Wednesday, November 28, 2012

Rural judge forced to sentence over 1000 to federal mandatory sentences

U.S. District Judge Mark W. Bennett (Northern District of Iowa) laments in The Nation to unjustly sentencing over 1000 low-level drug offenders to long sentences in federal prison because of mandatory sentencing laws. Judges are discouraged from speaking out about policy, but this is a courageous statement by a courageous judge.

He writes about the devastation that this causes to families, and its inherent injustice.

He could also have written about the extraordinarily wasteful expense. In 2010, the operating cost to house the average federal prisoner for a year was $25,500. To house the 1000 prisoners that he sentenced to a mandatory sentence costs $25.5 million per year. (He has sentenced thousands more prisoners to non-mandatory drug sentences). If the average of the sentences for those thousands -- some got the 5 year minimum, some got the 10 year minimum, and many got many years more than the minimum under the sentencing guidelines -- was ten years, then we would be talking about a quarter billions dollars to house just the prisoners that this single judge has sentenced. This cost is many multiples more than the Congressional Budget Office estimated in 1986 that the Narcotics Penalties and Enforcement Act of 1986 would cost. The CBO estimate, for the fifth year after this law was enacted, would amount to $27.7 million. This terribly mistaken law has now been in force for 26 years, with no prospect that it might be revised soon.

(Long-time readers of this blog know that 26 years ago the House-version of this law, a key feature of the Anti-Drug Abuse Act of 1986, came out of my word processor when I was assistant counsel to the House Judiciary Committee. I have been working to repeal the law since 1989.)

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Wednesday, November 07, 2012

Washington and Colorado voters approve marijuana legalization

On Nov. 6, 2012, roughly 55 percent of voters in both Washington State and Colorado passed initiatives to legalize marijuana for social use. Washington's Initiative 502 is described here and Colorado's Amendment 64 here.

UPDATE (Nov 13, 2012): The Washington Post published my LTE urging the Justice Department to take a "wait and see" approach to the new laws.

UPDATE (Nov. 28, 2012): Washington’s measure (I-502) received 55.7 percent to 44.3 percent. Colorado’s measure (Amendment 64) passed 55.32% to 44.68%. These are overwhelming margins, and politicians know it! The combined votes in those two states resulted in more votes for marijuana than for Barack Obama! Oregon’s Measure 80 lost, but by a much smaller margin (46.89% to 53.11%) than pollsters predicted.

It will cease to be an offense in Washington to possess an ounce of marijuana or less after Dec. 6, 2012. Authorities in Washington will have a year to develop regulations for the production and sale of marijuana in licensed premises. The initiative does not provide for individual home cultivation, although the medical marijuana law does provide for patients to cultivate.
Here is a useful FAQ.

The Colorado law takes effect on the day that the vote is "proclaimed" by the Governor pursuant to the Colorado Constitution. Persons over 21 years of age may possess and use marijuana, and they may grow no more than 3 mature plants (6 plants total) and retain the harvest, but may not distribute it other than to give no more than one ounce to a person over 21 for no remuneration. By July 21, 2013, the state shall adopt regulations to govern the large scale cultivation, production and distribution of marijuana for remuneration. Local governments are authorized to write time, place, manner related regulations for marijuana distribution facilities.

Obviously there are a lot of local details to work out in each state.

On Nov. 7, 2012 the U.S. Department of Justice issued a statement that marijuana possession, cultivation and distribution still violated federal law and that law will be enforced. Clearly this is not the last word on the federal government's response.

Indeed, no one can predict exactly how the federal government will respond. While the legal route is probably clear, the politics are not. Legally, the state laws violate the Single Convention on Narcotics to which the U.S. is a signatory. Thus the U.S. has a treaty obligation to enjoin the states from carrying out their laws. However, there is no authority in the United Nations to force the U.S. to do this. While Article VI of the Constitution provides that treaties (like federal laws) are "supreme Law of the Land," we know that the Supreme Court has held Acts of Congress to be unconstitutional. The Supreme Court may be asked to weigh the powers reserved to the States under the 10th Amendment to the Constitution against the treaty obligations at some point. Of course, counsel in the Justice Department could conclude that the restrictions of the treaties intrude to far into our domestic law, and not defend the treaty against state claims, but that would be an unlikely outcome, both legally and politically.

I think it is probable that the federal government will bring suit to enjoin Washington and Colorado from carrying out the licensing provisions of their new laws, and I think it is likely that the lower federal courts will rule for the federal government. If legal cultivation and sales get underway in CO and WA, they will supply distributors throughout the nation because their costs are likely to undercut illegal growers elsewhere, and the price of marijuana across the nation will go down, perhaps quite dramatically. This is the prediction of Jonathan Caulkin, Mark Kleiman and Beu Kilmer, three of the co-authors of the excellent book, Marijuana Legalization: What Everyone Needs to Know, (Oxford Univ. Press, 2012).

Is there likely to be an increase in illegal marijuana cultivation in these states for distribution elsewhere in the U.S. by those hoping to escape state prosecution and anticipating that federal prosecution can't meet the extent of the law breaking?

Will either of these states start collecting sales tax, excise tax and other revenues? Not if the feds can block their programs, which gives the state authorities a powerful incentive to resist the federal suits.

A very important question is how the rest of the world will react. Mexico in particular may quickly conclude that they could reduce if not eliminate the bloody conflict among their criminal organizations and against the society if they were no longer being fueled to a significant degree by illegal marijuana sales, according to a Christian Science Monitor report. Alesandro Madrazo, a Mexico City law professor, predicted at a conference at The Brookings Institution on Oct. 3, 2012, that Mexico would fairly quickly legalize  marijuana in response to U.S. marijuana legalization.


