There's one major caveat, of course, to the efforts to legalize marijuana in WA: regardless of what happens here, marijuana remains a federal schedule I drug. As far as the feds are concerned, marijuana has no medical use and is just plain flat-out illegal, no matter who's selling it.
So, if Washington State actually does pass a bill legalizing marijuana-- and, what's more, regulating and selling it through state liquor stores-- what happens?
If pot was just legal in WA, this would be pretty simple: local law enforcement ignores (or is supposed to ignore) the drug trade, while the DEA still has the authority to enforce the federal law. How much federal agents would actually do would depend on several factors: the DEA has a limited budget and only so many agents, and would likely only go after major operators.
... Not that this would be much of a shield for any smaller ones swept up in the process.
This already happens vis-a-vis medical marijuana; the state allows the defense, the federals don't, and the question boils down to which system you're in.
What makes this fun is that the State of Washington is actually considering selling the stuff itself through state-owned liquor outlets. This looks on its face like it threatens to make the state itself a drug trafficker.
Could state liquor store employees be hauled off to the federal pen by the DEA? Would the agency or agencies responsible for regulating the trade be prosecuted for drug conspiracy? Could Christine Gregoire, if she signs the bill, be hauled in as a ... a drug kingpin?
It seems absurd, but if there's a reason they couldn't (aside from the sheer public spectacle and probable outrage), I can't think of it. It may be that the state is ultimately shielded only by the practicalities of the situation. The simplest approach would probably be for the federal government to sue to prevent the state from putting any marijuana-distribution system into place.
And then there's the Obama aspect: as chief executive, he has a great deal of influence over what the DEA and Justice Department do, or don't do.
History is a messy business, it seems.
Monday, February 28, 2011
Saturday, February 19, 2011
Friday, February 18, 2011
Watch Your Back....
So a few years back, a couple of truck drivers along the border with our northern neighbor got picked up by the border patrol when shipments (and yes, considerably more than 40 grams) of marijuana were discovered in their cargo. In the one case, the marijuana was in an empty space in front of 18 pallets of beer. In the other, the marijuana was hidden inside a modified propane cannister.
Despite the large quantities, the prosecutors ultimately couldn't prove to the jury's satisfaction (despite the large quantities involved) that the two had been carrying the MJ intending to turn it over to someone else at the other end-- most likely because they couldn't show that the truck drivers had any idea what they were carrying.
Did these two walk free? No. Why? They were convicted of possession of a controlled substance-- more than 40 grams of marijuana, a class C felony.
Now, wait a minute: if the jury wasn't sufficiently convinced that they knew what they were carrying to say they were carrying it with intent to deliver, how the hell did they get themselves convicted of possession?
Simple answer: our two unfortunate drivers couldn't prove that they didn't know. The case is State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004), and it appears to stand as good law.
Simple possession in this state is "almost" a strict liability offense-- a category of usually-minor offenses that you don't have to have any kind of criminal mental state to commit. To give you an idea of how it works, here's a rough sketch.
Most crimes require an "evil-doing hand" (actus reus) and an "evil-thinking mind" (mens rea). Murder, for instance: you can commit it by killing somebody on purpose ("DIE!"); as a known, but not intended, side-effect of another action ("Look, pal, it's you or my favorite pen, and I like my favorite pen way better!"); or by acting with amazingly reckless disregard for human life ("You know what's really fun? Driving the wrong way down I-5. You should see the looks on people's faces!"). There are all sorts of permutations and stages and categories, like manslaughter and vehicular homicide, but they all have this much in common: if you kill somebody without having your head on wrong in some way (being a drunk driver counts as having your head on wrong), it's called an accident, and they don't generally lock you up for that.
On the other hand, if you drive through a light while it's red, what you are thinking at the time isn't worth much, unless it's to convince the judge to show mercy. That's a strict liability offense; most traffic infractions are.
So how is drug possession "almost" strict liability? Well, you get a chance to duck it: if you can prove to the jury by a preponderance of the evidence (51% or more) that you really, truly had no idea that you had that package of [fill in illicit substance here], you're off the hook.
That's you, the hypothetical defendant, trying to prove a negative, so it's a mercy that you only have to get the jury as far as "probably didn't know."
