Recently in Drugs Category

The DEA is controversial mostly because the war on drugs is controversial, particularly among libertarians.  Very occasionally, DEA earns the heat it gets.  In one recent shocking case, it left a young man in a holding cell for five days without food, water or access to a toilet.  Fortunately he survived, and the DEA is going to take a fully justified hit. 

The prescription painkiller business was booming in 2009, making millionaires of Chris and Jeff George, twin brothers who operated several pain clinics in South Florida. Unfortunately for them, their customers had a tendency to die, and not always in a subtle fashion.

In November of that year, three customers were on their way to a George brothers' clinic when the driver tried to weave her Toyota Camry through the lowered arms of a train crossing. The car was struck by commuter train going 79 mph. The driver and a passenger were ejected from the vehicle and died at the scene. The third occupant died six months later.

An associate of the Georges who read about the accident in the paper called Chris George to break the news. "Did it say they were pain clinic people?" George asked.

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South Florida -- and the Georges, in particular -- were the vanguard of what the Centers for Disease Control and Prevention calls an "epidemic" of oxycodone addiction and death -- one that had attacked America more suddenly than any drug has before.

In 2008, prescription painkiller overdoses killed 14,800 Americans. In 2009, when the George clinics were at their peak, opioid abuse propelled a ghastly rise in the number of drug-related deaths nationwide. That year, 37,485 Americans died from narcotics overdoses -- a figure that for the first time surpassed the number of deaths from car accidents.

The Supreme Court recently heard oral argument in the Dorsey case, in which it will resolve a 3-3 circuit split on whether the Fair Sentencing Act, known in some parts (to wit, my files) as the Crack Dealers Bonanza Act, will apply retroactively to those who committed their offenses before the Act was signed in August 2010, but were sentenced thereafter.

The courts and Congress alike will use the Court's decision in this case as a guide in determining the retroactivity of future ameliorative legislation. The government has acknowledged the FSA contains no explicit directive to impose its more lenient penalties retroactively. The interpretative question in this case, and for others to come, is how greatly a court must strain to find implicit support for retroactive application of an ameliorative statute.

If the Court reads any of the possible indicia of implicit support for retroactive application of the FSA § 8, § 10, the legislative history, or public policy as grounds to interpret the FSA as petitioners suggest, future courts will likely be more amenable to finding implicit support for retroactivity in the legislative history of ameliorative legislation. Conversely, if the Court affirms the Seventh Circuit decision, it will set an expectation of clearly expressed intent for both Congress to articulate in drafting and courts to consider in interpreting ameliorative statutes.

Yehoshua Zarfin, Enav Yefet, Said Abozaid, Wael Nasser, Tamer Mor, and Yoram Finkelstein, Infant with Altered Consciousness after Cannabis Passive Inhalation, Child Abuse & Neglect  Volume:36  Issue:2  Dated:February 2012  Pages:81 to 83.  Abstract after the jump.

Mark Kleiman, Jonathan Caulkins, and Angela Hawken have this op-ed in the WSJ:

"For every complex problem," H.L. Mencken wrote, "there is an answer that is clear, simple and wrong."

That is especially true of drug abuse and addiction. Indeed, the problem is so complex that it has produced not just one clear, simple, wrong solution but two: the "drug war" (prohibition plus massive, undifferentiated enforcement) and proposals for wholesale drug legalization.

Fortunately, these two bad ideas are not our only choices. We could instead take advantage of proven new approaches that can make us safer while greatly reducing the number of Americans behind bars for drug offenses.

The calendar for April arguments in the US Supreme Court is available here.  There are no state criminal cases or state-prisoner habeas cases on the docket.  Should we be grateful for "salutary neglect"?

On Tuesday, April 17, the Court hears argument on the retroactivity of the rollback of the crack v. powder cocaine sentencing ratio.  There are a number of prior posts on this blog on the subject, including

Obama Signs Reagan Version of Crack Sentencing

The Crack Ratio

Crack Retroactivity and Plata

Crack Sentencing

The big case in terms of press coverage will be the Arizona immigration case on Wednesday, April 25.

