Over at Sentencing Law and Policy, Thomas Jefferson School of Law Professor Alex Kreit has been blogging for the past few weeks about his new casebook, Controlled Substances: Crime, Regulation, and Policy. The previous entries discussing the overview of the book, and some of the issues the book addresses, can be found here, here, and here.
So far the posts have been extremely interesting, and I would have loved the opportunity to take a class in law school solely dedicated to legal and policy issues pertaining to controlled substances.
But it was the topic of Professor Kreit’s third post on his casebook that particularly piqued my interest – measuring defendant culpability in drug cases:
Drug sentencing poses particularly difficult grading problems. For crimes like murder or robbery, the essence of what makes the conduct wrongful is easy to grasp. There may be disagreement about how to differentiate more and less serious homicides, for example, but the contours of the debate tend to present themselves more naturally. Few would disagree that a person who kills “recklessly” should typically receive a lower sentence than someone who kills “intentionally” and so on.
I believe there is much less agreement about what it is that makes drug crimes fundamentally wrongful. Is it the quantity of drugs involved? The role the defendant played in the specific offense? The defendant’s motive for becoming involved in drugs (for example, should a drug courier who is an addict be sentenced differently from one who is not)? The defendant’s overall position in the drug enterprise (to the extent this can ever be pinpointed)? (The argument that drug crimes are “victimless” and therefore not blameworthy at all is considered elsewhere in the casebook.)
Federal drug laws, and the laws of many states, have answered this problem by focusing largely on drug type and quantity. The chapter begins with materials that look at this phenomenon. Students will see the relationship between drug quantity and determinate sentencing laws. Determinate sentencing requires measurables to work effectively and drug type and quantity are two of the easiest things to measure. Certainly, weighing drugs is much easier than, for example, trying to define and prove someone guilty of being a “drug kingpin.” But, is drug quantity really an accurate measure of culpability? This is a theme that runs throughout the chapter with cases that continue to ask students to consider what factors should drive drug sentences.
As Professor Kreit notes, the real problem with making this determination is that the federal government and many states measure defendant culpability based on drug type and quantity alone. I wrote about the unintended and perverse consequences of only using drug quantity and type in a post last April regarding a case opinion where U.S. District Court Judge John Gleeson blasted the Department of Justice for their practice of charging low-level drug offenders with mandatory minimum penalties – penalties that were explicitly enacted in the Anti-Drug Abuse Act of 1986 to go after “kingpins” and high-level leaders and managers of drug enterprises:
The Anti-Drug Abuse Act of 1986 (the Act), passed by congress and codified at 21 U.S.C. § 841, established the mandatory minimum penalties that are now a hallmark of federal drug cases. But the vast majority of the way these mandatory minimum charges are used for drug crimes is in total contravention to the original purpose of the legislation.
As a U.S. Sentencing Commission report states, in passing the Act, “Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called ‘serious’ traffickers and the ten- year mandatory minimum penalties to ‘major’ traffickers.” Basically, the Act was meant to target the management of drug dealing syndicates, mid and high-level dealers, as well as the drug “kingpins” atop the organizations.
The problem is the Act seeks to determine the function of dealers in a drug business solely by the quantity of drugs a defendant is implicated with (mandatory sentences increase as the quantity of drugs increase), rather than specific roles individual dealers play within a criminal organization.
By passing a law simply focused on drug quantity in such broad language and with no requirement to prove a defendants specific role in a drug dealing business, contra congressional intent, these punitive mandatory sentences can be, and mostly are, applied to anyone arrested with the specified amount of drugs to trigger the mandatory sentence – regardless of the defendant’s role within a drug organization.
This is a significant flaw in the legislation; using drug quantity as a determiner is ineffective because high-level individuals at the top of drug dealing enterprises rarely ever deal, handle, or are even in the same room as large quantities of drugs – as the actual day-to-day dealing of drugs is typically delegated to low-level street dealers.
As Judge Gleeson points out, the problem is evidenced by the fact that in 2011, “over 74% of crack defendants faced a mandatory minimum, . . . yet only 5.4% occupied an aggravating role of leader or manager of a drug business . . . .” It turns out, “that the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties.”
I’m glad to see Professor Berman open up his blog for Professor Kreit to discuss the critical issues of criminal justice and drug law policy that have been ignored far too often. I just received my copy of the casebook and look forward to digging through it, as well as Professor Kreit’s upcoming installments at Sentencing Law and Policy. After just a cursory glance, I can tell this casebook will not only serve as a valuable tool for law students, but for practitioners as well. As a soon-to-be criminal lawyer, I know I’ll be using it.
- Russ Roberts on Econ 101 and the Minimum Wage
- Thank Goodness Kids Do Belong To Their Parents
- Mike Riggs says Rand Paul is no Libertarian on Drug Policy
- Three key lessons from the Obama administration’s drone lies
- Will Wilkinson on mass shootings and public policy: What about the children?
- This week at Thoughts on Liberty: Give Casual Sex a Chance and The Newest Form of Slut Shaming: Skank Flank
- Kevin Carson on Margaret Thatcher and the Degradation of “Freedom” in Right-Wing Discourse
- 5 Reasons Why Low Skilled Immigrants are Good for the Economy
- Steve Horwitz asks Can Government Create Jobs? in the latest LearnLiberty video:
Image via Calvin and Hobbes
The Florida legislature is currently weighing legislation, that if passed, will establish much needed needle exchange programs in the state. I sent the following letter to the Tallahassee Democrat in response to former Florida drug czar Bruce Grant’s vituperations against these harm reduction measures:
The only message that will be sent by failing to pass legislation establishing needle exchange programs is that the Florida legislature isn’t really concerned with the preventable cycle of disease and death that plague many intravenous drug users.
