Police You Can Trust: Enriching Our Imagination about What's Possible in Criminal Justice

Last night I had a real treat in listening to the wonderful James Forman Jr. speak at the Nourse Theater with Lara Bazelon, as part of the City Arts and Lectures series, about his excellent new book Locking Up Our Own. Among the issues that came up was the big question behind the book: why did so many people in color in a city where African Americans hold power positions--mayors, chiefs of police, prosecutors--make again and again choices that aligned with law and order interests? In the book, Forman does not mince words about how misguided these choices were, but at the same time shows you, through careful analysis of personalities and socio-cultural contexts, where these people were coming from: they were responding to calls of distress coming from their own community. At yesterday's talk he added that, like all of us, these lawmakers and actors suffered from a lack of imagination in terms of what we might expect as good solutions for social problems. Violence in the streets? The answer is more law and order. War on drugs? The answer is more law and order. Why, asked Forman, do we never pause to think that, given how unsuccessful the previous prison term was, another one might be a waste of time and money?

Part of this "poverty of the imagination" in responding to criminal justice issues, Forman explained, was in tackling various street and quality of life offenses. What if the police, rather than arresting someone, could take that person directly to a drug problem? Or, better still, what if the police were not at all involved and there were social workers or therapists at the frontline of the problem, as befits a true public health model?

Forman's words reminded me of a fascinating and pragmatic blog post by Broke-Ass Stuart, titled What To Do When Someone Is Having a Mental Health Crisis in the Street. When confronted with that situation, Stuart himself reports of his dilemma:

I knew for sure that I didn’t want to call the police. There’s the great quote by Abraham Maslow that says “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” And unfortunately that’s often how it is with the American police. They are trained in ending crisis situations forcefully, but there isn’t enough training in how to deescalate them so that no one gets hurt or killed. While that is in the process of changing as we speak, I’d still rather involve people who already have the training. 

I understand where Forman and Stuart are coming from. It is scary to consider the possibility that calling the police to an incident site starts a chain reaction that classifies the incident as criminal, the person involved as a threat, and could lead to violence. But I'm wondering if the understandable and well-meaning reaction not to involve the police doesn't reflect its own version of "poverty of the imagination", in the sense that it gives up on the possibility of a police force we can trust and believe in.

One of the first cases I teach in my criminal procedure class is City of San Francisco v. Sheehan. Teresa Sheehan, who was severely mentally ill, lived in a group home; one day, when her social worker, who was concerned about her came to check in with her, she threatened him with a knife. The social worker retreated and got the police; the cops, Reynolds and Holder knocked on the door and Sheehan threatened that she would kill them. The case tells what happened next:

Reynolds and Holder had to make a decision. They could wait for backup—indeed, they already heard sirens. Or they could quickly reenter the room and try to subdue Sheehan before more time elapsed. Because Reynolds believed that the situation “required [their] immediate attention,” the officers chose reentry. In making that decision, they did not pause to consider whether Sheehan’s disability should be accommodated. The officers obviously knew that Sheehan was unwell, but in Reynolds’ words, that was “a secondary issue” given that they were “faced with a violent woman who had already threatened to kill her social worker” and “two uniformed police officers.”  

The officers ultimately decided that Holder—the larger officer—should push the door open while Reynolds used pepper spray on Sheehan. With pistols drawn, the officers moved in. When Sheehan, knife in hand, saw them, she again yelled for them to leave. She may also have again said that she was going to kill them. Sheehan is “not sure” if she threatened death a second time, but “concedes that it was her intent to resist arrest and to use the knife.” In any event, Reynolds began pepper-spraying Sheehan in the face, but Sheehan would not drop the knife. When Sheehan was only a fewfeet away, Holder shot her twice, but she did not collapse. Reynolds then fired multiple shots. After Sheehan finally fell, a third officer (who had just arrived) kicked the knife out of her hand. Sheehan survived.

Sheehan sued the city and the cops under  42 U.S.C. §1983 making a novel and interesting argument: In crafting their response to the situation, the cops were providing a "service," and under the Americans with Disabilities Act had to take her disability into account when doing so. The Supreme Court took the case in order to decide whether the Fourth Amendment's requirement that search and seizure activities be "reasonable" should be informed by the individual's condition (in other words, that what is "reasonable" for a healthy person is "unreasonable" for someone suffering from a schizoaffective disorder, such as Sheehan.)

