Drug Law Blog

Shafer on Salvia

I'm pleased to see Slate's Jack Shafer weighing in on the generally poor quality of media coverage on salvia divinorum. Shafer seems to have a knack for puncturing the hype around drugs every couple months as the latest trend in crummy journalism warms up.  Not too long about it was methamphetamine. Now it's salvia. Six months from now, we can be sure, it will be something else.  Shafer writes:

In one sense the current alarm over Salvia is worse than the glue-sniffing panic. The adverse health effect of many kinds of "huffing" are well-established, while the dangers posed by Salvia are still conjecture. If the past is any guide, the coming bans on Salvia will 1) transmogrify youthful and stupid experimenters into criminals, 2) add violence to the peaceful Salvia trade, 3) publicize and popularize the use of the drug, and 4) encourage users to experiment with more dangerous substances. The drug warriors will end up wishing that it was May 2008 again and that all that bedeviled them was this containable Salvia "problem."

"Nothing Happened"

In the Los Angeles Times, columnist Joel Stein rehashes what has now become a standard California journalism trope, the story whose motivating concern is "can I really buy medical marijuana, even a normal guy like me?"  (See also: David Rubien's piece from a year ago in the San Francisco Chronicle, which similarly concludes that, yes, it is indeed possible to take advantage of a law that has been on the books since 1996.)

Best part of the column is the end:

I always wondered what would happen if marijuana were legalized for anyone over 18. It seems it already has been, and nothing happened.

SSDP's Smart Take on the San Diego State Case

Here's a remarkably good news clip on the San Diego State case, which deals primarily with the arguments of Students for Sensible Drug Policy about why the use of the criminal justice system is not the best way to respond to concerns about drug use on campus. The main thing I think is terrific about this -- other than the very fact that SSDP is featured so prominently -- is that a concrete alternative is being proposed to the use of arrests and imprisonment. SSDP is saying "hey, if we're worried about kids overdosing, we need to be creating policies that make it safe to help somebody who overdoses." And that is so stunningly simple and true that I feel like it's a pretty persuasive point.

If only the media would devote this kind of time to discussing the merits of drug arrests when they rip apart poor communities! 

By the way a post about "good samaritan"-type policies, written in connection with a different case from earlier this year, is here. 

Lawsuit Challenges California's Prison Construction Plans

The Los Angeles Times reports today:

Opponents of state prison and jail construction filed a lawsuit Tuesday in Sacramento County Superior Court against the state's plan to build 53,000 more beds, arguing that $7.4 billion in borrowing without voter approval is illegal. But state officials say courts have already sanctioned the practice.

The plaintiffs, including a group called Californians United for a Responsible Budget and several taxpayers, contend that the borrowing mechanism -- so-called lease-revenue bonds -- that the legislature and Gov. Arnold Schwarzenegger approved last year in AB 900, the prison package, would waste $1.3 billion in current dollars because of high interest rates and fixed costs.

Nearly 100 Arrested in San Diego State Drug Sting

From today's LA Times:

SAN DIEGO -- Ninety-six people have been arrested, including 75 students, after a six-month undercover drug investigation centering on San Diego State University, the district attorney's office announced today.

Seven fraternity houses were infiltrated by undercover agents, authorities said. Agents allegedly discovered evidence of widespread drug-dealing among some fraternity members. Drugs involved included marijuana, cocaine and the drug Ecstasy.

The investigation, called Operation Sudden Fall, began after an overdose by a female student at the university, authorities said. During the investigation, a second student, at San Diego Mesa College, also died of an overdose. Some 130 drug purchases were made during the investigation.

"Our children are our biggest asset and absent a safe, drug-free learning environment, their chances of succeeding are greatly diminished," said Ralph W. Partridge, special agent in charge of the Drug Enforcement Administration in San Diego. "The university police and SDSU administration are to be commended for their swift actions in confronting the drug use problem on campus."

