03/11/16 Katherine Neil

Cultural Baggage Radio Show

Law enforcement perspectives on Drug Prohibition recorded at James A Baker III Institute featuring Katherine A Neill of the Institute, Harris County/Houston DA Devon Anderson, Gary Hale former DEA agent (Part 1)

Audio file


MARCH 11, 2016


[MUSIC] Pfizer and Merck kill more of us
Than the cartel's crap ever could.
They thank us for our silence,
Each year’s hundred billion dollars,
And the chance to do it forever more.
Drugs... the first eternal war

DEAN BECKER: Hello, friends, this is Dean Becker, and you're listening to Cultural Baggage on Pacifica Radio and the Drug Truth Network. Recently, the Drug Policy Group at Rice University's James A. Baker III Institute for Public Policy put together a panel on law enforcement perspectives on drug prohibition. Among the panelists was the district attorney of Harris County, Houston, Devon Anderson, as well as Gary Hale, non-resident fellow in drug policy at the Baker Institute, a man with 30 years' service to the Drug Enforcement Administration, also featured Howard Wooldridge, another drug policy specialist, heads up Citizens Opposing Prohibition, and a founding member of Law Enforcement Against Prohibition, as well as Texas Representative Gene Wu from District 137, and was moderated by yours truly, and this panel was put together by Katharine A. Neill, PhD. She's the Alfred C. Glassell III Post-Doctoral Fellow in Drug Policy at the Baker Institute. This is Katharine A. Neill

KATHARINE A. NEILL: Thank you all for being here. We have put together what I think will be a great program. Tonight we will be talking about illegal drugs and what to do about them. President Richard Nixon first declared a war on drugs in 1973, and in the decades since, the US has spent billions of dollars, incarcerated millions of people, and yet this has had no discernible impact on the rate of drug use in the country.

Today we are seeing an emerging consensus that the war on drugs has failed. Government officials and politicians of all ideological stripes, and at all levels of government, have expressed support for drug reform. Of course, not everyone has embraced reform, and among those who have, there is disagreement over what type of reform we need. Some say that we need only very minor changes to lessen penalties for first-time drug offenders. Others say we should legalize all drugs, and there are many others who say we need something in between.

So far the greatest change that we've seen has been focused on marijuana use. There are now four states where adult recreational use is legal, 23 in which medical is legal, and several others where possession of small amounts has been decriminalized, so that individuals will not face jail time if found with marijuana. In Texas, 11 marijuana-related reform bills were introduced in the state legislature in 2015. One of these was authored by Representative Gene Wu, who is with us here tonight. That bill would have reduced the penalty for possession of 0.35 ounces of marijuana to a fine-only misdemeanor. In Harris County, District Attorney Devon Anderson, also with us tonight, introduced, or has instituted the First Chance Intervention Program, which allows first time marijuana offenders in possession of an ounce or less to avoid jail time if they meet certain stipulations.

The enthusiasm for marijuana reform is encouraging to those who view the war on drugs as a failed policy, but marijuana, while by far the most commonly used illicit substance in the US, is not the only drug that we punish people for using. In 2014, over one and a half million people were arrested for drug law violations. Eighty three percent of these arrests were for drug possession only. The consequences of a drug arrest are significant and lasting. Even if a person is not incarcerated, the arrest alone can impact access to higher education, student loans, employment opportunities, occupational licenses, public housing, and food stamps. This comes at a high cost to taxpayers, who foot the yearly bill of roughly $40 to $50 billion to fight the war on drugs.

People who have chosen a career in law enforcement have extensive first hand knowledge of the drug war. As those tasked with enforcing drug laws, police, prosecutors, judges, and others that we consider to be part of the law enforcement community are on the front lines of the drug war, making them uniquely qualified to speak about the challenges in combating drug use and drug related crime, and to suggest alternative methods for dealing with these issues, if they think such alternatives are necessary.

All of the speakers that you will hear from tonight are currently working in law enforcement or have done so in the past. There are differing opinions within the law enforcement community regarding the efficacy of the war on drugs, the challenges to drug enforcement, and what alternative methods, if any, we should be using to deal with drug use. Tonight we will explore these different perspectives.

