Drug WarRant

Good editorial in yesterday’s Columbia Spectator (Columbia University, New York). The conclusion:

Marijuana isn’t that dangerous or addictive, and enforcement falls disproportionately upon the poor.

It’s time to legalize it.

Yep.

Steve at Decrimwatch notes that good old Andrea Barthwell is in Peoria today. Oh well, I missed her talk at White Oaks Center today, where she apparently planned to include her usual warning of the dangerously potent pot that’s been destroying the country and supposedly has already wiped out Canada. Steve does a great job of fisking some of her comments.
However, there’s one point that puzzles me about this article. Who is paying Andrea Barthwell to travel to Peoria, Illinois and spread disinformation? After all, she is formerly with the Drug Czar’s office but no longer working for the government as far as I know. Is the ONDCP illegally paying her? Or is she getting paid by White Oaks, which depends on much of its income from the criminal justice referrals of marijuana “addicts.” Or does she just like doing it? Inquiring minds want to know.
I’ve asked the Peoria Journal Star if they’d clarify. We’ll see.

After my piece yesterday on the Illinois v. Caballes 4th Amendment fiasco, I was accused in various blogs of much gnashing of teeth and a rush to judgment. So I thought about it some more, reminded myself that I did not accuse the Justices of killing the 4th Amendment with this particular decision but rather simply pissing on it after it was already dead, and upon further consideration, decided that my rush to teeth gnashing was on the mark.
Now if you want some really good analysis of some of the real problems with this decision, you should read Fourth Amendment.com. Also, Scott at Grits for Breakfast is currently blogging circles around me, so I feel like I’m playing catch-up. His post today is right on.
So let’s break it down for the 4th Amendment impaired. No major analysis, but just some casual discussion.
Why is this a problem? After all, as Justice Stevens said, all the dog is noticing is the smell of something you have no legal right to possess, so there is no invasion of privacy.
This may be fine in a perfect world, where all drug-sniffing dogs are 100% infallible, but that world doesn’t exist. What happens when the dog gets all excited despite the lack of drugs? What will happen? Why, your car will be searched. When no drugs are found, can the search be retracted? No. It happened.
Prior to this ruling, there needed to be a human judgment based on evidence of some kind that a crime had been committed (it already was allowed to be horribly arbitrary (early 4th Amendment stabbings), but there was at least some human element), and then that would justify bringing in a dog to sniff and maybe add to the preponderance of suspicion enough to justify a further search. Now, however, the judgment — the decision to search is allowed to be delegated solely to… a dog. The subsequent search is reasonable because a dog says so.
Of course, there are those who say, “why worry about the case where an innocent person is searched? After all, they weren’t arrested. As long as they had nothing to hide, why should they mind being searched?” This is very similar to the argument used constantly by police to convince citizens to give up their rights. I call it the “striped genitalia argument.”
Here’s how I view it in my daydream…

Officer John Paul Stevens (hey, it’s my dream) pulls me over for going 1/10th of a mile over the speed limit. He wonders if I might be carrying drugs, or weapons, or child pornography, or income receipts that I didn’t declare on my taxes, or cash, or unpaid parking tickets, or degenerate art, or writings that criticize the government, or something like that in my trunk. I say it’s none of his business and refuse permission to search.
Officer Stevens: Why won’t you give me permission to search? After all, why should you mind unless you have something to hide? The fact that you don’t want me to search is suspicious, don’t you think?
Me: I think you have striped genitalia.
Officer Stevens: Whaaa???
Me: Green and orange-striped genitalia, to be precise.
Officer Stevens: What are you blathering about? My genitalia are not striped, green, orange, or otherwise.
Me: Then pull your pants down right here by the side of the street and prove it.
Officer Stevens: No way! Are you nuts?
Me: Why not? Got something to hide? The fact that you won’t is suspicious and means you probably do have striped genitalia.
At this point in the daydream, the officer usually pulls out his gun and shoots me. But you get the point. It doesn’t matter whether you have something to hide. The 4th Amendment guarantees to you to be secure in your person and effects against unreasonable searches. Period.

