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Feature: Border Blues -- Canada, US Both Bar People Who Used Drugs -- Ever

Nearly one of out six Canadians could be turned away from the United States because they used drugs at some point in their lives, and nearly 100 million Americans face the same prospect at the Canadian border. Under the immigration laws of both countries, persons who admit to past drug use or have a drug conviction can be excluded by the decision of the border guard they encounter and his immediate supervisors.

http://stopthedrugwar.org/files/I-5.jpg
I-5 at Peace Arch Park, US-Canada border between Seattle and Vancouver
Fortunately for millions of North Americans, the laws are not enforceable if they have kept their past drug use to themselves and not left a record of it in print or online. But for the at least 17 million US citizens who have drug convictions and a smaller but still sizeable number of Canadians with drug convictions, such laws could lead to a rude awakening when arriving at the border.

How many people are actually turned back at the border for past drug use is unknown. US Customs and Border Protection Service officials could not provide a detailed breakdown of the 574 aliens deemed inadmissible on the average day. Nor were Canadian figures obtainable from Citizenship and Immigration Canada.

While such policies have been in place for years, they have been little known -- except for people who have found out the hard way. One of those people is Dr. Andrew Feldmar, a Vancouver, BC, psychiatrist, who had crossed the border on numerous occasions, only to be turned back last summer by a US Customs and Border Patrol (CBP) agent who googled his name and turned up an academic article in which he discussed taking LSD on two occasions nearly forty years ago.

An independent Canadian newspaper, The Tyee, picked up on the story last month, and since then it has been recounted in numerous publications, including a May 14 piece in the New York Times that was widely syndicated and appeared on numerous blogs. The Feldmar fiasco has led to renewed attention to the persecution of admitted drug users at the border under a policy that, if strictly enforced, would make hundreds of millions of people ineligible to enter the US.

The relevant section of US immigration law says that the US can exclude "aliens who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance as defined in s. 102 of the Controlled Substances Act. An attempt or conspiracy to commit such a crime is included in this ground of exclusion."

"Drug violations or admissions of drug use fall under the controlled substances statutes and make people inadmissible under certain circumstances," said Mike Milne, a US Customs and Border Protection spokesman in Seattle. "It depends on the totality of the circumstances," he told Drug War Chronicle. "We don't treat marijuana differently from any other illicit drug," Milne added. "It's considered a prohibited substance."

But as the case of Dr. Feldmar shows, the "totality of the circumstances" is very open to interpretation. In Feldmar's case, two instances of ancient LSD use for research purposes outweighed his decades of solid citizenship and professional activity and the fact that he had previously entered the US without problem on multiple previous occasions.

"Denying a respected researcher like Dr. Feldmar entry into the county is just absurd," said Drug Policy Alliance executive director Ethan Nadelmann, whose organization has begun a campaign to undo the policy. "We have grave concerns about the impact this can have on researchers on drugs writing openly. And what about people coming here for a conference on methadone or on injection drug use and HIV? Many of these people are likely to have been drug users," he told the Chronicle. "Are we to exclude them now? We are also deeply concerned that these increasingly powerful databases make it possible to go back and dredge up anything you ever wrote or blogged or posted on a web page."

DPA is looking into what, if any, action could be taken in Congress to ameliorate the problem, but it is unlikely anything would happen this year. "100 million Americans have used an illegal drug at some point in their lives, and it's hard to find a presidential candidate who hasn't smoked pot; yet we're prohibiting people from other countries who have used drugs from visiting our country. It just doesn't make sense," said Bill Piper, DPA's director of national affairs. "Imagine if other countries adopted similar policies. Bill Clinton, Newt Gingrich, Michael Bloomberg, Bill Gates, Brad Pitt, Sam Donaldson and millions of other Americans wouldn't be able to travel."

Work in Congress is just getting underway, Piper told the Chronicle. "We just started our first round of lobbying congressional offices, talking to the staff of people on the judiciary and homeland security committees," he said. "People didn't know about this and were shocked at the policy; it just seemed unfair to them to punish people for things they'd written or things they had done in the past."

