The US between legalization and the unknown Trump factor

On the 8th of November four States legalized cannabis and Trump won the Presidential elections. Which positions will the new President (and the DEA) have on drugs and criminal justice?

di Federica Brioschi

The 8th of November will probably be remembered as a historic landmark by all those people who are fighting against the terrible consequences of the “war on drugs”. In fact, the citizens of four American States have decided to legalize recreational marijuana joining the four other States (plus the District of Columbia) which had already done it in the past.

However, the same day the Republican Donald Trump won the Presidential elections and will now take Obama’s place. Obama’s Presidency has been marked by very important reforms in the areas of drug laws and criminal justice. The new President could reverse the advancements that have been made so far.

How will things change under the new Presidency?

We discussed about this topic with Stephen Downing, former Deputy Chief of the Los Angeles Police Department, a member of the executive board for Law Enforcement Against Prohibition and executive producer of several television series including McClain’s Law, T.J. Hooker, MacGyver, Robocop, and Fx — The Series.

First of all we wanted to congratulate you and the whole team for the results of the referendum. Did it go as you expected?

I felt pretty confident that it would have passed. I was involved in the initiative two years ago, called “Regulate Marijuana Like Wine” and during that campaign we really had the impact of educating the public on the harms of prohibition. I think it was that education that subsequently helped especially Colorado pass its legalization initiative. I think that we launched the campaign very well here in California and just before the vote the polls seemed quite positive. So I felt pretty confident that it would pass basically because I saw so many people discussing the issues of prohibition in a manner it should be discussed rather than discussing it as a “boogeyman” so to speak.

Do you think that the results of the States where people voted will influence other States to take steps towards legalization?

In Colorado they have gone through their learning experience and discovered that there is less use of marijuana by teenagers and that all the threats of the prohibitionists has not become a reality. The passage of the law in Colorado helped us here in California to draft the initiative. The California initiative is 62 pages and it was put together by a wide coalition of experts across the Nation including patients, growers, attorneys, activists, legislators and many others. The coalition took advantage of the Colorado experience and built the people’s initiative in a manner that shows that it is a responsible “regulation and control” model. Moreover, California the biggest economy, I believe that its passage is going to create a domino effect across the United Sates and possibly across the globe. Personally I have never used marijuana in my life and I don’t intend to use it. The reason I am involved in all this is for the social justice considerations and to eventually rid our county of prohibition and the harms it continues to impose upon our people. I also believe that all Governments should address this problem by adopting a “regulate and control” model as opposed to a criminal justice/incarceration model; this would allow us to deal with drug addiction and drug abuse as a health problem. When we all begin to reason in this way, I think that we will be a much healthier country and not the place in the world where we incarcerate the more of our people than any other country in the world. A “regulation and control” model is superior — and much less harmful than one that hands the control of drugs to the black market, the cartels and the street gangs.

Regarding the new President Trump, which are his positions on marijuana legalization and on the “war on drugs”?

I haven’t heard him address the subject of the “war on drugs” to any extent. I have heard him saying that as far as marijuana, he will leave it to the States, but that poses a difficulty because the Federal Government has what we call a drug schedule and Schedule One requires total prohibition. Marijuana is in Schedule One along with drugs like heroine, so it is against Federal Law to possess, grow, use or do anything with marijuana. Obama’s policy was to suspend the enforcement of Federal Law, by announcing an enforcement policy to his administration. In effect, he told the Department of Justice not to enforce Federal Law on marijuana. So some States, like California, have moved forward and passed their own legislations. But the reality remains that if our new President decides to reverse Obama’s “hands off” policy that will in effect give the Drug Enforcement Administration (DEA) the “go ahead” to green light a return to drug raids across the Nation — and I guarantee that the DEA will be more than please to respond and save themselves from extinction. I say this because marijuana amounts to about almost 50% of the so-called “illegal drug problem in the United States”. Our State initiatives have impacted the DEA by taking away half of their workload, and that’s billions of dollars that threatens the DEA’s very existence. I think they see that with the elimination of marijuana there is a future where our country will morph from using the criminal justice system and mass incarceration to deal with the drug problem to one that applies its health care system to the issues of abuse and addiction. So the DEA is fighting to keep marijuana illegal. They have recently tried to put another plant, a drug, on Schedule 1 and there was a big upheaval. In my opinion the only reason they did that is because they are trying to find another widely use plant based drug to to replace marijuana on Schedule One. A perfect parallel example is the story of what happened when we ended the prohibition of alcohol. Harry Anslinger, the chief of the bureau in charge of alcohol prohibition enforcement, saw that he was going to be out of the job because his bureau wouldn’t have had much to so when alcohol was returned to a system of legal regulation and control by the States.

