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February 2, 2009

"Michael Phelps, Hypocrisy, and American Drug Policy"

The title of this post is the title of this effective new commentary by John Santore at the Huffington Post.  The piece reflects some of my own reactions to the hub-bub over the news, detailed here at CNN, concerning the published picture of Olympic champion Michael Phelps smoking a marijuana pipe.  Here are two potent paragraphs from the commentary:

While marijuana laws have changed over time, and while past administrations have attempted to show that the situation isn't as dire as it appears to be, drug policy in the United States is immensely hypocritical and destructive.  Today, public figures justify past drug use as "youthful indiscretions" and the matter is dropped.  But huge numbers of ordinary Americans are introduced to the jail system because of minor drug offenses, and as the records show, the overwhelmingly disproportionate nature of drug arrests creates a justified perception of injustice and both economic and racial bias.

Will Michael Phelps have to go to court for his actions? No. (Nor should he have to.)  Will any law enforcement jurisdiction in America conduct a systematic raid of a college dorm at a prominent university with the goal of arresting everyone in possession of marijuana? Of course not.  If such an action was taken on a broad scale, the arrests would likely be in the thousands.  At the same time, will poor Americans, overwhelmingly minority in ethnicity, continue to be arrested by local police for the possession of small amounts of pot? Absolutely.

February 2, 2009 at 09:30 AM | Permalink


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I appreciate Santore's perpsective--and I especially agree with President Obama's "broader point" about economic/opportunity disparities.

Regarding the crack/cocaine disparities, am I just accepting rationales blindly here, or isn't it true that there are some fundamental differences between crack and cocaine transactions? In conversations with both law enforcement and prosecutors, both cite the more violent nature crack transactions in defense of the difference (although not a 100-1 difference--an AUSA, working for 25 years doing 70% drug cases told me that she thought something like a 25-1 difference would be more appropriate).

And about the amendment--in the S.D. Ohio, it is my understanding that the judges had been giving out the 2-level reductions right away after it had been announced in anticipation of the amendment--and that the level reduction was making a decent difference in their sentences. I'm asking a real question here--is this all not true or not really true?

Posted by: Gov'tGirl | Feb 2, 2009 11:05:45 AM

Gov'tGirl, concerning the difference between cocaine and crack, there is some difference which arguably could support some variant treatment of the two. My perfect world would have a 2-to-1 ratio or, at most, 3-to-1. But I have three points to make towards this end:

First, SCOTUS has referred to crack as another “form[] of the same drug,” “chemically similar,” and having “the same physiological and psychotropic effects” of cocaine. Kimbrough, 128 S.Ct. at 566.

Second, the USSC has asserted that any crack/powder ratio should NOT be more than 20-to-1. See U.S.S.G., Report to Congress: Cocaine and Federal Sentencing Policy at 107 (May 2002), download available at http://www.ussc.gov/r_congress/02crack/2002crackrpt.htm.

Third, the DOJ itself has in the past heavily cited a study which “recommends a drug quantity ratio of 2 or perhaps 3-to-1.” See U.S.S.G., Report to Congress: Cocaine and Federal Sentencing Policy at 93 n.179 (May 2002) (citing Dorothy Hatsukami & Marian Fischman, Crack Cocaine and Cocaine Hydrochloride: Are the Differences Myth or Reality?, 276 Jama, 1580, 1582 (1996)).

Concerning your question about the 2-level reduction, I think it has helped. But, IMO, there is absolutely no reason that someone who is eligible for the reduction should not get it. In fact, there is absolutely no reason that a dist. ct. should sentence a crack defendant to within the Guideline range, even after the 2-level reduction. This is because the USSC -- the body who drafted and enacted the amendment -- itself has said that the Guideline range is still too high to comply with 3553(a). More reduction is necessary if we are serious about correcting the injustice of crack sentences.

Posted by: DEJ | Feb 2, 2009 12:19:47 PM

From the article: "At the same time, will poor Americans, overwhelmingly minority in ethnicity, continue to be arrested by local police for the possession of small amounts of pot?"

Well, it's the job they chose, right Federalist?

Posted by: DK | Feb 2, 2009 10:18:10 PM

Likely the people who are being busted for pot are smoking a "j" on the street. And cops should bust people for doing that. A fine is good enough for me for public consumption of marijuana. (The point is that when you arrest people for minor violations, you wind up grabbing fugitives and getting illegal firearms etc.)

I have clean hands when it comes to drugs. I didn't even drink alcohol in high school, and I joined military after HS, where we had urinalysis. When I got out, I was too old to start.

Posted by: federalist | Feb 3, 2009 2:24:19 PM

I have not find a message board where more folks are against some from of legalization of marijuana as opposed to letting the present insanity continue. Mr. Phelps hit a bong, BIG DEAL. So did Clinton, Obama and you can bet George Jr. Any thoughts on how to stop the government from continuing this pernicious war on it's citizen? If this were brought to a vote, adult people would be allowed to smoke pot. I believe you are correct, just be rich, kinda white and or famous, then you can smoke pot, otherwise you will pay dearly.....please visit www.LEAP.cc good stuff, credible sources. Good Luck Michael, sorry for your luck.

Posted by: Mbrizio | Feb 15, 2009 9:11:29 PM

People who are not involved on a daily basis do not realize how often young minority men are arrested for possession of a single joint. As a lawyer at a not-for-profit that represents both families facing eviction, and prisoners incarcerated for minor drug offenses, we regularly see cases where police make an alleged "Terry stop," pat down a young person (invariably black or latino), and then make an arrest when they "discover" any quantity of drug.

While many of these cases are never prosecuted, the arrest is enough to trigger eviction of the entire family from any subsidized apartment they live in--even if the parents knew nothing of the drugs, and the possession was blocks away.

As the Chicago Defender editorialized, before we start evicting families because one kid is caught with a joint, we should start enforcing the law equally against the rich and famous.

Posted by: Alan | Feb 16, 2009 4:04:24 PM

'we are lost as a whole separated by parties that divide the law into sections so no one person is accountable 'And the shadow government runs them all America lacks heart how can you find a pulse if your heart is gone? a planet is heading our way why isn't msnbc talking about that it's traveling at 300 thousand miles and hour edging closer and closer to our solar system and god is going to take his children from this hellish world if we do not Chang" and i do not see Chang i see detraction tactic play to gain power not any form of play for the people there play is caught by police and arrested for nothing we are on the brink of destruction and your looking for a star in a person? The real star is heading here to wipe is out.
I am told me to post here

Posted by: richard sievert | Sep 19, 2009 9:37:17 PM


Posted by: richard sievert | Sep 19, 2009 9:39:52 PM

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