Drug War Chronicle #608 - November 13, 2009

Feature: The State of Play -- Federal Drug Reform Legislation in the Congress

Ten months into the Obama administration, drug policy reform in the US Congress is moving along on a number of tracks. Here's an update on some of the more significant legislation moving (or not) on the Hill. With a few exceptions, this report does not deal with funding issues that are tied up in the tangled congressional appropriations process.

Next week Drug War Chronicle will publish a parallel report on the state of play for drug policy in the nation's statehouses.

The Crack/Powder Cocaine Sentencing Disparity

After years of inertia, efforts to undo the 100:1 sentencing disparity in federal crack and powder cocaine cases have picked up traction this year. In July, Rep. Bobby Scott (D-VA) and 83 cosponsors introduced the Fairness in Cocaine Sentencing Act, which would eliminate the disparity by treating all cocaine offenses as if they were powder cocaine offenses for sentencing purposes. That bill has passed the House Judiciary Committee and is now before the Energy and Commerce Committee. On the Senate side, Sen. Richard Durbin (D-IL) introduced companion legislation, the Fair Sentencing Act of 2009, last month. It is currently before the Senate Judiciary Committee.

Federal Needle Exchange Funding Ban

The longstanding ban on the use of federal AIDS grant funds to pay for needle exchange programs may soon be history. Although the Obama administration left the ban in its budget request, Obama pledged to eliminate it during his campaign, and his administration has signaled it wouldn't mind seeing it go. The House Appropriations Committee's Subcommittee on Labor, Health and Human Services, Education, and Related Agencies stripped out the ban language in a July 10 vote. A week later, the full Appropriations Committee approved the bill after voting down an amendment proposed by US Rep. Chet Edwards (D-TX) that would have reinstated the funding ban, but accepted a poison pill amendment that would ban federally-funded needle exchange from operating "within 1,000 feet of a public or private day care center, elementary school, vocational school, secondary school, college, junior college, or university, or any public swimming pool, park, playground, video arcade, or youth center, or an event sponsored by any such entity." The House later passed the appropriations bill with the 1000-foot ban intact, but defeated a floor amendment by Rep. Mark Souder (R-IN) to reinstate the funding ban.

On the Senate side, the appropriations bill has yet to be passed, but the Senate committee working on the issue did not include language ending the funding ban. Reform advocates are hoping that the Senate will come on board for ending the ban in conference committee, and that committee members also strip out the 1000-foot provision.

The National Criminal Justice Commission

Introduced in March by Sen. Jim Webb (D-VA), the National Criminal Justice Commission Act of 2009 would create a commission that would have 18 months to do a top-to-bottom review of the criminal justice system and come back with concrete, wide-ranging reforms to address the nation's sky-high incarceration rate, respond to international and domestic gang violence, and restructure the county's approach to drug policy. The bill is currently before the Senate Judiciary Committee, where this week it was set to hear a raft of hostile amendments from Republican members. It currently has 34 cosponsors, including Republicans Olympia Snowe of Maine and Orrin Hatch of Utah.

Restoring College Aid to Students with Drug Convictions

The infamous Higher Education Act (HEA) anti-drug provision, or "Aid Elimination Penalty," which bars students committing drug offenses from receiving financial aid for specified periods of time, is under fresh assault. In September, the US House of Representatives approved H.R. 3221, the Student Aid and Fiscal Responsibility Act (SAFRA), one of the provisions of which restricts the penalty to those convicted of drug sales, not mere drug possession. The bill will next go to a conference committee, whose job will be to produce a reconciled version of H.R. 3221 and a yet-to-be-passed Senate bill. The final version must then be reapproved by both the House and the Senate. If that final version contains the same or very similar language, it will mark the second significant reduction of the penalty, the decade-old handiwork of arch-drug warrior Rep. Mark Souder (R-IN). In 2006, the provision was scaled back to include only drug convictions that occurred while students were enrolled in college and receiving financial aid (a change supported by Souder himself). Souder opposed this year's possible change.

