(renamed "Drug War Chronicle" effective issue #300, August 2003)
Issue #91, 5/21/99
"Raising Awareness of the Consequences of Drug Prohibition"
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TABLE OF CONTENTS
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1. Two-Year Anniversary of Hernandez Shooting
Residents of the border town of Redford, Texas, mourned yesterday the two-year anniversary of the fatal shooting of Esequiel Hernandez by US Marines on anti-drug patrol. Hernandez was 18 at the time of his death, and was out herding the family sheep when he was tracked and killed by a camouflaged, four-marine patrol on the lookout for drug smugglers and illegal aliens. Hernandez was carrying an old .22 rifle that he used to scare off snakes and other predators. The killing was the first of an American citizen by an active duty soldier.
Rev. Mel LaFolette, a resident of Redford, and a member of a delegation that visited Washington after the shooting in 1997, told the Week Online, "The community is still outraged at what happened. Even though there's been a payment of money by the government, no one believes that justice has been done."
Rev. LaFolette believes "it's both a complete irresponsibility and recklessness at the level of administration and poor training, but I believe the individuals also have some responsibility for what happened. There's plenty of guilt to go around."
Some observers believe the Marines acted according to their training, but were deployed on a type of mission -- civilian law enforcement -- for which the military is wholly unsuited, causing them to make a complete misreading of the situation, leading to the tragedy.
Residents are also angered by the way the Border Patrol characterized their community to the Marine patrollers -- full of narcotraffickers, a hostile entity, be suspicious of everybody. "We were slandered by the Border Patrol," said LaFolette. Nevertheless, the Border Patrol has made "no apology for the calumniation of the people of Redford."
LaFolette remarked that "everybody on the border, including tourists, fits the [Border Patrol's] description of a drug trafficker," explaining, "Any tourist with a backpack first the description. A woman with a plastic bag of groceries fits the description."
We've been told, but have not confirmed, that a demonstration will take place this Saturday (5/22), noon, in the park straddling El Paso and its sister city across the border, Juarez, Mexico. To confirm, and for information, call the Immigration Law Enforcement Monitoring Project (ILEMP) El Paso office at (915) 577-0724.
The following is a statement from the American Friends Service Committee (of which ILEMP is a project), followed by an excerpt from ILEMP director Maria Jimenez's comments to In-Motion magazine, the statement of Rep. James Traficant (D-OH) supporting legislation he introduced that would dramatically increase the level of militarization of the border, and links to extensive background information on the Hernandez tragedy and an online photo gallery in memory of Esequiel Hernandez and the tragedy.
STATEMENT OF THE AMERICAN FRIENDS SERVICE COMMITTEE
Today, the American Friends Service Committee remembers Esequiel Hernandez, Jr. of Redford, Texas. On this day two years ago, Hernandez, an 18 year old goatherd, was shot and killed in his own field by a US Marine working on a drug surveillance operation.
EXCERPT FROM MARIA JIMENEZ INTERVIEW IN IN-MOTION MAGAZINE
That problem, the problem of the national perception of viewing the border as a war zone and immigrants as enemies and subsequently border communities -- you can conclude when you have military patrols in your town that somehow somebody thought you were the enemies of this country -- that was why we were losing.
STATEMENT OF REP. JAMES A. TRAFICANT, JR.
in the House of Representatives
TUESDAY, MARCH 2, 1999
Mr. TRAFICANT. Mr. Speaker, I rise today in support of legislation I introduced on February 8, 1999, which would authorize the deployment of US troops to assist law enforcement in patrolling US borders. I urge all Members to cosponsor this important piece of legislation.
LINKS FOR FURTHER BACKGROUND INFORMATION:
2. Legislation in Alaska Will Restrict State's Medical Marijuana Law
A little over two months after Alaska's medical marijuana initiative, Proposition 8, went into effect, the Alaska House and Senate have passed legislation that would restrict its implementation. The bill, S.B. 94, passed the Senate on May 13 and was approved with amendments by the House on May 17. The Senate passed the amended version of the bill the next day, and now awaits final approval by the governor.
