Prosecution

In a major, broad-ranging report released Thursday, the Associated Press declared that "After 40 Years, $1 Trillion, US War on Drugs Has Failed to Meet Any of Its Goals." The report notes that after four decades of prohibitionist drug enforcement, "Drug use is rampant and violence is even more brutal and widespread."

The AP pointedly notes that despite official acknowledgments that the policy has been a flop, the Obama administration's federal drug budget continues to increase spending on law enforcement and interdiction and that the budget's broad contours are essentially identical to those of the Bush administration.

Here, according to the AP, is where some of that trillion dollars worth of policy disaster went:

• $20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico -- and the violence along with it.
• $33 billion in marketing "Just Say No"-style messages to America's youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have "risen steadily" since the early 1970s to more than 20,000 last year.
• $49 billion for law enforcement along America's borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.
• $121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.
• $450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the US were serving sentences for drug offenses. [Editor's Note: This $450 billion dollar figure for federal drug war prisoners appears erroneous on the high side. According to Department of Justice budget figures, funding for the Bureau of Prisons, as well as courthouse security programs, was set at $9 billion for the coming fiscal year.]

The AP notes that, even adjusted for inflation, the federal drug war budget is 31 times what Richard Nixon asked for in his first federal drug budget.

Harvard University economist Jeffrey Miron told the AP that spending money for more police and soldiers only leads to more homicides. "Current policy is not having an effect of reducing drug use," Miron said, "but it's costing the public a fortune."

"President Obama's newly released drug war budget is essentially the same as Bush's, with roughly twice as much money going to the criminal justice system as to treatment and prevention," said Bill Piper, director of national affairs for the nonprofit Drug Policy Alliance. "This despite Obama's statements on the campaign trail that drug use should be treated as a health issue, not a criminal justice issue."

"For the first time ever, the nation has before it an administration that views the drug issue first and foremost through the lens of the public health mandate," said economist and drug policy expert John Carnevale, who served three administrations and four drug czars. "Yet... it appears that this historic policy stride has some problems with its supporting budget."

Of the record $15.5 billion Obama is requesting for the drug war for 2011, about two thirds of it is destined for law enforcement, eradication, and interdiction. About one-third will go for prevention and treatment.

The AP did manage to find one person to stick up for the drug war: former Bush administration drug czar John Walters, who insisted society would be worse if today if not for the drug war. "To say that all the things that have been done in the war on drugs haven't made any difference is ridiculous," Walters said. "It destroys everything we've done. It's saying all the people involved in law enforcement, treatment and prevention have been wasting their time. It's saying all these people's work is misguided."

Uh, yeah, John, that's what it's saying.

Canadian "Prince of Pot" Marc Emery's battle to avoid being extradited to the US to serve a five-year federal prison sentence for selling pot seeds over the Internet continues as the clock ticks down toward May 10 -- the date by which Canadian Justice Minister Rob Nicholson is to decide whether to okay his extradition or not. Emery and his supporters are fighting to the bitter end, and they're picking up some significant support along the way.

Marc and Jodie Emery (courtesy Cannabis Culture)

Emery was Canada's best known marijuana legalization advocate and a leading funder of marijuana reform groups there and in other countries when he was arrested in Vancouver on a US warrant for marijuana seed-selling after being indicted by a federal grand jury in Seattle. He faced up to life in prison under the US charges.

Emery, his supporters, and other marijuana reformers have argued that he was arrested for political reasons -- for his support of the legalization cause -- and the gleeful words of then DEA administrator Karen Tandy provided valuable ammunition for the claim. Emery's arrest was "a significant blow not only to the marijuana trafficking trade in the US and Canada, but also to the marijuana legalization movement," Tandy said in a statement the day of the bust.

"His marijuana trade and propagandist marijuana magazine have generated nearly $5 million a year in profits that bolstered his trafficking efforts, but those have gone up in smoke today. Hundreds of thousands of dollars of Emery's illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canada. Drug legalization lobbyists now have one less pot of money to rely on," Tandy gloated.

For four years, he and his employees and fellow indictees, Michelle Rainey and Greg Williams, negotiated with federal prosecutors, before Rainey and Williams struck plea deals that allowed them to simply remain in Canada. Then, last September, Emery himself agreed to a plea bargain that would see him serve five years in US prison.

Emery was detained in Canada on September 28 and was jailed until mid-November before he was released pending the justice minister's decision on whether to approve his removal to the United States. Since then, the campaign to block his extradition has gone all out. Even in prison, Emery did podcasts -- "potcasts," the magazine calls them -- and since his release, he has been as media-friendly as ever. He has used his Cannabis Culture magazine as a bully pulpit and established a No Extradition! web site to further the cause.

The high point of the campaign so far came on March 12 when three members of parliament, Conservative MP Scott Reid, New Democratic MP Libby Davies, and Liberal MP Ujjal Dosanjh stood before parliament in Ottawa to deliver the petitions. All three told the Commons that extraditing Emery for what is considered a non-serious offense in Canada was unfair.

