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Drug War Chronicle
(formerly The Week Online with DRCNet)

Issue #344, 7/2/04

"Raising Awareness of the Consequences of Drug Prohibition"

Phillip S. Smith, Editor
David Borden, Executive Director

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  1. Editorial: Under Its Own Weight
  2. Supreme Court Ruling Portends Massive Changes in Federal Sentencing -- Thousands Could Benefit from Reduced Sentences, Early Releases on Appeal
  3. Federal Judge Declares Sentencing Guidelines Unconstitutional
  4. Supreme Court to Hear Federal Government Appeal in California Medical Marijuana Case
  5. International Anti-Drugs Day Marked by Executions in China, "Revolutionary Justice" in India, Silly Stuff Elsewhere
  6. DRCNet Book Review: "Can't Find My Way Home: America in the Great Stoned Age, 1945-2000" by Martin Torgoff (Simon & Schuster, 2004, 474 Pages, Notes/Bibliography/Index, $27.95)
  7. Newsbrief: Bill Introduced in Congress Would Mandate Ten Years to Life for Some Marijuana Sales
  8. Newsbrief: New Jersey Needle Exchange Battle Continues
  9. Newsbrief: Iran Wants to Ban Water Pipes
  10. Newsbrief: European Drug Agency Punctures "Not Your Father's Marijuana" Myth
  11. Newsbrief: North Carolina Supreme Court Settles Dispute, Declares Cocaine Possession Is a Felony
  12. Media Scan: Ethan Nadelmann in National Review
  13. This Week in History
  14. The Reformer's Calendar
(last week's issue)

(Chronicle archives)

1. Editorial: Under Its Own Weight

David Borden
David Borden, Executive Director, [email protected], 7/2/04

The past ten days have seen dramatic news from our nation's courts, the kind of news that could change everything. On June 23, an atypical majority of the Supreme Court led by Justice Antonin Scalia held that juries, not judges, must decide any fact of a case if it is to be used to increase the length of a convicted defendant's sentence, not merely enough facts to determine guilt on some of them.

Though the ruling was directed at the sentencing guideline system in use in Washington State, this week the highly conservative US District Court Judge Paul Cassell of Utah -- who clerked for then-Appeals Court Judge Scalia after graduating law school, in 1984 when the federal sentencing guidelines were being written -- relied on it to find the federal guidelines unconstitutional themselves. Cassell wrote that he intends to ignore the guidelines "until the constitutionality... has been definitely resolved by the Supreme Court."

And there was more... In Maine, US District Court Judge Brock Hornby reduced a defendant's sentence from 20 years down to 6½ years, calling the Scalia ruling's applicability to the federal guidelines "inevitable." And in Pennsylvania, an Assistant US Attorney reacted to the decision by asking the courts to put a hold on sentencing so his office could seek guidance from Attorney General John Ashcroft.

Interestingly, the sentencing ferment didn't wait for the Supreme Court ruling. A few days earlier, Senior District Judge William Young of Massachusetts had also found the federal guideline system unconstitutional, condemning it as "heavily rigged against the citizen" and castigating the Department of Justice for "callous indifference to innocent human life." Young noted the bizarre fact that "federal criminal sentences today may be based on conduct of which a defendant has been formally acquitted" -- an unfortunate procedure formulated by the original sentencing commission that crafted the guidelines, a group which included now-Supreme Court Justice Stephen Breyer.

Young is no wild-eyed radical, but a well respected jurist; he gained popular fame for patriotic words spoken to would-be shoe-bomber Richard Reid on sentencing him last December, published in in news outlets around the country. Certainly Cassell and Scalia are not the traditional darlings of criminal justice reformers, our sorts of reforms at least. Two years ago Scalia drew criticism for insulting a high school student and plaintiff who had challenged a high school drug testing policy -- "the druggie school," Scalia dubbed a hypothetical institution of learning to which the parents of Tecumseh, OK, student Lindsay Earls would presumably prefer to send her. Neither Cassell's ruling nor Scalia's was made in the context of a drug case.

But if Scalia falls short on some of the issues we care about, he has held fast to one very important principle this time -- the right to a trial by jury, in the full spirit of what that should mean. And he has done so in the face of credible warnings from fellow conservative Justice Sandra Day O'Connor of the radical change, and considerable turmoil, that his finding is likely to presage.

Perhaps other justices will hold true to another principle of demonstrated importance to them, the notion that the Constitution's Interstate Commerce Clause does not authorize the federal government to do everything they might desire. Also in non-drug cases, a majority faction of the Supreme Court has rolled back federal power on this basis. Late last year the 9th Circuit applied that logic to throw out federal statute law criminalizing non-commercial, local medical use and distribution of marijuana in the historic Raich v. Ashcroft case. The Supreme Court has agreed to hear the Bush administration's appeal of that ruling. If five or more justices stay consistent to their previous views on the limits of federal power, the results will have serious political ramifications and potentially undermine drug prohibition at the federal level itself.

Only time will tell how the Supreme Court will decide on Raich v. Ashcroft, and discerning how much further a positive ruling could serve to undo drug laws would take even more time. And the ramifications of last week's ruling, while clearly major, are also uncertain in their extent. For example, the Court could decide in a future case that sentencing guidelines or mandatory minimum sentences, even harsh ones, can be constitutional if applied in a procedure that relies on juries to establish the facts as used during sentencing hearings. But that doesn't seem to be what experts are predicting from this, at least not all of them.

And even if that happens, it will also take time. In the meanwhile, judges around the country, already incensed by the undermining of their sentencing discretion and the sheer draconian length of many drug sentences, now have rulings from the highest levels of the bench to justify them not merely in departing from harsh guideline sentences, but even in ignoring them entirely. By the time a different ruling could be made to start to turn things back, literally tens if not hundreds of thousands of defendants could have challenged their sentences, and in many cases gained relief. As expensive and tumultuous as the ruling may be for the courts now, changing things back may turn out to be equally expensive and tumultuous by that time, and the actions of numerous judges responding to those petitions, and ruling in new cases, will have permanently altered the terms of the debate.

