With two federal watchdog agencies freeing the White House drug czar to overtly influence state ballot initiatives, the Senate is poised to reauthorize this anti-democratic exercise for the next five years -- the wheels greased by a ten-year total of $4 billion in taxpayer-funded advertising designed to sway the votes of those who pay for it.
The General Accounting Office recently declared the Bush administration's $22-million multimedia ad campaign touting new Medicare drug benefits to be marred by "omissions and other weaknesses" though not downright illegal. The GAO has also agreed to examine whether the administration's video news releases with fake reporters promoting the Medicare changes violate laws against government "covert propaganda."
But in the flap over what Democrats charge is the administration using public resources to heighten the president's appeal, a recent GAO ruling permitting outright electioneering by the White House Office of National Drug Control Policy has escaped notice.
The ONDCP reauthorization bill that has passed the House but stalled in the Senate is an opportunity to unravel a contradictory tangle. Congress needs to square the contradiction between ONDCP's statutory responsibility to advocate a partisan political view -- that is, to oppose state drug reform initiatives -- versus the prohibition on federal officials using public resources to influence the outcome of an election.
The need for congressional resolution is heightened since, echoing a prior ruling by the U.S. Office of Special Counsel, the GAO has granted the White House drug czar full license to try to influence the vote on state ballot initiatives, amendments and referenda. On March 10th, the GAO informed John P. Walters he can campaign at will under ONDCP's congressional mandate of "taking such actions as necessary to oppose any attempt to legalize" drugs.
Compared to Walters at least, Clinton drug czar Barry R. McCaffrey trod comparatively lightly as several western states passed medical marijuana initiatives. Despite fathering ONDCP's media campaign -- now slated for a total value over ten years of some $4 billion -- as a direct response to those initiatives, McCaffrey did seem to recognize some limit on his overt anti-initiative campaigning. As Walters himself told the Chicago Tribune last year, "I certainly understand the dangers of federal officials, a White House official, coming to a state and talking about a state ballot issue. We didn't use to do this."
But neither his predecessor's shred of reticence nor his own rhetorical appreciation of the limits on White House electioneering kept Walters from vowing to the Wall Street Journal, "We're going to fight whether we win or lose in every state they [reformers] come in to from now on."
By the GAO's lights, Walters can use tax dollars to loose whatever fictions he wishes upon the land since it saw no need "to examine the accuracy" of an ONDCP pre-election letter to prosecutors nationwide calling on them to oppose what the letter termed "campaigns to normalize and ultimately legalize the use of marijuana." In accompanying material, ONDCP made reference to "state initiatives" and the need for prosecutors to dispel the alleged myths that support their passage.
The GAO decision came in reply to a complaint from Rep. Ron Paul (R-TX) regarding ONDCP's efforts in 2002 to sway voters in several states, including Nevadans deciding on whether to regulate and distribute marijuana.
The ONDCP letter to the nation's local prosecutors, written by deputy director Scott Burns, asked them to "take a stand publicly" against "well-financed and deceptive [legalization] campaigns." Topped by a picture of the White House and the bold heading: "Executive Office of the President," Burns' letter no doubt attracted attention in many a local district attorney's office. An accompanying letter from the then president of the National District Attorneys Association, Dan M. Alsobrooks of Tennessee, urged his fellow prosecutors "to consider ways that you can bring this message to your communities."
The Burns letter ran afoul, Rep. Paul asserted, of the federal prohibition on spending funds on "publicity or propaganda." Despite the common pejorative connotation, propaganda, according to my dictionary, means simply: "ideas, facts or allegations spread deliberately to further one's cause or to damage an opposing cause."
But, the GAO ruled, this prohibition did not apply since it concerns only "legislation pending before Congress." Nor does it affect "an agency's legitimate informational activities." The GAO declared further that Burns's letter is not covered by any prohibition on partisan activities "given that they were made in furtherance of ONDCP's statutory responsibilities." Yet the term partisan is by no means confined to donkeys and elephants. It means simply, that same dictionary says: "a firm adherent to a party, faction, cause or person." The fierce political wrangle over drug policy is nothing if not a partisan cause -- on both sides of the issue.
As to that complementary Office of Special Counsel ruling, in May 2003 it declared that since state ballot initiatives don't elect individuals to office and aren't formally associated with a particular political party, the normal Hatch Act restrictions on using an official position for electioneering don't apply to the drug czar when he travels the country denouncing initiatives. This despite the law prohibiting the use of "official authority or influence for the purpose of interfering with or affecting the result of an election."
In fact, OSC itself referenced what it termed Walters' "efforts to defeat ballot initiatives seeking to legalize marijuana." If that doesn't brand his efforts as partisan, words have no meaning. Twisting logic further on its head, OSC stated that since initiatives result in no one assuming office, they somehow aren't elections -- all the thousands of people who travel to the polls to cast ballots notwithstanding.
OSC was responding to a complaint from the Nevada ballot measure's sponsor, the D.C.-based advocacy group, the Marijuana Policy Project. It complained, in part, about the three days Walters spent barnstorming the state blasting the initiative with such statements as it would help "feed the criminal organizations that are a dangerous threat to democratic institutions in the Western Hemisphere." (See below on the huge ONDCP ad-buy that equated smoking pot with actually killing firemen! -- a group ineluctably linked to the war on terror.)
Walters' anti-initiative campaign in Nevada even led the state's attorney general, Brian Sandoval, to declare him guilty of "excessive federal intervention." Sandoval added that the White House's campaign was "particularly disturbing because it sought to influence the outcome of the Nevada election."
But Walters had Congress's imprimatur to do what he pleased (fling five-dollar bills from a helicopter perched over the polls?) to oppose legalization, so Sandoval figured there was nothing he could do -- not even force Walters to file the campaign reports that would reveal how much his Nevada jaunts had cost the nation's taxpayers.
As the line between publicly funded social marketing and electioneering blurs, Congress should resolve the inherent contradiction between laws against both propaganda and partisan political activity on the one hand and, on the other, an agency's statutory responsibilities. It's a knotty problem since the latter, said the GAO, "could include the making of advocacy statements in opposition to legalization efforts."
Though it'll take concerted effort, this legislative Gordian knot should be loosed as the question of federal interference with state ballot questions isn't fading in importance. Forget voters booting Grey Davis from office in California when they wearied of his pallid efforts, though the process was meant as a safeguard against malfeasance. MPP plans on pushing three ballot measures this November: in Arkansas, Montana and another, more modest attempt at marijuana regulation and distribution in Nevada.
As politicians of all stripes seek to duck such controversial issues as gay marriage by declaring them up to the states to decide, does the country really want the federal government spending tax money running TV ads that, in the guise of modeling what it deems correct behavior, can influence elections?
Consider the drug czar's 2003 Super Bowl ad that presented a young teenager having her baby as the only possible outcome after reefer madness -- not some wily boy -- had left her pregnant. Her parents, the ad intones, are soon to be "the youngest grandparents in town." That is, "There will be an addition to their family soon." Joseph R. Giganti, a spokesman for the American Life League, told me after it aired, "Without question, there is a very strong but subtle pro-life statement presented in this commercial."
Certainly buried in some past or future appropriations bill language can be found requiring the Department of Health and Human Services to promote healthy families. So what's to prevent HHS from weighing in with an ad on the preferability of children being raised by a mother and a father just as voters ponder an amendment outlawing gay marriage? It's no longer a moot point given that Georgia voters will decide whether to ban gay marriage there in November.
Of course, the official posture would be that such an ad would have no more to do with any marriage amendment than did the rash of anti-marijuana ads that voters saw in the fall of 2002 have anything to do with drug-policy initiatives. Yet ONDCP's self-parodyingly extreme, pre-election ads blamed pot for: some stoner idly shooting a friend or running down a kid on a bicycle on up to a terrorist bombing a restaurant or slaughtering a family of innocents -- everything but kidnapping the Lindbergh baby.
I discuss the marked pre-election increase in the ads below. But consider the ads' attempt to smear pot-use with terrorism -- a tactic arguably redolent of fascism given that the White House used the current embodiment of evil incarnate (bomb a restaurant, indeed!) to try to turn elections. Then consider this White House line in light of the address by ONDCP Deputy Director Mary Ann Solberg to an anti-initiative strategy session at the Drug Enforcement Agency office in Detroit in late August 2002 just as the election season kicked into gear. As I've previously disclosed, according to the invitation printed on DEA letterhead, the meeting would "provide insight on successful strategies to combat legalization." [sic] The invitation added that participants would discuss how to "share their ideas and strategies and possibly combine resources in combating" the initiatives.
One participant, Judge Brian W. MacKenzie, a District Judge in Michigan's 52nd District, told me that Solberg's address to some 50 cops, judges, prosecutors and private drug warriors focused almost entirely on the new, nationwide anti-marijuana ad campaign ONDCP would launch as voters started paying attention.
And thus the ONDCP "Marijuana Initiative" was born. According to a University of Pennsylvania study of the White House ads issued last December, "weekly parent-targeted general market GRPs" -- that is, gross rating points measuring an ad campaign's exposure -- had fallen to just about nothing in mid-August 2002, but then shot up sharply to as high as the equivalent of four exposures per week in late October just before Election Day. The measure then plunged to the equivalent of under a half-exposure per week after Election Day. Fully half of the ONDCP ad buy is aimed at "adult influencers," otherwise known as voters. An ONDCP 2002 pre-election memo stated its intent to obtain a total value of $96 million in advertising during and just after the election season, with a particular focus on marijuana.
(I say: total value since Congress mandates all ONDCP ad buys at fifty cents on the dollar -- take it or leave it. This provision is what led the networks and ONDCP to agree to substitute White House-vetted, anti-drug scripts in sitcoms and dramas for ad time the networks owed ONDCP, as I revealed in 2000.)
Though all this social marketing is ostensibly supposed to keep kids from getting into trouble with drugs, try pot once, and the White House apparently deems you beyond hope -- or at least evaluation. The Penn study noted that, "For youth, analyses of Campaign effects are limited to 12- to 18-year-olds who report never having tried marijuana." It seems the government doesn't want to know if experience trumps illusion once that single joint has passed those impressionable adolescent lips. Perhaps the issue is moot since Penn has consistently found little evidence that the ads do anything to keep kids off drugs -- and may actually increase marijuana initiation among some subgroups of teens.
Not that this failure affects appropriations levels. Passed by the House, the bill reauthorizing ONDCP until 2008 awaits action by the Senate Judiciary Committee. After declining to $150 million in FY 2003, the House wants to boost spending back to prior levels and above, calling for $195 million annually over the next two years and $210 million for each of the subsequent three years. With that 50-cent on the dollar requirement, that's more than $2 billion in drug-war status quo reinforcement, on top of the first five year's total that also approached nearly $2 billion.
Alarmingly, the bill's original language would have allowed ONDCP to use the ads to defeat initiatives or even congressional candidates that opposed White House policies. Democrats succeeded in getting this language excised in the House, so -- pending Senate action and then reconciliation of any House/Senate differences -- the ads theoretically won't be permitted to delve into "express advocacy." And, following the principle dating to the 1920s that viewers have the right to know by whom they're being persuaded, language requiring the government to identify itself as the sponsor of the ads has to be cemented into the reauthorization. That's also pending.
Yet all the old dodges regarding the deliberately misinterpreted terms: election, propaganda and partisan will still apply. And Congress still needs to write final language defining ONDCP's statutory responsibility to interfere -- or not -- in state elections. Will that mandate still trump all other legislation governing officials' electioneering?
After all, prior authorization bills sported the fig leaf of a prohibition on the ONDCP ads being tied to elections or legislation. Never mind that Barry McCaffrey, as documents that surfaced in a lawsuit brought by California doctors indicate, initiated the whole taxpayer-funded media campaign in direct response to passage of the first medical-use initiatives in 1996. In a meeting he convened nine days later, McCaffrey, other White House officials, representatives of the DEA, FBI, Justice, HHS, Treasury and private drug warriors discussed the need for taxpayer-funded propaganda to thwart potential initiatives in the other 48 states and perhaps even roll back the two that had passed. And, by lightning speed by Washington's standards, the drug czar's ad campaign was born.
Now the Senate is pondering reauthorizing both the media campaign and ONDCP itself with few strictures on overt politicking. So the czar and his entourage can continue traipsing the country at will swaying the votes of those paying for his trip, the way paved by another $2 billion in total ad time and space trumpeting -- not the status quo -- but actually an ever-harsher war on drugs. As I'll discuss elsewhere.
That fig leaf, recall, didn't prevent the huge 2002 pre-election spike in TV advertising equating pot use with terrorism. It didn't stop ONDCP deputy director Mary Ann Solberg from discussing those very ads at an anti-initiative strategy session, her listeners serious folks -- many with badges and guns -- with no time for non-utilitarian, theoretical discourse. Nor did any other gossamer prohibitions prevent the drug czar from making his first anti-initiative campaign swing to Nevada a couple of weeks ago where he blasted the marijuana initiative likely to grace Nevada's ballot this November as "foolhardy," "silly" and "irresponsible."
Daniel Forbes has testified before both the U.S. Senate and the House about his work.
Gosh -- a New York police sergeant strode past my bench by the Hellgate railroad bridge on a sunny Saturday afternoon in Queens, New York's entirely safe Astoria Park. Soon, a high-octane, NYPD lieutenant or captain followed in the sergeant's footsteps near the East River.
