Cheetos and Goldfish For Texas Too (...Someday)

 

The ballot title and submission clause numbered Amendment 64 to the Colorado Constitution asked:

Shall there be an amendment to the Colorado constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana;

permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana;

providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores;

 permitting local governments to regulate or prohibit such facilities;

requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana;

requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund;

and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp?

Cleverly titled The Regulate Marijuana Like Alcohol Act of 2012, the Amendment won by a ten point margin yesterday. Predictably, the politicians, in this case Colorado’s Governor John Hickenlooper, had some really clever things to say about the will of the people…

“The voters have spoken and we have to respect their will," Hickenlooper said in a statement Tuesday night. "This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or gold fish too quickly.”

Yeah, OK. First things first. Only someone who has used marijuana, or at the very least knows it to be completely harmless, would make a “joke” like that, so take your hypocrisy and shove it in someone else’s face. The super majority of people, and even the majority of the voters, ain’t buying.

Secondly, a reminder. Tonight’s open meeting of Texas NORML is at 8 o’clock at Flamingo Cantina. Come join us for some news about the overall outstanding results that marijuana measures had nationwide. It wasn’t a clean sweep, but it’s major progress none the less. 

And find out what you can do to help us with these sorts of measures in Texas. It’s an informative meeting, but with a fun group of people. See you there.

                                             Legal Counsel for Texas NORML

                                             Aka, yours truly, Jamie Spencer

 

To Report An Illegal Marijuana Garden: Click Here

From Illegal Utah Marijuana Gardens Dot Com:

Did you know that marijuana is being illegally grown in Utah?

It is? Gee Wally, if I stumble across some marijuana when I’m out and about, what ever should I do?

If you think you have found an illegal marijuana garden, note the location either on a map or GPS unit. We will be able to find it either by latitude and longitude, or a place name.

Avoid any contact with the suspects who may be present and leave the area, undisturbed, as soon as possible. Contact us through this website or your local law enforcement, the sooner the better.

[Hat Tip: Robert Latham through the NORML listserv]

Fees Paid To Informers

Tax day chatter from the NACDL listserv brought this item, from Page 1 of “Instructions for Form 1099-Misc,” to my attention:

Fees Paid to Informers. A payment made to an informer as an award, fee, or reward for information about criminal activity is not required to be reported if the payment is made by a federal, state or local government agency, or by a non-profit organization exempt from tax under 501(c)(3) that makes the payment to further the charitable purpose of lessening the burdens of government.

Wow. We are now paying so many confidential informants (wooops, I mean… “cooperating individuals”) that the issue of whether they must be 1099’d is addressed on the first page of the instructions.

[Update: since initial posting, Greenfield elaborates, "A Nation Of Rats"]

Both Missing And Getting The Point: The Gateway Theory

A recent comment led me to one of my first ever posts, one about the Gateway Theory of drug use. For those unaware of the fallacy, it goes like this: many/most/almost all hard drug users started with softer drugs like marijuana, therefore marijuana causes harder drug use. It is the gateway to cocaine, heroin, methamphetamines, etc.

My post concluded with:

Let’s ignore for now the refutation that a higher percentage of cocaine and heroin addicts consumed alcohol than marijuana, and we all “know” that alcohol use does not cause cocaine or heroin addiction… (since many readers, like me, are occasional alcohol consumers who have never tried cocaine or heroin)

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Veterans In Prison For Non-Violent Drug Offenses

The Drug Policy Alliance released a paper last week, “Healing a Broken System: Veterans Battling Addiction and Incarceration”. One of several recommendations:

State and federal governments must modify sentencing statutes and improve court ordered drug diversion programs to better treat – rather than criminalize and incarcerate – veterans who commit non-violent drug related crimes.

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Post Hoc Ergo Propter Hoc

From the San Francisco Chronicle article “Report: Pot use, arrests rising in California”:

Marijuana arrests in California are increasing faster than the nationwide rate, and African Americans are being booked for pot-related crimes much more often than whites, a new report says.

But despite the rise in arrests and in the seizure of marijuana plants, use of pot in California has increased slightly, said the report, part of a nationwide study released Thursday by a Virginia researcher.

Isn’t arresting folks for marijuana possession supposed to discourage use?

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Everything's Bigger In Texas

Criminal lawyer Thomas Gallagher writes about a case, Minnesota v. Peck, decided by his state’s Supreme Court which overruled a trial court’s determination that including the bong water as a “mixture” used to calculate the weight of methamphetamine possessed by a defendant would be “unjust”.

The difference in the weight of the meth alone vs. the weight including the bong water (approximately 37 grams) raised the offense to a first degree drug felony punishable by a maximum of 30 years, and if I have my Minnesota law right, and I very well might not, a minimum sentence of 87 months, or 7 years and 3 months. Assume the defendant would be probation eligible otherwise, and you Yankee lawyers can write in to tell me I’m wrong.

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Less Than Eight Hundred And Fifty Thousand!

Only 847,863 arrests for marijuana offenses in the U.S. last year.

Translation: slightly less than last year, or the second most ever, depending on how you want to look at it.
 

Severely Repressive Legislation Unable To Stop Use Of Narcotics

I’m about halfway through “This Is Your Country On Drugs: The Secret History Of Getting High In America” by Ryan Grim which chronicles America’s centuries old love/hate relationship with various intoxicants (short version: the people seem to love, the legislators hate).

Then this gem from Drug WarRant, an op-ed piece from 99 years ago in a San Francisco newspaper:

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Drug WarRant Has Moved

"I Could Be Doing Real Police Work"

Quoting a member of Law Enforcement Against Prohibition, Nicholas Kristof sees the light in the cleverly and accurately titled “Drugs Won the War”:

He said he gradually became disillusioned with the drug war, beginning in 1967 when he was a young beat officer in San Diego.

“I had arrested a 19-year-old, in his own home, for possession of marijuana,” he recalled. “I literally broke down the door, on the basis of probable cause. I took him to jail on a felony charge.” The arrest and related paperwork took several hours, and Mr. Stamper suddenly had an “aha!” moment: “I could be doing real police work.”

Also see Dallas criminal defense lawyer Robert Guest’s frequent posts re: opportunity cost.
 

It's About Time (Baby Steps Edition)

From tomorrow’s Wall Street Journal headlines:

Premier anti-“Drug War” crusader Pete Guither wants to banish the idea that the U.S. is fighting "a war on drugs," a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

Guither said Wednesday the bellicose analogy was a barrier to dealing with the nation's drug issues.

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Ideas on GOP Rebirth

Lose a couple of elections and a senator and the even the muckety-mucks in a party will start publicly talking about change. Unfortunately, the Republicans are so married to some of their bad ideas that they are quite possible missing the boat. From SL&P:

[F]olks on the right often assert that the GOP is the only party truly committed to the principles of "life, liberty and the pursuit of happiness."

When I hear that claim, however, I wonder how it squares with modern Republican support for the death penalty (which ends life), and for long prison terms and drug prohibitions (which severely restrict both liberty and the pursuit of happiness).

I find vocal GOP support for the death penalty, mass incarceration and the drug war especially jarring when leading Republicans complain about big government, bureaucracy and excessive taxing and spending — all these problems find particular expression, especially at the state level, in the modern operation of the death penalty, mass incarceration and the drug war.

While not predicting changes in official party positions anytime soon, and especially noting the lack of any clamor for these conservative ideals, Berman’s onto something here. If we don’t make substantial progress in drug war reform during a down economy, it’ll be a long time coming.

Your Brain on Bliss: 100 Day Grade = D

A few months ago, Don Fitch started writing Your Blain on Bliss, and one of his first posts “Obama, Cigarettes and Cannabis” caught my eye:

Yet still, of all people, the President-elect is not able to summon the will to not smoke tobacco cigarettes. As much as he would like to quit, as much as Michelle and the girls want him to quit, he will presumably duck out of the White House, furtively avoiding his family and to the chagrin of his Secret Service detail, light up a cigarette.

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A 1:1 Ratio For Crack/Powder Cocaine?

Wall Street Journal:

The Obama administration Wednesday asked Congress to end the disparity in penalties for use of crack- and powder-cocaine crimes, a stance sure to bring on contentious debate from the law-enforcement community.

"The Administration believes Congress's goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine," said assistant Attorney General Lanny Breuer, who heads the Justice Department's criminal division.

Under current law, someone caught with 500 grams of powder cocaine gets a five-year sentence, while it takes only five grams of crack cocaine to trigger the same sentence, even though there is no physiological difference.

More than half of all federal inmates were convicted of drug offenses, and in today’s economic climate, perhaps the need to cut costs will bring some sanity to our drug laws. Of course, there are those who think that a 1:1 ratio would be just fine as long as you multiplied the powder cocaine punishments by 100, rather than by dividing the crack sentencing guidelines by the same amount:

James Pasco, executive director of the Fraternal Order of Police, which represents about 325,000 uniformed officers, said that while his group is against the disparity, it would rather see it rectified by increasing the penalties for powder cocaine. "There is a widespread misconception that crack dealers are somehow being victimized by the government," he said. "It is extraordinarily difficult to victimize a criminal unless that person first commits a crime."

But you can indeed victimize a “criminal” by overpunishing him for his “crime”. Folks caught with small amounts of marijuana are criminals, aren’t they? Therefore it’s automatically OK to give them a 5 year sentence? 25 years? They aren’t victims, they are criminals… so any punishment is justified. (Folks not caught with marijuana are also criminals, of course…)

Mr. Pasco added that the disparity could be eliminated by lowering the amount of powder cocaine it takes to trigger the five-year sentence.

A while back Greenfield commented on one of the problems with “niche blogging”: eventually you’re going to end up repeating yourself. I paused for a quick search of my archives, because this story was ringing a pretty loud bell with me, and up pops one of my first posts ever (from November 2006):

If this isn’t shocking on its face, please reread this last quote again. Outloud. Then read it to a friend and ask them their reaction to it.

The Fraternal Order of Police would support increasing the penalties for offenses involving powder cocaine through a reduction in the quantity of powder necessary to trigger the 5- and 10-year mandatory minimum sentences, thereby decreasing the gap between the two similar offenses and addressing the concerns of those who question the current ratio without depriving law enforcement with the tools they need to control the possession, use, and sale of powder cocaine.

The 5-year mandatory minimum sentence can be triggered by 5 grams of crack cocaine. How much is 5 grams of something? 5 Sweet-and-Low packets worth of cocaine is 5 grams. So his solution to the disparity problem…increase the penalties for powder, rather than decreasing them for crack! So the disparity is a problem, one best solved by even more prison building.

The difference is that in 2006 we were still paying up to a million dollars a pop for houses worth less than half that amount, while applying for credit cards and taking out third mortgages. Not to mention the billions being paid by CEOs of car companies to themselves for doing such a good job. Now that we’re out of money, legislators have some political cover for undoing what they did a long time ago.

With every cloud a silver lining, eh? Well maybe this big-R Recession’s silver lining will be sanity in sentencing, since we can literally no longer afford huge sentences for drug addicts.

ET Go Home

Peter Hitchens explaining the difference between alcohol prohibition, universally acknowledged as an abject failure, and marijuana and drug prohibition notes:

Alcohol had been legal for centuries, part of the culture of Christian civilization. You might as well try to make breathing illegal.

But cannabis, cocaine and heroin are alien to our world, and could be driven out by firm action.

Alien to our world? Guither’s response:

Right -- it's not like they just... grow in the ground or anything. They came in spaceships.

We need to be firm and tell the space aliens to load up their cannabis, cocaine and heroin and take it all back to planet Druggie.

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This Only Happens On TV

Or, maybe not. Identical twins both acquitted because no one could tell which one of them did it.

Because the brothers’ identical features made it impossible for officers who were testifying to point out which one had been found with the key, Judge Ibrahim said she had no choice but to acquit both men.

She called the ruling “a very unique case.” Court officials familiar with the case could not be reached for comment.

Thankfully the judge didn’t go with the more popular “someone has to pay, I’m sorry it has to be both of you” line of legal reasoning.

Especially since the charge, drug trafficking, carried a mandatory death penalty by hanging in Malaysia. 

The Drug Czar Who Cried Wolf

Face it - most Anti-Marijuana “education” comes down to some sort of variation of this:

Hey kids, if you ever give in to temptation and smoke marijuana, you are immediately doomed to a life of shooting up heroin and prostituting yourself for twenty dollars a pop while living under a bridge.

Take for example the ONDCP’s newest ad campaign: Become a Burrito TasterRadley Balko, Drug WarRant, and Bruce Merken have already commented on the absurdity of this particular tack by the Drug Czar. Windy Pundit, NorLa, B12 Solipsism, TBTEAB, and others have weighed in on the Agitator’s project of listing successful marijuana users.

But there’s a larger issue here as well. There’s no real need to list successful marijuana smokers. You are seriously deluded if you believe that the act itself of lecturing high schoolers (or whomever) about the disastrous consequences of marijuana will reduce comsumption.

Whether or not they read Radley’s list which disproves the Drug Czar’s assertion, I suspect they already know it’s not true. So when you preach “marijuana = death” you lose all credibility. And it wouldn’t hurt to have some credibility left when you try to educate children about the actual deleterious effects of using cocaine and heroin.

[Author’s Note: Nothing in this post shall be read as an endorsement of the over-criminalization of the “harder drugs”.]

10 Pints of Beer vs. 1 Kilo of Marijuana

Joe Six-Pack vs. Joe Doobie

Noting the absence of any questions in the vice presidential debate about the United States over-incarceration problem (which is driven in large part by the so called War on Drugs), and Ms. Palin’s repeated efforts to court the vote of “Joe Six-Pack”, Paul Armentano, the deputy director of NORML, today writes:

In what was no doubt a deliberate effort to appeal to so-called “Middle-America, working-class voters,” Republican Vice Presidential candidate Sarah Palin affectionately invoked the term “Joe Six Pack” — a phrase that despite its literal connotation (The typical American is an alcoholic) is nevertheless championed in the American lexicon.

 

Now just imagine for a moment that instead of proactively reaching out to “Joe Six Pack,” Governor Palin instead invoked the phrase “Joe Doobie” in a similarly veiled attempt to court those millions of Americans who use cannabis responsibly (a voting block that arguably dwarfs the number of Americans who put away a six pack of beer each evening).

 

Paul’s point is obvious. It is literally unimaginable.

 

Unfortunately, the easiest job in America is being the campaign manager for the guy running against the politician who even attempts to inject some sensible suggestions about drug policy reform into their platform. Imagine this scenario:

 

First from our courageous hypothetical politician “Mr. Smith”: “America has 4% of the world’s population and almost 25% of its prison population. Mandatory minimum sentences are morally questionable at best and currently bankrupting us. We can spend 10% of what we waste on the War on Drugs on treatment and eliminate prison sentences for drug addicts entirely and we will significantly reduce violent crime as a side effect.”

