Drug WarRant

Gil Kerlikowske, Drug Czar, Opposes Marijuana Legalization

Really? That’s news?

It did get Kevin excited…

Kevin Sabet tweet: Today: Gil Kerlikowske, Obama’s Drug Czar, Opposes Marijuana Legalization http://t.co/UbFX09Za5V

Today. Like it was breaking news.

Of course, we know it’s no surprise. It’s not like he has a choice:

Responsibilities. –The Director– […]

(12) shall ensure that no Federal funds appropriated to the Office of National Drug Control Policy shall be expended for any study or contract relating to the legalization (for a medical use or any other use) of a substance listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812) and take such actions as necessary to oppose any attempt to legalize the use of a substance (in any form) that–

1. is listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812); and
2. has not been approved for use for medical purposes by the Food and Drug Administration;

Kevin, however, sees it differently.

Tweet: @TransformDrugs That reading of ONDCP’s authorization is 2nd biggest “mountain out of a molehill” instance/mistake made by reformers.

Again, really?

How else can you possible read it? If there’s another way to read it, then maybe we can just read the drug laws to say that marijuana isn’t really illegal.

From the Pew Trust: Report: No Easy Options for Feds in Legal Marijuana States

The federal government may not have much choice but to continue its mellow attitude toward legal marijuana in Washington and Colorado.

New laws legalizing recreational marijuana use in Washington and Colorado probably fall under the states’ “power to decide what is criminal and what is not,” according to a new report from the Congressional Research Service (CRS). The report analyzes court precedent and lays out what the Justice Department and the Obama administration might do to enforce federal law now that several states have passed marijuana laws that contradict it.

The agency’s conclusion: The feds face an array of unappealing options.

Here’s the report: State Legalization of Recreational Marijuana: Selected Legal Issues (pdf)

As you may know, the Congressional Research Service is the entity that Congress turns to for detailed policy and legal analysis.

Here’s the key:

In Section 708 of the CSA (21 U.S.C. §903), Congress specifically articulated the degree to which federal law was to preempt state controlled substances laws. This express preemption61
provision recites language that evokes the principles of conflict preemption, stating,

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.62

Notably, the provision clarifies that Congress did not intend to entirely occupy the regulatory field concerning controlled substances or wholly supplant traditional state authority in the area. Indeed, Congress expressly declined to assert field preemption as grounds for preempting state law under the CSA. The Supreme Court has stated that this provision suggests that Congress “explicitly contemplate[d] a role for the States in regulating controlled substances.”63 As such, the preemptive effect of the CSA is not as broad as congressional authority could have allowed. States remain free to pass laws relating to marijuana, or other controlled substances, so long as they do not create a “positive conflict” with federal law, such that the two laws “cannot consistently stand together.”

This is crucial, and why the Feds can’t simply overturn the Colorado and Washington laws, for example (or any of the medical marijuana laws, either). The states, of course, have to dance a bit of a fine line to make sure they don’t implement laws in a way that conflict with federal law, but the mere notion of the state having a different way of dealing with marijuana than the federal government is not a problem. In this instance, the CRS actually mentioned an Amendment that you rarely hear having any power:

Under both Tenth Amendment and preemption principles, federal and state courts have previously held that a state’s decision to simply permit what the federal government prohibits does not create a “positive conflict” with federal law.85 As discussed above, under the impossibility prong of conflict preemption, the Supreme Court has specifically held that so long as an individual is not compelled by state law to engage in conduct prohibited by federal law, then simultaneous compliance with both laws is not “impossible.”86

The CRS also explains why international treaties do not overturn state legalization laws.

It is well established that treaties, like federal statutes, may preempt conflicting state laws. The Supremacy Clause expressly provides that in addition to federal law, “all treaties made … under the authority of the United States, shall be the supreme law of the land.”138 Therefore, a state law is generally preempted to the same degree whether it is in conflict with a federal statute or an international treaty obligation. However, not all treaties are accorded “automatic” preemptive effect.139 Only where a treaty “constitute[s] binding federal law,” without the “aid of any [implementing] legislative provision,” does it qualify as the “Supreme law of the land” for preemption purposes.140 Such treaties are known as “self-executing” treaties—meaning an international agreement with “automatic domestic effect as federal law upon ratification.”141 […]

…neither the Single Convention nor the other international drug control treaties appear to be “self-executing.” Each treaty requires the signatory nation to give legal effect to the goals of the treaty through domestic implementing legislation. The provisions of the treaties do not themselves establish binding domestic law. The United
States, for example, implemented the obligations of these treaties through the CSA.145 Because these treaties do not create binding law “of [their] own force,” it would appear unlikely that a U.S. court would accord the treaties direct preemptive effect.146

So where does this leave the feds? They can use their limited resources to arrest and seize whomever they can get their hands on. They can tie marijuana to other federal laws — gun possession, public housing occupancy, employment drug testing, etc.

