This bulletin was written at the 8th International Conference on Drug Policy Reform, hosted by the Drug Policy Foundation, at the Loews L'Enfant Plaza in Washington D.C. I attended the conference and spoke on a panel during the Plenary session on Saturday morning on a panel on new drug reform groups, chaired by Ethan Nadelmann. The newsletter enclosed is the first of three daily conference letters written on the scene by the DPF staff and distributed at the conference (and now on the internet). So if you couldn't make it to the conference, maybe you can still get a little flavor of it from these bulletins. I had intended to get them out on the net during the conference, but was prevented by some unforeseen technical difficulties. I hope to have the second and third of them online early next week.
I had also intended to get The Activist guide online before I left for Washington, but was extremely busy wrapping things up and wasn't able to get that done. I hope to get it online today or tomorrow before I go away for Thanksgiving. All the urgent information in it has already been distributed to the email team in previous bulletins, so that is why completing the online version was not first priority. I will try from now on to get the online version of The Activist Guide out closely following the hardcopy publication. Remember, I am only emailing The Activist Guide to those of you who have requested it. It can also be found on talk.politics.drugs and I will soon be announcing ftp, gopher and www sites as well.
- David Borden
After welcoming conference attendees at this morning's opening session, DPF board members quickly turned to the business of challenging reformers to get involved and take the reform movement to the next level.
DPF President Arnold Trebach summarized recent developments for the foundation, including the addition of David C. Condliffe as executive director and new support from the Open Society Institute. In a hopeful presentation, Trebach pointed to the many good signs for reform amid the hostile climate always faced by advocates of major changes in drug policy. Even the recent Republican party takeover of Congress could provide opportunities, he suggested. What reformers must do, Trebach said, is to encourage the practical and ethical thinkers on the Republican side -- and they are there -- to step forward and take a stand on this issue. Condliffe said that, despite the optimism expressed by Trebach, this is not a time for self-congratulation. He added, There is tremendous suffering being caused by our drug policies, but all that is being offered are overly simplistic, macho-sounding solutions. Condliffe said that the role drug prohibition plays in urban problems is too often absent from the discussion of solutions, which he characterized as anti-urban [and] racially coded. It is time for this nation to stop pretending that violence is caused by violence on television, or in movies, or in songs, and to admit the role of drug prohibition, Condliffe said.
Speaking of the DPF's new programs, opportunities and needs, Condliffe summarized the organization's philosophy: let the facts speak for themselves, and take concrete action. He added that DPF will remain a big tent, and that reformers of many stripes must mull through this together. Finally, Condliffe issued two direct challenges: 1) that each person who cares about reform must become actively involved, paying what he or she can for DPF membership, enlisting five or more friends or associates, and hosting fund-raising events, even on a small scale, and 2) that next year, at the DPF conference in Santa Monica, we should double or even triple our registration, as an indication of progress. DPF's new support from OSI is a tremendous opportunity, but, Condliffe said, this will be an opportunity lost if reformers do not raise their game now.
Next was Ira Glasser, executive director of the American Civil Liberties Union and a member of the DPF board. He noted that some key, early goals of reformers have been achieved. For instance, bringing together advocates of change and making them heard were crucial first steps. As a result of the movement's success on these points, Glasser said, prohibitionists no longer try to claim there is no constituency for finding alternative policies. However, Glasser explained that much work remains to be done to convert reform ideas into practice at the level of mainstream political action.
Next at the witness stand was U.S. District Judge Robert Sweet, who joined the board of directors this summer. Sweet spoke of the widespread sense among the public that our current drug and crime policies are not working, and stressed the need for reformers to educate the public about logical next steps. He noted that, from the bench, judges get a bird's eye view of the costs of prohibition, as exhibited in everything from petty drug deals to large-scale money laundering schemes. The key is making the public aware of the resources wasted by our current policies.
