 In 1991, Frances Lopez was outside in the carport of her Hawaii home when a police car and van pulled up. Some officers stepped out of the vehicles and show her their badges. Let's go into the house and we will explain things to you, one officer politely said. Once inside the officer delivered the news. We're taking the house. Then the police officers began to take video footage of everything inside and outside of the house. The reason they needed footage was to be able to verify that the Lopez's took none of their belongings with them when they left. They were told to leave everything as it was and then the officers left. And as they pulled off an officer rolls down his window and says take care of the yard we'll be back. The Lopez's who had never been convicted of a crime were officially homeless. Four years earlier in 1987 their son Thomas had been arrested for growing a single marijuana plant. When it happened the Lopez's were actually relieved. They trusted their government. They believed the horror stories that had been told to them about the evils of the marijuana plant and they believed that the police were going to do it was best for their son and finally set him on the right path in life. After the episode they thought the matter was behind them. What they didn't know at the time was that throughout the 1980s the federal government had drastically expanded the asset forfeiture powers of the police to allow the confiscation of any property even suspected of being connected to illegal activity. Even if no criminal charges were filed and in addition to this expansion of powers the government had introduced an asset sharing program that allowed local and state agencies to retain a share of the seized assets to bolster their own budgets. The statute of limitations on these seizures was five years. So when a police detective in Maui was going through old case files he found the four year old file for the Lopez's and realized that their house was the legal property of the government and all they had to do was take advantage of the new laws. Put the Lopez's out on the streets without charging them with a single crime and the Maui police could pocket a good chunk of change from the proceeds. I'm Chris Calton and this is the Mises Institute podcast historical controversies. Although the Lopez's were made homeless after Ronald Reagan left office their horror story is the legacy of Reagan's war on drugs which was really a bipartisan war waged by every member of the government at the time. Today we are going to look at the early years of the Reagan war on drugs focusing on the expansion of government prior to the crack epidemic. By the 1980s drug use was steadily declining but that didn't stop Ronald Reagan from making it his top priority throughout his presidency. Now other people especially Reagan apologists and I'm always a little surprised to be honest at how many libertarians really try to paint the man as a small government guy which is a daunting task in my view but these people may try to make an argument that Reagan really was more concerned with other issues the Cold War or taxes regulations whatever. Whatever arguments may be made about Reagan's concerns as president there was no issue that he would actually specifically bring up to each and every person in his cabinet during cabinet meetings except the war on drugs. Reagan would literally say in his cabinet meetings let's go around the table, cap referring to his defense secretary Casper Weinberger, what are you doing for the one drugs? Then he would ask the same thing to every member of his cabinet one at a time so that every cabinet member would have to come to the meetings with a ready answer as to how their department was contributing to the war on drugs. So when I say that Reagan made the war on drugs his top priority I'm not just speaking out of my own personal bias, no other political issue received this kind of treatment from the president during the 1980s. When he came into office Reagan had several goals for the war on drugs and he outlined these goals in New Orleans when he gave a speech to a police conference there. Reagan said he wanted to eliminate the exclusionary rule which was the idea that illegally obtained evidence would be inadmissible in courts. So he essentially wanted to remove the incentive of police to follow the law. Reagan then said he wanted to inject the military into the war on drugs. He wanted to essentially eliminate bail and parole which had been proposed as early as Don Santorelli's original crime bill in the late 1960s but was removed by the Congressional Democrats at the time. And Reagan also said he wanted to get the FBI involved in the war on drugs and finally he wanted to use herbicides on drug crops. So we are going to look at how these play out in Reagan's early years in office. In 1878 Congress passed a law that would prevent the military from enforcing domestic laws thus fully separating the police and the military. And this was originally done to try to make peace between the southern and northern states following reconstruction. And this law was called the Posei Comitatus Act. And it stood for 103 years until Reagan successfully got it revised so that he could send the military into states to destroy marijuana plants. And by extension to harass private citizens. One of the most significant ways the military was deployed in the drug war was the campaign against marijuana production or camp which was primarily