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Washington Prosecutor Candidate Makes Drug Reform a Key Issue [FEATURE]

Snohomish County, Washington, stretches from the Seattle suburbs in the south to the city of Everett in the north. It encompasses the Pacific Coast and the Cascade Range, and come November, its 700,000 citizens will be electing a new prosecutor. One of the candidates is staking out a very progressive position on drug policy.

Jim Kenny with firefighters (jimkenny.org)
The campaign pits incumbent prosecutor Mark Roe against challenger Jim Kenny. Both are long-time prosecutors, Roe in Snohomish County and Kenny in Seattle, and both are Democrats. But only one supported I-1068, this year's failed marijuana legalization initiative, and only one is trying to make drug policy reform a winning issue. That would be Jim Kenny.

Under Washington election law, the top two vote-getters in the primary go to the general election ballot, regardless of party affiliation. Roe won the primary with 67% of the vote, while Kenny came in second with 31%.

"You could say I'm the underdog," Kenny told the Chronicle this week. "But we do have a plan to turn those numbers around and win in the general election. We think we can double the turnout over the primary election," he said.

With both candidates running as Democrats and experienced prosecutors, the challenger is looking for issues to differentiate himself from the incumbent, and for Kenny, drug policy is one of those issues. Reformist stances are drug policy positions are prominently displayed on his campaign web site's issues page. Roe does not even have an issues page.

Kenny supported I-1068 because "it was the right thing to do," he said. "I supported 1068 for a variety of reasons," said the veteran prosecutor. "I think it was the right thing to do to end 40 years of the war on drugs and marijuana prohibition. It could have had financial benefits for the state through a redirection of law enforcement resources or potentially even a reduction in the need for those resources."

Kenny pointed out that there were 12,000 marijuana prosecutions in Washington in 2008. "Those prosecutions cost the state more than $18 million," he said. "If you legalize marijuana, you would reduce the need for all those arrests, prosecutions, and incarcerations. You can save those resources, or redirect them to fight real crime."

"You could also tax marijuana, and those tax dollars would be a real financial benefit to the state," he said.

"Another reason 1068 made a lot of sense," Kenny continued, "is that it started allowing our community in the state of Washington to look at drugs within a public health model instead of a criminal justice model. We spent 40 years prosecuting people for drugs, but now the Obama administration has come out with a new drug control strategy that walks away from war on drugs rhetoric and talks about dealing with drugs as a public health issue. It didn't involve any changing of programs or funding, but I think it's significant for the federal government to disavow the term 'war on drugs.' That provides the opportunity for people at the local level, for prosecutors, to run with it. I'm afraid the federal government may not take more significant steps in that direction, but it is something local governments can run with."

Kenny also sought to draw a sharp line between himself and Roe on medical marijuana. "My opponent is prosecuting some sick and injured people as felons for marijuana distribution, and I think that's the wrong thing to do," Kenny said. "People with medical marijuana authorizations should be treated as patients, not criminals."

Talking drug policy reform could be a winning issue, or at least not a losing one in Western Washington, said Seattle attorney Rachel Kurtz. "I feel like we're pretty advanced here," she said. "[Drug reformer and state representative] Roger Goodman runs for office, and in his last election he was attacked for not doing enough on drug reform. In this financial climate, drug policy reform is seen as a way to save money and taxes. I don't think Kenny is going to lose because of his drug policy stances. The electorate is becoming smarter and you can use those old tactics anymore," she said.

Kenny isn't just talking about pot. He is also advocating innovative criminal justice measures to reduce incarceration levels and promising to bring transparency to police-involved shootings. It's all part of what he calls "smart on crime" policies, as opposed to "tough on crime."

"We need to continue to incarcerate serious and violent offenders, but for low- and mid-level offenders we can do more," Kenny said. "In other cities across the country, they are using some innovative ideas to help people help themselves by addressing root causes, such as mental health and drug and alcohol problems," he said, pointing to problem-solving courts, such as drug court, mental health court, and veterans' court.