Under S.B. 94, patients who want to use marijuana will be required to register with the state, and will be allowed to possess a maximum of one ounce of marijuana or six plants for their personal use. Sale or distribution between patients will be prohibited.
Supporters of Prop 8. said they were disappointed with the restrictions, but noted that it could have been much worse. The original bill, as introduced by state Senator Loren Leman, would have given police broad access to the patients' registry, and another provision would have forced doctors to testify that their patients had exhausted every "legal" treatment before trying marijuana. Further, only specific conditions such as AIDS, cancer, and glaucoma would have qualified as a "debilitating medical condition" that justified marijuana use.
"The burden that would have been placed on doctors would have made the law unworkable," said Gina Pesulima, spokeswoman for Americans for Medical Rights.
Pesulima credited patients and voters who supported Prop. 8, many of whom testified before the legislature in debates on S.B. 94, with making sure the most onerous restrictions did not get through. "Overall, we're not happy that it passed, but we are happy that in the process, a lot of patients came out in support of the law & giving it a chance to work."
Another positive result of the amendment process, she said, is a provision that will allow physicians' assistants and nurse practitioners to make official recommendations for patients who need marijuana. This is particularly helpful in Alaska, where many patients live in remote areas with limited access to doctors.
Alaskans for Medical Rights, which sponsored Prop. 8, is on the web at http://www.alaskalife.net/AKMR/.
3. Australia: Police Force Closure of Safe Injection Room
Peter Watney, Australian Drug Law Reform FoundationPrior to the opening of the T-room at the Wayside Chapel, Kings Cross, Sydney, the Premier of New South Wales had announced the holding of a Drug Summit to be held at Parliament House, Sydney from 17th to 21st May.
Last week the police continued to attend the T-room openings, and after being denied entry on the Monday, returned with a warrant on the Wednesday. They charged one of the users of the room.
The organising committee announced that they would close the T-room during the term of the Drug Summit, and would make decisions as to whether they would reopen depending on the results of the Summit.
After the closing of the T-room its need was underlined by the discovery of a man in one of the outside toilets, dead from a drug overdose. It was assumed that the presence of the police had discouraged him from using the T-room.
Names of the participants and transcripts of the Summit can be seen at http://www.nsw.gov.au/drugsummit1999/.
4. Somali-Canadian Community Under Attack by Khat Enforcers
Members of Toronto, Canada's Somali community are in shock over a sudden police crackdown against the substance khat, with attendant civil liberties abuses, and are seeking to have police searches of homes reined in and the legislation that banned the substance last year repealed. And article in the May 3rd issue of the Toronto Star reported that 50 Somalis had met the previous day and were planning to meet with police to discuss the problem.
The Week Online spoke with Farah Khayre, executive director of Midaynta, Association of Somali Service Agencies. Khayre explained, "Khat in the Somali culture has traditionally been used socially, much like coffee in the western culture. It has no criminality associated with it, and on the contrary helps to create a friendly environment, even to help resolve disputes." Used primarily by adult males, Khayre continued, "It's like getting together over coffee or beer to share ideas." Khat is frequently used while meeting to plan weddings or engagements.
Khayre believes that the trouble over khat started in 1992, when US Marines were stationed in Somalia as the principal agents of a U.N. peacekeeping force. According to Khayre, US soldiers experimented with khat, and US military officials put forward khat use as an explanation for deficiencies in performance. Thus having been brought to the attention of the DEA and other US drug warriors, the US government proceeded to place khat in its list of controlled substances and to pressure foreign governments, including that of Canada, to crack down on khat.
According to Khayre, "[The law] was passed quietly, not even fully debated in Parliament, no community information was sought, and no outreach to the community to information about this law was made. We just started getting these calls from people whose had been arrested or their homes broken into. The wake up call was these calls from our clients."
