Happy New Year!

Happy New Year!

 

The new year is dawning and many use that anniversary to make resolutions to improve their lives in the new year.  In keeping with that tradition, I would like to offer some resolutions for drug law reformers to consider adopting this year.

Amend the federal statues in 2013.  This once unreachable goal now looks possible.  The polls overwhelmingly favor medical marijuana and have moved to a bare majority favoring legalization.  Remarkably, no congressional leader has spoken against the recent state votes for marijuana legalization.

Think baby steps, not giant leaps.  The pole star of drug reform remains repeal of the Controlled Substances Act, but that large move is probably too daring for a cripplingly cowardly congress to undertake all at once.  The old adage says that a voyage of a thousand miles begins with a single step.  Congress may be willing to dare to take some minimal efforts like finding some way for the federal government to recognize, or at least live with, state laws allowing medical marijuana or decriminalization (local legalization).  Another possibility would be for congress to take some action to establish and develop the medical value of marijuana.  Enough baby steps will soon reach the destination.

Think globally; act locally.  Pressure from the bottom up works.  Today over thirty per cent of the population lives in states with medical marijuana laws, and the rate of state enactments seems to be growing.  State legalization has grown from roots in city “lowest law enforcement” ordinances and civil, not penal, punishment of possession.  One result has been a dramatic change in popular attitudes as shown by polls now showing over seventy per cent favoring medical marijuana laws and a majority favoring legalization on national polls.

Speak up.  Speaking up not only puts pressure on politicians, but it also educates fellow citizens.  The available fora are myriad.  Letters to the Editor and OpEds really spread the word; and even if not published, may enlighten the editor who reads them before rejecting them.  An elected representative’s job includes reading (and maybe even thinking about) letters, emails, and tweets from voters.  Many city councils have “open mike” sessions where any citizen has two or three minutes to talk about local issues.  Call-in radio and tv shows take calls – if you can take the abuse from the host.  Civic clubs, PTAs, and church groups are always looking for speakers.  Especially talk to your family, friends, and neighbors.  However you do it, spread the word.

‘Fess up.  The old courthouse joke is that we don’t know how smart the average crook is because only the dumb ones get caught.  The same logic applies to drug users:  no one knows what the average drug user looks like because only the failures at using drugs get caught.  The myths of the speed-crazed violent killer and the couch-locked stoner will control until people get used to the idea of normal folk who also just happen to use drugs.  Some examples have surfaced:  Dr. William Halsted, Carl Sagen, Willie Nelson; but most people are not outstanding physicians, leading scientists, or entertainment superstars.  The examples needed are the folks next door – insurance agents, accountants, engineers, cooks.  Many can’t come out: openness would put their jobs or professional licenses at risk, but most people can casually let people know that they partake without making a big deal out of it.  Retirees especially can reveal that normal, successful people use.  Perhaps retired Air Force pilots could talk about using amphetamines to fly combat missions or some of that 15% of working scientists who admitted in a poll to using stimulants to help in their work could explain why.  Medical marijuana patients and returning veterans, who conversely may have more to lose by not stepping up, can serve as examples to those who are uncomfortable about coming out.

Act up.  Get the public involved by involving the public.  Something is needed to spark a wider public awareness and discussion.  Drug reformers may not be the 99%, but they are numerous enough to get their message out.  Freedom of choice about drugs is a human rights issue, and major lessons can be learned from the Civil Rights and antiwar activists of the fifties and sixties.  A dozen wheelchair-borne demonstrators in front of a local cancer center (preferably white-haired grandmothers) with medical marijuana signs WILL make the local news that night.

Keep up the effort.  Much progress has been made since the dark days of the 1980s.  Keep up the good work, keep the pressure on, and it will truly be a …

Happy New Year!

Dirty Old Drug-sniffin' Dog

Dirty Old Drug-sniffin’ Dog

 

Dogs are very good at some things.  They can pull sleds over snow and herd sheep.  They can chase escaped convicts and retrieve downed ducks.  Dogs can lead the sight-impaired through city streets and make great pets.

What they cannot do well is sniff out illegal drugs.  Defense attorneys, it’s time to Daubert the dog.

Scientific evidence, from fingerprints to blood-typing to DNA identification, has been used in judicial proceedings for over a hundred years.  But scientific evidence must be based on real science (well, Duh!)

For scientific evidence to be admissible, three elements must be present: the underlying basic science must be generally accepted, the process or procedure used must accurately demonstrate the ultimate evidentiary issue, and the proper procedures must have been followed in the instant case.

The news media –especially the tabloids – have been full of psychics called in to help solve crimes; but the evidence of these so-called psychics never appears in court.  Science has shown conclusively that their mystical powers do not exist.  On the other hand, when DNA testing was introduced in 1984, it was firmly grounded in both genetic theory and laboratory practice.  It quickly became the gold standard of individual identification.

