Some people say that if we legalize “drugs” in this country, everybody’s going to get high all the time. They might even point to Netherlands and tell you how the rates of marijuana users spiked after weed there was decriminalized. Well, that’s true – nobody really knows what would happen if marijuana or other drugs ever become available legally. But – we can try and project.

First of all, lets look at Netherlands: if there is any place that can provide at least a vague idea what might happen after an illicit drug starts being sold in coffeeshops – Netherlands (so far) would be it. It is true: after marijuana was decriminalized, the number of people using it went up. But – here’s an interesting detail: weed in Holland was decriminalized in 1976… and the rise in use didn’t occur until 1984. So what happened in the early 1980s? Coffeeshops were allowed to proliferate and advertise. Here’s what MacCoun and Reuter have to say about it:

We hypothesize that the dramatic mid-1980s escalation in Dutch cannabis use is the consequence of the gradual progression from a passive depenalization regime to the broader de facto legalization, which allowed for greater access and increasing levels of promotion, at least until 1995 when the policy was revised. In short, it reflects a shift from a depenalization era to a commercialization era.

Source: MacCoun, Robert J., Reuter, Peter, Drug War Heresies, Cambridge University Press, 2001, p. 259

In the 1990s though, the Dutch passed a series of regulations restricting advertisement of marijuana – and the number of marijuana users leveled out (and currently remains much lower, percentage-wise, than in the United States).

So – it seems like it’s not necessarily the availability of something that sells it, it’s the advertising! Well, any advertising executive could have told us that, right? And, governments seem to recognize it as well – just look at all the restrictions of advertising cigarettes and alcohol. Make a drug available to responsible adults, just don’t allow ads, which would convince and encourage people to buy it.

P.S. Would the First Amendment allow such restrictive measures against speech, albeit commercial one? While there does exist a doctrine of “commercial speech”, I truly think it’s irrelevant for our purposes. I believe the existing patchwork of regulations and voluntary industry action that restrict advertising for alcohol and tobacco should work fine for other prospective legal recreational drugs. However, even commercial speech doctrine as it now stands would probably allow severe restrictions on recreational drug advertising. For a brief treatment of the doctrine by the Supreme Court, see generally Valentine v. Chrestensen, 316 U.S. 52 (1942), Central Hudson Gas & Electric Co. v. Public Service Comm’n, 447 U.S. 557 (1980), Board of Trustees v. Fox, 492 U.S. 469 (1989), 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).

I just have to recommend this wonderful primer on “our nation’s jihad against drugs.” Please read all six parts – whenever you get a free minute:

Joe Biden’s War

If you want links broken down by parts, here they are:

1. Introduction
2. South America
3. Mexico
4. Afghanistan
5. Chicago
6. Civil Liberties

Here’s an excerpt:

“…we’ve seen a slow progression towards what many of us see in various police states around the world – armed forces charging into homes, the lack of a functioning system for trying people properly, and a massive prison population that now surpasses any other on the planet by far. […]

Like many who’ve had political awakenings during the Bush years, though, I’ve become drawn to the deteriorating situations that we now face as a nation – with our foreign relations, our economy, and the growing divide in America between the haves and the have-nots. I come away from this exploration with a strong belief that the way we treat drugs in our society is a central flaw in many of these failings. […] I certainly can’t say that the drug war is the only factor in these problems, but I’m struck by how it’s not just a major one, but one that we remain totally incapable of discussing openly and honestly. […]

The Constitution itself doesn’t completely settle the debate between a criminal justice approach to drug addiction or a harm reduction approach. Science, past results, and simple common sense does. But the fact that our criminal justice system has so thoroughly eroded our Constitutional rights, and the fact that the people who’ve established this drug war dogma have had to resort to squelching free speech in order to maintain it, should be an awfully strong clue about the damage it’s doing.”

So, here’s an interesting dilemma:

Nearly 90% of 45-year-olds in the United States have tried an illegal drug in their lifetime. Source: Johnston LD, O’Malley PM, Bachman JG, et al. “Monitoring the Future National Survey Results on Drug Use, 1975-2006. Vol II.” NIDA. 2007. 98. Under the current legal framework, all of those people are criminals.

