Quick Hits (page 4)
1 of Every 75 U.S. Men in Prison
By: Connie Cass (AP)
WASHINGTON - America's prison population grew by 2.9 percent last year, to almost 2.1 million inmates, with one of every 75 men living in prison or jail.
The inmate population continued its rise despite a fall in the crime rate and many states' efforts to reduce some sentences, especially for low-level drug offenders.
The report issued by the Justice Department 's Bureau of Justice Statistics attributes much of the increase to get-tough policies enacted during the 1980s and '90s, such as mandatory drug sentences, "three-strikes-and-you're-out" laws for repeat offenders, and "truth-in-sentencing laws" that restrict early releases.
Whether that's good or bad depends on whom is asked.
"The prison system just grows like a weed in the yard," said Vincent Schiraldi, executive director of the Justice Policy Institute, which pushes for a more lenient system.
Without reforms, he said, prison populations will continue to grow "almost as if they are on autopilot, regardless of their high costs and disappointing crime-control impact."
But Attorney General John Ashcroft said the report shows the success of efforts to take hard-core criminals off the streets.
"It is no accident that violent crime is at a 30-year low while prison population is up," Ashcroft said. "Violent and recidivist criminals are getting tough sentences while law-abiding Americans are enjoying unprecedented safety."
There were 715 inmates for every 100,000 U.S. residents at midyear in 2003, up from 703 a year earlier, the report found.
The nation's incarceration rate tops the world, according to The Sentencing Project, another group that promotes alternatives to prison. That compares with a rate of 169 per 100,000 residents in Mexico, 116 in Canada and 143 for England and Wales.
Russia's prison population, which once rivaled the United States', has dropped to 584 per 100,000 because of prisoner amnesties in recent years, the group said.
The U.S. inmate population in 2003 grew at its fastest pace in four years. The number of inmates increased 1.8 percent in state prisons, 7.1 percent in federal prisons and 3.9 percent in local jails.
In 2003, 68 percent of prison and jail inmates were members of racial or ethnic minorities, the government said. An estimated 12 percent of all black men in their 20s were in jails or prisons, as were 3.7 percent of Hispanic men and 1.6 percent of white men in that age group, according to the report.
The report also said:
* The number of women in state and federal prisons grew by 5 percent, compared to a 2.7 percent increase for men. Still, men greatly outnumber women: 1.36 million to 100,102.
* Local jails held 691,301 inmates.
* The inmate population in 10 states increased at least 5 percent. Some of the smallest state prison systems saw the largest increase: Vermont's grew by 12.2 percent, Minnesota was up 9.4 percent and Maine 9.1 percent.
* Only nine states logged a decrease in prison population, led by Rhode Island with a 3.4 percent drop; Arkansas, 2.2 percent; and Montana, 2.1 percent.
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Tan 'n' Trends
Growin' Our Own (page 4)
With 0-2 in the 9th, Ashcroft Looks to the High Court
By: Marcia Coyle (National Law Journal)
Washington -- Before the end of the year, the U.S. Supreme Court may be asked to wade once again into the legal thicket surrounding assisted suicide and the medical use of marijuana because of recent court defeats suffered by the Bush administration.
Attorney General John Ashcroft already has petitioned the high court to review the medical marijuana decision issued by the Ninth Circuit U.S. Court of Appeals in December. Ashcroft v. Raich, 03-1454. And Department of Justice officials are now considering whether to go to the high court or to seek en banc review by the Ninth Circuit of the May 26 assisted suicide ruling, said a department spokesman. Oregon v. Ashcroft, 02-35587.
Both rulings stem from long-running battles between the Justice Department and two states, California and Oregon, whose laws legalizing medical marijuana use and assisted suicide have come up against Ashcroft's interpretation of a federal criminal statute, the Controlled Substances Act of 1970.
Both cases share common ground in the significant legal questions that they raise, said Marc Spindelman of Ohio State University College of Law, who has written about the issues.
"There are questions about the authority of the federal government and the states' authority to determine what medical practice is," he said. "There are questions about what the purpose of the Controlled Substances Act is. And there are questions about Congress' authority to regulate commerce when it involves controversial medical decisions, and what tools, if any, the federal government should use in the national debate about how medical practice should or shouldn't evolve."