Medical Marijuana

Late last month, Rep. Sam Farr (D-CA) reintroduced H.R. 3939, the Truth in Trials Act, which would allow defendants in federal medical marijuana prosecutions to use medical evidence in their defense -- a right they do not have under current federal law. The bill currently has 28 cosponsors and has been endorsed by more than three dozen advocacy, health, and civil liberties organizations. It is before the House Judiciary Committee.

That isn't the only medical marijuana bill pending. In June, Rep. Barney Frank (D-MA) introduced the Medical Marijuana Protection Act, which would reclassify marijuana as a Schedule II drug and eliminate federal authority to prosecute medical marijuana patients and providers in states where it is legal. The measure has 29 cosponsors and has been sitting in the House Committee on Energy and Commerce ever since. Frank introduced similar legislation in the last two Congresses, but the bills never got a committee vote or even a hearing. Advocates hoped that with a Democratically-controlled Congress and a president who has at least given lip service to medical marijuana, Congress this year would prove to be friendlier ground, but that hasn't proven to be the case so far.

In July, the House passed the District of Columbia appropriations bill and in so doing removed an 11-year-old amendment barring the District from implementing the medical marijuana law approved by voters in 1998. Known as the Barr amendment after then Rep. Bob Barr (R-GA), the amendment has been attacked by both medical marijuana and DC home rule advocates for years as an unconscionable intrusion into District affairs. The Senate has yet to act. Among the proponents for removing the Barr amendment: Bob Barr.

Marijuana Decriminalization

In June, Reps. Ron Paul (R-TX) and Barney Frank (D-MA) introduced the Personal Use of Marijuana By Responsible Adults Act, which would remove federal criminal penalties for the possession of less than 100 grams (about 3.5 ounces) and for the not-for-profit transfer of up to one ounce. The bill would not change marijuana's status as a Schedule I controlled substance, would not change federal laws banning the growing, sale, and import and export of marijuana, and would not undo state laws prohibiting marijuana. It currently has nine cosponsors and has been referred to the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security.

And just so you don't get the mistaken idea that the era of drug war zealotry on the Hill is completely in the past, there is Rep. Mark Kirk (R-IL). In June, Kirk introduced the High Potency Marijuana Sentencing Enhancement Act, which would increase penalties for marijuana offenses if the THC level is above 15%. Taking a page from the British tabloids, Kirk complained that high-potency "Kush" was turning his suburban Chicago constituents into "zombies." Nearly six months later, Kirk's bill has exactly zero cosponsors and has been sent to die in the House Appropriations Committee's Subcommittee on Crime, Terrorism, and Homeland Security.

Industrial Hemp

Reps. Barney Frank (D-MA) and Ron Paul (R-TX) again introduced an industrial hemp bill this year. HR 1866, the Industrial Hemp Farming Act of 2009would remove restrictions on the cultivation of non-psychoactive industrial hemp. They were joined by a bipartisan group of nine cosponsors, a number which has since grown to 18. The bill was referred to the House Energy and Commerce and House Judiciary committees upon introduction. Six weeks later, Judiciary referred it to its Subcommittee on Crime, Terrorism, and Homeland Security, where it has languished ever since.

Safe and Drug-Free Schools Funding

In May, the Obama administration compiled a budgetary hit list of 121 programs it recommended by cut or completely eliminated, including $295 million for the Safe and Drug-Free Schools community grants program. (It left intact funding for the Safe and Drug-Free Schools National Program). Both the House and Senate Appropriations Committees agreed with the White House and zeroed out the program. The House education appropriations bill has already passed, but the Senate bill is still in process. Proponents of the program may still try to reinstate it in the Senate or during the conference committee to reconcile the House and Senate appropriations bills.

Next week, look for a report on drug policy-related doings in the various state legislatures.

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Feature: 2009 International Drug Policy Reform Conferences Opens Amid Optimism in Albuquerque

Hundreds, possibly more than a thousand, people poured into the Convention Center in downtown Albuquerque, New Mexico, as the Drug Policy Alliance's 2009 International Drug Policy Reform Conference got underway yesterday. Set to go on through Saturday, the conference is drawing attendees from around the country and the world to discuss dozens of different drug reform topics. (See the link above for a look at the program.)

