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March 20, 2013

Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"

31-cEIG37XL._SL500_AA300_Especially because early Thursday morning I am heading out on a muti-day trip (involving both work and play) that will lessen my blogging opportunities, I am very pleased to be able to welcome Professor Alex Kreit as a guest-blogger to discuss his new casebook, Controlled Substances: Crime, Regulation, and Policy.  I plan to teach a new seminar from this new text (which I will discuss in this space in a few weeks), and I am eager to hear all that Alex has to say about his work and work-product. And here are his first comments:

Thanks so much to Doug Berman for giving the opportunity to blog about my recently published casebook, Controlled Substances: Crime, Regulation, and Policy.   I plan to do a short series of posts on about the book and about teaching law school courses on drug law and policy.

I don’t think it would be an exaggeration to say that no development has had a bigger impact on our criminal justice system over the past four decades than the war on drugs. The drug war has been a driving factor in the explosion in our prison population, with drug offenders accounting for about one fifth of our nation’s prisoners.  Our drug laws have also had significant impacts on a range of other issues, from the nature of policing to race and the criminal justice system.  Yet, while modern drug laws have dramatically changed our criminal justice system, they have been strangely absent from the curriculum at most law schools.  Every criminal law casebook devotes significant coverage to homicide and property crimes, but only a handful — at most — include a chapter or section on drug offenses.  Though criminal procedure courses are filled with drug cases, this is only because so many leading Fourth, Fifth, and Sixth Amendment decisions happened to involve drug investigations; not because drug law or policy is a special point of concern in criminal procedure courses.  Likewise, only a small fraction of law schools currently offer a seminar on drug law and policy.

Indeed, at most law schools today, a student could take every single criminal law-related offering without studying drug law and policy.

Why is this?   I must confess that, despite giving the question a lot of thought during my book project, I’m still not quite sure.   I suspect — and hope — that a lack of prepared materials may be partly to blame.   To my knowledge, before the publication of my new book, the last casebook dedicated to drug abuse and the law was published in 1983 (Gerald F. Uelmen and Victor G. Haddox’s Drug Abuse and the Law.)

Whatever the reason for the inattention to drug laws, teachers and students alike have been the poorer for their absence from law schools.  A course on controlled substances provides a uniquely rich mix of complex legal and policy problems.   A close look at the law of drug crimes reveals unusually tough challenges for how to define, prove, and grade criminal conduct.  The enforcement of drug laws, meanwhile, provides an ideal vehicle for studying a number of important issues often overlooked in law classes like prosecutorial discretion, the use of informants in modern policing, and racial profiling.   Drug prohibition also presents one of the most difficult tests for the theories of punishment. Though we may disagree about how much punishment a thief, a killer, or a drunk driver should receive, few question that theft, murder, and driving under the influence should be crimes.  Many theorists and policy analysts, however, believe that drug criminalization is unjust or unworkable.

From beginning to end, drug law and policy provides an intellectually engaging experience. Students who plan on becoming prosecutors or defense attorneys will learn about an area of the law that will inevitably occupy a large percentage of their practice.   Others will enjoy engaging with fascinating theoretical and policy problems.  And, with marijuana legalization now the law in two states and quickly shifting political views on the drug war generally, students have a real enthusiasm and interest in taking and learning about this subject.

The absence of a casebook in the field led me to write my book, which I hope will help contribute to seeing the subject taught in more law schools.   In upcoming posts, I plan to talk a bit more about some of the different issues that can be taught using my book, designing a drug law course, and more.

One last note for now: If you think you might be interested in teaching a course on controlled substances yourself — whether you are a full-time professor or a practicing attorney — please feel free to contact me directly any time.  I’d be happy to provide additional information like sample syllabi and, for prospective adjuncts, advice on how to submit a course proposal.

March 20, 2013 at 10:11 PM | Permalink

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Prof. Kreit --

I will be looking forward to your entries.

I have three questions for now.

First, do you think the result and reasoning of the majority opinion in Raich was correct? Do you think that Justice Scalia's analysis in his concurring opinion was correct?

Do you favor the legalization of marijuana for recreational use?

Do you favor the legalization of heroin, LSD, methamphetamine or other "hard" drugs for either medical or recreational use?

Just fyi: I spent most of my career as head of the appellate division for the USAO for the Eastern District of Virginia, and did many drug cases. I am now an Adjunct Professor of Law at Georgetown.

