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(formerly The Week Online with DRCNet) Issue #343, 6/25/04
"Raising Awareness of the Consequences of Drug Prohibition" Phillip S. Smith, Editor
subscribe for FREE now! ---- make a donation ---- search Get your copy of "The New Prohibition: Voices of Dissent Challenge the Drug War," compendium of essays edited by Sheriff Bill Masters – or "BUSTED: The Citizen's Guide to Surviving Police Encounters" – either one complimentary with a gift of $25 or more. Visit https://stopthedrugwar.org/donate/ to take advantage of these or other offers while supporting the movement at the same time! SUPPORT THE HINCHEY/ROHRABACHER AMENDMENT – VISIT https://stopthedrugwar.org/medicalmarijuana/ TODAY! TABLE OF CONTENTS
David Borden, Executive Director, [email protected], 6/25/04 This week saw our nation's top court ratify yet another expansion of police power and attendant erosion of civil rights. The Constitution does not guarantee individuals the right to not tell a police officer their names, five out of four Supreme Court justices ruled in the Hiibel case. States may pass laws requiring such disclosure in certain circumstances, and persons refusing to cooperate can be arrested, prosecuted and jailed. There are currently 21 states with such laws on their books. The well known "right to remain silent" is not what it used to be. Ironically, informing arrestees of the right to remain silent is one of the first thing police officers making such arrests must do -- according to the longstanding Miranda Supreme Court ruling -- silence having been the justification for making the arrest in the first place notwithstanding. The impact of the ruling is uncertain. Some civil libertarians worry it will encourage legislatures to test how they can further expand such boundaries. Others have pointed out that while the ruling is not desirable from the privacy and civil rights perspective, for the moment at least it does not create police powers that didn't exist before, but only upholds current laws in the states that have them. And the ruling was narrow: Officers must have asked for a name while conducting a criminal investigation, with reasonable suspicion that a crime may have been committed. If not, the name requirement could still turn out to be unconstitutional. At least the justices left that possibility open. Unfortunately, the narrowness of the written word in the ruling may turn out to be much wider in practice. Suppose you are walking down the street, minding your own business, and a police officer stops you and asks you your name. How do you know whether or not the officer is conducting an investigation? I suppose you could ask, but you can't force the officer to answer. If it is an investigation, how do you know if the officer accurately assessed there to be a "reasonable suspicion" that a crime has been committed and that you might know something about it? You could simply assume that the officer's judgment is sound, and that you are for that moment a subject in an investigation, and provide the officer with your name. But what if you're wrong -- what if it's not an investigation? The officer in that situation has no legal power to compel you to answer. But no such power is needed. All the officer needs is your uncertainty as to the nature of the situation. You might believe it's not an investigation, or that the investigation is being conducted without any reasonable suspicion to justify it. But if you are mistaken, or a judge or jury rightly or wrongly determines you to be mistaken, you could be in big trouble. So you lose a right that you legitimately have, in order to avoid or reduce the risk of incurring legal problems that you don't want. That loss may seem "insignificant," the word used in the majority opinion to justify the name requirement in the face of the constitutional right to not incriminate oneself. But if the right exists, then significance or lack thereof in principle doesn't matter; the abrogation of a constitutionally protected right is significant in and of itself. Though the law may be that enforcers may not compel citizens to provide their names outside the context of a criminal investigation with reasonable suspicion, that law cannot be upheld. People don't like to be arrested or prosecuted or incarcerated, and they will therefore provide their names almost every time, even if they believe the situation is one in which they are not obligated to do so. And few would argue that the duress and expense of an arrest and trial are insignificant, even if the defendant ultimately prevails. There are other troubling questions. Does this 1st and 5th amendment exception apply only to the name itself, or could it be interpreted to apply to the larger concept of identity? That is, suppose you have a common name like John Smith or Mary Jones or Henry Wu. Will the officer quiz you on details of your life in order to determine if you are the specific Smith or Jones or Wu being sought? Such a line of questioning might well be conducted for the best of motives, to avoid arresting the wrong person. But it's another Pandora's Box nonetheless. Will an individual who has already been arrested, but refuses to provide his or her name subsequently, be charged with that as a crime as well, despite having been read the "right to remain silent" Miranda rules? There are many, many police encounters in this country every day, and these situations are bound to come up somewhere, sometime. The court's answer to Hiibel will almost certainly create more questions than answers. Unfortunately, I'm more worried about those questions' answers than this one.
