"Reality has a well-known liberal bias." -- Stephen Colbert
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Drugs are a major presence in "Prime Green" (named for the light at early dawn as glimpsed above the ocean from [Ken] Kesey's lair), but drugs themselves, to Stone, are not the decade's problem.
The problem is what Uncle Sam decided to make of drugs: at first a moral scourge and then a pretext for an inquisition.
If the memoir makes just one outright policy statement, it's in protest of never-ending public burning not only of individuals but of the idea that consciousness is private, and not a domain for armed agents of the state.
From Walter Kirn's NYT Book Review of Robert Stone's "Prime Green, Remembering the Sixties."
Am I going to read this book? I don't know. I don't think so. Robert Stone was a friend of the late Ken Kesey, the Stanford grad who drove around in a bus in the 'Sixties with a lot of friends doing a lot of drugs and making a big deal about it.
Around my house, in Staten Island, N.Y., only criminals were involved with drugs. And jazz musicians. Same thing, right? I mean, it was well-known that jazz musicians used marijuana, heroin, cocaine, and speed (barbiturates, methamphetamines), so they were criminals too. They kept on getting arrested by the police. You could read about it in the New York Daily News.
When I came to California in 1966, fresh out of law school, drugs were just as bad here as back home.
My first job as a lawyer was as a prosecuting attorney. Drunk driving, resisting arrest, and drugs were what we cut our teeth on in learning our new trade. When I came over to San Francisco from across the Bay, there were even more drugs to prosecute. The hippie Summer of Love had recently slipped by and the narcotics officers brought in more drug cases than we could handle. We dealt out a lot of drug cases. The person whose apartment the drugs were found in pled guilty to possession while the visitors pled to a misdemeanor "visiting a place where drugs were used or sold." A growing marijuana plant was called "cultivation."
Almost four decades later, I was in criminal court a few weeks ago representing by court appointment a guy who'd sold marijuana on the street, to, as usual, you guessed it, an undercover cop. Some things never change.
In 1976, the law was changed to make selling or possessing less than an ounce of marijuana (28.5 grams, or one baggie) a $100 misdemeanor. In November, 2006, the San Francisco
Board of Supervisors passed a resolution declaring the prosecution of marijuana cases to be a waste of taxpayer time and money, asking the prosecutor to fore-go prosecuting marijuana cases. But the prosecutor in my case took note that my guy had numerous prior convictions and wanted him back in state prison.
I pointed out that the Board of Supervisors had gone on record as wishing to de-criminalize marijuana in San Francisco. Mj was no longer malum in se, but malum prohibitum. These are two classic legal categories for classifying crimes. The first encompasses things that are wrong in themselves, because they are evil, such as murder or assault, and the second is wrong, albeit just as deadly, hence prohibited, such as running a stop sign. There are always arguments over whether an alleged offense is more one than another, so the usefulness of the categories is often difficult to ascertain. Nevertheless, I thought that since the highest legal body in the city had declared Mj to be okay, legally, despite state and federal law to the contrary, how bad could it be? Not very, I guessed.
At a pre-trial conference, my job was to talk the DA down from state prison to local time. The co-D, with no priors, had gotten six-months, locally, with credit for time served. The DA was worried about a hung jury, as jurors read the newspapers, too. After a lot of jawboning, the DA finally agreed to local time.
Being a prosecutor, and a defense attorney, takes a bit of judgment. You need to be able to tell the difference between good cases and bad ones, like the guy in the Army who went nuts over separating the potatoes into two piles, big ones and little ones: "Decisions, decisions," he complained.
Good prosecutors like to spend their time and energy prosecuting cases that are going to make a difference. Selling small amounts of marijuana on the street is a nuisance, not a felony, I argued. The Board of Supes had excepted street sales, so I argued that, in effect, my client had been simply trespassing. Had he sold in an apartment or cafe, he would've been safe. By selling on the street, he opened himself to prosecution. His willingness to accept some punishment spared him a prison sentence. The DA wasn't going to save the world on this case any more than I did four decades ago doing the same thing. He hadn't reached his threshold of boredom quite yet, I suppose.
As a starting out deputy district attorney, my first job was to man the misdemeanor complaint desk on which a stack of police and highway patrol arrest reports was placed every morning for review. If there was reasonable cause to believe that a crime had been committed, I was supposed to file the misdemeanor charge.