After educating key congressional staffers, said Piper, it will be on to phase two. "Right now, we trying to gauge how widespread is the interest in this, and then we'll probably go back for a second round of lobbying."

For people thinking about traveling to the US, CBP's Milne outlined what could happen in the event they are excluded. If a person is denied admission because of past drug use or convictions, said Milne, three possibilities present themselves. "In most cases, you can just withdraw your application for admission and turn around and walk away," he said. "Or you can choose to go before an immigration judge to adjudicate the issue. In that case, you would most likely remain in custody until the hearing," he said. "But if you make false statements during the course of your application [if you get caught denying past use or a conviction], you can be subject to extradited removal. In that case, we will document that something illegal took place on this attempt to enter, remove you from the country, and bar you from readmission for up to five years."

Milne could provide no statistics on the number of people turned away because of admitted drug use or drug convictions, but did say that of the 680,000 aliens who attempt to enter the country through ports of entry on any given day, about 575 are denied entry and 63 are arrested.

Famed Dutch drug researcher Peter Cohen isn't taking the chance. "I will not try to enter the US anymore," said Cohen, who has done ground-breaking work on the (lack of) links between drug policies and drug use levels. "Imagine if they read my research!" he told the Chronicle. "I am dead serious. I will not risk being treated like a piece of dirt by US law enforcement people who are known the world over as brutes and idiots," he vowed.

"Just a few weeks ago, we had a story here of a young Dutch man who was in the US one day past his permit," Cohen continued. "They kept him imprisoned for weeks, and his stories about his treatment and his inaccessibility to lawyers and the Dutch embassy were just horrible. No, that is not for me."

A Canadian substance use and drug policy researcher who asked not to be identified told Drug War Chronicle that "border enforcement that focuses on either research into or past personal use of illicit substances directly impacts our ability to study our current approach towards drugs, and will likely stifle dialogue that might move us towards more evidence-based policies and practices." Not only are such policies "a violation of free speech and personal liberty rights on both sides of the border," he added, "stopping the flow of information on effective harm reduction practices in both Canada and the US could have a negative impact on the public health of both our nations."

The very fact that this prominent researcher requested anonymity proves the point that the policy has a silencing impact. "I'd rather not be quoted in this article although I believe that it's an important story," he said while noting that he has not run into problems at the US border, "because if the US has reduced its homeland security infrastructure to a simple Google search, I worry that it's just a matter of time before they start to hassle me as well, and being quoted in a story pointing out that I haven't yet been harassed or denied entry sounds like the best way to raise a red flag the next time I cross the border."

But the door at the US-Canadian border can be slammed shut by either side, and despite its reputation as a cannabis-friendly nation, border guards at Canadian points of entry are just as quick to turn you back as are the Americans. In fact, Canadian border guards may be even tougher than the Americans, especially for offenses like driving under the influence.

The Citizenship and Immigration Canada web site explains:

"Whether you are planning to visit, work, study or immigrate, if you have committed or been convicted of a criminal offence, you may be prohibited from entering Canada. Criminal offences include both minor and serious offences such as theft, assault, dangerous driving, driving while intoxicated and manslaughter, among others. For a complete list of criminal offences in Canada, please consult the Canadian Criminal Code. If you have juvenile convictions (convictions for crimes committed while under the age of 18), you are most likely not prohibited from entering Canada."

The one bit of good news is that a simple marijuana possession conviction probably won't keep an American out of Canada. Under Canadian law, possession of less than an ounce is a summary offense and does not constitute inadmissibility, said Vancouver immigration attorney Gordon Maynard.

Don't try to deny any criminal history, Maynard warned. "It is not a good idea to lie. The Ports of Entry have access to the NCIC database and can readily see any history of arrests, charges, court proceedings, convictions and incarceration in the database," he said. "Officers have this information even before they ask the questions. Failure to truthfully answer questions on any relevant matter, including criminality, constitutes misrepresentation and is a separate bar against entry and can include a two-year penalty against any further entry."

