Tag Archives: Drugs and Alcohol

#200: Confederates

This is mark Joseph “young” blog entry #200, on the subject of Confederates.

General Robert E. Lee–perhaps the most recognized name on the Confederate side of the American Civil War–never owned a slave.  He did marry into the Custis family, descendents of Martha Washington and heirs of the estates of George Washington, some of which had slaves, but he was not an owner.

I mention this because there is a great deal of misunderstanding about the Civil War and about the Confederacy in particular.  To hear the scuttlebutt, all Confederates were bigoted racists and all northerners enlightened equalitarians.  Neither of those claims is true, nor is it true that the war was about slavery–slavery was a bit more than incidental, but ultimately a side issue.  Yet today people are fighting over flags and statues that were part of that history, trying to remove them and in the process erase an important part of our history that is relevant today to matters that have nothing to do with race or bigotry.

Between the ratification of the United States Constitution and the initiation of the Civil War there was a lingering unanswered question concerning the exact nature of this “more perfect union” the document was intended to create.  To citizens in every State, the State was a State–New Jersey had the same status as Denmark, Pennsylvania as France–and these individual independent countries had joined a treaty organization, something like NATO or the United Nations or the European Economic Community.  We came to each other’s aid for the common defense, agreed not to place tarriffs against imports and exports between each other, and met together to create laws on which we generally agreed that would bind all of us and were necessary to promote trade and interaction between us.

Yet lingering in the background of all this was what we might call the Federalist question.  Federalists like James Madison saw the central government as having ultimate authority over the state governments, that whatever was stated as Federal law was binding on all the member states.  Democrats like Thomas Jefferson saw the individual states as the ultimate authorities, lending their authority to the Federal government for the better functioning of the whole.  The Constitution did not decide that issue; had it done so, it would not have been ratified.

Abraham Lincoln, a Republican, believed in the Federalist vision of a united nation, a single country governed from a central authority.  He also happened to believe that slavery was wrong, but it was an incidental which he strongly downplayed during the campaign, promising that he would seek no law regarding slavery during his first term of office.  The majorities in northern states wanted the country more united.  The north was becoming highly industrial, building transportation networks, turning into a tightly knit unit in which business was done between Boston and Chicago more easily than ever before, and a unified legal system was to the benefit of such a system.  The south was still an agrarian society, separated by muddy roads and driven economically by the field production of cotton and other cash crops.  To northerners, Massachusetts was becoming a piece in a larger puzzle of tight-knit countries more and more connected to each other.  To southerners, Alabama was an independent country that signed a mutual defense and trade treaty with a bunch of other distant countries.

The fear southerners had of Lincoln was not really that he would end slavery–he had little chance and no intention of doing that any time soon.  It was that he would move the union more toward the central government model preferred by the north and strip the powers of the individual member countries in the process.  We see the same kinds of conflicts in Europe as they begin to adopt unified currency and banking regulations.  So when this icon of unification was elected, states that wanted to maintain autonomy seceded, and the remaining states decided that was not something they could do under the terms of the treaty, leading to a war to decide whether the Federal Government or the State Government had ultimate authority.

Of course, the elephant in the room was the one difference that had been a conflict between north and south for generations, that the southern economy was built on a slavery model and many northerners found this immoral–not that they believed blacks were any more human than the southerners believed, but that they were more on the order of animal rights activists trying to protect an exploited creature.  Because of the ongoing balance of slave and free states in the Senate, there was no real chance of meaningful legislation on that subject–but a tightening of the concept of Federalism would mean that unified laws would gradually come into being, and that was a threat.

So the question over which we fought the Civil War for five long bloody years was whether a member State of these United States had the authority to ignore Federal Law if it wished to enforce its own policies instead.  Then it was an entirely theoretical matter, as there were no Federal laws to enforce against the rebelling states, but the answer to the question turned out to be no, once you are a member of this union you are bound by Federal law, which trumps State law when they conflict.

