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The Week Online with DRCNet
(renamed "Drug War Chronicle" effective issue #300, August 2003)

Issue #186, 5/18/01

"Raising Awareness of the Consequences of Drug Prohibition"

Phillip S. Smith, Editor
David Borden, Executive Director

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  1. Editorial: Supreme Fictions
  2. Supreme Court to Medical Marijuana Movement: Drop Dead -- Movement to Feds: Get Real
  3. Study Finds Seattle Drug Arrests Target Blacks, Suggests Decrim Dialogue, Police Chief Suggests Arresting More Whites
  4. In US First, South Carolina Court Finds Drug-Using Woman Guilty of Murder in Death of Fetus
  5. Colombian Coca and Poppy Production Up Last Year Despite Heightened Drug War, Market Crash Ahead?
  6. Thugs Kill New York City Marijuana Retailer, Two Others, Police Blame Marijuana
  7. DEA's Caribbean Office Lied About Arrests, GAO to Investigate
  8. Two Steps Forward, One Step Back in Indiana Sentencing
  9. Canadian Medical Association Journal Calls for Marijuana Decriminalization
  10. Media and Resources: Arianna Huffington, Village Voice,,, U. Miami Law Review, CDC
  11. The Reformer's Calendar
(read last week's issue)

(visit the Week Online archives)

1. Editorial: Supreme Fictions

David Borden, Executive Director, [email protected]

After last winter's election debacle, some observers of Supreme Court jurisprudence remarked on an apparent inconsistency in the court's applications of the Constitutional requirement of equal protection under the law. Equal protection for Florida's voters was so important as to pose an insurmountable standard for carrying out the Florida Supreme Court's order to recount the votes statewide in the time remaining.

Yet in drug cases involving charges of racial discrimination in law enforcement, the court has gone 180 degrees to the opposite, setting an insurmountably high standard for defendants to have the benefit of equal protection. It was not enough, as we noted in our December 15th editorial, for Christopher Armstrong and company to show that not one crack cocaine defendants in Los Angeles federal court over a four year period was caucasian, where many caucasians had been sent to state court during the same period, where penalties were much more lenient. But extreme racial bias resulting from police and prosecutorial choices wasn't enough to satisfy a majority on the court that Chris Armstrong deserved equal protection; Armstrong had to have met the impossibly high standard of proving that Congress deliberately intended for there to be a racial disparity.

This week's Supreme Court ruling on the medical marijuana cooperatives case also raises troubling issues of inconsistency. The opinion, written by Justice Clarence Thomas, found that there is no medical necessity defense available for medical marijuana because Congress deliberately decided when writing the Controlled Substances Act that marijuana has "no accepted medical use."

But for Congress to say this doesn't make it true. Abundant evidence exists, and existed then, to prove not only that marijuana does have medical uses accepted by significant numbers of physicians, but that the process by which Congress and the agencies to which the CSA delegates medical scheduling authority was dishonest and driven by ideology, not science. The same can accurately be said for the parallel necessary determination for placing marijuana in Schedule I (banned even for medical use), having a "high potential for abuse."

This is why the DEA's own administrative law judge, Francis Young, found in a 1988 ruling that the DEA's placement of marijuana in Schedule I was "arbitrary and capricious" and that marijuana is "the safest therapeutically active substance known to man." Young's ruling was simply rejected by the DEA's top cop at the time, Robert Bonner (not known for his nonexistent scientific credentials).

So in ruling against the medical marijuana co-ops this week, the Court allowed Congress and delegated agencies to author a medical fiction and use it to perpetuate a tyranny against medical marijuana patients and their providers. The very sort of tyranny the Constitution arguably was designed to protect against.

Perhaps the Court can plead lack of jurisdiction -- the Congress, some might say, and federal agencies as delegated by Congress, are the proper places for scientific and policy determinations to be made. Those bodies might do so imperfectly, sometimes even dishonestly, but the place to correct that is through the political system. But then why did Judge Young call marijuana's medically banned status "arbitrary and capricious," language with specific legal meaning intended to find the process by which that status was decided as legally invalid?

More importantly, where does Congress derive the right or power to even be involved in such decisions? This leads to another, more fundamental fiction that the Court has perpetuated, this time from a Court of the past. Federal drug prohibition laws have been justified, in substantial part, on the Constitutional clause authorizing the federal government to regulate interstate commerce. This occurred during a time when the courts assisted in dramatically expanding the power of the federal government vs. the power of the states.

In this case, at least, the result is ludicrous. No reasonable person can conclude that having the power to regulate interstate commerce gives the federal government the right, for example, to prohibit individuals from growing marijuana in their backyards. Similarly, the interstate commerce clause cannot reasonably be thought to justify banning freely associating individuals from growing this or any other plant in a community for distribution to patients in that community for medical use. Yet this indefensible legal fiction has been the accepted Constitution justification for a federal drug war for decades. Remember that it took a Constitution amendment to prohibit alcohol. Why not for other drugs?