And both cases have triggered criticism by some litigants and others that Ashcroft is pursuing a personal or political agenda instead of a law enforcement one.
That criticism is not unusual given the nature of the issues in both cases, said Spindelman, who described himself as someone who disagrees with many of Ashcroft's initiatives.
"In both cases, the decision being made at the local level has national implications, so it's not surprising there is a federal response to the local initiatives," he explained. And the criticism, he added, is "certainly not surprising where the initiatives at the local level tend to be viewed, even if they are not, as 'liberal' projects, and the federal government has, at least in the executive branch, a 'conservative' agenda."
Ashcroft may be more vulnerable to the criticism because his legal arguments in both cases seem undercut by recent Supreme Court rulings, said high court scholar Douglas Kmiec of Pepperdine University School of Law, who shares Ashcroft's opposition to assisted suicide.
"But the attorney general has a responsibility to defend the institution's mission, and that mission is very much shaped by the control of drugs," he added. "The attorney general may be guided by that law enforcement mission and may decide to leave the constitutional questions to someone else."
Regulating drugs
In the marijuana litigation, Angel McClary Raich and Diane Monson use marijuana for medical purposes on the recommendation of their doctors. After agents from the Drug Enforcement Administration seized Monson's six cannabis plants, the two women, fearing future raids, sued Ashcroft. They sought a declaration that the CSA was unconstitutional as applied to the medical use of marijuana and an injunction. At that time, Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington had passed laws permitting the cultivation and use of medicinal marijuana.
The CSA establishes five "schedules" of certain drugs and substances and designates them "controlled substances." Under the act, marijuana is a schedule I controlled substance because it has no currently accepted medical use, it has a high potential for abuse and there is a lack of accepted safety for its use under medical supervision.
After losing in the district court, Raich and Monson appealed to the Ninth Circuit. Ruling 2-1, a panel agreed with the women in holding that the CSA, as applied to them, is an unconstitutional exercise of Congress' commerce clause authority. The majority, led by Judge Harry Pregerson, noted that the circuit had upheld the CSA under the commerce clause in prior cases, but here the class of activities was very different from the earlier cases that concerned drug trafficking.
The class of activities at issue in Raich, said the majority, was intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law.
The court looked to U.S. v. Morrison, 529 U.S. 598 (2000), a commerce clause challenge to the Violence Against Women Act, to analyze whether the activity in Raich substantially affects interstate commerce. Morrison sets out four factors for answering that question. Under each factor, the panel majority found no substantial effect on commerce.
Senior Circuit Judge C. Arlen Beam of the Eighth Circuit, sitting by designation, dissented, saying he found it impossible to distinguish the conduct surrounding the cultivation and use of marijuana from the that of a wheat crop for family use, which the Supreme Court held did affect interstate commerce in Wickard v. Filburn, 317 U.S. 111 (1942).
The assisted suicide case, unlike the medical marijuana case, was not a constitutional ruling, but one involving a statutory interpretation.
A doctor, a pharmacist, several terminally ill patients and the state of Oregon challenged the so-called Ashcroft Directive, an interpretative rule stating that physician-assisted suicide violates the CSA. The directive criminalizes conduct authorized by Oregon's Death with Dignity Act of 1994.
After the plaintiffs won in the lower court, a Ninth Circuit panel, led by Richard Tallman, held, 2-1, that the directive "invokes the outer limits of Congress' power by encroaching on state authority to regulate medical practice." Because Congress did not clearly authorize that intrusion, the majority said, the directive violates the clear-statement rule.
The CSA, according to the majority, expressly limits federal authority to the field of drug abuse, and physician-assisted suicide is not a form of drug abuse that Congress intended the CSA to cover. And the majority noted that the Supreme Court, in its first look at the assisted suicide issue, had said that the debate about the morality, legality and practicality of the practice belongs to state lawmakers. Washington v. Glucksberg, 521 U.S. 702 (1997).
