Transcript

Century of Lies July 27, 2014

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DEAN BECKER: The failure of Drug War is glaringly obvious to judges, cops, wardens, prosecutors and millions more. Now calling for decriminalization, legalization, the end of prohibition. Let us investigate the Century of Lies.

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DOUG McVAY: Hello and welcome to Century of Lies. I'm your guest host, Doug McVay, editor of Drug War Facts dot org. Century of Lies is a production of the Drug Truth Network, which comes to you through the generosity of the James A. Baker III Institute for Public Policy and of listeners like you. Find us on the web at drug truth dot net, where you can find past programs and you can subscribe to our podcasts. Follow me on twitter, where I'm at drug policy facts, and also at doug mcvay. Drug Truth Network is on Facebook, please give its page a Like. Drug War Facts is on Facebook as well, please give it a like and share it with friends.

Before we start, I want to say hello to a few of the stations out there that carry Century Of Lies, including WPRR 1680am 95.3 fm in Grand Rapids, MI, WGOT-LP 94.7 FM in Gainesville, FL; KRFP 90.3 FM in Moscow, Idaho; and WERU 89.9 FM in Blue Hill, Maine. Century Of Lies can be heard on 420 Radio dot org on Mondays at 11 am and 11 pm, and Saturdays at 4 am. We can also be heard on time4hemp dot com on Wednesdays between 1 and 2pm pacific along with our sister program Cultural Baggage.

Let's get to the news.

Voters in the state of Oregon will be able to decide on a marijuana legalization measure this November. The Oregon Secretary of State announced on Tuesday that the sponsor of the measure, New Approach Oregon, had submitted sufficient valid signatures to put the measure on the ballot. The initiative, titled the Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act of 2014, would legalize adult use of marijuana in private, and set up a regulatory scheme administered by the state's liquor control commission. The tax structure in the bill is remarkably simple: $35 per ounce for flowers, $10 per ounce for leaf, and $5 per immature plant or cutting, applied upon first sale of the product. An economic analysis performed for the organization by ECO Northwest found that $38.5 million in excise tax revenue would be generated during the first fiscal year of tax receipts. I've looked over that analysis –“ which is available through the New Approach website, NewApproachOregon.com – and the biggest quibble I have with it is that their projections of the potential market size and demand are more or less based on results from the National Survey on Drug Use and Health, and rather than correcting for that survey's massive under-reporting they're taking those numbers at face value. That means that their projection may be a serious under-estimation of the market, and of revenue.

The measure stands a good chance of passing. The question for Oregonians will be, what will happen to the medical marijuana market in the state? Oregon only approved dispensaries in 2013, and the first of them opened in June. In reality, Oregon has had dispensaries since at least 2010, however they were operating in a legal limbo. The state's medical cannabis law was first passed in 1998,. Patients in the past had been forced to rely on the generosity of growers who were not allowed to sell the excess from the patient gardens, in fact for years growers couldn't even be reimbursed legally for the cost of electricity, dirt, or fertilizers, let alone for their time and efforts. Under the new system, growers may get permission from their patients to sell the excess from their gardens to newly-legal dispensaries. There are no taxes or fees assessed on medical cannabis sales, nor on medical cannabis grows, the only revenue to the state comes from the annual dispensary registration fee of $4,000. The language of the initiative includes statements that the initiative is not to amend nor effect the Oregon Medical Marijuana Program, yet only time will tell whether lawmakers will respect the spirit of that.

For more information on the initiative or if you're interested in seeing how you can support the New Approach Oregon measure, go to the group's website at New Approach Oregon dot com. For now, here's New Approach Oregon's executive director Anthony Johnson shortly before their final signature turn-in earlier this month.

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ANTHONY JOHNSON: I really appreciate everybody coming this evening. We gathered thousands of people across Oregon and even across this country who understand that treating marijuana use as a crime has failed and it is time for a new approach to move us forward to a time where we are regulating cannabis commerce and capturing that revenue and no longer engaged in the barbaric practice of locking people in cages for utilizing cannabis.

I became involved in this cause because I saw my African American friends treated more harshly than my middle class white friends in college. It is obvious that disproportionately people of color and people of low income suffer the brunt of the drug war and the war on cannabis. It has completely failed. It wastes resources. It doesn’t protect us at all. It doesn’t keep marijuana out of the hands of children and it is time for a new regime to where we regulate marijuana like beer and wine.

