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ATF's Operation Gideon Raises Questions of Fairness, Justice, and Race [FEATURE]

Special to Drug War Chronicle by Clarence Walker, cwalkerinvestigate@gmail.com

Part I of a series on the ATF's Operation Gideon, targeting inner city "bad guys" with drug house robbery stings

Early in May, a panel of judges from California's 9th US Circuit Court of Appeals denied petitions for an "en banc" hearing that would have allowed the full court to consider overturning long prison sentences for four would-be robbers seduced by an informant into believing they were about to rip-off a stash house loaded with drugs.

The stash house was fictional, those drugs never existed, and the brains behind the plot were not criminals, but federal agents.

The denial of the petition was not a unanimous decision, and it revealed deep fissures on the appeals court. Dissenting judges argued that the practice of enticing poor young men into robbing stash houses raised questions not only of fair play, but also of constitutionality. The dissenters were particularly concerned that federal agents targeted primarily minority neighborhoods filled with desperate, unemployed young men tempted by the lure of fast cash.

"The sting poses questions of whether the government intentionally targets poor minority neighborhoods, and thus, seeks to tempt their residents to commit crimes that might well result in their escape from poverty," Justice Stephen Reinhardt wrote in a blistering dissent. He also called it "a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values."

The case involved four Phoenix men -- Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons -- who were convicted in 2010 on charges of conspiracy to distribute more than five pounds of cocaine, as well as federal firearms charges, for a fake drug rip scheme set up by the Bureau of Alcohol, Tobacco and Firearms (ATF). All four are now serving prison sentences of 13 to 15 years.

Even though federal appeals court judges have joined defense attorneys in calling the ATF drug rip schemes "outrageous conduct," they are not an anomaly, but are instead part and parcel of ATF's Operation Gideon, a nationwide program. The ATF, federal prosecutors, and the Phoenix police said a press release announcing a pilot sweep that rolled up 70 people, including Cordae Black and his crew, that Gideon "involved the deployment of some of ATF's most experienced undercover operatives to team with local agents and police investigators by conducting sting investigations involving violent home invasion crews."

According to a USA Today investigative report, as of last year, the feds had already locked up more than a thousand people who its agents had enticed into conspiracies to rob fake drug stash houses. And it's not just the AFT. The DEA often uses the fake drug rip-off schemes, as well.

US 9th Circuit Court of Appeals Judge Stephen Reinhardt
The argument at the 9th Circuit in the Phoenix case centered on entrapment and whether ATF agents illegally enticed the defendants into the crime through "outrageous government conduct" beyond that allowed by entrapment doctrine.

Relying on the US Supreme Court's 1973 ruling in US v. Russell, where the court upheld such schemes if the defendant showed a predisposition to commit the offense, 9th Circuit Judges Susan Graeber and Raymond Fisher rejected claims of entrapment and outrageous conduct by the agents, and argued that the reverse sting was within legal boundaries of law enforcement tactics, which includes officers working undercover to infiltrate criminal organizations.

Fisher and Graeber said the agents' actions were reasonable when they offered the men the opportunity to make money by committing a drug robbery. The pair also held the defendants failed to show they lacked "predisposition to commit the offense."

That provoked a sharp retort from a second dissenter as well, Judge John T. Noonan.

"Today our court gives approval to the government tempting people in the population at large currently engaged in innocent activity, and leading them into the commission of a crime, which the government will then prosecute," he wrote.

It's not just the 9th Circuit. Fake drug stash operations that only target inner-cities have ignited a firestorm of controversy, including other caustic remarks from the federal bench.

"There is a strong showing of potential bias in the robbery stings," US District Court Judge Rueben Castillo wrote in an order last year. Castillo noted that since 2011, federal agents have used such stings to lock up at least 26 people in the Chicago area -- and that all of them were either black or Hispanic.

Federal officials retort that they are not engaging in selective prosecution based on race, but are going where known felons often commit violent home invasion-type drug robberies.

But defense attorneys argue that the operations target people who weren't doing anything, entice them with visions of easy wealth, set them up, and then throw the book at them.

"What the ATF is doing is basically targeting low-level criminals for high-level crimes," said attorney Tara Loveland, who is representing Cordae Black on appeal.

The case against Black and his codefendants raises serious questions about racial profiling. According to evidence introduced at the original trial -- and subsequently heard again at the re-hearing (via the appellate brief) -- ATF Agent Richard Zayas had a paid informant travel from Miami to Arizona to find "bad guys" in a "bad part of town."

That prompted Judge Reinhardt to say that Zavas' instructions obviously meant the informant should recruit people from minority communities. The targeting of the fake drug house robbery scheme was a practice "that creates the appearance of selective prosecution based on race and wealth inequality," he said.

"It is a tragedy when ATF has to drum up a crime that didn't exist," attorney Eugene Marquez, who represented Cordae Black at trial, told the Chronicle.

Chicago Operation Gideon suspect William Alexander just before his arrest (atf.gov)
Defense attorneys who represented the defendants on appeal argued that "fake drug stings initiated by ATF amount to entrapment because there were no drugs -- and none of the defendants would have agreed to participate had it not been for a paid snitch and the ATF's scheme of enticing the men to arm themselves with weapons to rip-off a large quantity of drugs that automatically brings severe mandatory prison sentences."

"Our defense was outrageous conduct and sentencing entrapment," Marquez explained.

But 9th Circuit majorities weren't listening to the defense attorneys. In a separate ruling, they reiterated their original decision denying defense counsel's motion to overturn the original convictions.

"There is no bright line dictating when laws enforcement conduct crosses the line between acceptable and outrageous," Judge Raymond C. Fisher wrote for the majority. Outrageous government conduct can only occur when government agents engineer and direct a "criminal enterprise from start to finish -- or creating new crimes merely for the sake of pressing criminal charges," he argued.

Judge Reinhardt again dissented.

"In this era of mass incarceration, in which we already lock up more of our population than any other nation on earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them -- people who but for the government's scheme might not have ever entered the world of major felonies," Reinhardt wrote.

If getting set up and convicted in a sting weren't bad enough, the defendants also got hit with longer sentences based on the imaginary amounts of drugs that were going to rob. Marquez explained that his client, Cordae Black, was hit a 10-year mandatory minimum because the ATF pretended the imaginary drug house had more than five kilos of cocaine in it.

