The grass is always greener

Here's an interesting piece from Sports Illustrated about Ricky Williams who walked away from the NFL. I went to the University of Texas at the same time Ricky did and remember watching him play ball at DKR. He was a stud running back (who at one point held the NCAA record for career rushing yards) but he marched to the beat of his own drummer (and still does).

Our marijuana laws make no sense. Alcohol is a much more dangerous drug but it's perfectly legal and manufacturers pay plenty in taxes to the government for the privilege of producing it. As you know, I defend people accused of drunk driving and I see the consequences of it every day. Why the federales leave marijuana as a Schedule 1 drug I will never understand - it has been clearly demonstrated that various components of marijuana have legitimate therapeutic uses.

The NFL has a strict anti-marijuana policy but looks the other way when team doctors hand out painkillers like candy so players can be rushed back onto the field quicker. They are more concerned about the league's image then they are for the people the league chews up and spits out on a regular basis.

Instead of legalizing - or at least de-criminalizing - marijuana we choose to enforce laws that make young people criminals and threaten their ability to obtain student loans for college. Yet we'll just slap 'em on the wrist for underage drinking which is a far more serious problem.

It's time we got past Reefer Madness, wouldn't you agree?

The assembly line keeps on moving

I caught an interesting piece on All Things Considered this afternoon about sentencing reform. Over the last couple of decades tough-on-crime politicians pushed for harsher sentences for non-violent offenders. As a result of the misguided war on drugs, jails around the country have been packed to the gills.

As a result of overcrowding, conservative politicians have been trying to find ways to reduce jail politicians. Restrictions on parole have been eased. Mandatory minimum sentences have been eliminated. Counties are giving more credit for every day an inmate sits in jail.

The problem is the result of simple-minded "solutions" to problems that didn't exist. People sitting in jail and prison for possession of drugs doesn't solve any problem - it only creates more. Addicts and users need treatment, not jail or prison. Incarceration should be a last resort for offenders, not a first option.

Instead we use our jail and prison systems to segregate the population. While we know that whites, blacks and Hispanics all use drugs in pretty much the same proportion, it's the non-white folks that end up with long sentences behind bars. While well-to-do whites are snorting cocaine in clubs and at parties, black and Hispanic youth are being busted for possession of crack.

Law enforcement officials and prosecutors have fought efforts to reduce penalties for possession tooth and nail. They continue to fight common sense measures to reduce jail and prison populations because they are afraid of giving up the leverage they have over those charged with possession. It's far easier to obtain a guilty plea when a defendant has a choice of a few months in the county jail or a longer stretch in prison.

And who cares about the aftermath of a long prison sentence. Neither the judge, nor the prosecutor nor the arresting officer are going to have to deal with the problems a family faces when the breadwinner is taken away in chains. But you can bet that someone will have to deal with the consequences down the road.

We all know that it's far easier to treat the symptoms of a problem that to address the actual problem itself. Why bother trying to get to the heart of why so many young people use drugs when you can just bring them before a judge on the chain and coerce plea after plea?

The cost of providing treatment for those addicted to drugs would be far less than the amount we currently pay to house them in jails and prisons. Wouldn't our money be better spent on trying to help people get off drugs rather than warehousing them in correctional facilities? Wouldn't it be better for them to be working in productive jobs rather than sitting behind bars? If our wingnut politicians are so concerned about "family values," wouldn't it be better to keep families together rather than tearing them apart?

But then, as I've said many times before, those folks accused of crimes, and those serving time behind bars, don't have a powerful political lobby. Politicians aren't looking for their votes. And that's the calculus that drives policy -- what can I do today that will increase the number of votes I can get and reduce the number of votes my opponent can get?

In the meantime the wheels will keep on turning and nothing will change.

The times they are a-changing

I could start off with a rant about why taxpayers in Texas are being asked to pay for a security detail for Gov. Rick Perry while he rubs shoulders with the rich and powerful and the World Economic Forum in Davos, Switzerland. But I'm in a good mood so I won't sweat the Guv hanging out at the uber-wealthy's version of Woodstock.

And, speaking of Woodstock, Gov. Goodhair sprung an interesting surprise on reporters when asked about his views on the legalization of marijuana. While emphasizing his opposition to legalizing the weed, Gov. Perry did express his support for decriminalizing grass.

The Fair-Haired One has embraced the use of specialty drug courts as opposed to regular courts. Now I have made my opposition to drug courts well known and I'll repeat it here -- courts are for resolving legal issues, not for doling out medical treatment. Addiction is a public health issue, not a criminal issue; and until we treat it as such, we will continue to tread water.

Aside from his support of drug courts, for once I'm on board with Gov. Perry. There are far too many folks arrested and dragged into court for possession of small amounts of marijuana. Even worse are the far-ranging consequences for a conviction -- public housing residents can be evicted and college students will be deemed ineligible for federally-backed student loans.