But Judge J. Clifford Wallace dissented, saying that the act's text furnishes "ample evidence" that Congress was concerned with any improper drug use that might have a detrimental effect on the public health, and "nothing in the Controlled Substances Act's text precludes its application to physician-assisted suicide." Deference is owed Ashcroft's interpretation, he said.
Who can regulate?
"The seed in both cases is the recognition that the regulation of the practice of medicine has historically been within states' power," said Kathryn Tucker of Compassion in Dying, co-counsel in the Oregon case for the individual plaintiffs. "That's really why when Raich came out, we did a supplemental citation on it," she added. "We thought it was an important decision."
The Oregon decision, she said, was a victory on two levels: "It preserved the laboratory of the states on the assisted suicide question, which the Supreme Court felt should go forward, and it protects dying patients in all 50 states from having their pain management imperiled.
"When Ashcroft announced the department would be scrutinizing doctors in Oregon, it made all doctors all over country fearful about their prescriptions for pain," explained Tucker.
But James Bopp of Bopp Coleson & Bostrom in Terre Haute, Ind., who filed an amicus curiae brief in the Oregon case supporting Ashcroft, sees the two cases differently. "They're related because of the general proposition that the federal government has the authority to regulate the use of drugs -- an authority that certainly had not been disputed until most recently," Bopp said.
Federal laws are supreme so state laws just give way, he said. "If you go back far enough, the federal government didn't do anything, but over time those state regulations of areas that were historically viewed as of particular state concern have given way to federal laws," he said. "Unless there is some constitutionally protected right to practice medicine, which the Supreme Court has regularly turned down, then there is nothing peculiar about the practice of medicine as opposed to being a plumber in terms of the relevant power of the state or federal government to regulate."
Applying the CSA to assisted suicide is not at odds with the notion that a state can legalize assisted suicide, he added. "They just have to use some other means-strangulation, ropes, ladders, trees. But they made the choice of using a controlled substance and when they made that choice, they ran up against a federal law."
Ohio State's Spindelman said a states' rights argument in the context of health care is hard to sustain, particularly after the 9/11 attacks.
"We're now thinking about mass inoculations or other interventions in case of a terrorist strike," he said. "Are we going to say the federal government's effort to coordinate responses in the unhappy event we need to have massive public health intervention is going to be hamstrung or subject to veto by the states?
"Where is the authority of the federal government to make the determination that marijuana does not have a medical purpose, or to classify marijuana in the way it has in the CSA, if direct control of medical practice is beyond the power of the federal government? Where does the federal government get the authority to regulate medical experimentation? Isn't that ever control of medical practice?"
Pepperdine's Kmiec, a former Reagan Justice Department official, sees trouble for the government's position in both cases if they are taken by the Supreme Court.
In the assisted suicide case, he said, "To assume the same level of statutory deference would be given to the attorney general's interpretation after the Supreme Court had already, in essence, invited Oregon to have its own debate and reach its own conclusion was unfortunate and an incorrect assumption."
In the medical marijuana case, Kmiec noted that judges appointed by Presidents Reagan, Clinton and both Bushes have been saying for some time that an activity that is neither interstate nor commercial in nature is not easily regulated as interstate commerce.
[Ed note: Marcia Coyle is a reporter with The National Law Journal, a Recorder affiliate based in New York City.]
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Pipeline (page 4)
Fresno Authorities Busy Busting Marijuana Farms
By: Mark Arax (Contra Costa Times)
Fresno -- On the edge of suburbia here, where farmland awaits the developer's plow, the magnificent gardens of Southeast Asian refugees rise and fall. On leased ground no bigger than 5 or 10 acres -- small potatoes to the giant industrial growers -- the refugees plant their own longshot dreams: Chinese bitter melon, Chinese broccoli, Thai chili, ong choy, su choy, daikon and kohlrabi.
The best strawberries in the San Joaquin Valley are grown by a tribe of CIA-trained commandos who fled the highlands of Laos after the Vietnam War. Thai eggplant, slightly spicier than its Armenian cousin, is the specialty of the lowland Lao.