Over on the sidewalk where the park fronts a street, 12 cops were chewing the fat in knots of two or three, a stone's throw apart. Hats in hand, they stared randomly, making no attempt to look busy. Their collar brass indicated they were from two neighboring precincts. In reply to my offhand question, the first two groups voiced tripe about just being assembled en masse to protect the good citizens of Queens. Then two cops standing alone mid-block spilled the beans.
They were there on Operation Atlas overtime, the NYPD's anti-terrorism program. They'd stood by the foot of the Triboro Bridge for a while, they said, then on a largely deserted street by a huge energy facility. I said something about hanging in the park being pretty easy OT, and one laughed, "Yeah, the worst that could happen is a bird could shit on my head."
Realizing this a bit intemperate to a taxpayer, the other stopped laughing to add helpfully that in training they had learned of some mosques in this part of Queens that sent money to nefarious types overseas. And anyway, he noted, Operation Atlas was "federal money."
Nine more cops from a different Queens precinct hung out on the sidewalk down by the river. If anyone tried to shoot a shoulder-fired missile at one of the two bridges, they'd get nabbed for sure. Confirming it as Atlas OT, one of these cops also thought to volunteer that it was "federal money." Perhaps a half-dozen other cops, including a couple of sergeants and their white-shirted boss, wandered around the park. Eventually, near shift's end, the more than two dozen of them piled into vans and headed off.
H. T. Delancey, from the 47th Precinct in the Bronx, is a scant eight paydays from retirement. Since the war in Iraq began in March, he has been protecting New York from terrorism. Like most Bronx cops, he typically does two Operation Atlas overtime shifts each month, going out with seven other officers and a sergeant from his precinct, perhaps meeting up with other Bronx cops as well. Depending on travel time, Delancey said, they get an itinerary of five or six locations per shift, staying about an hour at each and responding to radio jobs while in transit and on post -- just like any other duty. He's done some bridges and Metro North train stations, Yankee Stadium and a Bronx shopping district.
When asked for the greatest terror-related threat he has faced in his approximately 10 Atlas tours, he tells of a middle-aged woman -- "probably an out-of-towner" -- who asked if she could park her carryall bag with him for a while. He had to sternly refuse.
OT is time-and-a-half pay, and it adds up quickly. Douglas Offerman, a senior research associate at the private Citizens Budget Commission, calculates that each non-rookie policeman earns $399 in pay and benefits for one Atlas shift. Sergeants and above, of course, are paid more. All told, the some 27 cops I saw in that Queens park cost the city the tidy sum of approximately $11,000. One source in city budget circles calculates current Atlas expenditures at some $375,000 per day or $2.6 million per week. That's down from the widely reported peak of $5 million a week back before President Bush declared major hostilities "over" in Iraq.
Despite the two cops' reassuring fiscal comments, it's not federal money. Federal money has been promised the city, and some has actually arrived, but it goes to general city coffers. Nothing at present is earmarked specifically for Operation Atlas.
Police Commissioner Raymond Kelly told me that Atlas has cost the city more than $31 million since the war began in March. For fiscal year 2004 (which began July 1, 2003), that figure "could be well over $100 million."
Kelly noted that the city "has been targeted five times in the last decade." Regarding Atlas, he said, "We're providing disruptive reconnaissance. No one else is doing what [the NYPD] does -- not the federal authorities, not the military. We're at the top of the target list" So it's expensive, but we see no alternative."
As ever, it comes down to the proper allocation of resources. Atlas' anticipated $100 million in OT during the current fiscal year must come from somewhere. There will be cutbacks to both major drug investigations and misdemeanor "quality of life" arrests, as well as a successful program to flood high-crime areas with rookie cops and their mentors. Meanwhile, every day that passes without incident makes New Yorkers wonder about the worth of dozens of cops congregating in areas that seem perfectly safe.
Referring to a chic shopping area, one cop who has pulled Atlas duty all over Manhattan said, "It can freak people out when 40 or 50 cops show up down in Soho where [everyone's] used to doing their own thing."
Sounds like a typical Atlas operation, at least according to a sergeant from the Midtown South precinct. In one shift, he said, up to 50 cops -- a lieutenant or captain and maybe five sergeants with eight uniforms each -- will hit several high-profile spots around Manhattan, from "obvious" potential targets such as Penn Station and Grand Central to less obvious ones like the Daily News offices. He added that detectives do their own thing with Atlas, as do the specialized Emergency Service Units.
Meanwhile, housing cops conduct quotidian tours of radio jobs and scattering dealers while on Atlas OT. One cop, up in the Bronx on 149th St. by Lincoln Medical and Mental Health Center, made it quite clear that his Atlas OT was in Bronx housing projects. Down on Manhattan's Lower East Side, another said his Atlas team of eight patrolled their regular projects. In Long Island City, Queens, a housing cop interrupted talk of bridges and tunnels by saying, "No, you see, we're housing cops. We focus on the projects."
And so they do. On the Atlas clock.
When asked about this, Kelly said, "I have no problem with that. We want a police presence there."
He spoke of "population centers" and "higher levels of comfort" in various communities, adding that Atlas money has funded patrols in many of New York's "Jewish communities."
Peter Vallone, Jr., chair of the City Council Public Safety Committee, corroborated the current Atlas expenditures at between $2 to $3 million per week. He was unaware that housing cops were pursuing their regular duties under Atlas. When asked about this allocation, he suggested that "possibly they're being paid that Operation Atlas overtime because other members of the force are being taken away to do anti-terror patrols."
As for deploying cops to their regular posts, Robert J. Louden, a former NYPD chief hostage negotiator and current professor at John Jay College of Criminal Justice, theorized that putting cops at their regular post for a sixth day provides "an extra cadre on a particular day, if there's a major mobilization or something at the U.N." There's a ready reserve for street work, and they're not stripping personnel from the precincts."
"If it hits the fan," he said, "there's a ready mobilization force."
The rash of bank robberies plaguing New York this year has also attracted Atlas' attention. One cop from the 7th precinct said he spent some Atlas time guarding Chase and Citibank, and his partner said he spent one whole day outside a Washington Mutual branch. The cop who'd gone to Soho had also staked out banks, as had one from the 10th precinct who said he's part of a detail that "floods the area" around one or another bank.
According to Police Commissioner Kelly, "It's important to keep crime down in New York to keep it viable."
On some days, cars might be parked in front of a hotel, other days in front of a bank, he said.
"We're trying to be unpredictable," said Kelly, who added that the specialized, heavily armed Hercules team doesn't even know where they're headed at the start of a shift.
In the housing projects, up at Yankee Stadium or the Empire State Building -- it's very possible that the cop you see is on Atlas time. One local news broadcast even claimed that Atlas cops were writing traffic tickets day after day.
"That's not the goal," Kelly stated, and he offered that perhaps an overzealous supervisor had directed that effort.
Peter Roman, a security expert at the Henry L. Stimson Center, thinks there's a calculated element of surprise. Echoing Kelly's declaration that terrorists have been arrested here and abroad with photos of New York City locations, Roman said, "Captives have indicated that they're casing locations. So even if there's an element of 'for show,' that sort of unpredictability can help."
Even stationing police at the bridge and tunnel entrances serves a purpose. According to Kelly, they can be utilized at a moment's notice to isolate the bridge. They can prevent someone from escaping Manhattan or stop a particular vehicle, or even respond to something a camera or other sensor might pick up.
"They're doing a lot more than hanging out," he said.
Indeed, according to press reports in June, Iyman Faris, the potential al Qaeda terrorist now on federal ice, told his terror bosses that security at the Brooklyn Bridge was too hot to permit terrorists to attempt to sever its cables.
Overtime has long been a way to reward public-sector workers. According to a December 2002 report on the NYPD's finances by Douglas Offerman of the Citizens Budget Commission: "During the late 1990s, high overtime spending represented a tacit pay raise for uniformed officers."
In fact, the CBC notes, in FY2001, the average cop got nearly $8000 in overtime pay, due, in part, to the city's attempt to meet new challenges with fewer cops. Offerman cites a total uniformed force estimate for the end of June of 36,878-down from FY2000's peak of 40,285.
After hovering roughly around $130 million during the early 1990s, the CBC reports that NYPD overtime spending jumped to $160 million in 1998; $250 million in 2000; and $345 million in FY2001, which ended the June prior to the World Trade Center attacks. In testimony before the City Council in May, Kelly pegged FY2003 overtime at $258 million-or some $77 million over budget. Referring to routine police work, the CBC warns that "overtime spending" raises the unit cost of services [thus] wasting funds."
James Jay Carafano, a Heritage Foundation senior fellow, believes that overtime should only be used for regular duty to cover for officers who are in counter-terrorism training. Regular OT is a slippery slope, Carafano said, because subsidizing ongoing operations leads to improper staffing levels. It buys some hours of coverage, but doesn't build anything, unlike, for example, training officers in hazardous materials. "You're not buying capacity over the long-term," he concluded.
Fiscal year 2003, which just ended, saw $258 million in OT costs -- way over budget. In May, Kelly told the city council that the OT budget for the current year is $189 million; of that, something north of $100 million will be Atlas.
The cuts won't be bloodless. For starters, $56 million of overtime enforcement will be eliminated. The 'quality of life' street busts effort will be suspended indefinitely, and the Narcotics Initiative and Operation Impact will be reduced to straight-time only. According to the mayor's office, Impact -- which paired rookies with senior cops in high crime areas -- led to a 47 percent drop in homicides, 43 percent fewer robberies, and a 31 percent drop in grand larcenies in those spots.
Asked about these fiscal casualties, Kelly said there have been cuts in "programmatic" rather than "unplanned" OT. Regarding drug enforcement, he said the cuts affect things like longer-term cases and the undercover renting of cars and hotel rooms. Street-level enforcement will remain at the same level.
In effect, the street thugs will still get popped, while larger-scale operations will be curtailed.
"The cuts have to come from someplace," said Kelly.
As for Washington picking up the tab, Judy Chesser, the city's chief DC lobbyist, said that Sept. 11 money aside, some ongoing homeland security funds are contained in current legislation. There have been several allocations to the city since March -- totaling some $160 million -- but the checks are largely still in the mail.
Chesser added that Atlas is a city program to be reimbursed by the feds only when the Department of Homeland Security issues a nationwide orange alert. New York City itself has been citrus since the silly color scheme was introduced, while the nation has remained mostly on yellow, or "elevated" alert.
When presented with Chesser's figure of $160 million, Kelly said it was fine, but not enough, noting that, "We took a hit for all Americans."
Is it worth it? The experts certainly think so. But how do you prove that something didn't happen because large, visible groups of cops show up unexpectedly around the city?
As one cop said, the goal is to make the department look larger than it actually is. In an attempt to forestall that next atrocity, the city will have cops at a bridge, housing project and park near you.
This is an edited version of an article that originally appeared in New York Press.
Drug reformers of varying stripes embrace different goals, from the widely supported decriminalization of medical marijuana to relieve the pain of cancer, wasting from AIDS, or the spasticity of multiple sclerosis to the legalization of recreational pot, the distribution of clean needles to addicts and the mandating of treatment rather than incarceration for low-level drug offenders.
Though there's been scattered progress on these goals around the country in recent years, overall, especially on the federal level, interdiction and incarceration remain the goal if not always the reality. Handcuffed by his foolish, glib remark about not inhaling, Bill Clinton never dared veer from the prohibitionist mindset. While George W. Bush gives lip service to treatment, on his watch Drug Enforcement Administration (DEA) agents point rifles at Suzanne Pfeil, a paraplegic in California. When she was unable to rise at the agents' command, they handcuffed her to her bed while proceeding to destroy the medicine growing in a garden outside. This is repression with a decidedly uncompassionate face.
As if absorbing the Republican ascendancy -- completed with the GOP's capture of the Senate -- wasn't challenge enough, drug reformers were also staggered by the failure of several state ballot initiatives -- this after years of overwhelming electoral success. State and federal officials, including cabinet officers and governors, joined forces with a nip-'em-in-the-bud judiciary to help defeat the initiatives. Well-heeled activists tried but failed to move beyond medical marijuana to the riskier arenas of treatment rather than incarceration for low-level offenders and even (in Nevada) outright legalization of the demon weed.
As drug reformers offered each other salt for their wounds, curiously enough, a sort of halting progress has recently emerged. Each step forward was achieved only when reformers managed to capture a fickle media's intermittent attention.
The Guru Of Ganja
In the California case against 'Guru of Ganja' Ed Rosenthal, jurors raised a post-trial ruckus over the judge's rulings that prevented his defense from telling them that Rosenthal was no mere profiteer, but a cultivator of medicine deputized by the City of Oakland to supply its patients. The press piled on the half-baked verdict and, rather than the six and a half years requested by prosecutors, Rosenthal was sentenced to a single day in jail. But he remains a felon stripped of the right to vote, and the feds are appealing the non-sentence.
House Republicans tried to slip in legislation re-authorizing the White House Office of National Drug Control Policy (ONDCP) provisions that would have allowed Drug Czar John P. Walters to use the five-year, $1.2 billion ad campaign as he wished, to defeat future ballot measures or even individual candidates the White House opposed. When a sharp-eyed lobbyist at the Drug Policy Alliance spotted the hidden provisions, reformers raised holy heck, and these particular abuses were blocked.
That doesn't change the fact that -- since by statute ONDCP buys all its ads at half-price -- there'll be something approaching $400 million in social marketing flooding the media annually over the next five years. Given that the entire beer industry spends approximately $1 billion a year on overall marketing, think of the sheer heft of nearly 40 percent of the beer effort. No wonder the Democrats on that House committee revolted at the prospect of Walters running free with that kind of money.
