Here is a letter to the Tennessean in response to their editorial on meth:
Tennessee’s meth problem is directly correlated to the policy of prohibition and the futility of the drug war. Outlawing substances that are in demand creates dangerous black markets controlled by criminals. Disputes are settled with guns rather than by courts, and products are not subject to safety standards and regulations that exist in a legal marketplace.
As we experienced with alcohol prohibition, the law created perverse incentives for people to concoct new, dangerous products themselves — such as poisonous bathtub gin and moonshine. Under today’s prohibition laws the phenomenon comes predominantly in the form of meth or crack. In Amsterdam, citizens have seldom even heard of meth or crack. There is no incentive to concoct hazardous homemade substances since people can simply walk into a store and purchase a product safely and legally – as we do with alcohol now.
Moreover, pushing for certain cold medications to be prescription-only doesn’t even begin to scratch the surface of the systemic problem with drug prohibition. Take Portugal, for example. In 1999 they decriminalized all drug use in response to a heroin epidemic. Over ten years later, heroin use in Portugal is down over 60% because addicts are treated like patients instead of criminals. The Portuguese government even implemented a clean needle-exchange program for their addicts.
It’s well past time to admit that the drug war is destructive and an absolute failure. Legalizing drugs, like any other consumer good, will eliminate the perverse incentives that brought us meth in the first place.
UPDATE: An edited version of the above was published by The Tennessean: Legalization of drugs would reduce black markets.
This paragraph was written at The Washington Post:
Drug policy has improved during the Obama years. The president and his key drug policy advisers have largely abandoned the harsh war-on-drugs rhetoric of previous administrations. The number of incarcerated drug offenders has declined for the first time in decades. On the demand side, health reform will greatly expand access to substance abuse treatment. Drug markets are less violent than they used to be, too, which creates greater political space for less punitive policies.
Where to begin. It started out so promising, with the piece showing the evidence of the disaster that is drug prohibition, yet, despite this, there is no mention of the policy of legalization, largely because the author is a classic Kleiman/Sabet third-wayer technocrat on drug policy, who opposes drug legalization.
Um, abandoned the war on drugs rhetoric? Ah, this one again. Classic prohibitionist trope. Apparently if you do not say war on drugs, then it must not exist, right? Yet Obama has ramped up the drug war even more so, raiding more medical marijuana dispensaries, then his predecessor. I just do not understand how that can be an argument in favor of how drug policy is better now. Like almost everything Obama does, it is all words, and his drug policy actions seriously betray his words. In fact, his drug policy actions betray words he stated before he was even in the Senate when he said he supported decriminalizing marijuana.
This argument is so fundamentally bankrupt, it basically boils down to, “sure Obama’s administration is waging a war on drugs, at least equal to his predecessors, but, hey, they do not say war on drugs and Obama Is A Good Benevolent Person, so therefore everything is okay.” Moreover, just like Sabet does all the time, Pollack and his ilk love to pretend that only incarceration matters. They routinely shout about how low-level drug users do not go to prison. Regardless, you do not have to be convicted of a drug crime and sent to prison for a drug arrest to ruin your life. A simple drug arrest is sufficient to ruin someone’s life and ensure they do not have access to, inter alia, affordable housing, education, and employment. So really, that the number of incarcerated drug offenders has dropped is a disingenuous place to argue from about improvements in drug policy when, in fact, one does not need be incarcerated for a drug crime to ruin someones life, and the lives of their children, family, and community members.
I know very little about Obamacare, but touting it as a success for anything seems a little odd. Even if the health law creates more of a space for the expansion of treatment programs it is critical to note what kind of treatment programs. Are they criminal justice based forced treatment programs or purely voluntary private and public treatment programs? If the former, then there is nothing positive about the health law. Drug courts and criminal justice based mandatory treatment treats all drug users as addicts who need help when the overwhelmingly number of them do not. This kind of coercive treatment also leads to more people being arrested and processed through the system, and since nothing is done on the front end and police are the gatekeepers to criminal justice based treatment, we will have more arrests and more prisoners than we should.
Failure rates are also high, while costs for drug courts also exceed private community based treatment programs that out perform drug courts. This isn’t even to mention how these coercive programs exacerbate racial disparities in the number of blacks arrested and imprisoned. Now, lets say that Obamacare establishes more access to private and public treatment. As Portugal has shown us, removing the stigma and criminal penalties for drugs is what leads people to treatment, not expanded access. Because, if the government still considers you a criminal, why would an addict voluntarily disclose the criminal activity they engage in, especially since the possibility of arrest and prosecution looms so large under our current policy of drug prohibition. So long as criminal penalties exist, a certain segment of the drug using population who actually need treatment will stay away for fear of winding up in a cage.
Lastly, drug markets are less violent now, really? Mr. Pollack, meet Mexico, Mexico, Mr. Pollack. Since Obama took over in 2009, the murder rate in Mexico has risen from 17.7 percent per 100,000 residents to 23.7 percent per 100,000. In addition, the number of cartel-related homicides increased from 2009-2010 by 70 percent and from 2010-2011 by 11 percent. I’m sorry Mr. Pollack, but no, drug policy has not improved under Mr. Obama — status quo is more like it. And when considering everything Obama said about this topic prior to his 2008 election, it is downright criminal.
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.
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.