The Global War on Drugs Has Failed

Logicians will quarrel with my reasoning, arguing that drug use did not propel these men to high office. That's true. But it obviously didn't hinder them.

For decades, champions of the drug war have trumpeted the dire risks of marijuana. But millions of Americans have used and even enjoyed it — nearly 100 million, in fact. Most of them have gone on to lead responsible, well-adjusted lives.

If anything related to pot would have kept them from being elected to office, it would be the laws against it. An arrest or a conviction could derail a political career before it even got started. Yet these presidents went on putting people in jail for something they got away with.

Their fellow citizens, however, are increasingly skeptical about the drug war. Last year, Gallup found that 50 percent of Americans now favor legalizing cannabis, with only 46 percent opposed.

The sentiment may lead to action. On Nov. 6, residents of Colorado, Oregon and Washington will vote on ballot measures to allow the regulated production, sale and use of pot.

In Colorado, which already has a large network of medical marijuana dispensaries, familiarity has bred acceptance. One of the most noteworthy headlines of 2011 came on a news release from Public Policy Polling: "Colorado favors gay marriage, marijuana use, loves Tebow." Affection for the Denver quarterback may have ebbed since he went to the New York Jets, but The Regulate Marijuana Like Alcohol Act of 2012 is leading in the polls.

Weed would remain illegal under federal law, but good luck to the feds trying to enforce that ban if a state abandons it. As the Drug Policy Alliance notes, medical marijuana has gotten established over the objections of Washington.

Critics raise the usual alarms. Obama's Office of National Drug Control Policy charges that "political campaigns to legalize all marijuana use perpetuate the false notion that marijuana is harmless. This significantly diminishes efforts to keep our young people drug free and hampers the struggle of those recovering from addiction."

But very few people portray marijuana as harmless. The claim, grounded in fact and experience, is that it is far less harmful than the effort to stamp it out.

Marijuana prohibition means the arrest of some 750,000 people every year for simple possession — double the number 20 years ago. It means spending an estimated $7.7 billion on enforcement. It means the enrichment of urban gangs and Mexican drug cartels that depend on the illegal trade. And the whole effort has been a complete failure.

Nor does a permissive approach necessarily undermine efforts to protect kids. For high school kids, dope is just slightly harder to get than Skittles. In the Netherlands, which permits regulated sales through "coffee shops," adolescents are far less likely to try pot than here.

Marijuana use, it's true, can be damaging. A recent study found that people who begin using it heavily as teens and continue as adults can reduce their IQ. It can cause dependency. Like any mind-altering substance, it may foster dangerous behavior.

But the same things are true of alcohol, a drug that inflicts far more damage to users and the rest of us than marijuana could ever do. We accept those risks as the price of personal freedom — while focusing law enforcement on combating abuse, not use. A similar respect for individual prerogative ought to govern in the realm of cannabis.

Young people should realize that, despite the example of Obama and his predecessors, smoking pot doesn't mean you'll grow up to be president. But be warned: It is one of the risks you take.

"The victories in Colorado and Washington are of historic significance not just for Americans but for all countries debating the future of marijuana prohibition in their own countries," said Ethan Nadelmann, executive director of the Drug Policy Alliance (DPA). "This is now a mainstream issue, with citizens more or less divided on the issue but increasingly inclined to favor responsible regulation of marijuana over costly and ineffective prohibitionist policies."

The campaigns to legalize marijuana succeeded in part by deep-pocketed donors. Among the campaigns' many contributors were Peter Lewis, the Progressive Insurance chairman who has been a long-time advocate of marijuana legalization, and Rick Steves, the famous travel writer and PBS host.

The initiatives were also financially backed in part by pro-legalization advocacy groups DPA and the Marijuana Policy Project.

But it was the campaigns' arguments about why marijuana should be legalized that helped win over voters. From reducing the cost of law enforcement and weakening drug cartels to adding much-needed tax revenue in a time when it is needed most, the pros of legalization outweighed the cons.

"It's ridiculous to be trying to maintain the law enforcement effort — all the people, all that money, all those resources — to prosecute marijuana use," said legalization supporter Karla Oman, according to the Seattle Post-Intelligencer. "Tax it, legalize it, everybody wins."

Groups working against the initiatives, including SMART Colorado, relied primarily on the argument that legalization would increase use among children.

However, that belief was hotly disputed by pro-legalization groups, who said legalization would make acquiring marijuana more difficult because it would require I.D. and therefore decrease use among underage kids - a core component of their overall argument.

Although state law will allow for the sale and purchase of marijuana, federal law still prohibits it, which will make marijuana retailers subject to raids and criminal prosecution by federal authorities.

