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Drugs, Delegation, and Isomers

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I have been very skeptical of laws that delegate the power to define crimes to administrative agencies.  The case of United States v. Kelly, No. 16-10460, decided today by the Ninth Circuit, illustrates why it is sometimes necessary to let agencies fill in some of the blanks.

Congress moves so slowly that it could not possibly keep up with the illicit chemists who design new and dangerous drugs.  Some amount of authority must necessarily be delegated.
Keith Humphreys, professor of psychiatry at Stanford, has this post at the WaPo Wonkblog:

The most rigorous study yet of the effects of marijuana legalization has identified a disturbing result: College students with access to recreational cannabis on average earn worse grades and fail classes at a higher rate.
A:  Drug overdoses.

This amazing and depressing fact is only one of those included in Deputy Attorney General Rod Rosenstein's compelling defense of DOJ's policy, in the typical case, of charging the most serious readily provable offense.  Trafficking dangerous drugs is the single most frequently prosecuted federal crime.

Rosenstein's recent statement follows the break.

I don't really need to add much, so I'll limit myself to two brief comments.  First, to me, the most straightforward justification for the policy is simply that we should expect prosecutors to charge defendants with what they actually did.  An indictment should tell the truth, neither more nor less.  Second, the extent of the drug crisis, from street pushers to pill mill doctors feeding on (and building) misery, ignorance and addiction has come to the point that the arguments to go easier on drug trafficking have morphed into self-parody.  Do not expect them to generate any less enthusiasm, however, in academia.

Is the Drug War a Failure?

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I'm opposed to the legalization of drugs.  Yes, it would increase "freedom," very broadly construed, but comes at too high a price to the well-being of the country.  I might add that, except for pot, this is the overwhelming view of my fellow citizens.

It is nonetheless often said by those supporting drug legalization that the drug war is a failure, and simply for that reason, should be abandoned.

Is that true?  Is the drug war a failure?

Pot and Auto Accidents

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Solomon Banda reports for AP:

A recent insurance study links increased car crash claims to legalized recreational marijuana.

The Highway Loss Data Institute, a leading insurance research group, said in study results released Thursday that collision claims in Colorado, Washington, and Oregon went up 2.7 percent in the years since legal recreational marijuana sales began when compared with surrounding states.

Legal recreational pot sales in Colorado began in January 2014, followed six months later in Washington, and in October 2015 in Oregon.

"We believe that the data is saying that crash risk has increased in these states and those crash risks are associated with the legalization of marijuana," said Matt Moore, senior vice president with the institute, which analyzes insurance data to observe emerging auto-safety trends.
As always, we should avoid jumping to a conclusion based on one study, particularly a correlational study with a small sample.  The HLDI report is here.
The Washington Post today carries the story of a local man (the former mayor of Fairfax City) who got a sentence of zero for distributing one the most dangerous drugs out there, methamphetamine.

This is not a young person, not a minority, not poor, not uneducated  --  and it's not pot and not simple possession. This is a grown man with a lot of advantages who is basically getting a walk (he did get time served, a little less than three months, plus "community service" (an especially sick joke since he was already a public servant at the time of his arrest)).

He was also, according to the story, unapologetic, and instead portrayed himself as the "victim" of addiction.  I was unable to find, however, any evidence of this in the news account beyond his self-serving claims  --  not that it would excuse either him or the clueless judge even if it were true.

Our country is suffering from crisis-level overdose deaths from hard drugs, of which meth is one of the worst.  As much as the Stanford rape abomination, http://www.crimeandconsequences.com/crimblog/2016/06/the-defense-bars-war-on-women.html,  this case proves that judges need the discipline and limits of mandatory minimum sentencing.
Nicole Hong reports for the WSJ:

A federal appeals court Wednesday affirmed the conviction and life sentence of Ross Ulbricht, the mastermind behind Silk Road, an online drug bazaar that was once described by the government as the most sophisticated criminal marketplace on the internet.