2. Like a Rock: New York's Rockefeller Drug Laws Survive Another Legislative Session Despite protestations from all of New York's key political actors that they are determined to reform the state's draconian Rockefeller drug laws, another legislative session ended this week with the laws unchanged. Last minute negotiations over "reforms" that were only marginally acceptable to real reformers faltered after a last-minute intervention by Republican Gov. George Pataki. Legislators will have to return to Albany for a special summer session to deal with the state budget and other issues, so there is a slim chance lawmakers could cut a deal then, but it appears unlikely. And given the deal state Assembly leader Rep. Sheldon Silver (D), state Senate leader Joseph Bruno (R) and Pataki were pursuing, reformers are not spilling too many tears over its collapse. Under the Rockefeller drug laws, in place since the early 1970s, persons caught in possession of as little as four ounces or selling as little as two ounces of a controlled substance get mandatory minimum 15-to-life sentences, while other drug offenders earn similarly harsh treatment. As a result, the state's prison population has swollen, primarily with black or brown offenders. Drug prisoners now make up 38% of the prison system -- nearly twice the national average -- and a staggering 93% of them are Latinos and African-Americans. Many are housed in prisons in conservative, lily-white upstate counties where the Rockefeller drug laws serve as an effective jobs program for prison guards. After years of mounting pressure to amend or undo the laws, Bruno and Silver appeared poised as recently as three weeks ago to approve reforms that would have reduced sentences for "A" felons, the ones doing 15-to-life (https://stopthedrugwar.org/chronicle-old/340/sortof.shtml). But that measure would not have helped the much more numerous "B" felons and other drug offenders, nor did it deal with other key issues for drug reformers, including the restoration of sentencing discretion to judges and making any reforms retroactive. Still, the deal was too much for Pataki, who, backed by the state's powerful prosecutors, intervened at the last moment over the weekend with deal-breaking demands to add sentencing enhancements to allow prosecutors to seek longer sentences in some cases. "I had a meeting with Bruno last week, and he assured me we would have an agreement by Tuesday," said Michael Blain, Policy Director for Drug Policy Alliance (http://www.drugpolicy.org) and DPA's man in Real Reform 2004 (http://www.realreform2004.org), an umbrella group formed this year to carry on the years-long struggle to kill the Rockefeller laws. "But then Pataki weighed in and broke the deal by attempting to add sentencing enhancements that he knew were unacceptable to both the Assembly and the Real Reform coalition. Where's my deal? Was Bruno stringing us along?" But Blain conceded that even had the deal succeeded, it would not have been the reform he was looking for. That was a view universally shared by reform activists. "Even if anything had passed we wouldn't have considered it reform," said Robert Gangi, head of the Correctional Association of New York (http://www.corrassoc.org), a member of the Real Reform coalition. "It was limited and cosmetic. It would have reduced prison sentences for some categories of drug offenders, but the effect would have been limited. We were not disappointed when we heard there would be no deal, because what they were proposing was no real movement on the issue. It was not real reform, and if politicians attempt to present it to the public as reform, they are misrepresenting what they are doing," he told DRCNet.
As reformers lick their wounds and plot their next steps, some divisions have emerged. "We have used the wrong approach," said Blain. "We need to tell legislators they need to reform those laws not because the laws are wrong -- they don't seem to care -- but because there will be consequences for them if they don't. They cannot continue to seek Latino and African-American votes while ignoring drug law reforms that clearly affect the African-American and Latino communities. As citizens and advocates, we have to hold them accountable." DPA and the Democratic-leaning organization MoveOn.org attempted to do just that this week. In a message sent out to more than 130,000 MoveOn subscribers Tuesday, the groups placed the blame squarely on Gov. Pataki. "Pataki is trying to water down the reform proposal so much as to make it almost meaningless," said the missive. "Pataki's on the verge of killing our one chance for real reform this year... Governor Pataki needs to keep his promise and reform the Rockefeller drug laws. Please call Gov. Pataki now... Let him know you understand that he is the obstacle to real reform of the Rockefeller drug laws, and ask him to support real reform, not kill it." Credico differed tactically from Blain on the question of momentum and incrementalism. While Blain argued that the movement could build on small victories, Credico scoffed. "If the agreement they were talking about passed, it would not have been sufficient, and it might have killed any momentum for real reform. Remember, we don't want reforms on the margins, we want to repeal these laws." Credico's view is colored by the idea that current New York drug laws serve a latent social purpose far beyond keeping our kids safe from drugs. "These Rockefeller laws are about race and class and social control," he said. "Right now, the drug laws are the vehicle to impose that control. If the Rockefeller laws suddenly vanished, they would find another way," he argued. "Race is the key issue here, and racism is just as deeply embedded in New York as it is in Alabama or Mississippi," he said. "And if you want to go a little further, the issue is capitalism. Right now, we are in what looks like a near fascist moment in this country. We need another system because this one is fundamentally broken. We need a revolution," said Credico, sounding like a fire-breathing SDSer from the days of yore. "The legal system and the courts are designed to put black and brown people in prison, and the appeals courts are to keep them there." While Credico sounds ready to take to the streets, Blain is ready to return to the back rooms of Albany. "The legislature has to come back this summer to pass the budget, and there are other outstanding issues it has to deal with," he told DRCNet. "Something could still happen on Rockefeller reform, but if it does it is likely to be only tinkering around the edges. Even if we do something this summer, real reform means real sentencing reductions, real sentencing discretion for judges, real treatment opportunities, and retroactivity. This is a long-term campaign and it could take years to dismantle these laws. That's not a defeatist statement," Blain emphasized, "that's a determined one." In his conversation with DRCNet, Credico vowed repeatedly that he was done, burned out, finished working the issue. But at the same time, he revealed why, despite all his frustrated talk about dropping out, he remains active. "I try to step back, but then I get another phone call. Someone like Darius King. He's in the third year of an 11 ½-to-23 year stretch. He was sentenced as a prior felon for an offense 9 ½ years ago. In six months, that offense wouldn't have counted. He supposedly sold a nickel bag to a guy, even though the guy he supposedly sold it to wasn't found with any drugs. The judge told him to cop a plea and he could have 4-to-8 years. But Darius said he was innocent. He was found guilty, the judge said he should have taken the deal, and gave him twice as much time. His daughter is 18 and paralyzed from the neck down. His 73-year-old mother, Flora, has to take care of her. There are too many stories like that," Credico sighed. "That's why I can't quit." If Credico sounds like a gloomy fellow, well, he's not. In fact, he's a comedian, and he invites one and all to Rocky Sullivan's club at 29th and Lexington in Manhattan for his Tuesday night comedy shows.
