The Bull in Full

Musing on a Framework for Recreational Intoxicant Regulation

Personal #1 blog addiction Andrew Sullivan has a characteristic post about marijuana decriminalization and/or legalization along with other illegal drugs. So, since I took yesterday off from just about anything resembling an obligation to DCM, UNC, First Pres, or anything else, I seem to actually have the inclination to commit to blog the idea I've had about this for a while.

First off, let me say that, largely speaking, I'm firmly in the legalization camp as far as it goes for marijuana, and I strongly sympathize with the anti-Prohibitionist logic for legalization of a wide range of currently illegal drugs. However, this comes with a big caveat -- legalization is more than simply removing the laws from the books that prohibit it, or as Sullivan advocates...

Just legalize it for adults, place strong constraints on minors finding a way to purchase it, and stop using pot arrests as some benchmark for police success, especially when there is an obvious racial dispairty in enforcement of the law. It's not that hard.

Well, actually, it is kind of that hard. Here's the thing -- all excellent arguments against the horrendously expensive, corrupt, and abysmally ineffective "War on Drugs," drugs do ruin people's lives. Substance abuse is a killer of dreams, relationships, careers, families, and of course, people. Simply because the drug war isn't working and is causing horrific problems, that doesn't mean there aren't serious issues to be considered when undoing it.

The best illustration of this comes from the classic example cited by legalization proponents -- the 18th and 21st Amendments to the US Constitution. Prohibition was of course a terrible failure in its aims, but the success of alcohol re-legalization went far beyond simply repealing the 18th, as Daniel Okrent's book makes pretty clear. The post-Prohibition alcohol regulatory state includes, unlike the pre-Prohibition alcohol regulatory state, regulations on who can sell alcohol, who can buy it, where it can be sold, when it can be sold, and how much someone can drink before driving a motor vehicle, among many other regulations.

Compare this to the failed Proposition 18 referendum in California that would have legalized marijuana. One of the major components of the anti-Prop 18 movement was to point out that the change would have made it very difficult to, say, forbid a school bus driver for showing up to work with pot in his or her system. Simply put, just as we do with alcohol, we need some parameters on just how intoxicated someone can be before a variety of legal restrictions kick in.

To my mind, alcohol has to be the lodestar on what I'd classify as the group of "recreational intoxicants," but a quick examination shows that alcohol regulations are already pretty loosey-goosey, and prone to a lot of subjective determinations. For example, there's no specific limit set on how much alcohol someone can have before operating a 500-lb forklift at work. Everyone pretty much agrees that an employee who shows up for work with booze on his or her breath to operate heavy machinery should at the very least get sent home and should probably just be fired on the spot, but clearly someone who takes a small amount of low-strength cough syrup containing a small but measurable amount of ethanol before coming to work at a desk job is probably fine. On the other side of the scale, there are laws against "public drunkenness," but while the legal driving limit is .08, the standard for an arrest for public drunkenness is self-evidently much higher, although undefined. In short, we've already worked out informal standards for alcohol, but such standards are far from apparent when it comes to currently illegal recreational intoxicants, such as marijuana or cocaine.

So here's where I come down on this: for any recreational intoxicant we're going to consider we need a reliable means of measuring level of intoxication, on par with Blood Alcohol Content (BAC). From there, we should be able to establish a four-tiered level of what activities one can and can't do depending on how intoxicated one has become. In the process of doing this, I not only use alcohol as an example, but I'd actually advocate these as changes to the standing alcohol intoxication laws. For legalization of marijuana, as I mention above, there would need to be some scientifically established measurements on what blood THC levels implied what level of intoxication, which could be subsequently modified by the political process. (There appears to be crude measurements for ng/mL for THC as it is, but there's no widely available test for this.) Anyway, here's how I'd break it down for alcohol:

Tier 0: Sober

Define this as < .04 BAC. At this level, with exceptions for high risk jobs like heavy machinery operators, a person is presumed to be at their unimpaired capacity. Perhaps this is to fine a point to draw on it, but I envision a level where the presumption is, regardless of the intoxicant, below the defined level, the burden of proof lies on a regulator, an employer, or a prosecutor to demonstrate that an intoxicant interferes with normal capacities.

Tier 1: Affected? Impacted?

There's not a ready-made word for this level -- both "intoxicated" and "impaired" already have legal connotations, or I'd be tempted to borrow one of those. Suffice to say that while I'm pretty sure I've never or almost never driven while intoxicated over the .08 BAC limit, there's plenty of times where, in retrospect, I was driving after drinking and was certainly not 100% sober. "Tipsy" is the polite word used for this state. For alcohol, let's define this as between .04 and .08 BAC.