Ali Mohamud, of Dejint Beesha Somali Multi-Service Center Agency, told the Week Online that "police from Toronto have been raiding apartments and taking gold and money." In Somali culture, gold is often crafted into ornaments, which will often take on the same kind of sentimental value as jewelry and other gifts and heirlooms can have in other cultures. Mohamud shares the shock and surprise of his fellow Canadian Somalis. "I did not even think such things could happen in Canada."
Midaynta's clients have also reported abusive police tactics. Khayre stated, "What I can say is that in many cases, according to the reports that we have been receiving from clients, the professional standards of the police have not been followed -- break-ins without warrants, no receipts for confiscated items, not a professional way of conducting police raids." When asked if he believed Somalis are being treated differently from other Canadians, Khayre answered, "If these reports turn out to be on firm ground, then yes, we can say we have been treated differently."
Somali organizations are seeking repeal of the law criminalizing khat, and are preparing to challenge the law in the courts. In the meantime, they acknowledge the right of law enforcement agencies to enforce the law, but call on them to halt the abusive tactics and invasions of privacy that the sudden enforcement effort has entailed. "If they find [khat] at the airport, they have the right to arrest people who are found with it in their possession," said Khayre; but while the court challenge is pursued, "police should stop invading Somali homes."
Khayre said that "Khat, like any other social thing, every one has problems, health, economic or otherwise. What's surprising is that there is absolutely no record of crime as a result of khat use, while alcohol is the number one such problem. Is it simply a cultural bias?" Khayre continued, "Khat helps a lot of Somalis to relieve stress, which is a major issue in a community that's come to a new culture or environment. So for them, it's more of a therapy."
Khayre is also surprised at the recent police behavior. "We work with police, they are decent people, an example of good behavior. I don't understand how something like this could happen."
(Read about drug policy and reform efforts in Canada at the Canadian Foundation for Drug Policy web site, recently relocated to its own domain at http://www.cfdp.ca/.)
5. Canadian Medical Group Wants Doctors to Prescribe More Pain Meds
The College of Physicians and Surgeons of Nova Scotia wants doctors to prescribe narcotics and other controlled drugs more liberally when treating patients with extreme or chronic pain, according to the Globe and Mail newspaper.
At the college's annual meeting last Friday, May 14, outgoing college president Bill Acker said "There has been a fear that prescribing narcotics will result in patient addiction or regulatory sanctions. This has led to patients being undertreated for pain." College registrar Cameron Little added, "patients should be given as much medication as needed to kill pain."
Undertreatment of pain is also a major problem in the United States, where fear of drug enforcement and regulatory sanctions has created a "war on drugs" climate in which adequate pain treatment is discouraged. (See our introduction to this important topic online at http://www.stopthedrugwar.org/pain.html.)
Skip Baker, president of the American Society for Action on Pain, told the Week Online that they often hear from patients in Canada. "Quite often they have a terrible time in Canada," Baker said. "Some of them actually come down here and pay out of their own pocket, because they have a terrible time getting treated in Canada." Canada's health care system is government-financed.
"They kind of follow the lead of America, and when was America went crazy over drugs and was overcome by narcophobia, Canada followed suit, to the great detriment of their own people."
Baker had been adequately treated with morphine for ankylosing spondilitis, an extremely painful bone disease, until the drug war intensified during the 1980's and early 1990's. The resulting anti-drug political affected the medical regulatory agencies, frightening physicians who had previously been willing to prescribe narcotics for pain relief. Baker's physician told him that the Virginia Board of Medicine was taking away doctors' licenses and that he couldn't continue to prescribe for him. Baker was forced to resort to alcohol for pain control, which affected his ability to perform on his job as a professional photographer.
Today, Baker and ASAP help pain patients find doctors who understand proper pain treatment and are willing to brave the regulatory and legal risks to provide it. Visit ASAP online at http://www.actiononpain.org.
