02/22/15 Doug McVay

Doug McVay reports: New legislation introduced in Congress to legalize marijuana, and a House subcommittee looks at federal forfeiture policy.

Century of Lies
Sunday, February 22, 2015
Doug McVay
Drug War Facts
Download: Audio icon COL022215.mp3



FEBRUARY 22, 2015


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.

DOUG MCVAY: Hello and welcome to Century of Lies. I'm your 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 Pacifica Foundation Radio Network and is supported by the generosity of the James A. Baker III Institute for Public Policy and of listeners like you.

And now, on with the show.

EARL BLUMENAUER: For more than 70 years, our government has followed the most spectacular failure in policy since the disastrous 13-year experiment with the prohibition of alcohol. Forty three years ago the National Commission on Marijuana and Drug Abuse released a report finding that the federal ban on marijuana is unjustified and inappropriate. Yet for most of that time, federal policy's been frozen in amber.

Countless lives have been ruined for the use of a substance that a majority of Americans now think should be legal. Untold billions of dollars have been spent on a failed effort at prohibition, and still 25 million adults use it every month. Despite a finding in federal law that marijuana is a schedule one controlled substance with no therapeutic value, 213 million Americans live in 34 states and the District of Columbia where medical marijuana is recognized and legal in some form, and over a million people use it as medicine.

In 1996, voters in California marked a significant change in course when they legalized medical marijuana with a vote of the people, and almost 3 dozen states have followed. In the fall of 2012, voters in the state of Washington and Colorado approved adult use of marijuana, and it should be noted the sky didn't fall, big cracks didn't appear in the earth, and problems with marijuana didn't get worse, in some instances they became more manageable.

For the federal government, the tide continues to turn. Last session of Congress had 6 successful votes on the floor of the House to rationalize our foolish policies, including reining in federal enforcement and opening opportunities for legal industrial hemp cultivation. Last fall, voters in my state of Oregon, looking at the evidence and experience like in Colorado, approved adult use by an even larger margin than previous states.

The marijuana reform train has left the station. It's time for the federal government to redouble its efforts at developing policies that work. Congressman Jared Polis and I will reintroduce this week our legislation to establish a federal framework to end the failed federal prohibition. It will pave the way for states to chart their own course, to legalize, tax, and regulate marijuana according to what individual states want to do, just like they do with alcohol.

We will save tens of billions of dollars in failed enforcement, incarceration, and lost revenues. We will choke off a profit center for drug cartels that have been enriched by our failed policies, and we will make it easier to enforce laws to keep marijuana out of the hands of our children, and have money for government services rather than waste money on failed policy, arresting people for something that a majority of Americans now think should be legal.

For those of us who've worked in this field for years, it's an exciting time. My legislation will deal with the taxation of marijuana, and we look forward to refining it, to be able to have the tax at a proper level to support government services but also reasonable enough to choke off black market supply. It's time for us to enter a new era of marijuana policy: for research, protecting our children, for economic development, and individual liberties. I strongly urge my colleagues to examine the legislation that we've advanced, and be part of this long overdue effort at reform.

DOUG MCVAY: That was Congressman Earl Blumenauer, Democrat of Oregon, on the floor of the US House of Representatives on February 12th of this year. The legislation he referred to was introduced to Congress on February 19th. Blumenauer and Congressman Jared Polis, a Democrat from Colorado, are two of the leaders in the ad hoc Congressional Drug Policy Reform Caucus. As explained in the news release from Congressman Polis's office, quote:

“Representative Polis’s legislation, H.R. 1013, the Regulate Marijuana Like Alcohol Act, removes marijuana from the schedule set by the Controlled Substances Act; transitions marijuana oversight from the jurisdiction of the Drug Enforcement Agency to the Bureau of Alcohol, Tobacco, Firearms and Explosives; and regulates marijuana like alcohol by inserting into the section of the U.S. Code governing 'intoxicating liquors.' Representative Blumenauer’s legislation, H.R. 1014, the Marijuana Tax Revenue Act of 2015, creates a federal excise tax on non-medical marijuana sales and moves this quickly growing industry out of the shadows.” End quote.

