Monday, September 30, 2013

Good Golly Miss Molly

Good Golly Miss Molly


My favorite recreational drug has been thoroughly maligned in the press recently.  Two or three young people have died at music events, apparently of overdoses of a “new” drug known as “Molly”.  Molly was claimed to be an unusually pure version of the fad club drug of the 1980s and ‘90s: Ecstasy.  As is usual with drug stories, these reports were false and hysterically overdrawn; and they were false and hysterical in ways that repeat many other drug Prohibition tales.

But first comes a brief explanation of the drug known as Ecstasy.  Ecstasy (Eve, E, or X) is methylenedioxy-N-methamphetamine (usually known by the abbreviation MDMA).  It is a fairly old chemical, discovered in the 1910s, at about the same time as the related compound methamphetamine.  MDMA was ignored until the 1970s when Alexander Shulgin examined it as part of his extended study of psychedelics.   Psychotherapists were quick to pick up on its value and were using MDMA in couples therapy. Grief counseling, and end-of-life preparation.  After the DEA placed the drug in Schedule I, the use continued in other countries, and it is completing Stage III clinical trials for FDA approval now for use in treating PTSD.

The same effects of MDMA that make it useful for therapy also make it attractive as a recreational drug – increased empathy, expansive and relaxed mood, and heightened sensation (combined these features show why it is frequently called the “hug drug”).  Additionally, its physiological effects preclude addiction.  Since it depletes the brain’s supply of serotonin, additional doses have no effect.  By the early 1980s it was common in dance clubs in Dallas and Austin.  When the clubs themselves began selling it to their patrons and accepting credit cards for payment, the DEA rushed into an emergency scheduling procedure and placed MDMA in Schedule I.  In the meantime, use of MDMA spread to raves – large (thousands of attendees) all-night dance parties, all across the U. S. and over to Europe.  The Netherlands became the center of its manufacture.  This explosion in use was occurring while the DEA was rapidly enforcing its new powers against the drug.

Soon reports began appearing in the media alarming over Ecstasy “overdose” deaths.  Investigation revealed that those deaths were from heat exhaustion brought on by hours of dancing in close, overheated quarters without sufficient hydration.  Since MDMA does slightly impair the body’s heat regulation, it was a slight contributory cause of these deaths, but as the dance venues responded by providing cooling-off areas and access to water and as users learned the importance of hydration, these deaths disappeared (ironically, at least one subsequent death was attributed to water overdose – yes, one can kill himself by ODing on water – by a young woman who took the warnings too seriously.  During the same time period, more high school and college football players died of heat exhaustion during practice than died after taking MDMA.

As the DEA began enforcing its new ban on MDMA, the overt quasi-legal manufacturers in the Netherlands were suppressed and replaced by myriads of small, shady. Fly-by-night operations.  Counterfeits and adulterants became frequent, methamphetamine and DXM, the cough syrup ingredient used by many children as a weak hallucinogen, were among the most common[1].

The story now circles back to Miss Molly.  When follow-up stories examined the Molly scare, they found the incidents had nothing to do with MDMA.  Molly was a distinct synthetic chemical named ME-2, not related to MDMA except by marketing devices; and the deaths had nothing to do with MDMA.

The substitution of lethal ME-2 for benign MDMA repeats a sad dreary refrain recurring throughout the history of Prohibition.  During the 1920s, thousands died and many thousands were sickened or maimed by jakeleg and sterno or by adulterated alcohol (intentionally denatured by the government with known poisons).  Many – if not most – of the heroin deaths reported during the last century have been caused by adulterants or substitutions (one notorious epidemic was caused by the substitution of fentanyl for heroin).  Marijuana users know what has happened when dangerous chemicals have been marketed as “synthetic” marijuana.  Black markets have no chemical control; street-corner pushers are not inspected by the FDA.  When Prohibitionists are confronted with these predictable and sure results of their imposed morality, they merely shrug and say, “They did it to themselves.  They should have obeyed the law and abstained.”  The alcohol Prohibitionists even forced the government to use a more toxic denaturant so that drinking would be even more deadly.

The Molly incidents also renewed a frequent Prohibitionist propaganda ploy.  Molly was described as a purer and stronger form of MDMA, and therefore more deadly.  The story was first told about heroin being stronger and more deadly than morphine.  These doom-sayers proclaimed crack as a more deadly and addictive form of cocaine.  Meth is decried as much worse than its urbane brother, amphetamine.  And of course, their current cry is “It’s not your grandfather’s marijuana.”  Fear is apparently a classically addictive substance: its compulsive users exhibit tolerance.  They need larger and larger fixes to get the same result.