Currently possession of less than 2 ounces of marijuana is a Class B misdemeanor carrying a maximum punishment of six months in jail. If Gov. Perry is serious about decriminalizing marijuana then we need to knock possession of less than 2 ounces to a Class C misdemeanor (the equivalent of a traffic ticket) which is a fine-only offense that doesn't appear on one's criminal record. Then we need to knock down each level of offense one step. In fact, we should seriously consider doing that on every drug possession offense right now.

Gov. Perry understands the economic cost of carrying out a draconian drug war. He sees that county jails are filling up with non-violent minor drug offenders. Now it's time to see if the rest of Perry's Republican posse is willing to fall in line and amend the drug laws in the next legislative session.

Now contrast Gov. Perry's position with that of Devon Anderson, the unelected Harris County District Attorney whose blowhard response to President Obama's comments about marijuana sounds a lot like the nonsense in Reefer Madness.

"Marijuana is creating deadly situations right here in Harris County. I welcome the President to come to Houston to review the same capital murder cases I did just last week that were the result of marijuana drug deals. Maybe then he will see that the most effective way to keep our law-abiding citizens safe is to obey all laws that our legislators put on the books at our state capitol. 

“I am acutely aware of the high price society pays for the misuse of alcohol. This is not a debate about whether alcohol or marijuana is more dangerous. The President’s comments notwithstanding, marijuana is illegal under the Texas penal code, and we vigorously prosecute drug possession and alcohol-related offenses in Harris County.”

But what else should we expect from Ms. Anderson? The budget for her office depends on the number of cases being filed. She has no time to worry about the consequences of prosecuting folks for possession of minor amounts of marijuana while she's out trying to convince folks to vote for her this fall.

After all, it's much easier to demagogue than make well-reasoned arguments.

A broken record

On the way to the municipal courthouse during the lunch hour yesterday I happened upon a discussion on the local public affairs show Houston Matters on KUHF. The topic was the state of Texas prisons. One of the guests was Ray Hill who hosts Execution Watch on KPFT and who used to host The Prison Show.

I've provided a link to the program but, unfortunately, the broadcast isn't broken down into sections.

The show contained a bit of a history lesson about the Texas prison system. Up until the last 30 years, Texas prisons used a building tender system to maintain discipline in the units. Prison officials would actually pick inmates to run the buildings on a daily basis. Predictably this led to greater violence and harsher conditions. That system was tossed out as a result of the Ruiz v. Estelle lawsuit that put Texas prisons under federal control for years.

What I found most interesting was the fact that the prison population has grown by nearly 900% over the past 30 years while the population of Texas has only doubled. What's wrong with this picture?

I think we can all agree that there are some folks behind bars that really need to be there. But that number is a whole lot less than you might think. The population explosion in our prisons went hand-in-hand with the failed war on drugs. Drug addicts don't need to be in prison. Prison therapy is not an effective method of helping folks cope with their addictive behavior.

Instead of spending roughly $18,000 a year to house an addict in prison, why don't we spend the money on community-based drug treatment programs? I've mentioned this before, but we need to change our model for handling drug addiction. We need to treat it as the public health problem that it is, not as a criminal problem.

We promote drug courts like they are some new panacea that will turn defendants clean with a little bit of tough love. The problem is that, no matter how much we candy it up, a drug court is still a criminal court; and criminal courts deal in acquittals and convictions. Criminal courts only function properly when there are adversarial parties arguing both sides of a case. Whenever we start to put prosecutors and defense lawyers on "teams" we are undermining the adversarial system and weakening the protections the Founding Fathers set out for criminal defendants.

Our jails and prisons are filled to the breaking point with folks whose only transgressions are an inability to get through the day without the use of illegal stimulants or depressants. Those folks don't need their liberty taken away. They need to be able to carry out their day-to-day lives with the addition of therapy provided by counselors who aren't interested in violating their probation and sending them to jail or prison.

Those folks don't need to be exposed to the culture of violence and depravity we find in our prisons. They shouldn't have to live with the fear of being sexually assaulted on a daily basis.

The system is clearly broken and is in dire need of fixing.

Is the GOP dazed and confused?

Who thought we'd see the day when Republicans in Washington would fight for the legalization of marijuana? Oh, the ghost of the Gipper must be spinning in his grave as GOP representatives introduced a bill into Congress that would require the federal government to respect the marijuana laws passed by the states.

The latest Republican to jump aboard the pot train is Texas' own Steve Stockman, a certified wingnut from East Texas.

The question is what gives with the GOP bedding down with the stoners? Is it the libertarian wing of the party stepping out into the limelight and acknowledging that Uncle Sam doesn't need to have his hands in everything? Or is it the traditionalists who look at the decades-long War on Drugs as enormous drain on resources and tax dollars? Or is the the strict constructionists who believe that drug policy is the province of the states and not the federal government?

