Archive | War on Drugs

George Shultz on the Failure of the War on Drugs

Former Reagan Administration Secretary of State and George Shultz has an interesting article on the failure of the War on Drugs:

I have been concerned about the drug issue since I became secretary of labor in 1969, my first cabinet position in the Nixon administration….

One day Pat [Moynihan] and I were driving together to Camp David, where I was to make a presentation to the president and some of his advisers. As I studied my notes, Pat, who was in a state of exuberance, kept interrupting me. “Shultz, don’t you realize that we just had the biggest drug bust in history?” “Congratulations,” I replied, going back to my work. “Come on,” he insisted, “this was a huge bust in Marseilles. We’ve broken the French connection!” “Great work,” I replied unenthusiastically. After a pause, Pat said, “Shultz, I suppose you think that as long as there is a big, profitable demand for drugs in this country there will be a supply.” “Moynihan,” I said, “there’s hope for you…”

The war on drugs that has been waged in the United States for over forty years now has failed, just as our national experiment with the prohibition of alcohol failed. Drugs are still readily available and their use in the United States is no lower than, and sometimes surpasses, drug use in countries with very different approaches to the problem. Every activity related to illegal drugs has been formally criminalized in the United States and a large bureaucracy has been created. Incarceration rates are high and a massive, costly, and sustained effort has been made to keep drugs out of the United States.

How costly is this war on drugs? A good friend of mine, Nobel Laureate in Economics Gary Becker, and his colleagues estimated in 2005 that the direct costs are


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The Justice Department’s New Memorandum to Federal Prosecutors on Charging Drug Offenders

In my last post, I gave a preliminary assessment of Attorney General Eric Holder’s recent speech on reforming charging policy for low-level drug offenders. I pointed out that whether or not this really marks a major policy change depends in large part on the details outlined in an internal memorandum Holder issued to federal prosecutors. Here is that memorandum in all its glory [HT: Jacob Sullum, who makes some good points about the memo and its limitations]. Unfortunately, the relevant section is not much more precise than Holder’s speech or the NY Times account I quoted in my last post. Overall, this is hardly “a major shift in criminal justice policy,” as the New York Times calls it. It looks more like a fairly minor shift dressed up in major rhetorical flourishes.

Here are the relevant guidelines:

[I]n cases involving the applicability of Title 21 minimum sentences involving drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

* The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a
weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

* The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;

* The defendant does not have significant ties to large-scale drug-trafficking organizations, gangs, or cartels; and

* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.

These four exceptions are both vague and broad. They don’t […]

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Assessing the Justice Department’s New Policy on Drug Offenders

In a speech to the American Bar Association today, Attorney General Eric Holder announced a potentially important new change in Justice Department policy on charging drug offenders. For reasons noted by Tom Angell of the Marijuana Majority, this is potentially an important step in curbing at least some of the excesses of the War on Drugs. But, as is often the case, the devil is in the details. Here’s the relevant passage in the speech:

I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive. We’ve seen that this approach has bipartisan support in Congress – where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe.

This is promising, but is a fairly vague statement of the criteria by which federal prosecutors are now supposed to determine whether to charge drug trafficking defendants with “offenses that impose draconian mandatory minimum sentences.” The New York Times has a slightly more detailed description of the new policy:

Under a policy memorandum being sent


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Using NSA Surveillance Data in the War on Drugs

On Monday, Reuters reported that the Special Operations Division, a secretive unit of the Drug Enforcement Administration is using NSA electronic surveillance data in the War on Drugs, and then deceiving judges and defense lawyers about the source of the evidence when it is used in criminal trials. As various experts quoted by Reuters point out, such deception is a violation of elementary due process.

Julian Sanchez of the Cato Institute has a good post discussing some of the other risks of this kind of “mission creep”:

This should serve as a crucial reminder that you can’t build a massive architecture of surveillance “just for terrorism” and expect it to remain limited to that function: once the apparatus exists, there will inevitably be incredible pressure from other interests within government to expand its use. Once the data is already begin collected, after all, it seems a waste not to exploit its full potential. And indeed, we’ve seen again and again how—mostly because there just aren’t all that many terrorists out there—powers and programs justified by the need to fight the War on Terror end up getting coopted for the War on Drugs, from the Patriot Act’s “Sneak and Peek” searches (used almost exclusively in drug rather than terror investigations) to federally funded “fusion centers.”

