Category Archives: Uncategorized

Missouri is Burning, or so Politico Says Two Years After Ferguson Unrest

I was actually in Ferguson on August 9th, 2014, and (generally) agree with the notion that (quoted in this Politico article today) that most people “have no clue of what was going on on the ground” then or now.

I’ll never forget watching some 200 vehicles from just about every law enforcement agency in the St. Louis Metropolitan area literally drive over a grieving community’s memorial in the Canfield Green Apartment complex. That was the moment that I knew what was happening in front of me would not be a one night affair. If you had asked me what was happening I would have probably pointed at the conspicuous display of weapons and military-style tactics funded by federal civil asset forfeiture revenue and said “these police agencies have 0 connection to what is happening in this community and are basically following a federal playbook called Equitable Sharing and the 1033 Program.”

I caution anyone from making generalizing comments about law enforcement further because the the context is local and specific to St. Louis, a region of predatory municipal governments and stagnant politics. (Kudos to State Senator Eric Schmitt, who successfully passed reforms addressing some of these root causes by capping revenues municipal law enforcement derived from municipal law enforcement).

I think it is right to say as Lieutenant Governor Peter Kinder points out that there were significant failures of executive political leadership going all the way to the Governor Nixon’s office. We should expect our Governor to be actively aware of these kinds of situations and be able to mediate conflict. Moreover, as the Chief Executive in control of law enforcement, a Governor should know how to wield power; if you do it wrong, as Governor Nixon did, you antagonize citizens by not respecting their Constitutional rights and undermine law enforcement by making them the face of your failure. I could see Kinder being on the ground and talking to leaders in the community if he were Governor, making the decisions that would keep the situation from escalating; I don’t know if I see any of the other Republican candidates doing that. (Maybe John Brunner? Chris Koster would probably be calling Lacy Clay to see what the beach was like in Annapolis).

There has only been the beginnings of what should be a much more vibrant conversation about A) over-criminalization and predatory municipal governments and B) over-federalization of state and local affairs. Kudos to Missouri State Representative Shamed Dogan (R-98), who is a thought leader on many of these issues including abolishing civil asset forfeiture and mandatory minimums.

Ultimately, it is these kind of reforms that will really drive the path forward for this state; either you have big, intrusive governments that survive at the expense of their citizens or you have Constitutionally limited governments that protect liberty and opportunity. Ending cannabis prohibition will be an important step on that path, and it will be significant that it will likely be a citizen initiative rather than a legislative or executive action that was key there.

In Marijuana Felony Sentencing Appeal, Missouri Attorney General Chris Koster Parrots Obama Administration Talking Points To Deny Lifesaving Medicine to Missourians

On Wednesday, May 4th, 2016, the Missouri Supreme Court will hear two separate appeals of marijuana felony convictions in the cases of Natalie and David DePriest of Farmington, Missouri (this DailyJournal Online article has good coverage of the overall case and issues under litigation).

The legal issues in the appeal are fairly technical, and reasonable people might disagree on the merits. However, starting on page 68 of the government’s brief to the Missouri Supreme Court in the Natalie DePriest case, Attorney General Chris Koster and Assistant Attorney General Mackleprang defend the “rational basis” classification of marijuana as a Schedule 1 drug with no accepted medical use. On pages 70-72 of the brief, Koster and Mackleprang cite talking points from the Obama Administration’s Office of National Drug Control Policy and the National Institute of Drug Abuse, two federal agencies that have impeded the basic science of cannabinoid research for decades (as detailed in this report from the Drug Policy Alliance).

Here’s the thing: reasonable people can disagree on the merits of the more esoteric legal issues involved in the DePriest appeal. But General Koster went further than that in supporting his arguments with federal propaganda and repeating discredited theories and junk science.

It’s also worth noting Koster’s citation of Raich v. Gonzales () on page 66,

See generally Raich v. Gonzalez, 500 F.3d 850, 866 (9th Cir. 2007) (“federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering”); United States v. Fry, 787 F.2d 903, 905 (4th Cir. 1986) (“There is no fundamental right to produce or distribute marijuana commercially.”). Thus, it cannot be said that plea counsel was ineffective for failing to assert a strict-scrutiny challenge to § 195.017.

The expansive federal Commerce Clause powers that were granted by the federal courts in Raich are also the powers claimed by the federal government under Obamacare. As Cato analyst (and Mizzou grad) Timothy Rittgers writes:

The Justice Department has found Raich an exceedingly useful tool in battling the legal challenges to Obamacare. In the Florida lawsuit, the DOJ claims that “Individuals who self-insure engage in economic activity at least as much as the plaintiffs in Raich.” The same goes for Michigan, where a federal judge recently upheld the individual mandate as a legitimate exercise of Congress’s Commerce Clause power: “As living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.” The words “Gonzales v. Raich” kick off the government’s Commerce Clause argument in the Virginia litigation. (Disclosure: The Cato Institute has filed briefs in support of Virginia attorney general Kenneth Cuccinelli’s challenge to Obamacare.)

