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Editorial: Drug Policy During the Crisis

Submitted by David Borden on (Issue #1091)

Dear Reformer:

David Borden
In this time of crisis, all of us are figuring out how to adapt our lives, take care of our needs, and do our jobs. Everything is affected, and drug policy is not an exception.

Our nation the past several decades has engaged in massive numbers of arrests for what in many cases are low-level violations. Despite some notable bipartisan movement to reform criminal justice, our prisons and jails remain packed with over two million people. With a pandemic in progress, this is a public health crisis in the making, one that will affect the incarcerated, staff of the institutions holding them, their families, ultimately to many more people outside the walls to whom the COVID-19 virus ultimately spreads.

For drug users, and for the health programs that serve them, there are special challenges too. Every person struggling with a substance use disorder, every syringe exchange program or methadone/burprenorphine clinic, every medical marijuana patient, wants to not transmit the invisible threat to themselves or others while going about their day. People in recovery or trying to get there, are stuck at home with less access to support.

Congress has yet to provide funding or specify health requirements to be followed by federal or state penal institutions. A bipartisan group of US senators have called for vulnerable prisoners to be moved to home detention. But the Department of Justice and its Bureau of Prisons have substantially undermined early release programs for elderly prisoners, and at least report had not responded to a Congressional request for information on what steps they are taking to safeguard prisoners from disease. Local advocates are worried that stay-at-home orders, justified for the emergency, could lead to increased enforcement against low-level offenses. This is a time to not arrest where possible, not to do more.

A number of jurisdictions have taken good steps. Philadelphia is ceasing certain types of arrests, instead briefly detaining people and taking information but then releasing them. Baltimore's State Attorney is dismissing charges for a range of low-level offenses, including for drugs. Los Angeles and the State of Ohio have released hundreds of people already in detention. Oregon has temporarily allowed marijuana delivery services to leave product outside. Articles following in this issue of the Chronicle discuss those cases. Much more is needed from the nation's cities, counties and states, and from the federal government.

We support the recommendations of the Justice Roundtable, a criminal justice reform coalition based here in Washington, in which we participate. Their COVID-19 section links to much more in the way of news and resources. On the health side, Vital Strategies has published a round-up of resources on COVID-19 and drug risk reduction.

We will be publishing a larger report on these topics. In the meanwhile, I hope those of you who use social media will help by posting some calls on Congress in an alert distributed by the roundtable. You can download the alert, with sample social media posts and accompanying graphics, here. In the sample posts you should fill in the link for your member of Congress you can find their social media addresses by going to and, looking up your Representative and your two Senators (US voters) and going to their web sites.

Lastly, don't have doubt that all the different parts of drug policy that we're working on, will continue to be worked on and will continue to move forward. At the right times and in ways adapted to the situation, we and our allies will be making the large and small asks of policymakers. Legislative staffers in criminal justice, health and foreign policy will continue to work on their portfolio of issues. And whether the pandemic last for a longer or shorter time, at some point the public and the media will devote space again to all the other issues that affect our society. This is what I've seen happen during past crises, and it will happen again this time, in the ways that work this time.

Thank you for reading and for being here, and more soon.


David Borden signature

David Borden, Executive Director
Washington, DC

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


YearofAction (not verified)

A lot of people will need to keep occupied and positive during this time of self-isolation. One thing we can do is spend some time considering the impacts of two definitions of marijuana: 1. The Reconstructed Definition, which is derived from, 2. The Current Malformed Definition.

The Reconstructed Definition:

Sec. 802.
(16) The term "marijuana" means all parts of the smoke produced by the combustion of the plant Cannabis sativa L., which is, as are the viable seeds of such plant, prohibited to be grown by or sold by any publicly traded corporation or subsidiary company, and such smoke is prohibited to be inhaled by any child or by any person bearing any firearm, as is their intake of any part or any product of such plant containing more than 0.3% THC by weight unless prescribed to such child by an authorized medical practitioner.

The Current Malformed Definition:

Sec. 802.
(16)(A) Subject to subparagraph (B), the term "marihuana" means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.
(B) The term "marihuana" does not include (i) hemp, as defined in section 1639o of title 7; or (ii) the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

Factors to Consider.

