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Successful Constitutional Case Against Death Penalty Works For War on Drugs, Too

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The movement to restore civil liberties and resolve systemic racial injustices in the criminal justice system scored a major victory on Thursday. And no, this time we’re not talking about ending the war on drugs. Or at least not yet.

Washington became the 20th state to abolish the death penalty, with the state Supreme Court ruling that capital punishment is unconstitutional because “it is imposed in an arbitrary and racially biased manner.”

If you’re already seeing parallels to arguments for ending drug prohibition, you’re not alone.

Many of the same points the court made in their ruling against the death penalty ring true for the war on drugs, too. For example, the court argued that death sentences have been disproportionately carried out against black defendants, at a rate more than four times higher than it is for white defendants.

There were three main factors the justices cited as justification for abolishing capital punishment.

  1. “There is significant county-by-county variation in decisions to seek or impose the death penalty, and a portion of that variation is a function of the size of the black population but does not stem from differences in population density, political orientation or fiscal capacity of the county.
  2. Case characteristics as documented in the trial reports explain a small portion of variance in decisions to seek or impose the death penalty.
  3. Black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants.

“The most important consideration is whether the evidence shows that race has a meaningful impact on imposition of the death penalty,” the justices wrote in their opinion. “We make this determination by way of legal analysis, not pure science.”

“Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance. We need not go on a fishing expedition to find evidence external to Beckett’s study as a means of validating the results. Our case law and history of racial discrimination provide ample support.”

Similarly, drug reform advocates have long maintained that prohibition is racially discriminatory given disproportionate rates of enforcement and arrests for drug-related offenses. Black Americans are nearly three times as likely to be arrested for a drug-related crime, compared to white Americans. That’s in spite of the fact that rates of consumption are roughly equal among both groups.

What’s more, a 2012 report from the U.S. Sentencing Commission found that black men serve drug sentences that are about 13 percent longer than those applied to white men.

The Washington court said another factor that contributed to their decision concerned “contemporary standards and experience in other states.”

“We recognize local, national, and international trends that disfavor capital punishment more broadly. When the death penalty is imposed in an arbitrary and racially biased manner, society’s standards of decency are even more offended.”

The parallel here couldn’t be more clear. If such trends demonstrate a need to review and reform an existing law, the same rationale could theoretically apply to drug prohibition. A majority of states have legalized cannabis for medical or adult-use, and national interest in changing federal marijuana laws has steadily grown in recent years. Beyond marijuana, a broader drug reform push has included calls to abolish mandatory minimum sentences for non-violent drug offenses.

Of course, marijuana is already legal in Washington, and no other states have yet legalized drugs, so this part of the ruling’s applicability to a potential case seeking to strike down broad drug prohibition in the state might not be quite ripe yet.

While it’s unclear whether the constitutionality of prohibition could be reasonably challenged on similar legal grounds, the similarities are striking. The justification for capital punishment was another point of interest for the justices, who noted that the system failed to achieve its “penological goals” of “retribution and deterrence.”

For all intents and purposes, drug prohibition too has failed to achieve similar goals. Decades of drug war have not appreciably deterred consumption. From 2001 to 2013, the rate of marijuana use among American adults almost doubled, for instance.

The Cato Institute analyzed the impact of the drug war in a 2017 report. It concluded that prohibitionist policies “fail on practically every margin.”

“Economic thinking illustrates that these failures are not only understandable, but entirely predictable. As a result of prohibition and the changes it induces in the market for drugs, increased disease, death, violence, and cartels are all expectable outcomes. Moreover, economics can help us link together these policies with other issues, such as race relations and police militarization.”

A last note from the Washington Supreme Court justices:

“Under article I, section 14, we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner,” the justices wrote. “Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals.”

Now swap “death penalty” with “drug prohibition” in that last quote… Fits like a glove.

Trump Administration Seeks Public Comments On Marijuana Reclassification

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Los Angeles-based associate editor. His work has also appeared in High Times, VICE and attn.

