It’s NOT about RACE

Individual Rights, The War on Drugs

A frequent canard of black activists, liberal advocates, “justice” advocates etc… is that there are “sentencing disparities between powder and crack cocaine”; followed of course by “Clearly because crack is seen as a black drug, these harsher sentences must be racially motivated”.

It is repeated so often that even some responsible conservatives (and a LOT of libertarians)who really should know better, think there is something there.

Only it’s not true. In fact it’s not even the slightest bit true.

It’s not about race; it’s about power, and control.

It is all predicated on a technical detail, that isoften overlooked; and that most don’t understand even if they see it.

See, most people think you should sentence people based on the amount of drugs they have or are trying to sell etc… Which makes sense to a degree. Most people further assume that this amount is based on the number of doses of the drug. This is just intuitive on most folks part; because they think of “one pill, one dose” etc…

Here’s the problem though; in this country, drug related sentencing is generally calculated based on the weight of the drug INCLUDING THE CARRIER; not by the dose.

By that I mean, the actual active ingredient of the drug is generally only a small part of the weight they charge you on, because the weight of all the inactive ingredients is counted as well.

If I mixed 7 grams of cocaine into 1 oz of baking soda, 1 oz of milk sugar; I would be charged as if I had 63 grams of cocaine (which would be a minimum 10 year sentence); even though there is only 7 grams of actual cocaine there.

So why are sentences for crack “so much higher” in comparison to powder?

Crack actually contains a relatively small amount of cocaine by weight, vs. powder cocaine, and the sentencing laws ONLY CONSIDER WEIGHT.

A person with a gram of coke, has maybe 4-6 doses (less for a heavy user); and 1-2 grams would be a typical days usage for a habitual user; with up to about 5 grams for the most serious users (Richard Pryor level).

A person with a 1 gram dime rock of crack cocaine has only about 1/8th to 1/4 gram of actual cocaine in it (there isn’t a lot of consistency in dosage). A crack user will go through anywhere from 5 nickle rocks (1/16th to 1/8th gram of coke) to 10 solid rocks (a $20 2 gram or so rock with between 1/4 and 1/2 gram of actual coke) in a day (from $25 to $200) depending on how much they can buy; and how much tolerance they have built up (10 solid rocks in a day would probably kill a new user)

Thats as little 5/16 of a gram of coke, to maybe 5 grams; about the same as a days use of powder cocaine; but the total weight is from 2.5 to 20 grams.

The sentence is calculated on the total weight, therefore one days worth of crack is counted as anywhere from 2.5-20 times as much drug as one days worth of powder.

And you are sentenced as if you have 2.5 to 20 times as much of the drug.

Of course this doesnt just apply to cocaine.

No-one ever talks about sentencing disparity in LSD, which typicaly has a dosage of less 25 to 50 micrograms, which is one 2000th of a gram in weight; but which is often absorbed into tablets or a piece of heavy paper that may weigh more than a gram.

This means that someone who has five doses of LSD in 1 gram tablets is charged as if they had several hundred, to several thousand doses.

There are dozens of hippies serving 25 to life in prison right now for selling as little as 5 doses of LSD to DEA and FBI agents.

Then there’s MDMA, which has the same issue. Regardless of your race, some MDMA drugs can have vital side-effects on anyone. So much so that people may even decide to order an MDMA test kit here to establish what they’ve taken, as it may not be what they initially thought it was. But all these drugs end up having the same issue.

It’s not about race; it’s about inflating the numbers of the drug enforcement agencies; and inflating the records of district attorneys. It’s about power, money, and control; pure and simple.

Hooked On Takings

Constitution, General

According to this report in the New York Times, the use of eminent domain to advance private development is the dirty little secret of commercial real estate.

Bank of America agreed to join the developer Douglas Durst in 2003 in building a 54-story tower in the heart of Midtown Manhattan, giving a psychological and economic lift to a city that was still reeling from the destruction of the World Trade Center.

Mr. Durst said he would not have been able to negotiate with Bank of America or other prospective tenants had the state not authorized him to use eminent domain, a redevelopment tool that is coming under fire in the wake of a United States Supreme Court ruling last June in a Connecticut case.