In a 139-page ruling, a three-judge panel of the Second U.S. Circuit Court of Appeals in Manhattan upheld a lower court's decision to sentence Mr. Ulbricht, now 33 years old, to life in prison. A federal jury found him guilty in 2015 of seven criminal charges related to Silk Road, including conspiracies to sell drugs and launder money.
Some of the opposition to the charging policy restored by Jeff Sessions  --  which requires career federal prosecutors ordinarily to charge the most serious readily provable offense  --  has argued that these prosecutors will rebel at the loss of their "discretion," and will balk at following the policy in practice.

Of course, that is an empirical question, so I asked someone who would know. Specifically, I asked Larry Leiser, an AUSA for more than 20 years and President of the National Association of Assistant United States Attorneys. The question I posed to him in an email this afternoon was whether the great majority of AUSA's support Sessions' decision that federal prosecutors should charge the most serious readily provable offense, including offenses that would involve a mandatory minimum sentence if the defendant is convicted.

He gave a one word answer.  "Yes."

Full disclosure:  Larry has been a friend of mine for years, and I knew full well what his answer would be, as would anyone who understands that prosecutors do not spend their time trying to figure out ways to cut breaks to smack pushers.

Midazolam

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One of the many controversies in the flurry of activity over the Arkansas execution of Ledell Lee was whether midazolam is a sufficient anesthetic for this purpose.  There is surprisingly little in the media reports this morning about whether it worked as intended in this case.  This story in USA Today does not mention the actual result, but the web page does have video of a television report by Marine Glisovic of KATV, a media witness to the execution.  From her report, it appears that the drugs worked as intended.

In my view, the States and the Federal Government should work to restore the supply of thiopental or pentobarbital as quickly as possible and eliminate the need for these more debatable alternatives.  Until that channel is open, though, midazolam appears to be effective when used correctly.


Alternative Execution Methods

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Joseph Ax and Nate Raymond have this article for Reuters on states turning to other methods of execution as the supplies of lethal injection drugs dry up. Defense lawyers say they will challenge new methods.  So?  They are challenging the old methods.  The article quotes me:

Kent Scheidegger, legal director of the nonprofit Criminal Justice Legal Foundation, which supports capital punishment, said death penalty critics had pressured drug companies into cutting off the supply of drugs, thereby causing problematic executions when states turn to inferior drugs.

Scheidegger said he favors the use of nitrogen gas as an alternative if lethal injection drugs are unavailable, noting that it is used every day by veterinarians as a way of putting animals down painlessly.

"I don't think murderers deserve a painless death, frankly," Scheidegger said. "But as far as removing obstacles from getting these sentences carried out, I think that's the way to go.
Mr. Ax evidently misunderstood me in the second paragraph.  I said the states should turn to nitrogen if they can't get barbiturates such as pentobarbital, which is used by veterinarians every day for euthanasia.  The part about veterinarians refers to the pentobarbital, not the nitrogen.  Pentobarbital is the primary ingredient of Euthasol.

Another Note on Expiration Dates

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Expiration2.jpg
Here is a bit of anecdotal evidence on drug shelf lives.

The picture on the left comes to us courtesy of retired DEA agent Fred Gregory.  In the 1960s, the DEA's responsibilities included checking pharmacy shelves for expired medications.  This bottle of medical heroin was "expired" over 30 years before it was pulled.  Analysis showed it to be 100% pure and potent nonetheless.

Expiration Date Follies

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The reason Arkansas is trying to rush executions is that its batch of one of the execution drugs is nearing its "expiration date."  Does something magical happen to a bottle of a drug when that precise date arrives?   Does it turn into something else at the stroke of the clock, like Cinderella's coach turning into a pumpkin?

Of course not.  Drugs have a shelf life, and the "expiration date" is the manufacturer's very, very conservative estimate of how long we can be confident, without testing, that the purity and potency of the drug has not deteriorated below acceptable limits by the passage of time alone, as long as the drug has been stored under the proper conditions.

