Kreit on Federal Drug Laws and State Reform

Alex Kreit (Thomas Jefferson School of Law) has posted Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms (Chapman Law Review, Vol. 13, p. 555, 2010) on SSRN. Here is the abstract:

Nearly forty years after President Richard Nixon first declared a “war on drugs” (calling drugs the “modern curse of the youth, just like the plagues and epidemics of former years”) it seems the war may finally be coming to an end. In his first interview after being confirmed as the Director of the Office of National Drug Control Policy, Gil Kerlikowske told the Wall Street Journal that he thought it was time to retire the war rhetoric when it comes to addressing drug abuse. At the state level, the past year has seen proposals to legalize marijuana introduced in a handful of states with polls showing approximately forty-five percent of Americans nationwide in support of the idea. Importantly, these recent developments follow nearly a decade and a half of successful drug reform measures at the state level on issues ranging from medical marijuana, treatment instead of incarceration, asset forfeiture, and marijuana decriminalization. In short, the argument that we should end the war on drugs in favor of a new approach no longer resides in the world of the politically unthinkable, and has quickly become a subject of serious policy and political discussion.

This Article considers how we might think about federal drug laws in a post-drug war context, particularly one in which states are increasingly passing laws that are at-odds with federal law. It argues that, when it comes to federal drug law, traditional debates about prohibition, legalization, or decriminalization turn out to be surprisingly unimportant. Instead, as states begin to enact new policies, the key question facing federal lawmakers and administration officials will be how to harmonize federal law with state reforms.

The Article’s argument proceeds in four Parts. Part I provides a brief overview of the mounting evidence that the war on drugs strategy has proven to be an extremely costly and largely ineffective method for dealing with the problem of drug abuse. Part I also looks at how dissatisfaction with the current approach has led to increased interest in decriminalizing or legalizing marijuana, even at the federal level. Part II argues that the focus on debates over legalization or decriminalization at the federal level is misplaced. This is because, even if it wanted to, the federal government would not have the ability to unilaterally “legalize” or “decriminalize” any controlled substances. Using the example of medical marijuana laws as a case study, Part III contends that, just as the federal government does not have the ability to unilaterally decriminalize a drug, it also does not have the power to stop states from reforming their own laws. Part IV considers the implications of Parts II and III and concludes that they counsel in favor of reforming federal drug laws in a way that would respect states’ decisions to innovate in the area of drug policy, while also providing important controls and incentives to prevent against negative externalities in the form of spillover effects in neighboring states.

October 25, 2010 | Permalink

 

John Roberts’ America

By Timothy Egan

I wish Chief Justice John Roberts could spend a day and a night in the Rocky Mountains experiencing what his activist Supreme Court majority has dumped on the American voter in 2010.

The sludge flow from out-of-state, secretive political groups is unrelenting. All hours. All mediums. A football game-break brings three attacks in a row, calling a senator a liar, a vandal and a glutton for debt. A weather update is interrupted by a trio of hits from the other side, making the challenger out to be the worst thing for women since Neanderthal man took up a club as an accessory to romance.

Colorado is ground zero for what’s happening in John Roberts’ America, competing for the dubious distinction of being the top state in the nation for spending by shadowy outside groups telling people how to vote.

This gusher is courtesy of the 5-to-4 Supreme Court decision in January that allowed unlimited campaign spending by corporations and unions. That was the ruling, which will go down in infamy, where the court said that corporations had the same free speech rights as ordinary citizens.

The illogic of that logic was always apparent. But now it’s overwhelming, and omnipresent. Your average voter can dash off a letter to the editor, or fire up a blog, or put up a yard sign — a nice fantasy of citizen democracy. Your corporate equal can spend $23 million (the outsider amount spent so far in Colorado) to bludgeon the electorate. And, with loopholes in the tax system, they can do it while making it virtually impossible to know who they are.

These corporate and union interest groups shouldn’t suffer in the arena of public debate, the court wrote in the Citizens United case, “simply because such associations are not natural persons.”

In the megaphone phase of this campaign to determine who will control the people’s Congress, the locals — those actual “natural persons” — are all but silent. Races in Colorado, Nevada, Pennsylvania and Washington state are being determined on K Street, by insurance, banking and oil industry groups hiding behind innocuous titles like Americans for Prosperity (right-wing billionaire David Koch) and Americans for Job Security (insurance giants), and by public employee unions.