Is dog sniffing more like psychics or DNA identification?  Actually, it is probably more like lie detection.

Polygraphs (lie detectors) have been around since the 1920s.  They are widely used in employment situations and non-judicial law enforcement, but in spite of this wide-spread use, polygraph test results are still not admissible in court.  The underlying science is sound.  Pulse and respiration rates and galvanic skin response (sweating) can be accurately measured and they can be correlated to the testee’s emotional reaction to a question asked.  However, those reactions cannot reliably be correlated to that testee’s truthfulness in response to those questions.  If asked “did you kill your mother?” his reactions will be the same whether he did in fact kill her or is simply reacting emotionally to his mother’s death.

Like the polygraph, the dog’s nose is based on solid science.  The neuroanatomy and physiology of the amazing canine olfactory system is thoroughly studied and known.  What is still unestablished is any correlation between that science and the ability to reliably detect illegal drugs.

Even the police seem unsure of their claims.  One police dog handler is quoted as saying that dogs detect illegal drugs, not any particular drug.  That statement is like saying that humans can smell food, but cannot tell gingerbread from onions.  Even the human nose, poor odor detector that it is, can distinguish the dank of marijuana from the acerb bite of amphetamine.

Although a few studies of dogs’ drug-detecting abilities have been conducted, only a few of those have been done by independent researchers not conducted to police agencies.  Most of those studies have not been properly blinded (keeping the dog handler ignorant from the existence and placement of any test objects) or double blinded (in which the score recorder is also kept ignorant until after the test is completed.  Double blind testing is the scientific norm for these kinds of experiments.  Even this procedural laxity has not produced dogs scoring significantly better than chance.

Dog searches, as currently conducted, cannot even be evaluated retrospectively.  They are unlike fingerprints, which have been compared in millions of cases in over a hundred years without a single case of identical prints appearing.  The results of a dog search are not a simple yes or no.  The result set has four spaces: true positives (the dog alerts and drugs are found), false positives (dog alerts, no drugs found), true negatives (dog does not alert and no drugs are present), and false negatives (dog does not alert, but drugs are present).  As searches are currently conducted, records are kept only for true positive results: the drugs are confiscated and the possessor is arrested.  If the result is a false positive, a search takes place, but when no drugs are found no further action is taken.  When the result is negative (true or false), no arrest is made and, in the case of false negative searches, the drugs remain undetected and in circulation.  No measure of the accuracy of a dog’s work may be made unless all four outcomes are accounted for.  In the case of an unsymmetrical distribution of the objects, as when only a small percentage of the population has drugs, the number of false positives and false negatives can easily exceed the number of true positives.  [For a more thorough explanation of this issue look at my earlier post, “Mammograms, Drug Tests, and Bayes”.]

A study central to a case now under appellate review in Florida presents another serious question: Are drug-sniffing dogs just a modern replay of Hans the Counting Horse?  Hans the Horse was an entertainment sensation of the nineteenth century that was revealed as a long-running fraud.  His owner toured him around Europe demonstrating the horse’s ability to count and to do simple addition by tapping with a front hoof.  However, someone finally thought to look at the trainer instead of the horse.  The trainer was (probably unconsciously) counting along with the horse and the horse was watching the trainer.  When the trainer stopped counting, so did the horse.

The Florida case involves an experimental test of drug dogs.  Samples of illegal drugs were concealed in a test locale and the dogs were used to detect them.  As usual in these tests, the dogs did slightly better than chance, but when the data were examined, an interesting test artifact came to light.  The hidden drug samples were marked with red cards so they could be retrieved when the test was completed.  The red cards would not affect the dogs, which are color-blind.  But the analysis revealed that all of the drug samples discovered by the dogs were marked by cards visible to the dogs’ handlers.  Was this trial simply a sophisticated example of Hans the Counting Horse?

The role of the dog handlers in that study suggests the importance of administration and oversight in the application of science to law enforcement.  Recent scandals have rocked the Harris County Probation Department in Houston and the Massachusetts State Crime Laboratory in Boston.  In both of those cities laxness, carelessness, and possibly outright fraud have forced the prosecutors and courts to reject the results of tens of thousands of urine drug tests and at least hundreds, the actual number still being unknown, of convictions are now under review.  Many, if not most of these will have to be set aside.  Compared to dog searches, urine tests are very routine and controlled.  They take place in supervised workspaces under the direct supervision of supervising officials.  Dog searches occur in public spaces, not in police stations or laboratories.  They are conducted by individual police officers without direct on-site supervision.  If tightly managed routine urine tests can be as corrupted as the Houston and Boston stories reveal, then dog handlers acting without supervision or even more open to failed procedures.

Defense lawyers, line up your experts.  Voters, hold your prosecutors and judges to account.  It’s time to end the Havoc and releash the Dogs of Drug War.

