Thursday, February 28, 2013

Sequestration Speculations

Sequestration Speculations


Sequestration of a substantial portion of Federal spending, uniformly across all agencies, is set to begin March 1.  These impending cuts prompt the question of what effect they will have on the War on Drugs.

These cuts add up to about $85 billion for the remainder of this year and apply (with some exceptions) proportionately to all federal agencies.  They will amount to almost five per cent of all expenditures.  The list of Drug War agencies affected is amazingly long. 

They include the DEA, FBI, and Bureau of Prisons.  The Border Patrol, a branch of ICE, is heavily involved.  The National Institutes for Drug Abuse and Mental Health are also affected, as may be some of the CDC’s data collection and research.  US attorneys’ offices spend much of their time preparing and trying over 14,000 criminal cases a year, about half of them drug-related; and the courts must hear those cases.  The Coast Guard diverts many of its resources to the attempted interdiction of drug smugglers.  Even the Department of Education must screen some aid recipients for drug convictions and public housing agencies screen against drug users.  This list, while long and extensive, is not complete.  The Drug War has become so pervasive that few government branches are not affected.

The cuts will vary from agency to agency.  Drug War-related activities are a minor part of what the CDC does.  Across the board cuts there will have little effect on drug-related activities and, if the drug-related costs were shifted to easy burdens elsewhere in the agency, their gain would be minimal.  On the other hand, confinement of those convicted of drug crimes is a major part of the Bureau of Prison’s costs – between one-third and one-half of federal convicts are there because of drug crimes.  Much of BOP’s costs are irreducible, going for security, meals, medical costs, housing and clothing.  The determinate sentencing laws limit their ability to release non-violent prisoners early.  BOP will be hard-pressed to cut five percent.

The Coast Guard’s path is easier to predict.  Drug interdiction is far down the list of its priorities.  Interdiction resources can easily be shifted to more urgently activities like search and rescue.

At first glance, the Border Patrol looks much like the Coast Guard.  It has multiple tasks: preventing illegal entries, blocking contraband and arresting smugglers, stopping terrorists; so it should be able to prioritize those tasks.  However, the differences between the agencies probably prevent this.  The BP uses the same techniques for all of these tasks.  It conducts inspections at entry points and patrols the rest of the border to intercept intruders.  However, the BP could make a procedural change that would create large savings.  At inspection points, identifying legal entrants is straight forward and takes little time.  Searches for contraband are time and resource consuming and create major delays.  Simply stopping suspicionless drug searches of those legally crossing the border would save a significant amount of agent labors, leading to large savings.

The courts have to take the cases brought to them.  At first glance, all they can do is add to their dockets and let trial delays pile up.  Determinate sentencing laws limit their flexibility on plea bargains.  However, they do have some indirect discretion; the can pressure U. S. attorneys to file fewer criminal cases.  But about twenty years ago, they pressed that power almost to the limits when they “encouraged” the USAs to allow minor drug cases to be tried in state courts.  That sponge may already have been  squeezed dry.

The Department of Justice could be the game changer.  In addition to containing the DEA, FBA, and BOP, it supervises the U. S. attorneys.  The FBI and DEA function mainly through field agents.  If their budgets are cut, the main effect will be to reduce the number of active agents.  Either fewer cases will be investigated or complex cases will be ignored in favor of simpler ones requiring less agent involvement.  Less money may be available for paid informants, which would put a major crimp in investigations.

U. S. attorneys may be pressed to put less effort into major news-worthy cases, including those against large medical dispensaries in California, and more effort into simple prosecutions that can be resolved quickly with guilty pleas.

Sequestration may have its greatest effect on the Justice Department at the policy level.  For four years, it has been trying to deal with medical marijuana in several states, choosing to ignore patients and small, obscure suppliers.  Now it is also faced with legalized marijuana possession in Colorado and Washington.  These laws have been in effect for three months now, but all Attorney General Holder has done is to say that a policy announcement will be issued soon.  Budget cuts suggest that any kind of heightened enforcement is unlikely.  Sequestration may force the acceptance of these new laws as faits accompli, and thus encourage other states to join the bandwagon.