MP Reid, a Conservative leader in the House, reminded the Commons that the Extradition Act specifies that the justice minister "shall refuse to surrender a person when that surrender could involve unjust or undue or oppressive actions by the country to which he is being extradited."

Reid pointed out that Health Canada used to refer medical marijuana patients to Emery's seed bank. He also noted that Canadian courts had found that $200 fines were appropriate for seed sellers, while Emery faced up to life for the same offense in the US.

"It appears to me that we have assisted a foreign government arresting a man for doing something that we wouldn't arrest him for doing in Canada," said MP Dosanjh. "As a former premier and a former attorney-general, I sense a certain degree of unfairness in the process. Countries don't usually extradite people to countries where they could face inordinate penalties."

"Many dedicated individuals have collected approximately 12,000 petitions reflecting a strong belief that Mr. Emery or any Canadian should not face harsh punishment in the US for selling cannabis seeds on the Internet when it is not worthy of prosecution in Canada," said MP Davies. "The petitioners call on Parliament to make it clear to the Minister of Justice that such an extradition should be opposed. I am very pleased to present this; I think it is a very strong reflection of Canadians' views on this matter and we hope that the Parliament of Canada will act on this, and certainly the Minister of Justice will take this into account."

"My prospects are getting better," said an ever optimistic Emery. "There have been more than 50,000 communications -- phone calls, letters, emails -- to the justice minister, and we have members of all four major political parties, including the governing party, presenting petitions urging the minister not to extradite. We also have the last three mayors of Vancouver agreeing to sign a statement urging the government not to extradite."

Support is palpable in his adopted hometown, Emery said. "I can't go 50 feet in this city without people stopping me on the street," he said from his downtown Vancouver building. "I have lots of support in this province and throughout the country. I enjoy a lot of positive affirmation. For me, this has been excellent -- I've been giving interviews all over the world, and the movie 'Prince of Pot' is being translated into Mongolian! The national TV network there has permission to do two documentaries on pot, and I'm in both of them."

Now, all eyes turn toward Justice Minister Nicholson. A month from now, he will decide whether to extradite Emery or not -- or he may punt. The minister has the option of applying for an extension on his decision.

There is precedent for the minister to seek an extension, said attorney Kirk Tousaw, who has worked on Emery's case. "Renee Boje was committed for extradition, and the decision sat on the desk of three different justice ministers for five years," he pointed out. "Renee was a US citizen who committed offenses in America, so she seemed like a much more reasonable prospect for extradition than Marc, who has never gone to America or committed any crimes there."

In the meantime, the campaign to keep Emery in Canada continues to gather support and argue the position that his was a politically motivated prosecution. "If the minister believes the prosecution to be politically motivated, he is prohibited from extraditing," said attorney Kirk Tousaw, who has worked on Emery's case. "I don't know if he will take that position. The minister may need a lot of time to consider his options."

The calculations may be as much political as legal, Tousaw said. "This is a minority Conservative government that is attempting to pass unpopular mandatory minimum sentences for drug crimes, and there will be an election sometime this year or early next year," he argued. "I think that extraditing Marc Emery will be politically costly to the Conservative Party. I'm not sure they can afford to do it if they want to form a majority government."

"The government does want to extradite me," said Emery, "but the public pressure not to do it is substantial. There is nothing to be gaining by extraditing me, and it will piss off a couple of million voters in the next election."

A month from now, we will know whether the Conservative government is willing to sacrifice the gadfly Emery on the altar of the drug war, or whether it is too concerned about the potential backlash to either reject extradition or postpone the decision.

Colorado's burgeoning medical marijuana community is up in arms after a series of DEA raids in recent weeks. First, DEA agents hit medical marijuana laboratories in Denver and Colorado Springs that tested for THC levels and contaminants such as mold. Then, late last week, DEA agents raided and arrested Highland Park medical marijuana grower Chris Bartkowicz after he appeared in local media talking about his grow operation.

Colorado medical marijuana certificate (courtesy cannabisculture.com)

The DEA actions appear to fly in the face of Obama campaign promises to stop the raids. Those promises were, the medical marijuana community thought, kept when Attorney General Eric Holder issued a Department of Justice memorandum instructing federal officials to lay off medical marijuana in states where it is legal -- unless the provider is violating both state and federal law. That memo went out to all US Attorneys, as well as acting DEA administrator Michele Leonhart, who has since been nominated to be the permanent administrator of the agency.

The October Justice Department memo said the feds should not go after people in "clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." The memo said nothing about "large grows" or testing labs not being included.

Denver DEA Special Agent in Charge (SAC) Jeffrey Sweetin at first sounded as if he had missed the memo. In an interview last Saturday with the Denver Post he threatened to go after the state's rapidly increasing number of medical marijuana dispensaries. "Technically, every dispensary in the state is in blatant violation of federal law," he said. "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."

In an interview with Denver's TV 9 News, Sweetin carried on in the same vein, saying that even though state law allows for medical marijuana, federal law does not. "We will continue to enforce the federal law. That's what we are paid to do," he said.

Sweetin said the Justice Department guidelines give him discretion. "Discretion is: I can't send my DEA agents out on 10-plant grows. I'm not interested in that, it's not what we do. We work criminal organizations that are enterprises generating funds by distributing illegal substances," Sweetin said.

