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.

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

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

Two weeks after I wrote about studies demonstrating marijuana’s potential in treating cancer, the following article pops up on FoxNews.com:

A compound found in cannabis may stop breast cancer from spreading throughout the body, according to a new study by scientists at California Pacific Medical Center Research Institute. The researchers are hopeful that the compound called CBD, which is found in cannabis sativa, could be a non-toxic alternative to chemotherapy.

Source: Marijuana Compound May Stop Breast Cancer From Spreading, Study Says

Let me remind you, that marijuana remains a CSA Schedule I drug, which means, according to the Act that:

The drug or other substance has no currently accepted medical use in treatment in the United States. (Italics added)

That’s despite dozens of studies like the one above and that almost half of the nation’s oncologists recommend their patients obtain marijuana, despite its illegality, in order to alleviate their suffering. I mean, if that’s not currently accepted medical use, I don’t know what is. (By the way, speaking from a purely legal standpoint, this practice of recommending marijuana would fall under the Respectable Minority doctrine used in some states to refute malpractice claims! Or, if put otherwise, this would constitute a legitimate medical practice.) And yet – drug warriors continue to avoid finding medical utility of marijuana, despite pretty much overwhelming evidence to the contrary. One example of how they manage to do so comes from a decision in United States v. Oakland Cannabis Buyers Coop. (2001), where Justice Thomas writes:

In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, […] the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has “no currently accepted medical use” at all. (Italics added)

Imagine Congress passing legislation that puts aspirin into Schedule I. Now, if this classification is challenged in the Supreme Court, the Court may do the sensible thing, analyze the evidence and address the issue on its merits – namely, should aspirin really remain in Schedule I – or, it could duck the issue by saying that “for purposes of the CSA, aspirin has no currently accepted medical use.”

So, what Justice Thomas was basically saying in that opinion is that “marijuana has no accepted medical use because the legislature says it has no accepted medical use.” He may have been staying within the currently accepted boundaries of judicial review; however, Thomas’ formalism steers far from common sense. No sane person would in all earnest claim that the Earth is flat simply because the legislature made such a determination.

Legal Formalism is a doctrine that reflects the wishful thinking of many legal theorists that judges should apply law in a sort of mathematical fashion without any regard to “real-life” normative or policy issues. (I think, in this country, Langdell was the originator of the formalistic school of thought in jurisprudence.)

Anyway. Under the doctrine, the judges should not concern themselves with whether the law is good or bad, just or biased, sound or nonsensical – all those issues are for the legislatures to decide. The idea is that a law should yield an unequivocal decision regardless of the substantive nature of the underlying fact pattern. There are many proponents of this doctrine, as well as many opponents (I, personally, happen to belong to the opposing camp) – but this post is really not about the merits of legal formalism, but rather about Supreme Court Justices hiding behind it, whenever they chicken out of truly addressing the issue before them on its merits.

For example, in Gonzales v. Raich (2005), observe Justice Stevens resorting to legal formalism in ruling upon an issue that is clearly about the right of gravely ill persons to, legally (under the state law) receive their medicinal marijuana without harassment by federal agencies:

“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”

Hey, it’s just about the blind application of the Congress’ power to regulate interstate commerce, right? As a legal formalist would put it, clearly the Controlled Substances Act legitimately has that power – and that’s all that matters – how that power is applied is beyond the scope of the judiciary. Notice how under Justice Stevens’ approach, the “case is made difficult by respondents’ strong arguments” – meaning, how strong real-life arguments of real-life respondents interfere with his structurally sound, aseptic interpretation of the issues. Well, lets consult the dissenting opinion by Justice Thomas:

“On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market — intrastate or interstate, noncommercial or commercial — for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.”

Hmmm… Now we have two eminent legal minds, one ruling that the CSA is within the commerce clause’ power to regulate interstate commerce; another saying that it isn’t. Under the perfect conditions envisioned by the formalistic doctrine, it isn’t supposed to happen. Seems like either the Controlled Substances Act is deficient, the Justices understanding of the formalistic approach is lacking or Legal Formalism itself is faulty. It could be all three are correct. It doesn’t really matter – after all, hiding behind a questionable doctrine to duck important issues is a dubious tactic all in itself.

The government may sincerely be trying to protect us from the harms of drug use. This is something that is known as legal paternalism. Legal paternalism is a belief that “[I]t is always a good reason in support of a prohibition that it is necessary to prevent harm (physical, psychological, or economic) to the actor himself.” (Joel Feinberg) The State sees itself as a concerned parent vis-a-vis its citizens. It views its citizens not as responsible adults, the subjects who possess independent free will, but merely as children, objects in the State’s care, which need to be protected from harm, especially from harm that they may inflict upon themselves. Concerned with the alleged harms of drug use (it doesn’t matter whether they are real or merely perceived), the State feels justified in punishing its children for conduct that it feels is more harmful than the punishment.