And the Bush administration has kept the heat on by asking the Supreme Court to overturn an appeals court ruling that, while forbidding the writing of prescriptions, did allow doctors to recommend medical marijuana. The Clinton administration lost the case on free speech grounds, and only now is the Bush Department of Justice trying to appeal. According to The San Francisco Chronicle, doctors could still have such discussions with patients, provided they indicated pot is illegal and that "federal authorities consider it dangerous and medically useless, and that the doctor is not recommending it." A very curious discussion indeed. Should the administration prevail before the Supremes, that would throw out the practical underpinnings of current medical marijuana use in states throughout the West and Maine.
Additionally, the Bush nominee to run the DEA, Karen Tandy, indicated to the Senate Judiciary Committee, which has just sent her nomination to the full Senate, that her DEA will enforce the federal laws against medical marijuana.
Doing Time In Texas (And New York)
In Texas, after years of reformers' rabble-rousing, the last 12 defendants from the panhandle town of Tulia were released on bond, as the thin fabrications of their undercover accuser fell apart under the hammering of some dedicated lawyers, bolstered by the national media's attention. But the reprieve of the last of these nearly 50 poor, black defendants -- these supposed drug kingpins who lived in shacks -- is still subject to the delicate ministrations of Texas judicial review.
In New York, after decades of pressure, the infamous Rockefeller drug laws seemed ripe for reform. They're the mandatory minimum sentencing guidelines that imprison for decades the likes of girlfriends of low-level dealers for being in the wrong place at the wrong time. Joining the long-term, "Drop the Rock" crusaders, this year rap impresario Russell Simmons lent his salutary attention to the reform effort. Yet despite the Simmons' added hoopla, legislators left town providing no relief to those wasting the only life they've got behind bars.
Now New York Gov. George Pataki has floated a new proposal that does little to ameliorate the Rockefeller laws' worst excesses. The Pataki plan would not return judicial discretion from prosecutors to judges, nor add any resources for treatment rather than incarceration. In short, thousands of offenders would still wind up behind bars, some for even longer periods of time than before. As to the 19,000 offenders currently incarcerated, according to the Drug Policy Alliance "only a few hundred" would have their sentences reduced.
New York aside, numerous states around the country, including Kansas, Michigan and even Texas, are considering or have decreased sentencing for low-level, non-violent offenders -- typically hapless addicts dealing small weight on the street to keep their own dope demons at bay. Sanity beckons as state budget gaps widen.
In Maryland, years of lobbying by the Marijuana Policy Project paid off with a reduction in penalties for medical marijuana users. Though it's not the feds-be-gone state legalization that reformers aim for, the sentencing reduction to a $100 fine is particularly significant since it was signed into law by a Republican governor, Robert L. Ehrlich Jr., despite overt pressure from the White House.
Amidst these muted triumphs, as ever, there's the two steps back part of the equation. Headlines have screamed about the evolving decriminalization of small amounts of marijuana in Canada. Yet the flapdoodle ignores the fact that -- should the legislation be enacted later this year -- penalties for growing or distributing pot have been vastly increased. Even growing a single plant could fetch a big fine and up to a year in jail. While seemingly appealing to its electorate, the Canadian government is throwing a mighty big bone to the U.S. drug warriors who've threatened disrupting the billion-dollar-a-day cross-border trade.
And the tickets that Canadian police will now be encouraged to write for a modest (about half an ounce) amount of pot may find their way into an incriminating database that might well bar offenders from working in many professions, serving in the Canadian military or ever entering the United States.
Still, congenital optimist Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws Foundation, likes to think, "The Canadians bluffed the U.S. into backing off: They won't enforce those laws, and a law that's not enforced loses effect." While Toronto won't turn into Amsterdam anytime soon, real change is occuring, he said. "That backs the U.S. government to the wall since Canadians are so similar to Americans," St. Pierre figures.
Drug hawk Sen. Joe Biden (D-Del.) tied his anti-rave legislation -- which had been blocked last year -- to the tail of a child abuse alert law, and it sailed right through. Within a month, a cowboy DEA agent in, appropriately enough, Billings, Montana, threatened a fraternal lodge with a potential $250,000 fine should anyone at a medical marijuana 'battle of the bands' fund-raiser be caught smoking a joint. After a (small) outcry from the press, the DEA's egg-on-face, backpedaling statements that the agent was just warning the lodge about potential overcrowding and the like (neat that the DEA now provides guidance on fire codes) doesn't rectify the fact that a political benefit was canceled.
Virginia passed a law in May allowing for routine drug-testing of the state's students; the state attorney general will encourage the testing. He apparently doesn't care that federally financed research conducted by the University of Michigan found that drug use occurs in schools that test as often as in schools that don't.
In Columbia, Missouri this April, a city ordinance backed by the local NORML chapter would have permitted use of medical marijuana and lessened possession fines for up to an ounce of pot. But the ordinance was soundly defeated following a campaign appearance by a White House official: Scott Burns, the ONDCP's deputy director for state and local affairs, happened to find himself in Columbia speaking out against the initiative.
Burns' advocacy was cut from the same cloth as a letter he'd previously sent to local prosecutors nationwide urging them to beef up pot enforcement, since "no drug matches the threat posed by marijuana." Writing from his perch within the "Executive Office of the President," Burns urged that all first-time marijuana offenders, including the kid caught in a parking lot with a joint, should be coerced into treatment. The administration harps on the number of adolescents getting treatment for pot, but somehow never mentions that some two-thirds of them are in treatment involuntarily.
Even with the current restrictions in place, a recent ONDCP anti-drug TV ad continued the refrain that drug use leads to murder, corruption, torture and terrorism. But in a new twist -- in a message designed to boost acceptance for current budgets and policies as well as defeat any future initiatives -- the ad posits that any lessening of penalties will inexorably lead to crack stands at the local laundromat and heroin at the mini-mart, a message that's a long way from anything about keeping kids off drugs.
All this in a country where, at nearly half-a-million, the number of drug prisoners has increased some tenfold over the past two decades; where drug prices have gone down and purity has gone up; where middle class kids scared of needles find plenty of high-potency heroin to snort or smoke -- and still get addicted. And yet the feds busy themselves with nonsense about pot that's supposedly 30 times more potent than what the hippies smoked back in the 1960s.
In February, according to The New York Times, the Office of Management and Budget stated that the poorly managed DEA "is unable to demonstrate progress in reducing the availability of illegal drugs in the United States." The OMB declared that the DEA has no strategic planning, no accountability for managers and inadequate financial controls.
No matter. The for-profit incarceration and treatment industries are thriving. According to Eric Sterling, president of the Criminal Justice Policy Foundation, the for-profit treatment sector has increased in size tenfold over the last two decades. But the drug war goes deeper than mere profit, as it has since Richard Nixon launched its modern incarnation as a calculated appeal to conservative whites. Notes Sterling, "The war on drugs is now the major legal mechanism for maintaining white privilege and stigmatizing people of color, especially blacks. Its effects have replaced legal segregation as the legal and social mechanism to maintain white privilege."
To the degree democracy reigns in America, the federal strategy of demonizing drugs, particularly marijuana, makes sense. Yet recent polling indicates that the drug warriors are plugging holes in the dike of public opinion while water slops over the top. Nearly 80 percent of the country consistently favors medical marijuana. Even subtracting medicine from the equation the feds are still fighting uphill. According to a recent Zogby poll, 41 percent of Americans think the government should treat marijuana like alcohol; as the poll put it, the government "should regulate it, control it, tax it and only make it illegal for children." This is a significant rise from a 2001 Gallup poll that found 34 percent in favor of legalization. Said Ethan Nadelmann, executive director of the Drug Policy Alliance, "No other criminal law on the books in this country is enforced so vigorously, yet backed by such a small majority of Americans."
Thanks to Mayor Bloomberg, protesters in New York will be corralled together in tightly controlled police pens. But some plan to break out. With Monday's ruling against an orderly, nonviolent protest march anywhere on the streets of Manhattan this Saturday, U.S. District Judge Barbara S. Jones has steered the City of New York toward chaos.
Though event organizer United for Peace and Justice has stated its willingness to follow any route the New York Police Department designates, the only legal option at hand is for antiwar demonstrators to be massed in tightly controlled police pens stretching far up First Avenue, north of the United Nations. The current thin strip of a rally is expected to stretch up to some 25 blocks from its starting point north of the UN -- effectively makes any spectacular televised scenes of a vast, anti-war crowd gathered in Central Park impossible. (Before they decided they would accept any route for the march, UJFP wanted to march past the UN, then west, then up through Times Square and along Seventh Avenue to Central Park.)
It is expected that many will seek to avoid the pens and hope to sow confusion all around Manhattan. The online discussion of such tactics, honed at past free-form protests, suggest using cell phones to coordinate splinter actions. One contributor to the NYC Indymedia Center Web site called for: "a tactical plan for wide-scale CD [civil disobedience] throughout Manhattan. This could include surprise "people's inspections" of various corporate and governmental sites, traffic lockdowns, a mass die-in, street theater, prayer vigils, snowball fights, you name it. It's time to be both bold and creative. Let's transform Feb. 15 into a carnival of peace and resistance throughout Manhattan all afternoon. Save the protest pit for last call."
This is among the more temperate postings. Another stated mildly, "We can't settle for tired megaphone speakers inside a protest pen encircled by police--we gotta bust out into the streets."
It is unclear how many of the currently 29 UFPJ-sanctioned "feeder" marches -- by groups such as the "Queer Anti-War Contingent," the "Interfaith Ministers for Peace," not to mention the "Anarchist Red & Black Contingent" and the "Anti-Capitalist Bloc" -- will disperse and go off on their own.
As the national coordinator for the Independent Progressive Politics Network, which normally focuses on alternatives to the two major parties, Ted Glick represents such groups as the National Lawyers Guild and the Green Party. An organizer of Saturday's demonstration, Glick does not advocate illegally taking it to the streets, saying in an interview, "I doubt there will be a breach of police barricades -- it will be absolutely peaceful and nonviolent. We're not looking for a confrontation, but to manifest the views of millions of people."
Glick added that the city is seeking to discourage attendance by forbidding a march. "But to the extent they don't cooperate with those of us with a history of organizing peaceful demonstrations, then they put a lot of stress on what can happen," he said.
Brian Dominick, a veteran of many demonstrations, wondered about an exit strategy for both citizens and the cops. Based on his experience, he expects the marchers to prevail, "Unless the police want to keep us penned up there for hours on end, it's going to be chaos. In reality, there's going to be a march. People will be at a rally pumped up for it, and that's the natural inclination."
The ruling has seemingly transformed a largely self-policing, follow-your-nose, chant-and-sing march into an unpredictable and potentially chaotic cat-and-mouse struggle. Rampant hooliganism will besmirch the peace movement, true, but the ban itself is a black-eye for civil liberties in a country touting itself as a democratic example to the world.
Instead of effective, mass dissent, the city now invites struggle on both ends of a nightstick. Representing the UFJP, the New York Civil Liberties Union noted in its federal suit, "For decades people in New York City have paraded and marched through the public streets as a means of expressing and demonstrating their views in a wide variety of topics .... Marching in the streets is a time-honored tradition in our country that lies at the core of the First Amendment."
According to the NYCLU complaint, when the NYPD first rejected a march, "the reason given for the denial was congestion and related concerns arising out of a march." Subsequently, according to the NYCLU, after flirting with the idea of allowing a march, the city refused. "The only reason given for the decision was a concern about the NYPD resources required to police a march."
Last week, city lawyer Jeffrey Friedlander told the Associated Press, "We will not allow any event to jeopardize public safety or prevent people from going about their business." NYCLU head Donna Lieberman said, "A rally has a different tenor than a march. It's important to go throughout the city to express your views to the people of New York in places that are vital to that message." People trapped in holding pens have a limited ability to communicate with each other, to grasp any sense of the totality of the event.
Said Glick, "People want to see who's there. You can't do that if everyone is jammed, you can't see the vets and the women's groups and labor. Marching manifests who we are and shows the breadth of the movement. It might take a long time for everyone to march. But that allows the size of it to be seen - as the hours pass."
In her decision, Judge Jones defended the city's refusal "because of safety and security considerations."After Monday's ruling, the city's Friedlander stated that both the judge and the NYPD concurred that any march "would have put the public's safety at risk."
But both UFJP co-chairwoman Leslie Cagan and NYCLU's Lieberman stated at a press conference Monday that city officials testified before Jones that they don't anticipate any violence or terror attacks. Lieberman said, "The city argued it doesn't have the time to plan or the manpower, and it invoked 9/11 in terms of fear of attack. But it said it had no fear from the demonstrators."
She added that the city issued a permit for a peace demonstration less than a month after 9/11, when fears and emotions were at an even higher pitch than now. The city agreed once it was pointed out that the demonstration coincided with the Columbus Day parade. Apparently next month's St. Patrick's Day parade doesn't provide the same rationale.
The judge leaned heavily on the testimony of NYPD Assistant Chief Michael D. Esposito. Referring to the thousands of protesters, he said, "If they at one time did something or if somebody in the group had a device, I don't know how we would be able to stop it with that amount of people or see anything." But how will police be able to stop a device from people packed in pens for 25 blocks better than they might from the same group of people moving their feet?
Judge Jones however claimed in her ruling, "the police can more effectively monitor crowds for terror threats at stationary rallies than they can crowds moving in a procession ..." But she offered no support for her assertion that is key to the whole dispute.
