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US, International Drug Warriors Attack State Marijuana Legalization [FEATURE]

As the nation awaits the Obama administration's response to marijuana legalization votes in Colorado and Washington, Tuesday saw a two-pronged attack on the whole notion. On the one hand, former drug czars and Drug Enforcement Administration (DEA) heads lined up to urge the administration to act now to strangle legalization in its crib, while on the other, the International Narcotics Control Board (INCB) warned that allowing states to legalize would violate international drug control treaties.

"S.O.S." web site celebrates defeat of Hawaii marijuana legalization bill
Legalization supporters rejected the attacks, comparing the ex-DEA chiefs to Prohibition agents seeking to justify their efforts and dismissing the global anti-drug bureaucrats as largely irrelevant.

In a joint letter under the auspices of the anti-drug reform group Save Our Society From Drugs, eight former heads of the DEA and four former heads of the Office of National Drug Control Policy urged the federal government to act now to nullify the votes in Colorado and Washington. The same group similarly called on Attorney General Holder to speak out against those state initiatives last September, but he failed to do so.

Holder, who said last week his decision will be "coming soon," was scheduled to appear before the Senate Judiciary Committee Wednesday. The retired drug fighters urged senators to press him on the issue.

Holder's actual appearance, though, was anticlimactic. He told the committee only that he hoped, again, to be able to announce a policy "relatively soon."

That prompted committee chair Sen. Patrick Leahy (D-VT) to hand out some advice of his own. "If you're going to be -- because of budget cuts -- prioritizing matters, I would suggest there are more serious things than minor possession of marijuana, but it's a personal view," Leahy told Holder, adding that more states were sure to follow in Colorado's and Montana's footsteps.

That's not what the drug warriors were telling Holder.

"We, the undersigned, strongly support the continued enforcement of federal law prohibiting the cultivation, distribution, sale, possession, and use of marijuana -- a dangerous and addictive drug which already has severe harmful effects on American society," they wrote. "We also respectfully request your committee at its March 6 hearing to encourage Attorney General Eric Holder to adhere to long-standing federal law and policy in this regard, and to vigorously enforce the Controlled Substances Act (CSA)."

The signatories suggested that senators ask Holder is he still believed in the Supremacy Clause when it comes to conflicts between state and federal law and why he isn't enforcing the Controlled Substances Act in Colorado and Washington. They also suggested asking him "what is being done about our international drug treaty obligations," noting that they require the federal government to enforce marijuana prohibition.

And speaking of international drug treaty obligations, the INCB, which is charged with ensuring that countries live up to them, also criticized marijuana legalization as it issued its 2012 Annual Report.

Noting the popular votes in favor of legalization in Colorado and Washington, INCB reiterated that "the legalization of cannabis for non-medical and non-scientific purposes would be in contravention to the provisions of the 1961 Convention as amended by the 1972 Protocol."

The INCB also took a shot at medical marijuana, noting that "the control requirements that have been adopted in the 17 states in question and in the District of Columbia under the 'medical' cannabis schemes fall short of the requirements set forth in articles 23 and 28 of the 1961 Convention as amended by the 1972 Protocol."

And, also expressing concerns about decriminalization moves, INCB "requests that the government of the United States take effective measures to ensure the implementation of all control measures for cannabis plants and cannabis, as required under the 1961 Convention, in all states and territories falling within its legislative authority."

The two-pronged attack excited a quick response from drug reform groups and at least one Democratic congressman.

"As Supreme Court Justice Louis Brandeis once observed, states are the laboratories of democracy. The federal government should concentrate on shutting down meth labs -- not the laboratories of democracy. The people of Colorado and Washington voted to implement these laws, and the federal government should respect their will. States have a right to determine their own possession laws," said Rep. Steven Cohen (D-TN) in a Tuesday statement.

"If the people of Colorado and Washington want to legalize small amounts of marijuana, that is their decision. It is arrogant of these former DEA chiefs to encourage the President to nullify these laws," Cohen continued. "The fact that these former DEA chiefs are so focused on marijuana possession is why we have lost the war on drugs. The war should be on heroin, meth, crack, cocaine and unauthorized use of prescription drugs -- not marijuana possession."

[Ed: We don't think war on those other drugs is a good thing either -- to the extent at least that "war" means arresting and incarcerating people. Not that we want underground meth labs all over the place. But meth is going to be supplied by someone in some way, despite enforcement efforts, so long as there are people who want to use it. We're losing the "war on drugs" because it is prohibition based, and prohibition doesn't work. The government's focus on marijuana enforcement only highlights the sheer senseless of it all. -DB]

"The former DEA chiefs' statement can best be seen as a self-interested plea to validate the costly and failed policies they championed but that Americans are now rejecting at the ballot box," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "They obviously find it hard to admit that -- at least with respect to marijuana -- their legacy will be much the same as a previous generation of agents who once worked for the federal Bureau of Prohibition enforcing the nation’s alcohol prohibition laws."

"The war on drugs has been a failure by every measure," said Neill Franklin, the executive director of Law Enforcement Against Prohibition. "After more than a trillion dollars spent over the last forty years, we have nothing to show for it except more violence on our streets, the fracturing of community trust in the police and overflowing prison populations. Still, use has not significantly declined. It's unfortunate the DEA heads can't admit this failure. As someone who gave three decades of his life fighting this 'war' on the ground, I can tell you that from that perspective, this policy was dead on arrival."