The Molly stories did not reveal a threat either to the youth of the nation or to public health.  Both of those could easily be achieved by legalizing and regulating MDMA.  What they did was provide another sad chapter in the irrational and destructive history of Prohibitionism.  Now is the time to replace myth and hysteria by a factual accounting of what is really happening.

[1] PERSONAL DISCLAIMER:  MDMA is my favorite recreational drug.  For several years in the mid-90s I used it often – about once or twice a month.  I stopped when counterfeits became so common that the risk of use was simply too high.

Tuesday, September 24, 2013

Policing for Profit

Policing for Profit[1]


Does your local police force have a brand new armored personnel carrier?  Are they all equipped with Kevlar vests and helmets?  Where did their new helicopter come from?  Are they talking about flying drones above your back yard?

And, most important, where did they get the money for all of this stuff?  It was not voted from local tax revenues by the City Council.  It was not allocated by the mayor from city funds.  It did not even come from the legislature in the state budget.

Instead, those goodies or the money to pay from them came directly from the federal government to the police force, bypassing all local governments and their oversight of police activity.  That’s right: the feds have bought your local police and didn’t even ask the mayor’s permission first.

And if they’ve bought them, they can tell them what to do.

As the federal government has escalated the War on Drugs over the last forty years, it has co-opted local police forces to do the dirty work for them.  They have used grants of both money and equipment to do this.  Over time three major grants have been initiated and favored police agencies have also been given access to Department of Defense surplus equipment: that’s where all those APCs AR-15s, and Kevlar vests have come from.

(The Rise of the Warrior Cop by Radley Balko gives a good history of the grant programs and their uses.  His main interest in this book are organizations like SWAT teams and their uses, a subject that should also be of great concern to drug law reformers.)

However, these grants are not unrestrained; they may be used for only three purposes.  The may be used primarily for local enforcement of drug laws and they are used to fund multi-jurisdictional drug task forces.

The third use is to reimburse local prosecutors, courts, and jails for the prosecution of drug offenses against defendants arrested by federal agents by for offenses deemed too minor for federal prosecution.  However, with recent federal budget cuts, this reimbursement has stopped.  In several sparsely populated Texas counties near the Mexican border, sheriffs and district attorneys are now refusing to file state charges against these federal arrestees, simply releasing them.

Local police can’t get these federal grants just by asking for them.  They must earn them.  And the way they earn them is by running up their statistics on the FBI crimes reports, reports based solely on the number of arrests.  Nationwide about half of all arrests are for drug offenses and more than half of those are for marijuana; around 800,000 arrests each year for simple possession.  Simple possession arrests are made by single cops without extensive preparation and little follow-up (but the cops love them because the routine of arresting and booking the suspect and appearing in court makes a lot of extra-pay overtime).  In contrast, a rape or murder may take many days for a team of detectives, using many forensic science tests, a week or more to solve; and an major financial crime can occupy dozens of specialized investigators months or even years to unravel.  To which crimes will a police chief trying to sell arrest numbers to the feds devote his resources and manpower?  Meanwhile violent and destructive law-breaking continues.

 Probably the most destructive feature of policing for federal dollars is the funding of multi-jurisdictional task forces.  These dollars from Uncle Sam pay for the formation and operations of police forces focused on drug law enforcements composed of elements from local, state, and federal police agencies.  These task forces operate outside the normal oversight and control of the local governments that provide the officers comprising the task forces.  Consequently, they are hotbeds for over-reaching and unlawful, abusive behaviors.

Two different tasks forces in Texas acted so outrageously that the state legislature passed a statute forbidding the use of state funds for these groups. (I’m not picking on Texas – it’s no better or worse than other states – I just know it better.)  In the ‘90s, two Texas task forces made the news.  In Tulia, a small town in the Panhandle, an undercover task force cop arrested about forty people for dealing cocaine – about ten per cent of the black population of the town.  After a few were convicted on the sole testimony of the cop and sentenced to twenty years or more, most of the others pled guilty.  Ultimately, that cop’s scheme fell about, he was convicted of perjury, and those convicted were pardoned[2].  At almost the same time, a task force investigation in Hearne, a small town near Waco, that had arrested over twenty people, mainly black, fell apart when it was revealed that they were all based on false reports from an informant who was both working out a plea deal and receiving money for his tips.  The common factor is that, in both situations, the task forces were not operating as a part of a regular police force subject to the oversight and discipline that these organizations provide[3].