Hmmm. When a law criminalizes such a large chunk of population, that means either something is wrong with that law or with the society.

Lets suppose our law is perfectly alright. Then, something has to be fundamentally wrong about the society in question. Well, whatever one says about our society, it is definitely one of the more viable ones – if it wasn’t, we simply wouldn’t have been around for this long.

Now, if there is a law that criminalizes some aspect of prevalent social behavior in a rather “normal” society, chances are the law is illegitimate. It simply doesn’t reflect the current social outlook on the behavior it seeks to criminalize. Take laws against jaywalking, for example – perfectly alright for Germany, where people seem to wait for green light even if no car is around, but completely ill-fitted for New York City. Such a law, in a society that is unprepared to obey it, would be either completely ineffective or completely oppressive.

Okay, – you would say, – but what about laws that are enacted with an idea of instilling better habits amongst the populace? Like, smoking bans, for example? Yeah, the society might not like it in the beginning, but – they will come around eventually and be better for it.

Fine! – I would say, – but who the hell are YOU to tell ME what behaviors I should be engaging in? Sorry, legal moralism and paternalism are not for me. Even if you prohibit me to do something with the utmost regard for my well-being, you are still prohibiting a sane adult to exercise his own free will. Now, if you are actually prohibiting something that a majority of the population engages in, we have a problem, since we all generally accept that a majority’s choice, regardless of its merits, rules. Ergo, laws that criminalize illegal drug consumption, are likely illegitimate.

And, here’s where we come to the dilemma.

Despite the fact that most people in the U.S. have tried an illicit drug in their lifetimes, most people in the U.S. are against repealing laws that criminalize illegal drug possession and consumption. Now, here’s a long-awaited people’s mandate! People do support these laws, even though these laws make most of their supporters criminals. Seems a little schizophrenic, doesn’t it?

Lets look at the source of the support: people seem to be generally against “drugs”. You and I might know that there is a world of difference between LSD, cocaine or heroin, but most people bundle them into one ominous category. That is the result of decades of government-sponsored effort to discourage truthful information about illicit drugs from reaching the public. Source:
Safe and Drug Free Schools and Communities Act. U.S. Code, Title 20, Ch. 70, Subch. IV, Pt A, Subpt 4, § 7162. Hence, a gap between what people do and what people think. I would posit, that if people had access to truthful information, their position on drugs would change somewhat, or at least become more nuanced.

Democracy works only when the constituents are sufficiently informed to be able to make qualified decisions. Fear of illicit drugs makes for absurd laws prohibiting dissemination of truthful information, which, in turn, breed more fear of illicit drugs. Do you really think that people would support laws that could have thrown most of them in jail?

This article was originally written for and posted on StoptheDrugWar.org

If one had to identify two areas of jurisprudence where Constitution often doesn’t seem to apply, the first one would probably be anything related to controlled substances. And, the second? Immigration Law.

For example, children who are brought here by their parents, illegally, across the border, cannot adjust their status to that of a legal one, even if they finished school and college here, are married to U.S. citizens and have U.S. citizen children. Same goes for persons who might have committed a crime in the past, if the government believes they committed an aggravated felony – and, for the purposes of immigration law, even some misdemeanors can be considered aggravated felonies. Illegal immigrants who get detained by Immigration and Customs Enforcement are often moved across the country to various detention facilities (New York detainees are often moved to Texas, for example), which makes their defense and the proper adjudication of their cases very difficult. Many of those facilities are no better than jails; in fact, some of them are jails, rented by the federal government from the States. The procedural due process for immigration detainees gets written entirely by the federal authorities; the Courts accept that immigrants’ rights are severely limited compared to those of U.S. citizens.

Predictably, when these two areas overlap, the results are often shockingly egregious. Roughly put, pretty much every drug offense is sufficient to permanently bar getting a green card or obtaining U.S. citizenship. (I have to mention, though, that there is a narrow exception to the rule: if it’s just an offense of simple possession of 30 grams or less of marijuana, one could ask the government to make an exception and let him or her off the hook.)