The question, then, is why justices such as Thomas and Scalia, who purportedly stand for a strict interpretation of the Constitution in its original intent, have not risen in revolt against a legal fiction perpetrated by a past court that dramatically and inappropriately expanded federal police power? A fiction without which federal action against the medical marijuana co-ops could only be regarded as lawless?

Perhaps the true answer is that courts, past and present ultimately are influenced by ideologies far more than their proponents would like to believe, instruments of political power rather than impartial defenders of law and rights.

The current Supreme Court has some work to do if it wishes to be seen otherwise.

2. Supreme Court to Medical Marijuana Movement: Drop Dead -- Movement to Feds: Get Real

In a largely symbolic slap in the face to medical marijuana users and providers, the Supreme Court ruled unanimously on Monday that the Oakland Cannabis Co-op could not mount a medical necessity defense against federal marijuana distribution laws.

The Supreme Court, however, did not overturn the medical marijuana law enacted by voters in California, nor did it challenge the legality of any other state laws allowing medical marijuana. Those laws were not at issue and remain on the books. The most striking practical effect of the ruling is that medical marijuana patients who had relied on "compassion clubs" or co-ops to obtain their marijuana will be forced to turn to less desirable alternatives.

"This is a disappointing decision because tens of thousands of seriously ill patients will find it more difficult to obtain their medicine," said Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws (NORML). "Patient support groups have provided a safe, secure environment for medical marijuana users, but now they will have to grow their own or turn to the black market."

But not all of them, at least not yet. The San Francisco Examiner reported on Tuesday that distribution centers in the city remained open for business. Long lines of medical marijuana patients formed outside the Cannabis Helping Alleviate Medical Problems (CHAMP) center, the newspaper noted.

"The fact remains that there are sick and dying people out there who need their medicine and need this service," said Sister Rosemarie, a disciple at St. Martin de Porres House who works at another medical marijuana distribution point, the San Francisco Patients' Resource Center. "We will remain open to serve our patients."

But for the high court, legislative fiction trumped medical and social reality. Marijuana has "no currently accepted medical use," wrote Justice Clarence Thomas. Why not? Because Congress says so. Congress's ideological determination outweighed a mounting body of medical and scientific evidence from doctors, patients, and even the government-commissioned 1999 National Academy of Sciences' Institute of Medicine report, which concluded marijuana can be effective in treating pain for some terminally ill patients. That report also concluded that legalizing marijuana for medical use would not lead to widespread abuse.

"In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a government research project)," said the Thomas opinion. "It is clear from the text of the act that Congress has made a determination that marijuana has no medical benefits worthy of exception. Unwilling to view this omission as an accident, and unable in any event to override a legislative determination manifest in a statute, we reject the cooperative's argument."

"This is like the Flat Earth Society insisting the world is flat," NORML's Stroup told DRCNet. "Congress has taken the same approach to marijuana and the Supreme Court has agreed that marijuana is not medicine. They can say that, but that doesn't change the fact that tens of thousands of patients find it the only method of easing pain and suffering. It's an act of ignorance," said Stroup.

But for Stroup and other observers, disappointment was tempered by the knowledge that essentially little has changed. Marijuana distribution for any reason has long been prohibited under federal law. It remains so. But if the federal government wishes to enforce the marijuana laws against medical marijuana providers and patients, it will have to send in the Drug Enforcement Administration to do so, and that could lead to political problems.

"The feds don't have the resources or the mandate to enforce these laws," said the Marijuana Policy Project's Chuck Thomas. "The DEA is only supposed to go after large traffickers. They would have to go to Congress and say 'we need a 100% budget increase to go after these medical marijuana patients.' But first and foremost, this does not overturn existing medical marijuana laws, nor does it prevent other states from passing similar laws," Thomas added. (The Marijuana Policy Project maintains a list of state marijuana laws at online.)

"The significance of this is that although the federal government can still arrest patients," Thomas added, "99% of all marijuana arrests are made by state and local officials, so we can still protect 99% of all medical marijuana users by changing state laws."

In comments to the Chicago Tribune this week, Kevin Zeese, president of Common Sense for Drug Policy, pointed out that, "Caregivers for the seriously ill will continue to provide medical marijuana, thus the federal government will have to enforce the law before juries in states where over 70% of the population voted for medical marijuana. The court's decision will heighten the conflict around medical marijuana," Zeese predicted.

Jeff Jones will help turn Zeese's prediction into reality. Jones, executive director of the Oakland Cannabis Buyers Cooperative, one of the plaintiffs in the case, told the Oakland Tribune the "heavy-handed and misguided" decision was only the beginning. "We're not giving up," said Jones, adding that his group would continue to litigate medical marijuana issues in the federal district court. "Common sense tells us this is a therapeutic substance," he said.

The Oakland cooperative had provided medical marijuana to more than 2,000 patients from 1996 to 1998, when it quit distributing it to patients while its case was pending. The co-op remains open for business, however, offering referrals, a meeting space, and non-cannabis related services.

Stroup sees a silver lining in the adverse ruling. "The American people overwhelmingly support medical marijuana and were disappointed in the decision," he maintained. "If we can find creative ways to channel this disappointment, then we can turn this short-term setback into a long-term victory. It's been more than 30 years since Congress scheduled marijuana, and this decision could force Congress to look again and perhaps arrive at a different conclusion. In the final analysis, that is the lesson of this decision," Stroup argued. "We should not be looking to the courts for relief, we have to do this the old-fashioned way; we have to get sufficient political support to get Congress to reschedule marijuana."