used in California and in this campaign the Air Force actually deployed helicopters over California particularly in Humboldt County in search of marijuana fields. At first the citizens of Humboldt County actually welcomed the military presence. They saw the marijuana growers as a nuisance and some of the pot farms were gigantic. So the Air Force and the National Guard would find these large marijuana farms and then they would send in men to burn the crop. And by the end of the summer of 1983 most major pot farms in Humboldt County had been destroyed. At 1984 there wasn't much need for the military to keep searching out and destroying pot fields. They had already taken care of the large farms but that didn't stop them from being redeployed. Now they were searching for smaller pot fields and this was more difficult so the helicopters had to fly much closer to the ground. Suddenly the military wasn't so welcomed by the good citizens of Humboldt County. The helicopters were kicking up dust so they couldn't see where they drove. The noise was scaring their horses sometimes the helicopters would fly close enough to private homes that they would actually break the windows. In addition to the helicopters camp started setting up roadblocks and they wouldn't just check IDs and move people along they were making families with children get out of their cars and at times hold them at gunpoint while dogs sniffed their vehicle in search of drugs. To expand their efforts they even started enlisting and deputizing untrained recruits who would then go around the community in ransack people's homes without warrants. So the people of Humboldt County were being harassed at gunpoint as the military destroyed their property all in search of marijuana plants and the troops would literally invade somebody's home and when they would realize that the house was clean the soldiers would raid the family's refrigerator and just leave their trash behind for the families to clean up and in other cases they would as I'm sure many terrible terrible stories that we've all heard they would kill the family dog while the family was being held at gunpoint which of course has only become that much more common in the past several decades. I think Radley Bowko on his blog documents all the cases of police officers killing family dogs when they're invading somebody's home and in one instance a camp helicopter chased a nine-year-old girl down a dirt road so this was literally terrorism and all that resulted from these raids was that people moved their marijuana plants to indoor grow houses which led to the development of new methods of cultivation that ended up increasing the THC levels of marijuana significantly and in the small period of time in which it was harder for people to obtain illegal marijuana many of them just picked up cocaine instead. So by 1985 the people of Humboldt County were far less concerned with pot farmers than they were with the terrorists flying helicopters in search of the pot farmers so with the help of normal they filed a lawsuit against camp and a judge ruled that camp helicopters could not come within 500 feet of private homes and the troops could not enter private property without a warrant and the recruits had to go through stricter training. All of these orders were ignored as the campaign continued as before without any enforcement of the actual law against them. Although it is not as serious as it was in the 1980s by the way the campaign against marijuana planting is still in effect in this country today. The removal of the exclusionary rule is one of the major violations of the Fourth Amendment which again made any evidence obtained illegally inadmissible in court I think I talked about this in a previous episode. Now one of the biggest advocates of doing away with the exclusionary rule was Edwin Meese who if you're familiar with it is the editor of the Heritage Guide to the Constitution. So that should be about all you need to know about the Heritage Guide to the Constitution. And the logic behind this was downright sickening makes any talk of rights by Republicans who aren't Ron Paul downright laughable on the topic Rudolph Giuliani spoke out against quote one procedure after another that glorifies the rights of the accused above everyone else's things. But he's horrified that the criminal justice system upholds the rights of the accused. How terrible. So the beginning of the dismantling of the exclusionary rule came from a Supreme Court case entitled Illinois v. Gates. Lance and Sue Gates were reported in 1978 as being drug dealers from an anonymous note by a neighbor. At this time an anonymous tip was poor grounds for obtaining a search warrant. There was too much potential for abuse. The cops could make up anonymous tips. People could be giving anonymous tips to sick the police against people they don't like or even rival drug dealers. So it was a sketchy basis for issuing a warrant. Prior to this case there was supposed to be a two prong test to make sure the warrant was legally issued and the first prong are the facts and the second is the informants reliability and anonymous tips simply don't meet the second prong. But Detective Charles Mader who received the tip figured it was worth a shot and he found a judge willing to sign a warrant for this tip. So Mader took the warrant and showed it to Lance Gates to search his trunk. Gates put up no fight and inside his trunk was a sizable supply of marijuana. So Gates calls