Number Four


Reformers Hit a Wall

by Daniel Forbes

Drug reformers of varying stripes embrace different goals, from the widely supported decriminalization of medical marijuana to relieve the pain of cancer, wasting from AIDS, or the spasticity of multiple sclerosis, to the legalization of recreational pot, the distribution of clean needles to addicts, and the mandating of treatment rather than incarceration for low-level drug offenders.

Though there's been scattered progress on these goals around the country in recent years, overall, especially on the federal level, interdiction and incarceration remain the goal if not always the reality. Handcuffed by his foolish, glib remark about not inhaling, Bill Clinton never dared veer from the prohibitionist mindset. And presumed ex-drug-user George W. Bush gives lip service to treatment, while letting Drug Enforcement Administration agents point rifles at Suzanne Pfeil, a paraplegic in California. When she was unable to rise at the agents' command, they handcuffed her to her bed while proceeding to destroy the medicine growing in a garden outside. This is repression with a decidedly uncompassionate face.

Recently Karen Tandy, the Bush Administration's nominee to run the DEA, fled down a Senate corridor rather than accept a letter from Pfeil outlining her concerns. Pursuing in her wheelchair, Pfeil cornered the top drug cop nominee by the elevator, breaking through the cordon of security to actually hand a federal official a note from a constituent. Goodness only knows the outcome had no cameras been present.

As if absorbing the Republican ascendancy completed with the GOP's capture of the Senate last November wasn't challenge enough, drug reformers were also staggered by the failure of several state ballot initiatives - this after years of overwhelming electoral success. State and federal officials, including cabinet officers and governors, joined forces with a nip-em-in-the-bud judiciary to help defeat the initiatives. The ballot measures had been promulgated by well-heeled activists (including George Soros, Peter Lewis and John Sperling) who tried last year to move beyond medical marijuana to the riskier arenas of treatment rather than incarceration for low-level offenders and even (in Nevada) outright legalization of the demon weed.

The courts prevented treatment initiatives from even appearing on the ballot in Florida and Michigan, in Michigan's case taking advantage of reform proponents' bone-headed mistakes drafting the ballot language. In Ohio, Nevada, and Arizona, drug czar John Walters successfully railed whistle-stop fashion against the ballot measures and unleashed a vicious taxpayer-funded TV ad campaign. The smoke-a-joint, slaughter-a-family ads were more self-parody than effective prevention, but then the multi-billion dollar (total value) campaign - more than half of which has been directed at adult voters - was targeted from the get-go at voters rather than teenagers. As court documents indicate, the ad campaign was cranked up a week after passage of the first two medical marijuana initiatives in 1996 to try (ineffectively until last year) to forestall future initiatives.

As drug reformers licked their wounds, curiously enough, a sort of wobbly progress emerged in the spring of 2003. Each step forward was achieved only when the pressure groups' heat was coupled with a fickle media's intermittent attention to the drug war's most egregious affronts to common sense and civil liberties. A government in the grip of the radical right often overreached, but only occasionally stumbled as a result, leaving reformers with fingers jammed in the dike even as water slopped over the top.

Still, there was some cause for celebration. In the California case against 'Guru of Ganja' Ed Rosenthal, jurors raised a post-trial ruckus over the judge's rulings that had prevented Rosenthal's defense from telling them that Rosenthal was no mere profiteer, but a cultivator of medicine deputized by the City of Oakland to supply its patients. The press piled on the half-baked verdict and, rather than the six and a half years requested by prosecutors, Rosenthal was sentenced to a single day in jail, waived for time served. But he remains a felon stripped of the right to vote, his reprieve subject to federal appeal.

House Republicans tried to slip into legislation re-authorizing the White House Office of National Drug Control Policy provisions that would have allowed czar Walters to use the five-year, $1.2 billion ad campaign as he wished to defeat future ballot measures or even individual candidates the White House opposed. What's more, he could have done so on a stealth basis, as the provision declared the ONDCP to be exempt from the seventy year old requirement that advertisers identify themselves so the public can know who's trying to persuade them. When a sharp-eyed lobbyist at the Drug Policy Alliance spotted the hidden provisions, reformers raised holy heck, and these particular abuses were blocked.