One complaint that many law enforcement officers have is that the .08 limit is really a bit ridiculously high. In order to crack .08, you really have to be seriously impaired. I'd say that I think our current legal penalties for driving over .08 are probably appropriate, but that we need an equivalent of a "9 mph over the limit" speeding ticket for drinking -- one that counts as a minor penalty on insurance, and maybe can get dismissed based on a clean record, but that is still a pain to deal with and grounds for citation. Furthermore, this level should be the point at which any employer should have the benefit of the doubt for reprimanding or firing an employee for showing up to work.

Tier 2: Impaired

Currently, most US states prohibit driving at above the .08 limit, but laws beyond that are fuzzy. Here's a list of things I think should be outright banned if someone is intoxicated on alcohol or some other substance to the point of impairment:

• Carrying a firearm on ones person
• Serving in a custodial role to a minor
• Purchasing alcohol or other recreational intoxicant
• Any other activity in need of regulation for which loss of judgment could lead to the endangerment of others

The less formal way of putting this would be, what should a drunk person not be allowed to do?

Tier 3: Loss of Personal Responsibility

And here we get to a key component of regulating drugs that I think worries a lot of people and that current alcohol laws fail to enforce. What happens when someone gets intoxicated to the point that they become a danger to others, simply based on their inability to act in a basic, responsible manner? My take on this is simply, if you allow yourself to become intoxicated to this level, you have surrendered one of your most basic freedoms, and that is your responsibility for your own actions in public.

I'm not sure where I'd put this threshold for alcohol -- probably in the .15-.20 range. Suffice to say, though, this is the level at which one should not be allowed to be unsupervised in a public place. If one is in a public place, then one should either be in the custody and care of someone who is unimpaired at the very least at Tier 1 in this scale, and probably Tier 0, otherwise I see no problem with law enforcement having the right to take a person at this level into custody for the simple act of public safety.

So what was the point of all of that?

One of the problems I have with current recreational intoxicant laws, including both alcohol and illegal drug laws, is that they violate the spirit of the liberal state -- that is, they do not regulate harms between parties, as John Stuart Mill envisioned, but regulate personal actions which often have no immediate impact on others. Notice that in all of the above expansions and tightening of regulations on substance use, there's nothing anywhere that prohibits people from sitting in their own houses (without children present) and getting drunk or stoned or high to the point of drooling or vomiting or passing out, provided they don't leave the house. And that, in my opinion, is a major improvement over current laws. Yes, it's a tragedy when someone abuses as substance to that level, but that doesn't make it a reason he or she should go to prison for it. However, unlike the blanket removals of regulations that some legalization proponents advocate, it still protects society at large from the dangers posed by drug users, by specifically prohibiting actions rather than more nebulous things like "possession with intent to distribute."

To illustrate, let's move out of the well-worn paths of alcohol and marijuana to the more touchy subject of cocaine. In low concentrations, coca leaf extract is a mild stimulant which is almost certainly safer for general consumption than its highly toxic cousin, caffeine. (In fact, one of the reasons cocaine is banned and highly concentrated caffeine is not is that snorting a comparable amount of caffeine would be almost instantly fatal, so isn't prone to recreational abuse.) So, at some very low levels of blood content, coca extract should frankly be perfectly legal for use in soft drinks and energy drinks. I don't know what the comparable levels are for cocaine -- I've never used it myself, and have only been around those using it once or twice -- but given a means of measuring blood levels, it shouldn't be hard to come up with tiers that match the above. Perhaps one line of cocaine is enough to shoot one directly into Tier 3, I have no idea. But with this framework, you're banning the actual use of a substance in a means that could cause harm to others, rather than the substance itself. This removes all sorts of nonsense from the criminal code, and could straighten out law enforcement and prosecution significantly.

This isn't everything that has to go into a revamped regulatory structure for recreational intoxicants. Like alcohol, strict stamping, taxing, regulation of intoxicant levels, warning labels, distribution licensing, and all of that are part of it. But those are less sticky to solve -- replicating the alcohol regulation and enforcement structure there largely answers the question. My purpose here is to try to think of a legal framework that is both based on clear, empirical, and enforceable measures that law enforcement, social workers, and legalization advocates can live with (while probably not entirely happy with). Anyway, I'd love to hear comments from those who are more involved in the issues.

