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George Fisher, "Beware Euphoria: The Moral Roots and Racial Myths of America's War on Drugs" (Oxford UP, 2024)
01:03:06
An interview with George Fisher
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George Fisher
Welcome.
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Marshall Po
Welcome to the New Books Network.
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Emily Dufton
Hello and welcome to New Books in Drugs, Addiction and Recovery, a podcast channel on the New Books Network. I'm your host, Emily Dufton, and today I'm talking to George Fisher, whose new book, Beware the Moral Roots and Racial Myths of America's Drug War was just released by Oxford University Press. George is the Judge John Crown professor of Law at Stanford Law School, where he has been teaching and writing in the realms of evidence, prosecution practice and criminal legal history since 1995. He began practice as a prosecutor in Massachusetts and later taught at the law schools of Boston College, Harvard and Yale. Beware Euphoria is the most recent among a slew of other books, articles and essays that he's published over the years, and I'm excited to talk with him about it today. Welcome to the show, George.
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George Fisher
Thank you, Emily. It's really my honor to be here, and I appreciate the invitation very much.
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Emily Dufton
Before we get started on Beware Euphoria, I'd like to ask a bit about you because this book seems like a bit of a departure from your previous writing, which includes titles like Evidence by the Video Method and Criminal Practice A Handbook for New Advocates. How did you go from writing about law to writing about drugs?
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George Fisher
Well, I did not see them as two different things. I will say I started out in life as an adult, at least as a prosecutor. That was my first real job out of law school. And at the time, this is the late 80s and early 90s, the criminal system really revolved around drugs in many different ways. And in so many ways, the illegalization of drugs drove the rest of the whole crime scene, in the sense that many people addicted on drugs, of course, commit other crimes, robberies and burglaries and such. So I was seeing over and over again in the system people who were either trafficking in drugs or were caught up in the drug trade, addicted and therefore committing these other crimes and being swept into the system and into prisons. And so later, when I moved on from being a prosecutor to teaching and being an academic, I wrote a lot about criminal law in general, about the history of prison reform and history of plea bargaining. But at some point I realized that the thing that was at the center of my whole understanding of law was the illegalization of drugs. And so what prompted this book was just a desire to get historically to the bottom of our ambition to try to rid the world of drugs and to see where all that evolved from.
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Emily Dufton
That's amazing. I also want to ask a bit about your research in the preface to Beware Euphoria. You wrote some books Take a Village, this one Took an Army. And honestly, I don't think I've ever seen more names in an acknowledgment section or frankly, more footnotes. It seems like you all read every newspaper magazine like a scrol in like, ever published. I mean, not just big newspapers like the New York Times, but small local newspapers published in the Rocky mountains in like 1887, you know. So how much research did you do for this book and what was that process like?
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George Fisher
Well, it's embarrassing to say when I began this book, but. But since you've asked that question, which I appreciate a lot, I started this book in the spring of the year 2000. And so over those many years in, I hired boy droves of student research assistants who were. Who were amazing and without whom I could not have done this. And back then, although there were some online resources, there were very few. And especially when it comes to old newspapers, which really are the best source of information when it comes to the making of these old laws. Because back then, state legislatures did not keep any sort of detailed legislative records. They recorded the numbers of votes cast in one direction or another on any particular bill and who sponsored a bill. But debates were not generally recorded in any legislative records, but they were often recorded in local newspapers. And local newspapers often spoke to the people involved in the making of these laws. And then they had their pulse on the community because these were often tiny newspapers that served just a few towns and really knew what the population was thinking about these issues. But getting at them was in the days before all these old newspapers were digitized and put online, what was required was to send for scrolls of videotapes from libraries across the country and then on a timeline, because they did not want to be lending out their videotapes for long. Their old microfilm rolls, I should say, not videotapes. And I would hire students to go scrolling through these microfilm reels and copying down articles that might bear somehow or other on the issues behind the making of these old laws. And just was very, very labor intensive. And then some arguments just are of their nature labor intensive. If you want to say that that something did not influence the making of an early law, then you're hunting for the absence of something, which means hunting exhaustively. So it was just. It was. You were right in perceiving it was just a very labor intensive undertaking.
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Emily Dufton
Oh, but blessings rain. May they rain upon that army of student researchers. I am so intensely just appreciative of their work and really impressed by it. That's awesome. But don't you love that like. I love that kind of research. I love the ability to go microfilm of newspapers that, you know, this is the only surviving record of that. It's a really extraordinary. It's a really extraordinary privilege to be able to look at stuff like that.