Still, Maynard told the Chronicle, you could be excluded even with a clean record. "You don't need a conviction to be inadmissible to Canada on criminal grounds," he said. "Pending charges, or an admission of prior criminal behavior, can be enough if the Canadian officer has reasonable grounds to believe that you have committed a criminal offense."

"I think this is one of the worst manifestations yet in the war on some drugs," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Law (NORML). "Keeping people out of the US because they once used a drug is absurd, but Canada does the same thing. Although Canada has historically hewed toward a more open and tolerant marijuana policy, has functionally decriminalized marijuana to some degree, allows medical marijuana, and lets farmers legally grow hemp, an American can be turned away if he has a marijuana or other drug conviction or has even publicly acknowledged his drug use."

Publicity over the Feldmar fiasco has the phones ringing off the wall at NORML, St. Pierre said. "We're getting lots of calls now from people with past convictions or people who have blogged or spoken publicly or appeared on TV or radio about their marijuana use," he noted. "This includes people who are NORML lawyers, as well as Dr. Lester Grinspoon. It's his birthday next month, and his family wanted to take him to Vancouver. Although he's never been convicted of any crime, he has admitted to using cannabis, so now the family is worried about whether he can even cross the border. This is a great concern," St. Pierre said.

It's also a personal concern for St. Pierre, who was born in Maine and has family on the Canadian side of the border. "I've acknowledged using cannabis on many, many occasions, so I don't know if they'll let me in," he said. "I'd like to go up there to see family, to go fishing, to go on educational junkets, but now I don't know."

Of course, not everyone has to worry about these laws. Admitted former drug users, such as David Cameron (head of the British Tory party), former Canadian Prime Minister Kim Campbell, the current Premieres of Quebec and Ontario, actors Colin Farrell and Pierce Brosnan, British billionaire Richard Branson (Virgin Air) and numerous musicians like Paul McCartney, Keith Richards and George Michael all seem to be able to get into either country at will. Similarly, Canada doesn't seem to have any problem with admitted former drug users like Bill Clinton and Al Gore.

Perhaps, as CBP spokesman Milne mused when asked about apparent differential enforcement, "Maybe they all got waivers." Perhaps not.

Feature: With UMass Researcher One Decision Away From Approval to Grow Marijuana, Supporters Turn Up the Heat on the DEA

Six years after he first filed a petition with the Drug Enforcement Administration (DEA) seeking to grow marijuana to supply researchers, University of Massachusetts agronomy professor Lyle Craker is now one decision away from winning DEA approval of his project. Last week, a DEA administrative law judge issued a final recommendation that the project be allowed to move forward.

http://stopthedrugwar.org/files/lylecraker.jpg
Lyle Craker (courtesy aclu.org/drugpolicy/)
Currently, the only marijuana available for scientific and medical research is grown at a US government facility at the University of Mississippi and distributed through the National Institute on Drug Abuse (NIDA). But NIDA has proven extremely reluctant to approve scientists' requests for access to marijuana when the research they are planning to conduct is on its medical uses.

"Respondent's registration to cultivate marijuana would be in the public interest," wrote Administrative Law Judge Mary Ellen Bittner in her decision. "There is currently an inadequate supply of marijuana available for research purposes," she concluded, noting also that the risk of diversion was minimal and that Craker had complied with all applicable laws.

But the judge's decision is not binding. The final decision on Craker's petition will be made by the DEA's deputy administrator, and it is by no means certain that the functionary will heed the judge's recommendations. The agency has historically opposed any efforts to end the government monopoly on growing marijuana for research purposes and it has already stated that it disagrees with the judge's conclusions.

Backed by the nonprofit Multidisciplinary Association for Psychedelic Studies (MAPS), which will finance the research, and represented by the American Civil Liberties Union's Drug Law Reform Project, Craker has persevered for more than half a decade as his request languished in the bowels of the DEA. Now, only one obstacle remains.

