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Tag: "The War On (Some Classes of People Who Use Some) Drugs"

Undermining Civil Liberties For A Futile Policy

[ 0 ] January 18, 2009 |

As part of a comprehensive look at the costs of the War On (Some Classes of People Who Use Some) Drugs, Radley Balko notes that it’s where civil liberties go to die:

“The Fourth Amendment has been virtually repealed by court decisions,” Yale law professor Steven Duke told Wired magazine in 2000, “most of which involve drug searches.”

The rise of the aforementioned no-knock raid is one example, as is the almost comically comprehensive list of reasons for which you can be legally detained and invasively searched for drugs at an airport. In many areas of the country, police are conducting “administrative searches” at bars and clubs, in which an obvious search for criminality is cloaked in the guise of a regulatory inspection, obviating the need for a search warrant.

But the drug war has undermined the rule of law in other ways than its evisceration of the Fourth Amendment. Take the bizarre concept of asset forfeiture, an attack on both due process and property rights. Under the asset forfeiture laws passed by Congress in the 1980s (then reformed in 2000), property can be found guilty of a drug crime. The mere presence of an illicit substance in your home or car can allow the government to seize your property, sell it, and keep the proceeds. The onus is then on you to prove you obtained your property legally. Even the presence of an illicit drug isn’t always necessary. The government has seized and kept cash from citizens under the absurd argument that merely carrying large amounts of cash is enough to trigger suspicion. If you can’t prove where you got the money, you lose it.

If Fourth Amendment protections were being narrowed in cases where the police were otherwise unable to solve violent crimes, this would at least poses difficult questions. But this hasn’t been the case; the professionalization of police forces required by the Warren Court hasn’t — despite many hysterical predictions — substantially undermined the ability of police forces to fight violent crime. Rather, the worst watering down of the Fourth Amendment has generally come in cases where the effect of violations of constitutional liberties have the effect of Person Y selling drugs rather than Person X selling drugs. This isn’t even remotely defensible.


A Little More Prohibition Will Put Out That Fire!

[ 0 ] December 11, 2008 |

The War on (Some Classes of People Who Use Some) Drugs continues its roaring success:

Killings linked to Mexico’s drug war have more than doubled this year compared with 2007 and are likely to grow even further before they begin to fall, Attorney General Eduardo Medina-Mora said Monday.

The prosecutor tied the sharp increase in deaths to a battle for control among cartels and a power vacuum created by a series of high-profile arrests and seizures.

The number of gangland killings reached 5,376 from the beginning of the year until Dec. 2, a 117 percent increase over the 2,477 killings in the same period in 2007, Mr. Medina-Mora said in a luncheon meeting with foreign correspondents.

The bulk of the killings have occurred in the border states of Chihuahua and Baja California, where traffickers have sought to wipe out rivals on the streets of Juárez and Tijuana, and in Sinaloa, where one of the country’s most powerful cartels has its base.

“These criminal organizations don’t have limits,” said Mr. Medina-Mora, who previously served as Mexico’s public safety director and spy chief. “They certainly have an enormous power of intimidation.”

Mission accomplished! In fairness, it must be said that this violence is trivial compared to the turf wars between Busch and Coors…

Are "drugs" "bad?"

[ 0 ] November 12, 2008 |

Some of the comments made to Rob’s post on the devastating effects the U.S. drug war has on Mexico and other nations take the view that (simplifying somewhat) yes, “drugs” produce a net negative effect in society, and would continue to be an overall negative phenomenon if we had less insane drug policies, but that draconian criminalization does more harm than good.

Some of this is in reaction to Scott the Very Odd Liberal’s view that we ought to prohibit alcohol and cigarettes (and prescription drugs!) — a position that one would think is so self-evidently nutty that there’s no need to make a bunch of “yes, but” concessions.

The biggest problem with prohibition isn’t that it doesn’t “work” (although of course it doesn’t). The problem is that if it did work, even without employing massive authoritarian measures which are clearly bad in themselves, it would still be a bad thing.

That’s because the basic principle behind the attempt to eradicate the use of large categories of mind-altering substances is wrong. That principle is that drugs do more harm than good.

