“When it comes to these marijuana initiatives, I think among the kinds of things we will have to consider is the impact on children,” Holder told a House appropriations subcommittee. “We are certainly going to enforce federal law.”

At a National Press Club luncheon, Kerlikowske asserted that “neither a state nor the executive branch can nullify” federal anti-marijuana laws, adding that “using marijuana has public health consequences.”

But the impact on children, and the public health consequences, are likely to be bad if the Obama administration cracks down on the hundreds of marijuana businesses that Colorado and Washington are preparing to license, regulate, and tax.

Such action would likely backfire — warping both federal and state drug policy for years to come — by aggravating the harm to public health, especially to kids, and the leakage of marijuana across state lines that the administration and other opponents of legalization want to prevent.

How would a crackdown backfire? By producing — immediately in Colorado, and eventually in other states — an atomized, anarchic, state-legalized but unregulated marijuana market that federal drug enforcers lack the manpower to contain and the legal power to force the states to contain.

Consider how a federal effort to abort the state experiment would unfold in Colorado, where the voters (unlike those in Washington) chose to create both a state-regulated marijuana industry and another, largely unregulated, one.

In the state-regulated sector, marijuana growers and distributors must obtain licenses to do business, sort of like liquor licenses. They will pay many millions of dollars in state and local taxes and licensing fees. Colorado clearly covets the new sources of revenue, but a significant portion of that money will be spent on regulatory efforts that bolster the federal interest in discouraging exports across state lines while seeking to minimize sales outside the state-regulated system, sales to minors, unduly large quantities, impure and dangerously potent products, organized crime involvement, and other abuses.

The unregulated sector, which is already operating, comes from the initiative’s repeal of all penalties for growing up to six marijuana plants at a time at home (yielding roughly 1,000 marijuana doses per plant per year) and giving away up to an ounce (yielding roughly 200 marijuana doses) to anyone else.

If the administration exercises its broad prosecutorial discretion to allow the state-regulated market to operate without federal interference, that’s where most users will get their marijuana. Market forces will keep the grow-your-own-and-share market small.

But if the administration puts Colorado’s state-regulated marijuana sector out of business — as it probably could do, since that sector would consist of a limited number of easily identified operators — the grow-your-own-and-share market could well expand to huge proportions.

And there is no federal solution in sight to the public-health dangers posed by this grow-your-own-and-share market, or to its obvious potential for leaking into the criminal black market and across state lines.

In a nation with 4,400 DEA agents — one for every 3,000 regular marijuana users and one for every 170 state and local cops — it would be impossible for the federal government, acting on its own, to police more than a random handful of marijuana growers, or stop the considerable number who would sell some of it.

In addition, under the Supreme Court’s 10th Amendment precedents, the federal government has no legal power either to prevent states from simply repealing their own marijuana penalties or to require states to help enforce federal law.

The states can, in other words, simply stand aside and let the feds wage war alone on marijuana — which they lack the manpower to do.

So the result of an administration attack on state-legalized marijuana in Colorado would be to let millions of unregulated, unlicensed, untaxed, home-grown marijuana plants bloom, without state controls on quality, purity, or potency.

Importantly, such an attack would also spur leaders of the well-heeled marijuana movement to push for legalization without regulation both in Washington state (which currently bans all marijuana growing and distribution outside the regulated system), and in the other states (including Alaska and California) that appear likely to adopt partial legalization in the coming years.

These states might then emulate Colorado’s grow-your-own provisions, or simply repeal state penalties for small-scale marijuana cultivation and distribution as well as possession. (Federal law enforcers almost never go after mere users of marijuana.)

So if Holder and Obama want to do what’s best to protect kids, and public health, and to prevent exports across state lines, the path of federal-state cooperation is more promising than a doomed effort to crush the Colorado and Washington experiments. After all, the states want to protect public health and kids too. That’s what the regulations will be for.

And, as it happens, the federal Controlled Substances Act contains a statutory directive that the attorney general “shall cooperate” with the states on drugs including marijuana. It also authorizes him “to enter into contractual agreements … to provide for cooperative enforcement and regulatory activities.”

Given that leverage, federal-state agreements could be used to bind the states to detailed commitments to protect federal interests as well as to specify what state regulators and state-licensed marijuana businesses can and cannot safely do.

With almost 60 percent of the public saying that the administration should not enforce marijuana laws in states that permit its use (and with 52 percent favoring legalization), the time is ripe politically for the federal government to work with Colorado and Washington to prevent state-legalized marijuana from metastasizing into an uncontrollable free-for-all.

Meanwhile, the two states have been working on their new regulations for over five months with no guidance at all from Washington, D.C. The time for presidential leadership on marijuana is now.

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State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since Pre…

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn’t give separatists hope: it’s doomed to fail, as will similar rebukes.

That’s because no state is an island (Hawaii included), and Congress can regulate anything that could jump state lines. It’s a category, says George Mason University professor Nelson Lund, a Second Amendment scholar, that excludes almost nothing-certainly not pot and guns.

The post Montana’s States’ Rights Showdown appeared first on Stuart Taylor, Jr..

The three dissenters were the other two conservatives, Chief Justice William Rehnquist and Justice Clarence Thomas, and the other centrist, Sandra Day O’Connor. They said that the federal government lacked the power to apply the sweeping federal anti-drug law to the use of homegrown plants under the laws in California and 10 other states allowing physician-recommended use of marijuana to ease symptoms of illness.

Why are the liberals siding with the Bush administration’s drug warriors against patients desperate for relief? Have the conservative Rehnquist and Thomas gone soft on drugs? And what does this 6-3 decision, on June 6, in Gonzales v. Raich really mean?

It does not mean that federal prosecution of medical-marijuana users will immediately step up; other legal challenges are pending. It does mean five things, at least:

• The case was not mainly about medical marijuana. It was about the breadth of congressional power to override state law, and about states’ rights.

• The decision shows that the Rehnquist Court’s "states’-rights revolution," so feared by liberals and hailed by (some) conservatives, will never be a major impediment to federal regulatory power. Not, that is, unless at least four new appointees join Thomas’s solitary push to strike down dozens of federal laws and overrule dozens of precedents going back more than a century — a most unlikely scenario.