This is the second time DPA has brought the conference to the distant deserts of the Southwest. In 2001, DPA rewarded libertarian-leaning New Mexico Gov. Gary Johnson (R) for becoming the highest ranking elected official in the US to call for ending drug prohibition by bringing the conference to his home state. Since then, the ties between DPA and New Mexico have only deepened.

As DPA New Mexico office head Reena Szczepanski explained at the opening plenary session, the Land of Enchantment is fertile ground for drug reform. "Back in 1997, when drug policy reform was little more than a twinkle in the eye, New Mexico passed a harm reduction act mandating the Department of Health to give out clean syringes for people with HIV/AIDS," she noted. "Then, when Gov. Johnson said it was time to end the war on drugs, DPA very wisely immediately opened an office here. In 2001, we passed the overdose prevention act, allowing for the distribution of naloxone. Then we passed opting out on the federal welfare ban, we passed asset forfeiture reform, we passed the 911 Good Samaritan Act -- saving somebody's life is more important than busting them for small amounts of drugs."

But wait, there's more. "Thanks to Gov. Bill Richardson, we became the 12th state to have legal access to medical marijuana for seriously ill people," Szczepanski continued. "We're working on treatment instead of incarceration, we're working to end the war on drugs in New Mexico and this country. This is a very special place for drug policy reform."

New Mexico is also right next store to one of the drug war's bloodiest battlegrounds: the mean streets of Ciudad Juarez, just across the Rio Grande River from El Paso, Texas, which in turn in borders New Mexico. More than 2,200 people have died in prohibition-related violence in Juarez this year alone.

That violence just across the river inspired El Paso City Councilman Beto O'Rourke to turn a motion expressing sympathy for El Paso's sister city into one that also asked for an open and honest debate on ending drug prohibition. The resolution passed the city council by a unanimous vote, only to be vetoed by the mayor. Then, as the council scheduled an override vote, the pressure came down.

"Each of us on the council got a call from Rep. Silvestre Reyes, our congressman and a very powerful figure," O'Rourke told the crowd Thursday. "He told us if we went forward with this, it will be very hard to get your district the federal funding you need. That's a powerful threat, since we rely on federal funding to deliver basic services. It was enough to get four members to change their votes."

While the resolution was defeated, the debacle opened the door for serious debate on drug policy in El Paso and generated support for ending prohibition as well, O'Rourke said. "Our local Students for Sensible Drug Policy chapter came out very strongly and helped organize a global policy forum in El Paso. I received hundreds of calls, letters, and emails of support from around the country and the world," O'Rourke related to sustained applause.

If Councilman O'Rourke was a new face, Ira Glasser is a familiar one. Former executive director of the ACLU and president of the DPA board of directors, Glasser told the crowd he was more optimistic about the prospects for change than ever before.

"Today we stand on the brink of transformative progress," he said. "I have never said that before. We can almost touch the goals we have sought, the unraveling of the so-called war on drugs, which is really a war on fundamental freedoms and constitutional rights, on personal autonomy, on our sovereignty over our minds and bodies, a war against people of darker skin color."

Just as Jim Crow laws were the successor to the system of slavery, said Glasser, so the drug war has been the successor to Jim Crow. "It's no accident that after the civil rights revolution ended with the passage of the last federal civil right law in 1968, Richard Nixon was elected on the southern strategy against progress on civil rights," he noted. "Within months of taking office, Nixon declared the modern war on drugs."

Glasser wasn't the only one feeling uplifted. "I am feeling good, better than ever before," said DPA executive director and plenary keynote speaker Ethan Nadelmann. "The wind is at our back. We are making progress like never before. We have to move hard and fast. Historically speaking, there are moments when everything comes together," drawing a pointed comparison with the successful temperance movement that managed to get alcohol banned during Prohibition. But Prohibition generated its own counter-movement, he said, again drawing a pointed parallel.

"Now, we're in another moment," Nadelmann said. "We're hurting with the recession, state budgets are hemorrhaging. More and more people are realizing we can't afford to pay for our prejudices, we can't continue to be the world's largest incarcerator."