When the police work to earn federal dollars instead of working to preserve public safety, everyone’s life becomes less secure, crime flourishes, and corruption spreads.  Now is the time to insist that the federal government stop buying police to join the War on Drugs and to tell your local police to protect the public, not prowl the beat for the profit in federal dollars.

[1] I got the title from Ann Lee.  Ann is an octogenarian, a stalwart of the Drug Policy Forum of Texas and a founder of RAMP, Republicans Against Marijuana Prohibition.  And she’s also the mother of Richard Lee.  Hanks, Ann! 
[2] For more on the Tulia story, read Taking Out the Trash in Tulia, Texas by Dr. Alan Bean.
[3] For more on snitches, see my earlier “Informants: Deal with the Devil”.

Thursday, September 19, 2013

Parsing the Cole Memo

Parsing the Cole Memo


  The August 28 memo of Asst. A-G Cole stating the conditions under which the DoJ will refrain from taking action against state marijuana laws provides the criteria which any new statute must meet, both in insulating new marijuana laws, but in structuring those laws to protect their citizens from federal prosecution.  Since several states are now discussing following the lead of Colorado and Washington in legalizing marijuana on the state level, understanding that memo is essential for their actions.  This memo will briefly discuss the implementation of those eight criteria.[1]

  The criteria, restated in brief are:

1.    Prevention of access by minors;

2.    Prevention of DUI;

3.    Prevention of participation by organized criminal gangs and cartels;

4.    Prevention of trafficking of marijuana to other states;

5.    Prevention of the use of violence and firearms in marijuana transactions;

6.    No allowance of other controlled substances;

7.    No possession on federal property;

8.    No growth or preparation on federal property.

These criteria create most, but not all, of the constraints imposed on drafting a new law.  This memo discusses how to comply with them.  However, drafters must change a mindset acquired through decades of working under a Prohibition scheme.  Until now, marijuana has been assumed to be contraband, legislation permitting its otherwise forbidden possession must be tightly drawn, and that all those engaged in its commerce are criminals (actual or potential) and must be under constant supervision.  Under the new guidelines, legislators can be more relaxed.  They may assume that those engaged with marijuana are lawful business people who conduct themselves accordingly and legislation should be drawn to regulate normal commerce, setting the borders for that behavior, not strict containment more proper for controlling nascent criminals.

Access by minors: Access by minors should be approached on both the demand and supply sides.  A minimum age for purchase (I prefer 18 instead of 21, see my earlier “Marijuana and the Young”) combined with requirement of an ID for purchase should be enough control on demand.

  Several techniques are possible on the supply side.  The simplest would be to copy the cigarette market and ban vending machines and self-service retail displays.  Methods of licensing up-chain suppliers and inventory controls are possible.  A portion of tax revenue could be devoted to science-based drug education.  Criminal penalties for sales to minors could be imposed.  The real problem here is selecting from a broad menu.

   A major consideration should be that no minor should be involved in the criminal justice system for possession or use of marijuana.  DUI and commercial quantity sales by those over 16 would probably be exceptions to this principle.

DUI: The current DUI statute will probably pass muster.  I, personally, would like to require the state to research and develop scientifically verified measurements for impaired driving performance, both biochemical and behavioral (and I don’t mean just randomly set blood, urine, or breath levels of metabolites).  Behavioral methods should be based on experimentally derived protocols, administered through scored checklists and recorded on video.  Dash cams are almost universal in patrol cars now.  I would devote a portion of any marijuana tax and license revenue to the project and stipulate that the new tests replace current ones in no more than five years.

Criminal gangs and Cartels This criterion is the most puzzling one.  If the federal standards – CSA, RICO, CCE – are used, the Gulf Cartel and Harborside dispensaries with thousands of patients and millions in revenue are indistinguishable.  A common sense definition would suggest three distinguishing characteristics: the criminal organization regularly engages in crimes other than drug transactions; they deal in drugs other than marijuana; and they often resort to violence.  With that assumption, the best way to satisfy this condition is to use a moderate licensing scheme from seed to sale.

  Licensing should include both the people engaged in the enterprise and the premises on which marijuana is grown or propagated.  Licensing should be relatively simple and inexpensive.  Onerous licensing will encourage avoidance and illegal enterprises.  Enterprise and employee licensing should require a criminal background check and proof of state residency.  It should include all owners and investors as well as operators.  An argument can be made that low-level employees need not meet those licensing requirements.  Any site on which marijuana is grown or propagated should be licensed in the name of a licensed operator, and that license should include the location and size of the property, proof of the operator’s ownership or lease, and permission for the state to enter and inspect.

