Thursday, November 14, 2013

Congress: A Modest Proposal

Congress: A Modest Proposal


Are you as tired as I am about the way Congress is acting?  They scream at each other.  Partisan warfare is unending and unrestricted.  Shouted slogans replace debate.  Nothing gets done; the wheels fall off and the government shuts down.  Congress needs to chill out.  Congressmen need to get mellow.  I have a modest proposal.

Before they attend any meeting to conduct legislative affairs, before any public appearance, before any media interview, all Congress members and candidates for Congress should be required to smoke a big, fat doobie.

Think about how much this would lower the temperature of the current hate fight between Red and Blue.  Tea Partiers and Ninety-niners would be bros, not foes.  In the words of Rodney King, we could all just get along.  (Some current members seem to be on the program already – have you seen Rand Paul’s recent ramblings?)

This program would have some drawbacks.  Speeches in the Senate would wander on to filibuster length; the membership of the house could never be gotten together at the same time and place to vote on anything (come to think about it, that’s how it works now).  The Capitol cafeteria would have to stock up on snack foods.  Perhaps Twinkies should be limited to Democrats and Ho Hos to Republicans to make scoring the food fights easier. (Or vice versa; maybe the Speaker and the Minority Leader could start each biennium by playing rock-scissors-paper for the choice.)  The tv Sunday talk shows would have to be extended to handle the rambling, disconnected answers they would be getting, but that would be no problem since nothing else competes for those time slots.

Speaking of television, to achieve the proposal’s goals the toke-up doctrine would have to extend to television interviewers and commentators.  They cause even more political rancor than do the politicians.  Here the results would almost all be positive.  Chris Mathews would no longer sound like he is on an extended speed tweak.  We might find out if Bill O’Reilly is capable of smiling – or at least grinning inanely.  Glen Beck might even start making sense.  Bob Shaeffer would be most appealing as a giggling grandpa.  Most of the media would probably go along willingly.  In fact, I suspect some of them are already on the program – have you listened to Rachael Maddow or Chris Hays lately?  A few would hold out.  Rush “Rob Ford” the Limburger has a taste that runs more to Oxy, and even a small case of the munchies would keep him from being able to squeeze through the studio doors.  

We need relief from the acrimonious, non-ending, partisan warfare that has resulted in permanent deadlock.  It’s time to give this modest proposal a chance.  It can’t do any greater damage than we now suffer, and it may give some easing of the stalemate in Washington.  At the very least, we would get some amusing minutes, and laughter IS the best medicine.  We have nothing to lose.  They might even vote to repeal the Controlled Substances Act.  If you agree, spark a jay and let your congresscritter know just how you feel on this important issue.  Maybe give him an eighth –you’ll have to hand deliver it to keep the postal inspectors and Fibbies at bay.  As for me, I don’t think I’ll ever vote for a candidate whose campaign song doesn’t include the line:

Everybody must get stoned!

Monday, November 11, 2013

Robbery in Blue

Robbery in Blue


[This is a companion piece to my earlier “Policing for Profit”.  It examines another – and darker – side of what happens when the goal of policing becomes dollars, not law enforcement.]

One night in 1992 a gang of masked and armed men burst into Donald Scott’s ranch house and shot him dead as he stood at the top of the stairs leading to his bedroom.  They were there to seize his ranch.  This armed gang was a mixed task force from federal and state police agencies, including the park service, which wanted the ranch for park land but were unable to buy it.  Their search warrant stated that a helicopter overflight had seen marijuana growing on the land, but as the subsequent law suit revealed, a search of the ranch after the fatal raid found no marijuana.

A young man in Florida was arrested and convicted for selling a small amount of marijuana in a shopping center parking lot.  The pick-up he was driving was forfeited to the government … as was his parent’s house.  He lived in an apartment on the rear of their house with its on separate entrance, although he did have access to his parents’ kitchen.  He used the phone in that apartment, which was listed in his name, had arranged to have installed, and paid for, to arrange the drug sale.  The DEA claimed that this use of the phone made the whole house an instrument of the crime even though the parents had no access to it.  The court held that the parents could not be innocent owners since their son had been on probation for marijuana possession when he was fifteen.  The judge said that the earlier probation put them on notice that he had a propensity to deal drugs and that they should have taken greater steps to insure he did not do so in their house.

A Florida nurseryman flew to Houston to buy plants for his business from growers in that area.  Since many of those small growers would not accept out of state checks, he withdrew $10,000 in cash to use on the trip[1].  Federal agents met his plane when it landed in Houston and he was arrested on suspicion of drug trafficking.  His money was confiscated.