In court, things were complicated by the fact that the city chose to rely on particular aspects of Sheehan's behavior to show that, given the threat she posed, she was not "qualified" for accommodations. The Court, albeit miffed with this change in legal tactics, ultimately sided with the city and the cops. Holder and Reynolds were under no obligation to apply the ADA to the situation at the time, said the Court, because the had no “fair and clear warning of what the Constitution requires.” It didn't matter, for the Court's analysis, that "the officers did not follow their training." According to the expert witness heard by the court,

San Francisco trains its officers when dealing with the mentally ill to “ensure that sufficient resources are brought to the scene,” “contain the subject” and “respect the suspect’s “comfort zone,” “use time to their advantage,” and “employ non-threatening verbal communication and open-ended questions to facilitate the subject’s participation in communication.” Likewise, San Francisco’s policy is “‘to use hostage negotiators’” when dealing with “‘a suspect [who] resists arrest by barricading himself.’” 

Even if an officer acts contrary to her training, however, (and here, given the generality of that training, it is not at all clear that Reynolds and Holder did so), that does not itself negate qualified immunity where it would otherwise be warranted. Rather, so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.” Considering the specific situation confronting Reynolds and Holder, they had sufficient reason to believe that their conduct was justified.

But what if the training had been thorough and effective to the point that officers like Holder and Reynolds were more likely to follow it? Our tax dollars pay for the police; policing our streets is, after all, a service that our government provides us--in ADA terms, but also in general. Shouldn't we want this service to be of exceptional quality, so that you and I would not need to hesitate when calling 911? Wouldn't you want to rest safe in the knowledge that the people responding to your call would tailor their responses to the situation at hand, including the mental condition of the person involved?

It seems to me that it is best to adopt a dialectic approach toward this. In the near future, until such training is available, Broke-Ass Stuart's advice is well taken. But I think it is unwise to just give up wholesale on the idea of effective policing, and even as we are concerned about police responses we need to continue pursuing improvement of the police force. Because the ideal endpoint is not doing away with a public order organization altogether, it's having an organization that is trustworthy, knowledgeable, well trained, and accountable.

Safe Injections Disappointment: A Call for SF Hamsterdam

The proposal was well thought and empirically backed: According to the principles of harm reduction, the best perspective we have on saving lives that could be claimed by drugs and alcohol, a safe injection site in San Francisco would be a good idea (so would legalizing opioids, but we live in this world, not in a better one.)

Then, Governor Brown, in an incomprehensible statement, vetoed a California bill that would enable San Francisco to pursue a four-year pilot with a safe injection site.

Before we move on to thinking how San Francisco could get around this veto--and I believe it could--let's pause for a moment. Why would Brown veto the proposal? Surely not to curry favor with conservative and moderate California voters--he is not running for reelection. Surely not to curry favor with the Trump administration (we've done our very best, and justifiably so, in the opposite direction.) Surely not to support thoughtful, evidence-based reform, which this proposal surely is. What is going on? Honestly, I don't know, and feel free to chime in with comments.

San Francisco mayor London Breed has declared that she plans to move forward, and so are other cities. But how can San Francisco move forward?

The key to a possible safe injection site lies in the fragmentation of policing and prosecution. As I explained elsewhere, policing in America is conducted on the municipal level. Prosecution is conducted on the county level. San Francisco is one of those rare locations where city and county overlap.

To the extent that the San Francisco District Attorney's office and SFPD are on the same page, there is nothing to prevent San Francisco from establishing enforcement priorities that deemphasize opioid enforcement within a particular area of the city (a-la Hamsterdam from The Wire.)




What Would SF Hamsterdam Entail?

That depends. Hamsterdam could feature merely a lesser-enforcement area, where law enforcement commit to getting involved only if there's violence (agreements like that have been worked out in other contexts, such as Operation Ceasefire.) We would need to carefully thing about protecting the status of employees and volunteers from the helping professions who might offer treatment, 12-step programs, and clean needles at the site, and how to best protect them, and if there's a way to protect them as well, Hamsterdam could feature treatment options as well.

But Won't the Feds Sweep In and Arrest Everyone?

That also depends--this time on how high we are on Jeff Sessions' shit list. Arguably, fairly high--this vile administration has not shied away from attempting to penalize us for our sanctuary city policy--but having a concentrated DEA presence at a municipality might require more energy than the DOJ is willing to spend on a few folks addicted to opioids, with the possible lack of enthusiasm on the part of federal district judges (I'm not sure this is true--Mona Lynch's work has shown judges with a great appetite for draconian sentencing of drug offenders with microscopic quantities, but her book does not cover Northern California.)

What's important to keep in mind, though, is that our status vis-á-vis the feds is the same whether or not there's a state law kosherizing the safe injection site. Possession of narcotics is a federal offense whether or not sanctioned by the state, and we obviously do not have the kind of understanding we used to have with the Obama administration about proper federal priorities in this regard. Even had Brown signed the bill into law, Sessions and the DEA would be able to sweep in, arrest people, and charge them federally with drug laws. Nor do I think the lack of a state law is likely to make them hungrier for these kinds of prosecutions--I think they abhor our state and our city with comparable ferocity (this, by the way, makes Brown's veto even more puzzling.)