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George Fisher
I agree. I think there's nothing more fun in research than picking up some old document that has lain hidden from eyes for many centuries and finding something there that is wholly unexpected.
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Emily Dufton
Totally. And it will always keep us one step above AI. Right. That's how historians will maintain their relevance.
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George Fisher
Yeah, exactly. Exactly. No, I think that's got to be true. And yet, I don't know. We may all be obsolete soon.
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Emily Dufton
Well, that's uplifting. Well, so let's get into beware euphoria. First of all, what does that mean beware euphoria. Should I avoid the HBO series and your subtitle like moral roots and racial myths? There's a lot going on there. Those are some big terms. So what do you mean by all of this?
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George Fisher
Sure. So at bottom, I believe and have argued in the first half of this book, what gave rise to early anti drug laws was an ancient moral impulse, essentially moral impulse, an aversion to pleasures that disable our reasons, that disable our minds. And you can find very well expressed and very clearly set out arguments in this fashion in a very old moral teaching, say in the early Christian era against non procreative sexual and later during the Puritan era, in very similar terms, as though swallowed whole from these old teachings about sex, these Puritan theorists of the 17th and early 18th centuries converted the same ideas against drunkenness, the same sorts of arguments which focused on the exaltation of human reason as being our godliest attribute and the one therefore we most should prize. And setting against that godly reasoning capacity are those pleasures that undermine reason, the bestial pleasures, sex being the pleasure of our moral universe. And then drunkenness, of course one and then from there the analogy to drug intoxication is really very direct. So that's the moral roots part and the beware euphoria then is certainly not my advice to the world to beware euphoria, but rather was the attitude taken by moralists over the centuries against these sorts of mind disabling pleasures was beware euphoria as not all pleasures. Many pleasures are thought to be refined and delicate. Good music and good food and good wine might all be considered to be more refined pleasures. It's those pleasures that are more beastial or appetitive that were condemned. So that's half of the book. The other half, the part you referred to when you mentioned the racial myths is that for about half a century historians have argued that what lay at the roots of our anti drug regime in this country, in this culture, were essentially racist motives that lawmakers banned opium dens and opium and certain especially smoked opium because it was associated with the Chinese immigrants of the mid 19th century who became widely hated in openly racist terms in the West. So the racism was real. But. But the connection between that racism and the banning of opium dens is not something that the record sustains. Later similar arguments were made with regard to the illegalization of cocaine as having been driven by fears of violent, highly sexualized African Americans in the South. Again, those stereotypes were present and you can find clear expression of them. But the Earliest anti cocaine laws seem to have nothing to do with them later. Similarly, in the world in which you've written with regard to the illegalization of marijuana, the same arguments have been brought to bear, except now directed at the. At the heavy immigration of Mexicans after the Mexican revolution in the 1910s. That stream of immigration was real and in some parts of the country it did spark a certain panic. Not as nearly as widespread as the other sorts of panics we've discussed, but still was linked in many historians minds with early laws against cannabis which just again is not born out. And so over and over again we just see that this theory that has held sway in the realm of historical research into the drug war, the racially motivated notions, or the notions that these early laws were racially motivated, just isn't borne out by the evidence.
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Emily Dufton
This is a really contrarian book, which I should say is kind of my favorite thing about it. But you're offering a history of drugs that goes against the established narrative and you acknowledge as much. But you're going against some big names here. Right, Like David Mustow and David Courtright and Richard Bonney. So I was wondering if you could talk a bit more about. You broached it before, but if you could talk us a bit more about what you'd say the established narrative is and what beware euphoria argues instead.
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George Fisher
Yeah, so you did name the big names. And especially David Musta, whose work I deeply respect. His American Disease, which was effectively the history of the Harrison Anti narcotic Act of 1914, was magnificent work.
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Emily Dufton
It's a bible. It's a Bible.