 

 

 

 

 

Dirty Old Drug-Sniffin’ Dog

(Apologies to Johnny Cash)

 

Well he's not very friendly to look at

Oh he's shaggy and he roots like a hog

And he's always bustin' my stash house

That dirty old drug-sniffin' dog

 

Drug-sniffin' dog

I'm gonna stomp your head in the ground

If you don't stay out of my green house

You dirty old drug-sniffinin' hound

 

Now if he don't stop tearin' my plants up

Though I'm not a real bad guy

I'm gonna get my rifle and send him

To that great grow house in the sky

 

Drug-sniffin' dog

You're always hangin' around

But you'd better stay out of my stash house

You dirty old drug-sniffin' hound

 

[If anyone has a guitar and wants to unleash their inner Johnny Cash, I would love to have a recording of this little ditty.]

 

 

Drug Law Reform and Gun Control

Drug Law Reform and Gun Control

 

An elementary school in Connecticut.  A shopping mall in Oregon.  A Sikh  temple in Wisconsin.  A movie theater in Colorado.  A series of mass shootings across the country has moved to issue of gun control to the political front burner.  What can the long struggle about drug Prohibition teach this new debate?

Prohibition makes things worse.  Prohibition laws do not make the prohibited thing – alcohol, drugs, commercial sex, gambling, unavailable.  They just turn the product over to violent criminals and gangs who terrorize communities, corrupt law enforcement, sell to minors, and kill customers with adulterated products.  A prohibitory ban on “assault rifles” and handguns would have the same result.  Mexico has tried gun Prohibition; has it worked there?  The old bumper sticker should be rewritten as: “When guns are outlawed, only outlaws will sell guns.”

Harm reduction is effective.  Harm reduction has been effective in minimizing the harmful effects of drug abuse.  Measures include methadone maintenance (heroin maintenance in Switzerland and England), sterile needle exchanges, sterile injection sites (in Europe), and diversion of cases from judicial action to community-based programs.  Harm reduction could also help limit damage from gun use: universal background checks, delivery through licensed dealers with background checks for internet and mail order sales, waiting periods between purchase and delivery, capacity limits on magazines, and mandatory safety instruction before sales are just a few of the measures to be included.

Fact-based education is essential.  Education of children on gun safety should be mandatory, possibly included in school health education.  But it should be fact-based.  Drug education has seen the success of the reduction of tobacco use by more than half, while sloganeering like “Just say ‘No’” and fear-based propagandistic attempts like DARE have actually been counterproductive.

Old myths are hard to kill.  Marijuana does not turn nice teenagers (or Blacks or Mexicans) into drug-crazed rapists and murders.  Smoking cannabis does not cause lung cancer.  A householder does not need an arsenal of Stinger missiles to shoot down black helicopters.

If it fits on a bumper sticker, it isn’t an answer.  Solutions to complex problems can’t be found in three- or four- word slogans.  Slogans just shout at each other.  They don’t analyze issues or lead to consensus.  Whether it says “Drugs Kill” or “Guns Don’t Kill”, it just adds to the problem: it doesn’t lead to answers.

Drug reformers have extensive experience in public policy debates.  They must apply the expertise they have gained to this current debate.  It’s up to you to decide which side you favor, but in any case, break the couch lock, stand up and help shape the argument.

Support your right to arm bears!

Grow Hemp

Why Can’t We Grow Hemp?

 

Why can’t an American farmer grow hemp?

In 1618 all of the settlers in Jamestown were required to grow hemp.  Other colonies also had laws requiring hemp cultivation.  George Washington and Thomas Jefferson were hemp farmers.  It was Kentucky’s largest cash crop until the 1930s.

The Declaration of Independence was written on hemp paper, and all American paper money was printed on hemp until the 1930s. 

Henry Ford even built a car with a body made entirely of hemp, and Willie Nelson fueled a car on hemp oil.

The U. S. S. Constitution, “Old Ironsides”, was powered by hemp sails the word “hemp” comes from the Dutch word for canvas) and ropes, miles of hemp rope.  In World War II, the government encouraged farmers to grow hemp for defense uses.  It even produced Hemp for Victory, a film promoting the cultivation of hemp, in 1943.

But the story of hemp is not just history.  It is a vigorous part of today’s economy as well.  Every city has stores carrying hemp clothing, some of them devoted only to hemp products.  Almost all health-food stores and upper-market supermarkets carry a wide variety of foods containing hemp oil or hemp seed.  One who read the labels carefully will find numerous cosmetics containing hemp oils as well.  In parts of the developed world hemp is used as a building material.  Hemp could be a good source of fuel, the seed for bio-diesel and the rest of the plant for cellulose ethanol.

All of the hemp in these shirts, lipsticks, and salad dressing is imported.  None is grown by American farmers.  Instead it provides a cash crop for Canada, Western Europe, China, and other nations.  Agriculture in this country is reduced to a group of excluded on-lookers.