MPP's Thomas is equally undistracted. "Our strategy remains the same," he told DRCNet. "Pass state laws and keep promoting H.R. 1344, the States' Rights to Medical Marijuana Act, sponsored by Rep. Barney Frank (D-MA)." That bill would prohibit the federal Controlled Substances Act from applying to medical marijuana, in any state where medical marijuana is legal. It would also transfer medical marijuana from Schedule I to Schedule II.

"But regardless of what Congress does," said Thomas, "people need to understand that they can continue to pass state laws so that patients can grow and use their medicine at home."

3. Study Finds Seattle Drug Arrests Target Blacks, Suggests Decrim Dialogue, Police Chief Suggests Arresting More Whites

African-Americans make up only 8% of Seattle's population and only 6-7% of the city's drug-using population, but account for 57% of adult drug arrests. Seattle police arrest around 4,000 people on drug charges each year. Those are among the findings of a Harvard University School of Government study of 1999 drug arrests. The study, "A Window of Opportunity: Addressing the Complexities of the Relationship Between Drug Enforcement and Racial Disparity in Seattle," was conducted over a six-month period and was a comprehensive review of drug use and policing patterns in Seattle.

Commissioned by the Defenders Association, the largest grouping of public defenders in Seattle, the study pointed toward two key reasons for the racial disparity, both involving police tactics. First, the study said, police devote more resources to cracking down on low-level open-air drug markets, notably around Pike Place Market, than to outlying neighborhoods. Second, police have relied on "buy and bust" arrests that target sellers rather than the predominantly white drug buyers.

From 1997 to 1999, 83% of heroin overdoses occurred among whites, and drug treatment providers told the study's authors that a majority of Seattle heroin users were white, yet in 1999, blacks accounted for 54% of all heroin arrests.

"It's white guys in their 30s who are dying, but it's black guys who are going to jail," one drug treatment provider told the researchers.

The study's findings were not news to the Defenders Association's Lisa Daugaard. "It was no surprise in that it reflects our daily experience in whom we are assigned to represent in drug cases," she told DRCNet. "It is clear to us that the crushing majority of clients we defend, particularly in cocaine cases, are African-American. The report is not surprising, but it is helpful because it takes us to a new level of understanding."

It also takes the Defenders Association into an odd-bedfellows alliance with Seattle Police Chief Gil Kerlikowske, who joined the Association's head, Bob Boruchowitz, at a press conference to discuss the report.

"This cries out for attention and creative responses," Boruchowitz said. "That's what the chief being here is all about."

The Defenders and Kerlikowske found common ground in calling for increased spending on drug treatment and prevention programs. They also agreed that King County's Drug Court program should be expanded to include non-prison, non-treatment sentencing alternatives. And the Defenders joined the chief in asking for more funds for more beat officers.

The Defenders may not be as enthusiastic about the chief's proposed remedy for the disparity in drug arrests. Kerikowske told the press conference he would support "reverse-buy" sting operations where police officers pose as drug dealers, then arrest their customers. That would increase the percentage of whites arrested, he said.

Kerikowske defended the department's concentration on downtown drug markets by playing the reverse race card. "There's no greater form of racism than not going into an area because it might be perceived of as racially insensitive," he spun.

"The department will admit there is a great deal of drug activity going on outside downtown, but they're concentrating on the open-air drug markets because of quality of life concerns," Daugaard told DRCNet. "The problem is their "buy and bust" strategy has not been very effective. The study has been good because it resonates with law enforcement officials, it reflects their feelings of futility that they have about there only being a law enforcement approach to the problem. They know they're not fundamentally changing peoples' lives or the extent of the problem," said Daugaard.

Daugaard said the study could provide an opening for a discussion of decriminalization of some drugs and drug offenses. In fact, one of the study's recommendations explicitly calls for a dialogue on decriminalization, noting that "many interviewees" told researchers the social, economic, and medical effects of decriminalization need to be carefully considered.

But, Daugaard warned, decriminalization of marijuana alone could lead to worse racial disparities. "It's not primarily about marijuana arrests," she said. "If you merely decriminalize marijuana, that would not move in the direction of decreasing racial disparity and might well exacerbate it." Warming up on a topic that clearly irritates her, Daugaard added, "Some of the received wisdom of the drug reform movement needs to be reexamined. If the only thing we're doing is making it safe for white drug users than we only exacerbate the crushing burdens of race and class in this society. A lot of the momentum in drug policy reform centers on separating out marijuana and separating out use, but that still stigmatizes users of other drugs and drug sellers. And at the street level, the distinction between users and sellers is a false one."

(The Harvard study is available at online.)