  Inventory control, accounting, and reporting from seed to retail sale should be required.

  Hemp licensing should be less stringent.  The license should be limited to a specific location, be accompanied by a purchase agreement to buy all seeds from a producer whose seeds have been certified to be below a specified THC level by a recognized independent tester, and grant permission for the state to enter and collect sample for testing during the growing season.  Each year at harvest, the license holder should have to submit a THC test of the harvested crop.

Interstate Trafficking:  This may be the easiest standard to comply with.  The licensing and inventory controls outlined above together with a provision criminalizing out of state sales should be enough.  A quantity limit on individual retail sales (maybe 4 ounces) would also help with this issue.

Violence and firearms:  The act of legalization itself will accomplish this goal (remember the Capone to Budweiser transition?).  Perhaps an additional penalty on the use of firearms in any crime involving the commerce in marijuana could be added, but that would mainly be symbolic since armed robbery is already a serious felony.

Note that all three of the above criteria could be met more easily if, as A-G Holder has suggested, federal banking regulation is modified to allow routine banking by licit marijuana businesses.  A requirement that all commercial marijuana transaction be bank moderated or by electronic transfers would both eliminate the targets for robbery and provide audit trails to insure compliance.

Other controlled substances:  This standard primarily calls for inaction.  All indications, including results in The Netherlands and Portugal, are that separating the markets for marijuana and hard drugs weakens the sale of hard drugs.  The need is to be sure that new legislation does not, directly or by implication, relax laws controlling other drugs.

Possession on federal property: This is the most confusing of the Cole criteria for two reasons and the one over which the states have little control.  It is confusing because of the wide range in types of federal property and because the evidence shows that no real problem exists. 

Property ranges from the vast tracts managed by the Bureau of Land Management and the forest service, to National Parks – from Yosemite and Yellowstone to single buildings in urban centers, to military reservations, to post offices and courthouses.  Is Cole talking about thousands gathering for Burning Man or a postage stamp buyer who incidentally has an eighth-ounce in his pocket?

Data show that, since 2009, the Park Service has issued slightly over 27,000 citations for possession spread over the millions of park visitors.  This number is so small as to suggest no problem exists.

Be that as it may, state laws can have little or no effect on the issue.  It will remain a federal problem.

Production on federal property:  The problem of destructive outlaw growers on federal land will be solved simply by the act of state legalization.  Outlaw growers in remote locations cannot compete with overt legal growers because of their inherent inefficiencies and structurally higher costs.  Competition will quickly drive them out of business.  Further, a thoroughly, but lightly, regulated legal structure, as outlined above, will prevent their illegal production from having access to market.

Other Considerations

  In addition to the Cole criteria, some general considerations arise.

Taxation: Should any taxes beyond the general sales tax be imposed on marijuana, and if so, at what levels of the production-distribution-sales chain?  Should local governments be allowed to impose their own taxes?  Should any proceeds of taxes or licensing fees be dedicated to the costs of administering this law, to education about marijuana, to treatment or rehabilitation of problem users, or to any other special users?  What about medical users (see below)?

  Tax rates (which should be set on percentage bases, not flat dollar amounts) must be low enough to prevent black markets from being created by those wanting to profit through tax evasion.  Tax considerations must be based on the realization that marijuana as a legal commodity will sell for prices significantly lower than as contraband.  A conservative estimate is that it will sell for less than 10% of the current price.

Medical Users: Will people using marijuana need any special regulations under a scheme of general legality?  One possibility is that sales to one bearing a signed recommendation from a licensed health professional (or an ID based on such recommendation) be exempt from sales tax, just like other medications are.

Extracts and Derivatives: Do derivatives like hashish, resin, oils, elixirs, e-cigarette capsules, etc. require special considerations or limitations? Labelling?

Edibles: Do food products containing marijuana or derivatives come under normal food processing and marketing regulation?  Do they need additional regulation?

Hemp: Does the production of large-scale hemp, which is not psychoactive, need a different, probably less restrictive, regulatory scheme?


  The Cole memorandum actually sets out an outline for a practical, enforceable marijuana statute. This memo sets out methods to determine how to make a proposed marijuana statute conform to the Cole memo and, hopefully, induce federal abstention if it is enacted.  Now the states must start to structure the laws themselves.