That doesn't change the fact that - since by statute ONDCP buys all its ads at half-price - there'll be something approaching $400 million in social marketing flooding the media annually over the next five years. Given that the entire beer industry spends approximately $1 billion a year on overall marketing, think of the sheer heft of nearly 40 percent of the beer effort. No wonder the Democrats on that House committee revolted at the prospect of Walters running free with that kind of money.

In Texas, after years of reformers' rabble-rousing, the last twelve defendants from the panhandle town of Tulia were released on bond, as the thin fabrications of their undercover accuser fell apart under the hammering of some dedicated lawyers, bolstered by the national media's attention. But the reprieve of the last of these nearly fifty poor, black defendants - these supposed drug kingpins who lived in shacks - is still subject to the delicate ministrations of Texas judicial review.

In New York, after decades of pressure, the infamous Rockefeller drug laws seemed ripe for reform. They're the mandatory minimum sentencing guidelines by now indelibly branded "draconian," guidelines that imprison for decades the likes of girlfriends of low-level dealers for being in the wrong place at the wrong time. Joining the long-term, "Drop the Rock" crusaders, this year rap impresario Russell Simmons lent his salutary attention to the reform effort. And the trio of Albany ringmasters who decide matters for the state's 16 million residents - Republican governor George Pataki, Assembly leader Sheldon Silver, a Manhattan Democrat, and conservative Republican Joe Bruno, master of the Senate - stated that they wanted a deal. Yet despite the hoopla Simmons added, another legislative session expired without relief for those wasting behind bars the only life they've got.

New York aside, numerous states around the country, including Kansas, Michigan and even Texas, are considering or have decreased sentencing for low-level, non-violent offenders - typically hapless addicts dealing small weight on the street to keep their own dope demons at bay. Sanity beckons as state budget gaps widen. In Maryland, years of lobbying by the Marijuana Policy Project paid off with a reduction in penalties for medical marijuana users. Though it's not the feds-be-gone state legalization that reformers aim for, the sentencing reduction to a $100 fine is particularly significant since it was signed into law by a Republican governor despite overt pressure from the White House.

Amidst these muted triumphs, as ever, there's the two steps back part of the equation. Drug hawk Senator Joe Biden (D-Del) tied his anti-rave legislation - which had been blocked last year - to the tail of a child abuse alert law, and it sailed right through. Within a month, a cowboy DEA agent in, appropriately enough, Billings, Montana, threatened a fraternal lodge with a potential $250,000 fine should anyone at a medical marijuana 'battle of the bands' fund-raiser be caught smoking a joint. The DEA's egg-on-face, backpedaling statements that the agent was just warning the lodge about potential overcrowding and the like (neat that the DEA now provides guidance on fire codes) doesn't rectify the fact that a political benefit was canceled.

That august body, the House of Representatives, is after a federal judge in Minnesota for potentially going easy on drug offenders. According to the Wall Street Journal, the Judiciary Committee may subpoena Reagan-appointee Chief Judge James M. Rosenbaum's records. The committee has also asked the General Accounting Office to look into sentencing by all federal judges in Minnesota. Last year, Rosenbaum supported the call by the U.S. Sentencing Commission to lower penalties to (only) ten years for some types of first-time offenders.

Meanwhile, though the government can't keep drugs out of prison, back in February, Attorney General John Ashcroft trumpeted the arrests of 55 individuals for pipes, bongs, and other illegal paraphernalia; along with the DEA, the months-long investigation involved the U.S. Marshals, Secret Service, Customs Service, and Postal Inspection Service, the AP reported.