The feverish predictions of a states’-rights revolution began with the Court’s 1995 decision in United States v. Lopez — the first since 1935 striking down an act of Congress as exceeding its power to regulate interstate commerce. The Court’s conservatives and centrists ruled by 5-4 that Congress had usurped the powers of the states when it banned possession of guns within 1,000 feet of a school. Fear and loathing coursed through liberal law faculties.

But a careful reading of Lopez never supported such fears. Rehnquist’s opinion did not question the Court’s many precedents expanding the scope of congressional power under the commerce clause. Rather, he stressed that none had gone so far as to support a congressional ban on a purely intrastate activity involving neither commerce nor an economic transaction. To uphold the guns-near-schools law would have been to extinguish all limits on what James Madison called the "few and defined" powers delegated to the federal government. Kennedy and O’Connor stressed, in a concurrence, that the decision was "limited" and that they had no intention of upsetting "the stability of our commerce-clause jurisprudence."

Decisions over the past few years have tended to confirm this, with both Rehnquist and O’Connor moving to limit the conservative push to protect states’ sovereign immunity from damage lawsuits. Now Scalia’s concurrence upholding congressional power to ban medical marijuana shows that he has a fairly broad view of the commerce clause. And even Rehnquist, who has championed states’ rights for more than 30 years, has never called for overruling the major commerce-clause precedents.

Indeed, of the 34 justices appointed since 1937, when the Court began upholding major New Deal programs, only Thomas has called for a truly revolutionary cutback in Congress’s commerce power and radical expansion of states’ rights.

• The Rehnquist-Scalia-Thomas "conservative bloc" is hardly the monolithic alliance that it is sometimes portrayed to be. To be sure, the three are consistently allied (usually in dissent) on hot-button issues like abortion, gay rights, and racial affirmative-action preferences. But they split three ways in the medical-marijuana case: Scalia was less supportive of states’ rights than Rehnquist (who joined O’Connor’s dissent), and Rehnquist was less supportive than Thomas (who dissented more broadly).

• If President Bush hopes to push the Court dramatically to the right, the odds are against his having more than modest success. The medical-marijuana decision makes it clear that a real states’-rights revolution could occur only if at least three justices besides Rehnquist were to retire, and only if all four of their successors were to ally with the so-far-solitary Thomas. And it’s hard to believe that Bush himself wants a radical cutback in federal regulatory power. That would render unconstitutional much of his own legislative agenda on Social Security, Medicare, and more.

The Court is much closer to a tipping point on social issues such as abortion, gay rights, racial preferences, and religion. But replacing the conservative, 80-year-old Rehnquist with another conservative would leave the balance unchanged on those issues. And Roe v. Wade would be at risk only if two of its six supporters were to step down and if both of their replacements (as well as Rehnquist’s) were to vote to overrule what even many conservatives consider a settled precedent. That’s possible, but not likely, at least on Bush’s watch.

• For all the attacks on the justices, this case is a reminder of the indispensability of a strong Supreme Court and the value of an ideologically diverse one.

Although we have come to take for granted the justices’ power to settle the kind of state-federal dispute at the heart of the medical-marijuana case, a weak Court would have trouble making such decisions stick. And "in most matters, it is more important that the … law be settled than that it be settled right," in the words of Justice Louis Brandeis.

As for ideological diversity, this decision illustrates the vast room for reasonable disagreement about how to apply our 216-year-old Constitution to today’s complex world. Each of the four separate opinions makes powerful constitutional arguments. None seems an effort to legislate the justices’ personal policy preferences. (Would that it were ever so!)

Indeed, the majority opinion, by Justice John Paul Stevens, implies in a footnote that perhaps Congress should legalize medical marijuana — but holds that until Congress does, the Court must defer. Conversely, Justice O’Connor’s dissent asserts, "If I were a California citizen, I would not have voted for the medical-marijuana ballot initiative" — but holds that the Court and Congress must respect California’s right to experiment.

Was the decision correct? No and yes. As a policy matter, Congress as well as the states should legalize medical marijuana, with strict regulatory controls. The proven benefits to some suffering patients outweigh the potential costs of marijuana being diverted to illicit uses.

But the issue for the Court was not whether medical marijuana should be legal. It was whether Congress or the state has the ultimate power to decide. And while that is a very close call, the Stevens majority opinion and the Scalia concurrence had a bit the better of the argument, in my tentative view.

All nine justices agreed that to effectuate Congress’s undoubted power to regulate (or ban) interstate commerce in marijuana, Congress can ban intrastate commerce and possession as well. The disagreement was about whether Congress can extend this ban to noncommercial cultivation and medical use, even where legal under a state medical-marijuana law.

The majority stressed that supposedly "medical" marijuana could easily be diverted into interstate commerce, thus circumventing the comprehensive federal effort to curtail such commerce. The dissenters responded that states should be given room to experiment, and that neither Congress nor the Bush administration has produced much evidence of medical marijuana being diverted to the interstate market. The majority rejoined that the Court must defer to Congress’s concern on this score, and that if states could exempt homegrown medical marijuana from Congress’s ban, the same logic would also allow states (hypothetically) to exempt homegrown recreational marijuana. And so on, down the slippery slope.

Such constitutional ratiocinations seem beside the point to suffering patients such as Angel Raich, who told reporters that only marijuana enables her to eat and that she will continue using it because "if I stopped, I would die." Thousands of others who suffer from AIDS, cancer, and other severe illnesses can relieve their agony only by using marijuana.

So as a matter of constitutional power, the Court may have been right to defer to Congress. But as a matter of common decency, Congress and the administration are wrong. They should stop carrying their drug-war obsession to the point of denying the most effective source of relief to people who live in excruciating pain.

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In the face of overwhelming evidence that tens of thousands of patients suffering from cancer, AIDS, and other serious illnesses can greatly alleviate their pain, and even extend their lives, by smoking marijuana, the Court held that Congress had allowed no room for a medical exception to the law making it a crime to distribute marijuana or even to possess it for personal use. This means that a doctor could be sent to prison for giving-perhaps even for recommending-marijuana to a terminal cancer patient whose pain and nausea cannot otherwise be relieved. The cancer patient could be sent to prison, too, although such prosecutions seem unlikely, in part because most jurors would simply refuse to convict.