The jump from Raich to Obamacare is a short one, at least in the government’s eyes. The dissenters in Raich predicted the expansion of Commerce Clause authority. Justice Thomas warned that if the federal government could override a state’s licensing of medical marijuana, “then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.” Justice O’Connor noted the “perverse incentive to legislate broadly pursuant to the Commerce Clause” — the more broadly Congress writes a law, the more likely Raich’s logic is to uphold it. O’Connor discussed how the Court’s logic would allow the government to regulate (and ban) non-commercial activities that would detract from regulated markets, such as home-care substitutes for daycare. This would be funny, if a federal judge had not just ruled that being alive and breathing means you must buy health insurance or face the consequences.

An Attorney General is an elected executive law enforcement position. In this office, General Koster has vast discretion over what his office appeals at the appellate courts and how. In the Natalie DePriest appeal we have an insight into the vastly broader agenda of federal power that Koster defends. Missouri deserves an Attorney General that will consistently advocate from a perspective that does not embrace expansive federal powers that encroach on the fundamental rights that are vested in the people or in our state.

Prescription Drug Monitoring Systems Don’t Work Despite Pervasive Implementation

We are told that Missouri is an outlier, that 49 other states have prescription drug monitoring and that to bring the nation’s opiate crisis to heel Missouri has to sign on to wholesale monitoring and tracking of our personal health data.

But there isn’t any global indicator of the ability of prescription drug monitoring to reduce the prevalence of opiate addiction. Indeed, other states have generally failed to see actual success with these programs. Consider New York, the first state in the nation to enact a PDMP program (in 1973). Or Texas (1989), Oklahoma (1990), Tennessee (1990), Indiana (1994), Utah (1995), West Virginia (1995), Nevada (1997), California (1998), or Kentucky (1998). In fact, by 2000, there were 12 states with some kind of PDMP program; by 2010, that number was 37. Currently, Missouri is the only state without a PDMP program.

Yet, in “Morbidity and Mortality Weekly Report” published by the CDC January 1, 2016, researchers found that “Since 2000, the rate of deaths from drug overdoses has increased 137%, including a 200% increase in the rate of overdose deaths involving opioids (opioid pain relievers and heroin).” In fact, in the 2013-2014 time period, when there was a PDMP program enacted in almost every state, the CDC found “Rates of opioid overdose deaths also increased significantly, from 7.9 per 100,000 in 2013 to 9.0 per 100,000 in 2014, a 14% increase.”

These trends strongly indicate that the opiate addiction and overdose problems we face are not effectively addressed by prescription monitoring. Indeed, it is likely that driving people out of the legal medical system boosts the market for black-market heroin, imported by violent multi-national drug cartels that operate with tremendous sophistication. As DEA special agent James Shroba recently said to the Joplin Globe “We can’t arrest our way out of this problem.”

We’ve forgotten what Abraham Lincoln said about Thomas Jefferson

In a letter to the Massachusetts Republicans in April 1859, Abraham Lincoln wrote:

The principles of Jefferson are the definitions and axioms of free society. And yet they are denied and evaded with no small show of success.

One dashingly calls them ‘glittering generalities.’ Another bluntly calls them ‘evident lies.’ And others insidiously argue that they apply only to ‘superior races.’

These expressions, differing in form, are identical in object and effect — supplanting the principles of free government, and restoring those of classification and caste. They would delight a convocation of crowned heads plotting against the people.

They are the vanguard — the sappers and miners of returning despotism. We must repulse them or they will subjugate us.

This is a world of compensation; and he would be no slave must consent to have no slave. Those who deny freedom to others deserve it not for themselves, and under a just God cannot long retain it.

All honor to Jefferson — to the man who, in the concrete pressure of a struggle for national independence, had the coolness, forecast, and capacity to introduce into a merely revolutionary document an abstract truth, applicable to all men at all times, and so to embalm it there, that today, and in all coming days, it should be a rebuke and a stumbling block to the very harbingers of reappearing tyranny and oppression.

I also found this paper by David Post of Temple University Law School to be informative and useful.

More Violence in St. Louis: Blowback from the War on Drugs? A Failed Government on Display

Last night’s violence in St. Louis, stemming from a narcotics raid near Page Boulevard and Walton, is going to continue generating attention from all around the nation. Yet, most of the discourse and argument on this issue will miss the point by focusing on apparent racial issues (not to say they aren’t there, but to focus on that area of the issue misses the point).

