The Volokh Conspiracy

Radley Balko has an interesting column noting the troubling implications of some of the arguments being made in the drug-sniffing dog cases currently before the Supreme Court. He points out that these dogs’ drug alerts are often unreliable because, in many cases, dogs seek to please their handlers rather than search out the truth. Thus, they often alert when they sense that the handler wants them to do so (e.g. – if he has a hunch). This leads to a very high rate of false positives in tests:

[T]he majority of the [Supreme Court] justices assumed that the nose of a dog is infallible — that an alert from a dog indicated the presence of whatever the dog was trained to find, and nothing else. An alert, then, was enough to establish probable cause for a more thorough search by law enforcement personnel.

That assumption was wrong at the time, and it has been repeatedly proven wrong since...
Consider another study conducted by Lisa Lit, a neurologist and former dog handler at the University of California-Davis. Lit brought 18 dog/handler teams currently operating in law enforcement agencies to an empty church. Each team conducted eight searches, each lasting about five minutes. If they were accurate, none of the dog/handler teams should have alerted in any of the searches. There were no drugs or explosives anywhere in the church.

But Lit had set some traps. The handlers were told that each search could have as many as three “target scents” — drugs for the drug dog teams, or explosives for the explosive dog teams. The handlers were told that in some cases hot packages were indicated by a piece of red paper. These red paper packages were designed to trick the handlers. Lit also set a trap for the dogs: Some of the packages contained unwrapped sausages.

The results were striking. The dogs falsely alerted in 123 of the 144 total searches. Because some dogs falsely alerted more than once in the same search, the total number of false alerts was 225. The dogs correctly completed the search without an alert just 21 times, for a success rate of 14.5 percent.

But here’s the more interesting part: The dogs were about twice as likely to falsely alert at the packages designed to trick their handlers than they were at the packages stuffed with sausages.

Why did so many fail? It wasn’t the dogs’ fault. A dog’s nose more than lives up to the hype. It is the finely tuned instrument you’ve always heard it to be. The problem is that for thousands of years, we’ve bred into dogs a more lovable trait: a constant, tail-wagging, cheek-licking desire to please us.

We’ve primarily bred dogs for protection and for companionship. The dogs that exhibited those qualities would get bred again, strengthening the traits from generation to generation. Over time, the dogs that were best at those two tasks were those that could read our body language, and react accordingly. This is why my dog barks when there’s a stranger at the door, but will curl up into a date’s lap within a few minutes of having met her. She’s picking up on my cues.

If a drug dog isn’t trained to account for this, it’s likely only confirming its handler’s biases and suspicions....

Balko also points out that police departments often have perverse incentives to use poorly trained dogs, because doing so makes it easier to get search warrants and seize property for asset forfeitures. I discussed the latter problem in this post. Finally, he notes that the conjunction of several individually plausible potential Supreme Court decisions could have very troubling effects in combination:

It might make sense to rule that a drug dog’s sniff is not a search under the Fourth Amendment, because a sniff is relatively unintrusive. There may be nothing unreasonable about ruling that a drug dog’s alert is enough to establish probable cause. After all, we all know that dogs have a finely honed sense of smell. And finally, it might make sense to rule that it is unreasonable to require prosecutors and police departments to provide a particular dog/handler team’s field history, because doing so would place an undue burden on law enforcement agencies.

Taken in isolation, you could make a good argument that these are all perfectly reasonable rulings. But put them together. By this time next year, we could be facing this terrifying reality: Police could take a dog/handler team into an apartment complex or to a row of townhouses and have them sniff dozens, even hundreds of residences. That team may have a history in which less than half the dog’s alerts lead to any actual recovery of narcotics. No matter. The police could then make note of all the doors at which the dog alerted, and all of those residences could look forward to middle-of-the-night visits from the local SWAT team.

Six states have marijuana legalization referendum questions on the ballot in this year’s election. Philip Smith has a good summary of them on the Stop the Drug War website [HT: Tom Angell]. Colorado, Oregon, and Washington will vote on initiatives to legalize marijuana generally, though all three would impose fairly extensive regulation on the new marijuana market. I wrote about Colorado’s Question 64 in this post. Arkansas, Massachusetts, and Montana will be voting on the legalization of medical marijuana only.

None of these six initiatives go as far as I and many other opponents of the War on Drugs would ideally want. But, if they pass, all would be noteworthy improvements over the status quo, especially the three that would legalize marijuana generally.