The Justices were correct. Congress specified in 1970 that marijuana had no "currently accepted medical use"-at least, none that Congress was prepared to accept. In cases brought by the federal government, this congressional ban overrides the laws of California and the eight other states that have exempted medical marijuana from their own state anti-drug statutes. The Supreme Court neither agreed nor disagreed with Congress, but rather deferred to an enactment that it had no power to revise-an enactment that inflicts needless suffering and ought to be revised by Congress.

The most obvious proof that marijuana alleviates some patients’ pain is that so many of them say so. When a patient racked by agonizing pain says, "I feel much better after smoking marijuana," who is Congress to say otherwise? For those who need expert assurances, plenty exist. "A small but significant number of seriously ill patients who suffer from cancer, HIV/AIDS, multiple sclerosis, epilepsy, or other conditions do not benefit from, or cannot tolerate, the leading or conventional therapies," the American Public Health Association and others said in an amicus brief. "Some … have found cannabis to be effective at alleviating symptoms of their condition or side effects of their treatment…. [It] can mean the difference between life and death or relative health and severe harm." Marijuana is also safer, less addictive, less subject to abuse, and less likely to have bad side effects than many legal pain relievers and prescription medications. The U.S. Institute of Medicine (a National Academy of Sciences affiliate), the California Medical Association, and Britain’s House of Lords have all given guarded approval to carefully monitored marijuana smoking as a therapy for certain patients.

Indeed, no serious analyst could doubt that marijuana alleviates some patients’ sufferings. Serious drug warriors’ real concern is that "state initiatives promoting `medical marijuana’ are little more than thinly veiled legalization efforts," as William J. Bennett, the first President Bush’s drug czar, said in a May 15 Wall Street Journal op-ed. There is some truth to this. Many medical-marijuana champions do have such an agenda: Some exaggerate the medical benefits, and the 1996 ballot referendum in which California’s voters became the first to approve marijuana for medical use was so loosely drafted as to leave room for recreational users to concoct bogus medical excuses.

But most advocates of a less-punitive approach to drug policy are unpersuaded (at least so far) by the advocates of legalization-a group that includes such prominent conservatives as Milton Friedman, George Shultz, and William F. Buckley Jr. And Congress could easily legalize medical marijuana only for patients with certain severe illnesses without vitiating the criminal sanctions for all other sellers and users. Why do hard-line drug warriors fight even that idea? Apparently out of fear that it would muddy the message they want to send to people like my teenagers. The message, in Bennett’s words, is that "drug use is dangerous and immoral."

Much as I respect Bennett, I take that personally. I smoked some marijuana myself in the late 1960s and early 1970s, when it was hard to go to a party without being offered a puff of the stuff. (Unlike President Clinton, I inhaled.) Most of my peers seemed to smoke more than I did. They also seemed less dangerous when smoking than when drinking.

Were we all immoral? Were our parents or grandparents immoral when they drank bootlegged liquor during Prohibition? Is having too many beers immoral? Was President Bush immoral when he did whatever it was that he did when he was "young and irresponsible"? When he drank too much? When he drove drunk?

Like Bennett, I hope that my teenagers will shun illegal drugs. But I don’t tell them that marijuana would be immoral or dangerous to their health, because I don’t believe that. The danger, I tell them, is that using any illegal drug could leave them with criminal records or land them in jail.

Bush and some of his advisers have said some vaguely encouraging things about drug policy. "Maybe long minimum sentences for the first-time users may not be the best way to occupy jail space and/or heal people from their disease," Bush mused on January 18. But on May 10, he named as his drug czar former Bennett deputy John P. Walters, who immediately stressed that he wants "to escalate the drug war." Like Attorney General John D. Ashcroft, he has pushed the cruel and futile policy of imprisoning small-time participants in drug deals-many or most of them nonviolent-by the hundreds of thousands. Walters has also displayed a special relish for sending the military into Latin America to help friendly regimes chase cocaine growers and suppliers-notwithstanding such collateral damage as the April 20 deaths of an American missionary and her daughter in a small plane that a Peruvian fighter mistakenly shot down.

Walters revealed his mind-set in 1996, when he assailed the Clinton Administration’s emphasis on drug treatment for hard-core addicts as "the latest manifestation of the liberals’ commitment to a `therapeutic state’ in which government serves as the agent of personal rehabilitation." In fact, treatment programs have proven more effective on a dollar-for-dollar basis than criminal sanctions-although many addicts cannot get access to treatment unless they first get themselves arrested.

In his Wall Street Journal op-ed, Bennett argued that the Reagan and (first) Bush Administrations had been winning the war on drugs until the Clinton Administration took over with a policy of "malign neglect." He stressed that between 1979 and 1992, "the rate of illegal drug use dropped by more than half, while marijuana use decreased by two-thirds." Then, Bennett noted, the rate began to climb again, especially among teens.

But critics counter that such surveys of drug use are inherently volatile and unreliable. "In 1979, almost anybody would tell a surveyor that they smoked marijuana," says Ethan A. Nadelmann, head of the Lindesmith Center–Drug Policy Foundation; by 1992, drug use had become legally risky and socially stigmatized. And Bennett’s depiction of President Clinton as soft on drugs does not withstand scrutiny. While Clinton Administration officials softened the "war" rhetoric by speaking of drug abuse as a "cancer" and slashed the budget of the drug czar’s office, they protected their political backsides by increasing overall spending on drug enforcement and interdiction. They also outdid even Republicans in supporting savagely severe mandatory minimum prison sentences for (among others) minor, first-time, nonviolent drug offenders.

