Law Enforcement

In Illinois, the war on drugs has delivered yet another blow to citizens' privacy rights. In the Land of Lincoln, it is illegal for citizens to record or videotape Illinois police in public, yet the Illinois legislature last month gave police the right to engage in those very same activities -- without a warrant -- during drug investigations.

On July 24, citing police safety and the need for quicker drug arrests, Gov. Pat Quinn (D) signed into law House Bill 4081, which exempts police doing drug investigations from the provisions of the state's eavesdropping law. It also allows them to audio or videotape drug suspects without having to get a warrant.

Under the bill, sponsored by state Reps. Jehan Gordon (D-Peoria) and William Haine (D-Alton), the normal requirement of a warrant based on probable cause is replaced by the lower and constitutionally-suspect requirement of only reasonable cause. In a further victory for the imperatives of the drug law enforcement, police will be able to bypass judicial scrutiny of their need to record someone and instead will merely have to obtain prior approval from a prosecutor to listen in on suspected drug conversations.

"The world of illicit drugs moves very quickly," explained Terry Lemming, an Illinois State Police commander, during a May hearing on the bill. "It's very difficult to find a judge in the middle of the night. I didn't see the sense in spending all these hours drafting a court order when I could have already gone out and arrested a guy selling on the corner -- and that's the feeling of many narcotic officers."

Riverside, Illinois, Police Chief Tom Weitzel told the Chronicle the new law was desperately needed. Weitzel is a member of the Illinois Association of Chiefs of Police, who, along with his comrades, fought for 14 years to get the law passed.

"The law is critical to undercover narcotic officers for several reasons," he wrote in an email. "First, it's an officer safety issue because many times backup teams are blocks away when drug transactions either take place in cars, within homes or apartments, or just on the streets."

Weitzel even went as far as to say the law would benefit defendants, too.

"The legislation will help secure better evidence for prosecutors and protect suspects from police misconduct, including the fact the same audio recordings made by police can be used by defendants who claim entrapment," he argued.

But while the bill is now law, not everyone is happy about it. Rumblings of discontent have been heard from civil rights advocates, legal experts, and opposing lawmakers.

State Sen. Dan Kotowski (D-Park Ridge) argued during hearings on the bill that if judicial responsiveness is a problem for police, then the fix would be to make judges more available for warrant requests -- not to take them out of the loop.

"I'm struggling with taking away where you'd go to get a judge's approval to have a wiretap," he said.

Under the new law, judges are not completely frozen out of the process, but their role is limited to determining whether evidence gained from a wiretap can be admitted at trial.

"I understand the desire to enhance law enforcement tools to deal with crime, and I am certainly on the side of law enforcement, but it's a very slippery slope we go down when we start removing safeguards that has historically exist to make sure certain tools not be used inappropriately," state Sen. Kwame Raoul (D-Chicago) told the Chicago Tribune.

State Sen. Michael Nolan (D-Elgin) also weighed in on the matter. Nolan's dissatisfaction with the bill is the fact the new law deals with reasonable cause as the standard for having private conversations recorded, as opposed to probable cause, which is the standard bearer for the integrity of the law.

"This legislation does not base that determination of admissibility on 'probable cause,'" he said. "This is basically upending the Fourth Amendment."

The ACLU of Illinois had a similar reading. Its spokesman, director of communications and public policy Ed Yohnka, told the Chronicle the new law was not only constitutionally suspect but also unnecessary.

"In all the years that Illinois law enforcement worked for this change, they never been able to point to a particular need for this new power. In many years, we have seen drug related arrests in Illinois rise over a yearly period without this new authority -- which begs the question: is this power really necessary?" he asked.

"The legislature should have left things alone because judges act as a neutral third party and they can already act fast enough," Yohnka continued. "Our personal conversations are the most intimate we have and government should make certain it is necessary to intrude before engaging in eavesdropping."

For Yohanka, the new law doesn't pass the smell test. He noted that current law already allows police to wiretap or do audio recording in an emergency and suggested the real intent is to allow police to more easily listen in on targets not directly involved with drug trafficking, targets merely associated with a prime suspect.

"The current law permits an officer to conduct warrantless wiretapping or audio-recording if police or citizens were in imminent danger," Yohanka said. "The creation of this new authority suggests this is not about protecting police officers."

What makes the new law all the more galling to some is that police, who can now wiretap drug suspects without a warrant, have a habit of arresting members of the public who do the same thing to them. Under current Illinois eavesdropping law, citizens have the right to video a police officer making a public arrest, but a person cannot record an audio of police without permission.

