Thursday, June 30, 2011

Student Conference in Washington, July 6 & 7 -- Any consequences?

It is the summer of 2011, and Campus Progress is coming to Washington July 6 and 7! Should any one care?

The U.S. is at war in Afghanistan -- the longest war in U.S. history. In our newest "not war," the U.S. is bombing Libya under the flag of NATO (but the President says this is not "hostilities" because there are no American forces on the ground and only few casualties). And the U.S. is sending drones to attack targets in Pakistan, Yemen and the Somalia. Is this conforming to an oath to preserve, protect and defend the Constitution that provides that Congress declares war? (Query: Could Japan have said that there were no hostilities when it bombed Pearl Harbor in 1941 because it had no troops on the ground and only 55 casualties?)

The national rate of unemployment remains at levels comparable to those last seen in the Reagan recession of 1981-82 -- thirty years ago!

American families have lost about $9 trillion in their wealth -- value of their investments such as their home, their pension fund, their savings.

June has been one of the hottest in history. Floods ravage the American heartland. The evidence of global climate change, abetted by human activity, smacks us in the face.

America is the home to one-quarter of all the world's prisoners -- not China, not Russia, not Iran, not Cuba.

America wields its drug policy like a scythe among young people of color -- imprisoning them and imposing life long criminal records by the hundreds of thousands that stop the opportunities of higher education, of lawful employment, of credit, of housing, of advancement, of creating opportunities for family and children, and deny the right to vote!

The Congress is in a state of partisan gridlock. Accomplishing the most basic tasks seems to require a Herculean effort -- to confirm the President's nominees to run government agencies, to adopt a budget, to appropriate the funds for government programs and agencies, to oversee the activities of the government.

Fortunately, what in modern decades has been America's most politically dynamic class -- its progressive students -- are meeting in Washington on July 6 and 7 under the auspices of Campus Progress.

Are the students poised to adopt a resolution, on behalf of America's youth or the families that sent them, that sets forth their demands for economic, political and social reform?

Will these political savvy and aware students present, debate and adopt a manifesto outlining their vision of a vital America: a nation moving toward to a sustainable future, protecting civil liberties and human dignity, and balancing opening opportunities for entrepreneurs with assuring that private and public resources are adequately devoted to care for those who have handicaps, illness, and who are unable to have their needs met by their own hard work and savings?

Here's a link to the agenda of Campus Progress.
Does this look like healthy debate or preaching to the choir?
Does this look like an opportunity to stand for something or for the off-spring of the affluent to add to their resumes in support of becoming apparatchiks for the professional progressives?

On the conference program there is no congress of students.
On the program, there is no opportunity for students to adopt an agenda for action.

Does this look like an occasion for progress? Or does the agenda read like a festival for the passive absorption of the assorted wit, outrage, cant, and self-congratulation by a few bright lights of the progressive left?

Can these students breakout of the straight jacket of the agenda? Can they tap the outrage of our current condition? Or are they lining up to get autographs, distribute resumes, and to out-hustle one another for a job?

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U.S. Sentencing Commission approves retroactive crack sentencing guidelines

On June 30, 2011, the U.S. Sentencing Commission unanimously adopted proposed sentencing guidelines that, effective Nov. 1, 2011, would allow prisoners to petition to modify their sentences. This is good news because some law enforcement groups had opposed this move. This is good news because perhaps 12,000 current federal prisoners may get their very long sentences reduced by an average of three years! This is good news because this is one of the biggest steps that the Sentencing Commission could take.

But, sadly, this step is only a small step in the longer journey for justice. First of all, this change will have no effect on the statutory mandatory minimums. Those who are serving a 10 year sentence because they were convicted of distributing, or conspiring to distribute 50+ grams of crack cocaine, will still have to serve the 10 years. Even though the new mandatory minimum sentence starts at 280 grams, because Congress did not make the Fair Sentencing Act of 2010 retroactive, the statutory minimum sentence in effect at the time of the defendant's crime is not going to change. Congress may have recognized that sentences of 10 years for less than 280 grams were unjust, by contemporary standards, by changing the law but they did nothing about those cases already decided over the previous 24 years.

But the second, and bigger, point is that the enormous focus on the sentencing of crack cocaine cases has been tragically misplaced, because it has focused on the wrong "end" of the justice system. The heart of the problem is that U.S. Attorney offices around the country bring small-scale cocaine cases in federal courts where they can get extraordinarily harsh sentences because of the small quantity triggers (now 28 grams and 280 grams for minimum sentences of 5 and 10-years). A boatload of cocaine seized by the Coast Guard might contain one ton, that is, 1,000,000 grams! The team that organized that shipment is a large scale dealer and they belong in federal court. Small cases do not belong in federal court.