[1] This essay is based on a memorandum I prepared for an informal group drafting a proposed bill to be presented to the Texas legislature in the 2015 regular session.

Wednesday, September 18, 2013

Ogden and Cole

Ogden and Cole


For the second time in two years the Department of Justice has issued a memorandum outlining how it will enforce the federal laws forbidding distribution and possession of marijuana.  The question is whether these indicate a real change in policy, a response to tight budgetary constraints, a temporizing move, or just a publicity stunt.  The best analysis is that they show an actual change in policy.

Roughly two years ago, with about fifteen states (now up to twenty) having adopted medical marijuana laws  and very different federal enforcement tactics in the various states, the Department of Justice tried to clarify and unify its response to those laws.  In a memorandum by Assistant Attorney-General Ogden, it stated that the government had no interest in prosecuting patients or their care-givers acting in conformity with state laws, but would continue to vigorously pursue those connected with criminal enterprises or operating for profit.

The Ogden memo had radically different results in different states.  In New Mexico and Colorado, with tightly controlled distribution systems, the U. S. Attorneys took virtually no actions, allowing the state systems to function.  But in Montana and especially California, where the state laws were not comprehensive in regulating production and distribution and many local governments were resistant to implementation, some of the U. S. Attorneys became aggressive in collateral attacks on growers and distributors.

Several things have occurred since the Ogden memo was issued.  First, the aggressive actions of two of the four California USAs aroused substantial public opposition and resentment while they did little, if anything to disrupt the access of growing numbers of Californians to medical marijuana (what they may have done to large-scale marijuana businesses is another story).  Then several more states, at an increasing rate, approved state laws recognizing medical marijuana.  The number of states is now up to twenty, containing around thirty percent of the national population.  

While the task of enforcement got larger and the methods used prove to be ineffective, resources for enforcement shrank.  The Congressional budget sequestration imposed drastic across the board cuts on all federal agencies, including the Department of Justice and its subsidiary departments including the DEA, Bureau of Prisons, U. S. Attorneys, and public defenders.  These budgetary constraints were a large part of the reason that Attorney-General Holder announced that the Justice Department would discontinue the practice of imposing mandatory minimum sentences for non-violent drug cases.

In 2012, Colorado and Washington, both states with existing medical marijuana laws, passed referenda legalizing the sale and possession of marijuana in those states.  Since those new laws were inconsistent with the federal law still controlling in those states, many anxiously awaited the federal reactions to these laws.

One set of voices was conspicuously absent from the discussion of these issues.  From the 1970s into the 1990s, Congress had consistently tightened the federal drug laws, making them even more draconian.  Yet, when the states began challenging its authority, first with California’s medical marijuana referendum in 1995, Congress did nothing.

The Justice Department responded to these events in a memorandum from Assistant Attorney-General Cole in August, 2013.  The Cole memo repeated the Ogden statement that the federal government had no interest in prosecuting individual users and low-level dealers.  It then stated that it would refrain from action against the Colorado and Washington law (and by implication, laws later passed by other states) if their fulfilled eight stated criteria.[1]

These criteria should also serve as a restraint on some U. S. Attorneys who have used the vague generalities of the Ogden memo as a hunting license to go after the higher levels of the medical marijuana distribution chain in some states.  This comment is not a criticism of the Ogden memo.  It was attempting to establish guidelines for acting in the unknown – and unknowable – future of a nascent industry.  Vague generalities were the best that could be done at the time.

Within hours of the release of the Cole memo, A-G Holder announced he would be working with federal banking regulators to find some method to allow banks to extend normal banking services to regulated marijuana businesses that have to operate under money-laundering statutes, RICO and CCE statutes and FDIC insurance requirements.  He expressed two reasons for this action.  Requiring these enterprises to operate on a cash only basis makes them targets for robbery, exposing the public to increased violence; and use of routine banking services creates an audit trail that can prevent diversion of receipts to criminal organizations like the Mexican Cartels.

After the Cole memo was released, Sen. Patrick Leahy called a hearing of the Senate Judiciary Committee to look into it, saying that it was time to put drug control on a more reasonable basis.  Of those called to testify, only one raised even tepid objections to the actions taken by the Justice Department.

Taken together, the Ogden and Cole memos and the circumstances surrounding them show a major change in the government’s thinking on marijuana regulation.  Is that change merely a passive recognition of federal impotence?  An attempt to shift responsibility to the states?  Or the first step to a major reform of federal drug law?  At this early stage, only a fool would try to predict the exact path that will be followed, but one thing is certain.  Federal drug law has taken a large, and irreversible step toward drug law reform.

