Saturday, July 27, 2013

Informants: Deal with the Devil

Informants: Deal with the Devil


The Federal Courthouse in Boston has been busy with the trial of the man on top of the FBI’s “most wanted” list for sixteen years.  He is Whitey Bulger, mob boss, dope dealer, gambling racketeer, serial killer … and FBI informant.

Whitey was head of the Winter Hill gang, a South Boston Irish mob in competition with Patriarca’s traditional Italian Mafia based in the North End.  Both gangs were in drug dealing, gambling, loan-sharking, prostitution, and other traditional gang businesses; and they were in violent, bloody competition with each other.  For about twenty years, Whitey had a deal with the Boston FBI office in which he gave them information about and access to the Patriarca gang and they gave him money, did not prosecute him for federal crimes, and even informed him about state investigations, and prevented state acquisition of evidence against Whitey’s crimes – including murders the FBI knew he committed.  Ultimately, when the story came out, several FBI agents were sent to prison for long terms for their involvement with Whitey.  And gang activity was just as strong as it had been before: use of this informant did nothing to suppress crime or protect public safety.

The Bulger case would look like an aberration if the case of Gregory Scarpa in New York during the same time period follow the same path.  Scarpa was associated with the Five Families of the New York mafia, and had a similar relation with the FBI.  The major differences were that Scarpa personally killed over forty people to Bulger’s more than twenty, Scarpa received over a million dollars from the FBI as direct payments, and Scarpa’s FBI handler escaped prison when the evidence at his trial was compromised.

While these cases are epic in scale, they reveal elements common to all informant cases from the smallest five-dollar drug buy to the multi-million sell-outs by Mexican Cartel killers.

In every informant case, the police insure that a known criminal is returned to the community to continue his crimes.  These crimes are known and their costs can be estimated to a reasonable degree of accuracy.  On the other hand, the police only have hopes that the informant will be useful in stopping other criminals, but that hope is grounded only loosely in reality.

Does an informant ever tell the truth?  One who is being paid for information makes sure to supply what the customer wants.  Somewhere, some time, in the long history of the world, a paid informer may have told the truth, but if so, that event has not made its way into the record.  Countless wrongful convictions rest on the lies of informants.

With every informant, the question arises: is the informant helping the police or is he using the police to bolster his own business?  The Bulger and Scarpa cases stand out, not because they are different, but because they are bigger, lasted longer, and present more complete records.  In both cases, just like the five-dollar street buy, the information the informants selected to share was information that disadvantaged their competition more than it aided the police; and they routinely suppressed information incriminating their employees, bosses, and allies.

The real problem with informants is the effect they have on police.  The police start out by condoning the informant’s crimes.  They then move to assisting: they provide five dollars to make a street buy or a gram from the evidence locker to make a sale.  The next step is to protect the snitch from other police – and then to actively concealing his crimes.  From there, a short step moves to participating in those crimes.  Soon the cops are little more than members of the game.

Making an informant is surely a Deal with the Devil; only evil can win.  Not only does it leave a criminal on the street, it empowers him to commit more, and more dangerous crimes.  It encourages perjury and its concealment, leading to false convictions and innocent suffering.  Worst of all, it corrupts law enforcement and weakens belief in the justice system.

Now is the time to say: “Get thee behind me, Satan”.  Refuse to accept the testimony of informants or of the cops controlling them in court and pressure your representatives to write informants out of the laws.  Justice by crook is no justice at all.

I took my title from Deal with the Devil, a report of the career of Gregory Scarpa, Sr., by Peter Lance.  For more on Whitey Bulger, read Whitey Bulger by Kevin Cullen and Shelley Murphy, long-time Boston Globe reporters, or Most Wanted by Thomas J. Foley, long-time head of the Massachusetts State Police.

Wednesday, July 24, 2013

Reforming Federal Marijuana Law

Reforming Federal Marijuana Law


More and more congressmen seem willing to discuss the issue of some move toward relaxing marijuana Prohibition, and the House version of this year’s farm bill even has a provision allowing universities to do research on industrial hemp.  The time is ripe to consider what the best restructuring of federal marijuana law would be.  At least four broad possibilities (each of which could have wide variations in detail) come to mind.  In addition, many other statutes only indirectly related to marijuana would need to be conformed to the overall reform.