Despite numerous accusations against needle exchange programs, the empirical evidence paints an entirely different picture. A 2000 Department of Health and Human Services report by the U.S. Surgeon General states, “there is conclusive scientific evidence that syringe exchange programs . . . are an effective public health intervention that reduces the transmission of HIV and does not encourage the use of illegal drugs.”
A 2003 Human Rights Watch study further notes that “access to sterile syringes have been proven time and again to reduce HIV transmission without either encouraging drug use or increasing drug related crime.” Even though needle exchange programs stand accused of not even trying to address addiction, the National Institute for Health found “individuals in areas with needle exchange programs have an increased likelihood of entering drug treatment programs.”
Whatever one thinks of drug use, morally or ethically, intravenous drug users are not some sub-human class of people. They are our family members, friends, and neighbors. So lets stop treating them like second-class citizens unworthy of the benefits of a cost-effective program to help address easily preventable disease. It’s time to pass HB 735 and SB 808.
“Dopeman” is a track from Gainesville based ska punk band Less Than Jake’s 1996 major label debut album Losing Streak. It’s an interesting commentary on the perverse incentives provided by the war on drugs:
Dopeman dopeman’s got another big plan
To sell it to you or anyone he can
Because this is much better than minimum wage
No matter how things work he’s still gonna get paid
Think about it for a minute more -
It’s either work at McDonalds or the corner store
A quick money fix from a deal or 2
When a decision comes down
What would you do?
You take – take a welfare state
Or a dopeman’s fate
And keep the cycle spinnin’ round
Dopeman dopeman’s got the upperhand
People wanna get as much as they can
Because those reasons they’ll always stay the same
And for some people it’s the only way to stay sane
And think about it for a minute more -
A life of crime or hangin’ round the liquor store
A quick drug fix to get you through
When the decision comes down
What would you do?
Check out the music video…
Image via Less Than Jake
Back on January 11, I wrote an article about the prospects for drug law reform this year which stated that ”…2012 may have the potential to be a banner year for drug policy reform advocates.” Now, ten months later, it is a banner year for drug policy reform. In fact, this is the greatest year ever for drug law reform. Both Colorado and Washington have legalized marijuana, while Massachusetts has approved medical marijuana. Tangentially, Californians voted in favor of reforming the state’s Three Strikes law. While criminal justice and drug policy issues were basically ignored entirely during the campaign, tonight’s results show that federalism continues to be the vehicle for these issues which will ultimately result in long-term, lasting change.
My latest piece over at Independent Voter Network looks at civil liberties violating civil asset forfeiture laws and the perverse incentives these laws create for police departments. Here’s a taste:
In a 2010 report titled Policing for Profit, the libertarian public interest law firm, the Institute for Justice* (IJ), documents the widespread and abusive manner in which civil asset forfeiture is used by law enforcement agencies. IJ looked at the forfeiture laws in each state, providing an overall grade based on the state’s forfeiture law and the extent of forfeiture use. The findings are stark: “Only three states—Maine, North Dakota and Vermont—receive a combined grade of B or higher. The other 47 states all receive Cs or Ds.” While “[m]ost state civil forfeiture laws provide little protection to property owners. Six states receive an F and 29 states receive a D for their laws alone. Lax federal laws earn the federal government a law grade of D-.”
Moreover, the burden of proof controlling “how much evidence the government must present at trial and how compelling that evidence must be in order to successfully claim property through civil asset forfeiture” for most states is extremely low. The IJ report reveals, “that upwards of 80 percent of forfeitures occur absent a prosecution” because “the standard of proof required to forfeit an individual’s property is lower than the standard required to prove that the individual was guilty of the criminal activity that supposedly justified the forfeiture in the first place” for a “vast majority of states and at the federal level.”
With regards to the Bal Harbour Police Department and the state of Florida, IJ gives Florida a D for their final grade. The standard of proof required by the Florida law is “clear and convincing evidence” that the property forfeited relates to criminal activity. While some states require a lower burden, such as probable cause and preponderance of the evidence, Florida’s burden still falls woefully short of the “beyond a reasonable doubt” standard needed to secure a criminal conviction. Florida law enforcement also “receives 85 percent of the funds generated from civil forfeiture” and took in over $100 million in forfeiture just between the years 2001-2003.
As seen in the example of the Bal Harbour police department, “[t]his expansive use of civil forfeiture has not only benefitted law enforcement institutionally, it has also led to personal gain.”
The abuses of civil asset forfeiture laws, whether in Florida or throughout the nation, is easily explained by public choice. These laws essentially create perverse incentives for police departments to focus on supplementing their typically constrained budgets, allowing for the kind of fancy equipment, technology, vacations, and banquets in the Bal Harbour case. Not to mention police ignoring the kinds of violent crimes that will fail to cede anything of value for seizure and instead focusing on drug crimes, which are far more likely to yield seizable assets — thereby filling department coffers.
Check out the whole thing here.
On October 31, the Supreme Court is set to hear the case of Florida v. Harris, which raises the question of whether a positive alert from a drug dog is sufficient to establish probable cause allowing police to perform searches and ultimately seize and keep real and personal property via perverse civil asset forfeiture laws (uh, of course not). The Institute for Justice* has filed a brief arguing (rightly) that this practice violates core constitutional protections. This video below from IJ explains their theory of the case:
*Disclaimer: I attended the Institute for Justice’s 2011 Law Student Conference
As we draw closer to election day where the fate of three state marijuana legalization initiatives will be decided, it is always a good time to reiterate and remember just what a disastrous policy the War on Drugs has been for the last forty plus years and counting — and this info-graphic created by OnlineCriminalJusticeDegree.com does just that:
That is the topic of my latest post up at the Independent Voter Network. Here’s a taste just to wet your beak:
While prohibitionists are concerned that liberalizing marijuana policy, even via careful regulation of medical marijuana, will result in an increase in crime and threats to public safety, the evidence of empirical studies suggests otherwise. In fact, the only methodologically rigorous research to tackle the association between crime and medical marijuana dispensaries found no correlation….