3. When Remaining Silent Is a Crime: US Supreme Court Rules Cops Can Arrest Those Who Refuse to Identify Themselves US citizens have no constitutional right to refuse to identify themselves when requested by police who suspect a crime has been committed, a sharply divided US Supreme Court ruled Monday. The court upheld a Nevada law making it a crime for someone suspected of a criminal offense to refuse to name himself to police officers. Similar laws obtain in 20 other states. (See the end of this article for a list of those states). The ruling came in the case of Larry Hiibel, a Nevada rancher. A passerby reported to police what looked like a man beating a woman in a pickup truck parked on the side of the road. When police arrived, Hiibel, who was standing outside the truck with his daughter inside, said he had done nothing wrong and refused to identify himself. After asking for Hiibel's name 11 times, the police officer arrested him under a Nevada law that permits police to detain criminal suspects for up to 60 minutes to compel them to identify themselves. Hiibel was convicted of violating the mandatory ID law, and that conviction was upheld by a state appeals court, then by Nevada's Supreme Court, and now by the US Supreme Court. The decision marks the first time the Supreme Court has held that a citizen may be arrested for failing to provide information to police during an encounter in which he may become the target of a criminal investigation. The First Amendment provides a right to privacy and the Fifth Amendment provides citizens with the right to remain silent. But the Supreme Court majority brushed aside First and Fifth Amendment concerns, arguing that providing one's name to police is an "insignificant" act. "One's identity is, by definition, unique; yet it is, in another sense, a universal characteristic," wrote Justice Anthony Kennedy for the majority. "Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." Joining Kennedy in that 5-4 decision were Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. But in a biting dissent, Justice John Paul Stevens noted that the majority's logic was inconsistent. Since under the Nevada law in question, police can only demand the name of someone whom they find suspicious, that person is by definition a criminal suspect who is protected by the Fifth Amendment injunction that he may not be compelled to incriminate himself. "The court reasons that we should not assume the disclosure of petitioner's name would be used to incriminate him," Justice Stevens writes. "But why else would an officer ask for it?" Neither is providing one's name to police an "insignificant" act, Stevens wrote. "A name can provide the key to a broad array of information about a person, particularly in the hands of a police officer with access to a range of law enforcement databases." And that has civil libertarians upset. "It's a green light to explore the bounds of how much personal information can be demanded on pain of arrest," said Timothy Lynch of the libertarian Cato Institute (http://www.cato.org). "It also gives a green light to Congress to move with a national law," he told the Christian Science Monitor.
People need to read past the headlines, Silverman told DRCNet. "The headlines say things like 'Court Rules Police Can Demand ID,' but that isn't entirely accurate. They can demand that you identify yourself only if they have reasonable suspicion a crime has been committed, and these sorts of laws are on the books in only 21 states. You might want to figure out if you are in one of those states," he suggested. Flex Your Rights has produced a video, "BUSTED: A Citizens' Guide to Surviving Police Encounters," and Silverman was quick to point out that the information in "Busted" in still valid. "This ruling has absolutely no impact on the information we provided in 'Busted,'" he said. "Former ACLU head Ira Glasser narrated the video, and he vetted the language very carefully. He said you're not necessarily required to show ID, but that laws vary from state to state. That still holds true." States with laws requiring citizens to provide their names to police officers when requested include: Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Rhode Island, Utah, Vermont and Wisconsin.
4. Initiatives on the Move: Ann Arbor, Berkeley, Oakland, Montana Added to Upcoming Marijuana Reform Votes This November Four initiatives -- three local, one statewide -- related to marijuana policy made the news this week as they moved toward the November ballot. In Ann Arbor, Michigan, City Clerk Ron Olson certified that petitioners for a medical marijuana initiative there had handed in more than the required 7,000 signatures to put the initiative on the November ballot. While approval of final ballot language awaits action by the city council next month, the initiative would amend the city charter to allow people using marijuana for medical purposes to avoid prosecution. The initiative was organized by the Washtenaw Coalition for Compassionate Care (also known as Medical Marijuana in Ann Arbor, Ypsilanti and Saline), which is loosely aligned with the Detroit Coalition for Compassionate Care. The Detroit Coalition's medical marijuana initiative goes to the ballot in August. Ann Arbor is a notoriously pot-friendly town. After White Panther radical John Sinclair was arrested there in 1969 for possession of three joints and sent to prison for 10 years, the city saw mass demonstrations on his behalf. Within two years, an Ann Arbor tradition was born: the annual Hash Bash. And by 1974, the city had voted to decriminalize marijuana possession, making it punishable by a $5 ticket (later raised to $25). The city resisted two efforts to undo decrim in the 1980s. And now it is moving on the medical marijuana frontier. In Berkeley, California, the city clerk confirmed Wednesday that an initiative to give medical marijuana patients access to larger supplies of cannabis has qualified for the November ballot. Organizers of the Patients Access to Medical Cannabis Act collected at least the 2,077 signatures needed to qualify for the November 2 ballot, City Clerk Sherry Kelly reported. The Berkeley City Council in April turned back a proposal by Councilmember Kriss Worthington to increase the number of plants allowed from 10 to 72. The council cited concerns about crime and questions about how much marijuana one plant produces. Sponsored by the Alliance of Berkeley Patients, identified by the Oakland Tribune as "a group of cannabis club operators," the initiative would:
