Drug WarRant

Unfortunately, most drug policy discussions today revolve around imagined potential gains or problems resulting from legalization of certain drugs. And because of the politics involved, we often really have no choice but to play these ridiculous games. But, in fact, it’s very much the wrong question.

The actual question is criminalization. And the answer is “no.”

When you look at the issue properly, you see that what we need to discuss is correcting the massive wrongness of criminalization.

Those who support prohibition have never been required to actually put forth coherent and defendable justifications for criminalization. Instead, they get to claim criminalization as the status quo and merely object to minor details or uncertainties regarding “legalization.” They actually act as if prohibition is the default in our country, which is far from the truth.

And so we get caught up in completely bizarre and meaningless disputes. I was struck, for example, by the utter glee with which Mark Kleiman gloats over his group’s dismantling of the claim that marijuana is the number one cash crop in the U.S. Turns out, according to their calculations, that it’s merely in the top 15.

Other than from a purely academic perspective, who the hell cares? It’s presented as if that is somehow some kind of big blow to legalization, which makes very little sense, but fits within the “gotcha” approach to protecting the status quo, where unless the absolute furthest value of each and every argument mentioned by some legalization activist somewhere is 100% verifiable, then legalization must be flawed.

The better question is: What does the overall cash value of marijuana in the country have to do with the decision to put people in jail for using it?

And so, we’re mired down in arguments over how much tax revenue will come from future drug sales, what percentage of income the cartels get from a particular drug, or what kind of advertising will be allowed, rather than asking why the hell we’re putting people in jail for this.

So, let’s take a look at the right question.

Should drugs be criminalized?

It’s a five-part question.

Step 1: Does the government have the authority to criminalize drugs?

This is not as obvious as some may think, particularly if you look at history.

The Constitution of the United States specifically does not give police powers to the federal government. That kind of power was considered a state function. However, there is one clause in the constitution which gives the government the following “limited” power…

to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

This is generally known as the commerce clause. As intended, in the early years of this country’s history, the commerce clause allowed only minimal instrusion on the activities within states. For example, federal alcohol prohibition was not considered constitutionally possible without an amendment because of the commerce clause, and judges also regularly placed the tenth amendment in the path of congressional regulation of “local” affairs. [1]

So, even though the Supreme Court has, in modern day, given the federal government extraordinarily wide-reaching powers, there is historical precedent for denying it.

But there is also current Supreme Court jurisprudence that could argue against government prohibition, particularly when you think about cases like Lawrence v. Texas and Roe v. Wade.

If the government doesn’t have the authority to interfere with someone killing a fetus, or with someone sticking a penis into someone else’s anus in the privacy of their own bedroom, it’s not that hard to imagine that maybe the government shouldn’t be able to prevent one from eating a marijuana brownie. If pregnant women and homosexuals have autonomy over their own bodies, then why not drug users?

Is cognitive liberty not a protected right?

So, if you agree that the government has no authority to ban liberty, it’s simple. Criminalization of drug use is wrong.

However, if this doesn’t sway you, and you think that “life, liberty, and the pursuit of happiness” are just some pretty words used for poetic license, and not something real, then you may decide that the government is fully in the right in their authority to ban drugs, and you can continue to step 2.

Step 2: Are drugs dangerous?

It would seem that you’d need to determine that a particular drug is dangerous if you’re going to ban it, unless you’re just doing it because Mexicans or Negro jazz musicians or dirty hippies use it, or because you can make a buck off of criminalization.

And if you’re going to ban something for being dangerous, you should know something about the dangers — unlike our drug system which clearly has no rhyme or reason or qualified analysis of the comparative dangers (both to individuals and to society) of various drugs.

Of course, our legislators can’t be bothered by such basic matters of common sense. They’d gladly pass criminal penalties for the possession of dihydrogen monoxide, if they thought they could get credit for sponsoring the bill.

So let’s say that you think government should be given the authority to criminally prohibit drug use and that a particular drug is dangerous. That leads to step 3.