Each of our guests will say a few words about their law enforcement backgrounds and perspectives on drug prohibition. After that we will host a discussion moderated by Baker Institute Contributing Expert Dean Becker. To save time, I am not going to provide a long introduction to each speaker, but I will say a bit about each one, and if you would like to read more about our guests, the program carries the longer description.

Devon Anderson is the district attorney for Harris County. After first being appointed for the office by Governor Rick Perry in 2013, she was re-elected by the citizens of Harris County in November of last year. As a former drug court judge and now as chief prosecutor for the county, Ms. Anderson has extensive knowledge of the impact of enforcing drug prohibition on the county's budget and its citizens. Recently, she has demonstrated the desire to pursue alternatives to incarceration for low level nonviolent drug offenders, a desire that is most visible in her creation of the First Chance Intervention Program for first time marijuana offenders. We are happy that she is able to take the time to be with us here tonight. Please join me in welcoming Devon Anderson.

Gary Hale is also with us this evening. We are pleased to have Gary serving as a nonresident fellow in drug policy and Mexico studies at the Baker Institute. Gary was the chief of intelligence in the Houston field division of the Drug Enforcement Administration from 2000 to 2010, when he retired. He has a profound understanding of the relationship between the war on drugs in the US and the wars that are being waged between drug cartels south of the border. We are happy that he could join us tonight to share his expertise. Please join me in welcoming Gary Hale.

Howard Wooldridge is a former detective for the Michigan Baths Charter Township, and now works in Washington, DC, as a drug policy specialist for Citizens Opposing Prohibition. He also cofounded the group Law Enforcement Against Prohibition, or LEAP, in 2002. Howard also has the distinction of probably being the only man in America to ride a horse across the country to educate people on the failures of the drug war. We are glad that Howard can make the trip from DC to be with us tonight, and please join me in welcoming Howard Wooldridge.

Last but not least, we will hear from Texas State Representative Gene Wu, who serves District 137 in southwest Houston. Prior to being elected to office in 2012, Representative Wu served as a prosecutor in the Harris County District Attorney's Office. As a young representative, Mr. Wu has already made his mark, authoring several important and diverse pieces of legislation, including a bill to lower the penalties for marijuana possession. I would also like to note that Representative Wu has just won his primary, and we are happy that he could join us for tonight's discussion.

Tonight's panel will be hosted by Dean Becker. Dean is a contributing expert for the Baker Institute Drug Policy Program, and is the producer and host of Drug Truth Network, which airs on KPFT 90.1 Houston, and is syndicated on more than 75 stations nationwide. Dean is a speaker for Law Enforcement Against Prohibition and a member of the Drug Policy Forum of Texas. He has interviewed hundreds of government officials, doctors, scientists, and citizens about the war on drugs. Many of these interviews can be found online at the Baker Institute Drug Policy website, and in his recently published book, To End The War On Drugs, copies of which are available here for purchase if anyone is interested. Please join me in welcoming Dean Becker.

DEAN BECKER: Thank you all for being here. I want to share some words with you. The canons of truth are upon you. Those words were spoken in this hall, and in the Texas legislature by Mr. Vincent Lopez, a medical marijuana user and reformer extraordinaire. If I may be so bold as to paraphrase Vincent, in what he was saying: the canons of truth are upon legislators and officials, to educate themselves and to find ways to end this eternal war on drugs as soon as possible. I hope that what we accomplish here today is to find points of agreement and definitions of how changes can be expedited.

I'm honored to be your moderator for this panel, and want to thank the Baker Institute for entrusting me with this very important discussion. With that, I want to invite our district attorney, Devon Anderson, to give her thoughts.

DEVON ANDERSON: Thank you, and I'm glad to be here tonight to talk about drug policy in Harris County, and the challenges that one faces when one tries to do things a little differently. You've heard about my background, a little bit, I was a prosecutor for 12 years, a judge for 4 years, a defense attorney for 4 years, and now I'm the district attorney. And I think what has informed my philosophy regarding prosecuting drug cases more than anything are two aspects of my career. One, the two and a half years I volunteered to be a drug court judge in Harris County, and two, my defense attorney experience. Because what I learned from those two experiences was, the impact that a conviction has on someone's life, no matter how old they are but particularly on a youthful offender, it virtually can stop you in your tracks. And two, that treatment works, not putting somebody in jail.

