Tidbits on Drug Policy

Another two cents thrown in

Will legalization result in rise in use?

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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).

Joe Biden’s War – Read About It

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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.”

The Legitimacy of Drug Laws

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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?

Immigration and Drug Law: A Dangerous Intersection

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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.

On Addiction

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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.

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