We collected thousands of signatures in this past month – 70,000 signatures in the past month – from ordinary Oregonians who believe it is time that we end the war on drugs, end the war on cannabis. I cannot be happier that we are well on our way to making the ballot, well on our way to victory this November.

We are not going to take any vote for granted. We are going to reach out across this state and fight for every single vote.

So many people think that marijuana legalization is inevitable. That may be but we are not going to rest on our laurels. We are going to make contacts with our neighbors, friends, families and try to get every vote that we can. That’s why we need all of you and we need you to contact your friends. Please talk to our staff. We have an experienced campaign staff doing great work. Sign up for various jobs and really reach out to your friends, family and let’s carry this momentum here in Oregon to where we end the barbaric practice of locking people in cages and carry that momentum across the country so we can finally end the war on cannabis and stop treating marijuana use as a crime.

I can only thank you guys so much for being a part of the movement here in Oregon and really a major movement across the country. Thank you, so much, for being a part of history. I really appreciate it.

[applause]

I think that so many people realize that our law enforcement resources are better utilized elsewhere. In Josephine County right now if you call the police at 9 o’clock at night because somebody is breaking into your home they tell you, “Tough luck. Can you ask them to leave?”

There are so many unsolved rapes, robberies, murders, untested rape kits. It is time to better prioritize our law enforcement resources and go towards serious and violent criminals and stop chasing around people who use marijuana.

I think I’ve...in my own family...my mom recently who has not been supportive of what I have done...when I so-called “came out of the cannabis closet” to her she didn’t talk to me for a month. I didn’t know if she would ever talk to me again. This past weekend she’s like, “You know I think marijuana should be legalized. We don’t have the time to chase around everybody who wants to use marijuana and our police have better resources.”

I think more and more personal contacts like that, more and more people coming out of the “closet” will only carry our momentum here in Oregon and across the country.

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DOUG McVAY: The House Judiciary's Task Force on Prison Overcrowding held a hearing this week on over-criminalization and the growth of federal criminal laws. As loyal listeners to Century Of Lies are aware, the federal prison population has grown dramatically over the past several years largely because of the drug war. The drug war in many ways has just been one of the most visible examples of the over-expansion of federal law enforcement. As pressure builds for federal reform, it's also important to understand the scope of what's actually being considered. So now, let's hear a portion of that hearing. Following is the committee chair, Rep. James Sensenbrenner, Republican of Wisconsin, followed by Representative Bobby Scott, Democrat of Virginia.

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JAMES SENSENBRENNER: I would like to welcome everyone on today’s hearing of the Judiciary Committee’s Over-criminalization Task Force. The tenth and final hearing will focus on the overabundance of criminal offenses on the books and the roll the Judiciary Committee’s jurisdiction or lack thereof under House rules plays on this issue.

Over the past year the task force has examined many important topics in this area. The invaluable perspectives from a number of highly qualified witnesses – two of which rejoined us today for today’s hearing. I anticipate they will be able to provide this body with meaningful insight into today’s subject of today’s hearing and I appreciate their continued cooperation in the furtherance of the goals of the task force.

Despite the fact that it is generally accepted that the federal government does not possess a general police power recent studies have concluded that the number of criminal offenses on the books has grown from less than 20 which were directly related to the operation of the federal government in the years following this nation’s founding to nearly 5,000 today which cover many types of conduct undoubtedly intended by the framers to be left to the individual states.

At the current rate congress passes an average of over 500 new crimes every decade. This surge is highlighted by a particularly telling statistic – nearly 50% of the federal criminal convictions enacted since the civil war have been enacted since 1970. The sheer number of federal crimes leads to a number of concerns: issues of notice and fairness where legal practitioners - not to mention the general public – have difficulty in determining if certain conduct violates federal law and, if so, under which statute, the disorganization, decentralization and duplicative nature of criminal law needs to be addressed.

I’ve introduced legislation to do just that in the criminal code Modernization of Code Simplification Act. This bill would cut more than one-third of the existing criminal code, reorganize the code to make it more user-friendly and consolidate criminal offenses from other titles so that Title 18 includes all major criminal provisions.

