Friday, June 28, 2013

New York's Mayor Bloomberg: "we disproportionately stop whites too much and minorities too little"

New York's mayor, Mike Bloomberg, is so fiercely defending the NYPD racially discrimnatory "stop and frisk" policy, his judgment has become impaired.
Today he said, "incidentally, I think we disproportionately stop whites too much and minorities too little." Look at this data and consider whether this makes any sense.

Two years ago I asked for a criminal and investigation of the New York City government, including Mayor Bloomberg and the NYPD leadership, by the Civil Rights Division of the U.S. Justice Department. My request follows:

June 23, 2011

The Honorable Thomas E. Perez
Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

Re: Request to investigate, enjoin and prosecute violations of
42 U.S.C. 14141 and 18 U.S.C. 242
by the New York Police Department and the City of New York

Dear Mr. Perez:

            Enclosed isa ten page memo prepared by Harry G. Levine, Ph.D., Professor of Sociology, Queens College of the City University of New York, submitted to the New York State Senate on June 15, 2011, regarding marihuana possession arrests by the New York Police Department (NYPD) in the City of New York from 1977 to 2010.

            In 1977, the State of New York enacted the Marihuana Reform Act of 1977. The legislature found “that arrests, criminal prosecutions, and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use. Every year, this process needlessly scars thousands of lives. . .” The legislature enacted New York State Penal Law section 221.05, which provides that such possession is a violation, carrying a maximum fine of $100 for a first offense. However, if marihuana is possessed “open to public view,” the offense is a class B misdemeanor (NY Penal Law section 221.10).

            Dr. Levine focused on the past fifteen years of arrests and found that the NYPD made 536,320 marihuana possession misdemeanor arrests between 1996 and 2010. In 2010, there were 50,383 such arrests. These many arrests (instead of the issuance of a ticket for the violation of NYS Penal Law section 221.05) are the result of the practice of police officers requesting or demanding that suspects empty their pockets. If they possess marihuana and comply with the officers’ request, the marihuana is then “open to public view” triggering the class B misdemeanor and an arrest.

            The extraordinarily large numbers of marihuana “open to public view” arrests constitute one out of seven of all arrests in New York City. These tens of thousands of arrests cannot be a mere coincidence resulting from the independent exercise of discretion by thousands of individual officers.  This department-wide program of issuing such orders, developed with the knowledge that the orders will be complied with and that compliance will trigger arrests of the thousands of targeted individuals, deprives these persons of their liberty through trickery, constitutes a violation of the subjects’ Fifth Amendment protection against self-incrimination, and the subjects’ right to due process in the administration of justice.

Dr. Levine’s very extensive analysis of the data regarding these arrests reveals that “for many years, New York City has arrested African Americans at seven times the rate of whites, and Latinos at nearly four times the rate of whites. . . For the last 15 years, 87 % of the people arrested for marijuana possession have been blacks and Latinos, who use marijuana at lower rates than young whites.” (emphasis in the original at p. 2).  The charts and tables accompanying the memo report arrest rates in New York police precincts that correspond to the racial and ethnic makeup of the precinct that demonstrate an unmistakable policy of racial discrimination in the enforcement of this law. The extraordinary disparity in the rates of arrests across the city is inexplicable except as the result of a deliberate policy that targets African American and Latinos for stops and searches.

Because they are plainly targeted because of their race and ethnicity, the African American and Latino arrestees have had their privileges or immunities of citizenship abridged and have been denied equal protection of the laws in violation of the Fourteenth Amendment, and in violation of federal law.

The official police data analyzed by Dr. Levine makes out a prima facie case that the NYPD, its command staff, and the City of New York and its leadership charged with supervising the NYPD,

engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,”
in violation of 42 U.S.C. 14141.

            In addition, the official data and circumstances described in Dr. Levine’s memo set forth a long-term, massive, organization-wide felonious course of conduct that is plainly designed to deprive African American and Latino residents of the City of New York of their Constitutional and legal rights under color of law, in violation of 18 U.S.C. 242.