Such expansive use of surveillance data beyond national security purposes has already occurred in France. In the United States, as Sanchez notes, the New York Times recently reported that many domestic agencies are clamoring to use NSA data for their own purposes:

The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the


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Baptists, Bootleggers, and Marijuana Prohibition

Public choice economist Bruce Yandle famously developed the concept of a “baptist-bootlegger coalition” to describe situations in which regulation is supported by a strange bedfellow alliance of groups who favor it for narrowly self-interested reasons and those who support it out of moral or ideological considerations. The paradigmatic example was the way in which Baptists (who opposed alcohol for religious reasons) and bootleggers (who wanted its sale to be illegal in order to protect their business interests) supported Prohibition in the 1920s. It looks like a similar alliance is emerging to oppose marijuana legalization:

Pot legalization activists are running into an unexpected and ironic opponent in their efforts to make cannabis legal: Big Marijuana.

Medical marijuana is a billion-dollar industry — legal in 18 states, including California, Nevada, Oregon and Maine — and like any entrenched business, it’s fighting to keep what it has and shut competitors out. Dispensary owners, trade associations and groups representing the industry are deeply concerned — and in some cases actively fighting — ballot initiatives and legislation that could wreck their business model.

That pits them against full legalization advocates, who have been hoping to play off wins at the ballot box last fall in Colorado and Washington state that installed among the most permissive pot laws in the world. Activists are hoping to pass full legalization measures in six more states by 2016….

This spring, the Medical Marijuana Caregivers of Maine joined the usual coalition of anti-pot forces of active law-enforcement groups, social conservatives and public health advocates to oppose a state bill that would legalize possession of small quantities of the drug. The medical marijuana lobby argued that criminal organizations would start smuggling pot to neighboring states, and they complained that the bill’s tax plan was unworkable and unfair.

“The main objections


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Radley Balko’s Rise of the Warrior Cop

Radley Balko’s Rise of the Warrior Cop describes the increasing militarization of America’s police forces over the last several decades, and the immense harm it inflicts. It is the best new book on a law-related topic I have read so far this year.

I. The Growth of Militarized Policing.

Balko describes the growing use of military-style units, tactics, and equipment by law enforcement agencies around the country, including highly aggressive raids, the use of armored vehicles, and the deployment of overwhelming force of a kind traditionally reserved for military operations. The sheer scale of this militarization is staggering. For example, he notes that the number of SWAT team deployments has risen from a few hundred per year in the 1970s to over 50,000 in 2005. A wide range of state and federal law enforcement agencies now have military-style units, ranging from small-town rural police departments to such unlikely federal agencies as the National Park Service, the Postal Inspection Service, the Department of Agriculture, and the Fish and Wildlife Service

Most of the raids launched by these units target suspected low-level drug dealers, not terrorists, kidnappers, or violent criminals of any kind. The everyday use of such massive force predictably results in the death and injury of numerous innocent people. Balko documents numerous heartrending cases such as this one:

Sal Culosi is dead because he bet on a football game — but it wasn’t a bookie or a loan shark who killed him. His local government killed him, ostensibly to protect him from his gambling habit.

Several months earlier at a local bar, Fairfax County, Virginia, detective David Baucum overheard the thirty-eight-year-old optometrist and some friends wagering on a college football game…. After overhearing the men wagering, Baucum befriended Culosi as a cover to begin investigating him. During the


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Upcoming Talk on the War on Drugs before the Northern Virginia Chapter of NORML

On Thursday, July 11, I will be giving a speech on the politics of the War on Drugs before the Northern Virginia chapter of the National Organization for the Reform of Marijuana Laws (NORML). The event is open to the public. The NORML meeting will begin with refreshements at 7:30 PM, and my talk and Q&A will run from 8:30 to 9:30 (people who want to hear the talk need not arrive until about 8 or so, if they cannot come earlier). The meeting will be held in the Burgundy Room at Bailey’s Pub & Grille, 4238 Wilson Blvd., in Arlington, VA.

I will be speaking about the case for legalizing drugs, emphasizing points that are rarely considered in public discourse, but may have special resonance for conservatives and others most likely to oppose legalization. These include the ways in which the War on Drugs undermines family values, impedes our efforts in the War on Terror, threatens constitutional federalism, and endangers property rights. These are far from the only arguments for drug legalization. But they may be particularly important in making the case to potential skeptics, especially those on the political right.

I will also discuss the connections between the War on Drugs and widespread political ignorance, drawing in part on my forthcoming book Democracy and Political Ignorance. Much of the harm caused by the War on Drugs is nonobvious, and many key arguments for legalization are counterintuitive. As a result, rationally ignorant voters are often unaware of both the harm and the arguments in question. I certainly don’t claim that increasing political knowledge would make everyone a legalization advocate. But, on average, it tends to make people more sympathetic to legalization than they would be otherwise. The end of the talk will discuss […]

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George Will on Reducing Mandatory Minimum Sentences

George Will recently published an interesting column on a bill that would give judges greater discretion to reduce mandatory minimum sentences for federal crimes, co-sponsored by Democratic Senator Patrick Leahy and Republican Rand Paul:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade…..

Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed….