Other reasons why this ruling concerns me…
As others have noted, the new concept of essentially using the result of the search (possession of contraband) to justify the sniff is a dangerous and troubling trend (and legally backward). Of course, some of the convolutions are likely because of the potential conflict with the principles of this decision along with the principles of the thermal imaging decision.
In addition to the questions I had yesterday, I wonder at this notion that a device (in this case a dog) that can detect specifically illegal items is not, by definition, an invasion of privacy, since there is no right to possess illegal items. By this reasoning, could not police wander everywhere with dogs having them sniff? (On last night’s news, an Illinois police officer already said that they plan to step up their use of dogs dramatically). Also, by this reasons, could not an officer administer a breathalizer test to anyone, anywhere? After all, it’s a device that is detecting items that are illegally possessed in your body (level of alcohol, or drugs, or…) without invading the body (merely measuring the breath that’s coming out of the body, much like the smell of drugs outside the car).
Others have come up with additional scenarios, and I think it’s very clear that we have only begun to imagine the ramifications of this decision (on both sides). The one positive result is that the credibility of drug-sniffing dogs is going to be subject to even greater scrutiny.
I think I’ll run out and gnash my teeth some more.
Update: If you’re interested in some of the techniques for training drug dogs, including the legal scents that are used to mimic marijuana, cocaine, and other drugs, there’s some interesting product information here. (Thanks, Scott)

The Supreme Court ruled today 6-2 (Illinois v. Caballes) that the 4th Amendment is not violated when police use drug sniffing dogs during a routine traffic stop even when there’s no reason to believe that drug laws have been broken.
Justice Stevens:

A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

… and with that he puts his seal of approval on police fishing expeditions.
Justices Ginsberg and Souter dissented (Rehnquist did not participate in the case.)
This ruling is likely to result in a massive increase in the use of drug-sniffing dogs, both in traffic stops and even other situations such as patrolling through parking lots, walking down streets, etc. This, despite the fact that drug-sniffing dogs have a notoriously high false-positive record (look for an increase in the investigation of drug dog records in court cases).
This also makes it practically illegal to carry large amounts of cash for any reason. Since most cash in the U.S. has some drug residue on it, drug dogs can alert to cash in your possession as well. You might get it back if you can provide enough documentation.
This is just one more reminder that we cannot depend on the Supreme Court — they are notorious for rolling over when it comes to anything that the drug warriors want. We will have to motivate the people to reject the drug war finally loudly enough that legislators will have no choice but to listen.
Note: The Supremes did not YET rule whether dogs could be used this way around houses, and I don’t know whether it would be allowed to, say, bring a dog down the aisle of a bus.
A reminder how it used to look…

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

BTW, since Lisa Madigan won this one, I may have to get a dog so I can follow through with my earlier comment:

Thanks, Lisa. So you wouldn’t mind, then, if I brought my dog up to you and had it sniff your crotch in public? After all, it’s not a search, so why should anyone mind?

Update: Be sure to read the detailed analysis by Orin Kerr at Volokh Conspiracy as well as Scott’s reaction at Grits for Breakfast.

President Bush’s budget is due out on February 7. A few of his promised cuts to halve the deficit have been surfacing as trial balloons, including:

• Medicare benefits
• Housing and community programs
• Hubble Telescope Repair

But still no word on eliminating the ONDCP, the DEA, much of the Federal Prison (and prosecution) costs, the wasteful drug eradication program in Colombia, drug task forces, and much more of the ineffective and exhorbitantly expensive drug budget. We could save billions!
Come on, President Bush. You can do it. Give John Walters his pink slip.

In yesterday’s LA Times

Deferring to Afghan President Hamid Karzai, the Bush administration has backed off its plans to use aerial spraying to destroy Afghanistan’s poppy crop, at least for the time being, administration officials and lawmakers said.

Instead, the United States will help develop alternative livelihoods for poor farmers, build up the police and counter-narcotics forces and pay teams of Afghans to cut and burn poppy fields by hand this spring to demonstrate that opium production will be a risky business in the new Afghanistan.

Yeah, it’s that pesky little problem of how do you win the hearts and minds of the people when you bomb their crops with toxic chemicals, or burn their fields and drive them into abject poverty? If only there was some other solution?

“Everybody supports an aggressive program on drugs including manual eradication, interdiction and alternative livelihoods,” said a congressional source who asked to remain anonymous.

Well I don’t. And I don’t need to remain anonymous.
You’ve got a profitable crop that just needs to be made legitimate so that the criminals don’t profit from it. And the only solution that comes to mind is spending huge amounts of our taxpayer dollars to destroy it, and then more huge amounts of our taxpayer dollars to provide food since their livelihood has been destroyed.
Weird logic.
Oh, and we actually do buy lots of Turkey’s poppy crop for legitimate medical purposes. So why can’t we buy it from Afghanistan instead?
Update: The Senlis Council is advising President Karzai to explore new policy initiatives and urges the International Narcotics Control Board to give special license to Afghanistan for opium production for morphine.