"It is not surprising that these ex-heads of the marijuana prohibition industry are taking action to maintain the policies that kept them and their colleagues in business for so long," said Mason Tvert, communications director for the Marijuana Policy Project and an official proponent of the Colorado initiative. "Their desire to keep marijuana sales in an underground market favors the drug cartels, whereas the laws approved in Colorado and Washington favor legitimate, tax-paying businesses. Marijuana prohibition has failed, and voters are ready to move on and adopt a more sensible approach. It's time for these former marijuana prohibitionists to move on too."

As for INCB, it essentially plays the role of toothless nag, said Eric Sterling, the executive director of the Criminal Justice Policy Foundation. It is mandated by the United Nations to report on adherence to global anti-drug treaties, but has only the power to hector, not to enforce.

"The INCB has no power other than to issue reports," he said. "It can't issue indictments, it can't call for a resolution in some other body to condemn a nation. It's strictly hortatory, and for many years, it's bordered on the preposterous in the condemnations it's made. The INCB thinks that nations ought to suppress music or motion pictures or books that 'send the wrong message' about drugs. In that sense, it is completely out of step with Western Civilization. They would reject art and music and probably science if it were contrary to their abstinence focus on drug use."

Not only is the INCB relatively powerless, it is largely irrelevant, Sterling said.

"In our American drug policy, they have only negligible influence," he said. "I don't think that in any state capital, the INCB's comments carry any political weight. I don't think in most journals of opinion, their observations are important. Whether their comments have significance in other countries would be harder for me to assess. I tend to believe they are not that important," he said.

"Most people don't even know what it is or what its power is or what it said, including most members of Congress and their staffs," Sterling continued. "The INCB is obscure. Maybe some former DEA administrators might want to refer to them in a press release, but nobody else is going to pay any attention."

The forces of opposition to marijuana legalization are lining up to put pressure on the Obama administration. It shouldn't listen to them, said DPA's Nadelmann.

"President Obama and Attorney General Holder really need to allow Washington and Colorado officials to implement the new laws in ways that protect public safety and health while respecting the will of those states’ voters," he said. "At this point, insisting on blind obeisance to strict interpretation of federal drug laws will only serve the interests of criminals who want to keep this industry underground and law enforcement officials who want to justify their legacy."

And the wait for clarity from Washington continues...

Legalization Foes Come Out Swinging Against Marijuana [FEATURE]

Two states have already legalized marijuana, bills to do the same have been or will be filed in a half-dozen more this year, a federal bill to repeal pot prohibition has also been introduced, legalization initiatives aimed at 2014 or 2016 are already being plotted, and public opinion polls are showing support for marijuana legalization edging into majority territory. The opposition is started to get worried.

Anti-prohibitionists aren't the only ones targeting Congress.
And it is moving to blunt the legalization trend. While official Washington has so far remained largely silent in the face of the fact of legalization in two states and the threat of it in more in the near future, special interests threatened by the end of marijuana prohibition and self-appointed anti-pot crusaders are starting to stage a pushback. While it is tempting to dismiss the crusaders as being on the wrong side of history, reform advocates are wary of their advocacy and say the good guys need to step up their game.

Project SAM (Smart About Marijuana), the recently formed brainchild of former Congressman-with-addiction-issues Patrick Kennedy (D-RI) and former Office of National Drug Control Policy staffer Kevin Sabet, last week authored a letter to US Attorney General Eric Holder calling on him to stand firm against marijuana legalization.

Its co-signers include a veritable cavalcade of beneficiaries of government drug spending, among them the federally-funded Community Anti-Drug Coalitions of America, the National Narcotics Officers Association Coalition, and the National Association of Drug Court Professionals (NADCP). Other signers are a Colorado pediatric physicians' group and Smart Colorado, "a broad-based alliance of concerned public health officials," which is funded almost entirely by Mel and Betty Sembler, long-time drug warriors notorious for having operated abusive treatment programs for teens in the 1990s.

"We are writing to you to enforce the Controlled Substances Act (CSA) in Colorado and Washington with respect to recent ballot measures legalizing marijuana," wrote Kennedy and the gang. "These state laws would severely threaten public health and safety goals, expressly contradict the President’s National Drug Control Strategy, make it impossible to comply with federal regulations, and present an obstacle to the achievement of Congress' discernible objectives to prohibit the use, sale, manufacture, and distribution of marijuana. We urge you to restate marijuana is illegal."

The marijuana legalization laws in Washington and Colorado "violate both the intent of Congress in enacting the CSA and the letter of the law," the letter continued. "The Department of Justice and Congress have determined through the CSA that marijuana is a Schedule I drug and as such growing, distributing, and possessing marijuana in any capacity, save a federal research program, is in 'violation of federal law regardless of state laws permitting such activities.'"

Project SAM advocates prevention and drug treatment for marijuana users and wants to avoid stigmatizing them, but still wants marijuana to be illegal.

"There is an arrest and prosecution industry in this country that depends on marijuana remaining illegal to maintain their budgets and stay in business," retorted Mason Tvert, one of the key organizers of the Colorado initiative and now a spokesman for the Marijuana Policy Project. "As Project SAM has said, we need to be focusing our attention on providing treatment to those who need it, but unfortunately their stance on marijuana would waste treatment resources on people who don’t. These groups talk about teens using marijuana, and if their true goal was preventing teen marijuana use, we would gladly join them, but their real goal is to keep marijuana illegal, and that doesn't benefit teens or anyone else… but themselves."

