David Brooks's Flaccid Defense of Drug Prohibition

Most talking heads who are willing to go on record against drug legalization are deeply invested in preserving it--either to maintain their antiquated view of 'law and order,' or because they hold the singular belief that drugs are evil and invariably rot the human soul. Neither of these can possibly justify the punitive structure of our drug laws, let alone the United States' criminal justice leviathan, but such arguments, while misguided, at least approach the issue from principle.

Today, however, the New York Times's David Brooks finds a third way--a stunningly flaccid defense of the status quo. In my years of arguing against drug prohibition, I cannot recall a less-inspired, more ineffectual, and heartless piece of writing against my position. To say this column was phoned in insults the effort it takes to pick up a phone, find stored contact information, and press send.

Missing among the 803 words used to defend impotently mutter his position were: "criminal," "arrest," "incarceration," "jail," "prison," "misdemeanor," or "felony." (Note also that the piece is utterly devoid of conviction in any sense of the word.) To completely ignore the criminal implications of our current laws is even more dishonest than the mealy mouthed nonsense that usually comes from the ONDCP. The state of American criminal justice has even forced them, the federal government's anti-drug mouthpiece, to acknowledge that criminalization has had devastating unintended consequences and that, as a result, their tactics must change (if only rhetorically). Brooks, apparently, could not muster even that much honesty.

For shame.

bellum medicamenti delenda est

It's Going to Take More than a Memo to Fix the Drug War

Today, the DOJ released a memorandum (PDF, hereafter "Cole memo") sent to all US Attorneys' offices to "update [the DOJ's previous] guidance" on federal policy as it relates to liberalized state marijuana laws. A lot of drug reformers are hailing this memo as a great step forward for the government. I'm less convinced.

As I've written elsewhere, we've seen DOJ memos on this topic before. Indeed, the opening lines of the Cole memo directly reference the 2009 Ogden memo and its 2011 clarification. The latter,  also written by Cole, effectively gutted the spirit of the Ogden memo's message to de-prioritize state-law compliant medical marijuana distributors: "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."

Looking at the language of today's memo, there is no concrete change in policy by the DOJ. Yes, it is encouraging  that the Attorney General wants to de-emphasize regulated marijuana distribution as a prosecutorial priority, from a politically symbolic standpoint. But U.S. Attorneys don't primarily operate within the realm of politics--they prosecute people for the federal government. They have the widest discretion imaginable and literally countless federal laws with criminal and civil sanctions from which to choose to prosecute any person in their jurisdiction. Those prosecutions cost money to investigate and they have finite resources with which to work--though much larger than the resources of the would-be defendants facing federal prosecution.

Why the Feds Are Unlikely to Respect Washington and Colorado

The recent ballot initiatives that allow recreational cannabis use in Colorado and Washington have been welcomed by many folks as a sweeping change in American drug policy. To the extent that the initiatives represent a shift in popular conception of cannabis use, I join the general enthusiasm expressed by libertarians and a several on the Left. However, the Obama Administration has shown no substantive will to rein in the federal Drug War and until it does, these measures can only be viewed as partial victories in those two states. Moreover, many supportive commentators seem overly optimistic of what is likely to happen, perhaps based on misplaced assumptions of how the Drug War is fought.

Quoting Mark Kleiman, co-author of Marijuana Legalization: What Everyone Needs to Know, MoJo's Kevin Drum writes:

[Kleiman:]The federal government could shut down both of those experiments, if it were determined to do so....But it would make it impossible to learn anything useful from the Colorado and Washington experiments.

So why shouldn’t the federal government cut Colorado and Washington some slack? As long as those states prevent marijuana grown under their laws from crossing state lines and thereby subverting marijuana prohibition in the rest of the states, the Justice Department could step back and let the consequences of the new policies play themselves out. They might succeed, or they might fail. In either case, the rest of us could learn from their experience.

I doubt that either state can effectively prevent locally-grown marijuana from crossing state lines, but hell, they can't prevent it now either. So I'm with Mark: there's no need to announce any public change of policy, but Obama should tell DEA to lie low for a while and see how Colorado and Washington do. A controlled experiment like this is the best way of finding out the effect of full legalization of marijuana. Does it lead to higher consumption? Is it a gateway drug? Will it reduce consumption of alcohol? (emphasis mine)

There are three main problems with this excerpt. 