But it's not just the economy that is opening the window, he continued. "What's happening in Mexico and Afghanistan, where illicit drugs are ready sources of revenues for criminals and political terrorists, that has people thinking. We have two major national security problems causing people to think afresh."

Nadelmann had a suggestion: "Ending marijuana prohibition is a highly effective way of undermining that violence," he said. "Until we end it, buy American."

Just after the opening plenary session ended, reporters and other interested parties repaired to a Convention Center conference room to see the US unveiling of the British Transform Drug Policy Foundation publication, After the War on Drugs: A Blueprint for Regulation, a how-to manual on how to get to drug reform's promised land. Transform executive director Danny Kushlick was joined by Jack Cole of Law Enforcement Against Prohibition, Sanho Tree of the Institute for Policy Studies, Deborah Small of Break the Chains, and DPA's Nadelmann as he laid out the case for moving beyond "what would it look like."

"There's never been a clear vision of a post-prohibition world," said Kushlick. "With this, we've tried to reclaim drug policy from the drug warriors. We want to make drug policy boring," he said. "We want not only harm reduction, but drama reduction," he added, envisioning debates about restrictions on sales hours, zoning, and other dreary topics instead of bloody drug wars and mass incarceration.

"As a movement, we have failed to articulate the alternative," said Tree. "And that leaves us vulnerable to the fear of the unknown. This report restores order to the anarchy. Prohibition means we have given up on regulating drugs; this report outlines some of the options for regulation."

That wasn't the only unveiling Thursday. Later in the evening, Flex Your Rights held the first public showing of its new video, 10 Rules for Dealing with Police. The screening of the self-explanatory successor to Flex Your Right's 2003 "Busted" played to a packed and enthusiastic house. This highly useful examination of how not to get yourself busted is bound to equal if not exceed the break-out success of "Busted."

The conference, of course, continued Thursday afternoon and will go through Saturday, but your reporter was busy getting this week's Drug War Chronicle ready to go. Come back next week for fuller reports on the 2009 International Drug Policy Reform Conference.

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Medical Marijuana: American Medical Association Calls for Review of Pot's Schedule I Status

In an historic shift, the country's largest physician group, the American Medical Association (AMA), has reversed its long-held position that marijuana has no medical value. The group instead adopted a new policy position on medical marijuana, calling for a review of marijuana's status as a Schedule I drug with no accepted medical use under the federal Controlled Substances Act. The AMA had previously recommended that marijuana be retained in Schedule I.

The AMA adopted a report drafted by the AMA Council on Science and Public Health (CSAPH) entitled, "Use of Cannabis for Medicinal Purposes," which affirmed the therapeutic benefits of marijuana and called for further research. "Short term controlled trials indicate that smoked cannabis reduces neuropathic pain, improves appetite and caloric intake especially in patients with reduced muscle mass, and may relieve spasticity and pain in patients with multiple sclerosis," the CSAPH report found.

"Our AMA urges that marijuana's status as a federal Schedule I controlled substance be reviewed with the goal of facilitating the conduct of clinical research and development of cannabinoid-based medicines, and alternate delivery methods," the new policy says.

But the AMA goes on to say that it is not endorsing existing state medical marijuana programs.

Laying the groundwork for the AMA's shift in position was the adoption in June 2008 by the group's Medical Student Section of a resolution supporting reclassification of marijuana. Leading that effort was University of Washington medical student Sunil Aggarwal, who also played a role as a reviewer of the CSAPH report.

"It's been 72 years since the AMA has officially recognized that marijuana has both already-demonstrated and future-promising medical utility," said Aggarwal. "The AMA has written an extensive, well-documented, evidence-based report that they are seeking to publish in a peer-reviewed journal that will help to educate the medical community about the scientific basis of botanical cannabis-based medicines."

"This shift, coming from what has historically been America's most cautious and conservative major medical organization, is historic," said Aaron Houston, director of government relations for the Marijuana Policy Project, who attended the AMA meeting. "Marijuana's Schedule I status is not just scientifically untenable, given the wealth of recent data showing it to be both safe and effective for chronic pain and other conditions, but it's been a major obstacle to needed research."