(Recent DRCNet coverage of the pain issue: http://www.drcnet.org/wol/087.html#undertreatment)
6. Higher Education Act Reform Campaign Update
Kris Lotlikar, DRCNet University CoordinatorThe Higher Education Act (HEA) reform campaign's campus activity on campuses has wrapped up for the school year, as students finished up their final exams and left for the summer. In only six months, students on over 200 campuses defined themselves as a valuable part of the drug policy reform movement as they united in opposition to a law that delays or denies federal financial aid to drug offenders. Bill H.R. 1053, sponsored by Barney Frank, which would repeal the HEA drug provision, gained three new co-sponsors in the last week and now has the support of 14 congressional representatives. (Visit http://thomas.loc.gov/ for information on any federal legislation; search on H.R. 1053 for info on the HEA reform bill.)
The student campaign, coordinated by DRCNet, has been formally endorsed by ten student governments and two statewide student associations. Over thirty organizations, including the American Public Health Association, the National Organization of Women, the NAACP and the ACLU, have endorsed a national sign-on letter supporting H.R. 1053. (Visit http://www.u-net.org/supporters.html for a regularly updated list of the campaign's and letter's endorsers.)
Being organized primarily online, the HEA reform campaign has made full use of cyberspace to enhance and expand tradition activism efforts. Over 11,000 emails and faxes have been sent to congress calling for reform, from http://www.RaiseYourVoice.com. (Please visit RaiseYourVoice.com is you haven't already, and add your vote to the students' call for sanity.)
Student leaders will not be sitting idle with summer. Many of the students involved not the HEA reform campaign will be playing an active roll in developing strategy and materials to kick off in September. Fall semester of 1999 promises to be a breakthrough year for campus activism around drug policy reform. Issues such as prison vs. higher education spending and harm reduction on campuses offer opportunities to engage larger numbers of students in a discourse over the consequences of the drug war. A national student leadership conference on drug policy reform is being planned at George Washington University in November.
E-mail discussion groups are being formed for students who want to get more involved in the HEA reform campaign and other student efforts. If you have any ideas, questions, or would just like to play a larger role, send an e-mail to [email protected].
7. Conviction of Juror in Nullification Case Overturned
Marc BrandlColorado juror Laura Kriho, convicted in 1997 of contempt of court for failing to inform attorneys during jury selection on a drug case of her opposition to the drug laws, has won her appeal.
In 1994, Laura Kriho was the lone holdout against conviction in a Gilpin County, Colorado drug possession case. During deliberations, Kriho told her fellow jurors about the penalty the defendant faced if convicted, and she told them that she was opposed to the current drug laws, and that drug problems should be handled by families, not the courts. She also shared with them her understanding of legal doctrine known as jury nullification, which holds that jurors may judge a law on its merits and to refuse to convict when doing so would violate their consciences.
When the judge found out what she said, and that she had not informed the prosecution during jury selection of her views on the drug war, he charged her with contempt of court. She was convicted in 1997, and fined $1,200. In his ruling, judge Henry Nieto wrote that Kriho "deliberately and willfully withheld and concealed information which was relevant and important to selecting a fair and impartial jury, and that Ms. Kriho did so with the intent of serving on the jury for the purpose of obstructing justice." Last month (4/29), a Colorado court of appeals disagreed, and Nieto's ruling was overturned.
Legal experts and nullification activists have kept a close watch on the case. "What happened to Laura Kriho was bizarre and completely unfair," said Clay Conrad, a Texas attorney and author of Jury Nullification: The Evolution of a Doctrine. "It is obvious from the context of the entire case they prosecuted her for her verdict. If they can punish jurors for their verdicts, the jury system is just a living fossil brought out to harm people. There is nothing left if jurors can't be independent and vote their own consciences."
The 62-page appellate ruling was based not on whether nullification had been used, but whether allowing jurors to testify about conversations that took place during jury deliberations violates the sanctity of those deliberations. "You can't use evidence of juror deliberations in a court proceeding," explained Eugene Volokh, a constitutional law professor at the University of California at Los Angeles. "Certainly, this is something that encourages jurors to be as candid as possible during the proceeding."