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George Fisher
Yeah, exactly. No, it's come out many editions and I think it's probably in this realm the history of Anti Drug law is the best known book, although David Courtright's Dark paradise is extremely well known. And then also Bonnie and White Breads, the marijuana conviction. These are all very well known books and very well researched. It was. It's in David Mustow's case, and I think he was. He and Bonnie and White Bread together first started articulating this racially driven thesis about early drug laws in the early 1970s. And in the time frame research by David Mustow, the evidence is more present that racial motives had begun to influence the making of anti drug laws. Mustow focuses most deeply on the congressional deliberations around the Harrison act. And there perhaps real racist motives emerge. Or perhaps what happened then was a certain strategic appeal to southern senators who otherwise in defense of states rights would have been opposed to federal narcotic legislation. But who could be won over, at least the proponents of the Harrison act believe, by spreading before them the notions that coconaised African Americans in the south were raping white women while high on cocaine and therefore touching the racist impulses of these southern senators. The racism was real. And in this era, I think it might be true that the appeals to that racism were very frank and on the record. But by the time the Harrison Anti Narcotic act became law in 1914, 46 states already had banned cocaine. And so the story of anti cocaine laws can't be found in the history of the Harrison act in 1914. It has to be found in those states that began banning cocaine a generation and a half earlier in the late 1880s. At that time, the history of cocaine showed no focus around use by African Americans. Cocaine was not an import from, say, Colombia, the image we might have of it today. At the time, cocaine was an import from Germany and Austria. It was made by the Merck Chemical Company. It was an ophthalmological drug, one used to desensitize eyes during surgery and was used in that manner. And I hope, by the way, you can correct that. Let me try it one more time. Cocaine was not an import from Colombia, as we might imagine it today, but an import from Germany and Austria. Made by the Merck Chemical Company for use during eye surgery. It was a local anesthetic that could be dropped into the eye and would desensitize tissue and permit surgeries without the pain and trauma they once had occasioned. The earliest users and the earliest abusers of cocaine were therefore doctors and doctors, wives and doctors, girlfriends and pharmacists and their wives and girlfriends and people who were invested in a very white medical establishment and not at all what became later the stereotypical image of persons of color who were trading in and high on cocaine.
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Emily Dufton
What I like about your book is that you go back and you put things into context and not just to early state laws in the 1800s, but way back to Christian theology and theology and the ancient Greeks and like Boston in 1673 when increase Mather is delivering a sermon against drunkenness. But he's not just railing against alcohol, right? He's railing against anything that causes someone to lose their sense of reasoning. There is a sort of moral imperative to sobriety of thought that was really important, but it didn't surround every drug because, as you point out, we found a way to make peace with alcohol. And that's really interesting. So can you talk a bit about the role alcohol plays in your book and what you call monogamy's paradox.
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George Fisher
Well, thanks for asking that question. My first image when I began this book was to think of it as an exercise in deciphering why it is we treat alcohol so very differently in our culture from these other drugs. I think the first theory I had of this, and probably the first one that would occur to so many people, is that alcohol is deeply dug into Western culture and it was the devil we knew. And these other drugs came from other cultures, opium from at least smoked opium from China and marijuana is safe from Latin America. And therefore we rejected them as being the outsider drug, the evil invader in some ways. And that notion just didn't seem to wash with me, in part because I just imagined a world in which we were all the same race, whatever race that might be. And then I asked myself, in this world, would all these drugs be legal? My strong belief is the answer to that question would be no. And we can look around the world and see that in many far more homogeneous cultures besides the United States, not only are drugs illegal, but often much more strictly and severely penalized than here in the United States. I don't think there's anything about the heterogeneity of our culture that is invested deeply in banning these drugs. Then the paradox remains. Why is alcohol different? The next image that occurred to me was, well, maybe if alcohol were in the common mindset, in the minds of the mainstream of our culture, maybe if it held a similar pharmacological position in the sense that if you could imagine that alcohol were the same drug, it is in fact that works the same way. But imagine now that the only means of administering that drug were in a one shot swallow that carried the same wallop as 10 shots of vodka, so that one couldn't drink without getting drunk, would that drug be legal? And I think the answer to that question is no. It has nothing to do with how deeply invested alcohol may be in our culture. If alcohol were purely a drunkenness agent, it wouldn't be legal. Historically, and probably not even today, the reason alcohol is legal is that in mainstream use, in respectable American, the middle of our culture use, alcohol is not a drunkenness agent. It's something that we take together with meals, and that's part of therefore normal nutrition and maybe making meals more appetizing. But more importantly, alcohol is a social lubricant. That's a cliche, but it's true in many ways that many social gatherings become more communicative, more interactive, more intellectually engaging, when a little bit of alcohol. Not a lot, of course, but when a little bit of alcohol is present and that there is a very strict notion that this kind of social drinking should not veer into drunkenness. It's considered improper to get drunk at a friend's dinner party, maybe among youth, 18 year olds, 19, 20 year olds who are at a different point in life and are treating alcohol as an agent toward a certain sort of escape or abandonment or experimentation, that's different. But in adult culture, drunkenness is just not the thing to do and it certainly doesn't improve intellectual engagement and exchange. And I think that's the image that mainstream America has of all these other drugs to some degree, with reason, that even if you take the most mild of these other drugs, cannabis, cannabis may not be dangerous in the sense that it doesn't kill people. With rare exceptions, it's not as deeply addictive. Though it is addictive for some people, it's not as strongly addictive as many other banned agents and perhaps not even as much as is alcohol. But one thing I think is true in many people's imagination of cannabis is that it doesn't improve conversation. It might relax, it might ease social gatherings in some ways, but it probably doesn't deepen an intellectual exchange. That's the you mentioned a moment ago. The exaltation of reason as being at the moral core of our laws against drugs, drugs, alcohol, in smallish quantities is thought actually to exalt reason and to enhance reason and intellectual engagement, whereas these other drugs are thought to dumb it down.
