News Brief

It was 70 years ago yesterday that Congress passed the first federal law outlawing marijuana. The law, the Marijuana Tax Act of 1937, effectively banned the weed by establishing onerous taxes on buyers, sellers, producers, and prescribers and creating draconian penalties for noncompliance.

The subsequent seven-decades of marijuana prohibition have seen a vast increase in the drug's popularity and acceptance, even as it remains a lightning rod for conservative culture warriors determined to smite the hippies. Around 100 million or more adult Americans have smoked marijuana at least once, and some 16 to 20 million are regular consumers today.

According to researcher Jon Gettman, marijuana is now the nation's largest cash crop, accounting for more agricultural income than wheat, corn, and soybeans combined. It is also grist for the law enforcement mill, with some 800,000 marijuana arrests in 2005, nearly 90% of them for simple possession.

While about a dozen states have decriminalized marijuana possession, only one of them, Nevada, has done so in recent years. The others came in a wave of reform in the 1970s. Similarly, a dozen states have legalized the medicinal use of marijuana, but those measures are ignored by federal drug enforcers.

"It's hard to think of a more spectacularly bad, long-term policy failure than our government's 70-year war on marijuana users," said Rob Kampia, executive director of the Marijuana Policy Project. "Since the federal government banned marijuana in 1937, it's gone from being an obscure plant that few Americans had even heard of to the number-one cash crop in the United States. It's time to steer a new course and regulate marijuana like we do alcohol."

This week, we commemorate the beginning of federal marijuana prohibition. We would much rather be writing its obituary.

For a good laugh -- or cry -- read Prof. Charles Whitebread's recounting of the history of the marijuana laws, describing the incredibly shoddy way the debate on the issue was handled.

The Arizona Supreme Court ruled late last month that police cannot routinely search the vehicles of people they arrest. In a 3-2 decision in State v. Gant, the court held that the warrantless search of Rodney Gant's vehicle after he was arrested, handcuffed, and sitting in the back seat of a police car went beyond an allowable search incident to arrest and was "not justifiable."

Gant, from Tucson, was convicted on drug charges after police waiting for him as part of a drug investigation arrested him on a warrant for driving on a suspended license when he drove up to a targeted address. Police knew he had the pre-existing warrant because they had checked up on him during an earlier encounter at the same address. When Gant drove up and got out of his car, police called him over and arrested and handcuffed him. They then searched the vehicle and found the drugs that led to his conviction. The court overturned the conviction, calling the search a violation of the Fourth Amendment.

The legal argument centered around whether the facts in this case were consistent with a search incident to arrest. US courts have recognized searches incident to arrest as one of the few areas where the Fourth Amendment requirement of probable cause or a search warrant not does apply, citing officer safety and the need to preserve evidence.

The Arizona Supreme Court held that the search of Gant's vehicle after he was already under arrest and handcuffed for a traffic warrant was not a search incident to arrest. "When the justifications [for a search incident to arrest] no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer, the warrantless search of the arrestee's car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence," wrote Justice Rebecca Berch for the majority.

Arizona law enforcement was not happy about the ruling, and some agencies suggested they would find ways to skirt it. Police departments across the state, working with the Arizona Association of Chiefs of Police and the Arizona Law Enforcement Legal Advisors' Association, filed briefs urging the court to uphold the conviction and hinting they would adopt different arrest procedures -- perhaps not handcuffing suspects until after a vehicle search -- to be able to continue the practice.

Justice Berch addressed that implied threat in her opinion. "We presume that police officers will exercise proper judgment in their contacts with arrestees and will not engage in conduct which creates unnecessary risks to their safety or public safety in order to circumvent the Fourth Amendment's warrant requirements," she wrote.

This week we have a pair from the US-Mexico border, where temptation is always close at hand, and a pair from Florida, where corruption seems to thrive in the steamy atmosphere. Let's get to it:

In El Paso, a Customs and Border Patrol agent was arrested July 27 for allegedly letting more than a ton of marijuana into the country. CBP Officer Margarita Crispin is charged with one count of conspiracy to import a controlled substance. According to the indictment, she conspired with others from 2003 to this year to let truck loads get by border checkpoints. She was jailed awaiting a bond hearing at last report.