"This law will keep cannabis off the streets, away from children, and out of the hands of dangerous drug dealers, by making it available in licensed businesses, not on neighborhood street corners," said Dale Gieringer, a member of OCLA and the president of the California Chapter of NORML (http://www.canorml.org). OCLA expects the signatures to be verified and the initiative approved within a few weeks, and based on reactions to the signature gathering campaign, organizers are optimistic. "We collected signatures in every commercial area from Foothill Square to Rockridge, and even went door to door in some neighborhoods," said Kim Swinford, the campaign Field Director. "We found that Oaklanders are tired of police resources being wasted on adult cannabis use, while programs are being cut in our parks and libraries." The Oakland initiative boasts strong local support, including several elected officials, as well as financial and technical assistance from the Drug Policy Alliance (http://www.drugpolicy.org) and the Marijuana Policy Project (http://www.mpp.org). OCLA reported its campaign would really kick into gear once the initiative is approved for the ballot. Last but not least, the Marijuana Policy Project announced this week that the Montana medical marijuana initiative it is sponsoring (http://www.montanacares.org) is headed for the ballot. Organizers turned in more than 32,000 petition signatures to state government officials, more than enough to qualify. The Montana initiative would, in its own words:
5. DRCNet Interview: Jude Renaud, Executive Director, Educators for Sensible Drug Policy Educators for Sensible Drug Policy (http://www.efsdp.org) is an organization devoted to harnessing the weight and credibility of the teaching professions to the task of bringing about more enlightened drug policies, especially as they relate to schools and students. Originally known as Teachers Against Prohibition (TAP), the organization changed its name last year after founder Adam Jones, a young University of Montana-Billings education major, was forced by law enforcement pressure to drop out. Jones, who was on probation on a minor drug charge, was harassed and jailed repeatedly by his probation officer, forcing him to temporarily give up activism if he wanted his freedom (https://stopthedrugwar.org/chronicle-old/290/dearave.shtml). Now, veteran Canadian educator Jude Renaud has taken up the banner. A resident of British Columbia's remote central coast, Renaud has long experience as a teacher, principal and educational consultant, with a particular interest in education in Canada's First Nation reserves (Indian reservations for you Yankees). Drug War Chronicle spoke
with Renaud Tuesday.
6. Newsbrief: Is Cecil Knox the Godfather? Feds Indict Southwest Virginia Pain Specialist Cecil Knox for Third Time, Aim to Win Racketeering Conviction Roanoke, Virginia, pain management specialist Dr. Cecil Knox has been re-re-indicted by a federal grand jury in Charlottesville in a vivid example of prosecutorial manipulation of the grand jury system. Knox, who operated the Southwest Virginia Physical Medicine and Rehabilitation clinic, was originally charged and tried on a 69-count indictment alleging he and his office staff caused the death of patients by improperly prescribing opioid pain relievers and that they defrauded Medicaid by writing the improper prescriptions. But a federal jury last fall found Knox innocent on 30 counts and could not reach a verdict on the remaining counts, prompting the trial judge to declare a mistrial. Having been defeated initially in their effort to send Dr. Knox away for decades, the federal prosecutors went back to the federal grand jury and sought a new indictment in January. Even though the judge in the initial trial had not yet decided whether to dismiss the remaining counts, the prosecutors couldn't wait. As is always the case with prosecutors and grand juries, the prosecutors got what they wanted. This time Knox was to be charged with 95 counts, including 14 counts of illegally prescribing medication that caused death or bodily harm, and running a continuing criminal enterprise, or racketeering. The federal crime of racketeering was originally designed to target organized crime, but has since been used by innovative prosecutors to charge people who don't have anything to do with what is commonly considered organized crime. Like a doctor's office. Last week, the feds were back before the grand jury to massage a slightly different indictment from it, one that makes it easier for them to prove their racketeering case. Under federal law, a jury must convict a defendant of at least two of the acts listed in the racketeering charge. To un-level the playing field, prosecutors got the grand jury to indict as three crimes what it had indicted as one crime in January. In January, the grand jury charged that Knox improperly prescribed the stimulant Fastin to a patient as one of the seven acts listed in the racketeering indictment. Now, again at the prompting of federal prosecutors, the grand jury as split the Fastin-prescribing incident into three separate acts, making it that much easier for the feds to achieve the magic number of two acts needed to get the racketeering conviction. US Assistant Attorneys Tom Bondurant and Patrick Hogeboom were not returning media calls with questions about the re-re-indictment. Knox and his office manager, Beverly Gale Boone, are set for re-trial on November 1. See our earlier coverage of the Knox case at: https://stopthedrugwar.org/chronicle-old/307/knox.shtml 7. Newsbrief: Florida Pain Doctor Found Guilty of Illegal Prescribing Panama City, Florida, physician Dr. Freddie Williams has been convicted on all counts of a 94-count indictment charging him with improperly prescribing opioid pain relievers. A federal jury reached the verdict after three hours of deliberation on June 16. The verdict in the Williams case marks the second successful prosecution of a Florida panhandle pain physician. In 2002, Dr. James Graves was convicted of the Oxycontin-related deaths of patients. He is currently serving a 63-year sentence while appealing the verdict. Prosecutors in South Florida were forced to drop similar charges against another physician, Dr. Dennis Deonarine, earlier this year. The prosecutions are part of a nationwide campaign against prescription drug abuse led by the Bush administration and eagerly embraced by state and federal prosecutors across the country. According to the American Academy of Physicians and Surgeons (http://www.aapsonline.org), dozens of doctors from coast to coast have been prosecuted on similar charges. More have faced scrutiny and discipline from state medical boards. Florida prosecutors portrayed Dr. Williams as a mercenary who was not interested in treating patients. Williams was "a drug dealer with a medical license," said Assistant US Attorney Stephen Kunz during opening arguments. "This is about a doctor peddling controlled substances, highly addictive opiates, for cash money." According to prosecutors, Williams' office files showed little or no justification for the prescribing. Williams took the stand in his defense and conceded prescribing Oxycontin to his two daughters without having complete medical files on them and even though one of them had a history of using crack cocaine. But he denied the broader allegations. According to Williams' defense lawyer, Armando Garcia, Williams kept poor records and sometimes lost case files, but that make him unprofessional or irresponsible. Williams could be "sloppy, lazy, and negligent," Garcia told jurors, but that did not make him a criminal. Williams had been deceived by some patients who were addicts and lied to obtain drugs, said Garcia. "Maybe he's just a little too naive," Garcia said. "Maybe he believed people he shouldn't have believed." Now he faces life in prison. Visit https://stopthedrugwar.org/chronicle-old/341/freddiewilliams.shtml for earlier coverage of the Williams case.