Why don’t American farmers grow hemp?  The plant is very tolerant of variations in soil and climate.  A native of Central Asia, it is grown from North Africa to the Canadian prairies, from Alaska to Indonesia, from Southeast Asia to Kentucky.  Hemp requires comparatively little water or fertilizer and is naturally pest-resistant.  With best planting methods, minimal tillage is needed.  Compared to rice, cotton, or corn hemp is a cheap, easy crop to grow.

American farmers don’t grow hemp because an ill-conceived law forbids it.  The Controlled Substances Act of 1970 made marijuana a Schedule I drug, meaning that it cannot be distributed or possessed by anyone in the United States.  But it then defined marijuana as being any part of the plant Cannabis sativa (interpreted by the courts to mean any plant of the genus Cannabis, including both C. sativa and C. indicia).  Hemp is a cultivar of C. sativa that is almost totally lacking in the primary intoxicant of marijuana.  The old joke is that one would have to smoke a hemp cigarette as big as a telephone pole in order to get high.

Looking at an imaginary statute will demonstrate the flaw in this law.  Imagine a statute that banned milk because some people are lactose intolerant and because milk fat contributes to obesity.  It then goes on to forbid a rancher from raising beef because both Angus and Jersey cattle are members of the same species: Bos genius.  (actually, this imaginary ban on beef cattle makes more sense than the ban on hemp does because even an Angus cow produces some milk.)

The federal government, albeit grudgingly, has recognized the value of hemp.  When the Marihuana Tax Act of 1937 was being considered, paint manufacturers complained that, for fine paints, linseed oil was not an adequate substitute for hempseed oil; and bird seed manufacturers explained that caged canaries would not sing unless their food contained hempseed.  At their request, the Act was written to allow the import of sterile hemp seeds.  The later laws also allowed importation of processed hemp fiber.  Only American hemp was banned.

Some American farmers have tried to grow hemp.  For several years Native American farmers in the Dakotas have planted hemp, arguing that federal law does not apply on their reservations.  Each year the DEA has plowed their crops under.  Several state legislatures have looked at hemp but have felt stymied by the federal law.  At least one state passed legislation, but conditioned it on federal approval that was not forthcoming.

So wake up and hop out of bed.  Shower with hemp soap and shampoo.  Eat your breakfast toast spread with hemp oil oleo and put on your hemp shirt and hempen jeans.  Get into your hemp-fueled car and drive to the office of your congressional representative.  When you get there, demand that the law be changed so that American farmers can participate in the wonderful market for hemp.

The Silence is Deafening

The Silence is Deafening

 

A month has passed since the marijuana legalization votes in Washington and Colorado.  People across the country are awaiting some response from the federal government, but so far no response has appeared.

Two years ago in the period leading up to the election, Attorney-General Holder came out strongly against marijuana legalization in California.  This year he said nothing before the election and has kept quiet since the election.  The only word from his office has been a bland statement that marijuana is still against the federal law.

While he was in the senate, Vice-President Biden was a hard-nosed Drug Warrior.  He was a primary sponsor of the 1986 amendments that imposed mandatory minimum sentences for drug offenses, the crack/powder cocaine sentencing disparity and created the Drug Czar’s office.  He has said nothing this year.

The Administrator of the DEA is a holdover G.W. Bush appointee and a true Drug Warrior.  She has not said a word since the election.

The Drug Czar, head of the ONDCP, is required to oppose all attempts to weaken the federal drug laws.  He has been totally silent both before and after the election.

Although some back-benchers in the House of Representatives have called for an amendment to the federal law so that it would honor state statutes, no senator has said anything and the leadership of both houses have been mum.

And the President?  He has not mentioned the issue.

It’s been a month.  A month is enough time to formulate some kind of plan.  It’s long enough to develop a policy statement and draft a press release.

The silence is deafening…
…and hopeful.

Changing Metaphors in Mid-stream

Changing Metaphors in Mid-stream

 

For at least a generation drug law reformers have compared fighting against the Drug War to toppling a row of dominos – a metaphor that President Eisenhower first made popular by applying it to Viet Nam.  But the first dominos have now toppled in Colorado and Washington, and a new metaphor is needed.

The problem is that the domino model doesn’t work once the first one has toppled.  The dominos start out arranged in a set pattern, and when the first tile topples, the process goes in an orderly linear fashion.  Each falling piece strikes the next in line until all have fallen.  No surprises can occur.

The world of drug law reform is neither linear nor predetermined.  Now that the first drug domino has fallen, the result is a picture of confusing possibilities and uncertainties.  No single next-in-line patiently waits to be nudged.

An earthen dam provides a better metaphor of the future.  It can be as big as the one whose failure destroyed Johnstown or as small as the one for the stock tank on my grandfather’s farm, but it’s easy to visualize.  These dams are simple in concept: just pile dirt in a waterway until the stream is blocked.  The higher it is, the more water it can retain; and the thicker it is, the stronger and more lasting.