It's easy to see the policy behind this one: we don't want every drug mule who gets arrested to get off easily on the "Hey, wait a minute, man, I had no idea that was there!" defense. Doesn't everybody try to use that one?
The problem is this: supposing you're a regular cross-border commuter. Nefarious Canadian drug smuggler A knows of your schedule and home address, and decides that you're the perfect mule. Rather than bring you in on his schemes, risk exposure, and and have to pay you a cut, however, he just duct-tapes a kilo of powder cocaine behind your left-rear fender, gives your address, the make and model of your car, and the location of the package to his buddy, B, in the States, and off you go with your package-- none the wiser. B will pay you(r car) a quiet visit at about 3 AM the following morning.
Wash, rinse, repeat.
When the border guards eventually (inevitably?) pick you up, exactly how are you going to convince the jury that you probably didn't know that package was there? Especially if they haven't caught A or B? There are ways, yes, but sure ways? Even if you can bring in loads of friends to say what an upstanding person you've always been, how can you ever be sure the jury won't look at the bridge of your nose, the way your ears stick out, or the way your tie hangs and think, "Yeah, I suspect that's the face of a hypocrite"?
You can't.
If the prosecutor doesn't have to prove beyond a reasonable doubt that you knew what you were carrying, the jury is no longer bound to weigh a "can't be sure" in your favor. In short, it's a recipe for convicting the innocent alongside the guilty.
As a note, we are apparently one of only two states that handles things this way; the other is North Dakota.
So watch yourselves, out there.
Despite the large quantities, the prosecutors ultimately couldn't prove to the jury's satisfaction (despite the large quantities involved) that the two had been carrying the MJ intending to turn it over to someone else at the other end-- most likely because they couldn't show that the truck drivers had any idea what they were carrying.
Did these two walk free? No. Why? They were convicted of possession of a controlled substance-- more than 40 grams of marijuana, a class C felony.
Now, wait a minute: if the jury wasn't sufficiently convinced that they knew what they were carrying to say they were carrying it with intent to deliver, how the hell did they get themselves convicted of possession?
Simple answer: our two unfortunate drivers couldn't prove that they didn't know. The case is State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004), and it appears to stand as good law.
Simple possession in this state is "almost" a strict liability offense-- a category of usually-minor offenses that you don't have to have any kind of criminal mental state to commit. To give you an idea of how it works, here's a rough sketch.
Most crimes require an "evil-doing hand" (actus reus) and an "evil-thinking mind" (mens rea). Murder, for instance: you can commit it by killing somebody on purpose ("DIE!"); as a known, but not intended, side-effect of another action ("Look, pal, it's you or my favorite pen, and I like my favorite pen way better!"); or by acting with amazingly reckless disregard for human life ("You know what's really fun? Driving the wrong way down I-5. You should see the looks on people's faces!"). There are all sorts of permutations and stages and categories, like manslaughter and vehicular homicide, but they all have this much in common: if you kill somebody without having your head on wrong in some way (being a drunk driver counts as having your head on wrong), it's called an accident, and they don't generally lock you up for that.
On the other hand, if you drive through a light while it's red, what you are thinking at the time isn't worth much, unless it's to convince the judge to show mercy. That's a strict liability offense; most traffic infractions are.
So how is drug possession "almost" strict liability? Well, you get a chance to duck it: if you can prove to the jury by a preponderance of the evidence (51% or more) that you really, truly had no idea that you had that package of [fill in illicit substance here], you're off the hook.
That's you, the hypothetical defendant, trying to prove a negative, so it's a mercy that you only have to get the jury as far as "probably didn't know."
It's easy to see the policy behind this one: we don't want every drug mule who gets arrested to get off easily on the "Hey, wait a minute, man, I had no idea that was there!" defense. Doesn't everybody try to use that one?
The problem is this: supposing you're a regular cross-border commuter. Nefarious Canadian drug smuggler A knows of your schedule and home address, and decides that you're the perfect mule. Rather than bring you in on his schemes, risk exposure, and and have to pay you a cut, however, he just duct-tapes a kilo of powder cocaine behind your left-rear fender, gives your address, the make and model of your car, and the location of the package to his buddy, B, in the States, and off you go with your package-- none the wiser. B will pay you(r car) a quiet visit at about 3 AM the following morning.