 

This would be immediately followed by the campaign for “the other guy” – whoever that was – releasing a commercial effectively saying “Senator/Representative Smith wants your baby to smoke crack!”

 

Yet “Joe Six-Pack” is a vote worth courting. Ever wonder about alcohol vs. marijuana and which is harmful? Know anything about the two substances and the relative safety of marijuana?

Hypocrisy and Marijuana Policy

From Reason Online where Jacob Sullum asks, “Why should other Alaskans be arrested for something Sarah Palin once did with impunity?”

When it comes to questions about youthful marijuana use, Sarah Palin is no Slick Willie. "I can't claim a Bill Clinton and say that I never inhaled," the Republican vice presidential candidate told the Anchorage Daily News in 2006, before she was elected governor of Alaska…

 

[S]moking marijuana in the privacy of one's home is just as legal in Alaska today as it was when Palin did it. Evidently she regrets this situation.

 

As mayor of Wasilla in 2000, Palin championed a city council resolution opposing a ballot initiative that would have legalized marijuana for adults. Last March her administration asked the Alaska Supreme Court to reverse its 1975 decision shielding private marijuana use, arguing that the drug is more dangerous than it used to be.

 

In other words, Palin got to smoke pot without worrying about legal consequences and now wants to deny that assurance to fellow Alaskans doing exactly the same thing. "Palin doesn't support legalizing marijuana," the Anchorage Daily News reported in 2006, because she worries about "the message it would send to her four kids."

5% of the World Population; 25% of the World's Prisoners

Skip to 3:30 in the 6 minute clip and you’ll see Senator Jim Webb raising one of my favorite talking points when it comes to educating folks about the so called War on Drugs. Here’s my unofficial transcript of the relevant portion:

Webb: We’ve got an incarceration rate in this country, we’re imprisoning twenty five percent of the world’s prison population with five percent of the world’s population…

Colbert: If you can’t do the time, do not do the crime…

Webb: Well we’ve got 2.38 million people in jail; we want to lock up the bad folks but we need to take a look at what’s happened here and basically when politicians come in and talk about that they’re labeled as soft on crime…

5% of world pop with 25% of its prisoners. There are only a few possible explanations.

  • Americans are 5 times worse (badder? More criminal?) than everyone else
  • We catch a lot more folks doing bad things
  • The War on Drugs / Mandatory Minimums / etc.

If you hear hoof beats, think horses not zebras

[Hat Tip: Drug WarRant and congrats on the 5th birthday]

Drug Dealers Paid By The State; or How to Write a Flashy Headline

I told Scott Henson on Friday that there are two kinds of stories that reporters like to write or broadcast about crime more than any other in Travis County – or anywhere else for that matter:

  1. Innocent Person Gets Railroaded
  2. Incredibly Guilty Person Gets Off

These two archetypes allow for flashy headlines. Whether they fairly and accurately reflect what really happened can become victim to the overriding need to sell newspapers or garner TV ratings.

A huge front page story in the Austin American Statesman Sunday edition reads:

Travis (County) Returns Seized Money

Deals put cash back in many drug defendant’s pockets

I was at 7/11 buying a bagel and some milk and I literally watched someone walk past the stack of newspapers, do a double take, then walk back, grab the Statesman and put it on the counter with the rest of their items. I don’t know for a fact that the headline did it, but certainly it didn’t hurt.

At any rate, let’s award all possible points due on the Attention-Grabbing scale. Secondly, let’s look at the substance. Here’s how the story starts:

Travis County prosecutors have for at least a decade routinely given a portion of cash seized in felony drug investigations back to defendants, even though they said they were confident that the suspects had obtained the money by committing crimes.

Last year, the district attorney's office returned nearly a quarter-million dollars to about 80 people, according to an analysis of records by the Austin American-Statesman. Those payments ranged from $500 to $14,700, records show.

Having deliberately written the first part of the story to outrage all of us law abiding folks the article eventually addresses the crux of the issue on the inside pages, although the title of the subsection suggests that the paper still misses the point “Civil Cases Can Get Drawn Out”:

Travis County First Assistant District Attorney Rosemary Lehmberg… said prosecutors give priority to criminal cases instead of becoming involved in potentially lengthy civil proceedings, which can continue for months or, in some cases, years.

"It is a resource issue," Lehmberg said.

She said prosecutors might spend weeks preparing for civil trials by trying to prove the money was linked to a crime, and she thinks that in some instances they probably would be unable to meet the court's rigorous standards of proof in civil cases.

However, Lehmberg said she and other prosecutors may consider not settling cases that involve large sums of seized money.

Translation? It’s not worth suing someone for $500. And sometimes it’s not worth suing someone for fourteen thousand dollars, to use the examples from the article’s first paragraph.

But large sums of money and property seized in a raid? Now you’re talking.

Take for example the 1996 US Supreme Court case which proclaimed that civil forfeitures were not punishment for double jeopardy purposes often cited as U.S. v. Ursery.

It’s other name? U.S. v. $405,089.23 In United States Currency, et al.

And here’s what the ‘et al.’ stood for in part:

  • $405,089.23 U.S. Currency
  • $8,929.93 U.S. Currency
  • $123,000.00 U.S. Currency;
  • 1 Bell 47 G-2 Helicopter,
  • 1 Shrimp Boat
  • 1 Piper Cherokee 6 Airplane
  • 138 Silver bars
  • 2 Jaguars
  • 4 other cars including a Porsche

As for the Statesman article? I’m pretty sure Austin taxpayers don’t want the Travis County District Attorney’s Office spending more than $499 suing someone over $500.

And let’s not forget this carefully worded part of the article about Lehmberg’s statement:

[S]he thinks that in some instances they probably would be unable to meet the court's rigorous standards of proof in civil cases.

That’s right. Those unbelievably rigorous civil standards sometimes get in the way.

Translation? Sometimes there’s not even a fifty percent chance that the State would win the case so they settle for some of the money, rather than none of it.

The Boston Celtics, Len Bias, and the War on Drugs

So the Celtics celebrated another championship the other night, their first since 1986. I wasn’t nearly as bitter this time around.

True, they didn’t beat the Twin Towers this time – Akeem Olajuwon and Ralph Sampson – my high school heroes, but the real reason for my lack of interest is that I haven’t paid attention at all to the NBA in years.

However, Pete at Drug WarRant reminds us all of what happened after that last Celtic championship. They drafted Len Bias, who overdosed two days later. Tip O’Neil, D-Boston, was Speaker of the House. I won’t rehash Pete’s excellent original analysis of the situation, but suffice it say that yes, this incident was in large part responsible for such tragedies as mandatory minimum sentences in cocaine cases, the 100-1 crack to cocaine ratio, and basically the unreasonably long sentences still meted out in federal drug cases.

Democrats wanted to show their constituents just how ‘tough on crime’ they could be, so political expediency trumped thoughtful analysis, and over two decades later the U.S. leads the world by far in incarceration.

And just think. If my 1986 Rockets had beaten Bird, Parrish and McHale? Boston would have had a different place in the draft, and probably wouldn’t have selected Len Bias. Amazing what random chance can do to an entire criminal justice system.

Does Prosecution Help Addicts?

Dallas defense lawyer Robert Guest has an interview today with a substance abuse treatment expert. Here’s #8 from the Q&A:

8. Does prosecution help addicts?

I think that if a person doesn’t learn from his past transgressions, and still doesn’t recognize the harm he or she is doing to themselves and others than you need to instill justice on that person to protect them as well as society from being harmed by their actions. But again, prosecuting an addict could also entail effective rehabilitation so that the person does not continue to make the same mistakes.

“You need to instill justice on that person.”

Sadly, that’s actually the best reason to support incarcerating addicts: “Because it’s for their own good”. Sometimes I think people either believe that 'logic' or they don’t; and there’s not much use trying to convince someone that the phrase…

You need to instill justice on that person

…doesn’t make sense - if they aren't immediately offended by the notion.

This Is Your Drug Czar On Drugs

Yes, the official Drug Czar blog linked to this:

 

 

[HatTip: Drug WarRant]

Inside The Real Drug War: DEA Agent Tells All

Via Huffington Post, the first sentence of a new post by the Chief of Congressional & Public Affairs for the U.S. Drug Enforcement Administration:

The drug trade never fails to surprise those of us at the Drug Enforcement Administration (DEA).

You mean, you keep touting your successes (‘Major Heroin/Cocaine/Marijuana Bust’)… and, yet, nothing ever changes?

Are you really still surprised?

[As always: the obligatory ‘Can’t ever beat him to the punch on a Drug War story’ Hat Tip to Pete]

War on Drugs <=> War in Iraq

For the Iraq War Blogstorm project, some quick thoughts on how the War on Drugs is like the War in Iraq:

Both Wars

  • Are costing the American taxpayer billions and billions of dollars. Trillions if the full economic costs are calculated.
  • Have huge ‘cottage’ industries supporting them, and someone is getting rich off of them.
  • Cost American lives. And foreign lives, of course – for those who care.
  • Are premised on lies.
  • Depend on ignorance. The more people educate themselves about the truth, and find out what’s really going on, the less they support both wars.
  • Allow most politicians to spout sound bites and platitudes (full of sound and fury, and signifying, well…)
  • Are the only 2 things Ron Paul is 100% right about. But, he’s 100% correct on 2 major issues where most pols are only running approximately 0-25%.
  • Have blogs devoted to them. Most of these blogs are anti-War blogs (or is it just that those are the ones I read?)

That was off the top of my head and took about two minutes. Only five minutes until the anniversary is over, so this post is done. Depressing how similar they really are. Feel free to add more suggestions in the comments section. I’ve probably covered only 10% of the available ideas on the subject.

And, by the way, the major difference? Only one of them is a real war. The ‘War on Drugs’ is not a war – at least it’s not a war on drugs.

One of These Things Is Not Like the Other

  • Programs for the elderly are being slashed in Maine.
  • Government jobs are being eliminated in New Jersey.
  • Prison construction has been put off in Virginia.
  • Some schools in California will end their music programs.

I bulleted the first four sentences of a New York Times article by Jennifer Steinhauer, “As the Economy Falters, So Do State Budgets,” because one of the lines jumped out at me as substantially different than the others. [Perhaps one of our Republican brethren in the criminal law blogosphere might cheer number 2, government jobs being eliminated. I’d preemptively answer that numbers one and four are merely subsets of number two – and until we know which jobs are eliminated, we should wait to cheer.]

So, of course, I’m talking about number three: prison reconstruction has been halted. Unfortunately, while the article goes on to talk about Virginia’s budget crisis, it doesn’t tell us any more about the ‘prison crisis’ the state is facing. Fair guess though that prisons are ridiculously expensive to build, and the Old Dominion has run out of cash.

I’m sure we liberal Times readers are supposed to gasp that all four worthy causes mentioned are being hijacked by the sinking economy. Hopefully other readers will have the same reaction I did.

I’ve argued repeatedly that those who want to evangelize against the War on Drugs will find more converts with the economic argument than any other. When people realize the cost to their own wallets this ‘War’ is costing them personally, that’s when we can look for some real change.

Lastly, I never thought I’d be a fan of any ‘Starve the Beast’ philosophy. It’s always struck me as too cynical for its own good – never mind doing away with a bunch of programs I support. You know, helping the elderly and teaching music in public schools. But maybe the State legislatures can start taking a hard look at their own Three Strikes laws for drug offenders, and figure out some ways to start saving.

Here’s an easy one: no enhancements for possession. I don’t care how many previous pen trips you have – you are never subject to a higher penalty for drug offenses just because you have previous felony convictions. I’d publish a rough estimate of the savings, but my home calculator only goes up to 10 digits.

See Also

Incarceration Choices: Attempted Second Degree Murder

Still in DC, and my sister in law (who has been an excellent host this week) notices this AP story reproduced in the Washington Post. 

“Two years for a beating and stabbing attack on a homeless man?” she exclaims, looking to me for a reasonable explanation. When you’re the defense lawyer in the family, you get these sorts of inquiries.

In Texas, we don’t have degrees of murder and manslaughter, as most other states do, so I don’t know what constitutes attempted second degree murder in Florida. Not many details in the story, but it sounds like something that would be prosecuted in Texas as Aggravated Assault and/or Attempted Murder, both 3g offenses and second degree felonies with punishment ranges of 2-20 years.

“Guess they gotta keep those prison beds open for marijuana and drug offenders,” is the best I can reply.

Doing Well By Doing Good

Via To The People comes this story out of the UK:

A policeman alerted hundreds of families to the danger-drug Strawberry Meth - despite the fact it does not exist.

Pupils and parents at 80 schools in Oxfordshire were warned of the possible risks of the fruit-flavoured drug, also known as Strawberry Quick, by the unwitting officer.

The spurious alert came after the officer sent an email via a special system connecting police and schools without checking it with colleagues.

So it turns out there’s no such thing as Strawberry Meth – it’s an urban myth. Officer, you can always check Snopes.com first before forwarding spam and bogus emails. 

Of course, British policeman aren’t the only ones spouting false information and nonsense about the War on Drugs. In the States we have something called ‘the Senate’ that serves that purpose.

From last April’s press release from Senators Feinstein and Grassley, touting their proposed legislation, the “Saving Kids From Dangerous Drugs Act”:

The legislation comes in the wake of recent reports detailing the growing trend of candy-flavored meth.  According to law enforcement officers and drug treatment officials, methamphetamine and other illegal drugs are being colored, packaged and flavored in ways designed to attract children and minors.  The flavored meth first appeared on the streets earlier this year, and is being sold to children and teens. 

“This bill will send a strong and clear message to drug dealers – if you target our children by peddling candy-flavored drugs, there will be a heavy price to pay,” Senator Feinstein said.  “Flavored meth – with child-friendly names like Strawberry Quick – is designed to get people to try it a few times.  It’s all about hooking young people, and we have to stop this practice before it grows any further.  So, this legislation will increase the criminal penalties for anyone who markets candy-flavored drugs to our youth – by imposing on them the same enhanced penalties applied to dealers who distribute drugs to minors.”

“New techniques and gimmicks to lure our kids into addiction are around every corner.  Candy flavored meth is the latest craze used by drug dealers,” Senator Grassley said. 

[Emphasis Added]

Looks like the capitol complex email system could use some decent spam blocking software as well.

I’m also confused as to the purpose of the policeman’s email to parents in the first place. Are Mom and Dad supposed to stick their heads in Junior’s room and say, “I know we told you not to take any methamphetamine, but that goes double for the strawberry flavored kind”?