The Washington Post reports that  Luis Videgaray, the head of transition for the incoming President of Mexico, Enrique Pena Nieto, said “These important modifications change somewhat the rules of the game in the relationship with the United States.”  “I think that we have to carry out a review of our joint policies in regards to drug trafficking and security in general.

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Friday, November 02, 2012

SUBURBAN teenager heroin epidemic

NBC News reported on on June 19, 2012 on suburban teenagers buying heroin and dying -- the kind of kids one would see in a "suburban shopping mall," in contrast with the heroin "addict" stereotype we "associate with mean streets of city life." At no point does the white reporter or the white police sergeant -- who says the drug buyer could be "anybody's daughter" -- describe the race of the drug buyers ("not what you picture," he said). But the implication is clear.

Sadly, aside from the inevitable hyping of the story by television news because that is the convention of the both the medium and the message, heroin is more available and being used more. Deaths among teenagers from heroin have increased from 198 in 1999 to 510 in 2009.

Unaddressed are the "why" and the "what do we do about it," because the answers are complex.

"What we do about it:"
* Dramatically increase the number and improve the quality of inpatient treatment for substance use disorders. The Heroin Action Coalition of Montgomery County, MD found that there were 100 beds for teenagers to get opiate addiction treatment in all of the state of Maryland.
* Recognize that a lot of teen heroin use starts with use or misuse of prescription pain relief medication which is leading to dependency and addiction.
* Educate patients and parents about the risks and proper use of pain medication.
* Educate doctors about the ease of patient misuse of pain medication. Demand that doctors be better trained, and that they follow-up with patients to whom they prescribe pain medication.
*Educate drug users about techniques to reduce the risk of overdose:

  • Don't mix drugs
  • Don't use drugs alone
  • Don't use drugs from an unfamiliar source
  • If you haven't used drugs in a while, don't use at the same levels as before you stopped.

*Assure that Naloxone (also called Narcan), the antagonist medicine that chemically interrupts opiate overdoses, is widely available.  Be sure it is in every police car, on every fire truck and ambulance, at every nurse's station and first aid station, at recreation centers, amusement parks, libraries and other public facilities, hotel desk clerks, barber shops, beauty parlors and nail salons, so that when their is an overdose taking place, friends, family, acquaintances -- even total strangers -- can readily get Naloxone for someone experiencing an opiate overdose. Change laws to make it available to people who want it in the first aid kits in their vehicles, workplace, schools and homes.

* Adopt Good Samaritan 911 laws to encourage illegal drug users to call 911 for an ambulance without worrying about arrest and investigation.

The "whys" of growing teen heroin are complex as well.
A major factor is the explosion in the marketing and use of prescription pain medication, especially opiod medication. Highly addictive drugs are being prescribed by physicians who have poor understanding of their uses and their risks. Told to use all of an anti-biotic medication for an ear infection, bronchitis, etc., they believe they should use ALL of a narcotic prescription. Often that is enough to get addicted. When the pain pills are gone and hard to get, heroin prevents the pain of withdrawal, i.e. "dope sickness." This increase in addiction increases the demand for heroin.

Drug epidemics are not random. A leading anthropologist of drug epidemics, Michael Agar, explained that dramatic changes in drug use patterns reflect a confluence of change in drug production, distribution and consumption. The chemical similarity between heroin and opiate medication means that changes in American pain medication patterns will also lead to changes in American heroin consumption and markets.

Most American heroin comes from Mexico. The six-year old assault on Mexican drug trafficking organizations, begun by President Felipe Calderon in December 2006, has produced a bloody war that is familiar to anyone who reads the newspapers. The war is expensive. Income comes from drug sales. The pressure to get the income to buy guns, ammunition, pay "soldiers," pay bribes, etc. demands more sales. This leads to a demand in Mexico to increase production.

There is now a feedback-loop in Mexico of the "war on drugs" leading to more production and sales of heroin to support the criminal organizations. They have a greater incentive to get heroin to the American streets.

The "long-term what do we do about it" requires ending the stigma on being addicted or dependent to drugs. The only way to end the stigma is to legalize drugs. As long as it is "illegal" to be a drug addict, there will be a stigma about it that will prevent people from getting into treatment. And this stigma also deters legislators from putting "tax payer money" into treatment for "criminals."

Legalizing opiates does not mean selling them like tobacco or alcohol. Alcohol sales offer a useful lesson in that various forms of alcohol are often sold under very different regulations. The system of distribution is often complex. In California, anything can be sold in a grocery store or supermarket. In other states, nothing can be sold in a supermarket. In Virginia, beer and wine can be sold in a supermarket, but not in Maryland.

Legal opiates should be available to people who are addicted in a system of "addiction management." Professionals will work with people who are addicted to help them manage their lives to avoid getting sick, hustling, committing other crimes, and being in conflict with friends and family. An "addict in management" won't be stealing from family, lying to them, or obsessed with getting dope and getting high. They will be restricted from their sharing drugs. They will be expected to meet their obligations, such as going to school if they are students, or going to work if employed. They will need to attend counseling if necessary.

At the same time, proper education of doctors and patients about the risks of addiction is fundamental. Instead of advertising drugs to create demand, advertising about harm reduction as a means for drug users to control use and help users balance the pleasure and medical use is required.

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Obama uses pardon power less than any President

Dafna Linzer, the award winning journalist, reports at ProPublica on how rarely President Obama uses his Constitutional power to pardon rehabilitated ex-offenders. These are fascinating stories and very troubling data. This is shocking nonfeasance.

The proper use of Constitutional power is a duty of the President. This account suggests an inexplicable indifference to both justice and mercy

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