a lawyer named James Riley and although Riley knew the Gates were guilty of dealing drugs he noticed that because the warrant was issued off of an anonymous tip it did not meet the two prong test and was therefore legally invalid. He decided to cite the exclusionary rule as the defense. The trial judge who tried the case William Hopf cited with Riley and the Gates the exclusionary rule was pretty black and white on this issue. The warrant was illegal but the opposition filed an appeal. No good. The appellate judge upheld the ruling. The exclusionary rule still applied. Then the case came to the Supreme Court. By the time Riley argued the case in front of the highest court in the land it was 1982 and Reagan was in office. Riley made his case just as he did in the previous two hearings and he felt confident that he was going to win again. But this time the Supreme Court ruled against Riley and held up the warrant as legal. This was a decision with major implications on the way warrants could be obtained in the future. William Rehnquist a year later talked about his decision in voting to uphold the warrant. He said quote, it was a classical case of one side having the facts and the other side having the law. A majority of us felt that the facts simply reeked of probable cause. In other words the law applied to drug dealers but it did not apply to the police or warrant issuing judges. Rehnquist and the Supreme Court justices knew that the warrant was illegally obtained but they upheld it anyway. This opened the door for what's called the good faith exception to the exclusionary rule. In the 1984 Omnibus crime bill which I'll be talking about in a few minutes, Strom Thurmond tried to insert a provision that would allow police officers to use evidence obtained illegally as long as the officers were acting in quote unquote good faith. Now the house killed this provision but it didn't matter because in 1984 the Supreme Court tackled another case called United States versus Leon. This case revolved around Albert Leon who was arrested for selling quailudes. But like Illinois v. Gates the warrant was illegal and the lower courts ruled to throw out the charges. When the Supreme Court upheld the ruling the language used in the ruling was so similar to Strom Thurmond's language in the original draft of the Omnibus crime bill that it's difficult to believe the judges weren't deliberately inserting this provision from the bench. So even though Reagan could not get Congress to pass a law doing away with the exclusionary rule the Supreme Court jumped in and took care of that goal for him. So every branch of the government played a role in aiding the war on drugs. When the ruling in United States v. Leon was issued William Brennan said quote, the court's victory over the Fourth Amendment is complete. Justice Brennan was saying this quote as a celebration of the court doing away with the Fourth Amendment but a year later even he would come to realize how tyrannical the government was becoming in the crusade against drugs. So after a suit was levied against the government for making women traveling into the United States go through rectal exams and defecate in front of customs agents to verify that they weren't drug mules the court upheld the law allowing them to do this. And now William Brennan dissented and in his dissent he compared the customs agents to kidnappers. Later in 1989 when the court upheld the government's right to demand random urine tests from people Brennan was part of the dissent again famously writing that quote, there is no drug exception to the constitution. Now it's a famously quoted line I've seen this in several drug histories that I've read but it's usually quoted by people who forget that for years William Brennan ruled in favor of any number of drug exceptions to the constitution and loosening the requirements to obtain a warrant. But after playing a pivotal role in doing away with the exclusionary rule and replacing it with the good faith exception that drastically increased police powers William Brennan decided the government was going too far. At this point the court was upholding the right for federal agents to rummage through citizens garbage in search of illegal substances. It was upholding the right of customs to hold travelers hostage until they defecated in front of witnesses. And it was upholding the right of police to use helicopters to spy on private citizens by hovering in front of their home and literally watching them through the windows. So this last case is really telling the court upheld the right for police to hover 400 feet from somebody's home in a helicopter to spy on them. This was only a few years after 1984. And let me read you a passage from George Orwell's 1984 to illustrate how Prussian George Orwell was. Quote, the black mustachioed face gazed down from every commanding corner. There was one on the house front immediately opposite. Big brother is watching you, the caption said. In the far distance, a helicopter skimmed down between the roofs, hovered over an instant like a blue bottle and darted away again with a curving flight. It was the police patrol snooping into people's windows. So this scene from 1984 is actually what was taking place in the 1980s as part of the war on drugs. And it was upheld as legal by the Supreme Court. So Justice Brennan, who played such a major role in paving the way for these tactics to become legal actually quoted this passage in his dissent on