In a paper recently published in the Journal of Studies on Alcohol and Drugs, UCLA scholars Nancy J. Kepple and Bridget Freisthler discovered that “density of medical marijuana dispensaries was not associated with violent or property crime rates” in Sacramento, California.
The paper used the routine activity theory to attempt to understand how the existence of medical marijuana dispensaries may impact crime. In criminology, routine activity theory posits that crime results from the convergence of three conditions: (1) a motivated offender; (2) a suitable target (based on value, access, visibility); and (3) the lack of a capable guardian (such as inadequate security or the absence of management or agents to watch and monitor behavior).
Kepple and Freisthler go on to explain how medical marijuana dispensaries and their surrounding areas may be suitable targets for crime (citations removed):
Applying routine activity theory to medical marijuana dispensaries suggests that dispensaries may uniquely contribute to crime even when other contextual factors associated with crime have been controlled. They have on-site stock and sales of marijuana and are a predominantly cash-based business. The centralized location of the goods—marijuana and cash— within the dispensaries makes the location a suitable target for a potential offender who might be motivated to seek out ways to obtain the desirable goods, particularly where security appears to be absent.
Based on the conditions described above, dispensaries can be at risk for property crimes, such as burglary. Employees of the dispensaries can be at risk for violent crimes, such as robbery or assault, because they are gatekeepers to both the marijuana products and the cash at the site. Estimates from the western United States and other countries show that users of medical cannabis are primarily male (i.e., two thirds to three fourths of all users) and White, with a wide range of ages (i.e., late teen years to old age; median age between 30 and 50). The typical clientele for dispensaries (i.e., older White men) are not associated with being at risk for perpetrating crime. However, they are at risk for being targets of violent crimes, such as robbery, because they are likely carrying cash on entry and some physical amount of marijuana product on exit. In addition, medical marijuana dispensaries have a diverse clientele, with some who are older, frail, and/or diagnosed with chronic, debilitating conditions. These more vulnerable clients may appear to be easier targets for a motivated offender and are at higher risk for victimization.
The authors then “used an ecological, cross-sectional design to explore the spatial relationship between the density of medical marijuana dispensaries and crime rates in the City of Sacramento.” In sum, the study finds that “cross-sectional results suggest that dispensaries are not associated with crime rates.”
While commercial zoning, one-person housing units, and the unemployment rate were all positively associated with both violent and property crime rates, “no cross-sectional associations were observed between the density of medical marijuana dispensaries and violent or property crime rates, controlling for ecological variables traditionally associated with routine activity theory.”
Check out the entire piece here.
As a result of drug prohibition there’s been a massive increase in the number ofindividuals incarcerated and arrested for drug crimes over the past thirty years; civil liberties and the Fourth Amendment are seemingly becoming a relic of the past due to asset forfeiture laws, stop and frisk, and Supreme Court acquiescence to police fordrug investigations; and all the while law enforcement departments are becoming increasingly militarized in both their weapons and tactics.
With problems like these it is easy to understand how this aspect of the War on Drugs is over-emphasized. Mostly overlooked in discussions about drug prohibition and its unintended consequences are the undeniably deleterious effects that the drug war has had on the environment.
Because of the draconian criminal penalties for cultivating marijuana, most commercial growers are eschewing the risks of growing on their own property in favor of lush, dense, and resource-rich national forests and public lands. Commercial marijuana grown deep inside public lands insulates growers from detection by law enforcement.
In the event a grow area is detected by law enforcement, the crop will most likely be the only thing uncovered. Keeping the cultivation away from their own property makes it more difficult for police to know precisely who is engaged in commercial grow operations, and protects growers from intrusive police tactics like asset forfeiture to unjustly seize property.
And it is these commercial grows inside of national forests and public lands that have led to a great deal of serious damage to the environment. The reasons are simple: these “lands are remote with few people, the forest vegetation is dense, there is an extensive system of roads and trails (both open and closed), soils are fertile, and water for irrigation is available for the diverting.”
In order to grow deep inside these public spaces, natural forest and vegetation must be cut down and destroyed, wildlife must be removed from the vicinity, whole areas of plants are uprooted to form a grow area, and water from rivers, streams, and lakes is diverted through rigged irrigation systems to hydrate the marijuana crop. Meanwhile chemicals are used to protect the marijuana plants and irrigation lines.
By using forests and other public lands, commercial marijuana growers are destroying the natural habitat and ecosystem of the lands they invade. A perfect example of the potentially irreversible environmental harm caused by drug prohibition is the fisher, a forest carnivore and nearly endangered species that resides up and down the Pacific Northwest. Marijuana Policy Project’s Bob Capecchi explains:
According to researchers led by veterinary scientists from the University of California at Davis, illicit marijuana grows are inadvertently killing off large numbers of these rare animals. The theory goes that in order to protect their irrigation lines and crops from nibbling rats, growers sprinkle rodenticide directly on their lines and around their crops. The rodenticide – which can be lethal after a single ingestion – takes up to seven days before signs of ingestion occur. Within those seven days, the fishers eat the rats who have been poisoned, thus exposing themselves to the poison as well.
Researchers also theorize that the fishers may be eating the poison directly, attracted to the cheese, peanut butter, and bacon flavorizers added to the poison. Of the 58 fisher carcasses analyzed by the researchers, rodenticide was found in 79% of them. In addition, the deaths occurred between mid-April to mid-May, when immature marijuana plants would be most vulnerable to pests and thus most in need of a rodenticide to ensure against that threat. While the fisher is the focus of the study, the researchers made sure to point out that ‘martens, spotted owls, and Sierra Nevada red foxesmay be at risk from the poison, as well.’”