This is the fundamental, stark reality of the War on Drugs. For 40 years, we’ve enforced drug prohibition with military tactics (especially since President Reagan started signing annual authorizations of the National Defense Authorization Act that allowed military tactics, forces, and equipment to be deployed through the domestic law enforcement apparatus in support of counterdrug operations. And none of it worked; our drug problems are worse than they were a decade ago, particularly with the resurgence of heroin and black market opiates. Also keep in mind St. Louis was the former home of recently disgraced DEA head Michelle Leonhart, who among other things is known for her personal relationship with the perjurer informant Anthony Chambers.

Communities that are policed like occupied territories will inevitably generate violence and civil unrest. Not only do black market drug economies finance the guns and weapons that criminals need to defend their territories, but they can both corrupt public institutions and undermine their legitimacy.

We don’t need to go further than the policy apparatus that has created this proliferation of big, ineffective government to return with useful solutions. But first, decision makers (including and especially Missouri Governor Jay Nixon) need to recognize and understand that these issues stem from a fundamental breakdown of government legitimacy, and there is no political solution that can be effective to return stability and security to the St. Louis region without addressing the direct impact of the War on Drugs in our society.

There is a vision for moving past the War on Drugs. The organization Law Enforcement Against Prohibition has this excellent video introducing their perspective:

 

For Memorial Day, I’m remembering former Navy veteran Ken Unger

It wasn’t a good day for catastrophically injured Navy veteran Ken Unger when I first met him in January 2011 for the first time. Indeed, it was at that time that I was introduced to the concept that some veterans were in so much pain and physical torment that there was no such thing as a good day, only pain and more pain.

Ken’s injuries stemmed from his experience in the Grenada invasion of 1983, when he was hit by a crane hook. That lead to two herniated discs, frequent muscle spasms, constant pain, and weakness in his legs. Ken also suffered from diabetes and and depression, and the VA had deemed him 100% unemployable.

When I met Ken, he had also had survived 4 heart attacks and had stents holding the arteries in his heart open. The heart attacks were a relic of the morphine therapy he’d been prescribed since the Grenada injury. Eventually, a fifth heart attack would kill him, and Ken passed on March 23, 2013.

Right before he died, Ken had accepted a plea deal after being charged with felony marijuana distribution by St. Charles prosecutor Jack Banas. Ken had turned to marijuana for pain relief after his fourth heart attack, and had started cultivating it at home as he could not find a reliable, safe, or inexpensive alternative on the black market. After his son made an indiscreet reference to his father’s “plant room” at elementary school, law enforcement opened an investigation that culminated in a SWAT raid on the Unger residence. Eventually, fearing a jury trial that would reveal misconduct by law enforcement, Prosecutor Banas offered Ken a plea deal for misdemeanor possession of marijuana and marijuana paraphernalia.

This plea deal, mercifully, kept Ken out of jail, and allowed him to live out the rest of his life at home with his family (albeit in great pain).

When President Lyndon Johnson issued the May 26, 1966 proclamation declaring Memorial Day as an official holiday, he called for God’s “blessing on those who have sacrificed their lives for this Nation in this and all other struggles, and for His aid in building a world where freedom and justice prevail, and where all men live in friendship, understanding, and peace.”

Freedom and justice barely prevailed in Ken Unger’s case; although he was able to spend his last days with his family, Ken was unable to move to Colorado, California, or any other medical marijuana state to take advantage of more reliable and accessible marijuana therapeutics. If Jack Banas, elected St. Charles County Prosecutor, had understood the medical utility of marijuana therapeutics, he might not have harshly prosecuted Ken Unger, and left him and his family in peace.

Scandals over the conduct of the VA and the inability of Congress to properly fund the programs that support veterans aside are likely to continue for as long as there is a VA and Congress. Yet we don’t need to rely on Congress or the President to get more than one thing right for stories like that of Ken Unger to not happen again: they just need to end the federal prohibition on marijuana.

Indeed, right now, the US Senate considers the Veterans Equal Access Amendment, a reform that would end the prohibition on VA physicians discussing medical marijuana with veterans. If the US Senate were to uphold the values that President Johnson articulated in his Memorial Day proclamation, they would pass this reform and be eager to move forward on sensible reforms that would make life easier for America’s veterans, without any additional federal spending, regulation, or administration.

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Under Steve Tilley’s Proposed Marijuana Monopoly, is Missouri the New Illinois?