More fundamental, the surveys cited by Bennett are a less-valid window into the costs and benefits of the drug war than some other facts: the nearly 500,000 drug offenders now behind bars-many of them first-timers nailed for mere possession-which is a tenfold increase since 1980; the death toll from HIV infections and drug overdoses that could have been prevented by public health measures such as needle-exchange programs, which Bennett and Walters condemn; the crack epidemic that ravaged inner cities from the mid-1980s into the early 1990s; the undiminished hard-core abuse of cocaine, heroin, and other hard drugs, which have fallen steadily in price since 1980, and to which some users have turned as the price of marijuana-bulkier, smellier, harder to smuggle-has gone up; the gang warfare; the police corruption; the racial profiling; the invasions of privacy.

These and other harms inflicted on America by the drug war-especially in black neighborhoods, where families have been decimated by drug-related incarceration-dwarf the importance of the fluctuations in pot smoking among middle-class teenagers that so interest Bennett. Ninety-nine percent of them will never be serious drug abusers.

Nixon went to China. Bush should go to a commonsense drug policy that might actually work. It’s not too late.

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Countless thousands of people are rotting in prisons all across America–many in Texas–for being caught with small amounts of cocaine or crack, its smokable variant. Many were only peripherally involved in drug sales. Some were mere users. As governor of Texas, Bush–like most other politicians in both parties–has joined in this orgy of punishment with enthusiasm, signing laws that toughen penalties for drug users as well as pushers, and that send juveniles as young as 14 to prison for especially serious crimes, including some drug crimes.

How can he square this with his position that whether he used drugs is irrelevant to his candidacy? If Bush won’t tell us whether he used cocaine or other illegal drugs in his first 28 years–and there’s no evidence that he did–he should at least tell us whether his admitted but unspecified “young and irresponsible” escapades would have landed him in prison had the drug laws he supports been enforced against him.

In 1997 Bush signed a measure authorizing judges to give jail time to people convicted of possessing (or selling) less than one gram (one twenty-eighth of an ounce) of cocaine. Texas sentencing guidelines had previously prescribed mandatory probation for such small quantities. And in 1995, Bush pushed through the new law expanding the list of crimes for which juveniles as young as 14 (down from 15) can be tried and imprisoned as adults.

It’s not that Bush has been exceptionally tough on drug crimes. Most national Democrats, including President Clinton and Vice President Gore, support mandatory federal penalties for small-time drug offenders that are far harsher than the laws in Texas, where judges at least have discretion to show leniency to nondangerous abusers. Still, there is strong journalistic justification for confronting any drug use in Bush’s past. That would foster debate on a vital issue of national policy: should Congress and the next president (as well as the states) revise the draconian drug-sentencing regime that has packed prisons with nonviolent, small-time drug offenders–mostly poor and nonwhite–and helped send the number of Americans behind bars soaring above 1.8 million?

As James Madison wrote in Federalist 57, one of the Constitution’s safeguards against “oppressive measures” is that Congress “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of society.” The same logic argues that politicians should be pressed to say–and voters should be spurred to think about–how they would have fared if they had committed their own youthful indiscretions in the presence of (say) an undercover cop.

Any Bush admission that he used cocaine when he was (say) 25 years old–if he did–should force him, his supporters and the rest of us to do some hard thinking about whether today’s 25-year-olds (and 18-year-olds) should go to prison for doing the same thing.

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A momentary glance outward-from a taxicab, while reading a legal brief defending tobacco companies’ First Amendment right to advertise-sufficed to send the billboard’s message skipping through my synapses, sped by splashes of color.

Similar messages are everywhere-magazines, buses, drugstores, ballparks, T-shirts-pressing in on my two preteen daughters and their peers, as they careen with undue haste toward "woman things."

Can the government restrict such ads in the interest of protecting kids from getting hooked on deadly tobacco products? Or would such restrictions (if upheld) "destroy the commercial speech doctrine," as a tobacco lawyer argued earlier this year before U.S. District Judge William Osteen of Greensboro, N.C.?

This is the most important clash of constitutional principle-perhaps the most important issue of all-in the whole, vast, spreading tobacco war. It should be resolved by allowing the government reasonable latitude to restrict (though not to abolish) tobacco ads.

The First Amendment front is relatively quiescent for now. The Supreme Court declined on April 28 to review a federal appellate decision upholding Baltimore’s broad curbs on billboard advertising of tobacco and alcoholic beverages. Judge Osteen also avoided the First Amendment issue in his much-publicized April 25 decision on the Food and Drug Administration’s proposed regulations. While upholding the FDA’s jurisdiction to regulate the manufacture and sale of tobacco products, the judge blocked the agency’s proposed curbs on advertising and promotion on the ground that Congress had not specifically authorized such regulations.

But the First Amendment issue will keep coming back. The FDA will seek to reinstate its proposed advertising restrictions on appeal; the Federal Trade Commission seems poised to make its own attack on tobacco ads; New York and other cities may join Baltimore in imposing curbs; and any global settlement growing out of negotiations between the tobacco industry and its adversaries would require Congress to bless restrictions on advertising.

The tobacco companies (and others who profit from tobacco ads) are paying bundles to some of the best lawyers in the land to wrap the First Amendment around such ads. But the regulators have the better of the argument-with an assist from the lawyer who won the first Supreme Court ruling ever affording First Amendment protection to commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) .

That lawyer is Alan Morrison of the Public Citizen Litigation Group. As he and his colleagues Allison Zieve and David Vladeck contended in an amicus brief in the FDA litigation, while "commercial speech is entitled to substantial protection," the First Amendment does not mean that "a powerful seller-the tobacco industry-[may use] its resources to saturate the marketplace to promote dangerous products to impressionable minors."

The tobacco companies insist that their multibillion-dollar annual investment in advertising and promotion has neither the purpose nor the effect of hooking minors, but seeks solely to facilitate competition among rival brands for the dollars of confirmed adult smokers. Such claims are refilled by a mass of evidence.

There are internal documents, like the R.J. Reynolds marketing memorandum that stated: "If we are to attract the nonsmoker or presmoker, there is nothing in this type of product that he would currently understand or desire. Instead, we must somehow convince him with wholly irrational reasons that he should try smoking." There is also the common-sense perception that advertising aimed at enticing (say) 21-year-olds will entice teen-agers too.