Can Jerry Punish Us for Going Through With It?

Theoretically, yes. There is no realistic scenario in which state law enforcement descends upon San Francisco and arrest safe injection patients; for one thing, they would have to be prosecuted in San Francisco absent a change of venue motion. There is, however, the possibility of monetary sanctions or withholding of state funds. But it's hard to see Brown committed to punish San Francisco for going through with this. He has bigger battles to wage in the month he has left in office.

Should We Try Again After November?

DEFINITELY. I think Gavin Newsom will be open to this idea. He has been consistently pro-legalization in the marijuana context and might sign this into law. He is also advocating for an openly anti-Trump position at the gubernatorial mansion, and sticking a thumb in the eye of Trump by approving this plan statewide might play into his symbolic resistance to the feds.

Bottom line: Activists, do not despair. There is plenty we can do to win both this battle and the overall war against the war on drugs.

CJCJ Study: Drug Arrests Plummet, Racial Disparities Persist

I got a lot of commentary, in person and on Facebook, after my post about Ban the Box backfiring. Folks were expressing serious frustration with how an idea that seemed so good--pushing people away from racial discrimination by proxy--turns out to do something spectacularly bad in the world--pushing people toward direct racial discrimination. Today's post is along the same vein, but somewhat less depressing.

A new CJCJ study by Mike Males and William Armaline finds a spectacular decline in arrest rates for drug offenses in San Francisco. But when they broke the arrests down by race, this is the pattern that emerged:

Now, several things are notable. First, the decline is significant - even for African Americans. Which is arguably a very good thing for everyone. Second, while the racial disparity is still enormous--felony drug arrests for African Americans were ten times higher than those of people of other races--it is a significant decline from previous levels of disparity (the peak year for discrimination was 2008, when African Americans were 19.2 times more likely to be arrested for a felony drug offense than people of other races.) Finally, disparities typically shrink, rather than disappear overnight, so this could be a move in the right direction.

But this raises the question of how we measure progress. Are things better when there are overall arrests, even when large disparities (which are uncorrelated with other measures of involvement in these offenses) persist? What is the goal of relaxing drug policies?

Recently, the standard war-on-drugs-responsible-for-mass-incarceration story has been criticized, and it does seem to be a bad explanation for the overall picture. But the basic argument that drug arrests tend to target the African American population is not new. Amanda Geller and Jeffery Fagan have an excellent paper about marijuana arrests in NYC that tells a similar story. We really have to do better.

Book Review: Mona Lynch's Hard Bargains

Jeff Sessions' career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration's commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government's effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration's declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch's new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch's analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch's account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to "rescue" people from themselves and from the streets, who basically wrangles minor drug cases out of the states' hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn't even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers--poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes--are rounded up, summarily shifted to "flip flop court" for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It's difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff's Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I'll review in a future post). Lynch and Pfaff's analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist's eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies' relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.

Ganja in Trumpland: An Introduction

The campaigns for and against Prop. 64, the Adult Use of Marijuana Act, revolved around the minutiae of the proposition: Will the big guns get rich at the expense of mom-and-pop growers? Do we have to give away our medical marijuana cards and pay more for our pot? What do we do with impaired drivers?

It seems like pretty soon we'll have more serious problems on our hands as a result of legalization. Trump's planned nominee for Attorney General, Alabama senator Jeff Sessions, does not share the opinions espoused by reasonable, cost-minded Republicans about the harms of overcriminalization or the sensibility of a public health model for substance abuse. Instead, we will have to contend with a man whose acquaintances define as a "war on drugs dinosaur", and who claims that good people don't smoke marijuana.

(how do good people get their marijuana, then? Do they munch on edibles? Vape? Or maybe they smoke something else? What is it?)

The regime of state regulated-marijuana, as established by the Supreme Court in Gonzalez v. Raich (2005), means that Congress, despite its federal prohibition of marijuana, has not preempted the states from regulating it within their borders. On the other hand, it is perfectly permissible for the use of marijuana to be legal statewise and illegal vis-a-vis the federal government: after all, citizens can freely choose to obey both laws by not using cannabis. Granted, this reason was more upsetting with regard to the original plaintiffs in Raich, who suffered from debilitating medical conditions, than with regard to the prospective users of recreational marijuana in 2016. Still, it is a reminder that, while the State of California has decided to opt out of a criminal justice model, the feds can freely ignore Eric Holder and James Cole's memos about federal restraint in enforcement.