Every day sets a new record. Last Friday, there were 1,200 television ads in Las Vegas for the Senate race.

I agree with those who say money doesn’t necessarily determine electoral outcomes. Meg Whitman, $140 million lighter and still trailing in her race for California governor, is exhibit A.

But the Citizens United decision of the Roberts court has fundamentally changed how we choose our leaders and our laws, all for the worse.

Here’s what’s happened: Spending by interest groups in this fall’s Senate races has gone up 91 percent from the same period in 2008, according to the Wesleyan Media Project. At the same time, spending by political parties has fallen 61 percent.

So corporations, whose sole purpose is to return money to shareholders, were given the legal right to be “natural persons” in our elections and are now overwhelming them. But political parties, which exist to promote ideas and governing principles, have seen their voices sharply diminished.

If the hell of Colorado’s current election season is what those isolated, black-robed kingmakers on the high court had in mind, you certainly didn’t see it in the nonsense of their decision.

“We should celebrate rather than condemn the addition of this speech to the public debate,” wrote Justice Antonin Scalia in his concurrence of Citizens.

I can’t find any celebrating in Colorado, except by broadcasters cashing the checks of big special interest groups. Republicans and Democrats, conservatives and liberals, by a large majority in the polls, agree on this: outside groups should not be allowed to dominate election spending.

The court missed the reality of what would happen once the floodgates were opened to the deepest pockets of the biggest players. They turned back a century of fine-tuning the democracy, dating to Teddy Roosevelt’s 1907 curbs, through the Tillman Act, against Gilded Age dominance of elections. They focused on a fantasy.

“The First Amendment protects more than just the individual on a soapbox or the lonely pamphleteer,” wrote Chief Justice Roberts.

Come to Colorado, your honor. You will see that those iconic individuals don’t have a prayer in the post-Citizens United world, let alone some broadcast time for the soapbox.

Here was the court’s prediction: “The appearance of influence or access will not cause the electorate to lose faith in our democracy.” Really?

Perhaps the top complaint this year about the barrage of outside attack ads is that nobody knows who is behind them, which promotes the exact opposite of what the Roberts court predicted.

Celebrating yet? Get used to it. Though Republican-leaning special interests are currently outspending the other side by a 9-to-1 ratio, Democrats will soon follow Karl Rove’s lead and learn to bundle and hide wealthy contributors.

As ugly as 2010 has been, the next election cycle, for president in 2012, will bring us a John Roberts’ America that will make this year look like a town hall meeting from a Rockwell painting.

Timothy Egan is a columnist for The New York Times, where this article first appeared.

 

“Average Homicide Cost Is $17.25M, Study Concludes”

FindLaw has this story from Iowa State University. On the methodology:

An overwhelming majority of this high sum is the result of the amount of money citizens would be willing to pay to prevent future crime. The study also used the same formula to determine the costs of other crimes: rape ($448,532), armed robbery ($335,733), aggravated assault ($145,379), and burglary ($41,288).

October 19, 2010 | Permalink

 

Kenneth Streit and John Chisholm have posted Sentencing Option: Why Restrict Judges? (Wisconsin Lawyer, Vol. 83, No. 9, September 2010) on SSRN. Here is the abstract:

Dissatisfaction with parts of the indeterminate (parole) sentencing system led many states, including Wisconsin, to totally eliminate this and substitute a Truth-in-Sentencing system. After a decade with the new system, there are also many problems including difficulty in arranging programs, overcrowding and banishing the concept of rehabilitation. An adjustment would be to provide judges with both options at the time of sentencing so that the most serious offenders would be serving the fullest sentence while others would have earlier access to treatment and possible earned release.

 

“California state bar to investigate 130 prosecutors following misconduct study by Innocence Project and Santa Clara law school”

John Steele has this post at Legal Ethics Forum. In part:

I expect we’ll hear a lot more news about this, that the prosecutors will fight back, that the prosecutors will feel that old matters that were argued years ago shouldn’t be the basis of discipline charges, and so on.   But this move by the bar seems quite deliberate and planned out, and I expect they’ve thought through a lot of the issues.  We’ll see.  I’d also expect that at some point more prosecutor offices will adopt “open file” policies simply out of self-protection.

 

DOJ to continue to prosecute drug crimes regardless of California vote: AP
Brian Jackson at 1:07 PM ET