As Capecchi notes, there is no incentive for those engaged in illicit commercial grow operations to care or do anything about the ecological damage their activities cause. Drug prohibition creates opportunity costs. When your most pressing problems are possible arrest, imprisonment, seizure of property, and potentially violent disputes with rival drug enterprises, the environmental impact of your marijuana grow just isn’t something that is really considered.
The simplest way to solve the ecological devastation created by commercial marijuana operations deep inside public lands, as Capecchi points out, would be to legalize and regulate the marijuana industry:
“Like other agricultural operations, marijuana grows would be regulated and, more importantly, inspected. Environmental regulations would limit when and what types of pesticides could be used. Additionally, grows would be moved out of the remote areas where they are currently cultivated and where wildlife thrives; we don’t see illicit vineyards crop up on remote public lands for a reason. Finally, financial penalties would be placed on growers who violate environmental regulations and inspections would make sure the regulations are being followed. A well-regulated and inspected system of marijuana cultivation would ensure that the industry is environmentally friendly (or at least not environmentally destructive).
It’s well past time we stop criminalizing otherwise law abiding marijuana users, stop wasting billions in tax payer money funding a prohibition that has never worked, stop foregoing billions of estimated tax revenue, and stop fostering a niche agricultural industry free from any environmental rules and regulations. It’s well past time we tax and regulate the marijuana industry.”
As I’ve previously written, the expansive effects of drug prohibition can be felt throughout all aspects of US public policy, and the environmental impact is no different. The ecological devastation the drug war creates is very real, and just one of many unintended consequences of the decades-long War on Drugs.
Image via Live Science
As a constitutional republic, the US system of government is designed on the principles of federalism. In our federalist system the federal government is one of enumerated powers and those powers not explicitly granted to the federal government are reserved to the states. The framers of the Constitution established this system through the Tenth Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
As James Madison put it in Federalist 45:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
While the powers of the federal government have been broadly interpreted and rapidly expanding over the last eighty plus years, diluting the very notion of federalism on which the US system is designed, there is one area of public policy where federalism is not only being exercised, but thriving — and that is marijuana policy.
The federal prohibition of marijuana was enacted when the Controlled Substances Act passed Congress in 1970. Since then, in keeping with the concerns of the lives and liberties of its people, seventeen states and Washington DC legalized medical marijuana, while fifteen states passed decriminalization measures. And despite the fact that the Supreme Court held in the 2005 case of Gonzalez v. Raich that growing marijuana solely for personal and medicinal consumption in compliance with state law is subject to regulation under the Controlled Substances Act, seven states passed medical marijuana laws since that decision, and Massachusetts and Montana have medical cannabis initiatives on the ballot this fall.
Undeterred by the federal government’s continuous ramping up of the war on medical marijuana, state efforts to push the envelope and even further liberalize marijuana laws continue beyond medical cannabis. Colorado, Washington State, and Oregon are all thumbing their noses at the federal government by placing marijuana legalization initiatives before voters this November. Even smaller efforts like Ohio’s recently-passed legislation decriminalizing most marijuana paraphernalia shows that states are continuing to chart their own path on marijuana policy.
By exercising their powers in accord with the federalist principles on which our country was founded, many states have stood up for the long forgotten idea that ours is a federal government of enumerated powers. More importantly though, those states that chose to liberalize marijuana laws by passing medical and decriminalization measures and the like, laid the foundation that will ultimately bring the federal prohibition of marijuana crashing down.
Drug warriors and critics of liberalizing marijuana laws attempted to whip up a frenzy about what would happen should marijuana be made more readily available for medical use. The most common criticisms from anti-legalization and medical marijuana opponents is that marijuana is as harmful and addictive if not more so than alcohol and tobacco, and making marijuana more accessible will thereby lead to widespread use and addiction. Critics further contend a whole hoard of other claims, including: marijuana causes severe health problems such as lung cancer and respiratory problems, that one joint places more tar in an individual’s lungs than a cigarette, it sends the wrong message to kids who will see the availability of marijuana as a sign that is okay to use and will do so at alarming rates, and incidents of driving under the influence will significantly increase.
In reality, these fears have been found to be completely unwarranted. Contrary to the aforementioned claims, breakthrough research shows marijuana is by far one of the least addictive drugs one can use and is undoubtedly less addictive (if it is at all) than alcohol and tobacco. Further, anyone definitively stating that marijuana is in fact addictive is being disingenuous at best. Nor has there ever been a documented case of someone getting lung cancer or dying from simply smoking marijuana.
But the greatest contribution of those states embracing federalism in passing medical marijuana laws is that the proper conditions were created to empirically gauge the baseless and arbitrary contentions of these critics about usage and public safety. Time and time again research continually shows there is essentially no causal connection between the passage of medical marijuana laws on the measures of reported marijuana use– for both the general population and teenagers.
Indeed, some research even indicates, “reported adolescent marijuana use may actually decrease” after the passage of medical marijuana laws. Moreover, studies also show incidents of driving under the influence go down in medical cannabis states, conceivably because people are more apt to eschew alcohol in favor of marijuana. These reductions make sense, as marijuana is typically consumed in homes and private spaces, as well as the fact that “people who are high tend to be aware that they are impaired and compensate, while alcohol tends to increase recklessness and create false confidence.”
Thanks to federalism, the empirical research gathered shows the core arguments put forward by critics of liberalized marijuana laws — namely widespread use and abuse by young people and public safety concerns on the road — are without merit.
Those states deciding to disregard federal marijuana prohibition and respect the wishes of its people (especially independent voters, whose support for medical marijuana outpaces the other two voting blocks) by passing medical and decriminalization measures succeeded in essentially making marijuana banal. As new states seek to liberalize their own marijuana policies, and others look to continue the process, every time a medical marijuana, decriminalization, or legalization initiative passes it is just another domino falling in the face of what seems to be at this point, an inevitability.
