Tidbits on Drug Policy

The most noteworthy development of 2007, as far as drug policy goes, is the substantive approach to the issues of (some of) the Supreme Court Justices in their opinions. In Kimbrough v. United States (2007), Justice Ginsburg continued to ponder the old issue of the degree of applicability of the Sentencing Commission’s guidelines to courts’ sentencing procedures; however, she was also willing to talk about the actual reasons behind the sentencing revisions:

Although the [Sentencing] Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. In a series of reports, the Commission identified three problems with the crack/powder disparity.

First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.”, see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstates” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence . . . than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96.

Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. […]

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

Previously, the Justices largely avoided discussing the “real-word” ramifications of the legislative approaches to tackling drug use and trafficking. It seems like some of them are actually willing to address the actual issues in drug policy. It comes as a welcome break from the usual formalistic approach that tended to characterize some of the Court’s previous decisions involving drugs.

admin :: Mar.26.2008 :: Cocaine and Crack, Sentencing and Penalties :: No Comments »

Eight grams of medical marijuana seized from a Garden Grove man during a traffic stop must be returned to him, according to an appeals court ruling directing local law enforcement to uphold state, not federal law.

Source: CBS2.com: Federal Court Rules Pot To Be Returned To Driver

Read the whole story by following the link above. The story is welcome news to anybody who prefers sensible drug policy. I managed to find the text of the decision online and, after reading it, here are my two cents:

The case is a triumph of sensible approach over the formalistic one. While the decision touches upon plenty of legal doctrines, such as standing, California medical marijuana laws, and even the 10th Amendment, the most striking feature about it is the willingness of the justices to use the aforementioned doctrines to render a decision on a very simple issue:

“…we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.”

Source: THE CITY OF GARDEN GROVE v. THE SUPERIOR COURT OF ORANGE COUNTY

No legal training is required to arrive at a sensible decision in a case like this. I don’t really believe in modern-day precedent-based jurisprudence, simply because a smart lawyer is always able to either cite a precedent in support of his argument, or, if he or she happens to represent an opposing side, to distinguish it. In the present decision, the Justices cite a bunch of cases that don’t support their decision, yet easily distinguish them from the situation they are faced with. Similarly, the legal doctrines can be twisted any way one wants, and that’s exactly what the Justices do. Just consider the following example:

“…the City argues that in enacting the CSA, Congress intended to occupy the field of marijuana regulation so extensively that ordering the return of a defendant’s medical marijuana under state law would be absolutely anathema to congressional intent. We cannot agree.”

Then, Justices proceed to create a solid legal foundation underneath their opinion. However - once again - no legal training is required to spot the fallacy of the statement above. Anybody who is familiar with the history of the Drug War and Drug War jurisprudence would likely agree with me that Congress did indeed intend to occupy the field of marijuana regulation as extensively as possible.

Now, I am not saying that the opinion is legally suspect. All I am saying is that a smart lawyer can use legal doctrines to justify diametrically opposite opinions. Actually, I think that the 4th District Court of Appeal rendered an opinion that is amazingly objective in its treatment of what’s really at stake. In the words of the court itself:

“We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed.”

Anomalous is a very mild description of legally suspect regulations that have sprung up during the War on Drugs. The court above was able to prevent the creation of a yet another anomaly.

admin :: Jan.07.2008 :: Legal Issues, Marijuana, Medicinal Value, News :: No Comments »

In a wonderfully informative primer, Why is Marijuana Illegal? A brief history of the criminalization of cannabis, Pete Guither writes:

Many people assume that marijuana was made illegal through some kind of process involving scientific, medical, and government hearings; that it was to protect the citizens from what was determined to be a dangerous drug.

The actual story shows a much different picture. Those who voted on the legal fate of this plant never had the facts, but were dependent on information supplied by those who had a specific agenda to deceive lawmakers.

Pete has touched upon a very important issue: way too often, our legislatures pass laws that are based on faulty data. The Drug War is just the most glaring manifestation of this phenomenon. Our elected representatives have no clue about many of the issues that they are called upon to regulate. As the result, we get a bunch of nonsensical laws - laws that we have to abide by, laws that govern our daily lives, laws that can send a person to prison for many years for doing something that likely doesn’t cause any major harm to himself or the society anyway.

Laws can be overturned if they are deemed unconstitutional; however, the Supreme Court exercises extreme deference to legislative opinion in most challenges. And, there is really no effective mechanism that would prevent legislatures from legislating on the basis of misinformation, hysteria or political agenda. As a result we are stuck with a plethora of laws and regulations that do more harm than good, and - most of these laws will be with us for a long, long time, simply because there is no mechanism that would evaluate them on the basis of effectiveness.

Well, you might ask, but what about the political leverage? If the society doesn’t like some law, its elected representatives will be forced to repeal or amend it, simply because they would like to get reelected. Ideally - yes, that’s how it should work. However, too often, the people simply don’t care or are just as misinformed about the issue as their legislators. The Drug War amply demonstrates that the society may welcome the most egregious and punitive laws even when credible information is available that proves that these laws do more harm than good.