Below, I try to summarize the current immigration law, as it pertains to people with drug convictions:

• Any controlled substance conviction is a ground for deportation. (That also applies to green card holders. Many people don’t realize that green card holders can, and often are, easily deported for many crimes, which, under state law, often carry no jail time whatsoever.)
• A conviction or an admitted commission of a controlled substance offense would pretty much bar a person from obtaining a green card, ever. Same goes for when the government has reason to believe an individual is a drug trafficker. In that case, a conviction isn’t even necessary.
• A conviction or an admission of a controlled substance offense makes a person ineligible for citizenship for 5 years.
• Now, if it’s an aggravated felony conviction, then a person is permanently ineligible for citizenship. Since, (remember?) the list of offenses that the government considers aggravated felonies is very expansive, most drug offenses would fall under the category. An example would be any sale or an intent to sale offense or simple possession of more than 5 grams of crack. So, many people who had ever committed a drug offense in the past are permanently unable to obtain U.S. citizenship, no matter how long they had been living here.
• As I mentioned above, these people, in addition to being unable to obtain their citizenship, would also face deportation – and, if the government considers their offense to be an aggravated felony, they could also face prison time, would never be able to enter the U.S. again and would have to remain in detention for the duration of their deportation proceedings, which often takes many months.
• Furthermore, an aggravated felony would make a person ineligible for asylum; if the offense involves drug trafficking, that person would not be able to ask for relief even if there is a good chance that he or she would be killed or tortured in his home country, once deported.

So, if you are not a U.S. citizen and have been arrested for a controlled substance offense, please remember to consult an immigration lawyer in addition to the criminal defender. Our plea bargaining system often allows an easy way out by pleading to a lesser charge, something that often doesn’t carry any prison time – that tactic won’t work for those who are not U.S. citizens. I have been practicing immigration law for a while and I see many people who come to us (or call us from detention) looking for help, only to find that there is not much that can be done for them under the current legal framework. One should take great pains not to end up at the intersection of the Drug War and our clunky immigration system.

In our mainstream cultural framework, illicit “drug use” and “drug addiction” have become practically synonymous. Addictiveness is viewed as an inherent property of an illicit drug, similar to such internal properties as its texture or taste. Placing of addiction with a drug rather than with a user of a drug is one of the rhetorical fallacies that both sides in the drug policy discussion often commit. Of course, if nobody would be ingesting a drug in question, there would be no addictive property to speak of.

To look at addiction (and, subsequently at drug use) from a rather different angle, let us first consider what addiction actually means. “Addiction” as a term was first introduced in the beginning of the century in reference to opium use. It has subsequently evolved to mean dependence, a state in which a body/individual needs the drug for “normal” functioning. Addiction can be physical or psychological, although there exists a lively debate about the definitions of various types of addiction and even about what constitutes addiction itself. To illustrate, consider the following hypothetical:

After a hard day’s work, Mr. Smith likes to have a glass of scotch. This has become somewhat of a tradition – hardly a day goes by when Mr. Smith doesn’t have his usual drink. The alcohol amount is hardly sufficient to inebriate Mr. Smith, but a drink is a welcome soothing cap to a hectic day. One day, Mr. Smith run out of scotch and went to bed without his usual drink. His mood soured, he had trouble falling asleep and developed a headache.

Is Mr. Smith addicted? If yes, is his addiction physical or psychological? What if, instead of alcohol, Mr. Smith had a habit of listening to classical music for half-an-hour before going to bed, to calm his nerves? He could have easily developed the same symptoms (sour mood, insomnia, headache) if deprived of this little treat. Does it mean that Mr. Smith is addicted to classical music?

Some maintain that addiction is simply a medical term for a habit. I would venture to say that if most of us are suddenly deprived of our long-standing habits, we would exhibit certain signs of distress. So, can we actually claim that regular drug use is simply a drug habit? Mr. Smith likes to listen to classical music before going to bed and Mr. Jones prefers to roll himself a small marijuana joint. Did we simply create a new disease out of behavioral condition?