For one of the Project SAM signatories, signing on to somebody else's letter wasn't enough. The NADCP Monday released its own position statement against legalizing marijuana, saying "every dangerous and addictive drug was once believed to be safe and medicinal."

NADCP "unequivocally stands against the legalization of marijuana and the use of smoked marijuana as medicine," the group said. Society need not fall for the "false choice" of legalization or incarceration when it can find a third way through the "curative effects of drug courts and dozens of other treatment programs."

"Drug court is the equivalent of purgatory in the Catholic theology," commented Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. "If you comport with their demands and accept your moral turpitude, they may let you ascend. But if you fail the drug test or don't show proper deference to the system, you will not only be stuck in purgatory, but may pushed down into the bowels of hell," the veteran activist said.

"We get calls all the time from people facing this Hobbesian choice of drug courts or traditional courts, and we have to warn them that, unlike the early 1990s, when they looked like a good alternative to incarceration, we have seen so many cases where individuals face far worse penalties, fines, and incarceration in drug court than if they took the worst plea bargain in regular court. Drug court pleaders belong in the category of special interests who clearly benefit -- if not exist wholly -- because of this government prohibition."

Reformers should not take this new opposition lightly, some reformers say.

"While these groups are completely dependent on federal government anti-drug money and can be discounted as fighting to protect their own rice bowls, it would be a naïve and arrogant mistake to ignore them," said Eric Sterling, executive director of the Criminal Justice Policy Foundation. "Kevin Sabet is an energetic guy, and these groups have lots of taxpayer money to spend on this. They will mobilize in other states, and they have the ability to get the ear of the attorney general and others."

Similarly, said Sterling, "to a lay person, the NADCP statement is an impressive statement," even though policy and other experts may see their claims as overstated.

"People in reform should be concerned about a reaction," he said. "It is certain that these documents represent products being developed by a concerted movement to turn back the tide. The opposition is first out of the box on this," Sterling warned as he wondered aloud what the reform movement is doing to counter the counter-revolution.

"I was told in November that folks at Justice were completely blindsided by the victories in Colorado and Washington," he said. "What written correspondence to Holder can we point to about what they should do? I know there have been some informal conversations between state officials and the attorney general, but there is nothing in writing that both lays out a plea and a case for accommodating state laws."

That reflects a broader problem of lack of aggressiveness within the reform movement, he said.

"On one level, the reform movement is not being proactive," Sterling argued. "It's one thing to get an initiative passed, and we've demonstrated a high degree of competence at that, but we haven't seen that same sort of competence when it comes to Washington. It's a much more complex and tricky problem to mobilize a majority of the House or Senate, and there has not been a well-organized effort on a sustained basis to get Congress to weigh in. It's amazing to me that so far after 1996, no senator has ever introduced a bill to allow their state to have a medical marijuana program free from federal interference. There are now 36 senators from 18 medical marijuana states, and not one of them has ever introduced a bill. That's an amazing failure to organize by our movement."

The movement -- especially that part of it with deep pockets -- needs to step up, Sterling said.

"I'm not aware that any of our movement organizations have a strategy for getting the American Bar Association or other high-profile groups to take a position on marijuana enforcement after the passage of the initiatives," he said. "Those kinds of campaigns need to be thought about and have people assigned to do them. I haven't done that either, but I'm not a leader of any of the 'angel organizations' that do this work."

While the reform movement builds itself, it can still attack the foe, St. Pierre said.

The opposition is actively pushing back now. Reformers are working quietly with state officials on implementation of regulation, but they can't forget that Washington is where some crucial decisions get made. Project SAM and its allies certainly haven't.

Drug Czar Cites "Serious National Conversation" About Marijuana

Office of National Drug Control Policy (ONDCP -- the drug czar's office) head Gil Kerlikowske said Tuesday that the country is "in the midst of a serious national conversation about marijuana" -- an at least rhetorical advance from his 2009 position that marijuana legalization is "not in the president's vocabulary and not in mine."

Gil Kerlikowske
Kerlikowske's terse comments on the topic came in response to three marijuana legalization petitions posted on the White House's We the People web site, which promises to respond to any petition that garners more than 25,000 signatures. The three had a combined signature total of more than 173,000.

But they also come in a political context altered by last November's elections, when two states, Colorado and Washington, easily approved marijuana legalization initiatives. The use and possession of small amounts of marijuana by adults over 21 is now legal in both states, and officials in both are now grappling with the task of coming up with and implementing regulations for legal marijuana commerce. The federal government has yet to respond substantively as to whether or not it will seek to impede that process.

"Coming out of the recent election, it is clear that we're in the midst of a serious national conversation about marijuana," said Kerliwowske. "At President Obama's request, the Justice Department is reviewing the legalization initiatives passed in Colorado and Washington, given differences between state and federal law."

That was the extent of Kerlikowske's response, except for referring readers to a recent Barbara Walters interview with President Obama in which he said he wasn't ready "to go that far" when it came to the topic of pot legalization, but added that "we're going to need to have is a conversation about how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal."

The rhetorical shift was "pretty significant," said Tom Angell, chairman of Marijuana Majority, a recently-formed group calling for decriminalization or legalization.