But throwing drugs away simply because that conservative estimate date has arrived is not always required, particularly if the drug is expensive or in short supply.  See this post from 2014 and the quote from Johns Hopkins.

The Food and Drug Administration and the Department of Defense have an entire program to avoid the waste of throwing away good drugs.  It is called, logically enough, the Shelf Life Extension Program (SLEP).  Here is a PowerPoint on the program.  With testing, we can be confident that drugs will remain pure and potent beyond their nominal expiration dates, sometimes far beyond.
As has been reported on this blog and in many other places, crime across the cities of this country has been on a tear the last two years the likes of which we have not seen for decades.  After a generation of keeping our nerve and getting tough under Bill Clinton and George Bush, we decided that the real problem is thuggish police and overcrowded prisons.  So we started down the road of policing consent decrees and retroactively lowered sentences.

Liking the results?

But wait, it gets worse.  Lots worse.

Justice

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Baby Justice never stood a chance.  He was born with methamphetamine in his system and found frozen to death under some bushes along a slough bank 19-days later at the hands of his high, meth-addicted mother.

Baby Justice is dead.  His mother is in jail for second-degree murder and his father, Frank Rees, who has a history of meth related arrests and supposedly thought that the baby's mother "was clean", was arrested yesterday for his role in Baby Justice's death.  The baby was found dead almost exactly two years ago.  His mother was convicted by a jury almost six months ago.  Evidence at the mother's trial established that the baby's father was administering meth to the mother both days before and after his birth.  This evidence is what led to Rees' arrest.  Rees, 31, is now facing felony charges of involuntary manslaughter, child endangerment, and administering methamphetamine.  Yolo County District Attorney Jeff Reisig stated that "Under California law, when another individual's unlawful or reckless conduct in the face of known risks is a substantial factor that contributes to the death of another person, criminal liability may be established."

In a jailhouse interview yesterday, Rees said "I can almost guarantee you this is going to be thrown out, . . .  The DA should come here and give me an apology. I lost my son. I think I've been through enough."  Really?  Rees may not have physically taken the baby out to the slough that night, but he's been described as a "as a womanizing, meth-addicted, paranoid ex-convict who wielded intense control over [the baby's mother] first as her drug connection, then as the father of her child" and had dosed the baby's mother "with veterinary-size syringes of methamphetamine mixed with acetone in the days before their son's death."  Who should be apologizing to who here?

Read more here: http://www.sacbee.com/news/local/crime/article102222787.html#storylink=cpy

Read more here: http://www.sacbee.com/news/local/crime/article102222787.html#storylink=cpy

Rees' new girlfriend, who herself was arrested last month for possession of meth, just gave birth to Rees' 6th child.  This new baby girl was born two months premature and it is probably safe to say that meth is in her system as well.

Baby Justice stood no chance and now there is another baby struggling to survive.  Her mother most likely uses meth and her father is in jail facing manslaughter charges for his role in the death of the half-brother she will never meet.  The sad cycle continues.

Another Part of President Obama's "Legacy"

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It goes way beyond merely skyrocketing violent crime in major cities over the last two years.

"Heroin overdose death rates increased by 26 percent from 2013 to 2014 and have more than tripled since 2010," says the January report from the U.S. Centers for Disease Control and Prevention.

More than 47,000 people died from drug-overdose deaths in 2014 alone, including 28,647 from opioids and heroin overdoses. Nearly all of the heroin used in the U.S. is brought across the border by Mexican traffickers, who are nearly always illegal aliens.

The report states:

More persons died from drug overdoses in the United States in 2014 than during any previous year on record. From 2000 to 2014 nearly half a million persons in the United States have died from drug overdoses. In 2014, there were approximately one and a half times more drug overdose deaths in the United States than deaths from motor vehicle crashes. Opioids, primarily prescription pain relievers and heroin, are the main drugs associated with overdose deaths.

The article is here, and, I might immodestly add, quotes me extensively.



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