But how will this play with the true believers in the party - the social conservatives who have declared war on everything from drugs to sex to abortion?

And how is the Republican party going to keep these divergent interests together under their tent? Are we entering a period in which our two traditional parties will be shaken to the core and a new politics will emerge?

And, even more importantly, what will be the impact of this national debate on drug policy in Texas? Can the social conservatives maintain their power and influence in the face of changing demographics in the Lone Star State? Will the libertarians in the party start to move into positions of power?

However this plays out it's time we all took a look at the aftermath of the War on Drugs in Texas. Our jails are overcrowded with non-violent offenders convicted of possessing small amounts of a variety of drugs. It certainly makes more sense to use our jails to house violent offenders and those who have shown a lack of ability to be part of society. Our money could be much better spent by funding community programs aimed to helping folks address their addictions. The collateral consequences of minor drug possession convictions are far too severe for the crimes.

If the legislature doesn't want to take the extreme step of legalizing the possession of some drugs - then maybe they should take the baby step of decriminalizing it. Or, at a minimum, reducing the level of offense.

Meanwhile, here's a peak at what Mr. Stockman might have on his iPod.

The unintended consequences of a campaign pledge

Back when the late Mike Anderson was running for DA against incumbent Pat Lykos he attacked her over and over again for her decision not to try so-called trace cases. Under the Lykos administration, if someone were arrested for possessing less than .01 grams of cocaine, the case was either dismissed or the defendant was offered a plea to a paraphernalia case.

There were a multitude of reasons for the policy. First, if there was less than .01 grams of residue, there wasn't enough for both the state and the defense to test the sample. Second, during her 2008 campaign, Ms. Lykos said the criminal (in)justice system couldn't cure every problem and that some folks were better off seeking treatment for their addictions. Third, the Harris County Jail was full to the gills and the county was having to lease jail space in other counties in Texas as well as in Louisiana. 

The situation was untenable. Not that Chuck Rosenthal and his team of true believers gave a second thought to the consequences of their actions.

Well Ms. Lykos wasn't part of the good ol' boy network so she had to go. Mike Anderson took up the banner of Holmes worship and pledged to undo everything that Ms. Lykos had done in office. One of his promises was to start prosecuting trace cases as felonies once again. The police and true believers thought the rapture had come and Mr. Anderson was swept into office.

Once there Mr. Anderson began the process of changing office policy. No longer would the Harris County District Attorney's Office go soft on those wrongdoers who had less than .01 grams of drug residue on their person. Nope. If you give them a break, the next thing you know someone else is going to want some leniency on some other crime. Damn that slippery slope!

Under Mike Anderson's watch, trace cases were prosecuted as felonies but defendants were offered so-called 12.44a sentences. That designation refers to a provision in the penal code that allows the court to assess misdemeanor punishment on state jail felony convictions.

And so, predictably, the inmate population in the Harris County Jail began to creep higher toward full capacity. Someone was going to have to to do something quick. The voters had already nixed the idea of issuing bonds to build a fourth jail downtown. County commissioners weren't keen on the idea of spending money to house inmates in other counties.

Interim District Attorney Devon Anderson, the widow of Mike Anderson, acknowledges there is a problem -- something that Mr. Anderson never did. Of course she told the Criminal Justice Coordinating Council that she wasn't worried about filing felony charges against folks possessing less than .01 grams of cocaine. She, on the other hand, was worried about the number of defendants who were punished under Section 12.44a of the Penal Code. She said she was concerned about the number of first time offenders who were now walking around with felony drug convictions.

She said she preferred treatment to incarceration. But she never said she was opposed to prosecuting the cases as felonies. And there's the disconnect.

If you charge folks with a felony and they can't post bond, the attorneys appointed to plead them out are going to try either to get the charges reduced to misdemeanors or, at worst, to get the prosecutor to offer county time for a felony conviction under 12.44a. Folks who are out on bond for a trace case are unlikely to go to prison or jail in exchange for a plea (though there are exceptions). They'll take their felony deferred or probation and walk on out of the courthouse.

Such pleas are rarely offered to someone sitting in the holdover - unless they are willing to put up a fight on their case. Besides, the folks who can't post bond tend to have backgrounds and live in circumstances that make them bad risks for probation.

Ms. Anderson points to her background as a drug court judge (before getting booted out of office in 2008) - but y'all already know my opinion of drug courts. The criminal (in)justice system does a very poor job of reducing addiction. Those who suffer from addiction are going to fall off the tracks from time-to-time on their way to recovery. When they do suffer a relapse, treatment and counseling - not prosecution - is the answer. 

