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

Issue #243, 6/28/02

"Raising Awareness of the Consequences of Drug Prohibition"

Phillip S. Smith, Editor
David Borden, Executive Director

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DRCNet's first global anti-prohibition conferences are coming up in Belgium and Mexico, under the banner "Out from the Shadows: Ending Drug Prohibition in the 21st Century." The Mexico conference, which will bring together anti-prohibition advocates from throughout Latin America will be held in the city of Merida, Yucatan, tentatively February 13-15 to be confirmed shortly. Stay tuned to DRCNet for details, or e-mail [email protected] to receive an announcement when details are finalized.

Stop the DEA's war on medical marijuana! Visit http://www.stopthedrugwar.org/medicalmarijuana/ to write to Congress and the president today!

TABLE OF CONTENTS

  1. Editorial: The Specter of Coming Violence
  2. DRCNet Interview: Roger Goodman, Voluntary Committee of Lawyers
  3. DRCNet Book Review: Drug War Heresies
  4. Supreme Court Allows Drug Testing All Students in Extracurriculars
  5. Slim Supreme Court Majority Upholds But Also Criticizes Mandatory Minimum Sentencing
  6. New York Rockefeller Law Reform Dies This Year as Pataki, Democrats Deadlock
  7. Vermont Governor Quietly Signs Compromise Medical Marijuana Bill
  8. Newsbrief: Unitarians Approve Anti-Drug War Platform
  9. Newsbrief: Fatal Drug Overdoses on the Rise in Florida
  10. Newsbrief: New York Pharmacies Fail to Distribute Sterile Syringes
  11. Newsbrief: Arizona Supreme Court Rules Police Knock and Talk Violates Privacy Rights
  12. Newsbrief: Kansas Sentencing Commission Wants to Focus on Prevention
  13. Newsbrief: Illinois Juvenile Drug Courts Given a Green Light
  14. Newsbrief: Medical Marijuana Distributor Angers Judge in California
  15. Newsbrief: UN Reports Drug Use on the Rise Worldwide
  16. Newsbrief: Scottish Police to Ignore Marijuana Use
  17. Web Scan: Uniform Crime Report, World Prison Population List, Transnational Institute, Imani Woods, CDC, WorldNet Daily
  18. The Reformer's Calendar
(read last week's issue)

(visit the Week Online archives)


1. Editorial: The Specter of Coming Violence

David Borden, Executive Director, [email protected], 6/28/02

Back in the summer of 1986, I had the luxury and privilege of studying at the Aspen Music School in Colorado. Famously idyllic, crime is a very rare occurrence in Aspen. People walk the town at any hour without fear of attack; and while it's easy to spend much more money than you intended, it's extremely unlikely that your money will get taken from you by force. It's pretty hard to find a more peaceful place.

But the town's off-season calm had in fact been violated a few months before, and people were still talking about it by the time I arrived in mid-June. Aspen, in spring 1986, had been the scene of a car-bombing, an Aspen resident and reputed cocaine trafficker the victim. Drug prohibition's violence had invaded the otherwise safe and peaceful Colorado mountain cultural center, ski mecca and party town.

I wish I could say that this was the event which sparked my interest and involvement in the anti-prohibition movement. But I was in college, I hadn't learned much about the issue, and as a 20-year old was pleasantly cocooned within a beautiful college campus, with a little knowledge of what was going on in the world, but not enough to be aware of developments in the drug scene.

It would have been a good year to be paying attention. 1986 saw crack cocaine use reach serious proportions, with the resulting violence and chaos of the inner city crack trade taking a devastating toll on our inner cities. Equally devastating, Congress passed terrible mandatory minimum legislation, subjecting large numbers of low-level drug users or drug trade participants to years, often decades in prison for first-time, nonviolent offenses -- not even holding a hearing to discuss whether their draconian new sentences were a good idea.

The next several years saw drug use decrease but violence continue to go up. The combination of the large numbers of transactions in the crack trade (crack is a short acting drug whose users often purchase it several times a day), combined with Congress' harsh new laws aimed at adults, caused large numbers of minors to be recruited into drug selling and ensured they would be dangerously armed. Guns and violence become the norm among certain sectors of American youth, and the trend spread out to others.

By the time I got involved in drug war politics in late 1993, violence had finally begun to decrease and drug use had begun to go up. Crime continued to drop through much of the 1990s, providing political fodder for "touch on crime" politicians like New York City mayor Rudolph Giuliani who were quick to take credit for it. Many cities across the country saw drops in crime, though, some of them comparable to New York's, with very different policing policies in place. Most serious observers of criminal justice saw the national drop in crime primarily resulting from a smaller youth population (most violent crime is committed by the young) and by the relative stabilization of the drug trade and consequent reduction in the number of "turf" battles.

The obvious question, then, is what will happen when the youth population again begins to increase? If the drop in crime was the result of a smaller number of youth, does that mean that more young people, absent fundamental changes in the social and economic forces at work, will mean more crime?

New data from the FBI Uniform Crime Reports brings these questions into focus: Crime, including violence, has again begun to rise. It isn't known yet whether this is a bump on the way to further drops in violence, or the prelude of a new crime wave. A sustained rise in violence as transpired during the first part of the Reagan-Bush-Clinton drug war would affect all Americans, but the poorest most of all. Only time will tell, but this may be the future that our country has in store, if we continue our current course and wage the drug war full force into the 21st century.

It would be far, far better to end the drug prohibition policy that directly or indirectly drives so much of the violence our nation faces. After Alcohol Prohibition was repealed in 1933, the homicide rate dropped by half over a period of several years. But decades of escalating drug war have taken the violence to levels far beyond that experienced during that earlier Prohibition. Leaving drug prohibition intact (it had been enacted federally via the Harrison Act in 1914) was a major policy error on the part of our government, from which our country suffers deeply.