Whether addiction is actually a disease or simply a very hard to kick habit is irrelevant – after all, even most mundane undesired behavior can be looked at as a disease and thus, medically treated. What I wanted to demonstrate by discussing it is that addiction as something inherent to an individual, just like a preference, habit or a predilection, and not primarily a quality of a drug. Some people may like scotch, others – marijuana, yet others prefer to smoke opium. Some people may like scotch so much that they become alcoholics; others can go through life drinking a couple of glasses of wine per day and never have any problems arising out of their alcohol consumption. Or, consider a “harder” drug: contrary to the popular belief, there is a large number of recreational users of heroin, known as “chippers”, who regularly use the drug, but seem not to run into problems normally associated with heroin use. Does it mean that those people are addicted? Of course, there are plenty of others who get habituated with heroin (or, more conventionally, addicted to heroin) to a detrimental extent. So, it seems that some people are addicted to some drugs more than others. Well, some people like classical music (or wine, or scotch) more than others.

Addiction is primarily a function of a user, not substance. Before drug use reaches the level of addiction (if ever), it is merely a drug habit. Just like with any habit, there are some people who may prefer a drug more than others. Speaking of addiction as a demon inside a particular substance that is sure to destroy anybody who ingests it smacks of medieval ideas of persons possessed by devil.

Scott Morgan, in his post on StopTheDrugWar.org, writes:

I learned of a marvelous ancient document which sets forth in basic terms the fundamental strategies that have long been employed to destroy the drug war debate. “Themes in Chemical Prohibition” by William L. White was published in 1979 by the National Institute on Drug Abuse. A review of chemical prohibitionist literature reveals eight themes which appear to emerge from the tactics of most such movements.

Here they are:

THE PROHIBITIONIST THEMES

1. The drug is associated with a hated subgroup of the society or a foreign enemy.

2. The drug is identified as solely responsible for many problems in the culture, i.e., crime, violence, and insanity.

3. The survival of the culture is pictured as being dependent on the prohibition of the drug.

4. The concept of “controlled” usage is destroyed and replaced by a “domino theory” of chemical progression.

5. The drug is associated with the corruption of young children, particularly their sexual corruption.

6. Both the user and supplier of the drug are defined as fiends, always in search of new victims; usage of the drug is considered “contagious.”

7. Policy options are presented as total prohibition or total access.

8. Anyone questioning any of the above assumptions is bitterly attacked and characterized as part of the problem that needs to be eliminated.

These themes are great focal points for addressing the arguments usually put forth by the advocates of the prohibition. In subsequent posts, I hope to discuss each one of them. Stay tuned.

In Morse v. Frederick (2007), a.k.a. the “BONG HiTS 4 JESUS” case, Justice Stevens, in his dissent, delivered the most remarkable quote, that, a few years ago, would have been virtually impossible to hear from someone that high up in the Establishment:

Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting — however inarticulately — that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

Lets see whether we see this kind of talk make its way into the Court’s majority opinions.

The most noteworthy development of 2007, as far as drug policy goes, is the substantive approach to the issues of (some of) the Supreme Court Justices in their opinions. In Kimbrough v. United States (2007), Justice Ginsburg continued to ponder the old issue of the degree of applicability of the Sentencing Commission’s guidelines to courts’ sentencing procedures; however, she was also willing to talk about the actual reasons behind the sentencing revisions:

Although the [Sentencing] Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. In a series of reports, the Commission identified three problems with the crack/powder disparity.

First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.”, see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstates” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence . . . than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96.

Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. […]

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

Previously, the Justices largely avoided discussing the “real-word” ramifications of the legislative approaches to tackling drug use and trafficking. It seems like some of them are actually willing to address the actual issues in drug policy. It comes as a welcome break from the usual formalistic approach that tended to characterize some of the Court’s previous decisions involving drugs.