Step 3: Will criminalization significantly reduce the danger?

This is the most important question that is never asked.

Again, unfortunately, there is a tendency to legislate based on the assumption that outright prohibition will solve perceived dangers, while that is often (perhaps usually) not the case.

We have, tragically, decades of proof that criminalization will not only not reduce any dangers of drug use, but, in fact, will make drug use significantly more dangerous. Uncertain dosage and purity, lack of practical education, and so much more.

However, if you’ve given up on liberty, are convinced that drugs are dangerous, and actually think that prohibition reduces the danger, despite basic common sense and years of evidence, then you’re ready to proceed to step 4.

Step 4: Is criminalization the best way to reduce the danger?

Another important calculation that is too often ignored.

We don’t eliminate speech because some speech is dangerous when used in a particular way. There are thousands of human activities which can be dangerous when abused, yet we don’t criminalize all who participate. We deal with these things through education, through regulation, through helping those people who can’t handle the activity.

The worst possible option would be to criminalize (with jail time, even) millions of people who are not causing any harm, because of a tiny minority who abuse drugs. It would be a complete failure of imagination and intelligence to be unable to craft legislation that targets the problem user without dragging everyone else in with it.

However, if you’re anti-freedom, think drugs are dangerous, lack the common sense to realize that criminalization won’t make them less dangerous, and don’t care about criminalizing millions of innocents because of your pathetic inability to craft targeted policy, then yes, you’re ready to move on to step 5.

Step 5: Are the advantages of criminalization worth the destructive elements of prohibition?

Let’s assume that you’ve gotten this far, and actually believe there to be dangers of drugs that can be solved appropriately by criminalization. You then must weigh that slight good with all the destructive negatives of prohibition. Such as:

• Corruption of Law Enforcement
• Putting Drug Safety and Control in the hands of Criminals
• Over-incarceration and the influence of the Prison-Industrial Complex
• Enormous Black Market Criminal Profits
• Drug War Violence
• Damage to the Environment
• Destruction of Families
• Damage to Inner Cities and Poor Communities
• Militarization of Law Enforcement and the Victims of Drug War Tactics
• Racism and Civil Rights
• Erosion of Civil Liberties
• Foreign Policy Disasters
• Financial Cost
• Loss of the Truth

… and the list goes on.

That’s the five-part question that really needs to be answered. And it takes quite a bit of self-delusion to get through that exercise and still support criminalization.

No, legalization really isnt the question. But it sure is the answer.

An interesting online poll at The Economist. The poll is Should drugs like cocaine and heroin be legalised? You vote on a seven-point scale from definitely not to definitely, and you vote by country. You can see a color-coded world map of voting results and check the results of voting within specific countries.

Of course, as an online poll, it’s not at all scientific, but it’s still interesting. Go over and add your vote.

A truly bizarre article.

U.S. News and World Report, covering a report from Borderland Beat (translation from Proceso Magazine):

“Bin Laden-like SEAL Team Raid Could Take Down Mexican Drug Kingpin”

The Pentagon may send Navy SEALs into Mexico to take out drug kingpin Joaquin “El Chapo” Guzman in a raid mirroring the one that took out Osama bin Laden, Proceso magazine reports. […]

Calderon approved of the idea, but because the Mexican Army and Navy balked, Washington will wait to propose the idea to Mexico’s next president, Enrique Peña Nieto, according to Proceso’s interviews with anonymous Mexican and American military sources.

According to the sources, the proposed raid would be performed by two small teams of specially-trained SEALs, armed helicopters, and three missile-equipped drones. One SEAL team would be dropped on the ground and the other remaining in the air, with the drones providing backup support and surveillance. No Mexican military or police would assist in the raid.

Of course, if such a raid were successful, about all that would do is create a vacuum that would be filled by violence.

And a full-out U.S. military raid in Mexico? Right.