 

First, Professor Kleiman's question rests on the assumption that the federal government has any desire to see how the “experiments” play out. As I've noted before, the DEA effectively prohibits experimental research on cannabis in a controlled environment by anyone but the National Institute on Drug Abuse, a government agency. Cannabis, as explained in Kleiman's book, is the only illicit drug that is off-limits to non-governmental researchers that are open to positive value in cannabis use. There is no reason to believe that while the DEA won't allow literal experiments by scientists in a lab, they would be amenable to whole states being substituted as figurative laboratories. As a drug researcher, he knows this, but this sort of 'why not?' obscures the hurdles the government  institutes to hamper the “science” the ONDCP is so fond of citing to support their policies.

Second, Drum assumes that cannabis would need to cross state lines to violate the Interstate Commerce Clause of the Constitution to enter the federal jurisdiction—a perfectly reasonable belief. Unfortunately, this is not how the Supreme Court has ruled...twice. In Wickard v. Filburn (1942), the New Deal Court ruled that a farmer who set aside wheat for his own family's use could be regulated—read, “prohibited”—by the federal government of the Interstate Commerce Clause. More recently, in Gonzales v. Raich (2004), the Court ruled—with Republican-appointed Justices O'Connor, Rehnquist and Thomas dissenting—that cannabis grown by a terminally ill individual in accordance with state law for one's own medical use violated that very same Interstate Commerce Clause because by not participating in a (prohibited) interstate market, you affect demand. Not coincidentally, this tortured reading of the clause was cited in just nearly (if not) every single brief supporting the government in the Health Care Cases (2012). In short, much of the Left's economic and legal agenda rides on the federal government asserting power, via the Commerce Clause, into any aspect of our economic and personal lives. That Obama's Administration would find a new respect for federalism for cannabis is laughable...literally.

Third, and perhaps most important, it's not only the DEA that needs to stand-down. The U.S. Attorneys in every federal jurisdiction in the country have very wide latitude on whom they prosecute and for what offense. As you may recall, early in the Obama Administration, Attorney General Holder said publicly, backed-up by what is known as the “Ogden Memo,” that the DOJ would no longer consider raiding medical cannabis facilities that complied with state law a priority. Since then, the DOJ has increased raids on those same facilities, sometimes with the help of municipal authorities who don't agree with state law. If a public directive is so willfully ignored, there's little to suggest private encouragement would meet a different fate, particularly in the Eastern District of Washington.

Matt Yglesias, in a post that has a much more realistic view of the new regime, still errs a bit:

“The DEA obviously can't police low-level retailing, so if states and localities say it's legal it'll be a lot simpler in practice to get some pot.”

On the facts of the matter, Matt is correct. There will be no DEA patrols going through neighborhoods looking for cannabis. That said, it has been and continues to be very easy to “get some pot” all across America. Most cannabis users (and dealers, for that matter) simply aren't caught. The Drug War isn't a failure because you can still get some drugs under some circumstances—the failure lies, in part, in the fact drugs are still virtually ubiquitous despite draconian enforcement efforts. Further, the feds are not above using relatively low-level stings to get convictions—they know most offenders are going to plea out. Indeed, they don't even need to charge anyone at all to intimidate a low-level user ignorant of federal law into cooperation. Then, all they need is an inside-lead to a small group of people who have a common connection to drugs—say a commune or even a co-op—and prosecutors may attach the word “conspiracy” to add the cannabis together to reach federally chargable amounts. If any of those people have otherwise legal and unrelated guns on the premises, the charges really start to mount up. A small dispensary or a self-sustaining bunch of hippies can become a target of an ambitious U.S. Attorney—and it's all over. Though hypothetical, it's not at all unreasonable to think this sort of thing will happen—the track record against medical cannabis facilities proves that. I'm sure the DOJ has its stable of confidential informants ready and willing to work under new rules.

So I join Yglesias and Drum with a cautious optimism that this will make life better for cannabis users in Colorado and Washington. But we should not fail to mention that this will not deter federal law enforcement from prosecuting state-legal activity. That enforcement, though less harassing to the general public than state and municipal policing, will continue to ruin lives through incarceration and depriving the sick of relief. Indeed, it is hard to imagine the Administration that continues to deprive cancer and AIDS patients regular access to their medicine suddenly changing its tune now that Dave-O can load up his stash before a Phish show. If anything, I would expect heightened federal action against participants in the new regimes not long after they are put in place.

bellum medicamenti delenda est

Quote of the Day

Glenn Greenwald, discussing Obama hedging on his promise about federal medical cannabis raids:

The same person who directed the DOJ to shield torturers and illegal government eavesdroppers from criminal investigation, and who voted to retroactively immunize the nation’s largest telecom giants when they got caught enabling criminal spying on Americans, and whose DOJ has failed to indict a single Wall Street executive in connection with the 2008 financial crisis or mortgage fraud scandal, suddenly discovers the imperatives of The Rule of Law when it comes to those, in accordance with state law, providing medical marijuana to sick people with a prescription.

