Tag: drug war

Every 25 Seconds: Human Rights Watch and the ACLU Document More Harms from Drug Prohibition

A new report from the ACLU and Human Rights Watch details many of the harms associated with the criminalization of drug possession. The most striking finding from the report is that police in the United States arrest more people for marijuana offenses than for all violent crimes combined. The title of the report, “Every 25 Seconds,” refers to how often police arrest someone for drug possession in this country.

The full report can be found here, but other key findings include:

  • More than one out of every nine state-level arrests are for drug possession, amounting to 1.25 million arrests per year.
  • Nearly half of those arrests for marijuana possession.
  • While drug usage rates are roughly the same across racial lines, black adults are more than two-and-a-half times as likely as white adults to be arrested for possession.
  • More than 99% of drug possession convictions were the result of guilty pleas, rather than trial verdicts. The authors of the report describe this as “rendering the right to a jury trial effectively meaningless.”
  • The average bail amount for drug possession defendants was $24,000, meaning that poor defendants typically remained incarcerated while awaiting trial and had a strong incentive to plead guilty even if they believed they were innocent.
  • Defendants often did not understand the multitude of collateral consequences of a drug conviction.

When it comes to actual policy recommendations, the report urges legislators, judges, prosecutors, and police officers to de-emphasize the policing and prosecution of drug possession crimes, effectively calling for decriminalization of drug possession across the board.

While the authors stop short of recommending full legalization, even the decriminalization recommendation would be a positive step. We know this because in 2000, Portugal decriminalized all drugs. Despite predictions from critics that decriminalizing drug use would lead to massive spikes in addiction and prove a disaster, a 2009 Cato study by Glenn Greenwald put that speculation to rest. Decriminalization in Portugal has been a success, and there is no substantial movement today to return the country to prohibition.

Similarly, state experiments with legalized recreational marijuana in the U.S. are proceeding well. And the tide in favor of ending marijuana prohibition continues to grow. Next month, five more states (Arizona, California, Nevada, Maine, and Massachusetts) will vote on whether to legalize marijuana. Those states would join Alaska, Colorado, Oregon, Washington state, and Washington D.C. as jurisdictions that have renounced prohibition for marijuana.

Last month, a U.S. federal judge declared that the “principle casualty” of the war on drugs has been the U.S. Constitution. The ACLU/HRW report sheds new light on the truth of that declaration. It’s well past time to admit the failure of the drug war, allow the police to focus on actual crimes, ease the mounting tensions in over-policed communities, and restore our individual liberty.

Drug War Defeats Taxpayers

The federal government spends about $30 billion a year on the war on drugs. Much of the spending is wasteful and counterproductive. This week, for example, an auditor’s report revealed how the drug bureaucracy flushed $86 million down the drain on an anti-drug aircraft that was never used.

The Washington Post described this Drug Enforcement Administration (DEA) and Department of Defense (DOD) boondoggle:

The plan was for DOD to modify a DEA plane to be used in counter-narcotics operations in a combat zone. … The Justice Department’s Office of the Inspector General (IG) determined “collectively, the DEA and DOD spent more than $86 million to purchase and modify a DEA aircraft with advanced surveillance equipment to conduct operations in the combat environment of Afghanistan, in what became known as the Global Discovery Program. We found that more than 7 years after the aircraft was purchased for the program, it remains inoperable, resting on jacks in Delaware, and has never flown in Afghanistan.”

The IG found that the “program has cost almost four times its original anticipated amount of $22 million.” Sadly, this sort of failure is par for the course when it comes to federal capital investments.  

Thank goodness for the IGs who uncover such waste, but what will come of these findings? Will anyone be fired? Will policymakers begin to rethink the drug war? Not yet it seems. When the Washington Post asked the DEA and DOD about the report, “the Pentagon did not reply and the DEA response was short boilerplate.”

For more on the government’s drug war, see Jeff Miron’s work here.

Supreme Court Rejects Nebraska & Oklahoma Marijuana Suit against Colorado

This morning the Supreme Court declined to take up a lawsuit by the states of Nebraska and Oklahoma challenging Colorado’s Amendment 64 measure that legalized the sale and use of marijuana. Not just medical marijuana, but recreational use as well.

