The Institutionalization of Hysteria

September 28, 2007
Posted by Jay Livingston

At the Republican debate Thursday Ron Paul called for an end to the war on drugs. OK, Ron Paul isn’t a very prominent candidate. The leading Republican candidates didn’t show up – after all, the debate was to focus on racial issues, and the audience was predominantly black. Still, Paul’s statement is noteworthy.

Back in the late 1980s I was visiting in Washington, DC. I don’t remember the circumstances, but some people I didn’t know were giving me a ride, and somehow the topic of drugs came up. These people, husband and wife, were lawyers – maybe they worked for the government – and one of them started to say something about the current atmosphere surrounding the topic. He stopped in mid-sentence, searching for the right word, as though a misstatement might be very costly.

“Hysteria?” I offered.

Well, they wouldn’t put it quite like that, they said. But two things were clear to me. One, they agreed that policy and public opinion on drugs had gone way past being rational. And two, they were afraid to let others know their views. It would have been like someone in Salem in 1692 saying that maybe we’ve gone a little overboard on this witch thing.

Here we are two decades later, and at least in the public mind, drugs have been replaced by other fears, notably terrorism. It’s hard to keep two moral panics going simultaneously. (See last December’s entry “The War on Drugs.” )

But we are still living with the consequences of that hysteria. Emotions come and go. Institutions and laws are much more durable. And the fears and moral panic of decades past has become institutionalized. The sentences written into law are the most egregious consequence. Judicial precedents and rulings are usually less glaring, but they are part of the same process.

A couple of days before Ron Paul made that statement, an appeals court upheld the strip search of a 13-year-old Arizona schoolgirl. School authorities suspected her of carrying drugs – prescription-strength ibuprofen. Basically, a double dose of Advil. The strip search was perfectly legal, said two of three judges interpreting the law.

Once the hysteria gets written into law, the original emotion becomes irrelevant. Supreme Court Justice Samuel Alito is about the least emotional person you could imagine. Yet when he was an appeals court judge, he wrote a strictly legal and technical opinion that would have allowed the strip search of a 10-year-old girl.

For what it’s worth, in neither strip search did the authorities find drugs.