Wisconsin Public Television University Place  The War on Drugs  William J. Bauer  4/19/13 UP884  cc >> It is now my honor to introduce our speaker for this afternoon, Judge William J. Bauer. Judge Bauer has been a member of the seventh Circuit Count of Appeals since January 3, 1975. Prior to that he served on the US district court for the northern district of Illinois. He was United States attorney for the northern district of Illinois, judge of the 18th judicial circuit of the state of Illinois, and State's attorney of DuPage County. He practiced law with the firm of -- and Bauer in Elmhurst and served as an adjunct professor at DuPaul University College of Law. Judge Bauer is a graduate of Elmhurst College and DuPaul University College of Law. But we can still be friends. [laughter] He was an instructor for -- and is past president of the DuPage County Bar Association. He is also a frequent lecturer on trial and appellate practice, and the co-author of a book on criminal procedure. 

Judge Bauer will speak to us today on the war on drugs. Given his experience and his expertise, I'm very much looking forward to his talk. No less so because last night at our -- banquet Judge Bill Conley told us that not only is Judge Bauer extraordinarily knowledgeable, but he's a very entertaining speaker. No pressure there, Your Honor, but we're all really looking forward to your talk. Please join me in welcoming Judge Bauer. [applause]  >> Is the person in charge of electronics back there? Oh, there you are. Can you hear me? Goody. The reason I have to ask is I was addicted to one drug, and it was nicotine. From the time I was 14 until I was 50 some odd, I smoked the damn things. Now I was under no illusion that I was doing my health any good. 

They used call them coffin nails even then. But I quit, being a good fellow. [applause] Yeah, but hang on, there's more. [laughter] 18 months after I quit they discovered I had cancer of the larynx, which is almost always the result of smoking. When I finished my 33 treatments, radiation treatments, the oncologist said, you can go back to drinking now, but put water in it. I said, I can live with that. [laughter] And you can start talking again. And he said, don't smoke anymore. I said, when I smoked it didn't bother me. It's when I quit I got the God damn cancer. 

[laughter] Having said that disclaimer, I just want to give you a couple of more disclaimers. I am a perfect one to talk then about the war on drugs. I'd almost be a consensus objected under normal circumstances on the war on drugs. Everybody in this room uses drugs. Or has used them in the past, or is using them now. Because your definition of drugs is pretty wide. Nicotine is one. Alcohol is one. Is there anybody here who has never had alcohol? Anybody here who doesn't take aspirin? Anybody here who doesn't drink coffee, tea? Those are all drugs, each one of them. The concept of calling a war on drugs is a uniquely American thing. 

We're a war-like people apparently. We have a war on poverty, a war on drugs, and so on. I start with another disclaimer. I was born in 1926 in Chicago and I grew up on the south side during the depression, at 70th and --, in case you need to know. It was a neighborhood that was not exactly in the boondocks, someplace removed from humanity, but if I had wanted to have a marijuana cigarette when I entered high school I wouldn't know where to go. There was none available. Narcotics is those days was a different sort of thing. We didn't worry about it much. But by the time my children were in high school they damn well knew where to get it. I will say something more about that later. 

Drugs have been with us for a long, long time. 1700 in Macedonia there's a column chiseled into rock, this is 1700 BC in Macedonia, setting out a list of pharmaceuticals and what they're for. So it's been there. Homer, if you read the Iliad and the Odyssey, refers to Helen's Cup, which is a narcotic for them when they lived. The most effective drug known for relief of pain is morphine, and cocaine is a biproduct of that. One of the problems with the discussion of the war on drugs is the definition of both war and the definition of drugs. We're not fighting all drugs. I just said so. But we import, every year, 400 tons of poppy opium legally. Legally, not illegally, legally. 

Because we use it. We produce things from it. It's kind of difficult to talk about a war when we have a internal argument about it. Let me tell you, 1983, a number of people in this room where present during the seventh circuit Bar Association meeting where I was conducting a Socratic dialogue on the subject of the war on drugs. I see some smiles of recognition. We had, on the panel, there were 15 members of the panel, the prosecutor in the Noriega case. Noriega mean anything to you? He was president of Panama. We indicted him and convicted him. He was on the panel. The former drug czar under Nixon was on the panel, and among other people, was Judge Posner. 