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Emily Dufton
I read recently that 38% of Americans don't drink any alcohol at all. You know, I mean over a third of us don't drink at all. And this is the most commonly used, most easily accessible and certainly most legal intoxicant available. But you know, God, 38% just, you know, this is, it's not, I think, as widely used as we think too. It's fascinating.
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George Fisher
Yeah, that's a good point. And one other thing to remember about alcohol is if you as widely invested and deeply dug in it is into our culture, you can look around hard without finding any expression of how great, any commercialized expression of how great it is to get drunk. The makers of alcohol are very careful not to brag about its intoxicating power.
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Emily Dufton
Right. So we kind of have these two guiding social necessities determining American drug policy. Then these two sort of, you know, like waters that our collective imaginations are swimming in, which is morality on one side, the well known sense of American puritanism where intoxication is a bad thing, but this like acceptance for the convivial bar room on the other, because that's the one place where it's a social lubricant and it's okay and it keeps things going. It's like the one place we're allowed to blow off steam that's socially acceptable and this affects our approach to other drugs. You talked a lot about opium and cocaine and I'd really like to talk about how has it affected our approach to cannabis.
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George Fisher
So that was a great question. And one something let me thank you. Right. Now, before I forget to. For having read the book so carefully and having so deeply grasped what I was trying to say. It's something. You've written some tremendous books, and I know that probably every author worries when expressing something in print, that it will be misread or in some way distorted. And I appreciate greatly how carefully you've taken in these ideas. But the question you just raised is a really important one, which is, what is that the analogy between alcohol and these other drugs is in the style of the regulation of the drugs, where the notion is that some use of these drugs is accepted and tolerated as necessary. This very old moral aversion to pleasures that disable the mind always had and an exception for what was necessary. So even in the writings of St. Augustine. Augustine, back in the. Even in the writings of St. Augustine back in the late 4th century, he talked about how necessity could create an excuse for what would otherwise be deeply immoral. And he said even incest in Eden was an acceptable undertaking given the necessity of the situation. That is, the human race would have ended right there if there hadn't been some moral tolerance of incest. But he said, as soon as the necessity ended, so too did any allowance of this sin of incest. That notion of necessity and the way it can create an excuse for what would otherwise be unlawful indulgence or sinful indulgence extends down through the centuries into these other realms and in alcohol, at least in our modern world, that necessity is this social lubricant, the socially enabling impact of alcohol. In the case of opium and cocaine, it's very clearly the medical necessity that has separated permissible use from forbidden use. And there virtually was never, and perhaps there has never been a law in this country banning opium without making an exception for medically authorized uses, and true as well, of cocaine in the case of cannabis, we're so used to the idea that it is something revolutionary to authorize and legalize medical cannabis, something that in our very modern world dates back only to the 1990s. But the earliest drugs against cannabis across the country, with, with the exception of just one or two states, always permitted medical use. So that what was revolutionary and weird was not what we are doing today by legalizing medical cannabis. It's what happened in 1970 when medicalized cannabis was banned and when cannabis was made a Schedule 1 drug without any recognized medical use. That would be a historical anomaly which today we are undoing, as I think is right, as I think we ought to be undoing.