The thousands of small cases brought every year mean that DEA agents and other federal investigators and prosecutors are not working on major cases. Sadly, it seems everybody in Justice and Congress is satisfied with the handful of agents bringing a handful of major cases in a year.

Major cases are vitally important because the people involved are often involved in assassinations of police and political leaders, wholesale bribery and corruption, extensive money laundering, fabulous tax evasion and so forth. But federal agents are unavailable to do those cases when they are busy with thousands of neighborhood crack dealers (and their girl friends) -- dealers who are easily, quickly, and usually replaced soon after their arrests.

People concerned about the "injustice" of the excessively long "crack" sentences should focus their outrage on the U.S. Justice Department which tolerates wasting expensive federal anti-crime resources on unimportant criminals, not be outraged at the federal judges or the sentencing guidelines that have nothing to do with case selection.

Many fewer that one in a hundred American "criminals" go to federal court. The offenders who go to federal court should be those who commit terribly serious crimes. The federal cases should be those involving very complex schemes that require the smartest attorneys and investigators to unravel, and those that have nationwide or international implications.

A guy selling crack cocaine out of a local crack house does not belong in federal court. The crack was probably made in the back room of the crack house or a few blocks away. Local cases belong in local courts. Even the guy who is the biggest crack dealer in the city typically does not belong in federal court. If the Justice Department succeeded in shutting down the operators of the international cocaine pipeline that has been keeping every crack house in America fully supplied then it might be appropriate for it to work on totally local cases.

I commend the U.S. Sentencing Commission for having the courage to make the changes that it can in the face of continued political grandstanding about "crack dealers." Today, a lot of minor criminals selected almost at random by the Justice Department and now serving inordinately long sentences will have a shot at getting home to their families a few years sooner. This is not trivial.

But I fear that too many justice advocates and legal commentators will behave as though this is a problem of the justice system that is now largely solved.

In a way, this is kind of the like distinguishing those who are hurt and those who are responsible in the current financial crisis that has been going on for the past three years. American families lost $9 trillion in wealth in the lost value in their homes, pension funds, investments, etc. Tens of millions of Americans lost their jobs and are still out of work. So unable to pay bills, they are getting evicted from apartments and homes, and being foreclosed on. But the leaders and players in the financial industry who were responsible for the decisions that brought about the calamity are getting record bonuses and salaries, and not being brought into court to fight for their life savings.

Why does our political system not demand accountability from the powerful when they misbehave, but harshly punishes the the low-level people when they go bad?

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Friday, June 24, 2011

Ending Federal Marijuana Prohibition Act of 2011

On June 23, 2011, U.S. Representatives Barney Frank (D-MA), Ron Paul (R-TX), Steve Cohen (D-TN), John Conyers (D-MICH.), Barbara Lee (D-CA) and Jared Polis (D-CO) introduced H.R. 2306, a bill to end the federal prohibition on the possession, cultivation, distribution, importation and exportation of marijuana.

This is a remarkable bill for several reasons. First, the bill would truly and completely decriminalize marijuana under federal law. Unlike state laws that reduce the penalty for possession of marijuana from a criminal offense to a summary offense or violation like a traffic offense, there would be no federal violation for possessing or growing marijuana. For example, it is not a federal offense to drive too fast on a federally-funded highway -- it is only a violation of state law. Under this bill, it becomes solely a matter of state law whether one can possess or grow or sell marijuana.

Second, by removing marijuana from the Controlled Substances Act, one of the major impediments to state medical marijuana laws would be removed! If enacted, there could no longer be any argument that the state medical marijuana law is in "conflict" with federal law. The bill does not address any issues of regulation of marijuana as a "drug" under the Federal Food, Drug, Cosmetic and Device Act.

Third, I can recall no bill introduced in Congress to end federal marijuana prohibition since the enactment of the 1937 Marijuana Tax Act effectively created marijuana prohibition. There may have been such a bill before I came to Washington in 1979, but I don't think so. And there certainly has not been such a bill since 1979 when there were still proposals to reduce the penalties for marijuana possession to a summary offense.

Fourth, the language of section 2 of the bill is fascinating. It is an almost word-for-word re-enactment of a famous bill from 1913, the Webb-Kenyon Act. That law, enacted over the veto of President William Howard Taft, was, curiously, a key political achievement of the "dry" forces in their drive to create alcohol prohibition. The Webb-Kenyon Act brought federal enforcement into support of state alcohol controls by making it a federal offense to bring alcohol into a state in violation of the state law. This was an early entry of federal law enforcement into the interstate commerce arena. President Taft vetoed it because he thought it was unconstitutional!

