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May 17, 2012

State judge makes personal plea for right to use medical marijuana

Today's New York Times has this remarkable new op-ed authored by Justice Gustin Reichbach, who serves on one of New York's state Supreme Courts in Brooklyn. The op-ed is headlined "A Judge’s Plea for Pot," and here are excerpts:

Three and a half years ago, on my 62nd birthday, doctors discovered a mass on my pancreas. It turned out to be Stage 3 pancreatic cancer.  I was told I would be dead in four to six months.  Today I am in that rare coterie of people who have survived this long with the disease.  But I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana....

My survival has demanded an enormous price, including months of chemotherapy, radiation hell and brutal surgery.... Nausea and pain are constant companions. One struggles to eat enough to stave off the dramatic weight loss that is part of this disease. Eating, one of the great pleasures of life, has now become a daily battle, with each forkful a small victory. Every drug prescribed to treat one problem leads to one or two more drugs to offset its side effects. Pain medication leads to loss of appetite and constipation. Anti-nausea medication raises glucose levels, a serious problem for me with my pancreas so compromised. Sleep, which might bring respite from the miseries of the day, becomes increasingly elusive.

Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite, and makes it easier to fall asleep.  The oral synthetic substitute, Marinol, prescribed by my doctors, was useless.  Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance.  I find a few puffs of marijuana before dinner gives me ammunition in the battle to eat.  A few more puffs at bedtime permits desperately needed sleep.

This is not a law-and-order issue; it is a medical and a human rights issue.  Being treated at Memorial Sloan Kettering Cancer Center, I am receiving the absolute gold standard of medical care.  But doctors cannot be expected to do what the law prohibits, even when they know it is in the best interests of their patients.  When palliative care is understood as a fundamental human and medical right, marijuana for medical use should be beyond controversy....

Cancer is a nonpartisan disease, so ubiquitous that it’s impossible to imagine that there are legislators whose families have not also been touched by this scourge.  It is to help all who have been affected by cancer, and those who will come after, that I now speak.

Given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue.  But I recognize that fellow cancer sufferers may be unable, for a host of reasons, to give voice to our plight.  It is another heartbreaking aporia in the world of cancer that the one drug that gives relief without deleterious side effects remains classified as a narcotic with no medicinal value.

Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease.  I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year.  Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.

Ever the would-be strategic litigator, I cannot help but wonder if anyone has given serious thought to bringing a federal declaratory judgment action with Justice Reichbach pressing the claim that it would be a violation of Fifth, Eighth and/or Tenth Amendments for him to be subject to criminal prosecution for his use of marijuana under these circumstances.  The Supreme Court has ruling that federal prohibition of pot has no statutory exception for medical use and that this prohibition is a legitimate exercise of Congress's Commerce Clause powers.  But the Justices have never ruled directly concerning whether there may be an individual liberty right for a very sick person to be able to obtain and use the only drug that seems to provide personal medical relief without fear of federal prosecution. 

May 17, 2012 at 09:47 AM | Permalink

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After Gonzalez v. Raich was ruled upon on commerce grounds, a liberty claim was tried, but it lost pursuant to Washington v. Glucksberg. The USSC didn't take the case. The fact a certain drug "seems" to be the only relief is something one personally can deem convincing (I do) but it's a pretty long-shot claim. Tossing in 8th and 10th Amendment claims really is.

NY does not have a CA type medicinal marijuana law in place. The online article has a link that notes Connecticut did just pass a limited law of that sort. Hopefully, op-eds like this will help the efforts in NYS too.

Posted by: Joe | May 17, 2012 11:25:10 AM

Some folks might think it's okay to allow this judge some relief, but next thing you know medically-sanctioned reefers will end up in the hands of primary school children. Eternal vigilance, people!

Posted by: Bill K | May 17, 2012 12:51:16 PM

Is Bill Otis gathering up his raid gear and heading over to Justice Reichbach's home with a battering ram?

Surely, none of us are safe as long as Justice Reichbach is at liberty while smoking marijuana. Good Heavens! To hell with what any doctors say about the medicinal value of marijuana. Justice Reichbach must be jailed immediately! Right, Bill?

Posted by: Calif. Capital Defense Counsel | May 17, 2012 1:27:35 PM

Off topic to this post but relevant to this blog because you have been covering the topic lately, Doug.

A notable new essay is up at Slate by Emily Blazeon discussing why sentences for male and female sex offenders are different.

http://www.slate.com/articles/news_and_politics/crime/2012/05/gabriela_compton_received_lifetime_probation_for_sexually_abusing_two_boys_.html?google_editors_picks=true

Posted by: Daniel | May 17, 2012 2:26:09 PM

To be reasonable, I propose the following: That smoked marijuana be legalized by both state and federal law under the following circumstances:

1. The patient be suffering from terminal cancer or other catastrophic disease or injury. (Pancreatic cancer would qualify, since its morality rate is 97%).

2. That it be determined that smoked marijuana is the only remedy available for serious symptoms the patient is suffering, and that Marinol or some similar drug is clearly inadequate.

3. That the marijuana be prescribed by a physician trained in such prescriptions and approved by the FDA or NIH.

4. That the marijuana be smoked under the supervision of a health care professional.

5. That any distribution of the marijuana outside the aforementioned rules be a criminal offense punishable by a mandatory minimum of 60 days' imprisonment.

A regimen like that would make it possible for Judge Reichbach to get what he needs. I suspect there will be a lot of opposition to my proposal, however, because it is sufficiently disciplined as to assure that ONLY Reichbach and similarly genuinely ill people can get it. Thus is frustrates the real agenda of so-called "medical marijuana," that being unlimited recreational use masquerading as "compassionate medicine."

On the other hand, my plan is unlikely to be needed in any event. The chances that Reichbach is actually going to get prosecuted for what he is doing are, as we all know, asymptotic to zero.

If the "medical marijuana" movement were really about dreadful cases like Reichbach's, it wouldn't be having any trouble from the Obama Administration. The reason it does have trouble is that it's a fraud, and an increasingly transparent fraud at that. It advertises cases like this, but the reality under the advertisement is that people troop in to "Oaksterdam," etc., to get "medical" pot to "cure" their "depression" -- in other words, and as everyone knows, to get high.

In cases of genuine, documented need, sure. Otherwise, nope.

Posted by: Bill Otis | May 17, 2012 2:26:17 PM

CCDC --

"Is Bill Otis gathering up his raid gear and heading over to Justice Reichbach's home with a battering ram?"

No, your clients are heading over there to burglarize the place to finance their next hit.

"Justice Reichbach must be jailed immediately! Right, Bill?"

At some point, you might want to join the real world. You know full well that absolutely nothing is going to happen. Of course if you think otherwise, I'll wager you a hundred bucks here and now that the Judge is not approached by the police on account of his use of marijuana.

Are we on?

