Drug WarRant

Happy Constitution Day!
It’s the 221st Anniversary of the signing of the U.S. Constitution — a document that gives specific limited delineated powers to the government, while retaining the rest for the people.
In 221 years, of course, much has changed. Most people think that English, the language we speak now, is the language that they used back then. If that were so, just about anybody could read the Constitution as it was originally written. Wouldn’t that be something!
But today, we depend on a body called the Supreme Court that painstakingly translates the old text into language for today.
For example, when you read the Constitution in its original language, it says that the federal government has the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Now you might think that it means that the federal government has the authority to regulate commerce with foreign nations, and among the several states, and with the indian tribes…
But in fact that phrase, when translated, specifically means that the federal government is given the full authority to arrest people who grow a plant in their back yard for their own use, even if they have received permission from their state government to grow and use the plant.
Isn’t it good that we have the Supreme Court Translation Device so we can know what the Constitution says?
It gets particularly useful in the Bill of Rights section.
For example: “Congress shall make no law…” means “Congress shall make some laws…”
and “shall not be violated” means “shall be violated if the government says it has a good reason.”
So be careful when you read the Constitution. You could accidentally believe that you have the right to be secure in your person against unreasonable searches and seizures, and wouldn’t that be just silly?
Happy Constitution Day!
P.S. Don’t forget to have your spare bedroom ready. If peace breaks out in Iraq, you need to be prepared to put up the soldier who will be assigned to you.
Update: More here

I’ve got to admit, I’m having a little bit of fun with this, despite the deadly serious nature of the issues…
Jonathan Caulkins steps back into the fray in “The Discussion” part of the Cato Unbound series.
You may remember that I had previously accused him of either deliberately distorting the meaning of the Erowids’ comments, or being dumb as a rock. Well Jonathan defends himself (not from me, actually, but from Jacob Sullum’s more polite version of that assessment).

I fully agree with Sullum that saying modern humans must relate to psychoactives responsibly is not the same as denying an individual‰s right to choose temperance. However, the Erowids‰ full statement was

Modern humans must learn how to relate to psychoactives responsibly, treating them with respect and awareness, working to minimize harms and maximize benefits, and integrating use into a healthy, enjoyable, and productive life.

I explicitly wrote that ‹most of that assertion is innocuous,Š but singled out the part about the necessity of integrating use into life as not respecting someone‰s right to choose not to use a drug.

I still don’t see how you can take that philosophical statement about the class of “modern humans” and claim that the Erowids are “denying or denigrating an individual’s right to choose temperance” and thereby being “not worth engaging.” What does he think that they are suggesting? That police will come door to door and make sure that everyone has taken their psychoactive drug for the day? Or is Jonathan afraid the Yippies will dump LSD into the water supply (although such a scenario today is actually more likely to be the fault of the DEA).
So I’m confused here. It appears to me that anyone with a reading comprehension level above 4th grade knows that the Erowids are not denying individual choice. But Caulkins still believes it. So what is going on? Let’s get your view:

OK, now here is where my head explodes again:

I‰m not sure, as Sullum suggests, that I ‹clearly [believe] it‰s appropriate to forcibly protect people from risks they voluntarily assume.Š I approach such issues on a case-by-case basis, with a strong prior bias against government intrusion. However, if my side loses in the political process, and a restrictive law is passed, I think it is my responsibility to accept the disappointment gracefully and comply with the law

Let’s break that down into manageable chunks.

1. He’s not sure he believes it’s appropriate to forcibly protect people from risks they voluntarily assume
2. He supports laws that do so if they’re passed

If it’s not appropriate to forcibly protect people from their own risks, then how can a law that does that be appropriate? I’m guessing that what he is trying to say is that personally, he would like it if the population would choose to respect the rights of individuals, but if they don’t, that’s their choice, and one shouldn’t worry too much about it.
Interestingly, he does posit cases when such laws would be inappropriate:

I believe a citizen‰s general obligation to obey democratically enacted laws holds in all but extreme cases; examples of exceptions might include overtly racist laws such as the former apartheid laws in South Africa. A law can be misguided or ineffective or paternalistic without being unjust in the sense of nullifying one‰s duty to obey that law. […]
However, if my side loses in the political process, and a restrictive law is passed, I think it is my responsibility to accept the disappointment gracefully and comply with the law (again, assuming the law is constitutional, is not akin to South Africa‰s old apartheid laws, etc.).