In other ways, gentle reader, there is nothing to stop Jeff Sessions from taking away your pot.

The progressive and libertarian outcry against prospect of federal intervention in recently-legalizing states is understandable. The Trump victory makes the marijuana victory hollow. Federal law enforcement can make, and has in the past made, the lives of marijuana growers, sellers, and users impossible, even in states with lack or no enforcement of their own. And some of the outcomes of this contradiction are downright bizarre. For example, gun salespeople are not allowed to sell guns to anyone who is a "unlawful user and/or an addict of any controlled substance"--including medical marijuana, as the Department of Justice clarified in 2011. Technically speaking, this state of affairs is legally permissible, because Americans can comply with both legal systems by not using marijuana, in which case nothing can stop them from buying guns. But to some commentators this is inappropriate federal intervention in state affairs.

This little example is nothing compared to what we might see during the tenure of a man who finds moral fault in cannabis users: a renewal of the federal war on drugs, with its futility, noxious tactics and tragic outcomes--but this time, with the disturbing history of the Nixon and Reagan eras to school police departments and states in carceral expansion. In this grotesque carnival mirror caused by the election, blue states will now be the ones crying out for state rights.

November 2016 Ballot: Yes on 64

My colleagues and I at UC Hastings made a series of nonpartisan, informational videos on the California propositions on the November 2016 ballot. Here's a video made by my colleague Marsha Cohen, an expert on food and drug law, about Prop. 64, the legalization of marijuana:



On this blog I make endorsements as well, and my recommendation would be to vote Yes on 64.

In 2010, there was a legalization proposition on the ballot which I supported, Prop 19, and it failed by a fairly narrow margin. I supported that one even though I found it problematic and vague: Prop 19 legalized personal use and limited cultivation of marijuana, but left the business end unregulated and up to the counties. As a result, it was unclear how much we would gain in tax revenue.

Prop 64 offers a much clearer legalization regime. Flowing from the recommendations of the Blue Ribbon Commission and relying on the experience of Colorado, Washington, Oregon, Alaska, and DC, it has set realistic price points and tax rates on sales, thoroughly regulated cultivation, possession, and sales, and provided safeguards for sales to minors.

Let's talk about the money first. The Legislative Analyst's Office anticipates gains of many hundreds of millions of dollars, up to a billion, in tax revenue. These gains are based on assumptions about patterns of use and commerce that we see in other countries and states. For substances, there is typically a group of hard-core users (See Philip Cook's analysis of alcohol: 60% of American's either don't drink at all or drink very, very little, and only 10% of Americans constitute the vast majority of drinking in the market, with an average of ten drinks a day.) Those folks will use (and pay for it) no matter what, and making sure that they buy (and pay taxes) lawfully is pretty essential. Which is why setting the price point and the taxes properly is important. It seems that this is a key consideration in the states that already have recreational marijuana: you don't want to tax too much, because that'll keep the market alive. But even though those states are considering lowering the tax, they still got revenue that far exceeded expectations, and the hope is that the same will happen here. Prop 64 sets excise tax at 15% for retail and 2.75-9.25 percent for cultivation. Sales tax for nonmedical will hover around 8%.

The proposition sets up a licensing program. Selling without a license will be an offense. Selling to minors would be an offense. Setting up shop near a school will be an offense. And, driving under the influence would be an offense.

The most convincing argument against the measure is a recent Washington state study showing a rise in THC-positive drivers involved in accidents. Here's the full study. But that someone is THC-positive does not mean that marijuana was a factor in the accident. THC is detectable in the blood up to three weeks from the time of use, and a positive finding does not mean that the person was under the influence of marijuana when the accident happened. The study took into account differences in levels of THC, but those are imprecise. Also, keep in mind that drivers were not tested for THC presence before the legalization of marijuana in Washington, so we don't have great comparative data (who knows how many people were THC-positive before legalization?) Moreover, the findings on THC alone are dwarfed by the findings on alcohol, or on alcohol and THC combined (in which case the causality issue is murkier.) The National Institute on Drug Abuse website claims that marijuana impairs driving ability, but cites a National Highway Traffic Safety Administration study that found that carefully controlled studies relying on measurements find no appreciable difference in driving. NORML, who is far from an unbiased group but who does cite unbiased research, cites far less convincing evidence of impairment under marijuana than under alcohol.

As for arguments for legalization, the existing prohibition regime has been far from successful in curbing drug use and has led to huge monetary and personal costs for people charged, convicted and incarcerated for growing and selling. We wouldn't be the pioneers of a different path, but it's a thoughtful effort and definitely worth a try. I'm going with a Yes on 64.