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Senate Marijuana Hearing Highlights How Schedule I Status Blocks Research

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A major focus of a U.S. Senate Caucus on International Narcotics Control hearing on the health impacts of marijuana turned out to be how cannabis’s current federal classification makes it harder for researchers to shed light on those effects.

The Wednesday event—titled “Marijuana and America’s Health: Questions and Issues for Policy Makers”—featured testimony from Surgeon General Jerome Adams and National Institute On Drug Abuse Director Nora Volkow.

Panel co-chair Sen. Dianne Feinstein (D-CA) has long opposed broad marijuana reform but acknowledged in her opening remarks that the substance is “much more complex than I thought” and revealed that she has personally witnessed the medical benefits of cannabis for people dealing with chemotherapy.

“I know that for a fact from family issues,” she said.

And while she expressed serious concerns during the hearing about marijuana’s potentially harmful effects, particularly on young people, she also said that the drug’s current restrictive status under the Controlled Substances Act impedes scientific studies.

“Much of what we know about marijuana is anecdotal,” she said, which is “problematic for us in terms of making policy.”

“That’s due in part to the fact that marijuana’s status as a Schedule I drug makes it difficult to research,” the senator added, pointing to legislation she has filed that would lift some barriers to investigations. “It’s my belief that science should inform our policy.”

Co-chair Sen. John Cornyn (R-TX) suggested that he’s open to working with across-the-aisle colleague on the legislation, but also voiced concerns about legalization.

“We lack definitive evidence on the short- and long-term health implications of marijuana use,” he said. “There seems to be a lot of folk myths and other idiosyncratic ideas that really haven’t gone through the sort of peer review that most scientific evidence has to go through in order to be accepted by policymakers.”

Watch the Senate marijuana hearing below:

Volkow laid out a number of concerns about marijuana’s impact but also testified that its Schedule I status impedes and slows down research.

“DEA registration can take, if you’re lucky, one year to obtain,” she said. “That delays the process enormously.”

She also criticized the fact that there is currently only one legal source in the U.S. for scientists to obtain cannabis to use in studies. “The process is very slow” to get marijuana from the facility, which is at the University of Mississippi.

Another problem she pointed out is that researchers cannot legally study the cannabis products that consumers in a growing number of states are actually purchasing from licensed retailers.

“We are interested in understanding what people are taking out there,” she said. “We cannot fund research that relates to products that are actually being bought through these dispensaries because it’s illegal.”

Adams, who in August issued a warning the public about marijuana use by adolescents and pregnant women, said during his testimony that legalization is a “poorly-informed national public health experiment” but agreed that “we need to make it easier to do research.”

Cornyn compared claims about cannabis’s medical benefits to decades-old ads about tobacco, saying that there are “some parallels perhaps here in the way we are wading into this debate.”

Adams agreed. “We’ve seen this play before,” he said. “Many of the indications people are using marijuana for are unproven. We are overstating the benefits and in my view we are downplaying the risks.”

In a Senate floor speech on Tuesday in which he previewed the hearing, the senator made similar remarks.

“There’s no shortage of people who claim that marijuana has endless health benefits and can help patients struggling from everything from epilepsy to anxiety to cancer treatments,” he said. “This reminds me of some of the advertising we saw from the tobacco industry years ago where they actually claimed public health benefits from smoking tobacco, which we know as a matter of fact were false and that tobacco contains nicotine, an addictive drug, and is implicated with cancers of different kinds.”

In August, Cornyn said that he wanted to hold a hearing focused on cannabis’s health effects before the Senate moves to consider a proposal to allow state-legal businesses to access banking services. A bill to do so passed the House of Representatives last month and Senate Banking Committee Chairman Mike Crapo (R-ID) says he’d like to advance similar legislation by the end of the year, though he has indicated he wants some changes to the version approved by the other chamber.

Feinstein cosponsored a bill to let states set their own cannabis laws without federal interference during the course of her reelection campaign last year, but has not yet signed onto a new version filed in the current Congress.

