Federal Government

To hear the buzz in drug reform circles, Christmas came early this year. To be precise, it arrived on Election Day, when the Democrats took back control of the Congress. There is a whole long list of drug reform-related issues that the Democratically-controlled Congress can address, and hopes are high that after a dozen years of Republican rule on Capitol Hill, progress will come on at least some of them. But will the Democratic Congress really turn out to be Santa Claus, bestowing gifts on a movement long out in the cold, or will it turn out more like the Grinch, offering up tantalizing glimpses of the goodies only to snatch them away?

US Capitol, Senate side

The list of drug war issues where Congress could act next year is indeed lengthy:

• Sentencing reform -- whether addressing the crack-powder cocaine disparity or mandatory minimums or both, and other reforms;
• Medical marijuana, either through the Hinchey-Rohrabacher amendment barring federal funds to raid patients and providers in states where it is legal or Barney Frank's states' rights to medical marijuana bill;
• The Office of National Drug Control Policy (ONDCP -- the drug czar's office) is up for reauthorization;
• The Higher Education Act (HEA) and its drug provision are up for reauthorization;
• Removing drug offender restrictions from food stamp, public housing, and other social services;
• The Washington, DC, appropriations bill, where Congress has barred the District from enacting needle exchange programs and a voter-approved medical marijuana law;
• Plan Colombia;
• The war in Afghanistan and US anti-opium policy;
• The pain crisis and the war on pain doctors;
• Prisoner reentry legislation, particularly the Second Chance Act;
• Police raids.

While there is optimism in drug reform circles, it is tempered by a healthy dose of realism. The Congress is a place where it is notoriously difficult to make (or unmake) a law, and while some of the new Democratic leadership has been sympathetic on certain issues, drug reform is not exactly a high-profile issue. Whether congressional Democratic decision-makers will decide to use their political resources advancing an agenda that could be attacked as "soft on drugs" or "soft on crime" remains to be seen. But according to one of the movement's most astute Hill-watchers, some "low-hanging fruit" might be within reach next year.

"Some of the easiest things to achieve in the new Congress will be the HEA ban on aid to students with drug violations, because the Democrats will have to deal with HEA reauthorization, and the ban on access to the TANF (Temporary Aid to Needy Families) to public housing, because they will have to deal with welfare reform," said Bill Piper, director of national affairs for the Drug Policy Alliance. "There is also a chance of repealing provisions in the DC appropriations bill that bar needle exchanges and medical marijuana. These are the low-hanging fruit."

For Piper, there is also a chance to see movement on a second tier of issues, including medical marijuana, sentencing reform and Latin America policy. "Can we get the votes to pass Hinchey-Rohrabacher in the House and get it to the Senate?" he asked. "There is also a good chance of completely changing how we deal with Latin America. We could see a shift in funding from military to civil society-type programs and from eradication to crop substitution," he said. "Also, there is a good chance on sentencing reform. Can the Democrats strike a deal with Sen. Sessions (R-AL) and other Republicans on the crack-powder disparity, or will they try to play politics and paint the Democrats as soft on crime? Would Bush veto it if it passed?"

Clearly, at this point, there are more questions than answers, and time will tell. But the political ground has shifted, Piper noted. "We are no longer playing defense," he argued. "Now we don't have to deal with folks like Souder and Sensenbrenner and all their stupid bills. This puts us in a really good position. For the first time in 12 years, we get to go on offense. And unlike a dozen years ago, the Democrats who will control the key committees are really, really good. This is probably the first time since the 1980s that drug policy reform has been in a position to go on the offensive."

Representatives sympathetic to drug law reform will fill key positions in the next Congress, led by Rep. John Conyers (D-MI), who will be the incoming chair of the crucial House Judiciary Committee. Replacing HEA drug provision author and leading congressional drug warrior Rep. Mark Souder (R-IN) as chair of the important Government Reform Committee Subcommittee on Criminal Justice, Drug Policy and Human Resources will be either Rep. Elijah Cummings (D-MD) or Rep. Danny Davis (D-IL) -- the assignment isn't yet set -- while Rep. Bobby Scott (D-VA) will chair the Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security, the key subcommittee when it comes to sentencing reform.