[1] I intend to post an analysis of these criteria in a few days.

Friday, September 13, 2013

Legal Changes Everything

Legal Changes Everything


Within a few weeks, people in Colorado and Washington will be able to enjoy their first legal (as far as the state is concerned) taste of marijuana.  After the federal capitulation to those laws, several more states will probably follow by the time the 2014 election ends.  The question facing those in these states – and those jealous onlookers outside their borders – is what legalization will mean.

The first meaning is obvious: no longer will a cop be looking over your shoulder when you light up.  But everything in society is connected, so legalization will have many more effects, some wide-removed and indirect.

One of the first, and most dramatic, changes will be a precipitous plunge in prices.  The combination of removal of the risk premium charged by dealers facing prison terms or death in the streets, improved efficiencies in overt cultivation, and competitive markets will quickly lead to prices comparable to other agricultural commodities.  Even the imperfect medical marijuana market in California has seen prices fall by at least a half.  Expect marijuana prices in the range of those for cigarettes or beer.

Ease of access will completely change.  Street dealers will disappear, as will most medical marijuana dispensaries.  Depending on local laws, marijuana can appear in drug stores, liquor stores, supermarkets, convenience stores, and even farmers’ markets.  High end specialty shops and boutiques may appear.  Growers may even emulate their older cousins with vineyards and open tasting rooms.  Some medical users may be disappointed; most of their dispensaries will fade into more general retail outlets, and their fragrant buds will be replaced by brown plastic bottles and inhalers from a white-coated pharmacist.  (See my earlier posting “The End of Medical Marijuana”.)

Legal marijuana will bring with it almost bewildering variety.  Those states with developed medical marijuana systems already have dispensaries with displays of great numbers of varietals as well as derivatives like resins and oils as well as edibles.  These will only blossom with legality.  Means of ingestion will diversify too. Pipes (including simple glass, wood, metal and ceramic ones, along with chillums, hookahs, and bongs) will compete with vaporizers and inhalers.  Salves and sublingual methods will spread.  Edibles will be both more diverse and more common – anyone care for a latte made with Cannabis-infused milk and whipped cream?  

User demographics will also change (or at least look like they are changing).  Part of that change will be a lot of secret current users coming out of the closet.  Aging beats, flower children, and hippies will reveal they never stopped.  Arthritic Grannies will ease their pain in front of the kids.  Software engineers will indulge away from work.  The NBA and NFL well return to their old ways from the ‘80s, and cops will show why their unions have worked so hard to keep them from being drug-tested.  Soon, even if total usage does not increase very much, the demographic will spread all across the social and economic spectrum.

Social activities and relationships will change as pot becomes available.  For some, the after-work happy hour will take place in a “teahouse”, not in a bar.  Of course, local no-smoking ordinances will need to be modified to allow those teahouses just as they now allow cigar bars.  Sports crowds will be less rowdy as bud replaces some of the Bud at ballgames.  Vaping will be more common as nightclubs, music concerts, and movies welcome marijuana users while avoiding second-hand smoke that annoys other attendees.  And all of these enterprises will scramble, trying to replace the large profits they now receive from alcohol.  Date nights and college parties can be more enjoyable and amorous while lessening the fears of rapes, fights, and car wrecks.  Brand names and advertising will be ubiquitous facts of life.

My crystal ball is not telling me much – it seems clouded with greenish smoke.  None of these guesses should be taken as actual predictions.  But I can say that the future will be more different than any of us now imagine.

So lean back, inhale deeply, and enjoy the ride.

Friday, September 6, 2013

Stop and Frisk

Stop and Frisk


The New York City Police Department’s “Stop and Frisk” policy was recently held to be unconstitutional by a U. S. District Judge, violating the necessity of equal protection of the law.  The practice was an unconstitutional application of racial profiling as applied, with the great majority of those stopped were non-white young men; and this ratio appeared even in neighborhoods that were predominately white.  (I might also suggest it is questionable on the basis of sex as well as race, since to my knowledge, few if any women have been stopped and frisked.)  While racial profiling is the flaw in stop and frisk that has been highlighted by the news media, it has other problems even more fundamental.