"I guess it makes a difference when marijuana legalization gets more votes than your boss does in an important swing state, as happened in Colorado this last election," Angell said. "From 'legalization is not in my vocabulary and it's not in the president's,' as Gil Kerlikowske often used to say, to 'it is clear that we're in the midst of a serious national conversation about marijuana' is a pretty stark shift."

Actions speak louder than words, Angell said, but still…

"Of course, what really matters is to what extent the administration actually shifts enforcement priorities and budgets, but I sure do like hearing the US drug czar acknowledge the fact that marijuana legalization is a mainstream discussion that is happening whether he likes it or not."

washington, DC
United States

Senate Judiciary Committee to Hold Hearings on Marijuana Policy

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) said in a statement last Thursday that he intends to hold a hearing seeking information about how the Obama administration plans to respond to the successful marijuana legalization initiatives in Colorado and Washington. Leahy said he expects to hold the hearing when Congress reconvenes early next year.

Senate Judiciary Committee Chairman Patrick Leahy (leahy.senate.gov)
Leahy also released a letter he sent earlier this month to Gil Kerlikowske, director of the Office of National Drug Control Policy (ONDCP -- the drug czar's office) asking him what recommendations the agency will make to the Justice Department and how, given the fiscal constraints the administration faces, it intends to use federal resources in light of the legalization votes in Colorado and Washington. The veteran Vermont lawmaker also asked Kerlikowske what assurances the administration can give to state officials responsible for the licensing of marijuana retailers to ensure they will face no criminal penalties for carrying out their duties under those state laws.

"The Senate Judiciary Committee has a significant interest in the effect of these developments on federal drug control policy," Leahy wrote. "Legislative options exist to resolve the differences between federal and state law in this area and end the uncertainty that residents of Colorado and Washington now face. In order to give these options full consideration, the committee needs to understand how the administration intends to respond to the decision of the voters in Colorado and Washington.  I look forward to hearing your thoughts on this matter."

The Obama administration has yet to formally respond to the legalization votes, but Attorney General Eric Holder said last Wednesday the Justice Department will announce "relatively soon" where it stands on federal enforcement of the pot laws in the two states.

"There is a tension between federal law and these state laws,” Holder said in response to questions after a speech in Boston. "I would expect the policy pronouncement that we’re going to make will be done relatively soon."

A series of public opinion polls this month have found little public support for federal interference with state marijuana laws in states where it is legal, with majorities calling for the feds to keep out of the way. Support for federal non-interference is strongest among key Obama constituencies, including Democrats, independents, and young voters.

Washington, DC
United States

Senate Judiciary Committee to Take Up Legalization Next Year

http://www.stopthedrugwar.org/files/pat-leahy.jpg
Pat Leahy
Huge news this morning: Senate Judiciary Committee chairman Patrick Leahy (D-VT) has sent a letter to the drug czar about the Washington and Colorado initiatives, Benjy Sarlin at Talking Points Memo noted today:

Leahy wants information:

How does the Office of National Drug Control Policy intend to prioritize Federal resources, and what recommendations are you making to the Department of Justice and other agencies in light of the choice by citizens of Colorado and Washington to legalize personal use of small amounts of marijuana? What assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face Federal criminal penalties for carrying out duties assigned to them under state law?
 

But it's even bigger than that. Leahy is planning committee hearings on marijuana legalization, to include consideration of legislative options, including "amend[ing] the Federal Controlled Substances Act to allow possession of up to one ounce of marijuana, at least in jurisdictions where it is legal under state law."

I am wondering just how huge this may be. Leahy has good views, but he's also a careful senator who would not care to be at odds with his fellow Democratic committee members or the president. He's also a former prosecutor who dislikes uncertainty or disorder in the law and its implementation.

On the other side of the aisle are Tea Party and other Republicans who may or may not like legalization, mostly don't want to say so if they do, but have campaigned on states' rights. One Colorado Republican, Mike Coffman, has cosponsored a recent bill to allow for state marijuana legalization, despite having voted against the Colorado initiative himself. Word is that at least a couple more Republicans are likely ready to join the group. And recent polls have found that more Americans favor letting states decide about legalization than even support legalization. Micah Cohen at the FiveThirtyEight blog noted the CBS poll found 49% of people who oppose legalization favor letting states decide.

In any case things are further along in Congress than before. The Frank-Paul bill to end federal marijuana prohibition, H.R. 2306, got a few Republicans, but the hard-line House Judiciary chair Lamar Smith (R-TX) would not allow hearings. (Smith was the only member of Congress to oppose crack sentencing reform -- our Judiciary Committee chair!) Incoming chair Bob Goodlatte (R-VA) is said to be reasonable on some issues, but not particularly positive on ours. Still, given what happened last month and what is happening now, it may just look a little too bad for Goodlatte to disallow even hearings, as Republicans struggle to redefine their profile in the wake of a tough election for them.

Marijuana Legalization: What Can/Will the Feds Do? [FEATURE]

In the wake of last week's victories for marijuana legalization in Colorado and Washington, everyone is waiting to see how the federal government will respond. But early indications are that we may be waiting for awhile, and that the federal options are limited.

How will the feds respond to legalization? (justice.gov)
While the legal possession -- and in the case of Colorado, cultivation -- provisions of the respective initiatives will go into effect in a matter of weeks (December 6 in Washington and no later than January 5 in Colorado), officials in both states have about a year to come up with regulations for commercial cultivation, processing, and distribution. That means the federal government also has some time to craft its response, and it sounds like it's going to need it.