I have not yet had the opportunity to study these bills closely so for now we're going to take the members' words for what these bills do. I've found over the years that sometimes members don't really know what's in their legislation. These things are written by staffers and the members have to rely on the interpretations they're given by their staff members and attorneys and by committee staffers and attorneys. And then the bills get amended, maybe just a tweak here or there, technical changes possibly, yet minor changes sometimes add up to serious changes.

Again, the staffers are the ones who really know what's in a bill and the bigger the piece of legislation, the less likely that anyone will know what's in it. A good example of this is the Hinchey amendment, which got renamed the Rohrabacher-Farr amendment, the one that prevents the Justice Department from spending any appropriated funds to interfere with state implementation of state medical marijuana programs.

You have probably heard and read that Congressman Rohrabacher has stated unequivocally that this amendment should have meant an end to federal actions against dispensary owners in California and against medical marijuana providers in Washington. Now, I've met Dana, I appeared on a panel with him at Hempfest. I have a great deal of respect for him. I just think he's got this one wrong. First, let's look at what that amendment really says, and for the sake of clarity I'll skip over the list of states.

Quote: “None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama,” and it's a long list of states, quote, “to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” End quote.

This is not just a rant, there is a news story attached, so please bear with me. There are a few key items in that. First, the part about “funds made available in this act.” That means that there is no restriction being set on the use of forfeited funds. Some of that forfeited money goes to state and locals, true, some of it is given back to victims of financial fraud, but that still leaves hundreds of millions of dollars in the federal coffers to fund DEA and other Justice Department operations, particularly forfeiture actions.

Secondly, the language of that amendment says that funds cannot be used to quote “prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” End quote. The reference to state implementation of state laws is key here. Recently, attorneys up in Washington state argued that prosecution of the Kettle Falls Five should be halted because of this provision. Americans for Safe Access is working with those attorneys, my good friend Steph Sherer from ASA referred to the government's response to those arguments as weak. Yet, the judge in this case threw out the defense arguments and sided with the government. The Kettle Falls prosecution continues.

And now I'll mention here one bit of good news. One of the Kettle Five defendants, Larry Harvey, has had his charges dropped. He is 71 years old and suffering from terminal cancer. Meanwhile the other four – his wife, son and daughter-in-law, and a family friend – remain on trial. The judge determined that the restriction in that appropriations bill did not apply. Washington state, as folks should recall, does not have a legally regulated system for medical marijuana, the dispensaries operating around that state are actually technically – well, more than technically, they're really illegal. They're simply tolerated.

In California, forfeiture proceedings are continuing against the owners of the property which houses Harborside Health Center, actually both the property in Oakland and the property in San Jose on which their smaller sister dispensary is located. Attorneys for Harborside – and in the interest of full disclosure I must say is co-owned and operated by my very old friend and former housemate Steven DeAngelo – the attorneys for Harborside are arguing that the US Attorney in that district, Melinda Haag, is violating that restriction enacted by Congress in the appropriations bill.

Ms. Haag is continuing the forfeiture action in spite of that restriction, and she argues that the restriction does not apply in this case. Well now, let's leave aside the question of whether a forfeiture action is using appropriated funds or whether it is paid for by forfeited moneys, which would exempt it entirely. The primary issue here is that California, like Washington, does not actually have a legally regulated system of dispensaries. In many ways, technically, California dispensaries are operating illegally. They're simply tolerated.

So the question comes down to, is state implementation the same thing as operating a privately-owned dispensary, particularly if a state does not have any legal regulatory system in place? Bear in mind, these cases again are in Washington and California, states which do not have legal regulatory systems for medical marijuana.

Some have actually argued that the language of that amendment is aimed mostly at reassuring state agencies and state officials that they will not face federal prosecution for doing their jobs by implementing state laws. That's a concern which many have dismissed yet practically speaking, it is a serious one. It's one thing for a state to decide that it will not enforce a particular law. That's what true decriminalization really does, that's what DC's legalization law does. When the state takes the next step and issues permits to people to essentially break federal law by engaging in commercial marijuana production and sale, that's the point where a state enters hazardous territory.