Snohomish County, with a large naval base and veteran population, should have a veterans' court, Kenny argued. "It's a specialized court with a redirection of resources where you might take in all the vets' cases," he said. "It's really about asking these defendants what's going on with them, why are they doing this, looking at their criminal histories and asking how we can change this. Ideally, it involves additional resources, particularly getting people into alcohol and drug treatment. It's about slowing down the process and asking why, and that makes a real difference."

The county does have a drug court, Kenny noted, but needs more problem-solving courts. "Those programs have been expanded in places in the country and the state, and we need to bring them to Snohomish County."

He also favors alternative sentencing arrangements. "Work crews, electronic monitoring, community service -- all of those keep people out of jail and allow us to not have to build a second jail any time in the near future. If we can use these tools to reduce recidivism, especially without putting people in jail, that would be a good thing," he said. "My conservative opponents don't like to focus on the fact that jail can be a school for criminals."

Kenny is also taking a strong stand on accountability for police-involved killings. In the past 18 months, Snohomish police have shot six people to death and Tasered one to death. Those killings need a light shone on them, he said.

"That's a real concern. I want to establish mandatory inquests," he said. "Inquests are not a criminal case, but a fact-finding investigation to find out what happened and whether it was justified. We need some transparency for these incidents where police use lethal force in the name of the community. There is currently no inquest, so unless the decedent files a lawsuit, we may never hear what happened in that particular case. And even then, civil cases are settled out of court all the time. Bad things could be happening and we never learn the details of why."

Mandatory inquests would be "good for the community and good for the police," Kenny said. "It gives police the opportunity to take the stand and explain why they used lethal force. They should explain to the community why. It costs some money, but it will provide transparency, and the community can rely on the fact that the police are doing the right thing."

When, running on a drug reform platform, New York prosecutor David Soares defeated the incumbent in the Albany County district attorney race in 2004, it was a shock. It is a measure of how far we have come that if Kenny manages to pull off a long-shot victory in November, it will be no shock at all, just a pleasant surprise.

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Everett, WA
United States

Capitol Hill Hearing -- Quitting Hard Habits: Efforts to Expand and Improve Alternatives to Incarceration for Drug-Involved Offenders

The Domestic Policy Subcommittee of the House of Representative's Committee on Oversight and Government Reform is holding this hearing to focus on front-end alternatives to incarceration for drug-involved offenders and abusers of illegal drugs. It will examine the extent to which and why (or why not) these efforts have been effective in reducing the levels and associated harms of incarceration, reducing recidivism, effectively treating drug abuse, and improving other social outcomes and which approaches (or mix approaches) are best suited to accomplishing these goals. This hearing is held as part of the Domestic Policy Subcommittee’s mandate as the authorizing committee for the Office of National Drug Control Policy in the House of Representatives.
Date: 
Thu, 07/22/2010 - 2:00pm - 5:00pm
Location: 
Independence Avenue and South Capitol Street
Washington, DC 20003
United States

Press Release: Hearing to Assess Alternatives to Incarceration For Drug-Involved Offenders

For Immediate Release Contact: Nathan White, (202) 225-5871 Oversight Hearing to Assess Alternatives to Incarceration For Drug-Involved Offenders Washington D.C. – Chairman Dennis Kucinich (D-OH) today announced a Domestic Policy Subcommittee hearing entitled “Quitting Hard Habits: Efforts to Expand and Improve Alternatives to Incarceration for Drug-Involved Offenders.” The hearing will be held at 2:00 p.m. on Thursday, July 22, 2010 in room 2154 Rayburn House Office Building. The purpose of the hearing is to focus on front-end alternatives to incarceration for drug-involved offenders and abusers of illegal drugs. It will examine the extent to which and why (or why not) these efforts have been effective in reducing the levels and associated harms of incarceration, reducing recidivism, effectively treating drug abuse, and improving other social outcomes and which approaches (or mix approaches) are best suited to accomplishing these goals. This hearing is held as part of the Domestic Policy Subcommittee’s mandate as the authorizing committee for the Office of National Drug Control Policy in the House of Representatives. http://oversight.house.gov/index.php?option=com_jcalpro&Itemid=1&extmode... ###
Location: 
Washington, DC
United States

Incarceration Nation: Number of People in State Prisons Declines for First Time Since Nixon, New Report Finds

For the first time since President Richard Nixon won reelection in 1972, the number of people behind bars in state prisons declined last year, according to a new survey, Prison Count 2010, conducted by the Pew Center on the States. As of January 1, there were 1,403,091 people doing state prison time, a decline of 5,739, or 0.4%, from December 31, 2008.

