Marijuana: The Harmless Weed

National Lawyer's Guild Testimony before the District of Columbia Board of Directors opposing the marijuana decriminalization bill, Section 102 (D.C. Official Code § 48-901.02)

For nearly a century in the city of Washington, DC, police have been arresting people for holding, smoking, or selling marijuana. The fact that the majority of these people are African-Americans is well-known. People who are in no sense of the word criminals have been sent to prison, sometimes for substantial sentences.

During the past 30 years, the situation has gotten worse. The country has been in the grip of law-and-order mania. Rather than look at the root causes of crime—poverty, discrimination, racism—our lawmakers have decided to put more people in jail, as if that would solve anything. It wouldn't solve anything because people who smoke marijuana are not criminals in the first place. The law makes them criminals, just as racial profiling makes people criminals.

There is a strong connection between racial profiling and marijuana. Studies of New York City's stop-and-frisk laws show that the most frequent result of stop-and-frisk is the discovery of small amounts of marijuana. Police target African-Americans, search them, and find marijuana. The discovery of even a small amount of marijuana may result in an arrest and a court appearance. For a person without the money to pay a lawyer, this could be a serious problem with life-long repercussions.

Now the DC City Council has come to its senses. They now realize there is something fundamentally wrong with punishing recreational use of a harmless—or even frequently beneficial—plant. But this bill is not the answer. It will decriminalize marijuana, but provides no place to legally obtain it. People who traffic in marijuana will still be criminals. Prices for the stuff will still be steep black market prices, reflecting the enormous risks taken by those who smuggle it and sell it.

This bill is a half-way measure, like permitting gay couples to have a civil union license but not a marriage license. That idea was so silly that a wave of laughter has already swept it from the books in more than 20 states. The proposed law on marijuana is equally silly, but it is also extremely harmful, since it retains criminal penalties for sale of marijuana and continues sending non-violent criminals to prison.

This approach has almost the same effect as the “safety valve bill” proposed by the conservative bill mill ALEC and supported by arch conservative David Koch. Rand Paul is sponsoring that bill in the U. S. Senate, S.B. 609. Surely this City Council can come up with something better than that!

This bill is no compromise measure. It leaves intact the system of injustice that has led to mass incarceration and open warfare in our streets during the shameful war on drugs, which is actually a war on our own citizens. Once we recognize that marijuana is not a harmful drug and that people who use it are no more dangerous than the millions who have a few beers while watching Sunday football games, we have no choice but to legalize it, fully and unconditionally.

There is an alternative to this bill, one which is much better for the community. This other bill addresses the real issues of drug use. This alternative bill was introduced by David Grosso. If enacted, Grosso's bill would levy a tax of 10 percent on recreational marijuana and a tax of 6 percent on medical marijuana. It would also authorize the Alcoholic Beverage Regulation Administration to issue licenses to recreational marijuana stores.

This alternative bill would save money the District now wastes imprisoning non-violent drug offenders. It would end the black market in marijuana and let marijuana users purchase the stuff from places that do not also sell Methamphetamine and Cocaine. This is especially important for our youths, who find it easier to buy illicit drugs than alcohol. We should take this opportunity to end the irrational drug policies of the past and start building a new, saner society.

Thank you for listening to us speak on this important issue.

ALEC: Profiteers in the War on Drugs

The American Legal Exchange Council (ALEC) has been convincing state legislators to adopt laws with mandatory, determinate sentencing guidelines for a long time now. ALEC started this project back in the 1970s, when people were panicked about the high crime rate.

Liberals were concerned about inconsistent sentences being handed out by different judges for the same crime. Politicians in both parties contended that the laws gave too much leeway for judges. Senator Edward Kennedy was an early advocate for determinate sentencing. Conservatives gave speeches about bleeding heart liberals and judges who were soft on crime.

States began replacing indeterminate sentencing laws with determinate sentences. Republican legislators vied with each other to see who could be toughest on crime. To many voters, being tough on crime meant getting tough with African Americans, whom many white people, north and south, believed to be a criminal class.  Such beliefs resulted in a disproportionate number of arrests and convictions of African-Americans: in 2000, according to records in seven states, 80-90% of drug offenders sent to prison were African-Americans.¹

ALEC has been pushing harsh sentencing laws since 1975. They were responsible for enacting “three strikes” and “truth in sentencing” laws in 27 states. Three strikes laws sentenced a person who was convicted of a third crime, no matter how minor, to life in prison without possibility of parole. Truth in sentencing laws replaced the discretion of judges with definite lower and upper limits for sentences. Prisoners could not be released before the lower limit, nor could they be released before serving 85% of the upper limit.