Ethan Nadelmann, formerly of Princeton University and now director of the Lindesmith Center in New York, concluded the panel. Nadelmann described his first meetings a few years ago with George Soros, the financier and philanthropist who provides OSI's funding. After their first auspicious discussions, Nadelmann said, the two concluded that, it would be foolish to stand watching on the sidelines and say we have nothing to offer to the formulation of drug policy. On the contrary, Nadelmann said, there is plenty that can be done within the prohibition framework to bring about a new, more sensible and compassionate approach to drug use and drug users. Orienting reform efforts toward the immediately achievable is not only possible, but necessary, Nadelmann concluded.
DEA ANTI-LEGALIZATION BOOKLET
In his presentation on Thursday morning, DPF President Arnold Trebach drew attention to a conference sponsored this past August by the Drug Enforcement Administration. At the conference, held at the Marine base in Quantico, VA, DEA officials discussed the best ways to react to the growing reform movement. A result of the conference was a 42-page booklet designed for law enforcement officials, which was entitled "How to Hold Your Own in a Drug Legalization Debate." DPF has copies of the booklet, which Justice Department officials said would not be available until Jan. 1995. Trebach promised to make copies available to conference participants. Check the DPF bookstore beginning on Friday, where the booklet will be available for $1 (to defray copying costs).
THE REPUBLICANS AND CRIME: WHAT'S NEXT?
EDITORS' NOTE: The chief topic of discussions during the last week in Washington has been "How Will the Republican Congress Deal with (name your issue)." We asked Cheryl Epps, the new DPF government affairs director, for some insight. The result: Last week's Republican Party takeover of the House and Senate could mean changes in the direction of national crime legislation. There is one main reason to think that these changes may not be dramatic. Anti-crime policy, including efforts to escalate punishments and to more vigorously enforce drug prohibition, have been very much a bipartisan effort over the last decade or more. It's hard to imagine how much "tougher" crime policy could get without ranging further into the absurd. The anti-crime portion of the GOP's "Contract with America" is the "Taking Back Our Streets Act." The Act is said to embody the Republican approach to crimes, making sure that the criminal justice system is fair and impartial for all, and making sure that local law enforcement officials (who are on the streets every day), and not Washington bureaucrats, direct the distribution of federal law enforcement funds.
The list of issues addressed by this Act doesn't relate much to drug policy reform: $10 billion dollars more for state prison construction; habeas corpus reform; mandatory restitution to victims from convicted criminals; an additional $10 billion for local law enforcement spending; streamlining the alien deportation system.
The act does include a recommendation for additional mandatory penalties for drug crimes involving firearms. The GOP would create a mandatory 10-year penalty for violent or drug crimes that involve possession of a gun. Penalties would increase to 20 years for a second conviction and life in prison for a third. For anyone discharging a firearm with intent to harm a person, the first offense would net 20 years down the river, with 30 years for the second offense, and life after that.
One legal change advocated in the Contract would affect nearly all drug prosecutions. The Republicans plan to gut Fourth Amendment law by providing a warrantless "good faith" exemption to the exclusionary rule. The rule, in short, prevents the introduction of evidence at trial that was seized improperly by police. The GOP would all but eliminate judges' authority to declare what is an improper seizure, by giving police the chance to explain away behavior that might now be declared beyond the pale.
It's one thing to adopt a "good faith" exemption for warrant searches: under this scenario, law enforcement seeks a valid warrant from a neutral magistrate and executes a search pursuant to it; if the warrant is later ruled invalid, the evidence would not be "excluded" because it was gathered pursuant to a then-valid warrant. This makes some sense, in that the purpose of the exclusionary rule is to punish law enforcement for unlawful searches. The Supreme Court agreed to this exemption for warrant searches in 1984.
However, a "good faith" exemption for warrantless searches basically puts the cops in the judge's shoes: under this scenario, a cop seizes evidence without a warrant but makes a representation to the judge -- in the inevitable suppression hearing -- that he or she seized the evidence "in good faith"; that is, they thought the evidence was seized in accordance with the Fourth Amendment.
The first problem with this is the timing. The police officer is called upon to justify his or her actions after the fact. Putting the best face on this, time dulls memories, perceptions don't jell, different people see different things, etc. In the worst-case scenario, rationales are developed in a "self- help" mode, where some cops lie to protect themselves.