Originally written on March 26, 2008

Most of the time, the subject matter of this blog is marijuana and/or narcotics, or, in other words, opiates. That is pretty much consistent with the two primary threads that the drug policy debate predominantly adheres to. However, in this post, I would like to digress a bit towards the hallucinogens.

The primary reasons why hallucinogens don’t get as much spotlight from the debaters of drug policy is simply because they are simply (1) not as popular as marijuana – less than 10% of Americans older than 12 tried LSD at least once, as opposed to almost 40% of Americans who tried weed; and, (2) as compared to opiates, the addiction potential of hallucinogens is practically non-existent.

I think hallucinogens merit some discussion simply because they pose some unique issues of their own. Despite being non-addictive and non-toxic, the psychological impact of, say, ingestion of LSD cannot be underestimated. So far, the policy approach to LSD poses more questions than answers. Should LSD use be regulated at all? If yes, then, how? Most psychologists think that LSD use can be very beneficial in a controlled environment. Furthermore, they feel that LSD can be a very effective psychotherapeutic tool.

But – if you are nodding your head after reading the above couple of sentences, think about this: after reading about taking LSD in controlled environment, one of my friends said: “Anybody, who ever tripped on LSD would tell you that that’s complete bullshit! Imagine me tripping on acid surrounded by doctors and hooked up to machines… sounds to me like *the* recipe for a ‘bad trip’!” So, wouldn’t we actually be doing more harm by providing supervised environments for acid trippers? Basically, I am writing about this to demonstrate the rudimentary level of drug policy discourse when it comes to hallucinogens – even the most benign and unquestioned notion about hallucinogen regulation can seem ridiculous upon the slightest reflection. I wonder if there is any solid body of work that tries to tackle these issues? If not, this is definitely something for drug policy addicts to think about.

Eight grams of medical marijuana seized from a Garden Grove man during a traffic stop must be returned to him, according to an appeals court ruling directing local law enforcement to uphold state, not federal law.

Source: CBS2.com: Federal Court Rules Pot To Be Returned To Driver

Read the whole story by following the link above. The story is welcome news to anybody who prefers sensible drug policy. I managed to find the text of the decision online and, after reading it, here are my two cents:

The case is a triumph of sensible approach over the formalistic one. While the decision touches upon plenty of legal doctrines, such as standing, California medical marijuana laws, and even the 10th Amendment, the most striking feature about it is the willingness of the justices to use the aforementioned doctrines to render a decision on a very simple issue:

“…we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.”

Source: THE CITY OF GARDEN GROVE v. THE SUPERIOR COURT OF ORANGE COUNTY

No legal training is required to arrive at a sensible decision in a case like this. I don’t really believe in modern-day precedent-based jurisprudence, simply because a smart lawyer is always able to either cite a precedent in support of his argument, or, if he or she happens to represent an opposing side, to distinguish it. In the present decision, the Justices cite a bunch of cases that don’t support their decision, yet easily distinguish them from the situation they are faced with. Similarly, the legal doctrines can be twisted any way one wants, and that’s exactly what the Justices do. Just consider the following example:

“…the City argues that in enacting the CSA, Congress intended to occupy the field of marijuana regulation so extensively that ordering the return of a defendant’s medical marijuana under state law would be absolutely anathema to congressional intent. We cannot agree.”

Then, Justices proceed to create a solid legal foundation underneath their opinion. However – once again – no legal training is required to spot the fallacy of the statement above. Anybody who is familiar with the history of the Drug War and Drug War jurisprudence would likely agree with me that Congress did indeed intend to occupy the field of marijuana regulation as extensively as possible.

Now, I am not saying that the opinion is legally suspect. All I am saying is that a smart lawyer can use legal doctrines to justify diametrically opposite opinions. Actually, I think that the 4th District Court of Appeal rendered an opinion that is amazingly objective in its treatment of what’s really at stake. In the words of the court itself:

“We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed.”

Anomalous is a very mild description of legally suspect regulations that have sprung up during the War on Drugs. The court above was able to prevent the creation of a yet another anomaly.

Originally written on January 7, 2008