So if you have a drug addict, jail does not make them sober. Only treatment does. And not just any treatment, there's no cookie cutter approach, it has to be individualized treatment for each offender. So, those concepts drove me to try to find ways to work within the system, because I've taken an oath to uphold the laws of the state of Texas -- I'm giving you a preview for the questions I know you're going to ask me. It doesn't matter what my opinions are of these laws, and I've had to make very difficult decisions since I've been district attorney but I've followed the law and that's what I believe I've taken an oath to do. I don't believe it, I know, I put my hand on a bible and swore to god that I would uphold the laws of this state.

So working within the system, and also working with stakeholders. You have to work with the police, you have to work with the probation department, with pretrial, and with the judges, to get anything done, realistically. So, the First Chance Program that was developed and begun in October 2014, was a program that was months in the making, with lots of lobbying and lots of negotiating. I can't ram something down somebody's throat, policy-wise, as much as I'd like to sometimes. For it to be effective, everyone has to be on board.

So we created a program that was supposed to be pre-charge, that the offender who's arrested on the street by an officer was to be transported and fingerprinted, if they were determined to be a first offender, then they were to offered this program and released, and have three days to report to pre-trial for an assessment, and then they either were assessed at low risk or medium risk. Low risk, they do 60 days, they'd have a 60 day program with 8 hours of community service to complete in that time, and stay out of trouble. Or if they were medium risk, they would do an 8 hour cognitive class, 90 days to stay out of trouble, and the charge would never be filed. So we would hold charge.

So this was a pre-charge program. Nothing like it's been done in Texas. You don't go to court, you don't have a lawyer, you don't book into the jail, you don't bail out. Significant cost savings, significant cutting down of court resources, the use thereof. But, when we started it in October 2014, it was a huge culture change, especially for the police. You're telling me I'm going to arrest somebody, I'm going to let them go, and I still have to write the report and tag the dope and do everything else I usually have to do. So we met with some resistance.

And we started noticing as we were tracking the results that about 75 percent of the people getting this program were getting it once they got to court. So we had two populations, the pre-charge people who were getting it the way the program was intended, on the street, a street diversion you can call it, and then the other, rest, the vast majority getting it once they got to court. So those people, once they got the program, would then have to go through expunction, the expunction process to get it all off their record. The pre-charge people have nothing on their record.

So, that led me to, in January of this year, making it mandatory. Pre-charge became mandatory in January, meaning that if you're an officer with somebody in custody for zero to two ounces, we will not take charges if they're a first offender. You're going to offer the program and release them. Since we have instituted that, the numbers have slipped, and now we have 80 percent pre-charge population and 20 percent post-charge. So it's exactly what we'd been hoping. And the numbers just today, so you can get an idea of how many people have been through the program, 2,487 people as of today have been through the program, and of those, 84 percent have completed it successfully.

So we're definitely targeting a population that can self-correct, so that is about 2,000 people who do not have anything on their record. And of those people, we track them for a year, a little over a year, for recidivism rates, which is early, but it's still very promising, because it's only 6, 7 percent have recidivated. That's incredibly low. And very successful.

So, this is the way you've got to do it, take my word for it. Taking that success made it a lot easier to then expand it, and so in February, we expanded it to retail theft shoplifting, because there's really nothing worse on your record than a theft conviction. That's even worse than any other thing I can think of. Try getting a job with a theft conviction on your record. So we've expanded it to that, and then even more significantly, in felony court. Less than a gram, Gene, I'm going to say, the last three, two or three sessions, our office has lobbied to try to make that a class A misdemeanor, and it hadn't worked. We appreciate it, I know you're trying, it's a huge culture change for the state, but right now, less than a gram of cocaine, heroin, methamphetamine, is a state jail felony. State jail felony has been a failure, because there is no treatment dollars, there are no treatment dollars associated with it. So people are doing a small amount of state jail time, coming out, and they're not sober, they're going right back to using drugs.