None of these options will achieve the overturning of state laws. And their pettiness will turn individuals further against the federal government.

Or… the federal government could listen to the states, and to the people.

Just a thought.

It’s good to be reminded every now and then who some of the players are.

Last week’s ridiculous article in the Springfield, Illinois State-Journal Register: Guest Column: Marijuana not a safe or effective medicine by Peter Bensinger and Andrea Barthwell.

It’s full of the standard nonsense that has been trotted out time and time again to opposed medical marijuana. But let’s remember just who Barthwell and Bensinger are.

According to the article:

Peter Bensinger is former administrator of the U.S. Drug Enforcement Administration and former director of the Illinois Department of Corrections. Andrea Barthwell is former deputy director of the Office of National Drug Control Policy.

Of course, that leaves out a good portion of the story. Andrea Barthwell was a founder of Illinois Marijuana Lectures — a group that toured Illinois trying to sabotage medical marijuana efforts. I caught her lying about her sponsorships in that little enterprise and it was shut down. See Andrea Barthwell Caught Red-Handed.

Shortly after that, this crusader against medical marijuana went to work promoting… medical marijuana (Sativex). See Andrea Barthwell, Snake Oil Salesman.

Later, she created a group called The Coalition to End Needless Death on our Roadways, where she simply took annual traffic fatality figures from the NHTSA, made mathematically improper conclusions from that data, and distributed those conclusions in press releases, that were often printed uncritically by duped media sources, until I started contacting them and letting them know they were being duped. I also countered with my own site: End Needless Death with Truth, not Lies

Wherever you find Andrea Barthwell, it appears the truth is beating a hasty retreat.

So let’s take a quick look at Peter Bensinger. What possible reason would he have to be a prohibitionist? Here’s one:

Two of the loudest anti-marijuana spokespeople are two elder drug warriors, Peter Bensinger (DEA chief, 1976—1981) and Robert DuPont (White House drug chief, 1973—1977), who run a corporate drug-testing business.

“Their employee-assistance company, Bensinger, DuPont & Associates, the sixth largest in the nation, holds the pee stick for some 10 million employees around the US. Their clients have included the biggest players in industry and government: Kraft Foods, American Airlines, Johnson & Johnson, the Federal Aviation Administration and even the Justice Department itself,” writes Kevin Gray for The Fix.

Former DEA administrator Peter Bensinger – who owns a drug testing company – lobbies for a federal crackdown on legal marijuana
“‘These are not just old drug war architects pushing a drug war model they’ve pushed for 40 years,’ says Brian Vicente, a Denver lawyer and co-author of Colorado’s Proposition 64, which legalized marijuana for recreational use. ‘These guys are asking Eric Holder to pursue prohibition policies that line their own pockets.'”

In addition to his profiteering from drug testing, it’s probably worth noting that he’s spent significant time connected to the prison industry, as a Board Member of Federal Prison Industries and as Director of the Corrections Department for the State of Illinois.

Some good fun.

Not sure if the embed is working properly. Here’s a link to the video.

I found this mildly interesting. DEA director Michele Leonhart is testifying before Congress today on the DEA budget. I took a look at her prepared remarks, and was struck by the lack of any reference to what is going on in the United States regarding cannabis.

There were three references to marijuana in her speech: a reference to the various kinds of drugs seized in Mexico; a reference to non-medical prescription drug use being second only to marijuana; and a reference to synthetic cannabinoids.

Nothing about medical marijuana. Nothing about marijuana legalization efforts. Nothing about Colorado or Washington. Absolute silence.

Wonder how much of this is about the White House still not wanting to discuss legalization, and how much from the DEA recognizing that to discuss domestic marijuana today is akin to opening the discussion about the future relevance of the DEA.

…

If anyone watches the testimony, I’d be interested to hear how the questioning went.

The White House spends all year traveling around the country talking about their “third way” and their “21st Century Drug Policy” — that the focus needs to be on treatment and that we can’t arrest our way out of drug problems. That there’s too much focus on incarceration.