Let’s take the case of alcohol. Now there is no question that alcohol abuse does a significant amount of social damage. It is, almost every non-drug warrior agrees, a more dangerous and damaging drug than marijuana. I’ve seen people close to me do very serious harm to themselves and those who love them through the long-term abuse of alcohol. Does that make alcohol “bad?” Would the world be a better place if someone could wave a magic wand and there were no alcoholic beverages, in other words, if we could have a “costless” (in the direct sense) prohibition?

This strikes me as so obviously untrue that it isn’t worth arguing over. For the vast majority of people who use alcohol, it’s a life-enhancing experience — often significantly so.

Now I’m going to propose something more radical: what’s true for alcohol is true for most if not all mind-altering substances. Most people who use most mind-altering substances don’t become addicts, don’t do serious damage to themselves, and get benefits, often great benefits from their use. This is obvious if you consider the tens of millions of Americans who have used illicit drugs — yes, even the scariest, “hardest,” “worst” such drugs — and then compare that number to the number of people who develop serious substance abuse problems.

And those of our fellow citizens who do develop such problems are disproportionately poor, discriminated against, or otherwise in socially fragile situations — situations that themselves have more to do with why drugs end up having bad effects in such peoples’ lives than anything inherently “bad” about the substances themselves.

Do we really want a world without morphine and its derivatives? Think about that for a second. And if you’ve never been in excruciating need of a powerful pharmacological palliative, you might want to think about it some more.

Do we really want a world without hallucinogenic drugs? Read Aldous Huxley’s The Doors of Perception. Read about Native American peyote rituals. And so forth.

Drug abuse is obviously a serious problem. That’s because the abuse of any powerful, potentially life-transforming substance or practice is by definition a serious problem. Science is abused, literature is abused, sex is abused, food is abused — basically everything that makes life worth living is for that very reason going to be abused.

The answer isn’t to try to get rid of those things. Prohibition strategies would do even more damage if they actually worked.

The International Consequences of Prohibition

[ 0 ] November 12, 2008 |

The people of the United States like cocaine and heroin. Consequently, entrepreneurs in Latin America produce cocaine and heroin. However, the government of the United States has determined that the people of the United States should be prohibited from using cocaine and heroin. In spite of this prohibition, Latin American entrepreneurs continue to deliver product to customers in the United States. Because the United States is larger and more powerful than its Latin American neighbors, it can force the latter to adopt policies of prohibition and interdiction. These policies result in extraordinarily high levels of violence, social disintegration, economic turmoil, and a loss of state capacity:

Worst of all, the sheer size of the black economy–$40 billion as estimated by Stratfor’s George Friedman–strangles legitimate enterprise and concentrates power in the hands of a few narco-warlords. These criminal enterprises amass power and legitimacy as the Mexican state loses the trust of its citizens. As a result, Mexico’s periphery has become a lawless wasteland controlled largely by the drug cartels, but the disorder is rapidly spreading into the interior. In a cruel parody of the “ink-blot” strategy employed by counterinsurgents in Iraq, ungoverned spaces controlled by insurgents multiply as the territorial fabric of the Mexican state continues to dissolve.

President Felipe Calderon has tried to stem the bleeding by unleashing the military and federal police on the narco-gangs. But the cartels responded in kind by massively targeting police officers and innocent civilians. They are waging a war of attrition to force the Mexican state to cease re-asserting its power. Sadly, the cartels are winning. Criminal violence continues in the borderlands, and high-ranking federal officials have been killed without meaningful government response. As the head of Mexican intelligence service CISEN admitted to reporters, the cartels pose a threat to Mexican national security.

If this all seems silly and ridiculous, it’s because it is silly and ridiculous. Lots of Mexicans get to die for the purpose of a marginal increase in the street price of cocaine and heroin. The problem is clear, and the solution painfully obvious.

The New Professionalism

[ 37 ] August 6, 2008 |

In the course of refusing to exclude evidence obtained through an illegal no-knock search in Hudson v. Michigan, Justice Scalia applied that the rule was obsolete:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline.