Some may point to the stupidity of letting the SEAL team plans get published in major magazines in both Spanish and English, but with the money that drug trafficking organizations have to play with, you can bet they get this kind of information long before any reporters.

Well, we know he’s required by law to lie, but he does it so… enthusiastically.

Mike Riggs has a good piece at Reason: Obama’s Drug Czar Is Lying to You About Drug Courts

He points out a couple of areas where Kerlikowske is either lying, uninformed, or both.

Interestingly, the article also points out one of the real problems with drug courts. Research has shown that drug courts can be effective in terms of cost savings over incarceration if they’re used for high-risk populations. But in practical terms, drug courts cherry-pick those who are put into the program, often selecting participants who have no drug problem to begin with.

This chart shows the breakdown of primary drug in drug court recipients in urban, suburban, and rural areas.

Marijuana is way too large a percentage — but it makes sense since marijuana, as an illicitly-used drug, is a major cash cow for drug courts, for treatment centers, for drug testing companies, and so many more.

From a rent seeking point of view, this practice–called “cherry picking” by the National Association of Criminal Defense Lawyers–makes perfect sense: Federal drug court funding is contingent on keeping participants clean of alcohol and drugs for at least 12 months, and having a lower recidivism rate for drug court graduates. If you’re a first-time drug offender and you’re not addicted, you’re more likely than a hardcore addict to stay clean for the duration of drug court, and less likely to reoffend (or get caught reoffending) once you’ve graduated. That means you help drug courts keep their numbers up, which helps keep them flush with grants.

I also really appreciated Mike Riggs’ advice for journalists:

Here’s a pro tip for journalists covering the drug war, or any other policy issue: Do your homework and then ask real questions. Whether the drug court model is spreading, as The Root interviewer above asks, is not nearly as important as whether it works as advertised. And that’s why journalists need to do homework; because Kerlikowske says they work as advertised, and independent research says they don’t.

Totally unrelated to drug policy… While you occasionally see a spam comment that gets through the filter, the vast majority of them are filtered by Akismet, which keeps statistics of the filtering it does on this site.

Sometime in late March, there was a remarkable drop-off in spam comments, and I’m curious as to whether anyone knows why this is (prior to that point, the numbers had been growing each month as more spammers became aware of the site).

Past year numbers

• 2011-08: 69,478
• 2011-09: 80,320
• 2011-10: 88,481
• 2011-11: 194,586
• 2011-12: 149,190
• 2012-01: 123,528
• 2012-02: 114,190
• 2012-03: 99,521
• 2012-04: 1,953
• 2012-05: 3,954
• 2012-06: 3,899
• 2012-07: 4,865

Sheriff warns of marijuana ballot question after $15M drug bust

PUEBLO COUNTY, COLO. — Pueblo County Sheriff Kirk Taylor is warning marijuana legalization activists of the potential dangers of legalizing the drug after deputies uncovered a $15 million marijuana operation that included more than 7,000 plants.

Taylor’s team, which first discovered the marijuana grow in the San Isabel National Forest off Highway 165 in Rye back in January, collected evidence leading them to believe it is a Mexican drug cartel operation.

“If you don’t think they’re here, they are and if we pass Amendment 64, there’s going to be a lot more of them,” Taylor said in a statement released by his office Thursday following the first two arrests linked to the operation.

I suppose he also found Mexican cartels brewing Coors.

Nice to see the Caravan for Peace with Justice and Dignity getting some early press. Hopefully that will grow even more (as will the crowds).

At first, when looking at their itinerary, I was about to take bets on how often they’d get pulled over and searched, but they may have enough of an entourage and public presence to get the police to stay off them.