Other forces are also serving to alter the debate. Though last week's ruling saw the Court split 5-4, of the four justices taking the dissenting view, at least two of them have spoken out against mandatory minimum sentencing for reasons other than constitutionality, Chief Justice William Rehnquist and Justice Anthony Kennedy. Kennedy has become a veritable champion for ending mandatory minimums, most recently lending his name to an American Bar Association committee which last week called for that. Whether through judicial pronouncement or legislative reform, an overwhelming majority of the Court wants change.

Bad timing on the part of Rep. James Sensenbrenner, chairman of the House Judiciary Committee, who just offered a bill to seriously increase mandatory minimum sentencing 2½ weeks ago. He must feel on the backside of history this time. Given the serious constitutional questions the Supreme Court and other judges have raised since then about this kind of lawmaking, the responsible thing for him to do would be to withdraw his bill. Of course, if he were responsible about these things then he would have respected the views of judges and analysts more than he does, and never introduced it in the first place. But we'll let that go, if he'll let the bill go.

The conventional wisdom in drug policy reform has been that we won't win this in the courts, right as we may be, at least not at the federal level. The courts are to some degree political animals and are subject to the currents of popular opinion. I have largely ascribed to this in the past, even though I think the legal efforts are worthwhile and important, but now I'm rethinking that view. Though it's true that most judges, including most judges on the Supreme Court, will probably not stand up for all the necessary first principles at the level needed to undo the drug laws, maybe that much isn't necessary. Maybe it's enough for one or two key justices to stand up for one principle, and another one or two to stand up for a different one, for the whole thing to ultimately unravel. It may be that the drug war is so flawed in legal and ethical terms that it is inevitable for it to collapse under its own weight regardless.

Perhaps in the long run the Constitution will actually work -- even for drugs!

2. Supreme Court Ruling Portends Massive Changes in Federal Sentencing -- Thousands Could Benefit from Reduced Sentences, Early Releases on Appeal

In an opinion handed down June 23, the US Supreme Court has thrown the federal sentencing system into a shambles. In deciding Blakely v. Washington, the court threw out a state sentencing structure that allowed judges to increase sentences based on facts that were never proven before a jury, but the ruling also appears to draw a direct bead on similar schemes in at least nine other states and, most significantly, the federal sentencing guidelines system in place since 1987. The reverberations have already begun this week, as federal judges laid aside the guidelines to grant lower sentences. Most significantly, a federal judge in Utah Tuesday used the Blakely decision to declare the federal guidelines unconstitutional.

US Supreme Court
The ruling came in the case of Ralph Blakely, who was convicted of second-degree kidnapping, which carries a maximum sentence of 10 years but a standard guideline range of no more than 53 months. The Washington sentencing guidelines allowed the judge to impose a harsher sentence if he found "substantial and compelling reasons justifying an exceptional sentence." The judge did just that, finding at sentencing that Blakely's coduct was "deliberate cruelty" and sentencing him to 90 months. The judge's finding was not based on any facts presented in the indictment or proven before a jury. And judges can't do that, the Supreme Court said.

In so doing, the court applied a rule in had first enunciated four years ago in Apprendi v. New Jersey, when it struck down a harsher prison sentence for a defendant because a judge -- not a jury -- found that Apprendi had committed a hate crime ( Then, Justice Antonin Scalia, writing for the majority, wrote: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

In Blakely, Scalia noted that, "When a judge inflicts a punishment that the jury's verdict alone does not allow... the judge exceeds his proper authority." The Constitution gives defendants a right to trial by a jury, and "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," wrote Scalia for the 5-4 majority. In both Apprendi and Blakely, Scalia, and fellow justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg formed the majority, while Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Stephen G. Breyer and Sandra Day O'Connor dissented.

"The implications of this are absolutely enormous," said Mark Allenbaugh, a nationally known authority on federal and state sentencing law and current chair of the Federal Sentencing Guidelines Task Force for the DC chapter of the Federal Bar Association.

"This is an opportunity to redo what was started about 20 years ago but went off in the wrong direction. Sentencing reform and the guidelines never had a chance because of the mandatory minimums," he told DRCNet. "They mucked up the system and made the guidelines too complex and unwieldy. This system is a mess, and this is a good opportunity for the Congress to throw out the old system and get a new system in place, one that upholds the goal of fairness, but without the draconian sentencing laws."

"On the Richter scale, this is as high as it gets," concurred Marc Mauer, executive director of the Sentencing Project (, a Washington, DC-based organization seeking to reduce the nation's reliance on incarceration. "Coming within a few days of the American Bar Association's Kennedy Commission report (, this is a very strong statement for sentencing reform. The mix of high-level attention from both the court and the legal community makes this an exciting time like we haven't seen for a long time."

"Beyond a doubt, today's decision in Blakely spells the end of sentencing guidelines -- as we know them," said Barry Scheck, president-elect of the National Association of Criminal Defense Lawyers. "The decision does not represent a step backward from the goal of sentencing reform, but a great leap forward, because it stands for the proposition that no defendant in a US court will be punished for an unproven crime."

"On first impression, it was truly earth shattering," said Roger Goodman of the King County Bar Association in Seattle. "You never expect the Berlin Wall to fall. But as I think about it, when applied to drug sentencing in the states, it is an intermediate, remedial step, it softens the edges a little. In many states, including Washington, the legislatures understand the need for treatment and give the judge discretion on drug sentencing. But this could have a huge fiscal impact. Here in Washington, there are probably 2,500 to 3,000 cases that will need resentencing."

