Thursday, May 30, 2013

A Needed Law Suit to Overturn Prohibition

what the Covington & Burling pro bono program ought to do

from wikipedia

Several authors have put forth arguments concerning the legality of the War on Drugs. In his essay The Drug War and the Constitution,[1] Libertarian philosopher Paul Hager makes the case that the War on Drugs in the United States is an illegal form of prohibition, which violates the principles of a limited government embodied in the Constitution. Alcohol prohibition required amending the Constitution, because this was not a power granted to the federal government. Hager asserts if this is true, then marijuana prohibition should likewise require a Constitutional amendment.

Federalism argument

In her dissent in Gonzales v. Raich (a case argued by Randy Barnett), Justice Sandra Day O'Connor argued that drug prohibition is an improper usurpation of the power to regulate interstate commerce, and the power to prohibit should be reserved by the states. In the same case, Justice Clarence Thomas wrote a stronger dissent expressing a similar idea. Chief Justice William Rehnquist joined O'Connor's dissent.

Substantive due process

Another argument against drug prohibition is based on the notion that its practice violates implicit rights within the substantive due process doctrine. It has been suggested that anti-drug laws do not achieve enough reasonable benefit to State interests to justify arbitrarily restricting basic individual liberties that are supposed to be guaranteed by the Fifth Amendment and the Fourteenth Amendment to the US Constitution. One proponent of this notion is attorney Warren Redlich.[2]

In 2002, the U.S. State of Florida attempted to eliminate criminal intent as an element of the crime of drug possession. On July 27, 2011, U.S. District Judge Mary S. Scriven ruled that the Florida law was unconstitutional, saying that the elimination of the element of intent was "atavistic and repugnant to the common law". Nellie King, president of the Florida Association of Criminal Defense Lawyers, explained the ruling in terms of due process.[3] The ruling is subject to appeal.

The substantive due process argument is sometimes used in medical marijuana cases. NORML once wrote in an amicus brief on United States v. Oakland Cannabis Buyers' Cooperative that the right to use medical marijuana to save one's life is within the rights established by the substantive due process.[4] However, the Supreme Court found against the medical marijuana dispensary and for the United States in the aforementioned case. Some apparently believe that this invalidates the substantive due process argument against the Controlled Substances Act.

However, the Supreme Court expressly declined to rule on the issue of substantive due process in the aforementioned case, ruling against the medical marijuana dispensary in question on grounds of statutory construction, as the Court found that there was no standalone medical necessity defense in the Controlled Substances Act. Justice Clarence Thomas' majority opinion clearly explains that the Court did not consider any Constitutional arguments in coming to the conclusion that it reached. As Justice Thomas expressly states in his majority opinion: "Finally, the Cooperative contends that we should construe the Controlled Substances Act to include a medical necessity defense in order to avoid what it considers to be difficult constitutional questions. In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress’ Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity.

Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle.

Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance."[5] As such, the question of the constitutionality of the Controlled Substances Act under the doctrine of substantive due process remains an open one, undecided by the Supreme Court, and debated by the citizens of the United States. Even some opponents of the substantive due process argument who support the War on Drugs have noted that the doctrine could potentially lead to the invalidation of anti-drug laws.[6]

Rule of law

It is argued that the reverse burden of proof in drug-possession cases is incompatible with the rule of law in that the power to convict is effectively taken from the courts and given to those who are willing to plant evidence.[7]

Legal vs. illegal drugs

Many have also stressed the inequality of certain drugs remaining illegal while others that are equally harmful are completely legal. Examples of this include both tobacco and alcohol being legal in most countries and with few inter-personal restrictions despite them both being seriously harmful to a person's health.

Many countries practice heavy taxation on tobacco and alcohol products, and use these funds to pay for treatment and prevention programs.[citation needed]

Inequities in prosecution

The social consequences of the drug war have been widely criticized by such organizations as the American Civil Liberties Union as being racially biased against minorities and disproportionately responsible for the exploding United States prison population. According to a report commissioned by the Drug Policy Alliance, and released in March 2006 by the Justice Policy Institute, America's "Drug-Free Zones" are ineffective at keeping youths away from drugs, and instead create strong racial disparities in the judicial system.[8]

Freedom of religion and conscience

A special problem is created by government prohibition of psychedelic drugs such as LSD, peyote, psilocybin mushrooms, and ayahuasca. Some people use such substances with definite spiritual or religious motives. Use of peyote and ayahuasca is currently legal in the US for members of certain recognized religions (e.g., Native American Church). However nothing in the Free Exercise clause of the First Amendment implies that sincere and responsible exercise of freedom of religion or conscience requires formal affiliation with an established religious denomination.