Thank you for your participation here.

Posted by: Bill Otis | Mar 20, 2013 11:11:10 PM

There is a triplet of huge gorillas in the corners of this room. They are smelly, agitated and very destructive. They came with the lawyer.

1) Highly addictive substances kill 500,000 people a year by disease. Alcohol is found at higher than the legal level in half the suicides, half the murderers, half the murder victims, half the car crashes. Yet tobacco and alcohol remain legal and advertised.

2) Despite the cost to the economy, the lawyer maintains a huge government machinery of rent seeking, returning no benefit to society. The machine consumes productive males, and adds to the devastating bastardy rate associated with massive social pathology. Massive government employment cannot be weaned off.

3) The profits from illegal drugs provide lavish funding to the enemies of the nation, thanks to the lawyer traitor, the Taliban, Al Qaeda, drug syndicates. They use this funding to kill our warriors. Mass arrests of the internal traitors should be followed by brief fair trials, and mass executions of the internal lawyer traitor and enemy collaborator.

Try to ignore these gorillas.

Posted by: Supremacy Claus | Mar 21, 2013 1:17:48 AM

Hi Bill,

Thanks for your comment. I enjoy following your posts on Crime and Consequences, though I think we have a different take on many issues.

While I appreciate your questions, I must say they are pretty broad! :) I believe the devil is often in the details and so I don't think I can easily sum up my thoughts on drug policy in a blog comment (or even a blog post.) For example, I supported Prop. 19 in California in 2010, but I would not favor a totally unregulated or loosely regulated system for marijuana. With respect to users of other drugs, I believe that evidence on Portugal's civil drug treatment system has shown it to work very well. I certainly wouldn't support a system like Prop. 19 for heroin.

On Raich, I didn't find Scalia's effort to distinguish Lopez persuasive. In a nutshell, there are plenty of federal gun laws, some aimed at restricting sale and access of guns with respect to minors. Given that, I think regulating possession of a gun in a school zone is on essentially the same footing as regulating the possession and noncommercial cultivation of marijuana with respect to the "necessary and proper"/"broader regulatory scheme" theory. Of course, this is not the same thing as saying a particular view of the commerce power is "correct" or "incorrect." I thought that Stevens, Breyer, Ginsburg, Souter, Rehnquist, O'Connor, and Thomas were all consistent across Lopez,Morrison and Raich. I don't believe the same was true of Kennedy and Scalia with their votes in Raich.

Anyway, thanks again for the comment and questions. I'll be focusing my blog posts here on the casebook and teaching drug law and policy, rather than my views on policy issues. But, if you'd ever be interested, I'd love to chat about views on drug policy more over coffee or the like. (I will be in DC at least twice in the coming months.)

Best,
Alex

Posted by: Alex Kreit | Mar 21, 2013 11:27:43 PM

As a matter of commerce law, I think Raich is reasonable, and the dissent does not apply the law as it actually is generally done (though it might be reasonable if it was). The edge there really is a concern about the specific usage of the drug, the liberty concern of the patient here. Prof. Barnett has bigger game, but that is how I would see it. That and sound policy would make it appropriate for local option laws regarding medicinal marijuana in that context.

I think marijuana should be legal and regulated something like alcohol and nicotine now is. So, sale to or possession by minors can be targeted as would public use, though that would be mostly a civil concern, like someone might be fined for smoking in public.

From what I know of it, Glenn Greenwald, e.g., studied the matter (and once gave a speech in Portuguese on the subject), the Portugal model has worked well. I think medical use of "harder drugs" should be allowed in various ways, as they are (e.g., opiates). As to recreational use, I don't think the current criminal system is working well for purposes of public health and otherwise.

We can talk about laissez faire as a thought experiment (see, e.g., William Buckeley), but it's not going to happen & marijuana is quite different there as a matter of effects and possible danger. There is a reason why Bill Otis speaks of marijuana specifically as treated as de facto legal if used at home. We don't quite see that with meth, heroin and crack.

With that, I will continue to appreciate Prof. Kreit's guest blogging.

Posted by: Joe | Mar 22, 2013 10:33:27 AM

ETA: mind you, in practice, marijuana usage isn't really de facto legal in certain respects.

Posted by: Joe | Mar 22, 2013 10:35:18 AM

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