Now under construction at 42nd Street and the Avenue of Americas, the Bank of America Tower at One Bryant Park, as the project is known, was decades in the making as the Durst family assembled the site. Ultimately, only two buildings remained, but their owners kept raising the price, Mr. Durst said.

Eventually, the state told Mr. Durst that if he found an anchor tenant the buildings could be condemned even though the site was not in a blighted neighborhood. That threat alone was enough to break the impasse. “Once we had that ability, we were able to quickly come to a resolution on the two properties and meet Bank of America’s schedule,” Mr. Durst said.

Let’s be clear about what happened hear. While not as well-known or flamboyant as Donald Trump, the Durst family is one of the largest commercial real estate developers in New York City, if not the nation. When they ran into two building owners who realized that the laws of supply and demand gave them an advantage, thus refusing to sell at a rock-bottom price, they called on their cronies at Gracie Mansion and in Albany to forcibly take their property from them. Now, I’m sure that the owners of those buildings are quite different from the Kelo’s and other citizens of New London who were the subject of last year’s Supreme Court decision, but theft is theft and that’s exactly what this is and it doesn’t really coincide with how this guide on Inboundrem talks about prospecting for real estate clients should be done correctly in today’s market.

What is more interesting, though, is the extent to which the use of eminent domain has become common place in the commercial real estate development business. With the backlash that has come from Kelo, however, the article goes on to point out the delicate situation that developers and government officials find themselves in:

Using eminent domain for private projects has long been a divisive issue, but never more so since the Supreme Court upheld the right of officials in New London, Conn., to condemn homes and businesses to increase the tax base of one of the state’s poorest cities.

That decision, coupled with reports of abuses in places like the predominantly African-American community of Riviera Beach, Fla., where plans called for replacing thousands of homes with upscale condos, has prompted a onslaught of legislation, both federal and state.

In other words, when Kelo was handed down, ordinary Americans began to realize what was happening and what could happen to their property. They responded by pressuring their elected representatives to do something about it:

In November, the House of Representatives approved a bill by F. James Sensenbrenner Jr., Republican of Wisconsin, that would penalize government agencies for using condemnation powers for private projects by denying them economic development funds for two years. Legislation has been introduced in 27 states, and more is coming, said Larry Morandi, the director of the environment, energy and transportation program of the National Conference of State Legislatures

That hasn’t stopped them from trying to justify what they’ve done, of course:

But around the country, developers and city officials say weakening or destroying the power to condemn property will seriously undermine efforts to rehabilitate decaying cities and might even hinder the rebuilding of New Orleans. Without eminent domain, the Inner Harbor, which played an essential role in Baltimore’s success in building its tourist industry, could not have been redeveloped, said Ralph S. Tyler, the city solicitor.

The fact that you stole someone’s property to do it doesn’t matter does it ? Apparently not.

One business group that has opposed restrictions on eminent domain is the Partnership for New York City, whose members include most of the city’s top developers. Kathryn S. Wylde, the president and chief executive of the group, said her members opposed any efforts to alter condemnation procedures through federal or state legislation. “When you add restrictions on development, you are never quite sure what the results are going to be,” she said. “We want to avoid political reaction to an issue that adds more problems and obstacles to economic growth.”

Hmmm, and when you create a legal environment where people’s property can be taken away from them on the whim of a government official who happens to be in the pocket of a big developer what kind of result will that create Ms. Wylde ?

If one thing is clear from this article it is that these commercial developers have become dependent upon the government to get them the land they need to build their projects, and politicans have become dependent on campaign contributions from the developers. The end result is a world where your property isn’t really yours anymore.

Cross-Posted at Below The Beltway

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The Difference Between Reverend Nagin and Reverend Robertson

Individual Rights

Yesterday as you may or may not know, New Orleans Mayor For Life Ray Nagin had some interesting comments at the annual MLK Jr. parade. In addition to his publicized “chocolate New Orleans” comments (for which he has a lame excuse), he said God sent hurricane after hurricane because He did not approve of us being in Iraq “under false pretenses”. Finally, at the beginning of his speech, he had a conversation with Dr. King himself and they talked about everything from the Federal response to Katrina to the state of black America. Some in the blogosphere are comparing Nagin to Pat Robertson, but there are some very important distinctions that need to raised here, and these distinctions make all the difference.