In Miami Beach, a city parking enforcement officer was arrested last weekend on drug sales charges. Enforcement Officer Elio Espinosa allegedly sold three bags of drugs to an informant. He is charged with possession of cocaine with intent to sell within 1,000 feet of a school.

In Tucson, three former National Guardsmen were sentenced to prison last week for conspiring to run drugs for traffickers. They are only the latest of the more than three dozen current and former police and military personnel ensnared in Operation Lively Green, an FBI sting where agents posed as traffickers and enlisted the help of law enforcement and military personnel to move drug shipments. Demian Castillo, a former recruiter for the Tucson Army National Guard, got two years for accepting $14,000 to run two drug loads in 2002. Former Guard member Sheldon Anderson got 10 months for helping out on a single drug run. Former Guardsman Mario Quintana got two years for helping out on two loads. All three pleaded guilty to conspiracy to commit bribery of a public official.

In Hollywood, Florida, a fifth Hollywood police officer has now pleaded guilty in an FBI sting operation. Former Hollywood Police Lt. Charles Roberts pleaded guilty to one count of making a false statement when he told investigators he knew nothing about an undercover FBI sting. The sting, known as Operation Tarnished Badge, targeted Hollywood police officers who were agreeable to transporting heroin for people they believed to be drug dealers but who were actually FBI agents. It was shut down early after word of its existence leaked out. Three officers have been sentenced to prison for their roles in drug transportation conspiracies, and a fourth awaits sentencing this month. Roberts faces up to five years in prison when he is sentenced in October.

The Australian Green Party has taken another step back from positions adopted earlier this decade calling for the regulated distribution of marijuana and other "social drugs," such as ecstasy. For the first time, the party has made its opposition to drug legalization part of its drug policy platform.

Just to make the party's retreat crystal clear, the opposition to legalization is the first item in the Green drug policy platform: "The Australian Greens do not support the legalization of currently illegal drugs," the plank bluntly states.

The Green Platform prior to the 2004 national elections was quite different. It called for "the controlled availability of cannabis at appropriate venues" and "investigations of options for the regulated supply of social drugs such as Ecstasy in controlled environments." But under the direction of current party leader Sen. Bob Brown, the Greens in January 2006 removed any reference to marijuana or other soft drug legalization from the platform, instead calling for the formation of a national drug policy institute.

The retreat comes in the run-up to parliamentary elections this year and the context of a political reaction to the limited drug policy reforms adopted by various states, hyperbolic scare campaigns about marijuana potency and its links to mental illness, and high rates of methamphetamine and ecstasy use. The Greens in particular were hammered hard as "drug legalizers" in 2004 by the governing Liberals, as well as by social conservative parties like Family First, and may be hoping to appear more palatable to the opposition Labor Party.

Sen. Brown said as much in announcing the policy shift Saturday. "It doesn't leave the Greens open to misinterpretation from Family First and Pauline Hanson," he said. "It maintains our concern that while drug dealers should be dealt with under the penal code, the victims should be helped."

Brown said the party had relied on the best expert drug advice for its change of policy. "It has honed our policy and brought it more up to date with world's best practice," he said.

Currently, the Greens hold four Senate seats (out of 76), obtained with 7.7% of the vote, which, under Australia's system of proportional representation, allows them a chair at the table. Although the Greens captured 7.2% of the vote for House members, they won no seats. They are competing in every constituency in the country in the upcoming parliamentary elections.

Still, while the Greens have clearly shifted the public emphasis of their drug policy -- they also call for crackdowns on drug sellers -- the meat of the Green drug policy platform is far superior to anything adopted by the major Australian parties, or the major parties in the US, for that matter. The second plank in the platform is a call for harm reduction, the fifth calls for a public health approach, and the sixth says people should not be imprisoned for drug use alone.