We can have a safer society, if we turn away from the foolish course on which we embarked so long ago. Absent such wisdom, violence and the specter of more will always loom large and dark, fear of it clouding our thoughts and our souls.


2. DRCNet Interview: Roger Goodman, Voluntary Committee of Lawyers

One of the groups that emerged to play a key role in the eventual demise of Prohibition was the Voluntary Committee of Lawyers (VCL). Formed by nine prominent New York City attorneys in 1927, the original VCL supplied legal expertise to opponents of Prohibition and helped draft model legislation to replace it. With the passage of the 21st Amendment ending Prohibition in 1933, the VCL quietly disbanded, its work done.

Now, concerned attorneys have revived the VCL to take on the drug war and its attendant social ills. Coordinated most recently by Massachusetts attorneys Michael Cutler and Richard Evans, the VCL has now hired Washington state attorney and drug reformer Roger Goodman as its new executive director. DRCNet spoke with Goodman to see how the VCL is waging its share of the long march through the institutions of civil society and government in search of drug peace, not drug war.

Week Online: Your organization is obviously inspired by the original Voluntary Committee of Lawyers, which organized itself during Prohibition. Tell us what role the VCL played in ending Prohibition?

Roger Goodman: The charge of the original VCL was to preserve the spirit of the US constitution by bringing about repeal of the Volstead Act and the 18th Amendment, or Prohibition. The VCL worked state by state to establish the legal infrastructure for the states to repeal the 18th Amendment and adopt the 21st Amendment through their constitutional conventions. They were very successful in working with bar associations in key states to make that happen, until two-thirds of the states voted for repeal. In addition, in the context of the 1932 presidential elections, the VCL worked with the Democratic Party to draft a platform statement on repeal of alcohol prohibition. Part of that platform statement read as follows:

"Whereas the direct results of attempted enforcement [of Prohibition] have been to imperil the liberties of the people, to finance organized crime, to plunge politics into corruption, to clog the courts of justice, to fill the prisons, and to subject important communities to a rule of conduct of which they disapprove and strenuously resist, so that large sections of the electorate have come to regard the federal government as a hostile and alien power..."

The modern VCL takes this statement from 1932 and holds it up to our current drug laws. We see a frightening mirror image. We see the same adverse consequences of a misguided policy 75 years later. But just as Prohibition crumbled in the face of severe budget constraints during the Depression, we are seeing those same economic pressures brought to bear on drug policy. Drug prohibition is no longer affordable. The VCL wants to work in a constructive way state by state to help balance budgets, bring a more rational drug policy into being and enhance respect for the law.

WOL: When did the latest incarnation of the Voluntary Committee emerge, and what prompted its resurgence?

Goodman: The reincarnated VCL was started in 1997 after the New York City bar association published its study, "A Wiser Course," about drug policy. An eminent group of attorneys, including Elliot Richardson, Nicholas Katzenbach, Sam Dash, Leon Higginbotham and George Bushnell saw that there could be a role for a reconstituted VCL. They thought the time was right to begin a similar movement across the country to generate interest in the bar for drug reform. But they were a bit early, and the organization lay fallow for a couple of years, but now the time is right. With the passage of the initiatives and recent public opinion polls, we have seen a palpable change of opinion among the public and among public officials. And with the success of the effort to pass drug law sentencing reform in Washington state through the state bar and the King County Bar Association, we demonstrated that it could be done. The VCL got in touch with me because of our successful efforts in Washington state (http://www.drcnet.org/wol/228.html#washingtonreform) and requested that I become the executive director of the VCL. So I've taken all the files and set up a West Coast office here in Seattle. There is an East Coast office in New York City.

WOL: Does the Voluntary Committee take a position on ending drug prohibition and replacing it with a regulated market?

Goodman: We do not take any specific position on what should replace our current drug policy. Our mission is to create a safe space for discussion of the tragic failure of the drug war. Up until now, there has been a visceral response even to talking about it, and we want to get beyond that. What we're doing is encouraging the legal community to explore all alternatives, including treatment, decriminalization, freedom for physicians to prescribe for medical reasons, expanding scientific research on illicit drugs, and improving drug education so it is based on facts, not fear-mongering. VCL doesn't have a hidden agenda, we just want to stimulate discussion among professionals to provide credibility for the drug reform movement and, as important, to provide cover for politicians who may be afraid to move forward on these issues.

WOL: What is the membership of the Voluntary Committee of Lawyers? Any prominent names?

Goodman: In addition to the people mentioned earlier, drug reformers might recognize the name of Eric Sterling, who is on our board of managers and executive committee. The prominent defense attorney Charles Adler is president. But we are just beginning to build our membership.

WOL: What programs does the Voluntary Committee of Lawyers undertake?

Goodman: More than anything, we are attempting to work through establishment organizations, such as the bar associations, medical associations and other professional associations. We start with the establishment organizations and move outward, rather than banging on the door from the outside. That sort of reform process tends to be more deliberate, maybe even too slow for some, but it is perceived as a responsible reform effort, and I think it is unstoppable. What we want to do is take the model from here in Washington state and replicate it. In New Jersey, for instance, I'm now working with attorneys and local and state bar associations to give Gov. McGreevy some cover. He will address criminal justice expenditures and budget problems. New Jersey is a perfect opportunity for drug law reform -- it has the twin towers of astounding fiscal deficits and harsh criminal justice penalties. The two are definitely linked.

There is a political risk to standing for drug law reform, but what the VCL and professional associations can do is provide cover by studying the issue and laying out the facts. That is what we did in Washington state. An approach to public policy based on facts, not fear, resonates with both the public and elected officials.

The modern VCL has three tasks. First, we will encourage bar associations in various states and localities to investigate drug policy, which is what we successfully did here in Washington state. Here, local bar associations, sponsored by the state bar, held lengthy forums and discussions about how to reform our drug policy. We also brought in the state medical association and the pharmacists. Now that we have passed progressive reform legislation in Washington state, it is no longer radical to talk about the issue. With the bar associations linking up with other professional organizations, we've been able to make this a mainstream issue. The ultimate goal is to find some key states where we can replicate this, maybe in New Jersey, some Midwestern states, and even states in the South.