By Tuesday, though, Sweetin was singing a slightly different tune in an interview with Westword. "We are not declaring war on dispensaries," he said -- though he added with a laugh, "If we were declaring war on dispensaries, they would not be hard to find. You can't swing a dead cat around here without hitting thirty of them."

Sweetin also took a pot shot at Denver medical marijuana attorney Robert Corry, who filed a complaint with the Department of Justice inspector general's office alleging waste, fraud, abuse, and misconduct against the department and the DEA. The complaint asks the inspector general to sanction Sweetin and the other agents involved.

People like Corry and others critical of the raids are doing people a disservice, Sweetin said. "I think the people who claim to represent marijuana growers in this state are trying to create this fear, and I think that's sad," he said without a trace of irony.

The question facing Colorado's medical marijuana community is whether Sweetin has gone off the reservation or whether the raids represent a shift in the Obama administration's approach to medical marijuana in the states where it is legal.

"It's hard to say whether it's a rogue law enforcement effort limited to Colorado or whether we have something to worry about in regards to not keeping the promise made by the Justice Department memo last October," said Kris Hermes, spokesman for the medical marijuana advocacy group Americans for Safe Access. "It's worth noting that two days before the first lab raid that President Obama nominated Michele Leonhart to head DEA. She's already acting administrator, a holdover from the Bush administration, but it was alarming to activists and advocates to find out we were going to get more of the same. She was the deputy administrator under Karen Tandy when the DEA carried out more than 200 aggressive raids against the people of California," he said.

"It seems like a rogue office," said Brian Vicente, leader of the marijuana law reform group Sensible Colorado. "Sweetin is saying marijuana is not a medicine as if he were a doctor, and the US Attorney is following his lead to prosecute the providers. This is very concerning. Sweetin has long been an absolute enemy of marijuana, and now, an enemy of Colorado voters, who voted for medical marijuana."

"Hopefully, this is just an instance of rogue law enforcement, and Obama and Holder will rein it in, but we're not waiting to find out," Hermes said. "We are right now preparing an alert to members to write to the administration expressing their frustration with the DEA's apparent failure to comply with Justice Department policy."

Vicente and dozens of other Sensible Colorado members and medical marijuana patients spent part of Thursday protesting the raids in front of the building where President Obama happened to be making an appearance. "There were probably 75 of us protesting and handing out literature aimed at alerting Obama to these rogue actions and calling on him to tell these agents to quit going after our patients and providers," he said. "We handed out flyers to everyone in the 1,000-person line waiting to get into the event, and we got considerable press coverage."

The Colorado medical marijuana movement is also gearing up against the looming threat, said Vicente. "We're working with a number of local and national groups to establish a firm emergency response plan like they did in California," he said. "We're somewhat fearful that Colorado may become a new DEA focus, and we want to be an organized presence."

As for grower Bartkowicz, who now faces federal drug dealing charges, his case should be dealt with in the state courts, not the federal courts, said Vicente. "We're not sure if he was or wasn't in compliance with state law, but we think the only place where that question could be fairly litigated is state court. The federal courts don't even recognize medical marijuana and are thus unequipped to determine if someone is in compliance with state law. We are asking them to drop the federal charges and let the state courts sort it out."

"I've seen no evidence of a violation of state law," said Hermes. "If there is no violation of state law, defense attorneys should be able to go to federal court and point to the memo and say the Justice Department should comply. The spirit of the policy is to stay out of enforcement when people are complying with state law. By that token, no federal charges should have been filed."

The war over medical marijuana is far from over. But now, it looks like the new battlefield could be Colorado.

Beginning January 1, prosecutors in Harris County, Texas, will no longer file felony drug charges against people found with less than one one-hundredth of a gram of illegal drugs. Currently in Houston, people caught with trace amounts of drug or holding crack pipes with drug traces are routinely charged with felonies.

crack pipe

The cops are not happy. "It ties the hands of the officers who are making crack pipe cases against burglars and thieves," said Gary Blankinship, president of the Houston Police Officers' Union. "A crack pipe is not used for anything but smoking crack by a crack head. Crack heads, by and large, are also thieves and burglars. They're out there committing crimes," he told the Houston Chronicle.

But Lykos told the Chronicle there were good reasons to change the policy. Less than one-hundredth of a gram of a drug is not enough for more than one drug test, and defense attorneys often want to run their own tests, she said.

The policy change also "gives us more of an ability to focus on the violent offenses and the complex offenses," she added. "When you have finite resources, you have to make decisions, and this decision is a plus all around."

Last year, Harris County prosecutors filed 46,000 felony cases, with 13,713, or nearly 30%, for possession of less than a gram of controlled substances. It is difficult to say how many of those would not have been charged as felonies under the new policy because most were charged only as possession of less than a gram.

While police are grumbling, defense attorneys are beaming. "It's a smart move and it's an efficient move and it lets us get down to the business of handling criminal cases of a more serious magnitude," Nicole Deborde, president-elect of the Harris County Criminal Lawyers Association, told the Chronicle.