At the same time, they’re dealing with severe national budget pressures, so you’d think this would be the perfect excuse to actually significantly reduce spending on things like domestic drug law enforcement. Well, the budget for domestic drug law enforcement was 9.4 billion in 2012, and they’re asking for 9.5 billion in 2014.

There’s absolutely no good political reason to do this… except to fund profiteers who give campaign donations.

The only way they can even find a positive spin is by throwing even mmore money at treatment, further pushing up the entire drug war budget. And even then… As the Huffington Post reports:

The White House budget proposal for fiscal 2014 devotes 58 percent of drug-control spending to punishment and interdiction, compared with 42 percent to treatment and prevention.

So much for the “third way.”

I can’t imagine what it must be like to have the complete lack of integrity to work in the Drug Czar’s office… that would allow you to write a post like this one.

A couple of articles worth reading on the subject of Law Enforcement. One of the real important reasons for ending the drug war, in my opinion, has been to reclaim the positive relationship between police and their communities. The drug war in particular, along with militarization, has turned the police against those they are supposed to serve, and vice versa.

Why We Need To Stop Exaggerating The Threat To Cops by Radley Balko

When cops are told that every day on the job could be their last, that every morning they say goodbye to their families could be the last time they see their kids, that everyone they encounter is someone who could possibly kill them, it isn’t difficult to see how they might start to see the people they serve as an enemy. Again, in truth, the average cop has no more reason to see the people he interacts with day to day as a threat to his safety than does the average resident of St. Louis or Los Angeles or Nashville, where I live. […]

Of course, there are other factors that have contributed to the psychological isolation of police. One example is the move from foot patrols to squad cars or, more broadly, from proactive to reactive policing. When cops walk beats, they become a part of the communities they patrol. Residents see them out and about. They learn names, faces and places. When police patrol in cruisers, they’re walled off from neighborhoods. […]

So we have cops whose interactions with the public are negative the vast majority of the time, who are constantly told they’re fighting a war, and who are constantly reminded that their job is highly dangerous and getting more dangerous, and that they could be killed by anyone at any time. When they start to see the people they serve as the enemy, they begin to treat them that way. The people in the communities treated that way then respond in kind. Thus, we get the hostile, often volatile cop-community relationships we see in too much of the country today, in which citizens don’t trust cops enough to help them solve crimes, and cops feel so threatened and isolated that even well-meaning officers won’t report fellow officers who break the law.

Saving Law Enforcement Organizations From Themselves by Diane Wattles-Goldstein (LEAP Member). Diane writes about a loathsome statement made by a police union member in support of officers who conducted body searches merely based on the supposed smell of marijuana.

So the Drug War marches on with more victims, collateral damage to a futile attempt to control human nature. All the while, supposed criminal justice professionals like Roberts continue to influence a profession that I loved, changing our course from protecting those we have sworn to serve to victimizing them at unknown cost to our humanity. Professor Roberts, I would simply ask you that if this were your wife, your daughter or someone you loved, would you be so callous? I think not. So I offer a bit of advice that I used to tell my officers: Before you say or do something, ask yourself if your mother would be proud of your words or actions, and would you be happy to see it on the front page of the news? Clearly, with this remark, you failed both standards, and would have done well to remember that even if you are not a real police officer, as the head of their union you don’t just represent yourself, but also a profession that you have brought to a new low.

When Kevin Sabet tweeted a virtual thumbs up to an article, I thought I should go check it out: Not so fast! A case against legalizing marijuana by Daniel K. Duncan, director of community services for the National Council on Alcoholism and Drug Abuse–St. Louis Area.

Daniel endorses the S.A.M. position while demonstrating how absurd it is.

The National Council on Alcoholism and Drug Abuse-St. Louis Area does not endorse legalization. However we see the benefits in an intelligent decriminalization of using small quantities of the drug. […]

Marijuana may be less harmful than other drugs, but it is far from harmless.

The research clearly indicates that marijuana is not only addictive (approximately 1 out of 6 youths who smoke marijuana will develop a dependence) but that the dangers of marijuana are, in fact, far more pronounced in young people than in adults. Marijuana is unquestionably a gateway to other, more dangerous drug use and, unsurprisingly, recent studies show regular users of marijuana may suffer a significant and permanent drop in IQ. The other health risks attached to smoked marijuana (e.g. stroke, cancer, psychosis) are suggested by early research but still unknown. […]

While it may make sense to intelligently decriminalize the use of marijuana, a legitimate case for full legalization has yet to be made. Introducing another likely “legal” threat to public health — especially the health of our youth — is misguided, premature and ill-advised.