Marijuana Legalization Proposition Filed Today!

Today, The Coalition for Cannabis Policy Reform filed a proposition to legalize and tax marijuana in California. All the information on the propsition is on their website, Reform CA. The full text of the initiative is here.

The new law would make the following behaviors legal:

(a) To personally possess, process, share, or transport not more than one ounce of cannabis or cannabis products, solely for personal use, and not for sale. 

(b) To consume cannabis or cannabis products that are obtained and possessed in compliance with this Act when such consumption occurs at a private residence or such other location as permitted under this Act. Nothing in this section shall alter current law regarding the rights of a property owner or landlord to regulate or prohibit smoking on their property. 

(c) To cultivate homegrown cannabis in an area not to exceed one hundred (100) square feet; to possess the living and harvested plants and results of any lawfully harvested homegrown cannabis pursuant to this Article; and to transport homegrown cannabis between a lawful cultivation site and the cultivator’s residence. 

The new law also eliminates the penumbral legal implications of marijuana:

26012. (a) No person shall be prosecuted for child endangerment pursuant to Section 273(a) of the Penal Code, or any similar or successor statutes, for an action taken that is in compliance with the provisions of this Act, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child. 

(b) Notwithstanding any other provision of law, an action taken that is in compliance with the provisions of this Act, by itself, shall not be sufficient evidence of parental unfitness, or child abuse, or otherwise be used to restrict or abridge custodial or parental rights to minor children, and shall not be the basis of a criminal act nor the basis to diminish parental rights or remove a child from his or her home, unless it is determined that there exists an immediate and actual threat to the health and welfare of a child. 

The law also sets up an office that will steer policy, manage interstate issues, and determine impairment standards, among other things, and a fund for the tax revenue (5% plants, 10% edibles). The money will go toward environmental restoration of damages resulting from cannabis industry.

Still defined as a criminal offense are supplying to a minor and involving people under 21 in cultivation enterprises; and there are still duties imposed on public employees to be sober during the performance of their duties.

Congress Lifts Federal Ban on Medical Marijuana

This is huge news, friends: Congress has ended the era of medical prohibition.

The L.A. Times reports:

Tucked deep inside the 1,603-page federal spending measure is a provision that effectively ends the federal government's prohibition on medical marijuana and signals a major shift in drug policy.

The bill's passage over the weekend marks the first time Congress has approved nationally significant legislation backed by legalization advocates. It brings almost to a close two decades of tension between the states and Washington over medical use of marijuana.

Under the provision, states where medical pot is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.

The Obama administration has largely followed that rule since last year as a matter of policy. But the measure approved as part of the spending bill, which President Obama plans to sign this week, will codify it as a matter of law.

Some initial thoughts about what this means:

1. Businesses focused on medical marijuana can now operate with no fear of raids. This might lead to new types of business initiatives.
2. Even though the feds are still too wary to call off the war against recreational marijuana, loose gatekeeping in getting medical cards might make it a de-facto thing.

As an aside, the L.A. Times is quickly becoming my favorite California paper, because of excellent stories like this. Well, done, Evan Halper.

Blue Ribbon Committee Report on Marijuana Legalization

The Blue Ribbon Committee Report on legalization is out, and it raises a lot of interesting issues. It's a short and interesting read. It doesn't dwell much on the failed effort to pass Prop 19, and it looks at the initial experiences of the four states (and DC) who legalized marijuana as possible guidelines.

Among the topics discussed in the report are questions of enforcement with regard to minors and travel; concerns about workplace and environmental safety; level, type, and usage of taxation; structuring the business end of things; issues concerning the distinction between medical and recreational marijuana; and the need for statewide uniformity.

A few things worth noting:

1. The report hardly discusses tobacco and alcohol regulation as comparisons, and the references to tobacco are limited to the issue of advertising.

2. Very little attention is paid to the political configuration that makes statewide policymaking in California particularly weak - namely, polarization and neopopulism.

3. Not enough attention is paid to what we already know from economic studies of legalization and taxation: there is already some useful information coming in from CO and WA, and there will be more from other states (I will post some links in a future discussion.)

4. The distinction between marijuana and other drugs, and the retrenchment of the latter category, is worth discussing, even if there are good arguments to justify it.


I will be speaking about the report on KQED this afternoon.

