Drug Law Blog

An Interview with Richard Lee on the Tax Cannabis 2010 California Ballot Initiative

2009-07-08T06:35:00-07:00

The proposed Regulate, Control and Tax Cannabis 2010 initiative for the 2010 California ballot has already received a significant level of press coverage. Here's a short interview with Richard Lee, who is the proponent of the initiative, the president of Oaksterdam University, and the founder of Oakland's Civil Liberties Alliance, which helped pass Oakland's Measure Z. I've added in a few links for context.

(Above: Richard Lee, author of the proposed 2010 ballot measure. Photo from the website of Oaksterdam University.)

DLB: I’ve been struck by how the momentum around reform on marijuana law seems to have taken on a different tone in the mainstream media in the last couple months, with even Governor Schwarzenegger saying that perhaps there needs to be a discussion on this issue. Do you have any thoughts about why that is?

Lee: It’s partly the economy and partly the turnover in population as the World Word II generation is replaced by Baby Boomers and people who have experience with cannabis. Because you have to remember, for all the World War II people, they were told that this is devil worship and they didn’t know any different. They didn’t know anything about it. But people who have grown up with it, it’s going to be a lot harder to convince them that it’s going to be the end of the world if this is legalized.

DLB: Yeah I guess there’s kind of a generational shift going on over time.

Lee: Exactly. And the other factor is that Mexico is having out of control prohibition violence down there, and it makes it easier to make the analogy to alcohol prohibition and the history of Al Capone. From an AK-47 to the Thompson sub-machine gun, it’s not too hard to put things together to see the similarities.

DLB: There was a decriminalization initiative that was proposed for the 2008 ballot, but it never qualified. Were you aware of that one at all, and did you read the text of it?

Lee: Jack Herer has floated one for a long time. It’s more of a total legalization measure. You know the difference between those things? Technically, we already have decriminalization in California. We’ve had it since the late ‘70s. A number of other states have already decriminalized, which means it just a small fine if it’s a small amount.

DLB: Your initiative, at least based on the text I’ve seen on the website, would go a little bit further in the sense that it also authorizes cultivation and possession of up to an ounce.

Lee: And it totally gets rid of the fine. Because in a decriminalized system it’s still illegal, it’s just not a jailable offense. Whereas our initiative would make it totally legal.

DLB: That 2008 measure didn’t really get too much leverage. Do you think with the text you’ve got now you’ve got better prospects for actually getting onto the ballot?

Lee: Well there’s a lot of money available now with all of the dispensaries and all of the people who have come out for legalization. So it’s not a matter of getting onto the ballot, it’s more a matter of crafting language that will win. It’s difficult, because it’s easy for the opposition to say “Well, what about this, what about that?” and it’s a lot easier to vote no than to vote yes.

DLB: I was intrigued by the limitation to 25 feet of cultivated space and I noticed that you also added provisions enhancing penalties for provision of cannabis to minors and things like that. Do you feel like those sorts of concessions can bring on people who are maybe not particularly interested in marijuana in general?

Lee: We’re focusing on the swing voters. Some of their major issues are personal cultivation and the problems with nuisance from the smell. Already with medical marijuana we’ve tried to address that. And another important point is to keep it away from kids.

DLB: Your website is called Tax Cannabis 2010. The language in the initiative authorizes taxes, but doesn’t actually propose any specific tax. What’s the idea there?

Lee: Right now it’s a local option initiative, so it would authorize “wet” and “dry” cities and counties basically. Cities that wanted to tax and regulate cannabis could do so, and those that don’t want to could continue to ban it. The history of alcohol regulation is similar, like in other states, like Texas where I come from, you have wet and dry counties. There’s a number of reasons for not putting in a specific tax. One is to keep the initiative simple. Another is to try to get around the federalism issue.

DLB: Let’s talk about federalism. In theory, this only implicates state-level or even county-level policies but obviously it could have implications in terms of federal supremacy. What do you do to counter the argument that this ultimately undermines federal power to control controlled substances?