            Dr. Levine’s careful analysis finds that these arrests target young people. Twenty-three percent of those arrested in 2010 were teenagers! These arrests target persons who have never been convicted of a crime. These arrests “scar thousands of lives” of young people by unwarrantedly creating criminal records with well-known collateral legal consequences, including denial of education, housing, and for non-citizens, deportation. That this policy of arrests is directly contrary to the purpose and intent of the New York State law regarding marihuana possession further illuminates the despicable character of this unlawful conduct by the NYPD and the City of New York.

I call upon you to direct the Federal Bureau of Investigation and the Criminal Section of the Civil Rights Division to:
-- open an investigation into the NYPD marihuana arrest program;
-- commence an action to enjoin the unwarranted racially discriminatory arrest and criminal prosecution of tens of thousands of African American and Latino persons annually for conduct that under New York law is a mere violation subject to a maximum fine of $100.00;
-- obtain an appropriate monetary judgment to punish and deter this egregious conduct; and
-- prosecute and appropriately punish those government officials responsible for developing, managing, supervising and approving this plainly unlawful program to violate constitutional rights.

Thank you very much for your prompt attention to this complaint.

                                                                        Sincerely yours,

                                                                        Eric E. Sterling, J.D.
                                                                        Criminal Justice Policy Foundation

cc:  Attorney General Eric H. Holder, Jr.

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Tuesday, June 18, 2013

DEA's addiction to a lying informant!

Sometimes it seems that the U.S. Department of Justice is dedicated to undermining the trust of the American people in our system of justice.

USATODAY has reported that after DEA promised to never again use a serial perjurer as an informant -- whose testimony is crucial to establishing facts in any case he is involved in -- they have started using him again. Andrew Chambers, Jr. was used by DEA Administrator Michelle Leonhart when she was just a case agent in St. Louis, Missouri, early in her career, and later when she was promoted to be a managing agent in California.

What obligation do federal prosecutors have to assure that their witnesses are telling the truth? When you read the official U.S. Attorneys Manual on this point, yous slowly realize that it doesn't seem to be at all clear. All they are required to do is to turn over to the defendant material that might impeach the testimony of their witnesses, but it is not exactly clear when or just how far this is supposed to go. In other words, maybe, at some point, the fact that the informant who set up the accused is a liar, might be disclosed to the defense.

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Sunday, June 09, 2013

5 Myths about legalizing marijuana in The Washington Post

Every Sunday, the Washington Post publishes 5 Myths about some topic in the Outlook section. On June 9, it published Doug Fine's "5 Myths about legalizing marijuana." Unfortunately Fine's first two "myths" are not myths at all, and he states an absurdity that could become the basis of a new myth. I am quite surprised that the editors of the Outlook section printed this.

Fine's first non-myth is that "If pot is legal, more people will use it." Economics and logic both suggest that if pot is legal, more people will use it. Fine notes that California high school students recently reported that cannabis is easier for them to obtain than alcohol. That probably is true for California high school students. But this is not true for tens of millions of adults who currently have no contacts to obtain marijuana.

Even for those adults who have friends who use marijuana, the current illegality is a powerful deterrent to ask them to help you obtain marijuana. You are asking them to aid and abet the commission of a felony -- the distribution of marijuana. You are asking them to go to the trouble of either becoming your dealer or introducing you to their dealer. While some pot dealers may welcome new recommended customers, others are necessarily going to be suspicious and hesitant about exposing their felonious behavior to another potential witness against them. For millions of adults, the introduction of legal marijuana is going to make it easier for them to obtain and to use.

Of course for millions of thoughtful and cautious adults, the consequences of a marijuana arrest -- even if a remote possibility -- are a significant deterrent from use. For starters, the embarrassment in front one's children, spouse, family and friends is a real deterrent. The implication of being something of a dope, even if the arrest is a simple matter of being unlucky, is another. These are every bit as consequential as the risk of missing days at work or losing a job. There are, of course, the inevitable costs of an attorney or perhaps bail, or the hassle of seeking services of the public defender. There is the real likelihood of probation or a conviction.  These thoughts are, for thoughtful and cautious adults, a constant accompaniment to the experience of using marijuana, and a deterrent to use. It suppresses the number of "users" in the past month to be sure, even if use is once or a few times a year. Once legal, the use of marijuana will not have those obstacles,  and adult use is sure to rise.

