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Federal Supremacy vs. State Rights: Marijuana
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Over the holidays, two states filed suit against Colorado because of their current marijuana laws.
Nebraska, Oklahoma File Federal Suit Against Colorado Over Marijuana Legalization
"The illegal products being distributed in Colorado are being trafficked across state lines thereby injuring neighboring states like Oklahoma and Nebraska," Pruitt said in a statement.
I think that's a fair point. I liken it to our past discussions regarding gun laws – what good is a strict gun law if you can drive 30 miles to negate it? The same is true for weed in this situation.
Bruning, along with Oklahoma Attorney General Scott Pruitt, argue that under the U.S. Constitution's Supremacy Clause, Colorado's legalization of recreational marijuana is unconstitutional because marijuana remains illegal under federal law. The clause states that in general, federal law takes precedence over state law.
This also makes sense, at least on the surface. It requires a bit more nuanced a debate on state rights and how they should exercise them, but when the affects of your states laws can't be contained within your borders, I see a legitimate grievance, even if Federal Supremacy isn't present. (I believe this applies to stuff like pollution and shared waterways)
The twist in all this, of course, is that both states filing the suits are red states, with Republican Governors and Attorneys General, the party that typically advocates state's rights. That makes for a politically awkward situation where they are being either hypocritical or mildly acknowledging that reality has )in the case of state's rights) a Federal bias.
Several other states have passed on signing on the suit and even within Oklahoma and Nebraska, GOP members are asking for the suit to be dropped because of the implications.
Myself, while I agree with the reasoning on the suit, I also have to acknowledge that if it sustained it creates a bit of a catch-22. We use state's rights in part to help improve the entire country by using each state's groundbreaking laws as an example for what can and can not work on a more widespread level. If Colorado can not legalize marijuana, how would we ever learn that it is safe to do so? And this would go for any other protective laws that have Federal Supremacy. What is a just compromise? The suit seeks to completely negate the law, but since they are claiming monetary damages, would Colorado merely funding their increased budgetary requirements to keep properly enforcing their laws be fair? It would negate the 'harm' claimed while still allowing their subversive or pioneering law to continue existing.
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I replied to your OP but the forum decided to flake out when I posted it. Yet again. I'm not inclined to write it all again. The quick and dirty version is that from a constitutional standpoint all state laws that legalize marijuana are "unconstitutional". But the federal government has the discretion to make a fuss about it or not. The Obama Administration has chosen not to prioritize the enforcement of federal marijuana laws in those states where it is legal. Which seems reasonable IMO. I'm also unsympathetic to those states in the suit since they choose to continue to expend limited resources enforcing such stupid laws. Marijuana is arguably safer than alcohol which is legal but these knuckleheads want to lock people up over it? The fact that marijuana continues to be listed as a Schedule 1 controlled substance like heroin, LSD, and peyote is INSANE any way you slice it! At some point someone has to stop the madness.
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Originally Posted by OAW
The quick and dirty version is that from a constitutional standpoint all state laws that legalize marijuana are "unconstitutional".
I imagine the scarequotes indicate this is 'technically' the case.
But the federal government has the discretion to make a fuss about it or not. The Obama Administration has chosen not to prioritize the enforcement of federal marijuana laws in those states where it is legal.[/quote]Counterpoint: The administration was harassing the hell out of California until Colorado legalized in 2012. And while it was defacto legalization, California hadn't legalized marijuana completely, but rather only medically.
Originally Posted by OAW
Which seems reasonable IMO. I'm also unsympathetic to those states in the suit since they choose to continue to expend limited resources enforcing such stupid laws.
To paraphrase, I do not agree with marijuana laws, but I'll defend your right to enforce them. Stupid laws need to overturned or repealed.
Originally Posted by OAW
The fact that marijuana continues to be listed as a Schedule 1 controlled substance like heroin, LSD, and peyote is INSANE any way you slice it! At some point someone has to stop the madness.
I believe they just recently legalized medical marijuana federally, so that's progress. (and indicative of where we're headed, personally)
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Originally Posted by The Final Dakar
To paraphrase, I do not agree with marijuana laws, but I'll defend your right to enforce them. Stupid laws need to overturned or repealed.