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Emily Dufton
So the chapter on pot and Especially the material on Harry Anslinger was my favorite part of the book, and I really liked it because you took Anslinger, someone who has become kind of a caricature culturally with his portrayal in Johann Hari's Chasing the Scream and the movie The United States vs. Billie Holiday, although he had too much hair in that movie, it drove me nuts. But you contextualized him. There's the image of the man and then there's the reality that you found in all these old newspapers and stuff. So when you took a closer look at the evidence, you came to somewhat different conclusions about this person. And I'd love it if you could tell us a bit about what you learned.
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George Fisher
Sure, yeah, no, and thanks for that question, too. Anslinger is just a very remarkable character. He was, as a private individual, probably deeply racist. There he collected these snippets which became part of his notorious Gore file, the G O R E file, I guess, so named because these were sort of stories of blood and gore surrounding people who used cannabis and then became violent. But. But beyond the violence that seems to have obsessed him was the sex. And he would collect stories of. Well, to be just plain frank about it, he would collect stories about African American men who got young white women pregnant while high on marijuana. This is something that seems to have fascinated and captivated him and obsessed him. And so he's been painted by modern historians, and probably rightly so, as a racist. But then that's been carried by modern historians further to suggest that he deployed these racist notions in trying to win public support for the 1937 Marijuana Tax act, which was his signature anti cannabis undertaking. That act did pass, but you can look really hard at the legislative record of the making of that law. And of course, by the 1930s, congressional records, and congressional records, really, going back a while, have been much more fully documented than state legislative records. And the debates surrounding the enactment of the Marijuana Tax act reflect barely a breadth of any sort of racially driven notion. What drove the making of that act was the fear of the corruption of youth, sexually and otherwise, by cannabis ingestion, marijuana smoking. That's what drove the making of that act. And Anslinger was canny enough to realize that his most powerful propagandistic. Well, let me drop that word, Emily, that his most powerful bit of propaganda was not to suggest that there was something racially amiss in cannabis use, or that it would spark violence by non white individuals, but rather was to argue about the risks of the corruption of youth and the sexual corruption of youth. Perhaps Most of all, that's, that has surrounded Anslinger over the years. And it's really remarkable that that myth has survived a record that is so absent of any indication that he race baited American, the American public in the making of that act.
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Emily Dufton
Right. I mean that was the, the name of his, his big article, right? Assassin of youth. And of course he's promoting this law. He's one of like three, three witnesses at the congressional hearing. One is for the drug or one is for passing the law. That's Anslinger. Another is a representative from the medical association who's opposed to it. And I think one other person was from the pharmaceutical industry. Right. So I mean, this drug was like you said, I think 46 states had anti marijuana laws already on their books by the time this became federal law. So it was being pushed for not necessarily the reasons that we ascribe to it. And it also wasn't that powerful. That's the thing that always kills me me. Nothing really happened with this. There was no money for it. The fbn, the Federal Bureau of Narcotics that Anslinger led had like less than 300 agents. They had a very small budget. Drug laws were executed mostly on the state level. Like there was, there was a federal rule, but it was so much more of a bullhorn than anything else. But, but if that's not what was driving those laws, and you started to touch on this a bit more not only in 1937 with the marijuana Tax act, but all of the laws Back to like 1911, what is Dr. Formation of these laws then? If it's not racial animus, why are these laws being passed?
- [37:47]
George Fisher
So the, and that's a really perceptive question going back in the cannabis realm, as you say, to 1911, the first state in our country the banned cannabis was not a state on the southwestern border, a state where you might imagine the native white population was in fear of the invasion of Mexican immigrants. That's not at all the history of the earliest anti cannabis law laws. The first state to ban Cannabis was Massachusetts. Four of the first 10 states to ban cannabis were in New England. Indiana was among the very earliest states to ban cannabis. And as you go west, ultimately you get to California, where there might have been a breath of. There might be some evidence that fears of Mexican Americans high on marijuana drove the earliest anti cannabis laws in the far west. But where these laws took shape, they were driven very clearly by a concern for youth, a concern for the morals of youth. And in New England, they were driven by this one particular agency. The Watch and Ward Society, which was a charitable group and an offshoot from the New York Society for the Prevention of. Of Vice, and was involved in the writing of and the passing of these earliest anti cannabis laws in Massachusetts and Maine and Vermont, an attempt that did not work initially in New Hampshire, but another attempt that was successful in Rhode Island. And the record is again clear that there's. There wasn't the slightest fear of Mexican American immigrants in New England at that time. There were virtually none. That the numbers that were tallied in the census counts, and perhaps the census counts were in undercount in various ways, but the numbers were tiny. So that in the state of Maine, which was one of the first handful of states to ban cannabis, there were maybe Mexican and American immigrants counted in the relevant census data of those days. So the story was just very different. And when you begin to dig into it, the story of racial motivation comes up very empty of any explanatory power.