Posted by: Bill Otis | May 17, 2012 2:32:30 PM

Marijuana should be legal "." That said, I applaud this judge for making a stand; after all, an unjust law is no law at all.

Posted by: Posner | May 17, 2012 3:21:20 PM

Not sure what it is about medicinal marijuana that warrants such strict guidelines when more dangerous drugs are used as medicine w/o them. The "reasonableness" of such a proposal is given a half of clap, I guess.

The fact that the judge won't be arrested helps make the case for the arbitrary nature of the law in place. I'll take away the "guess."

Posted by: Joe | May 17, 2012 3:38:04 PM

Why won't the judge be arrested? After all, the law plays no favorites. If he can't do the time, he shouldn't have gotten sick.

Posted by: Bill K | May 17, 2012 3:43:57 PM

So Drug Warrior Bill -

Do you now acknowledge that marijuana should not be listed as a Schedule I controlled substance?

Why do you think any free person should give a f*#k about what you consider the reasonable conditions under which he/she should be able to voluntarily, knowingly consume a substance for purposes that provide him/her with medical relief? Do you realize how insane and freakish it is for you to try to control the circumstances under which an adult consumes a naturally-growing herb for the purpose of controlling pain and nausea?

Posted by: Calif. Capital Defense Counsel | May 17, 2012 4:00:22 PM

Ah, yes. The "naturally growing herb" myth.

Virtually none of the marijuana that is smoked in this country is a "naturally growing herb." They smoke a genetically bastardized version that barely resembles the original marijuana plant in its chemical composition.

The "naturally growing herb" wouldn't even get a habitual smoker stoned. It is like saying crack is a natural substance because it comes from cocaine, which came from coca.

Posted by: TarlsQtr | May 17, 2012 4:09:21 PM

Joe --

"The fact that the judge won't be arrested helps make the case for the arbitrary nature of the law in place. I'll take away the 'guess.'"

You would need to the check that with CCDC, who seems to think the raid is imminent.

And don't complain when you get what you seek. For years, we have heard that simple possession should be the lowest law enforcement priority. When that turns out to be the case, and only a small fraction of the people who do it get arrested, the folks who sought this policy are not well positioned to complain that they succeeded.

Posted by: Bill Otis | May 17, 2012 4:35:09 PM

CCDC --

"Do you now acknowledge that marijuana should not be listed as a Schedule I controlled substance?"

I'll "acknowledge" it when the CSA is amended as I suggested, so that the "medical" part of "medical marijuana" has actual meaning, rather than the fraudulent meaning that has inspired the Obama Administration, of all things, to crack down.

"Why do you think any free person should give a f*#k about what you consider the reasonable conditions under which he/she should be able to voluntarily, knowingly consume a substance for purposes that provide him/her with medical relief?"

Ummmm......let's see.........Because such a person might realize that the myriad benefits of freely (and wisely) choosing to live under the rule of law requires complying with democratically enacted statutes even when they disagree with them?

Oh.....wait......If a person is sufficiently sure he's right, and endlessly quotes Reason magazine to "prove" it, he can do whatever he wants! Law is for suckers!

CCDC, you've been listening to your clients too much.

Like I said, go win an election.

"Do you realize how insane and freakish it is for you to try to control the circumstances under which an adult consumes a naturally-growing herb for the purpose of controlling pain and nausea?"

Actually, the medical profession does much or most of the controlling. Do you really think people should be writing their own prescriptions for oxycodone? Morphine?

I'd suggest that you try to hear yourself when you come up with things like calling a long-existing national consensus "insane and freakish," but you're way too far gone to hear yourself anymore.

Posted by: Bill Otis | May 17, 2012 4:56:50 PM

The suggestion about how to limit marijuana use would indeed make it more difficult for anyone to use it.

Bath Salts have been removed from retail shelves and law enforcement will begin to prosecute. In Ohio shortly after this was reported hand sanitizers became the target of investigation. Our local paper reported that the ingredients in bath salts were now schedule l drugs.

I really don't know why we haven't required spray paint and glue be locked up and only made available if a government official certified that you could use them on a government approved project. Both of these substances have led to more deaths than marijuana.

Mean while, back at the ranch, a known mood altering substance is being abused daily for non-medicinal purposes. We already know the outcome of prohibition - let's not try it again. Why can't the gevernment suggest, not prosecute. It would be much cheaper and would allow citizens to make some decisions about their life and health.

How much government can we pay for to protect us from all harm? I'm not a marijuana smoker, nor am I an anarchist akin to Emma Goldman. I just believe that the government should protect personal freedoms, not prosecute them.

Posted by: beth | May 17, 2012 5:01:40 PM

TarlsQtr --

Don't worry, CCDC thinks crack should be legalized, too. He has said so quite openly. This is the same guy who calls the huge majority opposing wholesale drug legalization "insane and freakish."

He really does remind me of the proud mother who, watching the troops parade down Main Street, proclaims, "Look at my boy! He's the only one marching in step!"

Posted by: Bill Otis | May 17, 2012 5:05:44 PM

Bill K --

"Why won't the judge be arrested? After all, the law plays no favorites."

Which is precisely why he won't get arrested. Only the tiniest percentage of people who use small amounts of pot get arrested. As if you didn't know.

"If he can't do the time, he shouldn't have gotten sick."

And of the millions who use the amounts he does, how many "do the time?"

P.S. As you also know, the huge majority of cancer patients don't smoke pot. As you also know, or should know, the "medical marijuana" movement as it actually exists -- see, e.g., California -- has zip to do with medicine and a whole lot to do with a slightly disguised form of recreational use. That would be the same recreational use California voters rejected a year an a half ago.

But, sure, an army of potheads hiding behind a handful of cancer patients has just a world of class.

Posted by: Bill Otis | May 17, 2012 5:16:19 PM

What's the difference between Angel Raich and Justice Reichbach? She has a brain tumor; he has pancreatic cancer. Marijuana provides relief for the pain and nausea they both endure. Bill Otis and TarlsQtr aren't buying it; they can't trust Raich and the judge and their doctors to handle their own voluntary medicinal use of marijuana. Bill Otis and TarlsQtr want to get up in the business of the judge and Raich; they want to either deny them the use of their chosen medicine, or they want to strictly monitor it. Drug Warrior Bill tells us not to worry --- the judge won't be raided. After all, the judge has a black robe. But what about Raich? What about the thousands of others like her, who don't have a black robe, but who use marijuana for medicinal purposes, based upon recommendations from their physicians? Should the fate and liberty of voluntary, medicinal users of marijuana be left to the whim of authoritarians like Drug Warrior Bill and TarlsQtr and Obama?

Posted by: Calif. Capital Defense Counsel | May 17, 2012 5:35:51 PM

"The "naturally growing herb" wouldn't even get a habitual smoker stoned. It is like saying crack is a natural substance because it comes from cocaine, which came from coca."