The federal government has spent more than a century trying to dam the flow of drugs in the country.  Beginning with the Smoking Opium Exclusion Act of 1909, it has thrown statute after statute into the drug stream, building up the ponderous structure into the heap known as the War on Drugs.

But earthen dams have a fatal flaw.  They are permeable to water.  Water invades the structure, loosening its cohesion unless continual maintenance keeps adding dirt to the back side reinforcing it.  That water invasion will seep into the structure until it appears as damp spots on the face.  These often support moss or clumps of weeds.  The damp spots soon become trickles easing down the front side and beginning to erode channels.  One of these trickles will break through and a stream of water will shoot out from the dam.  When that happens, the dam is doomed.  It will rapidly crumble and collapse and the contained water surges into a flood racing downstream.

Damp spots showed up on the Drug War dam in the 1960s when the counterculture and white college kids discovered marijuana.  They proliferated when a dozen states decriminalized possession in the ‘70s.  Then trickles appeared when California, followed by almost twenty states, approved medical marijuana beginning in the ‘90s.  This year two streams came jetting through the dam with legalization votes in Colorado and Washington.  The dam is definitely crumbling.

What can the hydraulic engineers of the DEA, DoJ, and ONDCP in Washington do about this?  They can just stand by and hope to clean up the mess after the flood subsides (perhaps they can be merged into FEMA), they can try to shave a layer off the top of the dam to release a small overflow and reduce the pressure as a temporary fix, or they can carve a safe spillway and channel the pent-up energy into useful channels – medical research and treatment, better drug education, to name just two.  What they cannot do is save the dam.

The dam of Prohibition is broken.  Let the waters of reform run free.  

Whatcha Gonna Do?

Whatcha Gonna Do?

The marijuana legalization votes in Colorado and Washington have tongues wagging across the country.  And much of that tongue-wagging centers on one question: “Hey, Feds, whatcha gonna do now?  State legalization puts strong pressure on federal attempts to maintain the War on Drugs, and none of their possible responses would be effective.

The government’s choices narrow down to about six, although these can be combined or varied: 1) keep doing business as usual, 2) step in and try to enforce the federal marijuana laws vigorously, 3) bow out and ignore marijuana activity in these states, 4) treat the legalizing states like foreign drug producers and seal their borders with other states, 5) apply indirect pressures on bankers and landlords and stop federal funds to these states, or 6) ask congress to amend the federal laws.  None of these options provide the feds with a rosy outlook.

Business as usual looks like the best bet for the federal government.  Except for concerns with cross-border smuggling from Mexico (and to a lesser extent from Canada), marijuana is not on the federal radar anyway.  The dividing line for federal actions against marijuana is normally ninety-nine plants, that being the statutory threshold for applying the most severe sanctions.  States have been expected to pursue any cases involving smaller amounts.  This strategy has two major flaws.  First, a large and thriving commerce can develop operating under a hundred plant cap.  Second, it would create an impression either that the federal government is powerless to prevent marijuana commerce or that it condones that trade.

The feds can’t simply step in and close the gap by directly enforcing the federal marijuana laws.  They don’t have the resources.  The dirty little secret of the Drug War is that the federal government has always relied on the states to provide the manpower and resources to enforce the drug laws.  The numbers tell the story.  Each year about 1.5 million are arrested for drug offenses, over half of them for marijuana crimes.  Simple marijuana possession accounts for around 800,000 of those.  The federal court system handles just over 14,000 criminal cases each year – and that includes terrorism, bank robbery, kidnapping, and white collar crimes.  Even a relatively low-population state like Colorado will generate twice that number of cases each year.  Only 480 federal trial judges are available to handle these cases; and they have large civil dockets as well.  DEA agents will not lurk on street corners arresting teen agers holding a single joint.  The DEA has a total of around 5500 agents (including those stationed abroad and those acting bureaucratically in Washington).  This number is about the size of the Houston police force.  Teen-age stoners will become octogenarian couch potatoes before the DEA can get around to arresting them.

On the other hand, Colorado and Washington cannot just be ignored. Their experiments might be successful.  Rampant drug abuse and crime might not occur.  They might save large amounts and law enforcement and garner massive tax revenues.  And if that happens and the feds don’t slap them down, then the other forty-eight states will join the stampede (several bills have already been filed in state legislatures in less than a month.)