4. In US First, South Carolina Court Finds Drug-Using Woman Guilty of Murder in Death of Fetus

A South Carolina jury on Wednesday convicted Regina McKnight of murder and sentenced her to 12 years in prison for using crack cocaine during a pregnancy that resulted in a stillbirth. The verdict marks the first time in the US that a woman has been found guilty of homicide for taking drugs during pregnancy, said Wyndi Anderson of South Carolina Advocates for Pregnant Women ( Anderson also told DRCNet that the verdict could lead to prosecutions of other women for unhealthy activities such as smoking during pregnancy.

"This is a tragedy for Regina McKnight, who will be locked away in prison for 12 years not for being a criminal, but for being a drug addict," said Anderson. "But this affects all women, particularly any woman who becomes pregnant and has a stillbirth. Now we've set a precedent in South Carolina where a woman can be prosecuted for delivering a stillborn child. This is open season on pregnant women."

There are 500 stillbirths a year in South Carolina, Anderson said.

Despite hours of complicated and contradictory medical testimony, the jury took just 15 minutes to find Regina McKnight, 24, guilty of negligent homicide. Medical experts testifying on McKnight's behalf said they could not be sure if cocaine caused the fetus to die or even if cocaine were found in her system. The doctors also testified that McKnight suffered from an inflamed placenta, which could have caused the fetus's death. But a state pathologist told the jury that cocaine had caused the stillbirth.

Defense attorney Orrie West told the Associated Press that the brief deliberations indicated that the jury punished McKnight because she was a drug addict. "Given almost all of the trial involved complex medical testimony, I don't think the jury weighed it like they should," West said.

This was the second jury to hear the case; the presiding judge ordered a mistrial in the state's first attempt to prosecute McKnight in January after two jurors admitted researching the medical evidence on the Internet. Jurors had earlier told the judge they were having difficulty reaching a decision.

Undeterred, prosecutors tried again. "The state needed to press forward because a child ended up dead," prosecutor Bert von Herrmann told the AP. "She smoked cocaine as much and as often as she could... if that's not extreme indifference to life, I don't know what is."

But Anderson pointed instead to the indifference with which the state addresses the needs of poor women. "We don't solve this by prosecuting the most disenfranchised people in the most disenfranchised communities," she told DRCNet. "We need to make drug treatment more readily accessible, but the bottom line is we need to build communities, we need educational opportunities, we need real health care -- not just drug treatment, but normal health care, prenatal care, all of those things."

The prosecution of McKnight became possible after the South Carolina Supreme Court ruled in 1996 that a viable fetus is considered a child and pregnant women could be charged with child abuse if they used drugs after the fetus was viable.

McKnight, who is the mother of three children and is two months pregnant, will appeal, her attorneys told the AP. In the meantime, McKnight has begun serving her sentence.

South Carolina Advocates for Pregnant Women will stay the course, Anderson told DRCNet. "We'll continue to work with Regina's lawyers on the appeal process and we will continue to advocate for these women. We must also strengthen our grassroots educational work," she added. "We can blame the state for initiating this prosecution, but those jury members who convicted her hold all too common attitudes."

For Anderson, the McKnight case marks "the intersection of the war on drugs with the war on poor people and the war on women's rights. The war on drugs has been a convenient club with which to attack women," she argued.

Now the state of South Carolina has one more such club to wield.

5. Colombian Coca and Poppy Production Up Last Year Despite Heightened Drug War, Market Crash Ahead?

According to a report in the Colombian newsweekly Cambio, coca and poppy production in Colombia expanded by 60% last year, from 103,000 hectares at the end of 1999 to 162,000 hectares at the end of 2000. The net number of new hectares put into production almost exactly equaled the number of hectares fumigated by herbicides.

The findings were based on satellite photos provided by a French company under contract to the United Nations Drug Control Program and the Colombian government. Cambio quoted UN and Colombian anti-drug officials as saying that Colombian coca production alone last year nearly equaled the previous totals for the entire Andean region.

In a lengthy article titled "The Great Failure," the magazine wrote that growth in production despite a decade of eradication efforts is evidence of a "profound failure of anti-drug repression based on aerial fumigation that raises serious questions about the future of the strategy and Plan Colombia itself."

Plan Colombia, the Barry McCaffrey-authored and US-backed effort to destroy Colombian drug production, has only accelerated the fumigation of coca crops, with much airborne spraying and increased political violence, but without much impact on the overall coca crop.

"This is incredible and disheartening," a high official of the Colombian government told Cambio, "since the growth of 59,000 hectares is almost identical to the area fumigated, which was 58,200. It is as if fumigation not only did not work to eradicate coca cultivation, but to the contrary, multiplied it. The news is a true disaster and proof that we are going down the wrong path."

For General Gustavo Socha, head of the Colombian anti-drug police, the lack of alternative development opportunities for coca growing peasants was key. Otherwise, he said, peasants simply reverted to coca. "The problem is that to fumigate is not necessarily to be done with the cultivation, since it will begin again a few months later if we do not offer some alternative to the peasants, if we do not intervene in an integral manner."

The Colombian state has not managed to do so in vast swathes of the country where the state barely exists or where armed rebels hold sway. For many peasants, the first interaction with the national government is the arrival of troops and planes to destroy their crops.