State-level initiatives obviously cannot repeal federal laws banning marijuana. But they can make enforcement of federal law more difficult by withdrawing state support for it, and also help create political momentum that could eventually lead to repeal of the federal law. Both public and elite support for drug legalization has grown in recent years, with support for the legalization of marijuana hitting 50% for the first time last year. If all or most of these initiatives prevail, it could strengthen the political momentum of legalization and help promote additional reform at both the state and federal level.

Much of the remaining political opposition to drug legalization comes from political conservatives, who polls show are far more likely to support the War on Drugs than liberals and moderates. I summarized the conservative case for legalization here. Skeptical conservatives may also want to check out William F. Buckley’s important 1996 article on the subject.

I am one of over 100 academics in various disciplines who signed a letter supporting Colorado Amendment 64, a referendum initiative which would legalize marijuana possession and sales in that state for residents over the age of 21, and generally institute a regulatory regime for marijuana similar to that currently in force for alcohol. The other signatories include fellow VC-ers Randy Barnett and Sasha Volokh, as well as prominent scholars such as MIT economist Daron Acemoglu, Douglas Berman of Ohio State and the Sentencing Law and Policy Blog, Tom Ginsburg (University of Chicago Law School), and others. The full text of the letter is available here:

For decades, our country has pursued a policy of marijuana prohibition that has been just as ineffective and wasteful as alcohol prohibition. We have reviewed Amendment 64 and concluded that it presents an effective, responsible, and much-needed new approach for Colorado and the nation.

Marijuana prohibition has proven to be the worst possible system when it comes to protecting teens, driving marijuana into the underground market where proof of age is not required and where other illegal products might be available....

Given our current economic climate, we must evaluate the efficacy of expensive government programs and make responsible decisions about the use of state resources. Enforcing marijuana prohibition is wasting our state’s limited criminal justice resources and eroding respect for the law. Our communities would be better served if the resources we currently spend to investigate, arrest, and prosecute people for marijuana offenses each year were redirected to focus on violent and otherwise harmful crimes....

It is also important to note that Amendment 64 does not change existing laws regarding driving under the influence of marijuana, and it allows employers to maintain all of their current employment and drug-testing policies.

The State of Colorado, as well as our nation, have successfully walked the path from prohibition to regulation in the past. Eighty years ago, Colorado voters approved a ballot initiative to repeal alcohol prohibition at the state level, which was followed by repeal at the federal level. This year, we have the opportunity to do the same thing with marijuana and once again lead the nation toward more sensible, evidence-based laws and policies.

In my view, Amendment 64 would leave in place more regulation than is ideal, and I am not fully comfortable with some of the praise for regulation in the draft letter (which I signed, nonetheless, because it does not actually say that this regulated system is superior to more complete deregulation, merely that it’s better than the status quo). That said, the best should not be the enemy of the good, in this case the very good. Amendment 64 would be a huge improvement over the status quo in Colorado.

In 2010, I signed a law professors’ petition in support of California’s similar (and nearly successful) Proposition 19. Most of what I said then applies here too:

Unfortunately, lifting the state ban on marijuana possession will not fully legalize marijuana in California. The federal ban that the Supreme Court upheld in Gonzales v. Raich will remain.....

On the other hand, federal enforcement resources are limited. So Proposition 19 will greatly reduce the incidence of marijuana prosecutions in California, even if the drug remains theoretically illegal there. Perhaps more importantly, passage of Prop 19 would be a major political setback for drug prohibition. A victorious Prop 19 would likely be imitated in other states with referendum initiative processes. That in turn would put the federal War on Drugs under increasing stress. If several large states withdraw state resources from marijuana enforcement, the feds would either have to massively increase their own enforcement efforts or consider giving up the fight. At a time of increasing budgetary problems, the latter option might be more likely.

Colorado is not as large and influential as California, of course. But is still a sizable and politically significant state. A referendum victory there is likely to have significant influence well beyond the state’s borders. Recent poll data suggests that Amendment 64 has at least a fairly good chance of success. I have no illusions that very many voters will change their minds because of this letter. But, hopefully, every little bit helps.

Public support for marijuana legalization has been gradually rising for decades, and recently hit 50 percent for the first time. That bodes well for Amendment 64 and other legalization efforts.

UPDATE [11/6/12]: The link to the polling data indicating that Amendment 64 has a good chance of success seems to have been hijacked by an attack site. So I have removed it. Here is more recent data suggesting that 64 has a good shot.

