Drug WarRant

Imagine a news story that went in detail about levels of radioactivity suddenly showing up in produce in certain areas of Japan, and also affecting the waters. The story mentions a number of Japanese people hospitalized with severe radiation poisoning. Add a paragraph about radioactive fallout being detected in California.

Now, imagine that this story neglects to even mention the Fukushima reactors or the earthquake and tsunami.

Such a story would be absurd, and would immediately make an editor rush to correct it.

And yet, on Page A-1 of the San Francisco Chronicle you have Pot wars: Private land new frontier in California written by Robert Townsend of California Watch – an investigative reporting organization that claims to provide “bold, new journalism.”

It’s a detailed story about how marijuana grows are showing up on private land in California, complete with booby traps, environmental damage, and retribution when owners try to eradicate.

Good investigation, but not once in the story do they mention the equivalent of the Fukushima reactors (the illegal status of marijuana) or the earthquake and tsunami (supply-side prohibition efforts).

The commenters caught it immediately. Why can’t Robert Townsend, the bold investigative reporting of California Watch, or the San Francisco Chronicle see the nuclear reactor in the room?

In a depressing opinion this week, the Illinois Supreme Court ruled that someone with absolutely no drugs in their blood and the almost completely undetectable trace (that took three tests to discover) of drugs in the urine, and in which case everyone (including the court) agreed that the defendant was not under the influence of the drugs at the time, nevertheless was properly sentenced to six years for the aggravated offense of of driving under the influence in an accident where people died.

The case is The PEOPLE of the State of Illinois, Appellant, v. Aaron L. MARTIN, Appellee

Here’s the part that really gets to me.

One part of the law states:

Section 11–501 provides:

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while:

(1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11–501.2 [625 ILCS 5/11–501.2];

(2) under the influence of alcohol;

(3) under the influence of any intoxicating compound or combination of intoxicating compounds to a degree that renders the person incapable of driving safely;

(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;

(5) under the combined influence of alcohol, other drug or drugs, or intoxicating compound or compounds to a degree that renders the person incapable of safely driving; or

(6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act [720 ILCS 550/1 et seq.], a controlled substance listed in the Illinois Controlled Substances Act [720 ILCS 570/100 et seq.], an intoxicating compound listed in the Use of Intoxicating Compounds Act [720 ILCS 690/0.01 et seq.], or methamphetamine as listed in the Methamphetamine Control and Community Protection Act [720 ILCS 646/1 et seq.].

So item six is the key here. That “any amount” in “breath, blood, or urine” clause is ridiculous. But note that this is just a law saying that people shall not drive under these situations. The penalty is a misdemeanor.

Then later, the law specifies aggravated driving under the influence as follows:

(d) Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof.

(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if: …

(F) the person, in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was a proximate cause of the death.” 625 ILCS 5/11–501 (West 2008).

The plain reading of this clause clearly means that the felony enhancement only occurs if the infraction in (a) above was a proximate cause.

So what is “proximate cause”? From West’s Encyclopedia of American Law:

An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.

Proximate cause is the primary cause of an injury. It is not necessarily the closest cause in time or space nor the first event that sets in motion a sequence of events leading to an injury. Proximate cause produces particular, foreseeable consequences without the intervention of any independent or unforeseeable cause. It is also known as legal cause.

To help determine the proximate cause of an injury in Negligence or other tort cases, courts have devised the “but for” or “sine qua non” rule, which considers whether the injury would not have occurred but for the defendant’s negligent act. A finding that an injury would not have occurred but for a defendant’s act establishes that the particular act or omission is the proximate cause of the harm, but it does not necessarily establish liability since a variety of other factors can come into play in tort actions.

Some jurisdictions apply the “substantial factor” formula to determine proximate cause. This rule considers whether the defendant’s conduct was a substantial factor in producing the harm. If the act was a substantial factor in bringing about the damage, then the defendant will be held liable unless she can raise a sufficient defense to rebut the claims.