- [40:35]
Emily Dufton
Right. That's kind of the. The most interesting finding to me there, because after looking at the formation of all these laws, you argue that, quote, there is racism, but not the racism of spiting groups we despise by banning their drugs. This was the racism of protecting one's own while malignly neglecting others. And I think that's interesting because it's a subtle shift, but a really poignant one. So I'd like to ask what you mean by that. And, and also then how has that affected our drug war? And how should that affect our understanding of the drug war? I know, really small, easy questions.
- [41:16]
George Fisher
Yeah, no, but really important questions. So let's go back to 1875, which was the real beginning, not the Nixon era Controlled substances act of 1970. That was not the beginning of the drug war in the United States. In 1875, the city of San Francisco enacted the very first law in our nation against an intoxicating drug other than alcohol. And that was the San Francisco Anti Opium Den Ordinance of that year of 1875. And the records of that law are very clear that the focus and the concern was on respectable young white people who were going to opium dens. Both young gentlemen and young ladies in the parlance of the time, but young men who were luring young girls, not Chinese men luring young white girls for cross racial sex. The motive that might give rise to the racialized theories of the making of these early laws, but rather young white men who were taking advantage of respectable young women. It was to protect the moral integrity of the respectable whites in San Francisco. That drove lawmakers to action. Now, the law was, by its terms, racially neutral. It banned any person from keeping an opium den and any person from going to an opium den for purposes of smoking opium. But the enforcement of those laws was strongly directed toward banning only those and shutting down only those opium dens that sold to white people and to arresting those white opium smokers. The law enforcement establishment in San Francisco openly and explicitly said that their purpose was to rid the city of opium dens that serviced whites and to tolerate, not just to openly tolerate, those opium dens run by the Chinese with servicing only Chinese patrons. So there's the malign neglect that you mentioned a moment ago. To the degree that. That it was moral purity the lawmakers were trying to protect, the moral purity they cared about was only that of respectable whites, not that at all of their very unwelcome Chinese neighbors. The racism was patent and openly expressed and vicious, but it's not what drove the making of these early laws. And not only was that true in San Francisco, but in cities and towns throughout the west, you can find this same. These same ideas express. Even in Boston, you can find explicit understanding that as long as the Chinese opium dens are servicing only the Chinese, they don't require our attention. We must take action and ban them and shut them down only when they begin to service respectable whites. And this understanding was so thick and deeply dug in that newspapers across the country would refer to these laws as the laws against white persons opening or visiting opium dens. The laws, again, they were written in racially neutral terms. But then there is this one exception. In 1887 in Idaho, which at the time was a territory, but it was the state or territory that had the highest percentage of Chinese immigrants anywhere in the country. And in its 1887 law banning opium dens, the statewide law, the law, by its terms, forbade only white persons from keeping opium dens and only white persons from visiting them. And for a stretch of time before the state corrected this openly racialized law, which targeted whites and made it again a racially neutral law six years later. But for those six years, the state of Idaho had no law banning Chinese persons from keeping opium dens or from visiting them. And so it's the law that expresses openly what all these other laws were rather covertly intended to do, which was to focus very explicitly racially, but not against the unwelcome Chinese presence, but rather against the native white presence in those places.
- [46:28]
Emily Dufton
Right. Right. Well, so, I mean, that kind of upends the. The story that, like the Our early, our early understanding of the drug war. Right. Because.
- [46:39]
George Fisher
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- [47:01]
George Fisher
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- [47:33]
George Fisher
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- [47:36]
Emily Dufton
At this point it's, it's like we said, a bit of a, bit of a caricature to say well drug laws are racist and have been such forever. But what you're suggesting is that there is actually a neutrality to this language and a sort of inherent focus on preserving the moral purity of upstanding white folk. But there's racialized effects and I would say even like the language of like the 1986 Anti Drug Abuse act is neutral in its language but ends up having deeply racialized effects. So what does does this do? If we really do see that there's actually a neutrality to our early language, neutrality to most of our legal language, and yet we see the ultimate effects of these laws as well, how do we reconcile these two ideas? And you know, like we said, what does this do for our understanding of drug history?