We detailed the arguments involved in the case last year:

The Nebraska/Oklahoma argument: because the federal government, through the Controlled Substances Act, has banned marijuana, states are not allowed to contradict that ban by creating a regulatory framework for legalization.  Further, Colorado’s official regulation of recreational marijuana imposes a nuisance burden on surrounding states due to an alleged increase in drug trafficking.  While Nebraska and Oklahoma disclaim any intent to force Colorado to “re-criminalize” marijuana, the suit argues that Colorado’s official efforts to regulate the legal marijuana industry bring the state into conflict with federal and international drug laws.

Colorado’s response: there is no conflict.  Federal marijuana prohibition is still in effect, and the decision not to prioritize enforcement in states that legalize marijuana came from the federal government, not Colorado.  If Nebraska and Oklahoma object to the manner in which the federal government is discharging its law enforcement duties in Colorado, they should be suing the federal government.  Colorado’s regulation of the marijuana industry is within its prerogatives under the CSA. As to the nuisance claim, Colorado argues that mere policy differences between states that don’t directly injure the sovereignty of other states are not actionable nuisances.

The legal basis for the lawsuit has been questionable from the beginning, with legal commentators both challenging its merits and pointing out the irony in two of America’s “reddest” states taking a legal posture that overruns state sovereignty in favor of federal power.

And, of course, if prohibition states are concerned with the costs, they could always legalize and regulate marijuana themselves and spare their justice systems the immense costs of prohibition.  

Today’s result is not surprising, especially after the Obama Administration urged the court to decline the case, and the outcome fits with our analysis of the case’s prospects in 2014:

Will the Supreme Court accept this case for review? That’s impossible to predict. However, the constitutional argument being advanced by Nebraska and Oklahoma is weak and so would likely fail. Just because the federal government enacts a law against marijuana, it does not follow that all the states have to enact laws against marijuana. And just because the federal police (FBI and DEA) have grown accustomed to having state and local police conduct marijuana raids and arrests, it does not follow that the local authorities can’t stop doing that. So long as the local police are not arresting or threatening to arrest federal agents for trying to enforce the federal law, there is no “conflict.” Thus, the Supremacy Clause does not come into play.

Today’s action at the Supreme Court amounts to a big boost to the marijuana legalization movement, which continues to gather strength and momentum.

For those interested in a deep dive into the legal issues, check out the Cato Policy Analysis by Robert A. Mikos, On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans.

A Libertarian Argument for Bernie Sanders?

Will Wilkinson notes that there is a libertarian argument for Bernie Sanders. I’m not sure I buy the precise point Wilkinson is making. Sanders says he wants to make the United States more like Finland, Sweden, and Denmark. And those countries do indeed rank higher than the United States in the Cato Institute’s Human Freedom Index, compiled by my colleagues Ian Vásquez and Tanja Porčnik. But Sanders wants to emulate those countries in the ways they are less free than the United States (i.e., expanding government transfers), not in the ways they are more free (taxes and regulation). I think this powerful Sanders ad featuring Eric Garner’s daughter Erica is a much better libertarian argument for Sanders.

A Round-Up of President Obama’s Gun Control Proposals

This week, President Obama announced a package of proposals with the ostensible goal of stemming gun crime in America.  Unfortunately, however, the proposals represent a mishmash of ideas that lack a solid logical nexus to the problems they’re being offered to solve.  President Obama even acknowledged this incongruity himself when he admitted that the tragic shootings he emotionally invoked would not have been prevented by his recommendations.

But faced with a Congress that fundamentally disagrees with the president’s views on gun control, his authority to act is limited, and these proposals are proof.   The full “Executive Action” plan released by the White House can be found here, but I thought it would be useful to sum up the major points.

“Engaged in the Business” of Selling Firearms

One of the primary goals of the Obama Administration has been expanding the National Instant Criminal Background Check System (NICS).  The president and his gun-control allies have long called for universal checks in order to close the (non-existent) “gunshow loophole,” but Congress has thus far refused to go along (and for good reason).