So far, the federal response has been muted. The White House has not commented, the Office of National Drug Control Policy has not commented, and the Department of Justice has limited its comments to observing that it will continue to enforce the federal Controlled Substances Act.

"My understanding is that Justice was completely taken aback by this and by the wide margin of passage," said Eric Sterling, former counsel to the House Judiciary Committee and currently the executive director of the Criminal Justice Policy Foundation. "They believed this would be a repeat of 2010, and they are really kind of astonished because they understand that this is a big thing politically and a complicated problem legally. People are writing memos, thinking about the relationship between federal and state law, doctrines of preemption, and what might be permitted under the UN Single Convention on Narcotic Drugs."

What is clear is that marijuana remains illegal under federal law. In theory an army of DEA agents could swoop down on every joint-smoker in Washington or pot-grower in Colorado and haul them off to federal court and thence to federal prison. But that would require either a huge shift in Justice Department resources or a huge increase in federal marijuana enforcement funding, or both, and neither seems likely. More likely is selective, exemplary enforcement aimed at commercial operations, said one former White House anti-drug official.

"There will be a mixture of enforcement and silence, and let's not forget that federal law continues to trump state law," said Robert Weiner, former spokesman for the Office of National Drug Control Policy (ONDCP). "The Justice Department will decide if and at what point they will enforce the law, that's a prosecutorial decision the department will make."

Weiner pointed to the federal response to medical marijuana dispensaries in California and other states as a guide, noting that the feds don't have to arrest everybody in order to put a chill on the industry.

"Not every clinic in California has been raided, but Justice has successfully made the point that federal law trumps," he said. "They will have to decide where to place their resources, but if violations of federal law become blatant and people are using state laws as an excuse to flaunt federal drug laws, then the feds will have no choice but to come in."

Less clear is what else, exactly, the federal government can do. While federal drug laws may "trump" state laws, it is not at all certain that they preempt them. Preemption has a precise legal meaning, signifying that federal law supersedes state law and that the conflicting state law is null and void.

"Opponents of these laws would love nothing more than to be able to preempt them, but there is not a viable legal theory to do that," said Alex Kreit, a constitutional law expert at the Thomas Jefferson School of Law in San Diego who co-authored an amicus brief on preemption in a now mooted California medical marijuana case. "Under the anti-commandeering principle, the federal government can't force a state to make something illegal. It can provide incentives to do so, but it can't outright force a state to criminalize marijuana."

An example of negative incentives used to force states to buckle under to federal demands is the battle over raising the drinking age in the 1980s and 1990s. In that case, Congress withheld federal highway funds from states that failed to raise the drinking age to 21. Now, all of them have complied.

Like Weiner, Kreit pointed to the record in California, where the federal government has gone up against the medical marijuana industry for more than 15 years now. The feds never tried to play the preemption card there, he noted.

"They know they can't force a state to criminalize a given behavior, which is why the federal government has never tried to push a preemption argument on these medical marijuana laws," he argued. "The federal government recognizes that's a losing battle. I would be surprised if they filed suit against Colorado or Washington saying their state laws are preempted. It would be purely a political maneuver, because they would know they would lose in court."

The federal government most certainly can enforce the Controlled Substances Act, Kreit said, but will be unlikely to be able to do so effectively.

"The Supreme Court said in Raich and in the Oakland Cannabis Buyers Club cases that the federal government has all the power in the world to enforce the Controlled Substances Act," Kreit said, "and if they wanted to interfere in that way, they could. They could wait for a retail business or manufacturer to apply for a license, and as soon as they do, they could prosecute them for conspiracy -- they wouldn't even have to wait for them to open -- or they could sue to enjoin them from opening," he explained.

"But you can only stop the dam from bursting for so long," Kreit continued. "In California, they were able to stop the dispensaries at the outset by suing OCBC and other dispensaries, and that was effective in part because there were so few targets, but at a certain point, once you've reached critical mass, the federal government doesn’t have the resources to shut down and prosecute everybody. It's like whack-a-mole. The feds have all the authority they could want to prosecute any dispensary or even any patients, but they haven't been effective in shutting down medical marijuana. They can interfere, but they can't close everybody down."

As with medical marijuana in California, so with legal marijuana in Colorado and Washington, Kreit said.

"My guess is that if the feds decided to prosecute in Colorado and Washington, it would go similarly," he opined. "At first, they could keep people from opening by going after them, either enjoining or prosecuting them, but that strategy only works so long."

"I think the career people in Justice will seek to block Colorado and Washington from carrying out the state regulatory regime of licensing cultivation and sales," Sterling predicted. "A lower court judge could look at Raich and conclude that interstate commerce is implicated and that the issue is thus settled, but the states could be serious about vindicating this, especially because of the potential tax revenue and even more so because of the looming fiscal cliff, where the states are looking cuts in federal spending. The states, as defenders of their power, will be very different from Angel Raich and Diane Monson in making their arguments to the court. I would not venture to guess how the Supreme Court would decide this when you have a well-argued state's 10th Amendment power being brought in a case like this."

"Enjoining state governments is unlikely to succeed," said Kreit. "Again, the federal government has taken as many different avenues as they can in trying to shut down medical marijuana, and yet, they've never argued that state laws are preempted. They know they're almost certain to lose in court. The federal government can't require states to make conduct illegal."

At ground zero, there is hope that the federal government will cooperate, not complicate things.