That pretty much sums up my view on the situation.
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Originally Posted by The Final Dakar
To paraphrase, I do not agree with marijuana laws, but I'll defend your right to enforce them. Stupid laws need to overturned or repealed.
100% agree.
With that being said, I'm not sure any state should be able to use federal regulations to meddle in another state's affairs.
IMO, the federal government should not be regulating which drugs are and are not illegal, though I do believe it necessary to regulate controlled substance trafficking into and out of the United States, as well as across state lines.
Whether its pot, guns, alcohol, tobacco, human trafficking, white collar crimes, etc etc the fundamental argument is the same. Should the feds be micro legislating each state or setting up general guidelines related only to interstate commerce/trafficking (the clause from which the original prohibition on pot derives from).
Everything else, IMO, is off limits, even if the neighboring state must deal with people who travel from other states with differing laws.
In other words, if you grow, buy, smoke, or otherwise engage in marijuana-related activities, so long as it's all kosher with state laws I don't think the Feds or other states should be able to govern the people of Colorado. It's a fundamental taxation and representation issue.
The two states are arguing that their neighbors laws are impacting them, but the same could be said for any criminal activity. It is already illegal to traffic pot across state lines. Making Pot more illegal, or trying to shut down another state's legitimate business won't do any good.
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Originally Posted by Snow-i
With that being said, I'm not sure any state should be able to use federal regulations to meddle in another state's affairs.
Why not? Someone needs to be the arbiter of inter-state squabbles.
Originally Posted by Snow-i
IMO, the federal government should not be regulating which drugs are and are not illegal, though I do believe it necessary to regulate controlled substance trafficking into and out of the United States, as well as across state lines.
This is the same argument from a different perspective. It overlooks the overarching question: whether the suing states have the current legal gist of it correct.
Originally Posted by Snow-i
trying to shut down another state's legitimate business won't do any good.
You are empirically wrong. The suit is based on the fact that drug-related crime has increased in border states in the aftermath of Colorado's referendum to make pot legal to access. Shutting down their business will make a difference. There will be less easy access to weed.
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Originally Posted by The Final Dakar
Why not? Someone needs to be the arbiter of inter-state squabbles.
Thats what the courts are for, is it not?
This is the same argument from a different perspective. It overlooks the overarching question: whether the suing states have the current legal gist of it correct.
I'm not sure they do, as the constitution has no provisions for the regulation of controlled substances. There is also no constitutional requirement that the federal government preempt all state's laws with federal ones, only the ability (not requirement) to do so.
You are empirically wrong. The suit is based on the fact that drug-related crime has increased in border states in the aftermath of Colorado's referendum to make pot legal to access. Shutting down their business will make a difference. There will be less easy access to weed.
I would like to see the numbers on that one.
There is no doubt that the laws of one state affect another. The question is whether or not, in a free country, that one state should be responsible for the crimes of those who travel in and out of that state. My answer is a big fat no, else there's no point in having state governments at all as every law (not just pot laws) have the same effect. If it's legal to own horses in one state, but not the next, would it be fair for that next state to sue over increased possession of horses? The federal government is supposed to regulate trade between the states, not crime.
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Originally Posted by Snow-i
Thats what the courts are for, is it not?
I don't see the conflict though – go to courts, cite law.
Originally Posted by Snow-i
I'm not sure they do, as the constitution has no provisions for the regulation of controlled substances. There is also no constitutional requirement that the federal government preempt all state's laws with federal ones, only the ability (not requirement) to do so.
In this case, I think the Feds have been exercising that ability for decades now.
Originally Posted by Snow-i
I would like to see the numbers on that one.
Fair point. I imagine nothing will be presented until court, if at all.
Originally Posted by Snow-i
There is no doubt that the laws of one state affect another. The question is whether or not, in a free country, that one state should be responsible for the crimes of those who travel in and out of that state.
I see what you're saying. I need to give this thought.
Originally Posted by Snow-i
My answer is a big fat no, else there's no point in having state governments at all as every law (not just pot laws) have the same effect.
I would say that the knock-on effect of laws are not created equal (ex: speed limits)
Originally Posted by Snow-i
If it's legal to own horses in one state, but not the next, would it be fair for that next state to sue over increased possession of horses? The federal government is supposed to regulate trade between the states, not crime.
