Archive | War on Drugs

The Pot Bowl

It is perhaps worth mentioning that the two teams that made it to the Super Bowl on Sunday represent Colorado and Washington – the two states that recently legalized marijuana. If this somehow helps accelerate the recent decline in public support for the War on Drugs, it will almost be enough to offset my disappointment over the Patriots and Tom Brady losing to longtime rival Peyton Manning. […]

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New Hampshire House Passes Marijuana Legalization Law

The New Hampshire House of Representatives recently became the first state legislative house to pass marijuana legalization. Legalization measures adopted in Colorado and Washington in 2012 passed by referendum. As the above-linked Concord Monitor article notes, the law faces tough sledding in the state senate, and could well be vetoed by New Hampshire’s Democratic Governor Maggie Hassan. Nonetheless, it is an incremental step forward for the cause of legalization, which has been gaining ground in both public and elite opinion in recent years. […]

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Uruguay Legalizes Marijuana

Uruguay recently adopted the most far-reaching legalization of marijuana attempted by any nation in recent decades:

The passage of a landmark marijuana legalization measure Tuesday means Uruguay is set to become the first country in the world to have a system regulating legal production, sale and consumption of the drug.

It’s practically a done deal. President Jose Mujica has to sign the bill before it becomes a law. But he’s long backed the measure, and there’s little doubt that he remains behind it….

Supporters of the proposal have said it marks a turning point and could inspire other Latin American nations to take a similar approach….

The proposed law would allow individuals to grow up to six plants of marijuana and possess as many as 480 grams for personal use. Marijuana clubs of anywhere from 15 to 45 members would also be allowed and granted permission to grow up to 99 plants at a time.

Users would have to register, and those claiming to use cannabis for medical reasons would have to show a doctor’s prescription. Marijuana would also be sold at licensed pharmacies.

The Uruguay law goes farther than legalization in such jurisdictions as Portugal and the US states of Colorado and Washington because it allows production and sale of marijuana to a greater extent than they do, as well as possession.

Uruguay’s action comes at a time when support for marijuana legalzation and skepticism about the War on Drugs more generally is rising in both the US and internationally. […]

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Federalism and Marijuana Event

Many constitutional conservatives were critical of the Supreme Court’s decision in Gonzales v. Raich, holding that the federal government’s Commerce Clause power could reach the intrastate use and possession of marijuana for medical purposes authorized under state law. Now that an ever-growing number of states has chosen to authorize marijuana use and possession — some even for recreational use — how should those on the Right respond?

On Tuesday, I’ll be in Washington, D.C. to moderate a panel that will explore this and related questions. The panel, entitled “Marijuana and the States: How Should Federalism Principles Inform the Federal Government’s Response to State Marijuana Initiatives?” is co-sponsored by the Federalist Society’s Practice Groups and the Center for Business Law and Regulation at the Case Western Reserve University School of Law. The panel will include former DAG George Terwilliger, Professor John Eastman, the Buckeye Institute’s Robert Alt and Colorado Assistant SG Michael Francisco.

Here’s the panel description:

In 2013 voters in Colorado and Washington legalized the possession of marijuana under state law. Several other states allow the possession and use of marijuana for medicinal purposes. Yet marijuana remains illegal under federal law. The Justice Department has not sought to preempt these decisions, and has outlined a new enforcement policy that largely defers to state law enforcement on the assumption that states will effectively regulate the sale and possession of marijuana. Are the Justice Department’s efforts to accommodate state decisions about marijuana policy prudent or irresponsible? Could it do more? Should the federal government defer to state voters on the desirability of marijuana prohibition? How should principles of federalism inform the federal government’s response to state initiatives on marijuana? Can the federal government allow states to decriminalize marijuana possession and sale without undermining the rule of law?

The event is at […]

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NAACP Backs State Autonomy on Marijuana Policy

The NAACP recently passed a resolution backing a proposed federal law that would prohibit enforcement of federal laws banning marijuana in states that have imposed lesser penalties or have legalized marijuana entirely. The resolution cites the “misguided and misplaced policies” of the War on Drugs, which have resulted in “the disproportionate over-confinement of racial and ethnic minorities.”

In one sense, this is not a surprising move. The NAACP previously called for an end to the War on Drugs in 2011, for similar reasons. But it is somewhat unusual for the nation’s most prominent African-American civil rights organization to back state autonomy on an important policy issue. For many decades, most political liberals and most minorities associated “states’ rights” with the defense of racism and segregation.

The NAACP’s endorsement of state autonomy on this issue certainly does not mean that they necessarily support greater political decentralization generally. But it is of a piece with other recent moves towards a more positive view of federalism on the left, including Yale Law Professor Heather Gerken’s work on the subject. Gerken argues that, despite its historic association with racism, conditions have changed in ways that make federalism more beneficial to minorities today than it might have been in the past. In some of my own work (e.g. here and here), I have argued that federalism was not uniformly harmful to minorities in earlier periods in American history either. During some crucial time-frames, minorities might well have been worse off under a unitary national policy on racial issues than they were with federalism.