  1. ^ Hager, Paul (1991). "The Drug War and the Constitution". The Libertarian Corner.
  2. ^ Redlich, Warren (2005-02-05). "A Substantive Due Process Challenge to the War on Drugs" (PDF). "It is true that the approach suggested in this paper would limit police power. Constitutional protection of individual rights exists for that very purpose. We face coercive government action, carried out in a corrupt and racist manner, with military and paramilitary assaults on our homes, leading to mass incarceration and innocent deaths. We can never forget the tyranny of a government unrestrained by an independent judiciary. Our courts must end the War on Drugs."
  3. ^ Spencer-Wendel, Susan (July 28, 2011). "Federal judge rules Florida's drug law unconstitutional". Palm Beach Post.
  4. ^ Amicus brief NORML
  5. ^ United States v. Oakland Cannabis Buyer's Cooperative, Majority Opinion of Justice Thomas United States v. Oakland Cannabis Buyer's Cooperative
  6. ^ Is the Constitution in Harm's Way? Substantive Due Process and Criminal Law Eric Tennen
  7. ^ Anon. "The universally unconstitutional war on drugs (3rd Ed.)".
  8. ^ "How drug-free zone laws impact racial disparity–and fail to protect youth". Justice Policy Institute. Archived from the original on July 18, 2006. Retrieved July 27, 2006.

Time to Legalize Some Drugs

published October 2, 1987 Westchester Gannett newspapers

Legalize the plant drugs Cannabis, Coca and Opium

William Raspberry is mistaken if he thinks the government has not been going after consumers.  Indeed, in all of the victimless or "vice" type of crimes, drug type laws have been the ones where the customer is most vigorously prosecuted.

Raspberry seems unaware of the large numbers of drug users serving jail sentences for mere possession with thousands having served sentences of ten years for having as little as one marijuana cigartette.  Although marijuana penalties were reduced during the 1970s in a few state, the definiton of a "drug dealer" is broad enough to allow or mandate a disproprtionate jail term for friends who pass a joint around in social sessions on private property.

Likewise with the rise in popularity of cocaine and the raise of political opportunists such as Rudolph Giuliani, who find it advantageous to theoir political careers to set up elabprate sting operation and waste tax dollars prosecuting and jailing productive white collar coke users, our jails are overflowing.  Although a minority of cocaine destroy themselves with the overuse and/or misuse, millions of responsible and productive citizens with healthy relationships with such drugs suffer daily insult and threat from government.

I am dismayed that Raspberry fails to see the threat to civil rights posed by a government stirring up animosity and hatred towards peaceful minority groups of individuals.  If Raspberry wants to rid peaceful neighborhoods of (presumably non peaceful) drug dealers, he would support legalization.  There is no justification for the laws against marijuana and cocaine in its natural chemical form, coca, which contains many nutrients and other alkaloids recognized as modifying cocaine's effects in ways that can only be described as good.

Legalization would not only solve or mitigate drug problems, it would avoid the disturbing increase in government powers over individual freedom.

Although history has shown conclusively that drug prohibition is doomed to failure, politicians seek more police state power to fight this war.  For so many to be so blind, or deceitful about this assault on civil rights and liberties is frightening.

D Willinger Jan 4, 1988 Letter Blame Misplaced

Saturday, May 25, 2013

Another Reason for Another Protest at Covington & Burling

protect freedom of medicine and diet from pharmacratic mercantilism

Thumbnail image for ERic HOlder.jpg

While the cannabis communities of Colorado and Washington await a response to recently-passed marijuana laws from Attorney General Eric Holder, it seems he's busy writing other speeches:

graduation remarks for the University of California at Berkeley law school commencement, which as held over the weekend.

Ganja activists took the opportunity to swarm the campus and even went so far as to fly a custom banner over the outdoor Greek Theater that read: "Holder: End Rx Cannabis War #peace4patients," according to the Huffington Post.

The group was with Americans for Safe Access and were protesting the recent federal action against the Berkeley Patients Group and raising awareness for their new group, Peace for Patients aimed at stopping the war on medical cannabis users.

"Patients will not stand idly by while Attorney General Holder's Justice Department continues to attack our community and endanger the lives of Berkeley residents" said one of the protesters outside the ceremony, according to an ASA press release. "We're here today to call attention to the misguided policies of the Obama Administration and to ensure that his ongoing campaign against medical marijuana is stopped in its tracks."

As we reported last week, BPG is the largest dispensary in Berkeley and as such was the target for a large federal lawsuit filed May 2 that would force the dispensary to shut down and hand over their assets to the feds. Federal agents have also targeted BPG's landlord, threatening to seize the property.

This is the second time the BPG has been targeted. In 2011 they moved locations after receiving a notice from the U.S. Attorney forcing them to move further than 1,000 feet from any schools.

This time, the owners of BPG have decided to fight back. "Berkeley Patients Group intends to vigorously defend the rights of its patients to be able to obtain medical cannabis from a responsible, city-licensed dispensary," said Sean Luse, Chief Operations Officer for BPG.

Even Berkeley Mayor Tom Bates thinks the feds have overstepped their bounds.

"I think it's time for the federal government, the president and the attorney general to wake up and stop these kinds of actions. Here is a group of people who have played by the rules and have had no problems in the city with the way they or their patients conduct themselves."