Our courts operate in an adversarial environment. The theory is that the truth (or something vaguely resembling it) will emerge though two parties telling competing stories. When one side rolls over and plays dead - or, in the parlance of the specialty courts, works as part of a team - the adversarial system doesn't work as planned and the defendant is always the one getting jobbed.

The answer to reducing the county's jail population isn't to prosecute trace cases, the answer is to make treatment available for those who want it - regardless of their ability to pay. Drug addiction is a public health issue - not a criminal issue - and until we begin to treat it as such, we will never make any headway in reducing the problem.

Too little, too late

Yes, Eric Holder, the (in)justice system is broken when it comes to drug offenses. Mandatory minimums and disparate sentencing guidelines are a large part of the problem. Yes, our prisons today are overcrowded. Yes, it costs millions of dollars for us to lock up more people, per capita, than any other nation in the world. Yes, it would cost a whole hell of a lot less to fund adequate drug treatment programs.

But there's a bigger problem, Mr. Holder. And no matter how many of these speeches you give to legal groups and no matter how many interviews you give, you can't escape the biggest contributor to this failed war on drugs.

Eric Holder has been Attorney General since President Obama took office in 2009. Prisons were overflowing then. Black men convicted of possession of crack were receiving sentences up to 100 times more severe than while folk convicted of possession of the same amount of power cocaine. The drug was was unsustainable when he took office.

But it's only now - over four years later - that Mr. Holder says that something has to be done. For almost four years the Obama administration has been giving local law enforcement agencies money hand-over-fist for them to create SWAT teams and acquire military equipment.

Mr. Holder, you had the power four years ago to move our country toward a more rational drug policy. For the past four years you have done nothing to get us away from a broken law enforcement model.

You have a vast phalanx of federal prosecutors doing your beck and call across the country. But it's only now that you come forward and announce that federal prosecutors will be given word to file cases in such a way as to avoid non-violent offenders from getting caught in the mandatory minimum trap.

And therein lies the problem. You, Eric Holder, are the chief law enforcement officer in the United States. You have the authority to tell prosecutors in the field how to charge certain offenses. At any time during the past four years you could have sent out a memo to your minions instructing them not to overcharge those accused of drug crimes. You could have let the US Attorneys across the country know that probation or diversion were more appropriate means of handling non-violent drug offenders.

But you didn't do that. For four years you have sat on your hands and watched as our government has systematically incarcerated young black men at an alarming rate. You sat and did nothing to stop young men from being sentenced to exorbitant terms behind bars because of the color of their skin.

And now, only after the shitstorm caused by Edward Snowden's exposure of the extent of the NSA's domestic surveillance program you stand up before the American Bar Association - most of whose membership knows nothing about the workings of the criminal (in)justice system - and announced that our current model is broken beyond repair.

I'm just amazed he could do it with a straight face.

P.S. I would love to include quotes from Mr. Holder's prepared remarks, but my laptop is so disgusted with Mr. Holder's performance that it freezes up anytime I pull up the text.

Sticker shock

Bonnie Jonas-Boggioni and her husband, Guido Boggioni, were on their way home to Plano, Texas after attending the funeral of Mr. Boggioni's mother in Columbus, Ohio. For those of y'all not attuned to college sports, Columbus is the home of Ohio State University. Ms. Jonas-Boggioni was a former president of the Dallas-Fort Worth area Ohio State Alumni Association.

The nickname for Ohio State's athletic teams is the Buckeyes. Now I suppose that that means something to those folks who live in Ohio, but I have yet to figure out what the hell a buckeye is. It must be some kind of a plant or flower because members of the football team affix little stickers of a leaf of some sort on their plain silver helmets.


Apparently they've never heard of buckeyes down in Tennessee, either, because just outside of Memphis, Bonnie and her husband were stopped by a two black SUVs being driven by local law enforcement officers. When they approached the Boggioni's car, the officers were wearing body armor and carrying guns.

They asked the couple to get out of their car. Then one officer asked Ms. Jonas-Boggioni why she had a marijuana leaf sticker on the back of her car. She was stunned.

“It’s just amazing they would be that dumb.”  -- Bonnie Jonas-Boggioni 

It would appear that another police officer from somewhere else in Tennessee saw the buckeye sticker on the car and just assumed that the couple were transporting marijuana. After all, most folks who carry illegal drugs in their cars put stickers on their bumpers indicating what illicit items they have on board.

Now, left alone maybe this story is amusing. Maybe it made you smile (unless you're a law enforcement officer in Tennessee). But there isn't really anything funny about the story once you stop and think about what happened.

The Boggionis weren't violating any traffic laws. They were minding their own business driving home after attending a funeral in Ohio. Yet at least two officers thought they needed to pull over the vehicle because of a sticker on the rear bumper. Making matters worse, they felt the need to dress in full body armor and to draw their weapons when approaching the car.