8. Newsbrief: California Pharmacist to Go on Trial for Filling Oxycontin Prescriptions The Bush administration's war against prescription drug abuse and the diversion of such drugs to the black market has expanded to include pharmacists. Ventura, California, pharmacist Richard Ozar is slated to go on trial soon in federal court over charges he filled prescriptions for the opioid pain reliever Oxycontin that were not destined for appropriate medical care. In November, a federal grand jury indicted Ozar on 33 counts of conspiring with local pain physician Dr. Michael Huff to unlawfully distribute Oxycontin. According to the patients' and physicians' advocacy group the Pain Relief Network (http://www.PainReliefNetwork.org), about a hundred physicians have been charged or prosecuted with drug distribution offenses because of their opioid prescribing practices. While prescribing high doses of opioid pain relievers may be in line with accepted medical practice for dealing with pain, federal and state prosecutors are quick to view such doctors as "pill mills" or "Dr. Feelgoods." But up until now, federal prosecutors have not extended their attention to pharmacists. (Redding, California, pharmacy owners Steven and Madeline Miller were indicted along with Dr. Frank Fisher in a failed prosecution there, but those were state charges.) And Ozar is vowing to fight. All Ozar did was fill legal prescriptions, said his attorney, Victor Sherman in remarks made to the California legal newspaper the Daily Journal. "This is a man who's never had a traffic ticket," Sherman said. "He thinks he's doing the community a service, then he turns around, and they indict him. It's devastating. It's an example of Big Brother coming in after the fact, seeing the new hot drug and trying to teach the medical profession a lesson." But federal prosecutors are alleging that Ozar "must have known" some of the pills he dispensed were destined for the streets. According to the indictment issued in November, among the reasons why Ozar should have known the pills were illegally prescribed are that some patients appeared healthy, some patients were prescribed very large quantities, and some patients paid in cash. Pharmacists are not free to just fill any prescription sent them, said US Assistant Attorney Steven Young, who will prosecute the case. "There is a corresponding duty to evaluate the prescription," Young said. "Under the circumstances and facts of this case, a grand jury concluded that he knew or should have known that those prescriptions were not valid." But, retorted defense attorney Sherman, neither the DEA nor the state Medical Board have placed upper limits on the amount of painkillers a doctor may prescribe, so long as there is a legitimate need for pain treatment. And even if Dr. Huff exceeded the bounds of medical standards in his prescribing, the pharmacist who fills what appear to be valid prescriptions should not be targeted, Sherman said. "We're not saying Ozar didn't make any independent judgments, because he did," Sherman explained. "These kinds of medications are legitimate ways to fight pain, and he believes that pain medications can be given in these quantities. Maybe other pharmacists would have made different judgments. But that doesn't make our guy a criminal. Certainly, there's no criminal intent." As for prosecutors' suggestions that the level of prescribing and dispensing pain relievers proves the pair were up to no good, Sherman had a tart response. "So the government's medical opinion will be that he shouldn't have written the prescriptions. But who are they? Are they the doctors now?" Gee, maybe next time you have severe chronic pain you should call up your local federal prosecutor and ask him to write the 'scrip.