The mere list of ideas on how to insure that we are governed by laws enacted on the basis of the most accurate information available can balloon this post to a barely readable length. I will try to outline a few of them in later posts and I encourage you to also think about how our system may be improved. Think about this: if Congress enacted laws based on the best available information the whole Drug War quagmire might have been avoided.

admin :: Jan.06.2008 :: Laws, statutes, regulations, Rants, Social Policy :: 1 Comment »

Two weeks after I wrote about studies demonstrating marijuana’s potential in treating cancer, the following article pops up on FoxNews.com:

A compound found in cannabis may stop breast cancer from spreading throughout the body, according to a new study by scientists at California Pacific Medical Center Research Institute. The researchers are hopeful that the compound called CBD, which is found in cannabis sativa, could be a non-toxic alternative to chemotherapy.

Source: Marijuana Compound May Stop Breast Cancer From Spreading, Study Says

Let me remind you, that marijuana remains a CSA Schedule I drug, which means, according to the Act that:

The drug or other substance has no currently accepted medical use in treatment in the United States. (Italics added)

That’s despite dozens of studies like the one above and that almost half of the nation’s oncologists recommend their patients obtain marijuana, despite its illegality, in order to alleviate their suffering. I mean, if that’s not currently accepted medical use, I don’t know what is. (By the way, speaking from a purely legal standpoint, this practice of recommending marijuana would fall under the Respectable Minority doctrine used in some states to refute malpractice claims! Or, if put otherwise, this would constitute a legitimate medical practice.) And yet - drug warriors continue to avoid finding medical utility of marijuana, despite pretty much overwhelming evidence to the contrary. One example of how they manage to do so comes from a decision in United States v. Oakland Cannabis Buyers Coop. (2001), where Justice Thomas writes:

In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, […] the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has “no currently accepted medical use” at all. (Italics added)

Imagine Congress passing legislation that puts aspirin into Schedule I. Now, if this classification is challenged in the Supreme Court, the Court may do the sensible thing, analyze the evidence and address the issue on its merits - namely, should aspirin really remain in Schedule I - or, it could duck the issue by saying that “for purposes of the CSA, aspirin has no currently accepted medical use.”

So, what Justice Thomas was basically saying in that opinion is that “marijuana has no accepted medical use because the legislature says it has no accepted medical use.” He may have been staying within the currently accepted boundaries of judicial review; however, Thomas’ formalism steers far from common sense. No sane person would in all earnest claim that the Earth is flat simply because the legislature made such a determination.

admin :: Nov.25.2007 :: Legal Issues, Marijuana, Medicinal Value, News :: No Comments »

Legal Formalism is a doctrine that reflects the wishful thinking of many legal theorists that judges should apply law in a sort of mathematical fashion without any regard to “real-life” normative or policy issues. (I think, in this country, Langdell was the originator of the formalistic school of thought in jurisprudence.)

Anyway. Under the doctrine, the judges should not concern themselves with whether the law is good or bad, just or biased, sound or nonsensical - all those issues are for the legislatures to decide. The idea is that a law should yield an unequivocal decision regardless of the substantive nature of the underlying fact pattern. There are many proponents of this doctrine, as well as many opponents (I, personally, happen to belong to the opposing camp) - but this post is really not about the merits of legal formalism, but rather about Supreme Court Justices hiding behind it, whenever they chicken out of truly addressing the issue before them on its merits.

For example, in Gonzales v. Raich (2005), observe Justice Stevens resorting to legal formalism in ruling upon an issue that is clearly about the right of gravely ill persons to, legally (under the state law) receive their medicinal marijuana without harassment by federal agencies:

“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”

Hey, it’s just about the blind application of the Congress’ power to regulate interstate commerce, right? As a legal formalist would put it, clearly the Controlled Substances Act legitimately has that power - and that’s all that matters - how that power is applied is beyond the scope of the judiciary. Notice how under Justice Stevens’ approach, the “case is made difficult by respondents’ strong arguments” - meaning, how strong real-life arguments of real-life respondents interfere with his structurally sound, aseptic interpretation of the issues. Well, lets consult the dissenting opinion by Justice Thomas:

“On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market — intrastate or interstate, noncommercial or commercial — for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.”

Hmmm… Now we have two eminent legal minds, one ruling that the CSA is within the commerce clause’ power to regulate interstate commerce; another saying that it isn’t. Under the perfect conditions envisioned by the formalistic doctrine, it isn’t supposed to happen. Seems like either the Controlled Substances Act is deficient, the Justices understanding of the formalistic approach is lacking or Legal Formalism itself is faulty. It could be all three are correct. It doesn’t really matter - after all, hiding behind a questionable doctrine to duck important issues is a dubious tactic all in itself.

admin :: Jul.03.2007 :: Legal Issues, Rants :: No Comments »

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 »

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 »

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 »