Crack, Torture, and Conspiracy Theories: Why and Which Stories Matter

Conspiracies and evil machinations have been on my mind lately, for a combination of reasons. One of them is that I recently gave a post-play talk at Cutting Ball Theater's production of Superheroes, a play by Sean San José performed in collaboration with Campo Santo. The play is a non-narrative, nonlinear take on the 1996 revelations of Gary Webb, then a journalist with the San Jose Mercury News. In a three-part series of articles titled Dark Alliance (later to appear as a book), Webb outlined the emergence of the crack cocaine epidemic in America's inner cities. According to the story, CIA agents allowed Nicaraguans who financed the Contras to import cocaine into the United States with impunity and protected mid-level drug dealers from the consequences.

That the CIA was aware of drug importing was already known at the time; a 1989 Senate committee admitted as much, but stopped short of tying the CIA to the actual trafficking. Webb's article provided the missing link. In response, the New York Times, the Washington Post, and the Los Angeles Times refuted and discredited the story, leading the San Jose Mercury News to withdraw it and sack Webb. After a stream of small jobs and financial ruin, Webb committed suicide.

A recent Hollywood movie, Kill the Messenger, reaffirms Webb's findings. And at the talk I gave, many audience members, especially people of color who came of age during the heyday of the epidemic, expressed their firm belief that Webb was right, and that the CIA deliberately pushed crack cocaine into their neighborhoods with the express goal to destroy them. Michelle Alexander's The New Jim Crow gives credence to this "strong Webb theory" as well.

Which raises two questions: what do you believe, and, does it even matter what the truth is? When assessing our belief in a story, it's important to keep in mind the context in which we hear it. There is a lot of talk about white privilege these days, and it's making a lot of people angry and defensive to the point that I'm not sure the term is useful or productive anymore. What some hear as anger and some as accusation can, however, be understood as an effort to explain to others that one's lived experience cannot inform a complete view of the subject, and that it is sometimes helpful to open one's eyes and hearts to the lived experiences of others, particularly if one's social advantages in life are taken for granted and make them unaware of lives lived without these advantages. The protests erupting in many American cities, by people who are sick of police abuse and of the devaluing of black lives, are an expression of this frustration with not being heard and with having a particular set of experiences ignored and trivialized, even when we are presented with irrefutable evidence.

I think it's important to take these experiences seriously. Not because I think, at this point, that anyone can productively point the finger at someone at the CIA as some archvillain who decided that dying from crack would be white America's "final solution" to the black population (if anyone did, I'm sure they've found that their cure was much worse than whatever disease they assumed to fix.) I think these experiences matter because, regardless of the personal intent of actors in the system, even if one assumes a modest version of Webb's theories, which merely ascribes ignorance and neglect, it is frightening that the CIA's rush to protect the Contras and their allies would lead them to discount the horrific effects drug importing would have on neighborhoods and communities.

In many ways--which I said on Sunday night at the show--ignorance and neglect are worse than intent and malicious design. Because, if someone is evil and malicious, we can point a finger, accuse, (try to) prosecute. But if there is an entire system which, at some point, just decided that the bottom 15% of American citizens are dispensable, there's not a lot to do and the fight is going to be much longer and harder. And also, because anyone who regards you as an enemy at least ascribes you some importance. On the other hand, if you are discounted, disregarded, and discarded, it's because, as many of the protesters today are pointing out, the system has come to the collective conclusion that your life doesn't matter.

Another thought I've had on this has to do with the credibility of the theory. This morning, the Senate Committee's report on the CIA's use of torture came out. The report tells you what your country does to people, many of whom are probably innocent, without informing you (if you don't know, please educate yourself). Before 9/11, before the nonexistent weapons of mass destruction, before many other things happened, some of you might've thought this impossible, a joke. But those of us who grew up on shows like Mission: Impossible were raised on the premise that we are the good guys, and as such, we are entitled to treat the world as our personal sandbox: torturing, abusing, stealing elections in at least eight countries. Mission: Impossible was a work of fiction, but maybe it was designed to make the inconceivable possible, to ameliorate our feelings and desensitize us for the moment in which we learned the truth.

And what a terrific indoctrination job! In 1974, when we found out that the White House was plotting to steal an election and spied on the opposite party, the president had to resign.  Now, as we find out that a government agency is regularly listening to our telephone conversations and reading our mail, we're not even apathetic; we're jaded.

So the question is no more whether the crack cocaine conspiracy is believable or unbelievable. Pretty much everything is in the ballpark of the believable, and Webb's exposé was not even that far from what the Senate itself admitted back in 1989. The question is, what are we going to do about this?

This Sunday: Cutting Ball Theater's Superheroes

This weekend, Sean San José's play Superheroes, which addresses the crack epidemic, debuts at Cutting Ball Theater. After the show on Sunday, Dec. 7, I'll be giving a short talk about the crack epidemic, the criminal justice system, and the failures of the war on drugs.