The first major distinction is that Pat Robertson only hosts a TV show and has a limited following even among evangelical Christians whereas Ray Nagin is the mayor of a major American city. When Pat Robertson starts talking about God, I have the choice to turn “The 700 Club” off. However, I have to wait up to four years to remove Ray Nagin from office, or I did have the means to remove Ray Nagin from office until Louisiana Dictator Kathleen Blanco and her poodle, Secretary of State Al Ater, canceled New Orleans’s mayorial elections until further notice. Nagin can do far more damage due to his position of power than the crank Pat Robertson can with his television audience.

Another major distinction is that Robertson never made race an issue with his remarks, whereas I fear that Nagin’s racist remarks can possibly set the stage for race riots when black residents begin returning to New Orleans en masse. The black community in New Orleans has made the Katrina aftermath all about race from day one. They have alleged everything from a racist conspiracy to blow the leeves deliberately (if so then why were white Old Metarie and Lakeview flooded as well) to a racist conspiracy to keep blacks out of New Orleans (which Nagin alluded to yesterday). The black community and leadership in New Orleans has not condemned not just Nagin’s racist remarks but has not refuted the conspiracy theories, therefore these conspiracy theories and racist feelings have legitimacy among the black population of New Orleans.

The best way to bring New Orleans back and honor Dr. King’s dream is to vote Nagin out of office when Dictator Blanco finally sets an election date or is forced to by the Feds. Only then can New Orleans begin to rebuild for the benefit of all of the residents that make what has been termed a racial and cultural “gumbo” by former New Orleans Mayor Marc Morial.

The Reactions

Technology, Theory and Ideas

Earlier this month, I talked about CATO Unbound and their topic for this month: Internet Liberation: Alive or Dead?. In fact, I posted an entry titled Thoughts on Technology and Liberty just a day before CATO announced their topic, which I discussed in This Should Be Fun. Now the discussion is in full swing over at CATO.

Jaron Lanier posted the first essay, The Gory Antigora: Illusions of Capitalism and Computers, which has been followed by two more. Eric Raymond has written his Reply to Lanier, which makes some excellent points about Gift Cultures, capitalism, open and closed systems and freedom in general. The most significant point he makes, in my opinion, is in his conclusion.

As I pointed out years ago in Homesteading the Noosphere (which I highly recommend reading!), gift cultures rely on a hefty wealth surplus to keep them afloat. While there are many ways to concentrate such a surplus (patronage by one tyrant or a group of aristocrats can do it) capitalism is the only way to do it that scales up well. Capitalism is every gift culture’s best hope for sustainability.

Glenn Reynolds, the InstaPundit, wrote his Reply to Lanier, as well. And, as I expected, makes some excellent points from the perspective of the technically oriented layperson. Again, it is the concluding paragraph where the point I consider most important is made. Of course, this is how the author’s intended it, but so often we, in reading their writing gain insights or see key points other than where the author intended the strength to be. In any case.

To me, this is another reason why we should favor space exploration and – more significantly, over the long run – space colonization. (As I wrote a while back, “Stephen Hawking says that humanity won’t survive the next thousand years unless we colonize space. I think that Hawking is an optimist.”) And, it happens, the empowerment of individuals and small groups that we’re seeing elsewhere is also going on here, with significant progress in space technology taking place now that it’s moving out of the hands of a government monopoly. Let’s hope it moves fast enough.

And finally, John Perry Barlow has written his Reply to Lanier and it’s posted today. I haven’t yet had an opportunity to read it, but I’m looking forward to what the author of “A Declaration of the Independence of Cyberspace” has to say, as well.

I think, between what I’ve written and what Reynolds and Raymond have written, we can show that technology, in general, and, more specifically, the Internet are strong tools for individual liberty and wealth generation. Just as importantly, folks who are thinking like Jaron can be seen to be ignoring the true reality of the interactions between capitalism and gift cultures. Stronger by far than any of the individuals who started us on this path could have ever imagined. I plan, after reading Barlow’s essay, to write my own set of thoughts on this specific topic, much like Kay when she wrote Internet Liberation and the Ingenue. Stay tuned.

A Clear Victory

Constitution, Individual Rights

The new Roberts Court has handed down its first significant opinion of the term and it is a clear victory for federalism and individual rights, and a defeat for the Federal Government

The Supreme Court delivered a rebuff to the Bush administration over physician-assisted suicide today, rejecting a Justice Department effort to bar doctors in Oregon from helping terminally ill patients end their lives under a 1994 state law.