While it is too early to get firm commitments from committee heads on hearings next year, a spokesman for Rep. Conyers told Drug War Chronicle sentencing reform is definitely on the table. "Congressman Conyers is certainly interested in these issues, he's been quite outspoken on this, and it is something he will address, but we haven't come out with our agenda and we don't have a timeline yet," said House Judiciary Committee press officer Jonathan Godfrey. "But this will definitely be an issue for the committee," he added.

Conyers and the new Democratic Congress may not yet have established their agendas, but the drug reform movement certainly has, and sentencing reform, whether through addressing the crack-powder cocaine sentencing disparity or through a broader assault on the federal mandatory minimum sentencing scheme, is front and center. Perhaps not surprisingly, many leading reformers said addressing the crack-powder disparity was not enough.

"There's been a lot of discussion about eliminating the crack/powder cocaine sentencing disparity, or even removing the definition of crack from the guidelines entirely," said DRCNet executive director Dave Borden. "We of course support that, but we also hope the issue of mandatory minimums themselves, and the sentencing guidelines, are also taken up. Those are far bigger problems, affecting far more people than that one controversial but small piece of them. It may be that only small changes are possible at this time, even with our best Congressional friends in important positions. Nevertheless, the opportunity should be taken to raise the larger sentencing issues, to organize around them, build support, attract cosponsors for mandatory minimum repeal bills, all the things that go with any legislative campaign -- what better time than now?"

"While we of course favor reforming the crack-powder cocaine disparity, we need to stop thinking small," said Julie Stewart, executive director of Families Against Mandatory Minimums. "We need to be looking at sentencing reform as a whole. We will be asking for legislation to address the crack-powder disparity, but we will also be asking for hearings on the repeal of mandatory minimum sentencing," she said. "Whether we can get that is another question, but it's time to ask for the sky."

Stewart's sentiments were echoed and amplified by Nora Callahan, executive director of The November Coalition, a drug reform group that concentrates on winning freedom for federal drug war prisoners. "What we need is an omnibus crime bill," Callahan said. "Otherwise we'll be picking this thing apart for the next five decades. An omnibus bill would open the door to broad hearings where we could address the myriad negative effects of the drug war, from imprisoning huge numbers of people to depriving students of loans and poor people of housing and other federal benefits, and from police corruption to police violence. If we try to deal with all these problems one by one, the prison population will have doubled again by the time we get it done."

Of course, sentencing reform isn't the only drug policy issue activists will be pushing next year. Medical marijuana remains on the agenda, with the biggest push likely to be around the Hinchey-Rohrabacher amendment, which would bar the use of federal funds to raid patients and providers in states where it is legal. "We will be looking for meaningful protections for medical marijuana patients," said Aaron Houston, director of government relations at the Marijuana Policy Project. "We will judge progress by the extent to which patients can use the medicine that works best for them without fear of federal arrest or prosecution. We need meaningful reforms, not ones that sound meaningful but are not, like rescheduling," he added.

"Our legislative priorities in the past have been Hinchey-Rohrabacher, the states' rights to medical marijuana bill, and the Truth in Trials Act, which would allow for an affirmative defense in federal court," said Houston. "Of these, we expect that we should be able to pass Hinchey. Last year, we had 167 votes, and we picked up 19 new members in November who we think are supportive. And when Speaker-elect Pelosi assumes the gavel in January, it will be the first time we have a strong medical marijuana supporter at the helm of the House of Representatives."

Those numbers are encouraging, but not quite enough to win yet. It takes 218 votes to win a majority in the House if everyone votes.

And as DPA's Piper noted above, the HEA reauthorization bill next year should be a good opportunity to finally kill Souder's drug provision once and for all. "We have a tremendous opportunity here with the Democrats taking control and deciding which legislation moves forward," said Tom Angell, communications director for Students for Sensible Drug Policy (SSDP). "Rep. George Miller (D-CA) will chair the House Education Work Force Committee, and he's a cosponsor of the RISE Act. Also, one of our biggest supporters, Rep. Rob Andrews (D-NJ), is in line to chair the subcommittee that handles higher education, which is where the RISE Act sits right now."

But Andrews may not end up with the chairmanship, Angell warned. "He's a supporter of for-profit colleges, and the Democratic leadership doesn't like that, so he might not get it," he said.

