The Ostrich File #5
January 12, 1996
Editor: Jim Rosenfield
Tel: (310) 836-0926
"The war on drugs has turned into a war on civil liberties and on the entire Bill of Rights. The policy of the ACLU is drug decriminalization. We have to work on changing the way people think about drugs and prohibition. The ACLU's role is to educate people as to why change is good. Rights are won incrementally."
-- Ramona Ripston


Sentencing Project Report:
1 in 3 Young Black Men In Criminal Justice System

According to a recently released report by The Sentencing Project, nearly one in three African American males in their twenties, was in prison, on parole or otherwise under the supervision of the criminal justice system in 1994.

The Sentencing Project advocates alternatives to prison sentences. In their national study, they found that the number of young black men serving a criminal sentence has risen quickly -- up more than 30 percent since 1989 when roughly one in four was under judicial system supervision.

The statistics reflected changes in policies that have resulted in a greater number of defendants receiving prison sentences, especially for drug offenses, rather than an increase in the number of crimes committed by black men.

Last year an estimated 827,440 men or 32.2% of African American men age 20 to 29 were under judicial supervision, compared with 6.7% of white men of similar age and 12.3% of Hispanics. Blacks make up about 12% of the population of the United States.

According to Marc Mauer, coauthor of the study, the ever expanding rate of arrest and incarceration has largely resulted from the prosecution of drug offenders. There had been a 510% increase in such inmates during a 10-year period beginning in 1983, when the estimated number of drug inmates stood at 57,975. By 1993, the number had grown to 353,564. Blacks were disproportionately represented in the boost. African Americans make up 13% of the nation's regular drug users, but represent 35% of narcotics arrests and 55% of convictions

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Cocaine Sentences Still Unjust

According to a New York Times Editorial, dated Nov. 5, 1995, Congress is ignoring the recommendation of its own Sentencing Commission and is maintaining a race-based disparity with no rational basis,

A decade ago, Congress decreed that crimes involving crack cocaine be punished 100 times as harshly as crimes involving powdered cocaine, hot on the heels of new "drug epidemic" reports..

The U.S. Sentencing Commission recommended that the sentencing disparity be abandoned, but last year a "demagogic" Congress passed legislation maintaining the disparity and President Clinton signed it into law.

Crack, the cheaper, smokable form of cocaine is nearly identical to powder at the chemical level. Selling five grams of crack brings a mandatory five-year minimum sentence. It takes a sale of 500 grams of powder to bring the same penalty. Crack is the only drug for which the penalty for simple possession is a mandatory five years. Possession of powder carries a one-year maximum. Often it punished simply by probation and treatment. Crack defendants are overwhelmingly black. Whites are more often convicted of powdered cocaine violations, with lesser sentences. In the face of the Sentencing Commission's recommendation to equalize the penalties by lowering crack sentences, Congress' refusal to rectify the injustice shameful. It has no rational basis.

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More in U.S. Are in Prisons, Report Says

In the New York Times last August, reporter Fox Butterfield writes, "The number of Americans under the control of the criminal justice system reached 5 million last year, including a record 1.5 million inmates in federal and state prisons and local jails and another 3.5 million convicted criminals on probation and parole, according to a comprehensive Justice Department report."

If this continues the number of Americans behind bars or on probation or parole will soon approach 6 million. By 2006, the number of people behind bars will exceed the entire population of New York City, about 7.3 million.

Alfred Blumstein, a criminologist at Carnegie Mellon University, stated that the increase in imprisonment removed some criminals from the streets and that fewer murders would be committed as a result, but that since 1985 there was only a 10 percent reduction in murders among adults over age 24. That is a disproportionately small gain compared to the great increase in the number of prisoners.

The report found that from 1980 to 1993 the proportion of drug offenders in state prisons rose from 8% to 26%. The proportion of drug offenders in federal prisons went from 25% to 60%.

Almost three quarters of the new admissions to prisons are now black or Hispanic. By 2010, "we will have the absolute majority of all African-American males between age 18 and 40 in prisons and camps," said the report

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Ending the Drug War in Latin America

In a Los Angeles Times Commentary, last September, Professor Jorge Castaneda called upon Latin America governments "to declare victory over the cartels and end the costly and ineffective drug war".

In the Latin American drug scene, traffickers have become businessmen; governments are seduced and countries have been pressured into a war they cannot win and do not want to fight by Washington.

The situation is worsening. President Ernesto Samper of Colombia was elected in 1994. His campaign finance director subsequently confessed to receiving campaign donations from the Cali cartel. Samper survives under a cloud of suspicion. He says his associate was commissioned by the cartel to join his campaign, co-opt the candidate and later frame him if he refused to go along with Cali demands.