This morning the Supreme Court appointed Miguel Estrada to argue in support of the judgment below in the crack sentencing cases, Dorsey v. United States and Hill v. United States.  The Court does that when the government repudiates a point decided in its favor by the lower court.  They consider it unseemly to reverse a lower court decision without someone arguing in its favor, but they nearly always do reverse in this situation.  (I'm not aware of any affirmances, but I'll hedge with "nearly.")

Adam Liptak has this story in the NYT on the cases (see update below):

Selling cocaine in crack form used to subject offenders to sentences 100 times as long as those for selling it in powder form. The new law, the Fair Sentencing Act of 2010, reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010.

Um, no.  It wasn't the sentences that were 100 times as long.  The controversial "ratio" refers to the amount of cocaine that triggers the longer sentence, as indicated later in the story. (See also this post.)

The usual rule is that new laws do not apply retroactively unless Congress says so, Judge Evans wrote, and here Congress said nothing.

Edward Dorsey pleaded guilty in June 2010 to possessing 5.5 grams of crack cocaine in 2008 with the intent to distribute it. Under the law in effect at the time of his offense and his plea, and thanks to an earlier conviction, he was subject to a mandatory minimum sentence of 10 years. Under the new law, the mandatory sentence would not have come into play for fewer than 28 grams, and Mr. Dorsey would probably have received a sentence of three or four years.

The sentence ratio is thus 3.3 to 2.5, not 100.

Update:  As federalist notes in the comments, the article has subsequently been corrected.

As noted in yesterday's News Scan, the retroactive application of lighter sentences for those convicted of crack cocaine offenses began on November 1, with an intitial release of about 1800 crack offenders.  The New York Times carried an accurate and reasonably balanced story about it.  The story quotes yours truly as a dissenting voice. 

The numbers are daunting.  The Sentencing Commission has said that it expects 12,000 offenders will be eligible for release, and that the average amount of time to be deducted from their sentences will be slightly more than three years.  In other words, we could easily wind up with 36,000 more man-years of these offenders on the street  --  whereas, if the old law had been left in place, they'd be in jail.  The average recidivism rate for crack is 30% or perhaps very slightly higher. 

If my math is correct, that means that we'll have roughly 10,800 more future crack offenses coming up, and soon, than if the prior law had been left undisturbed.  This is no small matter.  The association between crack and gunplay is all too well documented, and, with gunplay or wihout, the drug is highly addictive and first class bad news.
 
My question is:  Why, when we hear in such specifics about the alleged benefits of the forthcoming releases, do we not also and simultaneously hear about the additional crime to which they will almost surely lead?  My other question is:  If the public had been told loudly and up front that there would likely be 10,000 more crack crimes with the new regime, would that regime have come about at all?  Or on such a scale?
  
One needn't be a partisan of one side or the other to be convinced that if we're going to be told about the benefits of X, we ought to be told with equal clarity and volume about its drawbacks.  This is as true about the crack releases that begn yesterday as it is about anything else.

Gallup announced this poll today, showing Americans favoring legalization of marijuana 50-46.  The 95% confidence interval for sampling error of the poll is +-4%, so we can't say if that's a majority or a plurality, but it is the first time that the ayes have exceeded the nays.

If I had written the release, though, I probably wouldn't have used the term "record high."

(CJLF has not taken a position on this issue.)

The causes of crime is a very difficult subject to study, so we should always skeptical when a study comes out showing something new.  Methodology should be probed and results confirmed by other studies before we make policy decisions based on any study.  But something unusual has happened with regard to RAND's surprising result that neighborhood crime went up when marijuana dispensaries were closed.  AP reports:

A nonprofit think tank has removed a study from its website that said crime increased near medical marijuana dispensaries in Los Angeles after they were closed.

Warren Robak, a spokesman for Santa Monica-based Rand Corp., says the organization is reviewing the study released last month and has removed it from circulation.