Jim Webb proposes prison reform commission

This is fantastic news:

Sen. Jim Webb, D-Va., wants a "top-to-bottom review" by Congress of the nation's criminal-justice system with an eye toward reducing the growing prison population.

With the support of the White House and some Senate Republicans, Webb is proposing a blue-ribbon commission spend 1½ years looking at law-and-order issues.

Webb's office says the panel should take a sweeping look at the way the nation controls crime, metes out punishment and returns felons to society.

A background document says of the commission: "Its task will be to propose concrete, wide-ranging reforms to responsibly reduce the overall incarceration rate; improve federal and local responses to international and domestic gang violence; restructure our approach to drug policy; improve the treatment of mental illness; improve prison administration, and establish a system for reintegrating ex-offenders."

Naturally, this is just one of those "blue ribbon commissions" and won't do anything on its own, but at least the conversation is starting at high levels. 

Why sex offender residential restrictions are a bad idea

Brief flashback from my crime analysis days.  When I was at RTI, I participated in conference calls from all the folks across the institute that worked on criminal justice issues.  One thing I remember coming up several times was the restrictions keeping sex offenders from living close to schools or parks.

Now, I realize this is a tricky issue.  Sex offenses are so socially damaging, insidious, and hard to prevent, I'm willing to try to push past the wince reaction I have with the online sex offender databases that the newspaper ads encourage us to search.  Certainly if you're going to hire a babysitter, it'd be nice to look up whether that person is a registered offender.

However, the residency restrictions really go too far without doing anything.  An article this past weekend in the Washington Post dug into just how disruptive and counterproductive these restrictions can be:

Upon release from state custody, Ross Wollschlager began an intensive search for a home, one that abided by the restrictions imposed on convicted sex offenders in California -- and, in various versions, by about 30 other states. Obliged by law to return to Ventura County, the convicted rapist was forbidden to sleep within 2,000 feet of a school or a park.

He ended up in a tent on the dry bed of the Ventura River.

Strict new laws aimed at keeping track of sex offenders after they leave prison appear to be having the opposite effect, encouraging homelessness in a population believed more likely to re-offend if cast into the streets without structure or family support, say prosecutors, police, parole officials and experts on managing sex offenders.

Sex offenders are as likely to commit offenses at their places of employment or over the internet as near their homes.  We use residency restrictions not because they necessarily make sense, but because, well, they're relatively easy to enforce.  If you're going to try to pin someone down to an exact point on a map, the residence is usually the best you can do, even if the person spends a relatively small amount of time awake there every day.

I don't have a great answer for how to deal with released sex offenders, but like so many other things involving homelessness and criminal justice, it strikes me that better mental health evaluation, treatment, and monitoring would be a good first start.

Listening to noise, not hearing much

I know I shouldn't, but sometimes you can't help it.

I put on waders and headed back into the rather icky waters over at Liestoppers, which is pretty much Grand Central for those most inclined to see the Duke lacrosse/Nifong mess as a grand conspiracy involving liberals, black people, the media, corrupt police, reptilian shape-shifters, and probably the Loch Ness monster, all centered in that city perched atop the hellmouth itself, Durham.  The odd thing is, mixed in with the true loonies, there are a few people who come across as objecting out of principle.  Given that, and the fact that I was sure these folks were obsessively watching Durham for signs of Masonic child sacrifices or what not, I was sure they had some take on Eve Carson.

Funny, just like almost exactly two years ago, there's a media frenzy going on, with suspects being arrested and a lot of evidence appearing in the media appearing to implicate them.  Now, if there's one rock that the Liestoppers folks tether their ark to more than any other, it's the constitutionally protected presumption of innocence until proven guilty.  Would these stanchions of constitutional and legal ethics insist on the presumption of innocence for Lovette and Atwater? 

You can probably guess, or you can see for yourself.

Speeding, broken windows, panhandling, and all that

Busy day today, but I can't let this topic go without commenting.  Kevin today tag-teams off of one of Barry's posts earlier this week about the hesitancy of the Durham Police Department in going after speeders.  I meant to get to Barry's post earlier, but I can't let yet another one on this topic go by without commenting on it.

My master's thesis was on crime in Durham and various location-based strategies for addressing crime, and what their results are.  In the process, I did a pretty extensive review on the criminology literature surrounding order maintenance policing, better known as the "broken windows" theory, based on an article of the same name that James Q. Wilson and William Kelling wrote in the Atlantic in 1980.  Back in early '06, when I was in the thick of finishing the thing, we got into quite the conversation on the PAC2 mailing list about the panhandling ban, and whether it represented an effective "broken windows"-style approach to crime prevention.  I thought it was not, and put forward, oddly enough, residential speeding as something that the police should crack down on instead.