Volokh said he was concerned that the recent popularity of jury nullification could make the practice too commonplace. "I think it's right that we can't throw a juror in jail for nullifying. At the same time, we should also not encourage jurors to nullify. If jurors would only nullify bad laws and never nullify good laws, that would be great. The downside of jury nullification is you are more likely to get decisions based on racial considerations, or just whether the person seems appealing or not. These judgments will be used to invalidate and nullify laws that are actually good laws."
What effect, if any, jury nullification can have on drug laws remains a point of contention. While many judges discourage the practice, Conrad said some may welcome nullification as a way to counter the effects of mandatory minimums. "A great many trial judges are opposed to the sentencing guidelines. A lot of them don't like being drafted into becoming soldiers of the war on drugs. These trial judges might just start allowing nullification arguments in their courtroom," he said. "This allows the defense some out once they realize they have the prerogative of allowing such arguments to be made."
Nullification activist Larry Dodge told the Week Online, "What you're looking at here is a chance for the people to remark on the laws which govern them, to bring them back in alignment with the will of the people. Isn't that what democracy is all about? Here the government is trying to clean up the juries so the verdict will be pro-government. We shouldn't be cleaning up juries so the drug war is prolonged."
But Volokh said the disconnect between jurors and the drug laws is often overestimated. "It is not as if it is the good, virtuous jurors against the bad, evil legislator," he said. "Jurors are also voters and as voters they support legislators that support the war on drugs. You shouldn't expect too much from jury nullification."
As for Kriho, she could be retried, but the appeals court ruled that the opinions she revealed during jury deliberations, which were used as evidence to convict her, will not be admissible in any future case against her. "I'm happy that it was overturned," she said of her conviction. "I wish it had gone further to protect jurors from being prosecuted."
For more information on jury nullification, visit the Fully Informed Jury Association online at http://www.fija.org.
8. New York: No Rockefeller Reform This Year, Presentations in Westchester Area by ReconsiDer
An article in Thursday's New York Times reported that the Democratic leadership in the state legislature has rejected a proposal by the Republican governor to enact modest reforms to the state's harsh Rockefeller Drug Laws, disappointing members of the party who saw the Pataki proposal as a rare opportunity to change sentencing laws that the party has long opposed. A detailed report on the situation will appear in next week's issue of the Week Online. Learn about the campaign against the Rockefeller Drug Laws on the web site of the William Moses Kunstler Fund for Racial Justice, http://www.kunstler.org/.
The Rockefeller Drug Laws have been criticized by the respected human rights organization Human Rights Watch. HRW holds that these and similar mandatory minimum laws violate the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Visit Human Rights Watch's Drugs and Human Rights in the United States Campaign online at http://www.hrw.org/campaigns/drugs/, including substantial information on the impact of the Rockefeller laws.
Peter Christ, retired police captain and leading speaker of the New York State-based ReconsiDer: Forum on Drug Policy, will be appearing at WESPAC in White Plains, NY, on May 28th, 7:30pm. WESPAC is located at 255 Martin Luther Blvd., near E. Post Rd. Contact WESPAC for further information at (914) 682-0488. Peter is tentatively scheduled to speak at a residence in Northern Westchester on Thursday, May 27th. For those interested, contact Jeff at (914) 764-8641. Contact Mike Smithson at the ReconsiDer speakers bureau at (315) 488-3630 to schedule further talks.
Adam J. Smith, Associate Director, [email protected]As the issues of drug policy and reform come to the fore in American political debate, the sunlight shines on an incredibly diverse and fast-growing movement. Differing perspectives, varying agendas and widely disparate tactical imperatives highlight the relationships between the more than 350 groups and organizations who consider themselves, in some respect at least, drug policy reformers.
There are groups who are concerned specifically with marijuana laws (and in some cases, specifically with marijuana itself). There are groups that work on sentencing policy, syringe exchange, and broader harm-reduction. There are groups advocating for study into the therapeutic value of psychedelics, for access to adequate medication for chronic pain patients, or against the practice of civil asset forfeiture. There are organizations concerned solely with the impact of the drug war on Latin America and its indigenous peoples, fighting for greater access to methadone, and for the legalization of industrial hemp. And of course, there are a growing number of organizations who advocate for a re-thinking of the entire drug war, to whom all of these issues are simply symptoms of the disease of Prohibition.