Obviously not. I think more likely it, perhaps unintentionally, plays into Drug Warriors’ (and parents’) fears and misconceptions about ‘children getting hooked on drugs’ – i.e. Junior might get hooked on this stuff accidentally, without even knowing what he’s taking in the first place.

Reminds me of the lyrics to “The Old Dope Peddler” by 50’s singer-satirist Tom Lehrer – whose albums were never far from my father’s phonograph:

He gives the kids free samples,
Because he knows full well.
That today's young innocent faces
Will be tomorrow's clientele.

[Hat Tip: Drug WarRant]

What We Have Here Is... Failure To Communicate

This still is from the most famous part of the movie “Cool Hand Luke,” when Strother Martin utters the line after beating Paul Newman for smarting off to him. We all remember the line (and good grief, if you don’t remember it, put it in your NetFlix queue immediately if not sooner).

Luke has been brought back after escaping – I think it’s the first escape, because after the second escape they beat him more severely and make him dig and fill that grave again and again. He is paraded in front of the chain gang in leg irons, and he is being made an example for the others.

But what was it exactly that got him the billy club strike from the warden? I caught it on AMC recently, and here’s what precedes the line we all know by heart. 

Strother Martin (Warden): You’re gonna get used to wearing them chains after a while Luke. But you never stop listening to them clinking. They’re gonna remind you of what I’ve been saying: they’re for you own good.

Paul Newman (Luke): I wish you’d stop being so good to me, Captain.

War on Drugs – it just popped into my head when I heard those lines again.

There are 2 basic responses I hear when I evangelize about trying to end the war on drugs.

The first is cyclical and illogical. “They deserve to be in jail à They knew it was illegal à They committed a crime à Don’t do the crime, if you can’t do the time à …”

OK, but the question was, “Why is it criminal to possess drugs for personal use?” I could respond with “If marijuana is criminalized, only criminals will possess marijuana,” but I’m afraid humor is ineffectual here. The person I’m having the conversation with is not going to listen to reason.

But the more frustrating counter argument I hear is some sort of variation on the theme, “Drugs are Bad For You”. Well, maybe ‘more frustrating’ is the wrong way to put it.

I’m actually encouraged when I hear someone say that, because I know that, given enough time, I can turn them around. At least turn them around 85%. Because no one who thinks about it can reasonably believe that giving enhanced three strikes and you’re out (25 to Life) sentences for ‘simple’ possession is ‘for the defendant’s own good’. It’s clearly not.

But the frustrating part is knowing I can’t have this conversation with most folks that think this way. And too many people thinking like Strother Martin, that we’re imprisoning people for their own good? That would lead to America leading the world in number of prisoners.

William F Buckley: The War on Drugs Is Lost

 

 

With the passing of William F Buckley, let us remember this stalwart of conservatism’s (eventual) position on the War on Drugs. From the July 1, 1996 cover story of National Review:

 

 

 

WE ARE speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen -- yet a plague for which no cure is at hand, nor in prospect…

How many users of illegal drugs in fact die from the use of them? The answer is complicated in part because marijuana finds itself lumped together with cocaine and heroin, and nobody has ever been found dead from marijuana.

The question of deaths from cocaine is complicated by the factor of impurity. It would not be useful to draw any conclusions about alcohol consumption, for instance, by observing that, in 1931, one thousand Americans died from alcohol consumption if it happened that half of those deaths, or more than half, were the result of drinking alcohol with toxic ingredients extrinsic to the drug as conventionally used.

When alcohol was illegal, the consumer could never know whether he had been given relatively harmless alcohol to drink -- such alcoholic beverages as we find today in the liquor store -- or whether the bootlegger had come up with paralyzing rotgut.

By the same token, purchasers of illegal cocaine and heroin cannot know whether they are consuming a drug that would qualify for regulated consumption after clinical analysis…

I leave it at this, that it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that the good offices of your vital profession would mobilize at least to protest such excesses of wartime zeal, the legal equivalent of a My Lai massacre.

And perhaps proceed to recommend the legalization of the sale of most drugs, except to minors.

The conclusion reached in his essay is simply basic conservatism.

Law Enforcement Delighted About High Intensity Drug Trafficking

I decided to rewrite the headline for a story in the Philadelphia Inquirer, originally titled ‘Chester and Delaware Counties Expand Drug War’. I got the new headline – the title of this post, that is – from the first two paragraphs of the story:

The White House designated Chester and Delaware Counties as "high-intensity" drug-trafficking corridors yesterday.

The dubious distinction, announced at a news conference at the U.S. Attorney's Office in Philadelphia, delighted representatives of regional law enforcement because it comes with $200,000 in federal funding.

I think it’s a fair headline.

The War on Drugs and Basic Conservatism

John McCain, speaking in Wisconsin after a primary win, giving us all some basic lessons in conservatism, attacking his likely general election opponent who, in his words would likely…

[R]eturn to the false promises and failed policies of a tired philosophy that trusts in government more than people.

To which Doug Berman asks, “Aren't extreme sentences and mass incarceration” exactly that?

I cannot think of a more fitting setting in which we see, year-in and year-out, politicians promoting "false promises and failed policies of a tired philosophy that trusts in government more than people."

Make up your minds people. Do you want the government telling you what you should and shouldn’t do, or not?

[Hat Tip: Pete]

Government Admits Marijuana Use Does Not Cause Violence

So someone googled “marijuana is associated with other crimes” and this blog came up on the eighth page of the results. I’m tempted to say the searcher had a hard time finding good solid scientific support for his thesis, if Google couldn’t legitimize the theory in the first few pages.

Anyway, I clicked the search button to see what links came up first. Lo and behold, it’s from the Department of Justice’s website, a paper written by the National Drug Intelligence Center called the Connecticut Drug Threat Assessment from July of 2002.

It’s full of the regular propaganda we have come to know, as well as the other usual suspects: faulty logic, scare tactics and inconsistency. The paper is broken down into sections about Abuse, Availability, Violence, Production, Transportation and Distribution.

Here’s what caught my eye. Check out the entire section on ‘Violence’:

Although marijuana abusers generally do not commit violent crimes, the distribution of marijuana occasionally is associated with violent crime in Connecticut.

Most violent crime associated with marijuana distribution in the state occurs between rival criminal groups and gangs.

Some marijuana distributors commit violent crimes to protect or expand their markets.

Law enforcement officials arrested two males in Connecticut in 1998 for killing a female Jamaican flight attendant and stealing 29 pounds of marijuana that she had stored in her home.

So, let’s see… DOJ admits marijuana use does not even correlate well with violence, and certainly doesn’t cause it, but that the criminalization of marijuana does. Absolutely 100% correct.

I assume the writer felt compelled to throw in that last sentence as a scare tactic, but doesn’t the whole thing, including the ‘example’ actually reinforce the obvious conclusion that marijuana use should be legal? 

Meth Gun and 'Good Enough for Probable Cause'

Kiran Chetry interviewed a Sheriff’s Deputy on CNN’s American Morning news program about the new methamphetamine detection ‘gun’ being tested in Arizona and Missouri.

First citing the National Association of Counties survey that found meth the ‘number one drug problem,’ Chetry defines the device as “[helping] police detect trace amounts of meth on any surface including skin,” and asks her guest about any legal issues that might be raised.

His response:

I hear the Fourth Amendment issues come up on several occasions and, you know, we’re here to protect or defend that constitutional right and so we’re here to use this device to determine if something is methamphetamine or not.

So, the right to be secure in your person (house, papers or effects) from unreasonable search and seizure is basically, well, the same as the ‘right’ of the police to determine if you have trace amounts of methamphetamine on you?

And what about trace amounts? Any way you could get trace amounts of methamphetamine on you and not be a dealer/user? Chetry continued:

…one of the other concerns… because this can test for a microgram of meth, how do you insure that innocent people wouldn’t get in trouble for inadvertently touching something that someone else touched, or hugging a person who had traces of meth?

No problem replies the Sheriff. In Arizona, the possession of controlled substance statute requires that a person have a ‘usable amount’ of meth. Well, there’s no such requirement in Texas. For marijuana, yes; for all other controlled substances, no (which is a separate problem in and of itself).

The Sheriff continued:

…if we determine that there’s a trace amount, we’re going to [go on] to determine

  • How did you get that?
  • Why do you have a trace amount on your clothes or person?

Well, let’s see here. Everyone will say “I have no idea”. Since we know that drug dealers/drug users will deny knowing where it comes from, that won’t be a very good excuse now will it? If you actually have no idea where it came from, better not get caught using the same excuse as all those junkies.

I found the part of the segment interesting. Chetry interrupts and rephrases the Sheriff’s last response to say that it’s ‘good enough then for probable cause’. But he actually says:

It wouldn’t be probable cause in itself… until the courts determine that the science and technology behind it is good quality science.

An admission from police that the gizmo isn’t ‘enough for probable cause,’ and that we don’t know the quality of the science… but, of course, they’re using it anyway.

Also see, from Jonathan Turley:

The concern is not meth users but the creation of a fishbowl society where the government constantly scans and surveils its citizens. It presents a world not contemplated when the fourth amendment was written and a world quite different in terms of the feeling of freedom in public. Notably, as surveillance cameras increase and scanning devices proliferate, there is little discussion of the shrinking zone of personal privacy.

Retroactivity and the Federal Sentencing Guidelines

From today’s New York Times article “Rules Lower Prison Terms in Sentences for Crack”:

Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday.

The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years.

The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.

Given that we’re talking about subtracting one year from the ‘normal’ decade in prison for a federal drug offense, it would make sense to replace the phrase “more lenient” with “less outrageous” in that first sentence. Still, this is a small step in the right direction.

Solomon Moore’s article also touches on the issue of whether or not federal prisoners sentenced under the old guidelines will be able to take advantage of the new rules. In other words, since the U.S. Sentencing Commission has decided that sentences were too long and need to be reduced, will it do you any good if you have already been sentenced unfairly/unreasonably?

The predictable response from the D.O.J. on this issue:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy.

“The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Wrong, wrong, and, well, at the end of that statement we see the real reason they oppose it.

First, it won’t erode federal drug enforcement efforts… it will be part of the basis of those efforts.

Second, it doesn’t ‘undermine Congress’s role in creating sentencing policy’. The United States Sentencing Commission was set up by Congress. The USSC was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984.

You can make a great argument that Congress did a terrible job when it passed those ‘reforms’; but you can’t say it wasn’t the Congress that did it.

Finally, what does D.O.J. mean when it says this will ‘impose an unreasonable burden upon our judicial system’?  Deciphering this will lead us to the real reason D.O.J. opposes making the new guidelines retroactive.

Basically the Federal prosecutor’s office is admitting that it’s too lazy to get things right. Yes, it may average out to ‘only a year’ reduction for those twenty thousand or so that are still incarcerated under the old rules, but each and every one of them has plenty of time to apply to reduce their sentence, and they will do so.

Gosh, that’s just too much work for the Department of ‘Justice’.

Even this argument fails though – I mean, it fails because it has no basis in fact, not just that it’s mean spirited and motivated by sloth. As Denise Cardman, Deputy Director of the American Bar Association wrote:

If the amendment is not made retroactive, the courts will likely be inundated with a large number of pro se filings using various vehicles, such as 28 U.S.C. §§ 2241, 2255, once the amendment goes into effect.  

The same number of motions filed under Section 3582(c) would be a far more orderly and effective manner of managing the inevitable requests for relief, creating “cleaner” and more uniform decisions. 

Indeed, 18 U.S.C. § 3582(c)(2) provides that the court may reduce the term of imprisonment “on its own motion.” Under this provision, a court could enter a blanket order reducing all sentences imposed under the former guideline. 

Moreover, post-Booker practice demonstrates that the federal criminal justice system is fully capable of revisiting many thousands of sentences when justice so requires.

A blanket order reducing all sentences retroactively will indeed be a much better use of judicial resources than, say, twenty thousand or so pro-se motions.

And, it has the added benefit of… being the right thing to do.

Would Legalizing Drugs Reduce or Increase Crime?

I don’t believe we necessarily can prove the answer to this question, but a recent CNN article written by Adam Reiss, Health clinic helps addicts shoot up, talks about a program in Canada:

Inside the Vancouver facility, I found more than a dozen people taking illegal drugs, such as heroin and cocaine, under the watchful eye of trained nurses. These drug users were among the more than 700 people who visit the facility every day, bringing their drugs with them.

Insite's goal is to reduce the risk of overdose and limit the spread of diseases like HIV by giving addicts…

Defenders of the Vancouver clinic say more than two dozen peer-reviewed studies have shown its benefits. One study found a 45 percent reduction in public drug use as a result of the clinic; another showed 33 percent of addicts are more likely to go to detox after using Insite.

Dr. Thomas Kerr, a University of British Columbia research scientist who has studied the program, believes Insite benefits the wider community.

"In the absence of such a facility, not only would [drug users] be high out on the street, but they would be leaving their syringes in school yeards, in parks and on city streets," Kerr said.

Just a week or so ago, I was having a conversation with a fellow Austin criminal defense attorney about whether ‘decriminalization/legalization’ would reduce or increase crime.

Like me, he is strongly against our current Drug War policies, especially when it comes to imprisoning and using felony enhancement provisions in the Penal Code for drug possession cases – creating ridiculously long sentences, sometimes 25 years to life.

However, he argued that even heavily regulated but legal use of cocaine and heroin would automatically increase drug use itself, and also other crimes – mostly property crimes.

I’m going to go see if I can get my hands on those peer reviewed studies the article cites, and I’ll report back on this later.

My gut instinct is that crime would be reduced, but it’s not the part of my regular anti-Drug War speech; something I need to look into. (And there are plenty of other reasons to oppose out current policies.)

Update: Pete at DrugWarRant responds.

Mass Incarceration in the United States: At What Cost?

Last week I referenced that the U.S. Congress Joint Economic Committee was holding a hearing on the over incarceration problem in America.

More specifically I anticipated that the testimony of Dr. Glen Loury and Dr. Bruce Western of Brown and Harvard respectively would be worth listening to. And indeed it was.

From Loury:

First, I wish to emphasize that with the advent of the mass incarceration policy we have witnessed an historic expansion of coercive state power, deployed internally on a massive scale. Violent crime peaked in the early 1990s, and began what has proven to be a long, precipitous decline…

As a result of this policy, the American prison system has grown into a leviathan unmatched in human history. Never has a supposedly “free country” denied basic liberty to so many of its citizens.

As of December 2006, some two-and-one-quarter million persons were being held in the nearly 5,000 prisons and jails that are scattered, like an archipelago, across America’s urban and rural landscapes.