Where: The EXIT, 277 Taylor Street, San Francisco
When: 5pm

2014 Election Postmortem: YES on 47!

With enough information to comfortably call appointments and shots, and with some distressing news for Democrats in the Senate, I'd like to focus on the important news on the local scene.

The most important of these for CCC readers is the passage of Prop 47 with 58.5% voter support. The proposition will downgrade several nonviolent, nonserious offenses to misdemeanors, and will allow people currently serving felony time for these misdemeanors to petition for resentencing.

A few things that bear mentioning: First, many of the people whose offenses are affected by Prop 47 are already doing time in jails, as a function of Realignment, and some of them might even be doing a split sentence, which means they're not in confinement at all. As such, they are also already under the authority of local probation offices and not of the statewide parole apparatus. It would be interesting to know, therefore, how much resentencing would really need to happen. My suspicion is that the effects of Prop 47 will be mostly felt in the counties that did Realignment wrong--building more jails and not using split sentencing--rather than in counties that embraced the reform. The late awakening of the Los Angeles D.A. preceded this proposition only by a few months.

Second: if that's the case, and if Realignment already did most of this, what practical impact might this have? Well, for starters, think of all the offenders doing time who could not vote in 2014 because they were classified as felons--even though they were physically doing time in jail. Reclassified now as misdemeanants, these folks will be allowed to vote in 2016. This is excellent news that affect many thousands of Californians. Also, there are several Third Strikers whose third offense would now qualify as a misdemeanor, not a felony, and would therefore not trigger the law at all. Those folks are applying for resentencing anyway, as a result of Prop 36 and thanks to the efforts of the Stanford Three Strikes clinic, but I think their chances of prevailing may have improved.

And third: The passage of Prop 47 doesn't mean that people have become more humane or care more about offenders. The proposition was a classic humonetarian move, appealing to people's financial prudence, and it was supported by folks of all political stripes, including Newt Gingrich. I only regret that the proofs for Cheap on Crime are already set, otherwise I could add a few hefty paragraphs about this campaign. It's right out of the Cheap on Crime playbook.

Other than that: Prop 46 did not pass; it was a mixed bag of arguably good things and litigation-hungry things, and I'm not quite sure whether to celebrate or mourn its defeat.

And finally:

Dear Governor Brown, I congratulate you for earning a second term. As California limits governors to two terms, this is your opportunity to take the prison crisis seriously without worrying about reelection statistics. This is an opportunity to reform felon voting laws, to abolish the death penalty (which I know you think is ridiculous and expensive) and to make good things happen for formerly incarcerated people in their communities. This is an opportunity to outlaw Pay to Stay and to abolish long-term solitary confinement in California. Please, take this opportunity and let's make history. Don't let a serious financial crisis go to waste.

Federal Court Hearing: Declassifying Marijuana

On Monday, the federal court of the Eastern District held a hearing challenging the classification of marijuana as a Schedule 1 drug. Among the scientists testifying was Dr. Carl Hart, whom some of you may remember from the movie The House I Live In. There's a blow-by-blow account of the testimonies in the case, U.S. v. Schweder, in this blog.

Happening Right Now: CA Assembly Vote on Crack/Cocaine Disparity

As we speak, the California Assembly is voting on SB 1010, which, if passed, will eliminate the sentencing disparities between powder and crack cocaine in California. The rest of the agenda is here and you'll be able to watch this historical vote live here.

Late to the Party: Legalization Frenzy in the NYT and the Guardian

Hey, you! Yes, you! Come over here; I have big news. Did you know that the war on drugs is wasteful and has not made a dent in drug abuse and trafficking? And that some substances should just be decriminalized? Amazing, right? Well, this revolutionary thinking comes to you straight from the nation's most respected newspaper!

Apparently, the New York Times and the Guardian think this is a major novelty. This from the NYT:

The federal government should repeal the ban on marijuana.

We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.
There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.

There is honest debate among scientists about the health effects of marijuana, but we believe that the evidence is overwhelming that addiction and dependence are relatively minor problems, especially compared with alcohol and tobacco. Moderate use of marijuana does not appear to pose a risk for otherwise healthy adults. Claims that marijuana is a gateway to more dangerous drugs are as fanciful as the “Reefer Madness” images of murder, rape and suicide.

There are legitimate concerns about marijuana on the development of adolescent brains. For that reason, we advocate the prohibition of sales to people under 21.

Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.

The newspaper invites readers to participate in debate. And it's great that big periodicals are getting behind the cause. But--really, NYT? You've only now reached this conclusion "after a great deal of discussion"? Where the heck were you doing journalism in the last forty years, on Mars?