According to Americans for Safe Access (ASA), a group that promotes legalizing medicinal marijuana, the Obama administration has directed the Justice Department to conduct approximately 200 SWAT-style raids on medical marijuana dispensaries in states where the drug is legal for medicinal use.

The answer to the former is maybe. Barack Obama campaigned for president pledging to respect state marijuana laws, and his Justice Department in 2009 issued a memo reiterating that promise. But by 2011, the same Justice Department countermanded that directive and authorized a federal crackdown. Now, with the results of the 2012 election, Colorado’s Democratic Gov. John Hickenlooper has been forced into the awkward position of fighting off the feds in defense of a state constitutional amendment he tried to defeat.

Because of Hickenlooper’s cynical contradictions – the beer mogul opposed pot legalization after making millions selling the more hazardous drug called alcohol – he is not trusted by those pushing for a more rational narcotics policy. That distrust only intensified after the election. Instead of acknowledging the seriousness of a drug war that is unduly arresting thousands and that often disproportionately targets minorities, Hickenlooper reacted to the ballot measure’s passage with his own infantile attempt at comedy.

“Don’t break out the Cheetos or Goldfish too quickly,” he snickered.

Not surprisingly, proponents of the pot initiative, which passed with more votes than either Obama or Hickenlooper have ever received in Colorado, weren’t laughing with the governor. They suspect Hickenlooper’s recent consultations with the Obama administration over the new law are a devious concession. Specifically, they argue that Hickenlooper even asking the White House for permission to proceed – rather than simply moving forward on behalf of his state’s voters – could be a deliberate attempt to solidify the precedent of federal preemption before courts cite the 10th Amendment to invalidate that authority.

Of course, in the years before the judiciary steps in, the federal Drug Enforcement Agency will likely cite the 1970 Controlled Substances Act to do whatever it wants. That gets to the second issue of “should” – should that statutory power exist anymore? That’s not a rhetorical query for academic navel-gazers – it is a pressing question that a new Democratic proposal could force Congress to confront.

As the Colorado Independent reports, while Hickenlooper cracks weak frat-boy jokes, Colorado’s “three Democratic U.S. House members are drafting legislation … that would exempt states where pot has been legalized from the Controlled Substances Act.”

So far, President Obama hasn’t taken a position on the bill. However, a White House citizens’ petition supporting the measure could force his hand. In just days, it has garnered the necessary number of signatures to officially require a presidential response (you can sign it here). Signatures are no doubt piling up because the initiative presents a straightforward path to success.

Politically, it would allow culturally conservative drug warriors in Congress and the White House to support the states’ rights position on narcotics policy that a new Rasmussen poll shows the public supports. At the same time, it would let those drug warriors avoid an explicit stand in support of marijuana use. Meanwhile, it would ratify voters’ right to end this destructive part of the drug war and it would short-circuit a jurisdictional fight between states and Washington, D.C.

Such a skirmish would not merely be expensive and pointless – it would also be lengthy, meaning billions more taxpayer dollars wasted on a failed prohibitionist policy, and worse, more innocent Americans punished for the “crime” of smoking a joint.

That’s not funny – no matter how many politicians, comedians and reporters try to tell you otherwise.

Leahy asked Kerlikowske, the administration's so-called drug czar, "what assurance can and will the administration give to state officials involved in the licensing of marijuana retailers that they will not face federal criminal penalties for carrying out duties assigned to them under state law?"

Leahy said Obama's comments "reflect common sense. In a time of tight budget constraints, I want law enforcement to focus on violent crime. But now that we have a gap between federal and state laws on marijuana, we need more information and a wider discussion about where our priorities should be."

Critics of the federal drug laws saw the comments from Obama and Leahy as a sign that Washington's rigid opposition to marijuana may be ending.

"It's a tentative step in the right direction," Ethan Nadelmann, executive director of the Drug Policy Alliance, said of Obama's statement. "He said we need a 'conversation,' and that's very promising. This sounds a lot like what he said about gay marriage a couple of years ago."

Nadelmann said he would watch to see whether federal law enforcement officials at the Justice Department will insist on an aggressive anti-marijuana policy, despite the milder words from the president and Atty. Gen. Eric H. Holder Jr.

Recent polls have shown the American public is about evenly split on whether personal use of small amounts of marijuana should be legalized. The initiatives to legalize recreational use of marijuana in Washington and Colorado easily won passage Nov. 6.

Steve DeAngelo, executive director of Harborside Health Center in Oakland, said he hoped Obama's comments would prompt Justice Department prosecutors in California to cease a crackdown on the medical cannabis industry that threatens to close his shops.