But while jurists and defense attorneys grumbled, the ATF was pleased with its handiwork.

Arizona ATF agent Thomas Mangan welcomed the convictions of Black and his partners, as well as appeals court rulings upholding them. The stings had resulted in over 70 Arizona arrests, and the crew had "ample opportunity to back out, but had remained committed to carry out the robbery until they were arrested," he said in the Operation Gideon press release.

While court-approved enticement has a lengthy pedigree in this country, so does "outrageous government conduct" that can take it over the line into entrapment. A classic case is that of legendary automaker John Delorean, who was acquitted of cocaine conspiracy charges in 1984, even though prosecutors had Delorean on videotape wisecracking and saying that the cocaine stuffed inside a suitcase was "good as gold."

But Delorean's attorney was able to convince the jury that the FBI had leaned on a convicted drug smuggler, James Hoffman, to draw Delorean into a trap, complete with thinly-veiled threats if Delorean backed out of the sting.

"Without the government there would be no crime," Delorean's attorney told the jury.

Taking Down the Phoenix Crew

Putting together a fake drug robbery stings is like assembling the cast of a gritty crime drama. The Phoenix reverse sting worked against Cordae Black and his eager crew in typical take-down fashion. ATF agent Richard Zayas recruited a paid informant to frequent seedy bars and diffferent places in the "bad part" of town -- to find receptive players to rip-off a drug house. Zayas's informant met Shaver "Bullet" Simpson, a big-talking guy ready to play.

Zayas's informant duped Simpson into believing he had a friend with information on a stash house filled with drugs worth thousands of dollars. Simpson boasted he could find some tough-ass homies to do the job. Agent Zayas reminded Simpson that everyone involved with the plot must keep their mouths shut, and not talk about what goes down.

"My people straight," Simpson replied. "I hate snitchers."

Following the informant's meeting with Shaver Simpson, he introduced "Bullet" to undercover ATF Agent Richard Zayas, who fronted himself off as a disgruntled drug courier interested in having someone rob a dope house owned by Zayas's supposed cartel's connections. Zayas informed Simpson that Simpson's homeboys would need the "balls to do it because this ain't no easy lick."

Simpson then posed a question to Zayas: "My goons want to know whether they need to kill the people in the house."

Zayas responded nonchalantly that he "didn't care what they did as long as they took care of business."

Hooked like a fish, Simpson swallowed the bait, "Don't worry Daddy," he told Zavas. You got a real Jamaican (expletive), that's my family business; it's where I worked; I got this shit down to a science, man."

The beat goes on. Press conference announcing latest round of Operation Gideon busts, Stockton, CA, 2014 (atf.gov)
The trap was set. Shaver Simpson, the braggart, strangely, didn't show up for the showdown. But the work crew did. Once Cordae Black, Terrence Timmons, Kemford Alexander and Angel Mahon showed up at the designated meeting spot, the ATF agents and local police took the hapless crew down with guns drawn. A search of their vehicles produced four loaded weapons (which, according to the appellate brief, Zava insisted the crew have with them).

Despite Simpson's bravado about not being a snitch and hating such creatures, he pounced on the first opportunity to become one by testifying against his four homies. Still, at trial, Simpson accused ATF agent Richard Zayas of pressuring him to quickly find as many guys he could find to pull off the robbery.

Same Sorts of Cases, Different Results

In another Operation Gideon case, Chicago native William Alexander, a street-level crack dealer and beauty school dropout, got stung in a fake drug robbery on February 23 2011, along with his cohorts Hugh Midderhoff and David Saunders. All three were convicted of possession with intent to deliver five or more kilos of cocaine, along with firearms charges. To win a new trial, Alexander's lawyer argued on appeal that ATF's systematic strategy of sending informants into "bad parts of town" to recruit "bad people" meant that racial profiling played a vital role in Alexander's case.

His appeal brief noted that in the 17 stash house robbery stings prosecuted in the Northern Illinois Federal District since 2004, blacks were disproportionately represented. Of the 57 defendants, 42 were black, eight Hispanic, and seven white.

His appeal was denied -- because he couldn't show that the ATF and prosecutors intended racially disparate outcomes.

"To establish discriminatory intent, Alexander failed to show the decision makers in (his) case acted with discriminatory purposes -- and that the Attorney General and US Attorneys has broad discretion to enforce federal criminal laws," the appeals court held.

Antuan Dunlap and his heavily-armed posse-mates, Cedrick Hudson and Joseph Cornell Whitfield, had better luck. They were released from jail in an ATF drug house rip-off scheme when California US District Court Judge Otis Wright ruled the ATF crossed the line into entrapment.

Prosecutors had argued that Dunlap "manifested his propensity to commit robberies" by claiming to have engaged in similar activities in the past, and thus, "the defendant's words justified the reverse sting."

But in a 24-page stinging rebuke, the angry judge said the ATF engaged in "outrageous conduct" by enlisting people in "made-up crime" just so they could bust eager volunteers in drug stings. "Society does not win when the government stoops to the same level as the defendants it seeks to prosecute -- especially when the government has acted solely to achieve a conviction for a 'made-up' crime, Wright wrote. He also noted that such tactics "haven't brought down the crime rate nor taken drugs off the streets."

But the ATF and DEA fake drug rip-off schemes remain in full-swing across the nation despite the brewing controversy over tactics some defense attorneys and jurists regard with loathing. If the Justice Department will investigate whether the stings are aimed disproportionately at minority communities remains to be seen. Meanwhile, the Phoenix crew sits in federal prison, while their attorneys plan an appeal to the US Supreme Court.

Next in the series: ATF's Deadly Takedown in Fake Drug Robberies.

Tennessee's Scary New Law Criminalizing Drug-Using Pregnant Women [FEATURE]

When -- despite the objections of medical groups, reproductive health advocates, and even the drug czar's office -- Tennessee Gov. Bill Haslam (R) signed into law Senate Bill 1391 late last month, the Volunteer State became the first in the nation to pass a law criminalizing pregnancy outcomes. Other states, such as Alabama and South Carolina, have used fetal harm laws to charge drug-using pregnant women, but Tennessee is the first to explicitly criminalize drug use during pregnancy.