I think Nate Silver is right on the money when he shows why the NYT is getting on the bandwagon only now that it's advantageous to do so:

Some of it is that I get irked when elites get credit for publicly taking “bold” positions that other folks came to much sooner. This is particularly the case when the position is one you’d expect them to have held in their private lives all along.

But there’s a particularly large gap between elite and popular opinion on marijuana policy. Consider that, according to The Huffington Post, none of the 50 U.S. governors or the 100 U.S. senators had endorsed fully legal recreational marijuana as of this April — even though some of them are very liberal on other issues, and even though an increasing number of them represent states where most voters support legalizing pot.

Perhaps some of this is smart politics — older Americans are less likely to support marijuana legalization and more likely to vote. But there’s also a more cynical interpretation: racial minorities, low-income Americans and young people are disproportionately more likely to be arrested for marijuana offenses than senators or newspaper editorial board members (or their sons and daughters). The elites may be setting the policy, but they’re out of touch with its effects.

That reminds me of Obama's sudden change of heart in favor of same-sex marriage, after basically all ight-minded people had moved to the other side.  I expect more trendsetting and leadership from a world-class newspaper than from a politician.

And also, regulation "will be complex"? What about all the hundreds of thousands of good people doing work on this for the last few decades? What about the blueprints easily available, and all the debates already on the record?

Don't get me wrong; of course this is better than supporting the war on drugs. But I'm dismayed to see such cowardice and Johnny-come-lately behavior from the New York Times. Next time, guys, wake up sooner. Perhaps that would save more lives and futures.

This Saturday: SSDP's Western Regional Conference

Students for Sensible Drug Policy are holding their annual conference at UC Hastings in San Francisco this coming Saturday. Yours truly will be speaking, but the real reason to show up is to hear the amazing array of health professionals, dispensary businesspeople, advocates, legislation experts, and the keynote speaker, San Francisco Public Defender Jeff Adachi. Here's the program for the day:

The conference is free and open to the public, but requires your preregistration here. What better way to spend your Saturday than learn more about drugs, and particularly marijuana legalization?

Criminal Justice Bills Vetoed by Gov. Brown in 2013

Image courtesy the Los Angeles Times.

Our first post in this series reviewed the bills signed into law by Gov. Brown in 2013. This edition examines some of the bills vetoed by the Governor, complete with veto memos and some thoughts about the future of the ideas behind the bills.

We all heard, of course, with great disappointment about the vetoing of SB 649, which would have reclassified simple drug possession offenses as "wobblers", thus allowing their prosecution as either felonies or misdemeanors. The passage of the bill would have put California on par with several other states. Not all, however, is lost. Gov. Brown's veto message indicated that, while he wasn't comfortable with this change, he might be open to other drug law reform (a good example is his signing of AB 721, which effectively decriminalizes drug transportation for personal use.)

There were other disappointments, and they were for the most part along the lines of failed attempts to create broad health-care and rehabilitation reforms or to curb police power. Examples of the former are AB 994, which proposed creating a postplea misdemeanor diversion program in each county; AB 1263, addressing Medi-Cal for low-income people, which would have had important implications for formerly incarcerated folks and their families, as it would establish CommuniCal, which would dispense information to folks with low proficiency in English; and AB 999, which would require CDCR to develop a 5-year plan to extend the availability of condoms in all CA prisons. An example of the latter is the veto on SB 467, which would prohibit a governmental entity from obtaining information from an electronic communication service provider without a warrant, and require that the subscriber/customer receive a copy of the warrant.

Some of these vetoes are deeply disappointing, but it is important to observe that they addressed extensive medical reforms, which the Governor may believe he is solving with his proposition to spend an enormous sum of money on privatizing prisons and thus reducing overcrowding.

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Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown's desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We've all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State's voting rights guide, explaining clearly people's rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor's desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR's accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9^th grade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there's SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a "wobbler" (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable--a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits "revenge porn", that is, distributing someone's nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover "sexting" situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a "reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There's also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people's name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there's an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We're also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn't a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.

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BREAKING NEWS: Bill Allowing Charging Simple Possession as Misdemeanor Clears Assembly Floor

SB 649 (Leno) will allow prosecuting simple possession of certain controlled substances, including, among others, opiates, opium, opium derivatives, mescaline, peyote, tetrahydrocannabinols (marijuana), and cocaine base, as "wobblers", that is, either as felonies or as misdemeanors. SB 649 has just cleared the assembly floor, 41-30, and it's on the way to Gov. Brown via a Senate approval of the amendments.

This is very good news to those who would like to see the end of the war on drugs, and who think that nonviolent drug offenders are being punished too harshly.

UPDATE (Sep. 10, 2013): The bill has now passed the Senate floor as amended and is on its way to the Governor for signatures.