Peasants are also adaptable, one unnamed alternative development functionary told the magazine. "I have seen peasants who sow a plainly visible hectare of coca to be the one the authorities fumigate, and nearby they sow other small plots that add up to another hectare or more," he said, adding that "they have learned to break up the plots to break up the risk."

The magazine examined underlying factors behind the explosion in coca production and, while paying lip service to the crisis in Colombian agriculture in the 1990s, pointed to "two central factors. First, the successful interdiction policy in Peru. And second, the fact that in Colombia there are illegal armed groups with the capacity to lend protection to the growing, processing, and exportation of this illicit product."

While market forces and armed actors may prove insuperable obstacles to coca eradication, the market itself could paradoxically be the solution, according to Colombian drug analyst Francisco Thoumi. He told Cambio that the combination of continued high coca production and declining levels of use in the US and Europe could lead to a market crash.

With production increasing in Colombia and indications that both Peruvian and Bolivian coca production are beginning to increase again, as well as reports of significant new sowings in Brazil, the global cocaine industry is on the verge of a crisis of overproduction, Thoumi said.

Finally, the magazine noted, "the great irony is that if the fumigation had been successful... Colombia would have lost half of its production capacity and the world 35%. With that, it is very likely that the market would have readjusted itself, and supply and demand would have remained balanced. The prices would have increased at the same time as profits for the intermediaries. That is to say, if Colombia had achieved its eradication goals in 2000, it would have done a grand favor to the narcotraffickers by ordering the market.

"This is only of the many absurdities that is derived from the manner in which the governments of the word, and especially that of the United States, have conceived the struggle against drugs," concluded Cambio, which expects more of the same. It noted that drug czar-to-be John Walters "talked of fighting the drug trade 'at the source,' which makes it foreseeable that for Colombia, in spite of the proven failure, the recipe will continue being the same."

6. Thugs Kill New York City Marijuana Retailer, Two Others, Police Blame Marijuana

If the commodity in which Jennifer Stahl dealt were plastics or pansies, her vicious murder during an armed robbery last Thursday at her place of business would have been only the latest chapter in the city's bloody history of crime; Stahl would have been only the latest shopkeeper gunned down by greedy criminals.

But Stahl sold pot, good quality, high-dollar boutique bud, according to titillated press reports, and because of that fact, the killings of her and two of her guests (two more were wounded) has morphed from the story of just another armed robbery gone horribly wrong into an object lesson on the evils of the marijuana trade. At least, that's what New York City's top police officials would have you believe.

Police Commissioner Bernard Kerik told a press gathering the day after the shootings that marijuana use and sale "is not a victimless crime. Anyone who believes it is should have been in that apartment... and seen those victims on the floor, bound and gagged. These people were executed over marijuana," Kerik informed the unenlightened. Although police investigators said the motive of the murders was robbery, Kerik did not explain how the crime differed from the robbery-murders of other merchants in the city or what quality intrinsic to marijuana spurred the crime.

Bridget Brennan, the city's special narcotics prosecutor, also took advantage of the slayings to do some special pleading. "Marijuana is a highly profitable drug," she explained. "Money is the source of most narcotics disputes. These guys can't settle their disputes in court."

Excuse me, says National Organization for the Reform of Marijuana Laws (NORML) executive director Keith Stroup. "They are simply making our case that prohibition is dangerous," he told DRCNet. "The whole case demonstrates what is wrong with the black market."

And, Stroup added, the fact that Stahl was in the retail marijuana business does not mean she deserves to be doubly victimized, once by her killers and again by drug warriors with dark fulminations about violence in the marijuana trade. "If she had not sold pot, they wouldn't be trashing the victim," Stroup fumed. "There were no guns in her apartment.

"This was a woman I met. She had her picture taken with me at the Cannabis Cup in Amsterdam last year. She was a decent, lovable lady who happened to be a marijuana seller," Stroup mused. "In New York there are a lot of them. In some ways she was the American equivalent of the Dutch coffee shops, but we haven't developed a legal support system for people like her."

Chuck Thomas of the Marijuana Policy Project also took offense at Kerik's remarks. "Does he really think this would have happened if marijuana were regulated like alcohol?" asked Thomas. "There was a time when people were shooting each other over alcohol distribution."

New York police officials, of course, are engaged in a vendetta against marijuana that has resulted in New York City accounting for nearly 10% of all marijuana arrests nationwide. Under Mayor Rudolph Giuliani's "quality of life" campaign to clean up the city, New York smokers by the tens of thousands have seen the quality of their lives bruised and battered by day-long stays in city holding cells after misdemeanor possession arrests.

"Giuliani's policies are at fault," says Thomas. "There's an iron law of prohibition: the tougher the laws, the tougher the criminals. To the extent that kinder, gentler hippies are deterred from growing a few plants and a market develops, ruthless criminals prey on that trade. Their own policies created this, and ultimately, they will have to create a nonviolent, regulated opportunity for people to obtain marijuana, either by growing their own or having regulated sales."

Jennifer Stahl and two of her friends are dead and their killers remain free. New York City tokers can rest assured that their political leaders are moving to ensure that the tragedy is repeated.