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prison population at turning point?
The state prison population has increased seven-fold since 1972, driven by harsher sentencing laws, including drug laws, and an ever larger number of people under correctional supervision, who are eligible to be sent to or back to prison for violating the conditions of their probation or parole. People sentenced for drug offenses typically account for somewhere between 20% and 25% of state prison populations.

The drop was driven was by significant declines in prison populations in states like California, Maryland, Michigan, Mississippi, New York, and Texas, where sentencing and parole reforms passed in recent years are beginning to take hold. California saw the largest decline in absolute numbers, shedding 4,257 prisoners last year, followed by Michigan (down 3,260), New York (down 1,699), Maryland (down 1,315), Texas (down 1,257), and Mississippi (down 1,233).

But there was also wide variation among the states. Twenty-seven states saw declines, while 23 saw increases, some significant. In the 23 states where the state prison population grew, more than half of the increase occurred in just five states: Pennsylvania (2,122), Florida (1,527), Indiana (1,496), Louisiana (1,399) and Alabama (1,053).

"After so many years on the rise, any size drop is notable. What's really striking is the tremendous variation among the states," said Adam Gelb, director of the Pew Center on the States' Public Safety Performance Project."These numbers highlight just how much the decisions by state policymakers impact the size and cost of prison systems."

States have gotten smarter -- as opposed to tougher -- on crime, Gelb said. "The decline is happening for several reasons, but an important contributor is that states began to realize there are research-based ways they can cut their prison populations while continuing to protect public safety," he said. "In the past few years, several states have enacted reforms designed to get taxpayers a better return on their public safety dollars."

The trend pre-dated the economic recession, he noted. "These types of policy changes are not simply a response to the economic downturn," said Gelb. "Before this recession began, states like Texas recognized that by strengthening their probation and reentry programs they could cut corrections spending, protect public safety and hold offenders accountable for their actions."

It's a different story with the federal prison population, the report found. The number of federal prisoners continued to grow, increasing by 3.4% in 2009 to an all-time record 208,118. More than 60% of federal prisons are doing time for drug offenses.

The increase in federal prisoners was enough to outweigh the decrease among state prisoners, and the combined state and federal prison population grew by 1,099 last year.

The state and federal prison numbers do not include jail inmates. When they are added in, said Pew, the nation's incarceration rate remains unchanged, with some 2.3 million people behind bars.

The Year on Drugs 2009: The Top Ten US Domestic Drug Policy Stories

As 2009 prepares to become history, we look back at the past year's domestic drug policy developments. With the arrival of a highly popular (at least at first) new president, Barack Obama, and Democratic Party control of the levers of power in Congress, the drug reform gridlock that characterized the Bush years is giving way to real change in Washington, albeit not nearly quickly enough. A number of this year's Top 10 domestic drug stories have to do with the new atmospherics in Washington, where they have led, and where they might lead.

But not all of them. Drug reform isn't made just in Washington. Under our federal system, the 50 states and the District of Columbia have at least some ability to set their own courses on drug policy reforms. In some areas, actions in the state legislatures have reflected trends -- for better or worse -- broad enough to earn Top 10 status.

And Washington and the various statehouses notwithstanding, movement on drug reform is not limited to the political class. Legions of activists now in at least their second decade of serious reform work, a mass media that seems to have awakened from its dogmatic slumber about marijuana, a crumbling economy, and a bloody drug war within earshot of the southwestern border have all impacted the national conversation about drug reform and are all pushing politicians from city councilmen to state legislators to US senators to rethink drug prohibition.