The logic of this argument (like much of Scalia’s opinion) is dubious. If police forces increased their professionalism in the wake of the requirements established by the Warren Court, including the application of the exclusionary rule to the states, this doesn’t strike me as a good reason to get rid of said requirements.

At any rate, Radley Balko finds an example of the professionalism that allegedly allows the Court to get rid of negative disincentives:

Last week, police stormed Calvo’s home without knocking, shot and killed his two black labs, and questioned him and his mother-in-law at gunpoint over a delivered package of marijuana that police now concede may have been intended for someone else.

The Washington Post reports that the police didn’t even bother to get a no-knock warrant, which means the tactics they used were illegal.

It’s good that the Supreme Court has encouraged this kind of sterling police work!

To add an additional point, it is true (as its critics will point out) that after the fact the exclusionary rule does not provide a remedy in cases where evidence isn’t found. But that doesn’t mean that the innocent derive no benefits from the rule; if the state knows that it can’t use illegally obtained evidence, it has a strong disincentive not to break the law in the first place.

The King of Nothing

[ 58 ] August 6, 2008 |

A couple commenters here (and I’ve heard this elsewhere) compared Mark McGwire to Dave Kingman. This really couldn’t be more absurd. Let’s start with their lifetime OBPs:

Kingman: .302
McGwire: .394

So, except for the fact that McGwire is vastly better at the most important hitter’s skill, they were very similar. Or compare the OPS+s from their first seasons up to age 30:

Kingman: 113, 109, 102, 117, 128, 96, 131, 146
McGwire: 164, 134, 129, 143, 103, 176, 138

And even this understates McGwire’s superiority, because OPS substantially overvalues power and undervalues OBP. With a better metric, the gap would be even larger than this. Comparing the two is like comparing George Bell with Ted Williams.

In addition, McGwire was a decent first baseman when he was younger, while Kingman was a complete butcher. True, McGwire was a slow slugger, and lost his defensive value early. But even if he was largely “one-dimensional,” so what? Derek Bell is more “multi-dimensional” than Frank Thomas. Who cares? The point is to win, and the enormous amount of runs McGwire created (in addition to adequate defense when he was younger) was extremely valuable.

Reasonable people can disagree about how much PEDs should affect Cooperstown. I, personally, would but virtually no weight on it, but I understand people differ. But unless all alleged steroid users are removed from consideration McGwire is not merely a Hall of Famer but an overqualified Hall of Famer.

The Drug War: Still Racist After All These Years

The more things change, the more they stay the same.

The New York Times reported today on two new reports (one from the Sentencing Project and one from Human Rights Watch) that confirm what any study of prison demographics could tell you: the war on drugs is still being waged only on some people and on some drugs. In other words, it’s still a racist crock.

Drug related arrests are up and more than 4 of 5 drug arrests are for possession (as opposed to sale or manufacture). And Black men are 12 times as likely to be incarcerated for a drug crime than are white men. Also, 1/3 of drug arrestees were black, despite the fact that only 12.8% of the population is Black.

The statistics would be bad enough. But the absolute worst part of the Times article is that the author cites a Manhattan Institute staffer as an “expert” on incarceration issues. What does she blame drug war disparities on? The “fact” that Black and Latino men are more likely to be involved in the distribution of heroin and cocaine.

Ms. MacDonald [of the Manhattan Institute] said it made sense for the police to focus more on fighting visible drug dealing in the inner city, largely involving minorities, than on hidden use in suburban homes, more often by whites, because the urban street trade is more associated with violence and other crimes and impairs the quality of life.

“The disparities reflect policing decisions to use drug laws to try and reduce violence and to respond to the demand by law-abiding residents in poor neighborhoods to clean up the drug trade,” she said.

Riiiiiight. The policy makes Ooooooh so much sense. When racism and “personal responsibility” are your starting points.

Not surprisingly, the Human Rights Watch study’s author gets it right:

“The race question is so entangled in the way the drug war was conceived,” said Jamie Fellner, a senior counsel at Human Rights Watch and the author of the group’s report.

“If the drug issue is still seen as primarily a problem of the black inner city, then we’ll continue to see this enormously disparate impact,” she said.