Hmmm…. Well, putting aside his implication that drug laws are constitutional (worth an entire discussion in itself), he does find instances where it is OK not to comply with the law, (eg., if it is “akin to South Africa’s old apartheid laws”)
Does Caulkins realize where he just stepped? No, he’s clueless. And that’s because he also thinks that prohibition is free, and that drug laws are simply about whether or not people are allowed by law to use drugs, and have no relationship to their collateral damage such as this:

US Sentencing Commission found that black drug defendants receive considerably longer average prison terms than do whites for comparable crimes.
This is not a geographical fluke: a 2007 Justice Policy Institute study found that in Florida blacks were 75 times more likely to be stopped and searched for drugs while driving than whites; in 1991, blacks were 7 percent of St. Paul’s population but 62 percent of those arrested on drug charges; and in Onondaga Country, Syracuse, N.Y., black people are currently 99 times more likely to go to prison for drugs than white people.
There are more black men in US prisons today than there were slaves in 1840, and they are being used for the same purpose; working for private corporations at 16 to 20 cents an hour. Half the states have private, for-profit prisons whose lobbyists are demanding longer mandatory-minimum prison sentences. Indeed, American blacks are incarcerated at nearly eight times the level of South African blacks during the height of apartheid.

What was that you were saying about apartheid, Jonathan?
And here’s another point. When he says “I believe a citizen‰s general obligation to obey democratically enacted laws holds in all but extreme cases” what does he mean by democratically enacted? Are we talking about how marijuana became illegal at the federal level?
Sure, in a properly working democratic system, there is procedural recourse for bad laws. The people can simply vote for change. However, when the academics who speak to the press and the think-tanks mis-represent the effects of the laws by denying discussion about legitimate options and leaving out any talk of the negative consequences of prohibition, and when the government officials are required by law to use taxpayer money to lie to the citizens about the drug war, then how is an informed populace supposed to come about?
If the people are prevented from being well informed, perhaps the Representatives can step up and do their duty to pass responsible legislation on behalf of the people… But Oh no, the drug war is the third rail of politics. No politician can vote against the drug war. Particularly when the academics and government agencies are lying to the people.
But our constitutional government has other safeguards. There’s always the courts… Oh, but wait — the Supreme Court has a drug war exception to the Bill of Rights and the Constitution. They even found a way to make growing marijuana under state law within the state without selling it magically become interstate commerce, and to allow a dog’s mood to trump the Fourth Amendment.
Ah, but there’s the ultimate safeguard, bringing it back to the people — the jury system. Except that judges now routinely exclude jurors who disagree with the law, and even, in the case of medical marijuana cases in federal courts, prevent defendants from telling juries the truth.
So what would Jonathan Caulkins have us do, when we have an apartheid sized problem in our laws, and the system of democratically enacted laws is subverted so as to deter corrective efforts?

Link

Mark Kleiman has his response to the Cato Unbound series with: Drug Policy in Principle, and in Practice. A couple of excellent comments have already been expressed in the placeholder post below. But I wanted to take a chance to look at his response a little more in depth.
As this moment (Kleiman’s response) was approaching, I found myself wondering how he would find a way to subtly slam legalizers for no apparent reason. This time it was in the opening paragraph.

Cato Unbound is to be commended for having assembled a symposium free both of the usual drug war rant and of the usual ‹drug policy reformŠ rant.