So what the Confederates were defending, although they could not have known it, was the right of California to ignore Federal Immigration Law; and the right of Colorado to ignore Federal Drug Law.  The answer we were given then is no, Federal Law is enforceable within the member States, and the States cannot contradict it with their own laws.

So it seems to me that at least some people who are calling for the removal of Confederate markers and Confederate history actually favor that for which those Confederate soldiers fought and died–the right of states to pass laws and enforce policies contrary to those of the Federal government.

It had nothing, really, to do with slavery or bigotry.  It had to do with questions we are still facing today.  Instead of tearing down reminders of history for wrong reasons and ignorance of their significance, let’s try to gain from them the lessons of the past for the future.

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#152: Breaking a Habit

This is mark Joseph “young” blog entry #152, on the subject of Breaking a Habit.

We all have habits.  It is actually a positive feature of our design:  we can harness this habit process to give ourselves good habits, like habitually buckling our seatbelts, or brushing our teeth, or saying prayers when we hear sirens.  Yet we tend to notice habits when we develop harmful ones–the regular drink at the odd time, the tendency to snack while working, and of course one of the big ones, smoking.

It was smoking that caused me to think about this, because I know several people who smoke and really can’t afford the cigarettes, and because of my father.  I can remember him smoking when I was a boy, and I can remember that my mother said he had a hard time quitting.  In the last years of his life he shared with me two things, one the way he managed to quit, and the other a technique he had recently seen in a newspaper that would work well with his own.  He seemed at the time eager that I should pass these to smokers I knew, but on reflection it occurs to me that these are good ways to quit just about any habit–and my theology tells me that we all have habits we ought to break, and we all have trouble breaking them.

img0152cigs

The difficulty, it seems, is that it is just about impossible for any of us to say to ourselves that we will never do something again, and then stick to that.  It’s the reason you’ve probably already broken at least one of the New Year’s Resolutions you made yesterday.  It may be that angels who live in eternity can make irrevocable choices, but those of us stuck here in this time zone do not have that ability.  And therein lies the key to beating the habit:  recognize that you can’t decide never again, and deal with right now.

My father explained to me that he never quit smoking.  He had in previous years won bets against people who were trying to quit smoking, which were in essence that he could go longer without a cigarette than they would.  One day he applied that to the long haul.  For over fifty years he never quit smoking, never told himself he was quitting, he just always decided that he didn’t need a cigarette right now, every time he wanted one.  You don’t quit smoking, you don’t break a habit, by deciding right now that you will never do it again; you break it by deciding that you won’t do it now, even if maybe you’ll do it later.  When later becomes now, you make the same decision, because you can almost always decide that now is not a good time for a cigarette, that you can have one later when the time is better, and never decide that the time is better.

So that’s how it’s done.

The other part is worth mentioning, particularly for people who have failed before.  Failure is not necessarily a disaster; it only means that you start again.  The suggestion that was made was that you keep score and play against yourself.  Keep a notebook, or get some kind of “app” on your phone that lets you record this.  Every time you indulge the habit–have a cigarette, or if that’s not your habit, raid the icebox or take a drink–write down the date and time, and do the math:  how long has it been since the last time you did this?  That’s your score.  Keep track of your best score, and try to beat it.  If you have gone four days without a cigarette, but your personal best on record is six days, tell yourself you can beat six days, even if it’s only six days and one hour, and put off that smoke until you’ve bested yourself.  Then you have a new record, a new best to beat.  You’ve also proved that you can go that long, and if you stick to it you’ll be going months without a mistake.

This is nothing new, really.  It’s part of why they have that litany at the beginning of every speech at Alcoholics Anonymous: this is who I am, I admit I have a problem, and at the moment my streak is this long.  When it has been three years since you’ve had a drink–or a smoke, or an unscheduled snack, or whatever your habit is–you have some sense of accomplishment in the number.  No one says it will never be a temptation; it’s only that practicing resisting that temptation makes you better at it; setting goals you know are achievable because you have done nearly as well before, and dealing with the problem in the present instead of in the hypothetical, all make that resistance easier.

So I hope this helps you quit the habit, whatever it is.