Paternalistic Hypocrisy in Alabama

The NY Times ran an article today chronicling a spate of prosecutions in Alabama of women who carry a child to term despite a drug addiction. Greg Gambril, a local Alabama prosecutor, is bored without any murders in his sleepy town, so he has decided to prosecute women for bearing children. The women are being singled out because they are unable to kick addictions (usually to meth) during their pregnancies. The law under which they are prosecuted was passed to protect kids from meth in the home. The law makes no mention of fetuses.

In most other states, women have challenged their convictions and prevailed — courts are not any more comfortable sending drug-addicted women who should be nursing their babies not shuffling in handcuffs off to prison when treatment would be a much better (and less expensive) option. But in this Alabama county, no woman has even gone to trial. Women are pleading out and getting sentenced to a year in jail — sometimes, having been dragged away in handcuffs the day after giving birth.

What gets me: the women are being prosecuted under the pretenses of…drumroll please…protecting their fetuses, and the women themselves (sound familiar? Of, say, South Dakota circa the summer of 2006?).

Here’s what Gambril has to say:

“When drugs are introduced in the womb, the child-to-be is endangered,” Mr. Gambril said. “It is what I call a continuing crime.” He added that the purpose of the statute was to guarantee that the child has “a safe environment, a drug-free environment.”


“Our ultimate goal is to protect mothers and children,” Mr. Gambril said.

Right. So a woman is an “environment” and he is “protecting” her and her child by throwing her in jail, sending a kid into the care of a grandparent, friend, or the foster system, and ensuring that a new mother cannot be present for the first months or years of the child’s life. Oh, and making that decision for the mother because she is too…female?…to make it for herself.

The thing is, that these prosecutions are nothing new. There have been hundreds of them over the last 30 years, as NAPW is documenting. What gets me is that the Times so rarely writes about them. I guess it takes white women and meth in place of black women and crack for an injustice to be recognized.

Bush Idiocy of the Day

I sometimes wonder if President Bush brushes his teeth without thinking idiotic ideological thoughts (I’m going to go with no). Today’s example? Bush is seeking to reinstate the Washington, DC needle-exchange ban. The ban had been in place for quite some time, and Congress only this past year revoked it. Needle exchanges are important generally to preventing HIV, but they’re especially vital to DC. The Times explains why:

The nation’s capital has the country’s highest rate of H.I.V. infection, and a recent report by the District of Columbia’s health department found that more than 20 percent of the city’s AIDS cases could be traced to intravenous drug users. Now that Washington has a chance to fight back, the White House must not be allowed to hobble that effort.

Why Bush is spending his precious time meddling with Washington, DC’s policies is beyond me. Aren’t there bigger problems, like, I dunno, a failed imperial war or a tanking economy? I guess (and this is no surprise) that his willingness to do wink-wink favors for the wingnut right knows no bounds.

Giving an Inch, but not a Mile

So, I’m late to the Liptak love this week. I blame it on…whatever. It’s time. Only 2 days late.

This week, Liptak joins the crack/cocaine sentencing fray with a column noting how little the Supreme Court’s big holdings in Kimbrough and Gall last week will actually mean. Liptak rightly points out that, without Congressional action, Gall/Kimbrough and the Sentencing Commission’s decision on retroactivity won’t mean a whole hell of a lot. The real problem — and the thing Congress can fix — is mandatory minimums.

Neither the [sentencing] commission nor judges can do anything about the mandatory minimum sentences that retain the same disparities. The sentences are required by a 1986 law, enacted when crack was new, terrifying and seemingly unstoppable. Only Congress can change it.

Paul G. Cassell, an authority on sentencing who was until recently a federal trial judge, said the focus on the sentencing guidelines was in some ways a distraction.

“The mandatory minimums are so draconian,” he said. “I’m a believer in a good guidelines system. And I would much rather trade a much tougher guidelines system and get rid of mandatory minimums.”

The mandatory minimum sentence for crimes involving five grams of crack — a little more than a sugar packet — remains five years. For powder, the five-year mandatory sentence does not kick in until 500 grams, or more than a pound.

Fifty grams of crack equals a guaranteed 10 years. It takes five kilograms of powder to mandate the same sentence. Five kilos is a lot of cocaine.