Clearly, you've never been to the Himalayas. :)

Posted by: Jay | May 17, 2012 5:44:37 PM

Gosh darn it Drug Warrior Bill !!

Those pesky potheads pulled a fast one on the voters of California when they tricked them into overwhelmingly voting for Prop. 215 over 15 years ago. And, Golly Gee Wilikers, they duped the Calif. legislature when they got them to pass SB 420. (Those slick stoners even got them to use the magic 420 number.)

But, thankfully, we have domineering despots like you around to look out for our interests. You know better than us and our doctors. You know when pot is being used recreationally (horrors !!!), and when it is being used medicinally.

So, let's just do away with duly enacted initiatives and legislation in California. Instead, let's just be bound by your verbal flatulence. Let's have a system in which you, and you alone, decree the people who can use marijuana for medicinal purposes --- all 7 of them. Then, let's round the rest of them up, and slam 'em in jail for a few decades. Yee Haw !! George W. Bush style justice. Ain't it great?

Posted by: Calif. Capital Defense Counsel | May 17, 2012 6:03:23 PM

CCDC --

Like I say, you're too far gone to be in any serious debate about "medical" marijuana, but you're just such an irresistible foil.

"Drug Warrior Bill tells us not to worry --- the judge won't be raided. After all, the judge has a black robe."

You need to tell that to Judge Jack Camp (went to prison for a drug offense), who was featured on many entries on this site. Or you could check with Harry Claiborne, Otto Kerner, Walter Nixon and the bunch who got nailed in Operation Greylord.

If you think a druggie judge is going to get protected by his black robe, you just don't know history. Not that this is a surprise. And not that you wouldn't be happy to have such a guy as a client, when your line would be -- directly contrary to your line now -- that the government is picking on judges BECAUSE OF their "black robe."

"But what about Raich?"

What about her? She got review on the merits by the Supreme Court, something almost no one gets. And she lost. If you want to file a petition for rehearing on her behalf, feel free. Otherwise, grow up. It wasn't that close, and two of the three dissenters are no longer on the Court. Think you're getting the successors (Roberts and Alito)? You're not getting Kagan and Sotomayor either, while we're at it. And you're still losing Breyer and Ginsburg. But other than that....

"Should the fate and liberty of voluntary, medicinal users of marijuana be left to the whim of authoritarians like Drug Warrior Bill and TarlsQtr and Obama?"

No, it should be left to the law as enacted by Congress and reviewed by the courts, including the Supreme Court.

Your problem, CCDC, is that you're so far gone you actually can't tell the difference between authoritarianism and representative government. This is why you won't answer my point about the rule of law. It just doesn't register with you. What registers with you is vigilantism.

Posted by: Bill Otis | May 17, 2012 6:29:07 PM

The point is that if we take the anti-legalization position seriously, the judge should be arrested, but since the law is arbitrarily applied, it is not going to happen. Legal officials saying in major newspapers that they are law breakers is the sort of thing that is pretty blatant incitement to lawbreaking. But, such things are not addressed equally. CCDC knows this quite well.

The legalization position wants the law rationally applied, that is, make it legal, not just for the well off.

Posted by: Joe | May 17, 2012 7:30:50 PM

Joe --

"The point is that if we take the anti-legalization position seriously, the judge should be arrested, but since the law is arbitrarily applied, it is not going to happen."

Spoken like someone who has never had the responsibility of managing law enforcement priorities on a limited budget. "Applied using some common sense" is hardly the same thing as "applied arbitrarily."

The legalizers would be the first to howl if Reichback got arrested. Intimidating freedom of speech! Intimidating the judiciary! Wasting time and money on prosecutorial grandstanding while serious crime gets ignored! I'm sure you know the lines by now.

Almost all pot use anywhere close to the kind involved here gets ignored. Simple possession is de jure illegal but de facto legal in this country and everybody knows it. (Sure, you can always point to an exception here and there).

I agree with you that there are some problems in a judge announcing that he intentionally breaks the law. But having pancreatic cancer -- the most deadly cancer known -- kind of makes the case, you know, different.

If DOJ were to state that it will give a categorical pass to anyone two and a half years into Stage 3 pancreatic cancer, I really can't imagine any normal person would object. Extremely unusual cases call for at least a modest degree of judgment. This seems like as strong a case as you're likely to see for the very prosecutorial discretion that legalizers constantly demand be shown in this area.

If you want something more far-reaching, then, as I've been saying, go win an election.

Posted by: Bill Otis | May 17, 2012 8:31:48 PM

The Judge wrote a lovely clarion call for the decriminalization of medical marijuana.

Former Drug AUSA Bill Otis doesn't get it.

The judge isn't asking for mercy for himself. He is expressly speaking out for others who lack the stature and voice he has.

But Freedom-Crushing, Drug-Crusading Bill implies that this is all a lot of to do about nothing, because the judge won't be arrested. That's not what the judge's concern was. The judge eloquently wrote on behalf of others. The judge does not want people like Bill and his ilk storming into the homes and offices of medical marijuana patients. But, Bill doesn't give a good God-Damn about that. Bill and his jack-booted buddies will haul you off to jail if you have marijuana pursuant to a doctor's recommendation if you have a Grateful Dead sticker on your car, or if Bill sniffs out some other evidence that registers in his paranoid mind as evidence that you are just a recreational marijuana user and not a real medicinal marijuana user. 'Cause, Bill knows best. He knows better than the judge. He knows better than your doctor. And, he knows better than you. He is the all-knowing Drug Cowboy.

Posted by: Calif. Capital Defense Counsel | May 17, 2012 9:04:57 PM

Wow, I go to the dentist for a couple of hours and come back to one of the most interesting threads I've seen here in the 3 weeks I've been a subscriber.

@TarlsQtr - the current strains of cannabis found at your friendly neighborhood dispensary are as "naturally growing" as the strawberries and bananas you pour over your fruit loops every morning. It's called natural selection.

@BillOtis - glad to see your sarcasm radar is functioning at 11 as usual. I assume the judge won't be charged, just like Peter McWilliams wasn't for saying the same basic things 15 years ago when he was dealing with chemo. However, what if one of the judge's friends is swept up while on a purchase errand? Is it fair to subject his friends and family to that paranoia?

That last comment about "an army of potheads".... why do you even care?

Suppose there was a survey.

Choice A: decriminalize cannabis, likely to be followed by cocaine and psychedelics depending on the outcome of ending pot prohibition.

Choice B: follow the zero-tolerance "broken windows" policies that started in the 1980s, and led to the current state where we lead the world in incarceration.

Anyone who was around in the late 70s and was paying attention knows Choice B would win easily.

I'll bet that Choice B would still win today. I might as well unsubscribe. At least novocaine is still legal.

