Drugs: The Legalization Debate

[jmm99]

One brief set of comments and I'm gone. Re: the following comments:

Sergeant T
Thirty years ago search and seizure was relatively straightforward. Now it's a complex, nuanced maze that changes on an almost daily basis.

Uboat509
I would say that this is more of a consequence of the combination of unscrupulous lawyers combined with judges who want to legislate from the bench with a helping of liberal white guilt thrown in.

Unless Sergeant T speaks from a personal experience of 30 years past different from mine, the search & seizure situation in the period (say) 1968-1978 was far from "straightforward".

Nor, was it any more "straightforward" during Prohibition when S&S cases also multiplied. That era was prior to my life experience (snide comments are OK ); but, I studied those cases to handle S&S cases in the 70's and 80's - hat tip to the old judge who suggested I would find gold in those old cases of the 20's.

Uboat509's comment is worthy of BillO on Fox and goes as far to solve the real problem - which is nowhere. Since I am not burdened with a "helping of liberal white guilt", I will continue.

S&S law, in the vast majority of cases, is made by prosecutors and public defenders, who are not "unscrupulous". Some of them (metrics not anecdotes here would be helpful, Uboat509, if you wish to prove your case) may be "unscrupulous".

Those who are that, primarily are that by forgetting their primary duty is to support the Constitution; and the next, which is to preserve the integrity of the judicial system (the oath we all take as officers of the courts). Those who do that become mercenaries - whether they do that for love of money or love of cause.

So, my experience (albeit a limited sampling) has been that prosecutors and public defenders are not "unscrupulous"; nor are most privately-retained defense counsel (some are, within my definition).

As to "judicial legislation", get real. Both liberal and conservative jurists legislate - both with abandon - and have done so since the founding of our Republic. After 40 years in this "racket" (as some would call it), my conclusion is that judges should be screaming moderates. Not that I belong to that part of the political spectrum, but because screaming moderates will do less harm in the long run.

So, what is the real problem in S&S ? The elephant in the room is the simple fact that the product of the S&S - the real evidence - is generally credible and trustworthy (plants we can handle and are a separate issue). A .38 in a jacket pocket speaks for itself.

So, what justifications are presented for the exclusion of credible real evidence where the constable has blundered. Two are primary:

1. Exclusion serves as a general deterrent to future unconstitutional conduct by other constables in the future. That argument has never impressed me; but experienced cops would be in a better position than I to say how court decisions have changed them into more "constitutional citizens".

2. Integrity of the judicial system. The constables are a very essential part of that system. So, when the constable's blunder goes beyond a mere blunder, something has to be done. Obviously, that involves balancing - one of my reasons for preferring screaming moderates as judges.

What has happened in S&S cases from roughly 1960 is a concentration on Constitutional capillaries. Once a "constiutional violation" is found, the automatic remedy is exclusion of the evidence - no balancing of interests occur. The SCOTUS Florida case, IMO, is a good example where no damage to judicial integrity was involved.

I could ramble on (my "senior thesis" at Mich Law ended up several hundred pages long, calling for abolition of the exclusionary rule, except in limited special circumstances - fat chance that was going to be published by Mich Law Review ).

Bob's World - wearing your other hat as a DA, am I somewhat on target - or full of crap.

PS: Uboat509 - hat tip on including the swim test flap in another thread.

[Uboat509]

Those who are that, primarily are that by forgetting their primary duty is to support the Constitution; and the next, which is to preserve the integrity of the judicial system (the oath we all take as officers of the courts). Those who do that become mercenaries - whether they do that for love of money or love of cause.

These are the ones to whom I was referring. I did not intend suggest that all lawyers are unscrupulous, just just the really good criminal attorneys. Seriously though, it seems like it only takes a few of them to dig and find all the loopholes to twist the law back on itself and confuse the system, never mind the jury.

As to "judicial legislation", get real. Both liberal and conservative jurists legislate - both with abandon - and have done so since the founding of our Republic. After 40 years in this "racket" (as some would call it), my conclusion is that judges should be screaming moderates. Not that I belong to that part of the political spectrum, but because screaming moderates will do less harm in the long run.

Just because it has been going on for a long time doesn't make it not a bad thing. Ideally judges shouldn't even be moderates, they should be apolitical but of course that runs more or less counter to human nature so moderates are fine as far as that goes. Now as far as conservatives legislating from the bench, I'll have to defer to your many decades of experience on that. I haven't really seen it but I am no more in favor of that than liberals doing the same. I dislike the concept of legislation from the bench no matter what the political stripe.