Wash, rinse, repeat.
When the border guards eventually (inevitably?) pick you up, exactly how are you going to convince the jury that you probably didn't know that package was there? Especially if they haven't caught A or B? There are ways, yes, but sure ways? Even if you can bring in loads of friends to say what an upstanding person you've always been, how can you ever be sure the jury won't look at the bridge of your nose, the way your ears stick out, or the way your tie hangs and think, "Yeah, I suspect that's the face of a hypocrite"?
You can't.
If the prosecutor doesn't have to prove beyond a reasonable doubt that you knew what you were carrying, the jury is no longer bound to weigh a "can't be sure" in your favor. In short, it's a recipe for convicting the innocent alongside the guilty.
As a note, we are apparently one of only two states that handles things this way; the other is North Dakota.
So watch yourselves, out there.
Monday, February 14, 2011
Disdain and Fear
In general, our culture doesn't think much of drug users.
This is an old truth, one with some pedigree to it. While opium and such have been legal for a very large percentage of human history, a general suspicion of drugs and those who partake of them has been with us since ancient Greece, if not before.
The basic concern, the source of much of the disdain, seems to be that, regardless of how harmless a drug may be, those under its influence aren't good for much while its effects last. "Drunkards" and "potheads," though one's innebriating substance is (now) legal and the other is (presently) not, both share this core source of contempt: neither has a reputation for being reliable, trustworthy, or capable. The popular conception of either one under the influence is, at best, a sort of floppy person better suited for staring through the ceiling than going out to buy a carton of milk, much less filling out the yearly income tax.
In other words, people tend to kind of think of them as a bit of a waste of space. He who uses is seen as wasting his life, wealth, and health, and eventually likely to sink into a dissolute spiral of increasingly destructive behavior. That's where the contempt comes from.
The "fear" aspect of our society's prohibitive angle on this seems to come partly from a fear of what an addict might do to get a fix or might do under the influence. Certainly, this had something to do with the hysteria surrounding crack cocaine, for example. But that fear seems to melt away, given time (though the effects remain). A deeper issue is probably the idea that addict-hood is, in effect, catching-- a contagious, socially-transmissible disease-- especially when we're talking about teens or preadolescents.
We as a culture do not trust our young people very far. People will often balk at the notion of saving adults from themselves; children, not so much. "The children! We have to protect the children!" is a politically-potent rallying cry whether we're talking about violent video games, violent movies, pornography, the theory of evolution, premarital sex, drug abuse, or Harry Potter.
... So it seems that a portion of the reason why we lock drug dealers and/or addicts up with such vigor is the idea that they are not merely wasting their own lives and damaging their own relationships, but that they threaten to corrupt our own relationships with our children, as well.
Now, unlike the '80's hysteria over rampaging, crack-addled brown people, this is a valid concern. The problem is how to deal with it, and it appears that our prohibitionary, largely punitive approach, treating drugs as a matter for the criminal justice system rather than the health care system and locking up ridiculous numbers of people (who we then need to feed, house, clothe, etc.), doesn't work.
The war on drugs is a bust (and not a drug bust). That much seems to be agreed; where we differ seems to be whether to double down or try something else.... And it does appear that the place that has decided to try something else on the grandest scale so far has not burned down, fallen over, and then sunk into the swamp.
A society generally jails two kinds of people: those it morally disapproves of and those it fears. Drug abusers and dealers may fit into both categories to varying degrees and with more or less justification, but the real question is not whether they fit under the heading of "people we feel should go to prison," but whether the problem fits under the heading of "something we can solve by sending people to prison."
If it's not, then it seems likely that it's time to bite back our disdain and fear and try something more practical.
This is an old truth, one with some pedigree to it. While opium and such have been legal for a very large percentage of human history, a general suspicion of drugs and those who partake of them has been with us since ancient Greece, if not before.
The basic concern, the source of much of the disdain, seems to be that, regardless of how harmless a drug may be, those under its influence aren't good for much while its effects last. "Drunkards" and "potheads," though one's innebriating substance is (now) legal and the other is (presently) not, both share this core source of contempt: neither has a reputation for being reliable, trustworthy, or capable. The popular conception of either one under the influence is, at best, a sort of floppy person better suited for staring through the ceiling than going out to buy a carton of milk, much less filling out the yearly income tax.