The stop and frisk doctrine was one of the Supreme Courts first cuts on the way to eviscerating the Fourth Amendment’s requirement of probable cause before the state could search a person or his property.  While New York City has been the recent center of attention, stop and frisk is used universally by police forces nationwide.  The Court ruled that the police could momentarily detain a person and question him if they had reasonable suspicion that they person was engaged in unlawful behavior.  Since stopping and detaining a possibly dangerous person could put the officer himself in danger, the officer would be entitled to briefly search the person’s body (frisk) for the purpose of determining if he was carrying a weapon.  Notice that the right to question safely was the justification for the frisk[1] and that the search should be no more intrusive than necessary to detect weapons.

But the racial profiling revealed in New York is merely an example of the doctrine improperly applied.  The doctrine itself contains two fundamental flaws that call for the end of the practice.  The first is that “reasonable suspicion” is undefined, and probably undefinable so that no standards for regulating police behavior can be articulated.  The second is the lack of any clear distinction between a frisk necessary for the officer’s safety and an illegal warrantless search.  Both of these defects have frequently surfaced in cases involving contraband drugs.

Reasonable suspicion has shown up in many drug possession cases in which the arresting officer has to justify his decision to stop and frisk the defendant in order to question him.  As these cases make painfully obvious, “reasonable suspicion” has no connection with – or even correlation to – any criminal conduct.  At best, the police testimony reveals behavior that deviates from the individual officer’s personal judgment of what is normal behavior.  In what way do driving below the speed limit, paying cash for an airline ticket, buying a one-way ticket instead of roundtrip, being too well-dressed for a bus passenger, not looking at (or staring at) a police car parked by the road, or being too nervous (or too calm) to be an airline passenger support any belief that the person is engaged in criminal behavior?

The best way to judge the reasonableness of an activity is to measure the results.  The New York data shows that “reasonable suspicion” is far from reasonable.  The data show that over eighty-eight per cent of the stops resulted in no police action:  the detained person was released without citation or arrest.  Can any behavior be reasonable if it proves erroneous in nine cases out of ten?  Even in terms of reaching its stated goal, stop and frisk is an unreasonable failure.  The mayor and police commissioner of New York claim that one of the major goals of the program is to remove illegal guns from the street and brag that it has detected and seized over 8,000 firearms.  However, the numbers show that the stop and frisk found guns in only 0.15 percent of the cases – or fewer than two guns in each thousand stops.  Is this meager result a reasonable justification for the program?

Although questioning is the ostensible goal of the stop, most often the questioning is used only as a pretext for the frisk.  The court allowed the frisk as a minimal intrusion into the privacy protected by the Fourth Amendment only so far as it was necessary to protect the questioning officer from a concealed weapon and would be permitted to be no more intrusive than necessary to detect the presence of a gun, knife, or sap.  Normally, a pat-down over the clothing would be sufficient to detect a weapon, without the need to examine the contents of pockets or inside clothing.

The New York numbers tell this story as well.  Less than one percent of those stops found guns, but about twelve percent of them led to arrests or citations.  Most of these arrests, over ten percent of the stops, were for drug possession.  A gram of cocaine or heroin is about the size, weight, and hardness of a packet of sweetener found in a coffee shop.  An eighth-ounce of marijuana – a typical street buy – is an amount of vegetation about the size of a finger and packaged in a plastic sandwich bag.  A surface pat-down only obtrusive enough to find a lump of metal as large as a handgun, detects these tiny, soft parcels surprising often.

Stop and frisk as it is used is a perversion of democratic law enforcement.  The role of police agencies is to enforce the law and to preserve public safety.  When that role is improperly generalized as maintaining public order, then police become controllers, not protectors.  The inability of a citizen to walk the public streets without public scrutiny and harassment marks, not a well-functioning democracy, but is a mark of totalitarianism.  We must regain control of the police, and ending stop and frisk would be a significant starting point.

[1] This reasoning is why so many of the procedure’s proponents insist on calling it “stop, question, and frisk”.

Sunday, September 1, 2013

They Blinked

They Blinked


On August 28 Attorney-General Eric Holder announced that the federal government would not sue to set aside marijuana legalization statutes in Colorado and Washington nor interfere with state implementation of those laws if eight conditions are met.  By itself this declaration might not mean much, but it follows five other recent events that, taken together, suggest a real change in the Administration.

In 2009, the A-G announced that the government would not prosecute medical marijuana patients and their caregivers who conformed to state laws.  While actions, direct and indirect, have continued, or even accelerated, against for-profit marijuana providers, the users themselves have been left alone.  The memorandum was brief and poorly worded.  Argument is possible about whether these actions are DoJ-initiated or the acts of rogue U.S. Attorneys acting individually, but medical marijuana has now spread to twenty states, and increasingly large numbers have safe access to the drug.