9. Newsbrief: Two Rulings Could Affect Federal Sentencing A pair of rulings this week, one from a US District Court judge in Massachusetts and one from the Supreme Court, appear to call into question the federal sentencing guidelines used to send tens of thousands of drug offenders to prison for lengthy sentences. DRCNet has not yet been able to obtain credible detailed analyses of the potential impact of these decisions on drug cases. We will do so and report on them in more detail next week. In Boston on Monday, Senior US District Judge William Young issued a memorandum on sentencing in which he called federal sentencing guidelines "unconstitutional." The memo discussed five recent drug cases before his court. In those cases, Young ruled, the sentences handed down were too harsh and violated the defendants' constitutional right to due process. Young asked the 1st US Circuit Court of Appeals to throw out the sentences and refer the cases back for new sentencing hearings. Established in the "tough on crime" 1980s, the guidelines were an attempt to reduce disparities in sentencing by setting up a grid where defendants would be placed based on factors such as criminal history, current offense, level of cooperation with authorities and acceptance of personal responsibility. But in combination with harsh drug laws, the sentencing guidelines have resulted in ever-lengthier prison stays for tens of thousands of small-time drug offenders. And in a Thursday ruling, a divided US Supreme Court ruled that judges alone cannot impose prison terms longer than those called for by sentencing guidelines. In Blakely v. Washington, a judge had sentenced Ralph Howard Blakely to seven years in prison for kidnapping his estranged wife, although the sentencing guidelines called for a maximum of four years. The sentencing judge cited aggravating factors in the case. The decision is the latest judicial fallout from the court's 2000 Apprendi decision, where it held that only juries, not judges, can decide facts of a case that may result in a longer prison term. The implications for federal drug cases, where sentences based on drug weight are set by a judge after conviction, are potentially staggering. Writing for the majority in an atypically split court, Justice Antonin Scalia noted that the right to a jury trial "is no mere procedural formality, but a fundamental reservation of power in our constitutional structure." On the basis of a judge's unilateral decision, wrote Scalia, Blakely "was sentenced to prison for more than three years beyond what the law allowed for the crime to which he confessed. The framers would not have thought it too much to demand that, before depriving a man of his liberty, the state should suffer the modest inconvenience of submitting its accusation" to a jury, Scalia wrote. Look for more on both these rulings next week. Read up on Apprendi in DRCNet's previous coverage: https://stopthedrugwar.org/chronicle-old/147/fedstremble.shtml 10. Newsbrief: American Bar Association Report Calls for "Smart on Crime" Approach, End to Mandatory Minimum Sentences In a report issued Wednesday, the American Bar Association (ABA) has called for abolishing mandatory minimum sentences, as well as a host of other measures that would reverse years of "tough on crime" policies. The report by the ABA's Justice Kennedy Commission urges a fundamental change of course toward less reliance on incarceration and greater attention to more effective alternatives. "For more than 20 years, we have gotten tougher on crime," said ABA President Dennis W. Archer. "Now we need to get smarter. We can no longer sit by as more and more people -- particularly in minority communities -- are sent away for longer and longer periods of time while we make it more and more difficult for them to return to society after they serve their time. The system is broken. We need to fix it." The study of criminal justice policy was the ABA's response to a speech given by US Supreme Court Justice Anthony Kennedy at the ABA's 2003 annual meeting in San Francisco. In that speech, Kennedy called for the legal profession to address the "inadequacies -- and the injustices -- in our prison and correctional systems." The Justice Kennedy Commission report does not yet represent the position of the ABA, the nation's largest lawyers' group and the world's largest voluntary professional association, with some 400,000 members. But it will be considered by the ABA House of Delegates for adoption as policy at its Annual Meeting in Atlanta on August 9 and 10. The report's recommendations cover four primary sets of issues: sentencing and incarceration issues, racial and ethnic disparities in criminal justice systems, prison conditions and prisoner reentry issues, and pardons and clemency processes. Among its recommendations:
Saltzburg highlighted the injustice of harsh mandatory minimum sentences for drug offenders. "Mandatory minimum sentences tend to be tough on the wrong people," he said. The commission noted that the average federal drug trafficking sentence was 72.7 months in 2001. By comparison, the average federal manslaughter sentence was 34.3 months, the average assault sentence was 37.7 months, and the average sexual abuse sentence was 65.2 months. Read the ABA's Justice Kennedy Commission report and associated documents at http://www.manningmedia.net/Clients/ABA/ABA288/ online.
11. Newsbrief: Utah Supreme Court Upholds Religious Peyote Use by Non-Indians In a ruling Tuesday, the Utah Supreme Court unanimously held that members of the Native American Church can legally use peyote as part of their religion regardless of their race. Federal legislation dating from 1970 exempts Native American religious use of the hallucinogenic cactus from the Controlled Substances Act, which otherwise prohibits it. A Utah state law prohibiting peyote use incorporates the federal exemption. In its ruling Tuesday, the state's highest court held that the state law did not limit the religious exemption to members of federally registered tribes. The ruling came in the case of James "Flaming Eagle" Mooney, founder of the Oklevueha Earthwalks Native American Church, and his wife, Linda Mooney. The pair faced life in prison after being charged with more than a dozen felony drug distribution counts when Utah police seized more than 12,000 peyote buttons in an October 2000 raid. The criminal case never went to trial because the Mooneys immediately moved to have it thrown out, arguing that their peyote distribution and use occurred within the context of protected Native American Church ritual. The district court judge rejected that motion, the Mooneys appealed, and now the state Supreme Court has ruled. Mooney claims to be one-quarter Seminole, but that claim has never been documented. He is not a member of a federally registered tribe, but he is a member of the Native American Church. During oral arguments in the case last November, church attorney Kathryn Collard told the court peyote use was central to Indian spirituality. "The worship of peyote as a deity and sacrament is fundamental to the Native American religion," Collard said. Assistant Utah Attorney General Kris Leonard countered with the "Pandora's box" argument, raising the specter of an epidemic of peyote abuse if the exemption were applied to non-Indians. "I have a job to do, and from the state's point of view, you can't open that box even a little," she said. But the Utah Supreme Court found that state law was clear. "Because the text of the exemption is devoid of any reference to tribal status, we find no support for an interpretation limiting the exemption to tribal members," wrote Justice Jill N. Parrish for the court. "Therefore, so long as their church is part of 'the Native American Church,' the Mooneys may not be prosecuted for using peyote in bona fide religious ceremonies." "In every era people have had to fight for the right to practice their religious beliefs freely, particularly if their beliefs were not that of the predominant culture," said Collard after the decision was rendered. "The great thing is that we can do that. We have a Constitution that protects our rights to practice our religion freely." But she warned the ruling was not a green light for every thrill-seeking white peyote eater to claim a religious exemption. "It isn't like if you and I wanted to go do some peyote we could form a church and go do some," she said. "I don't think just calling yourself a Native American Church would do it. There is a body of teaching and religious beliefs people recognize as being central to the Native American Church." The Utah Supreme Court decision is available at http://www.utcourts.gov/opinions/supopin/mooney062204.htm online.