Truth in sentencing laws mandated higher sentences for drug offenders, and pushed the average time served for drug offenses in federal prison from 17 months to 47 months. The result of these "three strikes" and "truth in sentencing" laws was that drug offenders were more likely to spend time in prison than those arrested for murder, assault, burglary, or rape.²

ALEC is also responsible for the Minimum-Mandatory Sentencing Act that established sentencing guidelines for drug offenses, and which is now in effect in many states. This model law erased the distinction between mere possession of a drug and possession for sale, so that a marijuana user faces the same penalty as a marijuana seller working for a cartel. The law also increases penalties for higher-ups, but the higher-ups are seldom arrested and can escape prison sentences through clever lawyers and legal technicalities.  

For example, the executives of HSBC Bank, the largest bank in Europe, failed to monitor $690 billion in wire transfers and $9.4 billion in money order sales from Mexico. HSBC's failure to monitor these sales, as required by law, permitted Mexican and Colombian drug cartels to launder more than $881 million in profits from their illegal enterprises. Not only did these executives escape prison, their failure to monitor these transactions also means that cartel kingpins will never stand trial because the proof of their crimes—the record of money received for drugs—was erased by the bank.

The judge in the case fined the bank $1.9 billion but imprisoned no one. A company can't be imprisoned, he wrote.³ Contrast this with the fate of Weldon Angelos, a first offender and father of two, who was sentenced to 55 years in jail for selling $350 worth of marijuana to undercover police officers.

Packing the prisons for the private prison industry

The net effect of these changes was an increase in the prison population in states where they were passed. Another effect was an increase in the demand for private prisons. Corrections Corporation of America (CCA) and the Geo Group (formerly Wackenhut) were the first corporations to build prisons and manage them for state governments. By 2010 the two companies were netting $2.9 billion in annual profits from contracts with state and federal governments.

In a meeting in Washington, DC, in 2010, CCA representatives and ALEC member Russell Pearce conceived and drafted Arizona S.B. 1070, aka the "Papers Please" bill .  S.B. 1070 gave Arizona police the right to stop people and ask them for their citizenship papers. CCA promised the City Manager of Benson that the law would bring prosperity to his small town.  It also brought prosperity to CCA: in 2011, CCA reported that immigrant detention was a significant portion of corporate revenue. CCA successfully convinced Arizona to strengthen its anti-immigrant laws in order to increase its own profits from prison management. After S.B. 1070 passed, 30 of its 38 legislative co-sponsors received campaign donations from CCA and Geo.

ALEC has also helped corporations profit from the increase in prison populations by pushing the Prison Industries Act (PIA) model legislation. PIA permits prisons to "rent out" inmates to corporations at sub-minimum wage rates. In Florida, the prisons then deduct 40% of the prisoner's already sub-minimum wages for “room and board”. Many of these prisons are “for-profit” private corporations which thus benefit directly from their state and federal lobbying efforts, as one filthy "hand" washes the other.

1National Lawyers Guild, High Crimes: Strategies to Further Marijuana Legalization Initiatives 11, NLG 2013, https://docs.google.com/gview?embedded=true&url=https://www.nlg.org/sites/default/files/High%2520Crimes-Digital_0_0_1.pdf

2Human Rights Watch, United States: Punishment and Prejudice, Racial Disparities in the War on Drugs (2000), http://www.hrw.org/reports/2000/usa/Rcedrg00-03.htm#P241_48009.

3U.S. v. HSBC Bank USA NA, 12-cr-00763 20, U.S. District Court, Eastern District of New York (Brooklyn), http://www.justice.gov/usao/nye/pr/2013/doc/HSBC%20Memorandum%20and%20Order%207.1.13.pdf

Three straws in the wind

Barack Obama swept into the Presidency with the promise of hope and change.

Change was certainly long overdue. George Bush and his supporters preached intolerance of anyone whose views were out of step with their own. Corporate America moved millions of jobs overseas. Bush sent a man who despised international law to the United Nations as his ambassador. Bush started two new wars to satisfy the militarists and the war profiteers. Bush deregulated the financial industry and precipitated the worst financial crisis since the Great Depression.

Sometimes, however, a flame burns brightest just before it burns out. Perhaps the suffering of our fellow Americans under the corporate boot is about to end.

The American cultural revolution occurred in the 1960s and 1970s. Large numbers of people began to question the received culture of the 1950s. They questioned the U.S. military role in the world. They questioned whether the heterosexual marriage should be the only accepted form of intimacy. They questioned whether marijuana, a relatively harmless drug, should be outlawed while more harmful drugs, such as alcohol, were tolerated by society. They questioned why radio stations played Sinatra and Peggy Lee instead of Chuck Berry and Little Richard. Worst of all, from the standpoint of traditional society, they questioned why anyone should go hungry in a country where farmers were paid not to grow food.

