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January 2021
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Qualified Immunity on the Chopping Block

A Mississippi federal judge has challenged the qualified immunity defense that police officers use to deflect responsibility for their degrading treatment of suspects and innocent citizens.

In Jamison v. McClendon, U.S. District Court Judge Carlton Reeves recently concluded that Officer Nick McClendon violated Clarence Jamison’s Fourth Amendment rights when he subjected Jamison to a nearly two-hour ordeal that included badgering, pressuring, lying and intrusively searching his car. But the judge’s hands were tied by the qualified immunity doctrine so he was forced to deny Jamison’s legal claim. Reeves, an African American man, traced the development of the law and the institutional racism and police brutality that continue to plague our society. “Black people in this country are acutely aware of the danger traffic stops pose to Black lives,” the judge wrote.

Police behavior in the Jamison case is reminiscent of the United States in the 1930s when American citizens considered themselves safer on the streets than inside their local police precincts. Rubber-hose torture was a way of beating a confession or information out of a hapless captive of any color or creed while leaving their outer skin largely unmarked. Its use was common until the Supreme Court outlawed it. Times have changed. The domestic terror and psychological abuse of the rubber-hose treatment has emerged again with the aid of plausible disguises afforded by the drug war. Jamison v. McClendon is likely to be appealed and decided by the U.S. Supreme Court.

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Hedonism and Weed Leads to Happiness

Sharp legal and social distinctions are often made between medicinal and recreational marijuana, with indistinguishable recreational marijuana typically having a dark cloud cast over it. Why the distinction? At universities in Zurich and The Netherlands the need for hedonism and recreation is getting a major overhaul.

We all set ourselves long-term goals from time to time, such as finally getting into shape, eating less sugar or learning a foreign language. Research has devoted much time to finding out how we can reach these goals more effectively. The prevailing view is that self-control helps us prioritize long-term goals over momentary pleasure and that if you are good at self-control, this will usually result in a happier and more successful life.

“It’s time for a rethink,” says Katharina Bernecker, researcher in motivational psychology at the University of Zurich. “Of course self-control is important, but research on self-regulation should pay just as much attention to hedonism, or short-term pleasure.” That’s because Bernecker’s new research shows that people’s capacity to experience pleasure or enjoyment contributes at least as much to a happy and satisfied life as successful self-control. […]

Bernecker and her colleague Daniela Becker of Radboud University…found that certain people get distracted by intrusive thoughts in moments of relaxation or enjoyment by thinking about activities or tasks that they should be doing instead. “For example, when lying on the couch you might keep thinking of the sport you are not doing,” says Becker. “Those thoughts about conflicting long-term goals undermine the immediate need to relax.” On the other hand, people who can fully enjoy themselves in those situations tend to have a higher sense of well-being in general, not only in the short term, and are less likely to suffer from depression and anxiety, among other things. […]

Anti-hedonism in Western culture is linked not only to self-control but to a custom originating with Plotinus (204/5 – 270 C.E.); a neo-Platonist who maintained that hedonism leads to too much happiness and thereby an unwelcome death. The average life expectancy in the early Christian-Roman period was 26. Today’s average life expectancy in the United States is roughly 79. With death less immediate for many, and for quality of life issues in which death anxiety is reduced using psilocybin, there exist alternatives to prohibition and to drug wars.

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Drug Wars and Racism in Foster Care

It’s as if everything the drug war touches is corrupted or destroyed. The U.S. child foster care system is no exception.

From 2000 to 2011, researchers estimate one third of children in the U.S. were subject to a child neglect or abuse investigation — including more than 50 percent of Black children, according to a groundbreaking report…researcher Lisa Sangoi of the Movement for Family Power…exposes the foster system as rife with drug war attitudes and state violence. […]

The number of children taken from their parents and placed in foster care has risen in recent years, most often for “neglect” and “drug use,” although critics say child protective services (CPS) agencies often conflate drug use and neglect…In 2017, 83 percent investigations into alleged child maltreatment were closed after no evidence of mistreatment was found. […]

In 2014, the foster system allocated nearly three time as much money on removing and maintaining children outside of their original homes than on services aimed at keeping families together… a significant portion of the cases in family courts allege parental neglect based on drug use. Data varies across the country, but by some estimates, about 80 percent all foster system cases involve drug use at some point in the life of the case…. While these cases range from occasional cannabis use to debilitating substance use disorders, parents and their advocates agree that virtually every case is characterized by “gross misinformation” on the science of drug use…. The system also conflates treatment noncompliance with bad parenting, even as parents are attempting to juggle time-consuming [drug] treatment programs with making money and taking care of their kids.