Prosecutor Defeated by Glaring Stupidity of Pot Laws

During voir dire, my almost all white, middle-class, middle-aged jury went into full rebellion against the prosecutor stating that they wouldn’t convict even if the client’s guilt was proven beyond a reasonable doubt — almost all of them! They felt marijuana should be legalized, what he does with it is his own business and that the jails are already full of people for this silly charge. Then, when the potential jurors found out that the State wanted him to pay taxes on illegal drugs, they went nuts. One woman from the back said how stupid this was and why are we even here wasting our time. A “suit” from the front said this was the most ridiculous thing he’d ever heard. The prosecutor ended up dismissing the case. Judge gave me a dismissal with prejudice.

As many of you know, I hosted an FDL Book Salon this weekend with the authors of “Marijuana Legalization: What Everyone Needs to Know.” I’ve been very clear all along about the fact that the actual facts about marijuana are, as a whole, extremely well presented in the book, but I have serious issues with the emphasis on uncertainty upon which the authors focus. I understand that their stated purpose is get “both sides” to realize that there are a lot of unknowns, and I realize that there are unknowns because of the lack of full legalization examples in the modern world.

But there’s more to it.

One of the questions I asked during the salon:

This book focuses extensively on the fact that we cannot know for certain what will happen with legalization. And yet, all public policy (and, in fact, all of human endeavor) involves uncertainty. Every day we act without knowing all the consequences with certainty.

Henry N. Pollack, author of “Uncertain Science… Uncertain World,” said: “Frequently, ‘scientific uncertainty’ is offered as an excuse to avoid making important policy decisions. We must recognize, however, that delaying decisions because of uncertainty is an implicit endorsement of the status quo and often a thinly veiled excuse for maintaining it. It is a bulwark of the take-no-action policy popularly known as ‘business as usual.’”

Couldn’t the book be considered a ringing endorsement for inaction?

The response from two of the authors was that they were not trying to endorse inaction. However, it doesn’t matter–as academics in drug policy, their emphasis on uncertainty itself acts as an endorsement for inaction, whether they intend it or not.

Now, to many of us on the reform side, any uncertainties about what will happen with legalization are generally irrelevant to the decision. If you believe in the liberty argument, then it doesn’t matter what happens with legalization; legalization is the only option. Then, if there are problems, figure out how to handle them without using the unproductive and corrupt sledge hammer of prohibition.

Just like with freedom of speech, where the courts have ruled that the internet, for example, cannot be forced to dumb down to 12-year-old levels merely because some communications may be offensive to 12-year-olds, the liberty argument says that we don’t “dumb down” life merely because some people are unable to use drugs responsibly. (And the liberty argument isn’t solely a libertarian argument, since it doesn’t necessarily preclude a variation with government intervention specifically for those who abuse.)

For other people, however, who may not accept Mill or similar views, but rather believe in the value of nanny-state approaches to societal well-being, the issue of uncertainty regarding the potential outcomes of legalization can have a powerful impact on their views.

So… just how certain are these uncertainties?

Let’s take a look at one tiny example. In an otherwise mostly good section about marijuana smoking and lung cancer, the authors managed to squeeze in a fair amount of uncertainty:

Marijuana smoke contains carcinogens. What is not known is whether exposure is great enough to cause cancer. […]

What is lacking is clear epidemiological evidence from population studies showing that groups who smoked marijuana had higher rates of cancer than otherwise similar groups that abstained. [very curious wording] The published research shows mixed results. […]

In part, the answer to the cancer question depends on the level of proof one demands. [Another bizarre statement. Wouldn’t that also be true about the whether-the-earth-goes-around-the-sun-or-vice-versa question?]

When it came to the data they used to demonstrate the uncertainties, red flags went up immediately in my head.

I asked this question during the book salon:

For our authors: there are literally thousands of studies on marijuana that have been done all over the world. How do you find and select your data for the book? Obviously, you can’t include it all.

I’m curious as to why, for example, when discussing marijuana and cancer (and you listed several studies), you chose to include the extremely small (79 cancer cases, and 324 controls) New Zealand study that is often touted by our government, yet didn’t reference the 2006 NIDA-funded UCLA study by Donald Tashkin (1,200 cancer cases, 1,400 controls) showing no evidence of a lung cancer connection, even among heavy smokers. http://www.washingtonpost.com/wp-dyn/content/article/2006/05/25/AR2006052501729.html

There were no responses.