The Boggionis had every right to be left alone. Instead, some unknown police officer lost all common sense when he saw a sticker and just assumed that something criminal had to be afoot. Even more inexcusable were the actions of the officers outside Memphis who initiated a traffic stop on a car simply because some yahoo further east had lost the use of his mental faculties.

And then, to top things off, the officer told the Boggionis they might consider removing the sticker from their car.

The war on everything drugs has long since gone overboard and when the police are happy to pull over a car with out-of-state license plates for no reason other than a bumper sticker, it's time to rethink our policies.

H/T Paul Lukas (Uniwatch)

Like we don't have enough laws on the books

The other day my eye was caught by a Grits for Breakfast post about the number of bills proposed this legislative session that would either create new criminal offenses or enhance penalties for existing crimes.

At some point we need to have a little bit of sanity in Austin. We don't need a bevy of new criminal offenses. What we need is some serious analysis of what's now on the books. We need to ask our legislators whether our existing penal code makes sense - and whether we can afford to keep doing what we're doing.

At the rate we're going there is going to come a day when everyone on this state is either a convicted criminal or on paper. Hell, we might need to start charging fetuses with something or another so that they will be under the government's thumb from the get-go.

Of course it's better politics to say "there ought to be a law..." whenever something bad happens to someone else - unless that law would, in some way, restrict the ability of a god-fearing Texan to load up on as many guns and rifles as he can fit in his survival bunker and as much ammo as he can fit in his tote from the Container Store. No one gets elected because they got rid of an unnecessary provision of the penal code - hell, it's in there for a reason, ain't it?

We need to take a serious look at our drug laws. What we're doing isn't working - and I don't think anyone would disagree. The first thing I would do is reduce - by one degree - the punishment for all drug possession offenses. It makes no sense to charge a person with a state jail felony for possessing less than a sugar packet-full of cocaine. It makes little sense to arrest a kid for possessing less than two ounces of marijuana.

Possession of less than two ounces of marijuana should be a Class C misdemeanor fine-only offense. In many counties if you're charged with possession of marijuana you can negotiate a plea to a charge of possession of drug paraphernalia, a fine-only offense, instead. Why bother with the charade any longer?

At some point I would hope we realize that the criminal (in)justice system is not designed to handle public health issues like addiction. And I don't care how many "drug courts" you come up with - addicts need treatment and, if that treatment is going to be successful, it needs to be voluntary. We don't need the courts waiting to pounce on the recovering addict who falls off the wagon now and then. He or she needs encouragement - not a seat on a hard wooden pew or a bed in the jail.

Instead of increasing the number of crimes and jacking up sentences, we need to spend money on drug treatment and rehabilitation programs so that the addicts caught up in our criminal (in)justice system - mostly lower income blacks and Latinos - don't end up in a revolving door to the jail.

But then, actually addressing a problem isn't nearly as sexy for a legislator as standing in front of a microphone and telling the voters that "there ought to be a law..."

Ignoring the problem won't make it go away

Let's build more prisons and fill 'em up with our society's undesirables. That ought to make the world a better place, don't you think?

No? You don't think that's the key to happiness and security and sunshine?

You're right. There are some folks on the other side of the pond that feel the same way. One of them is Will Self, and in this piece for the BBC he notes that prisons aren't very good at either rehabilitation or punishment. And, being that those are the twin goals of the penal system, that doesn't speak very well to efficacy of locking people up because they've done something society doesn't like.

It was Dostoevsky who said: "The degree of civilisation in a society is revealed by entering its prisons." But in contemporary Britain you don't even need to do this, you can simply stand on a street corner and wait for the ghosts to come flitting past in order to appreciate its parlous condition.

As the rate of violent crimes has decreased in this country, the rate of people sent to prison for drug crimes, and other nonviolent offenses, has increased. I once represented a man who had previously been sentenced to 10 years in the penitentiary for being in possession of a couple of rocks of crack cocaine. I have yet to hear anyone who can give me a logical explanation for why it makes sense for us to spend our money to house a drug addict in prison when he would be better off in a treatment program.

And it's not like his "jail therapy" worked as he was arrested again (for possessing three rocks) shortly after being paroled. If anyone can tell me why that makes sense, I'm all ears.

When you lock someone away in prison you're not going to rehabilitate him - particularly in this day when the governor and his henchmen are looking for any piece of low-hanging fruit they can find to cut from the budget. And if they're willing to sit by and watch as school districts lay off teachers or leave classroom positions open, what the hell do you think they'll do to funding for rehabilitation programs for inmates?

I mean, the fair-haired one has to have some money to pay the DPS to provide security for him while he tours the country watching his ill-fated presidential campaign slowly go down the toilet. And what about his wife and kids? You don't seriously expect them to go on vacation without a phalanx of state troopers, do you?