A reporter called my office this week to ask about this very phenomenon. "Why so many different groups?", he asked. "Is the fragmentation a threat to the cause of reform? What of the disagreements between them?"
There is no doubt that the drug policy reform movement is larger and more potent than at any time since the "Wets" rose up and overturned alcohol prohibition. A growing number of successes at the ballot box, a higher profile in the mainstream media and a shift in the way various drug policy issues are being addressed at the national level all speak to the progress that is being made. "The growing number of groups working in reform," I told the reporter, "is most certainly a product of the rise of these issues to national prominence." A good thing, all in all, though certainly there are growing pains.
The majority of those growing pains are simply a matter of the movement's funding not keeping up with its growth. Drug policy reform is not unique among maturing movements in that respect, but certainly, the issue's potency has made it more difficult to raise funds for than, say, cancer research or the symphony. Larger numbers of activists, therefore, have found themselves in fierce competition for limited funding, creating feelings of jealousy and frustration and highlighting disagreements over priorities.
The other major internal issue has been about tactics. Should an organization that is fighting for legal syringe exchange, with AIDS spreading like wildfire through poor communities and thousands of lives on the line, feel obliged to put its weight behind broader reforms, even if they agree wholeheartedly with these, at the risk of alienating political allies who have not yet come around on these other issues?
And what of the marijuana rallies? 50,000 people coming together on the Boston Commons to hear speeches, listen to music and partake in the civil disobedience of lighting up in public is a powerful sight and an empowering experience. But what of the negative repercussions? The stereotyping of reformers as users, potentially frightening away non-using supporters who will be necessary in the coming political battles? What of the adolescents who will undoubtedly be present, and the impact of their red-eyed, droopy-lidded pictures in the newspapers? What impact do those pictures have on the work of other reformers who are working hard to bring new coalitions to the table in the name of reform?
And yet, marijuana is the single most used illicit substance, with over 70 million Americans admitting to having tried it at least once. Don't its users, both regular and occasional, comprise the largest segment of those put at risk by punitive prohibition? And what gives anyone the right to question them for publicly displaying their outrage, as the government seeks to take their freedom, their homes, their property and even their families by force, while users of licit drugs such as tobacco and alcohol -- who undoubtedly do more damage both to themselves and to others -- are afforded all of the rights of other Americans?
The drug policy reform movement stands at an interesting precipice. Ready to step into the fight as a legitimate and mainstream issue on the American political scene, it is dogged by issues both standard for any growing movement and unique unto itself. The funding will come, and though not every organization will benefit, those who are having the most impact will generally be supported. The stigmatization of the issue, borne of decades of government propaganda as well as of a concerted effort by many in power to label any reform effort as "pro-drug," is also beginning to fade.
What will not change is the wide array of issues subsumed under the rubric of drug policy, and the widely disparate constituencies that these issues represent. But while disagreement over tactics and priorities are likely to continue, the fact is that nearly everyone who comes to the issue of drug policy -- whether through the prism of AIDS or incarceration or asset forfeiture or marijuana -- soon discovers that the problem is the drug war, and the very paradigm within which our nation has chosen to deal with substances, the rights of free people to use them, and the consequences of their abuse.
In the end, then, the movement, such as it is, is headed in the right direction. We are reaching larger and larger segments of the population through various, interconnected issues by the use of tactics of all kinds, some inarguably more effective than others. At some point in the not-too-distant future, the melding will occur. Whether it will be the result of a single, unifying event, or the rise of a charismatic and nationally recognized leader, or simply by the process of a national realization, over time, that we must find a more rational way to deal with drugs -- both licit and illicit. It is coming. The rapid growth and burgeoning diversity of the people and organizations who are advocating for reform is testimony to its inevitability.
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