7. DEA's Caribbean Office Lied About Arrests, GAO to Investigate

In February, DRCNet reported on a scandal brewing over the Drug Enforcement Administration's (DEA) Operation Libertador, a sweeping, Caribbean-wide bust of thousands of drug offenders. Problem was, the DEA was inflating the numbers and taking credit for busts in which it had not participated, as well as including minor marijuana possession offenses in its bust tallies (

The scandal has only deepened since then. DEA agents in Puerto Rico have told Knight Ridder reporter Lenny Savino, who broke the original story, that the San Juan office routinely inflated its arrest and drug seizure numbers for at least the past three years. According to Savino, the bogus figures provided ammunition for the DEA's Caribbean head, Michael Vigil, in his quest for more money and more agents.

Savino interviewed five DEA agents who had worked the San Juan office, all of whom said they suffered reprisals -- including reprimands, demotions, and transfers -- after complaining about falsified figures to their superiors. All spoke on the condition they not be identified. He quoted the DEA agents as saying that Vigil demanded more impressive arrest statistics, then used the inflated figures to argue that the San Juan office merited budgetary and personnel increases.

He got them. In a laudatory article on the agency last year, Caribbean Business magazine reported that the DEA Caribbean Division, run from San Juan, has seen its staff increase by 181%, with the number of DEA special agents ballooning from 40 in 1996 to 131 last year. Savino says the staff size doubled and the arrest rate tripled in the late 1990s.

But the impressive jump in the arrest rate was manufactured. Agents at the San Juan office told Savino that the DEA claimed credit for hundreds of arrests that were actually made by local police. One former supervisor estimated that 70% of the arrests reported by the San Juan DEA from 1998 to 2000 were phony.

"It got so bad," said the unnamed supervisor, "that agents were checking the newspapers every day to see who was arrested so they could go get the information and transfer it onto DEA arrest cards."

The unnamed agents told Savino many of the arrests claimed by the DEA in San Juan were penny-ante busts for a few grams of cocaine or ounces of marijuana. DEA policy in the San Juan office directed agents to pursue only cases involving more than 5 kilograms of cocaine or 20 kilos of marijuana.

Savino asked for DEA permission to interview Vigil or DEA Administrator Donnie Marshall, but the agency demanded written questions in advance. When Savino submitted the questions, neither Vigil nor Marshall would comment. Savino did manage to corner Marshall in a congressional hallway on May 3rd for what he charitably called a "brief interview." Marshall said an internal investigation of "all the issues" related to the funny arrests was under way, but it would be "inappropriate" to comment. Marshall was back on the Hill appearing before the Senate Caucus on International Narcotics Control this week. He told the senators Puerto Rico accounted for a precise 31% of cocaine flowing into the US, but did not address the bubbling fake arrests scandal.

Readers who recall last week's story about the DEA's investigation of itself in the Andrew "Supersnitch" Chambers case ( will not be expecting earth-shattering revelations from the agency, but may take some comfort in the fact that Senator Jeff Sessions (R-AL), a member of the Judiciary Committee and the drug caucus, has asked the General Accounting Office to conduct a broad investigation of whether drug war personnel have been routinely inflating arrests and seizures. The GAO will look not only at the DEA, but also Customs, the Navy, and the Coast Guard.

Sessions, a dedicated drug warrior with a lengthy law enforcement background, told Savino that over-counting drug arrests "gives a false sense of accomplishment" to the US anti-drug campaign.

Marshall will be replaced by Bush nominee Rep. Asa Hutchinson. Vigil, meanwhile, has since been promoted to head all of the DEA's international operations.

8. Two Steps Forward, One Step Back in Indiana Sentencing

The recently adjourned Indiana General Assembly showed increasing signs of drug war fatigue this year as it passed into law measures that will get nonviolent drug offenders out of prison faster and make them ineligible for enhanced sentences under the state's habitual offender law (known as "the bitch"). But in the same session, it succumbed to the spreading methamphetamine hysteria, passing a law that will heighten meth penalties to bring them in line with those for cocaine and "narcotics." Under Indiana law, trafficking in those drugs can bring a 20-year prison sentence.

For the first time, some persons convicted of drug dealing offenses will be able to avoid prison by serving home detention or work release sentences instead. Other drug offenders will be eligible for earlier releases under the state's already functioning Community Transition Program.

Rep. B. Patrick Bauer (D-South Bend) was a prime mover in the sentencing reforms. Bauer wrote the community release and habitual offender language and then inserted it into the state budget bill, which became law earlier this month. In an interview with the Fort Wayne Journal Gazette last week he sounded two themes: the cost of incarceration and the need to consider drug treatment.

"Many of these prisoners are drug offenders who are not dangerous to society. They are only dangerous to themselves," Bauer said. "We put them in prisons, which are known as schools of crime, they come out hardened and two out of three go back. We're trying to stem the tide of building prisons," he said. "It's a tax savings, but also perhaps we need to focus more on rehabilitation," Bauer added.