So what we started in February of 2016 was another pre-trial diversion program for anybody with no felony priors, they can have misdemeanor, but no felony prior convictions. One year, this is the pre-trial intervention where the case is reset for a year. They undergo an assessment, given by the probation department, an individual treatment plan, if it's needed, because some people don't need treatment, but the assessment ferrets those people out. The ones that do need treatment, the treatment's in proportion to their needs. So, do they have a terrible, terrible problem? Then residential will probably be recommended. Is it somebody who's just starting but having trouble quitting? Then intensive outpatient would be recommended. It's to the person, tailored.

And that started in February of this year. We have 406 people who are now in a program. If they successfully complete it, and we will not be violating on one positive, two positive, they are going to be worked with and success is the model, not trying to trip them up or trick them. Success is what we're going to be aiming for. At the end of the time, the case will be dismissed, and they will have nothing on their record and they'll b subject to automatic expunction immediately. So we have high hopes for that.

That's what I wanted to say, and now I'm going to have a lot of interesting questions from our moderator, and from the audience, so I look forward to answering them. Thank you.

DEAN BECKER: Very powerful words there, thank you, Ms. Anderson. Next, let's bring up Gary Hale.

GARY HALE: Well, good evening, everyone, and thank you, Dean, for inviting me as well as Katie from the Baker Institute Drug Policy Program. I'm proud to have - to be part of that program since 2011, right after I retired. Most of my work was with DEA, my career was 31 years with the Drug Enforcement Administration. During those years I worked operational, tactical, strategic, and policy matters.

The operational is a typical investigation. Tactical would be things like working in the jungle to locate and destroy cocaine laboratories in the jungles of South America. Strategic would be more regional issues, I was the regional chief of intelligence for DEA here in Houston, and I covered everywhere from San Diego to Brownsville, south to Panama, so that's a strategic view of what I did. And then on the policy side, I was very proud to brief the president-to-be of Colombia on drug issues that we saw were forecasting that would be impacting on Colombia and the United States, when he was the minister of defense at the time, Mr. Manuel Santos, and he eventually became president.

And I also worked with the Obama transition team to help define spillover violence issues on the US-Mexico border, so that the president, when he came in, would be well equipped to understand that particular problem that we're having, and all of the rhetoric that was going on -- and still is going on with regards to the US-Mexico border, and how much spillover, how much violence is actually coming over into the United States.

I was also proud to, after retirement, to work for the State Department as a contractor in Mexico City for about two years, and I helped the -- Pena Nieto, he's the current president of Mexico, and his transition team to help them with public safety and national security issues. So from all that experience, I got an interesting perspective, I would say, on the so-called drug war, or what we're calling drug prohibition.

So, from those 40 years, I'll condense that to a few things, to give my further comments some context. First of all, I'm going to be talking about supply side and demand side, that's how the government defines strategy. The supply side is the parts of the world where drugs are either manufactured or cultivated, and then converted into drugs. The demand side is the user population, wherever that may be. In this case, we're talking about the United States.

So within that framework, I would say that, and putting that into the drug war context or perspective, we, I think, would all agree that laws, and having counter-drug laws, is a good thing and they're legislated for the public good. Most laws are the reflection or the reaction of a public need or will. Most, but not all, drug laws have their genesis at the federal level, and form the basis for state drug laws. There are exceptions where local and state drug issues cause the federal government to react and create or change laws. A case in point was the, methamphetamine was a big problem in the United States in the 1980s, people were making methamphetamine in their garages, in hotel rooms, and just about any small space, and they were taking ephedrin, sudafed, and all kinds of ephedrine products to convert to methamphetamine. So, that was a local problem that rose up to federal level. DEA made recommendations to Congress, laws were changed, and some controls were placed on ephedrine such that now you have to go identify yourself, it's no longer over the counter, you have to go and present your driver's license to get certain quantities of ephedrin.

So, I believe that the framework for current drug policy at the federal level is generally sound. That is, to balance or to attempt to balance equal effort on the supply side and the demand side. Remember that's the general outlook, or basis, by which the federal government works. So as a framework, it's not a sound -- it's not a bad, or, I believe it is a sound approach to looking at the overall problem. Are we going to put resources, money, manpower, agents, whatever they may be, US government resources, on the supply side, or are we going to put them on the demand side?

