Tag: drug war

Senate Appropriations Committee Report Criticizes Barriers to Marijuana Research

Last week, the Senate Appropriations Committee filed a report along with the appropriations bill for the Departments of Labor, Health and Human Services, and Education. The report mostly consists of broad policy recommendations and guidance for how to spend the appropriated money. On page 108 of the 273 page report, however, is a discussion of “barriers to research,” specifically, how the “Committee is concerned that restrictions associated with Schedule 1 of the Controlled Substance Act effectively limit the amount and type of research that can be conducted on certain Schedule 1 drugs, especially marijuana or its component chemicals and certain synthetic drugs.”

While the report is not law, it signals a welcome change in attitude. For decades, marijuana’s Schedule 1 status has made it very difficult for researchers and scientists to investigate the plant’s medicinal and harmful properties. In order to research marijuana legally for clinical purposes, even if you’re in Colorado and could just purchase some, you must first get a license from the DEA, then get approval from the FDA, and finally get access to the one federally authorized marijuana supply, which is grown at the University of Mississippi and run by the National Institute on Drug Abuse (NIDA). On top of that, the federally sourced marijuana is often moldy and of unpredictable quality. And then there’s funding, which has often not been forthcoming to those trying to research the possible beneficial uses of cannabis.

Taken together, all of those steps make researching marijuana more difficult than researching almost any other drug on the planet, including other Schedule 1 substances such as heroin and LSD. As the Appropriations Committee report says, “At a time when we need as much information as possible about these drugs, we should be lowering regulatory and other barriers to conducting this research.” The report thus directs NIDA to “provide a short report on the barriers to research that result from the classification of drugs and compounds as Schedule 1 substances.”

The report comes at a time when Attorney General Jeff Sessions is blocking an Obama administration attempt to make marijuana more easily available to researchers. In August 2016, the DEA began accepting applications to become an authorized marijuana supplier. Twenty-six applications were submitted but, after the administration changed over, Attorney General Sessions stalled the approval process. In response, Senators Orrin Hatch (R-UT) and Kamala Harris (D-CA) sent a letter to Sessions asking him to stop blocking research. Hatch has also introduced the MEDS Act, which is a more permanent legislative fix to the problems around marijuana research.

Federal marijuana prohibition, at least as a Schedule 1 drug, is on its last legs. Nine states and the District of Columbia have legalized recreational cannabis and 30 states have legalized medical marijuana. No one is putting that genie back in the bottle. Federal law is so antiquated, in fact, that it makes no distinction between medical and recreational use. Schedule 1 drugs have no accepted medical uses, and the difficulty of carrying out medical research is one reason marijuana still has that status. The Senate Appropriations report is just another step toward the inevitable revision of federal marijuana laws.

Senator Hatch Thinks It’s High Time to Fix Barriers to Medical Marijuana Research; It Is

On Wednesday, Senator Orrin Hatch of Utah came out in support of medical marijuana and, in particular, removing federal barriers to medical marijuana research. This is a welcome development. Hatch, the longest serving senator in U.S. history, comes from a state where there is a strong aversion to intoxicating substances. Nevertheless, lawmakers in Utah recognized the medical potential of cannabis-derived medicines when they legalized cannabidiol oil (CBD) in 2014.

The MEDS Act, first introduced by Senator Brian Schatz of Hawaii, would greatly streamline the arduous process of research into marijuana’s medicinal applications. As I recently discussed at a Capitol Hill event, as well as in a recent article and on a recent Cato Daily Podcast, it is unnecessarily difficult to research marijuana. All research on controlled substances must satisfy various legal requirements in order to be authorized by the federal government. Marijuana researchers, however, must jump through the additional hoop of acquiring government-authorized marijuana from the only place where it is legally grown: the University of Mississippi. The government’s supply, however, is often inadequate to the needs of researchers, as well as being generally low quality. Nevertheless, the federal government has consistently argued that, under various UN treaties, it cannot authorize more than one source of legal, research-grade marijuana. This is despite the fact that there are many sources from which researchers can acquire nearly every other Schedule I drug.

Late in the Obama administration, the DEA opened up applications for more suppliers of research-grade marijuana. After taking office, Attorney General Sessions apparently shut down that program by simply not considering the 25 or so applications that were submitted. Among other things, the MEDS Act forbids the attorney general from establishing a quota for marijuana manufacturers and requires all applications to be acted on within 30 days.

Sessions has also asked Congress to repeal the Rohrbacher-Farr amendment, which prohibits the Department of Justice from using federal funds to interfere with states that authorize medical marijuana. In other words, while much of the country is moving on to legalizing marijuana for recreational use, Sessions is still trapped in the past and fighting against medical marijuana.