Passed in the midst of rising concern over prescription drug and heroin abuse and aimed, its proponents said, at protecting babies, the law allows women to be criminally charged with an "assaultive offense for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug or for criminal homicide if her child dies as a result of her illegal use of a narcotic drug taken while pregnant."

Felony assault can earn you up to 15 years in prison in Tennessee. And while some prosecutors have said they will only file misdemeanor charges, that's not written into the law.

Proponents cited recent reports that the number of babies being born addicted to drugs is on the rise. Such infants are diagnosed as having Neonatal Abstinence Syndrome, or withdrawal symptoms after being exposed to opiates in the womb.

"Over the past decade, we have seen a nearly ten-fold rise in the incidence of babies born with NAS in Tennessee," the state Department of Health reported. Infants with NAS stay in the hospital longer than other babies and they may have serious medical and social problems."

But the state Health Department notwithstanding, experts in the field say that NAS doesn't actually have long-term effects, it's not accurate to call newborn infants "addicted," and that misrepresenting matters by vilifying pregnant women isn't helpful. In fact, more than 40 of them said so in an open letter last month.

More generally, leading medical groups, including the American Medical Association, the American Nurses Association, the American Academy of Pediatrics, and the American Public Health Association reject the prosecution and punishment of pregnant women who use drugs. The groups mentioned above and many others said so in this 2011 document.

A coalition of medical, public health, women's rights, and social justice groups worked to oppose the bill as it made its way through the legislature, and then to convince Gov. Haslam to kill it. A petition with over 11,000 signatures urging him to veto the bill went to his office late last month. More than two dozen organizations devoted to ensuring families have access to health care likewise urged a veto, as did the American Association of Pediatrics, the National Perinatal Association, and International Doctors for Healthier Drug Policy.

Even acting drug czar Michael Botticelli raised a warning flag.

"Under the Obama administration, we've really tried to reframe drug policy not as a crime but as a public health-related issue, and that our response on the national level is that we not criminalize addiction," he said during a visit to Nashville as the governor pondered. "We want to make sure our response and our national strategy is based on the fact that addiction is a disease. What's important is that we create environments where we're really diminishing the stigma and the barriers, particularly for pregnant women, who often have a lot of shame and guilt about their substance abuse disorders."

But none of that mattered. On April 29, Haslam signed the bill into law.

"In reviewing this bill, I have had extensive conversations with experts including substance abuse, mental health, health and law enforcement officials," Haslam said in a statement. "The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs."

"Today, the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse," Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project, said in a statement in response to the signing. "This deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time."

The statewide coalition Healthy and Free Tennessee also lambasted the new law.

"We are very sorry to see that Governor Haslam let an opportunity to do the right thing slip through his fingers," said Rebecca Terrell, the group's chairwoman."The experts could not have been clearer: this law is bad for babies and bad for Tennessee."

"This law says that women are to be held criminally accountable for the outcomes of their pregnancies," said Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women, which was part of the coalition fighting the new law. "It essentially creates a system of separate and unequal rights. Drug ingestion is not a crime in Tennessee, just possession, and now, only pregnant women are criminalized for ingesting. They can be surveilled and punished by the state in ways different from other people. The law also treats fertilized eggs or fetuses as if they were people independent of the pregnant woman," she told the Chronicle.

Gov. Bill Haslam (tn.gov)
"It's the wrong response to the problem of addiction," said Diaz-Tello. "It's a health problem that is not responsive to threats and punishment. What kind of society do we want to be? Do we want to punish the people most in need of help and support? These are women largely living in poverty, women of color, who are already made vulnerable by our social policies, and now we hold them solely responsible without looking at society and what else is going on leading to pregnancy among addicted people and this horrible punitive response."

Even framing the issue as "pregnant women taking drugs" is somewhat misleading, said Diaz-Tello.

"We often make the mistake of thinking of people using drugs during pregnancy as pregnant women who became addicted to drugs when it should be the other way around," she said. "The reasons for addiction are complex and often gender-based. Women who have experienced violence and trauma are often self-medicating, and there is a lot of unresolved pain and trauma out there. And half the pregnancies in our country are unintended, which disproportionately affects women on the margins. It's not like someone wakes up pregnant one day and decides they want to do drugs."

The law will not operate in a vacuum. Tennessee is one of those states that has refused to expand Medicaid and has rejected the Affordable Care Act. It is more difficult for poor women there to get access to health care services, including drug treatment, but now it will be easier to prosecute them.

"This is definitely for the most part going to affect poor, marginalized, predominantly rural women," said Cherisse Scott, founder of SisterReach, a Memphis-based group working for reproductive justice for women and girls in the city and the Mid-South area. "That's because of the many barriers they face. Many rural areas just don't have the facilities to offer help to these women."

Scott also bemoaned the criminalization of pregnant women who use drugs under the law, a process of stigmatization and punishment only made more severe for women lacking resources.

"Low income women, women of color, already have issues navigating the court system, and many don't have any kind of support system," she said. "When their children are taken, they don't have the resources to get them back. And the other piece of this is that jails aren't hospitals or treatment centers. They don't offer women an opportunity to be properly rehabilitated from drug use."

And then there's the aftermath of a criminal conviction.

"If you look at this through the lens of racial and reproductive justice, how does a woman with this on her record bounce back, how does she get a job? With a criminal background, she will be further locked out," said Scott. "These are the kinds of barriers and issues that will ultimately hurt the mothers of Tennessee. We can't support legislation that uses criminalization as a means of rehabilitating people," she told the Chronicle.

"Our lawmakers had good intentions, but they didn't think it through," said Scott. "They seem to be very ready to separate mothers and children as a way of helping, and we don't see it like that, especially when there are rehab programs that keep mother and children together."

The new law is also generating alarm with advocates for people who use opioid maintenance therapy to deal with opiate addictions. Methadone and buprenorphine maintenance are the gold standard for treating pregnant women addicted to narcotics. While state health officials have said they interpret the law to mean that a pregnant woman on methadone maintenance would not be in violation of it, there is no language in it that explicitly says that.