In today’s Missouri Scout, Dave Drebes discusses the prospects for Missouri Representative Dave Hinson’s HB 800 and notes:

But this is not the entire story. It might be a conservative principle that the government should not interfere with the doctor-patient relationship, but HB 800 only advances that goal modestly, by allowing marijuana therapy for a select list of conditions (cancer, HIV/AIDs, Crohn’s, Parkinson’s, colitis, Alzheimer’s, epilepsy, multiple sclerosis, and PTSD). In other words, the legislature is engaging in the central planning of medical marijuana therapy and getting credit as if this bill represents a minimal governmental intrusion into the practice of medicine. A truly conservative approach to this issue would simply grant doctors the ability to dispense marijuana therapy as they see fit.

But this isn’t the worst aspect of HB 800. Indeed, HB 800 establishes monopoly access to marijuana cultivation and commerce through a substantially restrictive licensing program that allows for the provision of 30 licenses for those purposes (by contrast, there are some 12,500 licenses active for on and off-premise alcohol sales in the state of Missouri).

We might look at how Illinois is dealing with medical marijuana. In Illinois, the state law allows for 60 dispensary and 21 cultivation licenses.

Last year, I worked to connect Illinois license applicants with consultants from Oregon and Colorado. We met a series of potential clients in Quincy, Illinois, at Al Capone’s old Quincy lakehouse (which is owned by Bob Lansing). Bob was an interesting guy; as I recall he used to run an Anheuser-Busch distributorship, which accounted for his fortune. Bob was also one of the most overtly racist people I’ve ever met (albeit in a jovial, nonthreatening way); he called me and other members of the diverse group of consultants every ethnic slur in the book (I had to check the Wikipedia list of ethnic slurs to keep up).

In short, he was a rich man with nothing to lose and no one to naysay him. Not that I personally care one way or the other, I don’t have an objection to people like Bob getting marijuana operation licenses (which he did). But if Missourians are going to hew to “conservative” principles in designing a medical marijuana program, we shouldn’t create monopoly structures for the industry to exist under. Indeed, the best check on rich, racist operators entering the industry is an open market where competition allows both entrepreneurs and consumers to interact freely.

HB 800 is legislation conceived under the same guiding principles as Illinois’s medical marijuana law. Indeed, it’s the creature of the lobbying effort started by the Colorado-based Realm of Caring organization, and continued by their Missouri subsidiary, Missourians for Compassionate Care (MOCC). Like Bob Lansing’s fortune, MOCC derives part of their funding from the Busch family, one of the wealthiest and most pedigreed families in the state of Missouri.

Steve Tilley and Mark Habbas may believe in the conservative principles of limited government and free markets. But when it comes to medical marijuana, they are defending crony capitalism of the worst variety: monopoly.

This is a dangerous precedent for the Missouri legislature to be setting. Creating one monopoly structure for industry in Missouri will inevitably lead to other efforts to create further monopolies in other industries.

It’s worth supporting HB 800 for the limited relief it will bring to patients, and for the fact that it lessens the criminal status of marijuana in Missouri. But the monopoly provisions in the legislation should be vigorously opposed by all who believe in the words “liberty and justice for all”.

Cartels and Coffins: The Deadly Impact of Ginny Chadwick’s Prohibition Politics

I’ve taken a fair amount of flack for my call to recall Columbia (MO) First Ward City Councilwoman Ginny Chadwick, including from dinosaur prohibitionist Don Stamper, who labeled me and my associates “an embarrassment to community leadership”. Yet neither Ginny Chadwick nor Don Stamper, nor anyone remaining in the (small) coalition of people who still stand behind Chadwick’s leadership ventured a single response to my core argument in favor of making the marijuana cultivation laws less punitive: that making it easier for Columbians to engage in small-scale home cultivation of marijuana will decrease the total number of interactions between marijuana users and marijuana dealers in black-market transactions, leading to modest decreases in black market violence and fewer bodies on the street for Chief Burton’s officers to find.

While my particular angst with Chadwick’s leadership is rooted in her flip-flop on marijuana policy, the same fundamental economic logic applies to Chadwick’s other major policy initiative: her proposal to ban cigarette and e-cigarette sales to people under 21 years of age (and additionally to ban the use of e-cigarettes in indoor spaces). This policy, while restricting access, does nothing to decrease demand, and therein lies its fatal flaw: Some black or gray market vendor, likely acting outside of any legal or regulatory process, will inevitably emerge to meet the demand for tobacco products in Columbia from the 18 to 21 year old demographics. This inevitability brings with it two distinct externalities: first, the very real prospect that black market tobacco vendors will seek to maximize profits by selling product to minors (the market of 18 to 21 year old consumers is not as large as the market of 12 to 21 year old consumers) and the substantial likelihood that black market profits will drive black market violence, as dealers seek to maximize and protect their turf.

Instead of regulated, licensed vendors selling regulated products to adults, black market dealers will capture that market, selling product to anyone who has the cash. And these dealers won’t just carry tobacco products: to maximize profits, they’ll also transact illegal pharmaceuticals and other hard drugs. In other words, Chadwick’s policy of tobacco and marijuana prohibition will act as an open invitation to violent foreign cartels like Sinaloa, who are very sophisticated about finding and developing new markets. In Ginny Chadwick’s Columbia, tobacco prohibition is the gateway to this future.