And I've noticed that those two usually are applied by political parties. The tendency is for Democrats to favor the demand side, and the Republicans to favor the supply side. That's just a tendency, not a fact. So, the question is, has the drug war failed? Instead of saying has the drug war failed, I'll say that the federal government at large, this is just a personal opinion, is doing poorly. I'll give it a D. Okeh? Call it deficient, instead of an F, or a failure.

So, to that end, I believe that the so-called global drug war has had mixed results. On the one hand, multitudes of dangerous drugs have been seized and destroyed, providing important public safety functions, given that many drugs are indeed dangerous. Multitudes of dangerous drug manufacturers have been arrested and incarcerated, thereby serving to disrupt and dismantle and inhibit drug trafficking organizations. And then the nexus between drugs and terrorism has been discovered and addressed by denying drug revenues to those terrorist organizations that would harm the United States, its citizens, or United States interests. That's on the one hand.

On the other hand, drug laws are so strict, especially the current minimum mandatory sentencing laws at the federal level, that many nonviolent offenders are incarcerated at the same rate and with the same or similar sentences as violent offenders. The amount and types of drugs continue to enter the United States at alarming rates, and there's no stopping it, it seems. International drug control policy is in shambles, and the United States is behind the curve in, with regards to reform.

The public, with regards to marijuana only, I would say, has spoken, and Washington policymakers have been very slow to respond to the public's desires. What would I recommend for policy changes? First of all, the national and international drug policy need another recalibration, a serious recalibration, especially with regards to liberalizing marijuana prohibition. I believe that personal use and medical marijuana should be for the states to decide, and the federal laws should reflect such changes, including taking marijuana and other cannabis products off of Schedule One of the Controlled Substances Act.

Sentencing for drug offenses needs recalibration also. Very much like the DA has outlined here at the state level, the federal should recalibrate drug, nondrug violations, such as marijuana violations -- nonviolent drug violations such as marijuana, and it would make sense to treat them similar to a DWI, where there was probation, counseling, and public service as key components of those punishments, versus being treated as if somebody with personal use marijuana was committing some felonious crime.

International drug control treaties need amendment to reflect the ongoing paradigm shift, or changing situation in several countries, including the United States. And for those of law enforcement colleagues that may take issue with my positions, I say, don't worry, there are still plenty of drugs out there to be enforced.

So, I don't think that -- one of the problems with our system is that DEA currently holds the majority power, or I'd say veto power, on determining whether or not marijuana or any drug is taken off of Schedule One of the Controlled Substances Act. I think that's a bad policy move, because you have DEA, which is an executive agency. They're like soldiers in a war, and at the same time they're passing the policies on how to promulgate that war. So, that's like giving a soldier in a military war the power to make the decision on when to go war and how to go to war, it's just stacking the deck, and it's probably not a good idea.

So by the fact that DEA is an executive branch agency, and it is enforcer of the Controlled Substances Act by design, and that should be changed.

So in closing, I'd say that drug prohibition is necessary for some but not all drugs. The US government needs to seriously reform drug policy at both the supply and demand sides of the equation, to ensure that we're not stuck with policies that do not reflect the will of the public or its elected officials. Drug policy reform should be influenced less by the enforcers and more by public health officials. Texas officials like representatives of any other sovereign state should be free to enact laws that reflect the realities of what is effecting the public interest of their individual states.

State legislatures should not be trumped by federal government mandates for laws in matters that effect local public safety. This includes giving states some autonomy in defining and enforcing, or choosing not to enforce, alcohol-related crimes, nonviolent drug crimes, drug use policies, and even border control issues in some cases. So I applaud the district attorney for the work that she's doing, because she is certainly moving in the direction that I would like to see the federal government go as well. Thank you very much.

DEAN BECKER: Thank you for being with us on this edition of Cultural Baggage. When the government of Great Britain is considering legalizing drugs, when the United Nations is reconsidering their position on drugs as well, and when state and federal bodies are re-examining this policy, it points out that the end of drug war is near, it's waiting on you to speak up, to demand an end to this madness.

Be sure to join us next week, we'll have more from the Baker conference. I remind you once again that because of prohibition you don't know what's in that bag. Please be careful.