That’s not surprising, as much of our marijuana policies are trapped in the past. From the Marihuana [sic] Tax Act of 1937 to the Controlled Substances Act of 1970, our marijuana policy was largely created by people who believed Reefer Madness is a level-headed and reasonable portrayal of the effects of marijuana use. That’s like running the Smithsonian’s natural history museum based on insights gleaned from Raquel Welch’s 1,000,000 Years B.C. or The Land Before Time. I applaud Senator Hatch for pushing to update our prehistoric laws.

Militarization Makes Police More Violent

When Attorney General Jeff Sessions announced yesterday the Trump Administration’s repeal an Obama-era rule limiting the distribution of certain military equipment (such as tracked vehicles, camouflage uniforms, high-powered rifles, bayonets, and grenade launchers), he dismissed concerns about police militarization as “superficial.”  The evidence suggests otherwise: militarization makes police more violent.

Earlier this year, a study conducted by researchers from Harvard, Stanford, Cincinnati, and Gardner-Webb concluded that the Pentagon’s 1033 weapons transfer program made participating departments more likely to engage in deadly violence.  After receiving 1033 gear, departments were more likely to kill civilians as well as dogs.  The researchers included the number of dog killings by police (which, according to the Department of Justice, number around 10,000 a year) in order to control for possible variations in human behavior during the period of the study.

The study found:

1033 receipts are associated with both an increase in the number of observed police killings in a given year as well as the change in the number of police killings from year to year, controlling for a battery of possible confounding variables including county wealth, racial makeup, civilian drug use, and violent crime.

[…]

[D]ue to concerns of endogeneity, we re–estimate our regressions using an alternative dependent variable independent of the process by which LEAs request and receive military goods: the number of dogs killed by LEAs. We find 1033 receipts are associated with an increase in the number of civilian dogs killed by police. Combined, our analyses provide support for the argument that 1033 receipts lead to more LEA violence.

The researchers pointed to four areas of militarization that drive the increase in violence:

[W]e argue that increasing LEA access to military equipment will lead to higher levels of aggregate LEA violence. The effect occurs because the equipment leads to a culture of militarization over four dimensions: material; cultural; organizational; and operational. As militarization seeps into their cultures, LEAs rely more on violence to solve problems.

It turns out that having a hammer really does make everything look more like a nail.

But what if that increased violence is justified by increased police readiness to deal with emergency situations? 

When asked to justify the push for militarization, many law enforcement agencies are quick to point to terrorist attacks and mass murders as a justification for the equipment. Indeed we can imagine situations in which the police might legitimately need grenade launchers or .50 caliber rifles (though the thousands of bayonets local cops have taken from the federal government may be tougher to explain).

But such events are exceedingly rare, while history proves that the police deployment of militarized weapons and tactics will not be. Police routinely cite rare hypothetical emergencies to justify tactics and policies that end up becoming far more routine and abusive.

SWAT teams were originally designed to handle hostage situations and active shooters. Today they often function as hyper-violent warrant servers, as the number of SWAT raids has ballooned from hundreds per year to tens of thousands and responding to hostage situations has given way to serving search and drug warrants.

Police defend civil asset forfeiture with appeals to “taking the profit out” of terrorist organizations and drug cartels, but black market drug profits remains strong as thousands of regular Americans have their property taken without charge or trial.

Law enforcement agencies purchase military-grade surveillance devices such as Stingray cell phone trackers with terrorism grant money, and justify the outrageous secrecy that shrouds them on national security grounds, but they’re virtually never used for terrorism investigations, instead being deployed thousands of times for routine law enforcement investigations as an end-around the warrant requirement.

In other words, military weapons and tactics are inevitably used far more often in everyday policework than in the rare situations that supposedly justify them.

Contrary to Attorney General Sessions’ dismissal, the damage done by these government policies is not “superficial.” It’s not superficial when a SWAT team throws a flash grenade in a baby’s crib and disfigures the infant’s face, or when a family’s life is ruined by militarized police looking for tea leaves, or when protesters find themselves staring down the barrels of sniper rifles and accosted by masked, camo-wearing, rifle-toting police units.

Combined with President Trump’s recent pardon of Sheriff Joe Arpaio (who is no stranger to overly violent militarized raids and was convicted for repeatedly violating people’s rights in defiance of a court order), this move sends a strong message that police restraint and accountability are taking a back seat in this administration. 

Sessions Re-Escalates the Drug War

And so it begins:

In a move expected to swell federal prisons, Attorney General Jeff Sessions is scuttling an Obama administration policy to avoid charging nonviolent, less-serious drug offenders with long, mandatory-minimum sentences.