Surely the feds can force them to keep their weed at home and not let it leak out to the other states.  Can they be treated like drug-exporting countries like Colombia and Mexico?  Some states are already complaining about marijuana coming into their states from medical marijuana states like California, Oregon, Washington, and Colorado.  Legally grown marijuana from Colorado and Washington can severely undercut the price of Mexican imports and improve on the quality as well.  The 5500 DEA agents and 14,000 Border Patrol agents have been unable to even slow down the flow from Mexico, and they will have far fewer tools to prevent interstate traffic.  Washington’s two long borders with Oregon and Idaho and Colorado’s with Wyoming, Kansas, Nebraska, Oklahoma, New Mexico, and Utah are almost as long as the Mexican border.  The border patrol and ICE has no jurisdiction over interstate movement or commerce.  Interstate borders cannot be blocked with armored walls; and checkpoints and warrantless searches would be unconstitutional.  On the other hand, increased interstate commerce in legalized marijuana should greatly crimp the earnings and ability to do business of the Mexican cartels.

Indirect enforcement would also be ineffective.  In California, Colorado, and Montana the DEA has attempted to use the banking authorities to block marijuana businesses from using banks, tried oppressive income tax enforcement, and brought forfeitures against landlords.  But banking limitations are easily avoided and tax and forfeiture cases are so ponderous that, while they are destructive to a few individuals, they have little effect on the business overall and build public resentment.  While congress has pressured states into uniform drinking ages and speed limits by threatening to withhold highway funding, strong constitutional questions will arise if the feds try to withhold funds not related to the problem they are trying to regulate.

The feds could go to congress for help, but what could congress do?  The Controlled Substances Act already pushes the limits of congressional power under both the commerce and treaty clauses.  Under current circumstances congress is unlikely to increase spending on drug law enforcement to any great extent.  The courts have already been pushed to the limits on search and interrogation methods.  About the only doors open to congress at this point are those leading to a loosening of drug prohibition.

# # #

Somewhere in Washington a conference room window glows in the midnight dark.  Fluorescent glare highlights a gleaming conference table littered with coffee cups, open law books, and laptops.   Tired men in wrinkled suits with tussled hair and ties askew talk quietly or stare blankly at the walls.  I wish I were there so I could ask: “Hey, Feds, whatcha gonna do now?”

The Tenth Amendment: What does it really say?

Almost twenty years have passed since the revolution in state medical marijuana laws first erupted.  With eighteen jurisdictions joining that revolution, questions about the relationship between state and federal laws have come to the fore.  Central to the debates has been the role and force of the Tenth Amendment to the Constitution.  Unfortunately, most of what has been said about that amendment has ranged between the mistaken and the ridiculous.  The time is ripe to examine that amendment and find out its actual meaning.  The place to start is with the text itself.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The most straight-forward reading of this amendment is that it provides a series of tests to determine whether a government (federal or state) may constitutionally exercise a power that it claims.  These tests apply to both federal and state governments.

In order to be constitutional, a power asserted by the federal government (normally through a statute, executive order, or administrative regulation), must be delegated to it by the Constitution.  In many cases that power will be one of those expressly delegated in Article I.  For instance, the Controlled Substances Act has been upheld as a valid exercise of the power to regulate Interstate Commerce.

The express powers listed in Article I are not the only ones that the Constitution delegates to the Federal government.  Other sources of powers for the Federal Government include:
-- the “necessary and proper” clause of Article I – source of the power to create a Federal bank exercised by the first Congress,
 --the foreign affairs and commander in chief powers of Article II,
 --the judicial clause of Article III,
--the “republican form of government” clause
--the “full faith and credit” clause. 

The XIV and XV Amendments added additional powers for the Federal Government to insure equal protection of the laws and voting rights.

Unfortunately, most of those arguing for increased state powers under the Tenth Amendment read it as if it limited the Federal Government to only those powers expressly enumerated in Article I.  Many of them actually misquote the text to read: “The powers not expressly [sic] delegated to the United States…”.  That interpretation would completely enervate the government and is supported neither by text nor by history.

The Founders assumed that the states would continue to be responsible for the regulation of most day-to-day activities.  But they also put constraints on those state activities.  In order to comply with the Tenth Amendment, state action must meet three tests: is the activity prohibited to the states by the Constitution; is the power exercised one that has been delegated to the Federal Government; and have the people themselves exercised that power?

The Constitution imposes several strong prohibitions on the states.  These include bans on monetizing anything but gold or silver, interfering with contracts, refusing to give full faith and credit to the laws of other states, and requiring the states to grant free right of passage and residence of the inhabitants of other states.  The XIV and XV Amendments additionally forbade states from denying equal protection of the law to persons and from interfering with the right to vote.

In some states the people have directly taken powers from the state by exercise of ballot initiative or referendum powers.  The most noted example of this direct application of popular power identified in the Tenth Amendment is Proposition 13, through which Californians limited the state’s power to impose property taxes. Many states, including Oregon, Washington, Montana, California, Colorado, and Michigan, have used this power to restrict the state’s power to punish the medical use of marijuana.