During an anti-war protest of similar size in Washington in January, very few cops monitored the peaceful crowd. At the staging area on the National Mall, with tens of thousands of protesters, there were a couple of dozen U.S. Park Police. Ted Glick, who marched in April's big D.C. anti-war protest, said, "There were virtually no police, and there were no problems. The disparity with the seat of government and what's happening in New York couldn't be more stark -- and it's essentially the same people."
The NYCLU appealed Jones's ruling Wednesday morning before the U.S. Court of Appeals for the Second Circuit. In an oral decision Wednesday afternoon, Judge Jose A. Cabranes upheld the city's ban, saying his ruling applied to Saturday's demonstration only.
Whatever happens in New York, organizers believe that the important goal is to protest the war -- using whatever means available, be it in a police pen or outside it.
Daniel Forbes (firstname.lastname@example.org) testified before both the Senate and the House regarding the Clinton administration's secret payments to the TV networks rewarding anti-drug sitcoms and dramas. Work archived at www.mapinc.org.
No, the White House anti-drug ads don't work, the latest, stealth report from the federal government indicates. Commissioned by the Office of National Drug Control Policy and conducted under the auspices of the National Institute on Drug Abuse, it states: "There is no evidence yet consistent with a desirable effect of the [Media] Campaign on youth." Though this semi-annual report builds on the poor results documented previously, the taxpayer-funded ads - despite their demonstrated inability to keep kids from drugs - do serve any number of purposes. One new use for the campaign made its debut during the year's high-profile advertising showcase, Sunday's Super Bowl.
As Joseph R. Giganti, Director of Media and Government Relations at the American Life League stated after reviewing the new anti-marijuana ad - entitled "Pregnancy" - on ONDCP's website, "Without question, there is a very strong but subtle pro-life statement presented in this commercial."
Saying that "abortion on demand" thrives on the notion that actions lack consequences, Giganti added, "This ad reinforces the consequences." Still commenting on the ad, he said, you can't "just slice and dice a baby and everything'll be good."
As to the ad's outcome of a young teenager having her baby, Mary Jane Gallagher, Chief Operating Officer of NARAL Pro-Choice America, said, "They coded the message to make it seem this was this woman's only option." According to Gallagher, "Such speaking down to viewers - that keeping the child is the only alternative - I'm not used to that from the government in a democracy."
Alerted to the ad, Nellie Gray, President of the March for Life Fund and organizer of the annual anti-Roe v. Wade demonstrations in Washington, said: "A government agency properly uses this scene of a pregnant mother's drug abuse and grandparents' youth to help viewers understand that there is no justification for anyone intentionally killing a preborn baby." As to any possible ill effects on the baby from the mother's "drug abuse," Gray added that her group has a "no exceptions, no compromise" policy on abortion.
I've reported on the Clinton White House granting the networks some $22 million in ad time they owed it in exchange for inserting government-approved (and even government scripted), anti-drug plots in TV shows. More than one source worried that if the government got away with that, there'd be scant reason to limit its social engineering to drugs. Someday, some administration gripped by a perceived responsibility to instruct people how to live might soon train its sights on reproductive rights, or so these First Amendment advocates thought. Fearing that anti-abortion themes might conceivably start cropping up in sitcoms and dramas, no one worried they'd be flaunted in the ads themselves.
Well, the Clinton Federal Communications Commission eventually ruled the government couldn't pay for messages embedded in TV shows without alerting viewers to that fact. Such notice robbing those messages of much of both their ability to influence viewers and their appeal to government social marketers, the Bush administration commendably scrapped that part of its anti-drug campaign.
However, it took only about a year of his running the national ad campaign for Bush Drug Czar John Walters to launch his first attack on abortion in the guise (or so said the two anti-abortion activists quoted above) of his increasingly outrageous ads.
The woman holding the pregnancy test strip in the ONDCP Super Bowl ad is certainly young and curvy enough that, in a cute little bit of misdirection, viewers no doubt assumed the test was for her, especially since her daughter is off-camera. But we soon learn the parents of the girl who looks about 14 and got pregnant via the demon weed, are - pay attention now, America - soon to be, "the youngest grandparents in town." Ramming the point home, the ad tells us, "There will be an addition to their family soon." As for the also young, but balding grandfather-to-be, he probably doesn't look nearly as frayed by life as he soon will.
That's because, in the ad's self-contained world, options apparently aren't available to this family. "Youngest grandparents" - that's the only outcome that's indicated. And, as mom embraces her, the ad ends with the young girl's face registering fear and what looks like acquiescence as we're informed: "Smoking marijuana impairs your judgment - it's more harmful than we all thought."
For many, of course, having the baby would indeed be their choice. But - for now, anyway - there are other choices, not that viewers would glean that from a government ad that seeks to model 'correct' behavior. Gallagher, of NARAL Pro-Choice America, asserted that, "The government's message didn't portray the legal options available to this young woman under Roe v. Wade: to keep the child, to put the child up for adoption, or to seek a safe and legal abortion."
Katherine Minarik, Director of Campus Programs for the Feminist Majority Foundation, said that government commercials should try to paint a picture of reality. "And if in that picture you eliminate the concept of reproductive freedom, then you're doing an enormous disservice to not only the health, but the lives of young people."
Saying that her legal team will ponder action regarding the ad's public funding (the total ONDCP Super Bowl ad buy exceeded $4 million), Gallagher said, "We can't let this effort go unchecked - that they take these social policies that run counter to the majority of Americans' views and push them down our throats."
Ken Diem, Chairman of the New York State Right to Life Party, countered that government advertising, "should be promoting abstinence and respect for your body, which involves no drugs and no promiscuity." Saying that the ad meshes well with his party's concerns, Diem said, "The government should promote an abstinence program hand-in-hand with the anti-drug message." In fact, he'd like to see it part of any Bush administration faith-based initiative. As to any criticism of the government's involvement in the abortion issue, Diem said, "Poppycock. The government has been involved with a woman's right to choose since day one. Only when the government stands up to respect the sanctity of life do they cry foul."
Minarik agreed with Gallagher that the ad makes it appear the young woman has but one option. "But teenagers still have choices after an unintended pregnancy. And we as a society can never let them believe they have no choice. This is just another example of a broader policy of eliminating access to needed information on reproductive health," she said.
Everything old is new again. Harry Anslinger, Walters' ideological and official progenitor both, could have warned the ad's father to lock his daughter away from those fiends hopped up on that reefer stuff. This a new century, not Anslinger's 1930s, the young wanton was apparently a willing participant, wacked as she was herself on pot. How else to explain a teenage girl falling prey to a boy's pressure? (Simple decency requires shrinking from the notion of such a young girl's lasciviousness unmediated by marijuana.)
Giganti said the point that sex has its consequences is driven home by the girl's "fearful" expression as the ad ends. There's no "easy solution" to this family's dilemma, he said. "It's realistic that the parents are concerned." He applauded that they're not being "complicit in the murder of their own grandchild." By being "loving, concerned and comforting," the parents are "taking a bad situation and making the best of it."
Gallagher, however, felt the ad was wildly unrealistic: "It indicates this will be easy for the family to tackle. It's absurd."
Giganti doubted that Walters intentionally sat down with his creative team and in the context of a hard-hitting ad for teens, reached for a message on abortion. Acknowledging the ads' "subtext," Giganti said, "I don't know if it's intentional. I believe not." He added, "I don't think it was set up to reflect a pro-life view. Though in a perfect world that might be what happens."
The ad was created gratis by McCann-Erickson Worldwide Advertising and filtered through the Partnership for a Drug-Free America for subsequent approval and purchase of airtime by ONDCP. Both the partnership (which, to its credit, has refused to get involved with the White House drugs = terrorism ads) and ONDCP declined comment. McCann-Erickson refused to make its creative team available for an interview; spokeswoman Susan Irwin would say only that McCann-Erickson was "responsible for the idea." Irwin elaborated no further, so it would seem, therefore, that the get-pregnant, have-the-child (though you're a child yourself) message originated on Madison Avenue.
Since McCann-Erickson won't say that Smith or Jones on its staff cooked up the idea -- and what prompted their thinking -- what remains clear is that the White House approved the ad. And it paid for its inclusion in the year's most-watched show amidst all the other high-profile ads that debuted on Sunday.
This came less than a week after President Bush addressed by phone hookup a massive anti-choice protest in Washington seeking to overturn Roe v. Wade. Voicing his hope to ban a type of late-term abortion he termed "partial-birth" abortion, Bush spoke on the 30th Anniversary of the Supreme Court decision. He told the crowd that a "self-evident truth calls us to value and to protect the lives of innocent children waiting to be born." Not wanting to risk a photograph of himself at the rally for later use by pro-choice advocates (and yes, he was out of town, but the anniversary occurs on the same date every year), Bush continued Ronald Reagan's weaselly tradition of addressing the annual protest only by telephone.
Lest you un-American eggheads who don't watch television and don't let your kids watch consider yourselves immune to the ads, consider this from an ONDCP press release: "[T]he Campaign is designed to reach Americans of diverse backgrounds wherever they live, learn, work, play and practice their faith."
"Play" I knew about, having seen a White House ad emblazoned on the backboard at my local glass-strewn, schoolyard basketball court, the bent, naked rims without a net. (Never mind the social science proving that spending on decent athletic facilities, along with the after-school programs to use them, go further than any TV ads to keep kids from abusing drugs.) But I haven't detected the White House's heavy hand in my quirky little church yet. Given the administration's evident willingness to breach the church-state divide, perhaps it's only a matter of time.
Daniel Forbes' report on state and federal malfeasance to defeat treatment-not-prison ballot initiatives was published by the Institute for Policy Studies. His disclosure of the Clinton Administration's secret multimillion-dollar rewards to the networks led to his testimony before both the Senate and the House. Forbes' drug-policy work is archived at: www.mapinc.org.
On drug policy, the voting public has proven ready to lead spaniel-like politicians by the nose, voting for one liberalization measure after another. But government, state and local officials have begun a crusade to scuttle reform initiatives around the nation.
Three wealthy drug reform proponents have backed a string of successful state ballot initiatives across the nation. Focusing initially on medical marijuana measures out west, billionaires George Soros and Peter Lewis and multi-millionaire John Sperling have won 12 of 13 ballot measures since 1996. Their handiwork also includes Proposition 36, which mandates treatment rather than prison for low-level drug offenders and was passed overwhelmingly in California in 2000. Other activists have similarly outflanked the officials who lag behind public opinion, and the reform movement as a whole has won 17 of 19 ballot measures -- much to the chagrin of drug warriors.
Admitting to considerable surprise in 1996, Clinton drug czar Barry McCaffrey drew a line in the sand, in part by initiating the White House anti-drug media campaign. But all levels of government, from local district attorneys to governors and the new federal drug czar John P. Walters, have refined their counterattack on the drug reform movement.
The National Counter-Attack on Drug Reform
This year, the California-based Campaign for New Drug Policies, the main agency of the wealthy trio's reform ambitions, consciously set its sights on Republican-dominated states east of the Mississippi. It sought to put to vote Prop. 36-style treatment amendments in Florida, Ohio and Michigan. A cautious CNDP, which typically requires favorable poll ratings exceeding 60 percent before committing its resources to a reform inititative, proceeded with some confidence. But it has since run into a Republican-led buzzsaw (not that Democrats necessarily embrace reform more warmly), and only the Ohio measure ran the full gauntlet to make it to the ballot.
In Ohio, the measure is becoming a victim of outrageous ballot language promulgated by a Republican-led elections board. Its popularity is sinking badly in the polls, currently losing by 20 points. The loaded ballot language is part of the orchestrated, improper and possibly illegal months-long anti-initiative campaign being orchestrated by Ohio Governor Bob Taft. The Ohio effort has been so cutthroat and effective, CNDP political director Dave Fratello admitted, "If we lose, it's a road map to show how to beat us in subsequent states like Michigan and Florida."
Elsewhere, federal and state judges have stymied reform, in some cases by simply refusing to issue timely rulings. A Michigan appeals court blatantly let the clock run out on a Detroit medical marijuana measure, deigning to hold a hearing only long after the deadline for printing ballots had passed. In Florida, the state Supreme Court delayed holding a hearing for so long that the CNDP has decided not to gather any more signatures; it has 300,000 valid signatures in the bank should it return to the fray in 2004.
And in Washington, D.C., a medical marijuana effort was shot down when a federal appeals court tossed out a lower court ruling that stated, "There can be no doubt that the Barr Amendment restricts plaintiffs' First Amendment right to engage in political speech." The reference is to the rider -- introduced by Rep. Bob Barr (R-GA) -- now automatically attached to the federal D.C. appropriations bills that prevents Washington from spending a single dollar to enact any reduction of marijuana penalties. Alexei Silverman, an associate with Covington & Burling who worked on the case on behalf of the Marijuana Policy Project, said the appeals court basically avoided the First Amendment issues and agreed with the feds' assertions that the mechanical act of voting is part of the legislative process, not exercising the right to speech. Barr applauded the ruling, "which recognized the right and responsibility of Congress to protect citizens from dangerous, mind-altering narcotics."
Going solo, Peter Lewis has boosted the funding of a dynamic, cheeky upstart, the D.C.-based Marijuana Policy Project, which in years past has pursued reform largely in state legislatures. Now, in its first electoral battle (apart from its support for the disqualified D.C. effort), MPP has spent $1.7 million shooting for the moon in Nevada. It managed to qualify in an audaciously short time a perhaps quixotic effort to legalize the possession of up to three ounces of pot. Even if it passes this year and again in 2004 as Nevada requires, the measure calls for the state to establish legal distribution channels. And, no matter what statements drug czar John Walters may have made in Nevada regarding federal respect for states' rights, the feds aren't going to let that happen. This is the same administration that's been busting medical dispensaries this fall all over California, typically targeting the ones most above-board and publicly strident in asserting their rights.