Incarceration is now being used in the United States on an unprecedented scale. We imprison at a far higher rate than any other industrial democracy in the world. We imprison at a higher rate than Russia or China, and vastly more than any of the countries in Europe.

And, it is costing us a veritable fortune. Spending on law enforcement and corrections at all levels of government now totals roughly a fifth of a trillion dollars per year. In constant dollars, this spending has more than quadrupled over the last quarter century.

From Western:

Three types of policies would help alleviate the social and economic effects of mass incarceration.

1) Congress should re-examine the large of number of collateral consequences limiting the access of ex-felons to Federal benefits and employment. Many restrictions such as limitations on educational, welfare, and housing benefits do not serve public safety, impede the reintegration of the formerly-incarcerated, and penalize family members. While restrictions on benefits or employment might be justified if they are closely linked to particular crimes, such restrictions should be strictly time-limited, given the strong pattern of criminal desistance with age.

2) Congress should support prisoner re-entry programs that provide transitional employment and other services. Well-designed programs have been found to improve employment and reduce recidivism. Research suggests that community-based re-entry programs should ideally be integrated with education and other programs in prison, and also provide housing, drug treatment, and health care to improve the job readiness of released-prisoners. Post-prison employment would be encouraged by passage of the Second Chance Act of 2007. Employer incentives can be promoted through expansions of the Work Opportunity Tax Credit and the Federal Bonding Program. Taken together, these three measures would provide an important first step to a comprehensive Federal re-entry policy.

3) Congress should support the establishment of criminal justice social impact panels in local jurisdictions that can evaluate unwarranted disparities in juvenile and adult incarceration. By assessing the link between socio-economic disparities in offending to disparities in incarceration, local social impact panels could identify and take steps to eliminate disproportionate incarceration in poor and minority communities. Social-impact panels could also be charged with assessing disparities that may arise under proposed sentencing reforms.

These snippets are literally the tip of the iceberg. Read the transcripts and spread the word that incarceration is not the solution to everything.

Marijuana: Criminal or Funny?

Do news anchors giggle when they read stories about Theft, Murder, Burglary, Rape, Assault, Kidnapping, etc.?  Obviously not.

 

How do we explain the behavior of the anchors (all of them) in the above clip then?

 

Simple.  They know their audience thinks that possession of marijuana is not serious criminal activity.  Probably shouldn’t be criminalized at all.  And they aren’t afraid to show it.

 

Why then must State and Federal legislators continue the charade?

The First U.S. Marijuana Arrest (Ever)

The federal Marihuana Tax Stamp Act was passed on October 2, 1937, seventy years ago today. It was the first law criminalizing marijuana sale and possession in the United States.

That very day, the FBI arrested Samuel Caldwell for selling two joints to Moses Baca who was also arrested. Caldwell was sentenced to four years in Leavenworth; Baca 18 months. Neither was paroled. The maximum was five years.

Technically speaking Caldwell’s crime was not buying the $1 stamp that was a tax levied on the purchase and sale of marijuana. Apparently it was no legal defense that the stamp wasn’t available; after all, he was arrested the day the law was enacted – the stamps didn’t exist yet.

From the NORML website, the judge in his case sounds like he may have had a part in ghost writing Reefer Madness:

Caldwell's wares, two marijuana cigarettes, deeply offended Judge Foster Symes, who said:

"I consider marijuana the worst of all narcotics, far worse than the use of morphine or cocaine. Under its influence men become beasts. Marijuana destroys life itself. I have no sympathy with those who sell this weed. The government is going to enforce this new law to the letter."

Some thirty two years later, the United States Supreme Court struck down the Tax Stamp Act as unconstitutionally violating a defendant’s Fifth Amendment right against self-incrimination. Leary v. United States, 395 U.S. 6 (1969). Yes, that Timothy Leary. But I digress.

Of course, the case didn’t do Mr. Caldwell any good, because he had already served his four years, day for day, and in fact got no satisfaction at all since he died about a year after being released.

And all 50 states as well as the Federal Government have simply moved on to directly criminalizing marijuana sale and possession. And the prison industry thanks them for it.

Other bloggers/Same Subject: DrugWarRant, Friendly Fire.

norml.org

[UPDATE:  Oooops.  Maybe this is the second arrest.]

The War on Drugs is the new New Deal

Excellent article by Christopher Shea who writes the ‘Critical Faculties’ column in this weekend’s Boston Globe, “Life Sentence”:

What if America launched a new New Deal and no one noticed? And what if, instead of lifting the unemployed out of poverty, this multibillion-dollar project steadily drove poor communities further and further out of the American mainstream?

That's how America should think about its growing prison system, some leading social scientists are saying, in research that suggests prisons have a far deeper impact on the nation than simply punishing criminals.

Fueled by the war on drugs, "three-strike" laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.

The article makes many good points.

One is the problem that most of the general public is completely unaware that America is the Land of Incarceration (5% of the world’s population, almost 25% of the world’s prisoners). Most folks that aren’t in the ‘criminal justice’ industry are shocked by those numbers.

Shea argues that the pendulum is perhaps swinging in the other direction. He points to Glenn Loury and Bruce Western’s upcoming testimony at next week’s congressional hearings. The Joint Economic Committee will focus at least in part on the economic costs of our current ‘lock the door, and throw away the key’ approach to punishing drug crimes.

Shea believes that prison reform will take off as books are being released and sociologists focus on the problem.

Speaking of pendulums, also see One-Way Street’s analysis of the article:

The incipient prison reform movement may have less to do with genuine concern for the unfortunate than a consequence of a long economic expansion finally running out of gas. Citing Foucault's Discipline and Punish is irresistible in this context, and Foucault points out that prison reform is most likely to occur in affluent times, when criminality tends to turn toward crimes against property, causing in turn a broad harshening of penalties.

Rather than just simply throwing every crack head burglar in jail for the rest of his life, as we're essentially doing now, reformers wanted not to soften the law but to lessen (or sometimes merely to hide) the arbitrariness of justice.

Foucault himself was a member of the Groupe d'information sur les Prisons (GIP), a prison reform group, but that didn't prevent him from being suspicious of prison reform movements in general, which he regarded as agents in the redistribution of power.

On a personal note, I believe that in the centuries to come, societies will see the War on Drugs as a great moral failing on the part of the United States; that is, incarcerating drug addicts for substantial periods for doing what we know they do will be unthinkable. Don’t forget, at one point most folks didn’t question the morality of slavery.

But I have also argued in the past that drug war reformers will initially prevail, and in baby steps at that, by making cogent economic arguments. Give me fifteen minutes to have a serious back and forth conversation with anyone, anyone who is pro-Drug War, and I’ll have them at least halfway converted when they hear how much 25 to Life costs them, for non-violent drug users. The most hard headed will at least concede that the really high sentences shouldn’t be handed out for any marijuana offense, or for anyone that ‘only uses’ drugs. I think many of them think I am stretching the truth when I tell them the horror stories.

[Hat Tip: Oregon marijuana lawyer Lee Berger. Thanks for sending this article out on the NORML Legal Committee ListServ. Also see Pat Rogers.]

Caffeine vs. Marijuana

Drug War propaganda has infiltrated our lives to such an extreme that we no longer notice ridiculous logical fallacies applied to everyday situations.

Today I picked up a copy of AustinFit Magazine and leafed through it while my wife was shopping. In the Diet section they ask:

Is there a Caffeine Catch?

We all have those moments when we find ourselves in need. Whether seeking a pick-me-up, a buzz, warmth or companionship, turning to caffeine is a habit many of us have embraced. Are we getting off scot-free, or is this stimulant actually bringing us down?

OK. Looks interesting. It’s an article that attempts to address whether or not caffeine is addictive.

The long line at Starbucks seems to support this theory; coffee drinkers themselves even perpetuate the idea that the magical ingredient in that morning cup of Jo exerts some kind of mind control.

I’m one of those coffee drinkers. Just this morning I was standing in line at the elevator at the Travis County Courthouse, joking with a fellow defense attorney that I would whine about the heat outside, but perhaps I forfeited the right to complain because I was holding a cup of hot coffee in my hand. I’ve wondered myself, in those situations, whether caffeine is addictive. The article continues:

Scientists say otherwise, however. The World Health Organization as well as the Diagnostic and Statistical Manual for Mental Disorders both scoff at the notion that caffeine should be grouped in the same category as illicit drugs, pointing out the modern tendency to overuse the word “addiction.”

Here’s where the rabbit trail begins. Illicit drugs aren’t all addictive (think marijuana), and some of the most lethal drugs are addictive and legal (think, most obviously, tobacco and alcohol).

A mug of coffee cuts through the morning fog and gives us something to chat over before trudging off to our cubicles, but the habit is more social and psychological than it is physical. Cutting caffeine out of your diet may throw you a little off kilter, but it won’t inspire you to lie, cheat or steal.

Marijuana use doesn’t ‘inspire’ lying cheating or stealing either, but see how easy it is for the writer to automatically assume we should categorize all illegal controlled substances as ‘bad’, while ignoring legal drugs that actually are ‘bad’ for us?

Talk about jumping to unreasonable conclusions. Or perhaps it’s just begging the question. But I find this line of ‘thought’ annoying for its lack of intellectual rigor.

There’s no relationship between the drugs we criminalize and addiction; and there’s certainly no logical argument that addiction can be defined by what the legislature decides to send folks to jail or prison for.

ONDCP Blog Not Allowing Comments

Via Robert Guest:

My quest to comment on the Pushingback.com site is coming to an end.

Keri, my friendly contact at the ONDCP has informed me that the Pushingback.com does not allow for any reader input. Comments are not posted and no one can register to post on the site.

Drug warriors are such cowards. Only a government blog could actually stifle free speech. My tax dollars are being wasted on this nonsense. Why does our government fear debate? What do they have to lose from the free flow of ideas?

I’ve actually wasted my time trying to respond to the anti-common sense propaganda on that site as well.

And here I thought they were just rejecting my well reasoned observations about the uselessness of the Drug War, but it turns out…they already know in advance: people that take enough time to sit down and write out a blog comment have thought the issue through and don’t agree with their position.

So, just turn comments off all together. (Of course, to keep up the farce, they have a “Send Comments” link.)

Who Thinks Al Gore III Should Go To Prison?

No one in their right mind, I would argue. From CNN:

The deputy found a small amount of marijuana and prescription pills -- including Adderall, Vicodin, Xanax and Valium -- all without a prescription. 

Gore is charged with two felony counts of possession of a controlled substance, two misdemeanor counts of possessing a controlled substance without a prescription, one misdemeanor count of possession of marijuana and a traffic infraction.

If convicted on all charges, he faces a maximum sentence of three years and eight months in prison, but he could be eligible for a drug diversion program, the District Attorney's Office said.

The kicker here is that of course Gore won’t go to prison. But plenty of people in his situation do. Especially if, as in his case, they have prior drug and alcohol related arrests and police contacts.

Drug War crusaders love to insist that it’s only drug dealers that face serious prison time. Oh really? Al Gore III’s ‘small amount of marijuana and prescription pills” makes him a drug dealer? Or perhaps, a hardened criminal?

The point is that this shouldn’t even be punishable by almost 4 years in prison in the first place.

Bong Hits 4 Jesus - Try Your Luck

Now that the Supreme Court has ruled that "Bong Hits 4 Jesus" is improper student speech.  Via Students for Sensible Drug Policy, try your hand at guessing which of these statements you can and can't say now...

Why Criminalization of Drugs Will Never Work

Commenting on a recent New York Times article about the “recent” popularity of cocaine, Maia Szalavitz hits the nail on the head with her latest entry at the Huffington Post, “So Long Crystal Meth, Hello Cocaine”:

This is the problem with having a demon drug of the moment: all of them can't possibly be "the worst" and "most addictive" and "most dangerous," but if you look at the news coverage of each new scare, that's exactly what the coverage claims. When crack came out, it was "more addictive than heroin," (the previous worst drug ever), now meth allegedly makes crack look like "child's play."

Of course, this is always the tactic that the ONDCP uses. Again, and again, and with no real effect…other than increasing our prison population.

Szalavitz is the co-author of Recovery Options: The Complete Guide: How You and Your Loved Ones Can Understand and Treat Alcohol and Other Drug Problems.  

Lies, Damned Lies and Drug War Statistics

Coming in the mail from Amazon is my new copy of “Lies, Damned Lies and Drug War Statistics,” the book by Matthew Robinson and Renee Scherlen. I’ve actually meant to order it for awhile now, but just remembered to do it when I saw this about a book forum luncheon at the Cato Institute:

Each year the Office of National Drug Control Policy publishes a report called The National Drug Control Strategy. Those reports are supposed to provide information about trends in drug use and assess federal programs that are aimed at reducing the supply of and demand for illegal drugs. Policymakers rely on that information in making budget decisions and holding executive branch agencies accountable.

Matthew B. Robinson and Renee G. Scherlen conducted an independent review of those reports, and their research found numerous instances in which information was distorted to justify continuing the war on drugs. Join us for a discussion of the use and abuse of statistics and of policy recommendations for changing the federal approach to problems associated with drug use.

The Cato Institute program will feature the authors, as well as comments by Dr. David Murray, Senior Policy Analyst, Office of National Drug Control Policy.  I'll admit I'm extra curious as to what his reactions will be.

Most of us (who can’t make it to Washington) can watch the event live in RealVideo next Thursday, May 31, at Noon Eastern. Mark your calendars, and click here for the RealVideo link.

Training Dogs to Sniff Out Dope

In one of my favorite moments from Da Ali G Show, an ATF bomb sniffing dog trainer is asked when one of his pups alerts how he knows that the dog isn’t saying “This one definitely ain’t got a bomb in it?”

Well, when it comes to drug-sniffing dogs, how are they trained? The answer is the same as usual… Your Tax Dollars At Work: Drug Dogs From Around the U.S. in Arkansas for Training. Ever wonder how much it costs to send 200 dogs, and goodness knows how many more police and handlers and trainers to “sniffing school” for a week?

The article quotes the Vice President of the National Narcotic Detector Dog Association several times. Apparently not smoking marijuana helps you become spokesperson for such an organization, enabling you to unleash these perfectly clear explanations on the public:

Vice President of NNDDA Keith Wilkes said, "These dogs, especially the narcotic dogs every day there's no doubt there's a big war on drugs and this is a vital tool that we must use to locate these drugs."

and

Wilkes said, "We're able to go in and get the drugs out, in which case, obviously saves kids. Can't tell you how many kids and so forth from the narcotics before they hit the street."

Yes, these do appear to be exact quotes. Verbatim. 

One Reason Marijuana Is Illegal

Most folks probably haven’t put much time and effort into thinking about how we got where we are today in “The War on Drugs”.