Politics in Colombia is now permeated by the cartels, by either the Cali and Medellin cartels or by new, rapidly emerging competitors operating throughout the country.

Gustavo de Greif, former attorney general and Colombian ambassador to Mexico, whose commitment to combatting the drug trade in Colombia is corroborated by his success in dismantling the Medellin cartel and tracking down Pablo Escobar, is calling for the legalization of drugs in Latin America. He argues that the cost of the drug war is far greater for Latin American nations. In the meantime, Washington is explicitly stating that if Latin American governments are not willing or able to wage the war on drugs by U.S. standards, then the United States should be allowed to act in their behalf. The U.S. must either persuade Latin American societies that the war on drugs can and should be won or declare victory and go home.

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Civil Courts Also Feel Squeeze of '3 Strikes'

In an August '95 report by Stephanie Simon in the Los Angeles Times, the impact on the civil court system of ill-advised 'three-strikes' legislation comes to light.

An onslaught of criminal cases filed under California's "three strikes" law has overwhelmed not only the criminal courts, but the civil division as well.

In unexpected numbers, suspected killers, rapists and robbers are demanding trials to fight off tough "three strike" penalties. These criminals might otherwise accept plea bargains. Facing a mandatory 25-years-to-life sentence, they have no incentive to plead guilty. Most demand a jury trial. Criminal judges simply cannot handle the load.

Since law requires speedy trials for criminal defendants speedy, courts have been forced to transfer criminal cases into civil courtrooms, pushing aside pending civil cases.

"It's like watching a train wreck in slow motion," Superior Court Judge Florence-Marie Cooper said. "We're seeing the civil justice system slowly crumble."

"People in our society live with the knowledge that if they need help, they can go to the courts and get it. If that system breaks down, anarchy is not out of the question," Cooper said.

Prior to 'three-strikes', Los Angeles County prosecutors wrapped up 95% of their cases with guilty pleas. Now, prosecutors have filed about 3,000 "third strike" cases. Less than half have been resolved.

At the same timee, the traditional civil workload has exploded. "Today, there is still appropriate access, but whether that's going to be true in the future, only a fortuneteller could know

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FDA Proposal on Tobacco and Kids
Protects Adults' Right to Smoke

According to a Los Angeles Times Editorial, "Drawing a Line on Kids, Cigarettes" (Jan. 4, 1996), new FDA rules designed to curb unfettered tobacco access to children also ensure the rights of adults to smoke.

Despite the blizzard of PR from cigarette companies and their allies, the FDA has focused upon protecting youngsters from a product that hooks 1 million more kids and kills more than 400,000 Americans, every year.

The FDA makes no specific statement about an adult's right to smoke, but the new rules only deal with supposed efforts to reach minors with advertising. The FDA also makes no mention of an adult right to smoke non-tobacco substances.

In "Stopping the Prohibition Game", Lewis Maltby (ACLU Director of National Taskforce on Civil Liberties in the Workplace) also argues for the rights of adults to such privacy, or as Supreme Court Jusice Louis Brandeis termed it "the right to be left alone". Maltby writes, "Nowhere is the right to be left alone more important than in our homes. While the governement and employers often have legitimate reason to regulate what we do in public or at work, this is not true of private behavior".

Maltby's comments appeared in The NSA (National Smokers Alliance) Voice in Fall 1995

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California Refuses to Publish Study Assailing Drug Programs: Attempts to
discourage use are largely ineffective

School-based anti-drug programs such as DARE and Red Ribbon Week are largely ineffective in preventing students from using alcohol, drugs and tobacco, according to a comprehensive study commissioned by the California Department of Education (LA Times Oct. 21, 1995). The study found that programs that rely on lectures and assemblies to promote the evils of drugs and alcohol lack credibility with the state's teen-agers.

But the Department of Education has no plans to publish the study's report and disputes its findings citing "faulty methodology".

DARE--Drug Abuse Resistance Education, exposes children to a 17-week curriculum that focuses on the problems created by drug use. The 5,000-student, 240-school study concluded that as students age they become progressively more convinced that drug-prevention programs are ineffective.

One elementary school student quoted in the report said, "They lie to you so you won't do drugs."

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National Drug Policy Draws Condemnation and Posturing

According to wire service stories (Dec. 13, 1995) House and Senate Republicans say that the Clinton administration anti-drug policy is "in utter disarray" so they will step in to provide leadership on the issue.

Sen. Orrin Hatch, R-Utah, criticized the administration's strategy at a news conference, saying it puts too much emphasis on treating hard-core drug users and not enough on law enforcement and interdiction.

"It's time to get tough with this stuff," Hatch said.

Senate Majority Leader Dole, and House Speaker Gingrich announced a new task force that will study ways to combat teen-age drug use.