That law is now under review by the state's appellate courts in a case arising from the 2009 arrest of self-employed artist Christopher Drew. When police arrested him for selling art on the street without a proper permit, they discovered him recording the encounter. They then charged him with felony eavesdropping for recording them without their permission.

Drew went public and fought to have the law declared illegal and earlier this year he won a partial victory when Circuit Court Judge Stanley Sacks declared it unconstitutional. Sacks ruled that the law criminalized innocent conduct and violated due process. But state prosecutors appealed the ruling and vowed to keep it on the books.

One standard for police, another for citizens. Police can record private conversations without a warrant, but citizens face years in prison if they record police in the line of duty -- at least until the Illinois courts definitively rule that portion of the eavesdropping law unconstitutional. Meanwhile, look for legal challenges to the new law allowing police to bypass judges and the warrant process in their never-ending war on drugs.

On Sunday, dozens of Mexican activists led by poet Javier Sicilia crossed into the US at San Diego to begin a weeks-long Caravan for Peace and Justice that will take them more than 6,000 miles through 27 cities in a bid to focus attention on the drug war's terrible toll in both countries. They were met there by representatives of the more than 100 US organizations that are joining and supporting the Caravan as it makes its way toward Washington, DC.

"Our purpose is to honor our victims, to make their names and faces visible," Sicilia said. "We will travel across the United States to raise awareness of the unbearable pain and loss caused by the drug war -- and of the enormous shared responsibility for protecting families and communities in both our countries."

But it's not just about honoring the victims of the drug war; the Caravan also explicitly seeks policy changes on both sides of the border, and not only to drug policy. These policy areas and the Caravan's recommendations include:

Drug War policies: We propose the need to find a solution, with a multidisciplinary and intergenerational approach that places individuals, and their welfare and dignity, at the center of drug policy. We call on both the Mexican and the U.S. community to open and maintain a dialogue about alternatives to Prohibition based on evidence, and which is inclusive in its considerations of the diverse options for drug regulation.

Arms trafficking: We propose that the President of the United States immediately prohibit the importation of assault weapons to the United States. Assault weapons are often smuggled into Mexico, and have also been used too many times against innocent civilians in the US. We propose giving authorities effective regulatory tools and adequate resources to halt arms smuggling in the border regions, especially in border states like Arizona and Texas.

Money laundering: We call for governments on both sides of the border to take concrete steps to combat money laundering. We propose that financial institutions be held accountable for preventing money laundering through increased government surveillance, investigations, fines and criminal charges. We also call for the Treasury Department to immediately implement Congress’ 2009 call to close the “prepaid/stored value cards” loophole.

US foreign aid policy: We call for a change from the United States' "war" focus to one of human security and development that contemplates promoting the healing of Mexico's torn social fabric. We propose the immediate suspension of US assistance to Mexico's armed forces. The "shared responsibility" for peace that both governments share must begin with each country complying with its own respective national laws.

Immigration: We call for a change in the policies that have militarized the border and criminalized immigrants. These policies have generated a humanitarian crisis driven by unprecedented levels of deportations and incarceration of migrants. In addition, these policies have also inflicted immeasurable environmental damage. We call for protecting the dignity of every human being, including immigrant populations that have been displaced by violence who are fleeing to the US seeking safe haven and a better life.

The Caravan is a natural outgrowth of Sicilia's Mexican Movement for Peace and Justice with Dignity (MMPJD), which he formed after his son and several comrades were kidnapped and murdered by drug cartel gunmen in Cuernavaca in March 2011. It is designed to put names and faces on the estimated 60,000 dead, 10,000 disappeared, and 150,000 displaced by the prohibition-related violence pitting the so-called cartels against each other and the Mexican state.

In Mexico, the MMPJD struck a deep chord with a population increasingly angered and frightened by the often horrific violence raging across the country. Caravans organized by the MMJPD crisscrossed the country last year before bringing 100,000 people to mass in Mexico City's huge national plaza, the Zocalo in June. The mass outpouring of grief and anger convinced President Felipe Calderon to meet with Sicilia, who brought along photos of some of the dead depicting them as happy, smiling human beings.

"The powers that be were trying to tell us that all those who were dying were just criminals, just cockroaches," Sicilia explained. "We had to change the mindset, and put names to the victims for a change."

On Sunday, Sicilia and the Caravan were met in San Diego by about 100 supporters from national groups such as the Drug Policy Alliance, Global Exchange, Law Enforcement Against Prohibition, the NAACP, the Washington Office on Latin America, and, as will be the case across the country, local immigrant rights, civil rights, religious, and drug reform groups.