Fine's use of statistics regarding Portugal and the Netherlands is not really helpful. Drug use is not simply dependent upon statutes, but upon other cultural factors. Regarding Portugal, he surprisingly has confused and misstated the legal status of marijuana as "legal" when it was actually "decriminalized." There is no legal distribution of marijuana there. There situation there is not applicable.

I very much doubt that America will turn into a Cheech and Chong movie, but I think it is absurd to insist that there will be no increase is use if marijuana is legal.

Of course the price is going to come down, and that is almost certain to lead to increased use as well.

Second, Fine says it is a myth that law enforcement officials oppose legalization. Fine quotes my friend from LEAP, Stephen Downing, "Most law enforcers find it difficult not to recognize the many harms caused by our current drug laws."  Steve is correct that they recognize the harms, but that does not mean they endorse legalization.

In fact, the overwhelming majority of law enforcement officials who publicly express an opinion about marijuana legalization still oppose it. I recently testified before the Judiciary Committee of the Maryland House of Delegates regarding marijuana decriminalization. No current law enforcement officer testified in favor, but there were two panels of law enforcement officials (Chiefs of Police, elected Sheriffs, state police commanders, etc.) who testified ardently against decriminalization or legalization. LEAP is an extremely important voice for law enforcement officials, but most of its spokespersons are retired. Only a handful are currently employed in law enforcement. Fine's assertion is simply wrong.

Finally Fine says there are "100 million cannabis aficionados (17 million regular partakers)." On the order of 100 million Americans have tried marijuana at least once. But for many of those who tried marijuana they are not "aficionados," they don't use marijuana and have not for years. This assertion is absurd.

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Saturday, June 08, 2013

Rolling Stone profile of Ethan Nadelmann

Rolling Stone magazine gives the full rock star treatment to my friend Ethan Nadelmann in the current issue.

In 1988 and 1989, three events thrust drug legalization onto the national agenda -- where it remains -- as the primary remedy for the dual problems of drug abuse and the disastrous unintended consequences of drug prohibition. Ethan played a key role in that moment that this profile does not share.

The first event was a speech to the U.S. Conference of Mayors by Baltimore's new mayor, Kurt Schmoke, calling for drug legalization to address the crisis of the new AIDS epidemic, among other things. Schmoke, the city's first African-American mayor, was a former United States Attorney and former elected State's Attorney for Baltimore City. Mayor Schmoke was an important political figure making an unusually frank and significant statement at obvious political risk. With a bullet-proof background in the Ivy League and as a well-regarded prosecutor, his courageous stance had an unchallenged political legitimacy.This event was stunning in its timing -- Nancy Reagan was still First Lady, just saying "No," Congress was developing of the Anti-Drug Abuse Act of 1988, and the crack cocaine epidemic was growing and become more violent.

In September 1989, new President George H.W. Bush, speaking from the Oval Office announced an anti-drug strategy from the first modern "drug czar," Dr. William Bennett. Politicians had been pushing a "war on drugs" for eight years, and the nation was really ready for some new thinking.

As Bush's speech was being written, one of the nation's most prestigious intellectual journals, Science, published an article by Dr. Ethan Nadelmann making a case for legalization. This peer-reviewed article blessed the intellectual legitimacy of the critique of prohibition, the second key event.

Third, the morning after the President's address, it was attacked at a well-attended press conference in a Washington, DC with Ira Glasser, head of the ACLU, Neal Sonnett, a very distinguished bar leader and President of the National Association of Criminal Defense Lawyers, Dr. Arnold Trebach of the Drug Policy Foundation, Don Fiedler, Esq. head of NORML, and Rev. Andrew Leigh Gunn, head of Clergy for an Enlightened Drug Policy. I had set up the press conference and was moderator. The national news media reported our critique of the enforcement emphasis of the drug strategy as a terrible failure, and that it needed to be replaced by legalization. For the first time, drug policy was no longer reported as the tit for tat of Democrats and Republicans trying to sound tougher than the other.