DUI was a frequent offense in a county (Contra Costa) crossed by major highways such as I-80, S/R 24, and Highway 680. On several occasions, a motorist who'd had a few too many would pull over to the side of the highway, safely park, and sleep it off. He'd get arrested for drunk driving and I'd review the report. "He did what we wanted to do, didn't he?" I'd reason, and not file the charge. My boss countermanded my discretion not to file, and charged the driver was. It seemed to me that we wanted to encourage people to stop doing what dangerous thing they'd been doing, if the law were supposed to influence behavior. I had trouble with the damned-if-you-do and damned-if-don't attitude of my supervisor. But I was only weeks into a new job, so there you go.
After seven years of prosecuting, however, I'd learned my way. My next to last trial was a long rape case with six or seven defendants and that many defense attorneys, against me. It was a fair fight, I learned because I controlled the show, while they were in disarray. That's where I learned, as the Texas Ranger, one riot, one Ranger, one trial, one attorney. Anyone else is in the way, unless he or she wants to get the coffee.
I worked so hard on that case (I admit, I could've used help) that I decided that if I could work this hard for the government, I might as well see what I could do on my own. About this time a friend asked if I'd like to enter private practice with him, and I did.
But I had one last trial assigned to me where the defendant, who'd been to prison several times before, decided he couldn't stand one more conviction. He was arrested this time for stealing toilets from abandoned buildings owned by the City Redevelopment agency. His story was rejected by the jury and he stood convicted. The sentencing judge asked for my recommendation, state prison or not. Not, I offered. I couldn't see sending a guy to the joint for stealing abandoned toilets, even if he did wrestle me to the mat.
As a law student, I took a summer job at Harrah's Club at Lake Tahoe. Harrah's hired college girls, age 21 or older, as 21 dealers. Harrah's hired law students, a bit older, as craps dealers. I spent two weeks in dealers school learning how to serve as a croupier. The teachers would dump two bags of real silver dollars onto the table for us to divide up and all day we'd learn how to take, place, and pay the bets, and how to call out "Ee-o-leven" for 11, or "Niner" for 9, so as not to confuse it with "five" for 5. My New York pronunciation drew laughs when it came to the number 4. How do you say it? Well, I say "Faw!" And it gets a laff from the Westerners in the group. "Hey, where'd you come from, they'd ask, "New York?" "No, I come from Noo Yawk."
So all summer I worked at Harrah's cutting silver and dealing dice. Gambling some say, is wrong, or immoral. Is it malum prohibitum, or malum in se? I had to figure this out for myself. It was a lesson in morality, dealing dice at Harrah's all summer, and then going back to law school.
What I figured was that for the people who visited Harrah's to have a good time, they harmed no one. Whether they spent their entertainment dollar on buying fishing rods, hunting rifles, or camping supplies, it was their money. The evil was when someone spent the family milk-money on gambling and couldn't feed his kids. But we didn't see that part in the clubs.
So I figured that gambling was a bit like hard-shell Baptists who forbid dancing, and drinking, and gambling. You can overdo a good thing, and on some things we're going to disagree, but it's every man for himself when it comes to deciding how to live his life.
What got me going on this moralistic tear was this quote, above:
The problem is what Uncle Sam decided to make of drugs: at first a moral scourge and then a pretext for an inquisition (I accidentally wrote 'imagination' for 'inquisition; maybe I should've left it).
If the memoir makes just one outright policy statement, it's in protest of neverending public burning not only of individuals but of the idea that consciousness is private, and not a domain for armed agents of the state.
Drugs were first outlawed in the U.S. in 1914. Before that time, opium was mixed with alcohol into an addictive tincture called laudanum which was used by women for menstrual cramps, depression, to quiet colicky babies, and what-all. Men used it as well, as a pain-killer and a sleeping pill. The problem was that opium was addictive and people were getting in trouble over the unregulated use. Patent medicine sellers were selling bottles of the stuff and advertising it in the newspapers. So it was outlawed. This meant that if you continued to use the stuff, you were committing a crime.
Eventually alcohol itself was outlawed for human consumption and the nation's experiment with national Prohibition began in 1919 right after World War One. Amendment 18. It continued until 1933 when it was repealed. Amendment 21.