When we look back years from now, when marijuana is finally legalized on a national level, we’ll thank those states who adhered to the principles of the Constitution and federalism and took the plunge first — providing the rest of the country and world with valuable empirical data demonstrating that marijuana can be regulated and controlled like any other commodity without disastrous consequences.
Image via Wikimedia Commons
Dating back about 400 years is the bedrock common law principle of criminal law that a crime essentially consists of two elements — the guilty act itself (actus reus) and the guilty mind of the individual offender (mens rea). The mens rea requirement is essentially the mental aspect of criminal liability. In order to be guilty of most crimes a defendant must have committed the offense while under a certain mental state, such as when his conscious object or purpose is to cause a criminal result or engage in prohibited conduct, or when he intends to bring about a certain harm if he knows with virtual certainty that his actions will cause said harm.
In the 1996 case of Chicone v State and the 2002 case of Scott v. State, the Florida Supreme Court expressly held the crime of possession of a controlled substance under the state’s Drug Abuse Prevention and Control Act (Fla. Stat. §893.13) included the mens rea element as part of the offense, and that an offender could only be subject to the criminal penalties of the law if the state proved the mens rea requirement. In Scott, the Florida Supreme Court plainly expressed just how fundamental this knowledge element of the crime of possession of a controlled substance is by stating, “a defendant is entitled to an [jury] instruction on that element, and… [i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.”
The Florida legislature responded by amending the Drug Abuse Prevention and Control Act later in 2002 and inserted language stating, “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter.” By amending the law the legislature made it so the state is no longer required to prove an offender knew the contraband possessed is in fact an illegal controlled substance under the statute. Essentially, someone arrested for possession of a controlled substance is now guilty of the crime even if they did not knowingly possess the drug they are being charged with. By doing so, Florida is now the only state to expressly eliminate mens rea as an element of a drug crime.
On October 5, 2004, Mackle Vincent Shelton was arrested and charged with a myriad of crimes, including the delivery of cocaine. Shelton was eventually convicted in state court for delivering the cocaine, among other charges, and because the conviction occurred after the amendment to the Florida drug law, no jury instruction was given in regards to the knowledge element of the offense.
While Shelton’s appeals were all denied at the state level, he finally found relief when he filed ahabeas corpus petition in federal court. Judge Mary S. Scriven of the U.S. District Court for the Middle District of Florida held in Shelton v. Secretary, Department of Corrections, the state’s drug law, as amended, is facially unconstitutional as a violation of the due process clause of the 14th Amendment to the U.S. Constitution. She further called Florida’s drug law “draconian and unreasonable,” and the legislature’s elimination of the mens rea element “atavistic and repugnant to the common law….”
Judge Scriven’s reasoning was based on three components: (1) the penalties under Florida’s Drug Abuse and Control Act are too severe to lack a knowledge element; (2) the social stigma associated with a felony conviction is so significant that it should require the finding of a guilty mind; and (3) the law can essentially regulate completely innocent conduct — for instance someone being convicted for delivering or possessing a bag without knowing what is in it.
Following that decision, a slew of drug cases were dismissed in circuit courts around the state. One circuit court judge in Miami-Dade County threw out 39 felony drug cases while another circuit court judge in Manatee County threw out 46 cases. These dismissals prompted appeals which culminated in the Florida Supreme Court’s hearing of the issue in the case of State v. Adkins.
In a 5-2 opinion delivered last Thursday, the Florida Supreme Court overturned the Twelfth Judicial Circuit Court’s dismissal of 46 cases and held the amended Florida drug law is constitutional on its face and that the lack of guilty knowledge by offenders can only be used as an affirmative defense — meaning defendants themselves have the burden of proof in showing that they did not knowingly possess or deliver a controlled substance. The Court stated that the amended portions of the drug law “rationally related to the Legislature’s goal of controlling substances that have a high potential for abuse, and the statutes do not interfere with any constitutionally protected rights.”
The Court’s analysis centers on its belief that since “controlled substances are valuable, common sense indicates that they are generally handled with care.” That belief leads the Court to reason that unknowingly possessing such substances is an exceedingly rare occurrence, and that the amended portions of the Drug Abuse Prevention and Control Act permitting defendants to use the mens rea element as an affirmative defense basically operates as an easily usable safety valve for those who in fact unknowingly possessed or delivered controlled substances.
The Florida Supreme Court’s opinion is certainly a blow to the many defendants who have had their drug cases dismissed, those petitioning to have their drug convictions overturned since the opinion issued by Judge Scriven last year, and criminal justice reform advocates. This decision by the Court, which will make it easier for the state to convict and obtain guilty pleas of those arrested for distributing and possessing controlled substances (even unknowingly) is based on flawed reasoning well elucidated by Justice Perry in his dissent.
Justice Perry rightly points out how the most basic “acts of possession and delivery are part of daily life.” Whether it is handing a friend a dollar or a cup of coffee, carrying luggage on and off public transportation, hauling grocery and shopping bags in and out of stores, or carrying purses, backpacks, and briefcases in places like schools and offices, these examples just show how ripe the chances are for third parties to potentially plant or slip a controlled substance into the property of another without them ever being aware. These scenarios make it plain that the amended law does not seek to punish drug traffickers who possess and deliver narcotics. Rather, by removing the mens rea element, the law punishes anyone who delivers such substances regardless of whether it is done intentionally, unknowingly, inadvertently, or willfully.
Moreover, the idea that the affirmative defense allowing a defendant to show lack of a guilty mind is a simple burden to meet is misguided as well. The concept of innocent until proven guilty is the foundation of our criminal law. Yet, as the dissent notes, the affirmative defense the majority finds perfectly adequate “is hardly a friendly opportunity; rather, it is an onerous burden that strips defendants—including genuinely innocent defendants—of their constitutional presumption of innocence.” Innocent offenders who seek to use the affirmative defense are starting from a position wherein they are presumed guilty. They then lose “their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt.”