Consistent with the parenting role, is the notion of legal perfectionism, the idea that laws should play a role in positively shaping citizens for their individual benefit. The current militantly prohibitionist legal system may not be very effective in reducing drug use and trafficking; however, its role in cultivating “healthy” attitudes towards drug use amongst the constituency makes it ultimately justified.

Legal paternalism is a very prominent aspect of our legal framework. And, it seems that most citizens don’t mind. They want to feel protected, even from themselves, if need be. If Big Papa sometimes misguidedly causes more damage by punishing its children than can result from harm he protects them against – well, no system is perfect, right?

Is it still? This issue can definitely be debated. But, as I showed in the previous two posts, whenever a Supreme Court Justice comes out against blind judicial pandering to drug warriors, it usually happens in a dissenting opinion. And – vice-versa, a quote by a Supreme Court Justice expressing the evils of illicit drugs usually appears in a majority opinion. Well, here’s a quote (albeit, somewhat dated) from nothing less than a Supreme Court itself answering the question asked in the post title:

“In the years since Ross was decided [from 1982 to 1991], the Court has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure.

In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. […] No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.”

California v. Acevedo (1991) (Justice Stevens, dissenting)

Well, at least we can be pretty certain what the answer is for the years from 1982 to 1991. Of course, the admission by Justice Stevens obviously also appears in a dissenting opinion…

As promised in the previous post, here are the examples of Justices’ opinions where they adopt the prevalent social attitudes:

“The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs.”

City of Indianapolis v. Edmond (2000) (Opinion by Justice O’Connor)

and,

“The difficulty of assessing gravity is demonstrated in the very context of the present case: Petitioner acknowledges that a mandatory life sentence might not be “grossly excessive” for possession of cocaine with intent to distribute, see Hutto v. Davis, 454 U.S. 370 (1982). But surely whether it is a “grave” offense merely to possess a significant quantity of drugs — thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute — depends entirely upon how odious and socially threatening one believes drug use to be. Would it be “grossly excessive” to provide life imprisonment for “mere possession” of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as “grave” as the possible dissemination of heavy weapons. Who are we to say no? The Members of the Michigan Legislature, and not we, know the situation on the streets of Detroit.”

Harmelin v. Michigan (1991) (Opinion by Justice Scalia)

and,

“It is not “absurd” that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity.”

Dep’t of Housing v. Rucker (2002) (Opinion by Justice Rehnquist)

and,

“The Customs Service is our Nation’s first line of defense against one of the greatest problems affecting the health and welfare of our population.
[…]
Petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today.”

National Treasury Employees Union v. Von Raab (1989) (Opinion by Justice Kennedy)

and,

“The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all.”

Skinner v. Railway Labor Executives Association (1989) (Justice Marshall, dissenting)

Now, most of these come from the majority opinions, meaning that even without looking at the opinions themselves, one could posit that the Court usually sides with the government drug warriors. Is it actually true? Another quote from the Supreme Court itself seems to confirm our timid assumptions. I will save the quote for the next post, though.

The following are the quotes from the Supreme Court, where Justices actually recognize how the “drug menace” hysteria can influence even the decisions of the nation’s top court:

The unusual action the Court takes today illustrates how far the Court may depart from its principal mission when it becomes transfixed by the specter of a drug courier escaping the punishment that is his due.

Florida v. Rodriguez (1984) (Justice Stevens, dissenting)

and,

Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality.

Florida v. Bostick (1991) (Justice Marshall, dissenting)

and,

“…[N]othing about the characteristics shown by airport traveler Sokolow reasonably suggests that criminal activity is afoot. The majority’s hasty conclusion to the contrary serves only to indicate its willingness, when drug crimes or antidrug policies are at issue, to give short shrift to constitutional rights.”

United States v. Sokolow (1989) (Justice Marshall, dissenting)

and,

“In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.
[…]
I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”

National Treasury Employees Union v. Von Raab (1989) (Justice Scalia, dissenting)

and,

“A majority of this Court, swept away by society’s obsession with stopping the scourge of illegal drugs, today succumbs to the popular pressures [of its immediate interests that appeal to feelings and distort the judgment].”

Skinner v. Railway Labor Executives Association (1989) (Justice Marshall, dissenting)

Notice, how all of these blurbs that warn the Court not to become a “loyal foot-soldier” in the War on Drugs appear in the dissenting opinions. In the next post, I will present a small compilation of quotes that are in sync with the prevalent social attitudes of the day.