the ruling for using helicopters to spy on citizens. And a month later, he tendered his resignation from the court. One of the biggest players behind the push for asset forfeiture was not a Republican. It was a Democratic senator named Joe Biden. In 1979, he requested a report from the government accounting office on the use of the 1978 RICO law that was completed early into the Reagan presidency. And the report said that, quote, the government has simply not exercised the kind of leadership and management necessary to make asset forfeiture a widely used law enforcement technique. In a bipartisan effort, Reagan achieved his goal of bringing the FBI into the war on drugs by enlisting them to help confiscate the assets of possible drug criminals. And this came about through the introduction of the 1982 Comprehensive Criminal Forfeiture Act, which was introduced by Joe Biden and Hubert Humphrey, both Democrats. This would allow the government to seize assets that were believed to be related to drug revenues without requiring proof. And it is the provision that gave the five-year timeframe that allowed the Maui police to steal the Lopez's home four years after their son's arrest. But this would only be the tip of the iceberg and the expansion of abusive powers under the Reagan administration. In 1984, Reagan was finally able to pass the first of his major drug war laws, which was the omnibus crime bill. This was actually first passed by Congress in 1982, but Reagan vetoed it, not because he thought it was too much of an increase in government, but he vetoed it because it would have required the Senate to approve his drug czar, Carlton Turner. And Reagan did not want Congress to have any influence over the position. Now you think about this, just if I can digress a little bit on this notion that Reagan was a small government guy, Milton Friedman was a big, big supporter of Ronald Reagan, but he even wrote an open letter to Ronald Reagan, criticizing him for not using the veto against a bunch of bad anti-free market laws. So Reagan was clearly willing to use the veto, but only when using the veto would have allowed Congress to retain some of its power from the executive office. So this notion that Ronald Reagan is in any way a limited government guy is just absolutely mind boggling to me. That's just my personal perspective, sorry for the digression, back to the war on drugs. So this bill was finally passed in 1984 without the provision requiring Senate approval of the drugs czar. So this bill made punishment against drug users drastically harsher. It ushered in Reagan's parole reform by replacing it with supervised release. It let prosecutors appeal sentences, which had traditionally only been allowed by the defense. So think about how draconian this actually is, a judge hands down a sentence and the prosecution can make an appeal to make the sentence worse. The bill also brought about bail reform by abolishing the possibility of bail for people who were being tried for a drug crime that might have a 10 year or more sentence. And perhaps worst of all, it did away with the policy of expunging the records of first time drug offenders between the age of 18 and 26. So think about the implications of this today. These kids get picked up for dealing drugs and they spend some time in jail and they get out determined never to go back. But then as is so often the case, they get out of prison and they have no ability to get a job because anytime they apply for a job or student aid, which is monopolized by the government in the first place, or they apply for anything that may actually give them the opportunity to get away from drugs, but they have a felony record and they can't move on. So they get pushed back into dealing drugs. So this provision literally creates a cycle of arrests until somebody finally gets enough violations to be imprisoned for life. The omnibus crime bill also expanded asset forfeiture powers drastically, adding greatly to the criminal forfeiture act from two years prior. Prosecutors could confiscate with zero proof houses, bank accounts, cars, boats, investment accounts and literally anything else that they believed to be earned from drug sales all without charging the person with a crime. So this reversed the traditional burden of proof. The apologists for the American criminal justice system loved to parrot the phrase innocent until proven guilty in which the burden of proof was on the government. The omnibus crime bill changed it so that in asset forfeiture cases, it was the burden of the citizen to prove that they were not guilty of any crimes before they could get their property back. And as you can imagine, this was and still is grossly abused by authorities to bolster their own budgets. Another digression, if you'll forgive me on this, Reagan of course was very much known for fighting against the Soviets in the Cold War and a lot of people credit him with finally dismantling communism because Lord knows communism won't collapse on its own because it's so stable, right? So only Reagan could have done this. So he's the anti-Soviet president in so many ways. But in the Soviet Union, the KGB or MKV or whatever they were called throughout most of the time, they had a phrase and I don't remember a word for it. I didn't look this up and put it in my notes. I wish I had, but it was something essentially to better 1,000 innocents go to prison than one guilty man led free. So it's kind of the Soviets version