Posted by: Bill K | May 17, 2012 9:11:01 PM

CCDC --

I will let your almost entirely ad hominem post speak for itself. I'll add only what you seem determined not to get: The rule of law presupposes individual disagreement, but obedience to anyway, one law or another, subject to your right to persuade the legislature to adopt your view. Have at it. Until then, your prescription is nothing short of vigilantism.

Bill K --

"However, what if one of the judge's friends is swept up while on a purchase errand? Is it fair to subject his friends and family to that paranoia?"

Other people's mental diseases are beyond my power to remedy.

"That last comment about 'an army of potheads'.... why do you even care?"

Why do you care why I care? My right to take a dissenting (on this site) view is hardly subject to your evaluation of my motives, nor are they relevant to the debate about drug legalization on the merits -- a debate you have spent 40 years losing. That is really not my doing.

Posted by: Bill Otis | May 17, 2012 10:06:22 PM

Hey Bill, I have a few comments on your proposed limitations:

1. BO: "The patient be suffering from terminal cancer or other catastrophic disease or injury. (Pancreatic cancer would qualify, since its morality rate is 97%)."

XX: Why should we limit use of marijuana to those who meet such a standard? We don't use that standard for any other medication. What percent of legally prescribed pharmaceutical medications would meet that test?]

2. BO: "That it be determined that smoked marijuana is the only remedy available for serious symptoms the patient is suffering, and that Marinol or some similar drug is clearly inadequate."

XX: Again, why is this the standard ("only remedy available") when it is the standard for no prescribed drug? Also as many medical marijuana users will attest – sometimes other drugs do "work," but their side effect profiles are so debilitating that marijuana is preferable. Last year I was at a state legislature watching testimony in favor of a MM law, and many testified that they used to be on more serious drugs like oxycodone which "worked" but are much more dangerous and addictive and had a much more negative impact on their lives. This was a surprisingly common story. In sense, MM may lead to less serious drug use and abuse as patients trade more dangerous drugs for marijuana which is ultimately rather benign by comparison.

3. BO: "That the marijuana be prescribed by a physician trained in such prescriptions and approved by the FDA or NIH."

XX: Prescriptions are required in many states. Because of the politics of illegal drug use, FDA and NIH have done as much as they can to limit studies about marijuana's potential use as a pharmacological medication. The roadblocks placed in front of those tests is so much greater than what drug companies face to test their sometimes quite dangerous, unproven drugs. I hope that changes, but it seems wrong for the government to do all it can to prevent the testing of marijuana and then to turn around and complaint that it's usefulness is unproven.

4. BO: That the marijuana be smoked under the supervision of a health care professional.

XX: Again this is the case with very few other drugs. Why would we want to disrupt the lives of sick people any more than we need to? If it's not dangerous for patients to administer themselves, why would we want them to miss work, miss time with loved ones, and in the case of very sick and immobile people, leave the comfort of bed and home if they don't need to?

5. BO: That any distribution of the marijuana outside the aforementioned rules be a criminal offense punishable by a mandatory minimum of 60 days' imprisonment.

XX: That would seem to serve very little purpose and cost a lot. Small time drug use is punished, sometimes with fines, sometimes with jail time. Bigger time drug use is already punished with jail time, sometimes with punishments much longer than 60 days.

Posted by: XX | May 17, 2012 10:10:26 PM

"Why do you care why I care? My right to take a dissenting (on this site) view is hardly subject to your evaluation of my motives, nor are they relevant to the debate about drug legalization on the merits -- a debate you have spent 40 years losing. That is really not my doing. "

I actually appreciate your presence here, Mr. Otis. I've been doing a fair bit of recent reading on the drug war, the "culture wars" of the Nixon-Carter-Reagan years, and the justice system over those past 40 years. It's easy to find cogent well-researched books on the "left", and I've been very impressed with William Stuntz's even-handed "Collapse of American Criminal Justice", but there's a definite paucity of work backing ["your winning side of the debate"]. Not even Ann Coulter seems to have anything to say on drug prohibition. So I welcome your point of view.

However I find most compelling Stuntz's case that drug prohibition is an enforcement tool used to work around the procedural limitations the Warren court left us with. I'm old enough to remember the outrage in the 70s. I was just 8 years old watching All in the Family, but looking back it's easy to see Archie Bunker's outrage at the welfare queens and potheads getting a free ride while he had to get up early and go to work every morning was a bellwether. That outrage got translated into mandatory minimum sentences, militarized police forces, a transfer of judicial powers from judges (who were letting the thugs go free) to prosecutors, a burgeoning private prison industry. The country we have today.

"Almost all pot use anywhere close to the kind involved here gets ignored. Simple possession is de jure illegal but de facto legal in this country and everybody knows it. (Sure, you can always point to an exception here and there)"

I've always thought the rule of law, a necessary condition for a democracy, means that the laws are applied to all equally. Are you suggesting this isn't the case?

Posted by: Bill K | May 17, 2012 10:55:59 PM

"Everyone in the States is dumb." - Gene Simmons, of Kiss

Posted by: Bill K | May 17, 2012 11:16:02 PM

XX --

I am the only one on this thread who has put forward suggested legislation that would actually help Judge Reichbach. My proposal would have at least a chance of passing. Your anything-goes proposal -- if that's what it is -- wouldn't. Ideological purity makes for good blog material but doesn't get much done.

And there's this difficulty as well: You just glide right past the main problem, which is that by far the biggest experiment with "medical marijuana" (California) has shown that it's a near-total fraud, and merely the stalking horse for recreational use, which got clobbered at the polls a year and a half ago. It's also the stalking horse for legalization of everything (which is, as CCDC has acknowledged, his actual agenda).

The "guidelines" that we were told would accompany the California experiment have become a joke, if they were ever anything else. The electorate is unlikely to be fooled again.

Posted by: Bill Otis | May 17, 2012 11:31:46 PM

Bill K --

Stuntz was a smart guy, and a good guy, but I agree with the criticism of his book set forth in the WSJ by my friend and former colleague, Professor Paul Cassell, http://online.wsj.com/article/SB10001424052970203633104576625401553519500.html

Archie Bunker makes a fine target for ridicule. This fact does not gainsay that crime skyrocketed in the late sixties and seventies. The rehabilitation/medical model for dealing with it wasn't working. Indeed, the longer we tried it, the more crime we got.

The American criminal justice has not collapsed. Instead, it has succeeded in cutting the crime rate in half in 20 years, http://www.disastercenter.com/crime/uscrime.htm Has any other social policy -- say, anti-poverty legislation -- done as well? Not exactly. There are more people below the poverty line now, zillions of dollars later, than at any time since the line was invented. But I don't hear anyone talking about giving up in the War on Poverty. To the contrary, I hear how we should spend yet more zillions to extend its failure.

"I've always thought the rule of law, a necessary condition for a democracy, means that the laws are applied to all equally. Are you suggesting this isn't the case?"

