Drug WarRant

• Mystery spraying in Afghanistan. Tomorrow’s New York Times article still has no answers as to who has been spraying opium poppy fields with toxic chemicals and destroying crops. Spraying has not been authorized by the Afghan government, and alternate crop programs are not yet in place. The American government has denied any knowledge, but Afghanis aren’t buying it, given that the U.S. has long argued for chemical eradication. Governor Hajji Din Muhammad noted “The Americans control the airspace of Afghanistan, and not even a bird can fly without them knowing.”
• TalkLeft tells us that Senator McCain is threatening new legislation to impose mandatory drug testing of professional baseball players. TalkLeft also notes that a Cali Cartel dealer has been extradited to the U.S., which segues into…
• Last week, Mark Kleiman, in Weirder than Satire in Columbia, noted that cocaine traffickers are being accused of pretending to be genocidal terrorists in order to get preferential treatment.
• Scotus Blog says that Hoasca Tea may be heading to the Supreme Court (Justice Breyer granted an application for a temporary stay). This case will put the government in the position of explaining why they are denying an exception to the Controlled Substances Act for the use of Hoscoa Tea in O Centro Espirita Beneficients Uniao Do Vegetal religious ceremonies, while allowing a religious exemption for Native American use of peyote.
• The Milwaukee Journal Sentinel has a 4-part series: Tougher sentencing law carries hefty price: Estimated $1.8 billion through 2025
• Drug War Corruption. In Mexico, seventeen federal, state and local investigators, prosecutors and police officers have been arrested. Those arrested face charges of protecting drug dealers as well as homicide or accessory to murder in the slayings of nine people.

Campaign to Urge Teens to ‘Steer Clear of Pot’
During National Drunk and Drugged Driving (3D) Prevention Month

Notice that the Drug Czar isn’t suggesting that teens steer clear of alcohol? That’s because this campaign really doesn’t care about teen driving safety. The plan behind the tactic is to use the fear of teen accidents to encourage more zero-tolerance drugged driving laws (laws that don’t test for impairment, but rather any incidence of THC in the body, which could be from smoking a joint several days earlier).
The problem is that there are no reliable studies showing high risk from marijuana and driving (certainly there are risks, but studies show that the risks are well below alcohol or fatigue). So the Drug Czar has to create his own results.
The release mentions:

“the Drug Czar cited higher marijuana rates among young driving crash victims”

So I went out and bought a copy of the study that the Drug Czar cited: Epidemiology of Alcohol and Other Drug Use Among Motor Vehicle Crash Victims Admitted to a Trauma Center, 2004. Briefly, here’s what the study told me.

1. It covered a “limited sample of seriously injured patients at an eastern US Level 1 trauma center,”
2. “…we were unable to accurately distinguish between drivers, passengers, and pedestrians due to the lack of specific crash information.” and
3. “the qualitative results of the POC [Point of Collection] and laboratory immunoassay tests do not permit any interpretation regarding impairment”

So, in a limited study of crash victims (including drivers, passengers, and pedestrians), it was determined that some of them had used marijuana at some time prior to the crash, and of those who had, the highest incidence was in the 18-25 age group.
Yep. Drug Czar Science.

Tom Angell is communications director for Students for Sensible Drug Policy. He recently responded to a Kentucky school’s decision to implement a random, suspicionless drug testing program for all student athletes. Here’s an excerpt:

School officials should welcome these at-risk students into the positive atmospheres provided by team sports, especially during the crucial hours between the end of the school day and the time their parents come home from work.æ Instead, drug testing programs turn students toward the streets, where they’ll be more likely to experiment with drugs.æ

Yanking at-risk students out of their after-school activities and deterring others from joining could have the unintended consequence of worsening an existing drug problem in the student body.æ Indeed, the U.S.æ Department of Education and Department of Justice published a report in 1998 underscoring the importance of extracurricular involvement in crime and drug-use reduction among adolescents.æ Why would school boards want to further alienate the young people who need their help the most?

Forcing students into bathroom stalls while school officials listen for the sounds of urination greatly damages the relationships of trust that are so crucial in our schools.æ Students should feel that they can approach adults if they have problems with drugs or are experiencing other hardships of being teenagers.æ Instead, the “gotcha” attitude that is fostered by drug testing isolates students and deters them from seeking the help and advice they might need.