"This movement brings together activists from both of our countries to shed light on the policies that have failed our families, neighbors, and nations," said Sicilia. "United, we will raise our voices to call for an end to a war on drugs that allows entire communities to become casualties, and we will demand a shift in attention to poverty and the lack of economic opportunity that helps breed the criminality."

"What we are trying to do is raise the level of conversation around this topic," said Global Exchange's Ted Lewis, one of the caravan's organizers. "We're trying to have a bi-national conversation and impact."

By Friday, the Caravan had reached Las Cruces, New Mexico, after first stopping in Los Angeles, Phoenix, and Tucson. In Los Angeles, the Caravan wooed Hollywood, seeking support from the film community as it seeks to shift public opinion against prohibitionist drug policies that wreak havoc in both countries.

"What unites us is grief for what Mexico has lost, which is peace," said Mexican filmmaker Alejandro Gonzalez Inarritu, the Oscar-nominated director of "Biutiful" and "Babel," who was among the Hollywood stars greeting the Caravan.

In Phoenix on Thursday, Sicilia and the Caravan had an unexpected encounter with Maricopa County Sheriff Joe Arpaio as they trekked to one of Arpaio's jails to see what the drug war looks like on the US side of the border. The feisty sheriff, who is notorious for his treatment of prisoners and anti-immigrant politics, got an earful from Sicilia, but didn't exactly roll over.

Sicilia chided Arpaio over the flow of American weapons into Mexico and the hands of the cartels and asked him to do a better job controlling the traffic, to which Arpaio retorted, "Control the flow of drugs."

Sicilia also urged Arpaio, who is under Justice Department investigation over his treatment of prisoners and illegal immigrants, to "be more human" in the way he handles people under his control. "We don't come in war but in peace to tell you that you have half of the responsibility for the war that there is in Mexico," he said. "I ask you whether treating migrants like dogs is a correct policy."

"I don't run the jails," Arpaio replied. [Ed: As noted above, Arpaio runs jails, and is being investigated for how prisoners are treated in them.]

Sicilia urged Arpaio to visit Mexico, but Arpaio demurred, saying that the cartels had a price on his head.

The Caravan for Peace is now less than one week into its journey across the county to Washington, DC. Organizers have not said yet whether they will seek a meeting with President Obama, but are planning on meetings on Capitol Hill. Between now and then, they hope the Caravan will succeed in raising consciousness among Americans about the toll of the drug war on both sides of the border. Whether policymakers will listen is an open question, but the media is certainly listening. Google lists 145 news articles about the Caravan so far. That's a good start.

The prohibitionist impulse is strong. When confronted with a newly encountered psychoactive substance, there are always special pleaders to sound the alarm and politicians willing to reflexively resort to the power of the ban. Whether it is something with serious potential dangers, like the "bath salts" drugs, or something much more innocuous, like khat, the mild stimulant from the Horn of Africa, doesn't seem to matter; the prohibitionist impulse is strong.

Kratom is a substance that falls on the more innocuous side of the psychoactive spectrum. It is the leaves of the kratom tree, mitragyna speciosa, which is native to Thailand and Indonesia, where the leaves have been chewed or brewed into a tea and used for therapeutic and social purposes for years. According to the online repository of psychoactive knowledge, the Vaults of Erowid, kratom acts as both a mild stimulant and a mild sedative, creates feelings of empathy and euphoria, is useful for labor, and is relatively short-acting.

Of course, any psychoactive substance has its good and its bad sides, but kratom's downside doesn't seem very severe. Erowid lists its negatives as including a bitter taste, dizziness and nausea at higher doses, mild depression coming down, feeling hot and sweaty, and hangovers similar to alcohol. There is no mention of potential for addiction, and while fatal overdoses are theoretically possible, especially with its methanol and alkaloid extracts, in the real world, ODing on kratom doesn't appear to be an issue. No fatal overdoses are known to have actually occurred.

On the other hand, some of kratom's alkaloids bind to opioid receptors in the brain, making it an opioid agonist, and it is now being sold in the West and used to treat pain, depression, anxiety,and opiate withdrawal. Sold in smoke shops, herbal supplement emporia, and on the Internet, it is now apparently being lumped in with synthetic cannabinoids and the "bath salts" drugs by treatment professionals, law enforcement, and others who make a habit of searching for scary new drugs.

Kratom is not listed as a banned substance in the 1961 Single Convention on Narcotic Drugs or its successor treaty, and has been banned in only a handful of countries, most ironically in Thailand itself. It was banned there in 1943, when then Thai government was taxing the opium trade and opium users were switching to kratom to aid in withdrawals and as a substitute.

