Guest Commentary

Shouldn't property rights trump the war on drugs?

A local daily newspaper reports that "many pot seizures of below 500 pounds go unprosecuted." The article goes on to say that pot seizures of less than 500 pounds account for 90 percent of the seizures, and about half of all the pot seized. The reason is that there are so dang many people caught importing herb that prosecuting the bulk of them would overwhelm the legal system.

According to the National Drug Intelligence Center, there were 9,560 seizure incidents along the southern border in 2004, totaling 1,102,925 kilograms (we called them "kilos" back in the late '60s, early '70s) of marijuana. In English that translates to 2,426,435 pounds, or more simply, about 2.4 million pounds.

Consider for a moment that the government has pinched so many pot haulers that it can only prosecute 10 percent of them, and their lost loads only represent the "inventory shrinkage" of the product crossing the border with Mexico--a minor factor in cost of goods sold. This does not address the product crossing the northern border, or the border with Humboldt County.

Note to the Drug Warriors: Markets rule.

Let me take a moment to assure everyone that I am not a pothead. People who argue my position are usually dismissed as such. I do not claim any exceptional purity, but it is a fact that I have not partaken of any marijuana since Jimmy Carter was president.

Long before the Carter presidency, Lenny Bruce said, "Marijuana will be legalized ... yeah ... because all the guys I know in law school smoke it." Well, it didn't quite work out that way. It probably would be legalized if today's lawyers could not easily get all the pot they wanted, and therein lies the key. The only way to attack the problem is to attack the market. That means turning law enforcement away from the importers, and toward the end user.

This approach has been tried, found to be successful, then quickly abandoned. The problem is that the end users are a huge percentage of us ... 2.4 million pounds, and that's just the shrinkage. If the transportation workers are overwhelming the system, imagine how many users there must be--your neighbor, your co-worker, your kid's teacher, your stockbroker, your plumber, your lawyer of course, and Uncle Free and his hippie girlfriend Sunshine.

So, back we go to busting the "bad guys," the people the end users pay to sneak it to them. Meanwhile, the market will not be denied.

Many moons ago, I was impaneled on a federal jury. As with most federal cases, it was a drug case. The accused was found by a couple of narcs parked down by the San Pedro river with a few hundred pounds of pot, a Mossberg 12 gage shotgun and a .40-caliber Daewoo pistol. This was apparently a very bad situation, but, other than the poor choice of pistol, I could not see why. At some point, the judge asked if anyone had a question. I raised my hand, he acknowledged me, and I asked, "Under what authority does the federal government engage in drug prohibition?" He said something about Congress saying we do, so we do. His delivery was light hearted; he chuckled. The rest of the folks chuckled along with him. I returned a steely stare to let him know that I was quite serious. I should have followed up with, "When the federal government engaged in alcohol prohibition, a constitutional amendment was passed to give it the authority. When the amendment was repealed, the authority ended. Which amendment to the constitution gives the federal government the authority to engage in drug prohibition?" Alas, it was a missed opportunity.

So, the federal government employs insane enforcement policies for laws that it has no authority to enact. Yet there is a principle that trumps all.

When we stand back and look at it, we see that it really is an issue of private property rights. Unless you are a slave, you own your body. Even if you believe that God owns your body, you are still the steward in this world. If you own it, you decide what goes in it. You are the authority in that regard.

The federal government lacks not only the legal authority to engage in drug prohibition, it lacks the moral authority as well.

About The Author

Jonathan Hoffman

Jonathan Hoffman moved to Tucson from Connecticut in 1977 and never looked back. He attended the UA, ran for City Council Ward III in 2001, and made regular contributions to the Guest Commentary section of the Tucson Weekly for over five years. He helped launch the Southern Arizona News Examiner. He is a former...
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