A better process for setting marijuana possession penalties in California

Although I have made clear my opposition to Proposition 19, I find something admirable about a different ongoing effort to change marijuana law in California. California Senate Bill 1449, introduced by Senator Mark Leno, defines possession of an ounce or less of marijuana as an “infraction” warranting a fine of up to $100 and no jail time. Technically, that’s what the punishment has been for many years, except that marijuana possession is formally defined as a misdemeanor under current law, which brings judges and courtrooms into the picture. The proposed law, which will lead marijuana possession offenses to be handled much like speeding tickets, has already cleared the Senate and is out of committee in the Assembly.

I don’t know if the end law will be a good one because the amendment process is still underway, neither do I think its effect is entirely predictable. Laws changing marijuana penalties can have unexpected effects, depending on how law enforcement on the street respond (e.g., net widening when police see a penalty as slight, more selective enforcement if police see a penalty as too tough). But whatever happens de jure and de facto, the process by which this legislation is being developed and deliberated deserves praise for two reasons.

First, going at least as far back as the disastrous property tax revolt initiative (Prop 13), the state legislature has repeatedly kicked political hot potatoes into the initiative process instead of having the courage to govern. This takes critical policy debates out of the deliberative process and into one where bad reasoning, volatile emotions and misunderstanding are the norm. In this case though, our elected leaders in Sacramento are acting like elected leaders and try to legislate, so good on them.

Second, the legislators are being realistic about what is and is not possible within the framework of the federal Controlled Substances Act. By endorsing legalization, Proposition 19 inherently provokes a confrontation with the federal government if it passes, a situation which I think will not end well for California (see Mark Kleiman and Eric Sterling‘s latest posts for other perspectives). What the progress of S.B. 1449 shows is that a state can change marijuana possession penalties without making a federal case out of it, so to speak.

Take this flight attendant job and shove it

Particularly in a recession, many Americans in the service industry are going to sympathize with Steve Slater, the JetBlue flight attendant who fled his airplane after being struck and treated like garbage by a passenger. My heart goes out to him, but my head says that no matter what punishment he receives or what help he gets (and he deserves both), he can never go back to his old job.

Jonathan Zasloff is right on point when he says that President Carter is in many ways the father of airline deregulation, although Senator Ted Kennedy and then-Congressman (later Secretary of Transportation) Norman Mineta were also key players. As it happens, I just read Hard Landing by Thomas Petzinger Jr., a truly brilliant book about the airline industry that makes clear that flight attendants were probably the biggest losers in deregulation. More often than not, the airlines have been able to cut deals with the big boys (and I used that gender-specific term advisedly) — the pilots’ unions — and thereby outmaneuver and crush the flight attendants’ union.

It’s a poorly paid job that wreaks havoc on family life and mental health. Mr. Slater’s experience is not unique in terms of abuse by passengers: The worst story I have heard concerned a passenger smacking a flight attendant on the head with her baby’s recently discarded diaper. Yet the perceived romance of travel keeps the number of young job applicants high, weakening the ability of current flight attendants to bargain for better labor conditions.

Mr. Slater was coping with all that, and apparently based on news coverage he also had other stresses in his life, including caring for his ailing parents. Were I a judge, I would order him to repay the financial damage he caused and get some sort of mental health care, but certainly not jail him for even a day (the entitled passenger who got up when he was not supposed to, hurt Mr. Slater with his luggage and then refused to apologize should get zero compensation).

All that said, Slater simply can’t go into the air again. Predicting rare behavioral events, like violence, has been extremely difficult for social scientists. We usually end up falling back on the completely accurate cliché that the best predictor of future behavior is past behavior. The odds of any member of the flight crew losing it at altitude and doing something to endanger the passengers and crew are very very low, so low that we will never be able to predict it for any one individual…with the sole exception of those who have committed such an act before. That’s why for his own safety and everyone’s else, Mr. Slater needs to find a new career.