For drug reformers, these are interesting times, indeed. Herewith, the Top 10 domestic drug policy stories of 2009:

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marijuana plants (photo from US Fish and Wildlife Service via Wikimedia)
Marijuana Goes Mainstream

Wow. This year has seen the US enter the beginnings of a sea change on policies and attitudes toward the recreational use of marijuana. The first hint that something had changed was the Michael Phelps bong photo non-scandal. When the multiple Olympic gold medal winner got outed for partying like a college student, only one corporate sponsor, fuddy-duddy Kellogg, dumped him, and was hit by a consumer boycott -- and arguably by falling stock prices -- in return. Otherwise, except for a deranged local sheriff who tried fruitlessly to concoct a criminal case against somebody -- anybody! -- over the bong photo, America's collective response basically amounted to "So what?"

Post-Phelps it was as if the flood gates had opened. Where once Drug War Chronicle and a handful of other publications pretty much had the field to ourselves, early this year, the mass media began paying attention. Countless commentaries, editorials and op-eds have graced the pages of newspaper and those short-attention-span segments on the cable news networks, an increasing number of them calling for legalization. The conversation about freeing the weed has gone mainstream.

The sea change is also reflected in poll numbers that, for the first time, this year showed national majorities in favor of legalization. In February, a Zogby poll showed 44% support nationwide -- and 58% in California. By late spring, the figures were generally creeping ever higher. An April Rasmussen poll had support for "taxation and regulation" at 41%, while an ABC News/Washington Post poll found 46% supported "legalizing the possession of small amounts of marijuana for personal use." Also in April, for the first time, a national poll showed majority support for legalization when Zogby showed 52% saying marijuana should be "legal, taxed, and regulated." In July, a CBS News poll had support for legalization at 41%.

In October, a Gallup poll had support for legalization at 44%, the highest ever in a Gallup survey. And a few weeks ago an Angus-Reid poll reported 53% nationwide supported legalization. Legalizing pot may not have clear majority support just yet, but it is on the cusp.

Marijuana law reform was also a topic at statehouses around the country this year, although successes were few and far between. At least six states saw decriminalization bills, but only one passed -- in Maine, which had already decriminalized possession of up to 1.25 ounces. This year's legislation doubled that amount. And then there were legalization bills. Two were introduced in the 2009 session, in California and Massachusetts, and two more have been pre-filed for next year, in New Hampshire and Washington. Both the California and Massachusetts bills got hearings this year, and the California bill is set for another hearing and a first committee vote in the Assembly in two weeks. In Rhode Island, meanwhile, the legislature voted this year to create a commission to study marijuana law reform; it will report at the end of January.

And then, finally, there is the excitement and discussion being generated by at least three separate marijuana legalization initiative campaigns underway in California. Oaksterdam medical marijuana entrepreneur Richard Lee's Tax Cannabis 2010 initiative has already announced it has sufficient signatures to make the ballot. Time will tell if the others make it, but at this point it is almost certain that voters in California will have a chance to say "legalize it" in November.

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medical marijuana dispensary, Ventura Blvd., LA (courtesy wikimedia.org)
Medical Marijuana: The Feds Butt Out and the Floodgates Begin to Swing Open

During his election campaign, President Obama promised to quit siccing the DEA on medical marijuana patients and providers. In February, new Attorney General Eric Holder announced there would be no more federal raids if providers were in compliance with state law, and pretty much held to that promise since then. In October, the Justice Department made it official policy when it issued a policy memo reiterating the administration's stance.

The new "hands off" policy from Washington has not been universally adhered to, nor has it addressed the issue of people currently serving sentences or facing prosecution under Bush administration anti-medical marijuana initiatives, but it has removed a huge looming threat to growers and dispensary operators and it has disarmed a favored (if intensely hypocritical) argument of medical marijuana foes that such laws should not be passed out of fear of what the feds would do.

Meanwhile, California rolls right along as medical marijuana's Wild West. Like countless other localities in the Golden State, the city of Los Angeles is grappling with what to do with its nearly one thousand dispensaries. The issue is being fought city by city and county by county, in the state courts and in the federal courts. And while the politicians argue, dispensary operators are creating political facts on the ground as their tax revenues go into hungry state and local coffers.

This year also marked the emergence of a medical marijuana industry infrastructure -- growers, grow shops, dispensaries, educational facilities, pot docs -- beyond California's borders, most notably in Colorado, where the dispensary scene exploded in the wake of the removal of the federal threat, and in Michigan, where last year's passage of a medical marijuana law has seen the creation of the Midwest's first medical marijuana industry.