Of course, we aren't quite at the levels enjoyed by our closest allies, those prime exponents of the civilising mission the United States, whose extensive gulag now houses, it is estimated, more African American men than were enslaved immediately prior to their Civil War - but we're getting there.

Just let that one stew for a bit.

Sure, there are some folks who need to be locked up because they are unredeemable or because they have committed crimes of such a heinous nature. More and more we are seeing people sent to prison, not because they have committed some heinous crime but, instead, because they have committed enough minor crimes that the state no longer wants to deal with them. When a theft of less than $100 can be enhanced to a felony and the person sent to prison for two years of more - well, the system's not working. 

Contrary to the view of prison as a deterrent and a way of keeping criminals off the streets, almost all enlightened opinion now concurs in the following.

Not only does prison, for the vast majority of those who endure it, not work, either as punishment or as rehabilitation, but there is no escaping the conclusion that it functions as a stimulant to crime, rather than its bromide.

No one's going to argue that it isn't easier just to lock folks away and forget about them. We do that everyday with bills or phone messages we don't want to return. But we're talking about people's lives here. We talking about their lives and the lives of their families. It/s time to re-examine the way we do things in our criminal (in)justice system. It's time we start asking questions. It's time we start asking Why?

We can either fix it or we can sit and watch it collapse under its own weight.

Creative thinking in public education?

Possession means actual care, custody, control of management. 

-- Texas Controlled Substances Act Sec. 481.002(38)

Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.

Huh?

I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Shooting mosquitoes with a shotgun

I had a very interesting conversation with a client the other night. We had just finished resolving a couple of traffic tickets out in Magnolia when my client asked me if I had time to talk.

It turns out that he's doing research into the effects of marijuana on athletes and wanted to know my opinion of the current drug laws. I realized over the course of our conversation that I had some general ideas but I had absolutely no idea what would be the best way to implement them.

Most folks who are charged with possession are battling addictions of some form. Using the court system to treat an addiction problem makes as much sense as using a shotgun to control mosquitoes. Our court system is designed to determine whether a person actually did what the government accused them of doing - and, if so, assessing punishment. That's it. End of story.

Our court system is not designed to diagnose a medical condition and design a treatment program around the diagnosis. Placing a person in a pretrial diversion program with the threat of prison looming over their heads if they relapse is just not going to get the desired effect. Everyone who has battled an addiction has fallen down on the road to recovery. Everyone relapses at some point.

When an addict suffers a relapse, entering a conviction and carting them off to prison does nothing to cure that addiction. When an addict suffers a relapse he or she needs more help. They need someone who can pick them up and get them back on the road. They don't need to be "treated" by lawyers and probation officers and judges; they need to be treated by medical and mental health professionals who aren't concerned with the number of cases on their docket. They need to be treated by someone who isn't concerned about the latest polls.

Having said that, I haven't the foggiest idea how we get there. I just know that what we've got right now isn't working. I'm open for suggestions.

There's an axiom in economics and business that an organization should concentrate on performing those tasks that it performs best. Economists call it comparative advantage and business people call it specialization. Either way, it's a better way to use your resources than trying to do a little of this and a little of that.

Using the criminal (in)justice system to treat a public health problem is just such a waste of valuable resources.

Is it time to call a cease fire in the war on drugs?

According to the Global Commission on Drug Policy, the worldwide war on drugs has been an abject failure. As nations have strengthened drug laws and ratcheted up the penalties for possession and manufacture, use of marijuana, cocaine and opiates has increased.

The reality is that drug addiction is a medical issue, not a penal issue. So long as governments treat users and addicts as criminals, the problem will never fade into oblivion. The US approach to drugs is the equivalent of trying to blast a mosquito with a shotgun.

"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," the report said. 

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.

All you have to do is look to our south to see that what we're doing now isn't working. Mexico has become a no-man's land with drug kingpins fighting to maintain their share of the market in the face of military attacks.

Harris County is having to ship pretrial detainees to outlying counties because the jail is packed to the gills with nonviolent drug offenders who need treatment, not prosecution.

We have drug courts that conspire to deprive defendants of their constitutional protections in the name of "team work." I'm sorry, but an adversarial system that doles out punishment is not the proper vehicle for treating addiction.

The report of the Global Commission calls for governments to stop treating drug use as a criminal issue and to being looking at it from a public health standpoint.

Offer health and treatment services to those in need. Ensure that a variety of treatment modalities are available, including not just methadone and buprenorphine treatment but also the heroin-assisted treatment programs that have proven successful in many European countries and Canada. Implement syringe access and other harm reduction measures that have proven effective in reducing transmission of HIV and other blood-borne infections as well as fatal overdoses. Respect the human rights of people who use drugs. Abolish abusive practices carried out in the name of treatment – such as forced detention, forced labor, and physical or psychological abuse – that contravene human rights standards and norms or that remove the right to self-determination...