A second panel at the hearing featured Robert Fitzgerald of the University of California at San Diego, Staci Gruber of Harvard Medical School, Sean Hennessy of the University of Pennsylvania School of Medicine and Madeline Meier of Arizona State University.

Cornyn—who at one point revealed he has a friend who feeds his dogs CBD-infused food—said that the caucus may issue a white paper based on what was discussed at the hearing.

Sen. Jacky Rosen (D-NV) made a brief appearance and mentioned the need to improve military veterans’ access to medical cannabis.

“In too many cases they’re becoming addicted to medications prescribed to them,” she said. “They have given so much to their country.”

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This story was updated to include quotes from the hearing.

Photo elements courtesy of rawpixel and Philip Steffan.

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UK Parliament Committee Endorses Decriminalizing Drugs

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A UK House of Commons panel is calling on the government to decriminalize drugs and adopt other harm reduction approaches to address a growing overdose crisis.

“We recommend a radical change in UK drugs policy from a criminal justice to a health approach. A health focused and harm reduction approach would not only benefit those who are using drugs but reduce harm to and the costs for their wider communities,” reads a report issued on Wednesday by the Health and Social Care Committee. “Decriminalisation of possession for personal use saves money from the criminal justice system that is more effectively invested in prevention and treatment.”

“Every drug death is avoidable. However, the United Kingdom, and in particular Scotland, have amongst the highest drug death rates in Europe. The evidence we have heard leads us to conclude that UK drugs policy is failing.”

The panel said that decriminalization alone “will not be effective without investing in holistic harm reduction, support and treatment services for drug addiction.” To that end, it is also voicing support for syringe exchange programs, drug checking services, naloxone, safe consumption facilities and heroin assisted treatment—components that it says “can all play an important role in preventing deaths amongst drug users as well as protecting their communities by reducing the harm from discarded syringes and drug related crime.”

The committee also wants to move responsibility for drug policy from the Home office, which handles crime, to the Department of Health and Social Care. “We strongly recommend this move,” the report says.

When it comes to the proposal to remove criminal penalties for drug possession, the committee wrote about witnessing the success of that policy in Portugal, where it was enacted in 2001.

“On our visit to Portugal we saw a system marked by a positive attitude to service users which recognised the impact that chaotic lifestyles could have on engagement with support and treatment,” the report says. “There was a striking ethos of holistic, non-judgemental treatment and access to services focused on the needs of individuals rather than the convenience of the system.”

The lawmakers said that UK-based treatment professions share “a similar ethos, but their capacity to deliver is compromised by inadequate funding and the policy framework.”

The Portuguese model, they write, has “had an impact on stigma” and has led to a “dramatic drop in drug related deaths…without significant increases in drug use.”

“All those we met in Portugal involved in this policy area were very positive about their model,” the lawmakers said. “On introduction, there had been significant opposition, but there is now political consensus and nobody would want to go back. Some of those we met were now of the view that the next step should be legalisation and regulation, to enable the generation of taxation revenue and quality control.”

“Efforts to improve the unacceptably high rates of drug-related deaths would be strengthened by explicitly reframing drug use as a health rather than a criminal justice issue.”

The panel’s report also recounts how members toured supervised drug consumption facilities in Frankfurt, Germany, and recommends that they be “piloted in areas of high need” in the UK.

“Police representatives told us that these facilities should not be viewed simply as allowing people to take illicit drugs–they are about safety, stopping drug overdoses, and very importantly, providing access to a wraparound of other services to eventually stop that person’s drug use,” they wrote. “Harm reduction approaches such as [drug consumption rooms] reduce the wider harms to local communities as well as for those using drugs.”

A government spokesperson rejected the committee’s recommendation to remove criminal penalties for low-level drug offenses, saying that it “would not eliminate the crime committed by the illicit trade, nor would it address the harms associated with drug dependence and the misery that this can cause to families and communities.”

But Dr. Sarah Wollaston MP, chair of the Health and Social Care Committee, said that “a holistic approach centered on improving the health of and reducing the harm faced by drug users, as well as increasing the treatment available, must be a priority going forward.”