I find when discussing the potential benefits of decriminalization that people often have some vague and generalized idea that “there must be some sort of reason the stuff is illegal”. Sometimes it’s unstated; but you can tell that idea is there.

Well, there is definitely a reason. Or, perhaps multiple reasons, but that doesn’t automatically make them good ones.

Check out Roshan Bliss’ guest commentary at the Purdue Exponent today, 4/20/07, “Nation’s marijuana laws were founded in bigotry”:

Early in the 1900s, Mexico's political conflicts sparked a surge of Mexican immigrants into America's southwest region. Although marijuana already existed in various forms in the U.S., the new immigrants are credited with being the first segment of the population known for marijuana use. The practice also became popular in African American culture around the same time.

The popularity of marijuana among minorities made racism a powerful tool for the opponents of marijuana. Racist politicians used hate to push anti-marijuana legislation through.

One Texas senator claimed that "all Mexicans are crazy and this stuff is what makes them crazy." A 1934 newspaper complained that "marijuana influences Negroes to look at white people in the eye, step on white men's shadows and look at white women twice."

Media sensationalism put forward blatant lies and misrepresentations of marijuana that misinformed the public and stigmatized the harmless herb.

The San Francisco Examiner went so far as to claim that "three-fourths of the crimes of violence today are committed by (marijuana users)." As a result of the pandemonium worked up by politicians and biased media about the marijuana "epidemic," marijuana was made illegal at the federal level in 1937.

Yes, there are indeed reasons that marijuana was criminalized. And the more you find out about marijuana prohibition, the more you realize it has a shameful history.

Damage Done: The Drug War Odyssey: a review

I haven’t yet seen the documentary “Damage Done”, but after reading the review in the Vancouver Sun, I just might.

Of course, it sounds like it will tell me what I already know:

More than 38 years after former U.S. president Richard Nixon officially started the War on Drugs, North America now has more drugs at lower prices than ever before; police corruption is largely the result of the insanely huge amounts of money that organized crime has to spread around; just as alcohol prohibition in the U.S. in the 1920s was responsible for creating gangsters such as Al Capone, so too is drug prohibition largely responsible for allowing organized crime to flourish today; and North America's huge appetite for illegal drugs doesn't come from addicts but from occasional users.

As the article points out, however, it comes from a different perspective. Instead of listening to life long Drug Policy Reform advocates, medical marijuana advocates, and the like…

Damage Done takes a much more subversive approach by talking to police officers and justice officials, the assault troops on the front lines of the drug war. As members of Law Enforcement Against Prohibition, their story is depressingly familiar: almost without exception, they started out as true believers in the war but ended up coming to the realization that they were just part of a drug enforcement industry that thrives on keeping drugs illegal.

Their message? Our current system of drug prohibition doesn't work and needs to change.

Here’s a link to the LEAP website, for those of you unfamiliar with the organization.

Judges Can't Sentence "Drugs" to Prison...

…instead, they sentence people to prison.

So let’s just be honest about it, and start calling it the “War on Drug Users”, OK?

More Pro-Drug War Reasoning

Tony Newman of the Huffington Post wrote a short piece commemorating the 1 year anniversary of 18 year old Mitchell Lawrence’s 2 year prison sentence for selling a tiny amount of marijuana to an undercover cop within 3 football field’s length of a preschool tucked away in a not-so-nearby church basement.

Some of the comments on the piece illustrate the difficulties encountered when trying to have substantive, logical discussions with folks about why mandatory minimums and so called drug free zone enhancements are such bad ideas.

I'm sure this young man was the salt of the earth and had no previous record for anything. He probably loved puppies and helped little old ladies cross the street. Surely this was his first offense and the police have never heard of him before.

and

I understand that mandatory minimums sometimes lead to horrible decisions. That being said, selling drugs near or at a school needs to carry such a punishment that it scares all away.

Second, I also understand that you can only be charged/convicted with evidence, but to use the words "...one joint's worth..." tends to imply this was a regular kid selling a tiny bit for the first time.

Why do pro-drug warriors tend to argue that unreasonable sentences are OK, because “this probably wasn’t the first time he ever did anything wrong”? Isn’t that somehow an acknowledgement on their part that the sentences for first time offenders are indeed unreasonable? Otherwise, they wouldn’t need to use that as an excuse. More comments…


You want to sell? Too freaking bad about the penalties. There are six billion people on this planet, not everyone deserves a second chance.

OK. My question here is…what percentage of the planet (or the United States) needs to be in prison…before we consider revising or eliminating mandatory minimums? Another comment…

My guess is that this kid knew what the laws were (I can't imagine this kind of punishment was never discussed in the media) and chose to sell anyway.

This is a poor “guess”. At least one study has shown that fewer than 1% of sales in drug free zones are to children in the first place. This is primarily due to the whole “several football fields away” qualifies aspect. The state always argues to the jury that they do not need to prove that the defendant was aware of a “school” in the area, just that there was one. And, as the law is written, they are correct.

Also, I can tell you from personal experience that clients are almost always genuinely shocked as to the potential penalties. Another comment…

Why do you think it would be a good idea to let people sell drugs by our schools?

This really sums it up, doesn’t it? To question the efficacy, morality, or wisdom of our current drug laws is the logical equivalent of actually wanting all children to smoke crack.  Of course, some might also argue that a policy of regulating marijuana would make it more difficult for children to have access.  As it is now, "drug dealers" don't exactly ask for ID, do they?

Not all the comments were so poorly thought out, however. I’ll leave you with my favorite…

How dare anyone sell pot near a school! It might cause strange side effects when mixed with the kids' Ritalin and Prozac.

What Does "Bong Hits 4 Jesus" Mean? (Morse v. Frederick)

The transcript of oral arguments in Morse v. Frederick, argued at the Supreme Court a few days ago, makes for some interesting reading. (For a summary of the facts, see my earlier comments on the case here.)

Ken Starr (arguing that the principal had the right to suppress the speech) focuses the beginning of his argument, predictably, with the usual Drug Czar type language. His first sentence in fact:

Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation.

A student holds up a sign (off campus, mind you) that reads “Bong Hits 4 Jesus” and now the Supreme Court is being asked to jump to the conclusion that the message glorifies drug culture? What exactly does “Bong Hits 4 Jesus” mean anyway?

Does it mean the speaker believes Jesus supports marijuana use? Does that automatically mean it is pro drugs? Perhaps it’s a suggestion that Jesus should be allowed to use marijuana?

What is the anti-“Bong Hits 4 Jesus” message?

I told my wife that I thought the opposite of “Bong Hits 4 Jesus” would be “No Bong Hits 4 Jesus”, and therefore that would have to be protected speech, at least according to the Government’s argument.

Would “No Bong Hits 4 Jesus” be as obviously pro-Drug War as the government thinks “Bong Hits 4 Jesus” is pro-Drug Culture?

My wife suggested that the opposite message might actually be “Bong Hits 4 Satan”. If the “4 Jesus” part of the sign is automatically an endorsement, then wouldn’t “4 Satan” send the appropriate “Just Say NO” message that the government expects us all to chant?

Any discussion about the actual meaning of this phrase would, I predict, devolve into equally subjective and silly analysis. And that’s exactly my point.

Actually, this case presents an excellent demonstration of the dangers of the government coming in after the fact and interpreting what a particular speaker means, when they argue the right to suppress the speech. Let’s not add the First Amendment to the growing list of Drug War victims.

Morse v. Frederick: Bong Hits 4 Jesus

Tomorrow the US Supreme Court will hear arguments in what will inevitably be known to future generations of law students as the “Bong Hits 4 Jesus” case (technically entitled Morse v. Frederick).

While watching the Olympic torch being carried in Juneau in 2002, 18 year old Joseph Frederick held up a large sign which said “BONG HITS 4 JESUS”. His high school principal (Deborah Morse) saw him with sign, crossed the street and demanded that he take it down. When he refused she crumpled it up, and eventually suspended him for 10 days.

Unfortunately, there is no small chance that the case may end up being decided on grounds such as “it wasn’t a school sponsored event”, or “even if semi-school sponsored, then off campus speech is entitled to more protection than on campus speech”– which are admittedly valid issues in the case. 

Lawyers for the student also argue in their briefs that it was just a meaningless phrase, not one that can necessarily be defined as anti-drug war. This is possibly the most valid point – after all, do you have any idea what the sign means? Me neither. (The student himself claimed it was nothing more than teenage hijinks, or possibly a statement about free speech, but not drug use.)

But here’s hoping that SCOTUS decides the case on its much more interesting merits…that is, whether or not a student has a right to speak out against our ridiculous national drug control policy. Really, at least to me, it’s an issue of free thought more than free speech – and isn’t that what schools should be fostering?

Through this blog, I’ve been contacted from time to time by students writing papers assigned to them by teachers about the pros and cons of “legalizing marijuana”. Will “thinking in school” be the next victim of the War on Drugs?

$65 Million in Taxpayer Dollars...

The Travis County Commissioners Court approved a $65.7 million contract Tuesday to expand the jail complex in Del Valle, a project that will provide only temporary relief for the strained jail system…

Commissioner Sarah Eckhardt said the county needs a top-to-bottom examination of the criminal justice system "so that we can divert as many people (from the jails) as is safe and efficient."

…from today’s Austin American Statesman article “County approves $65.7 million jail expansion”.

Of course, most county officials have no real control over this, but how much of your hard earned tax dollars are going to house drug offenders? And is there a chance someday that a “top-to-bottom examination of the criminal justice system” might include not jailing drug users?

Or should we just keep pouring money into this sinkhole?

Drug Czar criticizes randomized placebo-controlled scientific experiment as flawed methodology

From Scientific American today we learn of a study published in the journal Neurology that marijuana helped HIV patients reduce chronic foot pain.

A quick aside here, before commenting on the Drug Czar’s knee-jerk uninformed reaction to this…

HIV-Associated sensory neuropathy is a serious condition affecting almost one third of HIV/AIDS patients. According to Medscape Today, it is characterized by complaints of bizarre burning feelings, lancinating pains, and an increased perception of pain including “pain from stimuli which are not normally painful or noxious”.

I’m neither a doctor nor an HIV or AIDS patient, and frankly I had to look up the meaning of “lancinating”, but I think we can all agree it sounds terrible. This is real suffering, and thank goodness there are scientists pouring their efforts into helping those afflicted.

Now the scientific method demands that to properly study a particular drug’s effect on something, you must take a random sample of people, include a placebo, and measure to see whether there is a statistically significant difference between the drug and the placebo. If there is, you know you’re on to something.

Much of modern medicine is actually based on epidemiology,which studies patterns in populations of people after the fact, and tries to derive causes based on the patients’ histories. That’s all very well, and many times it’s the only available method for studying disease, but in the end, it doesn’t prove causation. It only gives us some good starting points for guesses.

The medical doctors and researchers in the study, however, randomly assigned half of the group to smoke cannabis (at 3.5% THC Content), and half to smoke the same cigarettes with the THC content extracted. Just over half of the cannabis group reported significant pain reduction, as opposed to less than a quarter of the placebo group.

So, can we get the office of the Drug Czar to weigh in on this for us?

David Murray, the White House Office of National Drug Control Policy's chief scientist, said, "Unfortunately, this particular study is not terribly convincing," citing what he saw as methodological problems.

"Unfortunately, it will lead many people into a false hope that street marijuana is somehow going to be the thing I can use that will make me feel better and won't jeopardize my health. Now that is a fraud and a dangerous one," he told Reuters.

So a randomized placebo-controlled experiment is flawed…says the folks who are still trying to sell you on the logical fallacy known as the “Gateway Theory”.

Giving police the tools they need for the War on Drugs

According to the Jacksonville Daily News, North Carolina State Rep. Tim Moore has filed a piece of proposed legislation making it a felony to have any compartment, space or box in a vehicle for the purpose of hiding illegal contraband.

The need for this new tool in the War on Drug Users isn’t immediately apparent, until you consider this:

Moore says he filed the bill at the request of the Cleveland County Sheriff's Office, whose officers lament that sometimes they pull over vehicles after drugs have been delivered. That is, the secret compartment is empty.

Folks… people with secret empty drug compartments have been getting away with this for years. 

If an officer pulls you over, searches your glove box, and knows that you had used it for storing drugs…should you get some sort of a free pass just because you sneakily emptied it out before he had the opportunity to rifle through your belongings?

Were you even aware that drug users caught without any contraband are routinely set free? Even when the police know what they are really up to?

Predictably, the usual suspects are up in arms about this. It’s mostly the typical mumbo jumbo about “How would the police know if there weren’t any evidence” and “Gee – I have a glove box in my car…Couldn’t this sort of thing apply to me, even if I actually weren’t a drug user/dealer?”

But I’d like to ask those opposed one simple question: If we can’t trust police officers to use a little discretion, and only arrest and punish the right folks, what would that say about our system of justice?

NIDA and Wikipedia: the definition of propaganda

Propaganda: information that is spread for the purpose of promoting some cause.

Propaganda: false or partly false information used by a government or political party intended to sway the opinions of the population.

Ryan Grim at Politico reports that the National Institute on Drug Abuse was caught vandalizing its own Wikipedia entry. And, of course, we the taxpayers are paying them to do it.

Pete Guither follows up at Drug WarRant with an excellent set of links detailing the original entry, and the Government’s changes to it. NIDA’s first attempt to makeover its Wikipedia entry reads like something written by an amateur PR firm:

NIDA is not only seizing upon unprecedented opportunities and technologies to further the understanding of how drugs of abuse affect the brain and behavior, but also working to ensure the rapid and effective transfer of scientific data to policy makers, drug abuse practitioners, other health care practitioners, and the general public.

The NIDA web site is an important part of this effort.

This truly laughable attempt to recreate its entry was soon caught both by Wikipedia’s bots, and by the human editors. Apparently, the vandals at NIDA didn’t know that all entries are saved on Wikipedia, from minor changes to complete wipeouts.

That didn’t stop them from making slower but still blatant attempts to add their propaganda to the entry over the coming months. They have since admitted that they did it, and the current entry on Wikipedia contains a new section about how the government agency tried to remake its image on the site. Serves them right – and unlike their “modifications”, at least that section is 100% true.

Other bloggers reporting on and picking up this story include Steve, John Daly, Wonkette (who calls it the “War on Wikipedia”), Scott Morgan, Jacob Sullum, LeisureGuy, Magellan, Carrie Cann, Mia Culpa, and several others

This is an important story…other folks need to pick this up and run with it as well. The “War on Drugs” is indeed the “War on Truth”.

Looking to Chairman Mao for Drug War solutions...