"I asked the governor to veto the bill because that exclusion wasn't made," said Mark Parrino, president of the American Association for the Treatment of Opioid Dependence. "The real question is whether some representative for the attorney general's office or a DA or child protection services interprets it that way. This is a potential problem. When you're talking about child protection, it's not unusual for a judge or child protection worker to say to a pregnant mom 'You can't be on methadone.' I hope this law will not be used as a method of forcing maintained patients out of care."

While babies born to opiate-addicted women can suffer from Neonatal Abstinence Syndrome, or withdrawals, they can be treated for that, mainly by slowly tapering the dose of opiates. But, Parrino said, not all pregnant mothers on methadone maintenance have babies with the syndrome, and consequences for fetuses can be serious if mothers are forced off opiates during their pregnancies.

"What happens to a fetus if you force mom to end her medication?" he asked. "In the first trimester, a sudden decrease can be harmful to the fetus. There could be spontaneous abortion. It's in the literature. That's why laws like this raise concerns in people who have some knowledge about how pregnant women are treated."

Parrino, too, saw race a playing a role, but in an unexpected way.

"What I am seeing for the first time in 30 years is a real interest by elected officials, many US senators and governors and legislators, who can't wrap their heads around why white teens and 20-somethings from middle class families in the suburbs and rural areas are shooting heroin," Parrino observed. "Those elected officials are right to be worried. This legislation in Tennessee is a result of those dynamics."

While the law may have been passed with the best motives, "the problem is the criminalization aspect," said Parrino. "Even if it can be explained as having a reasonably good intention of getting pregnant women not to use drugs and go to treatment, you are unwittingly subverting that goal by saying that being in methadone maintenance might be seen as not complete treatment. That uncertainty is creating anxiety."

The new law is set to go into effect on July 1, but efforts are already underway to block it and, barring that, to mitigate its effects.

"We're still trying to figure out the best plan of action," Scott said. "We want to figure out the best way to support women who are going to be victims of this policy. At the grass roots level, that means education, awareness, getting the word out through rehab centers to let the women know this is coming. Then we have to figure out what is the legal strategy to try to change this law. We're working on it."

"We're thinking about a legal challenge, especially on constitutional grounds," said Diaz-Tello. "We have worked with public defenders in Tennessee and other states on challenging similar laws on constitutional grounds. There's also the possibility of an affirmative suit to get the law enjoined. It would be ideal to stop this law before anyone gets arrested under it."

Barring the successful blocking of the law, drug-addicted pregnant women in Tennessee will face the tender mercies of the criminal justice system. But not all of them, of course.

"Race and class plays a role as always," said Scott. "Poor mothers go to jail; mothers with access to more resources may not be penalized at all. Women who have access to health care and can afford private prenatal care and treatment will get treatment; women who have no alternative but public aid or a public health clinic will be disproportionately impacted as always. Nothing's changed as far as race and class."

TN
United States

Tennessee Governor Signs Bill Criminalizing Pregnant Women Who Use Drugs

Tennessee Gov. Bill Haslam (R) today signed into law a bill that will allow the state to file criminal charges against pregnant women who use drugs on the grounds that they are potentially harming their fetuses, even though there is little scientific evidence that being exposed to illicit drugs in the womb causes long-term harm to children.

Tennessee Gov. Bill Haslam (R) (tn.gov)
In his signing statement, Haslam said he signed the bill after "extensive conversations with experts including substance abuse, mental health, health and law enforcement officials" and will "be monitoring the impact of the law through regular updates with the court system and health professionals."

The bill foresees prison sentences of up to 15 years for women who used drugs and whose babies were stillborn or born addicted or otherwise harmed.

Haslam's move comes just one day after acting head of the Office of National Drug Control Policy (ONDCP -- the drug czar's office) slammed the notion in a visit to the state.

"Under the Obama administration, we've really tried to reframe drug policy not as a crime but as a public health-related issue, and that our response on the national level is that we not criminalize addiction," said acting drug czar Michael Botticelli. "We want to make sure our response and our national strategy is based on the fact that addiction is a disease."

Haslam's approval of the measure, Senate Bill 1391, also comes in the face of a massive outcry from reproductive rights and criminal justice groups across the country, who say that criminalizing pregnant women is the wrong policy approach. Those advocates argue that criminalizing pregnant women who are using drugs works against getting them to come forward to seek medical treatment and that the law will disproportionately impact poor, non-white women.

"Today, the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse," said Alexa Kolbi-Molinas, a staff attorney with the ACLU Reproductive Freedom Project. "This deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time."

It isn't just activists who are upset. According to National Advocates for Pregnant Women, most medical expert groups oppose such laws. And specialists in obstetric medicine and drug addiction called on Haslam to veto the measure.

"Tennessee has become the first state to ignore the warnings of medical and public health experts to pass a law criminalizing pregnancy outcomes," the pregnancy advocacy group said this afternoon.

Nashville, TN
United States

Chronicle AM -- April 7, 2014

Talk about unintended consequences! Faced with a declining US market share, Mexican marijuana farmers are switching to opium poppies. Plus, AG Holder has some words about rescheduling, the Maryland decrim bill is back from the dead, it looks like 2016 for California legalization, and more. Let's get to it:

With declining US market share, Mexican marijuana farmers are switching to poppies. (unodc.org)
Marijuana Policy

Holder Says Obama Administration "Willing to Work" With Congress to Reschedule Marijuana. Attorney General Eric Holder said Friday that the Obama administration would be willing to work with Congress if lawmakers want to reschedule marijuana. Holder did not mention that the administration, and he personally, already have the statutory authority to reschedule marijuana, without needing further permission from Congress. Either way, recategorizing marijuana would not legalize the drug under federal law, but it could ease restrictions on research into marijuana's medical benefits and allow marijuana businesses to take the usual tax deductions, e.g. not pay taxes on money that has been paid out for things like rent or payroll. "We'd be more than glad to work with Congress if there is a desire to look at and reexamine how the drug is scheduled, as I said there is a great degree of expertise that exists in Congress," Holder said during a House Appropriations Committee hearing. "It is something that ultimately Congress would have to change, and I think that our administration would be glad to work with Congress if such a proposal were made." 