Lee: That isn’t exactly how the court views the issue. It’s not whether it undermines the federal power, because states can – just as we’ve seen with medical marijuana – remove state penalties and whether or not that undermines the federal law isn’t really an issue. What is an issue is whether there is positive conflict. In other words, we can’t require that the state break federal law. We can remove penalties under state law. So in this initiative, leaving it up to localities makes it less likely that the federal government is going to go after each individual city, just like they chose not to, under the Bush administration, go after everyone that permitted medical marijuana.

DLB: On the most recent California ballot we had Proposition 5, the Nonviolent Offender Rehabilitation Act. It would have kept nonviolent drug offenders out of jail and prisons. That initiative didn’t go over as well as I’d hoped it would. Do you take any lessons away from the defeat of Prop. 5?

Lee: Keep it simple. One of the problems with Prop. 5 was that a lot of people, even reformers, couldn’t understand it. We’re also thinking about re-writing the language of our initiative to make it more along the lines of the Ammiano bill, AB 390. That would definitely be more of a conflict with federal law, but some people are saying we should fight that battle when we get there. With everything else going on, it’s hard to know if the federal government will even contest it.

On "Growing Your Own" - Is That Really the Important Battle?

2009-07-02T06:34:03-07:00

Pete of Drug WarRant referred yesterday to a post from NORML arguing that any proposals around marijuana legalization must include provisions to allow people to grow their own marijuana, and that "those of us who lobby on this issue must insist on amendments to permit personal cultivation."

I disagree.

A law permitting personal cultivation of marijuana is no more important than a law permitting personal production of cough syrup or beer. It has nothing to do with the reason that I, at any rate, want to see progressive drug law reform. I'll repeat myself and point out that "we shouldn't necessarily spend a lot of time crafting arguments that will only appeal to [our allies], or be interested only in changes that will satisfy the most hard-core partisans."

Why does drug policy reform matter?

It matters, in the sense that can actually resonate with democratic majorities, because criminal law around drugs is severely damaging our society by encouraging massive overincarceration and creating vast, violent black markets around drugs. Any legal reform that reduces those harms by moving toward a legal, regulated market would be an outstanding step forward.

I don't care how tightly regulated regulate the market is as long as the controls are primarily civil rather than criminal. I don't care if you can "grow your own" as long as somebody is allowed to grow it for you, legally, and sell it to you legally, and you are permitted to use it legally, as an adult. I don't even care if the market that results from that system is somewhat exploitative and doesn't entirely eradicate some percentage of black market trafficking, because -- guess what -- that's capitalism. The same system is already in place around cigarettes and alcohol. It's not perfect. But it's a hell of lot better than pretending to "control" a market primarily through the use of criminal law. Marijuana partisans should recognize this if their goal is to get legislation passed and not simply to spend time thinking about utopian alternatives to the status quo.

We Stopped Afghan Eradication. So What About Our Domestic Eradication Programs?

2009-07-01T06:33:01-07:00

Now that we've admitted that opium eradication in Afghanistan was simply a massive "waste of money," shouldn't the next logical step be to take a look at the eradication campaigns we have going on right here on our own soil?

(Above: Opium eradication. Photo by David Guttenfelder, Associated Press, from the website of the Seattle Times. Below: CAMP marijuana eradication.)

What about California's CAMP program to "eradicate" marijuana, for example? While law enforcement gets to toot its own horn regarding the quantities of marijuana seized each year, many of the criticisms that can be leveled against the Afghan eradication program apply just as strongly to this domestic attempt to disrupt marijuana cultivation.

This campaign enriches the very people we're ostensibly trying to combat -- drug dealers -- just like the Afghan eradication campaign "helped the Taliban" under a misguided attempt to combat the Taliban.This happens because -- shock! -- reducing the supply of something simply causes a corresponding increase in its price, and the drug producers therefore get to pocket more money than they would in the absence of such intervention.