Judge Posner was a fairly recent addition to the bench and he was fairly well-known on the intellectual circuit, but this -- was not his big thing. I went through-- I don't know if you've seen the Socratic dialog where I walk down and ask question of people and they answer, and we move back and forth. It requires differences of opinion. There were, on that panel, some people with defense lawyers, procreators, and as they say, people who were abstractly interested including two doctors. I got to Posner about a half an hour into the lecture, and I said, Judge Posner, do you think we have a war on drugs? That's the first question I asked him. He said, I don't know, but if we are, we're losing. I said, do you have any solution to that? And he says, yes, they ought to legalize it. I looked out at the crowd, the reporter and 50 people there, and they had already pegged him as a far-Right nut. [laughter] They thought this was the most great thing. I knew what the answer would be. 

Not because I'd asked the question before, but he's a Libertarian. He thinks the government ought stay the hell out of everybody's business. I said, why do you thin that, Judge? And he said, because why should we spend billions of dollars to keep people from killing themselves? If they have that object in mind, why should we intrude ourselves? He said, we do not ban double cheeseburgers, and they kill themselves with that. We tried to ban alcohol and it didn't work. He said, the fact of the matter is, it doesn't work. Why shouldn't we say, okay. I said, would you put any limitation on it at all? And he said, certainly, the same as with liquor. Children should not be allowed to have these narcotics. Ah ha! Like they don't smoke cigarettes or don't drink beer, or when their underage. At any rate, that was his position. 

He is not alone in that position. There are more people that are involved that really feel the government ought to stay the hell out of it. More than that, we have another little problem. The drugs that we're concerned about are the ones that become addictive and you're dependant. Your tolerance become obedient early on. More and more and more are required of the drugs for you to reach the same level of high that you'd have otherwise. We have had these mixed discussions for years. Think of the date of my birth, 1926. The first laws in the United States against drug were passed in 1914. Before that there was no law against the use of drugs. 

They sold heroine in cough syrup, and it said right on the bottom, contains heroine. Heroine, my friends, was introduced in the country by the United States government. Frank -- who was a member of the district court said, one of the great lines of all times, whatever the federal government does, it does more of less badly. But at any rate, what they were seeking was a cure for what they called soldier's disease. And that is because the soldiers during the Civil War became addicted to what they were getting, which was morphine. Let me tell you something about morphine. It's a product from the opium poppy. It is the most effective pain killer we have discovered. Short of death I know of no other one. It's widely used in the medical circuit, because it's good. 

It helps people out. They had no idea what morphine did, but in the days of the Civil War, I call to your attention, they were still doing surgery without anesthesia. The pain was enormous and it lasted and lasted and lasted. When they could find enough morphine to reduce the pain they used it freely. I pause again and back up. The hypodermic needle was invented in 1847 in Europe. It got to the United States in 1853, just in time for the Civil War. What bothered most of the doctors that were working on patients in those days was the lack of enough morphine and enough needles to keep people from screaming and dying in absolute utter agony as their limbs were being sawed off while they sat there and gritted their teeth. The problem was, of course, they had no idea of the addictive quality. After the war was over and these literally hundreds and hundreds of soldiers and sailors were back, and they continued to crave morphine and use it. 

And they'd do anything to get it. The government supplied it. Then they introduced something to remove morphine. They introduced heroine. Heroine, as we know, has no medical use at all. It isn't worth a damn. It did, however, get rid of their dependency of morphine, but it went into a worse thing. When I was US attorney, by the way, there was a big drive to bring in a different drug that's in use now to get you away from heroine. I want you to know, as an historian I was a little nervous that. Their track record is not exactly great. 

I don't know what the hell that was going to do. I remember too that one of the things that contributes to the problem we have is the fact that we over-emphasis all problems. In the '30's when I was a boy there was a movie called "Reefer Madness." Did anybody ever see it or hear of it? I do not recommend it to you except as a comedy relief program. It predicted the most dire things from the use of marijuana. The response was, of course, that the legislature, state and federal, had to do something about it. They passed more and more and more aggressive laws against the use of it. I want you to know, they're still at it. Just for the hell of it. I've been in this court, as you've just heard, since 1975. And this passed Monday, for the first time I listened to a case involving coke. 

Okay. It's used in the Horn of Africa freely. It got here, I would guess, 1997. It took a while to work it's way up. It is chewed by 98% of the adult population in places like Somalia. They came here and they still continued to chew it. They function, you see, quite well, but we put it on our prescribed list. That's not the first time. The Harrison Act which is the 1914 act that outlawed heroine and the use of heroine and all the other things, had put a few things in. One of the thing they put in erroneously, and this was coca leaves. 

Coca leaves have a narcotic effect, so do cigarettes. So, by the way, does coffee, so does tea. They'd been chewing it for hundreds of years without an visible harm. The coca plants that come from Central and South American were originally grown in the high Andes where life is kind of grim. It's used because it puts you over the tough spots, that you can stand the high altitude, the cold weather. They'd been crewing it for years. When those natives come down from the higher altitudes they frequently, almost always, stop chewing coca leaves and they don't have any withdrawal symptoms. But it on our prescribed list. You can't use it. I yield to no man in my horror of watching people who are addicted to drugs. 