"We'd like to see the HEA drug provision repealed, and we think it's possible in the new Congress," said DRCNet's Borden. "There just isn't a lot of passion from very many members of Congress for keeping the provision, even among those who have voted to do so. We'd like to see legislation to repeal similar provisions in welfare and public housing law -- we have a coalition of over 250 organizations that have signed on to repealing the HEA drug provision, and activating that network and building it to take on more issues is definitely on our agenda."

The RISE (Removing Impediments to Students' Education) Act would repeal the Higher Education Act's (HEA) drug provision, SSDP's key congressional goal. While Angell was optimistic about prospects in the next Congress, he was also looking for early indicators. "The introduction of the bill, the number of cosponsors, and the top names behind it will be a good indication of how likely we are to repeal the penalty," he said. "I'm looking for that to happen early in the session. We had 84 lobbying meetings on Capitol Hill during our annual conference last month, and we will be following up on those and working closely with the staff of the education committee."

But repealing the HEA drug provision isn't SSDP's only goal on Capitol Hill, said Angell. "We are hoping to be working with DPA and MPP to reduce or eliminate funding for the ONDCP media campaign and we will be working to reduce or eliminate funding for student drug testing grants," he explained. "Besides HEA, those are our big issues."

One issue that has emerged as a hot topic in recent weeks is the issue of police violence. With the killing of Atlanta senior citizen Kathryn Johnson in a "no-knock" drug raid and the killing of New York City resident Sean Bell a few days later in a volley of more than 50 shots fired by NYPD officers, policing in America is under the spotlight. Civil rights activist and former presidential candidate the Rev. Al Sharpton called this week for congressional hearings on the issue. Sharpton said he had already been in contact with Rep. Conyers about the possibility.

That's something DRCNet's Borden would like to see, too. "We'd like to see action taken to rein in these paramilitary police forces and not have SWAT teams breaking down people's doors in the middle of the night when there is not an emergency situation. I think there should be hearings in Congress, as well as state legislatures, with victims of bad drug raids playing a prominent role, as well as police experts, civil rights experts, and the like. We are considering launching a petition calling for all of this," he said.

And then there is the US drug war abroad. With Plan Colombia about to enter its seventh year, and the flow of cocaine unabated despite massive aerial spraying of herbicides, congressional Democrats will seek to cut back or redirect US spending to emphasize development instead of drug war. And although Congress has not yet come to grips with the serious contradictions inherent in waging war on poppies at the same time it seeks to wage a war on terror in Afghanistan, facts on the ground suggest it will be unable to continue to ignore them.

This should be a year of change in our drug policy abroad, said DRCNet's Borden. "We'd like to see the coca and opium eradication programs stopped. They are useless; all they do is move the cultivation from place to place," he noted. "In Afghanistan, it's driving people into the arms of the Taliban for protection, and that's disastrous for our national interests and potentially for global security. There are credible plans put forward, by the UN and other international bodies, and by experts in the nonprofit sector, that don't rely on eradication; let's look at those."

Borden also urged Congress to act to address the crisis in pain care in the context of the administration's war on prescription drug abuse and prosecutions of pain doctors. "Last but not least, something must be done about the pain doctor prosecutions," he said. "I believe the law in this area has been fundamentally warped. Conyers has supported important work being done in this area. Now he's in a position to kick it up a notch."

Drug reformers have a mighty busy agenda for Congress in the next two years. Congressional Democrats have said they are interested in reforms; now that they will be in power, we will see if they are as good as their word and we will have the chance to prod them to act.

Standing at a rally in front of the home where Atlanta senior citizen Kathryn Johnston was shot and killed by police serving a "no-knock" drug warrant after she opened fire on the intruders, the Rev. Al Sharpton on Sunday called for congressional hearings into the police killing of civilians. The case of Johnston, who was killed November 21, along with that of Sean Bell, the New York City man gunned down by police on his wedding date a few days later, and the case of Patrick Strickland, the North Carolina man killed by police investigating the robbery of a Playstation3, have once again put the simmering issue of police violence on the front burner.

"Something stinks in this case. And something stinks to high heaven," Sharpton said. "In fact, it smells so bad, I smelled it in New York and came to Atlanta this morning." Sharpton condemned "this new sense of police recklessness, whether it is a 88-year-old mother here in Atlanta, with questionable circumstances that led to the warrant that gave them entry into her home, or whether it is over 50 bullets shot at three unarmed men in Queens," said the prominent black activist and former presidential candidate.