This campaign is also like the failed Afghan program in that it ultimately doesn't do very much to prevent consumers from obtaining the drug it targets. In Afghanistan, heroin production reached a record high in 2006 in spite of eradication efforts. In the case of marijuana, as the media has documented over and over again, outdoor eradication has simply driven cultivators indoors. Presumably that's why the annual Monitoring the Future study of youth drug use continues to show 80-90% of 12th graders saying that marijuana is "easy to get," year after year, no matter how dramatic the headlines may be about CAMP program "success."

(Above: Perceptions of marijuana availability among youth over time. Source: Monitoring the Future, 2008 Overview, p. 13.)

Finally, the CAMP program is absurd on its own terms here in California where the state is unable to pay its creditors and desperately needs new revenue. When we're slashing funding for schools and low income people, it's an extraordinary shame to see more than $6 billion dollars in marijuana being destroyed (along with its potential to be taxed and regulated) year after year.

Eradication didn't work in Afghanistan. Maybe it's time to realize that it's a bad policy for California, too.

FDA Weighs Pulling Nyquil off Shelves to Address Acetaminophen Overdose

2009-06-30T06:33:37-07:00

The Wall Street Journal's Health Blog notes that the FDA is mulling whether to pull Nyquil off the pharmacy shelf to address the problem of acetaminophen overdose. Acetaminophen (which is called paracetamol by folks in other countries) can cause liver failure in high doses, something that the public still apparently has not grasped. The FDA "cites one study that suggested acetaminophen overdoses were associated with 56,000 emergency room visits, 26,000 hospitalizations, and 458 deaths per year in the U.S. during the 1990s."

Call me crazy, but if the problem is acetaminophen overdose, maybe the first product to take off the shelf should be Tylenol, not Nyquil. Tylenol is just straight acetaminophen, rather than a syrupy blend of various substances that's found in Nyquil.

Frat Kid Convicted of Running Cocaine Ring Gets Probation

2009-06-29T11:10:06-07:00

Some folks get 55 years in prison for dealing marijuana, and some folks run a cocaine ring out of their frat house and end up getting probation because they were merely "naive."

Nothing to see here. Move along.

On Sweden's Drug Policy

2009-06-29T09:25:04-07:00

Another in a series of very interesting short films from the Hungarian Civil Liberties Union, this one looking at the drug policy of Sweden, which is regarding by the UNODC as a "successful" model of drug control.

This video is amazing for featuring such a thoughtful back-and-forth discussion about the pros and cons of drug prohibition. This is yet an another point of reference revealing the incredibly impoverished discourse we have around these issues in this country, where folks like Drug Czar Gil Kerlikowske entirely dodge attempts to have a substantive debate.

U.S. to Scrap Afghan Opium Eradication: "A Waste of Money"

2009-06-27T06:49:50-07:00

Via the NYT:

TRIESTE, Italy (AP) -- The United States has announced a new drug policy for opium-rich Afghanistan, saying it was phasing out funding for eradication programs while significantly increasing its funding for alternate crop and drug interdiction efforts.

The U.S. envoy for Afghanistan, Richard Holbrooke, told The Associated Press on Saturday that eradication programs weren't working and were only driving farmers into the hands of the Taliban.

''Eradication is a waste of money,'' Holbrooke said on the sidelines of a Group of Eight foreign ministers' meeting on Afghanistan, during which he briefed regional representatives on the new policy

Holbrooke has been critical of Afghan eradication efforts for years. IN 2006, he wrote an op-ed piece for the Washington Post in which he noted, in funding eradication,

the United States spent more than the entire national budget of Afghanistan to accomplish essentially nothing! Yet the failed drug policy is continuing without significant change.

Prescription Drugs a Factor in Jackson Death?

2009-06-26T14:59:24-07:00

The NYT raises that concern, but doesn't give any details. The Times (UK) reports the following:

The list of prescription drugs that Michael Jackson was reported to have taken includes drugs from three main chemical classes. Those most frequently referred to are the anti-depressant sertraline, known as Zoloft in the US and Lustral in Britain, the Valium-like tranquilliser alprazolam (Xanax) and the morphine-like painkiller pethidine (Demerol).

