A Separate Peace in the Drug War: It Has Begun

Three years ago, I blogged about a "longstanding policy pipe dream" of mine: that the state of California would declare a separate peace in the drug war.

“Yes,” the argument would go, “California does not have the power to repeal federal laws. But it does have to the power to dispose of its own budget and use its own state and city employees as it sees fit. From this point forward, if the federal government wishes to enforce federal drug laws in California, it will have to do so with federal tax dollars and employees. No state tax dollars or state employees will participate in fighting the drug war.”

And now it looks like it might actually happen, at least with respect to marijuana. In a sense I'm late to this party -- news of the California ballot measure broke over a month ago -- but given the blog post quoted above, I prefer to say I'm three years early.

So why am I blogging about it today? Mainly because of the video of a SWAT team raiding a house and shooting two family dogs, all over an apparently tiny quantity of weed. The video has gone viral now, with most (though sadly not all) viewers voicing anger and outrage. So now is as good a time as any to recommend that if you want to help stop events like this, which happen with sickening frequency, you should contribute to the cause. I just did.

And I'm not just talking to Californians. If marijuana gets legalized in one state without ending the world, that could set the precedent for change nationwide. So help us get it right here. In return, I promise to contribute to the next serious campaign in another state to do the same thing.

(As an aside, I'm irritated by the fact that the name of the campaign is "Control & Tax Cannabis." That's kind of burying the lead. But make no mistake, this is really about legalization.)

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Amsterdam on the Reservation

I'm currently attending a Liberty Fund conference on, "Liberty, Property, and Native America." The assigned readings, drawn largely from Self-Determination: The Other Path for Native Americans (2008), have exposed me to a wonderful range of new ideas. The chapter written by Ronald N. Johnson, for instance, "Indian Casinos: Another Tragedy of the Commons," opened my eyes to a way by which Native Americans might both radically increase their fortunes and our liberties. The idea, in brief: The same loophole that allows them to run casinos might also allow Indians to offer legal access to recreational drugs, prostitution, and extreme fighting.

Native Americans won the right to run casinos thanks to cases like California v. Cabazon Band of Indians, 480 U.S. 202 (1987), and Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir. 1981), and the Indian Gaming Regulatory Act ("IGRA") that such cases inspired. To generalize, U.S. law allows sovereign tribes to offer gaming services on their reservations, subject to three conditions:

• First and foremost, a reservation's host state must permit the particular sort of activities in question, even if under a very restrictive regulatory regime, rather than prohibiting and criminalizing them. In Seminole Tribe of Florida, for instance, the tribe successfully relied on the claim that Florida law allowed certain forms of bingo.
  
  
• Second, to judge from cases forbidding the sale of fireworks on reservations, and the illegality of Indians offering Internet gaming to off-reservation customers, a tribe must not exercise its sovereign powers so as to gut the effect of its host state's regulations. What happens on the reservation must, in other words, stay there.
  
  
• Third, as a matter of rhetoric if not hard law, it helps a tribe to emphasize that it has a long history of enjoying the same amusements that it offers its guests. Indian casinos thus often emphasize the role that games of chance traditionally played in the host tribe's culture.

Depending on the state and tribe, those three conditions might apply to a tribe offering recreational drugs, prostitution, and extreme fighting on its reservation. Thanks to Employment Division v. Smith, 494 U.S. 872 (1990), and 42 U.S.C. 1996a, for instance, states must permit the religious use of peyote, a traditional practice among some Native Americans. So long as a tribe administers that sacrament under controlled conditions, rather than by selling it for off-reservation use off, offering peyote would arguably qualify for the same sort of legal protections that have allow Indian casinos to thrive. Similar arguments might well apply to marijuana in many states (though here the case for traditional Indian use appears weaker than with regard to peyote), prostitution in Nevada and Rhode Island (though, again, the alleged "wife sharing" customs of some tribes do not quite equate to the same practice), and violent or even deadly sports among consenting adults.

According to Ambrose L. Lane, Sr.'s book, Return of the Buffalo: The Story Behind America's Indian Gaming Explosion 44 (1995), in 1979, California's Cabazon Band of Mission Indians considered cultivating marijuana and jimson week (a traditional Native American hallucinagen), only to set the idea aside. Beyond that, I've found no evidence that any tribe has considered pursuing the sort of legal strategy I've described. Given the large profits that offering drugs, sex, or extreme martial arts might garner tribes, however, and the competition that increasingly cuts into their gambling businesses, we might soon see many Native American Amsterdams.

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Obama: An Oppressed Minority Who Might End the War

As an oppressed minority, Barak Obama has seen life from a perspective all too rare among politicians. He has suffered being cast out of restaurants and other public accomodations. He has strived to pass himself off as a member of the ruling majority, only to have his efforts cast into doubt and his minority status thrown back into his face. Some people think that none of this matters—that we should not discuss Obama's minority status, much less consider it as a factor in his candidacy. To the contrary, I think we should celebrate it as a something that makes him more likely than McCain or Clinton to pursue a policy of peace.

I refer, of course, to Obama's nicotene habit and how it might encourage him to take a fresh perspective on the ongoing Drug War.

As a cigarette smoker, Obama has, like others in that oppressed minority, suffered shame and rejection. Obama has evidently tried to stop or at least hide his habit, only to have reporters badger him about his efforts and doubt his sincerity. Some people think we shouldn't care whether or not Obama smokes. As someone who struggles with addiction daily, though, Obama surely knows better than most that criminalizing drugs offers a very poor way to help the afflicted. More than any other presidential candidate, he can understand first-hand the appeal of recreational drugs, and can empathize with those who let their bad habits get the best of them.

Thanks to his addiction to cigarettes, Obama offers us the hope of a kinder, freer, more peaceful America.

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Against the Drug War

Via Radley, here is an outstanding editorial by the creators of The Wire advocating an end to the drug war. At the end, they call for outright jury nullification:

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Nice. Too bad this public manifesto means that none of the authors will ever be on the jury for a drug case. Our system is rigged to make sure drug-crime defendants never get the most sympathetic jurors.

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Declaring a Separate Peace in the Drug War

Via Micha Ghertner, the story of an American hero: Gavin Newsom, the mayor of San Francisco. Best known for allowing a spate of same-sex marriages in 2004, Newsom has now pledged to make San Francisco an immigration haven:

The mayor cannot stop federal authorities from making arrests, Newsom told about 300 mostly Latino members of St. Peter's Church and other religious groups supporting immigrants. But no San Francisco employee will help with immigration enforcement.

“I will not allow any of my department heads or anyone associated with this city to cooperate in any way shape or form with these raids,” Newsom declared. “We are a sanctuary city, make no mistake about it.”

Newsom’s strategy brings to mind one of my longstanding policy pipe dreams: that California, or some other state, might declare a separate peace in the drug war. “Yes,” the argument would go, “California does not have the power to repeal federal laws. But it does have to the power to dispose of its own budget and use its own state and city employees as it sees fit. From this point forward, if the federal government wishes to enforce federal drug laws in California, it will have to do so with federal tax dollars and employees. No state tax dollars or state employees will participate in fighting the drug war.” Essentially, the strategy would extend the state's current treatment of medical marijuana to drugs in general.

Of course, the danger is that the federal government would strong-arm California into doing its bidding by threatening to withhold highway funds and other pork-barrel spending. But this is why California would be the ideal state for my strategy: with 53 U.S. representatives, it has the largest congressional delegation, which would presumably resist such budgetary tactics. Even Californian representatives who are drug warriors would have a difficult time depriving their home state of funds because of what the state government had done.

Could it happen?

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