Though the nation is being protected from the glassblowers, tens of thousands of opium poppies were discovered in a national forest in California. And Virginia passed a law in May allowing for routine drug-testing of the state's students; the state attorney general will encourage the testing. He apparently doesn't care that federally financed research conducted by the University of Michigan found this May that drug use occurs in schools that test as often as in schools that don't. Actually, schools that test had statistically meaningless but nonetheless slightly higher rates of drug use.

In Columbia, Missouri, this April, a city ordinance backed by the local National Organization for the Reform of Marijuana Laws chapter would have permitted use of medical marijuana and lessened possession fines for an ounce of pot. But the ordinance was soundly defeated following a campaign appearance by a White House official: Scott Burns, the ONDCP's deputy director for state and local affairs, happened to find himself in Columbia speaking out against the initiative. Burns' advocacy was of a piece with a letter he sent to local prosecutors nationwide urging them to beef up pot enforcement since, "no drug matches the threat posed by marijuana." Writing from his perch within the "Executive Office of the President", Burns urged that all first-time marijuana offenders, including the kid caught in a parking lot with a joint, should be coerced into treatment. The administration harps on the number of adolescents getting treatment for pot, but somehow never mentions that some two-thirds of them are in treatment involuntarily.

It's all ammunition for an ongoing culture war, with the administration saying pot as a "factor" in emergency room visits has risen 176 percent since 1994. Never mind that the patient is there for an ankle sprained playing basketball; if he mentions having smoked pot some time in the past, pot is a "factor." Similarly, roadside checks of "reckless drivers" show that 45 percent test positive for marijuana - which they may have smoked two weeks before.

Even with the thin current restrictions in place, a recent ONDCP ad continued the refrain that drug use leads to murder, corruption, torture and terrorism. But in a new twist - in a message designed to boost acceptance for current budgets and policies as well as defeat any future initiatives - the ad posits that any lessening of penalties will inexorably lead to crack stands at the local laundromat and heroin at the mini-mart, a message that's a long way from anything about keeping kids off drugs.

All this in a world where, at nearly half-a-million, the number of drug prisoners has increased some tenfold over the past two decades; where drug prices have gone down and purity has gone up; where middle class kids scared of needles find plenty of high-potency heroin to snort or smoke - and still get addicted. And yet the feds busy themselves with nonsense about pot that's supposedly thirty times more potent than what the hippies smoked back in the 1960s.

In February, according to The New York Times, the Office of Management and Budget stated that the poorly managed DEA "is unable to demonstrate progress in reducing the availability of illegal drugs in the United States." The OMB declared that the DEA has no strategic planning, no accountability for managers and inadequate financial controls.

No matter. The for-profit incarceration and treatment industries are thriving. According to Eric Sterling, president of the Criminal Justice Policy Foundation, the for-profit treatment sector has increased in size tenfold over the last two decades. But the drug war goes deeper than mere profit, as it has since Richard Nixon launched it in a political move calculated to appeal to conservative whites. Notes Sterling, "The war on drugs is now the major legal mechanism for maintaining white privilege and stigmatizing people of color, especially blacks. Its effects have replaced legal segregation as the legal and social mechanism to maintain white privilege."

To the degree democracy reigns in America, the federal strategy of demonizing drugs, particularly marijuana, makes sense. The drug warriors have their own problems plugging holes in the dike of public opinion, as indicated by recent polling. Nearly 80 percent of the country consistently favors medical marijuana. Even subtracting medicine from the equation the feds are still fighting uphill. According to a recent Zogby poll, 41 percent of Americans think the government should treat marijuana like alcohol, in the words of the poll question, "it should regulate it, control it, tax it and only make it illegal for children." This is a significant rise from a 2001 Gallup poll that found 34 percent in favor of legalization. Said Ethan Nadelmann, executive director of the Drug Policy Alliance, "No other criminal law on the books in this country is enforced so vigorously, yet backed by such a small majority of Americans."


Daniel Forbes writes on social policy. His articles have appeared in Salon, The Nation, Slate, The Village Voice, and TomPaine.com.

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