The AMA lagged behind one of its competitors. In February 2008, a the American College of Physicians (ACP), the country's second largest physician group and the largest organization of doctors of internal medicine, adopted a resolution calling for an "evidence-based review of marijuana's status as a Schedule I controlled substance to determine whether it should be reclassified to a different schedule."

"The two largest physician groups in the US have established medical marijuana as a health care issue that must be addressed," said ASA Government Affairs Director Caren Woodson. "Both organizations have underscored the need for change by placing patients above politics."

And so the pressure mounts.

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Europe: British Home Secretary's Firing of Drug Advisor Continues to Reverberate

Three more members of the British government's Advisory Council on the Misuse of Drugs (ACMD) quit Tuesday night after meeting with Home Secretary Alan Johnson in the wake of his firing of ACMD head Professor David Nutt. That brings to five the number of ACMD members who have resigned since Johnson fired Nutt two weeks ago for criticizing the government's reclassification of marijuana in the face of the ACMD's considered opinion that there was no evidence to justify reclassification.

Faced with a growing mutiny within the ACMD, the Home Office's official scientific panel on drug policy, and among the broader scientific community after firing Nutt, Johnson agreed to meet Tuesday with the group in an effort to contain the damage. He was only partly successful.

According to The Independent, the session was "tense," with some ACMD members wanting to accept his vows to value their future work, while others remained unhappy, over both the firing of Nutt and the government's decision to reclassify marijuana before it even got the ACMD's report.

The ACMD's views would be given "due weight" in the future, Johnson said, but he stood by his decision to fire Nutt. "I understand why the Advisory Council on the Misuse of Drugs was concerned about this," said Johnson. "Its major concern was because they felt Professor Nutt was being dismissed for his views. I reassured them that was not the case. There is a duty I think to accept that politicians make the final decision," he added. "At my meeting we talked constructively about the future, about what we can do to reassure the science community that their decisions are important to us and they are given due weight."

Johnson did make some concessions in a bid to quell the uproar. According to the BBC, he pledged to not make decisions on drug classification before the ACMD issues its advice and he pledged to explain in writing to the ACMD if he rejected its advice.

Johnson's refusal to reinstate Nutt led chemist Dr. Simon Campbell, psychologist Dr. John Marsden, and scientific consultant Ian Ragan to resign after the meeting. ACMD members Marion Walker and Dr. Les King resigned in protest over the firing last week.

Having the government listen to the ACMD's advice would be a pleasant change, Campbell told the BBC. "When we made our recommendation on cannabis we saw no reason to change the classification and yet the government has already decided to move from Class C to Class B," he said. "That can only be because the government saw it as a vote-catching exercise."

The ACMD usually has 31 members. Now it has 25. The government said it needs to have at least 20 members to function properly.

While the Home Office and the ACMD go at it, Professor Nutt is going his merry way. The Telegraph quoted Nutt as saying he may set up an independent drug council and that he has financial backing for the venture.

Speaking at the Center for Crime and Justice Studies last night, Nutt was tight with details. "There is the possibility we could set up an alternative committee. At least one charitable benefactor has come forward to fund it," he said, declining to name the benefactor.

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Sentencing: US Sentencing Commission to Review Mandatory Minimums

The US Sentencing Commission has been ordered by Congress to review mandatory minimum sentencing. The order came via the National Defense Authorization Act signed last month by President Obama. The act contains quietly added language calling on the commission to conduct several tasks, including examining the impact of mandatory minimum sentencing laws and exploring alternatives.

Congress began passing mandatory minimum laws in the 1980s, especially for drug and weapons offenses. In part as a direct result, the federal prison population has ballooned from 24,000 prisoners in 1980 to more than 209,000 last week. More than half of all federal prisoners are doing time for drug offenses.

Now, the Sentencing Commission is charged with issuing recommendations on mandatory minimums. But don't hold your breath -- this could take awhile.

"It's going to be a massive undertaking," the new chairman of the Sentencing Commission, William Sessions III, told the Wall Street Journal. Sessions said the review would range from weighing the impact of mandatory minimum sentencing on prison population figures and spending to assessing the social impact of those policies. "In my view," he said, "it's a very open-ended request."