Second, we want to begin drafting model drug reform statutes. Here in Washington, the King County Bar Association has moved to that phase. We are beginning a long deliberative process of devising an alternative model of drug control. We don't have preconceived notions of what it will look like and we don't know where it will take us. We'll look at the culture of drugs and drug use in America, the history of narcotics control, both nationally and internationally, we'll look at alternative models, then we'll bear down and write something for Washington state that could be a model for the other states. That presupposes, of course, that the federal government will step back. The federal government needs to allow the states to be laboratories for experiment and change to improve public policy. Right now, the Controlled Substances Act preempts any serious experimentation by the states. We'll ignore that as we draft our model statutes. Again, there is a parallel with Prohibition. In that case, the federal government didn't back off until the states showed they wanted change. Perhaps this drug war will become too expensive even for the federal government. $609 dollars every second, $52 million every day, that's a lot of money, and the federal government has other wars to fight.

Third, we will organize grassroots support among the bar. We have our open letter, and we're getting federal and state judges and any attorney who shares the same passion to sign on. I will address the National Lawyers Guild soon, and that letter will be passed around then. Likewise, the VCL has a relationship with the National Association of Criminal Defense Attorneys. And the American Bar Association is considering a plenary session on drug law reform at its midyear meeting here in Seattle. That would be a major opening, an opportunity to speak to a national conference of state bar presidents to tell them this issue is ripe for bar association action. That is a low-risk strategy for a bar association. And it helps foster better relationships with other professions, such as the medical profession. Too often, the lawyers are suing the doctors, but this is an area where both professions are coming to agreement.

(Visit the VCL at http://www.vcl.org online.)


3. DRCNet Book Review: Drug War Heresies

Phillip S. Smith, Week Online Editor, [email protected], 6/28/02

[Editor's Note: Somebody thinks this book is dangerously subversive. This reviewer's copy of "Drug War Heresies" was confiscated by Canadian customs agents during an attempted border crossing on June 21. No reason was given. -- Phil Smith]

Professors of public policy Robert MacCoun (UC Berkeley) and Peter Reuter (University of Maryland) have written what promises to be the textbook on drug policy for the next generation of university undergraduate and graduate students. In doing so, they have caused howls of protest to rise from some quarters of the drug reform movement, primarily because the authors seek to find a workable middle ground for drug reform somewhere between prohibition and outright legalization. But those rising to critique MacCoun and Reuter would be well-served if they took the time to read and confront "Drug War Heresies" for what it is instead of what it is not.

MacCoun and Reuter are undeniably sympathetic to reform of US drug laws, but theirs is no libertarian manifesto, and it seems a waste of time to criticize them for not penning one. What their work makes clear is that they are mainstream academics studying a public policy problem from a reasonably progressive perspective. As such, they can be maddening for activists: Every conclusion is tentative, every policy prescription heavily qualified -- as is entirely appropriate in a work of serious scholarship. And that is what "Drug War Heresies" is. MacCoun and Reuter have spent the past decade studying not only American drug policy, but also, as their subtitle puts it, "other vices, times, and places." As a result, they bring an illuminating comparative perspective to the contemporary US drug policy discussion, measuring current drug policy against, for instance, Alcohol Prohibition, the American experience with gambling and prostitution, the contemporary Dutch experience with marijuana, and the ongoing Italian experiments with the decriminalization of heroin possession.

What they find may be particularly disturbing for libertarians. Among other things, Reuter and MacCoun chart the increase in teenage marijuana use in Holland and the post-Prohibition increase in alcohol consumption. Through thorough number-crunching they show that those increases are unarguable, but that they are not directly attributable to softening prohibitionist policies. Instead, write the authors, in both cases the increase in usage levels was tied to the commercialization of the drug. In the US context of unalloyed fealty to the free market, intense marketing of newly legalized, decriminalized, or depenalized drugs is undesirable yet unavoidable, they suggest, citing recent experience with efforts to control tobacco and alcohol advertising. Commercialization resulting in higher usage levels makes drug legalization a harder sell in a society where the only measure of "success" in the drug war is decreased usage levels. Libertarian advocates of drug legalization will have to confront the ugly political reality that their strict embrace of the market will make achieving legalization all the more difficult because opponents will be able to argue that unrestrained market forces will push drug consumption up as they have pushed up tobacco and alcohol consumption.

[Editor's Note: The author's predictions and conclusions in this area are certainly important to consider but are by no means as inevitable or formidable as they suggest. It is not at all clear that society would ever tolerate outright commercialization of hard drugs or hard forms of drugs, or that commercial promotion of them would work if it did -- drugs like heroin and cocaine and pretty scary to most people and hence have their own built-in disincentives to use, disincentives that won't go away regardless of the legal or commercial systems. And commercialization of marijuana may actually be a good thing, if it competes with and hence reduces use of alcohol or other drugs. -- David Borden.]

It is these sorts of observations that make "Drug War Heresies" so potentially useful for drug reformers. While the authors make clear they believe that prohibition causes more harm than drug use itself and admit that drug reformers hold the intellectual high ground, they pull no punches in estimating the difficulty of transforming a winning argument into a change of policy. Reuter and MacCoun trace three "battlefields" where the drug policy fight will be one or lost. The first is the philosophical: Does the state have sufficient justification to infringe on the liberty of its citizens to control drug use? No, say the authors, here is where the drug reformers are ascendant. The second battlefield is analytical: Do current policies achieve their stated aims of reducing drug consumption? Here the terrain is more contested, say Reuter and MacCoun, and this is largely the ground they plow in "Drug War Heresies." But the third battlefield is the toughest of all, the battlefield of politics: Can drug reformers win the battle for the hearts and minds of US voters and politicians?