The Supreme Court upheld its constitutionality in 1917 in Clark Distilling Co. v. Western Maryland Railroad Co., 242 U.S. 320 (1917).

A question that the 1913 law created was whether states could become "bone-dry," and totally forbid the importation of alcohol to prevent possession and consumption of alcoholic beverages. Was this an interference by the States in "interstate commerce." It was upheld, and federal law enforcement could be enlisted to prosecute the shipment of alcohol into dry states.

In 2011, because of the global traffic in marijuana, this provision assures states that choose not to legalize marijuana, that federal resources will help them carry out their prohibitions regarding the interstate or international transportation of marijuana. The states would not be abandoned to having to fight the global traffic in marijuana by themselves if they want to continue to prohibit marijuana. This section would not authorize a federal prosecution for growing marijuana in a state, even when the state continues to prohibits marijuana.

Marijuana, in sum and substance, would be removed from the Controlled Substances Act!

The bill does not withdraw the U.S. from the United Nations Single Convention on Narcotics of 1961 and the other international treaties that purport to outlaw the non-medical use of Cannabis. But those treaties are not self-executing. The U.N. can't "enforce" violations of the treaties.

At this moment, the legislation has little immediate future. The Republican leadership of the House Committee on Energy and Commerce and the House Committee on the Judiciary to which the bill has been referred is unlikely to take up the bill. A companion bill has not been introduced in the U.S. Senate. The challenge for supporters of the bill is to get additional Members of the House of Representatives to co-sponsor the bill, to get newspaper editorial boards and columnists to endorse the bill, and to get the endorsement of the bill by a variety of organizations -- from police and medical organizations to Chambers of Commerce and Parent Teacher Associations.

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Friday, June 17, 2011

Marking the 40th Anniversary of the War on Drugs

Alternet graciously published my overview of the war on drugs on the 40th anniversary of President Nixon's message to Congress that launched it.

My 1-hour interview on "Culture Shocks" radio with host Barry Lynn is now being played in a continuous loop.

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Friday, June 10, 2011

Have you (or someone you know) been hurt by the war on drugs?

Have you or someone you know been raided, shot, maimed, killed, infected, deported, abandoned, orphaned, widowed, evicted, profiled, disenfranchised, robbed, burglarized, jailed or imprisoned, overdosed?

This message is from U.S. Rep. Jared Polis (D-Colorado):

The drug war is a waste of time, money, and resources. Worse, though, it ruins lives.

The enduring legacy of the war on drugs will forever be the horrible impact it has had on the people and families who have seen terrible, outsized punishment for minor, non-violent infractions.

That's why I'm going to make a stand. On June 14th, I'm making a speech from the House floor demanding that we bring this counterproductive war to an end. To make my argument, though, I need your help.

Tell me how the war on drugs has negatively affected your life, or the life of a loved one, now.

I'll read some of the most compelling stories as part of my speech on the House floor. And, of course, I will not reveal any private information like your last name.

It's really important for me to have these stories to share. They can illustrate better than any statistic that this war isn't really a war on drugs. It's a war on the Americans who use drugs.

Drug addiction is a serious problem and, while there can be a criminal component, our lawmakers should address individual drug use as the health problem it is instead of investing billions to incarcerate with no intention to rehabilitate.

So, whether the war on drugs has caused you or a loved one to be put in jail, thrown out of school, or lose a job, please share that experience with me so I can include it in my speech. While it may be too late to undo the pain you've gone through, it's not too late to prevent it from happening to someone else:



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What did Congress mean by "cocaine base?"

In August 1986, I wrote H.R. 5394, and House Report 99-845 (Part 1) to accompany that bill, when I was assistant counsel to the Subcommittee on Crime of the House Judiciary Committee.

H.R. 5394, "the Narcotics Penalties and Enforcement Act of 1986" became sections 1001 through 1105 of "the Anti-Drug Abuse Act of 1986," (P.L. 99-570) in other words, the infamous crack cocaine mandatory minimum sentences.

At the direction of the Subcommittee, in the bill I used the words "cocaine base" for "crack" because crack was a street or slang term not appropriate for use in the statute. Congress understood that "cocaine base" meant "crack." All other forms of cocaine were cocaine, which itself was redefined in section 1867 of the Anti-Drug Abuse Act to be a very encompassing definition found in 21 U.S.C. 812 (c) Schedule II (a)(4) and 21 U.S.C. (b)(1)(A)(ii). We referred specifically to "crack" on page 12 of the House Report.