In these cases, trade and crime are intertwined, however.
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A relevant case from my neck of the woods. Think about the INSANITY of someone doing life in prison for non-violent marijuana charges!
Maybe it was the billboard placed near his mansion. Maybe it was the letter-writing campaign. Maybe it was the nearly 400,000 signatures on a Change.org petition. Or maybe it's the throngs marijuana-legalization advocates gearing up for Missouri's 2016 election.
Whatever the reason, Governor Jay Nixon now says he'll take a "hard look" at the case of Jeff Mizanskey, the only Missouri prisoner serving a life sentence for marijuana-only charges.
"It's a very serious amount of time," Nixon told KMBC-TV. "If the laws change after someone is sentenced, then you want to give those things a close look."
Mizanskey was busted twice with relatively modest amounts of marijuana in 1984 and 1991, but his third arrest in 1993 -- for being involved in purchasing approximately six to seven pounds of bud -- made him a three-time drug offender under Missouri's Prior and Persistent Drug Offender statute. The law mandates life without parole regardless of whether the drug crimes were violent or not.
However, due to a sweeping criminal code reform bill that became law in May, the Prior and Persistent Drug Offender statute will be gone as of January 1, 2017. That change in criminal law appears to be what Nixon was referring to in the interview when he said, "If the laws change after someone is sentenced, then you want to give those things a close look." (Daily RFT has reached out to Nixon's office for comment.)
But it's worth noting that Nixon has historically shown zero interest in helping Mizanskey. Last year, a reporter asked him if he would take President Barack Obama's changing stance on pot as an opportunity to grant the 61-year-old grandfather clemency.
Nixon (as is his style) evaded the question with the oratorical grace of a water buffalo falling down an escalator:
"Certainly the president is entitled to his opinion, but I'll keep my executive authority vis-à-vis the folks in our district -- that's something we do at the state level," said the governor. "But we're constantly looking at areas where we can balance, shall we say, the scales of justice, but my sense is that we're busily engaged in the last three weeks of the legislative session on a number of things, but we'll go through our regular process and look through all petitions for clemency, as well as pardons."
When Daily RFT then asked Nixon if he thought it was "just" for a person to serve a life without parole sentence for a nonviolent offense, his answer was marginally more coherent but equally evasive.
"I think each case is separate, and we look at the entirety of their record and their cases, and we have a process in place to review all that. So I don't just pick a single act or occurrence out. We look at what the complete history is, and we'll give all of these a full and thorough review."
Yet, when Nixon made the unprecedented move in late December 2014 to pardon nine nonviolent offenders, Mizankey wasn't one of them.
Since Riverfront Times broke Mizanksey's story two years ago, the baffling injustice of imprisoning a three-time, nonviolent pot offender for life has drawn national and international coverage, and local marijuana legalization group Show-Me Cannabis used Mizanskey as a symbol for the enduring harm caused by Missouri's war on drugs.
Gov. Nixon Says He'll Review Why Jeff Mizanskey Is Serving a Life Sentence for Pot | Riverfront Times
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Originally Posted by The Final Dakar
I don't see the conflict though – go to courts, cite law.
Cite federal criminal law? The plaintiff state would have no standing to enforce it (except where explicitly allowed by federal law). Even if they were to win this lawsuit, the battle would only be about a third done. Colorado is not named in this lawsuit (the feds are the defendants). Colorado would then be able to sue the federal government as unconstitutionally overreaching, as no legal interstate commerce for pot is allowed by CO's state laws.
In this case, I think the Feds have been exercising that ability for decades now.
But there is still no requirement that they must preempt, only that they can.
Fair point. I imagine nothing will be presented until court, if at all.
I imagine we'll find the numbers to be not quite so headline worthy, and that this lawsuit is politically motivated. Just speculation on my part, though. Basis: If they would sway public opinion the plaintiff states would have released them.
I would say that the knock-on effect of laws are not created equal (ex: speed limits)
I absolutely agree, but there's no precedent on "where to draw the line" and if this lawsuit were to succeed, that line would have been drawn arbitrarily because "drugs". I don't think many judges would want to put their name on such a "line" without strong precedent. They would be accused of legislating from the bench, of sorts.