And there is a large body of evidence that tobacco ads have, in fact, had a huge impact on teen-agers, whose smoking rates have soared. Camel’s share of the youth cigarette market rose from some 3 percent before its "Joe Camel" campaign to 13 to 16 percent within six years. Studies have also found a striking rise in smoking rates for teen-age girls after women were targeted by major promotional campaigns.

In any event, given the illegality in every state of selling tobacco products to minors, even the tobacco industry has had to concede the validity of curbing ads "directed at or primarily received by those under 18," in the words of tobacco lawyer Daniel Troy of D.C.’s Wiley, Rein & Fielding, during the Feb. 10 argument before Judge Osteen. "A ban on tobacco advertising in [the] Weekly Reader or Boys Life… would plainly be OK," Troy conceded. And the tobacco industry acquiesced long ago to the 1970 act of Congress that ended all cigarette advertising on television.

Similar logic would presumably force the tobacco companies to accept a ban on, say, cigarette billboards at the entrances to school parking lots-whether the ads were explicitly aimed at children (with images of Big Bird or Sabrina, the Teen-Age Witch) or at the mothers who dropped them off.

So we are in the realm of line-drawing and balancing-"narrow tailoring," to borrow Supreme Court buzzwords. And in that realm, the government "is entitled to reasonable latitude, particularly where no blanket ban is involved and the industry is left numerous alternative means of communication," in the words of the Public Citizen brief. For example, it notes, "limiting advertisements that young people are likely to see to a black-and-white, text-only format required the FDA to draw a bright line, and it drew that line at publications with 15 percent minor readership or 2 million minor readers. The industry did not suggest any alternative lines that would serve the FDA’s goals in a less intrusive way."

Likewise, while attacking the FDA’s ban on outdoor ads within 1,000 feet of a school or playground, the industry has not said where else a constitutional line could be drawn- whether at the 500-foot mark, as suggested in the industry’s own voluntary code, or perhaps at the schoolhouse door.

Rather, tobacco lawyers warn hyperbolically that allowing restrictions like those proposed by the FDA would start us down a slippery slope toward censorship of advertising of cholesterol-clotted steaks, ice cream, and gosh knows what else. But in reality, the slope is not all that slippery. It is illegal to sell tobacco (or alcohol) to minors; much tobacco advertising demonstrably undermines that ban; and tobacco is the only legal product that kills its customers when used as intended and in moderation.

Defenders of tobacco ads seek to have it both ways: They attack the FDA’s comprehensive restrictions as "a dramatically overbroad ban" (in Troy’s words) that would leave open too few avenues for the industry to advertise effectively to adults. On the other hand, the Baltimore law restricting billboard ads was attacked (by advertising companies) as too narrow to be effective, because it left open so many alternative avenues for ads.

But as the Supreme Court held in Florida Bar v. Went For It (1995), "Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression."

Tobacco lawyers find more comforting some of the justices’ language in last year’s splintered ruling in 44 Liquormart v. Rhode Island. The Court’s holding, however, is inapposite to FDA-style restrictions on advertising of tobacco (or of liquor, for that matter). The holding was that an absolute state ban on liquor price advertising violated the First Amendment when the evidence showed it to be completely ineffective in achieving its only ostensible goal-to promote temperance by raising prices (not to protect children)-and when prices could be raised much more effectively by a tax increase. The FDA is not proposing to ban price advertising or other purely informational ads for tobacco, and the evidence suggests that the restrictions it has proposed would save lives.

Indeed, advertising curbs may be the best tool available to pursue the paramount goal of reducing the number of kids who start smoking-especially compared with the billions in damage awards sought by states and individuals in suits against the tobacco industry. Such a massive transfer of wealth from the merchants of death to almost anybody else (even the trial lawyers) might be a good thing. But how many kids would it prevent from smoking?

Some, surely, due to higher prices. Studies suggest however, that most kids who smoke aren’t very price-sensitive, preferring the most advertised, most expensive brands to cheaper generic cigarettes.

Advertising curbs cannot solve our tobacco problem. Even prohibition would not do that (Witness our cocaine problem.) But advertising curbs could save thousands, even millions, of lives. And the First Amendment, properly construed, can coexist very nicely with reasonable restrictions on the kind of information-free, be-cool, image advertising represented by the Marlboro Man, Joe Camel, and that Virginia Slims billboard.

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STUART TAYLOR, The American Lawyer: Nice to be here.

ELIZABETH FARNSWORTH: What are the facts in this case?

STUART TAYLOR: The Georgia state legislature in 1990 prompted in part by the federal indictment of Washington, D.C. Mayor Marion Barry on drug charges, passed a new law that required anyone who wanted to run for election for any high office in the state of Georgia, governor, lieutenant governor, secretary of state, commissioner of agriculture, state legislature, including judges from the Supreme Court on down had to pass a drug test first, specifically they had to submit a certificate showing that they are going to a state-approved laboratory, a doctor’s office, given a urine specimen, passed the test within 30 days of filing for the election. Two Libertarian candidates for state office in the 1994 election sued, claiming that this drug testing law violated their rights, their Fourth Amendment rights against unreasonable search and seizures, and their First Amendment rights of free speech. And the lower courts projected that claim, the Court of Appeals by a two to one vote. The candidates approved to the appeal to the Supreme Court and the Supreme Court will now decide whether it’s constitutional.

ELIZABETH FARNSWORTH: In the lower court cases the state of Georgia acknowledged that there was no evidence that people running for office had particular drug problems, right? So that’s not an issue here.

STUART TAYLOR: They did, and they had to acknowledge it; again in the Supreme Court argument, the assistant attorney general, Patricia Gilday was questioned carefully by various Justices and admitted that there had been so such problem in Georgia but said, well, there might be a problem someday and we ought to be able to do this anyway.

ELIZABETH FARNSWORTH: Tell us what else happened in the court today. How did the arguments go and what kinds of questions did the Justices ask?