Most state federalism[1] problems arise when a state tries to act concerning a power delegated to the federal government.  These problems may be divided into four categories:
1. A power has been delegated to the federal government, the federal government has not acted to implement that power, but a state attempts to do so;
2. The federal government has exercised a delegated power and a state has also exercised that power in a way  not inconsistent with the federal power;

3. The federal government has acted and a state elects to do nothing in this area; and

4. The federal government has acted and a state attempts to act in a way that is inconsistent with, or that would interfere with, the federal activity.

The first of these cases – no federal action in an area delegated to the federal government – presents few, if any, problems for state drug laws because federal regulation in this area is all encompassing.  This whole area can be relegated to the arcana of the Dormant Commerce Clause, now used primarily to befuddle and terrorize law students.

The second situation – the federal government has acted in a delegated area and a state government also acts within that area – is common and causes few problems so long as the state action is consistent with the federal action.  Robbing a nationally chartered bank and a federal crime and also is the state crime of bank robbery.  Both or either of those governments may prosecute and punish.  Likewise, a federal hate crime violating the civil rights of the victim, may also be punished by a state as an assault or battery.

Most current state drug laws fall within this category.  Possession or distribution of marijuana is a violation of both federal and state statutes, and each may enforce its own law.  Often cooperative task forces, mixing federal and state agents, join together to investigate possible drug crimes and make arrests.   Either or both of the governments may then prosecute those arrested.  The state law does not have to exactly mirror the federal statute so long as it does not interfere with federal enforcement of its own law.

Most state attempts to reform marijuana laws fall into the third category.  If the federal government has acted in an area, a state may choose to do nothing regarding that subject.  Even though the federal government has made all possession or distribution of marijuana illegal, a state government may elect not to take state action against marijuana users or growers itself.  If a state purports to legalize marijuana for medical use, it is in fact merely stating that the state will not use its enforcement powers to prevent distribution or use of marijuana for medical uses.  It cannot set aside the federal prohibition nor may it prevent the federal government from enforcing its laws within the state’s border.  On the other hand, the federal government may not require a state to use its resources to enforce the federal law.  To date, seventeen states have removed state penalties (“legalized”) medical marijuana, and fourteen have replaced state criminal penalties for possession of some amount of marijuana, imposing a small fine for a civil infraction instead (“decriminalization”).  The Tenth Amendment allows a state to refrain from taking action against all or some marijuana users.  It does not allow a state to set aside or interfere with the enforcement of a federal law.

Most problems for a state arise when it attempts to act in an area in which the federal government has acted and the state’s act conflicts or interferes with the federal law.

Although, as noted above, a state may act if that action is roughly parallel to or supportive of federal action, three activities are constitutionally forbidden to the states.  A state may not nullify a federal law, direct or compel its agents or citizens to violate a federal law, or take any action that interferes with the enforcement of a federal law or makes its enforcement more difficult.

Nullification, or the theory that a state could set aside a federal law, preventing its enforcement within that state, gained some support very soon after the ratification of the Constitution.  It was proposed, even though no state attempted it, until the 1830s when South Carolina announced that it intended to prevent imposition of the new tariff in its state.  When President Jackson threatened to use federal troops to enforce the law, South Carolina backed down, and no state has seriously claimed the power to nullify since then. 

The inability to nullify federal law has greatly hampered state attempts to implement medical marijuana laws.  A marijuana distributor, legal under state law, is still just an illegal drug dealer to the DEA and may be convicted and sent to federal prison.  If a bank accepts deposits from that distributor, it has probably violated federal money-laundering laws; and that distributor’s landlord may find his property forfeited under the Continuing Criminal Enterprise Act.  Many early attempts at medical marijuana laws ran afoul of the nullification ban by trying to require doctors’ prescriptions or distribution by pharmacies, either of which would be an attempt to nullify federal laws regulating prescription drugs.

A state may not require one of its agents or employees to violate the federal law.  At least two states that originally proposed state-run dispensaries and growing operations had to drop those provisions.  The New Jersey statute has been delayed for about two years because the governor tried to require that a state university grow all of the marijuana to be distributed.

The requirement that a state not hamper or interfere with federal enforcement of federal law is proving problematic.  A California Appeals Court has ruled that a city may not require marijuana dispensaries to obtain a business permit because that could make federal law enforcement more difficult[2].  Likewise, a local ordinance requiring all outdoor marijuana growing be screened by fences so that it could not be seen from the street is probably unconstitutional.  A DEA agent’s job would be hampered because he would be unable to see the illegal activity from the street.

The Tenth Amendment is not a sword the states can use to cut down or limit the federal law.  At most it is a shield, allowing states to refrain from being co-opted into joining the federal enforcement.  Constitutional state reform of marijuana law is limited to the extent that, at most, a state may elect to be an onlooker of the War on Drugs instead of a participant.

---

[1][1]  Federalism deals with the allocation of powers between federal and state governments.