MacCoun and Reuter are not so sure, and it is perhaps here that they can be accused of misplaced pessimism. Apparently writing before the most recent round of state-level drug reform initiative victories, they fail to sense the hollow fragility of the prohibitionist drug war consensus as demonstrated by drug reform victories on nearly every occasion that such issues are put directly before the voters.

And while MacCoun and Reuter make clear that they believe the US has too many people in prison for drug crimes, there is something curiously bloodless about their argument. They list some of the harms resulting from imprisoning hundreds of thousands of Americans -- lost wages and productivity, huge prison budgets -- but fail to grasp or address the soul-searing human suffering among drug war prisoners, their friends, spouses, parents and children. A half-million drug war prisoners, a million fatherless or motherless (or both) children, a rural white population increasingly dependent on the brutalizing labor of keeping other human beings in cages, the corrosive effects of the "snitch state" on such basic things as interpersonal trust -- such things are difficult to quantify, no doubt, but are ignored at our peril. Reuter and MacCoun do manage to note that drug use offers certain pleasures to drug users -- something that is equally difficult to quantify -- and it is a shame they cannot at least acknowledge the human horror of the drug war prison complex.

These failings, however, should not detract from the importance of "Drug War Heresies." MacCoun and Reuter have explored many of the myriad issues surrounding drug policy in discussions that are consistently provocative (and fascinating for policy wonks), if sometimes infuriatingly qualified. But they have written an academic study, not a polemic, and they deserve to be judged on their own terms. As a work of scholarly research, "Drug War Heresies" succeeds wonderfully, and serious drug reformers can only help themselves and their cause by reading and confronting the arguments in this book. The next generation of drug policy scholars is certain to be doing so.

"Drug War Heresies: Learning from Other Vices, Times, and Places," is published by Cambridge University Press. Visit http://www.amazon.com/exec/obidos/ASIN/052179997X/drcnet/ to purchase a copy online.


4. Supreme Court Allows Drug Testing All Students in Extracurriculars

In a Thursday ruling the Supreme Court decided in a 5-4 vote to allow public schools to conduct drug testing of any students involved in any type of extracurricular activity. Justice Clarence Thomas expressed the opinion of the majority stating that youths involved in extracurricular activities voluntarily give up some of their rights to privacy. He further argued that though urination is listened to by the faculty member present that the intrusion upon the student's privacy is "negligible," especially because "male students [are allowed] to produce their samples behind a closed stall." According to the majority opinion, this "negligible" intrusion is justified by the need to fight drugs. Thomas quoted an earlier ruling that "the necessity for the State to act is magnified by the fact that this evil [drug use] is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction... Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school."

Justice Sandra Day O'Connor wrote the opinion for the dissenting justices, including Souter, Ginsburg and Stevens. She began by mentioning that she dissented in the earlier drug testing case that the court heard and from which it drew its precedents. She wrote, "Many children, like many adults, engage in dangerous activities on their own time; that the students are enrolled in school scarcely allows government to monitor all such activities." She further criticized the majority for stating that extracurricular activities are part of the educational system in order to justify the school conducting drug tests yet stating that they were voluntary to justify that the drug tests are not forced upon the students. Ginsburg added stinging criticism of the Tecumseh, Oklahoma school district program that the ruling upheld, calling it "capricious, even perverse."

"We believe the testing of students violates their 4th amendment right to protection from unreasonable search and seizure," said Shawn Heller, National Director of Students for Sensible Drug Policy (http://www.ssdp.org). "The role of schools is to educate, not investigate and incriminate. Schools can perform a useful rule in educating students about the real harms of drug and alcohol use. This shouldn't involve the taxpayers writing a blank check to the drug testing industry to invade student privacy when drug testing can't reduce the harms caused by drug and alcohol use." Heller added, "After-school programs are the best way to keep kids off drugs and off the street. Being part of the band or the student newspaper gives a kid something to do."

Graham Boyd, director of the ACLU's (http://www.aclu.org) Drug Policy Litigation Project and attorney for Tecumseh student Lindsay Earls told the Associated Press, "I find it very disappointing that the court would find it reasonable to drug-test students when all the experts, from pediatricians to teachers, say that drug testing is counterproductive."


5. Slim Supreme Court Majority Upholds But Also Criticizes Mandatory Minimum Sentencing

(press release from Families Against Mandatory Minimums, http://www.famm.org)

A divided Supreme Court, noting the evils of mandatory minimum sentencing, signaled Monday (6/24) that Congress should abandon such laws in the face of widespread criticism. By a close vote, however, the Court upheld the constitutionality of a mandatory minimum scheme in a federal gun statute. The 5-4 decision came in Harris v. United States, No. 00-10666.

"We are disappointed with this outcome, but it underscores the need for Congress to act decisively to end mandatory minimum sentencing, a practice that while arguably constitutional, is widely condemned as unjust," said Mary Price, general counsel of Families Against Mandatory Minimums (FAMM), a national sentencing reform group that filed a amicus curiae (friend-of-the-court) brief in Harris.

Mr. Harris was found guilty of a drug trafficking offense and also convicted for violating section 924 (c)(1)(A) of the federal criminal code. That statute provides a minimum sentence of five years and a maximum sentence of life for using a firearm in furtherance of a drug trafficking offense. If the firearm is "brandished," the mandatory minimum sentence increases to seven years and if discharged, to ten years. The jury convicted Harris of the charge of using or carrying a firearm in connection with a drug offense. The judge then found, in a separate sentencing proceeding, that Harris "brandished" the firearm and sentenced him to the mandatory minimum sentence of seven years.

Harris argued that "brandishing" was an element of a separate, more serious statutory offense of which he was not charged and convicted. He also urged the Court to find the gun statute unconstitutional following the Court's landmark 2000 decision in Apprendi v. New Jersey, if the gun statute assigned the job of finding the mandatory minimum triggering fact of brandishing to the judge and not the jury.