Holder didn't respond to the protestors outside (big surprise there). Interestingly, he did make the final closing point in his speech, according to the university newspaper, The Daily Cal: "Use your unique skills, your idealism and the power that your new law degree affords to better yourselves, to improve your communities and to solve the complex problems that undoubtedly lie ahead," he said.

We know of an area in our communities that might be a good start for at least a few Berkeley Law grads...

[ and perhaps some adaptive re-use of Covington & Burling's bro bono program ... ]

Wednesday, May 22, 2013

Free Dana Beal

Ibogaine anti addiction activist
currently incarcerated and up for parole

Free Dana Beal! Founder of the Global Marijuana March. Great letter. Some history of Dana's activism. Please share! Thanks to all the great people helping Dana out.

 Dana wrote the following model letter for early parole.  He wrote:  "No two letters should be exactly the same, but the contents of the last paragraph should go in each one."

State of Nebraska Board of Parole
PO Box 94754
Lincoln, NE 68509-4754


Dear Sir or Madam:

I have read that due to prison overcrowding, you have a program of early parole (furlough) for non-violent offenders and inmates with health problems.  I think Irvin Dana Beal should be at the top of your list.  He's had two heart attacks in the past 18 months, including full cardiac arrest on September 27, 2011when he was clinically dead for 4 minutes, followed by 6 days in an induced coma, followed by a double bypass.  His hospital bill was almost a quarter of a million dollars, a bill Iowa County, WI only partially dodged by granting him emergency appeal bond.  (They still had to pay $114,000.)  On February 24, 2012, he had a second heart attack; the stent cost WI DOC another $50,000.

Beal is currently incarcerated in Nebraska for providing medical marijuana to patients with serious life-threatening conditions in Michigan, NYC, and Washington, D.C. -- mostly people with AIDS.  The prosecutor refused to admit that even though their provider was arrested, the seriously ill continue to need their medicine, and also that Beal was a sick man taking care of other, even sicker people.

Ironically, Beal is not only a founder of the medical marijuana movement, but a longtime AIDS activist who worked in the '90s with the National Institute on Drug Abuse (NIDA) on the first broad spectrum treatment for addiction to methamphetamine, cocaine, opiate, alcohol , and cigarettes -- ibogaine.  Just last Fall, NIDA appropriated $5 million to develop its own, synthetic iboga congener, 18-methoxycoronaridine (18-MC).  Beal has devoted half his life to a cure for drug addiction.  If you give him a furlough, he's ready to use his exhaustive knowledge of FDA regulations, addiction medicine, and personal ties at NIDA Medications Development to secure funding and help the Nebraska DOC and University of Nebraska set up Phase I and Phase II clinical trails of 18-MC for interruption of addiction to methamphetamine, crack, opiates, and alcohol -- thereby solving your prison overcrowding problem.  Instead of confining Beal, you should be utilizing this resource.   Enforced inactivity is nowhere near as bad as the punishment inflicted on Nebraska taxpayers because you're not using the only known pharmacotherapy for crystal meth.


[print name and

Saturday, May 18, 2013

Fake Reformist Jimmy Carter Against Legalization

Recall how Carter hid behind a sole reformist appointee (Peter Bourne) to fool many into supporting him as a "reformist" U.S. President.

Wednesday, May 8, 2013

Mike Grey is Dead

May 2, 2013 - By Marsha Rosenbaum

Mike Gray, who passed this week, was a prolific writer, producing screenplays, books, and documentaries.

Right from the beginning of our movement, Mike was a major player in drug policy reform. His 1998 book, Drug Crazy: How We Got into this Mess and How We Can Get Out, which was among the first to parallel alcohol and drug prohibition, was both historical and solution-oriented. The book was a brilliant work of journalism that instantly became a mainstay in drug policy libraries all over the world.
In the early days of the Lindesmith Center (which later became the Drug Policy Alliance), the highly accessible writing that characterized Drug Crazy provided an invaluable resource for our focus on public education. To this day, the history outlined in this “classic” is required reading for newcomers in search the origins of America’s misguided drug policy.
Mike spoke passionately at conferences, forums, and fit right in at meetings of organizations such as the Elks Club, where he looked as if he could be a member. He was straightforward and succinct, and knew how to connect with and educate both conventional and unconventional audiences. Perhaps that’s because Mike was a “man’s man” who could be gruff and humorous in the same sentence, and used terms like “doll” without sounding chauvinistic. He was part of a (literally) dying breed of smart guys who came of age in the 1950’s and managed to grow with the changing times.
For his colleagues in the reform movement, Mike was generous. He was willing to help with others’ projects, interested in the latest developments, and always enthusiastic.
For me, Mike was more than a colleague. He was a friend. I feel so lucky to have had Mike Gray as an ally in our mutual struggle and will miss very much this humble, good-natured activist-scholar, who greeted me warmly with “Hello Doll, what’s new?”
Marsha Rosenbaum is director emerita of the San Francisco office of the Drug Policy Alliance.