In Dallas, a young man found a duffle bag full of money in the street.  He did the right thing and turned the money in to local authorities for return to the rightful owner.  The DEA asserted a claim to the money on the grounds that no one but a drug dealer would have that much cash.  This story has a happy ending.  The DEA’s claim was rejected and the money was awarded to the honest finder. (This is one of my favorite stories.)

These three stories are among the thousands of outcomes springing from one of the most overreaching follies of Nixon’s tough-on-crime War on Drugs: civil asset forfeiture.  The FBI and BNDD (later the DEA) had long been frustrated that they could rarely convict major crime figures who only gave orders, never dirtying their own hands.  The new laws[2] allowed then to seize any property that they had probable cause to believe had been used as a criminal instrumentality, was the proceeds of a crime, or had been acquired with criminal proceeds.  The government could seize the property based only on probable cause (a very low standard of proof) and the owner would be forced to file suit and prove by a preponderance of evidence that he was an innocent owner.

These laws not only severely weakened court oversight of the process, they also cut administrative and political control of police behavior out of the picture.  The seized assets did not go into general government funds subject to budgetary control and auditing; they went directly to the police agency that had done the seizing for discretionary use.  Some police have made selfish use of these slush funds.  A prosecutor bought a luxury automobile with expensive customizing for his “official” car.  A Texas sheriff threw monthly beer and barbeque outings for his deputies. (How did local police get into the act?  First, the federal agencies shared the loot with local agencies participating in the seizure, then most states enacted “baby RICOs” of their own.

Not all of the failures of these laws are as harmless as barbeque and pimped limos or merely excessive like the forfeiture of a yacht valued at over a million dollars because one marijuana cigarette butt was found in crew quarters.  Most are downright destructive.

Ironically, the law designed to punish the leaders of organized crime acted provided them a safety net.  Major drug lords discovered they could exchange forfeiture of secret or untouchable off-shore millions for short, easily served prison terms.  Manuel Noriega, corrupt drug-running Panamanian president bought a shorter sentence in a minimum security prison than a street-corner dealer would serve in a maximum security fortress.  Informants became a way of life for the police and flourishing businessmen in their own right; they not only received direct pay for information, they also got shares in forfeited property.  Many DEA informants have received over a million dollars each.[3]

Even the patterns of law enforcement changed.  On the Interstate highways running north and south through Florida and east and west through Arkansas, cars traveling north or east were rarely stopped.  They would be carrying drugs to be sold that would have to be destroyed.  South- and west-bound cars were more attractive targets:  they were carrying the proceeds of those sales, money that the cops could confiscate.  In one Texas county, patrolmen were issued pre-printed release forms.  A motorist stopped in that county with a large amount of cash could surrender the money, sign the release acknowledging he was allowing the cop to take the money, and drive away without being arrested.

These corrupting laws need to be repealed.  At the very least, they should be amended to require the government to prove beyond a reasonable doubt its right to take to take the property and for the recovery of court costs and attorneys’ fees to the owner if the government does not prevail.  Any forfeited funds should go into the government’s general funds, subject to budgeting controls, not directly to the police.

In the meantime, if an armed bandit pulls you out of your car and has a tow-truck haul it away, or if you find yourself on the curb locked out of the house on which you have been paying the mortgage for fifteen years, just take a deep breath and smile.  You haven’t been robbed: the law says the cops have the right to grab it away from you.

[1] Federal law requires banks to report all cash transactions of $10,000 or larger.
[2] Racketeer Influenced Corrupt Organizations (RICO) and Continuing Criminal Enterprises (CCE)
[3] See my earlier “Informants: Deal with the Devil” for more on this subject.

Thursday, November 7, 2013

Marijuana or Cannabis?

Marijuana or Cannabis?


An ongoing squabble within the marijuana reform community is about what to call it.  Is it marijuana or is it cannabis?  While marijuana is the most common term, many – primarily medical marijuana proponents – prefer cannabis and advocate for its general use.  This debate is not crucial; the world has plenty of room for many names for a plant.  It does, however, create an intra-tribal rancor that could be eased by an understanding of the roots and motives of the combatants. In other words, look at the history of plants of the genus Cannabis in American culture, medicine, and law.

