Friday, January 24, 2014

Marijuana Law Revision 40 Years After John Kaplan's Marijuana: The New Prohibition: Why is the Legal System So Slow in Adopting the Obvious?

What is true for marijuana laws is true for most of the laws that we post about. Why are we always something like 40 years ahead of the pack?

Let me say at the outset here that I am not a proponent of drug use of any kind, and I have recently even sworn off coffee, because it raises my blood pressure. Clean, disciplined living is always the best policy in the long run.

Nevertheless, past American laws and criminal justice policies toward drug use of all kinds, and this includes tobacco, marijuana and alcohol have been poorly deliberated, poorly legislated and have not worked. Abuse is still rampant.

We wonder, for example, why the current change in marijuana laws in some quarters is occurring 40 years later than it should have. Why is the legal system so slow in reacting to things that are clear??

John Kaplan had this figured out in the late 1960's and early 1970's, and yet we hear nothing about his publications in the press, even today, indicating that many people in mainstream media are not doing their homework.

In terms of drug possession, drug abuse and drug criminalization, we wrote previously elsewhere about John Kaplan's book, published in 1970:
"John Kaplan's
Marijuana -- The New Prohibition

John's book on the drug laws resulted from his membership on a professorial advisory committee to the California state legislature. John was quite conservative in his views and had in fact served as a public prosecutor of crimes, but his committee recommended a liberal stance toward marijuana - regarding its criminalization to be a legislative mistake.

John's view was that the legislature should concentrate more on workable laws regarding hard drugs such as heroin and cocaine, which were the major dangers. Too much emphasis was going toward marijuana - where young people were easily being caught in the act of smoking - and too little effort was being placed on going after hard drug makers and dealers, where arrests were much harder for the authorities to obtain.

As the result of the objective committee report, however, the committee was fired by the California legislature and a new committee was formed, ostensibly with members whose views were more in line with what the legislature subjectively wanted to hear, whether it fit the facts or not.
In his book, John predicted that the criminalization of marijuana would not work - it did not work - and that, on the contrary, the marijuana laws would strengthen the hard drug dealers as suppliers - which in fact happened, leading many people to take stronger drugs.
The drug abuse mess that exists today throughout much of America is partially the result of this very erroneous drug law policy, having concentrated on marijuana and not enough on the truly dangerous substances.

See: Marijuana -- The New Prohibition
by John Kaplan
Publisher: Ty Crowell Co; 1st Edition (June 1970)
"
As we wrote about this topic previously at LawPundit:

"The State of California and the other states of the United States have ignored Kaplan's recommendations and the results are now in, 40 years later. They do not speak well for the wisdom of past or current legislation on drug laws or their enforcement. According to the National Institute on Drug Abuse (NIDA) :
"In 2006, 25 million Americans age 12 and older had abused marijuana at least once in the year prior to being surveyed. Source: National Survey on Drug Use and Health; http://www.samhsa.gov/. The NIDA-funded 2007 Monitoring the Future Study showed that 10.3% of 8th graders, 24.6% of 10th graders, and 31.7% of 12th graders had abused marijuana at least once in the year prior to being surveyed. Source: Monitoring the Future http://www.monitoringthefuture.org/. "
According to Eric E. Sterling, President of the non-profit Criminal Justice Policy Foundation and former counsel on anti-drug legislation to the U.S. House Judiciary Committee, there are currently 2.3 million Americans in jails or prisons, many of them due to drug infractions:
"We certainly need to imprison dangerous offenders - to protect us and to punish them. But we need to get a lot smarter about why we imprison and who we imprison. Remarkably, in the last thirty years, the largest increase in imprisonment has been due to prohibition drug policy.
Even though drug enforcement leaders have warned for more than twenty years that "we can't arrest our way out of the drug problem," every year we arrest more people for drug offenses than the year before. Last year we arrested over 1.8 million Americans, more than three times the number arrested for all violent crimes combined. Now about one-quarter of those in prison are serving drug sentences. As the centerpiece of our anti-drug strategy, arrests and imprisonment have failed: high school seniors report that drugs are easier for them to get now than in the 1970s and 1980s."
Andrew Bosworth in Incarceration Nation: The Rise of a Prison-Industrial Complex writes similarly:
"Consider this disturbing fact: the United States now has the world's highest incarceration rate outside of North Korea. Out of 1,000 people, more Americans are behind bars than anywhere in the world except in Kim Jong-Il's Neo-Stalinist state. The US has a higher incarceration rate than China, Russia, Iran, Zimbabwe and Burma - countries American politicians often berate for their human rights violations.

Well over two million Americans are behind bars. Let us agree that violent criminals and sex offenders should be in jail, but most Americans are not aware that over one million people spend year after year in prison for non-violent and petty offenses: small-time drug dealing, street hustling, prostitution, bouncing checks and even writing graffiti. Texas, with its boot-in-your-butt criminal justice system, is now attempting to incarcerate people who get drunk at bars - even if they are not disturbing the peace and intend to take a taxi home...

Arguably, continuously lowering the bar for what it takes to be jailed threatens the liberty of all Americans. And having one million non-violent offenders in prison (often for absurdly long periods) makes it that much easier, in the near future, for the return of debtors' prisons and dissident detention centers. This approach to locking up everyone possible undermines both the liberal emphasis on personal liberty and the conservative emphasis on small government."
Who out there in the American criminal justice system understands the basic wisdom found in Herbert L. Packer's Limits of the Criminal Sanction? What lawmaker, government official, judge, prosecutor, or prison official in the United States has ever read Packer's book - much less applied the inexorable legal policy conclusions demanded by it? (see Google Books, this PPT and Packer's Two Models of the Criminal Process)

Not every undesirable human action or activity in society is or should be subject to criminal punishments. There are other - more modern - means available to deal with socially undesirable behavior.