I'm glad to hear someone stick up for the rule of law, since the main pro-pot expositors on this thread seem to think they can decide for themselves which laws are to be obeyed, and that if one believes in democratic self-government, one is an "authoritarian."

Be that as it may, it has been true from the Founding that there are more crimes committed than can be prosecuted, so judgments must be made and priorities must be set. I scarcely feel like I need to become defensive about the fact that simple possession of small amounts of pot is not a priority. Or, as we used to say in the USAO, so many meth dealers, so little time.

Posted by: Bill Otis | May 18, 2012 12:01:40 AM

Every statistic I've seen that reports that crime is down doesn't include assaults, rapes, and murders on incarcerated inmates. Incarceration didn't lower the crime rate; it just relocated it.

I think many of us hanging around here would like to see a substantive justification for marijuana prohibition. Lately I've been hearing people in the law enforcement community make disparaging remarks about people who prefer to pick and choose their laws. But when an existing law has become discredited, and that time has arrived for cannabis, we need better excuses than a circular "it's illegal, so don't do it". As for running for election to change that law, that's why I ran that Gene Simmons quote above.

Here's a photo from South Africa 50 years ago that could be taken anywhere in many parts of America today, with slightly different contraband and weapons:

http://www.theatlantic.com/infocus/2012/05/50-years-ago-the-world-in-1962/100296/#img46

"South African police beat women with clubs in Durban, South Africa, on on April 17, 1962, when the women raided and set fire to a beer hall in protest of police action against their home brewing activities. (AP Photo)"

Posted by: Bill Kidder | May 18, 2012 1:40:37 AM

Obama and Romney should be questioned about this case and its larger implications.

When they give their standard, cowardly, wrong answers, people should listen to what Libertarian candidate, Gary Johnson, has to say about the subject. If he were elected president, he would immediately end the nonsensical, anti-scientific listing of marijuana as a Schedule I controlled substance. He would announce his disagreement with Raich v. Gonzalez, and exercise his article II authority to direct all federal executive officials to refrain from enforcing federal laws that unconstitutionally criminalize conduct made lawful under numerous state medical marijuana laws.

Democrats and Republicans have had their chance. They have failed miserably. Time for something new, fair, and decent.

Posted by: Calif. Capital Defense Counsel | May 18, 2012 5:24:59 AM

Bill Kidder --

"Every statistic I've seen that reports that crime is down doesn't include assaults, rapes, and murders on incarcerated inmates. Incarceration didn't lower the crime rate; it just relocated it."

That is so preposterous that I doubt you really believe it. There are over four and a half million fewer serious crimes PER YEAR now than there were 20 years ago, according to BJS statistics. The idea that all that's happened is that there have been four and a half million uncounted prison murders, rapes and assaults is at best unproven and at worst a fantasy. Nor did I know that prison murders go uncounted by BJS (or rapes or assaults either). Where did you get that idea? What is the source of your statistics? For that matter, specifically what statistics are you using? What are the numbers?

"I think many of us hanging around here would like to see a substantive justification for marijuana prohibition."

It's unhealthy. Most legalizers concede this, arguing instead that it's no more unhealthy than tobacco or booze, and should be treated the same way those are.

Isn't it odd how the people eager to apply criminal sanctions to environmental pollution -- on the theory that such pollution is unhealthy -- recoil from the same justification when applied to smoking dope.

"Lately I've been hearing people in the law enforcement community make disparaging remarks about people who prefer to pick and choose their laws."

So are people free to pick and choose their own laws? Are your students free to pick and choose which UCR policies they're going to obey? Are they told that at orientation?

"But when an existing law has become discredited, and that time has arrived for cannabis, we need better excuses than a circular "it's illegal, so don't do it".

Who gets to decide whether a law is "discredited" enough to disregard? Do I get to decide that my assessment of psychological research indicates that the age on consent should be moved to 8? Do I get to decide that banks are instruments of capitalist oppression, so it's OK to rob them? Do I get to decide that taxes are too high and move money from productive private uses to unproductive government uses, therefore I can skip paying my taxes this year?

Why shouldn't I get to decide all of that? What neutral criteria of general application are to be employed to make the "discredited" decision? Do those same criteria allow me (or any random private citizen) to decide that it's time, not just for pot, but for cocaine? LSD? Methamphetamine?

The social contract presupposes the surrender by individuals of some of their autonomy in exchange for the myriad and highly important benefits of living under the rule of law. Indeed, it's not implausible to look upon the development of civilization itself as the expression of that goal. The alternative is a return to the rule of the jungle and the rule of whoever is the strongest guy at the moment.

What's your definition of the rule of law?

"As for running for election to change that law, that's why I ran that Gene Simmons quote above."

The quotation was: "Everyone in the States is dumb." So, if the populace is dumb, who do you suggest should be empowered to make the rules? The King? The whole point of the Revolution was to get rid of that. The faculty senate at UCR? What exactly is the source of their right to make rules to impose on the rest of us? The Supreme Court? But you didn't like Raich one little bit, or Heller, or Citizens United and on and on. Do you get to disregard Supreme Court decisions too, along with the laws passed by Congress?

Posted by: Bill Otis | May 18, 2012 9:16:36 AM

@BillOtis, there's something wrong with that disastercenter.com link you posted. The columns for immigration and drug offenses are missing.

It's bogus to conflate smoking a joint with putting up with environmental pollution. The first is a matter of personal choice, the right to which I admit is not enshrined in the consitution.

Given all that you say, I have to admit that my students, when they aren't busy updating their facebook statuses, are on your side. They're all for throwing away the key, and don't see how current criminal justice issues apply to them personally. Every day is an uphill battle for me.

@CCDC I want to see Gary Johnson get drugs, reproductive rights, and gambling on the agenda (Biden beat him to the punch re sexual preference), but I doubt it will happen. I run a twitter watch on election issues, and Johnson rarely registers. In fact, his counts are over-estimated because of Gary Johnson, the NFLer.

Posted by: Bill K | May 18, 2012 11:13:08 AM

Bill K --

"Given all that you say, I have to admit that my students, when they aren't busy updating their facebook statuses, are on your side. They're all for throwing away the key..."

I recommended 60 days. Is that your version of "throwing away the key?"

What is your definition of the rule of law?

What are the criteria for deciding when individual X is free to disregard democratically enacted law? Are your students free to pick and choose which UCR policies they're going to obey after they enroll? Are they told that at orientation?

If the populace is "dumb," who gets to make the rules? Can rules made by an elite have any claim to legitimate authority over those who had no say in their formulation?

Posted by: Bill Otis | May 18, 2012 12:36:15 PM

"So, if the populace is dumb, who do you suggest should be empowered to make the rules? The King? The whole point of the Revolution was to get rid of that."

It's a mystery to me how citizens of those countries that never overthrew their family dynasties put up with all the oppression from the unelected they face every day. Tinpot dictatorships like the Netherlands, Norway, Sweden, Denmark, even the commonwealth's constitutional monarchies like Canada, New Zealand, and Australia.