Just imagine a situation in which someone is given a prescription painkiller and told it is an over the counter pill, like ibuprofen, or a high school that every so often conducts drug dog searches of classrooms. Alerted to the search and in an attempt to hide drugs in their possession, a classmate places a controlled substance into the backpack of another student, unbeknownst to her. The drug dogs are alerted to the backpack and the drugs are found. Now, under these two examples, both the person who was given the pill and the student whose bag the drugs were found in are basically guilty because the elements of the statute are simply: (1) the contraband is illicit; and (2) the illicit substance was actually possessed.
This puts the supposed offender in a position of either pleading guilty to a crime she did not knowingly commit and believe to be truly innocent of, or go to trial and use the affirmative defense of lack of knowledge whereby she essentially starts from a position of being presumed guilty. It should be plain that both of these are wholly unattractive options — but this is exactly the kind of unintended consequence and perverse incentive that is a reality under Florida’s drug law.
Despite the unfavorable decision by the Florida Supreme Court for criminal defendants, basic common-sense fairness in the administration of justice, and the centuries old core principles that underlie our criminal law, not all is lost. The Court only held that the drug law is facially constitutional, meaning that on its face the law is not always unconstitutional. This leaves open the possibility of a future, as-applied challenge to the law, which contends that a particular application of the statute is unconstitutional — something like the “drug dog school search” example above.
In addition, the Shelton case — which the U.S. District Court for the Middle District of Florida favorably decided last year and kicked off all state court action regarding this issue — already ascended to the 11th Circuit U.S. Court of Appeals. Oral arguments were heard back in May and the decision in that case could play a role in the future of Florida’s drug statute as well. Plus, there is always a possibility of an appeal to the Supreme Court of the United States for a final resolution.
The power prosecutor’s hold over criminal defendants has been rapidly expanding for decades now — with mandatory minimum laws as the primary culprit. Continuous growth in the disparity in bargaining power against criminal defendants and in favor of the state is a serious cause for concern. And the Florida legislature’s elimination of the mens rea element in the state’s drug law and the Florida Supreme Court’s decision to uphold the constitutionality of the statute are no different. In our adversarial system of justice the burden of proof is supposed to be on the government to prove guilt beyond a reasonable doubt — not for criminal defendants to make an affirmative showing of innocence.
Image via Wikimedia Commons
Alternet.org has a very thoughtful article by three members of the New York City Bar Association’s Drugs and the Law Committee on the way international treaties impact efforts to legalize marijuana in the U.S.
The U.S. has signed the Single Convention on Narcotics (1961) and Article VI of the U.S. Constitution provides that federal law and treaties are the “supreme Law of the Land.” The various states are governed by these treaties, and thus limit the ability of any state to legalize marijuana. This is certain to become an issue in the summer and fall of 2012 as the voters of Washington State, Colorado and Oregon consider initiatives to legalize marijuana. If one or more of these pass, these international treaties will be a factor in how the federal government responds.
The authors — Heather J. Haase, Esq., Nicolas Eyle, and Joshua Schrimpf, Esq. — note that the international consensus behind these treaties is being shaken.
A major change in the traditional protocol of the treaties — don’t rock the boat — is coming from Bolivia. When Bolivia (and Peru) acceded to the Single Convention (what we in the U.S. call ratifying the treaty), they agreed to ban their long-time practices of coca chewing and drinking coca tea after 25 years (Article 49.2(e), Single Convention of Narcotics). Since 1987, they have not been in compliance.
A couple of years ago, Bolivia rewrote its constitution and decided to try to change the requirement that it disapprove of coca use. (Bolivia’s President, Evo Morales, came to political prominence as the leader of the union of coca growers!).
Bolivia tried to get the U.N.’s Commission on Narcotics Drugs to change the prohibition on coca use, unsuccessfully.
Now Bolivia is using different approach which is to “withdraw” from the treaty (called “denunciation,” Article 46, Single Convention on Narcotics) and then joining the treaty again (“accession,” Article 40) but with reservations (Article 50.3). The reservation can be rejected if it is objected to by one-third of the countries that are party to the Single Convention within twelve months after a country notified the U.N. Secretary General it wants a reservation. That means that one-third of the 183 nations (“parties”) have to object.
This type of strategy is outlined in chapter 6 in the excellent book by Robin Room, Benedict Fischer, Wayne Hall, Simon Lenton and Peter Reuter, Cannabis Policy: Moving Beyond Stalemate, (Oxford U. Press, 2010).
Image via Criminal Justice Policy Reform
During a chat on Reddit, Booker launched into a screed against the drug war, calling it “big overgrown government at its worst.” Here’s more from the Huffington Post:
“The so called War on Drugs has not succeeded in making significant reductions in drug use, drug arrests or violence,” the Democrat wrote during the Reddit “ask me anything” chat. “We are pouring huge amounts of our public resources into this current effort that are bleeding our public treasury and unnecessarily undermining human potential.”
Booker then called drug arrests a “game.”
“My police in Newark are involved in an almost ridiculous game of arresting the same people over and over again and when you talk to these men they have little belief that there is help or hope for them to break out of this cycle,” he wrote.
Booker also used the Reddit discussion to outline programs he has implemented to lower drug arrests: reentry, court reform, jobs, treatment and legal aid.
Indeed. Booker almost sounds like a libertarian in his criticisms of the War on Drugs. Now if only he’d make real news by coming out in support of marijuana legalization…
Image via Gawker
As recently reported, New Jersey’s Governor Chris Christie did what so many politicians are still unwilling to do: He called the War on Drugs a failure. In a speech at the Brookings Institution, Christie claimed that despite the benevolent intentions behind forty plus years of the drug war, the policy is ultimately a disaster: “We’re warehousing addicted people every day in state prisons in New Jersey, giving them no treatment,” Christie said during his speech. To belabor the point, the governor pointed out that the cost to New Jersey taxpayers for housing each prisoner is $49,000 a year. Though while Christie displays a willingness to break with Republican orthodoxy and strike out an independent position on drug policy, his proposed solution actually opens a new front in the War on Drugs.