"Our children are using more dope, more cocaine and more heroin at any time in recent memory," Dole said. "We cannot allow these trends to continue."

Speaking at a youth football and cheerleading festival in Canton, GA last August, Speaker Gingrich proposed the death penalty for drug smugglers. Speaking before 1,500 children and parents, he said "Mandatory executions for drug smugglers would kill so many of them that it would curb the flow of illegal drugs into the United States. If the word gets back that we're serious and we're actually implementing it, then it will have a very chilling effect on people bringing drugs into the U.S.," he said.

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Drug Users Not Likely to Carry Guns

According to a new nationwide study of why criminals carry guns, drug users are not likely to carry guns and are not responsible for the rapid rise in violent crime committed with guns. Reported by Fox Butterfield in the New York Times, contrary to popular belief, the criminals most likely to use guns are drug dealers and gang members, as well as young men who have themselves been threatened with a gun or shot at, rather than drug users.

"This study suggests we should rethink the presumption that drugs makes people violent and do crazy things," said Alfred Blumstein, a criminologist at Carnegie Mellon University. "Instead it is the drug industry, the sellers, that are contributing to the epidemic of guns."

"This certainly raises a question about the war on drugs campaign to arrest and give lengthy prison sentences to drug users".

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President Orders Drug Tests for All Federal Suspects

According to the New York Times, Dec. 18, 1995, President Clinton directed the government to require that all people arrested on federal criminal charges be tested for drugs. Dr. Lee Brown, the departing director of the Office of National Drug Control Policy, is urging high school athletic directors to require drug testing for students joining sports teams. A recent Supreme Court decision found that such requirements are legal.

Almost 50,000 people a year are arrested and processed through the federal courts on felony charges. Under Clinton's executive order, a person accused of a federal crime would be asked to take a drug test upon arrest. While the suspect would have the right to refuse, officials said, Justice Department lawyers could present that refusal to a judge at a bail hearing and ask the judge to refuse to release the suspect on bail.

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Rights of Innocent Owners in Forfeitures

Tina Bennis' claim against the state of Michigan raises a profound constitutional question that affects the owners of everything from apartments and restaurants to cars and yachts, according to writer David Savage, (Los Angeles Times, Nov. 21, 1995). The government does have the power to seize an innocent owner's property simply because someoneelse used it to commit a crime. The Supreme Court has never ruled it unconstitutional.

The high court last affirmed the principle in a 1974 ruling upholding the seizure of an innocent owner's yacht which he had leased unwittingly to a drug runner. "Forfeiture statutes further punitive and deterrent purposes", the court said brusquely.

The justices will reconsider the law in a mundane case involving a wayward husband, a prostitute and his 1977 Pontiac.

On Oct. 3, 1988, Detroit police spotted a Pontiac cruising along Eight Mile Road. The driver picked up a young woman, and the officers saw her perform a sex act in the front seat. The driver was convicted of gross indecency, and prosecutors moved to seize the car. Ms. Bennis filed a civil suit seeking its return. She lost on a 4-3 vote before the Michigan Supreme Court, but in June, the justices agreed to hear her appeal.

"The state has no legitimate interest in punishing one who is entirely innocent," says her attorney, Stefan B. Herpel of Ann Arbor. Because the wife did not know the car would be used in the commission of a crime and certainly did not consent, it cannot be seized, he argues.

The justices will will issue a ruling on Bennis vs. Michigan during the first half of 1996.

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Medical Marijuana: Health Professionals Call for Sanity and Compassion

American Public Health Association , Journal of the American Medical Association and The Lancet carry endorsements of medical cannabis and marijuana legalization

An editorial in the widely read British medical journal, Lancet, (November 11, 1995), states that the smoking of cannabis, even long term, is not harmful to health. "Yet this widely used substance is illegal just about everywhere", according to the editors. There have been numerous calls over the years for the legalisation or decriminalisation of marijauna. In the Netherlands, customers of coffee shops can buy up to 30 g of cannabis for about 10 pounds ($15) although the drug is technically illegal.

Prominent among those currently calling for legislative reform are police chiefs and city medical officers. They say that the existing policies in most countries are ineffective and unworkable. Meanwhile, politicians have largely remained silent, apparently afraid of being perceived as weak in the face of rising crime figures.

When opposition MP Clare Short recently called for debate on decriminalisation, she faced condemnation from political colleagues and overwhelming support from those who have to cope with the results of political inertia.

Marijauna is a political football that governments are ducking. Decriminalisation of marijauna poses no threat to the health of consumers, but criminals who depend on prohibition would hate it, according to the Lancet.