None of this proves that federalism is always good for minorities, either today or in the past. There clearly are times when federal government intervention is the best way to protect minorities from state or local oppression. But it […]

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Marijuana Legalization Polls at 58%-39% in New National Gallup Survey

So Gallup reports; the reported margin of error is +/-4%, and the question was, “Do you think the use of marijuana should be made legal, or not?” I’m always skeptical of single data points such as this one, but this seems to be consistent with a broader trend; in 1995, there was only 25% support (73% opposition), and support has generally been rising ever since. […]

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15-Year-Old Rastafarian Has Religious Freedom Right to Possess Drug Paraphernalia

So holds the Minnesota Court of Appeals in today’s In the Matter of the Welfare of J.J.M. A. (surprisingly, an opinion labeled by the court as nonprecedential). J.J.M.A. was arrested for, among other things, possession of a glass pipe used for smoking marijuana, which was covered by the state ban on possessing drug paraphernelia. Minnesota courts have interpreted the Minnesota Constitution as presumptively mandating religious exemptions from generally applicable laws. J.J.M.A. claimed that he was entitled to such an exemption, because he is a practicing Rastafarian, and “the pipe is integral to his religious belief, both to use to smoke and as a personal reminder of his faith.”

“[T]he district court held that J.J.M.A. failed to satisfy his burden of establishing a sincerely held belief that the Rastafari religion requires that he carry his pipe with him at all times.” But the court of appeals disagreed:

J.J.M.A. testified that he carries his pipe with him as a reminder of his faith and so that he can “perform what needs to be performed, which is smoking.” He stated that the colors that appear on his pipe — red, yellow, and green — have religious significance: “[r]ed for the blood [of] the martyrs; yellow for the sun that grows the greens, the sacred herb; the purity of nature.” And he testified that even when he is not actively practicing his religion, “I do remind myself of it all the time.”

J.J.M.A.’s testimony was supported by K.H., a Rastafarian with a background in religious studies. K.H. testified that Rastafarians use the pipe — which he also called a “chalice” — to smoke during “reasoning circles” and that “it’s part of the actual sacramental process itself to be using a pipe [as] opposed to using any other device.” He testified that the cannabis plant

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It’s Such a Great TV Show That Even The Criminals Like It

From the facts of United States v. Cross, a decision from Chief Judge Garland handed down yesterday involving a wiretap that targeted a large-scale heroin conspiracy:

On the wiretap, the agents overheard a series of conversations between Toure and appellant Cross. On several occasions, Cross used coded language to place narcotics orders. Cross and Toure also discussed purchasing prepaid cell phones to escape detection by the police. In one conversation, Toure told Cross about a police raid on a stash house where Toure had kept some of his drugs; Toure expressed concern that an individual arrested in the raid might become a police informant. And, in a moment of supreme irony, the two shared their admiration for The Wire, an HBO television series about drug dealers being monitored by a wiretap. Supp. App. 15 (“Yea season three is my favorite.”)

Thanks to Michael Scarcella for the link. […]

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DEA Has Its Own Phone Call Database

The NYT reports on the Drug Enforcement Administration’s “vast phone trove,” “an enormous AT&T database that contains the records of decades of Americans’ phone calls,” and appears more expansive than that maintained by the National Security Agency.

The Hemisphere Project, a partnership between federal and local drug officials and AT&T that has not previously been reported, involves an extremely close association between the government and the telecommunications giant.

The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987. . . .

The scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act. The N.S.A. stores the data for nearly all calls in the United States, including phone numbers and time and duration of calls, for five years.

Hemisphere covers every call that passes through an AT&T switch — not just those made by AT&T customers — and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.

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Size Still Matters in the Federal Government’s War on Marijuana

Co-blogger Will Baude makes a good point in noting that the Justice Department’s new memo on federal marijuana enforcement takes a more favorable tone towards large state-licensed marijuana businesses than its 2011 predecessor. Unfortunately, however, this is only a very minor shift.

The new memo states that prosecutors should not use “the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities.” But that means that size can still be emphasized – even very heavily – so long as it is considered in conjunction with other “available information and evidence.” Thus, US attorneys who want to target large marijuana operations can still do so. This is especially true once we remember that, even in states where marijuana is now legal, the memo actively encourages prosecutors to go after marijuana enterprises that impinge on any of eight broadly worded “federal priorities,” or any other “important federal interest.” With respect to many of those interests, it is easy to argue that a larger enterprise might threaten them more than a smaller one. For example, the larger the commercial operation, the more likely it is to produce at least some marijuana that might be “diverted, directly or indirectly, and purposefully or otherwise, to minors,” or result in the “diversion” of some marijuana to states where it is still illegal.

The new memo’s less hostile tone towards large producers might make a difference at the margin. Prosecutors who already prefer to avoid marijuana prosecutions might feel slightly more empowered to do so. But the new memo provides little real protection for large-scale commercial marijuana operations in states where they are now legal. […]

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The Relevance of the “Size or Commercial Nature” of a Marijuana Business

I agree with Ilya that DOJ’s new marijuana federalism memo leaves a lot to be desired, but there was point in it that I was pleased (and surprised) to see. The 2011 Cole memo about medical marijuana spoke very disparagingly about large, profitable operations:

The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law.