STUART TAYLOR: One of the candidates who had run for lieutenant governor in ‘94, a man named Walker Chandler, argued on his own behalf. He went first since he was appealing. And the Justices asked him a lot of tough questions, and he didn’t have many answers for them–a lot of I don’t knows, I don’t know, I don’t know, and some of them were somewhat frustrated with his inability to answer their questions. But they also seemed, some of them, very sympathetic to his point of view. Justice Scalia in particular kept trying to help him. At one point when Justice Kennedy was pushing him to say, well, it would be okay just to have a physical exam requirement, wouldn’t it, and Mr. Chandler said, well, I guess that would be okay. And Scalia said, what do you mean you guess that would be okay, and you’d have to strip, wouldn’t you? That would be a search, wouldn’t it? You object to that, don’t you? And Mr. Chandler guessed that he did object. But various Justices I think showed their hands both in questioning him and in questioning Assistant Attorney General Gilday. And they’re very skeptical in questioning her as to what is the reason for this law, if there isn’t any real drug problem there?

Also, Justice Breyer emphasized it would be very easy for a drug user to evade detection under this law because the candidate gets to choose when the test is performed. So Breyer said, what’s the purpose of this thing essentially? Is it just symbolic? Is it a political statement? And the state’s lawyer said there was–it was a symbolic political statement, but it was also a way of catching people who might be very serious drug abusers. But from the way the questioning went, it looked like this could be–I wouldn’t predict it, but it’s a possibility that this may be the first drug testing law the Supreme Court ever strikes down.

ELIZABETH FARNSWORTH: Now the people, the Libertarians who were running office actually said that it violated their constitutional grounds on two–in two different ways, right, both their Fourth Amendment and also First Amendment rights.

STUART TAYLOR: Yes. The First Amendment–

ELIZABETH FARNSWORTH: How does that go?

STUART TAYLOR: The First Amendment claim was, in essence, we don’t believe in drug laws, and we don’t want to have to assert or symbolically that we do by assuring the state that we believe in them somehow by complying with them, even though, in fact, they did comply after failing to get the lower court to strike down the law. But the Justices did not seem to want to spend much time on the First Amendment argument, and none of them indicated they took it very seriously. They were very interested in the Fourth Amendment argument as Justice Stephens, among others said, and they pressed the state lawyer with questions like, well, suppose you wanted to require that anybody standing for office submit to a full search of their house just to make sure there aren’t any drugs hidden in there; would that be constitutional? And the state lawyer admitted that it not. Somebody else said, what about all your private papers, hand over all your financial records, not just a financial disclosure statement, everything, all your bank statements, would that be constitutional? The state lawyer admitted that it would not. And the Justices Scalia, Souter, among others, were pressing for-well, why should you submit to a body search if, if you wouldn’t have to submit to a home search?

ELIZABETH FARNSWORTH: What precedents exist for deciding this case?

STUART TAYLOR: There have been three drug testing cases, all of which the Supreme Court has upheld a particular program. Two were in 1989. One of them involved train crews involved in accidents and the justification for testing there was there was–there was a lot of proof that train accidents are often caused by drug abuse or alcohol abuse and that there was a pretty good likelihood that this would be a way of detecting the cause. And that was seven-two. But the same day a much closer decision, five-four, upheld a testing program at customs employees seeking promotions, and that one Justice Scalia dissented very forcefully, signaling that he’s not going to go along all the time. And the third case was in 1995 involving testing of high school students who want to go out for sports teams. The court upheld that with some emphasis on the fact that high school students don’t have quite the same First Amendment rights that everybody else might have.

ELIZABETH FARNSWORTH: And I assume these cases came up today in the arguments. They were referring to them, both sides?

STUART TAYLOR: They did. Both sides referred to them. The state said that our program should be upheld on the same basis as these were, and the plaintiffs–the candidates said this program doesn’t have the same special justifications that those programs did, and should be struck down. Justice O’Connor, for one, who dissented in the school drug testing case stressed today that there didn’t seem to be any very compelling showing of a special need, because these are what are called suspicionless searches. Typically, a law enforcement search has to be justified by some reason to suspect that the individual to be searched may have committed some crime. Here you’re searching everybody who wants to do a particular thing, and there’s no reason for suspecting any of them. And the court has required special justifications.

ELIZABETH FARNSWORTH: And briefly, what would be the implication of striking down this Georgia law? Is this something that is–this is not very widespread in this country, right, this kind of law?

STUART TAYLOR: No. As far as I’m aware, it is the only such law. The major implication would be it would finally show that there’s a line the Supreme Court is not going to allow governments to cross in terms of these proliferating drug testing requirements which they’ve upheld and upheld and upheld. If they strike one down, it says, okay, there are some limits here. It would also obviously deter other states from adopting similar laws and some of the Justices seem to be worried that they’d better be careful less they cast out, for example, in the constitutionality of financial disclosure laws for public officials which could be attacked under a somewhat similar rationale.

ELIZABETH FARNSWORTH: Well, thank you very much, Stuart.

STUART TAYLOR: Thank you.

The post NewsHour: Supreme Court Action: Mandatory Drug Testing – January 14, 1997 appeared first on Stuart Taylor, Jr..

STUART TAYLOR, The American Lawyer: Yes. The Michigan case is a little bit more sympathetic for the defendant than this case in California, because the defendant in Michigan, for one thing, is not a drug dealer. He grew some marijuana near his home, and he cured it in his home, and he, his wife, and his grown son smoked it until the son broke up with his fiancee, who turned them all in, and they were arrested, or he was arrested, and first, his property, the government tried to forfeit his home and his ten acres, and then they prosecuted, convicted him, and wanted to send him to prison for five years. And he’s in the Supreme Court saying, they can’t do both of these things to me.

CHARLAYNE HUNTER-GAULT: Are the cases together? I mean, they’re joined?

STUART TAYLOR: The cases have been consolidated because they have a lot more in common than they have indifferent, but it would be possible for, for one of them to win and the other to lose, not likely but possible.

CHARLAYNE HUNTER-GAULT: And basically just to reiterate that the case is simply–can you say the case is simply–

STUART TAYLOR: Simply about–

CHARLAYNE HUNTER-GAULT: About–

STUART TAYLOR: Yeah. The only issue in both cases is whether the double jeopardy clause of the Fifth Amendment of the Constitution bars the government from first prosecuting someone for the crime and then trying to forfeit their property in a separate proceeding, or doing the same thing in the reverse order.