In an effort to press the DEA to respond favorably to the petition, Dr. Craker and his backers and supporters held a press conference Wednesday at the agency's Northern Virginia headquarters to turn up the heat. "Working with medical marijuana seems so similar to the work we're doing with other medicinal plants that I've never understood the DEA's big problem with it," said Craker.

"The DEA has an opportunity here to live up to its rhetoric, which has been that marijuana advocates should work on conducting research rather than filing lawsuits," said MAPS president Dr. Rick Doblin "It's become more and more obvious that the DEA has been obstructing potentially beneficial medical research, and now is the time for them to change," he said.

"For almost 20 years, MAPS has been trying to conduct the research," Doblin noted. "We've had two protocols approved by the FDA, one to look at AIDS wasting and the other looking at medical marijuana for migraines. Both were blocked by NIDA, which refused to provide the marijuana we needed to do the studies. We've been struggling for four years to purchase 10 grams for vaporizer research for a non-smoking delivery system. Currently, the government has a monopoly, and our ability to do research is fundamentally compromised," he noted.

"We've won the latest round in the perennial litigation, with the DEA judge recommending that Dr. Craker get the license," said Doblin. "Unfortunately, we have to unleash a major lobbying campaign to get the DEA to live up to its rhetoric. The government is too trapped into the drug war to be comfortable funding studies that might contradict the propaganda and 'send the wrong message.' We have a situation where the government is focused on suppressing research, not facilitating it."

Also at the press conference was medical marijuana patient Angel Raich, whose challenge to federal marijuana laws went all the way to the US Supreme Court before being denied in 2005. "It is extremely frustrating that the federal government has made a really large effort to block research that could help patients like me," said the California woman, who uses marijuana to alleviate the symptoms of seizure disorders, wasting syndrome, and an inoperable brain tumor, among other conditions. "It is time for the government and the DEA to stop playing games with patients' lives," she said.

"The ACLU is involved because we believe patients like Angel should be able to get their medicine from a pharmacy, like everyone else," said the ACLU's Drug Law Reform Project's Allen Hopper. "Judge Bittner reached the only decision she could under the law," he argued, noting that Bittner acknowledged that NIDA had a stockpile of research marijuana, but that researchers were routinely denied access to it.

"We are here today," Hopper continued, "because we are now one step away from entering the Food and Drug Administration (FDA) approval process. We are confident the administration will do the right thing, but we are also prepared to go to the federal court of appeals to force the DEA to do the right thing if necessary."

An impressive array of politicians and groups is prepared to push the DEA in the right direction. Massachusetts Sens. John Kerry (D) and Edward Kennedy (D) and 38 members of the House of Representatives have joined a broad range of scientific, medical and public health organizations in challenging the federal government's policy of blocking administrative channels and obstructing research that could lead to the development of marijuana as a prescription medicine. These organizations include the Lymphoma Foundation of America, the National Association for Public Health Policy, the Multiple Sclerosis Foundation, as well as several state medical and nurses' associations.

Now it is up to the DEA to render a final decision. The DEA administrator who will make the call is not bound by Judge Bittner's recommendation, nor is she required to make her decision within any timeline. It will be up to public pressure to produce the desired results. Wednesday's press conference was only the beginning.

Rising number of home drug-test kits sold, despite experts' opposition

Location: 
United States
Publication/Source: 
The Dallas Morning News
URL: 
http://www.dallasnews.com/sharedcontent/dws/fea/healthyliving2/stories/DN-nh_drugtest_0522liv.ART.State.Edition1.4386266.html

Following Positive Recommendation From DEA Judge, Fate of Medical Marijuana Research in U.S. is Now in the Hands of Top DEA Officials

Location: 
VA
United States
Publication/Source: 
PR-Inside (Austria)
URL: 
http://www.pr-inside.com/following-positive-recommendation-from-r130046.htm

As Meth Trade Goes Global, South Africa Becomes a Hub

Location: 
Cape Town
South Africa
Publication/Source: 
The Wall Street Journal
URL: 
http://online.wsj.com/article/SB117969636007508872.html?mod=googlenews_wsj

Pot club struggles for financial survival

Location: 
Santa Cruz, CA
United States
Publication/Source: 
Santa Cruz Sentinel (CA)
URL: 
http://www.santacruzsentinel.com/archive/2007/May/20/local/stories/03local.htm

FedCURE Message: Federal Inmate Judith Giglo Writes Rep. Louie Gohmert -- "Calls Him Out on The Second Chance Act."

