Drug WarRant

One interesting reaction to Holder’s comments today came from a certain former Attorney General… Former AG Mukasey: Holder Has Wrong Approach on Mandatory Sentences

“Mandatory minimums impose a certain rigidity in sentencing that’s not appropriate in the individual case,” Mukasey said Monday on CNN’s “The Lead with Jake Tapper.” […]

Mukasey said he would be happy to work with Holder to find proper ways to change mandatory sentencing laws.

Oh, really?

Anybody else remember Michael Mukasey? Think back, …way back, to early 2008.

We had just done a bit of sentencing reform, and were releasing some prisoners who had been given ridiculously long sentences under the 100:1 crack/cocaine disparity (now down to only a merely ridiculous 18:1).

Here was Mukasey then:

Speaking before the U.S. Conference of Mayors, Attorney General Michael B. Mukasey said that “a sudden influx of criminals from federal prison into your communities could lead to a surge in new victims as a tragic, but predictable, result.”

Somebody needs to ask him how that prediction turned out.

Should Marijuana Be Rescheduled? — Kevin Sabet, sounding really desparate to remain relevant given everything going on.

What does Holder’s speech really mean? Who knows? It certainly had some attractive rhetoric, but at that level, you can afford good speechwriters, so your rhetoric should seem like ambrosia. Actual action is yet to happen.

If I was to guess, I would say that Holder’s speech is the equivalent of throwing the door wide open, while his actions will be merely opening the door another crack. But that’s OK – we’re used to that and we’ll get another foot in that crack and keep that door open just a little more. We’ll never back down so there’s only one way for that door to go.

Why a Federal Judge Says the NYPD’s Stop-and-Frisk Program is Unconstitutional by Jacob Sullum.

So much to talk about.

– Sanjay Gupta on CNN

– Attorney General vows to end the war on drugs, or do something about sentencing, or something.

– DEA in the crossfire

– Kevin Sabet apparently lies

– Plan Mexico falling apart

– Changes in the laws in Uruguay, Illinois, and other exotic locations

That’s the phrase coined by Hanni Fakhoury that’s used in this Salon article about the DEA’s use of NSA data and subsequent fabrication of evidence trails. It’s an apt analogy, although the phrase sounds vaguely oxymoronic when referring to the DEA.

The article notes that it’s tough to get the general population enraged about this (though they should be). However, I’m at least happy to see that it’s getting some traction in the media, and truly hope that it continues to blow up in the face of the DEA. What’s likely to make a difference is all the defense attorneys who are now busily preparing their new appeals.

One of the things that is really telling in this story is that the DEA bizarrely didn’t seem to think that there was really anything wrong in what they were doing. I think they got blindsided by the reaction.

It’s similar to the completely clueless statement by Michele Leonhart when talking about the perjury of supersnitch Andrew Chambers.

“The only criticism (of Chambers) I’ve ever heard is what defense attorneys will characterize as perjury or a lie on the stand.”

They have gotten so used to considering themselves above the law, that they actually forgot that’s where they went.

Lying it’s just what you do to get the job done. Re-creating an evidence trail from scratch is just part of the standard red tape that you go through to complete a drug arrest.

They’re not even consciously thinking about the fact that they’re breaking the law violating the Constitution.

It makes me wonder what it’s like when DEA personnel go home…

“Hi, honey! Great to be home. I’m exhausted. I’ve been having sex all weekend.”

“Wait — you cheated on me?”

“Oh, no, it wasn’t cheating. I would never cheat on you. It was part of my job. Don’t worry — my boss said it was perfectly fine and that it doesn’t count as cheating when we’re on the case. Fighting this drug war is a tough job, and we’ve got to be willing to do whatever it takes. So other rules don’t apply. You understand, don’t you, honey?”

“Sure thing, sweetie. Till death do us part…”

With Gil Kerlikowske scheduled to move to customs and borders, CelebStoner asked Tommy Chong about the drug czar position, ’cause face it – Tommy’s way more entertaining than Gil.

Tommy Chong: If I Were Drug Czar

The first thing I would do if I were Drug Czar is empty the jails of people doing time for drug-related offenses.

I would then turn Detroit into the largest grow room operation in the world. Every empty room in Detroit would be related to growing marijuana.

I would legalize the growing and production of hemp throughout the world.

I would open rehab facilities that offered marijuana as a gateway drug to the sober world.

And I would not tax growers. I would only tax marijuana from the retail side in the form of a business tax and then only a very small tax.

I would legalize (with doctor’s supervision) all drugs, including heroin, cocaine and meth.

Of course, there isn’t a single thing on that list that he would have the actual power to do as drug czar (and I’m sure he knows that – this interview was for fun and to make points). He might be able to provide funding for the rehab facilities, but that’s about it.