We’ve walked down this road of failure for a long time. Alcohol prohibition gave rise to immensely powerful cartel gangs, at least until 1933, when Americans realized the utter failure of that policy. And 40+ years of the War on Drugs has created essentially the same horrors as foreign cartels ravage Central and South America and violate American borders. America now leads the world in incarceration of our citizens and we pump tens of billions of dollars every year into narcotics enforcement with nothing positive to show from a public policy standpoint.

In recalling Ginny Chadwick, we have an opportunity to move in a more sensible direction. We don’t have to resign ourselves to more violence and more economically-driven challenges to our social and governmental structures. We don’t have to resign ourselves to more bodies on the street. Our law enforcement has much better things to do than arrest people for marijuana cultivation or tobacco use. The First Ward, which has seen the brunt of racially divisive politicking, needs leadership that respects citizens as citizens and does not attempt to subsume our American rights under the morass of failed prohibition.

It’s time to recall Ginny Chadwick (and demonstrate to prohibitionist dinosaurs like Don Stamper that he’s on the wrong side of history).

Back in the Day, both of Missouri’s US Senators Endorsed American Industrial Hemp

A July 30, 1841 note in “The Papers of Henry Clay” notes that on that day Clay:

“Participates in debate on a House bill appropriating $789310 to maintain a home squadron in the US Navy consisting of 2 frigates, 2 sloops, 2 small vessels, and 2 armed steamers. Speaks to Thomas H. Benton’s amendment to supply the vessels, in part, and as an experiment, with canvass and cordage manufactured from American water-rotted hemp so as to fully test such hemp; and to Sen. Lewis F. Linn’s (Dem., Mo.) suggestion that Benton’s amendment “specify Missouri hemp” since the “hemp of that State brought twenty dollars more per ton than the Kentucky hemp, and …if water rotted…was superior, and greatly superior to any other hemp, either domestic or foreign.”

(Thomas Benton at the time was serving as Missouri’s other Democratic US Senator).

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The Perverse Incentive Structure of Missouri’s Conviction-based Drug Testing Compensation Law RsMO 195.003

Missouri law mandates that individuals convicted of a violation of Missouri’s Controlled Substances Act are required to pay the costs of the crime lab test. In practice this implies that the only stable source of funding for a crime lab are test results that help a prosecutor obtain a conviction. As RsMO 195.003 states:

In any case where there is a violation of this chapter, a judge may, upon a finding of guilt*, order a defendant to pay for costs for testing of the substance or substances at a private laboratory.

Further, RsMO 488.029 establishes that part of these costs is a $150 surcharge that is only garnered by the crime lab in case of a conviction:

There shall be assessed and collected a surcharge of one hundred fifty dollars in all criminal cases for any violation of chapter 195 in which a crime laboratory makes analysis of a controlled substance, but no such surcharge shall be assessed when the costs are waived or are to be paid by the state or when a criminal proceeding or the defendant has been dismissed by the court. The moneys collected by clerks of the courts pursuant to the provisions of this section shall be collected and disbursed as provided by sections 488.010* to 488.020. All such moneys shall be payable to the director of revenue, who shall deposit all amounts collected pursuant to this section to the credit of the state forensic laboratory account to be administered by the department of public safety pursuant to section 650.105.

Roger Koppl and Meghan Sacks discuss the incentive structures of forensic scientists in a 2012 paper:

Whitman and Koppl point out that “the very choice to submit a suspect’s sample to the lab makes the lab more inclined (than it would be otherwise) to announce a match, indicating that the suspect is guilty.”  The forensic scientist must evaluate ambiguous evidence, but give, generally, a binary judgment that the evidence does or does not match.  (The explain why the probabilities given in DNA testimony are not usually an exception to this binary nature of forensic-science testimony.)  In this situation, even the most “rational” scientist must choose what to say.  The choice will usually be influenced by scientific analysis done in the crime lab. But if the evidence is ambiguous, as it often is, then two other factors matter even for perfectly “rational” forensic scientists.  The scientist is more likely to inculpate the defendant 1) the higher the forensic scientist’s “prior” probability of guilt, which is the probability before the forensic evidence is examined, and 2) the weaker is the scientist’s desire is to avoid convicting the innocent relative to his or her desire to convict the guilty.

Indeed, these biases when compounded by a financial incentive to assist in conviction imply that no Missouri drug defendant has a fair chance at an unbiased evidentiary process involving a crime lab. It’s time for the Missouri Legislature to protect the rights of citizens to a fair trial by reforming this system by ending the conviction-based revenue collection of crime labs.