CHARLAYNE HUNTER-GAULT: Why is this case so important?

STUART TAYLOR: The government says that there are hundreds of appeals and potentially thousands of appeals by drug dealers in prisons all over the country who are saying, hey, they did the same thing to me; they either have to give me my property back, or they have to let me out of prison, depending on which proceeding came first, and the government says it throws a huge monkey wrench into their very active forfeiture program, which has garnered some $4 billion over the last 10 years for the government, if they have to worry about people being able to get out of prison because they didn’t dot their "i’s" and cross their "t’s" right when they brought these different proceedings.

CHARLAYNE HUNTER-GAULT: And that money, as we heard in the taped piece, is turned back to government, law enforcement officials to continue to fight the so-called drug war, right?

STUART TAYLOR: Yes. A lot of it goes right back to the agencies that do the forfeitures in the first place, which has been criticized as giving them a particular incentive, a very self-interested incentive to do this very aggressively.

CHARLAYNE HUNTER-GAULT: What are the potential ramifications of this case? Let’s start first with the defendants.

STUART TAYLOR: If the defendants win, the man, Mr. Ursery, the man in Michigan, the marijuana grower and smoker, doesn’t have to go prison. He doesn’t get his $13,000 back, which is how he settled the effort to forfeit his home, but he avoids five years in prison. If the two drug dealers in California win, because their criminal proceeding came first, they theoretically get their property back, their helicopter, their car, their gold bars and everything, silver bars. I’m not sure what they’re going to do with the helicopter in prison, but theoretically, they have a right to have it back. Those are the immediate consequences for the people involved in the cases. Now, of course, if they lose, they all, Mr. Ursery has to go to prison, and the other two guys stay there and don’t get the helicopter or any of the other stuff back.

CHARLAYNE HUNTER-GAULT: All right. And what are the potential ramifications for the war on crime?

STUART TAYLOR: If they win–

CHARLAYNE HUNTER-GAULT: I’m sorry–the war on drugs.

STUART TAYLOR: If they win, the government claims the war on drugs will be inhibited. I think defense lawyers are rather skeptical of this. As Laurie Levenson pointed out on the taped piece, the government has a lot of ways they could live with a decision against them in this case. It would make it a little bit harder for them and take away some of the tactical advantages they have, and it might cost them some convictions and some forfeitures that they’ve gotten in the past, when they hadn’t anticipated this problem.

CHARLAYNE HUNTER-GAULT: How did each side argue today?

STUART TAYLOR: The defense lawyers came in and said this is a simple double jeopardy case. As Lawrence Robins, representing Mr. Ursery, said, this case is clearly controlled by the court’s cases, meaning recent Supreme Court precedents lay down rules as to what’s punishment and what’s being punished twice, and what’s the same offense that make it clear the double jeopardy clause bars what was done to his client. The government, on the other hand, the prosecution, Michael Drevon, the assistant solicitor general, argues we win about four different ways and the three most important were the civil forfeiture is not a punishment as defined by the law, these are not two separate proceedings, they’re one integrated proceeding as defined by the law, and he also argues that, that they’re not the same offense, that there are some things you have to prove to win the criminal conviction that you don’t have to prove to get the civil forfeiture and, therefore, they’re not quite the same.

CHARLAYNE HUNTER-GAULT: And how were the Justices reacting?

STUART TAYLOR: It seemed pretty clear that they were reacting in favor of the prosecution, the majority of them. A couple of them gave a little bit of a hard time to, to the government on some, some issues, some of its logic. Justice Souter, for example, said to the government, look, your position is logically incoherent on some issues–

CHARLAYNE HUNTER-GAULT: Meaning–

STUART TAYLOR: Meaning that the government was arguing that punishment for purposes of the double jeopardy clause may mean something different than punishment for purposes of some other provisions of the Constitution, such as the Eighth Amendment "excessive fines" clause, because he argued he was trying to distinguish some recent, a 1993 Supreme Court precedent, and so he was cutting, he was splitting hairs in a way that Justice Souter found didn’t work. Justice Scalia made the same point, but it seemed as though Justice Scalia and most of the members of the court, particularly Clinton-appointed Justice Ruth Bader Ginsburg, were very much looking to rule for the prosecution in both of these cases.

CHARLAYNE HUNTER-GAULT: All right. Well, we’ll just have to wait for the ruling. Thank you, Stuart.

STUART TAYLOR: Thank you.

The post NewsHour: Double Jeopardy in the War on Drugs – April 17, 1996 appeared first on Stuart Taylor, Jr..

And these days, it sometimes seems, scarcely any judicial question arises that is not resolved, sooner later, into a racial question.

So it is that the draconian federal penalties for nonviolent drug offenses have finally attracted a bit of public notice-not because they are called "savagely severe" by people like Richard Posner, the Reagan-appointed judge of the U.S. Court of Appeals for the 7th Circuit, but because they are called racist by people like Jesse Jackson.

Some of these penalties are racist. But that’s not the heart of the problem. The heart of it is that Congress has adopted-and President Clinton and his equally gutless attorney general, Janet Reno, are perpetuating-a regime of grotesquely excessive mandatory minimum prison terms for drug defendants of all races.

This regime has wrecked the lives of thousands of small-time, nonviolent drug offenders. It has done little to dent the drug problem; makes no sense as policy; and is being maintained by politicians for the most cynical of political reasons.

The especially egregious unfairness of one aspect of this sentencing regime-its requirement that each gram of crack cocaine be treated as though it were 100 grams of powder cocaine-was obliquely acknowledged both by Clinton, in his Oct. 30 announcement of his deplorable decision to reject the U.S. Sentencing Commission’s proposal to eliminate the 100-1 ratio, and by Reno, in an Oct. 26 press conference.

But when asked whether she would endorse any change at all in the 100-1 ratio, Reno mumbled, "I want… to hear from all concerned as to what the appropriate ratio might be," and "I have not been presented yet with what I think are the appropriate factors that could enable me to reach that decision." Huh?

