drug Abuse Office Act because the witnesses who testified before its committees were "unanimously agreed that drug abuse in America had reached epidemic proportions." Most of the witnesses were "generally agreed that greater emphasis on the so-called demand side of the problem is required, that is, on treatment, rehabilitation, research, education and training." Congress also found that the Federal government's activities with respect to the "demand side of the drug abuse field have been carried on by at least nine different agencies and departments" and that the legislation under consideration was needed to "provide for and insure a central comprehensive coordination of the federal effort." In passing the Act, Congress concluded that the "emphasis must, indeed, be changed [to strategies to reduce demand] if there is to be meaningful progress in the effort against drug abuse."
The 1972 Drug Abuse Office Act did many things, including establishing SAODAP in the Executive Office of the President; making the Director of SAODAP responsible for, among other things, providing overall planning and policy, and establishing objectives and priorities, for all federal drug abuse prevention functions, making recommendations to the President concerning any Federal drug traffic prevention function, making findings and recommendations to the President concerning the resolution of conflicts involving drug abuse prevention or drug traffic prevention functions, and coordinating Federal drug abuse prevention functions with those of the State and local governments; directing the President to require development of a comprehensive, coordinated long-term Federal strategy for all drug abuse and drug traffic prevention functions; directing the Secretary of Health, Education, and Welfare to make grants to States submitting plans for establishing, conducting and coordinating projects for the development of more effective drug abuse prevention functions and to make special project grants to, and contracts with, public and private entities and individuals to develop drug abuse prevention programs; and establishing a National Institute on Drug Abuse (NIDA) to administer the programs of the Secretary of HEW relating to drug abuse prevention functions.
The 1972 Drug Abuse Office Act was necessary and useful legislation, but it was based on the mistaken premise that the nation's drug abuse problem could be dealt with in a relatively short period of time:
[I]t is the policy of the United States and the purpose of this Act to focus the comprehensive resources of the Federal Government and bring them to bear on drug abuse with the immediate objective of significantly reducing the incidence of drug abuse in the United States within the shortest possible period of time . . . .
Consistent with this premise, Congress provided that SAODAP was to be abolished on June 30, 1975.
There appears to have been an expectation at the time that the 1972 Drug Abuse office Act became effective that NIDA would assume many of the programmatic functions of SAODAP on or before June 30, 1975, after the war against drug abuse had been won and only "mopping-up" operations remained. This expectation no doubt was encouraged by statements made subsequent to the passage of the 1972 Act, such as that of President Nixon in September of 1973 that "[w]e have turned the corner on drug addiction in the United States." As the historical record demonstrates, the expectation of quick success was unrealistic because of the nature of the drug problem.
The 1972 Drug Abuse Office Act reflected the realization that an exclusive reliance on strategies to reduce supply will fail to achieve the ultimate objective. Such an approach disregards the fundamental economic principle, that where a demand for a service or commodity exists, some entrepreneur, for the right price, will attempt to supply it. There is an optimal mix of approaches to reduce demand and supply that will obtain maximum results and thus achieve the goal of that policy, i.e., the elimination of drug abuse. The Federal government necessarily has a paramount and continuing role in that policy, in terms of providing leadership, resources, and support to the other participants. Experience immediately following the enactment of the 1972 Drug Abuse Office Act demonstrates that although the Nation's drug abuse problem may never be eliminated, it can be reduced substantially if a long-term commitment of sufficient resources is made and unreasonable impatience for results is checked.
Despite the comprehensive restructuring of the Federal narcotics laws that had occurred in 1970, related legislative initiatives, and the innovations in Federal drug law enforcement represented by ODALE and ONNI, the Nixon Administration concluded that Federal drug law enforcement continued to be hampered by interagency rivalries and jurisdictional overlaps and disputes. In response, another major restructuring of the Federal drug law enforcement machinery was announced on March 28, 1973. The Nixon Administration trumpeted the 1973 reorganization plan, which was implemented on July 1, 1973, as doing for the supply side of the drug abuse problem what the 1972 Drug Abuse Office Act had done for the demand side: create an organization with the necessary resources, breadth, and leadership capacity to act decisively.
The Federal drug law enforcement structure in March of 1973 was complex, as reflected in Appendix C, with no single individual or agency responsible for supervision of the overall effort. The 1973 reorganization plan was designed to overcome perceived deficiencies in existing law enforcement.