Meanwhile in Arizona, John Sperling has backed a decriminalization measure, Proposition 203. It states that personal-use possession of marijuana will be punishable by a $250 civil fine. It also eliminates mandatory minimum drug sentencing and requires parole for possession of any drug unless the individual is a danger to the public. And it increases sentences for violent crimes committed under the influence of drugs. Sporting its own bit of distribution audacity, it would sidestep Arizona doctors' timorous refusal to write marijuana prescriptions by directing state police to distribute seized marijuana free of charge to certified patients.
Seeking, it would seem, to sow confusion among voters, Maricopa County attorney Rick Romley -- who touted his candidacy for drug czar following President Bush's selection -- got the curiously numbered Proposition 302 on the ballot. With no real money or much public support, he turned to the legislature to put it on the ballot; the numbering mirroring Sperling's measure may be its greatest asset. If passed, it allows for the option of incarceration rather than 203's mandatory parole for simple possession. And it allows for jailing addicts who fail in treatment. If both measures pass, whichever has more votes goes into effect.
Arizona, Nevada and Ohio, the main remaining battlegrounds, have all been graced by Walters' campaign appearances, who was in Nevada twice. A member of Bush's cabinet, he rails against the initiatives while dismissing criticism about publicly funded federal interference in state elections. What's more, the federal government has worked overtime issuing reports demonizing drugs, particularly marijuana. This September, the White House launched a new, taxpayer-funded ad campaign that maintains smoking pot leads to either the slaughter of innocent bystanders or, in a second ad, mere crippling for life. Though Walters told Congress in May such ads don't keep kids from drugs, they do poison the well for drug reform.
"There's a certain irony in all this that the state and federal governments have learned how to beat back democracy," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws Foundation.
Changing Ballot Language In Ohio
Turning to specifics, though several states vie for the crown of most unabashed electioneering, Ohio trumps all comers. A concerted effort by Governor Taft, the federal government and private activists to defeat the treatment-not jail initiative in Ohio bore only mixed results: until recently, polls favored the measure. But it may be defeated by a single wordy paragraph - the crucial summary at the top of the ballot, all that many voters read - that's promulgated by the Republican-controlled Ohio Ballot Board, led by Secretary of State, Kenneth Blackwell, a Republican.
This ballot summary emphasizes the measure's $247 million seven-year cost, and it discusses the sealing of offenders' records and the 90-day maximum sentences. The state-approved summary doesn't mention the likely overall savings, nor indicate that drug dealers or violent criminals are excluded. In fact, said Fratello, until threatened with a lawsuit, the ballot board wanted to obscure even the fact that the $247 million stretched over seven years. "It's clear they're trying to skew the ballot language," he charged. "There's no talk in the summary of treatment, job training, court monitoring or jail if they fail. They just focus on the dismissal of charges, a prison limit of 90 days and especially the $247 million. That could be the whole ball of wax."
In late August, the official summary then unavailable, the Columbus Dispatch found the proposal favored by 43 percent to 37 percent. Using the summary, in mid-September, the Cleveland Plain Dealer found 55 percent opposed, and only 30 percent in favor. Rather than read a long explanation, the paper asserted that, "Most [voters] are expected to read a one-paragraph preamble, which includes elements that appear to favor the 'no' side." An anti-initiative spokesperson admitted that the ballot language was a main cause of the steep slide in support.
A subsequent Dispatch poll using the summary found 51 percent against, 31 percent in favor. The paper noted, "The specific ballot language and forceful opposition from Gov. Bob Taft and a number of statewide organizations apparently made a big difference with Ohioans." It added that the ballot language "does not detail any potential savings accrued because treatment costs about one-sixth the cost of incarceration." The Ohio CNDP asserts that, even including the cost of treatment ($3,500 a year, rather than prison's $22,000), the measure would save the state $21 million annually. In far-bigger California, according to a study sponsored by the National Conference of State Legislatures, Prop. 36 saves the state $40 million annually.
CNDP's backers spent some $1 million gathering nearly 800,000 signatures to qualify for the Ohio ballot. Given the polling, the three wealthy backers gave serious consideration to cutting their losses by skipping any big, last-minute ad buy, which have been key to CNDP's many successes. But feeling that voters who understood the measure supported it, one source said, "There'll be a solid two weeks' full-court press." This source estimates that would entail $500,000 or more of television ad time pushing the measure.
The ballot summary is perhaps just the last fatal blow of a concerted effort by Taft and his administration to subvert Ohio's electoral process. Details have emerged in the Ohio press as well as in my report published by the Washington think tank, the Institute for Policy Studies. Taft, his wife, his chief of staff, two Ohio 'cabinet' members and numerous other officials conceived and directed an anti-initiative campaign at taxpayer expense. They were aided by Mary Ann Solberg, the nominee for the position of Office of National Drug Control Policy's deputy director, as well as a senior U.S. Senate staffer (who hosted a stategy session in the U.S. Capitol building itself), the drug czars of Florida and Michigan and a senior DEA agent. Betty Sembler, a controversial private treatment maven who is married to the former finance chair of the Republican National Committee, also participated, as did four top executives from the supposedly apolitical Partnership for a Drug-Free America. The PDFA ended up producing no ads for the Taft effort, but documents indicate its overt willingness to help with ads touting Ohio's current policies.
The Taft effort involved hundreds of hours of state-paid staff time, including weekly strategy sessions, some in the governor's residence. State funds paid for out of town trips and overnight lodging, and at one point Ohio officials even proposed diverting U.S. Dept. of Justice crime-fighting grants to fund polling, focus groups and advertising. The documents detailing all these expenses cover only 2001. Since then, terming the initiative "seductive, deceptive and dangerous," Taft sent out on his letterhead a plea for donations ranging up to $25,000 to defeat it. For his part, John Walters took his show to Columbus in mid-October to blast the treatment initiative, saying "It will weaken the tools that the courts have to help get people into treatment." The Toledo Blade quoted him saying it would also "weaken the ability of society to use 'compassionate coercion' to help nonviolent drug offenders."
Walters Takes On Nevada
Walters was relatively restrained in Ohio compared to his pronouncements during two trips to Nevada. In July he warned the state against becoming a "center for drug tourism." And he said the initiative would "feed the criminal organizations that are a dangerous threat to democratic institutions in the Western Hemisphere." During his mid-October visit, employing a bit of mangled syntax almost worthy of his boss, he said, "By stimulating the use of drugs, we make all other institutions of society more difficult to carry out." And he was quoted in the Reno Gazette-Journal as saying, "More crimes are stimulated by people under the influence of drugs, who become more violent, dangerous and paranoid."
Walters recognizes the impropriety of what he's doing. He told the Las Vegas Review-Journal "his office 'would not spend money or dedicate any resources' " to fighting the measure. Does that mean private funds pay his and his security detail's travel expenses? On a trip this week to Chicago, he told The Chicago Tribune that he campaigns against the initiatives only "reluctantly." But after being "contacted repeatedly," by prevention professionals, he agreed to appear. But, he said, "I certainly understand the dangers of federal officials, a White House official, coming to a state and talking about a state ballot issue. We didn't use to do this." With a flair for irony, he added, "There's a kind of reefer madness-madness going on here." Remarkably enough, given the DEA hammer raining down in California, Walters also told the Review-Journal, "People have the right to make their own decisions. I don't believe you'd see federal officials coming into Nevada to enforce possession laws."
But his own ONDCP spokesman, Tom Riley, stated this August that the feds "would not allow the state to tax and sell marijuana. The sale of marijuana is a violation of federal law, and there is nothing that a state referendum can do to change that." Walters might want to coordinate with the DEA before floating his hands-off claims. A DEA spokesman told the Chicago Tribune, "We will respond to this in a way similar to the approach used for the cannabis buyers clubs [in California]. This is still against federal law."
Officials might also want to get on the same page regarding the amount of pot involved. Nevada cops blast the initiative's three ounces as an amount that would produce 250 joints. But still in soft-sell mode, Walters told NPR back in August that the amount is "quite small. Usually, there's no federal enforcement of possession amounts at that level, especially for marijuana." Speaking in Reno, however, Walters also used the '250 joints' estimate.
Similarly, when he visited Tucson and Phoenix on October 9th to voice his opposition to the Arizona measure, joined by both major-party gubernatorial candidates, Walters told a group of elementary students and senior citizens that the Arizona measure is "a stupid, insulting con," according to The Arizona Republic.
Local Nevada law enforcement officials have also been working overtime to oppose legalization. And a highly partisan state board of health hearing in early October featured not one proponent's testimony. Not surprisingly, the board voted unanimously against the measure. At that hearing, the then spokesman for the opposition, Clark County Deputy DA Gary Booker, alleged that George Soros backed drug cartels in South America, and that he had contributed to MPP. According to the Review-Journal, Booker based his accusation on the say-so of Democratic gubernatorial candidate, state senator Joe Neal, who had lifted it from a publication owned by Lyndon LaRouche. Soros has not been linked to drug cartels and has not supported MPP's effort in Nevada.
As to public officials' opposition in general, the initiative's campaign manager Billy Rogers said, "We haven't made a big issue out of it. They can get away with it, so they do it. Part of it is the arrogance of power, but there's not a lot we can do to stop them. An old hand in politics once told me: Figure out what reality is in a campaign and deal with it." Rogers said over the summer he tried to raise questions about the sheriff department's politicking using marijuana obtained from the official evidence vault, but it didn't faze them, and the media wasn't interested. "There's a good old boy network, and they do what they damn well please," he said. Rogers probably won't achieve much more traction with his complaints about the opposition including Las Vegas police department letterhead on a press release or the fact that Booker's replacement as spokesperson is also the police department's spokesperson. (The letterhead didn't appear on a subsequent release.)
Last week, Nevada Attorney General Frankie Sue Del Papa came out against legalization, hypothesizing about potential large-scale civil liabilities if smokers of state-distributed marijuana subsequently got cancer. Rogers blasted the notion, noting that sellers of cigarettes and alcohol incur no liability.
Michigan Loses Out
The anti-initiative effort in Michigan did not achieve the rarefied heights of official state support it enjoys in Ohio, while the campaign has centered on local district attorneys. One highlight was a meeting at Detroit DEA headquarters in late August where White House deputy drug czar Mary Ann Solberg addressed some four-dozen judges, sheriffs, prosecutors, state police, DEA agents, the drug czar of Michigan and private drug policy professionals from Michigan, Ohio, Kentucky and Georgia. According to the formal invitation, printed on DEA/U.S. Dept of Justice letterhead, participants were to: "share their ideas and strategies and possibly combine resouces in combating drug legalization proposals." (Opponents invariably refer to treatment rather than jail initiatives as 'legalization.')
The meeting also intended to "provide presentations on how the DEA can assist state leaders in this battle." Solberg lectured these high-powered individuals on the Bush Administration's new anti-marijuana TV advertising. Judge Brian W. MacKenzie, a Michigan district judge, said Solberg "talked of the federal government's new initiative with regard to marijuana." He said she described it as a new nationwide ad campaign geared to educate the public about marijuana's dangers, and that it was Solberg's main focus. In fact, MacKenzie added, one attendee asked her about the possibility of the new ad campaign targeting or emphasizing Michigan and Ohio, but she replied that wasn't possible.
Detroit's own Rep. John Conyers (D-MI) disseminated the basic details of the DEA's late-August confab following his letter to DEA Director Asa Hutchinson demanding an investigation of "possible misuse of federal funds without proper authorization by Congress and in contravention of existing law. Replying, Hutchinson referred to the DEA "educat[ing] the public about the dangers of drugs." He stated that the meeting was called to evaluate the initiative's impact and to "carefully consider how we should respond."
For her part, Solberg, who advised President Clinton on the disbursement of federal anti-drug funds and has served on the board of the Community Anti-Drug Coalitions of America, launched her opposition to the Michigan and Ohio treatment initiatives long before this August meeting. Upon her July, 2001 nomination to the ONDCP deputy directorship, she received an e-mail from Ohio First Lady Hope Taft requesting assistance. Solberg referred Taft to Michigan's drug czar, Craig Yaldoo, rather than a private individual more suited to run a political campaign. She wrote: "I met with Craig last week, and he is very interested in taking up the fight and appears to be on top of the Soros people and their movements in Michigan. I suggested he form a partnership with you to fight the prop[osition]. Solberg herself worked to form the Michigan anti-initiative Committee To Protect our Kids. James Halushka, an Oakland County Deputy Prosecutor, told me she was the committee's "godmother." He added, "The spark came from Mary Ann - no question." That spark flared months after President Bush publicly nominated her to her post. As to Solberg's current involvement, Halushka said, "She has continued to be of help. She has continued to help with connections to people and data."
Michigan's powerhouse Republican governor, John Engler, did his part, as well. This summer he vetoed $845 million in state revenue-sharing funds headed to local governments. He publicly promised to restore the crucial funding if voters rejected the treatment measure along with two other initiatives he decried as fiscally unsound. The Michigan legislature over-rode his veto, thrashing him with a combined vote of 141 to 2.
As of now, the DEA need host no further meetings on the Michigan initiative. Due to CNDP's lawyers' mind-boggling mistake in misnumbering the petition, it was disqualified.
