California Voters May Reject Death Penalty in Favor of Life Without Parole
Werner Herzog's Death Penalty Documentary 'Tod in Texas' Tonight at 00:10 on ZDF

Marijuana Is Winning the War on Drugs


The election brought good news. First, Obama's health-reform is safe:

This is the capstone of the Democratic welfare state, the final big-ticket program that's eluded liberals for nearly a century. In Joe Biden's memorable words, it's a big fucking deal. If Romney were elected along with a Republican Senate, he'd almost certainly be able to badly cripple Obamacare, even if he couldn't quite repeal it outright. If Obama wins and keeps the Senate in Democratic hands, it will become institutionalized. And like Social Security and other similar programs that started out small, it will grow over time until, eventually, America really does have universal healthcare.

The ideological debate about whether the government should ensure basic, affordable health-care for all will gradually wither away in the U.S., as it has in every other advanced nation. And something else happened: Colorado and Washington state voters decided to legalize marijuana. Oregon said no. Marijuana is, however, still considered a Schedule I narcotic under the federal Controlled Substances Act. This is the designation given to drugs that have a 'high potential for abuse', no medical uses, and are unsafe even under medical supervision. Officially, therefore, marijuana is considered as dangerous as heroin or LSD. There will be some interesting legal battles if the federal government tries to crack down in states that have decided to let their people enjoy dope.

In the long run, the specter of millions of people openly smoking marijuana and not turning into dead-eyed, shambling mendicants will inevitably undercut the rationale for keeping marijuana illegal. The Governor of Colorado, for his part, warned residents against breaking out the 'Cheetos or gold fish' too quickly. (For my foreign readers, he's not referring to crazed dope fiends eating live gold fish, he's referring to snack foods -- see above -- favored by cannabis conoisseurs). It's hard to paint weed as a terrifying, insidious threat when the Governor is openly joking about it.

The bigger story, though, is the U.S. Supreme Court. With some elderly liberal judges who may retire soon, Romney would have had a chance to change the Court's ideological complexion significantly. The Court is right now considering whether police should have the right to search your home based on the fact that a police dog 'alerted' -- from outside -- to the scent of marijuana inside it. This would be just the latest in a series of decisions giving police broad powers. Radley Balko points out how it all fits together:

But imagine what will happen if the Court finds that a drug dog's alert is sufficient evidence for a search, and that a warrant is not necessary: We may start sending SWAT teams into homes based only on the results of taking drug dogs door to door.

In isolation, it might make sense to rule that it's reasonable for police to break down a door in the middle of the night for a marijuana search warrant. They need to get inside before the suspect can dispose of the evidence. It might make sense for police to use extraordinarily violent tactics in these raids, including putting guns to the heads of everyone inside, including children, because they need to secure the building quickly, and they need to ensure officer safety.

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.

A justice who has spent most of his career in lecture halls and high levels of government may not see how all of that fits together. But any decent criminal lawyer would.