FedSoc LiveBlog: Drug Enforcement Policy featuring John S. Baker Jr.

November 12th, 2009

Criminal Law: Drug Enforcement Policy
Thursday, Nov. 12
11:30 a.m. – 1:45 p.m.
East Room

– Prof. John S. Baker Jr., Dale E. Bennett Professor of Law, Louisiana State University Law Center
Prof. Mariano-Florentino “Tino” Cuéllar, Special Assistant to the President for Justice and Regulatory Policy, White House Domestic Policy Council
Mr. Aryeh Neier, President, Open Society Institute
Hon. John P. Walters, Executive Vice President, Hudson Institute
Moderator: Hon. Robert P. Young, Jr., Michigan Supreme Court

Moderator: Hon. Robert P. Young, Jr., Michigan Supreme Court:

President Obama has said in the past that the “get tough” approach to drug use has been an utter failure and has suggested shifting the policy paradigm to a more public health approach

Recent changes in the Justice Department include:

-Equalize sentencing of cocaine dealers and users.

-AG will prosecute in states that permit medicinal marijuana use

Too limiting of liberties? Too stifling of progressive medical advancements?

**Question: What is “drug war” addressed to?

Dr. John S. Baker, Jr. La. State University Law Center:

The problem is the metaphor “war” itself. We’re talking about an abstraction, so war as a concrete analogy that cannot apply. Cannot totally eliminate crime and drug use completely.

When set up as “war” we confuse the role of police.

Washington solutions centralize all the confusion and disorder “out there”

The federal government is responsible for interdiction—controlling international borders

There’s a difference between regulating commerce and punishing crime

-Punishing crime is a moral exercise, and that’s different from commerce.

Money in Washington drives things at the local level.

What is left out is that much of facing the drug problem needs to be done at the local level, including family involvement.

The Fed Government can only make things “not worse”

More after the Jump

Prof. Mariano-Florentino “Tino” Cuellar, White House Domestic Policy Council:

Agree with Mr. Walters. (And the inappropriateness of the metaphor).

We are fighting irresponsibility. It can be a medical and disease problem, but still involves choices people make in society.

This is an enormously costly and painful and complex problem. Yet, despite the ongoing battle, we cannot fall into the trap that nothing has worked.

Parents should take more involvement in their kids’ lives.

-Teenage drug going down in recent years.

Bipartisan support for what works: drug courts, etc.

Improvements at VA and improving treatment

Mr. Aryeh Neier, Open Society Institute:

War should be reserved to fighting ‘proper nouns’

Problem with war metaphor becomes a basis for “making war” against a large number of people who are drug users.

When we started in the 1980s, we had about 50k people in US prisons for non-violent drug crimes

-Now we have about 500k

Drug crimes that involve violence or trafficking should involve enforcement

People should not be put in prison for conduct that only harms themselves.

I shouldn’t be put in prison for eating a fat steak…likewise for personal use of marijuana

NYC 1997-2006: 400k arrests for marijuana

-Used equally among blacks and whites, but 9 times as many blacks as whites arrested

War metaphor seeks to legitimize this conduct

Hon. John P. Walters, Hudson Institute:

The definition is changing.

Old view: substance abuse was a weakness, character flaw or personal sin.

New View: We’ve learned it’s a disease that anyone can “catch” it.

Starts by choice, but can be discouraged, and we know how to treat it. We’re learning how to stop the supply better, but we’re also trying to balance access to “poison” and consequences to those who are exposed to them. We need balance for the supply and demand.

**Question: Statistics can be used to support that war on drugs has been an “utter failure”. Are we winning this “attack on drugs”?

Dr. John S. Baker, Jr. La. State University Law Center:

Latin Americans see the problem to be within the US

It’s a demand problem

What is driving the demand?

-Money for distributors

-Individuals buying and using; what don’t these users want to face in life? Can Fed Govt deal with fact that people don’t want to deal with parts of their lives?

Washington can’t solve the individual problem.

Increased force follows federal intervention, but no amount of force can address this problem, because of over-use of force

One solution is to “warehouse” people and permanently put them behind bars

-We’re ratcheting up the force and approaching a global police force, which is the wrong way to go.

Prof. Mariano-Florentino “Tino” Cuellar, White House Domestic Policy Council:

We face a “national challenge”.

After WWII, US led rebuilding (which was a major challenge, but not the war itself)

It is hard to “win” when “war” is the term applied.