Okay, There Will Be No California Legalization Initiative This Year. Proponents of the last two California marijuana legalization initiatives still alive this year have thrown in the towel. Dave Hodges, proponent of the Marijuana Control, Legalization & Revenue Act (MCLR) announced today that it will not meet an April 18 signature-gathering deadline, while Berton Duzy, proponent for the revived California Cannabis Hemp Initiative (CCHI), which has received a signature-gathering extension, conceded that "We're not going to make 2014." In California, it's now all eyes on 2016.

Maryland Decriminalization Returns from the Dead, Passes House. Defying a powerful committee chairman who tried to derail a decriminalization bill by turning it into a study bill, House delegates Saturday passed House Bill 879 by a vote of 78-55. Final procedural votes on both measures are expected today, the last day of the session.

Delaware Governor "Willing to Discuss" Softer Marijuana Penalties. Gov. Jack Markell (D) is "willing to discuss" changes that would reduce penalties for the possession of small amounts of marijuana, according to a spokesman for the governor. "The governor has supported making marijuana available for medical purposes and DHSS expects to license a dispensary that can open in Delaware this year," Markell spokesman Jonathon Dworkin said in a statement. "The governor is willing to discuss changing the penalty for possession of small amounts of marijuana from jail sentences to just fines, but he would not support full legalization at this time without further studies and evidence of its consequences."

Thousands Rally at Annual Ann Arbor Hash Bash. An estimated 8,000 people gathered at the University of Michigan in Ann Arbor for the 42nd annual Hash Bash over the weekend. Police warned that people who toked up could get arrested, but that didn't seem to stop anybody. As The Detroit Free Press noted, "the event's usual plume of smoke hung over the crowd."

University of Colorado Will Close the Campus Again for 4/20. University of Colorado officials will close the Boulder campus on April 20 for the third straight year to prevent thousands of celebrants from marking the stoner holiday on campus. From noon to 6:00pm on April 20, CU faculty, students and staff will be required to show identification to enter campus. Officials brushed aside student complaints.

Medical Marijuana

Washington State Appeals Court Upholds Local Ban on Collective Gardens. The Washington Court of Appeals last week upheld the city of Kent's ban on medical marijuana collective gardens, ruling that the ordinance is not preempted by state law. The case is Cannabis Action Coalition et al. v. City of Kent et al.

Hemp

Nebraska Governor Signs Hemp Research Bill. Gov. Dave Heineman (R) last week signed into law Legislative Bill 100, which allows University of Nebraska campuses to grow hemp for research purposes. This is the first such bill to pass since Congress authorized search research when it accepted a hemp amendment to the omnibus agriculture bill this fiscal year.

Drug Testing

Michigan Suspicion-Based Welfare Drug Testing Bill Polls Well. Suspicion-based drug testing for welfare recipients has broad support across Michigan, a new poll shows. The poll, conducted by Marketing Resource Group, finds that 77% of respondents support legislation that would require the Department of Human Services to test welfare recipients suspected of using drugs, then send recipients with positive tests to rehab. House Bill 4118 has already passed the House and Senate, but was amended in the latter chamber, so it still needs another House floor vote.

Law Enforcement

California Bill Would Create Zero-Tolerance DUID Law. A bill that would make the presence of any detectable amount of any controlled substance, including prescription drugs, evidence of drugged driving has been filed in the Assembly. Assembly Bill 2500, sponsored by Assemblyman Jim Frazier (D-Solano) is before the Assembly Public Safety Committee.

Colorado Bill Would Make Mere Drug Possession Evidence of Child Endangerment. Under a bill introduced by state Sens. Andy Kerr (D-Lakewood) and Linda Newell (D-Littleton), the mere possession or use of illicit substances would be grounds for a claim of child endangerment. Senate Bill 178 was filed April Fools' Day, but it's no joke.

International

With Declining US Market Share, Mexican Farmers Switch from Marijuana to Opium. With the wholesale price of marijuana falling -- driven in part by decriminalization or legalization in sections of the United States -- Mexican drug farmers are turning away from cannabis and filling their fields with opium poppies, according to this lengthy article from The Washington Post. That means more, cheaper heroin for the US market. Pot farming "isn't worth it anymore," one farmer complained. "I wish the Americans would stop with this legalization." David Shirk, a Mexico researcher at the University of California at San Diego, told The Post, "When you have a product losing value, you diversify, and that's true of any farmer… The wave of opium poppies we're seeing is at least partially driven by changes we're making in marijuana drug policy."

Filipino Drug Warrior Mayor Issues Shoot-to-Kill Order for Cocaine Sellers. Davao City Mayor Rodrigo Duterte, a man never known for letting human rights get in the way of his war on drugs, has issued a shoot-to-kill order against anyone selling cocaine from eight bricks of the drug still missing after police seized 64 of the one-pound packages. "Once they go out and use or sell them, they will become drug lords. I have a shoot-to-kill order, especially if they resist arrest -- if they do that, we can enforce the shoot-to-kill," Duterte said.

Jamaican Marijuana Growers Association Is Launched. A group of influential Jamaicans gathered Saturday to formally launch an association of supposed future marijuana cultivators as momentum builds toward loosening laws prohibiting pot on the Caribbean island. Some 300 people assembled at a conference center in downtown Kingston to officially launch the Ganja Future Growers and Producers Association. Among other things, the group will lobby for creation of a regulated cannabis industry on the tropical island famed for its marijuana cultivation. The government has been making some promising noises about medical marijuana and decriminalization, but there is nothing definite so far.

Chronicle AM -- February 14, 2014

Marijuana legalization is dead in the Hawaii statehouse this year, but still kicking at the Oregon capitol, the annual Monitoring the Future survey is out, Uruguay's president chides the US and Europe on drug policy, and more. Let's get to it:

Uruguayan President Mujica has some advice for the US and Europe (wikimedia.org)
Marijuana Policy

Hawaii Legalization Bill Killed, But Decrim Bill Still Lives. A bill that would have legalized marijuana in the Aloha State died in a state Senate committee Thursday, but a decriminalization bill still lives. Senate Bill 2733 was "deferred" in committee, or, as Sen. Will Espero, chair of the Public Safety Committee said in remarks reported by the Associated Press, "At this time, the legalization bill is dead." But a decriminalization bill, Senate Bill 2358, remains alive.