There are likely a number of reasons for this rapid expansion of federal criminal law including the fact that many criminals statutes are drafted hurriedly in response to pressure from the media or the public and, as a result, often duplicate offenses already on the books and omit critical offenses such as a valid mens rea or criminal intent.

Additionally under the current interpretation of the house rules it is possible and not uncommon for new criminal legislation to make its way to the house floor without ever receiving proper scrutiny from the Judiciary Committee. This committee is comprised of lawmakers and professional staff with expertise in drafting criminal provisions and the ability to avoid redundancy through situational awareness of the entire body of federal criminal law.

As we move toward wrapping up the business of the task force in addition to other potential recommendations we should consider pursuing an amendment to the rules clarifying the jurisdiction of the committee with respect not only to criminal law enforcement but criminalization and criminal offense legislation as well.

Again I would like to thank our witnesses for appearing today and would also like to thank the members of the task force for their service over the past year. In the coming months I hope we can begin to come together to address the concerns of over-criminalization that have been identified.

Before introducing Mr. Scott for his opening statement I would like to ask unanimous consent to include for the record a memorandum dated July 21, 2014 from the Office of the House Parliamentarian and a CRS Report titled, “Subject Updated Criminal Offenses Enacted from 2008 to 2013” dated July 7, 2014 into the record. Without objection it is so ordered.

It is now my pleasure to introduce the gentleman from Virginia, Mr. Scott.

BOBBY SCOTT: Thank you Mr. Chairman. We created this task force in recognition of the need to address the explosive growth of the prison population and the dramatic expansion of the US criminal code.

For 5 decades congress has increasingly addressed societal problems by adding a criminal provision to the federal code too often we’ve done this in a knee jerk fashion charging ahead with the same failed “tough on crime” policy and addressing the “crime of the day” instead of legislating thoughtfully with the benefit of evident-based research.

When it comes to criminal law only those matters that cannot be handled by the states need to be addressed by the federal government. What valid purpose is served by creating crimes at the federal level if they duplicate crimes being effectively enforced by the states?

For example, why should there be a federal car-jacking statute? State and local law enforcement have investigated and prosecuted car-jacking effectively for years long before congress made it a federal crime.

Two weeks ago in testimony before this task force Judge Irene Kelly reminded us of the following recommendations made by the Judicial Conference in 1995 regarding 5 types of criminal offenses deemed appropriate for federal jurisdiction; offenses against the federal government or its inherent interest, criminal activity with substantial multi-state or international aspects, criminal activity involving complex commercial or institutional enterprises most effectively prosecuted using federal resources or expertise, serious, high-level, widespread state or local corruption and criminal cases raising highly sensitive issues.

We’ve ignored these recommendations. Earlier this month congressional research service of the Library of Congress informed us that 403 criminal provisions were added to the US code between 2008 and 2013 for an average of 67 new crimes per year. Of those 403 new provisions 39 were not even referred to the Judiciary Committee. The past several years we’ve estimated that there were 445 hundred federal crimes now the new estimate from CRS is approximately 5,000.

In addition to the 5,000 crimes in US code there are approximately 300,000 federal regulations that are enforced with criminal penalties. Several witnesses at our hearing have testified that many of the regulations lack a criminal intent or mens rea requirement to protect those who do not intend to commit wrongful or criminal acts from prosecution.

Witnesses have suggested an enactment of a default mens rea as well as legislating the rule of lenity for statutory construction as an appropriate fix for existing statutes and regulations.

We’ve also heard concerns about federal agencies promulgation of regulations that carry criminal sanctions. It is time for congress to put an end to that practice, reclaim that authority and retain sole discretion in determining which actions are criminal and what sanctions are appropriate when deprivation of one’s liberty is at stake. Regulations can still be enforced with civil penalties but when criminal penalties are considered congress should be involved.

The result of decades of criminalizing more and more activities has been the growth of the federal prison population from about 25,000 in 1980 to over 200,000 today making the United States the world’s leader in incarceration – about 7 times the international average.

The Pew Center on the States estimates the incarceration rate over 350 per 100,000 the crime reduction value begins to diminish because at that point you certainly have all the dangerous people locked up.

We also learned from the collateral consequences that more than 65 million Americans are now stigmatized by the criminal convictions, bombarded by over 45,000 collateral consequences of those convictions making reentry and job prospects dim.