Is there any way in that definition that the presence of an almost undetectable amount of drugs in the urine and none in the blood could possibly be interpreted as “proximate cause”? No.

However, the Illinois Supreme Court manages to find a way. After their analysis of the law in the opinion they continue for some time in an extremely convoluted way to argue that it is proximate cause, not because it is “proximate cause” under the definition of “proximate cause,” but because the Illinois State Legislature has placed it in that position, and therefore by the legislature’s definition it must be proximate cause even though it isn’t.

This destruction of the English language by courts and the legislature is particularly offensive to me (and, I assume, other people who love what “the law” and language should be). It’s like the federal government defining by legislation that marijuana has no medical use, regardless of whether it actually has medical use. It doesn’t have medical use because they have defined it as not having medical use.

It’s like defining someone as 3/5 of a person. It’s offensive to law, reason, and the language.

At one point in the Illinois Supreme Court’s decision, they defended their decision to play these definition games with the idea that we have to throw everyone in the same pot (regardless of the level of impairment or whether there was any impairment at all), because otherwise it would make the prosecutor’s job too hard.

Which, of course, brings up another point not directly related to the decision: What asshole of a prosecutor pushes for aggravated penalties based on this evidence?

This is why “per se” drugged driving laws must be fought and repealed. I don’t know why the defendant crashed into the other car. Maybe he fell asleep. These kind of crashes are tragic (although declining due to advanced highway safety measures such as rumble strips, median fences, etc.), and someone responsible for such a crash should be held accountable. But if you have two individuals who committed the same tragic act, and one of them is sentenced to a number of additional years in prison for something that had absolutely no connection to the event, then it is a direct attack on the rule of law and adds to the destruction of our judicial system.

Ironically, the court notes that they’re following an earlier case (People v. Fate) where they stated: “There is no dispute that the statute is intended to keep drug-impaired drivers off of the road.” And yet, by making no distinction between drug-impaired drivers and those who have a miniscule trace in their urine, they do the opposite.

The court has just established that if you’re going to do illicit drugs at all, then there’s absolutely no legal incentive to avoid using drugs right before driving.

There’s a lot we don’t know about drugs and impairment. We can always use more research (particularly research that is actually interested in determining impairment and not justifying a back-door way to criminalize internal possession), and we need to educate lawmakers better on the actual research that does exist.

And we need to get rid of these completely nonsensical per se laws.

Better yet, let’s legalize drugs and make the laws irrelevant.

Earlier this week, I saw this OpEd at Brown University by Sofia Ortiz Hinojosa: 4/20 and the drug war

It’s another one of those pleas for people to stop smoking marijuana because it’s killing people in Mexico, done with sickening emotional appeal.

With 4/20 coming up, I am concerned that many students fail to see the connection between the purchase and consumption of illegal drugs on college campuses and the violence and chaos in many parts of the world. […]

But the price we pay is much steeper. Swallow this figure if you can — in Mexico, over 10,000 people died in drug-war-related incidents between January 2007 and June 2009. By the end of 2010, this number had risen to over 30,000 casualties. Let me say that again — over 30,000 people have died in drug-related violence since I first stepped onto campus as a first-year in 2007. This semester alone, another 5,000 have been added to the death toll, making this figure a heart-wrenching 35,000. Every time I go home, I have to hear another story about a mass grave or a bus hijacking. I cannot help but connect it to what I see happening daily on my own beloved college campus, and it breaks my heart.

I’ve responded to this kind of nonsense before, so I didn’t bother with it, but now I see someone else at Brown has stepped up to the plate.

Hunter Fast writes In the drug war, keep your eyes on the real killer

It is readily apparent that Ortiz-Hinojosa does not understand that governments that ban drugs hand a monopoly on their sale to people who are already willing to break the law. In addition, prohibition takes away the courts as a means for drug vendors to settle disputes peacefully. In lieu of a legal framework in which to operate, they terrorize the Mexican citizenry in their needlessly bloody quest for market dominance.