FedCURE pleads with all you, in the most strongest terms, to get behind Judith's heartfelt message and contact your Congressperson NOW! Urging him or her to support The Second Chance Act, especially the Republican leadership – Minority Leader John Boehner (R-OH) and Minority Whip Roy Blunt (R-MO) expressing disappointment with the delay and urging them to strongly support the Second Chance Act. Link to Contact Congress and Tips on Writing Congress: http://www.fedcure.org/ContactCongressREP-SEN.shtml and http://www.fedcure.org/documents/TipsonWritingtoCongress.pdf. Hon. Louie Gohmert Ashley H. Callen Legislative Director/Counsel Office of Rep. Louie Gohmert (TX-01) 510 Cannon HOB Washington, DC 20515 202.225.3035 ph 202.226.1230 fax ashley.callen@mail.house.gov Dear Congressman Gohmert: I am one of the incarcerated Federal prisoners that you seem to feel are not entitled to any "Perks" upon release from prison. I feel put upon to reply to the letter from Ashley H. Callen, Legislative Director/Counsel in your office. I am one of many thousand federal prisoners. I am also one of many thousand federal prisoners who is truly innocent of the charges levied against me. I was tried and convicted on a charge of "Conspiracy to Money Launder". The conspiracy part is what caused me to receive a very heavy sentence. I was one of about 15 people indicted in a "front money scam".. The fact that I did not do what I was accused and convicted of is irrelevant at this time. I am almost 6 years into a 9 year sentence. I am 62+ years old. I spent the majority of my life as a businesswoman with a reputation for fairness and integrity. I am now a number in the federal prison system. As someone with business savvy, I have tried to help those in here who have not had the opportunities that I have had. I was instrumental in setting up a unit based education class program. This program allows women in the camp to take classes taught by other inmates. These classes range from the basics of tutoring for G.E.D. exams, to construction trades and CPR and Paralegal classes and everything in between. We have about 29 classes of all sorts available. The classes are 10 weeks long and in some cases longer. Women receive a certificate of completion at the end of the sessions. They are required to take a pre-class exam to help the teacher identify the basic knowledge of the students. There is also a post exam prior to receiving a certificate. Women here at camp Coleman are not idle. Many of these women will require assistance when the are ready to leave prison. Many of these women are first time non-violent offenders. Many were caught up in the minimum mandatory drug laws and are here for 10, 20 & 30 years. A number of these women gave birth to their children in prison and have had to rely on others to raise their children. So many of these women are anxious to begin a new life and a better life for themselves and their children. You and others like you, are trying to stop what could be a wonderful program in re-entry and family stabilization. Career education and training, drug counseling if required. From what I have read of the Second Chance Act, there are no provisions for cell phones or I-pods or Blackberry's. Nor is there any pork in the bill for people to go out and not work and not support themselves. All of this would require a great deal of effort on the part of the person re-entering society. Sir, are you aware of the cost of incarceration? At my age (62+), having been hospitalized three times in six years, the cost for maintaining out elderly in prison is in the range of $70,000, per person per year. For younger people the cost is approximately $29,000. multiply that cost by the an average of 200,000 federal prisoners. Astronomical isn't it? On the other hand the cost of 1 year of community college is $1,500. Which would make more sense. Teaching our inmates to become better people or keeping them in prisons? The cost of keeping an elderly person in home confinement would be somewhere around $2,000 yearly vs $70,000. Which would make more sense? The cost of incarceration is not only the dollars, but the family ties and community ties that are in some cases irreparable. I lost my husband of 28 years shortly after I was indicted. The stress that we were put under with the advent of my upcoming trail and monetary concerns caused him to have a massive heart attack. He died in my arms. My life was shattered. Not only was I facing a trial, but I was facing financial ruin in my golden years. I have lost everything that I worked for my entire life. I lost my husband as a direct result of this unjust charge, I lost my Mom shortly after I was incarcerated and my son no longer speaks to me. I have nothing to fall back on. I have no savings and no health care and no home to go back to. Yet you want me to leave prison with no financial or educational resources. Why? Do you think that it will be easy at this age to face a new beginning? Do you think that somewhere I have hidden resources to regain a life, any kind of life? My family, what there is left of