In each definition, marijuana is prohibited because of its Schedule 1 status.

The reconstructed definition clearly states how marijuana is actually derived from cannabis, along with specific prohibitions that limit cannabis misuse.

The current malformed definition disguises how marijuana is derived from cannabis, which allowed it to be misconstrued to severely limit cannabis use.

The reconstructed definition complies with the Necessary and Proper Clause because it is respectable, sensible, truthful, understandable, and verifiable. This could facilitate the removal from Schedule 1 of marijuana itself.

The current malformed definition violates the Necessary and Proper Clause because it is abstruse, bewildering, circumlocutory, deceptive, and equivocal. This prevents its removal from Schedule 1.

The reconstructed definition is produced by eliminating four deceptions from the current malformed definition. The original deceptions from 1937 are: Disparaging Racism, Adumbrating Riddle, Unjust Aggrandizement. The new deception from 2018 is: Redundant Exclusion.

It has never been "necessary and proper" for a federal definition to be malformed with deceptions that allow its meaning to be misconstrued. All of the deceptions must be removed, and each of them can be removed like this:

1. Remove the Disparaging Racism, by simply replacing the Mexican term "marihuana" with its equivalent English term "marijuana".

2. Remove the Adumbrating Riddle, which is cleverly dismembered to disguise the actual meaning of marijuana, by simply replacing it with a clear description of how marijuana is actually derived from cannabis. The riddle is dismembered because its parts are separated within the Controlled Substances Act like this: "...Marihuana..." is what "...other substance..." in Schedule 1 that is "...all parts of the plant Cannabis sativa L...." and simultaneously "...does not include the mature stalks..."?

Congress has characterized marijuana as a drug, which confirms that marijuana is an "other substance" because a real drug obviously does not need to be "characterized" as a drug. The real drug of concern is THC, but THC is actually missing from the current malformed definition. THC is referenced in the reconstructed definition.

3. Remove the Unjust Aggrandizement of marijuana prohibition, by simply specifying the legitimate federal prohibitions of cannabis use from the 2nd, 9th, 10th, and 14th Amendments. This will reveal the original intent regarding cannabis use by citizens.

4. After removing the original three deceptions, then remove the recently included Redundant Exclusion for hemp that is in part (B)(i) of the current malformed definition. It is redundant because the text in part (B)(ii) was claimed in 1937 to exclude cannabis used for hemp. The federal drug-law enforcement agencies disavowed that claim by misconstruing the meaning of the entire malformed definition.

When all four of the deceptions are removed, then all cannabis plants will be carefully descheduled for citizens with limited federal prohibitions of cannabis use, as the Constitution, the Bill of Rights, and the Civil War Amendments originally intended. The misleading definition of hemp as a plant will then be rendered superfluous, and it can be eliminated. Its 0.3% THC limit for cannabis plants can then be repurposed as a public-safety limit for the federally designated cannabis users.

Marijuana and hemp are inaccurately defined as separate varieties of cannabis for misbegotten federal purposes, but they are actually separate products of the same plant, the industrially versatile, medically valuable, renewable natural resource that is the plant Cannabis sativa L. Marijuana refers to cannabis smoke (which is all parts of the plant, and simultaneously does not include the mature stalks), and hemp refers to cannabis fibers (which always do contain less than 0.3% THC because they are made of cellulose).

The reconstructed definition will refresh the civil rights expressed in the legal documents of the Founding Fathers by buttressing their structural designs, to prevent misconstruction or abuse of the Constitution's powers, extend the ground of public confidence in the Government, and best ensure the beneficent ends of its institution, as well as establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, by adhering to the self-evident truths that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, and that among these are Life, Liberty and the pursuit of Happiness.

While we are under coronavirus lock-down, let's take some time to compare the definitions, then contact our current and prospective members of Congress about reconstructing the federal definition of marijuana in the necessary and proper way to make it literally uphold our Constitution. By communicating with our representatives in government, we can help to ensure that government of the people, by the people, for the people, shall not perish from the earth.

Let's stay well, and carefully deschedule cannabis.

Thu, 03/26/2020 - 7:53am Permalink

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