The 1973 reorganization plan was motivated primarily by the beliefs of Administration officials that the aggregation of Federal drug law enforcement activities had "serious operational and organizational shortcomings" and that "enforcement work could benefit significantly . . . from consolidation of our anti-drug forces under a single unified command." The most important innovation adopted by the plan was the creation of the Drug Enforcement Administration (DEA) within the Department of Justice as the "single, comprehensive Federal agency within the Department of Justice to lead the war against illicit drug traffic." The DEA, to be headed by an Administrator who would report directly to the Attorney General, was to be responsible for the anti-drug functions, and would absorb the associated manpower and budgets of BNDD, ODALE, and ONNI and those of the Bureau of Customs with respect to drug investigations and intelligence. The plan also provided that drug law enforcement research that had been hitherto funded by the Law Enforcement Assistance Administration would be transferred to DEA.
While the 1973 reorganization plan reaffirmed the jurisdiction of the Bureau of Customs to conduct investigative, intelligence, and law enforcement functions relating to the suppression of drug trafficking at ports of entry and borders, it prohibited Customs from exercising those functions, as it had been previously authorized to do, at locations away from ports of entry or borders. In addition, drugs, evidence, and persons seized by customs agents at ports of entry or borders were to be turned over to representatives of the Attorney General. The plan explicitly provided that the Department of Justice, in addition to Customs, could perform law enforcement functions, including those relating to illicit drug trafficking, at the Nation's ports of entry and borders. Finally, the plan required the Attorney General to assure the maximum cooperation between and among DEA, the FBI, and other units of the Justice Department to achieve coordination of all of his drug law enforcement functions.
Once established, DEA played an "increasingly crucial role in the coordination of Federal drug law enforcement; and during the 1970's a number of interagency efforts were launched." Among the coordination efforts undertaken by DEA was the development of mechanisms to provide timely and accurate narcotics intelligence to drug law enforcement personnel at the Federal, State and local levels. Steps taken by DEA in this area included the establishment of:
(1) An Office of Intelligence at DEA headquarters which, organizationally, was at the same level as its Office of Enforcement;
(2) Regional Intelligence Units (RIUs) in each of the DEA regions;
(3) The El Paso Intelligence Center (EPIC) in 1974 as a border intelligence unit, which soon grew into a "twenty-four-hour-a-day intelligence center, with worldwide capabilities to collect, process, and disseminate information concerning illicit drug trafficking as the smuggling of aliens and weapons; EPIC is staffed by personnel from DFA, INS, Customs, the Coast Guard, BATF, FAA, the U.S. Marshals Service, FBI and IRS;
(4) The Narcotics and Dangerous Drugs Information System (NADDIS) and the System to Retrieve Information from Drug Evidence (STRIDE) to provide access to numerous investigative records of PEA and other Federal, State and local drug enforcement records;
(5) In April of 1978, the National Narcotics Intelligence Consumers Committee (NNICC), chaired by the DEA Deputy Assistant Administrator for Intelligence and including representatives from the Departments of Defense, Treasury and State, and their component agencies in the field, including Customs, the Coast Guard, FBI, INS, IRS, and NIDA to coordinate the collection, analysis, dissemination and evaluation of drug-related intelligence, both foreign and domestic, and to publish annually a "National Intelligence Estimate on the Supply of Drugs to the U.S. Illicit Market from Foreign and Domestic Sources."
In addition to trying to improve the intelligence gathering and dissemination functions of Federal drug law enforcement, PEA attempted to improve the task force concept in drug law enforcement which it had inherited from ODALE. In 1974 DEA adopted the Central Tactical Units (CENTAC) program to focus enforcement resources on conspiracy investigations of high-level drug trafficking targets. Unfettered by normal DEA regional operations, centrally administered, specially funded, staffed by personnel from DEA, IRS, Customs, and State and local agencies, and charged with pursuing conspiracy cases under the Continuing Criminal Enterprise (CCE) and RICO statutes, the CENTAC program did produce relatively high arrest and conviction rates of high level traffickers, and accounted for 12 percent of DEA arrests from 1976 to 1979 while using less than three percent of DEA personnel. Although criticizing the CENTAC Program for not exploiting the Federal forfeiture statutes to seize the assets of convicted traffickers, the General Accounting office (GAO) nevertheless concluded that:
Given the success of the Central Tactical units and the need for more multi-regional conspiracy investigations, the expansion of the [CENTAC] program is warranted.
GAO recommended expansion of the CENTAC program despite an earlier conclusion that the CENTAC efforts had not "achieve[d] the overall objective - complete immobilization of the targeted trafficking organizations." The 1980 GAO report also conflicted with:
DEA officials who said the current size of the CENTAC program is optimum given existing enforcement resources, required commitments, and their preference for regionally controlled investigations . . . .
Another effort at interagency operational cooperation during the decade of the 1970's was the creation of three FBI-DEA forces in Chicago, New York, and Los Angeles to "test the feasibility of joint operations." These task forces were designed to combine the FBI's organized crime and conspiracy cases expertise with DEA's experience in narcotics investigations. This effort was probably doomed from the start because, although each agency was supposed to coordinate with the other, each used its own investigative techniques, personnel, and information sources and each maintained jurisdictional autonomy. After two years, the program was in effect disbanded, and evaluations by GAO and others attributed the failure to disagreements over investigative techniques and to restrictions on case selection.