For example, when a bill in Washington state a few years ago was partly vetoed by their then-governor Christine Gregoire, that's the reasoning that was used for the veto. Now, this amendment to the federal appropriations bill definitely protects state agencies and state officials. The question again is, at what point does a private business become a state actor? That is the question being worked out in federal courts currently, and again, so far it's not going the way that reformers, and the amendment's sponsors, were hoping.

I'm just a ray of sunshine, aren't I? It's not that I really like being a downer, I just think it's important to not wear blinders. Of course sometimes, there really is good news. There's some very positive research out there showing that drug policy reforms are working, and are having good effects. The news media don't always get things entirely wrong.

For example, there's the question of what impact medical marijuana programs have on marijuana use by young people. Well, according to an article titled “The Impact of State Medical Marijuana Legislation on Adolescent Marijuana Use," published in the August 2014 issue of the Journal of Adolescent Health, quote:

“In conclusion, our study of self-reported marijuana use by adolescents in states with a medical marijuana policy compared with a sample of geographically similar states without a policy does not demonstrate increases in marijuana use among high school students that may be attributed to the policies.” End quote.

See? I'm not all about bad news.

And riving is another concern that's frequently mentioned in regard to legalization. There was news recently about research showing that marijuana is less dangerous than alcohol when it comes to driving. That research was published by the National Highway Traffic Safety Administration in its Traffic Safety Facts Research Note issued earlier this month, titled “Drug and Alcohol Crash Risk.” According to NHTSA, quote:

“This study of crash risk found a statistically significant increase in unadjusted crash risk for drivers who tested positive for use of illegal drugs (1.21 times), and THC specifically (1.25 times). However, analyses incorporating adjustments for age, gender, ethnicity, and alcohol concentration level did not show a significant increase in levels of crash risk associated with the presence of drugs. This finding indicates that these other variables (age, gender ethnicity and alcohol use) were highly correlated with drug use and account for much of the increased risk associated with the use of illegal drugs and with THC.” End quote.

So again, those stories you may have read about recently are actually more or less true. Some of them still get details wrong, one way or another. But you see, that's why I edit DrugWarFacts.org. We know that an informed public will eventually correct its errors and generate wiser policies. They can only do that if they get the facts. That's what we do with Drug War Facts. We provide information directly from the best sources, with full quotes and complete citations, along with a link to the original materials whenever possible so people can not only verify the information we provide, they can do more reading and research for themselves.

That's what I try to do on this show too. The US drug war, its century of lies, can come to an end when we finally see the light of the truth. No blinders, no rose-tinted glasses. Well now, we have some time left today so let's go to Congress for few minutes. There was a House Judiciary subcommittee hearing recently on federal forfeiture, which I know that you will find interesting. We should give a listen to part of it now:

REP. JAMES SENSENBRENNER: The gentleman from Virginia, Mr. Goodlatte.

REP. BOB GOODLATTE: Thank you, Mr. Chairman. Mr. Blanco, one of the key points from inspector general's, uh, the inspector general's report on cold consent searches is that the general public doesn't know their rights when confronted in seizure situations and often turns over money because they're pressured or believe they have to do so, and they're in, as I noted in my opening statement, in an uncomfortable situation. What can the Justice Department do to fix this?

KENNETH A. BLANCO: Thank you, Chairman, for that question. I'm not familiar with the OIG's report, I'm not familiar with that instance, but, but I can tell you what the federal government can do in order to –

REP. GOODLATTE: Let me back up. You're not familiar with the Inspector General's report?

KENNETH A. BLANCO: I have not read that report, no.

REP. GOODLATTE: Well don't you think it would have been a good idea to read that before you came here?

KENNETH A. BLANCO: I'm happy to read it, Chairperson, but I can tell you two things. One is, the federal government can definitely get involved by training individuals, by training officers, and by supervision, by providing in place or putting in place guidelines for them and how they approach individuals and how they do their job, which we do on a regular basis. I think there's also a way to make sure that the public knows what their rights are, and I think the federal government can do those things in lockstep as well as training its law enforcement officers.