But we still have a regime of national prohibition of certain drugs. The result is the same as with alcohol. There's been a huge underground market in illegal drugs with lots of money and some degree of official corruption that we don't need. Instead of legalizing, regulating, and taxing drug sale and consumption, we have an army of police, coast guard, and military trying to stop the smuggling. Jails and prisons overcrowded with drug offenders. We've allowed the development of an underclass of drug offenders, added to all of the other social ills which keep millions of people down.
Drugs have gone from a moral scourge, according to Robert Stone, to an inquisition. During the Spanish Inquisition, the Holy Office was allowed to keep the property of those it accused of being heretics, mainly Jews and people of Jewish descent who hadn't fled or who had converted to avoid the expulsion of the Catholic king and queen, Ferdinand and Isabella, of Christopher Columbus fame. The victims of the Inquisition were called secret Judaizers, people who kept to the old rites secretly while professing to be Christian. A class distinction thus arose, between Old Christians (better) and New (worse). The Holy Office rarely let anyone accused of heresy go. The prosecutor would have to give back the money and property. You should never let the prosecutor have a motive of personal enrichment and aggrandizement as a reward for making accusations. That's how you wind up with false accusations.
Today we allow narcotics agencies to seize and keep (through a forfeiture proceeding) the land, the speedboats, the airplanes and Mercedes-Benzes of the drug smugglers they arrest. Just like the Inquisition.
The reviewer of Mr. Stone's book also notes that one result of the drug war is that drug using individuals are not only publicly prosecuted and disgraced (it's hard to find work after a drug conviction, especially in periods of heightened security, such as after 9-11), but that their state of consciousness, which should be a private matter, according to Stone, is made public, a domain to be invaded by police.
"If the memoir makes just one outright policy statement, it's in protest of neverending public burning not only of individuals but of the idea that consciousness is private, and not a domain for armed agents of the state."
This is an interesting argument because it asserts a right of privacy, privacy, since Griswold v. Connecticut (1965) (birth control devices) and since Lawrence v. Texas (2003) (private consensual sexual activity in the home among adults) makes privacy a matter of constitutional dimension.
I'm not sure that the state really cares about whether I drink to excess at home, although during Prohibition it apparently did. If I intoxicate myself at home using alcohol or drugs why should the state care? If I go out and drive there's a state interest. But at home? Well, there is domestic violence, isn't there. Perhaps this is what the state would argue.
But suppose a poet or writer lives alone and uses drugs to entice his muse to enter his room, and pen. A crime? It's a crime to possess drugs, even in the privacy of ones home. Stone is asserting, apparently, that it should not be, that each of us has, or should have, a recognized constitution right to remain sober or spaced out if we wish.
I've never seen this argument made before. That's why I've written this post, to think about the moral dimension of taking a drink, making a bet, dancing a dance, or taking a hit.
Recall that for a law to be constitutional it must be both rational, and, if it impinges on constitutional rights of the individual to equal protection or liberty, including privacy, there must be a compelling governmental interest. This must be something that is more than that the neighbors don't like to think you are doing it, such as looking at porn in the privacy of your own home, engaging in sexual practices that they do not, or getting loaded on the drug of your choice when they only prefer, say, alcohol.
I think Stone has a point.
I suppose that he could assert that it should be constitutional to possess formerly illegal drugs in quantities intended for personal use, couldn't he.
We do have medical marijuana, now, in California. Police knocked over a med-Mj dispensary recently in the Bay Area and seized a large quantity of dough, about a million and a half, as I recall. That suggested that more was being sold than to cancer sufferers. The exception ate up the rule.
What do you think? Should your private state of sobriety be a subject of state interference? Should you have the right to tell Uncle Sam, or Uncle Ahnold, or Mayor Gavin that you intend to go home and blow your mind tonight with acid or PCP?
As a caveat, I prosecuted a tragic case during the hippie era in which a man caused the death of his child while the father used PCP.
Alcohol, which causes many fatalities in the home, in bars, and in traffic, is one of our oldest drugs. Banning it failed. Regulating and taxing it has worked much better.
Widespread use of drugs is a newer phenomenon, made public and widespread in a big way following the hippie generation of the 'Sixties. We still haven't finished coming to terms, legally, with the problems that arise out of recreational use, as it is called. This is a controversy waiting to happen. It is still associated with criminals, making it harder to reason through without becoming politically emotional, thus ensuring failure to do more than continue on as usual.
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