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Unlike many other critics of overcriminalization, I don’t object to mandatory minimums as such. I think there is a good case for ensuring uniformity of sentencing across different judges. But there is also a strong case for lowering the very high minimums that currently exist for many relatively minor federal crimes. An even better way to rein in federal criminal law would be to abolish much of it completely. […]

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Training Drug-Sniffing Dogs Not to Detect Pot

Since the state of Washington legalized marijuana in a referendum last November, some Washington police departments have been trying to teach their drug-sniffing dogs not to detect pot:

When Dusty, a 19-month-old black Labrador, walked past a pipe full of marijuana during a recent police search of a house, he was doing exactly what his handler hoped.

The newest drug-sniffing dog on the police force in Bremerton, near Seattle, is one of a few police dogs in Washington state that are not trained to point out pot during searches. Other police departments are considering or in the midst of re-training their dogs to ignore pot as well, part of the new reality in a state where voters last fall legalized marijuana use….

Police departments in Bremerton, Bellevue and Seattle, as well as the Washington State Patrol, have either put the dogs through pot desensitization training or plan not to train them for marijuana detection…

Police say that having a K-9 unit that doesn’t alert to pot will lessen challenges to obtaining search warrants because the dog won’t be pointing out possible legal amounts of the drug. Traditionally, dogs are trained to alert on the smell of marijuana, heroin, crack cocaine, methamphetamine and cocaine. They can’t tell which one it is or how much of each there is.

I previously blogged about problems with drug-sniffing dogs here and here; the evidence suggests that they are often inaccurate, and it’s far from clear that this retraining will work. However, retraining would not be necessary if Washington would only legalize other currently banned drugs as well. Then it could avoid the need for drug-sniffing dogs entirely. Retrievers should be devoting their time to nobler pursuits. […]

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A Dog Bites Meat Story: Dogs Sniff Out Meat More Effectively than Drugs

This Vancouver Sun article reports that dogs are much more effective at sniffing out meat than drugs [HT: Steve Bainbridge]:

Federal search dogs at international border entry points have a penchant for sniffing out one thing more than anything else: meat.

In fact, dogs trained to find animal products turn up meat around 20 times more frequently than drug-sniffing dogs find narcotics, according to government documents obtained by Postmedia News under access-to-information legislation.

The release of the data comes as federal officials question the necessity and effectiveness of the dogs, with the Canada Border Services Agency dismantling some of its search-dog teams over the past year – a move the federal union believes will erode the ability to quickly search incoming cargo and seize drugs and firearms.

The article gives lots of explanations for this entirely unsurprising finding. But it ignores the obvious points that dogs like meat a lot more than drugs. Meat is edible while drugs (usually) are not. Thus, your average canine has evolved to be a much better meat detector than drug detector. In addition, as I discussed in this post, drug-sniffing dogs often err because their main objective is to please their human handlers rather than find the drugs as such; as a result they tend to signal “false positives” if they sense that that’s what the handler wants. By contrast, meat-sniffing dogs have reasons of their own for finding meat. The point is so glaringly obvious that this could be considered a dog-bites-man story – except that it is actually much more common for dogs to bite pieces of meat than humans.

Unfortunately, there is a more serious side to the story. Despite the fact that drug-sniffing dogs have a high error rate, government policy – and even Supreme Court decisions – are […]

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Why maximal enforcement of federal gun laws is not always a good idea

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce…among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes […]

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Marijuana and Federalism

More and more states are stepping back from waging war against marijuana, legalizing medicinal use and minor possession, and popular support for decriminalization appears to be growing.  Thus far, the federal government has sought to stamp out such efforts.  Writing in the Washington Post, Jonathan Rauch suggests Washington should tak a different tack.

Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.

Rauch also notes that state-level marijuana policy experimentation could be quite revealing, much as it has been in the case of same-sex marriage.

 localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed. Had the country locked in a federal constitutional amendment banning gay marriage


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Defining “High Seas Felonies” in Another Country

A district court recently ruled that Congress’s power to “Define and Punish… Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on […]

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Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is […]

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Hawaii and New Mexico Legislatures Consider Bills to Decriminalize Marijuana Possession

Committees in the Hawaii and New Mexico state legislatures recently approved bills that would decriminalize the possession of marijuana [HT: Tom Angell of Law Enforcement Against Prohibition]. Unfortunately, the bills would only decriminalize possession of small amounts of marijuana. Nonetheless, they would be a major change from the status quo. If the laws are enacted, these states would add to the momentum for legalization created by the recent passage of referendum initiatives legalizing marijuana in Colorado and Washington. Both public and elite opinion is gradually turning against the War on Drugs.

Obviously, even if these and other states legalize marijuana, it would remain illegal under federal law. But, as more and more states legalize marijuana, it will make it difficult for the federal government to continue the federal “war” against it, and possibly increase political pressure for repealing the federal ban entirely. […]

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