It is reported that Jackson collapsed shortly after an injection of Demerol, presumably administered by a doctor or nurse. The timescale is not clear, but the limited interval between the injection and his collapse suggests that the two may have been linked.

All tranquillisers and morphine-like painkillers are known to affect patients’ breathing patterns, especially if taken in excessive doses. Doctors know that the large single doses of opiates and sedatives given to patients in their final hours to relieve pain could shorten their lives by depressing their respiratory efforts.

Kids These Days versus SCOTUS: The High Court's Jurisprudence Around Drugs is Looking a Little Out of Touch

2009-06-26T06:45:32-07:00

Back in June of 2007, when the Supreme Court decided the "Bong Hits 4 Jesus" case (Morse v. Frederick), I noted that the Court's use of the term "illegal drug use" did not seem sensitive to the complex realities of the way "legal" over-the-counter and prescription drugs are used these days by young people for recreational purposes.

In Morse, remember, the Court literally carved an exception into the First Amendment for schools' regulation of student speech if the content of that speech was such that "a reasonable observer would interpret [it] as advocating illegal drug use." One might have thought that the Court would try to think about how such a rule would work in practice, given the well documented trend toward consumption of "legal" drugs like dextromethorphan -- a drug that young people use more than they use methamphetamine. But no.

Yesterday, the HIgh Court delivered still another "drug"-related decision, this one in Safford v. Redding, and once again the Supremes failed to show any awareness of the reality that the distinction between "legal" and "illegal" drugs is not quite as simple as it was once upon a time.

In Safford, Justice Souter wrote that it violated the Fourth Amendment for school officials to strip search a student on the basis of a suspicion that she possessed ibuprofen and an an anti-inflammatory drug called naproxen, both of which are available OTC. Though it's not entirely clear how much difference it made, Safford explicitly cites "the nature and limited threat of the specific drugs [the school official] was searching for" in concluding that a strip search was unreasonable. Justice Thomas' dissent, in fact, notes that "had the suspected infraction involved a street drug, the majority implies that it would have approved the scope of the search."

Like Morse, Safford creates a broad rule that might make sense in the context of the specific drugs that were at issue in the underlying case but could be a poor fit for dealing with situations where the boundary between "legal" and "illegal" drug use is less obvious. If a student were suspected of carrying pseudoephedrine, for example, how would school officials parse the "nature" and "threat" of that drug? And what about dextromethorphan or diphenhydramine, both of which are OTC drugs that can provide legal but dangerous highs?

The High Court's apparent obliviousness to this issue stands in sharp contrast to other action at the federal level. New drug Czar Gil Kerlikowske, for example, noted in May that tackling pharma abuse will be "one of his top priorities." The Senate has held a number of hearings on the rise of pharma and OTC abuse by young people. The ONDCP has also called attention to this issue, issuing (among other things) a 2007 report called Teens and Prescription Drugs: An Analysis of Recent Trneds on the Emerging Drug Threat. Between this growing chorus of concern and the High Court's analysis of drug issues there is a significant gap.

The sole sign of awareness on the High Court appears to be Justice Breyer, who noted in his concurrence in Morse that

Illegal drugs, after all, are not the only illegal substances. What about encouraging the underage consumption of alcohol? Moreover, it is unclear how far the Court’s rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain?

As somebody who is on the defense side of the legal game, I don't mind that the Supreme Court isn't looking more closely at these issues, because any more nuanced rules will almost certainly be used simply to further erode Fourth and First Amendment rights. But at some point the jurisprudence in this area probably ought to begin reflecting the more complex realities of contemporary drug use.