In rejecting Harris' claims, Justice Kennedy, writing for the Chief Justice, and Justices Scalia and O'Connor (and for Justice Breyer in parts), concluded:

(1) the fact of "brandishing" that triggers a mandatory minimum sentence of seven years if found by the judge, was intended by Congress as a "sentencing factor" and not an element of the offense. (Offense elements must be stated in an indictment and found beyond a reasonable doubt by a jury, while sentencing factors need not be stated in the indictment and need only be found by a judge by applying a lower standard of proof);

(2) that legislatures may constitutionally define such sentencing factors and assign them specific, mandatory minimum sentences that need not be charged in an indictment or proved to a jury so long as they do not increase the sentence beyond the maximum authorized by Congress; and

(3) that the decision in McMillan v. Pennsylvania, 477 US 79 (1986), permitting lawmakers to assign to judges the job of determining the facts that trigger mandatory minimum terms, survives the Court's ruling in Apprendi v. New Jersey, 530 US 466 (2000). (Apprendi requires any fact that increases a sentence beyond that authorized by the statute be treated as an element of the offense by being stated in the indictment and found beyond a reasonable doubt by the jury.)

The Court also rejected Harris' argument that Apprendi overruled McMillan, noting that the mandatory minimum sentence of seven years was within the maximum sentence authorized by Congress -- life in prison. Justice Kennedy wrote:

"Apprendi said that any fact extending the defendant's sentence beyond the maximum authorized by the jury's verdict would have been considered an element of an aggravated crime -- and thus the domain of the jury -- by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding."

The dissent, authored by Justice Thomas on behalf of himself and Justices Ginsburg, Stevens and Souter, argued that the sentence is unconstitutional and that McMillan should be overturned following Apprendi. The rule from Apprendi and its precursors, the dissent argued, is that it is unconstitutional to remove from the jury the determination of facts that "increase the prescribed range of penalties to which a criminal defendant is exposed." The fact of brandishing "indisputably alters the prescribed range of penalties" to which the defendant is exposed by raising the minimum from five to seven years.

While disagreeing with the outcome of today's Supreme Court decision, FAMM notes the opinion's observation that mandatory minimum sentences are roundly criticized:

"The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory minimums, it is often said, fail to account for the unique circumstances of offenders who warrant a lesser penalty. See, e.g., Brief for Families Against Mandatory Minimums Foundation as Amicus Curiae 25, n. 16... These criticisms may be sound, but they would persist whether the judge or the jury found the facts giving rise to the minimum. We hold only that the Constitution permits the judge to do so, and we leave the other questions to Congress, the States, and the democratic processes."

The cited footnote from FAMM's briefs told the Court that FAMM's files "are filled with transcripts of sentencings and letters from sentencing judges expressing deep remorse, frustration and regret over having to impose mandatory minimum terms which are objectively unreasonable and inapt in particular cases." The FAMM brief had argued that "the core principle of Apprendi -- that facts which justify and authorize particular levels of punishment must be proved beyond a reasonable doubt to a jury -- applies not only where the legislature authorizes the sentencing court to exceed what would otherwise be the statutory maximum, but also where the court is prohibited from sentencing below a mandatory minimum."

Price noted, "The Court clearly signaled its concern with the rigidity of mandatory minimum sentencing and called on Congress to address the problem. Both the majority opinion and Justice Breyer's partial concurrence -- a ringing critique of mandatory minimums -- echo FAMM's own condemnation of mandatory minimums. Such blind justice is, in the words of Justice Breyer, "'fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system.'"

The Supreme Court decision can be read in full online at:
http://www.supremecourtus.gov/opinions/01pdf/01-332.pdf


6. New York Rockefeller Law Reform Dies This Year as Pataki, Democrats Deadlock

Efforts to reform New York's draconian Rockefeller drug laws ended in defeat this week as talks between Republican Gov. Pataki of New York, the Republican-led New York Senate and the New York Assembly, controlled by Democrats, failed to bridge fundamental differences of vision between the two parties. Thousands of New York drug prisoners and their families must now wait another year for relief from harsh sentences under one of the country's toughest drug laws.

Although Assembly Democrats had compromised repeatedly on key provisions of reform, Pataki and the Senate Republicans would not budge. The latest assembly bill made concessions by granting prosecutors more power in deciding whether someone convicted of a drug offense should be jailed or sent to treatment, on the issue of training of judges, and on increases in funding for prosecutors. The latest language would have limited who is allowed to receive treatment and reduced the scope of mandatory minimum sentencing reforms. The Assembly also agreed to "scale back most retroactive sentencing provisions" and compromised on the Governor's plan to enact mandatory minimums for drug-involved criminals who also carry firearms instead of gun supply reduction, as the democrats originally proposed.

The Governor accused the Assembly of opposing his alternative bill, S. 7588 even though it would "reunite hundreds of families in a matter of weeks." After speaking with representatives of Mothers of the Disappeared, an advocacy group for Rockefeller law reform, Pataki stated that he "offered a comprehensive plan, which has passed the State Senate, that advocates for change have called 'true reform' and a 'gigantic step' forward." The Star-Gazette, however, reported heavy criticism of Pataki by Mothers of the Disappeared, who blame Pataki for the lack of a deal.

The main point on which Republicans and Democrats refuse to compromise is how much of an emphasis should be put on treatment instead of imprisonment. The Governor and Senate want to see the decision of whether or not to send someone to treatment to have more involvement by prosecutors, whereas Democrats want judges to make the decision, which it is believed would allow more of those convicted into treatment instead of prison.

Debate over Rockefeller-law reforms has been intense. Recently, Pataki successfully pressured a Spanish-language television station to pull ads that were critical of his drug law reform proposals. The ad, put out by the Drug Policy Alliance (http://www.drugpolicy.org), accused Pataki's proposal of failing to help family members of those who have been given the largest mandatory minimum sentences.