These speculations suggest that the forced budget cuts will not lead to dramatic changes in the Drug War. But some quiet changes may weaken the over-all strategy.  Less effort may be put into drug interdiction, leading to lower prices and higher purity for cocaine ad may encourage some Andean producers to bypass the Mexican cartels and resume direct importation.  The Administration may be forced to grudgingly be more accommodating to state efforts both for medical marijuana and legalization.  In short, the result will probably be a slight acceleration in trends already in progress.

Like most speculations, these are probably wrong.  Soon the real world will expose their shortcomings.

Sunday, February 24, 2013

Marijuana Farming

Marijuana Farming

Press releases from the DEA and police agencies point with alarm to western pot farmers who, they claim, are wreaking environmental havoc.  But what they do not point out is that this damage is not the result of marijuana farming; it is the result of illegal pot farming.  It is part of the excessive costs of the extremely costly, totally ineffective failed “War on Drugs”. 

Most of these stories take place in National Forests, where illicit marijuana patches have been planted, but a few of the growths were planted by trespassers on private lands with absentee owners. 

The damages include stream pollution by fertilizer and pesticide run-off, soil erosion from improper tillage, trash (including fecal waste), and barbed wire – damaging to wildlife and unwary hikers.  Some plots are even protected by booby-traps: trip wires connected to explosives.

Dangerous marijuana growing even occurs in cities.  Rental houses, often in exclusive residential areas, are turned into grow houses.  These all have extensive grow light, ventilation, and irrigation systems and frequently steal electric power by wiring around electric meters.  Very little of the wiring is done by licensed electricians and none of them are inspected by local government code enforcers.  These houses present serious fire dangers to the surrounding neighborhoods.

None of this damage and peril has to happen.  It is the result of barring legitimate farmers and their good agricultural practices from growing marijuana and turning it over to outlaws with no relations with or obligations to the community.  If marijuana were legal, legitimate farmers would grow it.  They would protect their fields and prevent environmental damage, just as they do when they grow cotton or cabbage, corn or broccoli.

Corruption of the production system is an unavoidable consequence of prohibition.  The destructive effects on marijuana farming are merely the latest examples.

Methamphetamine was developed in the teens of the last century.  It became a pharmaceutical best-seller in the 1930s and was still an industrial leader when congress tightened regulation of stimulants in the 1970s.  Now the news is full of scare stories about illegal meth labs, with their toxic wastes and explosions in residential areas.

But they never mention the legal labs that safely manufacture methamphetamine to be prescribed for children with ADHD under the name Desoxyn.  These legal meth labs don’t explode and don’t start fires.  They do pass EPA and FDA inspections.

The Merck company has produced legal cocaine for over a century, and the entire current legal cocaine supply for the U. S. is made by an affiliate of the Coca-Cola company as a by-product of the manufacture of decocainized leaves for flavoring.  Neither of these companies has acted in an environmentally irresponsible way.

But when the DEA attempted to suppress illegal cocaine production in the Andes, the now-illegal farmers switched to slash-and-burn destruction of rain forests and polluted their surroundings with chemical wastes from coca processing.  Once again, outlawing farmers created bad neighbors.

Alcohol Prohibition created both dangerous home processing and rural devastation.  When Al Capone sold booze in Chicago, much of the alcohol was produced by small, hidden stills in urban tenement apartments.  These bathtub stills often exploded and started fires in tenements in every major city.  Southern moonshiners still trash forests and streams around their stills, just as they did during their Prohibition heyday.  Now Anheuser-Busch and Jack Daniels are positive assets to their communities.

It’s time to legalize marijuana and let legitimate farmers displace the dangerous outlaws now running – and ruining the business.  Tomatoes grow in zoned, safe hothouses, and wheat is grown without fertilizer run-off or topsoil erosion.  And when was the last time a load of cucumbers was hijacked?  Good farmers are good neighbors, whether they are raising beer (barley and rice), rum (sugar cane), whiskey (corn and rye), or marijuana.