Christie’s remarks came on the heels of the New Jersey Senate’s passage of S881, legislation that sets up a program requiring one year of mandatory drug treatment for first-time, non-violent drug offenders instead of jail. This law is essentially a companion piece of legislation to the drug courts that already operate in New Jersey– which Christie supports. The governor couched his approval of compulsory drug treatment in both moral and fiscal terms, saying that “[e]very life is precious and every one of God’s creatures can be redeemed, but they won’t if we ignore them.” He also pointed out that a full-year of inpatient treatment runs about half the cost of imprisonment for a year. However, drug courts and drug treatment programs that rely on the criminal justice system are exactly the kind of well-intentioned programs that Christie acknowledges have failed.
While the idea behind drug courts sounds good in theory, law enforcement-managed medical treatment via programs like these offers up a whole host of perverse incentives and unintended consequences. The bill just passed by New Jersey’s Senate calls for mandatory treatment for all first-time, non-violent drug offenders. This legislation presupposes that all first-time, non-violent drug offenders are in need of drug treatment– which is most certainly not the case.
Not all recreational drug users are raging addicts, and some are very high-functioning. If Olympic Gold Medalist Michael Phelps had been arrested for marijuana possession, would he have needed medical treatment for an addiction? By mandating all first-time, non-violent drug offenders go to treatment for a year, treatment beds (which can be a scarce commodity for addicts) will be taken up by those who aren’t truly in need of a drug treatment and recovery program.
As Marquette Law Professor Michael M. O’Hear explains, the underlying problem behind this approach is combining the criminal justice system with drug treatment services. This turns law enforcement and police into the official gatekeepers for access to drug treatment. And someone legitimately in need of treatment for drug addiction shouldn’t have to wait to be arrested before receiving the help they need.
When police are made aware of drug courts and new criminal justice-based treatment programs, it is quite likely that arrests for drug offenses will increase. Criminologists call this phenomenon net-widening effects. Essentially, police are now under the impression that arresting drug offenders and placing them into the criminal justice system will net a positive yield of some sort. These treatment programs are seen as new resources for handling drug cases, rather than as diversions, so police wind up arresting individuals that they normally would not. This can be seen from the experience of Denver, Colorado. The first year after instituting a drug court, drug filings in Denver increased almost 50 percent from the year before, when no drug court existed.
Moreover, once in the system, criminal justice-based drug treatment programs have high failure rates, so offenders can always be re-routed to prison for failing to complete the treatment program. Some offenders who fail drug treatment programs and wind up in prison end up serving longer sentences than if they would have simply been prosecuted conventionally. And the New Jersey law, which creates a blanket mandate for treatment for all first-time, non-violent drug offenders will undoubtedly send many casual users and unwilling participants into the yearlong treatment program, where failure for many of these individuals is almost a foregone conclusion.
I certainly applaud Gov. Christie’s willingness to acknowledge what the vast majority of the public already knows, though politicians won’t admit– that the drug war is a major public policy disaster. However, continued reliance on drug courts and newly created criminal justice-based medical treatment (exactly the well-intentioned programs that the governor admits do not work) will not solve the problem that Christie seeks to address. In fact, it is entirely possible that these policies will have the opposite effect.
By bringing more drug offenders into the criminal justice system than normal, not all those arrested will be non-violent, first-time offenders and qualify for the treatment program– likely leading to greater levels of incarceration for drug offenders. Couple the high-failure rates of drug courts and mandatory treatment with the likelihood that many who qualify for this new program in New Jersey are likely to be recreational users and reluctant partakers in drug treatment, and the savings in costs to the New Jersey taxpayer that Christie has in mind when supporting this program may never be realized– all while more low-level, non-violent drug users are continually locked up in cages as prisoners in the War on Drugs.
If Gov. Christie truly believes in the failure of the drug war and wishes to seriously move away from the status quo, he should reconsider his position on the decriminalization of marijuana, a policy he has pledged to veto if it gets to his desk. Christie must also rethink his support for New Jersey’s medical marijuana law, which he only signed because of its extremely strict and narrow scope. That law must be loosened up to allow more patients access to medical cannabis than just those suffering from terminal cancer and other such debilitating medical conditions, as well as more dispensaries to make safe access to medical marijuana easier for those in need. Gov. Christie should also sign legislation that recently passed the state senate, making New Jersey’s pilot needle-exchange program permanent and open to any town that wishes to participate.
These are the kinds of reforms that will start moving us away from the War on Drugs and the ineffective criminal justice approach that has dominated drug policy for so long. The drug policy reform football is hanging in the air, waiting for someone to catch and run with it. As a pro-life Republican and former prosecutor, Christie is in a unique position to bring the moral cover required to make actual, serious, and lasting changes to drug policy. But actions speak louder than words, and for now, Gov. Christie is mostly bark and very little bite.
Image via New York Daily News
Below is a Students for Sensible Drug Policy video that I helped make of my current boss, Eric Sterling, confronting Rep. Frank Wolf, the leading vocal member of Congress in supporting DEA raids on medical marijuana dispensaries and patients. Enjoy!
Last Thursday the Supreme Court handed down its opinion in the crack pipeline case of Dorsey v. United States. The issue presented was whether the Fair Sentencing Act’s (the “FSA”) new, lower mandatory minimums apply to defendants whose crack offenses were committed prior to the passing of the FSA, but sentenced after the law passed. In a victory for criminal justice and sentencing reform, the Court sided 5-4 with the defendants, overturning the Seventh Circuit Court of Appeals and holding that the FSA does in fact apply to such defendants sentenced post-FSA for pre-FSA crimes. Writing the majority opinion for the Court was Justice Breyer, joined by Sotomayor, Kagan, Ginsburg, and Kennedy; while Scalia, Roberts, Alito, and Thomas dissented.