Oregon Bill to Put Legalization on November Ballot Advances. A bill that would put marijuana legalization to the voters in November advanced on a 3-2 vote in the Senate Judiciary Committee Thursday. Senate Bill 1556 must now pass the Senate Rules Committee before going to a Senate floor vote. Supporters said it would give the legislature more control than a legalization initiative sponsored by New Approach Oregon.

Maryland Bill Would Ban Cooperation With Feds on Marijuana Prohibition. A bipartisan group of legislators has introduced a bill that would refuse cooperation with federal marijuana prohibition laws. House Bill 1016 prohibits enforcement of any federal law or regulation prohibiting cannabis by any state agency, political subdivision of the state, or any agent or employee of the state or political subdivision of the state acting in their official capacity, or a corporation providing services to the state or political subdivision. The bill relies on the "anti-commandeering" doctrine that says states cannot be compelled to enforce federal laws. Click on the link for more.

Tennessee Poll Reveals Splits on Marijuana Policy. A Middle Tennessee State University poll has found that only 33% said it should be legalized, with 57% saying it shouldn't. But when that 57% was asked if adults should be allowed to have marijuana if prescribed by a doctor, nearly two-thirds of them said yes. When the one-third that said legalize is combined with the 36% that said medical was okay, that creates a strong majority at least for medical marijuana.

Medical Marijuana

Kansas Legislative Foes Snub Debate. Key legislators blocking the advance of medical marijuana bills added insult to injury Friday by failing to show up to an informal debate on the issue at the state capitol to which they had been invited. Sen. David Haley (D), author of Senate Bill 9, invited Senate President Susan Wagle (R) and Committee on Public Health and Welfare Chair Sen. Mary Pilcher-Clark to the event sponsored by Kansas for Change, but they were no-shows.

Guam Medical Marijuana Bill "Inorganic," Election Commission Says. The legal counsel for the Guam Election Commission said Thursday a pending medical marijuana bill violates the Organic Act that established democratic government in the US territory. At the request of legislators, Senate Bill 215 sponsor Sen. Tina Muna Barnes (D-Mangilao) amended her bill to have it approved by voters in a referendum, but the legal counsel said the Organic Act has no provision for such referenda.

New Hampshire Medical Marijuana Modification Bill Stalled. A bill that would expand the state's medical marijuana program to include several more diseases, but also limit the amount of marijuana patients could purchase in a month is on hold after key lawmakers said it needed more work. House Bill 1616 has some problematic provisions, including one that would criminalize patients for possessing their medicine in a motor vehicle unless it is in a locked container, legislators said. Lawmakers will continue to review it, they said.

Drug Use

Annual Monitoring the Future Teen Drug Use Study Released. The annual survey of drug, alcohol, and tobacco use among 8th, 10th, and 12th graders was released Thursday. There's not a whole lot shocking in it. Illicit drug use is generally down slightly, except for marijuana, which is up slightly, although in "non-significant" amounts among 8th and 10th graders, and flat for 12th graders. The complete survey is at the link.

International

Uruguay's Mujica Says US, European Drug Policies Must Change. In an interview with Reuters Thursday, Uruguayan President Jose Mujica, whose country recently legalized marijuana commerce, said the US and Europe need to find a new strategy to deal with drugs. "The industrial societies are the ones that have to change," he said. "For a small country, it's possible to experiment with this, but it's also very possible for a developed country because of the resources it has. There are big markets, they have great buying power, and that is a big economic attraction. Until things change there, it will be very difficult to change elsewhere," said Mujica. "Any North American state is more important than Uruguay, in dimensions, in its economic force," he said. "But it's still a bit like a lady embarrassed to admit her natural sins and lying to herself. What we are doing is much more open."

UNODC Calls on Sri Lanka to Enact More Prohibitionist Laws to Stop Sea Smuggling. The United Nations Office on Drugs and Crime (UNODC) Thursday called on Sri Lanka to enact mechanisms allowing it to prosecute those caught drug smuggling on the high seas. UNODC complained that without such a law, smugglers caught at sea off Sri Lanka are simply set free after their drugs are dumped into the ocean. The Sri Lankan government said it would have to consider the idea. [Ed: The thriving global drug trade and dim interdiction statistics demonstrate the futility of the approach that UNODC is calling for.]

Teen Drug Use Survey Figures Spark Marijuana Debate [FEATURE]

This year's annual Monitoring the Future (MTF) survey on the habits of 8th, 10th, and 12th graders was released Wednesday, and most of the results were uncontroversial. But with two states having already legalized marijuana for adults and opinion polls suggesting more and more Americans are ready to move ahead with legalization, battles are raging over the numbers on teen marijuana use and what they mean.

The survey found that for most drugs, teen use levels are stable or declining. Synthetic marijuana use was down, as was cigarette smoking, alcohol drinking, and the use of inhalants, synthetic stimulants, prescription opioids, salvia divinorum, and hallucinogens other than LSD.

Drugs where teen use levels were stable included LSD; amphetamines; Adderall, specifically; Ritalin, specifically; ecstasy; cocaine; crack; heroin; methamphetamine; crystal methamphetamine; sedatives; tranquilizers; Rohypnol; Ketamine; and steroids. For most of these drugs, use levels even in 12th grade were quite low. For instance, 2.2% of seniors reported using LSD, 2.3% reported using Ritalin, and 4.0% reported using ecstasy.

When it comes to marijuana, 23% of seniors said they smoked in the month prior to the survey, 18% of 10th graders did, too, and so did 12% of 8th graders. Some 6.5% of seniors reported daily use, as did 4.0% of 10th graders, and under 2% of 8th graders.

It helps to put those numbers in historical perspective. All of the numbers are above the historic lows in teen drug use reported at the end of the Reagan-Bush era in the early 1990s, but well below the historic highs in teen drug use reported in 1979, just before the Reagan-Bush era began.

For seniors, the all-time low for monthly use was 11.9% in 1992, but the recent high was 23.1% in 1999. This year's 22.7% is actually a decline of two-tenths of a percent from 2012, and in line with figures for the past decade showing rates hovering in the upper teens and low twenties. It's a similar story at the younger grade levels.