12. Newsbrief: Marijuana Candy Bars Appear in Bay Area Eating these munchies could give you the munchies. A DEA intelligence report in the agency's Microgram Bulletin is alerting the feds to be on the lookout for candy bars containing marijuana. Packaged to resemble Snickers and Butterfingers candy bars, "Stoners" and "Buddafingers" were found to contain 21.6 and 29.8 milligrams respectively of THC, enough to have a significant impact.
The "Buddafingers" wrapper tantalizingly describes the contents: "TaiNTed/Buddafinga/diggety, dankity, peanut-buttery!" According to the sole consumer report found via a Google search, the "Stoners" bar was effective, but left something to be desired in the taste department. "This one was called "STONERS" (SNICKERS). It had 'Ganja Caramel,"' reported "420Rican," an anonymous poster on a Howard Stern fan site who reported buying one for $9 in a San Francisco cannabis cafe. "It also tasted like shit, except for the chocolate. It had me asleep in about 30 min." DEA got wind of the cannabis candy after a defense attorney for a merchant marine who had flunked a drug test submitted the bars to a Coast Guard lab for testing. But with the packages bearing a marijuana leaf and the warning, "For Medicinal Use Only," the Microgram Bulletin could not help but wonder "why anyone would attempt to present them as an explanation for 'unknowingly' ingesting THC." According to DEA, a "Stoners" bar also showed up earlier this year in western Oklahoma, seized by US Postal Inspectors keeping an eye on a meth trafficker. The package it came in was postmarked Southern California. The Microgram Bulletin also
has lots of other cool stuff. Check out the April issue (the latest
posted) at:
For the report on the Oklahoma
candy bar, check out the February issue at:
13. Newsbrief: This Week's Corrupt Cops Story This week's winner is not a person but a place: the Memphis Police Department's property and evidence room. Over a period of years, a malevolent spirit emanating from that spot has somehow forced employee after employee to corrupt himself by selling out the back door evidence that came in the front door. According to a state audit released Tuesday, more than $2 million worth of cocaine, 560 pounds of marijuana, 66 guns, and $147,000 in cash have vanished from the evidence room since 1999. That was the year another scathing state audit reported similar problems and warned of worse to come. Numerous department employees, drug dealers, and others face federal charges. Memphis police officials hired Jay Liner to clean up the operation after the 1999 report. He is now charged with stealing guns, jewelry, golf clubs and bottles of champagne from the room. Former property room supervisor Kenneth Dansberry has already pleaded guilty to drug conspiracy charges. He told federal agents he once sold 10 kilograms of cocaine off the loading dock, he had forgotten how much coke he sold overall, and that he had so much cash piled up at home in was getting moldy. The candy store would have been open still but for the arrest of a drug courier in April 2003. He was getting his dope from the evidence room. The man, who has also pleaded guilty to drug charges, said he got the goodies from former property room employee Patrick Maxwell, who awaits trial. Two more property room employees, Alnita Campbell and Jacqueline Layrock, are charged with taking $100,000 from Dansberry to keep quiet. They are also charged with the theft of another $30,000, as well as destroying evidence envelopes to hide the thefts. The state audit found a property room almost devoid of controls, without even an employee policy manual, where employees had the ability to alter records. And they were sloppy, the audit found, noting that loose marijuana was laying around on shelves. Memphis police shut down the room in the basement of the Shelby County Jail once the audit began in September 2003 and have instituted rigorous security procedures to ensure it doesn't happen again, said Memphis Police Deputy Director Ray Schwill. "I was shocked, as I believe everyone was," at the scope of the thefts, he told the Memphis Commercial Appeal. Michael Heidingsfield, head of the Memphis Shelby Crime Commission, who called the report "damning," may have been shocked, but only at the extent of the problem, not its existence. "These issues are five years old," he said, "and they involve fundamental police policies."
14. New Jersey Needle Exchange Update This morning, prior to press time but too late to write a full-fledged article or newsbrief, we received updated information on important developments in the needle exchange issue in New Jersey. We will report on this next week, but in the meantime wanted to get the news out: First, Camden's City Council has adopted an ordinance proposed by councilman Ali Sloan-El to create a city-run needle exchange program, the second such ordinance in the state after Atlantic City's passed in May. Second, the Atlantic County prosecutor has filed a complaint in court seeking to block Atlantic City from implementing its ordinance. Visit http://www.drugpolicy.org/statebystate/newjersey/ for further information, and read Drug War Chronicle's previous in-depth coverage online at: https://stopthedrugwar.org/chronicle-old/342/ordinance.shtml June 26, 1936: The Convention for the Suppression of the Illicit Traffic in Dangerous Drugs is signed in Geneva. June 28, 1776: The first draft of the Declaration of Independence is written -- on Dutch hemp paper. A second draft, the version released on July 4, is also written on hemp paper. The final draft is copied from the second draft onto animal parchment. June 29, 1938: The Christian Century newspaper claims, "in some districts inhabited by Latino Americans, Filipinos, Spaniards, and Negroes, half the crimes are attributed to the marijuana craze." June 30, 1906: Congress enacts the Pure Food and Drug Act of 1906, creating the FDA and initiating the prescription system and labeling requirements. July, 1998: US and Mexican Attorneys General sign the Brownville Agreement, pledging to inform each other about sensitive cross-border law enforcement operations following the US Operation Casablanca and resulting Mexican anger. July 1, 1930: The Porter Act establishes the Federal Bureau of Narcotics (FBN), an agency independent of the Department of the Treasury's Prohibition Unit and consequently unaffected by the passage of the Twenty-First Amendment. Harry J. Anslinger is named acting commissioner. July 1, 1973: The US Drug Enforcement Administration (DEA) is established by President Nixon, designed to be a "superagency" capable of handling all aspects of the drug problem and consolidating agents from the BNDD, Customs, CIA, and ODALE. July 1, 1998: IRONIC QUOTE OF NOTE: DEA Chief Thomas Constantine says, "[In] my era everybody smoked and everybody drank and there was no drug use."