- [48:30]
George Fisher
Yeah, so you've pointed to this very interesting contrast that early on these racially neutral anti drug laws were enforced very heavily against whites. And that was their explicit under intention and the intention of the lawmakers and the understanding of the law enforcement community and of the wider community. But later we have these racially neutral laws and you pointed especially to the 1986 act which was neutral in its terms. But this is the law that most notoriously erected the greatly disparate ratio in the sentencing of persons who are alleged to have trafficked in powder cocaine on the one hand and crack cocaine on the other, where a person who traffics in five grams of crack cocaine will be subjected to the same penalty as a person who traffics in 500 grams of powder cocaine. And of course we know that it was really no secret at the time that those trafficking and crack cocaine are more likely to be African American and Latino in those trafficking in powder cocaine were likely to be white. And so it's a law that had a greatly disproportionate impact against persons of color. And that's been true throughout much of the 20th century reality of anti drug enforcement. But what changed was the sources of these drugs. And so with cocaine, I think we can see it most clearly. When states first began to ban cocaine in the late night, late 1880s, the sources of cocaine, as I mentioned earlier, were all medical. And so the targets of enforcement when it came to distribution were mostly pharmacies. And pharmacies were storefronts. They couldn't duck from the law in any meaningful way. And so once these laws passed, pharmacists who had openly sold cocaine laced remedies had to go, couldn't go underground, because there's no way a pharmacy could go underground, which meant that these pharmacies simply for the most part, stopped selling these drugs. And then once that happened, now an underground trade in the sourcing of these drugs emerges. And once that happens, it's no longer an industry that was dominated by the white pharmacists at the time. And some few pharmacists were of Asian descent, but very few pharmacists were African Americans or Latinos. And so it was largely a law that at that time targeted the white establishment, the pharmacists and the medical establishment who were the sources of cocaine. Later that changed, and when the trade went underground, now it's going to be dominated by persons whose economic options are often very thin and therefore who are more likely to turn to underground activities in order to derive a living that can satisfy at a time when the equal time still persists today, in which a person who is white is going to make more money in the marketplace than the person who is non white. And that in these times, in the early 20th century, the distinction between the economic potential of a young educated white person and a young person of color were far greater than they are today. It's not surprising that with time, the dominance of the trade begins to shift from whites to persons of color. And then of course, at the same time, even if that shift is not as great as it might have appeared. Excuse me, hang on one second. At the same time, the law enforcement community begins to focus more strikingly and pointedly at persons of color, so that enforcement becomes strongly disparate and biased against persons of color. But that's a trend that characterizes the last 2/3 or 3/4 of the 20th century far more than it did in any earlier time.
- [53:11]
Emily Dufton
Right? And you show that through. I mean, you have individual state stories kind of mapping out exactly how these laws got formed. It's, you know, like the depth of research here, it's really hard, hard to argue with it because you just have so much evidence. It's really extraordinary. But then you come to the end of your book where you discuss the current movement to legalize recreational weed. As this movement basically sprints across America. Can you share some of your thoughts on the current legalization campaign, both in a historical sense, which you wrote about in the book, as well as someone who lives in a legal state in California, the first state to legalize medical, and someone who pays attention to drug laws.