Should ask, are we making progress? Yes

-Learning from what works and what doesn’t

-Can use bully pulpit to advance what we learn

Put the right resources into localities’ and non-profits’ hands.

Are we going to continue to make progress? IF we learn from the past

Mr. Aryeh Neier, Open Society Institute:

No, widespread drug use points to the fact that we’re not winning the “challenge”

Bush Admin study showed that there was decrease in drug use in all but 3 of previous 17 years, which indicates the up and down cycles of drug use

Increases in deaths from overdose

-2006 numbers show 26k have died, maybe more than auto accidents

Can’t be winning if that many people are dying and in prison and if millions are disabled by arrest records, unable to find employment, etc.

Denying food stamps or public housing to people convicted of drug use is a kind of lunacy.

The idea that we’re winning, I just don’t buy it

Hon. John P. Walters, Hudson Institute:

Most people in jail are repeat violent offenders.

The majority of cases in this area are cases that can be changed rapidly.

Meth problems cut down considerably by local efforts

Nixon started “war” metaphor because it deserved the kind of attention that battle against a foreign nation was needed to battle the problem. But the idea was to pay attention, not use tanks against citizens.

Latin Americans are pleased to join with us to reduce the supply

The signal preferring legalization undermines treatment and other efforts

Dr. John S. Baker, Jr. La. State University Law Center:

Goldwater started the effort and the courts went for a national solution

Mr. Aryeh Neier, Open Society Institute:

I don’t believe in legalization of drug use, but of decriminalization of possession of small quantities of drugs. (Example, Portugal)

I would still criminalize sale and violent offenders

**The Controlled Substance Act”?

Prof. Mariano-Florentino “Tino” Cuellar, White House Domestic Policy Council:

The CSA will be enforced.

The question is where resources are needed.

Prosecutors do not have resources to prosecute every single offender

Priorities will focus on more important priorities, but we will not stop prosecuting drug crimes

*Question: Would anyone take view that drug use should be decriminalized?

Dr. John S. Baker, Jr. La. State University Law Center:

No, but violations of federal regulations that carry a penalty are not pure crimes as such

Criminalization is a prerogative of states, not federal government

The law is a moral teacher, but it’s one thing for the President to be a role model, and quite another for national police enforcement.

The Holder memo was about resources, but it was about policy and distancing from Bush admin

Neither administration should be our moral teacher; the federal system allows people with different views to live in different parts of the country

Prof. Mariano-Florentino “Tino” Cuellar, White House Domestic Policy Council:

We have a very open society, but we need to think about our own current prison population—what about treatment, etc.?

The role of federal law explicitly denies human trafficking, for example. And it is good to have a national role model to set a moral standard.

Mr. Aryeh Neier, Open Society Institute:

The 15 countries of the EU (before enlargement) have smaller prison populations than the entire population of US drug-related prisoners

The costs of drug war and enforcement are close to $40 bil/yr

-We could do a lot with voluntary treatment—many users today cannot get treatment, even if they want it.

Hon. John P. Walters, Hudson Institute:

Law is a teacher of what society believes is right. Mr. Neier used Portugal and not UK or Netherlands because they are rapidly reversing their own course of decriminalization of last decade.

We need to help people avoid, treat users, and cut off supply

Type “marijuana” into youtube to see what kids find when they search. They are being educated on how to use. Leadership of nation has an important role in teaching an appropriate standard of behavior in addition to what families contribute.

Moderator: Hon. Robert P. Young, Jr., Michigan Supreme Court:

There is not much I see in legal training to prepare us to be therapists. There isn’t much to validate the efficacy of drug courts. What do you think?

Mr. Neier

Drug courts are not a bad idea, but the problem is in practice. They take the position that the only people they will deal with are those who plead guilty.

You shouldn’t have to plead guilty to receive therapy.

Prosecutors are gatekeepers of who gets the opportunity for drug courts

-Most blacks at trial are black, but more drug courts see whites

(In response to whether drug users are harming others)

-Do we want to criminalize mothers who drink alcohol when pregnant or educate her about the harms? There is not evidence that smoking marijuana causes

more damage than drinking alcohol while pregnant. Out of utero, then one deals with abuse and neglect; I don’t care whether it comes from consumption of drug

or other factor, we need to address the neglect.

Hon. Mr. Walters

The experience of jurisdictions has been that they can reduce the cycle with much fewer costs.

The court does proportional sanctions and uses authority to attempt to reduce recidivism.

But many individuals on the bench don’t have appropriate training, so are hesitant to use this system.

Pics after the jump.