Furthermore, it is naive to assume that one can compel all drug users in the U.S. to quit simply through emotional appeal.

Hunter doesn’t stop with just shooting down Ortiz-Hinojosa’s bad arguments, but goes a step further.

Ortiz-Hinojosa is therefore effectively arguing that all Americans should obey bad laws — ones that infringe on fundamental rights to privacy, free enterprise and self-determination — so that the violence and the deaths ultimately arising from those laws just might end. Let me be unequivocal myself — our freedoms are too important to be held hostage this way.

In a free society like ours, individuals should have the liberty to use whatever substances they see fit in their own homes, pursuant of their rights to privacy and property. After all, in 2003, the Supreme Court established in the case Lawrence v. Texas that the government has no right to ban private sexual conduct between consenting adults. Given that sex and drug use both have associated risks, why should drug use be treated differently?

While Ortiz-Hinojosa feels entitled to a sense of outrage at the sight of someone publicly using marijuana, it instills in me a gratitude to live in a place where someone can commit an act of public civil disobedience against the unjust prohibition of drugs without facing legal repercussions. If more people expressed disdain for the modern prohibition — either in the public discourse or through civil disobedience — the result would not be the bloodbath that Ortiz-Hinojosa describes, but a greater impetus for the end of the drug war…

Nice.

Massachusetts High Court Limits Police Searches in Small Marijuana Cases

Reason and justice prevailed this week in Massachusetts, where the Commonwealth’s highest court ruled by a 5-1 margin in Commonwealth v. Cruz that police can no longer search or seize someone they suspect of possessing a small amount of marijuana. The basis for this ACLU victory was the Massachusetts ballot measure known as Question 2, which made possession of an ounce or less of marijuana a civil infraction instead of a crime. Massachusetts voters overwhelmingly approved Question 2 with 65 percent of the vote in November 2008. […]

First, and most obviously, it’s an important step forward for marijuana decriminalization. The justices took seriously the notion that when Massachusetts voters said they didn’t want police harassing marijuana users or using limited law enforcement resources to combat minor drug use, they meant it. In the words of the court:

By mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes. . .The statute does away with traditional criminal consequences, including the long-term and embarrassing effect that a criminal record has on employment or applying for school loans, demonstrating the intent of the voters to change the societal impact of possessing one ounce or less of marijuana.

The court understood that Question 2 wasn’t just about lowering the penalty for personal-use possession to $100; it was about changing the Commonwealth’s whole attitude about marijuana. Criminalizing marijuana makes criminals out of ordinary people and wastes police resources to do so. The people of Massachusetts have had enough of this. Even if police haven’t gotten the message yet, the court did.

I’m sure someone will claim that this is an example of an “activist court.” Yet I’ve never understood the use of that term when the court stood up for the rights of citizens. Isn’t that what the court’s supposed to do? Act as a check on the executive and judicial branches to make sure they don’t take more power unto themselves than the people or the Constitution have given them?

This is a great decision. It provides a check on law enforcement run amuck.

Gary Johnson officially announced his bid for the Presidency today. Regardless of how that campaign goes, my hope is that it will spark additional debate regarding the drug war. Of all the candidates, his is the candidacy that is most likely to do so.

Welcome new readers from Illinois State University where I talked briefly at Hempfest yesterday. It was a good group that showed up despite inclement weather and bravely stood up to my challenge to take and wear a button saying “Legalize Drugs: Ask Me Why” (based on the successful LEAP campaign).

Thanks to Shaleen for sending me this data from a recent CNN poll.

Do you favor or oppose the legalization of marijuana?

	White	Non-White
Favor	43%	36%
Oppose	54%	62%

Incredible? Perhaps.

And yet, not really.

For us, it’s hard to imagine that minorities would support the drug war. After all, we know that it’s the single most racist public policy since slavery. We’ve seen the figures of use versus arrest versus incarceration. We seen the numbers that South Africa under Apartheid incarcerated 851 black males per 100,000 population while we incarcerate 4,919 black males per 100,000 population.