SFC W

[AmericanPride]

I think part of the difficulty in this question is first answering: in regards to legalization, how do we measure the "national interest"? What is in the "national interest" as far as this subject is concerned? Who measures the "national interest" and legalization/prohibition affects it?

[Bob's World]

80 percent of felony drug cases that I had scheduled for trial were what us prosecutors called "a long plea." We would begin by responding to a motion to suppress the evidence, and if we won the motion, the defendant would plea. If we lost, well, we'd have to drop the case.

I talked to a lot of frustrated cops, and we put tremendous pressure on these guys to not only be in harms way, often alone, in a bad neighborhood late at night; but to also understand and employ a sophisticated understanding of how to make a proper stop, search, siezure, and arrest. My hat's off to every one of them.

Most cases that did not survive the motion were not based on officer error, or attorney error, but by how the judge chose to interpret the large grey area. Getting the right judge was key, and defense attorney's have much greater flexibility in getting set overs if they draw the "wrong" judge. A defense attorney claims a key witness has a medical appointment, no problem, come back in two weeks. A prosecutor has a key witness who just came off a 36 hour shift and is at the hospital getting stitches because some meth head resisted arrest. Case dismissed. Its not fair, but it is what it is.

[Ken White]

...A defense attorney claims a key witness has a medical appointment, no problem, come back in two weeks. A prosecutor has a key witness who just came off a 36 hour shift and is at the hospital getting stitches because some meth head resisted arrest. Case dismissed. Its not fair, but it is what it is.

sons who are Cops, one on each coast. Both have said much the same. Too many judges will tie the DepDA's hands while offering the Defense pretty much a free ride. Both of 'em have a lot of respect for prosecutors who are severely constrained by the system. Plenty of frustration for everyone in that system at this time...

[Sergeant T]

Courtesy of USA Today. From the "I'm with the Government and I'm here to help" files. Would someone refresh my memory as to why marijuana is a Schedule 1 drug?

Canadian farmers 20 miles north of his Osnabrock farm do a brisk business selling their hemp to Detroit carmakers who use it inside door panels and for insulation in seats, he says. Monson says the hemp has no value as a drug because it has a low concentration of THC, the ingredient in marijuana that causes a high.

Hemp fibers, oil and seed can be imported from Canada, Europe and Asia and used to manufacture products in the USA, but growing hemp in the USA is illegal, the U.S. Drug Enforcement Administration says. "The level of THC in the plant doesn't matter. If there's any THC in the plant, it's illegal," DEA spokesman Garrison Courtney says. "To get those pieces of stalk that are legal, you have to grow a marijuana plant."

[davidbfpo]

A panel of experts and ex-dignitaries have issued a report:

The Global Commission on Drug Policy report calls for the legalisation of some drugs and an end to the criminalisation of drug users.

"Political leaders and public figures should have the courage to articulate publicly what many of them acknowledge privately: that the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won"....

...Instead of punishing users who the report says "do no harm to others," the commission argues that governments should end criminalisation of drug use, experiment with legal models that would undermine organised crime syndicates and offer health and treatment services for drug-users.

It calls for drug policies based on methods empirically proven to reduce crime and promote economic and social development.

Link to BBC report:http://www.bbc.co.uk/news/world-us-canada-13624303

Curiously the BBC story has a photo of a field of poppies in Afghanistan and in the background a right-hand drive military vehicle, which looks like a Land Rover and UK military aboard. Why curious? It is the first time I've seen that image on BBC News; normally it is an issue preferably out of sight.

[davidbfpo]

I admit not to watching the series, but the article's title did get my attention, in full: 'The nonsense of a 'War on Drugs': The Wire's writers get it, governments consistently don't'.

Within the article are some promising links on reputable studies into the issues and the script writers remarked:

[The US government's war on drugs is] nothing more or less than a war on our underclass, succeeding only in transforming our democracy into the jailingest nation on the planet.

Link:http://blogs.telegraph.co.uk/news/to...istently-dont/

[carl]

The problem in the US is that the politics of the drug business are rock solid stable. The politicians and most of the electorate get to preen with moral superiority because we are tough on drugs. The drug warriors get plenty of money and something interesting to do. The drug users get access to drugs and the monetary cost is low. Drug users with political and social influence don't have to worry about their drug use embarrassing them or inconveniencing them (except for occasional sacrificial lambs like Robert Downey Jr., when was the last time a star went up or for that matter, when was the last time a CEO or State Supreme Court justice went up). Drug traffickers get rich. The underclass have to live in bad neighborhoods but so many of them are hoods or related to hoods there isn't that much interest in changing things. There is even a political constituency built around prisons that would be upset if the number of prisons were reduced. Everybody is pretty happy.