them, is unable to care for me financially. They can help me with a place to live but then I am on my own. I will not be able to go back into the business that I know. I have to start from scratch. Can you tell me how to do that if I cannot access any government aid. As a convicted felon, I have no chance of renting an apartment, getting food stamps, or even getting any federal aid for education. As a convicted felon, I will be unable to get any sort of a job except maybe entry level. I have a number of things against me. My age, and worst of all a felony conviction. With the help of the Second Chance Act, I had a Second Chance available. You seem to feel that it is okay to throw me away. What you fail to realize is that I am you and you sir are me. You and most people do not realize that they are but a pen stroke away from a federal indictment. The proverbial ham sandwich being indicted. Isn't it less expensive and easier to retrain people and offer them a means to support themselves than to force them to return to illegal means as a way of life? Isn't it less expensive to allow these former felons to develop self esteem and to hold their heads up and become a productive member of society? Wouldn't there be more money available for Veteran's programs if there were fewer incarcerated? Why are you and some of your respected colleagues trying to hold us down? I have never been involved in drugs, but drugs can be self perpetuating and cause a ripple effect for years to come. The felons in prison for drug offenses, need to be able to leave here and feel gain self worth and feel that they made a mistake and paid their debt and that it will not be held against them the rest of their lives. If you do not feel that this is an issue to be reckoned with, I and many like me will disagree as strongly as possible. I firmly believe that these programs outlined in the Second Chance should be administered by people who are best able to utilize the funds to the max. If the answer lies in Faith based programs, let it be so. I have no problem with that. I truly believe that these programs will help people for many years to come. This is not a stop gap measure. This is a long range plan to help people help themselves stay out of prison. Recidivism is highest among the unemployed and the unemployable. You can put an end to this. The recidivism rate among the over 50 group is about 2%. So why are the elderly being forced to stay in prison settings where the medical care is virtually non-existent. There are no provisions for the elderly in prison. We are given very little, if any preventive care. Heart attacks, strokes and in my case bleeding ulcers are rampant. 15 months ago, I was hospitalized with bleeding ulcers. I almost died here at the camp because of the incompetent care that I received. I was told that there was nothing wrong with me except for high blood sugar. This is not now and never has been a problem in my life. I was bleeding internally, but no one here recognized the symptoms. There is no managed care. There is no real food. The allotted cost for feeding inmates is somewhere around $1.62 per day per person, below the poverty level. Poor food, poor housing conditions, unclean housing units and little medical care add up to a very expensive cost of incarceration. Hospital stays for people like me are expensive. I have been hospitalized three times, the last time just this past week. I have undergone surgery that could have been prevented. I respectfully ask that you reconsider your opposition to this bill. Allow me to go home and become a productive member of the senior society. I have much to offer and would like to see my family again outside of the confines of prison. I do not want to die in here, and that is a very real fear. I am not alone in that fear. We have many women here who are older than I and in worse physical health. We are Social Security eligible and Medicare eligible, some of us are even able to work outside of the home. Allow the prison system to save the thousands of dollars a year that they spend on me and the other elderly. Take that money and put it to programs for the Vets. We are not asking for I-pods or Blackberry's or cell phones. We are asking for a chance. Certainly if you or someone that you care about were in this position, you would be pushing for this bill to pass. Our families feel the same way. I may not be able to vote now, but at some point I will again be able to vote and I would like to think that the candidate of choice is a person who is fair minded and caring. I believe that with your support and the support of other Republicans this bill, which is advocated by the Justice Department and the Bureau of Prisons and American Bar Association, the Public Defenders Association to name a few, would be passed. Sincerely, Judie Giglio Reg.No. 11197-017 Federal Correction Complex Camp P.O. Box 1027 Coleman, Fl. 33521-1027 P.S. This letter is being forwarded to your office by my daughter, as copy is being forwarded to Gene Guerro Open Society Institute and FedCure.
Location: 
TX
United States