Initially optimistic about an opinion piece in the Eureka Times-Standard that started:

The war on drugs is a failure, and it is a scourge on our society.

“It” is a scourge on our society… where the word “it” modifies “war on drugs”. Well that’s certainly true. Few things have caused our society more economic and moral harm than the War on Drugs.

The writer then turns to great world leaders, to see how they handled the problem:

In 1949, when Mao Zedong took over control of Red China, he was faced with a huge problem, for a significant portion of the population was addicted to opium and this was destroying the country from within. Mao ordered that all opium dens be closed and anyone using opium be put to death.

Four years and 44 million people later, Mao didn't have an opium problem in his country or any other drug-related problem in his country. Today, China still doesn't have significant drug problem, for those who are caught with drugs are put to death immediately.

Let’s see, what’s our point here? “Chairman Mao wasn’t all bad; at least he put drug users to death”? 

I can’t help wondering though… might there be more reasonable solutions to our prison overcrowding problem?

Gerald Ford and the "War on Drugs"

Former president Gerald Ford’s passing is regrettable, of course, and I’m sure the media will bombard us with all sorts of tributes to the man, many of which may be deserved. I write here, however, of his pivotal role in the unfortunate escalation of the so called “War on Drugs”, and its aftermath.

From his April 27th, 1976, Special Message to Congress address:

When this problem exploded into the national consciousness in the late 1960's, the response of the Federal Government was swift and vigorous. Federal spending on a comprehensive program to control drug abuse grew from less than $100 million in 1969 to over three-quarters of a billion in 1974; specialized agencies like the Drug Enforcement Administration and the National Institute on Drug Abuse were created; and international diplomatic efforts to mobilize the assistance of foreign governments in a world-wide attack on drug trafficking were intensified.

With the help of State and local governments, community groups and our international allies in the battle against narcotics, we were able to make impressive progress in combatting the drug menace. So much so that by mid-1973 many were convinced that we had "turned the corner" on the drug abuse problem.

Unfortunately, while we had won an important victory, we had not won the war on drugs. By 1975, it was clear that drug use was increasing, that the gains of prior years were being lost, that in human terms, narcotics had become a national tragedy. Today, drug abuse constitutes a clear and present threat to the health and future of our Nation.

The time has come to launch a new and more aggressive campaign to reverse the trend of increasing drug abuse in America. And this time we must be prepared to stick with the task for as long as necessary.

Ford goes on to ask Congress to pass legislation mandating prison instead of probation, to enact mandatory minimums, even to deny bail to persons accused of certain drug crimes. (Yes, bail is for the accused, not the convicted, and theoretically the right to reasonable bail is protected by the eighth amendment.)

Perhaps in 1976, it was too early to know that an expensive, arbitrary, and severely punitive solution would utterly fail when it came to attacking the problem of drug abuse. Thirty years later, however, there is no excuse. We have been hearing the same thing for over 3 decades, and we do now know that incarceration and mandatory minimums are both ineffective and immoral.

The time has come for a different “solution”.

New Drug Policy Reform Webring

Thomas Van Wyk, who blogs regularly at The Liberator and The Doors of Deception has started a new Drug Liberalization Webring over at Bravenet. Visit the home page and/or join here:

This sitering is for: people who support full legalization and deregulation of drugs, the end to the demonization of drug users, decriminalization of drugs, the scaling back of the "War on Drugs," or at least a rethinking of the madness of current drug law and policy.

Websites related to the history of drugs or to general drug information are also welcome, as are websites with a "harm reduction" philosophy toward drug use. Political and law-related blogs which do not focus exclusively on drug policy, but have owners who are nevertheless concerned about the "war on drugs," are also welcome.

Purchasing over the counter meds? Bring a calculator (or go to jail)

Jonathan Wilde at Catallarchy comments on a story documenting an Illinois man’s arrest for buying Claritin D, which contains pseudo ephedrine (PSE), because he purchased enough for both himself and his son to take one a day for a month.

Rene Sandoval, Director of the Quad Cities Metropolitan Enforcement Agency -- the agency that enforces the law -- says it's meant to catch meth makers, and does.

"We've seen a huge decline in methamphetamine labs," Sandoval said.

But even if you're not making meth, if you go over that limit -- of one maximum strength pill per day -- you will be arrested.

"Does it take drastic measures? Absolutely. Have we seen a positive result? Absolutely," Sandoval stressed.

Alright, so arresting this guy for picking up a few tablets of allergy medicine is clearly a positive result, but I thought I’d do some digging anyway. I went to the Illinios Attorney General’s website and found their MethNet webpage. After much pointing and clicking, I was able to find a .pdf document that explained to me that in Illinois “a consumer may buy no more than 7500 milligrams of ephedrine or PSE in a 30 day period”.

Well, that’s helpful I guess, but I still wouldn’t know how much Claritin D I am allowed to purchase at one time, so I went to the Claritin website but gave up on figuring out the exact dosage of psudo ephedrine from that. A few google searches later I found out that:

The newly approved Claritin-D 12 Hour contains 2.5 milligrams desloratadine and 120 milligrams pseudoephedrine. The recommended dosing would be twice a day.

OK. Let me run and get my calculator. The recommended dose is 240 milligrams a day, so if I wanted to purchase a 30 day supply (not to be taken necessarily in a month, but just to avoid going to the pharmacy every time I need this stuff) that puts me at 7200 mg, so I’m OK.

I guess where this guy earned his jail time was for purchasing some for his son too.

I know when my wife asks me to run to the store to pick up some over the counter medicine for her cold or whatever ails her, I usually rush out the door. Looks like next time I’ll have to do some internet research and crunch the numbers…

[Update - Bloggers also taking note of this story: Windy Pundit, Poliblog, Outside the Beltway, The Liberty Papers, Reconstitution, Neither Red nor Blue]

Why not regulate (and tax) marijuana?

CNN reported that marijuana is the United States’ largest cash crop:

U.S. growers produce nearly $35 billion worth of marijuana annually, making the illegal drug the country's largest cash crop, bigger than corn and wheat combined, an advocate of medical marijuana use said in a study released Monday.

By comparison, the United States produced an average of nearly $23.3 billion worth of corn annually from 2003 to 2005, $17.6 billion worth of soybeans, $12.2 billion worth of hay, nearly $11.1 billion worth of vegetables and $7.4 billion worth of wheat, the report said.

"Marijuana has become a pervasive and ineradicable part of the economy of the United States," Gettman, a public policy analyst and former head of the National Organization for the Reform of Marijuana Laws, said. "The contribution of this market to the nation's gross domestic product is overlooked in the debate over effective control."

"Like all profitable agricultural crops marijuana adds resources and value to the economy," he added. "The focus of public policy should be how to effectively control this market through regulation and taxation in order to achieve immediate and realistic goals, such as reducing teenage access."

Of course, were marijuana decriminalized, regulated and taxed, the value would fall drastically. But it would still be a good source of taxable income for the government.

Drug Czar Acknowledges Prison Not The Answer

The Drug Czar’s blog trumpets the effectiveness of Drug Court programs for felony level controlled substance defendants:

Treatment instead of Jail: How Drug Courts Save Lives: Drug courts save lives.  They rescue non-violent drug offenders from incarceration and a cycle of crime by providing them with court-supervised drug treatment. 

So, I assume they’ll be jumping on the decriminalization bandwagon anytime now…

Physician's Prescription For Patient's Pain Leads To Prison

Physician Ronald McIver’s thirty (30) year sentence for prescribing pain medication too “aggressively” to too many patients was upheld by the Fourth Circuit last week, and while reading the opinion, I thought footnotes 3 through 7 were a little odd:

   3 Oxycodone is a potent and addictive opioid that is classified as a Schedule II drug under the Controlled Substances Act. See 21 U.S.C. § 812 (2000); 21 C.F.R. § 1308.12(b)(1) (2004). It is marketed in instant-release form under trade names such as Roxicodone, Roxicet, OxyIR, and OxyFAST, and in a controlled- release form as OxyContin.

   4 Dilaudid is the trade name for a medication that contains hydromorphone, a potent and addictive opioid that is classified as a Schedule II narcotic. § 1308.12(b)(1).

   5 OxyContin is the trade name of a controlled-release form of oxycodone that can be crushed to circumvent the time-release mechanism and then taken either nasally or intravenously.

   6 Methadone is a potent and addictive synthetic opioid that is used to treat pain and addiction to other opioids. It is classified as a Schedule II narcotic. § 1308.12(b)(1).

   7 Morphine is one of the most powerful and addictive opioids. It is classified as a Schedule II narcotic. § 1308.12(b)(1).

Why did the court feel the need in a legal opinion to note this? Do they feel the need to justify this unreasonable sentence by emphasizing the potency and addictive nature of these drugs? Why the reference to “circumventing the time release mechanism” of OxyContin?

From the statement of facts from the appellant’s brief in this case:

The practice of pain management is varied and controversial. There is no standardization in the treatment of pain. There is a question among physicians over how aggressively to treat chronic pain patients. Most physicians agree on the use of high doses of opioids to treat terminal cancer patients. 

While the majority of physicians do not use opioids aggressively with non-terminal patients, there is a minority group of physicians who treat chronic pain more aggressively and with more opioids than the majority group. A physician’s prescribing practices should be dictated by his clinical experience.

The use of opioids(narcotics) is a legitimate treatment option.

All true. And it’s denied by no one that Dr. McIver was legally allowed to prescribe these medications, if he thought it in the best interest of his patients.

So the War on Drugs now includes federal prosecutors deciding what medications are legitimate for you to take, how much you may have, and how long to imprison your doctor if they think he got it wrong. And the appellate court thinks it can hoodwink the readers of its opinion by justifying the sentence, because the meds are “potent and possibly addictive”?

Downright scary…

More Op-Eds Arguing For Common Sense Drug Policy

Florida Times-Union Tonyaa Weathersbee’s column “Decriminalizing Marijuana”, in part quoting Jerry Cameron of Law Enforcement Against Prohibition:

"We will never arrest our way out of this situation," Cameron said. "We will never be able to deal with our drug problem until we deal with our drug war."

This former drug fighter, in fact, is now a board member of Law Enforcement Against Prohibition, or LEAP, a national organization mostly of former and current law enforcement officials who believe that the best way to deal with the problem is through legalization and regulation.

Cameron makes sense.

Criminalizing drugs has kept the demand high, Cameron said, and suppliers use numerous means to get their product on the streets.

In many cases, this means violence and battles for territories. It also feeds other, more dangerous enterprises - such as illegal gun trafficking, carjackings and home invasion robberies.

It turns entire communities into prisons.

But by regulating drugs - in the same manner that alcohol and tobacco is regulated - at least the violence goes away. That alone would make some communities more livable.

Partly Right...Better Than All Wrong

While extolling the virtues of legislation increasing mandatory minimum sentences for firearms crimes in Canada, Edmonton Sun columnist Mindelle Jacobs observes:

If we wanted to engineer an immediate, dramatic drop in crime, we'd legalize drugs, demolishing the profit motive. For the most part, it's not poor people gunning each other down in Alberta's red-hot economy - it's greedy, rich punks fighting over drug turf.

In a paper on our failed drug war a few years ago, the Fraser Institute wondered why we spend so much money on drug prohibition in an effort to save a small hardcore group of drug users from themselves.

We should be asking ourselves the same thing. It is drugs - not prohibition - that boost crime, the institute noted. If we were smart, we'd divert the money we're spending on drug prohibition into treatment programs for addicts.

Some of her conclusions, particularly regarding prohibition not being the cause of violence are wrong, of course, and I can’t say that I favor increasing minimum sentences in America, but she’s partly correct about decriminalization reducing the profit motive, and therefore being a good reason to reform current drug policy.

More Mixed Messages From the Drug Czar

From the Drug Czar’s blog “World AIDS Day 2006” post yesterday:

Behaviors associated with drug abuse are among the main factors in the spread of HIV infection in the United States.

I'm sure that's true.  But see, from the same blog two weeks ago under “What’s Wrong With Needle Exchange Programs”:

The primary burdens for any public health intervention are that they produce the effect that they intended to produce, that they do not introduce harmful unintended consequences, and that they are demonstrably superior to other interventions that could produce better outcomes.  The existing evidence cannot support the claim that the distribution of needles to enable continued drug injection behavior can meet these criteria. 

I can’t do a better job than the Aids and Rights blog already has of debunking this second claim. I’ll ask this though… who do you trust more on this issue?

The ideologically driven, scientifically ignorant, highly politicized Office of National Drug Policy Control or these other listed organizations who all support Needle Exchange programs?

The American Academy of Pediatrics, the American Bar Association, theAmerican Foundation for AIDS Research, the American Medical Association, the American Public Health Association, theAssociation of State and Territorial Health Officials, and the National Alliance of State and Territorial AIDS Directors.

How to Convince (Rather Than Argue) Drug Policy Reform

After commenting on a post I wrote about drug policy reform, Pat from LeftIndependent wrote me an email (excerpt republished with permission):

It is gratifying for me to know that someone, besides me, considers the economics of the prohibition issue. The economics issue and the terrorist funding issue are the two arguments that I have the most success with when discussing policy with non-proponents. And they are the two issues I usually have the hardest time getting drug policy reformers to appreciate. 

A third issue, the genetics of addiction, turns prohibs around real quick when they see that some addiction is a matter of the human condition rather than being a matter of a bad choice by an addict. But reformers hate me for that argument.

Personally, I think lawyers should take the genetics of addiction issue into court on every simple addiction related court case. There is a wealth of science available that needs only a humane alternative interpretation to that offered by NIDA and the other government entities.

There are so many sound arguments for ending marijuana and controlled substance prohibition that it’s important for folks who are trying to persuade others to join the “decriminalize bandwagon” to familiarize themselves with all of them. I too have found that the economic issues are often the most successful. (Mostly: “Do you know how much it costs to lock someone up for a year for possession of one gram of cocaine? OK, multiply that by 25 to Life. Now multiply that by every person arrested. In Austin. Then Texas. Then the U.S. Still want a tax cut do you?)

Anyone that even partly agrees with you that the main problems with current policy are the moral and ethical issues involved with imprisoning casual users and/or addicts is probably on board with at least some form of drug policy reform already.

Drug Policy: Cause and Effect

Syndicated columnist Froma Harrop writes in the Houston Chronicle about her experience of being mugged:

I was alone on a New York subway platform, when a man started toward me. His glassy eyes foretold what was to happen. He pointed at the flute case I was carrying and said, "Give it to me."

Pulling the case back, I said "no," at which point he snapped open a knife and pointed it at my ribs.

I then held out the flute, squeaking, "Take it." He grabbed the instrument and ran off.