Begin the transformation of the globaldrug prohibition regime. Replace drug policies and strategies driven by ideology and political convenience with fiscally responsible policies and strategies grounded in science, health, security and human rights – and adopt appropriate criteria for their evaluation. Review the scheduling of drugs that has resulted in obvious anomalies like the flawed categorization of cannabis, coca leaf and MDMA. Ensure that the international conventions are interpreted and/or revised to accommodate robust experimentation with harm reduction, decriminalization and legal regulatory policies.

 Sure, there's a political agenda here -- but the idea is sound. The notion of treating the disease rather than the symptom is one that not too many legislators appreciate. It doesn't lend itself to soundbites. It doesn't lend itself to campaign slogans. It's probably not the message that's going to get you re-elected.

The Committee calls on nations to adopt the following principles when dealing with drug addiction:

1. Drug policies must be based on solid empirical and scientific evidence. The primary measure of success should be the reduction of harm to the health, security and welfare of individuals and society.
2. Drug policies must be based on human rights and public health principles. We should end the stigmatization and marginalization of people who use certain drugs and those involved in the lower levels of cultivation, production and distribution, and treat people dependent on drugs as patients,not criminals.
3. The development and implementation of drug policies should be a global shared responsibility, but also needs to take into consideration diverse political, social and cultural realities. Policies should respect the rights and needs of people affected by production, trafficking and consumption, as explicitly acknowledged in the 1988 Convention on Drug Trafficking.
4. Drug policies must be pursued in a comprehensive manner, involving families, schools, public health specialists, development practitioners and civil society leaders, in partnership with law enforcement agencies and other relevant governmental bodies.

Or we can continue down the same flawed path we've been travelling for decades.

Maybe we should just adopt Kissinger's Vietnam exit strategy. Claim victory and get the hell out of Dodge.

An unhealthy addiction to drug courts

Norman Reimer, the executive director of NACDL, says our newfound addiction to drug courts is harmful to the rights of our clients.

In the new issue of The Champion, the official publication of the National Association of Criminal Defense Lawyers, Mr. Reimer argues that, in many cases, drug courts are worse for defendants than the regular courts.

"All too often, drug courts denigrate fundamental rights, extracting broad waivers as the cost of admission, and expose even the most well-intended to dire consequences, often worse than if they avoided drug court and simply pleaded guilty. They tend to place a premium on early guilty pleas, thereby insulating questionable law enforcement search and seizure practices, and provide a convenient means for prosecutors to shed defective cases. And some drug courts impede the attorney-client relationship and undermine an accused person's Sixth Amendment right to a vigorous defense. Worse, many drug courts operate without transparent admission criteria, and most bar eligibility to recidivists and those most in need of treatment. These factors tend to exacerbate racial and economic disparities in the criminal justice system."

The problem with drug courts is that the criminal (in)justice system is not designed to provide solutions to public health issues (the same general problem exists with other specialty courts). Drug addiction is a medical issue - not a legal issue. Treating a medical condition through the auspices of the criminal (in)justice system is doomed to failure.

Medical professionals are trained to treat both the symptoms and the root cause of an illness. The goal of the medical profession is to cure the patient - or at least to ameliorate the condition. The doctors, nurses and other staff work together as a team to help the patient.

In the courthouse, judges, prosecutors and defense attorneys are not part of a "team." Prosecutors and defense attorneys are adversaries - we stake out our position and go from there. The prosecutor is looking for the best outcome for the state (or to get Friday afternoon off) while the defense attorney is fighting for the best outcome for his client. The judge sits as an impartial arbiter. No one is interested in resolving the medical condition behind the addiction -- the sole question is whether the state can prove up the elements of the charged offense.

The price for admission into the drug courts is a plea of guilty (generally) and a waiver of one's constitutional rights. We're all part of the same "team" now, remember? We're no longer adversaries. We'll work together to get the defendant through the process.

The process consists of a probation more restrictive than that offered in the regular court. The reward at the end of the tunnel is a dismissal - if the defendant can complete the program. Fall short of the court's expectations and you find yourself in a worse position than you would have been in had your case remained in the regular court.

On the other hand, Mr. Reimer points out that:

"Drug courts have helped many people. They have saved lives. They have probably saved hundreds of thousands of prison years. For clients facing a lengthy prison sentence, even a long shot at successful diversion must be considered. And therein lies the dilemma. As long as draconian penal policies drive America's drug policy, drug courts will thrive - irrespective of their flaws."

This country's attempt to treat drug addiction through the penal system has been an abject failure. It's time to take a new approach. People whose only "crime" is their addiction to drugs need to be in treatment, not in the courtroom. Treating a medical condition in an adversarial setting will never succeed and will only mean that another generation is lost in the criminal (in)justice system.