The survey also found that the notion that regular use of marijuana is harmful is losing favor among teens. Only 39.5% of seniors saw it as harmful, down from 44.1% last year, and down significantly from views over the past two decades.

Despite the relative flatness of the marijuana use numbers, some warned that the sky is falling, cherry-picking the numbers and warming to favored themes to support their points of view.

Ever since Reefer Madness days, teen marijuana use has worried the grown-ups.
"Let these numbers be a wakeup call to parents and decision-makers alike," said Kevin Sabet, a former senior drug policy advisor in the Obama Administration now serving as the director of Project SAM (Smart Approaches to Marijuana). "There is no way to properly 'regulate' marijuana without allowing an entire industry to encourage use at a young age, to cast doubt on the science, and to make their products attractive -- just like Big Tobacco did for 50 years. Today's Big Marijuana is no different."

"These increases in marijuana use over the past few years are a serious setback in our nation's efforts to raise a healthy generation of young people," said Gil Kerlikowske, director of the Office of National Drug Control Policy. "Teens deserve to grow up in an environment where they are prepared to meet the challenges of the 21st century, and drug use never factors into that equation. Today's news demands that all of us recommit to bolstering the vital role prevention and involved parenting play in keeping young people safe, strong, and ready to succeed."

"This is not just an issue of increased daily use," said Nora Volkow, director of the National Institute on Drug Abuse (NIDA). "It is important to remember that over the past two decades, levels of THC -- the main psychoactive ingredient in marijuana -- have gone up a great deal, from 3.75% 1995 to an average of 15% in today's marijuana cigarettes. Daily use today can have stronger effects on a developing teen brain than it did 10 or 20 years ago."

Volkow also latched onto figures showing that 12% of 8th graders had tried marijuana in their lives.

"We should be extremely concerned that 12% of 13- to 14-year-olds are using marijuana," Volkow added. "The children whose experimentation leads to regular use are setting themselves up for declines in IQ and diminished ability for success in life."

In 2012, MTF added questions about where students obtain marijuana. In states that have medical marijuana, 34% of pot-smoking seniors said one of the ways they got their marijuana was through someone else's prescription (recommendation). And 6% said they got it with their own recommendation.

"A new marijuana industry is forming in front of our eyes, and make no mistake about it: they are delighted their customers -- today's youth -- consider their product safe," remarked former Congressman Patrick J. Kennedy, a Project SAM cofounder. "The rise of legalization and medical marijuana has sent a message to young people that marijuana use is harmless and non-addictive."

But while the drug czar, Dr. Volkow, and Project SAM were sounding the tocsin about the threat of teen marijuana use, others reacted more calmly, taking solace from the findings that teen cigarette smoking and drinking, not to mention other drugs, had declined.

"These findings should put to rest any claims that reforming marijuana laws and discussing the benefits will somehow contribute to more teens using marijuana," said Mason Tvert, director of communications for the Marijuana Policy Project. "It's time for prohibition supporters to stop hiding behind teens when debating marijuana policy."

The declines in teen cigarette smoking and drinking show that regulation -- not prohibition -- is the way to address substance use, Tvert said.

"Regulation clearly works and prohibition has clearly failed when it comes to protecting teens," he argued. "Regulating alcohol and tobacco has resulted in significant decreases in use and availability among teens, and we would surely see similar results with marijuana. At the very least, this data should inspire NIDA and other government agencies to examine the possibility that regulating marijuana could be a more effective approach to preventing teen use."

Marijuana Use Fairly Stable, Annual Survey Finds

The annual Monitoring the Future survey of teen drug use is out, and anyone trying to use the numbers to argue that marijuana reform is causing a spike in teen pot-smoking is going to have a hard sell.

Here's what MTF had to say about teen marijuana use:

"Annual marijuana prevalence peaked among 12th graders in 1979 at 51%, following a rise that began during the 1960s. Then use declined fairly steadily for 13 years, bottoming at 22% in 1992 -- a decline of more than half. The 1990s, however, saw a resurgence of use. After a considerable increase (one that actually began among 8th graders a year earlier than among 10th and 12th graders), annual prevalence rates peaked in 1996 at 8th grade and in 1997 at 10th and 12th grades. After these peak years, use declined among all three grades through 2006, 2007, or 2008; after the declines, there began an upturn in use in all three grades, lasting for three years in the lower grades and longer in grade 12. In 2011 and 2012 there was some decline in use in grade 8, with 10th and 12th grades leveling in 2012. In 2010 a significant increase in daily use occurred in all three grades, followed by a nonsignificant increase in 2011. In 2012 there were non-significant declines for daily use in the lower grades and a leveling at 12th grade with use reaching 1.1%, 3.5%, and 6.5% in grades 8, 10, and 12, respectively."
 

The bolding is ours. There are short term ups and downs, but they seem to be of mainly rhetorical and polemical significance.

If you look at the handy tables at the end of the report, you see that combined lifetime marijuana use for all three grades (8, 10, and 12), was at 30.7% last year, about the same as it was in 1995 (31.6%) or 2005 (30.8%). Much happens, but little changes.

Ditto for annual use: 26.1% in 1995, 23.4% in 2005, 24.7% last year.

Ditto for monthly use: 15.6% in 1995, 13.4% in 2005, 15.1% last year.

Ditto for daily use: 2.7% in 1995, 2.9% in 2005, 3.6% last year.

The daily use figures could be alarming ("Daily Teen Pot Smokers Up 25% Since 1995"), except the trend-line is not steadily upward, but varies from year to year (it was 3.7% in in 2001 and 2.7% in 2007).

Look for some terrifying spin about how the numbers show the kids are going to pot. But when you look at the numbers more closely and over time, when it comes to teens and marijuana, meh, what's new?