We’ve seen how Hispanics are targeted by law enforcement in the drug war, including the incredible statistic in the Chicago area that 73% of Hispanics whose cars were searched because a dog sniff “detected” drugs actually had no drugs (the result of the dog’s handler believing they had to be there).

With all of this, there can be a natural tendency for people in drug policy reform to throw up their hands in exasperation at the lack of interest in drug policy reform in many minority communities.

However, we know these things because we study them. The average person does not (at least not until we do a better job of telling them). The average person knows what the government has told them, or what their church has told them, or what has been passed down as “common knowledge.”

One of the few “successes” (and I’m speaking ironically here) of the drug war has been to convince people that the negative effects of prohibition are actually the negative effects of drugs.

People see violence on the street and say “that’s because of drugs” when, in fact, it’s because of the drug war. And so they call for more enforcement even though (as we know) that won’t help the problem but rather make it worse.

And, quite frankly, this issue is much more visible out on the streets in poor/minority neighborhoods than in affluent neighborhoods where the drug trafficking takes place discretely in the country club locker room.

I know. I live in one of those poor/minority neighborhoods. I talked to a neighbor once who told me “I think the next door neighbors are selling pot. I hope the police come and bust them and take away their kids.” I was flabbergasted. But she saw the problem in the community as drugs, rather than as the by-product of the drug war.

This, in my mind, is what drives the fact that minorities lag behind in understanding the need for drug policy reform.

The fact is that we still have not done a good enough job of educating the public regarding the damage done by the drug war. Because of that, we often end up with the strangely incongruous image of a mostly white population of drug policy reformers carrying the banner for ending the most racist policy since slavery.

Apparently the drug-free notion won’t die. Here’s another article: County students commit to drug-free lives

Again, the notion is absurd. What they really mean is that County students are committing to not using certain drugs that have been demonized. I doubt seriously that these students are giving up caffeine.

Now I have no problem with someone making a choice to never use alcohol or marijuana or cocaine. That’s entirely their decision. Just as I have no problem with someone choosing to never have sex, to never ride in a motorized conveyance, to never eat meat, to never eat vegetables, to never wear polyester, etc.

If they want to make these personal decisions, then that’s their right, as long as they don’t expect me or require me to also live up to their limitations.

In reading the quotes from these students, maybe it’s just me (or the fact that I watched 1984 last night), but the statements actually seemed a bit… creepy.

“I chose to live my life drug free so I can live my life my way, not the way chosen by drugs or alcohol.”

“To me, being drug free means never denying myself self-control.”

“Since eighth grade, I’ve had a plan for my life and never have these plans included any drugs, alcohol, or anything of the sort.”

“I chose to live a drug-free life because I want to become a lawyer someday, and drugs can inhibit me from achieving that goal.”

“I hope that with me living a nonviolent, drug-free life I can encourage others to do so also.”

“I don’t want any distractions from any outside source to distract me from achieving my goals.”

“At the Career Center I study heating, ventilation and air conditioning. … If you use drugs in this field … you could endanger yourself and others.”

“Why would I choose to live a drug … lifestyle, a lifestyle that’s full of deception, manipulation, a dependency on a drug and causing pain to the ones you love?”

“For me these organizations have helped me to live above the influence and have a greater influence on the younger generations.”

If you’re in the area of Illinois State University today, stop by the quad (or Bowling and billiards center if weather is bad) from 4-6 pm for 420 Solidarity: Hempfest sponsored by Young Americans for Liberty and SSDP.

I’ll be speaking around 4:30 pm, just after judging a cigarette rolling contest.

This is an open 420 thread.

Over at Westword.com there are some good articles regarding current efforts in Colorado to set a THC driving limit at five nanograms per milliliter of blood — a level that, while better than the per-se laws in states like Illinois (where any detection of THC qualifies as impairment), is still far too low for many people, particularly regular medical marijuana users.

THC driving limits could cause more innocent people to spend months in jail, attorney says explores the problems of testing, the long delays in tests, and the fact that too few people in the criminal justice system have been trained to understand them.