The new 2013 Cole memo, while not fully retracting this statement, takes a markedly different tone:

The Department’s previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonably proxy for assessing whether marijuana trafficking implicates

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Justice Department Finally Announces its Response to the Legalization of Marijuana in Colorado and Washington

Understandably overshadowed by the debate over a possible US military intervention in Syria is the Justice Department’s long-awaited announcement of its response to the legalization of marijuana in Colorado and Washington. Criminal law experts, legalization advocates, and others have long wanted to know whether and to what extent the DOJ intends to continue federal marijuana prosecutions in those states. Today, it finally took a position on the issue, and put out a fairly detailed memorandum to federal prosecutors outlining its policy. But, as with the DOJ’s recent memorandum on charging low-level drug offenders, there is little real change here. [SEE UPDATE BELOW FOR A DISCUSSION OF WAYS THAT THE ADMINISTRATION COULD HAVE IMPOSED GENUINE CONSTRAINTS ON FEDERAL MARIJUANA PROSECUTIONS].

The main bright spot for legalization advocates is that the federal government won’t be suing to overturn the Colorado and Washington laws in federal court – for now. But they don’t rule out filing such a suit in the future if they conclude that federal interests are threatened. In the meantime, the DOJ memorandum urges federal prosecutors not to prioritize marijuana enforcement in these states so long as they adopt “strong and effective regulatory and enforcement systems” that protect against threats to a long list of “federal priorities” that may be endangered by marijuana legalization. This list is long and vague enough that it would be difficult for any state to fully address it without virtually negating marijuana legalization entirely. For example, it includes “preventing the distribution of marijuana to minors,” which the DOJ defines expansively as “call[ing] for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors when marijuana or marijuana-infused products are are marketed in a manner to appeal […]

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Democratic Members of Congress Press Holder for Answers on Use of NSA Surveillance Data in the War on Drugs

Eight Democratic members of Congress are pushing Attorney General Eric Holder to answer questions about the use of NSA surveillance data in the War on Drugs:

Eight Democratic senators and congressmen have asked Attorney General Eric Holder to answer questions about a Reuters report that the National Security Agency supplies the Drug Enforcement Administration with intelligence information used to make non-terrorism cases against American citizens.

The August report revealed that a secretive DEA unit passes the NSA information to agents in the field, including those from the Internal Revenue Service, the FBI and Homeland Security, with instructions to never disclose the original source, even in court. In most cases, the NSA tips involve drugs, money laundering and organized crime, not terrorism.

Five Democrats in the Senate and three senior Democrats on the House Judiciary Committee submitted questions to Holder about the NSA-DEA relationship, joining two prominent Republicans who have expressed concerns. The matter will be discussed during classified briefings scheduled for September, Republican and Democratic aides said.

“These allegations raise serious concerns that gaps in the policy and law are allowing overreach by the federal government’s intelligence gathering apparatus,” wrote the senators – Tammy Baldwin of Wisconsin, Ron Wyden of Oregon, Tom Udall of New Mexico, Richard Blumenthal of Connecticut and Sherrod Brown of Ohio.

I previously wrote about this dangerous trend in this post.

The Reuters article quoted above notes that some Republicans are pushing for answers as well. But it’s more telling that these Democrats are doing so, despite the fact that the policy in question is conducted by a president of their own party. […]

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Obama Opposed to Changing Legal Status of Marijuana “at this Point”

The White House recently confirmed that President Obama continues to oppose the legalization of marijuana, despite growing public support for the idea:

President Barack Obama does not support changes to the legal classification of marijuana, the White House said Wednesday, despite growing evidence of its medical benefits.

White House spokesman Josh Earnest was asked for the second day in a row if CNN chief medical correspondent Sanjay Gupta’s recent reversal on medical marijuana use and apology for misleading the public had had any bearing on Obama’s position on the issue.

Whereas Earnest declined to answer the question on Tuesday, he confirmed Wednesday that the president does not believe any changes should be made to medical marijuana laws “at this point…”

Although Earnest noted the White House does not believe targeting individual marijuana users is “the best allocation of federal law enforcement resources,” the Obama administration has nonetheless spent considerable funds cracking down on medical marijuana usage, including in states that have legalized the drug.

As the above-quoted Huffington Post article notes, the president’s belief that targeting individual drug users is not “the best allocation of federal law enforcement resources” has not prevented him from presiding over a major increase in federal targeting of medical marijuana, even as compared to the Bush administration.

This announcement is further evidence that the administration is not prepared to significantly roll back the War on Drugs, despite Attorney General Eric Holder’s much-discussed speech last week, which seemed to suggest otherwise but actually resulted in very little real change in policy.

At the same time, public and elite skepticism about the War on Drugs in general is growing, as is public support for marijuana legalization in particular. For that reason, it’s certainly possible that Obama’s and other politicians’ views on these issues will […]

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