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#96: Federal Non-enforcement

This is mark Joseph “young” blog entry #96, on the subject of Federal Non-enforcement.

Someone mentioned recently that he and a mutual friend were planning to start a business.  The friend was going to liquidate his inheritance and together they were going to move to Colorado and become farmers.

If you’re planning to become a farmer and moving to Colorado to do it, your intended crop is pretty obviously marijuana; he did not have to say so.  I pointed out that there were some hazards with such a plan because although marijuana has been legalized in Colorado, it is still illegal at the federal level.  That has impact on a number of aspects of running a business, most notably the banking, since all banks are federally regulated and they are quite reasonably concerned about violating regulations intended to thwart drug trafficking.  It isn’t just that you can’t get loans; it is difficult to get business checking accounts.

His concern was what would happen if a Republican won in the fall, and that is certainly a concern; there is, however, another significant concern which might well matter regardless of who becomes the next President of the United States.

img0096Marijuana

The concern about the Presidential election is certainly obvious.  Federal drug laws related to marijuana production, sale, purchase, and use are not being enforced in Colorado because the Chief Executive has decided not to enforce them.  There is some merit to this decision, since we have a definite conflict of laws situation and part of the concept of the federal/state divide is that states become experimental petri dishes for solutions to problems.  In that sense, letting Colorado experiment with legalized marijuana as a solution to part of the drug trade and associated crime is a very American approach.  The next President might decide otherwise, though, and then enforcement will resume.  However, the question is raised as to whether the President can turn a blind eye to violations of federal law in any of the states.

That question has already been raised in a different context.  The same administration that has decided not to enforce federal drug law in Colorado has also decided not to enforce certain aspects of federal immigration law, and quite a few states particularly in the southwest have sued in federal court–and thus far, the states seem to be winning.  If the President can’t pick and choose what laws to enforce in relation to immigration, he probably can’t do so in relation to drug law.

Of course, the situation is not exactly the same here.  States like Arizona want the federal government to enforce immigration law, and to allow them to do so in the absence of federal enforcement, and the administration is fighting to prevent the enforcement of those laws.  Colorado, by contrast, wants the federal government to refrain from enforcing certain aspects of federal drug law within its own borders, and the federal government is cooperating with that.  Colorado certainly is not going to file suit to have the law enforced.

However, already several of the state’s neighbors have done so.  They claim that failure by federal agencies to enforce federal drug law in Colorado has resulted in illegal drugs crossing state lines more readily, and given them more trouble with their own drug enforcement efforts.  That has not progressed far, but the concept is the same:  can the President of the United States unilaterally decide not to enforce specific federal laws in specific ways or specific places?  Can the executive say no, we will not enforce federal drug policy in Colorado, and we will not enforce federal immigration policy in the southwest?  The courts are already saying no to the latter; the connection is obvious enough that they will probably say no to the former.

If they do, it won’t matter who becomes the next President of the United States:  the federal courts will decide that Colorado can’t prevent enforcement of federal drug law within its borders, and the federal executive cannot choose to ignore those violations.

It might turn around, but at this point the two policies are almost certainly going to be linked, and in a way that decides the degree to which the President of the United States can decide what laws actually get enforced and which ones can be ignored.  It is a dangerous policy to give the executive that much power, and the framers of the Constitution seem to have tried to avoid doing so, but you can never be certain which way the courts will go or on what basis they will make their decisions.

For myself, I would not bet on the Colorado experiment escaping federal intervention for more than a few years, unless Congress decides to change federal law.

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#79: Normal Promiscuity

This is mark Joseph “young” blog entry #79, on the subject of Normal Promiscuity.

A few weeks before his death, my father forwarded a link to an article which seemed to bother him.  It included interview excerpts from young women, and put forward the notion that now that the governmnent was providing full coverage for birth control they felt free to sleep with as many men as they liked, and were taking advantage of this new-felt freedom by doing so.  His comment to the link was a question as to whether this was really happening, and I was not at the time certain (and never did determine) whether he realized that the article was from one of the sites that rather poorly attempts to do what The Onion does so well:  create parody that looks like news.  They weren’t seriously suggesting that the availability of free contraception caused an abrupt upswing in the sexual activities of young women; they were rather facetiously suggesting the reverse, that those who thought this might happen were being foolish.