Up until the 1930s, America had treated this plant as if it were four separate entities, recognizing no connection among them.  Hemp was grown for fiber from the earliest colonial days.  Beginning in about 1840 tincture of cannabis was used medicinally.  After the Civil War, a small elite in East Coast cities started eating hashish in imitation of the French literary salons.  And after the Mexican Revolution, marijuana crossed the border and, spread by itinerant musicians and maritime seamen, migrated from the Southwest and New Orleans to Kansas City, Chicago, New York, Boston, and Los Angeles.  No one noticed a relationship among these four cultures (for more on this topic see my earlier “Prehistory of Marijuana”, Parts I and II, and “Marijuana Comes to the Americas).

The Marihuana Tax Act of 1937 brought marijuana together with what was left of the other three cultures for the first time.  In objecting to that Act, the AMA, recognizing the identity of marijuana and medical cannabis protested the Act would foreclose needed medical research.  Paint manufactures and bird seed sellers (who claimed that canaries would not sing without hemp seed) were allowed to import sterile hemp seeds.  Soon thereafter, in the build-up to World War II, hemp cultivation was allowed for duration of the war.  That law, for the first time, forced recognition of the unity of the four cultures.

At the time the Act was passed, three of the four cultures had faded into obscurity – almost extinction.  Hashish, always a small elitist cult, had shrunk to invisibility during the Progressive Era migrations and the rise of the speak-easy culture of alcohol Prohibition[1].  Hemp had always been labor-intensive both in cultivation and preparation.  When slavery ended, it became economically unproductive.  As sailing ships were replaced by steam, the primary market for ropes and sail cloth disappeared; and America’s conquest of the Philippine Islands made cheap sisal available as a replacement.  Currency was the only remaining market, and when the U. S. left the gold standard, hemp bills were replaced by rag-paper money.  Only the silent canaries and a few specialty paint manufacturers still consumed hemp.  

Cannabis entered Western medicine with O’Shaughnessy’s articles in the 1830s and remained for about one hundred years.  The first edition of Merck’s Manual listed over twenty applications, but its use was never widespread.  “Granny Books”, household medical handbooks for those living in rural areas without professional health care, and memoirs and biographies of frontier doctors make little mention of it.  By the end of the nineteenth century it had been replaced for pain relief – its major use – by oral and injected morphine and aspirin.  A 1913 study of pharmacists and drug stores by congressional investigators preparing for the Harrison Narcotics Act reported no need to move against Cannabis, having found fewer than ten preparations available and three of use for external use in corn plasters.  When the AMA testified in Congress against the Marihuana Tax Act, it warned about foreclosing research but made no mention of therapy.  Although expensive and very hard to obtain, cannabis remained available for therapy until the Boggs Amendments of 1951, but no one objected to its removal from the U. S. P. in 1942.  It had been removed from the doctor’s black bag long before that.

For roughly forty years, from 1937 until the mid-1970s, marijuana is the only one of the four cultures representing the plant in America.  And that representation was as an outlaw, dangerous drug.  And its use grew exponentially during that period.  In 1970, Nixon declared War on Drugs, and the Bureau of Narcotics and Dangerous Drugs (soon to become the DEA) shifted its focus from heroin to marijuana.

Among those now targeted was a small group of desperate patients suffering from terminal or life-threatening diseases (including cancers, AIDS, and glaucoma) who, finding no relief from mainstream medicine, turned to marijuana for help. These people were beset by two, and for some three, oppressive forces.  Conventional medicine could give them little relief.  For some, the nature of their disease brought social opprobrium; and the government treated them as felonious drug fiends.  But they persisted; the value of marijuana in treatment of many disorders was established; their numbers increased; professional associations recognized the value of their treatments; states – starting with California in 1996 and mounting to over twenty today – legally recognized their medicine; and public polls swung in their favor.

One of their tactics was to eschew the criminal aura associated with marijuana.  To do so, they resurrected the old name cannabis and built a creation myth around its hazy medical past. (Of course, if they wish to be accurate, they would limit cannabis to tinctures, call edibles hashish, and use marijuana for smokeable unprocessed plant buds.)

Just recently claims have been advanced that “marijuana” should not be used because of the xenophobic shades it acquired in the past.  But marijuana had established its presence in the U. S. before the hatred of Mexicans developed as a political issue.  Instead, its ethnic heritage should be honored, just as is done with enchiladas, curry, and Chianti.

The reform tent is broad enough for multiple names to be used.  However, if a single name is selected, it should be one that truly honors the history and heritage of the plant.  The roots of American marijuana lie, not in Europe, but in India, home of bhang and ganj.  From there it migrated to Jamaica with imported laborers and then to Panama and Mexico before coming to the U. S.  We should recognize that the Rastafarians truly know its history.  We should join them and call ganja by its proper name.