I have, in my years for floating around, seen people in withdrawal on jail floors. It is not anything to watch that's pleasant. But I do think it's over-reacting to put people like that in jail because they're using drugs. There has to be a medical solution to the problem. Ah, there's another area where we have a difference of opinion. I want to read you something from what is from my favorite books. It's a story of law. It was written some long, long time ago. If I can find the damn thing. I brought it with me just because I don't remember everything I'm supposed to. 

[singing nonsense] While I'm hunting I'll give you a couple other statistics. 9/10ths of all the poppy production is in Afghanistan. Did I tell you that? The economic incentive is, it's nine percent of Afghan's economy. When we try to stop it what we're doing is raising the price. By the way, there is a surplus and had been for years and years, of the production on opium for codeine and-- cocaine. See? That's the problem with getting old. I need cocaine. [laughter]  Cocaine came here in the 1880. It has very pleasurable effects they tell me. [laughter] It's the recreational drug of choice among the wealthy. 

Crack just speeds up the thing. Smoking crack is cocaine at a high power. Well, cocaine, if you remember, was talked about as far back as, I get no kick from cocaine? Mere alcohol doesn't throw me at all. It was a very popular song when I was a kid. But I get a thrill out of you, is the song, by the way, if you're curious. My favorite song, however, was during both wars the government discovered the use of another biproduct. They used it to enhance the ability of people to put up with a tremendous amount of hard work. All the armies used it, the Japanese army, the German army, the American army. It came out under the name of Benzedrine as a commercial product. In 1932 it was in use. 

It was not on the prescribed list, you could buy it over the counter. It came in different forms. I remember in 1947 one of the great popular songs was, who put the Benzedrine in Mrs. Murphy's Ovaltine? [laughter] It is now highly prescribed and we're -- all together. I don't know if anyone has been paying the least bit of attention to the number of things that have occurred recently about people in our-- I've got paper to remind about Posner. That I did, and the soldier's disease. We're passed that. The government's use of methadone, that's the one I said bothered me completely. I'll give you a couple of figures so you can get an idea of whether or not we are winning the war. These are statistics on drug-related crimes and where the people are. Nearly half of the inmates in the federal prison were serving time for drug offenses in 2011, 48% of the people in there are serving time for that. 

The government figured that out fairly lately. When I was US attorney the warden of the Cook County jail was a fellow named Winston Moore. He was a guy about this high with head like a cannon ball. He would run his head right into the stomach of a recalcitrant prisoner. But he was a man of sturdy position. I got a phone call from the Justice Department asking, did I know Winston Moore. Certainly, I knew Winston Moore. [inaudible] He said, could you ask him to do us a favor? We have two professors from the University of South Carolina who'd like to interview the prisoners, and he won't let them. I said, well, for what purpose? He said, they've been commissioned to find out whether there's a connection between drug use and crime. I said, what are they receiving for this magnificent thing? He said, $250,000. 

Now remember, this is 1970. It had to be about 3/4 of a million dollars right now. I said, I shall call Winston. I said, Winston, you could make me a big man at the Department of Justice. You could permit these guys. He said, I don't want any pointy-headed professors here. I said, Winston, they're not there to expose the conditions of the Cook County jail. They're engaged on an academic mission to find out something that will help humanity. He said, what is that? I said, they're trying to find out whether there's a connection between drugs use and crime. There was a small pause, then he said, [sound of amazement] [laughter] How much are they paying them? I said, $250,000. 

Aww, I'll do it for 50 bucks. [laughter] But, he said, since it's you William, let them come in. I had kind of a wacky experience when I was state's attorney of DuPage County. To those of you who are not familiar with the Chicago metropolitan area, DuPage County is immediately west of Cook County, just outside. Part of Chicago, believe it or not, is in DuPage County, the western half of the airport intrudes into the DuPage County. It is the wealthiest county in the state of Illinois. It is also the most educated county in the state of Illinois. The average educational level of the adult population is more then 12 years. That's the average. We used to pick jurors with presidents and vice presidents of companies. 