Posted by: Bill K | May 18, 2012 12:59:11 PM

Contrary to what Bill Otis says, marijuana is not unhealthy.

If you get your information from doctors and scientists, rather than hacks and propagandists, you learn that, while the inhalation of burning cellulose material, e.g., smoking a joint, is harmful to the lungs, you also learn that cannabis itself is not unhealthy. It can be ingested in manners that are not harmful, e.g., orally, with a vaporizer, etc.

Unfortunately, our government has been in the business of squelching science concerning cannabis and perpetuating reefer madness myths. Bill Otis = the government. He is part and parcel of the government's anti-science reefer madness stance.

Posted by: Calif. Capital Defense Counsel | May 18, 2012 1:08:48 PM

Bill K --

What are you talking about? All the countries you name have democratic rule similar to the United States. Or are you just saying that Americans in particular are stupid? The irony, of course, is that even if that were true, they would still have the right to govern themselves, rather than have the elite do it for them.

What are the criteria for deciding when individual X is free to disregard democratically enacted law?

CCDC --

Thank you for admitting that marijuana is in fact unhealthy when used as it's used 99% of the time.

"Bill Otis = the government."

Glad to hear it. Please send me your tax payment, and tell Eric Holder that DOJ has been infiltrated by the infidels.

Posted by: Bill Otis | May 18, 2012 2:56:24 PM

@CCDC, I googled Bill Otis last night, so nothing he says surprises me. As I mentioned somewhere in this never-ending thread, I'm actually happy that someone from his side is prepared to back their stand in a public forum. It's rare to hear from the other side.

I assume Otis is familiar with the Shafer and Le Dain commissions, and will have no problem explaining why two North American governments chose to ignore their conclusions.

BillO, the common factor in all those countries I mentioned is that their head of state is an unelected monarch.

Posted by: Bill K | May 18, 2012 4:19:38 PM

Bill Otis -

Where do you get your "facts"? A silly little notion that pops up in the skewed circuitry comprising your mind does not constitute a "fact."

I defend people in medical marijuana cases. I know how they ingest their marijuana. Although a significant percentage of them do smoke it sometimes, many of them ingest it in healthful ways, like consuming it orally in baked goods and tea. Many of the excellent California physicians with whom I work advise their patients about alternatives to smoking cannabis.

So, please take your 99% figure, and shove it back in the orifice out of which you extracted it.

Lies like yours result in the absurdity of marijuana being listed as a Schedule I controlled substance.

Bill K - Oftentimes Bill Otis makes my skin crawl. He is a former federal drug prosecutor. He proudly touts his service in the George W. Bush Administration. Those two circumstances alone make me gag. But even worse, he actually thinks he and his fellow statists ought to be able to strip away of the liberty of people who engage in voluntary, non-violent conduct that he deems icky, just because, in his authoritarian mindset, he thinks he knows what is best for people other than himself. Nevertheless, I think it is remotely possible that there may be some deeply, deeply repressed kernel of decency in him. Maybe not, but if there is, it may be able to be tapped. My approach --- alternating between bludgeoning/shaming him and attempting to reason with him --- may not be the way to go. But, what the heck --- it's worth a try.

Posted by: Calif. Capital Defense Counsel | May 18, 2012 5:48:41 PM

Bill K --

"@CCDC, I googled Bill Otis last night, so nothing he says surprises me."

Maybe you could Google CCDC. Oh, wait, he won't give his name, so you can't. And to say you're unsurprised by anything I say is a crack, not an argument.

"I'm actually happy that someone from his side is prepared to back their stand in a public forum. It's rare to hear from the other side."

It's rare on this site, and I have no doubt it's rare at UCR, but it's anything but rare across the country. Only one poll shows 50% support for legalizing dope. All the others, including a slightly more recent CBS poll, show majorities or pluralities against it. And legalization for all drugs (which is what CCDC favors -- do you?) has so little support it's not even polled.

"I assume Otis is familiar with the Shafer and Le Dain commissions, and will have no problem explaining why two North American governments chose to ignore their conclusions."

This is what happen when you assume.

"BillO, the common factor in all those countries I mentioned is that their head of state is an unelected monarch."

...who has little or no power. Chief of state is a largely ceremonial post; the only relevant position in the executive branch is head of government, which in all those countries is democratically chosen, as is the legislature.

And now, for the third time: What are the criteria for deciding when individual X is free to disregard democratically enacted law? This is a critical question when we're talking about "medical" marijuana and federal law, and is even more critical for the discussion you seem to want to avoid about the many advantages of, and required adherence to, the social contract and the rule of law.

I just don't think it's that hard to understand that, when every man decides for himself which laws he cares to obey, you no longer have law at all, and it's very questionable whether you even have civilization.

Posted by: Bill Otis | May 18, 2012 5:54:49 PM

Alright, I'll address your question.

There are three kinds of laws in contemporary societies.

The first addresses criminal acts of one person against another. Those are the acts listed in that disastercenter.com you pointed to. Most people have no problem with any of those. We can add laws such as traffic control to that list, because without them the streets would be unsafe. The Hobbesian social contract people form with their sovereign is to trade some of their independence in order to live in a society where they can be relatively assured that they can go live their lives as free as possible from these crimes. Most people would say there's no moral problem with the idea of sending a habitual rapist or murderer to prison for a long period of time.

The second set of laws address commercial concerns. Again, the commercial class is normally happy to sacrifice some of its wealth and freedom to act in order to have a government to peacefully adjudicate conflicts and provide a level playing field.

The rule of law, as I understand it, is that the above laws apply to everyone in a society. Hobbes said the sovereign was exempt, and that concept lives on in the form of capital punishment, and, you could say, asset forfeiture. One of the goals propelling the Occupy movement was dismay at seeing how the Wall Street executives behind the 2008 crash were getting away with it. Even the executives behind Enron and WorldCom were called to account.

The third set of laws are the problematic ones. These, of course, are the victimless, or consensual crimes. 350 years ago a typical consensual crime might be criticizing the king of England. The Constitution addresses the rights of citizens to "commit" that type of crime by enshrining free speech. Most of these contemporary laws have been enacted under the guise of morality, where one set of people decides what is best for another -- and by "people", I mean aware, consenting adults. When clear-headed members of a democracy are told they can't smoke dope, snort cocaine, drop acid, play low-stakes poker on-line (or high-stakes), buy more than one packet of cough medicine at a time, drink alcohol (during prohibition), engage in certain kinds of consensual sex, explore different religions, view or produce pornography (again, excluding people under a certain age), explore different types of marriages, join "fringe" political parties, or engage in certain high-risk outdoor activities (while willing to underwrite any medical costs that might result), will, many of those clear-headed adults will start to question the wisdom and correctness of the civil institutions that they've had faith in, and begin to pick and choose the laws they will obey. Some of us have begun to think that a society which sends people to prison for 20 years for committing an offense in this category (even if that offense is a drug transaction among consenting adults) is one that wants to infantilize many of its members, and has lost its moral underpinnings. If the Libertarian Party could stick to this category and stop talking nonsense about the Gold Standard and the Federal Reserve, I could easily join it.