The U.S. attorney in San Francisco filed a lawsuit in July to seize Harborside's two properties, even though its main dispensary is licensed and regulated by the city of Oakland and seen by many as a model of the industry. A hearing in federal court next Thursday may determine whether the dispensary must close its doors.

"It would be a tragedy if the leading example of responsible and legally compliant medical cannabis distribution is shut down next week on the verge of a change in federal policy," DeAngelo said. "The word ironic doesn't just quite have enough bitterness in it."

In the past, the Obama administration has sent conflicting messages on medical marijuana. Soon after taking office, the president and the attorney general pledged to pull back from the George W. Bush administration's policy of using federal agents to shut down dispensaries in California and other states where medical marijuana is legal. But U.S. prosecutors there have continued to take aggressive action against those who sell large quantities of marijuana.

Obama said he has a duty to follow the law as it now exists. "This is a tough problem because Congress has not yet changed the law," he told ABC. "I head up the executive branch. We're supposed to be carrying out the laws."

Tom Angell, chairman of the Marijuana Majority, said Obama could do more. The executive branch could take action to change the classification of marijuana as a dangerous drug.

"The president should lead on this issue instead of deferring to Congress," Angell said.

The banks' laundering transactions were so brazen that the NSA probably could have spotted them from space. Breuer admitted that drug dealers would sometimes come to HSBC's Mexican branches and "deposit hundreds of thousands of dollars in cash, in a single day, into a single account, using boxes designed to fit the precise dimensions of the teller windows."

This bears repeating: in order to more efficiently move as much illegal money as possible into the "legitimate" banking institution HSBC, drug dealers specifically designed boxes to fit through the bank's teller windows. Tony Montana's henchmen marching dufflebags of cash into the fictional "American City Bank" in Miami was actually more subtle than what the cartels were doing when they washed their cash through one of Britain's most storied financial institutions.

Though this was not stated explicitly, the government's rationale in not pursuing criminal prosecutions against the bank was apparently rooted in concerns that putting executives from a "systemically important institution" in jail for drug laundering would threaten the stability of the financial system. The New York Times put it this way:

Federal and state authorities have chosen not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system.

It doesn't take a genius to see that the reasoning here is beyond flawed. When you decide not to prosecute bankers for billion-dollar crimes connected to drug-dealing and terrorism (some of HSBC's Saudi and Bangladeshi clients had terrorist ties, according to a Senate investigation), it doesn't protect the banking system, it does exactly the opposite. It terrifies investors and depositors everywhere, leaving them with the clear impression that even the most "reputable" banks may in fact be captured institutions whose senior executives are in the employ of (this can't be repeated often enough) murderers and terrorists. Even more shocking, the Justice Department's response to learning about all of this was to do exactly the same thing that the HSBC executives did in the first place to get themselves in trouble – they took money to look the other way.

And not only did they sell out to drug dealers, they sold out cheap. You'll hear bragging this week by the Obama administration that they wrested a record penalty from HSBC, but it's a joke. Some of the penalties involved will literally make you laugh out loud. This is from Breuer's announcement:

As a result of the government's investigation, HSBC has . . . "clawed back" deferred compensation bonuses given to some of its most senior U.S. anti-money laundering and compliance officers, and agreed to partially defer bonus compensation for its most senior officials during the five-year period of the deferred prosecution agreement.

Wow. So the executives who spent a decade laundering billions of dollars will have to partially defer their bonuses during the five-year deferred prosecution agreement? Are you fucking kidding me? That's the punishment? The government's negotiators couldn't hold firm on forcing HSBC officials to completely wait to receive their ill-gotten bonuses? They had to settle on making them "partially" wait? Every honest prosecutor in America has to be puking his guts out at such bargaining tactics. What was the Justice Department's opening offer – asking executives to restrict their Caribbean vacation time to nine weeks a year?

So you might ask, what's the appropriate financial penalty for a bank in HSBC's position? Exactly how much money should one extract from a firm that has been shamelessly profiting from business with criminals for years and years? Remember, we're talking about a company that has admitted to a smorgasbord of serious banking crimes. If you're the prosecutor, you've got this bank by the balls. So how much money should you take?

How about all of it? How about every last dollar the bank has made since it started its illegal activity? How about you dive into every bank account of every single executive involved in this mess and take every last bonus dollar they've ever earned? Then take their houses, their cars, the paintings they bought at Sotheby's auctions, the clothes in their closets, the loose change in the jars on their kitchen counters, every last freaking thing. Take it all and don't think twice. And then throw them in jail.

Sound harsh? It does, doesn't it? The only problem is, that's exactly what the government does just about every day to ordinary people involved in ordinary drug cases.