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It’s Time To Demilitarize Missouri’s War on Drugs and Repeal RSMO 41.475

Under Missouri law (RsMO 45.475):

1. The governor is hereby authorized to request volunteers of the organized militia to assist federal law enforcement authorities within or outside the state, or to assist federal, state or local law enforcement authorities within this state, and order such volunteers to duty for the purpose of providing assistance in drug interdiction and counter-drug activities and operation and maintenance of equipment and facilities for such purposes pursuant to plans adopted and funding assistance received under the provisions of 32 U.S.C. 112.

2. The governor may delegate the authority conferred by this section to the adjutant general, but the governor shall retain sole authority to approve any and all plans submitted to the Secretary of Defense under 32 U.S.C. 112. The adjutant general shall ensure that all directives and policies of the Department of Defense and National Guard Bureau are followed. Personnel assisting in such activities shall obey and execute the instructions of the civil authorities charged by law with responsibility for law enforcement.

Under this law, the Missouri National Guard participates in domestic counterdrug law enforcement (Page 22, Missouri National Guard Annual Report 2013):

The Counterdrug Task Force leverages its unique assets on four fronts: providing analytical support to law enforcement to reduce the supply of illicit drugs; providing prevention professionals to communities to aid in reducing the demand for illicit drugs; providing aviation support to law enforcement to find illicit drugs in the state; and providing prevention train- ing, outreach services and treatment resources to Missouri National Guard members.

Highlights for FY-13 include:

• The Task Force has 30 personnel in nine communities. In fiscal year 2013, The Missouri Counterdrug Task Force scored 98.7 percent on its Counterdrug Program Evaluation, which led the nation.

• Criminal analysts supported 17 county, state and federal law enforce- ment agencies. The team’s goal has been to provide dedicated, concise and accurate analytical assistance in cases with a drug nexus.

• The counterdrug criminal analysts develop intelligence products that ensure timely prosecution of a large number of suspects that the law enforcement agencies may not otherwise have the manpower to pursue. This has directly contributed to 1,866 arrests and the seizure of $23,973,155.16 worth of drugs, weapons, vehicles and property.

The Missouri Civil Operations program focuses its efforts on community coalitions and strengthening communities against drugs. In fiscal year 2013, four civil operators worked with more than 50 coalitions throughout Missouri. This support included assistance with strategic planning and targeting the community’s efforts in their fight against illicit substances.

• The curriculum for how to train all civil operators nationally was rede- signed in fiscal year 2013, and multiple members from Missouri were instrumental in this redesign.

• Counterdrug aviation flew more than 250 flight hours in 2013 to assist law enforcement in numerous missions. Those efforts resulted in $1.5 mil- lion in seizures of drugs, currency, and property and 39 felony arrests for distribution of a controlled substance. Beginning in FY-14, Counterdrug Aviation will transition to the new LUH-72.

This use of military force and capability in the conduct of ordinary law enforcement is immensely problematic. As Radley Balko notes:

The problem with this mingling of domestic policing with military operations is that the two institutions have starkly different missions. The military’s job is to annihilate a foreign enemy. Cops are charged with keeping the peace, and with protecting the constitutional rights of American citizens and residents. It’s dangerous to conflate the two. As former Reagan administration official Lawrence Korb once put it, “Soldiers are trained to vaporize, not Mirandize.” That distinction is why the U.S. passed the Posse Comitatus Act more than 130 years ago, a law that explicitly forbids the use of military troops in domestic policing.

….

The main culprit was a 1994 law authorizing the Pentagon to donate surplus military equipment to local police departments. In the 17 years since, literally millions of pieces of equipment designed for use on a foreign battlefield have been handed over for use on U.S. streets, against U.S. citizens. Another law passed in 1997 further streamlined the process. As National Journal reported in 2000, in the first three years after the 1994 law alone, the Pentagon distributed 3,800 M-16s, 2,185 M-14s, 73 grenade launchers, and 112 armored personnel carriers to civilian police agencies across America. Domestic police agencies also got bayonets, tanks, helicopters and even airplanes.

All of that equipment then facilitated a dramatic rise in the number and use of paramilitary police units, more commonly known as SWAT teams. Peter Kraska, a criminologist at the University of Eastern Kentucky, has been studying this trend since the early 1980s. Kraska found that by 1997, 90 percent of cities with populations of 50,000 or more had at least one SWAT team, twice as many as in the mid-1980s. The number of towns with populations between 25,000 and 50,000 with a SWAT team increased 157 percent between 1985 and 1996.

