Newsom's Pardons, Oregon Decriminalization, and the Border

All linked; nip these issues in the bud, before a crisis becomes a catastrophe

By Andrew R. Arthur on December 2, 2020

There has been a lot of drug news lately, some of which I have reported. On November 10, California Gov. Gavin Newsom (D) issued six pardons for aliens convicted of drug trafficking crimes who are facing removal, which I analyzed in a post Monday. Both Border Patrol agents and CBP officers saw an uptick (in the latter case dramatic) in categories of drug seizures last month. And Oregon voters have opted to decriminalize small amounts of many street drugs. Each is inextricably linked — and will make a bad situation at the border (and north and south thereof) worse.

I have written extensively about Newsom's pardons, but, pertinently, two of the aliens receiving them had been convicted of violating California laws involving marijuana.

In 2016, voters in the Golden State passed Proposition 64, which decriminalized the personal possession and use of marijuana, and also allowed those 21 years of age and over to possess and grow specified amounts of marijuana for recreational use. The convictions for the aliens ostensibly removable due to their involvement with that drug had convictions that predated such decriminalization, likely leading to Newsom pardoning them.

The citizens of California have (thus far) stopped well short of their neighbors directly to the north. Measure 110, which passed on Election Day in Oregon, decriminalizes possession of less than a gram of heroin, two grams of meth, 40 units of LSD ("acid"), 12 grams of oxycodone, two grams of cocaine, 12 grams of psilocybin (most commonly found in "magic mushrooms"), and one gram (or five pills) of MDMA (popularly known as "ecstasy" and/or "molly" for those in the know).

That is not to say that these drugs are legal in the Beaver State, but the offense will soon be a "class E violation", similar to a speeding ticket. To sweeten the deal, Measure 110 is supposed to establish drug addiction treatment and recovery programs, to be funded in part by the state's marijuana tax revenue and "state prison savings". In other words, the state decriminalized drugs purportedly to get users off of them.

Speaking of the aforementioned tax revenue, it has been significant. Adults 21 and older have been able to purchase up to seven grams of marijuana since October 2015, with a 25 percent tax starting in January 2016. In FY 2020, Oregon received $133,150,349 in tax revenue from marijuana — a figure that has risen coinciding with pandemic shutdowns.

The Danger of These Drugs

The federal National Institute on Drug Abuse refers to MDMA, meth, and LSD (among others) as "club drugs", which "tend to be used by teenagers and young adults at bars, nightclubs, concerts, and parties." Not to be a scold, but it goes without saying, however, that each (as well as the other drugs decriminalized) can have significant deleterious effects.

According to the most recent data from the CDC, there were 67,367 drug overdose deaths in the United States in 2018.

The National Center for Health Statistics (NCHS) reports that the age-adjusted rate of drug overdose deaths involving cocaine increased from 1.4 per 100,000 standard population in 1999 to 2.5 in 2006, then decreased to 1.3 in 2010 and 1.5 in 2011. That's the good news. Here's the bad: From 2012 through 2018, the rate increased on average by 27 percent per year to a rate of 4.5 in 2018.

That death rate for so-called "psychostimulants with abuse potential" (such as methamphetamine) rose using the same scale from 0.2 in 1999 to 3.9 in 2018 (it had increased 30 percent per year between 2012 and 2018), as per NCHS. Heroin overdose deaths went from 0.7 in 1999 to 4.7 in 2018 (it had actually been higher, 4.9, in 2016 and 2017). Drug overdose deaths involving natural and semisynthetic opioids (like oxycodone), which were 1.0 in 1999, were 3.8 in 2018 (again, down from 4.4 in 2017).

The pandemic has likely made all of this worse. NCHS predicts that drug overdose deaths will increase 13.2 percent when the final count is completed between April 2019 and April 2020 (and up 14.1 percent in Oregon for what it's worth).

Psilocybin does not appear to be anywhere near as deadly (at least according to The Guardian (UK)), but the DEA states that it causes hallucinations (likely the intent of the user), and also nausea, vomiting, and in large doses, panic attacks and psychosis, and yes, death.

With respect to MDMA, that agency reports that the drug can lead to "[e]uphoria, empathy, reduced inhibition" (again, likely the purpose of use), but also "anxiety, depression, paranoia, severe dehydration", as well as hyperthermia (an increase in body temperature), which in turn can trigger "liver, kidney and cardiovascular failure and death".