Radel Hypocrisy Charge Doesn't Withstand Scrutiny

[Update: I've posted an improved version of this editorial in the Chronicle. Request links and likes there instead. - DB]

One of the top political stories this week is the recent bust for cocaine possession of Rep. Trey Radel, a Republican freshman congressman from Florida. Radel pleaded guilty today, and was sentenced to a year of supervised probation. As I write this piece, he is giving a press conference to apologize to the country and his family.

http://www.stopthedrugwar.org/files/trey-radel-200px.jpg
Trey Radel
Since the bust came to light, headlines have been circulating to the effect of Radel having voted for legislation to drug test food stamp recipients. I believe this is off base, because it is true only in a technical sense. As the body of the articles explain, what Radel voted for was an ultimately failed version of the Farm Bill, one of the major, recurring federal budget bills that get authorized every five years. It includes things like agricultural subsidies, funding for the food stamps program as a whole (now known as SNAP, Supplemental Nutritional Assistance Program, rather than "food stamps"), many other items. Drug testing of food stamp recipients was just one provision out of many in the bill, and a look at the bill's roll call shows that while it was mostly Republicans who voted for it, there were also some Democrats, including some liberals who almost certainly opposed the drug testing provision. Politicians frequently have to vote for bills that include provisions they don't like, because they want to larger package to pass.

The drug testing language was actually added to the bill through an amendment sponsored by Rep. Richard Hudson (R-NC), which was passed on a voice vote, no roll call. That means there is no way to know, at least from the official legislative record, what Radel's position on the amendment was. His vote for the Farm Bill is consistent with supporting the amendment, with opposing the amendment, or with having no position on it. It's legitimate to point out, as a Politico article did, that Radel's arrest "brings up drug testing for food stamps." I hope it does, but that's a different point.

A ThinkProgress article noted that Radel has made comments suggesting "nuance" in his views on drug policy, pointing out he cosponsored a bill to reduce the use of mandatory minimum sentencing for low-level drug offenses. Perhaps in a nod to the "drug testing vote" headlines, the article has an update at the bottom mentioning the vote. I believe the original thrust of the article was on target, and I don't see the hypocrisy angle holding up in this case, at least from as much as we know right now.

Youth Drug Use on Decline, Most Media Fail to Notice

One of the two annual major drug use surveys in the US released its results this week, coinciding with National Recovery Month, according to the news release from the Substance Abuse and Mental Health Services Administration. The National Survey on Drug Use and Health contains a wealth of information and is hard to boil down, but there are some number that seem salient.

One of them is that current marijuana use by adults (past 30 days) has increased from 5.8% of the population in 2007 to 7.3% in 2012, or 18.9 million current users. However, current marijuana use among youths aged 12 to 17 decreased slightly from 2011 to 2012, 7.9% down to 7.2%, although it's up slightly from 2006 and 2007 (6.7% in both years), but in turn down from 2002 (8.2%). It doesn't look like teen marijuana use is going up generally, and it may be going down, but data like this is usually complicated.

Another is that heroin use has been going up, 373,000 past-year users in 2007 vs. 669,000 in 2012. But cocaine and methamphetamine use have dropped significantly during the same timeframe, while nonmedical use of prescription drugs has stayed about constant.

The other major annual drug use survey, Monitoring the Future, has a category that I believe is useful, "Illicit Drugs Other Than Marijuana." NSDUH doesn't seem to provide a breakdown on that. MTF has found that while use of any given illicit drug besides marijuana varies, the percentage using some illicit drug besides marijuana is roughly constant over time.

Also, drug use by older people (the "baby boomers") is way up relative to a decade ago, though still only about 7%.

How did the mainstream media do? Mixed. A number of outlets highlighted the increase in drug use by older persons, and I certainly agree that's a key finding. But most major outlets focused on the increase in marijuana use overall, while failing to note the decrease in teen marijuana use, including TimeCNN, US News and World Report, USA Today and Fox News. In the (quick and incomplete) look at Google News links that I took, only ABC noted that youth illicit drug use had dropped even as overall illicit use had increased.

I think it's a significant "fail" that most major media did not note that, given the importance place that youth drug use naturally holds in these concerns. Overall, though, the media did not "freak out" over the drug use stats, and that's a good thing.

I've only taken a fairly quick look at the new numbers. We'd welcome any insights readers have on this topic -- even if you think I'm wrong -- post to the comments below, or email us your thoughts or links to your own analyses.

GAO Says ONCDP Not Achieving Drug Goals So Far

Just a day after the Office of National Drug Control Policy (ONDCP -- the drug czar's office) released its latest annual national drug control strategy, the Government Accountability Office (GAO) has issued a report finding that ONDCP has fallen well short of goals enunciated in its 2010 national drug strategy.

In the report, Office of National Drug Control Policy: Office Could Better Identify Opportunities to Increase Program Coordination, GAO noted that ONDCP and the federal government "have not made progress toward achieving most of the goals articulated in the 2010 National Drug Control Strategy." In some areas, including reducing teen drug use, reducing drug overdose deaths, and reducing HIV infections from injection drug use, GAO found, ONDCP was not only not making progress, but sometimes the numbers were moving in the opposite direction.

For instance, under the broader goal of "curtailing illicit drug consumption in America," ONDCP had set use reduction goals to be achieved by 2015. It sought to reduce last month drug use by teens by 15%, but has achieved no movement. Similarly, it sought a 15% reduction in past month use by young adults, but has achieved no movement. It also sought to reduce lifetime use of drugs, alcohol, and tobacco by 8th graders by 15%, and was making progress toward its goal with alcohol and tobacco, but not with illegal drugs.

Likewise, under ONDCP's broad goal of "improving the public health and public safety of the American people by reducing the consequences of drug use," ONDCP identified goals of reducing overdose deaths, drug-related hospital emergency room visits, and drug-related HIV infections by 15% by 2015, but showed "movement away from goal" between 2010 and 2012.

Drug czar Gil Kerlikowske is talking up a "21st Century Approach" to drug use with a heavy emphasis on treatment and prevention, but the latest national drug budget still allocates 58% of funding to law enforcement and interdiction. And those remaining funds for treatment and prevention are "fragmented" across 15 federal agencies, with much overlapping. GAO reviewed 76 federal drug treatment and prevention programs and found 59 of them overlapped.

GAO did note that while ONDCP was not showing progress in most of its goals, it had implemented 107 of the 112 "action items" contemplated to meet those goals. The auditors noted that "ONDCP officials stated that implementing these action items is necessary, but may not be sufficient to achieve Strategy goals."

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