Monday, May 20, 2013

Is the justice system blase about injustice?

Imagine that you are a police commander, a judge, or the elected district attorney. You learn that an evidentiary tool that is used by your personnel, or the witnesses who testify before you, is unreliable. What do you do? Do you try to stop the use of that tool? Or are you content to continue to allow it to be used -- perhaps to convict the innocent or equally bad, free the guilty?

McClatchy Newspapers have found that one of the common types of "polygraphs," popularly known as a lie detector, was known to be unreliable for years, but continued to be used. Many in the justice system knew of reliability problems but did nothing about it. Other agencies claim they did not know about the problem.

Despite the scientific skepticism, intelligence and law enforcement agencies see polygraph as useful in obtaining confessions to wrongdoing that wouldn’t otherwise be uncovered. Fifteen federal agencies and many police departments across the country rely on polygraph testing to help make hiring or firing decisions. Sex offenders and other felons often undergo testing to comply with probation or court-ordered psychological treatment. Police detectives and prosecutors rule out criminal suspects who pass and scrutinize those who don’t.

I think the answer to my question, "Is the justice system blase about injustice?" is yes. Who, in the system, has a conviction that the courts will usually and routinely come up with the right answer and a just resolution? I don't think that is widely held. I think most who work in the criminal justice system are inured to injustice. It is kind of like the adage you sometimes hear in government agencies, "Close enough for government work."

One scientist is quoted saying,
“The insidious thing is that this phenomenon biases tests against the innocent, and the government knows that,” said Honts, who’s worked on research for a Lafayette competitor. “This is just another example of science being ignored.”

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Friday, May 03, 2013

Medical marijuana can treat infantile seizures -- the tragic price of federal delay of medical use of marijuana

The Washington Post produced an excellent 10 minute video on the use of specially bred strains of medical marijuana to treat infantile seizures that, untreated, lead to catastrophic developmental delays and disabilities. It features an Indiana family bankrupted by the costs of the conventional and ineffective treatments choosing to move to Colorado where legal, regulated medical marijuana is available for pediatric care.

A mother wonders, if the heavy stigma that surrounds the medical use of marijuana had been removed years ago (California passed its medical marijuana law in 1996. DEA's Chief Administrative Law Judge ruled in favor of medical marijuana in 1988!) would she have sought treatment for her boy at a much earlier age, sparing him the disability he suffers from? Her 10 year-old boy, after a decade of the "conventional," FDA-approved medications, now functions at the level of a 4 year-old, still not toilet trained nor able to recognize colors or letters.

Everyone laments that the FDA is not involved in the research and development of these treatments. That FDA involvement is not the fault of the babies, their parents, their doctors, or the medical marijuana researchers. The non-involvement of the FDA is fundamentally the fault of President Barack Obama, HHS Secretary Kathleen Sebelius, and Attorney General Eric Holder (whose wife is a widely respected physician).

The Obama Administration has disregarded the political advantages of endorsing a scientific embrace of medical marijuana in order to appease law enforcement bureaucracies and lobbyists from numerous law enforcement officer organizations such as the Fraternal Order of Police. I think it is plausible that the Administration has also been influenced by the politically powerful pharmaceutical industries which are likely to lose market share for numerous product lines if medical marijuana is legal at the federal level, but I have not seen evidence that documents this hypothesis.

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Maryland becomes 19th medical marijuana state on May 2nd. In neighboring D.C. dispensaries are poised to open.

On May 2, 2013 Maryland Governor, Martin O'Malley, signed an act making Maryland the 19th medical marijuana state. Delegates Cheryl D. Glenn (Baltimore City) and Dan K. Morhaim, M.D. (Baltimore County) are the legislative heroes in overcoming the Governor's and state Health Secretary's resistance to the bill. The bill passed with overwhelming bipartisan votes in the House of Delegates and Senate, having been supported by the Maryland State Medical Society and the Legislative Black Caucus of Maryland, among others. Implementing the bill, H.B. 1101, creating a program of clinical medical marijuana at "academic medical centers," is going to be time-consuming.