More than 3,600 of Indiana's 20,000 prisoners are doing time solely on drug charges, according to the Indiana Department of Corrections. Each costs the state between $25,000 and $30,000 annually to imprison. Indiana also holds 73 prisoners convicted only of drug offenses who have seen their sentences doubled under the state's habitual offender laws. Under the old laws, a person arrested for a felony charge could be charged as a habitual offender if he had two prior unrelated felony convictions. Possession of illegal drugs other than marijuana is a felony in Indiana. The new habitual offender law, however, does not allow prosecutors to bring the charge if the new offense is a drug offense, if the previous felonies were drug offenses, and no more than one of them was a drug distribution offense.

Allen County (Fort Wayne) Prosecutor Robert Gevers II told the Journal Gazette his office used "the bitch" as a bargaining tactic by promising defendants not to use it in return for a guilty plea. He bemoaned the loss of leverage.

"We may end up filing fewer habitual offender charges, and you won't see sentences as long as they could be," a glum Gevers told the Fort Wayne newspaper before going on a brief rant about a real drug war. "If in fact the country determined that we were truly going to wage a war on drugs -- as defined by a dictionary and not this piecemeal, half-hearted approach -- we would not be having this conversation. It would be over," Gevers declaimed.

Allen County Superior Court Judge Kenneth Scheibenberger provided the Journal Gazette with one example of the law's impact. He sentenced Fort Wayne resident Alvin White to 20 years in prison last year, and added another 20 under the habitual offender law. White's prior convictions were for cocaine possession. Under the new law, White would not have been eligible for the doubled sentence.

Scheibenberger also hailed the new provision allowing persons convicted of drug distribution to qualify for home detention or work release. He told the newspaper the law would allow him to make a distinction in sentencing between entrepreneurs and addicts.

Not all legislators were in accord. "I don't agree that someone should be able to bypass prison altogether dealing narcotics at this level," Sen. David Long (R-Fort Wayne) told the Indianapolis Star.

The legislature also provided for earlier release dates for drug offenders. Under the state's Community Transition Program, nonviolent offenders can be released into a supervised setting as the ends of their sentences draw near. Previously, prisoners had to be within 60 or 120 days of completing their sentences; now drug offenders need be only within six months. But the impact of this move will be limited. Release is not automatic, and according to the Journal Gazette, Allen County, in which judges have granted early release to only 15% of those eligible, has one of the state's highest participation rates.

But Indiana lawmakers also took a step backward with the passage of a new methamphetamine law. Under siege from law enforcement and a sensation-seeking mass media -- the Indianapolis Star editorialized in April about "bracing for a methamphetamine epidemic" -- the solons voted to heighten meth possession, manufacture, and distribution penalties to make them as tough as the state's penalties for heroin and cocaine. The bill also makes it a crime to transport or store the precursor chemicals used in meth's manufacture, and increases criminal penalties for the theft of anhydrous ammonia, widely used by farmers in fertilizers, but also widely used by amateur meth cooks.

Indiana's schizophrenic approach to drug policy this year was exemplified by the Indiana Prosecuting Attorneys Council, which lobbies lawmakers on crime issues. The group could not arrive at a consensus on the drug bills, Executive Director Steve Johnson told the Journal Gazette. The group had "a slew of opinions" but could not reach agreement, he said.

"There's a lot of consideration about the effectiveness of the laws. Everyone is trying to figure out the best way to handle this," Johnson said. "We are not waving the white flag. States all over the country are just examining the war on drugs."

9. Canadian Medical Association Journal Calls for Marijuana Decriminalization

"Mr. Justice Minister, let's decriminalize the possession of small amounts of marijuana for personal use."

That's the final line -- and the bottom line -- of this week's editorial in the Canadian Medical Association Journal. Written in response to Health Canada's announcement last month of new medical marijuana regulations, the editorial called Health Canada's move "a step in the right direction," but said "a bolder stride is needed."

"Our view is that the government should probably take a little bit more bold step and decriminalize it," the journal's editor, Dr. John Hoey, told the Toronto Star. "It turns out that it is really quite an innocuous drug, probably with the exception of tars and things, which then make it similar to tobacco," the editorialist explained.

In the editorial, Hoey elaborated: "The possession of small quantities for personal use should be decriminalized. The minimal negative health effects of moderate use would be attested to by the estimated 1.5 million Canadians who smoke marijuana for recreational purposes. The real harm is the legal and social fallout. About half of all drug arrests in Canada are for simple possession of small amounts of marijuana: about 31,299 convictions in 1995 alone. Many lead to jail terms or fines, and all result in that indelible social tattoo: a criminal record. This means that for anyone who's ever been caught with a stash in his or her pocket, the question 'Have you ever had a criminal conviction?' during a job application or medical school interview can force higher aspirations to go up in a puff of smoke.

"The decriminalization of marijuana possession for personal use does not mean making marijuana 'legal' or letting it be sold in every schoolyard. It does mean that possession of small amounts for personal use would become a civil offense, like a traffic violation, not a criminal one. The provisions of Canada's Contraventions Act make this a relatively simple legislative task."

Hoey told the Star he expected no negative fallout from Canadian doctors, which is not surprising given that the Canadian Medical Association, the journal's publisher, has already endorsed the decriminalization of marijuana.