In spite of this research that over 350 per 100,000 in population yields diminishing returns and the Pew Research Center also said that anything over 500 per 100,000 is actually counterproductive the United States leads the world with over 700 per 100,000. That’s because unnecessarily locking up people wastes money that could be put to better use, families are disrupted making the next generation more likely to commit crimes. Over 500 per 100,000 counterproductive and we lock up well over 700 per 100,000.

In testimony we received during these hearings has consistently told us that longer sentences are not the answer yet we continue to create more crimes, increase sentences and add more mandatory minimums. Mandatory minimums have been specifically studied extensively and have been shown to disrupt rational sentencing patterns, discriminate against minorities, waste the tax payers’ money, do nothing to reduce crime and often require judges to impose sentences that violate common sense.

A code is defined as “a systematic and comprehensive compilation of laws, rules, regulations that are consolidated and classified according to subject matter.” Our criminal code is not a criminal code by that definition. As federal criminal offenses have spread all over the 51 titles of the US Criminal Code making it virtually impossible for practitioners – not to mention an ordinary citizen – to make any sense out of it.

It is time not only to move all criminal provisions into one title (Title 18) but to also clean up and revise is as recommended by witnesses and previous task force hearings. We need to consider how to proceed. We also need to consider whether this should be done by congress itself or by an appointed commission.

It is time that we consider evidence-based research and make wiser sentencing in our policies. We are wasting billions of dollars in crime policy that has been failing for the past four decades. It is time we look for more realistic and reasoned approach to the incarceration understanding that not every offense requires a long sentence of incarceration.

Mr. Chairman, while this is the final task force hearing there is still much more to do and I look forward to working with you in drafting with you a consensus report and presenting it to the full committee and taking the necessary actions to improve our criminal justice system.

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DOUG McVAY: Now let's hear from one of today's witnesses, this is Steven Benjamin, immediate past president of the National Association of Criminal Defense Lawyers.

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STEVEN BENJAMIN: My name is Steve Benjamin, and I am the immediate Past-President of the National Association of Criminal Defense Lawyers (NACDL). On behalf of NACDL, I commend the House Judiciary Committee for the work the Over-criminalization Task Force has done in examining the problems and reviewing possible solutions to our country’s serious problem of over-criminalization. As a practitioner from the Commonwealth of Virginia, I am personally grateful for the leadership and support of two members from my own Congressional delegation, Judiciary Committee Chair Goodlatte and Task Force Ranking Member Scott, whose work on this critical issue demonstrates, yet again, that the danger of over-criminalization transcends any ideological divide. NACDL urges the Members of this Task Force to continue their work on these critically important issues in the bipartisan spirit that has been the hallmark of their work thus far.

The sheer number of federal offenses - 4,800, at last count with 439 new enactments since 2008 – competes only with our number of prisoners – a number greater than any nation on earth - as a the most visible consequence of over-criminalization. The consequences of this problem extend far beyond the number of those in prison or stigmatized.

One such consequence is the difficulty of being a law abiding citizen. Because criminal law is enforced by punishment fairness and reason require adequate advance notice of conduct that is considered criminal. Adequate notice of prohibited conduct permits people to conform their conduct to the law and, at the same time, justifies punishment when they cross a clearly drawn line.

Notice is especially important in the legal system that presumes an knowledge of the law. Before punishing someone for breaking the law we should at least ensure that the law is knowable. This is especially true where the conduct is not wrongful in itself and the offense requires no criminal intent. Criminal laws must be accessible not only to laypersons but also to the lawyers whose job it is to identify those laws and advise their clients.

The problem, however, is that the federal statutory crime in the 10,000 to 300,000 federal regulations that can be enforced criminally are scattered throughout 51 titles of the code in 50 chapters of the CFR.

NACDL does not have a position on whether all criminal statutes should be organized into a single title of the code. Common sense would dictate that most criminal provisions should reside in a single title unless clear evidence exists that a particular criminal provision belongs elsewhere.

Fair notice goes beyond being able to locate criminal statutes within the code it includes clarity in drafting, precise definition and specificity in scope. With rare exception the government should not be permitted to punish a person without having to prove that she acted with a wrongful intent.