Yet the notion returned to my thoughts periodically.  There was something there that bothered me.

L0059976 Model of a contraceptive pill, Europe, c. 1970 Credit: Science Museum, London. Wellcome Images images@wellcome.ac.uk http://wellcomeimages.org
L0059976 Model of a contraceptive pill, Europe, c. 1970
Credit: Science Museum, London. Wellcome Images
images@wellcome.ac.uk
http://wellcomeimages.org

Some years ago one of my then-teenaged sons was dating a girl in about as serious a relationship as teenagers have.  On his first visit to her home, her slightly older sister gave him a tour of the house which included what I gather was a laundry and utility room in a finished basement, identified by the sister as the room where you go when you want to have sex.

I was not present; I heard this second or third hand.  I suppose it might have been the sister’s idea of a joke:  “I know you want to have sex with my little sister, well, this is the place for it.”  Somehow I did not think so at the time.  I was a bit upset, but did not know whether it should concern me more if their divorced mother did not know that her teenaged daughters were so open about having sex with boyfriends in the house, or if she did.

That latter possibility reminded me of another woman I had known some years before, a friend of my wife, who had a daughter.  I never had a high opinion of her.  From what I gathered she was certainly no virgin when, in high school, she seduced the boy she hoped to marry and then reported that she was pregnant with his son (it was sometimes questioned whether it was his child), but having failed thereby to induce him to marry her she decided to live with him.  She was believed, even by him, to have had a series of affairs, but when their relationship was struggling she got pregant again and had the daughter (no one doubted that she was his) and finally got the marriage certificate.  (That might be an oversimplification and I might have the wedding in the wrong place; it’s been a couple decades by now.)  Again in what is second-hand knowledge I gather she had a talk with her daughter about having sex, when the girl was about twelve or thirteen.  The gist of it was, “I know you’re going to have sex, so I want to make sure you do so safely.”

It is this underlying presumption that bothers me, this belief that everyone is having sex.  What we once somewhat derisively called “promiscuity” is now regarded as normal.  It was previously regarded as abberant, and I think that in an historical context we might have good reason to consider our age abberant in this regard.  Of course, the majority in any era considers itself normal, its ancestors in error, and its future descendants extensions of its own values.  The third being demonstrably false on the evidence of the second, we should doubt the first.

I understand the logic of the situation.  It is asserted, correctly, that teenagers have always engaged in sex, hidden from their parents, and that single adults have similarly managed secret sexual liasons.  Too, there have always been extramarital affairs, infidelities, as husbands and wives have taken lovers, either those single persons who are looking for sexual partners or the spouses of others.  It has always been so; it is the norm.  The difference, we are told, is that today we admit it and in most cases no longer attempt to hide it.

The error in this logic is evident when you realize that the statement “teenagers have always engaged in sex” is then taken to mean “all teenagers have always engaged in sex.”  That was a misperception when I was a teenager.  I think–I do not know–that there were among my peers some who were having sex, perhaps sporadically, perhaps frequently or even regularly.  For any who were, I suspect that they thought everyone was doing it and they were thus no different; for those of us who were not, I think we thought that everyone else was doing it save for a few of us unfortunates who had been excluded.  In retrospect, the facts of the case then were that very few of my peers were engaged in sexual relationships or activities despite the fact that we were in high school on the tail end of the “sexual revolution”, had regular “sex ed” classes explaining how it worked, and knew something about how to obtain and use birth control.  I don’t know what percentage of us were virgins, but I gather it was considerably larger than even we thought, and that the majority of those who were not had very little actual experience.