While medical marijuana is legal in 13 states (and now, the District of Columbia), it remains difficult to win victories in state legislatures. There were medical marijuana bills in at least 18 states, but only two -- Minnesota and New Hampshire -- were approved by legislatures, and they were vetoed by prohibitionist governors. Bills are, however, still alive in six states -- Delaware, Illinois, New Jersey, New York, Pennsylvania, and Wisconsin -- with New Jersey and Wisconsin apparently best positioned to become the next medical marijuana state. In Rhode Island, which already approved a medical marijuana law in 2007, the legislature this year amended it to include a dispensary system.

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salvia leaves (photo courtesy Erowid.org)
The Reflexive Prohibitionist Impulse Remains Alive -- Just Ask Sally D

Despite evident progress on some drug reform fronts, a substantial number of Americans continue to hold to prohibitionist values, including a number of state legislators. The legislative response to the popularity of the fast-acting, short-lived hallucinogen salvia divinorum is the best indicator of that.

The DEA has been reviewing salvia for five years, and has yet to determine that it needs to become a controlled substance, but that hasn't stopped some legislators from trying to ban it. Appalled by YouTube videos that show young people getting very high, legislators in 13 states have banned or limited sales of the herb.

This year, four more states joined the list. The good news is that legislators in seven other states where salvia ban bills were introduced had better things to do with their time than worry about passing them.

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drug testing lab
"We Must Drug Test Welfare and Unemployment Recipients!"

In another indication that the drug warrior impulse is still alive and well -- as are its class war elements -- legislators in various states this year continued to introduce bills that would mandate suspicionless drug testing of people seeking unemployment, public assistance, or other public benefits. Never mind that Michigan, the only state to pass such a law, saw its efforts thrown out as an unconstitutional search by a federal appeals court several years back.

Such efforts exposed not only public resentment of benefits recipients, but also a certain level of ignorance about the way our society works. A common refrain from supporters was along the lines of "I have to get drug tested for my job, so why shouldn't they have to get drug tested?" Such questioners fail to understand that our system protects us from our government, but not from private employers.

But if welfare drug testing excited some popular support, it also excited opposition, not only on constitutional grounds, but on grounds of cost and elemental fairness. In the four states where drug testing bills were introduced -- Kansas, Louisiana, Missouri and West Virginia -- none of them went anywhere. But even in an era when drug reform is in the air, such bills are a clear sign that there will be many rear-guard battles to fight.

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unjust, but also unaffordable
Rockefeller Drug Law and Other State Sentencing Reforms

Reeling under the impact of economic downtowns and budget crises, more and more states this year took a second look at drug-related sentencing policies. Most notable of the reforms enacted at the state level this year were reforms in New York's draconian Rockefeller drug laws, which went into effect in October. Under this newest round of Rockefeller drug law reforms, some 1,500 low-level drug offenders will be able to seek sentence reductions, while judges gain some sentencing power from prosecutors, and treatment resources are being beefed up. But still, more than 12,000 will remain in Empire State prisons on Rockefeller drug charges.

New York wasn't the only state to enact sentencing reforms this year. This month, New Jersey legislators passed a bill giving judges the discretion to waive mandatory minimum sentences for some drug offenses. Last month, Rhode Island mandatory minimum reforms went into effect. Earlier this year, Louisiana finally acted to redress the cruel plight of the "heroin lifers," people who had been sentenced to life without parole for heroin possession under an old state law. A new state law cut heroin sentences, but did not address the lifers. As a result, some lifers remained in prison with no hope of parole while more recent heroin offenders came, did their time, and went. Now, under this year's law, the lifers are eligible for parole.

Sentencing reforms are also in the works in a number of other states, from Alabama to California and from Colorado to Michigan. In some cases, reform legislation is in progress; in others, legislators are waiting for commissions to report their findings. In nearly every case, it is bottom-line budget concerns rather than bleeding heart compassion for the incarcerated that is driving the reforms.