In these cases, trade and crime are intertwined, however.
I believe that statement to be true in any case.
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Originally Posted by Snow-i
Cite federal criminal law? The plaintiff state would have no standing to enforce it (except where explicitly allowed by federal law). Even if they were to win this lawsuit, the battle would only be about a third done. Colorado is not named in this lawsuit (the feds are the defendants). Colorado would then be able to sue the federal government as unconstitutionally overreaching, as no legal interstate commerce for pot is allowed by CO's state laws.
Fascinating. At which point, in the future more states may have legalized it, or, even better, the Fed will have. This suit does sound like a waste of effort.
Originally Posted by Snow-i
But there is still no requirement that they must preempt, only that they can.
I'm thinking the move here is OK trying to force them to pre-empt. Much like border states trying to force the Feds on matters of immigration. From that view, this suit is nice because it avoids adding laws and moves right to 'enforcing the laws that already exist.'
Originally Posted by Snow-i
I imagine we'll find the numbers to be not quite so headline worthy, and that this lawsuit is politically motivated. Just speculation on my part, though.
I'm not sure I agree.. It can very much looks like the opposite: This suit is political poison for those who champion state's rights. But I think I get what you're saying: They're trying to interfere in Colorado's laws because they don't like marijuana. I'm not that cynical, in this case.
Originally Posted by Snow-i
Basis: If they would sway public opinion the plaintiff states would have released them.
My guess is they don't have good, hard scientific numbers. They just have some raw data that looks bad.
Originally Posted by Snow-i
I absolutely agree, but there's no precedent on "where to draw the line" and if this lawsuit were to succeed, that line would have been drawn arbitrarily because "drugs". I don't think many judges would want to put their name on such a "line" without strong precedent. They would be accused of legislating from the bench, of sorts.
Legislating from the bench is such a shit argument. Someone has to act as final arbiter, and it my understanding that's what the legislative branch is there for, as the third check. Assuming a judge did act when they should not (i.e., they don't have jurisdiction), I wouldn't call that 'legislating from the bench' I'd just call it overstep of authority.
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BTW, I'm kinda sad we got no subego or Shaddim appearances. I'm certainly interested in your 2¢.
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Originally Posted by The Final Dakar
BTW, I'm kinda sad we got no subego or Shaddim appearances. I'm certainly interested in your 2¢.
They were going to, but then they got high.
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Originally Posted by Snow-i
They were going to, but then they got high.
Topical and timely. Kudos, sir.
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That's more or less the answer.
I don't really have much to add, though appreciate the invitation.
I don't see any legit basis whatsoever for Federal involvement unless it pertains to interstate commerce.
Whiny red states need to shut up.
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I'm doing research in an attempt to be more interesting.
This wasn't what I was looking for, but is interesting nonetheless. According to NORML, if you move 60,000 kilos of creeper in a year, the Feds can put you up for the death penalty.
That's gonna harsh your mellow.
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Originally Posted by subego
That's more or less the answer.
I don't really have much to add, though appreciate the invitation.
I don't see any legit basis whatsoever for Federal involvement unless it pertains to interstate commerce.
Whiny red states need to shut up.
If Federal Law says marijuana is illegal, why does federal supremacy not apply?
Are there other examples of where this dichotomy regarding the law already exists?
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My understanding is it does. These states are openly flaunting federal law. The only reason it's happening is because the JD has so far chosen to stay out.
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What I'm curious about is the set of legal precedents which made alcohol need a constitutional amendment, while pot is just "whatever".
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Originally Posted by subego
What I'm curious about is the set of legal precedents which made alcohol need a constitutional amendment, while pot is just "whatever".
We need a militant pothead to come in here and give us a refresher. I seem to recall hemp undermining cotton being one of the issues. Also, racial stuff.
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Originally Posted by subego
My understanding is it does. These states are openly flaunting federal law. The only reason it's happening is because the JD has so far chosen to stay out.
Which goes back to my point, they're being a dick about it, but the state totally has a point. Like with immigration. Can you force enforcement?
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My understanding is it's just like any other case, only writ large. The prosecutor has total discretion over whether charges are filed. Whether the case is legit has no bearing.