REP. GOODLATTE: What about not adopting cases in which certain federal guidelines have not been followed?

KENNETH A. BLANCO: Well I think Chairman, that at this point, if you take a look at the adoptions, which has been much of the criticism that has come out at least our first step in reviewing our process and as you know, we are taking a very extensive top to bottom review of the process, federal adoptions of state cases have been eliminated, Chairperson. What you have right now are for specific exceptions, and those are public safety exceptions, so that's not even on the table.

REP. GOODLATTE: Let me stop you because I have limited time and go to Ms. Sheth. In his written testimony, Mr. Blanco quotes Justice Kennedy and states, quote, no interest of any owner is forfeited if he can show he did not know of or consent to the crime. How realistic of a statement is that in practice?

DARPANA SHETH: Practically speaking, that is not a realistic statement. As I explained, many forfeitures, 64 percent, are administrative, and in that circumstance the forfeiture is presumed valid, so property owners – maybe it's helpful to walk through how ordinary seizures work. Initially, the seizure must be based on probable cause –

REP. GOODLATTE: Better walk fast, because I only have a limited amount of time. Go ahead.

DARPANA SHETH: Initially the seizure must be based on probable cause, and that's usually an on-the-ground determination by police officers. There's no check on that. The only check in administrative forfeitures is by the seizing agency itself. To the extent it even gets to a civil forfeiture, which is only when a property owner files a claim, then they still face these burdens of needing to hire counsel, because there's no guarantee to counsel, they have to affirmatively prove they are innocent of a crime and that they did not know of the illegal activity, so it's very difficult and this process stacks the deck against innocent property owners.

REP. GOODLATTE: Let me follow up with Mr. Smith on that. You note in your testimony that few attorneys or petitioners understand the administrative process to recover seized assets, and ask that agencies include a detailed description of the process within their notice of seizure. However you also note the technicalities of this process make it difficult for attorneys to properly file an appeal. What changes can we make to the process for administrative forfeitures that will make it more understandable for petitioners and attorneys alike?

DAVID SMITH: Thank you for that question. Uh, I, uh, in my written materials I've made a number of suggestions and actually I have, uh, I have even further, uh, suggestions for reforming the administrative forfeiture process that are not included here but which the members of the committee are aware of. The, uh, I chose to focus here because I figured I had very little time,

REP. GOODLATTE: You have very little time because I've got one more question to ask Mr. Henderson, so –

DAVID SMITH: There, basically, the ones that are in my written submission here fall into two categories, Mr. Goodlatte. One is a –

REP. GOODLATTE: You're going to have to submit them in writing, I'm sorry. Mr. Henderson, do you have the manpower to prosecute forfeiture cases in your county in the absence of DOJ adoption policies, and what will happen tot he cases that DOJ would have taken under the previous policy?

KEITH HENDERSON: In my county, no, I do not have those resources, especially in the case, in the instances where there are criminal enterprises, if you will, as I, in my written comments I spoke of you know, garages, barber shops, you know, cash businesses, uh, that are used, being used as fronts. That's one of the areas that local – generally, local authorities, and a majority of prosecutor's offices in this country are not major metropolitan areas, have a very difficult time handling those kinds of assets and those kinds of, uh – and that type of procedure. There is a provision to allow outside counsel to take contingency fees if you will. Personally I've never been a fan of that and have not made use of that, but I know there are some instances that are occurring.

REP. SENSENBRENNER: Time of the gentleman has expired. Before recognizing Mr. Conyers, let me say, Mr. Blanco, I'm going to reserve the right to recall you.


REP. SENSENBRENNER: No, I am absolutely shocked that you have come as a Justice Department witness to this hearing without reading the Inspector General's report that is directly on point. You know, IG's reports are designed to give the department an opportunity to clean up its own act rather than having Congress to give you a kick in the behind to do that. Now apparently, a kick is necessary, and I'll be honest to say that you came up here without being prepared with the major point that the Inspector General's report is making. The gentleman from Michigan, Mr. Conyers.