Here we are, more than 1,000 days into the Clinton administration, and Janet Reno still has nothing to say about how to fix an exhaustively studied sentencing regime that she admits is unfair.

Reno’s explanation was, of course, hogwash. Her real message was this: "The president is scared to death of doing anything that might (however falsely) be called soft on crime, and I am a political hack, here to do his bidding. You won’t catch me sticking out my neck to avoid complicity in destroying thousands of lives that might be salvaged by a less barbaric system."

The conceit underlying the overall regime of federal drug sentencing is the notion that the multitude of factors that should be involved in determining each defendant’s degree of culpability, and appropriate penalty, can be legislatively predetermined and congealed into rigid rules. Congress’ primary method of doing this has been to calibrate prison terms to different types and weights of drugs and, in the case of crack, to choose a number (currently 100) by which the weight is multiplied to reflect the drug’s perceived special dangers.

It’s a stupid, destructive game that has purged federal drug sentencing almost entirely of common sense, has made it impossible for judges to fit the penalty to the individual crime and criminal, and produces such harsh results as to shock the consciences of almost everyone who sees it in operation, including most federal judges, conservative and liberal alike.

Take Judge Alex Kozinski of the 9th Circuit. In a recent interview (by me, for The American Lawyer), he was asked, "What do you think are some of the most grievous injustices in American society today?"

He thought for a minute, and said this: "To some extent, I think we tend to overpunish in our criminal system. Very often we put people away for 20, 30 years-sometimes more-for nonviolent crimes, usually minor drug crimes…. [I]n fact, while sitting [specially] as a district judge, I’ve imposed sentences on people that I thought were draconian. And there was nothing I could do about it. They qualified under the sentencing law, and basically their lives were snuffed out-or at least any meaningful life."

Kozinski was compelled in one case to send a man named Fred Hagler to prison for 20 years, without parole. Hagler’s crime: acting as a middleman in a small-time dealer’s sale of 2.3 ounces of crack, for $1,350, to undercover agents.

Hagler got 10 years because the crack weighed more than 50 grams (about two ounces), and another 10 years because prosecutors cranked into the formula one of his two minor prior convictions for simple possession of cocaine. He would have gotten life without parole-more than most murderers- except that prosecutors gave him a break (!) by disregarding the other prior conviction.

This for a 37-year-old doer of odd jobs who eked out a meager existence with his common-law wife and three children in a Los Angeles ghetto, and who was wiretapped asking a customer to lend him $60 so he could go down to Toys-R-Us and buy his little boy a birthday present.

It is the Fred Haglers of this world who get caught and packed into federal prison, only to be replaced by legions of ever-younger men, women, and children with nothing better to do than sell crack.

And yes, the Fred Haglers of this world are black-almost all of them. According to a May 21, 1995, article in The Los Angeles Times, "[n]ot a single white, records show, has been convicted of a crack offense in federal courts serving Los Angeles and six Southland counties since Congress enacted stiff mandatory sentences for crack dealers in 1986…. while hundreds of minorities have been locked up in federal prison."

Nationwide, black defendants accounted for 88 percent (and non-Hispanic whites for just 4 percent) of federal convictions for crack cocaine distribution in 1993, even though die majority of crack users are white. So black cocaine defendants receive far longer sentences on average than similarly situated white cocaine defendants.

Nor is this just a matter of blacks being the ones who happen to peddle cocaine in its most dangerous form. Plenty of whites sell crack, but Reno’s crack-busters target inner city defendants-which means blacks and Hispanics-almost to the exclusion of whites.

It’s not so much that Congress consciously rigged the system for the purpose of punishing blacks more harshly. But the crack sentencing regime is racist, in the sense that Clinton, Reno, and Congress insist on perpetuating the failed laws in the face of these huge disparities with no offsetting justification.

President Clinton himself asserted on Oct. 16 (in his speech on the day of the Million Man March) that "something is terribly wrong" when almost one-third of black men in their twenties are either in jail, on parole, or on probation, and when "that is a disproportionate percentage in comparison to the percent of blacks who use drugs in our society."

Yet two weeks later, Clinton made sure that a disproportionate percentage of blacks would continue filling up federal prisons, when he signed a bill blocking the Sentencing Commission’s proposal to eliminate the 100-1 crack-to-powder ratio.

The commission had recognized that crack might pose special dangers, and had accordingly proposed to fine-tune penalty enhancements for some crack defendants, particularly those with a record of violence. But that wasn’t tough enough for Clinton.

It should have been. The dangerousness of crack as compared with powder cocaine has been greatly exaggerated. It’s true that smoking crack produces more rapid and intense highs-and perhaps more addiction-than does snorting powder cocaine, and that the crack market involves small-dose sales to low-income users and much violence among sellers.

But as the Sentencing Commission found in a 242-page report: Powder cocaine, when injected, is just as addictive as crack and more deadly; it is easy to convert powder cocaine into crack; "cocaine is cultivated, processed, imported, and distributed almost exclusively in the powder form at the higher levels of the drug distribution chain," and therefore, the crack penalties often have the perverse effect of "punishing low-level (retail) crack dealers far more severely than their high-level (wholesale) suppliers."

In addition, neither crack nor powder cocaine "excites or agitates users to commit criminal acts," or leads them to "commit large numbers of violent acts to raise money to buy drugs," according to the commission’s report. And powder cocaine has the same effects on fetuses as crack. In short, crack has gotten far more than its share of the blame for inner city ills that would still be frightening if crack had never been invented.

But our president, while posturing about ending crack’s "devastating impact on … inner city communities…and families," cynically-chases the white hard-line-on-crime vote by wreaking further devastation on those same families. He is locking up their sons, husbands, and fathers, and some of their mothers and daughters, for the sake of some votes. That’s the barbaric, racist, Bill Clinton-Janet Reno drug policy. To borrow from an old saying of Vietnam War vintage, they are destroying the ghetto in order to save it-or, rather, to save themselves.

The post Clinton: Jailing the Ghetto for Votes appeared first on Stuart Taylor, Jr..