The Los Angeles city attorney's office had said the report's findings were deeply flawed and demanded a retraction.

The study, first reported by the Los Angeles Times, looked at crime reports in the 10 days before and after Los Angeles officials shuttered the pot clinics last summer after a new ordinance went into effect. The analysis showed crime increased about 60 percent within three blocks of a closed dispensary compared with those that remained open.

RAND is a far better source of studies on crime than agenda-driven outfits such as the Sentencing Project.  If there are problems with the study, it is to their credit that they have withdrawn it for revision.  Upon review, it may very well come to the same conclusion.  But this incident sounds one more note of caution about pouncing on what "studies show."

This MSNBC report indicates that the Obama administration has decided to enforce federal law instead of ignoring it.  Specifically, instead of waffling in the face of California's so-called "Compassionate Use Act," the feds have discovered that the Constitution contains something called the "Supremacy Clause" and now aim to enforce it.  Thus, as the article recounts:

Federal prosecutors have launched a crackdown on pot dispensaries in California, warning the stores that they must shut down in 45 days or face criminal charges and confiscation of their property even if they are operating legally under the state's 15-year-old medical marijuana law.

In an escalation of the ongoing conflict between the U.S. government and the nation's burgeoning medical marijuana industry, California's four U.S. attorneys sent letters Wednesday and Thursday notifying at least 16 pot shops or their landlords that they are violating federal drug laws, even though medical marijuana is legal in California. The attorneys are scheduled to announce their coordinated crackdown at a Friday news conference.

If this is true, congratulations are due Attorney General Holder.  This action will not sit well with a significant portion of the President's base, but Mr. Holder has apparently decided to enforce the law notwithstanding.  Good for him.

As ever, CJLF takes no position in the legalization debate.  But the way to change democratically enacted law, about drugs or anything else, is not to flout it.  It's to use the ample lawful means available to persuade a majority of the electorate that change is warranted.

When you knock over the gas station or the liquor store to get some cash for your next hit, it's not your fault.  It's those darn neurons.

We just now got the news.  Being an inveterate druggie isn't a moral problem or a criminal problem:

It's a brain problem whose behaviors manifest in all these other areas," said Dr. Michael Miller, past president of ASAM who oversaw the development of the new definition. "Many behaviors driven by addiction are real problems and sometimes criminal acts. But the disease is about brains, not drugs. It's about underlying neurology, not outward actions."

So, please, will you Puritanical zealots quit fretting about "outward actions?"  The old excuse was boys-will-be-boys.  That's passe'.  Please get with it:  It's brains-will-be-brains.

"The disease creates distortions in thinking, feelings and perceptions, which drive people to behave in ways that are not understandable to others around them," Hajela said in a statement. "Simply put, addiction is not a choice. Addictive behaviors are a manifestation of the disease, not a cause."

It's a disease, not a crime.  Have I heard that before?  Hmmm, maybe the old versions aren't that passe' after all.

"So, we have to stop moralizing, blaming, controlling or smirking at the person with the disease of addiction, and start creating opportunities for individuals and families to get help and providing assistance in choosing proper treatment," Miller said.

Finally, we get to the bottom line, not that it's a surprise.  Turn away from all that moralizing, blaming, controlling and smirking.  Or, to state it more succinctly, put away that ancient notion that human beings are responsible for what they do.  Other people might be  --  like police and prosecutors  --  but if you're high as a kite thoroughly enough and often enough, you get a free pass. 

 

Thanks to Doug Berman for linking to this wonderfully revealing article published in Reason.com.  The title is, "How Many Medical Marijuana Patients Are Fakers?  Does It Matter?"

The opening "Does It Matter?" line gives you a tip-off about the revelation to follow.  And this excerpt from early in the piece pretty much spells it out:  

University of California at Santa Cruz sociologist Craig Reinarman et al....found that "relief of pain, spasms, headache, and anxiety, as well as to improve sleep and relaxation, were the most common reasons patients cited for using medical marijuana."