The Never-ending Campaign
Opponents slam wealthy reform backers for bamboozling the public with slick advertising. True, the rich trio and others can spend a couple of million bucks in a single state. But that pales before the taxpayers' own $150 million and more a year. Take the White House's national ad campaign which is clearly aimed at defeating the various initiatives. In one ad, the protagonist buys some pot. As events inevitably unfold in the ONDCP world view, the ad describes the chain of distribution, ending with: "And this is the family that was lined up by Dan's cartel and shot for getting in the way." Boston University School of Public Health professor William De Jong consulted with a White House contractor on the media campaign's initial design. Interpreting Solberg's remarks, he said, "Their true motivation is being revealed: to influence referenda, though they will claim otherwise." De Jong added, "They're trying to use the campaign to present information that might influence the outcome of voter referenda." Dr. David Duncan, an associate professor of medicine at Brown University, helped design a study of the ads' efficacy for an ONDCP consultant. His interpretation: "It's pretty obvious they are hoping the ads will shade people's opinions on drugs in general, and that that will spill over to their views on the initiatives."
According to AdAge.com, various anti-marijuana ads will occupy $60 million worth of advertising between this September and January, 2003. It's all part of a second five-year media campaign that Congress authorized this year at $762 million despite Walters' admission that it did not actually lower teen drug use. With the media required to sell its time and space to ONDCP on a two-for-one basis, after expenses, there'll be approximately $1.3 billion of anti-drug advertising over the next five years. Half will likely be directed at adult voters, and all of it will tend, however indirectly, to poison the drug-reform well.
As I disclosed on Salon in July, 2000, the initial five-year media campaign was engendered at a meeting Barry McCaffrey convened in Washington nine days after the 1996 passage of the first two medical marijuana initiatives. Some forty officials and private sector executives met to discuss the use of taxpayer-funded messages to thwart other potential initiatives. They included two White House officials, the head of the DEA, representatives of the FBI, Departments of Justice, Health and Human Services, Treasury and Education, along with state law enforcement personnel and the Partnership for a Drug-Free America. One private participant was quoted in the meeting's minutes as saying, "We'll work with Arizona and California to undo it and stop the spread of legalization to [the] other 48 states."
Daniel Forbes writes on social policy. His recent report on state and federal political malfeasance geared to defeat treatment rather than incarceration ballot initiatives was published by the Institute for Policy Studies. Much of his work, including his series in Salon that led to his testimony before both the Senate and the House, is archived at The Media Awareness Project.
Rabid drug-warrior Bob Barr and the equally avid, though low-key, drug warrior John Linder are in a dead-heat Republican primary this Tuesday in Georgia's newly drawn 7th Congressional District. The question is, if Barr loses how much credit can the national Libertarian Party claim?
The LP's fetchingly named "Incumbent Killer Strategy" has -- with good reason -- targeted Barr as the drug war's point man. So the party has purchased nearly $50,000 of airtime on metro Atlanta cable stations (with a few ads on broadcast Fox and NBC slated for this final, pre-primary weekend) for a wrenching, 30-second ad featuring a woman who's suffered from multiple sclerosis for 31 years and is obviously in the last stages of a painful struggle.
Given that Barr is blanketing the airwaves with nearly $2 million worth of his own ads, is the Libertarian effort small beer? Should the entrenched Georgia Democratic machine, which re-districted the two right-wing incumbents to ensure that one didn't return to Washington, deserve all the credit? (The American Conservative Union rates Barr at 100 percent; Linder at 96 percent.)
In a wheelchair, MS patient Cheryl Miller is barely able to choke out the ad's conclusion:
"Bob Barr thinks I should be in jail for using my medicine. Why would you do that to me, Bob?" [Voice-over]: "When the drug war turns on our own sick and dying, it's gone too far. And so has Bob Barr." Then Miller, struggling again, repeats: "Why would you do that to me, Bob?"
Libertarian Party political director Ron Crickenberger said the ad's many jump-cuts were necessary since Miller lacks the strength to speak uninterruptedly for 30 seconds. She takes medicinal cannabis orally to relieve pain and spasms. Keith Stroup, head of the National Organization for the Reform of Marijuana Laws, described Cheryl and her husband and caretaker, Jim Miller, as "incredibly committed. I'm afraid Cheryl's illness is well-advanced, and they have made the decision to not allow her to die quietly."
Crickenberger encountered them at a NORML press conference backing Rep. Barney Frank's bill allowing for the use of medical marijuana, and the ad was shot that day.
The Millers and Barr are no strangers to each other, at least by reputation. Jim was arrested after laying Cheryl down on a sleeping bag in the doorway of Barr's House office in 1999 following Barr's efforts to block the D.C. medical-use initiative approved but not tabulated in 1998. Cheryl's body wracked by MS, Capitol police were afraid to touch her and called for medical assistance just to place her in her wheelchair; they also lacked the nerve to arrest her. Barr later referred to her as a "prop," according to the AP.
Such statements are all in a day's work for the nation's foremost opponent of medical marijuana. Aside from the fact that redistricting cast Barr in a tight race against a fellow Republican incumbent, not for nothing did the LP unloose the full force of its 50 grand on the man Stroup calls "the most crazed anti-marijuana zealot in Congress."
According to the Marietta Daily Journal, Barr referred in May to medical marijuana as "bogus witchcraft." Flying in the face of numerous government and medical authorities, Barr declared, "There is no legitimate medical use whatsoever for marijuana." He also cited the discredited notion that it serves as a "gateway drug."
Medical cannabis proponents are most wigged by the "Barr Amendments," which are now hard-wired into the D.C. appropriations process. There's been three so far, all prohibiting in one way or another D.C. election authorities from certifying any voter initiatives that cut penalties for Schedule I drug offenses, including marijuana.
The first was when Barr introduced legislation preventing D.C. from spending an estimated $1.64 to flip a switch and tabulate the vote on 1998's medical marijuana initiative. After a long court battle, it was found to have won with 69 percent of the vote. This particular amendment was struck down by the U.S. District Court in March as an unconstitutional free-speech abridgement.
More recently, via a letter urging action by Attorney General John Ashcroft, Barr, Mark Souder (R-IN) and Doug Ose (R-CA) "led the charge to close the L.A. cannabis club that the DEA raided," said Kevin Zeese, president of Common Sense for Drug Policy.
So, finding Barr in their sights for good reason, the LP sees Tuesday's primary as its one chance to rid federal drug policy of Barr's overweening, pernicious influence. Columnist and veteran observer of Georgia politics, Bill Shipp, editor of Bill Shipp's Georgia, said of the district north of Atlanta, "Whoever wins the Republican primary will have that seat till the end of the decade."
Barr led a cavalcade of big-foot, national conservative leaders round his district last Saturday. The day featured a Linder supporter -- not operative -- dressed up as cartoon character Yosemite Sam and declaring himself Barr's gun-safety instructor. This followed Barr's prior mishap with an antique pistol, taking out a glass door at a supporter's home. Sam's wife caught Barr staffers shoving him around on film, the digital image soon gleefully trumpeted by the cheeky independent website, The Political Vine, which the Linder campaign then emailed to reporters.
Among the notables witnessing the fracas were Wayne LaPierre of the National Rifle Association, David Keene of the American Conservative Union, Grover Norquist, president of Americans for Tax Reform, and G. Gordon Liddy of points unknown. Speaking of the new district, the Rev. Lou Sheldon, chairman of the Traditional Values Coalition, noted approvingly that, among other endearing conservative traits, "The people down there don't even know how to spell 'homosexual.' "
After considering some dozen local Libertarians, Crickenberger managed to convince Carole Ann Rand, an entirely respectable, 57-year-old grandmother of eight, to seek office again. The LP's 1990 gubernatorial candidate, Rand received 37,000 votes that year, helping to keep the LP on the statewide ballot, where it's been since 1988. Crickenberger maintains it typically gets from 3 to 8 percent of the statewide vote and from 6 to 9 percent in the counties making up the redrawn 7th District.
In recent years, Rand (wonderful name for a Libertarian) had concentrated her political energies on helping to run something called the Advocates for Self-Government. She said that until 1980, she'd been "politically homeless until I saw the coherence, the integrity of the Libertarian positions regarding personal responsibility, personal tolerance and economic freedom, and that it applied to all people, all the time on all issues."
She added her personal opinion that drugs are "stupid." But, she said, "That's my judgment to apply to my life with family and friends." She calls for full federal legalization of drugs and letting each state and county decide for themselves.
Having announced her candidacy only in late July, with the ad first shown on Aug. 6, Rand acknowledges her limited role. The party's by-laws prohibit it from just attacking Barr without the presence of its own candidate, even one who hasn't yet -- and probably won't -- actually qualify for the ballot in November.
Rand said, "My candidacy is a vehicle for furthering the Libertarian strategy of going after the worst of the worst of the drug warriors." And, not incidentally, "It also allows us to buy advertising at [political candidates'] reduced rates."
Crickenberger wrote supporters that, "We are using a Libertarian candidate as a vehicle to run issue ads attacking Barr."
Aside from the advertising, Rand said her campaigning consisted of some radio appearances and "talking to neighbors and emailing people."
Put a gasping Cheryl Miller in front of enough eyeballs, and the LP just might have something. Polls indicated that 70 percent and more of Americans favor legalizing medical marijuana. Said Rand, "Elected officials don't realize the surge of passion rising around this issue -- the number of people who know someone who's died because of the illegality" when they couldn't keep from vomiting up their medicine or food.
Chuck Muth is National Chairman of the Republican Liberty Caucus, which aims to bring libertarian ideas to mainstream Republicans. He said the "far-out fringe" libertarian positions -- such as "legal heroin" -- are not politically viable. He prefers "rational libertarianism that allows you to get elected." And the LP stance on medical marijuana meets his test. "After all, who in hell is the government to tell sick people how to find relief?" Oddly enough, The Gwinnett Citizen quotes a local Republican official as saying Barr himself belongs to the Republican Liberty Caucus.
And what of the intended beneficiary of this odd campaign with the straw candidate? In a marvelously coy statement July 31, Linder called on the LP to cancel any ads attacking Barr, saying, "According to press reports, I understand that the Libertarian Party intends to run television advertisements with the intention of influencing the Primary. I ask them not to do this."
The release fails to mention that one of the first press reports, from Insight magazine, was posted on Linder's own website in May -- some 10 weeks before the end of July -- including this Insight quote of an LP strategy paper: " ' To the medical marijuana movement, Barr is the equivalent of the Antichrist.' "
Citing Linder's request that the LP butt out and not "interfere" in the primary, Linder campaign manager Bo Harmon acknowledged the Libertarians' right to do as they choose. He figured the ads might "play a small roll in overall public awareness, but I don't see a whole lot of impact."
Linder has not expressed any implicit gratitude to the LP by diluting his own harsh views on medicinal pot. Harmon stated, "He's not moderated his stance at all. He opposes the legalization of drugs, including medical marijuana. He's flat out opposed to medical use."
Crickenberger, however, declared that when serving years ago in the Georgia legislature, Linder did vote in favor of medical marijuana.
Just how sanctified are Georgia primaries; is it all dirty pool?
Crickenberger rejects the notion, saying that with now approximately 15,000 signatures required to qualify per congressional district -- and similar onerous requirements for decades -- there hasn't been a third-party House candidate in the state in 59 years. He contrasts the number with New York's 3,500-signature requirement. (Similarly, candidates for mayor in D.C. need only 2,000 signatures, though its population exceeds that of congressional districts.)
Chuck Muth said core beliefs and principles lead people to join political parties; therefore only party members should choose candidates. "Otherwise, it's like asking a Braves pitcher to pitch for the Yankees during a World Series."
Thirty-second cable spots in Atlanta averaging perhaps 12 bucks a pop (or so the LP says in a fundraising pitch), what's the likely effect of the near 4,000 ads nearly $50,000 buys? Especially when, says Barr finance committee member Molly Dye (former chief of staff to the late Sen. Paul Coverdell), his campaign has that $2 million -- and that's for the primary.
"Anyone watching cable will see the ad," Crickenberger vowed. Staunch medical marijuana proponent Ashley Clements, who lives in Atlanta, is a friend of the Millers and has distributed copies of the ad via email. He said he watches "quite a bit" of cable TV, yet he's seen it only on his computer. His father, with similar viewing habits, has seen it once.
Mortgage banker and Linder supporter, Phil Hinson, watches cable TV a fair bit, mostly Braves games. He's encountered the ad just once. He believes only committed supporters of either candidate, not many undecided voters, will bother to vote in an off-year election. Thus, he doubts the ads will have much of an "eleventh-hour" effect.
Though they have every reason to minimize the ad's impact, Barr finance committee members, Molly Dye and banker, Tom Martin, maintain with all sincerity, that my raising the topic was the first they'd heard of it. Apparently, Cheryl Miller's name doesn't surface in even idle chat among Barr insiders. And mingling amidst the Barr crew at last weekend's series of rallies, Rev. Sheldon said he heard no talk of the Libertarian effort.
Barry Loudermilk, chairman of the Bartow County Republican Party, said the medical marijuana issue got some play in May when Barr debated Atlanta's local Limbaugh on the topic: radio guy Neal Boortz. Boortz has been a huge Libertarian presence on the air for 30 years. (In fact, he first led Crickenberg down the path.) But, Loudermilk added, "I haven't seen it since then. It seemed a hot topic, but it recently hasn't been major news." He said it might conceivably resonate with some of the Democrats who, in the absence of any contest in their party, will cross over to vote in the Republican primary.
The main thing is, if Barr looses, claims can be made. According to Muth, the Libertarians can't win, so "they can just crow about beating Barr." He doubts the presence of many single-issue voters in Georgia. Rand said the "ideal outcome" would be a close Barr defeat of a couple of percentage points, and that "we'd be the margin of difference."