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PolitickerMD cartoon about the Berwyn Heights raid
Swatting SWAT

It was only one bill in one state, and all it required was reporting by SWAT teams of their activities, but the Maryland SWAT bill passed this year marked the first time a state legislature has moved to rein in aggressive paramilitary-style policing. More precisely, the bill requires all law enforcement agencies that operate SWAT teams to submit monthly reports on their activities, including when and where they are used, and whether the operations result in arrests, seizures or injuries.

In took an ugly incident involving the mayor of a Washington, DC, suburb to make it happen. Marijuana traffickers sent a load of pot to the mayor's address to avoid having police show up on their doorstep in the event something went wrong, but something did go wrong, and police tracked the package. When the mayor innocently carried the package inside on returning home, the SWAT team swooped, manhandling the mayor and his mother-in-law and killing the family's pet dogs. The cops were unapologetic, the mayor was apoplectic, and now Maryland has a SWAT law. A new bill just filed in Maryland would take it further, requiring police to secure a judge's warrant before deploying a SWAT team.

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shrine to San Malverde, Mexico's ''narco-saint,'' Culiacan, Sinaloa
America Finally Notices the Drug War Across the River

While Congress and the Bush administration got serious about Mexico's bloody drug wars in 2008, passing a three-year, $1.4 billion anti-drug aid package for Mexico and Central America, it was not until this year that the prohibition-related violence in Mexico really made the radar north of the border.

It only took about 11,000 deaths (now up to over 16,000) among Mexican drug traffickers, police, soldiers, and innocent bystanders to get the US to pay attention to the havoc being wreaked on the other side of the Rio Grande. But by the spring, Washington was paying attention, and for the first time, one could hear mea culpas coming from the American side. Mexico's drug violence is driven by demand in the US, Secretary of State Hillary Clinton admitted and Homeland Security Secretary Janet Napolitano echoed.

But just because Washington admitted some fault didn't mean it was prepared to try anything different. And while the Mexican drug wars brought talk of legalization -- especially of marijuana -- what they brought in terms of policy was the Southwest Border Counternarcotics Strategy, which is basically mo' better drug war.

Mexico's drug wars show no signs of abating, and the pace of killing has accelerated each year since President Felipe Calderon sent in the army three years ago this month. The success -- or failure -- of his drug war policies may determine Calderon's political future, but it has for the first time concentrated the minds of US policymakers on the consequences of prohibition south of the border.

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syringes -- better at the exchange than on the street
Congress Ends Ban on Needle Exchange Funding, Butts Out of DC Affairs

After a decade-long struggle, the ban on federal funding for needle exchange programs ended this month with President Obama's signature on an omnibus appropriations bill that included ending the federal ban, as well as a similar ban that applied to the District of Columbia. The bill also removed a ban on the District implementing a medical marijuana law passed by voters in 1998.

Removing the funding ban has been a major goal of harm reduction and public health coalitions, but they had gotten nowhere in the Republican-controlled Congresses of the past decade. What a difference a change of parties makes.

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Jim Webb at 2007 incarceration hearing (photo from sentencingproject.org)
Questioning the Drug War: Two Congressional Bills

The US Congress has been a solid redoubt of prohibitionist sentiment for decades, but this year saw the beginning of cracks in the wall. Two legislators, Rep. Elliot Engel (D-NY) and Sen. Jim Webb (D-VA) introduced and have had hearings on bills that could potentially challenge drug war orthodoxy.

Engel's bill, the Western Hemisphere Drug Policy Commission Act, which has already passed the House, would set up a commission to examine US eradication, interdiction, and other policies in the Western Hemisphere. While Engel is no anti-prohibitionist, any honest commission assessing US drug policy in the Americas is likely to come up with findings that subvert drug war orthodoxy.

Meanwhile, Sen. Webb's National Criminal Justice Commission Act of 2009 comes at the issue from a much more critical perspective. It calls for a top-to-bottom review of a broad range of criminal justice issues, ranging from sentencing to drug laws to gangs and beyond, with an emphasis and costs and efficacy. Webb's bill remains in the Senate Judiciary Committee, but has 35 cosponsors. Webb has already held hearings on the costs of mass incarceration and the economic costs of drug policy, and even more than Engel's bill, the Webb bill has the potential to get at the roots of our flawed national drug policy.