To paraphrase the old bumper sticker:

While marijuana is outlawed, only
outlaws will grow marijuana.

Tuesday, February 19, 2013

Unhappy Birthday

Unhappy Birthday


The Harrison Narcotic Tax Act has its centennial next year.  That’s right: Drug Prohibition in America will have its unhappy 100th birthday next year.  We have piled up an entire century of expensive, destructive failure.

Something needs to be done to commemorate this sad milestone in our history.

How do we count the costs? Trillions of dollars have been spent.  Millions of people have be imprisoned.  Hundreds of thousands of lives have been destroyed – shot in the streets (police, sellers, users, and by-standers), ODed on street drugs, wasted by AIDS and hepatitis C, billions of dollars funneled into the pockets of violent criminals, tens of thousands of otherwise honest law enforcement personnel corrupted.

And Prohibition has failed in its mission.  Drug use – and misuse—is more widespread than it was before the failed crusade began.

This sad history needs to be placed before the public.  Next year is the time to drive home the message about the harm Drug Prohibition has done to our society.

We have about a year to plan and organize.  Let all of our communities speak out locally and nationally about this horror.

You all have ideas.  Post a comment about what can be done – what and when and where.  And start getting your local groups organized so that, together, we can speak with a loud and compelling voice.

Sunday, February 17, 2013

MJ, DEA, and APA

MJ, DEA, and APA

(Ladling the DEA’s Alphabet Soup)


The U. S. Court of Appeals has refused to require the DEA to reschedule marijuana out of Schedule I for the third time.  These DEA victories have come in spite of overwhelming evidence that marijuana has medical value and is widely used for medical treatment across the country.  If one were playing poker and lost three hands in a row while holding a royal flush each time, one would decide that it was time to change games or even find a new casino.

The DEA’s victories on busted hands are the result of the petitioners’ playing the wrong game in the wrong casino.  They have been playing in the agency’s own game room where the Administrator makes up his own rules.  The time has come to move the game from the DEA’s casino to the courthouse.

The route to this move lies in the Administrative Procedure Act.  This Act controls both the way administrative agencies carry out their business and the relationship between the courts and the agencies.

(This discussion is going to lead deep into the weeds of legal process, but if an interested layperson hangs on tight, the result will be worth it.)

From the creation of the Interstate Commerce Commission, Congress spent the next forty years regularly creating administrative agencies: Public Health Service, Forest Service, Bureau of Reclamation, Federal Communications Commission, Civil Aviation Authority (later FAA) and others.  But, ushered in by the Great Depression, the 1930s turned that stream into a flood, from FDIC and TVA to SEC and FDA.  The problem was that all of this alphabet soup was created on an ad hoc basis, each agency having its own legal basis and procedure.  To cope with the resulting confusion, Congress passed the Administrative Procedure Act to provide a uniform legal and procedural framework within which all agencies would function.

The Act divides administrative acts into two categories: adjudication, in which individual claims or liabilities are determined, and rule-making, in which mandates or requirements of general applicability are promulgated.  Rule-making is, in turn, divided into informal and formal (on the record) proceedings.  DEA drug scheduling is a formal rule-making procedure.

In formal rule-making, after the agency gives notice of a proposed rule, any interested party is entitled to see, and respond to, any evidence adduced and has the right to introduce evidence itself (an oral hearing is not necessary and no one has the right to cross examine).  The agency must base its final rule on the record viewed as a whole.

The APA also regulates relations between agencies and the courts.  It dealt with two problems: courts had been aggressively interfering with agencies’ ability to carry out their function and no clear delineation existed between the jurisdictions of agencies and courts.  The Act solves these problems by specifying fact-finding authority and by defining jurisdictions for clarifying or interpreting statutes.