"There seems to be a new spirit in law enforcement that they can become the judge, jury and executioner of the law on the scene," Sharpton said. "Police apprehend suspects; they don't kill them. This cannot be tolerated in a civilized society."

While the Justice Department is conducting investigations of both the Johnston and Bell killings, Sharpton said they were only the latest in a pattern of killings and individualized inquiries were not enough. "The pattern is not under investigation," Sharpton said. "They are investigating whether there was criminal activity. The pattern of policing, which should be set by the US Congress in a federal standard, is not going to come out of either one of those investigations."

Sharpton said he had been talking with US Rep. John Conyers (D-MI), the incoming head of the House Judiciary Committee about holding hearings on what he called a national pattern of police shootings. He isn't the first to ask Conyers to act on the issue. Outgoing US Rep. Cynthia McKinney (D-GA) sent Conyers a letter last week asking him to hold hearings.

According to the Justice Department's Bureau of Justice Statistics, police kill between 300 and 400 people each year. After peaking at nearly 450 police killings of civilians in 1994, the number declined to just over 300 in 2000 before climbing again to about 370 last year. Only a tiny fraction of police killings are found by police to be questionable; most are found to be "justifiable homicides." In only a tiny fraction of cases are officers indicted in a killing, and then, only a tiny fraction are convicted.

The US Supreme Court Monday refused to hear an appeal of a 55-year mandatory minimum sentence for a Salt Lake City marijuana dealer who carried a pistol in his boot during his transactions. The decision not to hear the case disappointed observers in the legal community who hoped it would lead to a constitutional review of mandatory minimum sentencing laws.

Weldon Angelos was a would-be rap music empresario and father of two children who also peddled pot. He was indicted on multiple marijuana distribution charges and, because of the gun in his boot, multiple charges of possession of a weapon during the commission of a felony. There is no evidence Angelos ever shot or killed anyone with his weapon, or even brandished it. But federal law requires a mandatory five-year sentence for a first weapons count, followed by mandatory 25-year sentences for each additional count.

Angelos refused a plea deal and was found guilty of the marijuana dealing counts and three weapons counts. When sentencing Angelos to the mandatory minimum 55 years in 2002, US Circuit Court Judge Paul Cassell issued a lengthy opinion protesting the injustice of sentencing the 26-year-old to a life behind bars.

Angelos appealed, but in a January 2005 opinion, the 10th US Circuit Court of Appeals in Denver rejected his argument that his sentence violated the Eighth Amendment's ban on cruel and unusual punishments. When he appealed to the Supreme Court, Angelos was joined by more than 140 top former justice officials from across the country, including four former US attorneys general, a former FBI director and other former federal judges and prosecutors who sided with him in a friend-of-the-court brief filed with the court in October.

By refusing to take the case, the Supreme Court has signaled that it views decades-long prison sentences for nonviolent marijuana dealers as okay, and that wasn't okay with a substantial segment of the legal community. "We are very disappointed that the Supreme Court refused to hear this case in which a low-level marijuana offender received what is effectively a life sentence," said Jeff Sklaroff, an attorney representing the group that filed the brief, in remarks reported by the Deseret News.

Angelos' attorneys were similarly unhappy. "We are extremely disappointed that the Supreme Court did not agree to hear the case," University of Utah law professor Erik Luna said. "This case presented a great opportunity for the Supreme Court not only to correct this miscarriage of justice but also to clarify the scope of the Eighth Amendment's ban on cruel and unusual punishment."

"We hope that Congress will realize the injustice caused by its mandatory-minimum scheme and dispose of it without the court having to intervene," said attorneys Troy Booher and Michael Zimmerman, a former chief justice of the Utah Supreme Court, in a statement Tuesday.

But federal prosecutors were happy. "We are pleased that the Supreme Court denied the petition," US Attorney for Utah Brett Tolman said. "Congress has determined that armed drug trafficking is a particularly serious offense that warrants severe punishment."

Now, Angelos is facing decades in prison. He can appeal his conviction and sentence in a writ of habeas corpus, but such an appeal would go before the same courts that have already upheld them. Or he can seek a presidential pardon.

Or, when sanity finally comes to American drug sentencing practices, we can make sure to write in retroactivity for still-serving prisoners like Angelos.