The impact at the federal level will be much more significant, said Goodman. "Drug sentences are very structured at the federal level now," he said. "There is a great potential for reform of drug sentences at the federal level, and that would be most welcome."

The reaction to Blakely has been swift in coming, and is only beginning. Federal prosecutors in Pennsylvania requested a hold on sentencing of convicted defendants the day after the ruling appeared.

"We just felt that the language of the opinion had potentially broad implications," said Assistant US Attorney Timothy R. Rice, in a statement announcing that his office was asking that sentencing could be postponed until prosecutors got guidance from Attorney General John Ashcroft about how to proceed.

Maine US District Court Judge Brock Hornby cut one defendant's sentence from 20 to 6 ½ years and delayed another's sentencing, citing the Supreme Court decision in Blakely. Hornby acknowledged that Blakely had not immediately overturned the federal guidelines, but said it was inevitable. "I conclude that perhaps the Supreme Court can find a way to explain away Blakely in its language and its reasoning, but as a trial judge and a sentencing judge, I cannot. I must take it as written," he said in an unusual press statement. "I will leave it to higher courts to tell me it does not mean exactly what it says."

But the biggest shock this week was the ruling by conservative Utah US District Court Judge Paul Cassell, who, based on Blakely, ruled the federal sentencing guidelines unconstitutional. (In Boston last week, US 1st District Court Judge William Young issued a similar ruling based on Apprendi, but without the benefit of Blakely, which was handed down three days later. See related story this issue.)

"I take no pleasure in striking down the guidelines today... but the court's fundamental obligation is to uphold the Constitution," Cassell wrote as he departed from the guidelines in a child pornography case sentence hearing. His ruling could have "potentially cataclysmic implications," Cassell noted, but he added that he intends to ignore the guidelines "until the constitutionality... has been definitely resolved by the Supreme Court."

In an interview with the Deseret News Tuesday, Cassell reiterated that the Supreme Court had not ruled on the federal guidelines, but argued that such a holding was implicit in the court's decision and certain to be addressed by the court soon. "Doesn't the rationale also lead to the conclusion that the federal sentencing guidelines are unconstitutional?" Cassell asked. "Isn't it time for the other shoe to drop?"

In her stinging dissent, Justice O'Connor warned direly that the ruling was a dagger aimed directly at the federal guidelines and would be "a disaster." More than 272,000 federal defendants had been sentenced since Apprendi alone, she noted, adding that "chaos" would result as those defendants pursued appeals. "What I have feared most has now come to pass," O'Connor lamented. "Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."

"Justice O'Connor indicated that she believes that everybody sentenced at the federal level since Apprendi in 2000 will be entitled to appeal for resentencing," said sentencing expert Allenbaugh. "I think she's right. I am anticipating a flood of habeas motions in district courts all over the place. I think there will be more trials and fewer plea bargains; currently in the federal system, we're at about 96% plea bargains, and that could drop to 70%. And you may end up seeing fewer federal prosecutions. The feds will be more selective, knowing that they have less leverage at the bargaining stage. If you don't see plea bargain rates go down, you will see prosecution rates go down. Given our overtaxed system, there is no way it can cope unless something gives."

But wait, there's more. Blakely should also apply to mandatory minimums, said Allenbaugh. "I don't see how it can not apply," he said. "Everybody who went to trial and was found guilty and sentenced with the jury making a finding of fact or who made a plea agreement and was sentenced to a mandatory minimum -- I think they're entitled to walk."

"It must have been chaos in the courts of the land this week," said Nora Callahan, executive director of the November Coalition (, a drug reform group focused on freeing the prisoners of the drug war. "They must be asking what do we do know? Prosecutors can't tell the judges what the sentences are going to be anymore. All of the analysis has been about the judges, but what happened in Blakely is that prosecutors lost the ability to tell judges how it will go down.

"I was against sentencing guidelines from the beginning, because they were a fraud," said Callahan. "They aren't guidelines, they are a rigid mandate. But all that changed on Friday. But what about those prisoners sentenced before Apprendi?" she asked. "If it is not going to be retroactive, what do we do? Simultaneous protests? Postcard campaigns? If there is no movement toward retroactivity by September, there will be big stuff happening on the outside, and maybe on the inside. Remember what happened when Congress refused to fix the crack penalties. The system blew up. It is time to demand amnesty. At Abu Ghraib when there was scandal, they just let half of them out. If they can do it in Iraq, why not here? Let them out, lift the bans that keep them from getting assistance, good hearted church folk could each take one. Then let's move on to selective enforcement and ending drug prohibition."

In the meantime, legislatures in at least nine states have some work to do re-jiggering their sentencing schemes. And Congress, too, would be well advised to begin preparing to rewrite the federal sentencing laws.

To read the groundbreaking Supreme Court decision in Blakely v. Washington, visit:

To read Judge Hornby's decision on cutting sentences post-Blakely, visit:

To read Judge Cassell's decision finding the federal sentencing guidelines unconstitutional, visit:

3. Federal Judge Declares Sentencing Guidelines Unconstitutional

All but lost amid the furor and speculation in the wake of the US Supreme Court's Blakely decision (see story this issue) last Thursday was a ruling three days earlier by a US Circuit Court judge that federal sentencing guidelines are unconstitutional because they unfairly limit judges' discretion. The guidelines give too much power to prosecutors, pervert the federal justice system by turning it into a plea bargain factory, and result in harsh and unfair sentences, 1st US Circuit Court Senior Judge William Young wrote in a scathing 174-page opinion in a series of drug cases.

Under the guideline system, federal judges are virtually relegated to the role of checking boxes in a sentencing grid mandated by Congress and implemented by the US Sentencing Commission. The guidelines, which were originally seen as reforms removing disparities in sentencing, mandate sentences based on factors such as seriousness of the crime, criminal background, acceptance of responsibility, and "cooperation with authorities," a polite term for snitching on others to gain a shorter sentence for oneself. As DRCNet has reported ( most recently), the federal judiciary has grown increasingly vocal in its criticism of the system.