Much talk on the issue of mandatory minimum sentencing centers on the first glimmer of hope in years: the adoption of a "safety valve" for first-time, nonviolent drug offenders. With over 19,000 minor drug offenders serving mandatory time in federal prisons, it is comforting to know that Washington is offering some relief, even though it is meager. The Congress-passed and Clinton-approved Violent Crime Control and Law Enforcement Act of 1994 will exempt some nonviolent drug criminals from mandatory minimum sentences, which are typically either five or 10 years long. The savings in taxes is estimated at $37 million per year.
The catch is that the exemption or "safety valve" allows drug offenders to serve shorter sentences only if they are squeaky-clean. To qualify, a minor drug case must meet the following criteria: the Sentencing Guidelines mandate at least two years; the offender has not been previously convicted of a crime requiring incarceration for more than 60 days; the offender did not use or threaten to use violence, or possess a dangerous weapon, during the offense; the offense did not result in death or serious injury; the offender was not an organizer and was not part of a continuing criminal enterprise; and the offender cooperated by providing all available information that could assist ongoing police investigations. Most important, the safety valve allows the judge, not the prosecutor, to determine whether an offender meets the criteria. By returning discretion to the bench for these (limited) cases, the safety valve takes a healthy chop at the root of all mandatory minimum sentencing, which is otherwise a tool used by the prosecution. Clearly, in an adversarial criminal justice system, discretion must reside with the judge. The minor drug offenders who can be diverted from mandatory minimum sentencing will only add up to a trickle. The U.S. Sentencing Commission, which advises Congress on sentencing matters, estimated that the safety valve could re-route 1,415 drug defendants in one year. A retroactive version of the same safety valve would have allowed re-sentencing of only about 5,000 prisoners altogether. During the final stages of the crime bill, congressional negotiations killed a retroactivity to allow Republicans to feel "tougher" on crime than the Democrats, who were running Congress at the time. Without retroactivity, the safety valve is still economical and smart. It makes sense to reserve mandatory minimum sentences, and prison space in general, for violent offenders; shorter sentences for minor offenders will save taxpayer dollars.
The safety valve also demonstrates that Congress is beginning to chisel out distinctions between minor drug offenders and violent felons. Drug offenders are unfairly sentenced according to the amount of drugs they were caught with, creating sentences that do not fit the crimes. The safety valve is not perfect. For example, it would not have applied to the surprise star of today's plenary session on mandatory minimum sentencing. Jeff Stewart (brother of FAMM president Julie Stewart) was a bit too "involved" in his offense to be spared the full weight of his five-year sentence, even though he was a first-time, nonviolent offender. Tomorrow: Jeff Stewart's crime and punishment.
HATCH, HYDE FAVORITES TO BE CONGRESS DRUG CZARS
Roughly half of the legislative pledges in the "Contract with America" concern issues falling under the jurisdiction of the congressional judiciary committees. Leadership for the committees is not yet finalized, but some projections are possible. Senator Orrin Hatch (R-Utah), former ranking minority member of the Senate Judiciary Committee, will, no doubt, replace Democrat Senator Joe Biden at the helm of Senate Judiciary. The chairmanship of the House Judiciary Committee will probably go to either Represtentative Carlos Moorhead (R-Calif.) or Representative Henry Hyde (R-Ill.).
The prospect of a Hyde chairmanship offers some surprising hope. During the 103d Congress, Hyde authored a bill to reform civil asset forfeiture law and spoke out vigorously against mandatory minimum sentencing. He took both of these positions despite criticism from colleagues.
Hyde explained his forfeiture reform bill to a Cato Institute forum last year. He said simply that his conservative principles led him to try to curb an abuse of power by a growing government. His position on mandatory sentencing was also one he explained in terms of justice and fiscal sense. Such talk may not be the stuff of dreams for likely House Speaker Newt Gingrich, but Hyde's views could be a harbinger of a sensible new conservative take on drug and crime policy.
HAVE YOU EVER NETWORKED ABOUT DRUG POLICY REFORM...ON THE BEACH?
At next year's DPF conference. The 9th International Conference at the Loews Santa Monica Beach Hotel, Santa Monica, CA, Oct. 18-21, 1995.
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