A recent Zogby poll indicated that 73.8% of New Yorkers favor treatment over jail sentences for those who have been convicted of possession of drugs.


7. Vermont Governor Quietly Signs Compromise Medical Marijuana Bill

(press release from the Marijuana Policy Project, http://www.mpp.org)

Without comment or fanfare, on June 21 Gov. Howard Dean (D) signed legislation setting up a state task force to study how Vermont should go about protecting medical marijuana patients from arrest. While the measure provides no immediate protection to seriously ill Vermonters who need marijuana to relieve their symptoms, the new law sets the wheels in motion for solid patient protection next year.

The compromise measure was agreed to by a House-Senate conference committee after a strong bill, modeled on the medical marijuana laws now on the books in Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington, passed the House of Representatives on March 15 and a much weaker bill passed the Senate on May 14. "The General Assembly finds that state law should make a distinction between the medical and non-medical use of marijuana," the conference report declared. The measure, S. 193, establishes a task force "to investigate and assess options for legal protections which will allow seriously ill Vermonters to use medical marijuana without facing criminal prosecution under Vermont law."

This committee, which will include representatives from law enforcement, the medical community and seriously ill patients, must report its findings to the governor and the General Assembly by January 15, 2003, in time for legislators to take up the matter next year.

"This is a mixed bag," said Billy Rogers, director of state policies for the Marijuana Policy Project. "We had hoped that Governor Dean and the Senate leadership would accept the House bill, which would have spared patients fighting cancer, AIDS and multiple sclerosis from the possibility of arrest simply for trying to relieve their suffering. They had an opportunity to protect Vermont's most vulnerable citizens, and they failed.

"Still, the committee this bill sets up isn't studying whether to protect patients, but how to protect them," Rogers added. "After they review the success of the eight state laws now on the books, we believe they will conclude that in 2003, Vermont should become the ninth state to protect seriously ill people who need medical marijuana. Chances are excellent for passage of a solid bill next year, but it's frustrating that people in real need have to spend another year living in fear."

Visit http://www.mpp.org/pdf/vermontbill02.pdf to read the new Vermont law in full.


8. Newsbrief: Unitarians Approve Anti-Drug War Platform

Last week DRCNet reported that the General Assembly of the Unitarian Universalist Association was considering an "Alternatives to the War on Drugs" Statement of Conscience supported by the affiliated group Unitarian Universalists for Drug Policy Reform. On Saturday, June 22, the statement was approved at the UUA gathering in Quebec City. Key planks of the new UUA platform including the following:

"Establish a legal, regulated, and taxed market for marijuana. Treat marijuana as we treat alcohol."

"Remove criminal penalties for possession and use of currently illegal drugs, with drug abusers subject to arrest and imprisonment only if they commit an actual crime (e.g., assault, burglary, impaired driving, vandalism)."

"Drug use, drug abuse, and drug addiction are distinct from one another. Using a drug does not necessarily mean abusing the drug, much less addiction to it. Drug abuse issues are essentially matters for medical attention. We do not believe that drug use should be considered criminal behavior."

"Make all drugs legally available with a prescription by a licensed physician, subject to professional oversight. End the practice of punishing an individual for obtaining, possessing, or using an otherwise illegal substance to treat a medical condition," and allow "medically administered drug maintenance" as a treatment option for drug addiction.

Further information, including the full text of the statement, is available at http://www.uudpr.org online.


9. Newsbrief: Fatal Drug Overdoses on the Rise in Florida

1,304 people died in Florida due to drug overdoses last year, according to Florida Department of Law Enforcement data. Almost half of these deaths were from mixing drugs. The drugs indicated as being present in the systems of the deceased include alcohol, benzodiazepine (Valium), marijuana, cocaine, GHB, heroin, hydrocodone, oxycodone, ketamine (Special K), methadone, methylated amphetamines (ecstasy, methamphetamine and similar compounds), nitrous oxide (laughing gas), PCP and Rohypnol ("roofies"). This represents a significant increase in deaths related to heroin, cocaine, methadone, oxycodone and hydrocodone. Though overall statistics for oxycodone and GHB-related deaths showed an increase, the latter part of the year has shown a decrease, especially for GHB overdoses.

This number does not include those who died of alcohol overdose alone. Alcohol was most likely of all the drugs in the report to be present in the body of someone deceased due to an overdose, followed by valium and cocaine. Those drugs least likely to be present were GHB, nitrous oxide, ketamine, Rohypnol and methylated amphetamines. The only drug to have fatal overdoses drop was alcohol.


10. Newsbrief: New York Pharmacies Fail to Distribute Sterile Syringes

Nearly one-third of pharmacies in New York City that have committed to participate in syringe-sales programs still refuse to distribute syringes without a prescription, says a report from the New York Academy of Medicine. The Bronx is the hardest hit, with two-thirds of its pharmacies failing to comply with the program. Dr. Ruth Finkelstein, author of the report, says that New York City's HIV epidemic is fueled by injection drug use and that access to sterile needles is essential to curbing the spread of the disease.


11. Newsbrief: Arizona Supreme Court Rules Police Knock and Talk Violates Privacy Rights

The Arizona Supreme Court has ruled that an aggressive police tactic known as "knock and talk" violates the state constitution.

James Patrick Keenom had been sentenced to 20 years in prison for manufacturing methamphetamine. According to court documents, Detective David Jones had followed him home on suspicions that he was manufacturing the drug due in part to Keenom's long hair and beard and an associate of Keenom's long hair. Jones and another detective, Tony Noblin, appeared at Keenom's house to perform a "knock and talk." Noblin testified that he was doing this to get on the suspect's property in lack of a warrant, which he knew could not be obtained.