The Colombia experiment

Location: 
Afghanistan
Publication/Source: 
The Ottawa Citizen (Canada)
URL: 
http://www.canada.com/ottawacitizen/news/business/story.html?id=e0509bad-a8e3-402d-b9df-5622ad9f61ca

U.S. Targets Mexican Companies In Drug War

Location: 
Mexico City
Mexico
Publication/Source: 
CBS News
URL: 
http://www.cbsnews.com/stories/2007/05/17/world/main2822280.shtml

Feature: US Sentencing Commission Again Calls on Congress to Fix Crack-Powder Cocaine Sentencing Disparity

http://stopthedrugwar.org/files/lillieblevins.jpg
the late Lillie Blevins, served life sentence for a crack cocaine ''conspiracy'' after being convicted on the word of a snitch who received probation in return (courtesy november.org)
In its annual report to Congress, the US Sentencing Commission has once again called on legislators to reduce the tough penalties for federal crack cocaine offenses. The commission's previous calls to fix the 100:1 disparity between the amount of crack and the amount of powder cocaine necessary to trigger mandatory minimum sentences have either been ignored or slapped down by previous Congresses. Whether the new Democratic majority in Congress will allow reform to be accomplished this year remains to be seen.

Under federal law in effect since 1987, someone charged with possessing five grams of crack faces a mandatory minimum five-year sentence. By contrast, it takes 500 grams of powder cocaine -- one hundred times as much -- to trigger the same sentence.

While the Sentencing Commission cannot itself enact changes in the crack cocaine law -- that's up to Congress -- it has already signaled its impatience with congressional inaction. A little more than two weeks ago, the commission adjusted federal sentencing guidelines for crack cocaine offenses so that crack offenders will serve on average about a year less than under the old guidelines. That move alone will provide small relief to thousands of federal crack prisoners.

But the real problem is the harsh mandatory minimums for federal crack offenses. The Sentencing Commission found that:

  1. The current quantity-based penalties overstate the relative harmfulness of crack cocaine compared to powder cocaine.
  2. The current quantity-based penalties sweep too broadly and apply most often to lower level offenders.
  3. The current quantity-based penalties overstate the seriousness of most crack cocaine offenses and fail to provide adequate proportionality.
  4. The current severity of crack cocaine penalties mostly impacts minorities.

"Based on these findings," the report read, "the Commission maintains its consistently held position that the 100-to-1 drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act." While noting that setting appropriate thresholds is "a difficult and imprecise undertaking that ultimately is a policy decision," the Commission nevertheless "strongly and unanimously" urged Congress to adopt the following recommendations:

  1. Increase the five-year and ten-year statutory mandatory minimum threshold quantities for crack cocaine offenses to focus the penalties more closely on serious and major traffickers as described generally in the legislative history of the 1986 Act.
  2. Repeal the mandatory minimum penalty provision for simple possession of crack cocaine under 21 U.S.C. § 844.
  3. Reject addressing the 100-to-1 drug quantity ratio by decreasing the five-year and ten-year statutory mandatory minimum threshold quantities for powder cocaine offenses, as there is no evidence to justify such an increase in quantity-based penalties for powder cocaine offenses (e.g., don't increase powder cocaine sentences).

http://stopthedrugwar.org/files/ussc-chart.jpg
graph from report, crack cocaine amounts nearly invisible next to the powder amounts
Groups that have long advocated for reform of the crack-powder cocaine sentencing disparity and the removal of mandatory minimum sentences reacted with pleasure mixed with a hint of impatience. They have been waiting a long time for action on this front.