In a 6-3 vote, the court ruled that then-U.S. Attorney General John D. Ashcroft overstepped his authority in 2001 by trying to use a federal drug law to prosecute doctors who prescribed lethal overdoses under the Oregon Death With Dignity Act, the only law in the nation that allows physician-assisted suicide. The measure has been approved twice by Oregon voters and upheld by lower court rulings.

In other words, Ashcroft tired to use a law that had nothing to do with the right to die issue to override the will of the people of Oregon. Kudos to the Supreme Court for saying no.

At issue was whether the federal Controlled Substances Act, enacted in 1970 to combat drug abuse and trafficking, allowed the attorney general unilaterally to prohibit doctors in Oregon from prescribing regulated drugs for use in physician-assisted suicide, despite state law permitting them to do so.

Writing the opinion of the court, Justice Anthony M. Kennedy said the federal law bars doctors from using prescriptions to engage in illicit drug dealing but that “the statute manifests no intent to regulate the practice of medicine generally.” Moreover, the Controlled Substances Act (CSA) relies on “a functioning medical profession regulated under the states’ police powers,” he wrote.

“In the face of the CSA’s silence on the practice of medicine generally and its recognition of state regulation of the medical profession, it is difficult to defend the Attorney General’s declaration that the statute impliedly criminalizes physician-assisted suicide,” Kennedy wrote.

Here is a link to the text of the majority opinion.

Joined by Clarence Thomas and Chief Justice Roberts, Antonin Scalia delivered one of his usual stinging dissents:

Writing in dissent, Scalia attacked the finding that the attorney general “lacked authority to declare assisted suicide illicit” under the federal law. “This question-begging conclusion is obscured by a flurry of arguments that distort the statute and disregard settled principles of our interpretive jurisprudence,” he wrote.

Scalia backed the government’s position that assisting in suicide was not a “legitimate medical purpose.” Saying that the court’s decision “is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business,” Scalia wrote that “it is easy to sympathize with that position.” However, the government has long been able to use its powers “for the purpose of protecting public morality,” he said.

“Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible,” Scalia said. “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”

As much as I respect Scalia, I think he misses the point here. The laws intent and purpose was aimed solely at illegal drug use and trafficing. It is silent on the question of what is and is not a legitimate medical procedure. In fact, it should be for the doctor, not the government to determine the appropriateness of a medical procedure. More importantly, though, if the Federal Government is going to intrude into one of the most personal, gut-wrenching decisions a person can make, it needs to (attempt) do so directly and not engage in the kind of creative legal maneuvering that Ashcroft tried here.

More importantly, this is a victory for federalism. There is nothing in the Constitution that gives the Federal Government the right, power, or authority to regulate this area of human life. If any such authority exists, it resides solely within the states. The people of the state of Oregon have chosen to allow physician assisted suicide within their borders. John Ashcroft had no right to try to override their judgment, and the Supreme Court did the right thing by telling him so.

Update: I have not had time to read through the entire opinion, but one section of Antonin Scalia’s dissent, highlighed in Ann Althouse’s post on the decision stuck out to me:

The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality — for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U.S. 308, 321-323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death

This is one of those times when Scalia’s deference to precedent gets the better of him. There is no such thing as a Federal police power, and never has been. The Federal Government is a government of limited powers; the things that it can do are set forth in Article II of the Constitution. If a power is not listed there, it does exist. By accepting without question a series of obviously wrongly-decided cases, Justice Scalia forces himself to endorse a point of view that ignores the meaning of the Constitution and would unjustly expand the power of the Federal Government over the states and the people.

Update 1/18/06: UCLA Law Professor Stephen Bainbridge takes a look at what Scalia’s dissent in this case means in answering the question of just exactly what his judicial philosophy is:

Some will condemn Scalia for abandoning originalism in this line of cases. Yet, I think these cases actually reveal something more interesting about Scalia, which is that he is not purely an originalist. Instead, Scalia’s jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn;t seem to have a hierarchy for choosing between the three.

(….)

There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.

In other words, don’t place your faith in one Supreme Court Justice any more than you would place it in one Senator.

Cross-Posted at Below The Beltway

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