It'd be interesting, for instance, to ask the residents of Tenaha, Texas what they think about the HSBC settlement. That's the town where local police routinely pulled over (mostly black) motorists and, whenever they found cash, offered motorists a choice: They could either allow police to seize the money, or face drug and money laundering charges.

Or we could ask Anthony Smelley, the Indiana resident who won $50,000 in a car accident settlement and was carrying about $17K of that in cash in his car when he got pulled over. Cops searched his car and had drug dogs sniff around: The dogs alerted twice. No drugs were found, but police took the money anyway. Even after Smelley produced documentation proving where he got the money from, Putnam County officials tried to keep the money on the grounds that he could have used the cash to buy drugs in the future.

Seriously, that happened. It happens all the time, and even Lanny Breuer's own Justice Department gets into the act. In 2010 alone, U.S. Attorneys' offices deposited nearly $1.8 billion into government accounts as a result of forfeiture cases, most of them drug cases.

If you get pulled over in America with cash and the government even thinks it's drug money, that cash is going to be buying your local sheriff or police chief a new Ford Expedition tomorrow afternoon.

And that's just the icing on the cake. The real prize you get for interacting with a law enforcement officer, if you happen to be connected in any way with drugs, is a preposterous, outsized criminal penalty. Right here in New York, one out of every seven cases that ends up in court is a marijuana case.

Just the other day, while Breuer was announcing his slap on the wrist for the world's most prolific drug-launderers, I was in arraignment court in Brooklyn watching how they deal with actual people. A public defender explained the absurdity of drug arrests in this city. New York actually has fairly liberal laws about pot – police aren't supposed to bust you if you possess the drug in private. So how do police work around that to make 50,377 pot-related arrests in a single year, just in this city? Tthat was 2010; the 2009 number was 46,492.)

"What they do is, they stop you on the street and tell you to empty your pockets," the public defender explained. "Then the instant a pipe or a seed is out of the pocket – boom, it's 'public use.' And you get arrested."

People spend nights in jail, or worse. In New York, even if they let you off with a misdemeanor and time served, you have to pay $200 and have your DNA extracted – a process that you have to pay for (it costs 50 bucks). But even beyond that, you won't have search very far for stories of draconian, idiotic sentences for nonviolent drug crimes.

Just ask Cameron Douglas, the son of Michael Douglas, who got five years in jail for simple possession. His jailers kept him in solitary for 23 hours a day for 11 months and denied him visits with family and friends. Although your typical non-violent drug inmate isn't the white child of a celebrity, he's usually a minority user who gets far stiffer sentences than rich white kids would for committing the same crimes – we all remember the crack-versus-coke controversy in which federal and state sentencing guidelines left (predominantly minority) crack users serving sentences up to 100 times harsher than those meted out to the predominantly white users of powdered coke.

The institutional bias in the crack sentencing guidelines was a racist outrage, but this HSBC settlement blows even that away. By eschewing criminal prosecutions of major drug launderers on the grounds (the patently absurd grounds, incidentally) that their prosecution might imperil the world financial system, the government has now formalized the double standard.

They're now saying that if you're not an important cog in the global financial system, you can't get away with anything, not even simple possession. You will be jailed and whatever cash they find on you they'll seize on the spot, and convert into new cruisers or toys for your local SWAT team, which will be deployed to kick in the doors of houses where more such inessential economic cogs as you live. If you don't have a systemically important job, in other words, the government's position is that your assets may be used to finance your own political disenfranchisement.

On the other hand, if you are an important person, and you work for a big international bank, you won't be prosecuted even if you launder nine billion dollars. Even if you actively collude with the people at the very top of the international narcotics trade, your punishment will be far smaller than that of the person at the very bottom of the world drug pyramid. You will be treated with more deference and sympathy than a junkie passing out on a subway car in Manhattan (using two seats of a subway car is a common prosecutable offense in this city). An international drug trafficker is a criminal and usually a murderer; the drug addict walking the street is one of his victims. But thanks to Breuer, we're now in the business, officially, of jailing the victims and enabling the criminals.

This is the disgrace to end all disgraces. It doesn't even make any sense. There is no reason why the Justice Department couldn't have snatched up everybody at HSBC involved with the trafficking, prosecuted them criminally, and worked with banking regulators to make sure that the bank survived the transition to new management. As it is, HSBC has had to replace virtually all of its senior management. The guilty parties were apparently not so important to the stability of the world economy that they all had to be left at their desks.

So there is absolutely no reason they couldn't all face criminal penalties. That they are not being prosecuted is cowardice and pure corruption, nothing else. And by approving this settlement, Breuer removed the government's moral authority to prosecute anyone for any other drug offense. Not that most people didn't already know that the drug war is a joke, but this makes it official.