A Big Day at SCOTUS: Wins in Safford v. Redding and Melendez-Diaz v. Massachusetts

2009-06-25T09:19:31-07:00

The U.S. Supreme Court today held that school officials violated the Fourth Amendment when they strip-searched a 13-year-old student based purely on the uncorroborated allegation that she possessed ibuprofen and an over-the-counter anti-inflammatory drug. That case is Safford United School District v. Redding, the opinion by Justice Souter.

(Above: The possibility that a student is hiding the OTC anti-inflammatory drug naproxen in her underwear does not justify a strip search, according to the Supreme Court in Safford v. Redding. If that same student may be hiding marijuana, though, the outcome is likely to be different, as Justice Thomas notes in his dissent.)

Justice Souter writes:

Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil,or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantitiesthat will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “stu-dents . . . hid[e] contraband in or under their clothing,” Reply Brief for Petitioners 8, and cite a smattering ofcases of students with contraband in their underwear, id., at 8–9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

Justice Thomas, dissenting from the finding that no Fourth Amendment violation occurred, writes:

The majority has placed school officials in [an] “impossible spot” by questioning whether possession of Ibuprofen and Naproxen causes a severe enough threat to warrant investigation. Had the suspected infraction involved a street drug, the majority implies that it would have ap-proved the scope of the search. See ante, at 9 (relying on the “limited threat of the specific drugs he was searching for”); ante, at 10 (relying on the limited “power of the drugs” involved). In effect, then, the majority has replaced a school rule that draws no distinction among drugs with a new one that does. As a result, a full search of a student’s person for prohibited drugs will be permitted only if the Court agrees that the drug in question was sufficiently dangerous. Such a test is unworkable and unsound. School officials cannot be expected to halt searches based on the possibility that a court might later find that the particular infraction at issue is not severe enough to warrant an intrusive investigation.

Additionally, the Court held that a criminal defendant's right to confrontation was violated by the use of a lab report establishing that a substance was cocaine where the lab analyst who actually performed the report was not available to testify. That case is Melendez-Dias v. Massachusetts, the opinion by Justice Scalia.

More background on Safford v. Redding is here.

A Call for "A Conversation About the War on Drugs" From Solano County

2009-06-25T06:39:33-07:00

Solano County Supervisor Barbara Kondylis is quoted today as follows in an article about Solano County's plans to begin issuing medical marijuana ID cards:

"This is too long in coming. (Marijuana) does nothing compared to the harm alcohol causes. It's time in this country we start having a conversation about the war on drugs."

(Above: Solano County Supervisor Barbara Kondylis. Photo from the website of Solano County.)

UNODC: Stop Arresting Users

2009-06-25T06:20:32-07:00

Wait a second, did the United Nations Office on Drugs and Crime really suggest a decriminalized approach to drugs in its World Drug Report 2009 (pdf), which it released this week? Some of the blogosphere chatter suggests as much. See, e.g., "UN Backs Drug Decriminalization in Drug Report," "UN Backs Off Hard Line on Drug Crimes."

(Above: The United Nations Office on Drugs and Crime 2009 World Drug Report, which both acknowledges the debate around prohibition and suggests that some steps in that direction may be appropriate.)

What these posts are referring to is the report's discussion of Portugal's mostly decriminalized approach to personal use of drugs. (See p. 168.) The report acknowledges that Portugal's approach has been fairly successful and "has reportedly not led to an increase in drug tourism. It also appears that a number of drug-related problems have decreased." (P. 168, footnotes omitted.)

More strikingly, however, and missing from these blogosphere assessments is the fact that the report also explicitly suggests that arresting drug users is not an effective use of resources, comparing such arrests to "pulling weeds." (P. 170.)

Under the heading Stop Jailing Petty Offenders, the report states

In the end, the criminal justice system is a very blunt instrument for dealing with drug markets. As necessary as the deterrent threat remains, the arrest, prosecution, and incarceration of individuals is an extremely slow, expensive, and labour intensive process.

. . .

If the primary performance indicator of the police is volumes of arrests and seizures, little thought will be given to the impact of these arrests and seizures. Not surprisingly, these arrests and seizures are unlikely to have much positive impact.