"We're in a wait and see mode," said Brian Vicente, executive director of Sensible Colorado and co-director of the Amendment 64 campaign. "It's our hope that the federal government will work with Colorado to implement this new regulatory structure with adequate safeguards that make them comfortable the law will be followed."

While that may seem unlikely to most observers, there is a "decent chance" that could happen, Vicente said. "Two mainstream states have overturned marijuana prohibition," he said. "The federal government can read the polls as well as we can. I think they realize public opinion has shifted and it may be time to allow different policies to develop at the state level."

The feds have time to come to a reasonable position, said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"There is no need for a knee-jerk federal response, since the states are not required to create a regulatory scheme quickly," he said. "And while anti-marijuana forces more or less captured the drug czar's office early in Obama's first term, they're at odds with other people in the White House and the Obama administration whose views may be closer to our own. I think the White House will be the key. It's very likely that the fact that Attorney General Holder said nothing about the initiatives this fall, unlike two years ago, was because of the White House. I don't mean the drug czar's office; I mean the people who operate with respect to national politics and public policy."

Sterling disagreed about who is running drug policy in the Obama administration, but agreed that the feds have the chance to do the right thing.

"Given the large indifference to drugs as an issue by the Obama administration, its studious neglect of the issue, its toleration of an insipid director of ONDCP, its uncreative appointment of Bush's DEA administrator, it's clear that nobody of any seniority in the Obama White House is given this any attention. Unless Sasha and Malia come home from school and begin talking about this, it won't be on the presidential agenda, which means it will be driven by career bureaucrats in the DEA and DOJ," he argued.

That's too bad, he suggested, because the issue is an opportunity for bold action.

"They should respond in a vein of realism, which is that this is the future, the future is now," he advised. "They have an opportunity with these two different approaches to work with the states, letting them go forward in some way to see how they work and providing guidance in the establishment of regulations that would let the states do this and ideally minimize the interstate spillover of cultivation and sales."

"As part of that, they should ideally move to rewrite the Controlled Substances Act and begin working in the UN with other countries to revise the Single Convention on Narcotics. Our 100-year-old approach is now being rejected, not simply by the behavior of drug users, but by the voters, many of whom are not drug users," Sterling said. "That would be a way that a wise, forward-thinking, statesman-like public official should respond."

That would indeed be forward-thinking, but is probably more than can be reasonably expected from the Obama White House. Still, the administration has the opportunity to not pick a fight with little political upside, and it has time to decide what to do before the sky falls. Marijuana legalization has already happened in two states, and is an increasingly popular position. The federal government clearly hasn't been in the lead and it's not going to be able to effectively stop it; now, if it's not ready to follow, it can least get out of the way.

And the Fast Talking Has Started...

I posited yesterday that federal fast talking about the Colorado and Washington initiatives would start soon. It turns out that federal fast talking hasn't even needed feds to get started, a "Network Media Fail" analysis by Peter Guither demonstrates:

Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
 

Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.

I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:

"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
 

That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.

The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:

In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
 

Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.

As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.

Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.

In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.

Medical Marijuana Update

It's been a pretty quiet week on the medical marijuana front. Heck, it looks like even the DEA took a break -- no raids to report. Let's get to it:

National

On Memorial Day, a veterans' group slammed the Obama administration for its stance on medical marijuana. Veterans for Medical Cannabis had petitioned the administration to look into the reliable new science showing that medical marijuana has benefits and asked the administration to change its policies to allow vets to use it for Post-Traumatic Stress Disorder. What they got instead was a canned non-response from drug czar Gil Kerlikowske.

Arizona

Last Friday, the Department of Health Services held a hearing on requests to expand its fledgling medical marijuana program to allow use of the herb for a variety of conditions, including Post-Traumatic Stress Disorder. Besides PTSD and migraines, the requests for covered conditions include depression and general anxiety disorder. The law already permits medical marijuana use for such medical reasons as cancer, glaucoma, AIDS, chronic pain, muscle spasms and hepatitis C.

Also last Friday, the application period for people seeking to open dispensaries ended. The Department of Health Services will issue only 126 dispensary permits statewide, but had received nearly 500 applications, along with a $5,000 fee, $4,000 of which is non-refundable. The department will review the applications and grant permits on August 7. If an application passes review and is the only application in its district, it will be granted a permit. In districts with multiple applications, those that survive the review process will enter a lottery to see who gets the permit.

California

Last Wednesday, a San Diego medical marijuana prosecution ended in a mistrial after jurors deadlocked and the judge dismissed prosecutors' request to retry the case "in the interest of justice." The effort by San Diego District Attorney Bonnie Dumanis to convict Therapeutic Healing operator Dexter Padilla was only the latest in her ongoing campaign against medical marijuana. In dismissing the prosecution request for a new trial, the judge accused the DA's office of being "disingenuous" in its arguments in the case.

Also last Wednesday, the state Supreme Court denied review of a key medical marijuana case, handing a victory to patients and providers. Attorney General Kamala Harris and law enforcement had asked the court to review People v. Colvin, which upheld certain protections for patients and providers, in a bid to get the court to rule that patients in collectives must help cultivate their medication. The court declined to review the case, affirming that patients are not required to help grow their medicine.