16. Students for Sensible Drug Policy Chapter Grants Students for Sensible Drug Policy is now offering grants of up to $1,000 to SSDP chapters for activist work that is above and beyond a chapter's normal range of projects. Proposals should be sent by July 1, to Chris Evans, SSDP Board, (301) 512-9126, [email protected]. Decisions will be made by August 15 and funded by September 15 (at the latest). Chapters interested in applying are also encouraged to first submit a brief Letter of Inquiry (LOI). This should be a general description of your idea for the grant proposal (no longer than a page, even a paragraph will suffice), and represents your chance to get feedback from SSDP's grants committee prior to submitting your final proposal. LOIs should be sent by e-mail to [email protected]. While SSDP prefers for your proposal to be sent electronically, if necessary that may submitted by mail to: SSDP National Office, Grants Committee, 1623 Connecticut Ave., NW, 3rd Floor, Washington, DC 20009. Also, though attendance at the SSDP national conference is not a specific requirement for receiving a chapter grant, chapters who do participate in the conference will be looked on more favorably. Visit http://www.ssdp.org/grants/ for complete info, guidelines and resources to help you with the proposal writing process.
(Please submit listings of events concerning drug policy and related topics to [email protected].)
June 26, Copenhagen, Denmark, Assembly of members of the European NGO Council on Drugs (ENCOD), coinciding with the United Nations "Day Against Drug Abuse" spring event. Contact [email protected] before June 1 to attend, or visit http://www.encod.org for info.
July 3, 1:00-10:00pm, Biloxi, MS, "A Tribute to the Constitution," featuring Bill Shaw of LEAP, blues and alternative music, other activities. At Point Cadet Plaza, for further information contact Jim at (228) 392-3204 or [email protected].
July 9, Bangkok, Thailand, "Human Rights at the Margins: HIV/AIDS, Prisoners, Drug Users and the Law," satellite conference preceding the 15th International AIDS Conference. Sponsored by the Canadian HIV/AIDS Legal Network, the Lawyers Collective HIV/AIDS Unit (India), the International Harm Reduction Development Program, and the Thai Drug Users Network, co-hosted by UNAIDS with additional partner ICASO. Registration fee $75, can be waived for persons with HIV or from developing countries, limited to 125 participants. For further information, visit http://www.aidslaw.ca/bangkok2004/e-bangkok2004.htm or contact Natalie Morin at (514) 397-6828 or [email protected].
July 13, 7:30pm, Boulder, CO, "The New Prohibition: Voices of Dissent Challenge the Drug War," discussion with contributing authors. At the Boulder Bookstore, 1107 Pearl Street, contact (303) 447-2074 or [email protected] for directions or visit http://www.coloradofreedom.org for further information.
July 18, noon-6:00pm, New York, NY, 5th Annual Isidro Aviles Memorial Picnic, teach-in with Teresa Aviles of the November Coalition, contact isidro©november.org for further information.
July 29-31, Colville, WA, "Once in a Blue Moon," November Coalition National Workshop. For further information, visit http://www.november.org/bluemoon/ or contact (509) 684-1550 or [email protected].
August 21-22, 10:00am-8:00pm, Seattle, WA, "Seattle Hempfest." For further information, e-mail [email protected], visit http://www.hempfest.org or call (206) 781-5734.
August 30, 3:00-6:00pm, New York, NY, Hip-Hop Summit Action Network protest against the drug war and mandatory minimum sentences, requested location 7th Ave. between 24th & 34th Streets. For further information e-mail [email protected] or visit http://www.hiphopsummitactionnetwork.org online.
September 7-10, Vienna, Austria, "Ethnicity & Addiction: 16th International Congress on Addiction. For further information, visit http://www.ethnicity-addiction.com or contact [email protected] or +43(0)1-585 69 69-0.
September 18, noon-6:00pm, Boston, MA, 15th Annual Freedom Rally, visit http://www.masscann.org for further information.
September 20, Shrewsbury, MA, "Help or Hurt: Responding to the Criminalization of Mental Illness and Addiction," forum sponsored by the Criminal Justice Policy Coalition and the Drug Policy Forum of Massachusetts. At Hoagland Pincus Center, registration opens June 15, visit http://www.cjpc.org for further information.
November 11-14, New Orleans, LA, "Working Under Fire: Drug User Health and Justice 2004," 5th National Harm Reduction Conference. Sponsored by the Harm Reduction Coalition, at the New Orleans Astor Crowne Plaza, contact Paula Santiago at (212) 213-6376 x15 or visit http://www.harmreduction.org/conference/5thnatlconf.pdf for further information.
November 18-21, College Park, MD, Students for Sensible Drug Policy national conference. Details to be announced, visit http://www.ssdp.org to check for updates.
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