. . .

Resources that could have been focused on these individuals are often wasted on the opportunistic arrest and incarceration of large volumes of petty offenders. In the case of casual users, the sanction of imprisonment is excessive.

(Pp. 166-167.)

This is remarkable, forward-looking stuff, and it throws into sharp relief the kind of willfully unsophisticated, "not-in-my-vocabulary" response to the decriminalization discourse that we're unfortunately still hearing from the United States.

Kerlikowske Sticks to the "Not in My Vocabulary" Script

2009-06-25T05:54:56-07:00

Here's an exchange between LEAP's Tom Angell and U.S. Drug Czar Gil Kerlikowske at yesterday's press conference releated to the release of the UNODC World Drug report. It's odd that Kerlikowske keeps repeating this vaguelly Orwellian "not in my vocabulary" remark, given how clunky it is and given the fact that, as Angell notes, major players in the drug policy arena are now acknowledging that the discussion around legalization is a serious discourse that responds to the serious flaws of prohibition. Kerlikowske previously invoked this "not in my vocabulary" line back in a May radio interview, but at the time it seemed safe to assume that he was just speaking off the cuff. The more he repeats the line, however, the more it begins to appear that the ONDCP's approach to this evolving discourse is just to pretend that it doesn't exist.

Let's hope both that the questions keep coming and that, at some point, the ONDCP comes up with a more coherent and thoughtful response.

Ford Pintos, Computer Mice, and Prison Rape: Redefining "Ordinary," and Re-Thinking Drug Prohibition

2009-06-24T09:55:21-07:00

No Ordinary Car

Advocates of policy reform face the task of persuading the public that a seemingly ordinary thing is actually not ordinary at all.

This task can be a bit like a problem faced in the automotive world of the 20th century, when people had to be taught that sometimes a car is not just a car: sometimes it's a Ford Pinto.

(Above: The 1979 Ford Pinto. Photo from HowStuffWorks.com. Below: A Pinto explodes into flame after being rear-ended. Still from a video available on YouTube.)

The Pinto looked pretty much like other subcompact cars of the 1970s. But it was different in an important way. As the public eventually learned, it was extremely unsafe.

The Pinto's gas tank was easily punctured in a rear-end collision, creating a risk of fire. Not only that: Ford knew the Pinto was poorly designed. It simply made a cost-benefit decision to pay damages in lawsuits rather than shell out the $11 per car it would have cost to make the Pinto safer.

An 1977 article by Mother Jones magazine, which exposed this callous reasoning, helped lead to a recall.

Today, we have a policy called the War on Drugs that looks and sounds a lot like other government programs. But as readers of this blog know, this policy is also different than other policies in critical ways.

The War on Drugs is not just any car on the road. It's the Ford Pinto of public policies.

(By the way, if you don't agree with that claim or don't understand why anybody would make it, a short, simple argument is here.)

The challenge for advocates, then, is in persuading the American public that something they see every day, something that's extremely "ordinary" in many ways, is actually extraordinary.

The challenge is in helping people to see a dramatic issue as a dramatic issue, one crying out for the solution of policy reform, and not simply as the humdrum backdrop of life.

How do we that?

Better Mousetraps

Look at the question from a different angle. What does a paradigm-shifting idea look like before the paradigm has shifted?

In 1968, a man named Douglas Engelbart invented the "mouse"-type controller for computers. Eventually, the invention of this device had a massive impact on computing, facilitating the rise of graphical user interfaces as a quicker, more intuitive alternative to "command line" interfaces. The graphical user interface, however, did not really come into being, even in the laboratory context, until the early 1970s, end Engelbart never received any royalties for his invention.

(Above: The first "mouse." Photo from Wikipedia. Below: the Macintosh 128K, the first widely adopted computer to use a mouse and graphical user interface.)

The mouse, then, was initially a solution in search of a problem. It was a device that allowed for a more sophisticated, gestural mode of interacting with a computer. But it was radically ahead of its time, created long before computers became a mainstream consumer item that could really benefit from this sort of interface.