Noblin and Jones, accompanied by uniformed officers, proceeded onto Keenom's mother's property after talking to her despite "no trespassing" signs and the absence of her consent to stay on the property. Jones refused to consent to a search and asked if he could be released to return to his trailer home. After a long period of questioning, the officers coaxed Keenom into admitting that he had methamphetamine in his possession and that he had allowed friends to use his home for manufacturing the drug in the past. The officers arrested Keenom and searched his house, citing that they had seen the curtains moving, which could have meant an accomplice was present in Keenom's trailer.

The court ruled that Keenom's conviction be overturned because the evidence which implicated him in methamphetamine manufacturing, which included lab materials, was obtained illegally. According to the court, Keenom did not feel free to leave and the detectives' refusal to terminate the encounter or leave Keenom's property, despite his specific requests that they do so, made the seizure unconstitutional.


12. Newsbrief: Kansas Sentencing Commission Wants to Focus on Prevention

For the first time, the Kansas Sentencing Commission has decided to recommend mandatory treatment for nonviolent drug offenders instead of imprisonment, the Associated Press reported on Monday. The Commission plans to issue a new proposal regarding drug laws in Kansas. It has already sent the legislature a report on a policy change for nonviolent offenders convicted of possession of a small amount of drugs that could free 400 to 800 prison beds, according to the AP.


13. Newsbrief: Illinois Juvenile Drug Courts Given a Green Light

Legislation giving the go-ahead for individual circuit courts to establish programs to allow juvenile drug offenders to go through treatment in lieu of imprisonment was signed into law by Gov. Ryan on Monday.

Illinois has seen success with its statewide program for adults convicted of non-violent drug offenses, officials said. This new plan would allow the highest judge in each circuit to set up special court treatment programs that would include counseling and drug testing. If a prosecutor and judge agree to it, a nonviolent juvenile who would otherwise be sent to a detention sent can instead enter into a treatment program. According to the Chicago Tribune, the adult program has allowed for some downsizing of the judicial system in the Chicago-area Cook County.


14. Newsbrief: Medical Marijuana Distributor Angers Judge in California

Bryan James Epis, facing a mandatory ten year sentence for conspiring to manufacture at least 1,000 marijuana plants for medicinal use, has been accused by US District Judge Frank C. Damrell of attempting to influence the jury, the Associated Press reported on Tuesday. Epis, 35, is allegedly responsible for the distribution of flyers to the jury.

The flyers, which were handed out by medical marijuana activist Jeff Jones, explained to potential jury members the jury nullification doctrine, which holds that jurors have the right to judge the law as well as the facts and that jurors can acquit a defendant or create a hung jury by refusing to convict if a law violates their conscience.

Epis was the founder and supplier of Chico Medical Marijuana Caregivers. His case is the first of a cannabis buyers club in a federal court. Damrell set a hearing for August 1 to determine if Epis was obstructing justice. Jones is also facing possible misdemeanor charges.


15. Newsbrief: UN Reports Drug Use on the Rise Worldwide

The United Nations Drug Control Programme has released its annual report, showing an increase in global drug consumption. According to the report, 185 million people now use illicit drugs. 147 million of these are cannabis (marijuana) users, but the increase of global consumption is primarily due to increased use of ecstasy and amphetamines.

Worldwide, cannabis use is most popular among individuals ages 18 to 20, and other drugs are most popular among those aged 18 to 25. Almost half of all 10th graders in the United States have used drugs, the report says, though the rate has fallen somewhat since last year. No other country in the world was reported to have a rate nearly that high, despite the massive US drug war effort.


16. Newsbrief: Scottish Police to Ignore Marijuana Use

Police officers in Scotland have been instructed not to arrest cannabis users, according to an article in the Sunday Mail. All police forces in Scotland have made a conscious decision not to waste time arresting those in possession of small amounts of marijuana. The Sunday Mail reported that this has been confirmed by a source close to Justice Minister Jim Wallace.

This stems from frustration at the inability of prosecutors to prosecute all cases, abandoning one-fifth of all drug cases. Similar policies seem to exist in London and Lambeth. Home Secretary David Blunkett intends to reclassify cannabis as a Class C drug instead of a Class B drug this summer.


17. Web Scan: Uniform Crime Report, World Prison Population List, Transnational Institute, Imani Woods, CDC, WorldNet Daily

The FBI's new preliminary 2001 Uniform Crime Report figures have been released, and are available online at:
http://www.fbi.gov/ucr/01prelim.pdf

The 3rd edition of the World Prison Population List, compiled by the United Kingdom Home Office's Research, Development and Statistics Directorate is available online at:
http://www.homeoffice.gov.uk/rds/pdfs/r166.pdf

The Netherlands-based Transnational Institute has released two reports on the international drug control framework and the obstacles it presents to reform:

Breaking the Impasse: Polarisation & Paralysis in UN Drug Control, by TNI fellow Martin Jelsma
http://www.tni.org/reports/drugs/debate5.htm#1

Habits of a Hegemon: The United States and the Future of the Global Drug Prohibition Regime, by Prof. David Bewley-Taylor
http://www.tni.org/reports/drugs/debate5.htm#9

TNI has further related information available online at:
http://www.tni.org/drugs/ungass/unpolicy.htm

Harm reductionist Imani Woods has launched two web sites devoted to harm reduction and drug policy education in the African American community:
http://www.harmreductioninblack.org and http://www.africanamericaneducation.org

DrugWar.com interviews SSDP national director Shawn Heller:
http://www.drugwar.com/pshellerinterview.shtm

The Centers for Disease Control's 2001 Youth Risk Behavior Surveillance report is available online at:
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5104a1.htm or http://www.cdc.gov/mmwr/PDF/ss/ss5104.pdf

WorldNet Daily critiques the government's drugs-terrorism link and points out it's prohibition, not drugs:
http://www.wnd.com/news/article.asp?ARTICLE_ID=28034


18. The Reformer's Calendar

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

June 28, 8:00pm, San Francisco, CA, Musicians for Medical Marijuana benefit concert, dance party and information sharing forum. Proceeds will benefit public education efforts, medical cannabis research and financial assistance for patients and their caregivers facing legal challenges. Music by The Venusians and DJ Dragonfly, speakers including Dr. Frank Lucido and Ed Rosenthal, $15 minimum donation. At the CELLspace, 2050 Bryant St., call (510)869-5391 or visit http://www.m4mmj.org for information.