In fact, the drug czar doesn’t seem to have all that much power to actually make changes independently.

“ONDCP advises the President on drug-control issues, coordinates drug-control activities and related funding across the Federal government, and produces the annual National Drug Control Strategy…”

Where the drug czar’s power comes is in influencing policy and in being the voice of policy.

If I were drug czar (no, thanks), I would probably get on as much media as possible to talk about the failure of drug policy as it exists, to recommend that the states be given the opportunity to try different policies, and to lobby Congress to help make that happen. I would also use whatever leverage I had in the administration to advise reining in the abuses perpetrated by the DEA and other federal agencies. And, I’d recommend a budget where interdiction and domestic enforcement were dramaticaly slashed (I’d be overruled, of course, but I might get some coverage).

What would you do?

…

Speculating about what you could actually do as the drug czar isn’t nearly as much fun as unfettered speculation. For a lighter approach, read my piece If I were Contrarian-King of the United States, which I wrote some years ago, but still holds up pretty well today.

For those of you who have been asleep the past couple of days, one of the big pieces of news is that television doctor Sanjay Gupta has publicly apologized for his previous position on marijuana (video below) and now has come out with a strong statement that we have been misled and marijuana is, in fact, a legitimate medicine.

Some of you may say “Why should we care?” After all, we already know this stuff and we don’t need Sanjay’s validation. Sure, it’s nice that he actually dug into it and learned some more and was willing to have his preconceptions challenged, but how does that change anything really?

The answer is that there are millions of people in this country who never do their own research on drug policy, and whose entire perception of the world is from television “news.” When their television doctor tells them that he was wrong and he’s now discovered the facts – that marijuana is a good thing – well, that’s going to stick with them.

It’s another element in the tipping point.

Sanjay Gupta has put together a documentary on the subject called “Weed,” which airs Sunday at 8 pm Eastern, 7 pm Central on CNN. In this article, he talks about the documentary and his conversion. It sounds pretty interesting – hope it gets a lot of viewers.

Here’s the video of him apologizing on TV.

http://www.youtube.com/watch?v=1Tqg2y3yYR0&sns=em

This is just a little observation regarding how quick we are to rush to the assumption that a government ban is an appropriate solution to any problem.

I was reading a non-drug-war-related piece over at The Reality-Based Community (about cell phone use while driving and a train accident somewhere) and had a comment exchange that I found telling in this regard.

Pete Guither says:

I find it interesting that you seem to combine two very separate thoughts into one in this post. The first thought is that cell phone use is a dangerous distraction, don’t do it (just turn it off). The second thought is that legislation is needed. Yet no attempt is made to connect the two.

This is just an observation, not necessarily a criticism — after all, you may have independently considered the evidence and concluded that legislation is the proper course and just felt that this wasn’t the post to share that information. It seems to me that a proper intellectual analysis requires that we establish 1. that legislation would solve or significantly reduce the problem, and 2. that legislation is the only, or at least the best, solution to do so. Who knows? Maybe education or peer pressure would be more effective. Or maybe legislation is actually the best approach.

This is such a common thing we do. We have a strong tendency to operate on the horribly flawed “this is bad: therefore, legislation” syllogism. It’s given us decades of drug war, endless fights over abortion and all sorts of other societal problems. And legislation we do pass oftentimes ends up failing to fix, or even exacerbates, the problem.

It would be nice if we took more time to first ask the question, “Is this problem best served by legislation?”

Commenter J. Michael Neal says:

How else do you propose to ban cell phone use while driving?

Wow.

I clarified:

In case it isn’t clear, the actual question is: “How do you propose to have people stop using cell phones while driving?” And no, that is not the same question.

J. Michael Neal says:

We disagree on your last sentence. Absent a ban you might reduce people using cell phones while driving but you will not stop them. If that’s what you want to do, a ban is your only option.

Yes, he actually believed that stopping cell phone use and banning cell phone use were the same thing!

Now, on the other hand, the post’s author, James Wimberley, at least realized that “ban” is not equal to “stop,” but justifies going into automatic ban mode anyway.

James Wimberley says:

The costs of a ban are very low, and the conduct stigmatized is clearly dangerous to third parties. A low success rate would still meet a cost-benefit test. I think the onus of proof is on the opponents of legal bans. [emphasis added]

Onus of proof on the opponents. That’s a concept! A pretty ugly one. And what if it turned out that some approach other than banning would have a higher success rate? That would throw your cost-benefit test out the window.

You don’t have to be a libertarian, or otherwise opposed to large government, to desire proper analysis of a problem and its potential solutions before rushing into a ban.

Yet the impulse in the general population is to ban, whether they are on the left or the right.