The four basic approaches to reform are 1) recognize and accept state law reforms, 2) move marijuana from the Controlled Substances Act to the Dietary Supplement Health and Education Act, 3) enact a specific federal marijuana act, and 4) amend and restructure the Controlled Substances Act.  Any of the four could be reasonably effective, but each has its own particular benefits, limitations, and costs.  Each will be discussed in turn.

Additionally, many federal statutes and programs have either explicit or implicit consequences for marijuana use or distribution.  Only a few of these can be highlighted here, but all federal statutes will have to be nit-combed to remove or mitigate these consequences.

Simply recognizing state actions in passing their own marijuana laws would be the least controversial and the simplest way for the federal government to disengage from criminalizing marijuana.  However, this approach still leaves a major obstacle on the road to open, full medical use.  The FDA would still remain a formidable, almost impassable block to routine use by doctors and patients; and no clear, affordable path to FDA approval – necessary for sale or prescription for medical use – seems possible.  Any effective statute recognizing state laws must have an explicit exemption from FDA regulation so long as the product does not leave the state.

A better approach, and almost as politically safe for congress members, would be simply to move marijuana from the Controlled Substances Act to the Dietary Supplements Health and Education Act ( see my earlier “Marijuana: Drug or Herb?” posting).  This change would allow marijuana to be sold like other botanical preparations and replace pre-marketing FDA approval with FDA after-sales policing of deceptive marketing practices.  States would still be allowed to regulate subsidiary issues like sales to youths and impaired driving.  Since some controls would still exist, this approach would arguably satisfy United States treaty obligations.

Congress could write a separate marijuana statute, removing oversight of it from the DEA and NIDA and bypassing some of the more stringent FDA requirements.  The difficulty with this approach is the political near-impossibility of getting congress to do anything substantial.  However, a separate act could accomplish several things that less drastic forms will not do.  One of the most beneficial would be to protect various strains and cross-breeds developed by growers, similar to the way the Plant Protection Act protects developers of new strains of food, fiber, and ornamental plants.  A buyer selecting a BubblegumKushDeiselSkank would know exactly what she was getting.  Hemp could be supervised and encouraged by the Department of Agriculture just like cotton is and hemp oil could get the same kind of encouragement as a fuel as ethanol does.  The list could go on and on.

Drastically amending the CSA, or even repealing it, is an ultimate goal of drug law reform, but as a method of taking the first step of uncriminalizing[1] marijuana, it is problematic.  The approach so far has been to reschedule marijuana under the Act, probably moving it to Schedule II, but that move would only place marijuana in the same legal status as morphine, methadone, OxyCotin, cocaine, and methamphetamine.  Even if it were moved to Schedule V, where it probably belongs, and where it could sold (if it could be sold at all) without a prescription, lack of FDA approval and DEA regulations on manufacturing, distribution, inventory, and security would still block effective use.  Simply removing marijuana from the definition of drugs covered by the CSA would then require that congress take some further action like those described above.

Massive reform of the CSA is needed, but whether that should be coupled with immediate marijuana legalization is questionable.  The most important reform should be to impose separation of power and checks on balances on the act by separating rule-making and enforcement powers.  This kind of separation has already been effectively applied to both the old Atomic Energy Commission and to the FAA and the old ICC, with separate regulators and enforcers established.  The rule-making (including scheduling decisions) so be removed from the DEA and the Justice Department and transferred to the Institutes of Health, under Health and Human Services.  The DEA would remain as strictly a police agency.  At the same time, NIDA should be dissolved and its duties distributed among the other, and more appropriate, NIH institutes.

Additionally, the CSA schedules should be redone.  Schedule I should be eliminated and all the drugs currently in it moved to Sched. II. This consolidation would allow experiments and experimental use, not just of marijuana, but also heroin, MDMA, LSD, and many of the other psychedelics.  Schedules III and IV should be combined, as they were in the original draft of the Act, since no real distinctions between these schedules exist.

Whatever method of marijuana law reform is chosen, much clean-up work will be necessary.  Mountains of federal laws contain myriads of marijuana restrictions.  A partial list would include the tax code, banking regulation, asset forfeiture, employment drug testing, public housing restrictions, aid to college students, limitations on colleges and universities receiving grants, loans, and research contracts, … .  The list goes on and on.  Some of these may be rectified simply by making marijuana legal to possess, but many will have to be explicitly rewritten.

Marijuana law reform is rapidly becoming inevitable, but the form it takes is as important as the action of repeal itself.  Unless all concerned concentrate on what the future will be, few of them will like the outcome.  Now is the time for serious discussion and planning.  The future is at stake.