It wasn't until the release of the Macintosh and Amiga in the mid 1980s that mainstream consumers could appreciate graphical user interfaces and develop a real need for the mouse. Apple worked hard at making its GUI something that made sense from a user's point of view. Once that happened, the "mouse" suddenly became a better mousetrap for ordinary consumers, and the "ordinary" way of computing using command lines became something that was left mostly to the tech-savvy.

Beyond Right and Left

A final example, from the policy world, suggests one way this kind of dramatic and surprising redefinition of "ordinary" behavior can happen legislatively. In 2003, seemingly out of nowhere, the federal government passed a law called the Prison Rape Elimination Act. This was a law passed by a Republican Congress and signed by a Republican president, but it was the first ever federal attempt to deal with an issue that was typically ignored, trivialized, or even mocked by the mainstream public. This week, six years later, the federal Prison Rape Elimination Commission finally released a report documenting the extensive problem with sexual abuse in prison.

Prison rape had been another "Ford Pinto"-type problem: a disaster that was taking place every day, but one that hadn't been dramatized in the public mind as something that actually impacted regular people and needed to be stopped.

(Above: Pat Nolan (at left), with Rep. Frank Wolf (R-Va.), one of the sponsors of the Prison Rape Elimination Act of 2003. Below: The writer and advocate T.J. Parsell, who was himself a victim of sexual assault in prison, testifies before Congress in 2005.)

Prisoners' rights advocates had been fighting for decades to get some traction around prison rape, without much success. Why, then, did 2003 see such a significant leap forward?

The answer had to do with an extraordinary alliance of progressives, rape survivors, and the Christian right.

Progressives did a lot of the organizing and generated much of the scholarly work documenting the nature of the problem. Two years before PREA was passed, for example, Human Rights Watch released a book-length study of the problem. The organization that I worked with, now known as Just Detention International, also did a lot of work creating fact sheets and talking points, and reaching out to encourage individual victims to share their stories. Those "survivor stories," as we called them, were truly wrenching and affecting. It was impossible to hear one and not realize what an awful thing it was to allow sexual abuse in custody to be ignored.

But the surprising part of the coalition were the people from the conservative side of the aisle.

These were people like former Watergate figure and Prison Fellowship Ministries leader Chuck Colson, who had done time in federal prison. They were people like Pat Nolan and Michael Horowitz. These individuals had pull with the President and with conservative legislators, turning what might otherwise have been a purely "left" issue into one that legislators on both sides of the aisle could embrace.

Instead of a debate about a the needs of prisoners, the fight for PREA became about our own morality as a society. Some people saw that moral question in terms of "human rights," while others viewed it through the prism of religious thought, but it was a concern that proved compelling in a way that escaped partisan categorization.

Lessons for Re-Thinking the Drug War

These examples suggest a couple basic notions that may be helpful in reconceptualizing the drug war.

First of all, people will embrace an idea if it serves their needs, not because it's "smart."

An idea has to respond to perceived needs in order to mean something. Smart and useful suggestions will go unadopted for decades if it has not been made clear to the public why they are smart and useful.

This is a challenging point for drug policy reform. People typically feel the need to be safe much more acutely than they feel the "need" to be fair or just or even rational. People are also somewhat unsympathetic to drug criminals because the criminals have chosen to break the law and bear some of the responsibility for their own fate. On the other hand, the example of the Prison Rape Elimination Act illustrates that moral arguments about the behavior of the majority can be quite compelling, and can overcome some of these sentiments. We've also seen examples of this phenomenon in the debate over torture, where advocates have successfully framed the issue as a question about our own values as a society.

Critically, however, people are rarely going to be persuaded of anything by an advocate's claim that an existing practice is "stupid," or a claim that the people behind that practice are malign or idiotic. People can be persuaded by the prospect of improvement, but it has to be an actual improvement for them, based on their values -- not based on the values of a the person making the argument.