Still, the president gave the impression during his remarks that he would use his executive authority to expand the background check system by reconsidering what it means for people to be “engaged in the business” of selling firearms.  For almost 50 years, the ATF regulations have interpreted this somewhat vague phrase by distinguishing those who sell guns commercially as a means of livelihood and those non-commercial sellers who transfer the odd gun every so often. Commercial sellers are required to perform background checks through the NICS system, while non-commercial private sellers are subject to a federal statute requiring that the transferor not know or have reason to know that the recipient of the weapon is prohibited from having it. Every transfer, in other words, is currently regulated by federal law.  The only difference is which law applies.

While President Obama’s announcement and the action plan released along with it suggested a move to broaden the category of transferors that are required to put customers through the NICS system, it’s not clear that there has been any change at all.

As Jonathan Adler writes at The Washington Post, there hasn’t been  a new ATF rule issued making any substantive change to the government’s interpretation of what it means to be “engaged in the business.”  The criteria President Obama and Attorney General Loretta Lynch gave for how they would be assessing whether someone is engaged in the business of selling firearms closely mirror language the ATF included in a recently issued “guidance document.” 

A Response to the New York Times Front Page Op-Ed “End The Gun Epidemic in America”

Yesterday, for the first time in 95 years, the New York Times published an op-ed on the front page, position A1, above the fold. The subject of that op-ed: “End the Gun Epidemic in America.” The piece is filled with tired arguments and moralistic fervor, and it even includes the most vacuous of all public policy arguments: We gotta do something.

The title itself is odd. By focusing on guns themselves as an “epidemic” rather than on the ever-decreasing rate of gun violence, the Times seems to confirm that its editorial staff has a problem with gun ownership per se, regardless of its effects on public safety. The placement of the piece on the front page also suggests that the Times prefers moralizing to simple fact-checking. 

But it is even worse than that. At a time when the Times could have placed a meaningful and trailblazing op-ed on the front page, perhaps calling for an end to the drug war and the thousands of gun deaths associated with it, they instead chose to advocate for an impossible public policy goal that will have little to no effect on the problem at hand.

The piece was clearly animated by the recent spate of disturbing mass shootings. First of all, because it apparently needs to be said again and again, focusing on mass shootings when discussing firearms policy is deeply problematic. Not only do victims of mass shootings constitute one percent or fewer of gun deaths (depending on how “mass shooting” is defined), but the perpetrators of mass shootings are the hardest to affect with public policy changes.

The Sentencing Reform and Corrections Act Is a Compromise, but a Pretty Good One

Last week a bipartisan group of senators, led by conservative Senate Judiciary Chairman Chuck Grassley (R-IA), announced the Sentencing Reform and Corrections Act of 2015.

The bill clearly represents a compromise between criminal justice reformers and more conservative law-and-order legislators, but the aggregate effect on the criminal justice system would be a substantial improvement.

On the positive side, the bill reduces several mandatory minimums relating to non-violent drug and firearm offenses (notably reducing the “three strikes” life sentence to 25 years), adds several safety valves to allow judges to adjust the penalties for certain non-violent offenses, and in many cases works retroactively to lower the excessive sentences of those already convicted of the relevant crimes.  Further, the bill would require the federal government to compile and publish a database of all federal crimes, their elements, and their potential penalties.  In addition, the bill would restrict the use of solitary confinement on juvenile offenders, create a new system for assessing the risk level of federal prisoners, among several other corrections changes.

On the other hand, the bill creates brand new federal mandatory minimum sentences for interstate domestic violence crimes that result in death and for providing prohibited support to terrorist organizations. It’s unclear why legislators feel that terrorism suspects are treated too leniently by the current sentencing structure, and taking discretion away from judges to impose sentences based on the particular facts of the cases before them is a step back.  Also on the negative side, the bill increases the mandatory minimum for felons caught in possession of a firearm from 10 to 15 years.  There are nearly 6 million convicted felons in the United States, a great many of them having been convicted of non-violent drug offenses. Once again, it is unclear why legislators, rather than judges and juries, should determine the proper punishment for a felon who is caught with a firearm, or why the current 10 year mandatory prison sentence is considered insufficient.