Read the whole thing. And if a school district in your area considers drug testing, use this as a guide to write your own letter or OpEd.

A new study confirms what Radley Balko said in his outstanding Cato article today — the war on drugs isn’t working.

WASHINGTON — After 25 years and $25 billion the United States is further from winning the war on drugs, a study released Tuesday indicates.

The report conducted by the Washington Office on Latin America, a non-governmental organization that has the stated goal of trying to “reorient U.S. drug control policy to the region,” concludes that U.S. policy geared toward “reducing drug abuse and availability in the United States” from a “supply-reduction model does not work.”

The numbers tell the story pretty graphically:

Data compiled by WOLA show that since 1981 the retail price for 2 grams of cocaine went from $544.59 to $106.54 in 2003. Retail heroin prices mirrored the decline in cocaine prices, falling from $1,974.49 to $361.95 during the period.

Walsh noted that “price estimates are manifestations of supply and demand” and thus are the most accurate indicators to “determine what is coming in.”

The number of incarcerated drug offenders rose from 45,272 to 480,519 from 1981 to 2002, and government spending on overseas supply control rose from $373.9 million to $3.6 billion from 1981 to 2004.

Overall, government spending on supply control and the price of cocaine and heroin have had negatively correlated trends, with the price of cocaine decreasing by 32 percent and spending rising by almost 10 percent.

The greatest change occurred in the number of jailed drug offenders, which swelled by 55 percent, serving sentences that are sometimes incommensurate to the crime and could be addressed more cost effectively through drug rehabilitation, the report said.

More at D’Alliance

Before I explain the tease of this headline, there have been a couple of very good columns on the Raich v. Ashcroft medical marijuana case:
First off, Jonathan Adlers’s outstanding column at the National Review: High Court High Anxiety: The Supreme Court’s medical-marijuana case could send federalism up in smoke.

Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.

In a much lighter tone, we have the also outstanding Dude, Where’s My Integrity? Medical marijuana tests the Supreme Court’s true love of federalism. By Dahlia Lithwick at Slate

In the simplest sense this is a states’ rights, or federalism, case. But it’s also a case full of twists and inversions, endless electric guitar solos, tie-dyed mayhem, and strange bedfellows. And that’s not just among the folks camped out on the courthouse steps for oral argument this morning–many of whom were probably later rounded up and forced to pee in small cups outside John Ashcroft’s office.

But what I’m really here to talk about is the most bizarre column of all. You know the kind — written in complete seriousness, but has you rolling in the aisles. It’s Gary Aldrich’s column at TownHall: Medical Pot-heads.

…There is a good chance the medical pot-heads will eventually win this cultural battle.

Their victory will be achieved if Conservatives have forgotten how to frame their arguments so as to ensure victory.  We also can lose because, like children, Liberals never have learned to respond properly to the word, “No!” And, like so many parents, we get worn down and weary of arguing with people who act like children.

By the way, unlike all of the other columnists I’ve read on Raich, Gary completely ignores the issue of states’ rights, or the power of the centralized federal government over the individual.
This might be a good time to point out that Aldrich is actually President and Founder of the Patrick Henry Center for Individual Liberty
Aldrich goes on…

The Liberals or Libertarians argue that pot is not such a bad drug, and they are, in turn, supported by the millions of Americans who tried pot in high school or college and didn’t turn into drug-crazed monsters.

Unable to come up with any specific bad things to say bad about marijuana, Aldrich then proceeds to lump marijuana and cocaine and other unnamed drugs into “drug use by addicts” — a problem he notes was exacerbated because one-quarter of Clinton’s staff was “using” on inauguration day. (The Clinton mention was apparently an obligatory part of his mission with the Patrick Henry Center for Individual Liberty).

To feed their out-of-control drug habit, the addict often turns to a life of crime.  After they have begged, borrowed, and stolen money and valuables from their friends and families, their future becomes the life of a serious criminal, and prison cannot be far behind. 

The looting of family and friends often results in the loss of support from those closest to the addict, thus the user-addict’s only companions end up being fellow users.  Very few can break their drug habits, and their lives are irreversibly destroyed.