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Sen. Durbin at May hearing on crack sentencing
The Crack/Powder Cocaine Sentencing Disparity

The 100:1 disparity in the quantities of crack needed to earn a mandatory minimum federal prison sentence versus the quantities of powder cocaine needed to earn the same sentence has been egregiously racist in its application, with roughly 90% of all federal crack offenders being non-white, and pressure has been mounting for years to undo it. It hasn't happened yet, but 2009 finally saw some serious progress on the issue.

The move to reform the sentencing disparity got a boost in June, when Attorney General Holder said it had to go. The next month, a House Judiciary Committee subcommittee passed the Fairness in Cocaine Sentencing Act of 2009. The bill is now before the House Judiciary and Energy and Commerce Committees.

On the Senate side, Sen. Dick Durbin (D-IL) introduced a companion bill in October, the Fairness in Sentencing Act. It hasn't moved yet, but thanks to a decade-long effort by a broad range of advocates, all the pieces are now in place for something to happen in this Congress. By the time we get around to the Top 10 of 2010, the end of the crack/powder cocaine sentencing disparity better be one of the big stories.

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.)

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screening of near-final version of the next Flex Your Rights film, 10 Rules for Dealing with Police
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.

Law Enforcement: Drug Court Program Needs Serious Reforms, Defense Attorneys Say

Drug courts have spread all across the country since the first one was instituted in Miami 20 years ago by then local prosecutor Janet Reno, but now, the nation's largest group of criminal defense attorneys says they have become an obstacle to cost-effective drug treatment and a burden on the criminal justice system. In a report released Tuesday, America's Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform, the National Association of Criminal Defense Attorneys (NACDL) argued that drug addiction should be considered a public health problem, outside the criminal justice arena.

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More than 2,100 drug courts are now in operation in the US, the group noted, but they have had no noticeable impact on drug use rates or arrests. Furthermore, the courts, which empower judges and prosecutors at the expense of defendants and their attorneys, too often limit treatment to "easy" offenders while forcing "hard cases" into the jails or prisons.

Minorities, immigrants, and poor people are often underrepresented in drug court programs, leaving them to rot behind bars at taxpayer expense. Drug courts also mean that access to drug treatment comes at the cost of a guilty plea, the group said.

"Today's drug courts have been operating for over 20 years yet have not stymied the rise in both drug abuse or exponentially increasing prison costs to taxpayers," said NACDL president Cynthia Orr. "It is time for both an extensive review of these courts and for the average American to ask themselves: Is our national drug policy working, and perhaps it is a public health concern rather than a criminal justice one?"

In the report, NACDL recommended the following reforms:

  • Treating substance abuse as a public health issue rather than a criminal justice one;
  • Opening admission criteria to all those who need, want and request treatment;
  • Enforcing greater transparency in admission practices and relying on expert assessments, not merely the judgment of prosecutors;
  • Prohibiting the requirement of guilty pleas as the price of admission;
  • Urging greater involvement of the defense bar to create programs that preserve the rights of the accused;
  • Considering the ethical obligations of defense lawyers to their client even if they choose court-directed treatment; and
  • Opening a serious national discussion on decriminalizing low-level drug use.

Sentencing Project Recommendations to U.S. Sentencing Commission

Dear Friend, Today the United States Sentencing Commission will be meeting in Washington, D.C. to establish its priorities for the 2009-2010 program year. In preparation for this meeting, the Commission has invited interested parties to recommend areas of focus on federal sentencing policy. On August 5, The Sentencing Project submitted a letter to the Commission highlighting four areas of attention. Our recommended issue areas are the following: 1. Prepare a Report for Congress on the Impact of Federal Mandatory Minimum Sentences - The last substantial report produced on mandatory sentencing is now nearly 20 years old. We recommend a fresh examination of these issues, including the impact of mandatory sentencing on public safety and racial disparity, and the utility of the federal "safety valve" sentencing provision. 2. Continue Recent Activity in the Area of Cocaine Sentencing Policy - The Commission should continue to play an active role in Congressional deliberations regarding changes in the penalty structure for crack and powder cocaine sentencing. 3. Prepare a Report for Congress on Alternatives to Incarceration - Building on evidence that alternatives are underutilized in the federal system, particularly for drug offenses, the Commission should examine options for expansion of alternatives and guidelines restrictions that need to be reconsidered. 4. Examine the Impact of Time Served in Prison on Crime, Costs, and Disparity - Between 1993 and 2006 time served in prison for federal offenses increased by 44%. The Commission should examine these changes to assess their value and cost regarding public safety outcomes. We hope you find these recommendations useful in your work, and we will keep you posted regarding the priorities established by the U.S. Sentencing Commission. -The Sentencing Project