Morhaim, has championed the legislation for a decade, since former Delegate Don Murphy (R-Baltimore County) led the fight for the Darrel Putman Compassionate Use Act, enacted in 2003. Murphy later traveled around the nation working to convince Republican governors and state officials to support medical marijuana under the aegis of Republicans for Compassionate Access.

Meanwhile, in the District of Columbia, medical marijuana dispensaries, originally authorized by a public referendum in 1999, are going to open very soon, according to an article in the Washingtonian magazine and a report on NBC4TV. These stories report about Capital City Care in the NoMa section of D.C. near the NoMa/New York Avenue Metrorail station, and the Takoma Wellness Center in Takoma neighborhood of D.C., near the Takoma Park Metrorail station.

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Thursday, May 02, 2013

What reports of the Boston marathon bombers' marijuana use tell us about America

The Washington Post profiled the Tsarnaev family on  its front page on April 28, 2013. Both of the Tsarnaev brothers are reported to have been frequent marijuana smokers, although the older brother gave it up several years ago. Perhaps what is most striking about the reportage is that for every person interviewed, the brothers' marijuana use is held out as one of the strongest signs of their other-wise normal "American-ness."  It seems everyone who knew them characterized their embrace of pot smoking as evidence of their integration into the norms of American student life in high school and college -- even if they sometimes were obnoxious neighbors throwing loud, drunken parties. All the statements flatly contradict the myths of 1930s anti-marijuana ideology still repeated in law enforcement anti-drug classes that marijuana use is a tip-off to or cause of deep deviance. To the contrary, to those who knew Tamerlan, they saw his changing personality to the tortured soul who goes off to Dagestan in the fact that he stops using Cannabis. This description of marijuana use as the mark of the well-adjusted young American adult is remarkable in several ways.

First, those who are reporting what they know about the Tsarnaev brothers are not reporting Cannabis use as deviant or threatening. Second, indeed, when Tamerlan Tsarnaev said he was no longer going to be using Cannabis, this was seen as suggestive of dark, threatening changein his personality. Third, the reporters transmitting these interviews in their newspapers are utterly blase about these interpretations. No one is even commenting that pot use is normative. Rather the implication is that dramatically and inexplicably abandoning pot use  is consistent with adoption of a terrorist ideology.

Given how marijuana use is being characterized in what is, to date, the most heinous crime of the year, if there ever had been a consensus that marijuana use is wrong or at least a mark of deviance, there is almost a complete absence of any evidence that anyone feels this way anymore -- even when the marijuana users are presumed to be cop-killing mass murderers!

There is a conclusion that must be drawn. The prohibition on the use of marijuana is itself immoral not only because it infringes on the inherent autonomy of individuals to make choices that are not harmful to others (which is true), but is immoral because the state lacks the moral authority to deprive liberty for conduct that is not wrongful. This is a subtle but important distinction.

There is not yet an American consensus that people have the "right" to use marijuana the way there is a consensus that there is a First Amendment right to choose a book to buy in a bookstore. But there is a consensus, I think, that the government has no authority to punish behavior that is not wrongful because the U.S. and state constitutions never convey such authority to the government. For example, if meat-eaters, lets say elected a majority of the legislature, they would not have the constitutional power to provide for imprisonment of persons who eat soybean-based artificial meat. No matter what kind of health or safety rationale was proposed to ban soybean meat, the eating such products is not wrongful and cannot constitutionally be punished.

What the conversation about marijuana in the Tsarnaev case tell us is marijuana use is widespread and normal, and not evidence of or suggestive of immoral or violent behavior -- indeed, the opposite!

Behavior that the public does not believe is wrong, cannot be punished in the name of that public. Courts should be able to rule when a law no longer enjoys a moral consensus, they have the power to invalidate the continued enforcement of that law if that enforcement deprives people of liberty by subjecting them to imprisonment.

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