Yesterday the U.S. Supreme Court came up with a somewhat different answer, in an unanimous opinion by Justice Sotomayor, in the case of DePierre v. U.S., 564 U.S. ___ , (No.09-1533) (2011).

I have lost track of the number of times laws that I have written between 1981 and 1989 dealing with drugs, gun control, pornography and other issues, have been reviewed by the U.S. Supreme Court, but you would think that at some point, someone involved in these cases would ask me what the Congress intended in enacting the statute that I wrote for it.

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Thursday, June 02, 2011

June 17, 2011, 40th Anniversary of President Nixon’s Message to Congress Launching the “War on Drugs”

M E M O R A N D U M:

To: Reporters, Columnists, Editorial Boards, Managing Editors

From: Eric E. Sterling, President, Criminal Justice Policy Foundation

Re: Issues for Stories and Analysis on 40th Anniversary of Pres. Nixon's Message to Congress

The “War on Drugs” is 40 years old this month. What have been its successes and failures? How much has it cost? Did it produce a strategy for victory over what President Nixon called “America’s public enemy number one”?

Do the dangers of drugs warrant a war? Have the fears of drugs been exploited for political purposes? Have warnings about drug use been properly presented to the right target populations?

Since 1971, Presidents Nixon, Ford, Carter, Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama, and the Congress have initiated a variety of strategies, most under the label, the “war on drugs.” They have had White House coordinators. Is our anti-drug effort being managed any better now than when President Nixon decried bureaucratic red-tape and jurisdictional disputes among agencies?

Have Nixon’s goals to reduce the number of deaths from drugs and to expand drug treatment been accomplished? Have Nixon’s goals to make the “traffic in narcotics…no longer profitable” and to “destroy the market for drugs” been achieved? Does this strategy make drugs less or more profitable?

In your community, what has been the legacy of 40 years of the “war on drugs?” Who has benefited from this program and who has been hurt? How much does it cost your community to carry on this fight? Is it money well spent?

Have the burdens of drug addiction or drug enforcement fallen harder on people of color or the poor? In your area, if some areas suffer more than others, what explains those differences?

What is the prognosis for mitigating or solving the problems created by the “war on drugs?”

On June 17, 1971, President Nixon sent a 5300-word message to Congress “to consolidate at the highest level a full-scale attack on the problem of drug abuse in America.” He warned, “If we cannot destroy the drug menace in America, then it will surely in time destroy us.”

He created a Special Action Office on Drug Abuse Prevention (SAODAP) in the White House, authorized for three years with the option of extending its life for an additional two years.

This new coordinating office (we use the short hand, “czar,” for such efforts now) would eliminate “bureaucratic red tape, and jurisdictional disputes among agencies” in order to “mount a wholly coordinated national attack on a national problem.”

While Nixon used language such as “I will ask for additional funds to increase our enforcement efforts to further tighten the noose around the necks of drug peddlers,” he also spoke of drug users as “the people whom society is attempting to reach and help.” He wanted the SAODAP to “extend its efforts into research, prevention, training, education, treatment, rehabilitation…”


Nixon asked for an additional $159 million dollars for his initiatives, plus an unspecified amount to pay 325 additional positions in the Bureau of Narcotics and Dangerous Drugs (forerunner to the DEA).

Over the past 40 years, with leadership from successive presidents and “drug czars,” and enthusiastic support from Congress, the Federal government has spent, cumulatively, about a half trillion dollars on the “war on drugs.” By FY 1975, federal anti-drug spending had climbed to $680 million. For the past 20 years, Federal spending on drugs has exceeded $15 billion per year including the costs of imprisonment.

The costs are now so high, the “drug czar” seems to conceal almost one-third of the anti-drug spending by excluding it from the formal anti-drug budget. ONDCP says that $14.8 billion was spent in FY 2009 to fight drugs. But another $6.9 billion was actually spent in FY 2009 on fundamental anti-drug activity such as the incarceration of federal drug prisoners.

The FY 2011 formal anti-drug budget request is for $15.5 billion, excluding imprisonment and the other costs which remain concealed in the budget submission.

The cost of imprisoning federal drug prisoners has been over $3 billion annually since FY 2008. On May 19, 2011 the total federal prison population exceeded 215,000. As of April 23, 2011, 50.9% of convicted federal prisoners were drug offenders.

Economic impact

Nixon wanted research and “development of necessary reports, statistics, and social indicators for use by all public and private groups.” Do we have sufficient knowledge of the drug problem?