“The judge stated I had been utilizing poor coping mechanisms because I discussed the potential of buying marijuana … and that justified removing my children from my care and removing me from home and making me homeless,” Brico said.

The racist myth that Black and Brown mothers were giving birth to drug-addicted “crack babies” has been thoroughly debunked, but at the time, the term was thrown around recklessly by pundits and lawmakers eager to blame poor people for the conditions of their poverty. Researchers now know that prenatal exposure to cocaine, has little to no effect on a child’s long-term physical and cognitive development. The same goes for cannabis, which some pregnant people use to treat morning sickness. Research shows that the stresses and harms of poverty, however, can have a tremendous impact on child development. […]

Myth-busting common drug stereotypes would likely have succeeded whereas drug-busting failed to preserve the lives of citizens like George Floyd who died because of a myth that says Black men on drugs are violent and require physical restraint. Many others are cut down in some way by botched or racist drug enforcement that seeks to cure poverty by eliminating the impoverished.

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Taking advantage of the window for criminal justice reform

[cross-posted from Facebook]

A friend of mine recently posted: “I wish Breonna Taylor got as much attention as Aunt Jemima.” Absolutely. I love the enthusiasm across the board, but I do hope there can be enough focus on actually accomplishing some major reforms to the criminal justice system while people are interested and motivated to effect change.

And no, what has been proposed by the President is not it. As Radley Balko said: “The highlights of Trump’s police reform plan: 1) Addressing the system’s inability to hold bad cops accountable by setting up a database of bad cops whom the system has held accountable. 2) Banning chokeholds, except when cops decide they need to use one. 3) LAWANDORDER”

Here are a few things that I would support (certainly not an exclusive list):

  1. End Qualified Immunity (as it exists now). As originally intentioned in the 1967 Supreme Court ruling, the doctrine was intended to prevent nuisance suits. Qualified immunity prevented suing a police officer for violating rights unless those rights were clearly established and would reasonably be known. As it currently stands and is bizarrely being interpreted by the courts (in the last 15 years or so), plaintiffs must prove that there exists a prior court determination made in actual litigation under facts extremely close to those of the case at hand, or else the case is dismissed (It’s the “how could I possibly have known that having a dog attack a suspect who is sitting on the ground with his hands up is a violation of his rights, since in the prior case, the suspect was lying down?” defense). Yes, that’s an actual example (Baxter v. Bracy). This makes it almost impossible to sue regardless of how egregious the behavior. The Supreme Court has just chosen not to visit this, so it needs to be done through legislation. This is an area that has some bi-partisan support (tri-partisan, actually, with Amash co-sponsoring a bill in the House). Short of eliminating qualified immunity, I’d accept a significant adjustment to the doctrine that prevents trivial lawsuits while not assuming all police officers to be ignorant of the rights of citizens.
  2. End the drug war. Treat drug abuse like a medical and social problem (which is what it is) and not a criminal problem. Plenty of other countries are doing much better than we are with drugs because they’ve taken it out of the criminal justice system (we don’t have to invent something new – good models already exist). At the very least, legalize marijuana at the federal level, eliminate all drug task forces, and remove all financial incentives (asset forfeiture, etc.) that end up prioritizing drug policing over other kinds of policing.
  3. Related to 2, eliminate the DEA. It has become a violent rogue federal law enforcement agency that is rife with corruption and abuse of power, and regularly undermines local authority when it comes to policing. If not eliminated, re-purpose the organization to focusing on making sure federal pharmaceutical supply chains needed for medical purposes are not disrupted.
  4. Also related to 2, end the use of SWAT-style approaches (including all dynamic entry) except as originally intended (hostage situations). The explosion of serving warrants using SWAT-style approaches has made policing much more life-threatening for both citizens and police. There are other ways to safely serve warrants (no more Breonna Taylors, please!).
  5. End the militarization of police forces. Small-town police forces don’t need tanks, and images of soldiers in the street do not promote peaceful problem-solving.
  6. Accountability. This is probably the most challenging. A lack of accountability breeds a lack of respect. And when one player fails to protect and serve (and yet stay on the force), it damages all (the bad apple spoils the barrel). Trust is impossible when there is undiscerning blue fandom, unwillingness to turn in those who betray the trust, and an inability to permanently weed out those who need to be in another profession. This is going to require changing internal culture and the role of the unions, as well as developing better independent oversight.
  7. Work to dramatically reduce prison populations. End any agreements with private prisons that contractually require a certain percentage of cells filled (quotas). Release non-violent drug war prisoners. Change laws to end the practice of piling on sentences for low-level non-violent criminals. Use incarceration savings to fund transition programs, and work to re-enfranchise released prisoners.
  8. Related to 7, we must stop evaluating District Attorneys by how many people they incarcerated and for how long, but rather how they most efficiently used the resources of the judicial system to make us safe. Not quantity, but quality.