And criminal law should be understandable. When the average citizen cannot determine what constitutes unlawful activity in order to conform her conduct to the law that is unfairness in its most basic form.

Unfortunately when legislating most criminal offenses congress has failed to speak clearly and with specificity, has failed to determine the necessity of new criminal provisions and has failed to assess whether targeted conduct is already prohibited or better addressed by state law.

While the cause of these failures is not clear the solutions are. Moving forward congress should approach new criminalization with caution and ensure that the drafting and review of all criminal statutes and regulations is done with deliberation, precision and by those with specialized expertise.

Given the unique qualifications of the Judiciary Committee and their council which alone possess a special competence and broad perspective required to properly draft and design criminal law this congressional evaluation should always include Judiciary Committee consideration prior to passage. This practice could be guaranteed by changing congressional rules to require every bill that would add or modify criminal offenses or penalties to be subject to automatic sequential referral to the relevant judiciary committee.

The members of this committee are far better suited to take on this critical role and to encourage others to always seek judiciary committee of any bills containing new or modified criminal offenses. Hopefully such oversight would stem the tide of over-criminalization and result in clearer, more specific, understandable criminal offenses with meaningful criminal intent requirements and would reduce the number of times criminal law making authority would be delegated to unelected regulators.

These comments are limited to the issues I was invited to address. The problems of over-criminalization are pervasive and the measures necessary to reform go much further than reorganization or committee oversight. Further discussion is, of course, contained in my written testimony.

I thank you for your bipartisan commitment to the task of ensuring that our nation’s criminal laws are not themselves a threat to liberty. NACDL will continue to support and assist you however we can.

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DOUG McVAY: As loyal listeners are aware, the drug truth network's executive producer Dean Becker put out a book this year titled To End The War On Drugs: a Guide for Politicians, The Press and the Public. This Tuesday July 29th, Dean will be in Washington, DC, to announce the Summer Reading Assignment for all US officials – I'll let Dean tell you about it, here he is with Congressman Beto O'Rourke:

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DEAN BECKER: I want to welcome Representative Beto O’Rourke. How are you, sir?

BETO O’ROURKE: I’m doing great. It is good to talk with you again and to be on your show. As I’ve told you before I am a big fan of yours and really appreciate what you do with this program.

DEAN BECKER: I want to thank you for being our host, our sponsor. We are going to have a press conference in the Canon House Office Building next Tuesday at 10 a.m. EST with a focus on my book, “To End the War On Drugs: The Policy Maker's Edition”.

We hope to encourage, motivate, educate representatives, senators, the President, the Supreme Court. We’re even mailing 50 copies to governors around these United States. Have you had a chance to look through the book?

BETO O’ROURKE: I have and also want to commend you on that effort of trying to take a rational, fact-based approach to drug policy in this country and working to ensure the people who are going to be crafting policy or changing current laws have access to that information so that they can make the best informed decision.

The challenge, as you know, is going to be to get them to actually read it and for those who have already made up their minds to open them back up again and take in new information and challenge their preconceived notions of how you keep this country safe, and the best way to keep kids off drugs and the best way to ensure that we have the healthiest, best, highly functioning societal in the world.

I think your book provides a lot of the basic facts necessary to make those decisions so I appreciate what you are doing on that account.

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DOUG McVAY: Good luck, Dean. You can hear all of Dean's interview with Congressman O'Rourke on this week's Cultural Baggage show, which you can download from the website at drug war facts dot org.

That's it for this week. I'm Doug McVay and this was Century of Lies. Thank you for listening. You can find a recording of this show and past shows at the website drug truth dot net, where you can check out our other programs and subscribe to our podcasts. Follow me on Twitter, where I'm @ Drug Policy Facts and @ Doug McVay. The Drug Truth Network is on Facebook, be sure to give its page a Like, you can find Drug War Facts on Facebook as well, please give it a like and share it with friends. Spread the word. Remember: Knowledge is power.

We'll be back next week with more news and commentary on the drug war and this Century Of Lies. For now, for the drug truth network, this is Doug McVay saying so long. So long!

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For the Drug Truth Network, this is Dean Becker asking you to examine our policy of Drug Prohibition.

The Century of Lies.

This show produced at Pacifica Studios at KPFT, Houston.

Transcript provided by: Jo-D Harrison of www.DrugSense.org