The creation of DEA by the 1973 reorganization plan and DEA's subsequent development of new supply reduction approaches were not the only steps undertaken and designed during the 1970's to respond to what many had come to view as the almost intractable national drug problem. For example, Congress passed the Narcotic Addict Treatment Act of 1974, which amended the 1970 Controlled Substances Act to require annual registration by practitioners dispensing narcotic drugs, including methadone, for maintenance or detoxification purposes. This legislation, which imposed standards for the legal dispensing of drugs, was deemed necessary because of the increased diversion of methadone for illegal sale and use.
That year also saw the passage of the Alcohol and Drug Abuse Education Act Amendments of 1974, which extended the grant and contract authorities of the Drug Abuse Education Act of 1970 for three years and authorized the expenditure of $90 million over those three years. The Act placed greater emphasis on the need for prevention and early intervention programs, recognizing the crucial role of family, peer group, school, church and other community institutions in influencing young people's behavior.
In enacting the 1974 Alcohol and Drug Abuse Education Act Amendments, Congress noted that most of the previously adopted Federal programs to reduce demand had "inevitably been directed primarily toward the person who is already in serious trouble with alcohol and/or drugs," but that the focus of the Drug Abuse Education Act of 1970 had been different in that it was directed to those who had not yet experimented with drugs or to those who had just begun to do so. In passing the 1974 amendments Congress applauded the focus on prevention, reaffirming the philosophy that had suffused the 1970 Education Act:
[R]eal progress in the struggle against alcohol and drug abuse will require an intensified effort to reach that far more numerous group, those millions of young people who may be tempted to experiment with dangerous drugs or who may have already done so.
Although committed to the continuation of Federal support for local drug education programs, Congress was nevertheless critical of those educational programs that were based upon information that was incomplete, erroneous, or designed to frighten, and those based on accurate information that had the tendency to arouse interest in drugs and to lead to experimentation, Before passing the 1974 Amendments Congress received assurances from the Office of Education within the Department of HEW that it would make every effort to support only those programs which would "incorporate factual material about drugs into programs which focus on the causes of drug use and emphasize the development of appropriate attitudes and values," rather than merely inform and arouse interest.
The Nixon Administration opposed passage of the bill that eventually became the Alcohol and Drug Abuse Education Act Amendments of 1974 because it believed that "alcohol and drug abuse education [should] be included among the special projects to be funded under other education legislation and that alcoholism and drug abuse formula grant funds to the states [should] be considered the major source of funds for local alcohol and drug abuse education programs." Congress disagreed with the Administration's position concerning categorical legislation relating to prevention and early intervention educational programs, stating that:
Failure to renew a clear legislative mandate to the Office of Education would destroy the identity of the program at both the Federal and the State level and would cast the alcohol and drug education programs in the role of supplicants to those agencies whose primary concern is not education and who are already besieged by the demands of treatment programs.
The ultimate result would be either the disappearance of community drug and alcohol education programs or a reversion to some of the futile and dangerous efforts of the past. . .
As noted earlier, the 1972 Drug Abuse Office Act provided that SAODAP would be abolished on June 30, 1975, with no assignment of its policy-making and coordinative functions to any other Federal agency. On March 19, 1976, however, legislation was approved that in effect continued SAODAP, but under the slightly different name of "Office of Drug Abuse Policy" (ODAP). Congress created ODAP because:
[T]here is current evidence that whatever improvement in the problem occurred in 1973 was temporary and that the present problem is at least as great as at the time the original act was passed.
In approving the continuation of an executive level drug advisor, Congress found that "drug abuse was not a crisis which could be rapidly solved but rather a continuing problem calling for a continued Federal responsibility." Congress also concluded that Federal expenditures for drug abuse prevention efforts had peaked in 1974 and then declined, despite continuing serious problems, due to, among other things, the anticipated end of SAODAP:
It would also appear that the existence of a high-level office in the executive branch is to some extent correlated with the fiscal emphasis provided to drug abuse prevention efforts.
Congress was also somewhat concerned that "unless some active direction is taken at some high level it is probable that in the very near future funding for drug law enforcement will again overbalance funding for drug abuse prevention."
In creating ODAP Congress required its Director to make recommendations to the President regarding the policies and priorities for, and objectives of, all Federal "drug abuse functions," a term which was defined to encompass both drug abuse prevention and drug traffic prevention functions, and to coordinate the performance of such functions by Federal departments and agencies. This was a significant expansion of the authority of ODAP's predecessor, SAODAP.