In other words, people tend to kind of think of them as a bit of a waste of space. He who uses is seen as wasting his life, wealth, and health, and eventually likely to sink into a dissolute spiral of increasingly destructive behavior. That's where the contempt comes from.
The "fear" aspect of our society's prohibitive angle on this seems to come partly from a fear of what an addict might do to get a fix or might do under the influence. Certainly, this had something to do with the hysteria surrounding crack cocaine, for example. But that fear seems to melt away, given time (though the effects remain). A deeper issue is probably the idea that addict-hood is, in effect, catching-- a contagious, socially-transmissible disease-- especially when we're talking about teens or preadolescents.
We as a culture do not trust our young people very far. People will often balk at the notion of saving adults from themselves; children, not so much. "The children! We have to protect the children!" is a politically-potent rallying cry whether we're talking about violent video games, violent movies, pornography, the theory of evolution, premarital sex, drug abuse, or Harry Potter.
... So it seems that a portion of the reason why we lock drug dealers and/or addicts up with such vigor is the idea that they are not merely wasting their own lives and damaging their own relationships, but that they threaten to corrupt our own relationships with our children, as well.
Now, unlike the '80's hysteria over rampaging, crack-addled brown people, this is a valid concern. The problem is how to deal with it, and it appears that our prohibitionary, largely punitive approach, treating drugs as a matter for the criminal justice system rather than the health care system and locking up ridiculous numbers of people (who we then need to feed, house, clothe, etc.), doesn't work.
The war on drugs is a bust (and not a drug bust). That much seems to be agreed; where we differ seems to be whether to double down or try something else.... And it does appear that the place that has decided to try something else on the grandest scale so far has not burned down, fallen over, and then sunk into the swamp.
A society generally jails two kinds of people: those it morally disapproves of and those it fears. Drug abusers and dealers may fit into both categories to varying degrees and with more or less justification, but the real question is not whether they fit under the heading of "people we feel should go to prison," but whether the problem fits under the heading of "something we can solve by sending people to prison."
If it's not, then it seems likely that it's time to bite back our disdain and fear and try something more practical.
Wednesday, February 2, 2011
The Violent, Drug-Addled Brown People Are Coming!
1986 really has to rank as a low point in American drug policy. Swept up in a wave of terror of a drug claimed (inaccurately) to produce instant addiction in first-time users and to lead to violent behavior, Congress passed sentencing "guidelines" mandating especially stiff sentences for possession of crack cocaine.
It seems on a cursory glance that the main real differences between powdered cocaine and crack are:
1) users sniff powder, but smoke crack;
2) powder's effects last longer;
3) more affluent users sniff. Poor people smoke. Take a wild guess what this means for racial demographics in this country.
The result has been over two decades of grimace-inducingly sharp racial sentencing disparities.
Recently, the federal government has (finally!) twigged on to the problem here, and has been thinking about correcting it-- maybe just a little, maybe entirely. So far, though, it doesn't look like anything has come of this-- and please note that the linked bit of news dates to 2007.
Happily, Washington State doesn't seem to make any distinction. Crack possession is seemingly charged as, "Possession of a controlled substance (cocaine)."
Mind you, that's still a class C felony, but it's one more topic we're a bit ahead of the federal government on.
It seems on a cursory glance that the main real differences between powdered cocaine and crack are:
1) users sniff powder, but smoke crack;
2) powder's effects last longer;
3) more affluent users sniff. Poor people smoke. Take a wild guess what this means for racial demographics in this country.
The result has been over two decades of grimace-inducingly sharp racial sentencing disparities.
Recently, the federal government has (finally!) twigged on to the problem here, and has been thinking about correcting it-- maybe just a little, maybe entirely. So far, though, it doesn't look like anything has come of this-- and please note that the linked bit of news dates to 2007.
Happily, Washington State doesn't seem to make any distinction. Crack possession is seemingly charged as, "Possession of a controlled substance (cocaine)."
Mind you, that's still a class C felony, but it's one more topic we're a bit ahead of the federal government on.
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