The current plan is to hold some cash in reserve to pay for exit polling. And Crickenberger added, "If we get enough ads, we can claim credit for Barr's hopeful defeat." He resorts to saying he bought about all the ad-time available on cable, broadcast being another story.
He also acknowledged that this contest is "a testing ground. As soon as this is over, we'll apply the lessons learned." He thinks the most likely target in the general election will be Democratic Sen. Max Cleland, coincidentally also of Georgia. The LP was eager to go after DEA head Asa Hutchinson's brother, Sen. Tim Hutchinson (R-AR). But it probably won't succeed in overcoming difficulties getting their candidate on the Arkansas ballot.
Of course, the whole thing could backfire, could yield a whole bunch of Barr supporters up and off the couch to the polls in an off-year primary when turnout is even more crucial. When first noting the LP effort, Barr was happy to declare himself the anti-drug candidate, saying he must be doing something right to merit the attack.
Loudermilk charged, as the Barr Web site happily indicates, that, "The centerpieces of the Libertarian agenda include legalizing drugs, gambling, prostitution, and pornography." He asked Linder to repudiate these positions, "Otherwise, 7th District voters will assume Mr. Linder agrees with this kind of fringe political thought."
In an interview, Loudermilk insists he was referring to the mistaken notion that Linder would accept big donations from the LP, not to any ads the LP might run itself.
Asked whether the link with the free-wheeling philosophy might backfire and energize Barr's ultra-conservative supporters, Linder staffer Bo Harmon said, "I doubt it. No one takes seriously the notion that John shares those beliefs."
One Washington insider (not otherwise quoted) who attended a Barr fundraiser said Barr mentioned the looming LP effort with some satisfaction, figuring it could only help his campaign.
Crickenberger acknowledged the possibility. "We hope we can say the strategy didn't backfire. That we interjected medical marijuana and the bad guy went down." He also said the ad is so strong that, "There might be a negative reaction, that we're over-the-top picking on Barr. There was some concern regarding that. Yes, it is an experiment on our part."
The Republican operative who attended the Barr fundraiser was puzzled by the LP targeting this Republican who actually stood up on his hind feet and commendably voted against the Patriot Act. Though the LP would say Barr's blockhead drug policies trump other issues, this observer said the party ran the risk of alienating the very folks it was trying to capture. He added, "It shows a certain political naivetÃ©, to -- of all people -- pick on a guy standing up for civil liberties."
Crickenberger declares the party agnostic over whether the Republicans or Democrats control Congress. "The more gridlock, the more evenly divided, the better off we are," he said.
Kevin Zeese recalled that, "The environmental movement in the early '70s used to target ten members of Congress, just as Emily's List did so on women's issues in the '90s." The recent fate of environmentalism and women's issues might give Crickenberger considerable pause. But for now, at least till Tuesday, the LP is in it for the long haul, hopping to topple drug warriors one by one.
Daniel Forbes writes on social policy. Email him at email@example.com. Read his recently published report for the Institute for Policy Studies on federal and state political malfeasance.
The nation's harshest drug laws -- a legacy of New York Gov. Nelson Rockefeller -- are now entering their 30th year.
Attempts at reforming New York State drug laws drags on while 19,000 people languish in prison. The law was intended to target big-time dealers -- and some of the incarcerated are indeed violent offenders. But up to 90 percent of them, estimates Rev. John H. Cole of the United Methodist church, are addicted, low-level street dealers, guilty only of selling small amounts of heroin or cocaine or crack.
And 94 percent of them are Latino or black -- though they use drugs at the same rate as whites. Commit a second offense, and almost any speck of drugs leads to hard time. Warehousing them helps provide some 30,000 jobs, mostly in depressed upstate New York at a cost of $700 million a year -- this in a state facing a more than $1 billion budget deficit.
Meanwhile, the state's leaders call for reform and blame others for a stalemate that has existed since at least early 2001, when New York's Republican Governor, George Pataki, proposed a species of reform.
Seeking to stifle the impact of demonstrators chanting at the "Drop the Rock" protest outside his mid-Manhattan office last week, Pataki floated another trial balloon in the press, the second time he's done so following his much castigated formal proposal.
Currently mulling a run for the presidency, the Rev. Al Sharpton charged at the "Drop the Rock" demonstration that New York is "throwing entire lives away, with no chance of redemption, no chance of a mainstream American life. They attack the vulnerable, not the source of the drugs."
As a federal judge quoted by Human Rights Watch observed, "It is difficult to believe that the possession of an ounce of cocaine or a $20 'street sale' is a more dangerous or serious offense" than rape, arson or manslaughter. Yet the drug offense may carry more time. HRW added that due to the focus entirely on the drug's weight, "The law does not distinguish between persons whose criminal conduct is limited to a single incident or who are marginal participants and career criminals or manage[rs] of large criminal enterprises."
The three major candidates for governor in New York this November are all ostensibly in favor of reform. Pataki leads both Democrats, State Comptroller H. Carl McCall and former Clinton cabinet member Andrew M. Cuomo, in the polls by some 20 points. Pataki's state spokesperson, Caroline Quartararo, said Pataki will follow up his leak to the press by proposing a bill within a "few weeks."
But with the Legislature closing down by the end of June at the latest, does that offer enough time to thrash out a bill? Apparently negotiations between the Assembly and the administration have picked up some steam, and Quartararo said Pataki's new director of criminal justice, Chauncey G. Parker, has spent "hundreds of hours meeting with various stakeholders on this."
Speaking to perhaps 200 admiring protestors, Sharpton noted that changing New York's laws, the nation's most repressive, would aid reform nationwide. Then he charged: "Pataki -- quit talking out of both sides of your mouth. We need repeal now. Too many white-collar criminals rob people of billions of dollars and walk away with probation. And yet some kid convicted on a minor reefer arrest does all kinds of state time. It's not fair." Robert Gangi, executive director of the reform organization, the Correctional Association of New York, believes that Pataki does truly want a change, but that he doesn't appreciate the importance of judicial discretion. He concluded, "There's a chance, a real chance."
Noting Pataki's vulnerability in economically depressed upstate New York, Tamar Kraft-Stolar, a coordinator at the Correctional Association, said, "It's clear he wants it off the table during the campaign." She added, "He wants to gain votes without going too far."
Randy Credico, director of the William Kunstler Fund for Racial Justice, said Pataki is "tiptoeing -- he's trimming the edges at best." Part of the problem is that the three state senators most opposed to reform have, according to Credico, a total of 30 correctional facilities located in their districts.
As to the Democrats, Andrew Cuomo has been missing in action, according to several reformers. Carl McCall has been foresquare in criticizing Pataki and calling for reform. Declaring McCall "very good" on the issue, Credico said, "Cuomo is dodging it. His father built the prisons, so no one in my groups is too thrilled with the name Cuomo."
Sharda Sekaran, associate director of public policy for the Drug Policy Alliance, declared McCall a vocal advocate. She believes Cuomo also is supportive of reform, but said, "I don't know how public he's been." Indeed, the Cuomo campaign did not respond to several requests for comment.
Sharpton told AlterNet that Cuomo and McCall need to show their "dramatic opposition" around the state, but, "I don't know what they're doing."
Howard Josepher, director of the Manhattan treatment center Exponents, said, "All of them are taking the talk, but no one is putting themselves on the line to endorse real repeal and reform. Both the Democrats and Republicans are keeping it locked in committee. You would think [Assembly Speaker] Sheldon Silver would be most responsive -- it's the Democrats' constituents who are affected."
Credico said the Mothers of the New York Disappeared will be holding Pataki's feet to the fire regularly at his campaign stops. Additionally, 150,000 recorded phone calls to typically minority communities from Sharpton and former Bronx Borough President Fernando Ferrer, will seek to keep pressure building.
Reformers hope to utilize that pressure to enact several changes in the current law, melding whatever the governor proposes with a hopefully improved offering from Silver and the Assembly.
Sekaran noted four crucial problems with Pataki's stance: the maintenance of low weight limits for the top sentences; the lack of retroactive sentencing reform; the fact that prosecutors would still control eligibility for diversion to treatment (though judges could overrule that); and the lack of increased treatment resources. On that point, she said, "The Assembly has called for $100 million annually for treatment, but we don't see a dime from Pataki."
Reformers' foremost concern is returning discretion to judges to both determine sentencing and eligibility for treatment in lieu of incarceration. Currently, prosecutors determine the charge and thus the sentence. And, according to the governor's leak last week to The New York Times on his likely revamped legislation, DAs would still determine treatment eligibility, but defendants would retain the right of appeal and judges could overrule prosecutors. But with many judges culled from the ranks of prosecutors, the average street addict who's already cycled through the system will have to stretch far for that eligibility brass ring.
His spokesperson maintains that Pataki's proposal boosts judicial discretion by taking the decision regarding maximum time served away from parole. Quartararo added that Pataki will call for cutting minimum sentences in half. For instance, rather than the top sentence of 15 years to life, the governor now wants 10 to 20 years; for class B felonies, which currently range from four-and-a-half to nine years, Quartararo said Pataki is proposing a flat sentence of four years.
Quartararo added that, despite the mistaken assertion in the Times, Pataki would have treatment professionals deciding on client failure: "It won't be, one or two strikes and you're out."
Judicial discretion absolutist Tamar Kraft-Stolar said, "It seems Pataki moved a little bit." But she pointed to the many defendant circumstances that still tie judges' hands, such as the presence of guns or involvement of minors, or running a drug ring of more than three people. Then there's also the need to prove drug dependency. Plus, offenders with more than one prior felony conviction will be ineligible for diversion.
For its part, the DPA is particularly concerned about retroactivity for the current 19,000 prisoners, the majority Class B offenders locked up for selling or possession with intent to sell. Pataki's previous plan, Shadra Sekaran noted, would consider some sort of sentence reduction for only around 600 prisoners serving the longest sentences; that's less than 3 percent of the total.
Credico called for a "massive clemency" of those who've served five or six years, a "general amnesty of a couple of thousand people." Even if the Assembly bill passes, Credico said, "New York would go from having the worst drug laws in the nation to having the worst drug laws in the nation." Pataki's spokesperson, Caroline Quartararo, indicated the next few weeks will determine if some sort of retroactive sentence reduction is still on the table.
Of course, any provision regarding treatment will mean little if the slots don't exist. Currently, press reports refer to addicts who engineer their own arrests as the only route to treatment. Quartararo admitted that additional funding needs to be discussed: "That's an issue we're working on." Any negotiations should recognize estimates from the Legal Action Center that sending second-time, nonviolent drug offenders to treatment rather than prison could save a total of from $92 million to $222 million.
Finally, the much-ridiculed Pataki proposal to raise marijuana penalties probably is little more than political posturing that gives him room to maneuver. One Albany insider termed it "a de facto bargaining chip." The DPA's Sekaran declared the marijuana provision illogical, unpopular and nonsensical, adding, "I can only assume it won't require a big effort to make it go away."
Credico called for "selfish" marijuana users to get involved in the overall issue, theorizing that should the Rockefeller laws be changed, marijuana reform might be next. He figured that Pataki's threat regarding marijuana is "ludicrous given that both he and [Mike] Bloomberg have admitted using it."
As to the relative dearth of white, middle-class support for Drop the Rock efforts, Sekaran said that marijuana users have been focused on the absurd number of pot arrests in New York City under Rudy Guiliani, enforcement that current mayor Michael Bloomberg has indicated will continue. Sekaran noted that, "Rallies and advocacy have focused on the communities impacted. It's no coincidence you see large numbers of African-Americans and Latinos involved."
Daniel Forbes (firstname.lastname@example.org.) writes on social policy from New York.
Rick D. Day, the executive director of Texas NORML, the marijuana rights group, swears he had no intention of lighting up a joint on his new radio show at KTRA-AM in Dallas/Ft. Worth. So it presumably wasn't concern over any on-site combustibles that caused the Clear Channel Communications station to walk away from the contract it signed with him.
But what puzzles Day about the imbroglio, now in its third week, is that it was Clear Channel's idea in the first place. A KTRA salesman, David Becker, approached him with the idea. It's not a good time for advertising in any medium, and Becker was apparently eager in a slow economy to develop new sources of paid programming. Never mind that any show with Day behind the microphone would push a pro-pot agenda.
Newly promoted to the Dallas office, Becker hit upon the idea of approaching Texas NORML. (The acronym stands for National Organization for the Reform of Marijuana Laws.) Various other political organizations air their views on radio stations nationwide, so why not, he figured. Says Becker, who confirms the signed contract with Day, "Yes, I did approach him first." It was his understanding that Day would discuss responsible marijuana use by adults, Becker says, adding, "It's not tits and ass, it's not strippers."
But the KTRA programming department now fears that Day might concentrate on how to obtain pot or achieve a quality high, says Becker, and that's what caused the holdup. His boss, Clear Channel local sales manager Mike Scott, has assured Becker the show will run, once it gets over these "speed bumps," he says, but right now programming and sales are "wrestling" over it.
Day and Clear Channel signed a contract in mid-October, and the hourlong show, dubbed "Club Cannabis," was set to debut the first Sunday in November at 7 p.m. Day agreed to pony up $15,600 to buy a year of Sunday-night slots. Clear Channel would get four minutes for its own advertising for each show, and Day, provided he agreed "to conform to basic FCC rules regarding advertising and broadcast content," could pretty much do what he wanted with the rest.