So now it's official: "medical" marijuana is used in order to relieve anxiety and improve relaxation.

Ummm, I think we just got told that medical marijuana is used to get stoned.

Imagine that!  And here I thought all these years that it was only those DEA types in overly tight underwear who were telling us that "medical" marijuana was just a front for people who wanted to spend the day zapped. 

Well now we know.  Medical need, schmedical need.  Ladies and gentlemen, you can forget all that stuff about how thousands and thousands are desperate for relief from intractable pain.  It's party time!  Anybody got the munchies yet?

In the Friday afternoon news dump  --  undertaken to insure minimal press coverage and public attention  --  Attorney General Eric Holder reversed a largely successful DOJ policy that had resisted retroactive application of the so-called Fair Sentencing Act.  The majority of courts of appeals to have addressed the issue have held, consistently with the general Savings Statute, 1 U.S.C. § 109, that the FSA does not have retroactive application, since there is no express provision for it, as the Savings Statute unambiguously requires.  (In fairness, an almost equal number of appellate courts have held the opposite).

For those unfamiliar with it, the "Fair Sentencing Act," in my view more aptly called the Crack Dealers' Relief Act, prospectively reduces crack cocaine sentences to make them more nearly equal to the sentences imposed for powder cocaine.  I have no strong objection in principle to the aims of the Act, but the accompanying oozing rhetoric, wonderfully parroted in Mr. Holder's memo, is a bit hard to take for those familiar with the actual and considerable dangers of crack.

As an aside, I would note that Holder's cave-in on retroactive application is not the end of the matter that he might believe it to be.  Unlike what Holder apparently thinks, DOJ does not decide the law.  Courts do.  DOJ can surrender, but those courts having held as correct the Department's former position are hardly bound to change their interpretation of the law.  They can and probably will appoint amicus counsel should the issue be contested in the future, as it is likely to be.  This is also true in the event the issue reaches the Supreme Court, mimicking what SCOTUS did when the Reno Justice Department bailed out on 18 U.S.C. § 3501 in the Dickerson case.

But that's not the real news here. 

Yesterday, the US Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the guidelines, making convicts previously sentenced for crack cocaine offenses eligible for significant sentencing reductions.  The Commission's gushing, self-congratulatory press release reflects, probably unintentionally, the extent to which the Commission has become the lap dog of the drug bar. 

Still, one must give credit where it's due.  The Commission makes only a minimal attempt to mask the de facto prison break it has authorized:

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months...

Well that's reassuring.  Not every crack offender (read, in large measure, "dealer") will get a break  --  only a mere 12,000.  When multiplied by the average sentence reduction (slightly more than three years), what this means is that the Commission has authorized 36,000 fewer man-years of imprisonment for those who have involved themselves with perhaps the most violence-related drug on the market, a drug that has wreaked havoc and misery in one community after the next.

Of course, if the crack recidivism rate were zero, that would be one thing.  In fact it's over 30% (a figure nowhere to be found in the press release).  In other words, the Commission seems to take great pride in virtually guaranteeing a rolling crime wave.

Yikes.

 

Two notable Congressmen  --  Barney Frank and Ron Paul  --  have jointly, as it were, introduced legislation to repeal the federal ban on marijuana, and leave its legal status to the states, so the on-line Houston Chronicle reports.

This story struck me, not only for its intrinsic interest on this hotly debated topic, but because it comes out on the same day as another story to which I shall presently refer.

One of the principal arguments for legalizing marijuana is that, by doing so, we can tax it, thus increasing government revenue at a time of considerable need, and simultaneously reduce the violence that often accompanies the illegal drug trade.  If we treated marijuana like the painkiller it is said to be, and made it available at the pharmacy, as other painkillers are, we could put an end to the gunplay with which illegal drugs have become associated. 

The idea that violence will end with legalization is most appealing.  It depends, however, on the tacit assumption that the sort of people who seek drugs are really just law-abiding citizens unjustifiably if not irrationally labelled as criminals. 

As I say, this notion is appealing.  It's just not so reliably true.