REPRESENTATIVE JOHN CONYERS: Thank you. Attorney Sheth, let's talk about a very unpleasant subject, racial profiling, which we've got laws against it and everybody's preached about it, but it's still happening, I think to a greater extent than many of us are aware, and I just want to see how you and attorney Smith think this thing plays into more problems when we come to asset forfeiture.

DARPANA SHETH: Sure. Unfortunately, there are no hard statistics on the disproportionate impact of civil forfeiture on minorities and those of lower income, but a study, or an examination by the Washington Post revealed that in 400 federal court cases they examined in which people contested seizures and received their money back, through, because there was absolutely no grounds for the seizure, the majority were black, Hispanic, or another minority. And even the DOJ itself has implicitly acknowledged that cold consent encounters are more often associated with racial profiling than contacts based on previously acquired information, and that is revealed in the OIG report from January 2015.

If I may just briefly address some of the points that Mr. Henderson raised, there is no better way to ensure that the primary purpose of asset forfeiture is not to benefit from those assets than simply to eliminate the ability of law enforcement to retain those assets. Also, a point of clarification, Mr. Henderson is unfortunately wrong on the point about Indiana law. While the Indiana constitution does require forfeitures to go to the Common School Fund, Indiana statute allows for law enforcement expenses of forfeiture to be paid out of forfeiture proceeds, and indeed the Indiana Attorney General has taken the formal legal position that because these are civil and not criminal proceedings, civil forfeitures are not required to go to the Common School Fund.

REP. JOHN CONYERS: Thank you. Do you have anything to add to that, David Smith?

DAVID SMITH: Yes. Yes, Mr. Conyers. The, uh, I appreciate that fact that we do have some statistics on racial disparities in this area, and, but, you know, you don't need a report or statistics to know that that's, that's the case, because we've seen, you know, dozens and dozens of newspaper stories, for decades now, since the late 80s when forfeiture abuse first came to the attention of the public through the press, and time after time the stories are focused on that theme, that minorities are targeted by the highway patrols for these, these, uh, outrageous stops that were, were – they're just looking for money, they're not trying to enforce the law through these stops.

You know, they talk about, we're looking for terrorists on the highway, that's what they actually tell some of the, the Virginia state police will stop a motorist and say you know, we're out here looking for terrorists and drug dealers, and uh, and then they get around to saying by the way, do you have any cash in your car? That's what they're really after. So it's really a disgraceful situation. And by the way, I can't help, I want to compliment Mr. Henderson for bringing up this very distasteful subject of how many DAs in Indiana actually hire private outside counsel to, uh, to do all of their civil forfeiture cases. All of them, it's like a contract.

REP. JOHN CONYERS: Other states do that too, do you know?

DAVID SMITH: No, I'm not aware of it happening in any state except Indiana. And there's no statute saying that, you know, go ahead and do this, it's just a practice that has developed, and I compliment Mr. Henderson for saying he doesn't approve of it. But apparently it's a practice that most DAs in Indiana do follow, and –


DARPANA SHETH: To clarify, the Indiana statute does allow for, specifically authorizes prosecutors to hire private attorneys. The contingency fee agreement is what is by practice, and it's usually up to 30 percent. But to answer your question, what can be done for the racial profiling, is to require the DOJ to actually track statistics, greater transparency and reporting about how it's affecting minorities and how many stops are of minorities.

DOUG MCVAY: That was from a hearing on federal forfeiture held before a subcommittee of the House Judiciary Committee.

And that's all the time we have this week. You're listening to Century Of Lies, a production of the Drug Truth Network. We come to you once a week with news, information, and commentary on the drug war. Century Of Lies is heard on 420Radio.org on Mondays at 11 am and 11 pm, and Saturdays at 4 am, all times are pacific. We are heard on time4hemp.com on Wednesdays between 1 and 2pm pacific along with our sister program Cultural Baggage. And we're on The Detour Talk Network at thedetour.us on Tuesdays at 8:30pm.

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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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