Posted by: Bill K | May 18, 2012 7:45:58 PM

@CCDC "Bill K - Oftentimes Bill Otis makes my skin crawl. He is a former federal drug prosecutor. He proudly touts his service in the George W. Bush Administration. Those two circumstances alone make me gag.... My approach --- alternating between bludgeoning/shaming him and attempting to reason with him --- may not be the way to go. But, what the heck --- it's worth a try."

It's not every day you get to have a debate like this with someone who states that he is proud to have served for a convicted war criminal.

Posted by: Bill K | May 18, 2012 10:52:23 PM

Bill K --

Just so we have the record straight: I served in the Reagan and Clinton administrations as an AUSA (a non-political position). I served in the administration of George H. W. Bush as Special White House Counsel (political although it was on a detail from the USAO). I served in the administration of George W. Bush as Counselor to the head of the DEA (political but not Senate confirmed).

I am proud of every minute of all of them. As to George H. W. Bush in particular, I have seldom if ever met a man of more decency and class.

The flaw in your argument is that it's more complicated than you think to decide what is a "victimless, consensual" crime, and by preserving the individual's "right" to decide that categorical question for himself, you lay the groundwork for the destruction of the rule of law. For example, when a pimp gets his 19 year old hooker addicted to heroin in order to keep her in line, are her tricks "consensual?" They are from the John's point of view, sure. And they are from hers too, in a sick sort of way. She is, after all, in love with the pimp (many are, before he starts slapping them around), and he gets her high, too, which she likes.

Consensual? Victimless?

Then there's the 20 year old who "consensually" buys meth, only just a little more this time than last, since he wants a better high. Indeed, he wants such a good high that he OD's, ending his life. He sort of knew the risk, but pooh-poohed it, as addicts (and about-to-become addicts) do.

Victimless? Consensual?

Then there's the 23 year-old who gets blasted on coke and rams the oncoming car on the freeway, killing himself and two others. Yes, there was a theoretically independent decision to drive (a decision influenced by the coke), but we all know in advance that such decisions will be made, and that if the use of coke were suppressed, there would be fewer fatalities.

Victimless? Consensual?

So it's not just that the rule of law cannot survive an individual's choosing which particular statutes he will obey. It's that the rule of law cannot survive what you suggest -- to wit, the individual's choosing what TYPE of statutes he will obey. Your response doesn't answer the problem; it just moves the problem back one stage, by adopting the rule of I'll-decide-for-myself for categories of law (as to which there can also be reasonable disagreement BTW) rather than particular laws within a given category.

As for your "war criminal" nonsense: It's depressing to know that someone in a responsible position at a taxpayer-funded university is off to such an extreme. Is Obama a war criminal too on account of Anwar al-Awlaki? That's the latest from the America Stinks movement, so I thought you might be able to fill us in.

Posted by: Bill Otis | May 19, 2012 11:09:23 AM

@CCDC Following up, what I find interesting here is that Mr. Otis is one of those rare species: clearly intelligent and articulate, but a hardcore, unwavering believer in American exceptionalism, and it's been his life mission to do what he can to preserve it.

Posted by: Bill K | May 19, 2012 11:11:28 AM

Bill K --

For once, we agree 100%.

The United States -- a decent, generous and brave county the likes of which the world had never before had the good fortune to know -- is indeed exceptional, and I am grateful for having had the opportunity to work in her service.

Posted by: Bill Otis | May 19, 2012 11:24:34 AM

Thta wasn't my opinion. I was referring to last week's Kuala Lumpur trial that found Bush, Rumsfeld, Cheney, Yoo, Blair and others guilty of war crimes. You'll have to take your quibble up with the Malaysian legal system, not me.

And it's interesting that of all those incidents you mentioned, there was a separate offense being committed along with the drug. When a drug is used to commit a crime, that should be treated similar to the use of a gun. But it's not a crime in itself.

Posted by: Bill K | May 19, 2012 12:34:48 PM

After Bill K's comment about Google, I did it myself. Who knew? Bill Otis: Youtube star. I'm glad the "decent, generous and brave country" is not as knee-jerk as Bill Otis is around here. As a prosecutor and professor, can't quite be other places, so I guess this might be a way to blow off steam.

As to exceptionalism, U.S. is charming, but if I lived in Canada, e.g., I wouldn't feel blighted somehow.

Posted by: Joe | May 19, 2012 3:03:02 PM

Bill K --

"Thta wasn't my opinion. I was referring to last week's Kuala Lumpur trial that found Bush, Rumsfeld, Cheney, Yoo, Blair and others guilty of war crimes. You'll have to take your quibble up with the Malaysian legal system, not me."

Kuala Lumpur??? You've got to be kidding. The advantage of taking it up with you is that, for whatever your dim view of this great country may be, you're more serious than Kuala Lumpur. (Hey, for all I know, the reigning Ayatollah has some fatwa out holding Bush etc. to be war criminals. Perhaps President Obama can do us all (and himself) a favor by earmarking a drone for him. Ahmadinejad too, while we're at it).

"And it's interesting that of all those incidents you mentioned, there was a separate offense being committed along with the drug."

No, actually, in the first two examples of the three given, each offense was exactly what you were describing in the category of consensual, victimless crimes. The first involved prostitution and heroin, and the second was solely an adult buying meth. The third did involve another crime (impaired driving), but that is small moment, since we know that impaired driving often happens with, and in part because of, drug use.

Posted by: Bill Otis | May 19, 2012 3:19:47 PM

Joe --

Actually, I go a lot of other places, mostly law school debates about one thing or another. It gets quiet while school is out during the summer, but I expect I'll start up again in September.

I haven't been an actual prosecutor since 1999, when I left the USAO for the Eastern District of Virginia. And yes, most of the commenters here are in one sense or another blowing off steam. I enjoy many of the exchanges, because there are some smart people posting here, and Doug finds stuff I'd otherwise miss.

Canada is a wonderful place, but Lincoln was on the money when he described the USA as "the last best hope of earth."

Posted by: Bill Otis | May 19, 2012 5:44:35 PM

well bill i have to call you on this!

"Spoken like someone who has never had the responsibility of managing law enforcement priorities on a limited budget. "Applied using some common sense" is hardly the same thing as "applied arbitrarily."

There is a big big big differene in spending limited funds to go out and hunt for those involved in low-lvl possession.

BUT when one falls in your lap i'm pretty sure you did prosecute. In THIS case he's basically SLAPPED the DOJ in the FACE with the FACT he's a user. Failure to act does nothing but bring even MORE REDICULE on the United States Justice System.