So, to recap, because marijuana has potential risks (that we’ve been unable to clearly demonstrate after decades of study), we should institute a policy where we don’t punish people for using it, but we are careful to leave the distribution of it in the hands of criminal networks with no regulatory oversight.

These ridiculous arguments always seem to come from “treatment experts.” How can you make the argument against regulation if your concern is for the well-being of your charges? How can we not believe that you’re in it to protect profits? Now Sabet claims that it’s not about profit – that treatment folks would make more money from cannabis being legal. That’s nonsense, but let’s assume they believe it. What does that make them then? Just stupid?

Or is it something about being around people all the time who can’t control their drug use? I remember growing up that my Dad (a minister) had almost no contact with anyone who drank alcohol, except when they came to him for counseling becuase they had lost their job, beaten their wife… His view was that all alcohol use must be pretty horrible, because that was all he saw. And he came close to, but avoided, the trap of feeling morally superior to them.

Do these treatment experts suffer from a sense of moral superiority? (Many of them are recovered addicts themselves, and you probably know reformed cigarette smokers, for example, that can be pretty judgemental about current smokers.) Maybe this is a case of knowing prison won’t do any good for their charges, but just not being able to stand the notion of anybody being able to enjoy the drug without some kind of potential justice hanging over their head.

I don’t know.

Maybe it is just profits.

Idaho Court of Appeals overturns marijuana DUI conviction

BOISE, Idaho (AP) — The Idaho Court of Appeals has overturned the conviction of a Boise man for driving under the influence of marijuana, a rare reversal for a kind of case legal experts say is typically settled by the science of blood testing.

In a decision issued late last week, the court reversed Geirrod Stark’s 2010 misdemeanor conviction on grounds that the blood tests taken after his arrest only proved he had used marijuana recently, not on the specific day he was pulled over by police.

While there is no question Stark was impaired that day, wrote Judge Pro Tem Jesse Walters, there was no proof that drugs — and not some other condition — caused the erratic driving.

What a notion. If you’re going to charge someone with driving under the influence of marijuana, they should actually be under the influence of marijuana. Such common sense logic is seldom found even in the general neighborhood of our justice system.

A lot of people have been talking about the new Pew Research Poll showing that a majority now supports legalizing marijuana (for the first time in this major poll).

I’m not at all surprised, and, to some extent, I was even more interested by some of the other questions in the survey.

As support for marijuana legalization has grown, there has been a decline in the percentage viewing it as a “gateway drug.” Currently, just 38% agree that “for most people the use of marijuana leads to the use of hard drugs.” In 1977, 60% said its use led to the use of hard drugs.

This has been one of the major arguments used (misused) by prohibitionists for decades. They used a vague definition of “gateway,” consistently conflated correlation with causation, and just plain lied. We knew, of course, but we had an uphill battle getting that understanding to the people. It seems that we’ve made real progress.

Also

More recently, there has been a major shift in attitudes on whether it is immoral to smoke marijuana. Currently, 32% say that smoking marijuana is morally wrong, an 18-point decline since 2006 (50%). Over this period, the percentage saying that smoking marijuana is not a moral issue has risen 15 points (from 35% then to 50% today).

This was a major issue keeping small-government social conservatives supporting criminalization. Take away the moral opposition, and conservatives have very little reason not to support legalization.

I was thinking about how the general public no longer blindly supports the tired old false arguments when I read the Drug Czar’s latest blog post: Director Kerlikowske Joins Secretary Napolitano on Southwest Border

As part of the visit, Director Kerlikowske released a progress update on Administration efforts to strengthen border security. Some of the highlights include:

Increased weapons and drugs seizures. During 2009-2012, the Department of Homeland Security (DHS) seized 39 percent more drugs, 71 percent more currency, and 189 percent more weapons along the Southwest border as compared to fiscal years (FY) 2005-2008.

And I was struck at just how… old that kind of argument feels today. So I tweeted to the Czar:

.@ONDCP @RafaelONDCP After decades of bragging on increased seizures, does anyone still buy that as “progress”? http://t.co/ZBV51fmMRN

and

.@ONDCP @RafaelONDCP If you trapped 10 mice in your home last year and 50 this year, would you call that progress? Increase in seizures?

I think the public is quite ready to be receptive to realizing just how stupid the argument is that increased seizures are a measure of drug war success, when they are in fact, the reverse.

It takes a lot of work to undo decades of propaganda, particularly among the public who aren’t at all focused on drug policy, but we’re making real progress.