This message came in the middle of a conversation, so it refers to e-mails written by Chris Sevick and Ken Gasch previously.  I think it's still pretty apparent what's going on, and this post laid out my case for how broken windows applies to Durham better than I think I could write now.  And since I don't have a whole lot of time, I'll just quote the thing in its entirety below the fold, edited slightly for formatting:

Innovative crime-fighting solutions

Bull in Full foreign correspondent Kathryn Bacon Goldman, on location in Uganda, sends in this nugget on innovative crime fighting techniques being used in Kenya:

The threat of witchcraft has scared looters into returning goods they stole during unrest which followed last month's disputed Kenyan elections.

TV stations broadcast pictures of people returning to places they robbed in the coastal city of Mombasa carrying beds, sofas and other items.

A police commander confirmed the reports and said the rumours of witchcraft had made his job "easy".

Feel free to discuss ways to apply this technique in Durham in the comments section.

Anson County DA still harrassing Floyd Brown

From the Charlotte Observer this morning:

What Anson County District Attorney Michael Parker is trying to do to Floyd Brown goes beyond unreasonable. It's unconscionable.

A judge on Monday dismissed charges against Mr. Brown, who had spent 14 years locked up in a mental hospital for a murder charge he was never tried on, based on a confession experts say he couldn't have made. But now he has no suitable place to go. After a visit from the Anson County DA, a group home reneged on an agreement made months ago to take Mr. Brown when he was released.

Betsy Muse at BlueNC dug up an article from the Denver Post, of all papers, detailing just how ridiculous and corrupt the continued incarceration of Brown is.  And now, the DA is trying to keep him from being accepted into a group home.  Of course, given the events around here of the past week, another case jumps to mind.  Apparently, that's not just because we're in Durham here; the Observer noticed it too:

DA Parker reminds us of disgraced and disbarred Durham prosecutor Mike Nifong in this regard: Like Mr. Nifong, Mr. Parker has doggedly pursued a case where evidence and fairness clearly say he should not.

Well, some might say, at least the cops weren't in on the act too, right?  Well, according to the Post, the murder weapon, a large wooden stick with bloody palm prints on it that didn't match Brown's, has now disappeared from the evidence locker.  More from the Post:

Sheriff Allen was asked in court what he did when he learned the evidence in the case had been lost.       

"I didn't do anything," he testified.       

Prosecutors surmised that the evidence may have been lost while being returned from North Carolina's crime lab via United Parcel Service within three weeks of Lynch's murder. But court records show a lab report sent attached to the evidence arrived safely at sheriff's headquarters.

Hmmm...  Let's ask the lead investigator. Bud Hutchinson:

Asked three times whether he destroyed it, Hutchinson answers, "I don't know."       

"If I did, I wouldn't say," he continues. "It's not your business what happened to that evidence. It's nobody's business what happened to that evidence."

"The evidence? I'll be honest with you. It disappeared into thin air. Into thin air, I tell you. Only the Lord knows where it went," adds Hutchinson's partner, Robert Poplin, a former Anson County sheriff's deputy who sells cookware now that he, like Hutchinson, has lost his badge.

In an unrelated case, both detectives pleaded guilty in 1998 to federal racketeering charges for at least four years of shaking down money from people in exchange for not pressing charges in criminal cases. Hutchinson also pleaded guilty to conspiracy to racketeer.

"I've been in law enforcement for 30 years, and they were the worst I've ever seen," the SBI's Ramsey says. "I mean, that's just straight up. I've never seen more crooked officers than these. They were just as corrupt as they can be. I wouldn't put anything past them. Nothing would surprise me in dealing with those two guys."

Well, clearly the judge should have done something!

They cited Poplin's and Hutchinson's records of criminal corruption. They noted the detectives failed to investigate what happened to evidence they were responsible for keeping. And they argued the sheriff's deputies acted in bad faith by mishandling evidence that early tests found didn't match Brown and therefore were persuasive of his innocence.

A judge denied their bad-faith claim, saying it's "merely speculative" the missing evidence would have proved Brown didn't kill Lynch.

So, again, someone tell me about how this kind of thing happens "only in Durham?" 