Even earlier, Congress, acting at the request of the Sentencing Commission, had reduced the disparity of mandatory minimum sentences for power and crack cocaine.  Earlier, possession or sale of one gram of crack mandated the same sentence as one hundred grams of powder.  Although the Commission had recommended parity between the two forms, Congress only reduced the ratio from 1:100 to 1:18.

The reduction in cocaine sentences was part of the cause of an historic drop in federal prison population.  After a thirty-year stretch in which that population had increased every year, Obama’s first term was marked by a decline in that number that has now lasted for three years: a dramatic turn around.

Earlier this year, the A-G directed U. S. Attorneys bringing prosecutions for drug cases not involving guns or violence, minors, or direct involvement in criminal enterprises to draft the charging instruments so as to avoid invoking mandatory minimum sentences.  This process would normally mean that the quantity of drugs involved would not be included in the indictment.  This procedure would restore sentencing discretion to the judge and allow imposition of sentences lower than those mandated.

The fifth event happened on the same day that the current memo accepting state legalization laws was issued.  The DoJ also directed the U. S. Attorneys and the Comptroller not to impose banking or money-laundering penalties on banks providing normal banking services to businesses operating in compliance with state laws.  The justification for this abstention was that forcing these businesses to operate on a cash basis increased violence by making them targets for robberies and made taxes harder to collect.

The new Cole memo, seen in the light of these five events, suggests that the current administration has turned a corner on Drug Prohibition.  While they have not signaled any strong move toward the legalization of drugs nationwide or of initiating any proposals to congress, they do seem to have admitted the futility of using the criminal justice system as a means of regulating drug use.  From that point, doing away with Prohibition is a small step.  The major stumbling block to further progress will be congressional resistance.

The eight criteria the DoJ set out for their abstention on state marijuana laws reveals some of the Administration’s thinking on the broader subject of drug laws in general.  Control of access for minors and limitations on impaired driving are traditional applications of state general police powers, affect public health and safety, and express much wider concerns than just marijuana.  Eliminating participation by criminal enterprises, connections to other controlled drug, suppression of guns and violence, and prevention of trafficking to other states all show a long-standing overall concern with suppressing professional organized crime.  The trafficking issue also concerns the rights and autonomy of the receiving states that may still have Prohibition.  Possession and growing on federal property are themselves fields of direct federal enforcement.  In addition, the concern about growing on federal property expresses concern about environmental damage and conservation, also tradition federal issues.

These criteria also serve as guidelines for other states considering changes in their marijuana laws.  Some are straight-forward, but others require interpreting and expansion.

Controls on use by minors, driving under the influence of various drugs, and punishment of violence and the use of guns are routine applications of state police powers to many circumstances; and extending them to the use of marijuana is also straight-forward.  The major risk faced by states is that they will allow a fear-driven hysteria to force them to accept blood or urine tests for driving (or employment) that are not backed by, or are even contrary to, solid science.

The need to exclude criminal enterprises may be the most problematic.  Merely looking at money or profit will not provide a good definition.  If money is the test, how can a multi-million dollar legal organization like Harborside dispensaries be distinguished from a Mexican cartel?  The best approach may be a licensing system for growers that excludes those with criminal records or who are not citizens.  This kind of licensing, in turn, would raise issues of otherwise lawful historical marijuana growers and users who have been convicted only of marijuana crimes.  Requirement of growers’ licenses, including locations, would also prevent growing on federal lands.

Quantity limits on growers and sellers, as well as on purchasers, would be the most effective way to prevent diversion into interstate trafficking as well as restricting production to legal dealers, not criminal gangs.  Quantity limits would also limit any large increase in the number of users, preventing any measurable increase of consumption on federal lands, primarily national forests and parks, hospitals and military installation.

Ironically, the act of legalization itself may be the best way to fulfill the memo’s criteria.  Legalization, especially if tolerated by the federal government, would remove most of the Prohibition surcharge in marijuana prices, lowering them to the equal of those on other agricultural products.  Just like Al Capone and Lucky Luciano were forced out of the alcohol market by Repeal, legalizing marijuana would force the Cartels and street gangs out of marijuana, violence would disappear from the market, and outlaw growers could not meet the efficiencies of professional farmers.

The listed criteria show that the Administration has rejected the Puritanical insistence that sobriety by all is a religious and moral duty.  It has changed its focus to one concentrating on public health and safety and environmental protection.  This change is a major step toward reform.

The government has not backed down completely from the War on Drugs,…

But they have blinked.