Even if the Sentencing Commission were to eventually recommend changing or eliminating mandatory minimums, the final decision is up to Congress. In that regard, recent history is not very encouraging. The commission has for years formally recommended that Congress to undo the sentencing disparity between federal crack and powder cocaine offenses, but Congress has, rejected its advice, except for minor relief when it allowed changes in sentencing guidelines that reduced some crack sentences,although that may finally change this year or next.

When the commission last undertook a full-scale review of sentencing laws in 1991, there were 60 mandatory minimum offenses on the books. Now, there are 170.

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Medical Marijuana: Colorado Judge Blocks Restrictions on Caregivers

A judge in Denver Tuesday overturned a state Board of Health decision last week that medical marijuana caregivers must do more than simply provide marijuana to qualify as caregivers. Denver District Judge Larry Naves voided the decision, saying the board had violated state open meeting laws and ignored the needs of patients.

The board held an emergency meeting last week with less than one day's notice to respond to a state Court of Appeals ruling that a woman who provided marijuana to a registered patient did not qualify as a caregiver under the law. That move outraged medical marijuana supporters, who immediately filed suit to block the move.

Attorney Richard Corry filed the lawsuit. He argued that the board failed to provide adequate public notice of the meeting and that the Court of Appeals ruling applied only to the criminal case in question. Naves agreed.

Naves was harshly critical of the Board of Health and let first assistant attorney general Anne Holton, who was representing the board, know it. "Did this board ever think about the impact on the health of people like these people here?" he asked, referring to a medical marijuana user and provider in the courtroom who had challenged the new requirements.

Holton replied that the board was merely trying to clarify restrictions for providers, and that the action was only temporary while the board came up with permanent standards.

"It's not temporary if you're trying to down 30 pills," Naves retorted, referring to testimony by a patient in an older, related case who said he couldn't keep his numerous medications down without marijuana.

Holton said she did not know if the Board of Health would appeal the decision. It has a December 15 hearing scheduled on the issue.

The dispute comes as medical marijuana is taking off in Colorado. The state now has more than 11,000 registered patients, and this year, dozens of dispensaries have sprung up, first in Denver, but now across the state.

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Law Enforcement: This Week's Corrupt Cops Stories

A dirty Philly cop gets smacked hard, a dirty St. Louis cop gets his hands slapped, and two more jail and prison guards get caught. Let's get to it:

In Philadelphia, a former Philadelphia police officer was sentenced Monday to 30 years in federal prison for robbing a drug dealer while in uniform. Former officer Malik Snell got 10 more years than pre-sentence investigators recommended. Perhaps it's because while being chased by police after the robbery, he hit another car and left the young driver for dead.

In St. Louis, a former St. Louis police officer was sentenced Monday to two years in prison for stealing money during drug raids and lying about it to superior officers and federal investigators. Bobby Leo Garrett also has to pay restitution. He is the third officer from the department's crime suppression unit to be sentenced in the case. The three bad cops ripped off a drug courier in September 2007 and failed to report stopping him and taking his money. They also stole money during drug raids on June 6 and June 11, 2008, and falsely arrested a man during the June 6 raid in an attempt to further cover up their crimes.

In Sacramento, California, a California Department of Corrections guard was arrested November 2 for allegedly smuggling weapons and drugs into Folsom prison. Officer Domingo Garcia, 39, had worked at Folsom for nearly a decade. At least one loaded weapon was found in Garcia's car on prison property. He is also being charged with conspiracy to bring drugs into the prison. Garcia bailed out on November 4.

In Selma, Alabama, a former Bibb County Correctional Facility guard was sentenced November 5 to a year in jail and three year's probation for smuggling drugs into the prison where he worked. Woodrow Richardson was caught with four bags of marijuana wrapped in duct tape during a routine employee search in April 2008. He said he had been paid $800 by an inmate to bring the pot into the prison. Richardson pleaded guilty to felony charges of promoting prison contraband, marijuana possession, and attempted distribution of a controlled substance.

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Students: Intern at StoptheDrugWar.org (DRCNet) and Help Stop the Drug War!

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