"The prisoners, children and families torn apart by these unjustifiably harsh penalties are watching closely and will welcome crack sentencing reforms that restore some justice to crack penalties," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). "Only Congress can change our harsh mandatory minimum crack laws. Lawmakers should not squander the important opportunity presented by the most recent set of findings and recommendations by the Sentencing Commission. The time is ripe for reform, especially given the bipartisan support for crack sentencing reform that has emerged in recent years."

"The current sentencing structure has had a disproportionate and unfair impact on African-American and low income communities," said Caroline Fredrickson, director of the ACLU's Washington Legislative Office, "and we're encouraged that the US Sentencing Commission has once again acknowledged this fact. But 2007 marks the fourth time in 20 years that the commission has issued such a report, and Congress has yet to address the problem. Years of medical and legal research have shown no appreciable difference between crack and powder cocaine, and no justification for allowing the vast sentencing gap between them to stand. We urge Congress to put aside politics and act now to fix this discriminatory federal drug sentencing policy."

But it is not reform advocates but members of Congress who will or will not enact most reforms. While in the past, Congress has rejected such recommendations from the Commission, there are some indications support for reforms is growing.

"It's past time to reduce the disparity between crack and powder cocaine sentences actually," Republican Sen. Jeff Sessions told National Public Radio, "because the penalties on crack cocaine are extraordinarily heavy -- too heavy to be justified as public policy." His colleagues should listen to the Commission, Sessions added. Sessions has already introduced a bill that would reduce the disparity to 20:1.

Another key player, Sen. Patrick Leahy (D-Vermont), head of the Senate Judiciary Committee, told the legal publication the Daily Journal the report's findings were "an important first step" in correcting the sentencing disparity. "For far too long, the federal crack/powder sentencing laws have created an injustice in our nation," he said. Leahy said he hopes that federal prosecutors will focus more on drug kingpins.

Sen. Joe Biden (D-Delaware), who has announced his candidacy for the 2008 Democratic presidential nomination, has also weighed in. "This 100:1 disparity is unjust, unfair, and the time has long past for it to be undone," Biden said in a Tuesday press release. "The current sentencing disparity between the two forms of cocaine is based on false notions and old logic," said Sen. Biden. "Congress has ignored this issue for too long. I intend to introduce legislation to remedy the disparity and refocus the federal cocaine sentencing laws and federal resources on major drug kingpins, as was the intent of the 1986 law. I look forward to working with my colleagues -- Republicans and Democrats -- and urge them to support righting this wrong."

http://stopthedrugwar.org/files/crackcocaine.jpg
DEA crack cocaine photo
"There is indeed growing support for reducing the disparities," said Bill Piper, head of national affairs for the Drug Policy Alliance. "Biden, Sessions, and Sen. Hatch [R-Utah] are all working on bills, and so is Charley Rangel [D-New York] in the House," he told Drug War Chronicle. "There is growing support in the judiciary committees for doing something."

But, Piper warned, the devil is in the details. "They agree that something needs to be done, but I'm not sure they will reach agreement on what needs to be done. Then it would have to pass floor votes, and then we have to wonder if Bush would veto it," he said. "But when you have the Sentencing Commission and leading Republicans signing off on something, the Democrats should be emboldened. That shows this is a bipartisan effort."

Even the Justice Department is wavering. While Piper noted that the department has long taken the position that there was no problem, department spokesman Bryan Sierra told the Daily Journal this week that the agency is "willing to discuss the disparity in the ratio for sentencing between crack and powder cocaine," but he added that the department believes that "it should be done in the broader context of sentencing reform."

For the fourth time since 1995, the Sentencing Commission has urged Congress to act to reduce the disparity and bring greater fairness to sentencing. Now it is in Congress' hands.

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