of where we say innocent until proven guilty. They say guilty until proven innocent in other words. So Mr. Anti-Soviet Union ending the Cold War president essentially ushered in Soviet type criminal justice system in many ways with this omnibus crime bill. And one of the major reasons that asset forfeiture was so abused as in the case of the Lopez's is that one of the provisions included in the bill would allow any seized assets to be shared among any law enforcement agencies in a case. So now we have an incentive for state and local police to look for any opportunity to seize valuable property because they get a portion of the money made in the auction or a portion of the cash seized in its own right. This actually changed the way drug busts are made where they used to try to bust people selling drugs. Now a lot of times the cops will wait until a drug transaction is completed allowing the drugs to go onto the streets in many cases but they bust the person once they've taken the money because they would rather seize the money than the drugs. So even from a drug warrior perspective where the idea is to get the drugs off the streets this is actually counterproductive because the cops like anybody else are much more interested in the money than in the drugs. Now I'm gonna skip over the monumental 1986 anti-drug abuse act because I wanna talk about that in another episode after we looked at the cocaine boom of the 1980s. But we have one last point regarding the drug war goals that Reagan outlined at the beginning of his presidency that I haven't covered and that's the use of herbicides. Now if you remember from the previous episode the Carter administration was already using Paraguay on marijuana plants in the 1970s. In 1983 a US district court ruled that because of the dangers of Paraguay the herbicide was illegal to use on public lands but it was still legal for the government to spray Paraguay on private lands. So throughout the 1980s the government was using herbicides against marijuana. But at the end of the Reagan presidency in 1988 the federal government expanded this in a program called Operation Stop Crop. This was largely an extension of the campaign against marijuana planning which was still being used to terrorize citizens illegally. So Operation Stop Crop increased the presence of the National Guard to combat marijuana farms which by this time were hardly present at all because they'd already destroyed most of them. So the government decided to use three herbicides. Paraguay was no longer legal to use in public forests so they just sprayed it on private property. On public lands they used herbicides called 2-4-D and glyophosate. This program was executed in 47 states and the program was heavily pushed on other countries particularly Mexico and South America. The practice of spraying herbicides on poor farmers would continue into the 2000s by the way destroying the livelihoods of third world farmers, poisoning drinking waters and having no discernible effect on the supply of drugs all of which dropped in price and continue to drop in price over time. So that's the legacy of these policies. There's one other thing I wanna talk about in this episode. Ever since the 1970s there was increasing pressure to reschedule marijuana so that it could be used for medicinal purposes. Bob Randall, the first and one of the only citizens to ever get legal marijuana supplied by the government's marijuana farm at the University of Mississippi, started an organization called the Alliance for Cannabis Therapeutics. By this time Randall was speaking around the country about the therapeutic benefits of cannabis for various illnesses. He found studies showing that cannabis could control seizures and epileptics, something even Dr. Ben Carson talked about during his presidential campaign. Randall talked about the use of cannabis to help control the spasms suffered by paraplegics. In fact, in 1983 a quadriplegic named Michael Tate was thrown into prison for illegally using marijuana for this exact purpose. Now think about that. In an effort to save people from themselves, the government is throwing people into prison who are paralyzed from the neck down just because they use marijuana to help treat their condition. I mean, this stuff should make your blood boil. Another interesting case I have to talk about is AIDS which of course was gaining a lot of attention in the 1980s. In the early 1980s a pot dealer named Dennis Perone noticed that marijuana was very effective treatment for increasing the appetite in AIDS patients who often suffered from anorexia triggered by the virus. And marijuana did not have the side effects that other AIDS medications had. So a doctor in San Francisco where Perone and others were working with AIDS patients recognized Perone's findings. And he was a professor of medicine at San Francisco's University of California. And he wanted to study the use of cannabis on AIDS patients. So he did what any scientist in the United States had to do to get approval for a legitimate scientific study. He wrote a proposal to the US government seeking permission to get marijuana from the University of Mississippi Pot Farm. And this was the only way to conduct a publishable study in the United States on marijuana. And in his proposal he said he wanted to study a way that cannabis could be used to treat AIDS patients. The National Institute on Drug Abuse declined his proposal. In a letter to him one of the NIDA directors Alan