As for LSD, explains that "there is no known lethal dose", however: "Death is often due to a direct injury while under LSD influence." In addition: "Overdose can lead to severe psychosis."

Then, there is marijuana. For those of you who "tried" or "experimented with" the drug in the 1980s through early 2000s, this is not the "Maui Wowie" or "Acapulco Gold" of your youth. The DEA explains: "Most states that have legalized marijuana have placed no limits on Tetrahydrocannabinol (THC) potency of marijuana or its associated concentrate products. Consequently, THC potency continues to increase, as does demand."

Why is that a problem? Research from 2018 published in Missouri Medicine (available on the NIH website) captioned "The Problem with the Current High Potency THC Marijuana from the Perspective of an Addiction Psychiatrist", explains:

The marijuana of old used to be classified as a hallucinogen and was thought to not cause addiction because there was no identified withdrawal syndrome. This has changed and with the increased potency of THC there is a definite recognized withdrawal syndrome which includes increased anger, irritability, depression, restlessness, headache, loss of appetite, insomnia and severe cravings for marijuana. It has been reported that 9% of those who experiment with marijuana will become addicted; 17% of those who start using marijuana as teenagers will become addicted; and 25–50% of those who use daily will become addicted.

In addition, that research indicates, regular use as an adolescent makes you stupider (my term, but you can look at the stats), and usage generally "is also correlated with creating or worsening many mental health problems including anxiety, depression, psychosis, and suicidal ideation."

Keep in mind, this is not my area of expertise, and I trust that there are contrary studies that will tell you that marijuana is good for everything from bunions to bone cancer. It is illegal under federal law, however, so at some point there needs to be a real national dialogue on this — which, as I will explain, Congress has kicked down the road to this point.

Specifically, there is a certain dissonance between the federal government's take and that of states like California and especially Oregon as it relates to such drugs. Simple possession of small amounts of controlled substances is a misdemeanor under the Controlled Substances Act (CSA), and the penalties climb (really high) for trafficking in them. As the Congressional Research Service (CRS) has noted, "when states 'legalize' a federally controlled substance such as marijuana, the sole result is to repeal or limit criminal controls of the substance under state law." (Emphasis in original.)

Heroin is a schedule I controlled substance (that is, it currently has no "accepted medical use and a high potential for abuse") as are marijuana, MDMA, LSD, and psilocybin. Cocaine and oxycodone are schedule II controlled substances, meaning they have "a high potential for abuse, with use potentially leading to severe psychological or physical dependence".

Despite the presence of marijuana on the CSA list as a schedule I controlled substance, Congress has in recent years attached riders to appropriations bills to prevent DOJ from using funds to prevent states and territories with "medical marijuana" laws (46 states, the District of Columbia, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, and Puerto Rico under the most recent iteration) "from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana."

Of course, no state has gone as far as Oregon when it comes to drug decriminalization, so it remains to be seen what exactly DOJ under president-elect presumptive Joe Biden — or the 117th Congress for that matter — will do in response. More likely than not, however, Congress will do nothing, and I seriously question whether the new DOJ will do much, either.

I offer this opinion (and it is little more than that) not simply on political grounds (both of Oregon's senators and four out of five of its members of Congress are Democrats, and Measure 110 passed with almost 58.5 percent of the voters in favor), but practical ones, as well.

Ours is a federal republic, and as CRS has noted: "States may generally legislate on all matters within their territorial jurisdiction." Plus, most drug convictions are at the state level, so most of what happens in Oregon will likely stay in Oregon. Until it doesn't.

Drugs on the Border

Which brings me to the border. Last month, CBP (both CBP officers — CBPOs — at the ports and Border Patrol agents) seized 11,058 pounds of cocaine, 1,454 pounds of heroin, 22,591 pounds of methamphetamine, and just less than 23 tons of marijuana (45,974 pounds, to be exact).

CBP also seized 16,365 pounds of "other" drugs — likely many of the "other" drugs Oregon decriminalized.

Want proof? On November 16, CBPOs at the Presidio, Texas, port of entry arrested a 55-year-old Mexican citizen in possession of "one firearm with three magazines, $81,000 in unreported U.S. currency, marijuana", and just under three ounces of ecstasy. In FY 2020, just one CBP field office (Miami/Tampa) nabbed 149 pounds of ecstasy.