Having just sat through a discussion of the use of "criminal street gang" prosecution enhancement laws this weekend, I can't resist noting that prosecutors could -- if they chose to do so -- easily prosecute the members of these fraternities for having acted on behalf of a "gang." All that's required under Penal Code section 186.22 is to show that the members of a group have "a common name or identifying sign or symbol," that a primary activity of its members is the commission of drug crime, and that the members have engaged in a pattern of criminal activity. It would be outrageous, of course, if prosecutors were actually to do this, but the law is written so loosely that it can be used to slap extremely serious sanctions on people with very little evidence to support those sanctions.

Update: A follow-up post is here.

More Strong Language from Human Rights Watch

Here are two graphs from p. 55 of the new Human Rights Watch report on the drug war's disproportionate effect on blacks. Strong stuff:

In the post-civil rights era in the US, deep racial inequities remain in the criminal justice system. We do not know whether or to what extent conscious racism—that is, overt hostility to blacks—affects the actions of individual police, prosecutors, judges, politicians, or other participants in drug law enforcement. What we can identify are institutional structures and practices that appear to be color-blind but have the effect of perpetuating advantages for whites and disadvantages for blacks. The “war on drugs” is a paradigmatic example. Laws that appear racially neutral are actually embedded in particular racial dynamics adverse to African Americans, and their enforcement perpetuates those dynamics. As Prof. David Cole has observed, inequalities in the criminal justice system “do not stem from explicit and intentional race or class discrimination, but they are problems of inequality nonetheless.” The problem is not explicit and intentional considerations of race, but racial “disparities built into the very structure and doctrine of our criminal justice system….”

Drug law enforcement has deepened the racial disadvantages confronted by low income African Americans even as it perpetuates the erroneous belief that most drug offenders are black. Research shows that “at a time when civil rights and welfare policies aimed at improving opportunities and living standards for black Americans, drug and crime policies worsened them … [They] have operated in the same ways as slavery and ‘Jim Crow’ legalized discrimination did in earlier periods to de-stabilize black communities and disadvantage black Americans, especially black American men.” The Leadership Conference on Civil Rights concluded in a study of civil rights and the criminal justice system, “Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased. The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress.”

(emphasis added)

On Human Rights Watch's Suggestions For Addressing Drug War Racial Disparities

With the release yesterday of big reports from both Human Rights Watch and the Sentencing Project on the racially disparate impact of the drug war, I'm wondering how these reports can concretely help to push the dialogue forward around policy reform.

On pp. 7-8 of its report, Human Rights Watch has a page of recommendations for specific policy change. These include the following:

• To adopt community-based sanctions and other alternatives to incarceration for low-level drug offenders;
• To eliminate mandatory minimum sentences for all drug offenses;
• To adopt public health-based strategies to reduce the harms associated with drug abuse;
• To conduct a comprehensive analysis of racial disparities in all phases of drug law enforcement—from arrests through incarceration—and to bring stakeholders together to devise ways to ensure drug laws and their enforcement do not disproportionately burden black communities;

These are laudable goals, to be sure, but I do wonder if these suggestions deal directly enough with the problem of using a criminal regime to deal with drugs. Perhaps it's implicit in the suggestion that the U.S. should use "health-based strategies" to reduce harm, and p. 59 of the report also does raise the question -- "Why has the United States continued to address illicit drugs primarily with a punitive criminal justice approach, including harsh prison sentences?" -- but there is a notable absence of any explicit call to move away from a criminal model of control.

What I wonder, then, is simply whether it's even possible to have a sort of "kinder, gentler" drug war of the sort that seems to be contemplated by HRW, one that still involves sending lots of people to prison but does not, inevitably, end up targeting poor people and minorities. Would it be any better, for example, if the harms of the drug war were more evenly distributed across society? Would it be an improvement if white people and wealthy people, too, had their lives torn apart in the same way as the poor?

I'm not sure what the answer is to that abstract question, and in any event it's clear that HRW is calling for a sort of de-escalation of the most intense aspects of the drug war. As a practical matter, perhaps that is the best possible outcome we can achieve in the contemporary political structure.

Saying Hello to West Coast Leaf

I spent most of Saturday in a seminar at the Supreme Court building in San Francisco, but when I finally got to go back outside I was surprised to walk right through "Cannabis Awareness Day" in the Civic Center Plaza. I didn't have time to hang around, but I did grab a copy of the newly minuted West Coast Leaf newspaper, which looks like it will be a good resource for people who are interested in keeping up on developments in the medical marijuana movement. It's available online as well as in print form.