Details here, from Americans for Forfeiture Reform. In short, BATFE becomes another federal agency which gets to seize large sums of cash, based on presumption that a large sum of cash must be related to an illegal transaction in controlled substances. And notwithstanding the fact that the Bureau of Alcohol, Tobacco, Firearms and Explosives is a Bureau whose job involves federal laws about alcohol, tobacco, firearms and explosives, not controlled substances.

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

The Marijuana Policy Project’s Rob Kampia writes:

During the 2008 campaign, Barack Obama raised hopes among those who support medical marijuana by pledging to respect state laws on the issue. But his administration has reversed course and massively escalated the federal government’s attacks on medical marijuana businesses, most of which are legal under their states’ laws.

Further, Kampia argues, President Obama’s Administration is more hostile to medical marijuana than any previous occupant of the White House.

The five presidents from Richard Nixon through George H.W. Bush allowed medical marijuana research to proceed unhindered.

The three presidents from Jimmy Carter to George H.W. Bush allowed patients to apply to the federal government for waivers to use medical marijuana legally under federal law.

Obama appears to be to the right of Ron Paul, Gary Johnson, Ronald Reagan and even George W. Bush on this issue. It’s hard to imagine how this helps Obama politically, and it’s easy to imagine how forcing patients to purchase their medicine from an illicit provider instead of a regulated business hurts people who are suffering from cancer, AIDS and multiple sclerosis.

The NYT reports:

“I really believe we should treat marijuana the way we treat beverage alcohol,” Mr. Robertson said in an interview on Wednesday. “I’ve never used marijuana and I don’t intend to, but it’s just one of those things that I think: this war on drugs just hasn’t succeeded.”

Mr. Robertson’s remarks echoed statements he made last week on “The 700 Club,” the signature program of his Christian Broadcasting Network, and other comments he made in 2010. While those earlier remarks were largely dismissed by his followers, Mr. Robertson has now apparently fully embraced the idea of legalizing marijuana, arguing that it is a way to bring down soaring rates of incarceration and reduce the social and financial costs. . . .

Mr. Robertson, 81, said that there had been no single event or moment that caused him to embrace legalization. Instead, his conviction that the nation “has gone overboard on this concept of being tough on crime” built up over time, he added.

“It’s completely out of control,” Mr. Robertson said. “Prisons are being overcrowded with juvenile offenders having to do with drugs. And the penalties, the maximums, some of them could get 10 years for possession of a joint of marijuana. It makes no sense at all.”

Law Enforcement Against Prohibition has more on Robertson’s views here.

An initiative to legalize possession of 1 ounce or less of marijuana qualified for the November ballot in Colorado yesterday.    The initiative only legalizes possession for those 21 or older, and would also make it legal to grow up to six marijuana plants in one’s home and decriminalize the licensed sale of marijuana, subject to local government regulation or prohibition.

The initiative would have no effect on federal law, so those growing or selling marijuana would still have to worry about federal law enforcement. But does it have to be this way?  When alcohol prohibition ended,states remained free to regulate or proscribe alcohol sales, and federal law (among other things) made it illegal to transport alcohol across state lines in violation of state law.  In other words, the primary federal role became helping states maintain the alcohol laws of their choice.  Given the number of states that have sought to legalize medical marijuana or, in the case of Colorado, consider the legalization of possession, perhaps its time to introduce a bit of federalism into federal drug policy.  Okay, it’s actually long past time for this.  But each time another state moves against drug prohibition is another opportunity to reconsider drug prohibition and the nature and extent to which federal resources should be devoted to the war on drugs.

From Rolling Stone, a report on the Administration’s escalation of the federal government’s campaign against medical marijuana.  It begins:

Back when he was running for president in 2008, Barack Obama insisted that medical marijuana was an issue best left to state and local governments. “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue,” he vowed, promising an end to the Bush administration’s high-profile raids on providers of medical pot, which is legal in 16 states and the District of Columbia.

But over the past year, the Obama administration has quietly unleashed a multi­agency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush. The feds are busting growers who operate in full compliance with state laws, vowing to seize the property of anyone who dares to even rent to legal pot dispensaries, and threatening to imprison state employees responsible for regulating medical marijuana. With more than 100 raids on pot dispensaries during his first three years, Obama is now on pace to exceed Bush’s record for medical-marijuana busts. “There’s no question that Obama’s the worst president on medical marijuana,” says Rob Kampia, executive director of the Marijuana Policy Project. “He’s gone from first to worst.”

Hat tip: Instapundit.