- [53:57]
George Fisher
Yeah. So it's a really, really fascinating time. And I will. I confessed earlier how long I've been working on this book, which I, I don't take as a mark of distinction or pride. I take it almost as a point of shame that it took me so long to deliver this book to. To deliver my life of this book in a way. But the. At the earliest time when I first thought, when I, my first drafting of the book, I said in the opening paragraphs that we would not see the day when lawmakers would legalize marijuana in this country, well, I was wrong. And fortunately the book took me so long to write that I was able to correct that early error. But that drove me to think, well then why? Why was that prediction so deeply wrong? In part, maybe I was just wrong in reading the culture. But I think the piece I missed because it really emerged later was the turn toward a focus on the racial injustice of these laws and a focus of the legalization campaign on that racial injustice. The racial injustice had of course been patent and noted and obvious all along in my life, going back to my earliest days as a prosecutor is quite obvious that the law enforcement community was on highest alert when it came to persons of color dealing drugs. That was always clear. But what was unexpected to me was how around 19, excuse me, 2010, 2012, that became a rallying cry. The racially disparate enforcement tactics became a rallying cry for the legalization of marijuana. And I do trace this most pointedly toward Michelle Alexander's book, the New Jim Crow. There was something about that book that that consolidated and somehow magnified the power of these arguments that the best way to undermine the racially violent nature of the drug war was to begin legalizing. And although that argument hasn't been been powerful when it comes to other anti drug laws, it has been very powerful in the realm of marijuana. Now there is some irony here because the over incarceration, the mass incarceration about which Michelle Alexander writes with such passion and such effectiveness, has not been driven in any significant way by the enforcement of anti cannabis laws and certainly not by enforcement of laws against the use of cannabis. When Joe Biden some years ago chose to release from confinement all, I believe it was 6,000 persons who had been convicted under federal cannabis use laws over the years. Not a single person actually went free from prison because they weren't in prison. But at that time, or perhaps at any earlier time, the argument was therefore somewhat askew from the impact of the argument. The argument was driven by notions of over incarceration. And yet the impact of the argument was this state by state campaign to legalize cannabis. And so where we really see the impact of the focus on race in this campaign is in the regimes that have risen up in the states that have legalized and in the cities that have legalized. So that the city of Oakland, across the bay from me now, where I sit in San Francisco, launched the first equity licensing law in the nation. And these equity based licensing laws have gone from state to state and they have directed that substantial number, substantial number of these new and in some places highly lucrative cannabis licenses, cannabis distribution licenses be given to persons who are most impacted by the war on drugs and in particular to persons who were arrested for and to some degree convicted of or even imprisoned on cannabis. Anti cannabis laws extending even to people who were distributing against the law in earlier times, they are now at the head of the line in many jurisdictions, most jurisdictions that have legalized in terms of being able to get a distribution license in the now newly legalized regime. So the story is a very interesting one and it suggests that although the earlier stories that racism of the old fashioned sort drove the making of early anti drug laws, I think are wrong, in later times there is another racial story at work, which is that a desire to undo the racially disproportionate impact of anti drug laws in the 20th century is what is driving the legalization movement today.
- [60:01]
Emily Dufton
Well, that is a perfect place to end it, where the story meets itself again. If we pay attention to what is driving the creation of policy, perhaps we can have a better understanding not only of the sort of taking the social temperature of the time, but also trying to understand how best to undo its most negative effects. Right, but this has been so great and I just want to thank you for taking the time today, George. So I will ask us, I will ask you the traditional last question which is what are you working on now and what can we expect to talk about with you next?
- [60:40]
George Fisher
Well, thank you. Thanks for the nice question. But before I answer that question, I just want to say, as I listen to you talk about this book, you've expressed so beautifully some of the ideas that I was hoping to convey and I wish I were able to convey them as beautifully as you are. I wish I could.
- [61:00]
Emily Dufton
You did. You wrote hundreds of pages about it. You did great.
- [61:04]
George Fisher
But no, it's been really a pleasure to talk with you about this. I am shifting gears entirely my neck next planned book which very much looking forward to writing. It's I again have hired student researchers who have begun to collect materials, but I have not yet set one word to paper. But that will be the My mission beginning in May when I'm done teaching, is to writing a book on the meant to be a handbook, a small but not like this book, not a 20 year project, but a small handbook for young prosecutors on the ethics of prosecution and especially trying to encourage young prosecutors to develop a sense of independent judgment so that they are not squashed by their supervisors and the hierarchy in their offices and in some way coerced to do things they think are wrong. This is on the notion that the role of the prosecutor, which has defined in many ways my career, is a noble and good one, but only when prosecution is done well and when prosecution is done badly, it's a vicious and dangerous enterprise. But it's with young people and young people just out of law school where I think these lessons are most important. So that's the aim with my next book. And it will be an entire departure from this last, as you say, the book that traces back through the centuries and is not at all directed at the real world in so many ways.
- [62:56]
Emily Dufton
Well, good luck with that. It sounds necessary and important and we will look forward to talking about it with you next time.
- [63:02]
George Fisher
Tim thank you, Emily, and this was a real pleasure and honor. I've enjoyed it a lot.
- [63:07]
Emily Dufton
Me too. Thanks so much.
- [63:20]
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