On Tuesday, the LA city council moved closer to a ban on dispensaries. A council committee approved a recommendation to ban dispensaries while allowing small groups of patients and their primary caregivers to grow their own. A counterproposal that would allow up to 100 existing dispensaries to stay open also won a committee recommendation. In 2007, the city imposed a moratorium on dispensaries, but a loophole allowed hundreds of new pot shops to proliferate. In reaction, lawmakers approved an ordinance two years ago that called for a lottery to limit which dispensaries should be allowed to operate. But City Attorney Carmen Trutanich has argued that the ordinance should be revoked because it may violate federal law. The turning point was an appellate court ruling last year that Long Beach, which also imposed a lottery, was violating federal law by in effect sanctioning the distribution of drugs. The proposed ban in Los Angeles would last at least until the California Supreme Court reviews the Long Beach case.

Colorado

On Tuesday, patients and supporters petitioned to add PTSD to the list of conditions that can be treated with medical marijuana. The effort is a reprise of a failed attempt to add it in 2010. That year, the Colorado Department of Public Health opposed legislation that would have added PTSD. Now, we will see if the department has changed its mind.

New Jersey

Last Wednesday, Newark Mayor Cory Booker came out in support of medical marijuana. His support came amidst of series of Twitter tweets he sent out critical of the war on drugs, and while he said he didn't support all-out drug legalization because of fears of addiction, he told one follower, "However, I'm with you on medical marijuana, and NJ should do more to make it real for those who need it."

Washington

On Tuesday, medical marijuana advocates sent a letter to the Kent City Council opposing a planned ordinance that would ban all medical marijuana access points within the city, including collective grows, which are explicitly allowed by state law. The letter signed by Sensible Washington and state Rep. Roger Goodman (D-Kirkland) calls on the city "to respect the wishes and demands of the voters of Washington State, to act in adherence to the laws adopted by our state in regards to medical cannabis (pursuant to RCW 69.51a), and to cease and desist any and all attacks on qualifying medical cannabis patients, medical providers,  and safe access points within the City of Kent." The statute mentioned reads as follows: "Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use." The city council is scheduled to take up the ordinance on June 5.


 

Obama's 2012 Drug Strategy: The Same Old Same Old [FEATURE]

The Obama administration released its 2012 National Drug Control Strategy and accompanying 2013 drug budget Tuesday, and while the administration touted it as a "drug policy for the 21st Century," it is very much of a piece with anti-drug policies going back to the days of Richard Nixon.

Drug war spending continues to exceed treatment and prevention spending (ONDCP)
"We will continue to pursue a balanced approach… in a national effort to improve public health and safety," wrote Office of National Drug Control Policy (ONDCP) head Gil Kerlikowske in the introduction to the strategy. "We will work to prevent illicit drug use and addiction before their onset and bring more Americans in need of treatment into contact with the appropriate level of care. We will continue to build on the administration’s progress in reforming the justice system, ensuring that laws are applied fairly and effectively -- protecting public safety while also ensuring that drug-involved offenders have the opportunity to end their drug use and rebuild their lives."

But that's only one half of the administration's approach. The other half, as Kerlikowske makes clear, it continued adherence to classic war on drugs strategies.

"We will continue to counter drug produc­tion and trafficking within the United States and will implement new strategies to secure our borders against illicit drug flows," the drug czar wrote. "And we will work with international partners to reduce drug production and trafficking and strengthen rule of law, democratic institutions, citizen security, and respect for human rights around the world."

The federal government will spend more than $25 billion on drug control under the proposed budget, nearly half a billion dollars more than this year. And despite the administration's talk about emphasizing prevention and treatment over war on drugs spending, it retains the same roughly 60:40 ratio of law enforcement and interdiction spending over treatment and prevention training that has obtained in federal drug budgets going back years. In fact, the 58.8% of the proposed budget that would go to drug war programs is exactly the same percentage as George Bush's 2008 budget and even higher than the 56.8% in Bush's 2005 budget.

ONDCP director Gil Kerlikowske
In the 2013 drug budget, treatment and early intervention programs would be funded at $9.2 billion, an increase of more than $400 billion over this year, but most of that increase is for treatment covered under the Medicaid and Medicare programs. Grant programs under the Substance Abuse and Mental Health Services Administration (SAMHSA), including Access to Recovery, early screening and referral, and drug courts are all reduced under the 2013 budget, although drug courts would see an increase in funding under the Department of Justice's Problem Solving Justice Program.

One area where treatment funding is unequivocally increased is among the prison population. Federal Bureau of Prisons treatment spending would jump to $109 million, up 17% over this year, while the Residential Substance Abuse Treatment Program for state prisoners would be funded at $21 million, up nearly 50% over this year.

The drug strategy's rhetorical emphasis on prevention is not reflected in the 2013 budget, which calls for a 1% decrease in funding. SAMHSA prevention grants and Drug Free Communities funding would decrease slightly, while the administration seeks $20 million to restart the much maligned and congressionally zeroed-out Youth Drug Prevention Media Campaign.

On the drug war side of the ledger, domestic anti-drug law enforcement spending would increase by more than $61 million to $9.4 billion, with the DEA's Diversion Control Program (prescription drugs) and paying for federal drug war prisoners showing the biggest increases. The administration anticipates shelling out more than $4.5 billion to imprison drug offenders.

But domestic law enforcement is only part of the drug war picture. The budget also allocates $3.7 billion for interdiction, a 2.5% increase over the 2012 budget, and another $2 billion for international anti-drug program, including assistance to the governments of Central America, Colombia, Mexico, and Afghanistan.