Note first the use of the “scare quotes” around “drug policy reform.” This is Kleiman’s way of saying that those of us who claim to be drug policy reformers are not actually policy reformers, but are legalizers, which in his view is not… reform. We are apparently not serious folks, but rather fringe elements who think that “crack should be sold at the 7-11.Š (Ah, the ever-present straw man)
How many times is that offensive approach used by prohibitionists? That willful effort to misrepresent opponents’ arguments. If McCain had done something even similar regarding Obama’s views, Kleiman would be up in arms asking “Just how stupid does the McCain-Palin campaign think I am?” Well, then, why shouldn’t we be asking “Just how stupid do Kleiman and Caulkins think we are?”
Kleiman doesn’t go as far out of bounds as Caulkins’ offensive straw man: (“Denying or denigrating an individual‰s right to choose temperance is an extreme position not worth engaging.”) Caulkins, in fact, didn’t seem engaged at all in actually participating in the discussion in any legitimate way.
Kleiman seems to excuse Caulkins’ behavior as:

It seems to me that to some extent Jon Caulkins on the one hand and the Erowids and Jacob Sullum on the other are talking past one another. […]
Jonathan and the others are feeling different parts of the elephant. No surprise that they offer different reports about its nature.

Yes, except that the Erowids and Sullum are talking about the nature of an elephant, while Jonathan is telling us that it’s actually a coconut.
Kleiman really seems to want to re-define the argument to allow better treatment of his favorite drugs, and more demonization of the one in particular that always seems to make him lose all reason — cocaine. Certainly there’s an important place for discussing the specific differences in each drug regarding use, abuse, regulation, harm reduction, effectiveness of education, etc. But I think Kleiman’s thesis is, in fact, a diversion from the intent of the lead essay, not a clarification of it.
Here’s where it really gets interesting. Kleiman is willing to sign on to Caulkin’s balancing of the good and evil of drugs:

Still, I think Caulkins could make a plausible case that the decision to start to use alcohol or tobacco or cocaine or heroin or methamphetamine (in other than pill form) is an ex ante bad decision, because the relatively modest gain from successfully controlled use, multiplied by the probability of achieving controlled use, is outweighed by the very heavy losses from falling into even relatively transient abuse and the extreme losses from falling into chronic abuse, multiplied by those probabilities. The expected value of the gamble may well be negative, even if most people who take the gamble come out somewhat ahead of the game, because the average loser loses more than the average winner gains.

If he stopped here, that would be fine. That is, in fact, a fine discussion to have regarding the free choice of the individual. To weigh the potential upsides and potential downsides, assess the risks soberly (with proper evidence-based information), and make a decision.
But he doesn’t stop there. He moves right on to:

Thus Caulkins has a reasonable argument that voters might reasonably decide to protect their fellow citizens from the risk of falling into substance abuse disorder, even at the expense of missing the pleasures of moderate use.

And he has moved right down the path to supporting prohibition.
But you see, once you add prohibition, the equation changes dramatically. No longer is it a balanced choice. What Kleiman fails to address, pretty much every time he talks about drug policy, is that he is assuming that prohibition works and that prohibition is essentially free.
Sure, he pays some lip service to the costs of prohibition, but never really factors those costs into the equation. To him, there is no reason to consider the costs of prohibition vs. no prohibition, because the lack of prohibition is simply not an option in his mind. He and Caulkins won’t even discuss it.
Therefore, prohibition is a constant, and merely nibbling around the edges of its costs is then a “good thing,” and you never have to justify the total cost in dollars, lives, morality, or anything else.

Caulkins and I could probably go on at length about all the ways in which the costs of the current prohibitions, especially in the forms of violence, incarceration, and infectious disease, could be reduced without allowing the massive increases in abuse levels that would surely result from commercialization. [Boyum and Reuter 2005; MacCoun and Reuter 2001] To offer three specifics: We could reduce violence and drunken driving by raising alcohol taxes [Cook 2007, Cook forthcoming], we could shrink the illicit drug markets and reduce recidivism by using drug testing and swift, automatic, and mild sanctions to force probationers to stop using expensive illicit drugs [Kleiman 1998, Hawken and Kleiman 2007, Schoofs 2008], and we could break up street drug markets, thus protecting neighborhoods, with low-arrest drug crackdowns [Kennedy 2008, Schoofs 2008].