Young's decision is not binding and is likely to be appealed, but until and if it is overturned, it can be cited by other federal judges. Coming on the heels of the American Bar Association's report calling for an end to mandatory minimum sentences (, and the US Supreme Court's Blakely decision, which threatens to unravel the federal sentencing guidelines, Judge Young's ruling is one more augur that that the end is drawing near for a system that has engorged federal prisons for nearly two decades.

"Judge Young's decision comes in the context of a week of ferment for sentencing in general," said Marc Mauer, executive director of the Sentencing Project (, a group devoted to finding alternatives to imprisonment. "The federal guidelines have been a challenge for years, and Judge Young's opinion shows this is up for grabs," Mauer told DRCNet. "He is a well-respected judge, and he is saying he believes the entire system does not make sense and is unconstitutional. People are very much paying attention to this because Judge Young is raising issues that a lot of people have been thinking about."

In his decision, Young amalgamated five drug cases, excoriating the Justice Department for demanding multi-decade sentences for small-timers, offering a sweet deal to a confessed multiple killer and gang leader who offered up the others, and sentencing a crack-addicted teenage mother to a lengthy prison term followed by deportation even though she testified against a major drug dealer. The cases involved punishing defendants who wanted trials, illegal bargaining by prosecutors, bargains with cold-blooded killers, and "such callous indifference to innocent human life that it would gag any fair-minded observer," Young wrote.

Judge Young gave eloquent expression to the sense of judicial unease over sentencing issues in a sweeping critique portraying federal practices as fundamentally corrupt. "The Justice Department is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate," wrote Young, "that the focus of the entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that it is heavily rigged against the citizen... Today the Department's efforts at law enforcement depend on plea bargaining as never before."

As Young pointed out in his opinion, 97% of federal criminal cases are resolved by plea bargains. Defendants who insist on their right to a jury trial end up with sentences six times as long as those who play the plea bargain game, Young wrote, because US Attorneys manipulate charges and ignore or emphasize facts (such as possession of a gun or a certain quantity of drugs) in order to force pleas and punish people who insist on their innocence.

Defendants are then sentenced under the guidelines, but, Young argued, with individual judges no more than "weak reeds" before the institutional weight of the Justice Department, those guidelines and their sentencing factors offer little protection to defendants or leeway for judges. With "real offense" sentencing, where judges consider facts unproven at trial during sentencing, the situation becomes absolutely bizarre, Young wrote. "The result has been the routine sentencing of offenders on the basis of crimes with which they have never been charged, the commission of which they deny, without any evidence having ever been proffered against them," read his opinion. "Even more bizarre, federal criminal sentences today may be based on conduct of which a defendant has been formally acquitted."

As a consequence of unbridled prosecutorial power, Young held, defendants were being unconstitutionally deprived of their right to due process. In reaching that conclusion he relied on the Supreme Court's 2000 decision in Apprendi v. New Jersey (, where the court held that judges may not enhance sentences beyond the statutory maximum unless those enhancing "facts" are proven by a jury. Apprendi was also the controlling case in the Supreme Court's decision in Blakely last week, a case that Young noted was pondering "a similar question."

"Judge Young's opinion is a very careful analysis of the way the federal criminal justice system has come to work," said Bjorn Lang, an assistant federal public defender in Concord, New Hampshire, which is in Young's judicial district. "This opinion reflects a lot of work and a lot of thought by a very experienced judge. I hope that somebody with power, such as Congress, reads it and gives it the serious thought it deserves," Lang told DRCNet, emphasizing that he was expressing only his personal opinion, not that of the federal public defenders' office.

Judge Young's opinion should also be required reading in law schools. It is available online at:

4. Supreme Court to Hear Federal Government Appeal in California Medical Marijuana Case

The US Supreme Court announced Monday that it will decide whether people who use medical marijuana on a doctor's recommendation are subject to punishment under the Controlled Substances Act. The court agreed to hear the Justice Department's appeal of a landmark 9th US Circuit Court of Appeals December decision that the act does not apply to patients in states that have medical marijuana laws and who are not involved in interstate commerce in the drug.

The stakes are enormous. If the high court upholds the 9th Circuit decision, medical marijuana patients across the land will win protection for their non-commercial, intrastate medical marijuana use. If the court reverses the 9th Circuit, it could mean a return to the bad old days of the Drug Enforcement Administration swooping down and arresting patients and caregivers even in states that have legalized medical marijuana.

That 9th Circuit ruling came in Raich v. Ashcroft, where two seriously ill California women, Angel Raich and Diane Monson, had sued the federal government over its harassment of medical marijuana users and providers in the state. Their lawsuit asked for a court order enjoining the Justice Department from prosecuting them for smoking, growing, or obtaining marijuana for reasons related to their medical conditions.

The case had its genesis in a raid at the Butte County home of Diane Monson, who, with a doctor's recommendation, used marijuana to alleviate severe back spasms. In that raid, a joint operation between Butte County sheriff's deputies and DEA agents, the deputies concluded that Monson legally possessed the pot under California law. But after a three-hour stand-off with the deputies, the DEA agents seized and destroyed her plants. She and her fellow plaintiff, Angel Raich, sought relief in federal court.

In the first federal appeals court ruling to find any part of the 1970 Controlled Substances Act unconstitutional, the 9th Circuit granted Raich and Monson's request. A divided three-judge panel found that using marijuana on the advice of a doctor is "different in kind from drug trafficking" and that "this limited use is clearly distinct from the broader illicit drug market." According to the opinion authored by Judge Harry Pregerson, "cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity" and is thus outside federal jurisdiction.