[2] Now under review by the California Supreme Court

Wash My Mouth with Soap

          For some time now – at least a decade – I have been dissatisfied with the language used to describe the use and regulation of controlled substances.  So it’s time to wash my mouth out with soap (at least figuratively) and clean up my vocabulary.

What is wrong with our current vocabulary, based on the concepts of addiction, drug abuse, and controlled substances?  It has four fundamental flaws that prevent rational discussions of the issues involved.  It turns inanimate, morally neutral chemicals into immoral destructive agents; it creates a dichotomy between abstinence and addiction, overlooking all other behavior patterns; it also dichotomizes medical applications and abuse, ignoring a universe of other motivations for consumption, turning all users not following strict medical instruction into criminal Others; and it improperly reifies “dangerous drugs” from a legal category into an actual substance. 

Demon Rum invaded political thinking during the 1830s.  Alcohol was personified as an active agent of evil, lurking to pounce on – and destroy – any innocent soul who fell into his trap.  This personification carried over into the concept of drugs as an aggressive enemy in a War on Drugs.  The problem is that drugs are neutral chemicals and may be used for either good or evil.  Just as Nobel’s dynamite could be used both to build railroad tunnels and to raze cities through bombardment, morphine could be used both to enable life-saving surgery and to satisfy an addict’s compulsion.  Methamphetamine is both a bane on the street corner and a path to a normal life for a child with an attention disorder.

The reaction to harmful alcohol consumption began as a temperance movement, memorialized by the still-used name of the Women’s Christian Temperance Union.  Dr. Benjamin Rush, the Founding Father from Philadelphia, was one of the first to recognize that harm could result from excessive consumption of distilled spirits; but he also recommended beer, wine, and cider as healthy beverages.  By the end of the Civil War the idea of temperance had been replaced by that of total abstinence forcibly insured by the absolute prohibition of alcoholic beverages.  This goal of forced abstinence through legally mandated prohibition was then made the mechanism for controlling all drugs.  This limited view of intoxicating behaviors has led to common acceptance of myths like the claim that a single taste of crack cocaine can create a lifelong addict.

This kind of binary, all-or-nothing, thinking about the effects of drug use led naturally to another binary concept.  The accepted wisdom became that all use of drugs that was not medically mandated and under a doctor’s supervision was abusive or addictive use.  This belief has persisted even in the face of centuries of social and personal use of drugs like alcohol, nicotine (tobacco), and caffeine (tea and coffee).  One consequence is that a person experimenting with a single marijuana joint is viewed as a criminal other and treated as a dangerous stranger to be punished and expelled from common society.

Dangerous drugs do not exist although the use of many, if not all, drugs may have dangerous consequences.  Aspirin may cause gastric bleeding and prevent blood clotting while many have used heroin or marijuana for decades with no adverse consequences (except for those imposed by the criminal laws).  On the other hand, the human body does not distinguish between heroin and morphine.  These two drugs can be used almost interchangeably as medicine, but the law interposes an unbridgeable chasm between them.  Heroin, marijuana, and LSD have nothing in common, but “Just Say No” thinking treats them as if they were a single substance.

The concepts and ideas behind this traditional vocabulary limit thinking about management of drug taking behavior to a few worn-out concepts.  It also prevents considering alternatives outside of the Prohibitionistic all-or-nothing, heaven-or-hell sloganeering.  It is time for developing new ways of talking so that new ideas can enter the discussion.

Having thoroughly cleaned my mouth (and hopefully my brain as well), I resolve to change my way of talking.  No longer will I talk about addiction, addicts, or drug abuse.  No longer will I refer to “dangerous drugs”.  

“Dangerous Drugs” do not exist.  The problems (and benefits) accompanying opioids are different from those around stimulants, anti-anxiety drugs, hallucinogens, or marijuana; and they should be dealt with separately.  If they must be discussed as a group, “controlled substances” may be the best way to aggregate them.

Drug addiction and drug abuse refer to two different concepts and need to be replaced with a different organization of ideas.  Instead of the all-encompassing “addiction” I hope to present a more analytic range of drug-using behaviors ranging from experimental use through casual to social use.  Most users would fit into one of these categories.  Those into heavier or more routine use would be either habitual or compulsive users, the last category including many of those now counted as addicts.

I have never seen anyone abuse a drug (the image that phrase calls to mind is that of a poor, innocent pill strapped to a post while some meanie lashes it with a big whip).  Some drug users do use them in ways that are damaging either to themselves or to those around them.  The paradigmatic examples are tobacco users whose compulsion leads about 400,000 of them to death each year and those who drink alcohol in ways that facilitate their killing others in car wrecks and indulging in domestic violence.  This distinction also provides for a way to analyze the differences between heavy and repeated use and binge use that frequently leads to harmful conduct.

Simply cleaning up the way people talk not only removes harmful and false myths from our discourse; it also opens the door to explore new solutions for long-standing problems.

I hope my newly-cleansed mouth will lead others to follow my example.