Drug WarRant

If you don’t remember Representative Istook’s provision that would prevent marijuana law reform ads from being placed on public transportation, check out my earlier posts here.
Back in June, a US District Judge rightly ruled against the law, calling it “an unconstitutional exercise of Congress’ broad spending power.” At that time, Istook vowed to take it further (using our money, of course).
Now, however, according to this release:

WASHINGTON – The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, “the government does not have a viable argument to advance in the statute’s defense and will not appeal the district court’s decision.” Today is Congress’ last day to respond to the federal appeals court in the D.C. Circuit.

“The Justice Department finally met a law so unconstitutional that it could not find any way to defend it,” said Graham Boyd, Director of the ACLU Drug Law Reform Project. “Congress should stop trying to silence public discussion of the cruel and expensive failures of current marijuana laws.”

As the Wall Street Journal reported today, “Mr. Clement’s opinion also could serve as a warning to Congress that it can’t assume the Justice Department will support the controversial riders that lawmakers have been adding to funding bills if those riders are challenged in court.”

Now I’m not sure I’m ready to give a lot of credit to the Justice Department on this one. I don’t think this was a case of them taking the proper approach for the good of the country. I think they just were afraid of the humiliation of getting laughed out of the court.

As I noted here and here, President Bush had indicated that he wanted to halve the budget deficit this year and was willing to zero out some programs that don’t work. Naturally, I gave him some excellent suggestions that involved cutting the ONDCP, DEA, etc.
However,

The White House announced on Tuesday that the federal budget deficit was expected to rise this year to $427 billion

Oops.

At his going away party,

Karen Tandy, who leads the Drug Enforcement Administration, said that “when history looks back at the victory we inevitably will achieve against the dark forces of terrorism and drug trafficking,” it will view Mr. Ashcroft as one of the heroes.

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).