Indeed, the primitive idea of jails or prisons as legal solutions for societal problems has been around for millennia. But such jails and prisons, except as a deserved punishment of and/or an effective deterrent of violent and dangerous criminals, are by their very nature as outdated in modern law as the now discredited blood-letting is in modern medicine, which was an accepted medical practice worldwide from the earliest times of humanity down to the late 19th century, a flawed medical practice which surely cost America's first President, George Washington, his life (we quote from the Wikipedia):
"Bloodletting was also popular in the young United States of America.... George Washington asked to be bled heavily after he developed a throat infection from weather exposure. Almost 4 pounds (1.7 litres) of blood was withdrawn ... contributing to his death in 1799."
We were reminded of the similar backward state of contemporary American law by the April 26, 2009 TIME article of Maia Szalavitz on Drugs in Portugal: Did Decriminalization Work? (referring to an article by Glenn Greenwald at the Cato Institute), where the answer to that question in the title is a clear, resounding, "YES, drug decriminalization has worked in Portugal".

Szalavitz quotes Glenn Greenwald, writing at the Cato Institute:
"Judging by every metric, decriminalization in Portugal has been a resounding success," says Glenn Greenwald, an attorney, author and fluent Portuguese speaker, who conducted the research. "It has enabled the Portuguese government to manage and control the drug problem far better than virtually every other Western country does."
What sensible legal policy did Portugal adopt?

Going to the original article at the Cato Institute, Glenn Greenwald writes in Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies :
"On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense....

The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world." [emphasis added]
We are particularly gratified to read this result, because the Portuguese solution is the solution advocated 40 years ago by our mentor at Stanford Law School, the late Professor John Kaplan - famed for his legal brilliance from his days at Harvard, a former prosecutor who was a conservative at heart - who in the late 1960's was selected as a member of a top-notch advisory committee of law professors to advise the California state legislature on a revision of the California criminal (penal) code.

Kaplan's drug research at that time led the professorial advisory committee to recommend the decriminalization of marijuana in California to the California legislature - with the result that the entire advisory committee was released from its duties by the legislature and replaced by other law professors whose political views were more in line with what the California legislature wanted to hear. I know of this only by hearsay and can not vouch for the exact details.

In any case, Kaplan responded to this experience with his book, Marijuana: The New Prohibition, which I had the honor and pleasure to edit (indeed, I drafted a chapter) while still a student, and in which Kaplan was of the opinion that drugs such as marijuana should be "decriminalized" - it was his major recommendation in this field of law.

As Herbert Packer - for whom I was also a student assistant at Stanford Law School - would have predicted by the principles in his book on the limits of the criminal sanction, drug abuse simply does not lend itself well to control by criminal punishments.

Eric E. Sterling, J.D., President of the Criminal Justice Policy Foundation in his Drug Policy Bibliography and Websites lists Kaplan's book as follows:
"John Kaplan, Marijuana – The New Prohibition, Pocket Books, New York, 1971, 402 pp. A classic. Stanford law professor John Kaplan demolished the factual foundation for marijuana prohibition when originally published in 1970. Throughly documented."
Talcott Bates M.D. wrote in his book review of Marijuana: The New Prohibition:
"Professor Kaplan was appointed in 1966 by the California Senate to a committee to revise the California Penal Code, last completely revised in 1872. By chance he was assigned the drug laws, about which he felt he had no knowledge or experience except that which he had acquired as a one-time prosecutor as Assistant United States Attorney. It became apparent at once that the key drug problem in California was the treatment of marijuana. Not until the treatment of marijuana was intelligently handled would progress in the broader area of drug abuse be possible.

Marijuana: The New Prohibition reviews the history of marijuana, how in 1937, four years after Prohibition ended, Congress outlawed the sale, possession, and use of marijuana. Professor Kaplan points out that the measure of the wisdom of any law is the measure of its total social and financial costs and the benefits that derive from this outlay. This book is an attempt to measure the costs of the criminalization of marijuana and concludes that the costs far outweigh the benefits."
It is not without reason, as written at ProhibitionCosts.Org, that in the year 2005, three Nobel laureates in economics and more than 500 distinguished economists advocated:
"replacing marijuana prohibition with a system of taxation and regulation similar to that used for alcoholic beverages [which] would produce combined savings and tax revenues of between $10 billion and $14 billion per year...."
The case for decriminalization and for a more intelligent approach to drug possession and abuse is clearly apparent, and has been so for 40 years.

Generally, in terms of all petty and needlessly "criminalized" legal infractions, there are great legislative and judicial opportunities out there to adopt sensible criminal laws, to get people out of jails and prisons who should not be there, and to help to integrate people into normal life rather than tossing them stupidly into jails and prisons, where little progress in development is possible for most.

Quite the contrary, people are thrown together with hardened criminals, to their detriment. In the case of most non-violent crimes, especially petty infractions, and definitely in the case of financial infractions, jail and/or prison should be the very LAST option, not the first.

But how likely is it that an entrenched unmoving American legal system will now take the intelligent path forward to reform its vastly outdated drug laws and to free its jail and prison populations of people who should not be there?

Not very likely - unless the people in Congress and state legislatures suddenly get to be a lot smarter than we judge them to be.

For more resources on this topic, see the Cato Institute's Criminal Justice Reading List."

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