Those of us involved in drug policy reform have seen so clearly first-hand the unmitigated disasters that can come from the rush to ban, and so are less susceptible, perhaps, to that impulse. But we need to help others see that banning is not equal to stopping the problem, or we’ll have a hard time convincing those who believe drugs are a problem that legalization is actually better.

Marijuana stops child’s severe seizures

Wow. Powerful story.

And this part really hit home:

“I literally see Charlotte’s brain making connections that haven’t been made in years,” Matt said. “My thought now is, why were we the ones that had to go out and find this cure? This natural cure? How come a doctor didn’t know about this? How come they didn’t make me aware of this?”

It’s good to see the DEA/NSA story getting some traction. It’ll help some more people wake up to the systemic abuse of the law that is going on regularly in the name of the drug war.

The notion of “parallel construction” is completely foreign to the core principles of our justice system. And yet, the notion is so natural to those in the drug war that the DEA officials who provided info for the Reuters story seemed oblivious to the magnitude of thier admissions.

The ACLU comments:

“The DEA is violating our fundamental right to a fair trial,” said Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project. “When someone is accused of a crime, the Constitution guarantees the right to examine the government’s evidence, including its sources, and confront the witnesses against them. Our due process rights are at risk when our federal government hides and distorts the sources of evidence used as the basis for arrests and prosecutions.”

“When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review,” said Jameel Jaffer, ACLU deputy legal director. “Effectively, these intelligence programs are placed beyond the reach of the Constitution, where they develop and expand without any court ever weighing in on their lawfulness. This is inappropriate, dangerous, and contrary to the rule of law.”

Of course, we also don’t know how often this use of intelligence information simply ended up as a cash grab for law enforcement without it even reaching the arrest stage.

In a nice moment of coincidence, the New Yorker published an extensive article about the abuse of civil asset forfeiture: Taken. The whole article is worth reading, even though it’s pretty much the same material that Radley Balko has covered already. It’ll hopefully get more people upset, about the abuse of our judicial system.

Ilya Somin comments on forfeiture:

Ultimately, however, the best solution is to abolish civil asset forfeiture completely. If a person is convicted of a crime, he or she can be duly punished, including in some cases with financial penalties. Stolen or illegally acquired property can then be returned to its rightful owners. But there is no good reason for the authorities to be able to seize property merely because they suspect it might have been used in some illegal transaction. Moreover, once such a system is established, it turns out to be very difficult to prevent it from becoming highly abusive. As a practical matter, most of the people victimized by asset forfeiture abuse are poor, lacking in political influence, and unable to bear the expense of prolonged litigation. For these reasons, there is little political pressure to prevent the sorts of abuses documented in Stillman’s article and elsewhere. And there is similarly little incentive for higher officials to monitor police and prosecutors’ use of asset forfeiture to curb this kind of behavior. A categorical ban on civil asset forfeiture would be easier to administer than piecemeal reforms, and therefore more likely to succeed.

Other Agencies Clamor for Data N.S.A. Compiles

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 intelligence community has been agitated in recent years for the opposite reason: frustrated officials outside the security agency say the spy tools are not used widely enough.

“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”

“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”

Smaller intelligence units within the Drug Enforcement Administration, the Secret Service, the Pentagon and the Department of Homeland Security have sometimes been given access to the security agency’s surveillance tools for particular cases, intelligence officials say. […]

At the drug agency, for example, officials complained that they were blocked from using the security agency’s surveillance tools for several drug-trafficking cases in Latin America, which they said might be connected to financing terrorist groups in the Middle East and elsewhere.

Of course, the DEA has never had any problems coming up with a drug-terror connection whether one exists or not.

So… The DEA is upset that the NSA won’t share all of its illegally obtained information with them. Yet what happens when we share something we got illegally?

Note: I would take the totality of this story in the New York Times with a major grain of salt. The complaining by other agencies that they’re not getting enough NSA data could be a ruse to try to show that at least the NSA data isn’t getting used by everyone, as evidenced by this statement from a former senior intelligence officer.

As furious as the public criticism of the security agency’s programs has been in the two months since Mr. Snowden’s disclosures, “it could have been much, much worse, if we had let these other agencies loose and we had real abuses,” Mr. Edgar said. “That was the nightmare scenario we were worried about, and that hasn’t happened.”

Yeah, right. Given everything else that has come to light, why should we believe that? After all, if a programmer at a government contractor like Booz-Allen had relatively unfettered access, how can we be sure that the DEA didn’t?

Update: And sure enough… we now have this:

Exclusive: U.S. directs agents to cover up program used to investigate Americans

(Reuters) – A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges. […]

A former federal agent in the northeastern United States who received such tips from SOD described the process. “You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.”

And despite Reuter’s blaring headline, those in the know will tell you that this isn’t in any way new, but has been going on for a long time.