Arrests for kratom possession have jumped in recent years, from more than 1,200 in 2005 to more than 7,000 in 2009, even though the Thai Office of the Narcotics Control Board recommended to the Justice Department in 2010 that it be decriminalized because of the lack of any perceivable social harms.

In the US, the DEA added kratom to its list of drugs of concern in 2010, although that doesn't mean that a federal ban is necessarily imminent. Salvia divinorum, for example, has been a drug of concern for more than a decade now, with no action taken. But while the feds haven't acted, there were efforts to ban kratom in several states in the US this year, although only Indiana actually succeeding in outlawing it. In Louisiana, age restrictions were placed on its purchase.

The experience of Iowa, where legislation to ban kratom is still pending, is illustrative of how bans are created. The Iowa effort happened after state Rep. Clel Baudler (R) heard about kratom on a radio program. Within two hours, he was moving to ban it.

"Kratom is a hallucinogen, addictive, and can be life threatening," he said at the time, in complete contradiction of all that is actually known about kratom.

It's not just states that are considering bans on kratom. Pinellas County, Florida, was about to enact one this week, but the prohibitionist bandwagon hit a bump in the road in the form of perennial drug war gadfly Randy Heine, owner of Rockin' Cards and Gifts in Pinellas Park, who told the Chronicle he had been selling kratom in his store since 1981.

Seeing what was coming down the pike, Heine alerted the Kratom Association, a group of users, producers, and vendors dedicated to keeping kratom legal, who flooded county commissioners with emails. He also addressed the commission itself.

"I have been selling kratom for over 30 years out of my store on Park Blvd. I challenge anyone to find any problem originating from my store selling kratom," he wrote in a letter made available to the Chronicle. "Do not lump in synthetic chemicals with an organic plant material. This is like comparing apples to oranges. I would like to see kratom be sold only to persons over the age of 18, similar to the proposal being made in our sister state of Louisiana."

In the conservative county, Heine also appealed to the ghost of Ronald Reagan in his letter to commissioners. What riles up the Reagan in him, Heine wrote, is "growing the bureaucracy by creating another board to regulate what I and others do in privacy of our own homes."

"I got letters back from two of the commissioners," said Heine. "They read my Ronald Reagan letter out loud, and one of the GOP commissioners thanked me for sharing my thoughts. The commission has now deferred this item so we can take a closer look at the issues involved."

Many of his kratom customers are using it as an opiate substitute, he said.

"We have a drug rehab place here, and my feeling is that a lot of their clients are purchasing kratom instead of methadone. It's competition; I'm taking away money," he said. "Some of my customers say methadone is worse than heroin and keeps you addicted. Kratom weans them off heroin. A lot of them say they just do less and less kratom until the craving stops. I have a couple of senior women who say they're tired of taking prescription pills, that they make them nutty, and kratom works for them."

Chronicle readers may recall that Pinellas County is where a drug reform-minded upstart Democratic candidate for sheriff is taking on either the scandal-plagued Republican incumbent sheriff or his challenger and predecessor, former Sheriff Everett Rice (the GOP primary is next week), whose supporters on the council were pushing the kratom ban. That Democrat, Scott Swope, is so good on drug policy that his candidacy persuaded Heine to drop his own bid for the sheriff's office.

"This looks like another unconstitutional intrusion into the lives of Pinellas citizens who aren't harming anyone," Swope said. "I've researched kratom and although there doesn't seem to be as much research available as cannabis, it appears to me to be a plant product that should not be banned. I think the purchase or possession of any of these things (cannabis, kratom, bath salts) by minors should not be allowed. Adults, however, should be free to do what they want as long as they aren't harming anyone else."

While Heine is currently bedeviled by the effort to ban kratom, as well as an associated effort to force smoke shops to put large signs on their doors saying they sell drug paraphernalia, the Swope candidacy has him hoping for better times ahead.

"Swope can win," he exulted. "We finally have a candidate who is talking about marijuana. Even the Republican candidates are now saying they wouldn't bust people for marijuana. When I was still a candidate, I went to many forums to talk about pot, and the media started asking these guys about it. Scott won't arrest people for personal use."

Whether it's relatively unknown substances like kratom or now familiar substances like marijuana, the battle lines are drawn in what is ultimately a culture war. On one hand, the forces of fear and authoritarianism; on the other, the forces of free inquiry and personal liberty. It's been a long war, and it isn't going to end anytime soon, but perhaps now there are hints that the correlation of forces is changing.

Stopping unnecessary prohibitions before they get started is part of the struggle; undoing entrenched prohibitions with powerful interests behind them is another part of the struggle, but even though the substances are different, it's the same struggle.