“The medical use of heroin, would take a very large part of the market out of the hands of war lords and drug traffickers–the people who are threatening the newly formed democracy in Afghanistan,” said Reinert. “A pilot project for heroin prescription is being launched at the moment in Canada. More initiatives like this are needed.”

Colombian Strategy Failed: The Council said that recent experiences in Colombia, where enormous sums of money have been put into military action to little effect should not be repeated in Afghanistan, saying that this money could be spent on the organization and implementation of schemes like those in Canada for heroin prescription.

“We have seen in Colombia that even military power is not enough to defeat the force of the extremely lucrative illegal drugs economy,” said Reinert. “We must learn from the mistakes made in Colombia and under no circumstances repeat them. For the moment, the same policies that failed in Colombia are being proposed by the United States. It has not worked in Colombia, where drugs represent 2.5% of the GDP, so why would it work in Afghanistan, where they represent 60%?”

Read the whole thing.

..has nothing better to do than try to mess with the constitutional right of privacy of Alaskan citizens.
In yesterday’s Anchorage Daily News:

Gov. Frank Murkowski on Friday asked the Legislature to overrule a court ruling that adult Alaskans have the right to possess marijuana for personal use in their homes.

Murkowski introduced a bill that challenges the state court’s ruling and that would significantly tighten other state marijuana laws — making a lot more pot crimes into felonies.

Only one little problem — that court ruling was based on a constitutional right of privacy specified in the Alaska state constitution.

William Satterberg, the Fairbanks lawyer who argued the case that toppled the state prohibition on at-home pot, said he doesn’t think the courts will backtrack.

“Unconstitutional still remains unconstitutional no matter what the Legislature thinks,” Satterberg said.

The Alaska Supreme Court in September let stand a lower court ruling last year that adult Alaskans have the right to possess up to four ounces of marijuana in their homes for personal use. The lower court based its opinion on a 1975 decision, known as Ravin v. State, which declared the strong right to privacy from government interference that is guaranteed under the Alaska Constitution outweighed any social harm that might be caused by the small at-home use of marijuana by adults.

Kudos, by the way, to the Alaska Public Defenders Office:

The Alaska public defender’s agency said it would need another $160,000 a year in state funds to meet its increased workload under the bill.

You can bet there would be a whole lot more expense than that in other areas as well (think prisons).

I’ve been getting some great comments from readers, so I thought I’d let some of them serve as a post tonight…
“bullet” Terry Nall responded to How do they come up with this stuff where I talked about the message sent to children by our politicians.

Message to our children:
It is normal for U.S. citizens to be under the direct control and supervision of police officers, at school, in public, and in their homes.
It is normal for the government to have complete authority over your body and over every aspect of your private life.
It is normal for the government to have policies that are in direct contradiction to the will of the people.
It is normal for the government to enforce its policies through direct physical violence and brutality.
It is normal for the government to silence dissent.
It is normal to be afraid.

“bullet” As a follow-up to An important event in Champaign, Illinois on February 18-20, which included a strongly worded statement by civil rights leaders against the drug war, Kaptinemo (a regular visitor) said…

I’ve long held that the minority leadership of this country were acting like the pledges in “Animal House” (“Thank you sir! May I have another?”) when it came to the War on Drugs. It’s demonstrable from historical documents that the War on Drugs was never concerned with public health, only public order…as defined by those in power at the time of its’ inception. And maintaining public order to them required a more politically correct means of oppressing minorities than outright KKK lynchings. Drugs proved a very handy tool in that regard. The success of this tool can be gauged, not by the effects of failed drug interdiction on society (which, I reiterate, was not the original concern but the window dressing used to ‘sell’ it) but by the size and racial composition of the prisoners in our penitentiaries who were put there because of the laws.

Contrary to what most drug law reformer’s statements indicate, the DrugWar has performed exactly as it was expected to, and is a resounding succcess. The question is whether those who are most affected by this ‘success’ continue to allow the predations inherent in it to continue against them.