I didn't need Milton Friedman, the Nobel laureate who died on Nov. 16, to explain the economics involved. My mugger obviously had a drug habit made very expensive by the fact that his narcotic was illegal. Were his drug legal, he might have been able to buy it for the price of celery, in which case he wouldn't have needed me. He could have found the required change under seat cushions.

While referencing Milton Friedman’s letter to then Drug Czar Bill Bennett, she hits the nail on the head. Those who argue that we must continue to criminalize drug use because “it” causes violent crime miss a very important point: the “it” that causes crime is the current drug policy, not the drug itself…

The Reason 7/11 Is Open 24 Hours...

…is because somebody somewhere wants to buy a can of Pringles at 3 o’clock in the morning.

And, obviously, it’s not just one person. There is a real demand for being able to go out and buy a fill-in-blank in the middle of the night being met by corner stores, grocery stores, and all sorts of places.

We often hear politicians bragging about America being the Land of Opportunity, that as a culture we believe in supply and demand, that America’s pro-business attitude is good for the economy, good for everybody.

Why then do we refuse to apply that logic to the “drug problem”? Accepting that some folks ruin their lives by overuse of drugs and immediately jumping to prohibition as the solution makes no sense, especially in America.

We should know, when the demand for marijuana and other drugs is great enough, it doesn’t matter how hard you attack the supply side of the equation. That’s just a waste of time and money (not to mention human lives).

Let’s take 10% of what we spend on the War on Drugs, put it towards rehabilitation programs for those who are willing to participate, and use the rest for something else.

The War on Catnip

Fred Foldvary at progress.org:

Drug warriors scored a virtual victory after the 2006 U.S. elections when they hurriedly extended the War on Drugs to a psychoactive substance previously exempt: nepetalactone, the main psychoactive ingredient in catnip. It is well known that the sniffing of catnip makes some cats "turn on." Their eyes open wide, they roll over on the floor, they hug and bite the catnip toy and kick it with the feet, and they friskily run to and fro, similar to human beings who go crazy ingesting psychoactive drugs.

While catnip does not have the same effect on human beings, the advocates of banning catnip have pointed out that children who give their cats catnip and then see the cat being "happy" might get dangerous ideas about getting high. They think, if the cat can feel good, why not them too? Indeed, the first step to marijuana addiction may well be catnip! According to the drug warriors, catnip has been a major gateway to the human abuse of drugs, and yet there has been no prohibition.

The rest of the ironic piece actually contains a good summary of the history of prohibition in the U.S., while using pro-Drug War logic to justify this ridiculous end.

Drug Policy Reform Wasn't Built in a Day...

Radley Balko posts about his talk at the Students for Sensible Drug Policy conference this weekend, and reiterates his objections to the “Dutch Model” of drug policy: treating drug use as a medical problem, rather than as a matter of individual liberty.

Alex Coolman responds to Radley’s post and ideas by advocating a “Make Drugs Boring” model, that he believes will deglamorize drug use, and perhaps then decrease it.

One part of Coolman’s post on which they would both agree:

If the government is going to be getting in anybody's business, it's a hell of a lot better for that intervention to be in the form of doctors and nurses, counselors and other more or less benign types than for it to be in the form of cops, corrections officers, SWAT teams and so forth. If I could pick my poison, it would be the guy in the white coat, not the guy in the flack jacket.

This type of debate amongst serious reformers is a necessary part of any eventual drug policy reform in our country. But I fear sometimes that the debate about exactly what system we move towards (other than long term incarceration) overshadows the desperate need we have to change now.

Here in Austin, where the defendants I represent face serious jail and prison time for marijuana and other drug charges, anything but our current “lock em up” policy would be a welcome change. If we have to “accept” incremental change in the form of “reduced criminalization” in order to move towards an eventual perfect policy (whatever that might be), let’s do it.

A Little Tenth Amendment Humor...

Jacob Sullum at Hit and Run wrote about a recent medical marijuana ruling in California:

Although the U.S. Supreme Court has held that the federal government can continue to charge medical marijuana users under the CSA despite California's law, the judge said, that does not mean California's law is invalid. According to the ruling, the removal of state penalties for medical use of marijuana does not constitute a "positive conflict" with federal law.

It is unfortunate that folks misconstrue a state’s “legalization” of medical marijuana, for example, and fail to understand that the Federal Government can still come after them, and even imprison them under federal laws. As a practical matter and in terms of percentages, it may not happen to many medical marijuana patients in California, but the threat is still there, and it’s real.

The comments section to Sullum’s post, however, is definitely worth a read, and for me, a laugh. The commenters are discussing the confusion caused by state and federal conflicting legislation when MikeP says:

You know, someone should propose a Constitutional Amendment to clarify this whole federal/state powers thing once and for all. I recommend something like:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

That sounds a bit clunky, but I don't have time to polish it up right now.

I actually laughed out loud when I read that.  What can I say?  It's legal humor...

Making "Sense" of Pro Drug War Thinking

I’ve long been confused about why so many people support our so called War on Drugs. I think I may have found part of the answer in this Houston TV station KHOU report.  Basically, they define winning in a different way than the rest of the world:

The war against drugs in Houston is heating up. It’s a war some believe we are losing, but a war we can’t afford to lose said Captain Steve Smith with HPD Narcotics. “As long as we are fighting it then we are winning. And as long as you adapt to that and understand that, then you never think that law enforcement is losing the battle.”

Define victory as the fight itself, and you create a war that justifies itself automatically. Of course, the report contains the clues on how to actually win:

But seizing illegal drugs is only part of the battle. Taking the profit out of drug dealing is another. Police said there is a lot of money involved.

Well, of course there’s a lot of money involved, when you criminalize virtually worthless substances that have high demand. I bet the price of coffee beans would skyrocket if we locked up caffeine addicts.  If we decriminalize marijuana for example, its "worth" would plummet.  One more quote:

(The police) say the drug supply seems never ending and so does the danger… Police say seizure of drugs and guns go hand in hand. The question is can police gain the upper hand in this never ending fight. 

“But as we said it is a very lucrative promising business so the suspects and the narcotics traffickers, the cartels, they are always ahead of us,” said Capt. Smith.

Well if the drug supply is never ending, and the police are always going to be behind, the only way to define victory is to say that the battle itself is the win. Or maybe, well, there are other options out there, right?

Milton Friedman on the Drug War

Via Pete Guither at Drug WarRant, selections from the late Nobel Laureate Milton Friedman’s 1990 essay to then Drug Czar Bill Bennett:

The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse. The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish.

You are not mistaken in believing that drugs are a scourge that is devastating our society… Your mistake is failing to recognize that the very measures you favor are a major source of the evils you deplore.

Of course the problem is demand, but it is not only demand, it is demand that must operate through repressed and illegal channels. Illegality creates obscene profits that finance the murderous tactics of the drug lords; illegality leads to the corruption of law enforcement officials; illegality monopolizes the efforts of honest law forces so that they are starved for resources to fight the simpler crimes of robbery, theft and assault.

Drugs are a tragedy for addicts. But criminalizing their use converts that tragedy into a disaster for society, for users and non-users alike.

Read the whole essay here. The section about crack never being invented if Nixon hadn’t started the War on Drugs (“it was invented because the high cost of illegal drugs made it profitable to provide a cheaper version”) is both true, and frankly depressing.

Insanity.

Prosecutors Research Institute Argues For Decriminalization

This may be old news, since the study was published in 2005, and I’m just stumbling across it now, but imagine my surprise when I found this American Prosecutors Research Institute’s paper entitled “Drugs and Guns: Examining the Connection” by Paula Hoffman Wulff.

The entire paper reads as a treatise on why we need to decriminalize ASAP, because we will clearly see a dramatic decrease in gun violence literally as soon as we do. The papers thesis is that guns and violence are linked in many ways:

  1. The illegal drug trade is traditionally regulated by firearms violence.
  2. Firearms are used to protect shipments, intimidate competitors, collect or enforce debts, maintain turf, resolve disputes, and silence informants.
  3. Illegal drug purchasers use firearms as protection during drug transactions.

Note that these apply to illegal drug transactions, and obviously not to running to the pharmacy to pick up some Extra Strength Tylenol, which is not illegal. The illegality of the substance is what causes the gun connection. Then the paper continues:

Both buyers and sellers involved in simple possession justify their need to carry firearms as protection against being robbed…unable to report their grievances to law enforcement or seek relief in court, individuals involved in drug sales gone bad often view violence as the only means of recourse.

Makes complete sense to me. A well regulated and government sanctioned marijuana trade, for example, would have none of these problems. Business people will always have disputes that need arbirtration. Where better than a civil court of law to resolve these problems? There’s more:

Firearms have become an essential tool of protecting the drug trade….Unlike legitimate businesses, illegal drug dealers can not openly bid for sales regions or customers. Turf competition, whether for a street corner or a neighborhood, frequently becomes aggressive and is often regulated by the use or threatened use of firearms.

Well, I’m sold. Decriminalization is clearly the way to go. Read the rest of the paper, and you’ll find even more reasons to end this so called War on Drugs.  And kudos to the National District Attorneys Association, which funds the Prosecutors Research Institute, for finally starting to see the light...

More on Crack vs. Powder Cocaine

Eric Sterling, former Counsel to the U.S. House of Representatives Committee on the Judiciary from 1979 through 1989, was a principal aide in developing the Anti-Drug Abuse Acts of 1986 and 1988. Since then, he has been president of the Criminal Justice Policy Foundation. From his opinion piece (Take Another Crack at That Cocaine Law) in today’s L.A. Times:

One of our most infamous contemporary laws is the 100-1 difference in sentencing between crack cocaine and powder cocaine…Working for the House Judiciary Committee in 1986, I wrote the House bill that was the basis for that law. We made some terrible mistakes.

Those mistakes, aggravated by the Justice Department's misuse of the penalties, have been a disaster. Conventional wisdom is that the 100-1 ratio needs to be repealed. But that's an inadequate fix.

He proposes not only eliminating the powder vs. crack cocaine disparity, but raising the amount necessary to trigger federal prosecution to 50 Kilos of cocaine (unless the Attorney General approved prosecution of a lesser quantity).

For more from Sterling read his paper “Getting Justice Off Its Junk Food Diet”, where he explains, among other things that only 7 percent of federal cocaine cases are directed at high level traffickers, and that a third of federal prosecutions involve average cocaine amounts the weight of a candy bar.

(Hat Tip: How Appealing)

Not Enough Prisons or Too Many Prisoners?

A Los Angeles Times editorial by Sharon Dolovich, a professor at the UCLA School of Law, responds to Governor Schwarzenegger’s call to ship California inmates to out of state private facilities. Recognizing that the state can decide that there are either not enough prisons, or too many prisoners, she proposes a more sensible solution:

What we need is not more prison beds but meaningful sentencing reform. Our prisons are so crowded for one reason: We have too many people behind bars — more than 170,000 inmates. Many of these inmates are violent, but many more are not. The only way to resolve this penal crisis is to take a hard look at who is in prison and why, and ask ourselves whether everyone behind bars really needs to be there.

We could start by finding a more appropriate way to deal with those prisoners who are more mentally ill than criminal, who were re-incarcerated for technical parole violations that pose no public safety threat, whose offense is mere drug possession, or who are serving 25-year mandatory minimum sentences for non-serious, nonviolent third strikes. With even moderate success at these efforts, we wouldn't need to ship any inmates out of state. We'd have cells enough right here at home.

Seriously folks, are we jailing too many people when we have elected officials proposing that we deal with our drug offenders the same way we deal with landfills and garbage? Maybe we can all start wasting our collective energy on state vs. state prison NIMBY lawsuits

(Hat Tip: Media Awareness Project)

Legal Opiates: Regulation Not War

The LA Times runs a story “Make a Drug Deal with Afghanistan” that actually suggests a solution to several problems: the ineffectiveness of the war on drugs, along with help for those suffering from chronic pain. (Read this link for more serious discussion about “High Dosage Opioid Management: Considerations in Treating Intractable Pain”.)

The article references an independent Brussels-based think tank that found the drop in Afghani support for the U.S. was directly linked to its program of destroying poppy crops. 

Perhaps the deliberate destruction of up to 60% of the Afghan’s potential economy could be justified, if opiates weren’t a necessary part of modern medicines pain management systems, however, as the article points out:

The world is suffering from a shortage of legal opiates. The World Health Organization describes it as "an unprecedented global pain crisis." About 80% of the world's population has almost no access to these painkillers at all. Even in developed countries, for cancer care alone there is an unmet annual need for 550 metric tons more opium to make morphine.

Afghan farmers continue to produce the stuff, only to be made into criminals because of it. Meanwhile, in a Kabul hospital, half the patients who need opiates are thrashing about in agony because they can't get them, while in fields only a few miles away opium crops are being hacked to pieces.

The solution is simple. Instead of destroying Afghanistan's most valuable resource, Western governments should buy it outright and resell it to producers of legal opiate-based painkillers on the global market. Instead of confronting Afghan farmers about their crop, our representatives should be approaching them with hard cash.

This has been successfully tried before. In the early 1970s, the Nixon administration began to demand that the opium farmers of southern Turkey destroy their crops. Every attempt at destruction — carried out by reluctant Turkish prime ministers coerced with threats of cuts in U.S. military aid — failed. Eventually, Turkey was considered to be such a crucial Cold War ally that the U.S. granted it an exception. So Turkey joined India as a legal supplier of opiates for pain-control purposes, and it remains so today. Isn't Afghanistan even more important today than Turkey was in the 1970s?

Making Afghanistan a legal supplier of opiates for pain control purposes…two birds with one stone?

What Ben Franklin Would Say About The "War On Drugs"

Ben Franklin supposedly said that the definition of insanity is doing the same thing over and over and expecting different results.

Read this sad story in the Austin American Statesman and then answer this question: if we pour billions and billions more of our tax dollars into the same policy we have had for thirty years, can we expect any real progress in the next three decades?

Paramilitary Police Need Hurts Recruiting

Jack Love at New Mexico Law and Society questions the recruiting requirements for Police in his neck of the woods. Apparently Albuquerque is experiencing a severe shortage of police officers at the moment.

First, the idea of paramilitary police should be examined. Some police ought to be paramilitary, just like there should be some other specialty teams. Mental health, SWAT, close-encounter rough and ready teams, of one or more, should be available. But the tedious, boring, hard and dangerous work of patrolling and answering calls may be handled by officers without special qualifications, and without special physical attributes.

He goes on to argue that not all p[olice recruits need to fit the SWAT profile.  I agree in part, but would go further. Yes, the need will always exist for specialized units with young, physically fit officers on the ready to handle dangerous situations.