Mr. Sessions’s new guidelines revive a policy created under President George W. Bush that tasked federal prosecutors with charging “the most serious readily provable offense.”

Drug War critics have feared this moment ever since President Trump nominated Sessions; now it is a reality.  The effects will be no different than after past escalations: more crime and corruption, with little or no impact on drug use.

 

Endless War in Afghanistan and Colombia

Two front-page stories in the Washington Post today tell a depressing story:

President Trump’s most senior military and foreign policy advisers have proposed a major shift in strategy in Afghanistan that would effectively put the United States back on a war footing with the Taliban…more than 15 years after U.S. forces first arrived there.

Seventeen years and $10 billion after the U.S. government launched the counternarcotics and security package known as Plan Colombia, America’s closest drug-war ally is covered with more than 460,000 acres of coca. Colombian farmers have never grown so much, not even when Pablo Escobar ruled the drug trade. 

There are high school students about to register for the draft who have never known a United States not at war in Afghanistan and Iraq. And of course the policy of drug prohibition has now lasted more than a century, though the specific Colombian effort began only under President Clinton around 1998, getting underway in 2000.

I wrote an op-ed, “Let’s Quit the Drug War,” in the New York Times in 1988. Cato scholars and authors have been writing about the seemingly endless war(s) in the Middle East for years now. Maybe it’s time for policymakers to start considering whether endless war is a sign of policy failure.

And maybe one day, a generation from now, our textbooks will not tell our children, We have always been at war with Eastasia.

Drug War Skeptic Beto O’Rourke Announces Senate Bid

Since his election to Congress in 2012, Beto O’Rourke (D-TX) has been one of the federal legislature’s most outspoken critics of the failed drug war. Rep. O’Rourke is in the news again this week following his announcement that he plans to run against sitting Senator Ted Cruz in 2018.

In November of 2011, O’Rourke spoke at Cato’s “Ending the Global War on Drugs” conference regarding his experiences as an El Paso native and the costs of drug prohibition on both sides of the border.

Rep. O’Rourke also spoke with Cato regarding his support for immigration reform in March of last year.

Clarence Thomas Is Skeptical of Civil Asset Forfeiture

Justice Clarence Thomas yesterday signalled that the abusive practice of civil asset forfeiture is ripe for expanded constitutional scrutiny.

The case is Lisa Olivia Leonard v. Texas.  James Leonard (the petitioner’s son) was stopped by police for a traffic infraction in 2013 “along a known drug corridor.”  Police searched Mr. Leonard’s vehicle and discovered a safe containing $201,100 and the bill of sale for a home. Arguing that the money was either proceeds from a drug sale or going to be used in such a sale, the state initiated forfeiture proceedings and took the money.  The safe actually belonged to James’ mother Lisa, who brought suit to protect her property from the government seizure.

The Supreme Court denied certiorari for procedural reasons, but Justice Thomas had some harsh words for civil forfeiture anyway, and suggested that it’s time for the Supreme Court to take another look at the practice:

Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.

Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable. And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.

This system - where police can seize property with limited judicial oversight and retain it for their own use - has led to egregious and well-chronicled abuses…

Justice Thomas also noted the disparate impact these types of abuses have on the poorest and most vulnerable communities:

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.  Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

The opinion goes on to explain that while the court has historically upheld the constitutionality of civil forfeiture, the modern practice of forfeiture has strayed far from its narrow historical use and purpose:

I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

First, historical forfeiture laws were narrower in most respects than modern ones. Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of the United States courts. These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods).

Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court’s early cases suggested that forfeiture actions were in the nature of criminal proceedings…

Lastly, while agreeing with the Court’s refusal to hear the case for procedural reasons, Justice Thomas nonetheless expressed his interest in taking another look at civil forfeiture:

Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.

In his opinion, Justice Thomas refers to the Institute for Justice’s Policing for Profit survey of forfeiture laws around the country, and also to Sarah Stillman’s expose Taken, documenting several instances of forfeiture abuse. Both of those sources are worth reading for a better idea of just how bad the incentives of civil forfeiture are and the abuses that have resulted.  

It’s heartening to have a Supreme Court Justice so squarely acknowledge and raise questions about a predatory government practice that has proceeded unchecked for so long.

One of the most common questions I receive when I talk about civil asset forfeiture is “why does the Supreme Court allow this?” My answer has always been “because these laws predate the country and the court has never seen fit to re-examine them.”  

This opinion is a clear signal that at least one member of the Supreme Court is ready to take a fresh and skeptical look.

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