Agencies are given almost complete fact-finding autonomy under the act.  In informal proceedings, a court must uphold an agency’s findings unless they are arbitrary and capricious.  In other words, an agency determination will not be set aside unless it is completely unreasonable.  In formal proceedings, factual determinations will be upheld if they are supported by substantial evidence considering the record as a whole.  Substantial evidence is defined as more than a scintilla but less than a preponderance.  These two standards must be compared to the fact-finding standards a trial court must meet to avoid having its verdict set aside on appeal.  In a civil action, a verdict must be supported by a preponderance of the evidence.  In order words, the evidence must show the factual findings are more likely than not.  In criminal cases, a trial fact-finding will only be upheld if the evidence supports it beyond a reasonable doubt: to a moral certainty.  Laying out this spectrum of burdens of proof shows how nearly unassailable an administrative finding is.

As far as questions of law are concerned, courts have greater, but not absolute, powers.  After all, in the American system of government, the courts are the experts in interpreting and applying the laws.  The courts are the ultimate judges of the constitutionality of both statutes and administrative actions.  Similarly, courts are experts in statutory construction, but they are required to give due deference to an administrator’s construal of a statute when useful in carrying out the duties of the agency.

Now that the weeds have been chopped down – or at least pushed to the side, the problem of marijuana scheduling can be analyzed.

In three attempts at rescheduling marijuana spread over forty years, proponents have done an outstanding tactical job of marshalling the facts behind the marijuana claims for marijuana.  But to some extent blinded by their own conviction of the worth of medical marijuana, they failed strategically both by choosing the wrong battle and the wrong battlefield.  They have been fighting over the facts when they should be fighting over the law.  By making the issue one of whether marijuana had medical value or not, the issue became one in which a the biased DEA administrator became the referee of the factual dispute and one in which the standard of review was the extremely low substantial evidence test.  They were virtually guaranteed to lose this battle.  Suppose they introduced 999 clinical studied published in refereed medical journals showing medical effectiveness and the government introduced one article by a salaried NIDA hack appearing in a government publication.  That one article would be enough substantial evidence to prevent a court from overturning an administrative finding of no medical use.

The better strategy would be to avoid the DEA’s stacked deck of factual dealing and find a way to move the battle to the courts, where the DEA would be merely a combatant instead of being the referee.  In other words, the fight should be about the statute itself and not about the facts to which it is applied.

The vulnerable point of the DEA’s application is in the statutory language defining Schedule I drugs as those having no “currently accepted medical use in the United States”.  The DEA applies this as if it read “actual medical efficacy”, but this reading is fatally flawed on two grounds.  First, it assumes an unconstitutional power for the agency, and second, it is an interpretation of the statutory language that grants power to the agency in excess of that which congress authorized.

The Supreme Court, for eighty years, has consistently held that congress has no authority to regulate the practice of medicine, including the determination of what is medicine, that being an integral part of the states’ inherent police powers.  Congress has recognized this limitation: it has created the FDA with only an indirect method for regulating drugs.  The FDA is limited only to the prevention of the misleading or deceptive marketing of drugs and is given the authority to prevent misleading by requiring an approved label for the sale of any drug.  That label must be based on the scientific proof that the drug is safe and effective for the treatment of some medical condition.  Any attempt by the DEA to regulate the practice of medicine by declaring what is or is not a medicine is unconstitutional.  (See my earlier posting, “Currently Accepted Medical Use” for a further exploration of this argument.)

The DEA is also exceeding its statutory authority.  Congress only authorized it to determine accepted medical practice, not medical effectiveness.  The history of the FDA and the Pure Food and Drug and Food, Drug and Cosmetics Acts shows that congress was aware of the constitutional limitations on federal regulation of medicine.  Congress knew the difference between medical practice and medical effectiveness.  It required the FDA to get proof of medical efficacy only eight years (1962) before it defined Schedule I drugs as those without medical use.  Congress would also have avoided delegating proof of effectiveness to two different agencies both in the interest of efficiency and to avoid conflicting determinations.  The only reasonable conclusion is that congress did not authorize the DEA to determine medical effectiveness.

The strategy is clear.  Anyone wanting to argue the medical effectiveness of marijuana should do so in the medical journals.  Anyone wanting to reschedule marijuana from Schedule I should force the courts to rule on the constitutionality and construction of the statutory authority of the DEA.  The strategy is clear; now the talented litigators and appellate specialists must find the tactics to get these issues before the courts.