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In his State of the State speech, America's best political speaker, Gov. Cuomo, took his best shot at the most promising alternative to the war on drugs -- legalization. An hour later, legalization was still a viable alternative.

Cuomo tried to stop the legalization movement in its tracks, but all he did was create a fleeting smoke screen. In lawyers' terminology, had the governor been presenting the case for the drug war to a jury, the judge would have directed the jury to find against him because of his failure to prove a prima facie case.

Not only did Cuomo fail to prove the case for the drug war, he essentially ignored the argument for repealing prohibition: that prohibition fails to stop millions of Americans from using illegal drugs while it succeeds in causing black market violence and street crime and providing drug users with such extras as AIDS and criminal records.

Rather than confront the legalization challenge head-on, the governor sidestepped it with rhetorical ploys.

First, the straw man: "The legalizers are saying this: You've lost the war; you've tried everything you could, and you've lost. So why should we spend any more money in the combat?" There's only one small problem here -- no serious proponent of legalization has suggested that monetary savings are the issue. The out-of-pocket costs of the war on drugs are almost trivial in comparison with its human costs.

Second, the ad hominem attack: "Let's legalize it and hope that if some kid or somebody else get addicted, they are not in our family; they are in someone else's family." Cuomo wants us to believe that only advocates of drug war are compassionate; advocates of drug peace are callous and indifferent. But when compassion really counted, when Albany could have saved thousands of lives by allowing the sale of clean hypodermic needles, compassion lost out to the absolutism a war mentality requires.

Third, the argument from authority: "I'm concerned about legalization and we've got to stop it right here. . . . I want to say this as clearly as I can. I reject this idea." Good enough for believers in gubernatorial infallibility, but thin gruel for those who believe conclusions ought to be based on reason.

Fourth, the red herring: Legalization equals "surrender." Proponents of legalization are clearly not surrendering any more than the people of Eastern Europe were surrendering last year when they called for the repeal of another failed policy -- communism. It is prohibition that surrenders drug production and sales to the black market where extremely dangerous drugs are made by vicious criminals and artificially high profits stimulate violent battles among dealers. Legalization would in fact be victory over drug dealers who would be out of a job, victory over drug-related violence and crime, victory over drug-related AIDS, and victory over police corruption and the social and economic decay caused by the illegal drug business.

Finally, the emotional appeal: "I believe this state must reject this idea as the abandonment of a whole generation of children and adults now caught in addiction. I would not do it to my children. We ought not let this state do it to our children." Legalization is not abandonment of drug abusers any more than legalization of alcohol abandons alcohol abusers. Rather, it is a recognition that such people need to be helped, not hurt. Troubled people need police, handcuffs, jails, and criminal records about as much as quarterbacks need interceptions.

It is odd that prohibitionists believe that their concern for the welfare of drug users is proven by their willingness to put them in prison with murderers and rapists, while the callousness of legalizers is proven by their abhorrence of that response.

It is ironic that in the same speech in which the governor boasted of his concern for "our children," he bragged for nearly doubling the number of prison cells. Who is going to occupy those cells but "our children," particularly our minority children, seduced by the quick highs and fast bucks of illegal drugs? "Our children" who have the misfortune of getting mixed up in illegal drugs could well end up in next year's State of the State address as mere statistics showing that Cuomo can be as tough on drugs as were Rockefeller, Nixon and Reagan before him.

The streets of New York are filled with violent crime and murder. The jails are crammed with drug offenders. The courts are clogged with drug cases. The hospitals are loaded with drug-related AIDS patients. The schools look more like prisons each day as students are searched for weapons and beepers.

Children are risking life and limb selling a potent, unregulated drug -- crack -- to other children. Everywhere you look, the evidence of the failure of drug prohibition is patent -- everywhere, that is, but in the State of the State address.

Last year was the 75th anniversary of the war on drugs. What Gov. Cuomo is really saying is, let's have another 75 years of failure.

JAMES OSTROWSKI, a Buffalo attorney, is an associate policy analyst at the Cato Institute and author of Cato study on drug prohibition.

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