Human Rights Watch, Sentencing Project Release Reports on Racial Disparities in Drug War Policing

From the New York Times:

[L]arge disparities persist in the rate at which blacks and whites are arrested and imprisoned for drug offenses, even though the two races use illegal drugs at roughly equal rates. Two new reports, issued Monday by the Sentencing Project in Washington and by Human Rights Watch in New York, both say the racial disparities reflect, in large part, an overwhelming focus of law enforcement on inner-city drug use, with arrests and incarceration the main weapon.

(Above: LAPD officers interview three men who were stopped after officers "detected the smell of marijuana," according to the LA Times.  Photo by Rick Loomis, LA Times. Below: SFPD officers interview a "suspected gang member" on 24th Street in San Francisco, a few blocks away from my house. Photo by Brant Ward, San Francisco Chronicle.)

The Human Rights Watch report is called Targeting Blacks: Drug Law Enforcment and Race in the United States (pdf). The Sentencing Project report is called Disparity by Geography: The War on Drugs in America's Cities (pdf), and is written by Ryan S. King.

These reports come only months after the release of The Vortex, the Justice Policy Institute report which documented exactly the same thing: dramatic racial disparities in the policing of drug crime -- with minorities being arrested at dozens of times the rates of whites despite comparable levels of drug use.

This is an issue, it would seem, that is beginning to get a little uncomfortable for America!

The New York Times, for some reason, gives Hillary Clinton a free pass on this issue, writing that both she and Obama "have strongly condemned the wider racial disparities in arrests and incarceration during their campaigns, although neither has said how to end them." What's left out of this bland description is that after the federal Sentencing Commission changed the federal sentencing law around crack cocaine to address the fact that is was being used in a grossly discriminatory manner to disproportionately affect blacks, Hillary Clinton publicly came out against retroactivity of that change.

As Prof. Berman of the Sentencing Law and Policy Blog has noted, the only other politicians taking that stance were the Justice Department and the Republicans in the House Judiciary Committee. Clinton's position on crack sentencing retroactivity was simply an embarrassment. It was, in Prof. Berman's words, "a racialized decision that echoed her husband's tendency to talk a good game about racial justice, but then actively support criminal justice laws that have well-known and pernicious racial inequities." So it's not simply that Clinton has failed to put forth solutions in this area: she has, in fact, actively opposed reform to one of the most obvious ways that the drug war has impacted minorities.   

A Few Salvia Articles

There's been some interesting commentary on salvia in the media these last couple weeks. Today in the Daily Aztec, which is San Diego State University's college newspaper, Tucker Wincele writes:

It all boils down to this: Under a campaign of misinformation, the government is trying to ban a non-addictive, scarcely used, naturally occurring plant that most people don't find enjoyable. In case you missed the news, the government can't even pay for students to go to school. How responsible is it for the already financially overstretched federal and state government to expand its role and budget? In a time when our prisons are filled to capacity, do we need to incarcerate non-violent drug users? I think not.

Despite this cogent analysis, Wincele appears to be in favor an AB 259-type law. He writes:

Legislation that restricts purchasing and possessing salvia by minors would be a positive step. For proponents of the drug, making a concession to their opponents and reframing the argument as an issue of personal liberty would be a prudent strategic move. And the outcry of parents against salvia would be greatly muted if they saw legislative action to protect their interest - their kids.

I disagree with that conclusion on several levels, for the reasons I discussed in the Daily Journal piece a while back. I'm also struck by the notion that there is value of "reframing the argument as an issue of personal liberty," because that exact argument is, in my opinion, the greatest failing of the contemporary drug policy reform movement. The claim that we should change drug laws because we have a right to do whatever the heck we want as a matter of personal liberty is a losing argument, every time. That argument doesn't honestly acknowledge the external costs of individual choices, or that people who use drugs recreationally may in fact create harms that go beyond their own personal use.