Government lawyers, unsurprisingly, have a different view. It his appeal to the Supreme Court, US Solicitor General Theodore Olson argued that state laws that carve exceptions for medical marijuana are overridden by federal law. The Controlled Substances Act regulates "all manufacturing, possession and distribution of any" drug on its schedules, Olson wrote. "That goal cannot be achieved if the intrastate manufacturing, possession and distribution of a drug may occur without any federal regulation."

Attorney Robert Raich is both married to plaintiff Angel Raich and part of the legal team that argued her case. He saw the Supreme Court decision to accept the case as a chance to expand patients' rights across the country. "This gives us the opportunity to provide patients with the legal safety they need on a nationwide basis to possess cannabis legally under federal law," he told DRCNet.

The case is being watched closely by marijuana reform organizations. "While a ruling overturning Raich would not invalidate the protections that patients currently enjoy under state law, it would allow John Ashcroft's Justice Department to resume the federal government's war on patients," warned Rob Kampia, executive director of the Marijuana Policy Project (, which helped fund the litigation. "A ruling in favor of the federal government would mean that the phrase 'interstate commerce,' as used in the Constitution, has become essentially meaningless," he said. "In its appeal, the Justice Department is claiming that two patients and their caregivers who are growing and using medical marijuana within California -- using California seeds, California soil, California water and California equipment -- are somehow engaged in 'interstate commerce.' The Bush administration's assault on the meaning of the 'interstate commerce' clause should be of concern to all conservatives."

But for this particular conservative administration, the need to be able to pursue the war on drugs even against sick patients trumps federalism and states' rights. An unfavorable ruling at the Supreme Court would "seriously undermine Congress's comprehensive scheme for the regulation of dangerous drugs," the administration argued in its appeal. "Marijuana is a commodity that is readily purchased and sold in a well-defined market of drug trafficking," the brief continued. And the administration seeks a ruling that will keep it that way.

5. International Anti-Drugs Day Marked by Executions in China, "Revolutionary Justice" in India, Silly Stuff Elsewhere

Seventeen years ago, the United Nations General Assembly voted to observe June 26 as the International Day Against Drug Abuse and Illicit Trafficking ( The date marks the 1987 signing of the declaration adopted at the International Conference against Drug Abuse and Illicit Trafficking, and its avowed purposed is "to strengthen action and cooperation to achieve the goal of an international society free of drug abuse."

This year, the annual event's theme was "Drugs: Treatment Works." "The campaign aims at emphasizing the importance and effectiveness of drug treatment -- to drug dependent individuals, as well as to the general public," the UN Office on Drugs and Crime noted as it announced the campaign. "UNODC also hopes to diminish the stigma attached to drug users by illustrating the possibilities for a positive future, using the stories of individuals who have successfully undergone treatment and are engaged in productive lives."

China was way off-message. Chinese state media reported over the weekend that Chinese authorities had marked the International Day by trying, sentencing, and executing dozens of people convicted of drug trafficking. Most of the executions took place in southwestern Chongqing, where the Chongqing No. 1 Intermediate People's Court convicted 16 people in a one-day, mass public trial, then immediately killed them.

Another mass punishment took place in Shanghai, where 78 people convicted of drug crimes were sentenced. Among them was Lin Shengfu, a native of southern Hainan province, who was executed after being found guilty of smuggling about four pounds of heroin from Myanmar, the official Chinese news agency Xinhua reported.

International Anti-Drugs Day activity in Islamabad, Pakistan, 2001
But Saturday's mass killings were just the grand finale of a hectic lead-up to the International Day Against Drug Abuse. In Yunnan province the day before, Tan Minglin and three others convicted of drug trafficking were executed after having all their belongings confiscated, Xinhua reported. That same week, courts in Fanyu, Huadu, Conghua, and Guangzhou sentenced and executed one drug offender each. Also last week, Chen Xue'an and three others convicted of illegally purchasing drugs were executed in Wenzhou City in eastern Zhejiang province. Another 17 suspects were declared guilty in Hangzhou City, "two of which were HIV/AIDS carriers sentenced to death the same day," Xinhua reported.

China officially admits to having about one million "registered drug addicts," but that figure could be far higher. According to the Ministry of Public Security, Chinese authorities have prosecuted more than half a million drug cases in the last five years alone. They also reported seizing more than 51 tons of heroin and 52 tons of methamphetamine.

The Chinese weren't the only ones using the International Day Against Drug Abuse to teach murderous lessons. According to a bizarre report in the Sangai Express in the Indian state of Manipur, an armed group called the Organization to Save the Revolution in Manipur (KYKL), killed Ningthoujam Raja as a drug dealer and "also punished a number of drug abusers with a bullet each on their legs."

According to the South Asia Intelligence Review, KYKL, a Manipur nationalist organization in existence for the past decade, has for the past three years undertaken a "renovation" of Manipur society by cleansing it of vices like "immoral behavior", drug use and trafficking, and corruption. In a press statement Saturday, KYKL said that those shot were punished under the campaign. The group added that they timed their operation to coincide with the International Day Against Drug Abuse and Illicit Trafficking.

The KYKL has vowed to make Manipur's Bishnupur district "drug-free" by December. In its statement, the group vowed to keep a close watch on all drug activities and warned all drug users and sellers to surrender to them soon. In a sign of the group's nationalist paranoia, it added that the Manipuri people have been on the receiving end of "the narco-chemical warfare unleashed by India." The province borders Burma, a leading East Asian methamphetamine producer.

There is no indication the UN approves of "revolutionary justice" in India, and it has not spoken to the Chinese executions. Most International Day events, in fact, are reportedly rather boring, ill-attended, or just plain silly. For instance, India's Chandighar Express reported that one International Day function there consisted of a hundred kids flying kites that carried messages warning against drug abuse.