Critics of the continued reliance on prohibition and repression were quick to attack the new drug strategy and budget as just more of the same.

"The president sure does talk a good game about treating drugs as a health issue but so far it's just that: talk," said Neill Franklin, executive director of Law Enforcement Against Prohibition (LEAP) and a former narcotics officer in Baltimore. "Instead of continuing to fund the same old 'drug war' approaches that are proven not to work, the president needs to put his money where his mouth is."

"This budget is appalling. The drug czar is trying to resurrect those stupid TV ads, like the one where a teenager gets his fist stuck in his mouth," said Rob Kampia, executive director of the Marijuana Policy Project. "The budget intentionally undercounts the federal government's expenditures on incarcerating drug offenders, who comprise more than half of the federal prison population. And the budget dangerously proposes a massive escalation in using the military to fight drugs domestically. Congress should just ignore this budget and start from scratch. Specifically, Congress should not provide the Obama administration with any money to go after nonviolent marijuana users, growers, or distributors."

In the 2013 drug strategy, the administration is highlighting a renewed emphasis on drugged driving and is encouraging states to pass "zero tolerance" drugged driving laws. It is also emphasizing attacking the massive increase in non-prescription use of opioid pain pills.

While the strategy calls for lesser reliance on imprisonment for drug offenders, it also calls for increased "community corrections" surveillance of them, including calling for expanded drug testing with "swift and certain" sanctions for positive tests. But drug testing isn't just for parolees and probationers; the drug strategy calls for expanded drug testing in the workplace, as well.

The drug strategy acknowledges the calls for recognition of medical marijuana and marijuana legalization, but only to dismiss them.

"While the Administration supports ongoing research into determining what components of the marijuana plant can be used as medicine, to date, neither the FDA nor the Institute of Medicine has found the marijuana plant itself to meet the modern standard for safe or effective medicine for any condition," the strategy said. "The Administration also recognizes that legalizing marijuana would not provide the answer to any of the health, social, youth education, criminal justice, and community quality of life challenges associated with drug use."

For Bill Piper, director of national affairs for the Drug Policy Alliance, the 2012 drug strategy was all too familiar.

"This strategy is nearly identical to previous national drug strategies," he said. "While the rhetoric is new -- reflecting the fact that three-quarters of Americans consider the drug war a failure -- the substance of the actual policies is the same. In reality, the administration is prioritizing low-level drug arrests, trampling on state medical marijuana laws, and expanding supply-side interdiction approaches -- while not doing enough to actually reduce the harms of drug addiction and misuse, such as the escalating overdose epidemic."

The release of the drug budget comes just days after President Obama returned from the Summit of the Americas meeting, where he was pressed to open up a debate on legalizing and regulating drugs by sitting Latin American presidents like Juan Manuel Santos of Colombia and Otto Perez Molina of Guatemala. And it comes as marijuana legalization is at the cusp of majority support and trending upward.

It is past time to keep making minor adjustments -- a slight funding increase here, a decrease there, a shift of emphasis over there -- in what is fundamentally a flawed and failed policy, said LEAP's Franklin.

"The chorus of voices calling for a real debate on ending prohibition is growing louder all the time," said Franklin. "President Obama keeps saying he is open to a discussion but he never seems willing to actually have that discussion. The time for real change is now. This prohibition strategy hasn't worked in the past and it cannot work in the future. Latin American leaders know it, and President Obama must know it. Let's stop the charade and begin to bring drugs under control through legalization."

Washington, DC
United States

Obama Releases 2012 National Drug Control Strategy

The Obama administration released its 2012 National Drug Control Strategy and accompanying 2013 drug budget Tuesday, but while the administration touted it as a "drug policy for the 21st Century," it is very much of a piece with anti-drug policies going back to the days of Richard Nixon.

The federal government will spend more than $25 billion on drug law enforcement under the proposed budget, and despite the administration's talk about emphasizing prevention and treatment over war on drugs spending, it retains the same roughly 60:40 ratio of law enforcement and interdiction spending over treatment and prevention training that has obtained in federal drug budgets going back years.

The administration is high-lighting a renewed emphasis on drugged driving and is encouraging states to pass "zero tolerance" drugged driving laws. It is also emphasizing the massive increase in non-prescription use of opioid pain pills.

While the strategy calls for lesser reliance on imprisonment for drug offenders, it also calls for increased "community corrections" surveillance of them, including calling for expanded drug testing with "swift and certain" sanctions for positive tests. But drug testing isn't just for parolees and probationers; the drug strategy calls for expanded drug testing in the workplace, as well.

The drug strategy acknowledges the calls for recognition of medical marijuana and marijuana legalization, but only to dismiss them.

"While the Administration supports ongoing research into determining what components of the marijuana plant can be used as medicine, to date, neither the FDA nor the Institute of Medicine has found the marijuana plant itself to meet the modern standard for safe or effective medicine for any condition," the strategy said. "The Administration also recognizes that legalizing marijuana would not provide the answer to any of the health, social, youth education, criminal justice, and community quality of life challenges associated with drug use."

This year's drug strategy looks like last year's drug strategy, which looked like Bush administration drug strategies, which looked like Clinton administration drug strategies. When it comes to the federal drug war, it's more of the same old same old.

Look for an expanded version of this news brief Thursday afternoon, with deeper analysis and commentary from drug war observers.

Washington, DC
United States

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