The Chicago lawyers who used to come up thought we'd fixed the jury. But that's who lives here! -- National Laboratory is there, --, lures people of intelligence. At any rate, their idea of a narcotic pinch, to make the headlines, was a druggist who selling -- and wasn't keeping track of it. [laughter] I had the misfortune of making the first marijuana bust, but it also involved heroine. I didn't know where to find it myself, but some newspaper reporter who had recently graduated from -- School of Journalism and we trying desperately to earn at an early age an award for --. He inquired around until he found a 20-year old said he thought he could get some marijuana. He set up a purchase and then the reporter asked him, could he get any heroine? He said he didn't know but he'd look around. He finally called and said, yes, he'd found somebody with heroine and he could buy the heroine. The reporter set up the meeting where this delivery was to take place, then went to see his editor. His editor said, you'd better go to the state's attorney and tell him what you're doing. 

This is illegal possession. So he came to see me. I said, okay, I'll go with you. So I went with him with my chief investigator and he made the bust. Of course, he had the newspaper story, he wrote it. And several letters came to the editor saying that I was giving the county a bad name by making this. Why couldn't I just tell him, don't do it? Get outta town. [laughter] It's a good place to be. They're in favor of law and order. I start that by telling you that there is a difference. 

Have you been paying any attention to the statistics going on now? My state, Illinois, is in a process of legalizing marijuana for medical use. It is, however, the 18th state that is doing that. Eight states have legalized it with that restriction, and two, Colorado and Washington DC, have approved it for recreational use. The city of Chicago about a year ago decided that they would issue only tickets for those who had minimal amounts of marijuana. When I was state's attorney and when I won on the bench the penalty for giving, loaning, or handing to or selling marijuana was at any amount was a minimum of ten years in the penitentiary. If a seventeen year old boy gave his locker-mate in high school a toke, it was a minimum of ten years. It made the legislature look good that they were against crime. The difficulty is that it was ridiculous. It was silly. Most state's attorneys simply ignored it, and a law the is ignored shouldn't be there at all. 

I had the horrible position of sentencing somebody to ten years, a 20 year old. He made three brilliant sales of lousy marijuana. I mean lousy, it was home-grown. You can grow it any place. I gave him ten years, and he pepped me up. I'm the judge! I said, this is silly. And he said, Judge, I know you have to do it. Go ahead. [laughter] When he went to jail I wrote to the governor and asked him to reduce. The governor was Ogilvie. 

He was a friend of mine and a law enforcement officer, former assistant United States attorney and former sheriff. He reduced it to five years. I called him and said, you made a mistake. I wanted it reduced to time served, even if it's only two weeks. This is just ridiculous. About three weeks after that, no three months after that, the Supreme Court of Illinois finally got around to say it was a violation of the Illinois state constitution. It was crueler than usual. But it takes a while for those things to sink in. At any rate, he got out. He spent more time in jail then I would have wanted him to spend. 

I have the Story of Law. "It is directly contrary to the truth that law is something imposed by the legislative bodies upon the people. Acceptance has always been the theory and the fact. No rule of law was ever successful or endured unless it received practice general acceptance among the whole body of the people for the simple reason that the universal human experiences is demonstrated that the rule of law not accepted by a considerable portion of the people can never be enforced. The history of law is strewn and will continue to be strewn with such palpable wreaks of law not enforced or enforceable." The date of the publication of this by this genius was 1922. Nothing has changed since. The Tribune of April the 15th said that polls showed the 53% of the people in the state think that marijuana should be legalized. Nine states have issues pending, 18 have already legalized it, as I said. The fact of the matter is, if there is a war on drugs, we ought to declare that we won and get the hell outta there. [laughter] I think as a matter of practical effect there are better ways. 

There must be a medical solution to these problems. We cannot treat people who are addicted and get caught in it as criminals and punish them. What we are doing is raising the prices to make it more and more attractive for people to grow it, more and more attractive for people to produce it, and more and more people being killed in the process. Even those being shot on the street in gang wars. About 70% of the shootings that go on in the city of Chicago are drug related. They're drug gang shootings because the money is so big. What made the liquor prohibition so poorly run was that the amount of money involved was so vast they wound up tempting people beyond their power to resist, policemen, judges, citizens. Everybody got involved because people --. People took up drinking that would never have drunk before. We wound up with a lot of deaths and a left-over organized crime that's still floating around. 

I think we're slow learners, but what we ought to learn is that medical problems and medical problems. And that legal problems are solved not be passing a law against being sick, but by doing something to make sure that they get well. I admit the difficulty. I admit that it costs an enormous amount of money. But I ask you, in a general sense, what is it costing us now? What is it costing us not to do that? Why, in the name of God, can't we spend that money on something else that is more productive and more realistic, and leads to a realistic conclusion? The war on drugs, I tell you, if there is one, is lost. And that, my friends, is my message. Tomorrow I can read about what a bum I am. [laughter] I'm giving the county a bad name. [laughter] Thank you very, very much. [applause]