State-level disparities in crack vs. powder cocaine sentences: Unfinished business

The effects of the federal crack vs. powder cocaine sentencing disparity were well-documented at the federal level, but such assessments did not capture the damage inflicted in the states that adopted doppelganger legislation in the late 1980s. Collectively, the states imprison over six times as many people as does the federal government, making state-level reform essential in any effort to broadly implement more equitable incarceration policies.

Now that Congress and the Obama Administration have eliminated mandatory minimums for simple possession of crack and reduced the size of the powder-crack disparity substantially for dealing offenses, a window has opened for reformers to go back to state legislatures and ask them to copy the federal government again, only this time by reducing crack cocaine sentences rather than ramping them up. South Carolina has already done so, and I am informed that the changing federal landscape was one of the rationales successfully invoked by reformers to persuade the state to drop its own crack-powder disparity.

That leaves I believe, about 10 states with a bad law handed down from another era. I tried to make the case earlier this week that California is the most important to reform because of the size of its prison system. California gives a “bonus year in prison” for crack versus otherwise identical powder cocaine dealing convictions, which at the peak of the epidemic were meted out to over 2,000 people a year. My back of the envelope calculation is that dropping the crack penalty to the level of powder penalties in California would have an immediate effect of reducing imprisonment by about 6,000 total years (assuming retroactivity) in the first year, and then a further 1,200-1,800 years per year after that, depending on whether the crack epidemic continues to wane or kicks up again. At $40,000/year of incarceration, that’s roughly $60 million in savings for California annually.

It’s hard to work out the collective impact of reform in their rest of the states, because they passed different types of powder-crack disparities. But their collective overall population is more than California’s, so projecting another $60 million in reduced prison costs to spread around is quite conservative.

That said, the best reason for states to follow the federal reform is that the remaining laws are simply unjust, and would be so even if there were no financial savings to be realized from changing them (or for that matter even if it cost money to be rid of them). With the federal reform complete, and a zeitgeist of criminal justice reform blowing through the country, all of us who care about this issue should be descending on our state capitals to demand change.

Judge Vaughn Walker and Coping with Vilification

Some people may wonder how Judge Vaughn R. Walker is holding up under the brutal, often homophobic tirades to which he is now being subjected for his recent ruling on gay marriage. At a Stanford drug policy forum about a decade ago, we were seated together at the closing dinner. The interaction that evening makes me confident he will bear up well under one of those waves of vilification that the current U.S. political environment, 24 hour news cycle, and the Internet can combine to generate.

The profile in New York Times captured something of Judge Walker, but Maureen Dowd did it better I think in much less space when she remarked off-handedly that in a 1940s movie, Judge Walker would be played by Clifton Webb.

At the time of our dinner, he had recently announced publicly that he favored the legalization of drugs, for which as a Reagan appointee he was being vilified by many conservatives. Soon afterwards, he would hand down a ruling stating that the public had no power to stop banks from charging ATM fees, for which he would be vilified by many liberals and populists.

During that dinner, I asked this clearly erudite and intelligent man how he dealt with all the public denouncement of his abilities and character. He shrugged and didn’t say anything, but across his face spread an impish Clifton Webb-esque smile that seemed to say “Well, isn’t a bit of fun to stir the pot now and then?”.

Nation building on the Internet: Why I am grateful to join the RBC

A few years back, while I was teaching a psychiatry short course in Iraq to about 80 mental health professionals from around the country, an Iraqi physician took me aside one day to caution me: “Don’t be fooled by those of us who have gathered here, we are not the real Iraq. This country is like Russia under Peter the Great. Our educated middle class is a thin veneer of civilization spread over a teeming mass of people who are misinformed, angry and radicalized. You can’t build a nation here: We have nothing to build on.”

The relational structure of many political websites recalls this comment about Iraq to my mind. One of the website’s authors will write an intelligent, thoughtful and nuanced post on some controversial topic and beneath the post in the comments section will issue forth a sea of bile, misunderstanding and misinformation Continue reading “Nation building on the Internet: Why I am grateful to join the RBC”