[1] I’m using this ungrammatical neologism because recent usage has limited “decriminalization” to the removal of criminal penalties only from the personal possession of small amounts of marijuana while allowing strong criminal sanctions to all other marijuana activity.

Thursday, July 18, 2013

Trayvon and Marijuana

Trayvon and Marijuana


Like many people, I have frittered away too many hours this past month on the George Zimmerman trial.  Two things about that trial left bad tastes in my mouth – one big and one small.  The big one was the poor job that the prosecutors did, but the small one is what I want to talk about: marijuana.

The medical examiner testified about the manner and cause of death of Trayvon Martin, but one line of his technical report was singled out for attention: marijuana was detected in Trayvon’s blood.  No evidence was introduced about how much “marijuana” (THC?) was found, nor whether it was ingested an hour before death or a month before, nor whether it was enough to have any effect on his behavior or attitude nor what that effect would be.  All that was introduced was … marijuana was found.

The marijuana report was not discussed, the word itself was enough to become a part of the portrait of Trayvon Martin silently, but thoroughly, drawn by the defense.

Trayvon was
            a young Black male
                        with a gold tooth cap
                                    wearing a hoodie
(insert here a grainy, high-angled surveillance photo of a man in a hoodie confronting a convenience store clerk – just like the hold-up scene shown on the if-it-bleeds section of every local newscast)
                                                who smokes pot.

Trayvon, then, is a Black, blinged-out, hoodie-wearing gangbanger.  Be very afraid!

Trayvon uses marijuana, but he is not
-- Barak Obama, who went to Harvard Law and the White House, or
-- Professor X, consultant to NASA, who explained the Cosmos to everyone, or
-- Satchmo Armstrong, extraordinary musician and good-will ambassador, or
-- Willie Nelson, still singing, touring, and sponsoring benefits at seventy-five.

No, Trayvon is none of these; he is a dope-smoking Gangsta out to kill us all.

Be very afraid!

Trayvon’s story shows that we have a lot of P.R. work we need to do.  Let’s get busy.

Wednesday, July 17, 2013

Puritanism Run Mad

Puritanism Run Mad


Lord Curzon, British Foreign Minister in the 1920s, described American alcohol Prohibition as “…Puritanism run mad.”  That same description also fits drug Prohibition.

Few realize the fundamentality religious foundation that has run through the various American Prohibition movements since the earliest part of the nineteenth century and that continues even today.

While revolutionary America was more secular than it has been at any time before the present, shortly after 1800 the Second Great Awakening swept across the country with revivalist fervor.  By the 1840s, this religious movement had become the dominant part of the cultural scene.  While the new Great Awakening had roots in the earlier Puritanism of New England, it developed new thinking that led to the new evangelical denominations of American Protestantism and, after the Civil War, it engendered two offspring:  the Social Gospel movement and Fundamentalism.  All of these branches of American Protestantism contributed to Prohibition.

New England Puritanism held to a gloomy Calvinistic theology that held a person’s fate was preordained even before birth and that nothing the individual did could change that fate.  Their concern, then, was that the church be a pure embodiment of God’s laws laid down in the bible and that the church enforce those laws on the government and community as a whole: make it a city on the hill[1].  Those who did not obey the church’s command, like Anne Hutchinson or the fictional Hester Primm, would be punished, not for sin or criminality, but for non-conformity.

While the nineteenth century Awakeners retained a sense of that need for compelled social conformity based on church doctrine, their personal theology had changed.  Rejecting strict preordination, they believed that each person through his own efforts could obtain salvation.  This effort toward sanctification required strict sobriety so that the mind could remain focused on spiritual and moral matters.  They, therefore, became the leaders of the temperance movement, forerunner of alcohol Prohibition.

After the Civil war, these evangelical Awakeners gave rise to two new protestant movements.  Their concerns with personal improvement gave rise to the Social Gospel movement, in which churches became concerned with improving the social and medical lives of other people, still a major concern in the so-called mainstream denominations.  On the other hand, the old Puritan ideal of strict application of God’s law and the need for social conformity led to the groups later called Fundamentalists.  Fundamentalists insisted on a literal and strict application of biblical truths to all aspects of life.  They first gained widespread public notice by their opposition to evolutionary sciences, which still continues, and later have led the opposition to abortion and the recognition of civil rights for homosexuals.