I’ve read most of these, and they are bandaids on the cancer of prohibition. If you’ve already decided that anything other than prohibition is not an allowed topic of discussion, then many of them are not bad ideas.
But what kind of messed up policy discussion eliminates options?
Sure, I suppose it’s nice to be able to discuss drug policy without having to factor in the ravages of prohibition or consider alternatives. But it’s dishonest and unproductive.
Even though the United State has legal and voluntary restrictions on the advertising of alcohol, and even though we have, through education, regulation, and public opinion dramatically reduced the abuse of legal tobacco, Mark Kleiman “recoil[s] in horror” at the thought of how American business would market cocaine, as though we’re powerless to do anything about it — that it’s so completely impossible to even imagine regulations that he has no choice but to “recoil in horror toward the current state of affairs.”
That would be the current state of affairs that has people dying right and left from drug war violence, that has enabled huge black market profits, and spawned massive corruption, dysfunctional foreign policy, and incredible damage to rights, families, cities, the integrity of law enforcement and government (the list goes on and on).
I’m sorry, but the current state of affairs is what makes me recoil in horror. And I have enough imagination to believe that we can come up with a way to legalize and regulate drugs without being required to have a Joe Nose Camel poster over a display of shrink-wrapped Kiddie Krack on the 7-11 checkout counter.
Oh, and yes, this is a drug war rant (or perhaps even a “drug policy reform” rant).
But as Ethan said in comments below:

It’s pretty amazing how narrow the debate about drug policy is, even in a forum like Cato. I rarely–if ever–hear about the huge percentage of non violent offenders in federal and state prisons; the fact that violent offenders are literally “crowded out” of prisons because of the vast number of non violent offenders in these facilities; the politicized science that drives policy making on drugs (ie, Ricaurte’s research on Ecstasy); the increasing costs of the drug war in Mexico (ie, widespread corruption and a fairly staggering murder epidemic down there now); the steadily declining costs of drugs like cocaine on the streets (when our drug policy is supposed to make these drugs more expensive, not less so) the decimation of African American families thanks to a system that imprisons an astonishing one in nine African American men between the ages of 20 and 34. I could go on and on but I’ve gotta say that I’ve been really disheartened by this discussion; reminds me of the “debate” over the Iraq war (where hawkish Dems like Ken Pollack get tons of space on op-ed pages and we never hear from the likes of Scott Ritter.)

Update: Some may wonder why I tend to be so harsh towards the Mark Kleimans and Jonathan Caulkins of the world. After all, they’re no John Walters or Mark Souder. It’s because they’re not. Because they’re academics and they’re smart and I expect more from them. Because I also work in academia and I hate to see talent wasted due to self-imposed limited thinking.
Further Update: Scott Morgan has more

The final response over at Cato Unbound is in: Mark Kleiman with Drug Policy in Principle, and in Practice

Cato Unbound is to be commended for having assembled a symposium free both of the usual drug war rant and of the usual ‹drug policy reformŠ rant.

I don’t have time to talk about it now, but I’ll be discussing it in depth here tonight. Feel free to start off the discussion.

Jane Bussey of McClatchy Newspapers generously demonstrates her own cognitive disfunction (and perhaps that of portions of the Mexican population) in Mexico’s Calderon takes popular and dangerous stand against cartels
With all the violence and death that has occurred since Calderon’s crack-down, the question is how people can possibly support it. Here’s how:

Mexicans have lost faith in many of their institutions, recent polls show, but not in President Felipe Calderon, who boosted his shaky presidency by launching a military offensive against drug traffickers.
The results have been mixed Ö violence is on the rise with the nearly 2,700 killings in eight months, equal to all of the violent deaths in 2007. News of 10 people or more slaughtered in single incident is not unusual.

Results have been mixed? Nowhere in the article does Bussey indicate any actual positive result (other than some seizures and extraditions, which are not shown to have had any effect). The only result seems to be slaughtering. Apparently launching a military offensive within your own country is a good thing, in and of itself, regardless of the results.

“Finally one government Ö the Felipe Calderon government Ö is doing something about it (the violence),” said Victor Lachica , chief executive of Cushman & Wakefield Mexico, a commercial real-estate firm.