June 29-July 1, Washington, DC, National Summit on the Impact of Incarceration on African American Families and Communities. Call (252) 396-0884 or visit http://www.keepthetrust.org/summit/ for information.

July 3, 8:00-11:00pm, Portland, OR, "Collateral Damage: Just Say Know, Music Remembering the Injustices of Tulia, Texas," musical tour by Brad Carter, sponsored by Friends of Justice and the November Coalition. At the Red & Black Cafe, 22nd & Division, $5 cover, call (509) 684-1550 for further information.

July 4, noon-1:00pm, Altoona, PA, Anti-Drug War/Anti-Narcs in Schools Demonstration. Sponsored by the Tri-State Drug Policy Forum, at the Field House, 1415 6th Ave., e-mail [email protected] or call (215) 633-9812 for further information.

July 4, Washington, DC, noon, "33rd Annual Rally March and Concert To End Marijuana Prohibition," sponsored by the Fourth of July Hemp Coalition. Noon activist rally at Farragut Square, 3:00pm march, 2:00-9:00pm concert near the Lincoln Memorial, 10:00pm Hemp Seed Cafe After Show Party at the Metro Cafe, 1522 14th St. NW. Visit http://www.fourthofjuly.org or e-mail [email protected] for further information.

July 5-7, Bryn Mawr, PA, "Liberty & Crisis," student seminar with the Institute for Humane Studies. Participation free, application deadline March 29, visit http://www.theihs.org/tab3/thefirst.html or e-mail [email protected] for further information.

July 6, 8:00pm, Oakland, CA, "Collateral Damage: Just Say Know, Music Remembering the Injustices of Tulia, Texas," musical tour by Brad Carter, sponsored by Friends of Justice and the November Coalition. At the Nameless Cafe, 3906 Martin Luther King Jr. Way, admission $7.50 ($6.50 seniors, $5 children), call (509) 684-1550 for further information.

July 11, Colorado Springs, CO, "Collateral Damage: Just Say Know, Music Remembering the Injustices of Tulia, Texas," musical tour by Brad Carter, sponsored by Friends of Justice and the November Coalition. At the Pikes Peak Justice and Peace Commission, 29 S. Institute, call (719) 632-6189 for time and admission or call (509) 684-1550 for further information.

July 11-14, noon-7:00pm, State College, PA, "5th Annual 30-hour Anti-Drug War Demonstration." Led by professor emeritus of chemistry Dr. Julian Heicklen, at Penn State University Main Gates, coinciding with the Arts Festival. For further information, e-mail [email protected] or call (814) 238-8054.

July 12, 7:00pm, Boulder, CO, "Collateral Damage: Just Say Know, Music Remembering the Injustices of Tulia, Texas," musical tour by Brad Carter, sponsored by Friends of Justice and the November Coalition. At the Rocky Mountain Peace and Justice Center, suggested donation $10, call (303) 444-6981 for directions or call (509) 684-1550 for further information.

July 13, 5:00-7:00pm, Denver, CO, "Collateral Damage: Just Say Know, Music Remembering the Injustices of Tulia, Texas," musical tour by Brad Carter, sponsored by Friends of Justice and the November Coalition. At Mercury Cafe, 22nd & California, call (303) 444-6981 for directions or call (509) 684-1550 for further information.

August 24-29, Lagos, Nigeria, "Tenth International Conference on Penal Abolition." Contact Prisoners Rehabilitation and Welfare Action (PRAWA) at 234-(0)1-4971356-8 or [email protected], Rittenhouse: A New Vision of Transformative Justice at (416) 972-9992 or [email protected], or visit http://www.interlog.com/~ritten/ for further information.

September 26-28, Los Angeles, CA, "Breaking the Chains: People of Color and the War on Drugs." Conference by the Drug Policy Alliance, e-mail [email protected] to be placed on mailing list for when details become available.

September 30-October 1, Washington, DC, "National Symposium on Felony Disenfranchisement," conference sponsored by The Sentencing Project. Admission free, advance registration required, visit http://www.sentencingproject.org or call (202) 628-0871 for further information.

October 7-9, San Diego, CA, "Inside-Out: Fostering Healthy Outcomes for the Incarcerated and Their Families." Contact Stacey Shank of Centerforce at (559) 241-6162 for information.

November 6-8, 2002, St. Louis, MO, "2nd North American Conference on Fathers Behind Bars and on the Street." Call (434) 589-3036, e-mail [email protected] or visit http:/www.fcnetwork.org for information.

November 8-10, Anaheim, CA, combined national conference of Students for Sensible Drug Policy and the Marijuana Policy Project. Early bird registration $150, $45 for students with financial need, visit http://www.mpp.org/conference/ for further information.

November 9, Anaheim, CA, Bill Maher benefit show for Students for Sensible Drug Policy and the Marijuana Policy Project. Admission $50, or $1,000 VIP package including front-row seat and private reception with Bill Maher. Visit http://www.mpp.org/conference/ for further information.

December 1-4, Seattle, WA, "Taking Drug Users Seriously," Fourth National Harm Reduction Conference. Sponsored by the Harm Reduction Coalition, featuring keynote speaker Dr. Joycelyn Elders, former US Surgeon General. For information, e-mail [email protected], visit http://www.harmreduction.org or call (212) 213-6376.

April 6-10, 2003, Chiangmai, Thailand, 14th International Conference on the Reduction of Drug-Related Harm. Details to follow, e-mail [email protected] to request a full announcement by mail.


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