In Malta, a series of events organized by drug experts drew little public enthusiasm. "Poor Attendance at International Day Against Drug Abuse Events," was how the Malta Independent headlined its coverage. Meanwhile, back in India, Chandigarh officials hosted a "drug de-addiction awareness program" and offered a "free treatment camp." Some 300 villagers watched the presentation, the Express reported.

In Indonesia, the UN and local anti-drug bureaucrats used the occasion to hand out awards to nine journalists for their stories on juveniles and narcotics, the Jakarta Post reported. And in several African countries, officials used the International Day to give speeches or place opinion pieces in local newspapers. The International Day was also observed in Bahrain, where the Northern Governate held a series of events, including a seminar on "Drugs: A Monster Threatening Our Society," held in conjunction with the Interior Ministry and the Islamic Enlightenment Society, the Gulf Daily News reported.

The UN's International Day Against Drug Abuse and Illicit Drug Trafficking is in most places an innocuous exercise that may even do some good -- if prevention messages are presented in a science-based, non-propagandistic way. Describing "drugs" as a "monster" is not an encouraging sign. But when the International Day becomes an excuse for mass murder and "revolutionary justice," maybe it is time for the UN to rethink this annual exercise.

DRCNet editorialized against the UN Anti-Drugs Day and US cooperation with Chinese anti-drug investigators four years ago. Visit to read it.

6. DRCNet Book Review: "Can't Find My Way Home: America in the Great Stoned Age, 1945-2000" by Martin Torgoff (Simon & Schuster, 2004, 474 Pages, Notes/Bibliography/Index, $27.95)

- Steve Beitler for DRCNet

Ronald Reagan's death and Bill Clinton's book have sparked a collective flashback to the 1980s and '90s. Drug reformers (and others) can be excused for not leaping aboard this unctuous bandwagon; they may be struggling to ride out a media bombardment that activates memories many would rather keep dormant. Sappy tributes to the Gipper exclude the Reagan whose transgressions include the vigorous launch of the modern dark age of the drug war. And when it was to spiff up the legacy, Bill Clinton, whose tenure brought a 100% increase in marijuana arrests, didn't devote a lot of space in his new book to drug policy.

Martin Torgoff's "Can't Find My Way Home: America in the Great Stoned Age, 1945-2000" is a welcome antidote to the Reagan-Clinton media circus. The book energetically sketches the canvas of drug use in America, "not as a formal history but a journey through the experience and culture of illicit drugs." Torgoff has done a lot of good research and he writes well. He spoke to an impressive roster of luminaries and ordinary people, and they help make the book a useful primer on the social history of heroin, marijuana, amphetamine and cocaine use as well as (if you're old enough) an engaging stroll down memory lane.

Torgoff and his subjects frequently recapture the feel of different moments. "There was a short period of time... when it felt inevitable that our kind of life was going to grow until the institutions fell and we would simply be taking care of each other on a block-by-block basis," recalled Lynn House, who moved from New York to San Francisco just in time for the Summer of Love in 1967. Torgoff also weaves in his personal story without intruding on (or deepening) the larger narrative.

And a large narrative it is, organized chronologically and spanning a vast and raucous scene. Torgoff begins in New York after World War II, when Herbert Huncke and Alan Ginsberg and the Beats were finding their voices. He encounters and writes about (all lists are partial) the pioneers (Timothy Leary, Ken Kesey, Ann and Sasha Shulgin), the artists (Charlie Parker, Grace Slick, Andy Warhol, Oliver Stone), the one-of-a-kinds (Wavy Gravy, Augustus Owsley Stanley III, Hunter Thompson), the scholars (Terrence McKenna) and the reformers (Keith Stroup, Rick Doblin, Marsha Rosenbaum). Torgoff also brings to life some lesser lights such as Tom Forcade, drug smuggler and founder of High Times magazine, and Lance Loud, who became an amphetamine and amyl nitrate fan after he had arrived on and departed America's radar screen in 1973 as part of the first-ever reality TV show, "An American Family."

The book has a lot of good stories. Oliver Stone tells about the time he slipped LSD into his father's Scotch. "He was scared," said Stone, "but he was having a ball and suspected I had done it. He talked about it until the day he died." But Torgoff's encounters with regular folks are often more compelling. Sylvia Nunn, aka Rambo, is an OG – Original Gangster – who has been gangbanging as a member of the Bloods "since the very start of the scene... When she became Homecoming Queen [in high school], her mother gave her flowers and her father presented her with a sawed-off pump shotgun." Dawn Reynolds attended the 1967 Monterey International Pop Festival as an 18-year-old "alabaster beauty" who was known as an "acid angel" in Los Angeles and who "looked sophisticated way beyond her years and exuded a bold open sensuality." Reynolds was in San Francisco for the Summer of Love, after which she "wandered from scene to scene, drug to drug, man to man, up and down the California coast." By the early '70s, Reynolds made the discovery that so many others would come to and that would give that decade its peculiar stamp: "The path was within, and the subject was me."

Torgoff recounts a conversation with his father "that would inspire this book." His father challenged him to "go ahead and tell me -- what did any of it really mean?" This is where Torgoff's book loses its freshness and lapses into platitudes. "... as a society we face enormously difficult and complex problems concerning the use of illicit drugs," he writes. "Only through the most rigorously honest appraisal of this subject will we ever be able to make sense of the past." True enough, but hardly new. Torgoff's book scores high for its profiles and its social history; readers looking for compelling interpretations of that history will be disappointed.

7. Newsbrief: Bill Introduced in Congress Would Mandate Ten Years to Life for Some Marijuana Sales

Rep. James Sensenbrenner (R-WI), chairman of the House Judiciary Committee, introduced a bill June 14 that would radically increase mandatory minimum prison sentences for anyone furnishing any controlled substance, including marijuana, to a minor or to anyone who has been in drug treatment before. It would also create mandatory minimum life sentences for a second offense, as well as creating mandatory minimum sentences for furnishing drugs in a designated "drug-free zone."