As he informed KTRA, Day planned segments on such topics as: "Libertine Lifestyles," "Drug Czar Bizarre" and even "Mister Greenbud's Groovy Garden." In the interest of journalistic balance, a "Spotlight on Stoner Stupidity" was also planned.
Before such ruminations could be foisted on the good citizens of Dallas/Ft. Worth, Day ran into what he calls "obfuscation and delay." The Nov. 4 debut date came and went, as did the following Sunday night. On the morning of the third Sunday, Nov. 18, Day says he received an e-mail from Scott that canceled that debut as well. "Anyway, politics have appeared," the note said. "I have been asked to 'hold off' on your show for a couple of weeks. It's my understanding that someone high up in the Programming area of the company has expressed concern over the content of your show. I need to get an overview of your topics, etc. to the powers that be next week before we can proceed."
Judging at least from the e-mails Day says Scott has sent him, Scott genuinely seems to want to get the show on the air. After apologizing about the "delays and roadblocks," Scott wrote: "Obviously, we won't be doing a show tonite, but if you are willing to jump through some hoops, I will make sure we fight the good fight."
For his part, Day says, "Mike Scott has been going to bat for me like I'm his No. 1 client. I can't fault anything Scott or Becker have done -- they could have blown me off a long time ago."
Neither Scott nor Clear Channel would comment. Said company spokeswoman Pam Taylor, "We don't talk to Salon." (Salon has run an award-winning series of investigative reports on the company.)
Day still hopes to air his views on what he terms "adults' responsible use of marijuana." He says, "I've been trying to have a meeting for two months to go over the shows content, but all I get are these e-mails."
There's also a fair bit of money involved for Day. He says he had the Dallas-area emporium "Puffers Paradise" lined up as one sponsor, and was on the verge of inking a deal with a second, a "pee-clean" outfit. He says he's shelled out some $4,000 worth of time and materials, and says Clear Channel has already billed his credit card for the first show.
A pro-pot radio show is actually not unprecedented. In a similar paid programming format, Allen St. Pierre, executive director of the NORML Foundation, paid $100 per half-hour to piggy-back onto a block of paid time at WTAN-AM in Clearwater, Fla. St. Pierre discussed drug policy with Libertarian-leaning host Glenn Klein on two Wednesdays in October. He says they opened with a Peter Tosh reggae song, "Legalize It," and discussed legalization in general and decriminalization efforts in Florida and Michigan, among other topics.
WTAN co-owner David Wagenvoord has no problem with St. Pierre gracing his airwaves. "We like to think we're a balanced talk station -- we like both sides of an issue, and decriminalizing or legalizing drugs are one side of the issue." Wagenvoord adds, "I think a lot more people are in favor of decriminalization than you might think. They just can't speak out about it in church." Klein is having problems finding a sponsor, so the show is temporarily off the air, Wagenvoord says. Of Day, St. Pierre says if he doesn't get his show on, "He should sue for breach of contract and get compensation. But it does point out that those who own the press control the news."
Indeed, while radio stations are required by law to air pubic-interest programming, they can't be made to air any programming they don't want to. Mark Berlin, an attorney in the Federal Communications Commission's political programming unit, says, "There are no rules regarding any issues. Whether a station puts something on or not is within their own discretion."
Day says he'll persevere. "It's all just one more hill to climb in a long race for the truth," he says. "I'm determined to do everything I can to ensure this show goes on."
His determination stems from the fact that Day is a chronic hepatitis C sufferer, who, at age 46, figures he has "only five to seven quality years of life left. So one week is like a month to me, and I don't have time to fool around." Day says he caught the disease working as a hospital orderly in 1979. He suffered a needle stick and immediately came down with jaundice. He says that two common symptoms of his disease are nausea and weight loss, both of which he controls with marijuana. "And that's why I'm on a jihad regarding cannabis."
Daniel Forbes is a New York freelancer who writes on social policy and the media.
California's Proposition 36, a state voter initiative designed to divert 36,000 small-time drug offenders a year from incarceration to treatment, passed overwhelmingly last November. Drug reformers hailed the bill as a landmark move but, as with all legislation, the devil is in the details. When it was inaugurated on July 1, each of the state's 58 counties was charged with drafting its own implementation plan. Because control is localized, some counties are still emphasizing punishment over treatment.
At least that's the case made by the Lindesmith Center - Drug Policy Foundation, one of the main Prop. 36 proponents. In late June, the private, non-profit reform organization released a formal assessment of 11 California counties, containing 75% of the state's population, are implementing Prop. 36. The assessment uses a traditional 'A' through 'F' letter grading system. While some counties go to the head of the class -- primarily San Francisco and San Mateo -- San Bernardino received a failing grade, and Sacramento, San Diego and Santa Clara just squeaked by.
The Lindesmith Center judged the counties based on whether they followed the "will of the voters." That is, do the counties approach first- or second-time drug offenders with a public health model, or is the criminal justice tail wagging the treatment dog? The counties that got a Lindesmith 'A' or 'B, including Alameda, Orange and Los Angeles, sought to remove drug offenders from the criminal justice system. Counties get low grades when too much money was devoted to supervision through their probation departments.
The struggle over divvying up $660 million over the next five years in guaranteed, locked box state funds is as basic as it gets. "This is a fight over money and jobs and operational control, yes," said Lindesmith's Prop. 36 implementation director, Whitney A. Taylor. "A shift of resources from one official body to another, from law enforcement to public health."
Chronically under-funded probation departments have requested up to two-thirds of Prop. 36 monies, though they typically have marginal oversight of non-violent users. Similarly under-funded treatment providers are eager to slice the pie otherwise, mindful that one traditional way for them to access funds has been to get into bed with the criminal justice system. Speaking at the annual Lindesmith conference, held this June in Albuquerque, Dorsey Nunn, program director of San Francisco's Legal Services for Prisoners with Children declared, "That half-a-billion dollars -- it doesn't belong to the police. I don't care if the cops ever get new police cars."
California Governor Gray Davis opposed the initiative and adopted a hands-off approach after its passage, despite the fact that California's drug incarceration rate (115 per 100,000 population) is more than twice the national average. Given that incarceration costs some $24,000 a year while treatment averages $4,000, diverting 36,000 offenders annually will provide an estimated $1.5 billion savings in the law enforcement and corrections budgets over the program's five-year life. (There's also a projected one-time, $500-million savings from not having to build a new prison.)
Despite the large savings, there's been much grumbling at the county level that the $660 million will prove insufficient to the task. Dell Sayles-Owen, deputy director of California's Department of Alcohol and Drug Programs (ADP) admitted that the state doesnt know in an "empirical way" how much will be needed to effectively implement Prop. 36, "and there are fears among some of our stakeholders in the counties that it won't be enough."
The state ADP department provided scant concrete guidance in drafting the plans, though it did subsequently approve them. Given the regulatory vacuum, each of California's 58 counties was free to divvy up its share of the money. Taylor stated, "The state ADP took such a hands-off approach, we basically have 58 different plans. Even a simple state cap on the percentage allocated for non-treatment expenses would have been worthwhile."
That view was not echoed by Sayles-Owens. Referring to the division of monies between treatment and supervision, she said, "The law doesn't specify, nor do our regulations specify. Local decisions are left to the counties on how much to allocate to criminal justice versus treatment."
Therefore, this springs contest will be fought annually at the county level, with probation departments, the cops and the courts struggling to maintain budgetary and operational control, and Prop. 36 advocates striving to enforce what they view as voters' intent to beef up California's treatment infrastructure. As Taylor told the recent Lindesmith conference, "There are 58 different fights in 58 counties. Opponents of Prop. 36 -- judges, prosecutors, sheriffs -- in each county you have the foxes guarding the hen house."
Californias expected battles over Prop 36 bear watching as Americans grow ever-wearier of locking up their sons and fathers, mothers and daughters in a 30-year drug war that shows no signs of ending. The same troika of millionaire drug reformers -- George Soros, Peter Lewis and John Sperling -- who backed the initiative (Soros also funds Lindesmith) has indicated they intend to push similar treatment-over-incarceration ballot initiatives in Michigan, Florida and Ohio in the 2002 elections. Given that an ABC News poll found that 69% of Americans favor treatment over jail for first and second time drug offenders, similar initiatives could soon succeed around the country, as did the medical marijuana initiatives funded by the three men. Even President Bush has called for $1.6 billion in new federal money for drug treatment.
While issuing letter grades is a nice conceptual technique, appealing to the press and public alike, a private group's ability to steer recalcitrant counties in their direction remains to be seen. Sayles-Owen said that one county she declined to identify called her, concerned about Lindesmith's critique, but it was a moot point since she'd approved its plan that very day. Regardless of the response, Lindesmith certainly plans on invoking last November's huge Prop. 36 victory. Taylor said, "With 61% of the vote, you can afford to throw your weight around."
Asked about the utility of a private group trying to shape a public law, Taylor said, "We were among the original proponents of Prop. 36. We don't want to be seen as a group that helps institute new laws and then leaves without trying to guarantee success." Noting that the counties will retool their plans with each annual appropriation, Taylor added, "We want to try to help voters take action with this information." Toni Moore, Sacramento County Alcohol and Drug Administrator, declared Lindesmith's effort interesting, and said she understood their interest and motivation since they're, "in essence, the authors of Prop. 36, they want to see it as they envisioned it."
Lindesmiths report card analyzed each countys plans based on four parameters. The first was the proportion of money earmarked for treatment versus non-treatment costs such as probation, law enforcement and the courts. They declare that 17%, or $20 million, is "sufficient to supplement established county administrative and criminal justice systems." Money beyond that 17% figure is "stolen from treatment and endangers the success of Prop. 36."
The second parameter was the availability of various treatment options, including education and prevention, outpatient treatment and halfway houses, methadone therapy, in-patient treatment and detox. (Literacy training and family and vocational counseling are also to be provided under Prop. 36 funds when needed.)
"Docs or cops" is what Lindesmith terms the third parameter: the relative operational prominence of public health versus law enforcement. That is, do public health professionals take the lead in assessment and case management? Lindesmith asserts that Prop. 36 shifts the locus of responsibility for eligible offenders from prosecutors, judges, probation and corrections to public health officials, and that this redefinition of respective roles requires law enforcement to defer to public health. Taylor said, "We have to make sure that Prop. 36 is not just co-opted into the criminal justice system and that it doesn't just become another drug war tool."
Sayles-Owen said that responsibility will depend on the quality of the working relationship among the various public officials in individual counties. "Prop. 36 is a sentencing law change, and it's appropriate that the criminal justice system is heavily involved."
One important component of this question is whether urine testing is used as a therapeutic tool or to kick someone out of the program or revoke probation. Undue emphasis on urine tests may just mean more of the same for addicts: two or three failed tests and you're out. Taylor asserts that treatment professionals typically know when clients are still using, and that urine tests should be used, not to kick someone out of a program, but to parade their continued dependence before them. The issue provoked defiant, albeit informal, talk at the Lindesmith conference of treatment providers just plain failing to inform probation departments of failed drug tests. Treatment advocates worry that even a couple of failed tests will revoke a clients' probation and send him or her off to jail for one to three years.
The fourth parameter is community involvement, including whether publicized community forums were held and whether the task forces that drew up the implementation plans included public health officials and even "consumers." Membership on the 58 task forces and their subsequent decisions didnt come easy. As Taylor told the conference, "Treatment professionals were on the task forces drawing up the county plans, but they lacked power compared to the law enforcement folks fighting for a piece of the money."
Extra credit, not reflected in the overall grade, was given to Los Angeles, Orange, Riverside and San Francisco counties since their district attorneys issued sentencing guidelines which hopefully will lessen the sort of deliberate over-sentencing that makes defendants ineligible. Offenders convicted of anything from an ill-defined intent-to-distribute charge, to resisting arrest, to even loitering or trespassing in some derelict crackhouse, are ineligible for Prop. 36 diversion. As for marijuana, California potheads convicted of possession of personal-use amounts typically don't face any jail time.
Taylor told the Lindesmith conference, "It's up to the DA what constitutes personal use. If you have only two grams, but it's in two separate baggies, that can be said to be intent to distribute."
Said Doug McVay, research director for the Washington, D.C. reform group, Common Sense for Drug Policy, "California has a horribly racially biased and unbalanced criminal justice system." Given no articulated demarcation between possession and dealing, "I imagine that most Prop. 36 defendants will be white. Prosecutors have that discretion, and it gets abused."
Sayles-Owen would only say cryptically: "There is the possibility of behavior-changing effects of Prop. 36. Will DAs continue to charge cases the same way? My observation to that is we were told we'll see changes. The law says who is eligible. The big question mark is decisions regarding plea bargaining." She would not specify what changes in DA behavior she anticipates.
Dorsey Nunn, who's African-American, was less cryptic. He told the Lindesmith conference, "The DA is not going to jump up and down and sprinkle frou-frou dust on my homeboys."
By all these criteria, the 11 counties fall under a pretty classic bell curve: San Francisco got an 'A' and San Mateo an 'A-.' Alameda and Orange counties got 'Bs' and Los Angeles a 'B-.' Fresno and Riverside got 'Cs'; and Santa Clara and San Diego 'D+s.' Sacremento sleazed by with a 'D.' Finally, the sole 'F,' Lindesmith declared that San Bernardino "fails voters," and lacks any "commitment to quality treatment." Rather, with an undue "bolstering of criminal justice programs," it has "an implementation plan that is likely to fail."
Sayles-Owen did acknowledge, "The first year will be very telling, and we reserve the right to look at performance and local decisions." In reply to a question, she declared the whole effort "quite the experiment, yes."