"My hunch is that doctors would generally agree, and certainly public health doctors, who would worry about this, that the harms of criminalizing marijuana use far outweigh the harms of smoking a bit of marijuana," Hoey said.

Hoey also used the editorial pulpit to urge his fellow physicians to move quickly on medical marijuana. "About 400,000 Canadians use cannabis for medical reasons," he wrote. "Professional organizations such as the CMA must move quickly to issue guidelines for physicians who, increasingly, will be asked for advice by their patients."

(Visit to read the editorial online.)

10. Media and Resources: Arianna Huffington, Village Voice,,, U. Miami Law Review, CDC

Arianna Huffington on Bush Drug Policy Appointments: "The Thing With Two Heads"

The Village Voice: Jennifer Gonnerman interviews Paula Thompson in "The Education of a Juror: The Woman Who Bailed Out a Drug Defendant Tells Her Story."

Dan Shapiro and Dan Forbes cover the Supreme Court medical marijuana ruling for

Mother Jones discusses the possible impact of the Supreme Court ruling on the members of a medical marijuana cooperative in Santa Cruz, California in "Half an Ounce of Healing."

The University of Miami Law Review published Brant Hadaway's "Executive Privateers: A Discussion on Why the Civil Asset Forfeiture Reform Act Will Not Significantly Reform the Practice of Forfeiture," a paper that won this year's Burton Award for student writing.

The May 18th issue of the Mortality and Morbidity Weekly Report, a publication of the US Centers for Disease Control and Prevention, focuses on injection drug use and related issues such as syringe exchange. or

11. The Reformer's Calendar

(Please submit listings of events related to drug policy and related areas to [email protected].)

May 19, 2:00pm, Syracuse, NY, ReconsiDer: Forum on Drug Policy Annual Meeting. Keynote address by Kevin Zeese, president of Common Sense for Drug Policy, at the May Memorial, 3800 East Genesee St. For further information, visit or e-mail [email protected].

May 20-22, Scottsdale, AZ, National Association of Addiction Treatment Providers annual conference. Call (717) 581-1901 or visit for further information.

May 20-27, Amsterdam, The Netherlands, Study Tour of Dutch Drug Policy, organized by the White Dog Cafe, particularly for persons with a background in health and social services, legislation, activism, drug law or policy. Call (215) 386-9224 or visit for further information.

May 22, noon, Washington, DC, "Time to Rethink the War on Drugs?" Policy forum at the Cato Institute, 1000 Massachusetts Ave., free of charge, luncheon follows. To register, contact Megan Brumleve, (202) 789-5229, (202) 371-0841 (fax) or e-mail [email protected].

May 25-28, Vandalia, MI, "Hemp Aid 2001." Call 616-476-2808 or visit for information.

May 30-31, Honolulu, HI, "Marijuana in 2001: Medical and Social Issues," sponsored by the University of Hawaii School of Medicine. At the Ala Moana hotel, $225 for physicians, $125 for non-physicians. For further information, contact Anne Taylor at (808) 586-2904.

May 30-June 2, Albuquerque, NM, "Drug Policies for the New Millennium." First annual conference of The Lindesmith Center-Drug Policy Foundation, following in the footsteps of the 13 years of the International Conference on Drug Policy Reform. For further information, call (202) 537-5005 or visit on the web.

June 9, New York, NY, Organizers' Training to Repeal the Rockefeller Drug Laws. Session sponsored by the Interfaith Partnership for Criminal Justice in New York City, for individuals interested in organizing in Harlem against the Rockefeller Drug Laws, to be held at Harlem' St. Aloysius Church. For further information, contact Jessica Dias at (718) 499-6704 or [email protected].

June 15-17, Charlotte, NC, Families Against Mandatory Minimums Southeastern Conference on Sentencing Reform. At St. Luke's Lutheran Church, 3200 Park Rd. For further information, contact Elaine Lynch at (704) 947-9728.

June 16, 2:00pm, Los Angeles, CA, Drug War Victim Vigil in honor of Peter McWilliams. Sponsored by the November Coalition and the Libertarian Party of California. Meet at 2:00pm on the front lawn of the West Los Angeles Federal Building on Wilshire Blvd., vigil until 4:00pm, march 1/3 mile to Westwood Memorial Gardens, 1218 Glendon. For further information, contact Hal Chiprin at [email protected].

June 30, New York, NY, Rally in Harlem to Repeal the Rockefeller Drug Laws. Sponsored by the Interfaith Partnership for Criminal Justice in New York City. For further information, contact Jessica Dias at (718) 499-6704 or [email protected].

July 27-29, Clarkburg, WV, "Neer Freedom Festival." Benefit for West Virginia NORML and upcoming medical marijuana campaign. For further information, contact Tom Thacker at [email protected].

October 7-10, St. Louis, MO, American Methadone Treatment Association Conference 2001. For further information, e-mail [email protected], visit or call (212) 566-5555.

December 1-4, 2002, Seattle, WA, Fourth National Harm Reduction Conference. Featuring keynote speaker Dr. Joycelyn Elders, former US Surgeon General, at the Sheraton Seattle. For further information, visit or call (212) 213-6376.

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