Drug Warriors for Sensible Drug Policy

Some interesting comments from former drug czar Barry McCaffrey at Huffington Post:

Our traditional justice system has been inadequate to the task of breaking the cycle of substance abuse and crime. Four out of every five offenses are committed by someone with a drug or alcohol problem; and we just keep locking them up!

Given the abysmal outcomes of incarceration on addictive behavior, there's absolutely no justification for state governments to continue to waste tax dollars feeding a situation where generational recidivism is becoming the norm and parents, children and grandparents may find themselves locked up together.

And here's Robert Weiner, former spokesman at the drug czar's office, writing in the Baltimore Sun:

Why…is the Obama administration proposing to spend an even higher percentage of its anti-drug resources on law enforcement than the administration of George W. Bush?

Mr. Kerlikowske has said, "It is only through a balanced approach - combining tough but fair enforcement with robust prevention and treatment - that we will be successful in stemming both demand and supply of illegal drugs." Yet, in the 2010 budget, there is a 3.3 percent reduction in treatment and prevention initiatives since 2008, exacerbating the bias toward enforcement, which now represents 65.6 percent of the budget, even higher than the last administration's 62.3 percent.

So why are these prominent drug warriors now criticizing U.S. drug policy for its perpetual focus on enforcement and incarceration? The short answer is probably that they now work as consultants with clients in the drug treatment industry who love seeing editorials like these.

But I'd like to think that on some level they feel maybe just a little bit responsible for their role in filling our prisons with an unfathomable number of people who don't belong there.

Sentencing: Poll Finds Public Open to Probation, Diversion Instead of Hard Time for Drug Possession, Other Nonviolent Offenses

According to a newly released poll, more than one-quarter of the population believes that incarceration is never necessary for nonviolent drug possession offenders. The poll does not ask whether drug possessors should be left alone, placed on probation, or forced into treatment, but the response suggests that a significant proportion of the public is ready for the effective decriminalization, or at least depenalization, of drug possession -- and not just for marijuana.

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The poll was commissioned by the National Council on Crime and Delinquency and conducted in April by Zogby International. It examined public attitudes toward incarceration for nonviolent, non-serious offenders, which it defined as "those convicted of nonviolent, nonsexual crimes in which the value of lost property did not exceed $400."

Overall, the poll found that a majority of American adults believe some crimes for which offenders are currently incarcerated do not demand jail time, with 77% agreeing that the most appropriate sentence for such offenders is probation, restitution, community service and/or rehabilitative services. The same percentage believes that such alternatives to incarceration to do not decrease public safety, while more than half (55%) believe that alternatives to incarceration would save money for state and local governments.

Regarding drug possession, the poll asked: "Please tell me if you think it is always, usually, sometimes, rarely, or never necessary to incarcerate a person in prison or jail who has been convicted of possession or use of illegal drugs, with no intention to sell and not while driving."

More than two-thirds (68%) responded it was either only sometimes (41%) or never (27%) necessary to jail drug users. Only 15% thought jail was usually necessary, while another 15% thought it was always necessary. Broken down by political affiliation, independents (52%) were more likely than either Republicans (39%) or Democrats (35%) to feel that jail is only sometimes necessary in such cases.

Drug users came out ahead of petty property criminals, with 60% saying the latter offenders should never or only sometimes be jailed, as well as people who solicit prostitutes (48%) and probation or parole violators (40%). On the other hand, 86% thought it was never or only sometimes necessary to jail people convicted of loitering or disturbing the peace and 79% thought that about public drunks. (One has to wonder about the 5% who thought it was always necessary to jail loiterers or peace disturbers.)

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