So, the state has a point, to which the JD can go "lalalalala".
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Originally Posted by subego
My understanding is it's just like any other case, only writ large. The prosecutor has total discretion over whether charges are filed. Whether the case is legit has no bearing.
So, the state has a point, to which the JD can go "lalalalala".
At which point I imagine charges would be filed he wasn't doing his job or something.
Definitely sounds like a fruitless endeavor.
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Well, "total discretion" is more the reality than what the law says.
You can accuse a prosecutor of not doing their job, but they have a stack of ready-made excuses. The go to would be "proper allocation of resources".
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Originally Posted by subego
You can accuse a prosecutor of not doing their job, but they have a stack of ready-made excuses. The go to would be "proper allocation of resources".
Or funding. Just like immigration!
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Originally Posted by The Final Dakar
We need a militant pothead to come in here and give us a refresher. I seem to recall hemp undermining cotton being one of the issues. Also, racial stuff.
When I was trying to list out what I've heard over the years, most of it seems to boil down to money.
I recall the racism angle as well, but I wouldn't be surprised if the people who drove that spike in the hardest had some financial interest in the outcome.
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I'm not sure how racism could figure in. From what I've heard, weed is compatible with all races, and all three genders.
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Originally Posted by reader50
I'm not sure how racism could figure in. From what I've heard, weed is compatible with all races, and all three genders.
See: Gun Laws, California; Sentencing, Drug Law;
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Originally Posted by reader50
I'm not sure how racism could figure in. From what I've heard, weed is compatible with all races, and all three genders.
But the number of people arrested for its distribution and possession are vastly skewed, IMO mainly because of socioeconomic factors and as an emergent property; race.
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Originally Posted by subego
I don't really have much to add, though appreciate the invitation.
I don't see any legit basis whatsoever for Federal involvement unless it pertains to interstate commerce.
Whiny red states need to shut up.
what he said
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"I have a dream, that my four little children will one day live in a
nation where they will not be judged by the color of their skin,
but by the content of their character." - M.L.King Jr
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Originally Posted by reader50
I'm not sure how racism could figure in. From what I've heard, weed is compatible with all races, and all three genders.
Anti-marijuana laws were based on racism, not science
Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics (an early predecessor of the DEA), was one of the driving forces behind pot prohibition. He pushed it for explicitly racist reasons, saying, "Reefer makes darkies think they're as good as white men," and:
"There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others."
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Originally Posted by Cap'n Tightpants
what he said
Understood.
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Originally Posted by Snow-i
But the number of people arrested for its distribution and possession are vastly skewed, IMO mainly because of socioeconomic factors and as an emergent property; race.
I hadn't considered the skewed enforcement statistics, because I thought those applied to all petty crime enforcement.
Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics (an early predecessor of the DEA), was one of the driving forces behind pot prohibition. He pushed it for explicitly racist reasons, saying, "Reefer makes darkies think they're as good as white men," and:
"There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others."
I had NO IDEA. So that's the reason people listen to jazz. subego is an entertainer, perhaps he can tell us if this is true. Do white women seek sex with entertainers when you play satanic music after smoking pot?
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Jazz always got a bad rap because it came from negroes. You might see a more modern parallel with the 'gangsta rap' scare of the 90s. Racism: It can do anything™
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Originally Posted by reader50
I hadn't considered the skewed enforcement statistics, because I thought those applied to all petty crime enforcement.
BTW, not even regarding that, my point was no one can explain why the sentencing mins between crack and powder cocaine are any different other than racism and poverty.
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Originally Posted by reader50
I had NO IDEA. So that's the reason people listen to jazz. subego is an entertainer, perhaps he can tell us if this is true. Do white women seek sex with entertainers when you play satanic music after smoking pot?
I have yet to experience this personally, but still have hope.
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Originally Posted by The Final Dakar
BTW, not even regarding that, my point was no one can explain why the sentencing mins between crack and powder cocaine are any different other than racism and poverty.
I always assumed there was an inertia issue.
Crack is "worser" from an applied standpoint, if not from raw ingredient standpoint.
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Originally Posted by subego
I always assumed there was an inertia issue.