The counterculture, as it came to be called, took hold of the imagination of the young. People stopped looking to New York fashion designers for clothes and instead decorated their own clothes with beads and brightly colored thread. The counterculture had its own heroes, like Elvis and John Lennon, Dylan and Joan Baez, Allen Ginsberg and Jack Kerouac. Those of us who welcomed the counterculture believed that the country had turned the corner. We believed the elite would stop discriminating against African Americans and women, since discrimination was now against the law, or at least against the Constitution.

The counterculture forced the U.S. to end the Vietnam War. Under their influence, the government passed Civil Rights and Voting Rights. The counterculture believed that the establishment would just step aside and let the rest of us start living a better life based in liberty, equality, and brotherhood.

Then something completely predictable happened. Traditional society fought back. Ronald Reagan, who had been a pitch man for General Electric in the 1950s, led them. George Wallace stood in the schoolhouse door at the University of Alabama to stop integration in 1963. Reagan called out the national guard to stop protesters in Berkeley in 1969. George Wallace was stopped by President Kennedy, who took over command of the National Guard, and integration proceeded peacefully, for the moment. Reagan called out the Sheriff's deputies of Alameda County and told them to use whatever means necessary to stop a peaceful protest of college students and Berkeley residents. This time President Richard Nixon failed to take over the National Guard and violence ensued.

Reagan became extremely popular with those who hated college students, integrationists, and peace lovers. He was elected President in 1980 and started up the American war machine again. He appointed Supreme Court Judges who believed that African Americans were a privileged special interest group that needed to be suppressed. The world grew bloodier as the U.S. ignored U.N. agreements and sent troops to Grenada, aided insurgents in Afghanistan and Honduras, and bombed Libya.

Reagan became the first president since World War II to start a war to raise his political popularity. Republican President G. W. Bush used the same tactic. Such wars violate customary international law.

Compounding the social and foreign policy problems with G. W. Bush's term, the economy collapsed in 2007.

Progressives were disappointed with Obama's performance during his first term, although they had to admit his failures were not entirely his own fault. Now, however, a new wind is blowing through Washington and the rest of the country. Obama has contributed by ordering his ICE agents to stop deporting “dreamers”, immigrants whose parents brought them here illegally. 

Obama apparently is no longer concerned about what Republicans think of his policies, though he could have gone further and extended the same privileges to all immigrants. He could also transfer some of the funds for “securing our borders” to other areas, like the Supplemental Nutrition Assistance Program (SNAP), and the Consumer Protection Agency. But any sign of movement is better than none.

Attorney General Stephen Holder has also been a disappointment to progressives, primarily for failing to prosecute Wall Street for abuses that sent the economy into a tail spin. But Holder, too, showed signs of progressivism when he ordered federal officers not to list the amounts of drugs on indictments against drug offenders. These amounts trigger automatic sentencing guidelines that have turned the American prison system into a Gulag of Soviet proportions. Holder has always known that drug laws are aimed squarely at African American young men, because those are the people who get sent to prison.

Holder's action, if continued by his successors, could end the War on Drugs altogether. For decades, a prison industry has grown up relying on the War on Drugs to fill its cells. Prison Guards have joined together in powerful unions with but one goal, to keep the prisons full and preserve their well-paying jobs. Police departments have spent time and money chasing drug offenders because they could seize the assets of drug offenders. The departments have grown wealthy, with ever fancier helicopters and planes and drug detecting equipment. The people who profit from prisons and drug busts spend millions influencing elections.

This one action of Holder's may break the cycle of corruption. Without prisoners, there will be no need for prisons. Prison Guards will have to find other work. Policemen can go back investigating political corruption and corporate crime. The War on Drugs will end.

Finally, from New York comes the astonishing tale of a judge who said "no!". Judge Schira Scheindlin ruled that NYC's stop-and-frisk rules are unconstitutional because they use racial profiling to target African Americans and Latinos. NYC Mayor Bloomberg howled out loud about this ruling, claiming the Judge “knows nothing” about law enforcement. Scheindlin issued a 192-page opinion in Floyd v. City of New York that proves she knows a great deal about racial profiling and police harassment.

Scheindlin's conclusions come as no surprise to the black and brown residents of NYC, who have complained loudly about being stopped for no reason. This constant harassment made some of them afraid to leave their houses to go to the store or to work. The fear they felt is the fear inspired by a police state, where justice has become comatose by command of the government. This is the same fear that Trayvon Martin felt when he was chased by a neighborhood watchman who assumed, mistakenly and with bloody consequences, that Martin was up to no good. What is amazing to the black and brown residents subjected to Bloomberg's reign of terror is that an honest federal judge agrees with them.

So here they are, three straws in the wind. These actions are not subject to review by our completely broken Congress, nor can these three courageous people, Obama, Holder, and Scheindlin, be subjected to ridicule by a barrage of defamatory campaign ads, because none of them needs to run for office. What remains to be seen is whether these straws can predict which way the wind blows. We should all hope that they do.