“bullet” disgusted vet pointed out why this piece is satire, with some insightful points that don’t get brought up enough:

This is part of a LTE I sent some time ago and is, I believe, what the “Santa Barbara Satirist” wanted to arouse in the reader:

An estimated 90 million Americans have at least tried marijuana over the last 35 years or so, and many of them continue to enjoy pot on a regular, irregular, or casual basis. WHERE ARE THE CASUALTIES? Where are the birth defects? Where are the male breasts? Where are the fried-egg brains? Where are the amputated limbs from “circulation problems”? Where are the shuffling legions of demotivated pot-slaves? Where are the pitiful addicts, searching for roaches in the gutter, or slumped in doorways? Where is the spike in lung, and other, cancers? Where are the armies of the memoryless, the unemployable, the lost?

Maybe we should be asking more questions like these.

Thanks, readers!

How do they come up with this stuff?
Columbia, Missouri:

Republican State Sen.æ Chuck Gross proposed legislation Wednesday that would prohibit public schools from holding athletic tournaments in Columbia.

Gross’ proposal comes in response to two measures the city’s voters approved in November.æ One makes marijuana arrests the lowest priority of city law enforcement, and the other allows marijuana to be used in the city for medical reasons.

The legislation proposed by Gross would bar schools that receive state money from participating in “sporting events or athletic tournaments” in cities with marijuana laws similar to Columbia’s.

I keep hearing talk about what “message we’re sending to the children.” Well, if the children have half a brain, the message is loud and clear: It’s politicians who need to be locked up!
Of course, every legislature gets a ton of these silly season bills every year. Hopefully, this one won’t be given any serious consideration.

CU Citizens for Peace and Justice and Salem Baptist Church are hosting Forgiveness Weekend: Double Jeopardy or a New Beginning, February 18-20, in Champaign, Illinois, dealing with race, faith, and drug policy reform (full schedule and contact information at the link).
The Civil Rights leaders involved in the event (Rev. James Lawson, Jr., Rev. C.T. Vivian, Rev. Will D. Campbell, Diane Nash, Rev. Bernard Lafayette, Rev. James Bevel) have issued this statement:

We who have participated in the civil rights movement know the power of creative, persistent, nonviolent resistance. We are committed to translating the lessons we have learned into invitations for action now, believing it is urgent to redress the grievances and correct the injustices of our present drug laws. We believe the war on drugs is a continuation of historic institutional racism, aimed at enriching those in power and impoverishing communities of color. The drug war is a war against the American people, particularly those who are young, poor, and people of color. In the words of William Douglas, it is “a slavery unwilling to die.”
The war on drugs has not only failed in its efforts to make America free of “illicit” drugs, but in the process has constructed laws that are highly unjust, racist in application, a threat to our constitutional rights and a danger to our public health. African Americans are estimated to be 13% of the total drug offenses, 59% of those convicted for drug offenses, and 74% of those imprisoned for drug offenses. The Justice Policy Institute’s 2003 report states that 560,000 people are now incarcerated in the twelve state region from Louisiana to Virginia: “Today, the role played by slavery, convict leasing and the Black Codes. In every Southern state, African Americans were incarcerated at four times the rate of whites.
In the words of political economist John Flateau: “Metaphorically, the criminal justice pipeline is like a slave ship, transporting human cargo along interstate triangular trade routes from Black and Brown communities, through the middle passage of police precincts, holding pens, detention centers and courtrooms; to downstate jails or upstate prisons; back to communities as unrehabilitated escapes; and back to prison or jail in a vicious recidivist cycle.” The alarming escalation of our prison population is a direct result of national drug policy. The war on drugs continues to write off millions of human beings and squander urgently needed resources that might be invested in education, housing, public health and economic development.
With more than 2 million people currently incarcerated in this country, almost 500,000 for nonviolent drug offenses, we cannot remain silent. We are called on to speak a prophetic word of judgment and hope to the present situation. We must apply a “soulforce”, combining our prayers with the hard work of seeking justice, healing and restoration. We urge you to join in this movement; to stand with those who are victimized by this war; to expose the injustices; to change the public policies; and to engage in ongoing systemic work for restorative justice and reconciliation.

If you’re in the area, or connected with an area church, this is an event you shouldn’t miss.
I also urge you to check out Interfaith Drug Policy Initiative for an organization that is working hard to get people of faith involved in drug policy reform.
It’s going to take everybody to change the laws — those on the left and the right and stuck in the middle, people of faith and civil rights leaders, medical professionals and smart politicians, stoners, philosphers, and intellectuals until finally, the people sitting at home wake up and realize that their drug war has been a lie.