Second, people adopt a new idea more readily when the idea is presented in a way that is sensitive to human psychology.

Something about that $11-per-car cost in the Pinto story particularly galled people, because it seemed like such an exceedingly low price to put on human life. Even if the Pinto was an "ordinary" car, this story about the car was astounding because it revealed that a simple change could have made an enormous difference in people's lives.

In an similar way, the mouse, in conjunction with the thoughtful design of the Macintosh user interface, resonated with users by showing that a small change could completely transform the computing experience. Once the mouse and the GUI became viable, regular people suddenly felt empowered to embrace a world of computing that had previously seemed forbidding.

Prison rape is more like drug policy in that it is not a "simple" problem, and there is not a simple solution. But the problem of sexual violence in prison was made more accessible by telling individual stories and by pointing to specific reforms that jails and prisons could implement to make things safer.

In the drug policy arena, we tend to throw around tons of statistics and acronyms, and we tend to assume that the wisdom of our arguments is obvious. For most ordinary people, this is unpersuasive at best, and may even be rather off-putting. If we're selling an idea, we do in fact need to be selling it, using every persuasive tool at our disposal, not simply shouting at people or hurling insults at the forces we consider to be our opposition.

Finally, the choir is not the relevant audience.

The last lesson is simply that the people with whom we already agree don't need any encouragement to continue to be our allies. We shouldn't necessarily spend a lot of time crafting arguments that will only appeal to these people, or be interested only in changes that will satisfy the most hard-core partisans.

The people we need to reach are the reasonable folks who currently disagree with us, or who agree in the abstract but feel that an end to prohibition is somehow practically impossible. These people are like the conservatives who were not previously engaged in the discussion over prison rape. They are like the potential customers for personal computers who figured that computing was just too technical before the GUI and the mouse became the norm.

For these folks, prohibition is still an "ordinary" issue that isn't worth a second thought. It's not an extraordinary problem crying out for change.

One of the groups that I think has a lot of potential to be won over is law enforcement. These are the men and women who put their lives on the line trying to uphold the rules of our society, and they are acutely aware of the pernicious effect of the black market in drugs in our communities.

If more members of law enforcement can be encouraged to take the next logical step, and acknowledge that black market economies are a function of prohibition, these men and women could become extremely powerful allies in the fight for change. I recognize that there are potentially economic and professional pressures that would cut against such participation, but I also believe that most of the people who uphold the law for a living do so because they think those laws are basically reasonable and fair. They do what they do, in other words, because they think it is right. The growing prominence of Law Enforcement Against Prohibition (LEAP), a group that advocates for reform in spite of the potential for controversy, speaks to this essential ethical foundation.

We can help grow the constituency of folks who were previously our opponents. We can do this by explaining the extraordinary harms of prohibition for all members of society and encouraging a move toward the alternatives of regulated markets. But the argument has to be clear, simple and persuasive enough to cut through the fog of "ordinary" policy chatter, and that's a challenging task even for advocates dealing with the most compelling issues.

We can do it, but we have to remember who we are speaking to, and what it is we're trying to accomplish when we open our mouths.

Ex-Wilco Member Bennett Died From Fentanyl Overdose

2009-06-24T07:19:49-07:00

Another story with no legal hook! But I've written a lot about fentanyl, I'm a big Wilco fan, and it is sad that this happened.

Former Wilco member Jay Bennett died of an overdose of a painkiller, the Champaign County coroner said Tuesday, and his office is investigating Bennett's death as an accident.

Tests showed Bennett died from fentanyl, a drug often prescribed to treat chronic pain, said the coroner, Duane Northrup. Bennett, who died May 24 at his home in Urbana, had posted a few weeks earlier on his MySpace site that he would need hip-replacement surgery.

Here's a video from the Being There-era version of the band, when Jay was still involved. This was never exactly my favorite tune, but it's got some good footage of Jay noodling on the keys and, of course, it features the important line "take the guitar player for a ride/ he ain't never been satisfied."