Even though President Nixon launched the War on Drugs in the early 1970s, it wasn’t until the 1980s when the destructive tough-on-crime legislation started making its way through Congress – most notably the Anti-Drug Abuse Act of 1986 (the “ADAA”) which created the draconian mandatory minimum sentences for crack and powder cocaine offenses. The ADAA established five and ten-year mandatory minimum sentences for simple crack possession, as well as the distribution of crack and cocaine – with the sentence based solely on the amount of drugs a defendant possessed. Five grams of crack and 500 hundred grams of cocaine triggered the five year mandatory minimum, while 50 grams of crack and five kilograms of cocaine triggered the ten-year mandatory sentence – a 100:1 sentencing disparity for crack-versus-powder offenses.
Despite the fact that Congress intended the ADAA’s penalties to apply to high-level drug traffickers and the aggravated leaders of drug enterprises, research shows that the threshold required to trigger the crack sentences were far too low to accomplish Congress’ objective. Thus, the vast majority of offenders sentenced under the ADAA’s punitive crack sentences were low-level street dealers. A US Sentencing Commission report details that in 2011 alone, over 74% of all crack defendants faced a mandatory minimum charge, yet only 5.4% of them were considered to be aggravated leaders of a drug enterprise. And by passing a law with mandatory, fixed prison terms, judges are handcuffed and unable to make discretionary determinations as to a defendant’s role or responsibility in a drug business.
Not only were low-level and non-violent offenders grossly subjected to the ADAA’s mandatory minimum sentences, the 100:1 crack-versus-powder disparity disproportionately affected black Americans as well. Despite the fact that blacks make up no more than one-third of all crack users, “79% of federal crack cocaine defendants in 2010 were” black. This leads blacks to serve longer prison sentences for drug offenses when compared to whites that commit similar drug crimes.
Enacted into law on August 3, 2010 to ameliorate these problems, the FSA eliminated the mandatory sentence for the simple possession of crack and increased the trigger amount for the five and ten-year mandatory sentences for crack distribution, from five and 50 grams, to 28 and 280 grams respectively – thereby dropping the disparity down to a far less severe 18:1.
In the aftermath of the FSA’s passing into law and the US Sentencing Commission’s adoption of amendments to the federal sentencing guidelines in conformity therewith, federal court judges were uncertain as to whether the FSA’s more lenient mandatory minimum sentences applied to those defendants who were sentenced post-FSA, for pre-FSA crack offenses. A split amongst the Federal Circuit Court of Appeals necessitated the Supreme Court hearing the case of Dorsey v. US in order to resolve the circuit split. The case involved defendants who committed offenses prior to the FSA, but were sentenced under the mandatory minimum provisions of the ADAA rather than the FSA, even though their sentencing occurred after the FSA’s enactment into law.
In the opinion, the Court says that for the FSA to apply to those crack offenders sentenced post-FSA for pre-FSA crimes, it was necessary to conclude that Congress clearly intended for the lesser penalties to be applied in such situations. In determining that Congress so intended, the Court stated:
“We rest our conclusion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not enacted the Fair Sentencing Act at all.”
The Court envisions a scenario in which two individuals who committed the same crack offense and sentenced at the same time would receive radically different sentences based solely on whether their crimes were committed pre-FSA or not. For instance, a pre-FSA offender charged with five grams of crack and sentenced under the ADAA would be subject to a five-year mandatory minimum sentence, while a post-FSA offense for the same quantity of drugs would be subject to a sentencing guideline range of only 21-27 months and not a mandatory minimum sentence. In addition, a 50-gram pre-FSA offender sentenced under the ADAA would receive a ten-year mandatory minimum, but a post-FSA offender would be subject to a guideline range of less than six years. The prospect of these continued disparities for similarly situated defendants led the court, in the end, to hold “that Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act’s ‘plain import’ or ‘fair implication’.”
The Court’s ruling is undoubtedly a victory for defendants who committed pre-FSA crimes both currently waiting to be sentenced and those already sentenced to the ADAA’s mandatory minimums post-FSA. However, this decision and the FSA are still only modest reforms. Unfortunately, the prospect for greater changes in sentencing laws continues to be an uphill fight. The FSA represents the first time in the past 40 years in which Congress invalidated a mandatory minimum sentencing law, and the first time in the past 16 years that Congress voted for any sort of sentencing reduction whatsoever. And while justice demands that even the reduced crack-versus-powder sentencing disparity must be eliminated altogether, the retention of at least some level of disparity was imperative to the FSA’s passing. Moreover, related legislation in the form of the Fair Sentencing Clarification Act, that “would apply the new quantity triggers for the crack cocaine mandatory minimums for all conduct prior to the August 2010 enactment of the Fair Sentencing Act, regardless of the defendant’s sentencing date,” proposed by Rep. Ron Paul (R-TX) during this past congressional session sadly died in the House.
Despite the rough terrain and the unlikely scenario of drug legalization in the near future, continuing to push for sentencing law reform arguably remains the most effective and practical way to combat the insidious excesses of the War on Drugs – as the massive increase in our prison population over the last 30 years is – aside from drug prohibition itself – largely due to our sentencing policies.
*Full Disclosure: I currently work as a research fellow at the Criminal Justice Policy Foundation, who, along with a group of coalition partners pushed for the Fair Sentencing Act. Part of my job also includes working on a sentencing reform working group with various organizations, most of whom signed onto an amicus brief on behalf of the defendants in Dorsey v. US.
Image via Christian Science Monitor