Tidbits on Drug Policy

The New York lawmakers went on their summer break without passing any of the important legislation still on their table, including a medical marijuana bill, which was passed by the Assembly, but didn’t get a vote in the Senate. Instead, they passed a law that requires airlines to provide snacks to delayed passengers. Nice prioritizing! Meanwhile, in Connecticut, Governor Jodi Rell vetoed a medical marijuana bill, earlier passed by the Senate and the House.

Oh well, maybe next year…

admin :: Jun.23.2007 :: Laws, statutes, regulations, Marijuana, Medicinal Value, News :: No Comments »

New York has a chance to join the 12 States that have already permitted medicinal marijuana. Connecticut and New Jersey also seem on the verge of passing some sort of therapeutic marijuana laws.

On this note, here is an interesting argument against medicinal marijuana, mainly on the grounds that smoking a therapeutic substance isn’t a safe and uniform method of administration:

“If marijuana has therapeutic potential, it should be required to pass muster with the F.D.A. like any other medicine. We have considerable experience with making drugs from plant material, including the opium poppy. We don’t authorize patients to smoke ( or vaporize ) opium for medical purposes; rather, we require that opiate products, including morphine for pain relief and paregoric for diarrhea, be standardized, controlled for quality, fully tested, delivered in an appropriate manner and shown to be safe and effective. Why should marijuana be any different?”

Source:: NYT OPED: Crackpot Legislation

The author’s reasoning is medically sound; however, as far as I understand, the problem is that no marijuana derivative (i.e.: Marinol) in existence has been found just as effective as smoking marijuana. Smoking pot definitely has all the drawbacks that are described in Henry I. Miller’s article - but it still remains the only truly effective method of alleviating symptoms of many debilitating conditions. So far, there hasn’t been a single recorded death attributed to marijuana. Thus, it is no wonder that many patients choose an admittedly imperfect, but a relatively safe treatment over no treatment at all. Legalizing marijuana would certainly allow more research into its therapeutic effects and will allow development of medications that will better address Henry Miller’s concerns.

admin :: Jun.19.2007 :: Marijuana, Medicinal Value, Rants :: No Comments »

The government may sincerely be trying to protect us from the harms of drug use. This is something that is known as legal paternalism. Legal paternalism is a belief that “[I]t is always a good reason in support of a prohibition that it is necessary to prevent harm (physical, psychological, or economic) to the actor himself.” (Joel Feinberg) The State sees itself as a concerned parent vis-a-vis its citizens. It views its citizens not as responsible adults, the subjects who possess independent free will, but merely as children, objects in the State’s care, which need to be protected from harm, especially from harm that they may inflict upon themselves. Concerned with the alleged harms of drug use (it doesn’t matter whether they are real or merely perceived), the State feels justified in punishing its children for conduct that it feels is more harmful than the punishment.

Consistent with the parenting role, is the notion of legal perfectionism, the idea that laws should play a role in positively shaping citizens for their individual benefit. The current militantly prohibitionist legal system may not be very effective in reducing drug use and trafficking; however, its role in cultivating “healthy” attitudes towards drug use amongst the constituency makes it ultimately justified.

Legal paternalism is a very prominent aspect of our legal framework. And, it seems that most citizens don’t mind. They want to feel protected, even from themselves, if need be. If Big Papa sometimes misguidedly causes more damage by punishing its children than can result from harm he protects them against - well, no system is perfect, right?

admin :: Jun.14.2007 :: Rants, Social Policy :: No Comments »

Is it still? This issue can definitely be debated. But, as I showed in the previous two posts, whenever a Supreme Court Justice comes out against blind judicial pandering to drug warriors, it usually happens in a dissenting opinion. And - vice-versa, a quote by a Supreme Court Justice expressing the evils of illicit drugs usually appears in a majority opinion. Well, here’s a quote (albeit, somewhat dated) from nothing less than a Supreme Court itself answering the question asked in the post title:

“In the years since Ross was decided [from 1982 to 1991], the Court has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure.

In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. […] No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.”

California v. Acevedo (1991) (Justice Stevens, dissenting)

Well, at least we can be pretty certain what the answer is for the years from 1982 to 1991. Of course, the admission by Justice Stevens obviously also appears in a dissenting opinion…

admin :: Jun.13.2007 :: Legal Issues :: No Comments »

As promised in the previous post, here are the examples of Justices’ opinions where they adopt the prevalent social attitudes:

“The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs.”

City of Indianapolis v. Edmond (2000) (Opinion by Justice O’Connor)

and,

“The difficulty of assessing gravity is demonstrated in the very context of the present case: Petitioner acknowledges that a mandatory life sentence might not be “grossly excessive” for possession of cocaine with intent to distribute, see Hutto v. Davis, 454 U.S. 370 (1982). But surely whether it is a “grave” offense merely to possess a significant quantity of drugs — thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute — depends entirely upon how odious and socially threatening one believes drug use to be. Would it be “grossly excessive” to provide life imprisonment for “mere possession” of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as “grave” as the possible dissemination of heavy weapons. Who are we to say no? The Members of the Michigan Legislature, and not we, know the situation on the streets of Detroit.”