I come to my beliefs about drug policy not from the point of view of individual liberty but from a concern about the astronomical costs of using the criminal justice system to respond to a health issue. And that, at a time when 1 percent of the entire country is locked up behind bars, is a concern that I think can resonate with a lot of people.

A reporter for the Boston Phoenix called me up a while ago in connection with a piece he was doing on proposed legislation on salvia in Massachusetts. He ran this quote, which I think is worth considering:

“It’s not always a net positive to use criminal law to solve problems,” says Coolman. “Even if you grant that salvia could potentially be harmful, you have to analyze what’s going to be more harmful: a few thousand [people] using salvia? Or a few thousand kids who go to prison, and then we take away their financial aid?”

To me, that's a commonsense issue that we need to consider. It's not about whether people have some kind of God-given right to "get high" in the privacy of their own home. It's about trying to find policy solutions that make our society as safe and healthy as possible -- an outcome that will sometimes be achieved by choosing not to use criminal law to respond to a perceived risk.

Finally, it's worth noting that San Bernardino County Sheriff's Lt. Barbara Ferguson, the legislative liaison for that department, was quoted Sunday in the Inland Valley Daily Bulletin as follows:

"I am not real happy with the limited bill [AB 259] that we have," Ferguson said. "Our intention, when we started this, was to make it completely illegal. ... But because of how liberal the legislature is here in California, that was impossible to do.

"There will come a time when we can completely outlaw it here in California," she added.

To be clear, then, no matter how much AB 259 might seem like a "moderate" step that is intended just to "protect the kids," the ultimate goal of its proponents is to impose criminal sanctions on all salvia users, no matter their age.

The War on Drugs: The Band

It must be Friday, because I'm exhausted and I've spent the afternoon listening to music instead of doing anything remotely productive. Too bad I have to work tomorrow.   

At any rate, my afternoon of aimless music listening did manage to turn up one interesting thing: The War on Drugs, the band. There's something Dylanish about these guys, but filtered through a more layered, shambling, contemporary sensibility. It's sort of like if Devendra Banhart listened to a lot of The Band instead of a lot of Marc Bolan. Actually, that's a pretty terrible comparison, but the point is that the music has tendencies towards both the rootsy and the transcendental. At any rate, they have an EP that you can stream for free here and download, also for free, here.

Their new record, Wagonwheel Blues, comes out next month.

California's AB 259 Advances From Senate Comittee

California's proposed bill to ban the sale of salvia divinorum to minors has passed through a Senate committee.  One news item on the vote, which misleadingly describes salvia as a "pot-like drug," is here.

My take on this bill is here.

Why Are There So Many Marijuana Arrests in New York City?

How can it be that after the state of New York decriminalized possession of personal use quantities of marijuana, New York City police still manage to rack up tens of thousands of marijuana arrests every year -- including 33,000 arrests just in 2006?

That's the question that the New York City Bar will address at a panel tomorrow.

The panel will also go beyond the raw numbers to ask the slightly dicier question: why is it that these arrests are overwhelmingly concentrated in black and latino neighborhoods? Should be interesting stuff!

As a side note, it should go without saying that the New York City numbers are just part of a large national problem. There were more than 800,000 marijuana arrests nationwide in 2006. These arrests are directed overwhelmingly at minority communities, despite comparable levels of drug use across ethnic groups, as was documented in considerable detail in a report released last year by the Justice Policy Institute.

What makes New York particularly interesting is that this type of pattern is still happening despite the fact that the law was changed, ostensibly to permit possession of small quantities of marijuana. If there was ever a clear example of the dramatic impact that policing choices can have on drug policy, New York City would seem to be it.

Medical Marijuana Use as Obstacle For Potential Transplant Recipients

Imagine it: a man uses marijuana, with a doctor's recommendation, to relieve the pain of liver failure and then is denied a liver transplant because his use of that marijuana suggests he has an "addictive personality."

That's a scenario that is actually happening in some places, according to an article published yesterday by the Associated Press. The article, however, is very light on statistical info:

No one tracks how many patients are denied transplants over medical marijuana use.

Pro-marijuana groups have cited a handful of cases, including at least two patient deaths, in Oregon and California, since the mid-to-late 1990s, when states began adopting medical marijuana laws