Under current federal law, distribution to a minor carries a one-year mandatory minimum sentence; Sensenbrenner's bill would raise that to 10 years. Similarly, drug sales within a "drug-free zone" currently nets a mandatory minimum one-year sentence; Sensenbrenner's bill would raise that to five years. It also expands the definition of "drug-free zones" from schools, college campuses, and video arcade facilities (!?) to include "public library, or public or private daycare facility," and drug treatment facilities.

The bill would also order the US Sentencing Commission to make appropriate adjustments in its sentencing guidelines. Telling the Sentencing Commission and federal judges what to do is familiar business for Rep. Sensenbrenner, who helped ensure the passage last year of the much-criticized Feeney Amendment, which restricts federal judges' ability to grant downward departures from the harsh federal sentencing guidelines.

But, hey, don't say Sensenbrenner lacks compassion. The bill also includes relief for snitches or, in Sensenbrenner's language, a provision "assuring limitation on applicability of statutory minimums to persons who have done everything they can to assist the government."

The bill, which is euphemistically titled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004" (H.R. 4547), so far has no cosponsors. To read the bill online, go to and type in "H.R. 4547" in the search box. Visit for an analysis by Families Against Mandatory Minimums.

8. Newsbrief: New Jersey Needle Exchange Battle Continues

There was action on two fronts last week in the battle to bring needle exchange programs (NEPs) to New Jersey, one of only five states that makes possession of a needle without a prescription a crime and, along with neighboring Delaware, one of only two that has failed to pass laws explicitly allowing syringe distribution under some circumstances. The Garden State boasts the nation's fifth-highest rate of HIV infection, with more than half of new infections related to injection drug use.

This spring, thanks in part to a big push from Roseanne Scotti, the Drug Policy Alliance's ( New Jersey point-person, two municipalities, Atlantic City and Camden, began moving to enact municipally-operated NEPs to counter what health officials in both cities have referred to as an AIDS crisis (

Citing Scotti's legal analysis of a 1999 revision of state law, which concluded that municipalities were exempt from the prohibitions on NEPs, the city council in Atlantic City passed a NEP ordinance on June 16. The Camden city council followed suit on June 24.

Camden Waterfront
Both councils acted despite opinions from local prosecutors and state Attorney General Peter Harvey that NEPs remain illegal in New Jersey. While Harvey's office has so far done nothing more than warn ominously that the votes are "under review," Atlantic County Prosecutor Jeffrey Blitz this week filed a lawsuit in state Superior Court to block Atlantic City's NEP.

According to Blitz's reading, New Jersey's paraphernalia law forbids the distribution of needles without a prescription, pure and simple. "The law would not permit (the prosecutor) to turn a blind eye to violations of... narcotics paraphernalia offenses which the needle exchange program would generate," Blitz said in court papers.

Atlantic City Solicitor Daniel Gallagher disagreed. "It's going to come down to how the judge interprets the statutes," Gallagher told the Press of Atlantic City. "We believe the statutes can be interpreted to allow municipalities to do this."

Scotti told the Press DPA is putting together a legal team to represent the city if it chooses to fight, and there is every indication it will. Health and Human Services Director Ron Cash, who pushed for the city to approve a NEP, was grateful for the offer of assistance. "We can use all the legal help we can get, particularly people who have dealt with this before," he said.

9. Newsbrief: Iran Wants to Ban Water Pipes

Iranian authorities have targeted hookahs, or water pipes, as part of a crackdown on immorality, Reuters reported last week. While Iranian police said the ban was part of an effort to ban smoking in public, other officials suggested it was a move by religious police to prevent any slippage in the country's strictly enforced public morality.

The water pipes, which are used to smoke fruit-flavored tobacco (sometimes sprinkled with hashish by adventurous young people) in a convivial social setting, are ubiquitous, not only in Iran, but across the Middle East. Hookah cafes (not serving hash) have even opened in US cities ranging from Pittsburgh to San Diego in recent years.

"According to Health Ministry directives, the ban on water pipes will be implemented," said Health Ministry official Hassan Azaripour. Restaurant owners and patrons faced fines if caught puffing, he added.

International Anti-Drugs Day activity in Tehran, Iran, 2001
But apparently some hookahs are more equal than others. According to Tehran prosecutor Saeed Mortazavi, his agents would not be targeting traditional eateries where hookahs are de rigeuer. Instead, he said, they are targeting mingling of the sexes in cafes and clubs and women who flout strict Islamic dress codes. "Of course we will be rigorous in dealing with the promoters of vice and fornication," he said.

According to Reuters, restaurateurs in a tourist zone north of Tehran were packing their pipes into boxes last week. But in an old-style restaurant in central Tehran, diners continued to suck on the hookahs despite the supposed ban. When asked by Reuters why authorities had banned the pipes, a waiter there tapped his finger against his temple. "They are mad," he said.

The waiter's boss, restaurant manager Iraj, agreed that the ban was misplaced. "It is not vice," he said. "People are scared of these men who quote the Koran to make law, but vice is not in external things like water pipes. Vice is in your own heart."