The interests of these two groups came together with their support for alcohol Prohibition.  By the end of the nineteenth century, the Prohibition forces were led by two groups, both religiously based.  The Women’s Christian Temperance Union was rooted in the mainstream protestant denominations and drew most of its principles from the social gospel movement.  The Anti-saloon League was more in tune with the early puritans and the fundamentalists with its emphasis on governmental action to force social conformity with moral standards.  The two groups working side by side were able to force a political majority that brought about alcohol Prohibition by constitutional amendment.

When narcotics regulation started with the Harrison Act, it was an attempt to regulate and manage what was seen as a medical problem.  A decade later, when Alcohol Prohibition was being vigorously enforced and when then-current medical knowledge was unable to “cure” addicts, were the drug laws changed to a Prohibition model with the passage of the two heroin acts.  Harry Anslinger, soon to become head of the Bureau of Narcotics for decades, had started in the Prohibition Bureau.

As alcohol Prohibition fell apart in the early 1930s, the profession Prohibitionists, particularly those of the Anti-saloon League switched their allegiance (and their speaking fees) to prohibiting drugs.  With the help of Anslinger they were able to convert the medical effort (that had not been very successful) to mitigate drug use into a new moral crusade to remove an evil from the world.

By the 1980s, they had an ally in the White House who finished turning Nixon’s politically-based War on Drugs into an absolutist Puritanical crusade to reshape the world.  The Nixon-Carter emphasis on treatment and harm reduction turned into “Just say ‘No’”.

The religious roots of Prohibition today reveal themselves primarily in two aspects of the crusading War on Drugs.  The first is to demonize the drugs themselves as pure agents of evil, but just as parts of the natural world to be dealt with rationally.  The second is the all-or-nothing insistence on absolute victory over this evil instead of dealing with normal human behavior.  

If this brief sketch is correct, what lessons can a drug law reformer draw from it?  The first is to quit trying to persuade these neopuritans by facts or logical argument.  True believers may undergo conversion experiences, but they are not susceptible to rational argument.  The second is to realize that their ignoring fact makes them open, not just to rebuttal, but to discrediting when those facts are clearly presented to honest audiences.

Puritanism is easier to overcome than an opponent working from facts selected by bias, but reformers need to take the initiative and expose them for what they are.

[1] Not, as ronald reagan so often misquoted “ a shining city on a hill”

Wednesday, July 10, 2013




This essay will be different from my usual pompous, pedantic pontifications.  I want to enlist some of you to help me turn the spotlight of truth on one of those non-barking dogs in the night I’ve previously talked about – the dog of Driving Under the Influence of marijuana.  Let’s show him to be, not the snarling, threatening horror hound that has been sicced on us, but a toothless, sniveling, flea-bitten cur.

 Drug Warriors frequently argue from the fear of stoned maniacs wreaking carnage on the streets – a scene directly out of Reefer Madness, but that scene has no basis in reality.  By now, the facts should be available to rebut that scary dog, but some of you are needed to collect those facts.

The raw numbers suggest that a lot of drivers have indulged in a little marijuana before (or even while) hitting the road.  About twenty states, including over thirty percent of the national population, now have laws permitting medical use, decriminalizing, or legalizing marijuana; and the California medical use program (viewed by many as fig-leaf legalization) is now over fifteen years old.  The federal government estimates that over fifteen million people use it more than once a month.  And all of these people don’t just walk or ride the bus.  Millions of miles of herb-scented driving must have been logged over the last twenty years.

And there, dear readers, is where you come in.

Modern police forces love to collect statistics; and most of that data is available to the public, often on web pages.  These statistics should show several things that can be analyzed by year or even month:
            - number of total DUI arrests
            - number of DUIs involving alcohol only
            - number of DUIs involving marijuana only
            - number of DUIs involving multiple drugs
and in each of these categories:
            - the number involving wrecks
            -wrecks with injuries
            -wrecks with deaths.

But these quantitative data tell only part of the story.  The numbers should paint a qualitative picture as well. My intuition suggests that alcohol is overwhelmingly more bloody than marijuana.

I grew up in a small city at a time when television was just appearing.  The newspaper printed the local police blotter each day.  For the last thirty years I have lived  in a very large city where the daily police report would be as thick as a phone book.  The paper is reduced to reporting only the most vicious, bloody, or scandalous police reports, and each day those include around a half dozen deadly or spectacular auto crashes.  Almost all of these (as well as the top stories on the local “if it bleeds, its leads” tv news) involve drivers who had been drinking alcohol.  I can’t remember a single one of these reports in which the driver was alleged to have used only marijuana.  Marijuana-induced behavior is normally the opposite of those effects of alcohol that lead to the high-speed, reckless crashes ending in death or serious injury.