Despite the Ford Administration's opposition to the continuation of an executive-level office relating to drug abuse prevention, President Ford did not veto the 1976 amendment creating ODAP. However, President Ford did not staff ODAP, even though a specific line-item authorization had been made for it. DAP did not come into being until President Carter issued a memorandum initiating the Office on March 14, 1977. Less than two months after the Senate confirmation of the ODAP Director, President Carter submitted a reorganization plan restructuring the Executive Office of the President to Congress on July 15, 1977.
The 1977 reorganization plan altered the structure of the Executive Office of the President, which at the time consisted of the immediate White House Office, the Vice President's Office, OMB, and 14 other agencies, including ODAP and the Domestic Council. As proposed, the plan, among other things, abolished the Domestic Council and ODAP and redesignated the Domestic Council Staff as the Domestic Policy Staff. The functions of ODAP and its Director would be transferred to the President who could then delegate such functions.
Several members of Congress, recalling that it was the need for a high-level policy and coordinating office to oversee the activities of more than 20 Federal agencies with significant drug abuse responsibilities that had given birth to the SAODAP/ODAP program, expressed grave concern about the abolishment of ODAP. President Carter assured them that the ODAP's functions would be carried on within the Executive office of the President and that the Domestic Policy Staff, with several of its staff members assigned exclusively to drug abuse issues, would handle ODAP's policy-making and coordinative functions. With Congressional acquiescence, the 1977 Reorganization became effective on March 26, 1978, at which time a core group of ODAP staff was transferred to the Domestic Policy Staff.
Although Congress did not block the provisions of the 1977 reorganization plan, members of Congress nevertheless remained unsure whether drug abuse policy-making and coordinative functions could be or would be adequately performed by the Domestic Policy Staff. This uncertainty was reflected in the Drug Abuse Prevention and Treatment Amendments of 1978, which extended the authorization for NIDA programs for only one year, instead of the previous multi-year reauthorizations, so that it could evaluate the system created by the 1977 reorganization plan after a relatively brief but adequate period of time.
The Congressional evaluation of the operations of the drug abuse policy and coordinating system in the Executive Office of the President was embodied the next year in the Drug Abuse Prevention, Treatment and Rehabilitation Amendments of 1979. During the consideration of this legislation, President Carter assigned the Associate Director for Drug Policy of the Domestic Policy Staff the responsibility for assisting the President in performing the functions of ODAP, which had been transferred to the President by the 1977 reorganization plan. President Carter took this step because of Congressional concern that:
[T]he continued coordination of drug abuse policy, required by the 1972 Act and its subsequent amendments, became dependent upon the continued interest . . . of the President and other individuals within the Executive Branch, rather than being clearly structured by statute as had been the case prior to the implementation of the Reorganization Plan.
Because of the steps taken by the Carter Administration including the revitalization of the Strategy Council, Congress responded by legislating what the 1977 reorganization plan had done.
In addition to giving its imprimatur to the 1977 reorganization plan, the 1979 legislation made authorizations for NIDA's state formula grants and special grant and contract programs for drug education and prevention through September 30, 1981. It did so because it found that the "growing extent of drug abuse indicates an urgent need for prevention and intervention programs designed to reach the general population." In providing for a two-year reauthorization for NIDA programs and activities, Congress rejected the Carter Administration's proposal that state formula grants for drug abuse be consolidated with those for alcoholism and mental health because:
There is considerable history to suggest that earmarked funding for categorical programs should remain separate at the State level as well as at the national level. Within the traditional health care delivery system, the drug and alcohol client has not fared well. To force these systems to compete again is to seriously jeopardize the major strides which have been made . . . . The Committee insists that a categorical emphasis on drug abuse must be maintained at all levels of government. A loss of direct program emphasis would severely harm the state focus on combatting drug abuse, and could seriously endanger the Nation's battle against drug abuse.
The decade of the 1970's was an important one in the evolution of the Federal drug abuse effort. It began with a comprehensive restructuring of Federal laws relating to drugs and included a major reorganization of Federal drug law enforcement agencies in a effort to reduce interagency rivalries and to promote efficiency and leadership in the fight against drug trafficking. Equally important was the recognition that strategies to reduce demand must be an essential component of the overall drug abuse policy and that the nation's drug abuse problem could not be regarded as a crisis susceptible to quick resolution. In addition, new laws were passed to respond to particular aspects of the drug problem, and new enforcement approaches were tried in an effort to disrupt drug trafficking more effectively.
On a less positive note, disagreements over certain fundamental issues remained unresolved at the end of the 1970's. Among these were the role of the Federal Government in drug policy and the appropriate balance between strategies to reduce demand and supply. Finally, and perhaps most importantly, despite legislation, massive reorganizations, new enforcement techniques, and necessary attitudinal changes, the problems of drug abuse and trafficking continued at high levels at the end of the decade.
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