10. Newsbrief: European Drug Agency Punctures "Not Your Father's Marijuana" Myth

"The point is that the potency of available marijuana has not merely 'doubled,' but increased as much as 30 times."
- US Office of National Drug Control Policy director (drug czar) John Walters, San Francisco Chronicle, September 2002
John Walters made that unsupported claim in the heat of the 2002 election campaign, and even his own organization has since backed away from it. According to the ONDCP web site (, "the average potency of samples of all cannabis types increased from 3% in 1991 to 5.2% in 2001... The concentration of THC in sinsemilla was about 6% in the late 1970s and early 1980s, and averaged more than 9% in 2001." But the legacy of Walters' lies lingers:
  • "Today's pot is often up to eight times stronger than the marijuana of the seventies, according to the Drug Enforcement Administration."
    - (
  • "Today, marijuana is up to 16 times stronger than what you smoked in the 1960s."
    - Dr. Drew Edwards at PsychCentral (
  • "Today's marijuana is about 25 times stronger than what it was in the 1960s.
    - Dr. Oscar Taube at Whole Family (
  • "But there's stuff out there now that's 10, 20, even 50 times as potent we could get for research in the '70s."
    - Dr. Reese Jones, a professor of psychiatry at UC San Francisco, Los Angeles Times, April 26, 2004
Those folks need to read a report released last week by the European Monitoring Center for Drugs and Drug Addiction (EMCDDA). Cognizant of the widely echoed claims that marijuana potency has gone through the roof in the past two or three decades, the Europeans decided to take their own look.

"The available data do not show any long-term marked upward trend in the potency of herbal cannabis or cannabis resin [hashish] imported into Europe," EMCDDA concluded. "Today's report shows that effective potency of cannabis in nearly all EU countries has remained quite stable for many years, at around 6–8% THC."

The report was based on testing of marijuana, hashish, and hash oil samples seized in 14 West and East European countries in 2001 and 2002.

The Netherlands is on the high end of the spectrum when it comes to marijuana potency, the report noted. There, cannabis potency "had reached 16%, largely due to the increasing availability of intensively produced home-grown cannabis." EMCDDA attributed high Dutch potency levels to the fact that Hollanders consumed a higher percentage of high-octane home-grown sinsemilla than people in other European countries, who were more likely to use less potent varieties from North Africa.

"The message we draw from this study is that we should neither be over-alarmist nor too complacent about the potency of cannabis available today," said EMCDDA executive director Georges Estievenart. "Cannabis produced within Europe using new methods is consistently of higher potency, although this product remains relatively rare in most countries. But this could change, and we must therefore implement measures to monitor the situation carefully and extend our understanding of what impact high-potency cannabis is likely to have on the health of cannabis users."

Oh, those Europeans! Too cautious to wave away all concerns; too reasonable to fall prey to anti-drug hysterics like John Walters. It seems like a nice way to be.

To read the study, "An Overview of Cannabis Potency in Europe," and the accompanying news release online, visit:

11. Newsbrief: North Carolina Supreme Court Settles Dispute, Declares Cocaine Possession Is a Felony

Last October, DRCNet reported on a pair of rulings by the North Carolina Court of Appeals that cocaine possession was a misdemeanor under state law, not a felony ( One section of state law classified cocaine possession as a misdemeanor, punishable by up to five years in prison, while another section of state law read that a felony is any crime punishable by time in state prison.

The rulings came in the cases of Norman Wayne Jones and Corey Sneed-El, both of whom had been convicted of felony cocaine possession and both of whom were subjected to enhanced sentences as habitual offenders under the state's sentencing guidelines.

The two courts held that language of the law was plain: simple possession was a misdemeanor. "Since the General Assembly made this law, it is not within the province of this Court to employ legal gymnastics to read the clear language differently than what it states," said the unanimous opinion in the second case, written by Judge James Wynn.

On June 23, the state Supreme Court overturned the Court of Appeals decisions, holding that the state's General Assembly really meant for cocaine possession to be a felony charge and that such convictions can be considered when determining habitual felon status.

"I'm pleased that the North Carolina Supreme Court recognizes that possession of cocaine should remain a felony," said state Attorney General Roy Cooper in a prepared statement. "This ruling is critical to our fight against drugs and crime because it allows for longer sentences and gives prosecutors the opportunity to use cocaine possession charges to keep habitual felons off the street."

Sneed-El's attorney, Daniel Shatz, professed disappointment, saying the state law was clear that cocaine possession was a misdemeanor. The state's sentencing structure is a wreck, he told the Charlotte News & Observer. "It really needs some overhauling," Shatz said. "What you get is essentially a lot of people who are drug addicts or have substance abuse problems who are being warehoused in the prison system instead of getting treatment."

North Carolina drug warriors may have dodged a bullet with this ruling, but as a sentencing guidelines state, in the wake of last week's US Supreme Court Blakely ruling (see article in this issue), North Carolina is now facing a howitzer shell coming straight at it.

To read the North Carolina Supreme Court decision online (temporarily unavailable until July 2), visit:

12. Media Scan: Ethan Nadelmann in National Review

Ethan Nadelmann's "An End to Marijuana Prohibition" gets the cover of National Review's July 12th issue -- check it out on the newstands.

13. This Week in History

July 4, 2001: Britain's former ambassador to Keith Morris, comes out for legalization in The Guardian. Morris writes:

It must be time to start discussing how drugs could be controlled more effectively within a legal framework. Decriminalization, which is often mentioned, would be an unsatisfactory halfway house, because it would leave the trade in criminal hands, giving no help at all to the producer countries, and would not guarantee consumers a safe product or free them from the pressure of pushers. It has been difficult for me to advocate legalization because it means saying to those with whom I worked, and to the relatives of those who died, that this was an unnecessary war. But the imperative must be to try to stop the damage. Drug prohibition does not work.
July 1996: National Review publishes a selection from the 400 letters to the editor they received following their February 1996 cover and set of essays calling for drug legalization:

14. The Reformer's Calendar

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

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 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 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© for further information.

July 29-31, Colville, WA, "Once in a Blue Moon," November Coalition National Workshop. For further information, visit 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 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 online.

September 7-10, Vienna, Austria, "Ethnicity & Addiction: 16th International Congress on Addiction. For further information, visit or contact [email protected] or +43(0)1-585 69 69-0.

September 18, noon-6:00pm, Boston, MA, 15th Annual Freedom Rally, visit 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 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 for further information.

November 18-21, College Park, MD, Students for Sensible Drug Policy national conference. Details to be announced, visit to check for updates.

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