In 1996, then-Speaker of the House Newt Gingrich introduced the Drug Importer Death Penalty Act which, as the name implies, would have imposed the death penalty on those who imported a sufficient amount of marijuana or other illegal drugs into the United States on more than one occasion.  (Hat tip: Ezra Klein)

On Tuesday, January 10 at noon, I will be speaking on the War on Drugs at a panel organized by the University of Chicago Law School Federalist Society. I will discuss the ways in which the War on Drugs undermines constitutional federalism, some of the harm it inflicts on our society, and recent changes in public and elite opinion that may make it easier to promote change in this field. Also taking part in the panel will be Cook County Commissioner John Fritchey.

The NYT profiles two law enforcement officers — a border patrol agent and a probation officer in Arizona — who lost their jobs because they questioned the wisdom of drug prohibition.  One signed a letter sponsored by LEAP (Law Enforcement Against Prohibition), the other just expressed doubts to co-workers about keeping marijuana illegal.  Both are now filing suit challenging their dismissals.

The NYT reports that two governors, Washington’s Christine Gregoire and Rhode Island’s Lincoln Chafee, have petitioned the federal government to have marijuana reclassified as a Schedule II substance under the Federal Drug Control Act.  The reclassification would mean recognizing that marijuana has acceptable medical uses, and would be a step toward protecting medical marijuana use in the 16 states that currently permit it.

Radley Balko has an interesting piece at Huffington Post on the ways in which the War on Drugs creates perverse incentives for police departments:

Arresting people for assaults, beatings and robberies doesn’t bring money back to police departments, but drug cases do in a couple of ways. First, police departments across the country compete for a pool of federal anti-drug grants. The more arrests and drug seizures a department can claim, the stronger its application for those grants.

“The availability of huge federal anti-drug grants incentivizes departments to pay for SWAT team armor and weapons, and leads our police officers to abandon real crime victims in our communities in favor of ratcheting up their drug arrest stats,” said former Los Angeles Deputy Chief of Police Stephen Downing. Downing is now a member of Law Enforcement Against Prohibition, an advocacy group of cops and prosecutors who are calling for an end to the drug war.

“When our cops are focused on executing large-scale, constitutionally questionable raids at the slightest hint that a small-time pot dealer is at work, real police work preventing and investigating crimes like robberies and rapes falls by the wayside,” Downing said.

And this problem is on the rise all over the country. Last year, police in New York City arrested around 50,000 people for marijuana possession. Pot has been decriminalized in New York since 1977, but displaying the drug in public is still a crime. So police officers stop people who look “suspicious,” frisk them, ask them to empty their pockets, then arrest them if they pull out a joint or a small amount of marijuana. They’re tricked into breaking the law. According to a report from Queens College sociologist Harry Levine, there were 33,775 such arrests from 1981 to 1995. Between 1996 and 2010 there were 536,322.

Several NYPD officers have alleged that in some precincts, police officers are asked to meet quotas for drug arrests. Former NYPD narcotics detective Stephen Anderson recently testified in court that it’s common for cops in the department to plant drugs on innocent people to meet those quotas — a practice for which Anderson himself was then on trial.

At the same time, there’s increasing evidence that the NYPD is paying less attention to violent crime. In an explosive Village Voice series last year, current and former NYPD officers told the publication that supervising officers encouraged them to either downgrade or not even bother to file reports for assault, robbery and even sexual assault.

Even when police officials don’t consciously prioritize drug crimes ahead of violent crimes, the vast expenditure of law enforcement resources on the former probably reduces the amount of police effort that can be devoted to the latter.

Later in the article, Balko notes that the War on Drugs also incentivizes police departments to shift resources away from violent crime because drug busts allow them to earn extra money through asset forfeiture, while solving violent crime usually does not:

The most perverse policy may be asset forfeiture. Under civil asset forfeiture, police can seize property from people merely suspected of drug crimes. So long as police can show even the slightest link of drug activity to a car, some cash, or even a home, they can seize it. In the majority of cases, most or all of the seized cash goes back to the police department. In some cases, the department has taken possession of cars as well, but generally non-cash property is auctioned off, with the proceeds then going back to the department. An innocent person who has property seized must go to court and prove his property was earned legitimately, even if he was never charged with a crime. The process of going to court can often be more expensive than the value of the property itself.

Asset forfeiture not only encourages police agencies to use resources and manpower on drug crimes at the expense of violent crimes, it also provides an incentive for police agencies to actually wait until drugs are on the streets before making a bust.

I wrote about the ways in asset forfeiture threaten constitutional property rights here.