See also:

Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities, Justice Policy Institute (March 22, 2011)

Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use, Drug Policy Alliance (March 22, 2011)

Welcome to the jungle

This is your war on drugs. This is your war on civil liberties. This is your war on the Constitution. This is your war on your fellow citizens.

What you see on this video isn't an aberration. It's what goes on, in one form or another, every day in this country.

I'm fairly certain that if you read the offense report it won't leave quite the same image in your mind as this video will.

This should be required viewing for every judge who sits and decides whether the police acted reasonably or not in a given situation. This is what happens when you say it's okay to infringe upon our civil liberties in the name of security.

See also:

"Video of SWAT raid on Missouri family," The Agitator.com (May 5, 2010)
"SWAT team endangers child, parents charged with child endangerment," Reason.com (February 27, 2010)

A flaw in logic

Just one more thought on Harris County District Attorney Pat Lykos' apparent backtracking on the office's new drug policy...

If the reason for the new policy is that any amount less than .01 grams does not provide enough of a sample for retesting, what is there to revisit in six months? If the policy were implemented because of jail overcrowding or the size of the courts' dockets, then revisiting the policy after a time would seem to be a prudent idea. But, if the reason behind a policy is based on accepted forensic scientific protocols, those won't change in six months. If .01 grams is an insufficient sample for retesting on January 1, 2010, it will be an insufficient sample for retesting on July 1, 2010.

DA backtracks on new drug policy

One day after announcing a policy change in the prosecution of some drug offenses, Harris County District Attorney Pat Lykos seems to be backtracking from her original position. Facing stern opposition from local law enforcement, Ms. Lykos said her office would re-evaluate the new policy after six months.

Critics of the new policy claim that it will result in an increase in burglaries and robberies from addicts looking to buy more dope. Ray Hunt, vice-president of the Houston Police Officer's Union said that officers would look the other way because they don't want to spend the time to issue a Class C misdemeanor citation.

Mr. Hunt apparently is under the impression that a stint in jail will cure a drug addict and that he or she will return to the outside as a productive member of society.

Using Mr. Hunt's logic that locking up minor drug offenders because they might commit a theft or burglary, maybe we should lock up everyone who consumes alcohol because they might get behind the wheel drunk. Maybe we should lock up everyone who owns a gun because they might one day shoot someone. Maybe we should lock up everyone who is married or dating someone because they might commit an assault against a family member.

Maybe Mr. Hunt's opinion would change were he to consider the overtime bonanza that could result from patrol officers having to appear in municipal court -- just ask the traffic cops.

Harris County to institute "catch and release" policy

The Harris County District Attorney's Office announced a change in its policy regarding arrests for trace amounts of drugs, particularly crack pipes with cocaine residue.

Beginning on January 1, 2010, if the amount of drug residue is less than .01 grams, a person will be cited for possession of drug paraphenalia, a Class C misdemeanor punishable by fine only. By law a person charged with possession of a controlled substance has the right to examine and retest the substance. The District Attorney's Office has determined that an amount of less than .01 grams is insufficient to allow for retesting of the substance.

According to the new policy, if the person is carrying drug paraphenalia and the officer cannot determine the weight of the drug residue, the officer is to issue a citation and release the alleged offender. If the drug residue is found in some container other than drug paraphenalia, the officer is to issue a citation, release the alleged offender and submit the container for testing. If the amount in question is more than .01 grams, the officer may submit the case to the DA's office and request an arrest warrant.

Mexico to decriminalize minor drug possession

The Mexican legistlature has voted to decriminalize the possession of small amounts of drugs ranging from marijuana to heroin to methamphetamine. Supporters of the measure say that if Mexico is to rid itself of the large-scale drug violence sweeping the country, it must use its resources wisely - and that means going after the large-scale producers and distributors.

President Calderon supported the legislation much like his predecessor Vincente Fox - but President Fox caved in to pressure from the Bush Administration and withdrew his support for the measure.

"The important thing is . . . that consumers are not treated as criminals," said Rafael Ruiz Mena, secretary general of the National Institute of Penal Sciences. "It is a public health problem, not a penal problem."

Critics of the plan argue that decriminalizing drugs is giving in to the narcoterrorists who have left a bloody swath across the country over the past decade. These critics worry that Mexico will become a Latin American version of Amsterdam complete with tourists coming in to satisfy their drug habits.

The plan would remove criminal penalities for the possession of up to 5 grams of marijuana, 500 milligrams of cocaine, 50 milligrams of heroin and 40 milligrams of methamphetamine.

Calderon's initial proposal called for mandatory treatment for those who wished to avoid jail time but the bill was changed to call for treatment to be encouraged.

While I understand the need to make better use of limited resources, I also understand that drug trafficking is big business because of the demand for drugs and that any policy designed to eradicate illegal drugs must attack both the supply and demand sides of the equation.