Indeed. While the Court’s recent decisions are a good step, and the retroactivity decision will help a lot of people get out of prison earlier than they would otherwise (but still later than they should have), the only permanent and full fix would be to repeal the mandatory minimums.

Of course, this leaves some judges (including 9th Circuit Chief Judge Kozinski) uncomfortable.

The guidelines were a sort of relief, Judge Kozinski said. They established relatively narrow ranges and “presumably take into account all those factors I don’t feel competent to weigh: punishment, deterrence, rehabilitation, harm to society, contrition — they’re all engineered into the machine; all I have to do is wind the key.”

It’s true that sentencing is a huge responsibility to place at the feet of a single person. But a judge seems to me to be better equipped than Congress; my sense is that it’s not a super idea for a political body to be deciding how to punish society’s “undesirables.”

If mandatory minimums were repealed, judges would no longer be able to blame Congress for making them impose harsh sentences. They would be fully responsible for the sentences they mete out.Their sentencing would be their own. To me, this seems like a positive development that could potentially lead to more lenient drug sentences and the imposition of harsh penalties only when really warranted (say, for a major drug trafficker not a low-level user or dealer).

But as Liptak notes, now that the Supreme Court has acted, even if only incrementally, it seems less and less likely that Congress will mobilize to implement the changes that could really make a difference.

Sentencing Round-Up

Scott covered the important points in his post about the Supreme Court’s decision today in Gall and Kimbrough. Boiled down, the Court in these cases says that it meant what it said in Booker: the Sentencing Guidelines are just that — suggestions — and federal judges are not mandated to apply them. The decision today was in a crack sentencing case; it provides hope that more and more judges will be able to show their disdain for the crack/cocaine disparity. But as Hogan and I both noted in comments to Scott’s post, Gall and Kimbrough should not be understood as paving the way to the end of the war on (some classes of people who use some) drugs. The Crack/Cocaine disparity was legislatively created and will stick around until Congress dismantles it. Which doesn’t look like it’s going to happen anytime soon.

That said, it’s definitely a good sign that seven of the nine justices of the Supreme Court — including the Chief Justice and Justice Scalia — are not prepared to hold federal judges to Congress’s misguided guidelines.

More posts about Gall and Kimbrough from around the blogosphere can be found here, here, here and here.

Fighting the Bad Fight

We’ve all got to just face facts: we have lost the drug war. In a lengthy article in Rolling Stone, Ben Wallace-Wells tells us why. In short, after Escobar was killed, the US took its eyes off the ball, Clinton kicked out his academic and liberal “drug czar” and replaced him with a “tough” military man, and Bush ruined a good policy proposal with his swagger. And, well, here we are. A choice quote from the Rolling Stone article:

The real radicals of the War on Drugs are not the legalization
advocates, earnestly preaching from the fringes, but the bureaucrats
-the cops and judges and federal agents who are forced into a growing
acceptance that rendering a popular commodity illegal, and punishing
those who sell it and use it, has simply overwhelmed the capacity of

So given what we know, why is it that we are only inching — if that — toward implementing a more sensible drug policy? Yglesias and Brad Plumer are optimistic that change is on the way, modeled after successful pilot programs in several American cities. I’m not sure I’d be as hopeful as they are. Yglesias thinks that implementing drug policies that actually work (for once) might be politically popular. There’s definitely some truth to that, but a legislator (or executive) would have to get past all the “tough on crime” posturing to even get there.

If Hillary Clinton is any indication, the smart politicians — or at least the ones with smart people advising them — aren’t taking Matt’s advice just yet. Clinton said yesterday that she is against making the reductions in crack sentences retroactive. Admittedly this is not the same as saying she’s against some time-proven effective policing technique. But still. The five other Dems who appeared at the same forum in Iowa all favor retroactivity. Hillary talked a big game about getting rid of the crack-cocaine disparities in an earlier debate, but now she doesn’t think the disparity reduction is important enough to warrant retroactive application, even though thousands sit in prison serving what even she has acknowledged are unduly long sentences.

So we’re in dire need of new policy. And though there are some beacons of common sense in cities around the country, I’m not yet convinced that real change is ahead.

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