“This approach would not only benefit those who are dependent on drugs but benefit their wider communities,” she said in a press release. “The Government should learn lessons from the international experience, including places like Portugal and Frankfurt. It should consult on the decriminalisation of drug possession for personal use from a criminal offence to a civil matter. Decriminalisation alone would not be sufficient. There needs to be a radical upgrade in treatment and holistic care for those who are dependent on drugs and this should begin without delay.”

James Nichols, CEO of the pro-reform Transform Drug Policy Foundation, praised the report but also suggested its recommendations didn’t go far enough in that they would leave the market unregulated by simply decriminalizing possession.

“We need to think about drugs as a health issue, not a criminal justice agenda. This isn’t simply a matter of thinking differently. It’s about creating an entirely new policy landscape. It means action, not just words,” he wrote in a blog post. “Decriminalisation is essential in moving drug policy away from the simplistic, ineffective and often prejudicial approach we have today. Ultimately, though, we need to bring the whole market under legal regulation in order to really get drugs under control and reduce the violence and exploitation that prohibition creates.”

The UK committee’s endorsement of decriminalization is just the latest sign that broad drug policy reforms beyond marijuana legalization are gaining traction around the globe.

This month, Scotland’s ruling party unanimously adopted a resolution endorsing “decriminalization of possession and consumption of controlled drugs so that health services are not prevented from giving treatment to those that need it.”

In Canada, the House of Commons Standing Committee on Health issued a report in June recommending the government “work with provinces, territories, municipalities and Indigenous communities and law enforcement agencies to decriminalize the simple possession of small quantities of illicit substances.”

In the U.S., presidential candidates such as Pete Buttigieg and Tulsi Gabbard have voiced support for drug decriminalization during the course of their campaigns for the Democratic nomination, and businessman Andrew Yang and former Rep. Beto O’Rourke (D-TX) spoke in favor of removing criminal penalties for at least opioids during a debate this month.

Denver and Oakland have enacted policies this year focused on psychedelics decriminalization.

A poll released this month found that a majority of Americans—55 percent—support decriminalizing drugs.

Last week, a top Mexican lawmaker proposed going further by legalizing the production and sales of drugs in order to undercut the violent, cartel-controlled underground market.

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USDA Outlines Rules For Importing Hemp Plants And Seeds From Other Countries

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The U.S. Department of Agriculture (USDA) quietly updated guidance last week to clarify that hemp seeds and plants may be imported from other countries.

As was the case under a previous announcement focused on seeds, the requirements for importing the full plant from Canada are different than for other countries. Plants from Canada are allowed if they’re “accompanied by a phytosanitary certificate from Canada’s [national plant protection organization” to verify the origin of the plant and to confirm no plant pests are detected.” For other countries, importers must fill out an additional permit application.

Companies can also import hemp seeds from Canada if they produce a “Federal Seed Analysis Certificate.”

In addition to a phytosanitary certificate, those who seek to import seeds from countries other than Canada are subject to a Custom and Border Protection inspection at the port of entry in order “ensure they meet [Animal and Plant Health Inspection Service] regulations, including certification and freedom from plant pests.”

Prior to last week, USDA had only offered guidance on the rules for importing seeds, which it released in April. Both updates are in response to the federal legalization of hemp and its derivatives under the 2018 Farm Bill.

USDA has taken an incremental approach to the implementation process for hemp since the legislation was signed into law last December. The department said in April that it’s accepting applications for intellectual property protections for seed-propagated hemp.

In August, USDA said farmers operating under the 2014 Farm Bill are eligible for federal crop insurance for the 2020 planting season. That coverage will extend to all hemp farmers after USDA releases its final regulations for the crop.

USDA Deputy Secretary Stephen Censky said on Monday that the department plans to release its interim final rule on hemp within “the next couple of weeks.”

The latest development comes after more than three months of interagency review of the regulations, which included input from the Justice Department and White House Office of Management and Budget.

Hemp Regulations Will Be Issued Within Weeks, Top USDA Official Says

Photo courtesy of Pixabay.

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