Ah, yes, the inevitable result of letting a terminally ill patient use medical marijuana that they can grow in their back yard and that has been recommended by their doctor.
At this point, Gary leaves the rational world … the rest of the way.

Pushing to legalize marijuana is the best evidence of the remarkable, deadly selfishness of your average, self-centered Liberal.  They know the above facts better than most because many of their close friends have become addicts, and their lives were destroyed. 

Yet selfish, self-centered Liberals don’t care about any of that – they just want their marijuana, cocaine, or whatever designer drug is in fashion.  What they won’t admit is that many cannot enjoy their sexual activities without using the drugs – this is the dirty little secret that nobody wants to talk about. The effects of marijuana and cocaine are often more powerful than Viagra.  The Liberal guy pushes drug use because everyone knows drugs sweep away a woman’s natural reluctance to behave like a barnyard goat.

Barnyard goat, you say? And your knowledge of how a barnyard goat behaves comes from….?
Hmmm… That Viagra spokesperson must have been one of them Liberals. You remember — that liberal with the fruity name who ran for President and lost?
Aldrich concludes with a display of alternative math, particularly since the federal government notes that 46.04% of the U.S. population have used an illicit drug in their lifetime:

Will the Supreme Court say “yes” to the use of marijuana in medical circumstances? If so, will the Liberals be satisfied?  Will the 80% of us who never used illegal drugs and never will, be allowed to continue to enforce laws that were created to maintain a civil, decent society?

It must be really annoying that 80% of those who live in Aldrich’s dream world have to be confronted by people who think Individual Freedom is for them, too.
Remember, that’s Gary Aldrich, founder and president of the Patrick Henry Center for Individual Liberty. (I suddenly hear Inigo Montoya’s voice: “You keep using that word. I do not think it means what you think it means.”)

While I’m still waiting for a complete transcript of the Raich v. Ashcroft oral arguments and for Randy Barnett to give us his reaction to his experience, the AP has put out some excerpts, transcribed by Alderson Reporting Company (they do all the transcripts for the Supreme Court). They show that even the best minds lose command of the English language.

JUSTICE RUTH BADER GINSBURG: “There is, in this record, a showing that, for at least one of the two plaintiffs, there were some 30-odd drugs taken. None of them worked. This was the only one that would. . If there were to be a prosecution of any of the plaintiffs in this case, would there be any defense?”

CLEMENT: “Well, Justice Ginsburg, I think we would take the position, based on our reading of the (2001) Oakland Cannabis case – and, obviously, different justices on this court read the opinion differently and had different views on the extent to which the medical-necessity defense was foreclosed by that opinion – I would imagine the federal government, in that case, if it took the unlikely step of bringing the prosecution in the first place, would be arguing that, on the authority of Oakland Cannabis, the medical-necessity defense was not available.”

Sorry, Paul. Not a very good answer. But then again, it’s kind of tough to come right out and say “We want the sick lady to die.”
Here’s one where I’m assuming a Justice got tongue-tied (unless it was a terrible transcription job):

JUSTICE STEPHEN BREYER: “You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. You know, we can – oil that’s never, in fact, being used, but we want an inventory of it, federally. You know, I can multiply the examples. And you can, too. So you’re going to get around all those examples by saying what?”

BARNETT: “By saying that it’s all going to depend on the regulatory scheme.”

Attack of the tomato children in Boston? I’m amazed that Barnett was actually able to answer.

In addition to keeping up the posts here, I’ll be one of a select group of guest bloggers at The Agitator, Radley Balko’s outstanding blog. There will be some cross-posting as my job will be be covering the Drug War as I guest blog alongside Jim Henley, Jacob Grier and Joshua Clayborn.
Radley will drop in from time to time, but he’ll be working on some other projects for the next 4-6 weeks.
I’ve already gotten started there and it should be fun. Remember, I’m not cutting back at Drug WarRant, so continue to spend your time here, but drop by The Agitator too.