I cannot say that my experience even then was typical in a country in which there are so many social and economic variables; I know it was not atypical.  I also know that the idea that “all teenagers are having sex” is not true now.  Nor is it true that all single adults are engaged in sexual activities, or that all married people are having or even have had sexual liasons with other partners.  The supposed facts are untrue.  Yes, there have always been some who have been what we called promiscuous.  It may depend on how you count, but it was certainly not a majority in the past.  It is not even certain whether it is a majority in the present.

However, because of the general attitude in the present, it is likely to be a majority in the future.

We once told our children that sex was a very natural part of being married.  Then somehow we decided that this was too prudish, and started telling them instead that sex was a very natural part of being in love, and that if they were in love they should not be embarrassed about sex.  There are good reasons for the old idea, that sex was part of being married, quite apart from the legal issues of responsibility and legitimacy.  We, as a society, forgot them, and promoted a lesser standard, that sex was fine between any two people who were truly in love.  Then that became too limited–as the Tina Turner song demanded, What’s Love Got To Do With It?  Sex became a recreational activity, something people did for fun, and any suggestion that it was other than that was considered prudish.

Barry McGuire spoke somewhere of his own youth.  His generation was raised by adults who had long lists of things one did not do, who were never taught why you did not do them.  Thus he and his peers were told you do not do these things, and when they asked why not no one had an answer beyond, “You just don’t.”  That being an entirely inadequate answer, he said, “we went out and did them all–and we discovered that you don’t do them because they end in death.”  That has literally been the outcome for many who have lost control of their “recreational” drug use or their “social” alcohol consumption, and of many infected by the human immunodeficiency virus or other sexually transmitted diseases.  It has also been true of many who live in the shadow of death, whose lives have lost meaning because they are so destroyed by these misperceptions–the world teaches them that alcohol, drugs, or sex will make them happy, and when it does not deliver beyond a moment of pleasure (and momentary pleasure is not at all the same as happiness) they wind up seeking the pleasure and abandoning any hope of anything more.

And so today we are teaching our children that sex is nothing more than a recreational activity they should feel free to enjoy carefully–like drinking alcohol or using drugs.  We have lost the moral compass, the moral foundation, of a world in which some things were disapproved because they were ill-advised, hazardous, and thus wrong in the same sense that it is wrong to stick tableware in electrical outlets.

So we have created a world in which promiscuity is normative.

I mentioned earlier that it is a mistake to believe that our descendants will be extensions of our own values.  We cannot predict what will happen even in the next generation.  Perhaps the world will realize its mistake, and some sense of decency will return; perhaps, as with other cultures before ours, the deterioration will continue to snowball and the world as we know it will collapse into chaos from which some new order will arise.  What we do know is that the future will be different.  Our best hope is that we can inform it with values that will make it better.  They are not likely to come from the mainstream of our present society.

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#48: Inequities in the Justice System

This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it.  It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced.  I shall attempt to keep them clear.  It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.

img0048Court

The story begins with a young man in his early twenties out for a walk on a late summer afternoon.  He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him.  The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything.  They asked him to identify himself, and he gave his name but was reluctant to tell more.  After some discussion he gave his address, and was told he was not permitted to leave until they had identified him.  They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here.  The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here.  The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police.  It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”.  At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars.  The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions.  The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner.  He was told he was under arrest for possession of marijuana.  The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here.  I did immediately, but then, I hit these problems in law school.  Still, I cannot believe that the police procedure here was so incredibly bad.  One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification.  You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers.  If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers.  In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability.  Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution.  The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese.  Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other.  That’s the problem of cross-cultural identification:  our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another.  The identification is already suspect.

However, even if that were not so, there is a much more significant problem.  You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread.  They don’t usually present the suspect to the witness and say, “Is this the guy?”  That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so.  We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population.  Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.”  The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory.  The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there.  By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene.  They have no idea who they are seeking.  Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw.  He made no claim of having seen him up close, or having recognized him from previous acquaintance.  He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street.  About the only information the witness gave the police was young white male, went that direction.  They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting.  That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause.  A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious.  Being a young white male is not suspicious.  Nothing was found on the suspect to connect him to this or any other crime.  The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion:  the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt.  The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect.  Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him.  They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there.  They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him.  They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender.  His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney.  He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these.  It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges.  The public defender application fee is not refundable.