He was looking at heroine, which was against the law back then, and saw that that wouldn’t be a big enough problem to keep the giant bureaucracy that was created during alcohol prohibition. He heard about this plant that was brought in by Mexicans and no one, not even our Congress, at the time had heard of marijuana as a drug problem. There are then other factors that contributed to this. At the time Henry Ford was inventing the Ford automobile. Ford built the body out of Hemp and planned to use Hemp ethanol to power the engines. He was a threat to Rockefeller, who was producing petrol, DuPont, who had just invented the petroleum based textile called Nylon and Hearst, who owned millions of acres of timberland, used to produce paper and newsprint — all products that were more expensive to produce than then their Hemp based counterpart. So, Anslinger employed their collective lobbying strength to convince Congress to outlaw “marijuana” and then worked with Randolph Hearst who used his newspapers to help Henry Anslinger and the others to spread the fear mongering that became known as “Reefer madness” and that was the beginning of a culture created across this country, where the people were brainwashed to believe that anyone who smoked a joint — especially black and brown people would go out and rape white women and commit other atrocious crimes. This is the kind of culture and thinking that has been going on in our country for the past sixty years. Now, today, the public is finally educated enough that most discerning people are able to see that it is all a myth that we need to change. And I think that the public by virtue of passing Proposition 64 showed that we have done a pretty good job.

Another thing that is connected to the Trump Presidency is that he will nominate the Supreme Court Judges: will also this affect the reform process that is going on?

I absolutely think that there is a very real possibility that the advancements to end prohibition and in the reform of criminal justice in this country can be slowed or barricaded by whoever he appoints to the Supreme Court. I also think the same is true of who he appoints to be the Attorney General of the United States.

Just yesterday, President-elect Trump announced that Jeff Sessions will be his next Attorney General. Sessions is a drug war extremist. As a U.S. Senator from Alabama, Sessions called for increased Federal marijuana enforcement, and said, “good people don’t smoke marijuana.” He once joked that his only issue with the Ku Klux Klan was their drug use. He was even denied a federal judgeship 30 years ago, for racist views. So, I think that we are going to have to go into a strong defense mode to keep the advancements we have made. Marijuana can be removed from Schedule One with the stroke of a pen by Trump. But, with Sessions as the Attorney General I don’t think that is going to happen, in spite of the fact that Trump said he would leave the issue of marijuana up to the States. In terms of his Supreme Court appointment, it’s all going to depend on who it is and what his or her politics are, but I think that there is a very good chance that his Supreme Court appointments could stand in the way of further drug or criminal justice reforms. It could even reverse what we have accomplished so far. I hope not, but it’s a possibility.

Obama granted more than 800 clemencies, many of which to people sentenced for drug-related crimes in order to lower the percentage detainee per inhabitant. What do you think it will be Trump’s approach to criminal justice?

While Obama was emptying the Federal prisons of non-violent drug offenders, there were reports by Obama’s Department of Justice that showed that private prisons in this country were terribly abusive of prisoners. So the Federal Government stopped sending Federal prisoners to private prisons. When this happened, the stock of the two biggest private prison corporations plummeted. When Trump was designated the President-elect, those stocks soared and are still up. The reason for that is that the corporate giants who run these private prisons fully expect Trump and Sessions to reverse those administrative decisions and continue to put prisoners in private prisons, as well as to continue to enforce the harsh drug laws that are on Schedule One today and I think they will.

What your position on the private prisons issue?

My opinion is that, as a country, we should never attach a profit motive to the incarceration of human beings. The only motive that should be involved with incarceration is one that seeks justice, whether it is punitive or whether rehabilitative. We should never, in my opinion, attach a profit motive to a Governmental responsibility. We have seen what has already happened in privately run prisons attached to a profit motive: they hired illiterates, they hired incompetents to run their jails, they encouraged brutal use of force policies, they imposed solitary confinement policies that were inhuman, the state of health of their prisoners was uncivilized, they fed them slop for food, had no reasonable nutrition and ran everything to feed a bottom line that enriched their executive suite with millions — and all of that should remain a major concern. But, it is not. Profit is the concern when it should be focused upon the Bill of Rights and the Constitution.

Do you think that the new President could reverse the advancements that have been made so far?

I am feeling a little bit of dread because of past statements made by Mr. Trump and the people that we think are going to be part of his Administration. I fear that our advances may very well be be stopped or reversed. But I hold a hope that they will not. A big part of the election was populist rhetoric. It is my hope that the rhetoric dies and the conversation in our Country become a little more responsible. But we will see.

Which particular statements are you referring to?

Just the kinds of statements that have been made: “we are going to build a wall”, “we are going to send all the illegal immigrants back”, “we are going to take care of this, to take care of that.” It has been all about important human rights and social justice issues that have been put in the past by changes in the law and social progress, that they resent. Gay marriage for example. All those kinds of social advancements that our country has made are somehow in jeopardy now and I hope that that this perceived threat does not become a reality.