In the Journal of the American Medical Association, June 1995, in "Marihuana as Medicine: A Plea for Reconsideration", Dr. Lester Grinspoon, MD of Harvard writes, "Between 1840 and 1900, European and American medical journals published more than 100 articles on the therapeutic use of the drug known then as Cannabis indica (marihuana). It was recommended as an appetite stimulant, muscle relaxant, analgesic, hypnotic, and anticonvulsant. Sir William Osler recommended it as the most satisfactory remedy for migraine.

In the United States, the Marihuana Tax Act of 1937 made cannabis so difficult to obtain for medical purposes that it was removed from the pharmacopeia. It is now confined to Schedule I under the Controlled Substances Act as a drug that has a high potential for abuse, lacks an accepted medical use, and is unsafe for use under medical supervision.

The DEA has vigorously opposed efforts to transfer marihuana to Schedule II so that it could be legally prescribed. Supporting rescheduling were the National Organization for Reform of Marijuana Laws and physicina groups including the Physicians Association for AIDS Care. During the hearings, many patients and physicians testified, and thousands of pages of documentation were introduced.

In 1988, the DEA's own administrative law judge, Francis L. Young, declared that marihuana was "one of the safest therapeutically active substances known to man." His order that the marihuana plant be transferred to Schedule II was overruled, by the DEA itself, which issued a final rejection of all pleas for reclassification in Mach 1992.

Yet physicians and patients in increasing numbers use marijuana illegally for the nausea and vomiting induced by chemotherapy, for lowering intraocular pressure in glaucoma, as an anticonvulsant, as a muscle relaxant in spastic disorders, and as an appetite stimulant in AIDS wasting syndrome. It is also being used to relieve phantom limb pain, menstrual cramps, and other types of chronic pain.

Marijuana is safe. There is no known case of a lethal overdose. Polls and voter referenda have repeatedly indicated that the vast majority of Americans think marihuana should be medically available.

Although it is often objected that the medical usefulness of marihuana has not been demonstrated by controlled studies. We do not have studies controlled according to the standards required by the FDA chiefly because legal, bureaucratic, and financial obstacles are put in the way.

The American Medical Association was one of the few organizations that raised a voice in opposition to the Marihuana Tax Act of 1937, yet today most physicians seem to take little active interest in the subject, and their silence is often cited by those who are determined that marihuana shall remain a forbidden medicine. It is time for physicians to acknowledge more openly that the present classification is scientifically, legally, and morally wrong.

Some opponents of medical marihuana will not admit that it can be a safe and effective medicine largely because they are stubbornly committed to exaggerating its dangers.

In further developments, the American Public Health Association has issued a major resolution on "Access to Therapeutic Marijuana/Cannabis". They say, "Marijuana has been used medicinally for centuries and was widely prescribed by physicians in the United States until 1937. 36 states have passed legislation recognizing marijuana's therapeutic value. Marijuana has been reported to be effective in reducing intraocular pressure in glaucoma, reducing nausea and vomiting associated with chemotherapy, stimulating the appetite for patients living with AIDS and suffering from the wasting syndrome, controlling spasticity associated with spinal cord injury and multiple sclerosis, decreasing the suffering from chronic pain and controlling seizures associated with seizure disorders. Therefore the APHA encourages research of the therapeutic properties of (marijauna) and urges the Administration and Congress to make cannabis available as a legal medicine ... and to immediately allow access to therapeutic cannibis.

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Patient Tests Prohibition of Marijuana Prescriptions

When Ohio state troopers asked Todd McCormick about the smell of marijuana in his car after they stopped him on Interstate 80 in July, he said he had a prescription from a doctor in Holland. They arrested him anyway, saying the prescription was meaningless in the United States.

Then, they searched his car, and found more than 30 pounds of marijuana marked "Not for sale." McCormick told them that he was taking it to his home town, to give marijuana to the seriously ill. He was held on $150,000 bail.

At a court hearing, McCormick said he needed marijuana for the pain left by 10 childhood bouts with cancer. Judge Anthony L. Gretick of the Williams County Court of Common Pleas then ruled that McCormick could smoke marijuana while in jail if a local doctor signed off on the medical necessity.

The only federal program allowing marijuana for medical purposes stopped accepting new members in 1992 when the Public Health Service found that its therapeutic value did not outweigh its risks. Currently, only eight people in the United State legally receive marijuana provided by the government.


ACLU members are invited to join the committee. Help put an end to the government drug policy that is tearing our country apart and bleeding our resources. The committee meets on the second Wednesday of each month, 7 pm at the ACLU, 1616 Beverly Blvd, Los Angeles. Non-ACLU members are invite to join the ACLU and support the committee.

John Petit, Chrpn
Bob Shafer, CoChr
Bob Deitch
Jim Rosenfield
Robert Abrevaya

This document maintained by Jim Rosenfield