No one apologized for the wrongful arrest.  In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again.  It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances.  After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime.  If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned.  The defendant was not a young black male; he was a young white male.  It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male.  It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately.  Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened.  Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism.  If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests.  If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

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#19: The Smell of Grass

This is mark Joseph “young” blog entry #19, on the subject of The Smell of Grass.

Just about the middle of last year (2014) I wrote two articles related to the legalization of marijuana (now combined in one page with two other articles on the subject), the first raising the question of whether the legalization of marijuana in some states meant employers could no longer drug test for it, and the second noting that the answer is yes, in most cases you can be fired for using marijuana based on a failed drug test even in a state in which marijuana use is legal.

In our search and seizure series, rather separately, we reported on cases in which the fact that an involved officer “smelled marijuana” became probable cause for further investigation.  That raises another question:  if it is legal for some but not all people to use marijuana in a given state, does that mean that the smell of marijuana can no longer be the basis for probable cause that a crime is being committed?  After all, there is now the possibility that whoever is burning the marijuana is doing so legally, and thus neither the possession nor the use of marijuana is necessarily a crime.  Are officers now forbidden to assume there is a crime in progress if they smell the drug?

In New Jersey, that has recently been answered by a state appeals court, a ruling binding on all New Jersey trial courts.

img0019Marijuana

In 2012 police in Cumberland County responded to a report of gunfire, and found George Myers sitting in a car in the area.  Police quite reasonably questioned him, but smelled marijuana coming from the car.  Based on the smell of marijuana they claimed probable cause to search Myers, and found both marijuana and an unlicensed handgun in his jacket.  Myers took a plea agreement for a five year sentence on the weapons charge, but also filed an appeal, claiming that the search was unlawful because there was no probable cause:  he might have been using the drug under the authority of New Jersey’s 2010 Compassionate Use Medical Marijuana Act (CUMMA).  He was not, but Myers maintains that the fact that he might have been meant that police could not conclude there was a crime in progress, and thus having no basis to search him would not have found the unlicensed gun, and that he could not be convicted on evidence obtained in an illegal search.

The court says no, that is not what the law means.  Marijuana is still classified as a controlled dangerous substance, and its possession and use is still criminal.  CUMMA provides an affirmative defense; it does not decriminalize the action.  The best known example of an affirmative defense is a self-defense killing:  a homicide has been committed, and it would be murder except that the victim was clearly in danger of being killed (or sometimes raped or severely assaulted) and so acted reasonably and will not be found guilty of murder.  In New Jersey, police are instructed not to arrest someone for marijuana possession if the individual “reasonably appears” to be enrolled in the medical marijuana program (usually by presenting the program identification card).

As of the end of last year there were a bit shy of four thousand persons so enrolled in the entire state, out of almost nine million residents, so it is generally unlikely that any particular user is going to be enrolled.  However, the decision was not based on this probability assessment, but on the nature of the law itself:  just as it is never really legal to kill someone threatening you with bodily harm but will be excused if it was reasonable for you to believe the threat was genuine and imminent, so too it is never really legal to possess or use marijuana in New Jersey but will be excused if you have been authorized to use it under the medical marijuana program.  It is important to understand that, because just as this ruling only applies in New Jersey, the law itself only applies in New Jersey; the laws will be different in other states, and the exact nature of the treatment of marijuana users under the law is going to be the key to whether probable cause can be assumed.  Had the law stated that it was not illegal for such persons to possess or use marijuana, that might have led to a different outcome; what it actually said was that their illegal possession and use of the substance will be excused based on medical necessity, that in essence their crime will be overlooked by the system.

So do not think that the fact that medical marijuana is legal in New Jersey means that the smell is no longer evidence of a crime.  In fact, although it is a technicality, medical marijuana is not legal in New Jersey, it is simply a crime that is excused under those circumstances.  That is not at all the same thing.

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