On Friday, Border Patrol agents at the Highway 52 checkpoint near El Centro, Calif., located "14 grams of marijuana, 580 grams of psilocybin, 18 grams of MDMA and 16 doses of LSD" in a Chevy Traverse driven by a U.S. citizen. They must be popular drugs in the area (and Chevys popular vehicles), because agents at the S2 highway checkpoint near Ocotillo, Calif., on Saturday night stopped a Blazer carrying packages with "3 grams of marijuana, 2.6 grams of cocaine, 13 grams of psilocybin, 2 pills of MDMA and a trace amount of LSD".

Don't expect this month's haul to be much less, or for a decline in the smuggling of those drugs in any month in the foreseeable future. I seriously doubt that any of those drugs were marked as intended for shipment to Oregon, or to any of the states or territories that have decriminalized marijuana (for "medical use" or otherwise), but decriminalization will likely increase the demand for — and consequently the illicit supply of — them.

I am not an Oregonian, so I will limit my opinions on the logic of the voters there. But, as CRS noted in 2019: "Mexican transnational criminal organizations [TCOs] are the major suppliers and key producers of most illegal drugs smuggled into the United States." According to CNN, "Mexican drug cartels take in between $19 billion and $29 billion annually from drug sales in the" United States. That outlet further notes that a drug war between the cartels and the Mexican government has been dragging on for almost 14 years.

"War" is not an understatement in this case. The Council on Foreign Relations reported recently that there are more than 200 drug trafficking cells in Mexico and that, since 2006, an estimated 150,000 lives have been lost in that country to what it terms "organized criminal violence". Most shockingly: "Mexican cartels killed at least 130 candidates and politicians in the lead-up to Mexico's 2018 presidential elections."

That said, Asian TCOs are the primary source of MDMA in the United States (shipping it in from labs in China and Canada), according to the DEA. Those Asian TCOs reportedly also "operate indoor marijuana grow houses in states with legal personal-use or medical marijuana laws."

Not that it makes much difference which TCOs supply the drugs, as that agency explains:

Due to China's currency control restrictions, Asian TCOs have taken advantage of the availability of U.S. dollars belonging to Mexican and Colombian TCOs in the United States by acquiring the U.S. dollars in exchange for the payment of Colombian/Mexican pesos in the respective drug source country.

So all the bad guys get rich.

From my experience as an INS prosecutor and immigration judge, those Asian TCOs are as dangerous (and in some instances, more) as their Mexican and Colombian counterparts. Moreover, according to the FBI, in addition to drug trafficking and alien smuggling: "Asian criminal enterprises conduct traditional racketeering activities normally associated with organized crime — extortion, murder, kidnapping, illegal gambling, prostitution, and loansharking." Money is fungible, and profits from one criminal enterprise fuel others.

In any event, and despite all of those state cannabis decriminalization efforts: "Black market marijuana production by local, national, and transnational criminal trafficking organizations continues to increase, predominantly in states that have legalized marijuana." Hence, the large loads of dope that CBP continues to seize despite decriminalization efforts throughout the United States.

To put a pin in it, though, on the whole, drugs are bad for you, and breed crime in this country and abroad. Despite these facts, decriminalization efforts have continued in this country for marijuana, and in the case of Oregon, so-called "hard drugs" as well. Given the fact that such efforts in one state have generally spread, what happens in Portland will likely soon happen in Pasadena, and then Provo, as well.

This will create even more work for CBP, who have to play a cat-and-mouse game with cartels and other TCOs to find and seize drugs on their way into the United States. Not only do such seizures prevent the problems associated with drug usage generally in this country (and especially overdose deaths), but they also cut into the profits of the criminal organizations that threaten societies abroad, as well.

If Biden administration policies prompt a new surge of migrants to the border (as I have suggested they will), that job will get more difficult as CBP's limited resources are stretched further to tend to the migrants they have apprehended. More drugs will flood in, and states and localities will be unable (often by law) to take up the slack.

Policymakers may want to take these facts into consideration before they act, and nip these problems in the bud. Based on past experience, I am not hopeful they will do so until a crisis becomes a catastrophe.