For me, that would be a good start. What would you add?

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The ever-popular ‘there might be drugs’ excuse

Force Against Protesters Was Necessary Because Of… Drug Traffickers, Feds Assert

The supposed presence of “drug trafficking organizations” at protests in the wake of George Floyd’s death justified the use of “escalated force” at the demonstrations, U.S. Customs and Border Protection claimed in a memo revealed Wednesday.

There’s not any evidence to back up that claim in the memo, a copy of which was obtained by Yahoo News.

Nonetheless, at the top of an incident report dated Tuesday, the Homeland Security agency said that “due to nefarious actors and drug trafficking organizations using these protests as façades, there have been incidents where law enforcement (LE) officials have needed to respond with nonlethal and escalated force — incidents including the use of pepper spray, riot shields, and rubber bullets.”

The claim came two days after the Justice Department signed off on a Drug Enforcement Administration plan to act as federal law enforcement at the protests outside of the agency’s usual narcotics activities.

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Get off my lawn

Maybe I’m getting old, but it makes me just a little bit cranky to see everybody on Facebook finally “discovering” that our criminal justice system is broken.

SMH

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DEA becomes latest all-purpose hammer for the corrupt Justice Department to use domestically

For an agency that has always looked at the world as a nail.

The DEA Has Been Given Permission To Investigate People Protesting George Floyd’s Death

The Drug Enforcement Administration has been granted sweeping new authority to “conduct covert surveillance” and collect intelligence on people participating in protests over the police killing of George Floyd according to a two-page memorandum obtained by BuzzFeed News. […]

Attorney General William Barr issued a statement Saturday following a night of widespread and at times violent protests in which he blamed, without providing evidence, “anarchistic and far left extremists, using Antifa-like tactics,” for the unrest. He said the FBI, DEA, US Marshals, and the Bureau of Alcohol, Tobacco, Firearms and Explosives would be “deployed to support local efforts to enforce federal law.”

I really hate this, but it may be time to remind people of my Drug War Victims page.

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Little Proof that Drug Counseling Works

A study headed by Elizabeth O’Connor, PhD, at the Kaiser Permanente Evidence-based Practice Center in Portland, Oregon, has bad news for drug counselors and the youth-focused drug prevention industry:

26-MAY-2020–Bottom Line: The U.S. Preventive Services Task Force (USPSTF) has concluded that current evidence is insufficient to make a recommendation regarding primary care-based behavioral counseling interventions to prevent illicit drug use (including nonmedical use of prescription drugs) in children, adolescents and young adults. The USPSTF routinely makes recommendations about the effectiveness of preventive care services and this recommendation is consistent with its 2014 statement, although it now includes young adults ages 18-25. Illicit drug use, defined as the use of substances (not including alcohol or tobacco products) that are illegally obtained or involve nonmedical use of prescription medications, contributes to the leading causes of death among young people ages 10-24. […]

Further conclusions and relevance:

…The evidence for behavioral counseling interventions to prevent initiation of illicit and nonmedical drug use among adolescents and young adults was inconsistent and imprecise, with some interventions associated with reduction in use and others associated with no benefit or increased use. Health, social, and legal outcomes were sparsely reported, and few showed improvements.

A thorough investigation of the efficacy of drug prevention has long been overdue.

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The Supreme Court and Flushing

There’s an old Guitherism:

The entire philosophy behind SWAT-style drug raids is that the death of a mother, a child, or the family pet is an acceptable risk to prevent flushing.

I spent years railing about the drug-war exception to the 4th Amendment, and so I tend to still perk up when I hear discussions about it.

So this headline caught my attention: Why a Toilet Flush Is Chief Justice John Roberts’ Worst Nightmare Come True

Ah, finally, a critical 4th amendment case?

No, merely the sound of a toilet flushing in the midst of online oral arguments.

Naturally, this hit pretty much every news outlet.

Grow up.

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John Prine, RIP

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