HT: Huffington Post

bellum medicamenti delenda est

In Latinam Veritas

Here's another great video from my former colleagues at Reason. The law enforcement guys are just too much.



One of the cops, professing an adolescent affinity for libertarianism, said 'As a younger man I used to say 'carpe diem'...Now, as a parent, I'm 'carpe kids.'

Indeed, cops are carpe'ing kids all over the place.

For those unfamiliar with the idiom or Latin, "carpe" means "seize."


bellum medicamenti delenda est (et carpe custodem fatuum )

50% of Americans Support Marijuana Legalization...And?

My facebook feed is exploding with glee and celebration that marijuana legalization finally enjoys the support of half of Americans. While I grant that the shift in popular opinion is encouraging, it's hardly reason for celebration.

I'm sorry to piss in everyone's corn flakes, but since when does popular opinion write policy or federal law? (Hell, when do the feds even respect it?) Sure, office holders have to run for reelection, but half of registered voters don't show up at the polls--I think it's safe to assume that the half that show up is not the exact same half that supports legalization--and drug policy isn't one of the issues that enjoys a significant bloc of single-issue voters like abortion or taxes.

Asking a question in abstract in a poll is one thing: getting people to actually understand an issue and be willing to fight against entrenched interests to see it through is entirely another. Take war for example: if you asked Americans if they prefer peace or war, I would bet my bank account peace wins.

How's that working out for you?

Again, this is a welcomed development in public opinion, but forgive me if I don't bust out the "special" brownie recipe just yet.

bellum medicamenti delenda est

Quote of the Day: When Words Have No Meaning

This requires a little background, so please bear with:

A friend sent me a link to this piece in Forbes about the Founders' "socialized medicine." Ezra Klein at the Washington Post picked it up. One of the MoJo journos I follow on twitter, Nick Baumann, linked to it saying: "Amazing."

Similar to what I commented at Forbes, I tweeted back to Baumann that the law in question dealt with enumerated powers, taxing power and the maintenance of a Navy, so that they fell well-within the proper legal understanding of the Necessary and Proper clause.

Baumann responded in three parts. The one that concerns me is the second one, but his other tweets are here and here. His second tweet, said (with edits for blog clarity):

Ultimately the whole constitutional debate misses the point. We're really arguing about what government should be allowed to do.

This way of thinking probably appeals to many people of various political stripes, but to constitutionalists, beyond the rhetorical subtlety that resembles the effect of a Pan Galactic Gargle Blaster, it is akin to saying, "We're not talking about speed limits, we're talking about how fast we can make the car go."

The Constitution is more than a parchment relic that represents the Founding principles of our country: it is the explicit grant and, to my point, the limitation of power given to our federal government. To say that we're talking about the scope of government without recognizing its proper, delineated limits is to miss the point entirely.

Legislating is not a grand philosophical exercise on tabula rasa to decide what idea sounds good right now. Unconstitutional laws usually seem like good ideas at the time -- to the pols who implement them, at any rate. Unchecked, the government regularly acts beyond its proper authority in everything from speech to imprisonment to wiretapping and torture. Just because the party in power has a policy preference doesn't make it legitimate or constitutional.

Given my affinity for team sports, I understand the "look the other way" mentality when your team commits a foul and gets away with it. But when every time Team A stretches the limits of Congress beyond it's constitutional bounds, they directly empower Team B to do the same on their own pet issues--essentially, that's how precedent works. How The winners, of course, are the teams--they get more power so everybody's happy. The losers, however, are the rest of us who get screwed by civil liberties violations or dying in excruciating pain.

I am not exaggerating. Ironically, the government's arguments for the individual mandate of PPACA, the health care bill,  rest primarily on Raich, the Supreme Court case declaring that medical marijuana grown in the home for personal use that is legal under state law is somehow regulable under the Interstate Commerce clause in the Constitution.

In a way, Attorneys General John Ashcroft and Alberto Gonzales--by way of unconstitutionally prohibiting state-sanctioned medical remedy for chronic pain--forcing Angel Raich and others like her to live (or die) (yes, die) in excruciating pain or leaving them unable to eat because of unabating nausea during chemotherapy could lead to the Dems' triumph in the PPACA litigation.

I wonder if Nancy Pelosi is going to send Alberto Gonzales a thank you note?