It’s a valid and important question when it comes to evaluating the certainty of their uncertainty. After all, why wouldn’t the Tashkin study be included (and why weren’t the controversial limitations of the New Zealand study mentioned)? If the authors hadn’t heard of the Tashkin study, that makes their research suspect; if the authors had heard of the study and chose to use the New Zealand study instead because it served the uncertainty argument better, that makes their entire uncertainty argument throughout the book suspect.

[Update: Beau Kilmer, one of the authors, has since emailed me to say that it was merely a matter of having already listed a couple of earlier studies that were positive and not feeling the need to add another one in the interest of space. I understand that, but still question the thought process behind the inclusion of the New Zealand study.]

It’s easy to say that outcomes are uncertain. If I leave the house today, I might get hit by a bus, or get mugged, or step on a crack and break my mother’s back. Uncertainties without context are useless. Proper analytic approach puts uncertainties in perspective so that they doesn’t make me stay home.

Yet the uncertainties in the book often have no reasonable evaluation of the certainty of their uncertainty, which makes them worthless.

One of the critical areas in the book has to do with marijuana legalization and alcohol abuse.

The authors have often referred to this section. In the intro:

for example, no one knows whether increased marijuana use would lead to less heavy drinking, or to more.

Let’s look at the actual section. Starts out OK…

It might seem intuitive that making marijuana more available would tend to decrease alcohol use; [yes, it would] as competing means of altering one’s mood, one drug can substitute for the other. No doubt if cannabis were legal some of today’s alcoholics would be daily pot-smokers instead; that would, on average, make them and those around them better off.

But then they go off the rails with one of the worst metaphors ever written…

But two drugs can also be mutually complementary. When two commodities are economic complements–like cell phones and cell phone apps–making either one cheaper or more available increases demand for the other.

Marijuana : Alcohol :: Cell Phones : Cell Phone Apps

At that point, they start really speculating (!)

On the other hand, if the effect went the other way–if doubling marijuana use were to increase alcohol abuse and dependence by 10 percent–it’s hard to see how any of the gains on the marijuana side could balance out the harms from increased heavy drinking. And yet, based on what is now known, it’s not possible to rule out even bigger changes, in either direction.

The list of things that it’s also not possible to rule out is literally infinite. And meaningless.

For their “data,” the authors note:

Economists have tried to estimate what they call the “cross-price elasticities of demand” between marijuana and alcohol […] Alas, different studies reach opposing conclusions. […] there is truly no scientific basis for any confident assertion about what would happen to heavy drinking if marijuana were legalized.

However, they don’t list or reference any particular studies, so there’s no way to ascertain any grounds to support their uncertainty (which already seems pretty ridiculous in their own words).

The little bit of research I did immediately found some pretty good references regarding marijuana being a substitute for alcohol. Finding studies showing marijuana and alcohol as complementary was much tougher and the results were not even remotely compelling; most seem to be fishing expeditions conducted by RAND’s Rosalie Pacula (who has a history of anti-pot posturing).

What should probably be a point strongly in favor of legalization (assuming a proper analysis of the comparative studies) ends up being another point of uncertainty, arguing for inaction.

Make no mistake, there’s a place for uncertainty. But uncertainty for the sake of uncertainty is useless. And false uncertainty contributes to the destruction of the drug war.

Biden tells African-American audience GOP ticket would put them “back in chains”

(CBS News) DANVILLE, Va. — Vice President Joe Biden on Tuesday told a diverse crowd here, including many African-Americans, that presumptive Republican nominee Mitt Romney would “put you all back in chains” by unshackling Wall Street.

Unfortunately, many of the Vice President’s intended audience were unable to attend because they were serving mandatory minimum sentences crafted by Joe Biden.