But, unfortunately, it’s our so called War on Drugs that has caused the recent explosion of paramilitary style raids, and fueled the need for paramilitary police units and tactics. It’s just one more example of how our senseless drug policy in this country is draining resources from where they are truly needed.

Are the Police Allowed to Lie to You (During a Criminal Investigation)...

…and if they do, will a judge toss out any evidence they obtain as a result? The short answer is: police in almost all circumstances are allowed to say whatever they want to get you to incriminate yourself. A short example follows:

When Al Pacino, the low level mobster, introduces Johnny Depp, the undercover police agent, to the other Mafiosos in Donnie Brasco, Depp’s character is justifiably met with some initial skepticism.  Is an undercover police agent in this situation duty bound to reveal his real identity in this situation, if he is asked, “Are you a cop?” Imagine the consequences.

Common sense tells us the answer is no. The undercover agent doesn’t have to choose death simply to maintain the constitutionality of the investigation. (And the U.S. Supreme Court came to the same conclusion in Hoffa v. United States. Yes, the Jimmy Hoffa.)

Even before that decision, police ruses were commonplace, and they have become even more so in today’s drug war environment.

In the recently decided Krause v Kentucky, however, the state’s Supreme Court decided that a trooper went too far over the line in obtaining a drug suspect’s consent to search his home. The police in this case woke the defendant up at 4 o’clock in the morning to tell him that his roommate had been accused of rape that very night. They needed to search the house to verify whether the accuser’s description of the apartment matched the scene of the alleged crime.

In fact, there had been no rape, not even an allegation, nor an accuser. It had all been a lie, intended to cause the known innocent person to allow police entry, where they could then search for drugs. Cocaine was eventually found “in plain view”.

The Court decided to reverse the conviction (affirmed by a lower court) because Schneckloth v. Bustamonte requires consent to search not to be coerced. Even that part of the Schneckloth decision has been watered down over the years, but the Court found that upholding the search would discourage future citizen cooperation in real cases.

Since the state decision was decided, at least in part, on federal Fourth Amendment grounds and federal caselaw, the State of Kentucky may appeal this all the way to the U.S. Supreme Court. Part of me wants to know what the result would be, and the other part fears further erosions of our constitutional rights. As far as the drug war goes, is there no end in sight to the ridiculous police state we are becoming?  Don’t forget, this ludicrous set of facts led to a conviction which was initially affirmed.

(Hat Tip to the Fourth Amendment blog for initially posting about this case; also, please read that blog for useful tips on navigating the confusing Kentucky Supreme Court’s webpage, if you want to read the decision.)

The Financial Cost of the American "War on Drugs"

Paul Armentano, senior policy advisor for NORML, writes an article in The Examiner about the recent Department of Justice Report “Drug Use and Dependence, State and Federal Prisoners, 2004”.

The new report is noteworthy because it undermines the common claim from law enforcement officers and bureaucrats, specifically White House drug czar John Walters, that few, if any, Americans are incarcerated for marijuana-related offenses. In reality, nearly 1 out of 8 U.S. drug prisoners are locked up for pot.

Of course, several hundred thousand more Americans are arrested each year for violating marijuana laws, costing taxpayers another $8 billion dollars annually in criminal justice costs.

He goes on to comment that this figure does not include county jail inmates.  Since probably most marijuana related incarceration is of the misdemeanor variety, I'm sure this actually seriously mis-underestimates the cost to us as taxpayers.  In Austin, most marijuana offenders sentenced to incarceration (i.e. not probation) will spend all of that time in the Travis County Jail.  I don't have the statistics, but I'm sure it's the same in most or all Texas counties.

I’ve long been a believer that educating folks about the financial costs of the drug war may be what ends up convincing politicians to eventually reform our drug policy. Thankfully, here in Austin, first time misdemeanor marijuana offenders are eligible for Pre-Trial Diversion.  This program leads to a dismissal with counseling and community service.  Also, it results in a savings to the community, as well as just being the right thing to do with a first time marijuana offense.

Noting the large percentage of Americans who self-report marijuana use at some point, I have to agree with Armentano’s conclusion as well: “It makes no sense to continue to treat nearly half of all Americans as criminals”.

Most Blogged Marijuana Story of the Week

The DEA Thinks Kids Can't Read...

In its never-ending disinformation campaign, the DEA has set up a website called StumbleWeed, a fake magazine to “teach” children the “truth” about marijuana. In the section titled Rx Pot: Prescription for Disaster, they claim to cut through the hype about medical marijuana, and get to the facts:

Even though some groups have endorsed smoking marijuana for medical use, major medical organizations do not agree. This is what they say…The American Medical Association rejected marijuana as medicine.

Apparently, even though they provide the hyperlink to the AMA’s position on medical marijuana, the DEA believes folks won’t read or understand it. Let’s take a look at the first and last sentences from the link itself:

The AMA calls for further adequate and well-controlled studies of marijuana and related cannabinoids in patients who have serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease…The AMA believes that effective patient care requires the free and unfettered exchange of information on treatment alternatives and that discussion of these alternatives between physicians and patients should not subject either party to criminal sanctions.

Not exactly undecipherable medical mumbo jumbo.   Just the AMA directly calling for more studies on the medical uses of marijuana, and absolutely stating opposition to its criminalization.

According to the DEA, however, the AMA “rejected marijuana as medicine”. Here’s a free tip for the DEA: disinformation campaigns work better, when you don’t provide direct access to the truth.

(Hat Tip: Drug WarRant)

Qualifying a Marijuana Expert for the Defense

I enjoyed Cliff Hutchison’s post at the ScienceEvidence Blog (cleverly titled Don’t Bogart That Expert) about the qualifications of a marijuana defendant’s expert witness. 

The case discussed involved a former criminal defense lawyer who was an opponent of the drug war, who had been qualified in 100 marijuana cases to testify as an expert witness, always for the defense. The court eventually ruled that the defense had not properly established his qualifications as an expert in the field.

However, they rejected the Government’s theory that his testimony was more prejudicial than probative, simply on the basis of his bias against our current system of prohibition and incarceration.  Cliff questioned that part of the finding:

Query, though, if the government wasn’t correct in arguing that an advocate witness has no business offering Rule 702 testimony? Logan claimed to have testified in over one hundred marijuana cases, and if his testimony was consistently an argument favoring marijuana defendants, how can it be considered reliable? The testimony becomes simply bolstering, in the guise of expert opinion, hence not helpful to the fact finder.

I have to jump in and disagree here. Let me make my point by using some obvious and common examples from the prosecution. Would this mean that the Austin Police Department’s DWI Task Force officers, who are qualified as experts in the standard field sobriety tests based on their NHTSA training, would be disallowed if it turned out they always testified for the prosecution? (I assume it’s self evident that they do.)  If I could just get them disqualified, I'd probably win every case...

Christian Science Monitor Drops the Ball

I knew the blogosphere would react to the Christian Science Monitor’s series of articles on the drug war in Columbia, even as I posted my own criticisms of the piece. Why is it that folks fail to see the obvious economic implications that our current drug policy mandates? Drugs don’t cause the violence (or fund the criminals), it’s the criminalization itself.

Well, the blogs are indeed rumbling, and Pat Rogers has an excellent rebuttal to the entire series from the CSM here, and he follows up with a post today that drives home the point: FBI still not connecting the dots.

New York University Professor Barnett Rubin, who appeared before the United States senate Foreign Relations Committee recently: "If it were not illegal, it would be worth hardly anything. It's only its illegality that makes it so valuable."

So valuable – and therefore so profitable. Simple economics. End of story. How long until we wake up and acknowledge this?

Possession of Marijuana: No Need To Arrest?

Jordan Smith’s always excellent Weed Watch column in this week’s Austin Chronicle focuses on three topics:

  1. 800,000 arrests in the U.S. for marijuana in 2005 (with 88% of them being for simple possession)
  2. Willie Nelson’s recent non-arrest for half a pound of marijuana
  3. The Government’s new anti-marijuana You Tube campaign

Anyone reading this think they could have gotten star treatment for a felony amount of marijuana? If getting a ticket is good enough for Willie, why does everyone else have to be arrested for it?

More Propaganda From Your Drug Czar...

From the Christian Science Monitor, the title of this article says it all: “Plan Columbia: big gains, but the cocaine still flows…”

The “big gains” part consists of the assertions of the White House Drug Czar John Walters:

"There is absolutely no question we are winning …We are squeezing them. We are forcing them to change their drug trafficking routes and their methods," says Walters.

Wait a minute… changing their routes, their methods??? …as for the “cocaine still flows” part of the article:

There is no lack, after all, of coca. Despite the unprecedented eradication efforts, coca cultivation actually increased last year by 8 percent, according to a study released in June by the UN Office on Drugs and Crime (UNODC)… Why? Growing techniques have improved over the years and farmers in some regions are now able to harvest coca leaf six times a year, instead of the usual four harvests.

(Check out the chart in guest poster Daksya's entry over at DrugWarRant for more on the numbers. )

Near the end of the article comes this last quote.  When even the apologists make statements like these, maybe people will wake up and realize what a colossal waste the so called war on drugs is:

"We're making first downs," US Ambassador to Colombia William Wood is fond of saying, "...but we're not sure how long the football field is."

Someone needs to tell Walters and Wood that 10 yard first downs will never win... on an infinitely long field.

The Dangers of Using SWAT Tactics

Radley Balko over at The Agitator posts three examples about the dangers of paramilitary police raids.

Even in the last example, where the police (supposedly) had the right “target”, is this sort of military force necessary when we’re talking about $60 worth of marijuana?

Preachers against Marijuana... What about kaneh-bosm?

Stan White writes a Letter to the Editor of the Central Kentucky Newsletter decrying a pastor’s previous letter bashing medical marijuana. I’m interested myself in looking into his claim that the kaneh-bosm mentioned in the Old Testament is actually cannabis, but for now, I’ll leave you with this quote:

Biblically, caging humans for using cannabis (kaneh bosm) is a sin and for clergy to support cannabis persecution, prohibition and extermination is very regrettable.

Biblically, morally, ethically and also, just from the standpoint of “Your Tax Dollars At Work”, I have to agree with him.

El Paso Prosecutor Focuses on "Rehabilitation"

The El Paso County Attorney Jose Rodriguez defends his decision to subject a 16 year old female juvenile to the threat of a 40 year sentence for attempting to smuggle cocaine across the border:

"Proceeding under (the) determinate sentencing statute in this case demonstrates that we will not tolerate these types of crimes, and should serve as a warning to those teens who might be tempted by the money being offered by the drug cartels," Rodriguez said.

Anyone out there believe this has any shot at deterring 16 year olds from doing foolish things?

Rodriguez also points out that she may get less than 40 years, possibly even probation, despite his decision to certify her as an adult offender. Why then does he not let her face imprisonment until she’s 21, under the juvenile statutes?

"We simply wanted to give jurors an option for a wider sentence," Dominguez said. "Our emphasis is not on incarcerating juveniles but on rehabilitating them."

So…seeking more than five years for a juvenile drug offender is emphasizing rehabilitation not punishment?

The Gateway Theory - Correlation does not prove Causation

The “Gateway Theory” of marijuana prohibition goes like this: marijuana use leads to “hard drug” use, such as cocaine and heroin. Since cocaine and heroin use are “bad”, we must criminalize marijuana to keep our children (and perhaps ourselves) from becoming hard core drug addicts.

The proof of the Gateway Theory is supposed to lie in the statistics that show that cocaine and heroin users in large part started out using marijuana. Since correlation (apparently) proves causation, marijuana use in teenagers and young adults therefore causes “hard drug” use later on.

Like most logical fallacies, when presented artfully, this can be a persuasive rhetorical device: it appears that the proponent of the theory is correct. Cocaine and Heroin users have a very high incidence of marijuana being their first illegal drug of choice. There must be a causal connection.

Let’s ignore for now the refutation that a higher percentage of cocaine and heroin addicts consumed alcohol than marijuana, and we all “know” that alcohol use does not cause cocaine or heroin addiction… (since many readers, like me, are occasional alcohol consumers who have never tried cocaine or heroin)

Let me ask you this: don’t you think the percentage of cocaine and heroin users that drank milk sometime in their lives (before use of the drug) is probably almost 100%?

Correlation does not prove causation. That’s just another logical fallacy brought to you by the Drug Czar.

Logical Fallacies and Marijuana Decriminalization

When you catch someone in a deliberate lie, don't you distrust the rest of their message?

Opponents of the marijuana decriminalization movement are fond of using straw man arguments.  These deliberate mischaracterizations tend to fall into two broad categories: (1) "They just want to smoke dope", and (2) "They want your children to become addicts/dope fiends".

While I'm sure there are casual marijuana users who support legalization, the first argument ignores all the economic, social and moral reasons we should have a more sensible drug policy.

Jordan Smith's Weed Watch column in this week's Austin Chronicle highlights an example of the second type of straw man argument.  Here is the entire text of the question being submitted to Colorado voters:

Shall there be an amendment to 18-18-406 (1) of the Colorado Revised Statutes making legal the possession of one ounce or less of marihuana for any person twenty-one years of age or older?

However, opponents of Amendment 44 have managed to write the language of Colorado's voter-education pamphlet to "explain" that the amendment would allow adults to give marijuana to teenagers.  Go ahead... re-read the text of the amendment.  Now ask yourself this:

If propronents of continuing the criminalization of marijuana were being honest, would they have to resort to such tactics?

Civil forfeitures admittedly a failed tactic

Posey County Prosecutor Jodi Uebelhack brags about Posey County, Illinois' new forfeiture program in this story from WFIE Evansville Channel 14 news.  I'll leave commenting on the wisdom and ultimate fairness of seizing assets from "suspected" but not yet convicted drug dealers for another post.  But check out the quote from the County prosecutor at near the end of the article:

"It may well deter using the vehicles. I don't know that it will deter the drug dealing," says Uebelhack.

Isn't that an admission by the state that this tactic on the so called "War on Drugs" is a failure?  It's all about supply and demand; and here's the prosecutor admitting that civil forfeiture of assets in drug cases won't help solve the problem itself.

Drug Czar blog gets it wrong again

The Office of National Drug Control Policy's blog 'Pushing Back' posted an entry where they ask "Marijuana near schools: Harmless?"

Read the Sacramento TV News station's story that the Drug Czar points to, and ask yourself this:  Was it the marijuana that 'caused' the gun problem?  Or is the fact that marijuana is criminalized what 'caused' these folks to bring handguns and an assault rifle with them?

There are truckers all over the highways across America transporting tons of legal substances (coffee, tea, etc.) that don't feel the need to arm themselves this way.  But if caffeine products were illegal, wouldn't it be the law itself that caused the transporters of the coffee and tea to arm themselves, and not the caffeine itself?