I don't mean to be flippant about either the lacrosse case or Brown's case; both were dangerous miscarriages of justice.  But I frankly don't see much good in putting complete control of the Durham police in the hands of a federal judge, or suing the pants off of Anson County, while simultaneously ignoring the conditions in North Carolina's judicial system which made it possible.  This isn't just Durham's problem, or Wadesboro's problem -- it's North Carolina's problem.  I honestly have no idea what the technical details of any kind of redress would look like, but I think providing some formal statewide oversight and review of local district attorneys and law enforcement offices would be a start. 

The lacrosse civil case, pro-lacrosse blogs, sifting noise, etc.

Kevin takes a look at the decision by the formerly accused lacrosse players at Duke, and does his best job to untangle why the lawyers decided to tie the two cases together.  I think his main premise, that Nifong is unlikely to be able to afford the big monetary settlement the city could provide, is certainly a part of it, I think there may be a little more going on here.

I've been spending the last month trying (with lots of nose-holding and antacid) to read a couple of the anti-Nifong blogs, specifically Durham in Wonderland and Liestoppers.  While both are pretty substantial fonts of hysterical screed (the former's content is probably 50% sanctimonious nonsense, the latter 90%), they do get into a lot of nuance that isn't covered in the media.  In any case, here's some of the nuggets I've managed to extract from the mud:

Panhandling ban, revisited

Carolyn Rickard reports in today's H-S that Lewis Cheek's proposed roadside panhandling ban for unincorporated areas of the county is once again put off, with not much momentum behind it.  Back before I had a blog, I had quite a bit to say about this, mostly on the Partners Against Crime - District 2 mailing list (pac2).  My point was that whatever you think about panhandling, passing an ordinance against doing it in a particular place is not the way to go about it.  I've included an entire post I wrote to the pac2 list January of last year below the fold, and although some of the facts on the ground have shifted a little bit, the points still stand.  (At the time of writing, the City was considering a similar ban for inside the city limits, which, as expected, never went anywhere.) 

A much more constructive solution, I think, is the "Durham Can You Spare a Change" program that the INC has been talking about.  (Reyn over at DCVB did a pretty good summary in August.)  This is a joint effort to try to redirect funds towards more organized programs that provide structure and intervention for folks with various mental health problems, including addictions, that keep them asking for money.  All that said, I still object to admonitions of "don't ever give out money."   Most of the programs that we want to redirect people into are very targeted towards people in very specific situations.  (Temporarily homeless, chronic addicts, etc.)  While there continue to be the scheisters (like the guy who's been telling me for 8 years that he "just got into town a couple of weeks ago") who invent stories, I've met folks whose stories sound very reasonable who've described in frustration how they can't find anyone who will help them (as well as some real howlers of unreasonable ones).  Quite simply, there will always be good people who will find themselves dependent upon the kindness of random strangers.  That kindness will always be exploited by those who can, and I don't think either "give freely" or "never give" are the perfect answers.

Welcome attention to prison reform

Three bloggers at The Atlantic -- Ross Douthat (a conservative), Matt Yglesias (a progressive), and Andrew Sullivan (a political mutt) -- raise their voices in favor of reform of the hopelessly broken American prison system.  I've actually only posted once on this topic on the blog, but I've got at least a half dozen half-baked ideas for posts related to prisons and gangs that I can't ever get fully written.  I have a clear idea on how to approach a lot of political issues, but prison reform is one that just stumps me.  Ross notes that this is one area where nearly all political forces conspire to enforce the status quo, with few countervailing winds to try to sail.

The two greatest arguments I can make against the current prisons system are, one, the sheer brutality of it should offend our sensibilities, even if it does not, and two, that as I've noted elsewhere, our prisons frequently serve as little more than state-run gang recruitment centers.  All of the other moral arguments about rehabilitation, forgiveness, human rights, and human decency all seem to fall flat when it comes to talking about convicts, and we get more and more "get tough" rhetoric, which usually only serves to make things worse.

Given that my readership is a fraction of those of the Atlantic blogs, maybe this marks the start of some actual political movement on the issue.

Late Update: Reader CC e-mailed me this link to a story in the Denver Westword about ADX Florence, home of some of America's most notorious convicts.  Since September 11, there have been 100 media requests for access to any aspect of the prison, all of which have been denied. The article also mentions that Fast Food Nation author Eric Schlosser is working on a book about prison reform, which I think is fantastic.  (I'll admit to never having read FFN, but I know a lot of folks who have.  Which if nothing else means that Schlosser has the ability to write with a fair amount of mass appeal, something which is critical for any push to get anywhere.)