Crack is "worser" from an applied standpoint, if not from raw ingredient standpoint.
Then why did they reform sentencing just a few years ago?
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I'm not sure how this isn't consistent with my claim.
Crack started in the 80's. The sentencing isn't "rationalized" until 30 years later. That's the original position racking up 30 years of inertia.
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Oh... I think I get your question.
RL is intruding though. I won't be able to answer until later.
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Originally Posted by subego
I'm not sure how this isn't consistent with my claim.
Crack started in the 80's. The sentencing isn't "rationalized" until 30 years later. That's the original position racking up 30 years of inertia.
Alright, maybe we're getting crossed-streams here. rationalize implies they made up a reason to retcon the racism. In which case we're in agreement its origin stems from racism.
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I meant "rationalize" as "the opposite of irrational".
I put it in quotes because it's still pretty irrational.
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Stop hanging around here, Mr. RL
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Okay! Real life is finished!
While I'm sure there was a racism angle, independent of the race of the user, crack is more dangerous than cocaine. There's nothing inherently unreasonable about the idea "the more dangerous the substance, the harsher the penalty". That had to be a big motivator for the disparate policy.
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Originally Posted by subego
Okay! Real life is finished!
While I'm sure there was a racism angle, independent of the race of the user, crack is more dangerous than cocaine. There's nothing inherently unreasonable about the idea "the more dangerous the substance, the harsher the penalty". That had to be a big motivator for the disparate policy.
On what basis? Chemically the active ingredient is the same. In fact "crack" is essentially powder cocaine cut with baking soda and cooked. But at the end of the day it's still cocaine.
Crack cocaine is popularly thought to be the most addictive form of cocaine.[1] However, this claim has been contested: Morgan and Zimmer wrote that available data indicated that "...smoking cocaine by itself does not increase markedly the likelihood of dependence.... The claim that cocaine is much more addictive when smoked must be reexamined."[10] They argued that cocaine users who are already prone to abuse are most likely to "move toward a more efficient mode of ingestion" (that is, smoking).
The intense desire to recapture the initial high is what is so addictive for many users.[2] On the other hand, Reinarman et al. wrote that the nature of crack addiction depends on the social context in which it is used and the psychological characteristics of users, pointing out that many heavy crack users can go for days or weeks without using the drugs.[11]
10 Morgan, John P.; Zimmer, Lynn (1997). "Social Pharmacology of Smokeable Cocaine". In Reinarman, Craig; Levine, Harry G. Crack in America: Demon Drugs and Social Justice. Berkeley, Ca.: University of California Press.
Crack cocaine - Wikipedia, the free encyclopedia
The previous 100-to-1 sentencing disparity between "powder" vs "crack" cocaine makes about as much sense as having the same for "liquid" water vs "ice" water if H2O was deemed illegal.
OAW
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Originally Posted by OAW
On what basis? Chemically the active ingredient is the same. In fact "crack" is essentially powder cocaine cut with baking soda and cooked. But at the end of the day it's still cocaine.
Crack cocaine - Wikipedia, the free encyclopedia
The previous 100-to-1 sentencing disparity between "powder" vs "crack" cocaine makes about as much sense as having the same for "liquid" water vs "ice" water if H2O was deemed illegal.
OAW
I feel I should reiterate I'm not defending the disparity in sentencing, I'm trying to explain where it originated.
What makes crack more dangerous than powder is it's more difficult to use responsibly. You crash harder on it, which makes a binge more appealing, and it's cheaper, which more readily enables binging.
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Crack "loads up" faster in your system and the high from it lasts a shorter length of time, as well.
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"I have a dream, that my four little children will one day live in a
nation where they will not be judged by the color of their skin,
but by the content of their character." - M.L.King Jr
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In terms of social impact, very likely.
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"I have a dream, that my four little children will one day live in a
nation where they will not be judged by the color of their skin,
but by the content of their character." - M.L.King Jr
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Even if it is, the "ice vs. water" analogy is still valid.
I can be way more dangerous with a bucket of frozen water than I can with liquid water, but if we had an epidemic of people getting clocked by ice bricks, our policy would need to reflect the ease with which one can transition into the other.
Not that you're disagreeing, but I felt it needed to be pointed out.
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