This is a stable and practical system that has existed for decades and there is no domestic reason for it to change. The only way change will come is from without. If it does come it will come I am guessing from Mexico. What would shake things up is if the Mexicans legalized drugs or drug transhipment and export. That would cause a stir. Otherwise nothing will change.

[ganulv]

Frontline has a good gateway to Drug War-related content.

Just my opinion, but I don’t see there to be any unproblematic plausible outcomes in relation to drug trade-related policy, only less worse possible outcomes. Americans like to think things can be put right—either the Drug War is going to create a world without drugs or legalization is going to eliminate all recreational drug-associated suffering. What did Voltaire say? “The perfect is the enemy of the less worse” or something like that?

[motorfirebox]

Responding to an older post because it largely sums up the anti-legalization argument (such as it exists outside the Federal government and local law enforcement).

Conversely, I doubt that an abundance of legally available marijuana is going to make much difference in dealing with harder drugs and unless I have been misinformed, hard drugs are where the narco-terrorists make their money.

Mexican cartels take significantly more than half of their income from marijuana.

I would be very surprised if many of those who do seek treatment do so to avoid jail. If you legalize these drugs and remove that motivator, how many fewer will seek help?

I'm assuming you mean you wouldn't be very surprised. Whether or not one chooses to seek help is up to that person, unless that person does something under (or otherwise due to) the influence that gets them hauled in front of a judge. And I think that's how it should be, for alcohol and for any other substance. The common mythology is that alcohol is pretty mild, in terms of abusable substances, but there is mounting evidence that it belongs with cocaine and heroin in the category of hard drugs. Which begs the question, if we as a society can deal with alcohol addiction without resorting to prohibition, why can't we do so with other drugs? Even harder drugs?

More importantly, how does the damage that might be caused by legalization stack up to the damage caused by the war on drugs?

Again, legalization of marijuana is one thing, legalization of other drugs is another thing altogether. I did post a link in an earlier post about marijuana users in federal prison and the total of marijuana users in prison for possession only as of, I believe 2005, was something like 63 individuals. The federal government doesn’t like marijuana use but I don’t think that they go after ordinary users all that much.

That's something of a moot point given the horrific levels of violence brought against pot dealers and suspected pot dealers. Sure, if you have a joint in your pocket you probably won't go to jail--but if you have a handful, or if they think you have a handful, they'll kill you and/or your dog without trial.

One of the biggest problems that I can see with this is that two of the biggest proponents of legalization tend to be the users, who often aren’t the best spokespeople for their cause and often don’t see past the fact that they want drugs to be legal, and the big L libertarians who believe that market pressures can fix pretty much any problem.

I don't use, or even drink. Or smoke. I've done all three in the past and came to the conclusion that they didn't fit the lifestyle I prefer to lead. But I don't think my decision is right for everyone, and I don't want to see it forced on everyone. As far as market pressure goes, I view it in this case as a useful tool against criminal elements who are currently empowered by our misuse of it. I don't think market pressure has anything at all to do with handling substance abuse.

[davidbfpo]

Last week IISS published a new Adelphi book on , co-authored by Nigel Inkster and Virginia Comolli:http://www.iiss.org/publications/ade...f-prohibition/

From the link a summary:

The world’s wealthiest nations have expended vast blood and treasure in tracking and capturing traffickers, dealers and consumers of narcotics, as well as destroying crops and confiscating shipments. Yet the global trade in illicit drugs is thriving, with no apparent change in the level of consumption despite decades of prohibition. This Adelphi argues that the present enforcement regime is not only failing to win the ‘War on Drugs’; it is also igniting and prolonging that conflict on the streets of producer and transit countries, where the supply chain has become interwoven with state institutions and cartels have become embroiled in violence against their rivals and with security forces.

What can be done to secure the worst affected regions and states, such as Latin America and Afghanistan? By examining the destabilising effects of prohibition, as well as alternative approaches such as that adopted by the authorities in Portugal, this book shows how progress may be made by treating consumption as a healthcare issue rather than a criminal matter, thereby freeing states to tackle the cartels and traffickers who hold their communities to ransom.

I have yet to finish reading the book, so may remark upon it later.

Nigel's views being an ex-SIS deputy head aroused some publicity, much of it in Latin America and some UK press coverage. He wrote a piece in one of our more populist papers, The Sun:http://www.thesun.co.uk/sol/homepage...ise-drugs.html and summarised here:http://www.telegraph.co.uk/news/poli...-on-drugs.html