Leshner he said quote, Donald we are the National Institute on drug abuse not for drug abuse. So NIDA was essentially saying that any scientific research that looked at medicinal potential of cannabis was per se illegitimate. So Dr. Abrams wrote a new proposal and this time he said that he wanted to look at the possible harmful effects of AIDS patients using marijuana. So this was literally the same study but now he wanted to show that marijuana was harmful and lo and behold, the National Institute on Drug Abuse approved the study and Dr. Abrams concluded that cannabis was surprise, surprise useful for AIDS patients in getting them to gain weight without further compromising their immune system. Anyway, Bob Randall and another well-known pot activist a medical doctor named Todd Macuria, they were going around the country speaking about the therapeutic uses of marijuana. So the government was under increasing pressure to find some way to appease these activists without legalizing marijuana. So in the late 1970s, the government started trying to get a synthetic version of THC. In the 1960s an Israeli scientist named Rafael Machulum first identified THC as the psychoactive ingredient in marijuana. So this is what the federal government was concerned with. The FDA was worried that the fact that if they rescheduled cannabis, it couldn't be patented. You have to love that they were concerned with how to protect the intellectual property of a plant. One FDA official actually said, quote, there's no profit incentive to develop marijuana which is the common economic line regarding patents. So Colorado must be an enigma to these people. Anyway, the FDA decided to try to find a synthetic version of THC to make available with a prescription. The problem with this is that THC is only one of the 420 chemicals in marijuana in addition to more than 60 cannabinoids that have been identified. And there's no evidence demonstrating that THC is the chemical that actually has the medicinal effect. It's just the psychoactive chemical. In fact, medicinal marijuana, because of its many chemicals and cannabinoids is said to have what's called an entourage effect when it's used medicinally being that there are multiple chemicals that work together in its therapeutic functions. But the FDA wasn't concerned with this. They thought if they could get a synthetic version of THC, it would do away with all this medicinal marijuana nonsense people like Bob Randall and Dr. Todd Mercurio were going on about. So the first drug experimented with was called Nabilone. Nabilone was a pill version of synthetic THC which means that it already had two problems. Swallowing THC, remember makes it far more potent and taking it in pill form would make the entire dose hit you all at once. Plus, for chemotherapy patients battling extreme nausea, they're likely just to throw the pill up before it could take effect, assuming that the THC was even the chemical that helped chemotherapy patients. But Nabilone was never approved for public use because it had a bigger problem. When the drug was given to dogs during testing, they were perfectly fine for 54 days. But on day 54, for whatever reason, the dogs would drop dead. The synthetic marijuana substitute was officially deadly whereas no death from marijuana has ever been recorded. So in a great act of cronyism, the government takes all the research it has on marijuana and hands it to a small Illinois company called Unimed. Unimed only had two products on the market which were just over-the-counter oral hygiene products. So this was a really odd company to go to for the development of a new prescription drug but the government gives Unimed all of the tax-funded research it had compiled over the years and offers them exclusive rights to the marijuana substitute. In 1985, the FDA approved Unimed's new product called Marinol. Marinol actually became the first drug to be legally scheduled under its brand name rather than its chemical name. It was only made available to chemotherapy patients despite having the same problems as Nabilone being a strong single-dose pill. And of course, it did not have the entourage effect of actual cannabis. And although Marinol did work for some patients, many others had problems with it. The synthetic THC taken orally made some people so heavily stoned that they actually hated it. They didn't like being so stoned. And for many patients, it didn't even remove the nausea. But most significantly, with Marinol being the only legal substitute for medicinal marijuana, it was not available for the more than 100 other medical conditions marijuana has been used to treat for hundreds of years. So this is by no means the end of the story of the war on drugs under the Reagan presidency. And in fact, the next two episodes, I will be talking about this. So you are definitely going to want to listen to these episodes. The next one, I'm gonna talk about the cocaine and crack epidemics. You might be wondering why that's strangely absent from this episode on the Reagan war on drugs. It wasn't really until the mid-80s, which is where I'm stopping here, that cocaine really started exploding in the media and in the episode after that, I will finish up the Reagan war on drugs, talking about the 1986 bill and the ramifications of all these policies. So if you have not already subscribed to the podcast, you definitely want to do so. And until then, thanks for listening. For more content like this, visit mesis.org.