As the number of SWAT teams multiplied, their use expanded as well. Until the 1980s, SWAT teams were used almost exclusively to defuse immediate threats to the public safety, events like hostage takings, mass shootings, escaped fugitives, or bank robberies. The proliferation of SWAT teams that began in the 1980s, along with incentives like federal anti-drug grants and asset forfeiture policies, made it lucrative to use them for drug policing. According to Kraska, by the early 1980s there were 3,000 annual SWAT deployments, by 1996 there were 30,000 and by 2001 there were 40,000. The average police department deployed its SWAT team about once a month in the early 1980s. By 1995, it was seven times a month. Kraska found that 75 to80 percent of those deployments were to serve search warrants in drug investigations.

(Radley Balko, A Decade After 9-11, Police Departments are Increasingly Militarized, Huffington Post, 12 Sept. 2011)

Moreover, recent revelations about the scope of dragnet federal surveillance under the Patriot and FISAA Acts imply that the conduct of domestic law enforcement is becoming increasingly disconnected from the rule of law as intelligence gathered in violation of the Fourth Amendment is collected, sanitized, and passed along to local law enforcement authorities:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

(John Shiffman and Kristina Cooke, U.S. directs agents to cover up program used to investigate Americans, Reuters, 5 Aug. 2013)

And we know that federal dragnet surveillance is widespread, collecting the private communications of millions of Americans:

Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by theNational Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.

Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.

Many of them were Americans. Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents. NSA analysts masked, or “minimized,” more than 65,000 such references to protect Americans’ privacy, but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S.residents.

If Snowden’s sample is representative, the population under scrutiny in the PRISM and Upstream programs is far larger than the government has suggested. In a June 26 “transparency report,” the Office of the Director of National Intelligence disclosed that 89,138 people were targets of last year’s collection under FISA Section 702. At the 9-to-1 ratio of incidental collection in Snowden’s sample, the office’s figure would correspond to nearly 900,000 accounts, targeted or not, under surveillance.

(Barton Gellman, Julie Tate, and Askhan Soltani, “In NSA-intercepted data, those not targeted far outnumber the foreigners who are“, Washington Post, 5 July 2014)

While Missouri can’t control the overreach of the federal government in the War on Drugs or the War on Terror, Missouri has no obligation to participate in the overt militarization of domestic law enforcement through the Missouri National Guard. Indeed, repealing RsMO 45.475 will undermine federal control of Missouri law enforcement, allowing Missouri’s state and local legislative bodies to more directly control the practices and priorities of Missouri law enforcement.

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Always Record the (Federal) Police, Ninth Circuit Federal Court of Appeals edition

Steve Kalar, Federal Public Defender in the Northern District of California, has important commentary attached to two cases out of the Ninth Circuit this week. First, in United States v. Preston, 2014 WL 1876269, *6 (9th Cir. May 12, 2014):

Preston’s single most important fact? The officers “began recording their interaction with Preston within ‘one or two minutes’ of approaching him.” Id. at *2, *9. Without that recording, the Court would have never known the extent of the coercion in the case – this mentally-disabled kid would have lost a swearing match with the police in an evidentiary hearing. 

   This is a second time in only a month that the recording of a confession gave the Ninth the true facts of the case – and revealed the real abuses that go on with interrogations. See blog on Ramirez-Estrada, here . 

And second, in United States v. Ramirez-Estrada, 2014 WL 1646931 (9th Cir. Apr. 25, 2014):

This is a careful, nuanced decision that relies heavily on the precise words used during the booking process. Id. at *5. How can Judge Clifton quote this exchange verbatim? “A recording of the interview, from which we can draw precise quotations, is part of the record.”Id. at *5 & n.3. 

  Would this constitutional violation have been discovered, if the record was merely a swearing match between the agents and the defendant? 

  Unlikely.  

  Ramirez-Estrada illustrates the travesty of federal agents refusing to tape interviews – the only reason not to record is to hide violations like the Doyle problem in this case.

 

 

(Questionably Awake) STL Juvenile Court Judge David Mason Defends Marijuana Prohibition

I was very interested to see the recent remarks of St. Louis Juvenile Court Judge David Mason recently to CBS:

St. Louis Juvenile Court Presiding Judge David C. Mason says while the nation is getting soft on marijuana, he sees it as a contributing factor to crime.

Mason believes that pot may be fueling juvenile crime such as break-ins, robbery, and auto theft.

“And I can tell you right now, I can’t think of the last juvenile offender I had in front of me that didn’t have a marijuana-use problem,” Mason says.

Mason says that academic failure makes crime seem appealing to juveniles. He adds that 90 percent of the offenders he has seen have no father in the home.

“There’s something about the impact of effective fatherhood, which makes a huge difference in the outcomes in terms of the behavior of young people,” Mason says.

He hopes that as a nation we do not open the floodgates to something that we are really not expected. He warns for everyone to be careful as we proceed in the direction of legalizing marijuana.