Well, you wouldn’t know it from the early press…
Gina Holland’s AP pieces
“Court Questions Possible Abuse of Pot Laws” and “Wary Court considers Medical Marijuana” along with AP’s “Justices Appear Hesitant To Endorse Medical Marijuana” would certainly lead you to believe that Barnett faced a serious problem and that Clement had a cake-walk.
Reuters came out with a piece that seemed to have sealed the deal:

WASHINGTON (Reuters) – Several U.S. Supreme Court justices expressed reservations on Monday about allowing medical marijuana for sick patients whose doctors have recommended they smoke it for pain.

The justices appeared sympathetic to the federal government’s argument that it has the power to prosecute or take other action against patients who use home-grown marijuana in states with laws allowing medical use.

Some of the pieces would mention a single question of a Justice (out of context and without the answer given) as indication of the Justice’s view, when the Supreme Court Justices often probe with their questioning to bring out important points.
Of course, reality was a bit more complex than that.
Huge thanks are due to Lawrence Sulom’s Legal Theory Blog for a complete recap and analysis.
Once you read that, you realize that there was a good discussion — that the Justices were not as stupid as the AP reports would lead you to believe — and that we’ve got a barn-burner of a case going on here.
I’m going to need to soak it in a little more, but I’m sure I’ll comment more on the specifics later.

Update: Another reaction to the arguments from Timothy Lynch of the Cato Institute, who co-authored an amicus brief, is available at the Ashcroft v. Raich Federalism Blog. It’s a little more pessimistic overall regarding the degree to which the Justices went after Barnett.
Further Update: Marty Lederman at SCOTUS blog has decided to predict a unanimous vote in favor of the federal government. (Since I earlier called unanimous the other direction, at least one of us is likely to be wrong.)

Of course, remember that today is simply the oral arguments for Raich v. Ashcroft. We won’t have the results probably until July.
Again, I’d love to hear from anybody who attends the arguments, and I’ll report more tonight.
Here are the two questions I hope will be asked of Acting Solicitor General Paul Clement by the Justices:

1. If Congress has the power to regulate this activity, doesn’t that mean it has the power to define any activity it wishes as being under federal jursidiction? Can you list any activities that it would not be able to control?
2. How can you say that wholly intrastate non-commercial use of medical marijuana substantially affects interstate commerce in drugs, while the possession of a gun in a school zone does not substantially affect interstate commerce in guns? Or do you suggest we overturn Lopez?

This is, in part, where this case hangs. The respondents have given the government several ways to affirm the 9th Circuit decision without even overturning Wickard. However, the government’s case is pretty weak in that there’s no real way to justify supporting the government’s position without making a radical change in Supreme Court case law regarding the commerce clause.

“I can see the day comin’ when even your home garden’s gonna be against the law.”
-Bob Dylan

Good article by Fred Gardner in the weekend edition of Counterpunch: Ashcroft v. Raich: Medical Marijuana and the Supremes
One important point that Fred caught — something I had noticed in my first reading of the government’s brief, but hadn’t commented on:

Among the feds’ arguments is one usually left unspoken: prohibition serves the interests of the pharmaceutical corporations. As expressed in the Solicitor General’s brief, “Excepting drug activity for personal use or free distribution from the sweep of the CSA would discourage the consumption of lawful controlled substances.” It would also undercut “the incentives for research and development into new legitimate drugs.” That’s as close as the government has come to acknowledging that wider cannabis use would jeopardize drug-company profits.

And that’s where the compelling government interest truly lies. (There’s no other logical reason to explain why the government has acted in such a bizarre manner regarding medical marijuana.)
Fred Gardner also explains the Rehnquist part of the equation (and he will not be at the oral arguments):

The absence of Chief Justice Rehnquist (undergoing treatments for cancer) works to Raich’s advantage. As a young lawyer in the Nixon White House, Rehnquist helped write the Controlled Substances Act. His questions during the OCBC [U.S. v. Oakland Cannabis Buyers Cooperative] oral argument were overtly hostile. And he’s considered results-oriented (fight the war on drugs) rather than principled (curtail the overarching commerce clause). Of course Rehnquist could still read the transcript and vote on the Raich case, even if he’s too sick to attend the oral argument. He could even write an opinion (or have his law clerks do so)… If there’s a 4-4 tie, the opinion of the 9th Circuit stands, but doesn’t become binding authority on the rest of the country.

Update: By the way, if anyone’s actually going to be attending the oral arguments on Monday morning, I’d love to hear from you.