The document above also illustrates another issue that would be amplified by the passage of a THC driving limits bill, in Bresee’s opinion. The results listed under the test name “Blood Cannabinoid Confirmation” read, “Delta-9-THC-COOH 30 ng/ml,” which suggest that the driver in question had a THC level six times higher than the proposed intoxication limit. But that’s not true, since the THC-COOH reading measures “the amount of THC that is stored in fatty tissue cells, but that isn’t active,” Bresee says.

​Department of heath tests later showed that the amount of active THC in the driver’s system (usually listed on forms as “Delta-9-THC,” sans the COOH) was six nanograms. And a private test that Bresee says is more accurate than ones the state runs — its methodology utilizes liquid, not gas, as does the CDPHE’s lab — registered the amount at just 1.5 nanograms.

Confused? So are many prosecutors, Bresee believes. […]

In one case set in a small eastern Colorado county, Bresee says it took him more than nine months to make a prosecutor understand the relevance of active versus inactive THC.

THC blood test: Pot critic William Breathes nearly 3 times over proposed limit when sober – in this article, a medical marijuana patient has his blood tested after a night of sleep and not smoking marijuana for 15 hours.

Even when deemed sober by a doctor, my active THC levels were almost triple the proposed standard of 5 nanograms per milliliter of blood.[…]

The lab ran a serum/plasma test which showed my THC count to be at 27. According to Dr. Alan Shackelford, who ordered the blood work and evaluated my results, the number of active THC nanograms per milliliter count is about half of that total, or 13.5 nanograms of THC per milliliter of blood.

In short: If this bill passes and I was pulled over by police, I would be over the limit by 8.5 nanograms. By that logic, I would be more likely to have mowed down a family in my car on my way to the doctor’s office that day than actually arriving there safely. But I didn’t — because I wasn’t impaired.

Don’t take my word for it. According to Shackelford, who evaluated me before writing the order to have my blood drawn last Wednesday, I was “in no way incapacitated.” According to him, my test results show that it would not be uncommon to see such a high level in other people who use cannabis regularly — like medical marijuana patients. “Your level was about 13.5 for whole blood… which would have made you incapacitated on a lab value,” he said. “They need to vote this sucker down based on that alone.”

I’m all in favor of getting drivers off the road when they’re impaired, but a test that doesn’t actually determine impairment and will sweep up non-impaired drivers into the net is not at all helpful.

It seems to me that the best option may be a combination of videotaped field roadside sobriety tests plus blood testing, along with good judgement. The notion that at at x nanograms you’re OK, but x+1 nanograms and you’re impaired (particularly when that result can mean years of prison) is absurd.

Now if you have a videotaped sobriety test and the driver is staggering around with slurred speech and eye-hand coordination problems and the test comes in with significant THC presence, then I think a judge or jury can readily determine impairment. If, on the other hand, the person seems able to perform all requested sobriety tasks competently despite having a high THC blood level, and perhaps is able to show through subsequent testing that her regular use (as a patient or not) brings her levels up higher, then a judge or jury can rightly say that she was not impaired.

These are human beings, not machines.

Since the cause of most crashes is fatigue, I wonder why the legislature isn’t setting a legal limit on the levels of adenosine in the body.

So you’ve held the Drug Czar job for a couple of years, now. Is lying to the public non-stop about destructive drug policies everything you’d hoped for?

Chicago

President Barack Obama‘s drug czar is among the contenders to become the first Chicago police superintendent in Mayor-elect Rahm Emanuel‘s administration, the Chicago News Cooperative has learned.

Gil Kerlikowske, whose formal title is director of the White House Office of National Drug Control Policy, met last week with Emanuel in Chicago and was in town again over the weekend for an interview with the police board, sources told the CNC.

Looking to jump ship? Wash your hands of Mexico?

Hmmm… not surprised. It seems to me that Kerlikowske is merely an unprincipled liar, not a true believer like Walters was.