And what is that something? Anything beyond simply escalating the violence? Wait, maybe this is it:

Beyond mobilizing some 40,000 troops, who have confiscated drugs, weapons and destroyed illegal marijuana and poppy plants, Calderon has kept a high profile in the war; attending funerals of fallen law-enforcement agents, visiting troops and warning that the war to regain peace will be long, costly and probably mean a considerable loss of life.

Ah yes. He has also attended funerals and told people that there will be lots of death. That’ll certainly put violence in its place.

Calderon has tied his name to a war with no end is in sight. “We are determined to leave the country much more secure,” he said in a Sept. 2 radio interview.

My brain hurts just reading that paragraph.

Washington has embraced Calderon’s anti-drug offensive, …

Of course it does.

An interesting article about college students going to Amsterdam to study drug policy. Logical, right?
But I was struck by this fascinating passage in the article:

Marijuana isn’t legal in Amsterdam. Rather, it’s decriminalized. It’s similar to Americans going into a bar to drink. In Amsterdam, they go into coffee shops to smoke.
“You’d think that the availability of it would make it out of control,” Lutt said. “It was a lot more of a social thing.”
No craziness. No crime. Nobody walking around stoned or drunk. At least not Amsterdam natives.
“I saw Americans out of control,” Lilleholm said.
Which leads her to believe that such policies probably wouldn’t work here. Make marijuana as easy to obtain as alcohol, and people are going to overindulge.

The dysfunctional mental process there is breathtaking. First of all, the idea that making marijuana as easy to obtain as alcohol would lead to overindulging is directly contradicted by the previous observed facts.
And while there certainly are national and cultural differences in the popular reaction of different populations to certain drugs, there’s an obvious apples-and-oranges problem when comparing the natives or Amsterdam and the tourists of America in their dealings with decriminalized marijuana.
Of course the tourists would seem more out-of-control than the natives. It’s a function of tourism.
The characteristics of drug tourism are the result of prohibition in the visitor’s home country, not an indicator that sane policy wouldn’t work.
If chocolate was outlawed in the U.S., you’d probably see American tourists a little out of control with their cocoa consumption in Switzerland compared to the natives.

You’ve probably heard about how more and more prescription drugs are being found in the water supply. The government made some noises about how people need to be more careful about disposing of prescription drugs.
However, it turns out that the DEA (and their continued desire to make medicine a law enforcement issue) could be largely to blame.

North Memorial Medical Center pours 50 gallons of controlled substances into its drains annually rather than pay $25,000 to handle and haul it away for safer disposal, says regulated waste coordinator Jerry Fink.
Part of the cost is due to federal rules that state anyone who handles controlled substances, other than a user, must be certified as a police officer or registered with the DEA. That goes for pharmacists, distributors, even waste handlers.

YouTube has bowed to pressure to remove certain categories of videos, based on demands by Joe Lieberman in his efforts to protect us from the terrorists. I’m not sure how it was supposed to work for the terrorists — maybe they were using funny YouTube videos to distract us at work in order to bring down America’s productivity — but obviously Deputy Droopy Dog is out there watching out for us…

Among the other changes handed down was a prohibition of videos containing “drug abuse”–a phrase that, like other parts of YouTube’s rule set, comes with no context, elucidation, examples, or anything else that would help users figure out what “abuse” might actually mean in practice. […]
Not until drug videos do begin disappearing will we be able to tell if there’s any rhyme or reason to the application of the rule. But as far as a drug purge goes, count me as a skeptic. I doubt if YouTube tries to smoke out every last pot, Salvia, and alcohol video from its giant database. It’d be too much work, and with all that stuff already in its system, I doubt YouTube would have the motivation anyway.

Banning videos of “drug abuse” will have no more affect on reducing drug abuse (or terrorism) than banning videos of Joe Lieberman would have on reducing the number of cowardly un-American politicians.

Oh, yeah.

The debate over legalization really is dull. That‰s because it‰s over with. The prohibitionists have lost in all important respects, and I suspect they know it.