[1] I have not run across a single reference to hashish in America between 1920 and 1960.

Saturday, November 2, 2013

Whither Congress?

Whither Congress?


In a recent post (“Cease Fire?”) I argued that the Administration has radically changed its approach to drug law enforcement: that they appear to have accepted normalization of marijuana use and commerce.  But I also pointed out that real reform of federal drug laws rests in congress.  More recent developments now bring the question of what, if anything, congress is willing to do on this issue: whither Congress?

The most striking thing to come out of congress recently has been silence.  From the mid-1970s to the mid-90s, Congress never saw a drug law it didn’t like.  In fact, the members played “Can you top this?”, each trying to prove he was the most ardent Drug Warrior of them all.  The results included RICO and CCE, the powder/crack cocaine sentencing disparity, mandatory minimum sentences, and the Club Drug Act, to name just their most visible actions.  They also created the Drug Czar (Office of National Drug Control Policy).  But then they seemed to fall asleep for a decade.  The War on Drugs looked like it was running on autopilot.

The long nap ended with some quiet moves toward reform.  Judges regained their discretion to impose sentences less than those mandated by the Mandatory Minimum law.  The crack cocaine-powder cocaine sentencing disparity was reduced from 1 to 100 down to 1 to 18 (still totally unjustified and discriminatory).  An erosive trickle had appeared in Fortress Prohibition, but then congress went back to sleep.

However 2012-13, the annus maribilis of the Drug War, has been dramatic enough that those trickles now look like signals of a looming tsunami.  First, Colorado and Washington enacted state legalization of marijuana (including growth, distribution, and sale) by referendum.  Then after nine months – is that time span significant? – the Obama administration took three executive steps almost simultaneously.  First it announced that U. S. Attorneys would be instructed to draft charging instruments (complaints and indictments) to avoid invoking mandatory minimum sentences.  The next announcement was that it would not prosecute those operating in compliance with state marijuana laws if those laws complied with eight standards articulated in that memo.  This was immediately followed by a statement that the Attorney General would work with the bank regulators to make normal banking services available to marijuana businesses in those states.

Reaction among the federal law establishment was immediate.  A district judge in Maryland announced a very light sentence in a marijuana trafficking case, saying that the logic of the Justice Department’s statements was thoroughly convincing.  Two of the most aggressively Prohibitionist U. S. Attorneys in California dismissed at least three high profile, big-dollar asset forfeiture cases.

But where were those senators and representatives who, barely a decade before, had been so anxious to prove that they were the most ardent of all Warriors against Drugs?  Their silence on the issue was deafening.  The District of Columbia, where Congress has direct governmental authority is on the verge of legalizing marijuana, but Congress has made no move to block it – a contrast from its blocking medical marijuana there for over a decade.  Congress is quiescent. Not.  One.  Peep.

The other side, long cowed into silence, began to stir.  Almost as soon as the Colorado and Washington election returns were counted, eight representatives sponsored a bill that would have required the federal government to respect state marijuana laws.  The week after the Justice announcement of non-prosecution in states with effective marijuana laws, the Senate Judiciary Committee had a hearing on the issue of enforcing the federal law.  Assistant A-G Cole and two Washington state law enforcement officials testified in support of the new position.  The only witness opposing the action was a professional Prohibitionist and rehab huckster.  The committee members themselves voiced no opposition.  Since then Republican Sen. MCain has stated that Prohibition has been a failure and the law needs to be re-examined.  New Democratic Senator Booker from New Jersey and Republican Senator Paul from Kentucky announced, virtually simultaneously, that drug sentences were too severe and needed to be revised; and then each of them independently said they would work together on the issue.

The Administration has begun a retreat; one from which a resumption of hostilities will be extremely difficult, if not impossible.  But the drug laws are so tightly written and draconian that real reform without Congressional action is impossible.  The question “Whither Congress?” shouts for an answer.

The next election cycle in 2014 will probably provide that answer.  As many as four or five states will probably follow Colorado and Washington.  The Administration will be too far down the non-enforcement road to backtrack.  The question is whether the pressure on a Congress with already weakened support for the Drug War will be enough to overcome the factionalism and paralysis now preventing action on anything.  The failure of the Drug War looks to be so obvious and so accepted that reform will probably force its way even through this do-nothing Congress during the next two years.