“The impact on children is obvious, it’s quantifiable and I see it every day at my job,” Mason says.

What, precisely, Judge Mason actually sees at his job is debatable. In 2011 complaint to the Missouri Supreme Court, Brenda Smith alleged that:

“Judge Mason constantly sleeps thru the majority, if not all of, the trials in his court. I witnessed this on two occasions when my son was on trial. The Judge slept thru all of the arguments and did not hear any of the evidence presented. Nor did he hear testimony from any of the victims called.”

Nicholas Phillips of the Riverfront Times added:

Yet in the Missouri Bar’s 2010 Judicial Evaluations, in which lay people and hundreds of lawyers filled out surveys, Mason was the only 22nd Circuit judge of ten to receive a failing grade in one of eighteen categories (specifically, he was below the baseline in being “prepared for hearings and trials”). 

He also got low-but-passing marks in efficient docket management and — interestingly — “demonstrating an appropriate demeanor on the bench.” 

Nevertheless, the Missouri Bar recommended his retention.   

Beyond the issues with Judge Mason’s basic credibility as a trial judge, it is also worth noting that this past November the Department of Justice announced it was investigating the St. Louis Family Court:

The Justice Department announced today that it has opened a pattern or practice investigation of the Family Court of St. Louis.  The investigation will focus on whether the court provides constitutionally required due process to all children appearing for delinquency proceedings and whether the court’s administration of juvenile justice provides equal protection to all children regardless of race.

This investigation follows a 2011 report by Pulitzer journalist Kenneth Cooper, “Trying Juveniles as Adults in the ‘Show-Me’ State“:

Despite an unusual state law requiring judges to consider racial disparity when deciding whether to try juveniles as adults, Missouri prosecutes a disproportionate number of black youth accused of serious crimes in regular courts, where they can be sentenced to prison alongside hardened criminals.

In recent years, African-American teenagers have faced trials in adult courts at a rate three to four times higher than their proportion of Missouri’s youth population. They were defendants in 57 percent of such prosecutions in 2008, the latest year statistics are available, even though they make up only 14 percent of state residents between ages 12 and 17.

In other words, the necessary context for Judge Mason’s defense of marijuana prohibition is that he is a criminally incompetent judge who perpetuates a horribly racist juvenile justice system. Does anyone not on Mason’s docket in St. Louis take this guy seriously?

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Please Support the Re-election of Missouri Representative Rory Ellinger (D-86)

While I don’t agree with St. Louis attorney Rory Ellinger on everything, I am very grateful for his open and prominent voice in the Missouri legislature on behalf of criminal justice and drug policy reform. Indeed, Ellinger should be widely commended for his work in those fields during his freshman term as a Missouri Representative, and for particularly championing marijuana legalization. It is rare for a politician to break with the party and government establishment on such issues, and Rep. Ellinger should be commended for his leadership.

If you are a supporter of sensible drug policy reform and marijuana legalization in Missouri, you should support Rep. Ellinger’s campaign as a way to demonstrate to other politicians that it’s time to end prohibition. Even a modest donation will inform the political strategists at the Missouri Republican and Democrat parties that it’s time to take marijuana and drug policy reform seriously.

http://www.ellingerforstaterep.com

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To Better (Missouri) Government, Mandate Sunshine

A Proposal to Sunshine Missouri Government

The Status Quo

Missouri’s Sunshine Law has been a great boon to citizens engaged in the basic democratic process of understanding what their government is doing. Yet, Missouri’s Sunshine Law still acts under the presumptions that information is not released without a request and that citizens must often bear a cost for the access to that information. Citizens additionally face the dilemma of not knowing with specificity the extent of government records available, impeding their ability to find the records they need. Hence, the costs of monitoring government under the Sunshine Law effectively price most citizens out of access to basic information about the conduct of government.

In other words, Missouri government entities have a legal duty to maintain and archive records of their activities, but not to provide open public access.

The solution: Publish all records online

Rather than making it costly for citizens to search for and acquire public records, the law should mandate all public records be posted to an online archive, in as close to real time as possible. Since public records are already archived by statute, this law would only need to mandate the electronic publication of archive material.

This proposal would end fundamental barriers to citizen access of government records. Citizens would no longer be in the dark about the existence of any specific government record, and would have complete information about the entire corpus of government records. Additionally, ending fee-only access to government records would remove a cost incentive for citizens to rationally ignore the political process; on some margin we can expect this proposal to energize grass-roots political education and activism.

Details

This legislation should be enacted through a ballot initiative campaign to amend the Missouri Constitution.

Please contact me at Eapen.Thampy@gmail.com if you would like to discuss the prospects for enacting some version of this proposal in the 2016 election cycle.

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