Schmoke's speech, Nadelmann's article, and the organized voices of a drug policy reform movement demonstrated a moral vision, an intellectual maturity, and a political and media savvy that planted drug legalization firmly in the national discourse about drug policy. The legitimacy of prohibition was, from that point on, always under attack!

It took several years for Ethan Nadelmann to move to the center of the drug policy reform movement. Rolling Stone outlines the seminal moment of his leadership, Proposition 215 in California in 1996. Ethan saw the emerging opportunity, recruited the major funders and political strategist Bill Zimmerman, which resulted in marijuana winning one million more votes than Bill Clinton winning re-election in California.

Ethan's enormous charisma and intelligence, and his tremendous accomplishments -- especially at the international level -- are the raw material for a rock star media profile. Getting admitted to Harvard, and getting three degrees from Harvard -- a B.A., a law degree and a Ph.D. -- is a very rare achievement. Getting the substantial philanthropic support of one of the most enlightened billionaires in history -- George Soros -- was not accidental or coincidental, it was earned! Getting invited and making countless speeches to the key gatherings around the world demands enormous stamina and self-possession. It demands an enormous personal sacrifice.

Naturally, since the article is about him, the article necessarily ignores the many people who also played and continue to play absolutely essential roles in drug policy reform. If all that one knew about drug policy reform was a reading of Rolling Stone, one would be sadly ignorant of  others who played perhaps even more profoundly inspirational roles over the past 40 years in creating the modern drug policy reform movement. First, of course, Keith Stroup, the founder of NORML, and then, Dr. Arnold Trebach and Kevin Zeese, the founders of the Drug Policy Alliance (then known as the Drug Policy Foundation), Julie Stewart, the chief co-founder of FAMM (Families Against Mandatory Minimums), Rob Kampia, the chief co-founder of the Marijuana Policy Project (MPP), and Jack Cole, the most prominent of the three co-founders of LEAP (Law Enforcement Against Prohibition), along with Peter Christ and Howard Wooldridge. These men and woman have been essential to building a movement.

For the last 15 years, the Marijuana Policy Project has been, in my judgment, equally important if not more important than the Drug Policy Alliance in building the drug policy reform movement in the U.S., and enacting marijuana law reforms at the state level.

Ethan has a volcanic speaking style, a rock star charisma, and an intellectual brilliance that dazzles the audience -- whether a convention hall, a board room, or a funder in her living room. He deserves every inch of his Rolling Stone profile. Rob Kampia has an political vision, and strategic talent for making shrewd bets in politics and personnel, and a management capacity to drive a team that is enormously effective in hitting its targets and achieving results.

There are dozens of other men and women around the nation whose vision, passion and voice have been critical to victory in one state or another, and in helping sustain the organizations that make up the movement. I am thinking of Dr. Dale Gieringer, the leader of California NORML, Chris Conrad and Mikki Norris, writers, activists and editors of the West Coast Leaf, or Mason Tvert of SAFER in Colorado. In state after state, completely off the national radar, there have been hundreds of men and women who prodded the legislature, the Governor, the media and the other key actors to get a medical marijuana law enacted, or to build a state-wide organization.

As an intellectual descendant of Hegel's I believe that progress moves ahead in the struggle of thesis and antithesis. Would Ethan be as successful if not for the rivalry for movement leadership from Rob Kampia and MPP? Would he be as intellectually forceful if not for the challenge to his ideas by Dr. Mark Kleiman, once a colleague at Harvard? Kleiman, now at UCLA, is the intellectually furious Socratic challenger to much of drug policy discourse -- harassing reformers, Congress and the White House with equal vehemence, and is now leading a team to advise Washington state authorities on the practical challenges of legalizing marijuana under state law.

I have known, admired and been fond of Ethan since he was a graduate student at Harvard. He is a warm and loyal friend. He is a genuine intellectual rock star, and at this moment in his World Tour he fully deserves this wonderful profile in Rolling Stone! I encourage you to read it.

Share the article with your friends, and if you are not yet a member of Drug Policy Alliance, join and donate monthly, as I do.

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