This spring, anticipating another harvest of low prices in the nation's most productive farm belt, some Southeast Asian niche farmers are planting a new cash crop under the brutal sun: marijuana.
In the past few months, Fresno County investigators have busted at least half a dozen marijuana fields hidden by borders of cherry tomatoes. A more ideal camouflage crop -- the tomato and the marijuana plant have similar leaves -- would be hard to find. Nearly 40,000 squat but prolific bushes have been yanked out and set ablaze, an illicit harvest worth $40 million on the streets -- more than last year's value for cherries or Valencia oranges or sweet corn in Fresno County.
Five lowland Lao refugees have been arrested and charged with cultivating marijuana for sale. The record heat of spring has not only pushed the vineyards and fruit orchards several weeks ahead of their growing cycles but matured the marijuana in half the time.
"This is the earliest in my 23 years as a narc that we've taken off so many marijuana plots," said Lt. Rick Hill of the Fresno County Sheriff's Department. "Usually, the plots we find are in the mountains, and they're mostly operated by gangs from Mexico. These new plots are down on the valley floor, and it's Southeast Asians who are growing them."
As sheriff's deputies canvass the truck farms of Fresno County looking for greener-than-green plants, Southeast Asian leaders are complaining that their community is being unfairly singled out. In one news release, the Sheriff's Department advised landowners leasing property to Southeast Asian farmers to inspect the rows for cannabis.
The refugees counter that the vast majority of their truck farms are clean and that authorities, by targeting Southeast Asian farms, are making it difficult for future refugees to lease farmland.
"Anyone who reads the local paper has the conception that Southeast Asian farmers grow marijuana," said Tzexa Cherta Lee, a leading Hmong grower and packer in Fresno County. "Someone even asked me the other day if the white caps we put over the plants to protect them from frost is the Southeast Asian way of hiding the marijuana."
The Hmong, a tribe of 18 clans from the Laotian highlands, were slash-and-burn farmers who lived in jungle huts until the CIA recruited them to fight communist forces during the Vietnam War. After suffering high combat mortality rates, the Hmong began resettling in central California by the tens of thousands in the late 1970s.
By contrast, the lowland Lao, city dwellers back home, have had a somewhat easier time crossing the cultural divide. But this has not led to economic gain, at least not for the majority.
Twenty-five years after resettlement, both the Hmong and lowland Lao communities still rely heavily on government assistance. While more than half of the second-generation Southeast Asians have gone on to college or well-paying careers here, social workers say, 40 percent flounder in dead-end jobs or a cycle of gangs and welfare dependency.
For many unskilled refugees who speak no English, the truck farm represents the best shot at escaping poverty. Making the fringe of Fresno bloom, though, is no easy go. The labor is long, and everyone in the family must pitch in.
They say with pride that no bosses look over their shoulders when they trudge to the wooden tent in the middle of the field to eat noodles and spicy beef. But at the end of the day, the buyer's prices are low and they struggle to cover the rent. Just when they think they have mastered the vagaries of soil and climate, it seems, the landowner sells out to a developer. Refugees hop from field to field, tent to tent.
Each year, the production value of Asian vegetables increases slightly. Last year, farms totaling 1,470 acres produced $10.3 million -- just a sliver of the $4 billion in crops grown by Fresno County.
"For the most part, these guys are legitimate small farmers. Now a handful lured by the big bucks have stepped over the line," said Dennis Plann, the county's deputy agricultural commissioner.
Fresno Sheriff's officials agree that only a fraction of Southeast Asian truck farmers are involved in marijuana cultivation, and they have apologized to the refugees for public comments that suggest they are targets. But they warn that the illegal operations and all that they entail -- such as the use of high-powered rifles and night-vision gear -- can pose dangers.
The marijuana raised is an unusual breed. Nurtured indoors and conditioned to grow no more than 3 feet tall, the bushy-leafed crop is easy to hide once transplanted. This season's first surveillance took narcotics officers to a Southeast Asian vegetable farm that stretched out over 40 acres, far bigger than most.
"About 25 acres were cropped, and 15 acres were being used for marijuana," Hill said. "I had farmers who walked their dogs every day along that property and all they saw was tomatoes."
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