Harmelin v. Michigan (1991) (Opinion by Justice Scalia)

and,

“It is not “absurd” that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity.”

Dep’t of Housing v. Rucker (2002) (Opinion by Justice Rehnquist)

and,

“The Customs Service is our Nation’s first line of defense against one of the greatest problems affecting the health and welfare of our population.
[…]
Petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today.”

National Treasury Employees Union v. Von Raab (1989) (Opinion by Justice Kennedy)

and,

“The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all.”

Skinner v. Railway Labor Executives Association (1989) (Justice Marshall, dissenting)

Now, most of these come from the majority opinions, meaning that even without looking at the opinions themselves, one could posit that the Court usually sides with the government drug warriors. Is it actually true? Another quote from the Supreme Court itself seems to confirm our timid assumptions. I will save the quote for the next post, though.

admin :: Jun.11.2007 :: Legal Issues :: No Comments »

The following are the quotes from the Supreme Court, where Justices actually recognize how the “drug menace” hysteria can influence even the decisions of the nation’s top court:

The unusual action the Court takes today illustrates how far the Court may depart from its principal mission when it becomes transfixed by the specter of a drug courier escaping the punishment that is his due.

Florida v. Rodriguez (1984) (Justice Stevens, dissenting)

and,

Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality.

Florida v. Bostick (1991) (Justice Marshall, dissenting)

and,

“…[N]othing about the characteristics shown by airport traveler Sokolow reasonably suggests that criminal activity is afoot. The majority’s hasty conclusion to the contrary serves only to indicate its willingness, when drug crimes or antidrug policies are at issue, to give short shrift to constitutional rights.”

United States v. Sokolow (1989) (Justice Marshall, dissenting)

and,

“In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.
[…]
I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”

National Treasury Employees Union v. Von Raab (1989) (Justice Scalia, dissenting)

and,

“A majority of this Court, swept away by society’s obsession with stopping the scourge of illegal drugs, today succumbs to the popular pressures [of its immediate interests that appeal to feelings and distort the judgment].”

Skinner v. Railway Labor Executives Association (1989) (Justice Marshall, dissenting)

Notice, how all of these blurbs that warn the Court not to become a “loyal foot-soldier” in the War on Drugs appear in the dissenting opinions. In the next post, I will present a small compilation of quotes that are in sync with the prevalent social attitudes of the day.

admin :: Jun.09.2007 :: Legal Issues :: No Comments »

Drugs cannot be forced out of existence; they will be with us for as long as people find in them the relief or satisfaction they desire. But the harm caused by drug abuse can be reduced. We cannot talk in absolutes - that drug abuse will cease, that no more illegal drugs will cross our borders - because if we are honest with ourselves we know that is beyond our power. But we can bring together the resources of the Federal Government intelligently to protect our society and those who suffer.

Federal Strategy for Drug Abuse and Drug Traffic Prevention 1979, Strategy Council on Drug Abuse.

Yes, this came from the Federal Government of the United States. Obviously, the sensible attitude expressed in the quote above hasn’t really stuck.

admin :: Jun.04.2007 :: Social Policy :: No Comments »

As I wrote in my previous post, our drug laws incarcerate far more blacks than whites, proportionally speaking. Obviously, they were not consciously designed that way; however, many social factors ensure that the impact of these laws is felt stronger amongst the black constituency. One reason may be the inadequate level of legal services available to the lower-income strata of the society in which African Americans are represented in greater numbers than whites. Another reason may be that too many ghetto dwellers turn to small-time dealing as a way to escape poverty. Sometimes, as in the case of the crack versus powder cocaine sentencing disparity, the law that is race-neutral on its face insures that blacks are going to receive harsher prison sentences than whites simply because crack, due to its lower price, is prevalent among the ghetto dwellers, while cocaine is favored by more affluent whites.

Can these laws be challenged on the grounds that their impact is felt stronger by a particular racial group? Such an Equal Protection challenge, alleging that the law discriminates on the basis of race or national origin, would force the courts reviewing these laws to apply the “strict scrutiny” standard. That means that the law will be found unconstitutional unless it is “narrowly tailored” to serve a “compelling” government interest and there cannot be a “less restrictive” alternative available to achieve that compelling interest. For all practical purposes, once the courts agree to review the law in question under the “strict scrutiny” standard, it is very likely that the law will be found unconstitutional.

However, the problem with the drug laws is that they weren’t intended to discriminate against a particular racial or ethnic group. Yes, a shrewd reader might ask, but in our case, even though there wasn’t any discriminatory intent, there is an obvious discriminatory impact! Wouldn’t the courts take that into consideration?

Unfortunately, the Supreme Court ruled that the Equal Protection Clause does not prohibit laws that lead to racial disparities. A mere showing of a disproportionate racial impact is a factor in ascertaining intent, but can never by itself be sufficient to prove it. See Washington v. Davis (1976) and Arlington Heights v. Metropolitan Housing Corp. (1977).

So, it looks like there isn’t any judicial relief on Equal Protection grounds, even though while only 15 percent of all illicit drug users are black, they constitute more than a third of all those arrested for drug violations (see my previous post for sources).

admin :: Jun.01.2007 :: Legal Issues, Social Policy :: No Comments »