Posted by: rodsmith | May 19, 2012 9:17:44 PM

BillOtis, Getting back to the subject of this thread, none of your points bring up marijuana. It's known to be less addictive than tobacco, alcohol, or even caffeine. Natives understood its medicinal benefits for thousands of years. Saying that legalizing it will make it easier for children to get it ignores the results that tobacco education have had over the last 50 years or so. Any points related to impaired driving apply equally well to driving under the influence of alcohol or over-the-counter drugs (I suppose you're one of those critical mass pro-bicycle/rapid-transit nuts who wants to get us out of our cars. No... I didn't think so). The gateway argument has been shown to be bogus: saying that pot smoking leads to shooting heroin is like saying that eating Jello pudding during childhood leads to ordering tiramisu as an adult.

So how is marijuana prohibition anything other than an arbitrarily used law enforcement tool?

Posted by: Bill K | May 20, 2012 12:53:59 AM

Bill K --

"Getting back to the subject of this thread, none of your points bring up marijuana."

But they directly address something far more important on a legal blog, that being the rule of law vs. do-your-own-thing. That very point was extensively discussed in your post here, Bill K | May 18, 2012 7:45:58 PM, and properly so.

As before, I am the only one on this thread who has put forward a proposal that would (1) help the Judge obtain what he says he needs and (2) has any chance to become law. Others, CCDC in particular, just go on stomping their feet about how much the country stinks.

There are three problems with that. First, it's false. Second, it's offensive. Third, it's not going to get anything done.

"So how is marijuana prohibition anything other than an arbitrarily used law enforcement tool?"

Because it's barely used at all. As I have noted, without contradiction, the actual chances of getting even cited, much less jailed, for simple possession of personal use amounts are essentially zero. If you don't believe me, just poke around your own campus on any Saturday night. How many people are doing a joint? Quite a few. How many are going to jail for it? Nobody.

The prohibition against marijuana is no more arbitrary than the prohibition against speeding. Zillions of people speed, and every one of us speeds every now and again. How many actually get caught and punished, relative to how much gets done?

Some miniscule percentage. And whether any given person gets caught is almost completely arbitrary -- you can be the one guy who gets picked out of a stream of traffic going the same rate you are.

So should we get rid of the laws against speeding? Well, no, because speeding produces unhealthy results often enough so that it should be suppressed.

And you're wrong that pot is not a gateway drug. First, studies have shown that a far higher percentage of those who use hard drugs in adulthood used pot as teenagers than among the general population. Second, the it's-not-a-gateway argument overlooks the way drug use actually works. It's not like Jello and tiramisu. When you get high, the next time you want to get higher. Eventually, just smoking more pot isn't getting it done, so you move on to something that will. This is exactly the same phenomenon that produces overdose deaths. Druggies do not set out to kill themselves; what happens is that the desire for an even better high, together with the impairment of judgment that comes with drugs, produce (a) the temptation to use more, combined with (b) underestimating the danger that using more will produce. So your next trip is to the morgue.

And no, I'm not saying that pot will directly put you in the morgue (unless you get on the freeway stoned). I'm saying that the dynamic of drug use -- the perpetual quest for a better high -- starting with pot, goes only in one direction, and the direction becomes fraught with danger to the user and others.

Finally, to return to the more important subject of the rule of law, there is one other category that some people might find exempts them from the requirements all others must obey. Suppose one thinks that "property is theft," and that capitalism itself produces cruel inequalities of wealth. (In fact, many people think this). Why shouldn't those who view the world this way decide categorically (as you have decided using different criteria for your own categories) that bank robbery, stealing from rich people, blowing up corporate headquarters (at 4 a.m., so no one gets hurt) is all OK?

These people are just as sincere as you. So why don't they get to disregard law according to their own lights?

The social contract cannot survive unless those who accept it surrender their pre-existing (in the jungle) right to make decisions like that. Only then will the rule of law survive.

Posted by: Bill Otis | May 20, 2012 10:31:19 AM

rodsmith --

"BUT when one falls in your lap i'm pretty sure you did prosecute."

Absolutely right. We always tried to be accommodating. If someone really, really wanted to get arrested -- by, say, smoking pot on the courthouse steps -- we didn't want to be crabbed about it.

Posted by: Bill Otis | May 20, 2012 2:07:03 PM

I don't deem Bill Otis' professed fidelity to the rule of law genuine.

He touts fidelity to the rule of law when it jibes with his personal preferences. He is like Scalia. For Scalia, the reach of the Commerce Clause is expansive when it comes to marijuana, but it is constricted when it comes to GOP political targets like Obamacare. (Personally, I agree that provisions of Obamacare exceed Congressional authority under the Commerce Clause. But, the point here, is that Scalia, like Bill Otis, does not apply an even, neutral rule of law. With the notable exception of the Apprendi line of cases, Scalia's jurisprudence is often result-oriented rather than a product of application of the rule of law.)

Bill Otis, like Scalia, finds marijuana icky. He is not content with personally avoiding it. He wants to prevent you, me, and others from having any. Were neutral fidelity to the rule of law an animating principle for Bill Otis, he would respect democratically enacted medical marijuana measures, rather than ridiculing them all as ploys by potheads, and he would acknowledge that, notwithstanding Raich, there are genuine liberty, freedom, and States'-rights issues involved when the Feds. seek to incarcerate people who obtain marijuana pursuant to physicians' recommendations, in accordance with State law.

Alas, Bill Otis' goal is drug-crusading, not serving the rule of law.

Posted by: Calif. Capital Defense Counsel | May 20, 2012 2:15:16 PM

@CCDC - Obviously.

"Because it's barely used at all. As I have noted, without contradiction, the actual chances of getting even cited, much less jailed, for simple possession of personal use amounts are essentially zero. If you don't believe me, just poke around your own campus on any Saturday night. How many people are doing a joint? Quite a few. How many are going to jail for it? Nobody."

http://www.drugwarfacts.org/cms/Marijuana#Total backs up this statement, showing how not one individual was arrested for simple possession in 2010 (that figure of 750,591 is due to clerical and/or rounding error). Reichbach has nothing to worry about.

Posted by: Bill K | May 20, 2012 10:45:00 PM

Bill K --

You can't tell the difference between being arrested and being sentenced to jail? Really???

You are correct, however, that Reichbach has nothing to worry about. I'll bet you a hundred bucks here and now that he won't get arrested, just like the vast majority of users don't. Are we on?

And while you run off to some less-than-impartial website for your irrelevant (to sentencing) figures about arrest, you ignore the evidence sitting right under your nose. So I repeat: Poke around your own campus on any Saturday night. How many people are doing a joint? Quite a few. How many are going to jail for it? Nobody.

Posted by: Bill Otis | May 22, 2012 8:03:03 PM

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