Faithful adherence to the text of the Constitution is the best protection for individual rights in the United States. Relying upon Supreme Court justices to be "smart enough" to reach a decision that jives with your policy preferences invites government overreach and the suffering of countless Americans. (see Korematsu) Given the sorry state of medical and insurance pricing, I would never say that government has no role in attempting to remedy our health care system. That said, one cannot responsibly discard the limits of the Constitution for subjectively "good"--or in the opinion of a lot of PPACA supporters, "better than nothing"--policy: torture seems like a "good idea" to some people. Constitutional restraints should mean something.

Years ago, three years after resigning from office, disgraced former president Richard Nixon gave an infamous interview to David Frost in which he said "When the president does it, it's not illegal." This caused an uproar--yet his logic is in lock step with those who wish not to concern themselves with the limits of government.

At what point did disregard for the law move from the profane to standard public policy?

bellum medicamenti delenda est

Consider Me 'Especially Unchastened'

I don't know who Charles Lane is or how he landed a job at the Post--and regardless of your personal thoughts on medical marijuana--this is just insipid nonsense:

The death of John Patrick Bedell, the 36-year-old man shot and killed by Pentagon police officers after he opened fire on them March 4, is a tragedy. It might have been avoided if Bedell had received timely and effective treatment for his obviously serious mental illness. The fact that he did not is a cause for soul-searching by all of us. Advocates of “medical marijuana” should be especially chastened.

I, for one, am not one bit chastened by my open advocacy for the legalization of drugs, especially medical cannabis. That Bedell's alleged bi-polar disorder went un- or mistreated has absolutely no bearing whatever that he self-medicated with marijuana. His family was apparently well aware of his mental health issues and he did not receive adequate treatment for it hardly makes medical cannabis blameworthy in this.

I have neither the time nor the inclination to delve into Bedell's medical and personal history, but even if we take Mr. Lane's story at face value--that Bedell sought treatment for insomnia in 2006 where his doctor may or may not have properly searched for the underlying cause for that insomnia--blaming a medicine is intellectually derelict.

If some doctor treated a broken leg with Vicodin and no other remedy--such as to properly set the broken bone--the fault lies not with the Vicodin, but with the inadequate treatment on behalf of the physician. Likewise, if a doctor doesn't properly diagnose a severe mental disorder that would be evident through routine examination, the doctor--and not the prescribed inadequate remedy--is to blame.

But Lane continues on this irresponsible crusade against medical cannabis:

Let’s debate legalizing marijuana as a recreational drug. If smoking pot makes terminally ill AIDS and cancer patients feel better, give it to them.

But, for the most part, “medical marijuana” is a pseudo-scientific myth, and a dangerous one at that.

Parsing this a bit: "if it makes terminally ill AIDS and cancer patients feel better" belies the reason many of those patience actually use cannabis: It isn't to escape the pain or feel kinda groovy--which, admittedly, is a side-effect--it allows many of them to eat without vomiting from the chemotherapy and other chemical cocktails they are taking. There are plenty of pain medicines that get you high--"opiates" or "opioids" are among the strongest and derived from the same plant you get opium and heroin. No one doubts their efficacy or propriety just because they--and alternate forms of the drug--are often used recreationally or abused.

Mr. Lane appears to be operating on a fallacious assumption: that because a medicine doesn't come with a stamp from Eli Lilly or Merck that it has no legitimate medicinal purpose. But medicines are just chemicals that interact with the body for an intended effect. If cannabis alleviates nausea and increases appetite in sick people--which it most certainly does--it has a legitimate medicinal effect and should therefore be considered a legitimate treatment. That some doctors may neglect their patients' underlying problems should not be put at the feet of medical cannabis availability--that is medical malpractice.

I mean to make no insinuations about Bedell's prescribing physician, particularly. I don't know what happened and I don't pretend to--although Mr. Lane seems perfectly fine with insinuating malpractice, but that's between him and his editors. Nevertheless, it is blatantly irresponsible of Mr. Lane to assign blame to the medical cannabis activist community because one man with severe mental issues smoked marijuana under medical pretenses for one month during an unknown period of time of already "excessive" marijuana use.

Bedell was a troubled man and it's a shame that whatever help he sought/was given was insufficient. It is certainly plausible that other people culpable in all of this, (i.e., how did a mentally disturbed man acquire two handguns?), but people who want to improve the life of very sick people are not among them.

You don't have to believe that medical cannabis is legitimate treatment to realize that this piece was half-assed scapegoating. Charles Lane and the Washington Post should be ashamed of themselves.