Do we know what it has cost the economy that tens of millions have criminal records, and earn so little that they are unmarriageable and can’t obtain credit? What has it meant, for example, to American automakers and unions that instead of the 200,000 prisoners in state and federal prisons in 1972, there are about 1.6 million adults in prison now (and another 600,000 in jails)?


In his message, Nixon lamented 1000 narcotics deaths in New York City in 1970. There were an estimated 38,000 drug overdose deaths nationwide in 2007.

Drug use

Nixon did not say how many drug addicts there were. But he said his initiative “must be judged by the number of human beings who are brought out of the hell of addiction, and by the number of human beings who are dissuaded from entering that hell.” He did not say how many non-addicted drug users there were but he said these steps would “strengthen our efforts to root out the cancerous growth of narcotics addiction in America.” The reality that the majority of drug users were not destined to become addicts was not understood or was disregarded.

Notwithstanding these efforts, drug use continued to grow, especially marijuana use, and later cocaine use. In 2009, there were 21.8 million users of illicit drugs.


Nixon asked for $14 million “to make the facilities of the Veterans Administration available to all former servicemen in need of drug rehabilitation.” Are we anywhere near meeting the needs of Veterans with substance abuse disorders today?

International initiatives

A major feature of Nixon’s message stressed the need for international cooperation. He imagined that it was realistic to propose an “end opium production and the growing of poppies” as an international goal. He noted the strong U.S. backing of the “United Nations effort against the world drug problem.”

Has the “balloon effect” has rendered successes, such as the elimination of Turkey as a source of illicit opium and France as a center of heroin production for U.S. consumption, into disasters for emerging producing states? Was the bloodshed in Mexico, and increasingly in Central America, predictable?

Does the international control regime continue to make sense? Are nations in Europe and Latin America slowly abandoning the principles of the U.N. narcotics treaties in favor of harm reduction, recognition of individual liberty, and regulated distribution and use?


State legislatures continue to pass medical marijuana laws. In November 2010, in California, 46.5 percent of the voters supported legalizing marijuana, and polls revealed that 30 percent of “no” voters said they supported legalization, but not in the form of Proposition 19 that was on the ballot.

Public support for this important and expensive public policy is in flux. Many states are recognizing that the costs of punishment and imprisonment are now excessive.

This 40th anniversary is an opportunity for America’s journalistic leaders to examine and comment on a serious public health problem that still suffers from the stigma once associated with leprosy, tuberculosis or AIDS.

Please contact me if you are interested in writing on this. I can also refer you to additional sources. Eric E. Sterling, cell 301-589-6020,

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Is this true? Obama Ad is "more concerned with wellbeing of criminals than with the safety of our communities."

On June 1, 2011, U.S. Attorney General Eric Holder urged the U.S. Sentencing Commission make retroactive the revised sentencing guidelines to cover prisoners previously sentenced under the long mandatory drug sentences that were modified by the Fair Sentencing Act of 2011, if there were no weapons or other factors involved in the case.

U.S. Rep. Lamar Smith (R-Texas), is Chairman of the House Committee on the Judiciary. His statement responding to Holder is riddled such preposterous accusations, such as the above, as well as blatant misstatements of the law, as noted by Prof. Doug Berman at his Sentencing Law and Policy blog.

One should note, by the way, that Rep. Lamar Smith is a Member of Congress especially sensitive to bias and inaccuracy in public statements, especially if they are made by the news media. (The majority of his Floor and Committee Statements, as identified on his Congressional website, are criticisms of major news media for bias.)

Rep. Smith was the sole Member of Congress to speak on the floor against the Fair Sentencing Act of 2010 last year.

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Global Commission on Drug Policy

This is important.

This is a very balanced and yet very strong indictment of the status quo, and an intelligent suggestion of the way forward. This outstanding, short report from the Global Commission on Drug Policy is the big drug policy news this week!
The report is in English and Spanish. Take the time to read it.

The Commission includes some global heavyweights:the current Prime Minister of Greece, George Papandreou, former UN Secretary General Kofi Annan, from the U.S. -- Paul Volcker (former Chair, Federal Reserve Board), George P. Shultz (former US Secretary of State, Treasury and Labor under Republican presidents), John C. Whitehead (former Deputy Secretary of State under Pres. Reagan, former chair of Goldman Sachs), former Presidents of Brazil, Switzerland, Mexico, and Colombia, other former top United Nations and government officials from around the world, and intellectuals and business leaders.

Link to it on Facebook, blog about it, write LTEs about it, call your favorite talk radio show to talk about it.

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