Simple police statistics probably will not reveal these details about injuries or deaths, but at least some of them should be available to researchers in public health fields.  The CDC may have collected much of this information.  In many places, ambulance service is provided by fire departments, and their data on car wrecks and trips from them to emergency rooms are probably public data.  Correlations between ambulance runs and police reports on wrecks should allow collection of data on wrecks, DUI arrests, and the types of drugs involved.  I’m primarily guessing on this, and I’m sure some of you know much more about what data is available and how to find it.

Collection and publication of this data is important.  I urge you to do whatever you can, and to encourage your associates to join the effort.

Facts are the best weapon against fear; and the facts about DUI marijuana will reduce the hypothetical mastiff of reckless rampaging potheads into a snoozing lapdog stoner.  The political establishment has no interest in assembling and distributing this data: they are too busy shoring up a failed prohibition scheme.  It’s up to us to ferret out this information and make sure the public knows about it.

Truth is our best weapon.

[Personal note: I have abandoned fifty years of academic indoctrination to use a first person dialog style for this piece, and it is really uncomfortable for me to do so.  I’ll probably stick to the more formal, impersonal style most of the time, but I’m willing to say “I” more often in the future if it’s effective.  What do you think of this attempt to stretch my stylistic wings?]

Friday, July 5, 2013

Treat Marijuana Like Alcohol -- Not

Treat Marijuana Like Alcohol – Not


Great political strides toward the legalization of marijuana have been made in the last few years, many of them using the slogan: “Tax and regulate marijuana like alcohol.”  But when viewed as a part of the broader picture, does this slogan do more harm than good?

While the slogan makes some sense, it has two defects, both related to the same flaw.  That flaw is that, except for being prohibited substances (alcohol historically and marijuana today) the two have almost nothing in common.  The differences between them leads to the flaws.

The first is that the user of the slogan may be saying “treat marijuana like alcohol”, many –or most – listeners hear “marijuana is like alcohol.  Since alcohol is far and away the most socially destructive drug, those who hear “marijuana is like alcohol” are reinforced in their long-held belief that marijuana is a demon drug that turns users in Reefer Madness” homicidal maniacs.

The second flaw leads from the same confusion.  No reason exists to regulate and tax marijuana like alcohol.  While legalized marijuana will need some regulation and may be the source of some tax revenues, the reasonable basis for this regulation is quite different from that for alcohol.  Regulation of alcohol is based on its proven record as a socially dangerous drug.

The text of the slogan has been reasonable and politically effective in recent years, but that text is accompanied by both context and subtext, both of which are harmful.

The context within which the slogan is used is one of fear and false history.  Everyone under the age of seventy in America has been raised, educated, and acculturated in a society that loudly proclaims marijuana to be evil and destructive.  They have been taught from the cradle not to use “drugs” and that the merest taste of a “drug” will destroy them.  They accept as a matter of faith that marijuana is one of those destructive drugs and that it must be ruthlessly suppressed.

Operating within this context, the slogan, unsurprisingly, evokes the subtext that marijuana is like alcohol.  Most listeners when they hear the slogan think about marijuana in terms of
            -- thousands of acute overdose deaths each year,
            --tens of thousands of impaired driving deaths,
            --more than one hundred thousand deaths from drug-related illnesses,
            --daily newspapers full of domestic assaults and other violent crimes,
            --untold broken families and neglected children.
The fact that these horror stories spring from the misuse of alcohol and have nothing to do with marijuana does not matter because marijuana is like alcohol and therefore must have the same consequences.

The political fight is almost over: national polls show a majority favoring legalization of marijuana and overwhelming majorities for medical use; states are lining up to legalize, decriminalize, or approve medical use; even in Congress some discussion is taking place.  The betting is no longer on if it will happen, but on when.  The struggle now is to change the social milieu to one more open and accepting.  Normalization of marijuana is the next step.

But that step will need a new slogan – a slogan that more properly portrays both marijuana’s lack of danger and its social acceptability.  Good slogans, like the one being replaced, are often based on similes, so the problem is to find an exemplar that more closely parallels marijuana than alcohol does.  One psychoactive drug in common use may fill that role, although even it is more dangerous than marijuana.

Now is the time to roll out a new campaign slogan: