Tuesday, April 15, 2014
From the Huffington Post today, Attorney General Eric Holder makes some noteworthy commenst on marijuana legalization. Holder said he was "cautiously optimistic" about the implementation of legalization in Colorado and Washington so far. But, he noted, "we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."
Another interesting note, the article describes Holder's decision not to reschedule marijuana as a "political" one and quotes Holder as saying:
"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."
Though Holder's comments aren't much different from what the administration has said already, HuffPo's description of rescheduling as a "political" decision brings to mind the flexibility of the CSA. The CSA purports to provide scientific criteria for classifying and regulating mind-altering substances. But, as I've written about elsewhere, the criteria are so open-ended that they don't do much to constrain administrative decision-making.
Though I doubt Congress will take Holder up on the offer to work with the on rescheduling marijuana, if this issue does start to gain momentum in Washington, I hope that legislators will use the opportunity to rethink the CSA's classification scheme at a more fundamental level. In its current incarnation, it is too malleable and incoherent to effectively guide administrators.
The title of this post is the title of Pat Oglesby's latest paper which, as always, is a must read for anyone who follows these issues. The paper is part of the program for the upcoming International Society for the Study of Drug Policy conference in Rome (which looks fantastic and which I'm very sad I won't be able toattend.)
Ogleby's paper, available at his blog, serves as a great guide to a range of options and issues related to taxing marijuana. Here is the abstract:
After marijuana is legalized, the costs of producing and selling it will collapse. A windfall economic gain will be up for grabs. Policymakers might allow that gain to go to consumers (encouraging use) or to cannabusinesses (encouraging production). Or, through revenue measures, they might direct the gain to elsewhere, or to society as a whole. New revenue for government does not justify legalization of marijuana. New revenue may not cover the costs that legalization creates, and a revenue stream gives government a permanent stake in intoxication. Revenue is only one card in a large deck of drug policy options. But it is the most powerful card.
How to play it? The safest, correctable way to distribute an intoxicant is government monopoly, Uruguay style. Retail-only monopoly can match or beat bootleggers’ wares. But monopoly breeds cronyism and corruption, unless power is spread around and transparent. In the United States, states might need to tweak the monopoly model to keep state control over location and price while assigning sales concessions to businesses.
A riskier plan is taxed commercial distribution, Colorado and Washington style. In the inevitable price war, bootleggers will act in a New York minute; Legislatures will not. That is a handicap. And no tax is perfect. Taxing by THC potency is theoretically appealing, but unworkable. A price tax base has several pitfalls. Even a weight base is problematic.
Three other models are possible: auctioning licenses, collective farming, and sales by non- profits.
Since no one really knows how to legalize, flexibility to change course is of the utmost importance.
Monday, April 14, 2014
The optimist in me is starting to think that someday the effort to legalize marijuana in the US will be a piece of [successful] history and a piece of history that should be preserved.
So, I was very happy to find out about the 420 Archive at the ASA [Americans for Safe Access] conference in DC lastweekend. The mission of the 420 Archive ,which is in the throes of becoming a 501(c)(3),is
To research, collect and preserve for public enrichment the history, activism and culture of 20th and 21st century U. S. cannabis production and marijuana prohibition with an emphasis on California and the western United States.
The 420 Archive will seek out oral histories and documents related to this mission, help other organizations archive their collection and in 10 to 15 years or so hand over their collection to an institution that will maintain the material permanently and go out of business.
Oral histories from legal pioneers and legal materials should be part of this archive. But which legal pioneers? Keith Stroup from NORML is one of my nominations but what about the unknown public defenders and criminal defense attorneys who helped clients on possession charges? California's Proposition 215 must be there but what will be the last legal document in the archive, the one just before "The End"? The fiftieth state's law allowing adult recreational use? The federal law amending the Controlled Substances Act to remove marijuana from Schedule I?
What would you include in the 420 Archive? Looking forward to your comments.
Friday, April 11, 2014
Louisiana is home to some of the harshest drug sentencing laws in the country. Another recent example is an appellate decision upholding a 30 year sentence for a street level marijuana dealer. Granted, the defendant had five prior felonies. But all of the priors except for one were drug offenses.
The opinion (PDF) doesn't say exactly how much marijuana the defendant had, but it sounds like it was probably 9 nickle or dime bags:
On August 25, 2012, an off-duty police officer observed Price standing in front of a convenience store selling illegal drugs out of a trash can. Police arrived and detained Price. Thereafter, in the trash can, police found a brown paper bag containing nine plastic bags of marijuana and a small amount of cocaine. Price was arrested and charged with possession with intent to distribute marijuana and possession of cocaine.
Price received 30 years on the marijuana conviction and a concurrent sentence of 5 years for cocaine possession.
On a related note, earlier this week I spoke on a drug policy panel in New Orleans hosted by the Tulane Law School chapter of the American Constitutional Society. My co-panelists were all located in Louisiana--Stephen Singer (Loyola College of Law), Katherine Mattes (Tulane Law), and Anna VanCleave (Tulane Law). It was eye opening to more about Louisiana's criminal justice system and the incentives that make reform there so much more difficult than in other states that might seem politically very similar (e.g., Texas). I won't try to summarize their insights since I'm sure I wouldn't be able to do them justice. Suffice it to say, I left the panel with the impression that we are likely to see lengthy drug sentences like the one Price received in Louisiana for some time to come. On a brighter note, there are committed folks out there working hard for needed reform so all is not hopeless.
Wednesday, April 9, 2014
Pat Oglesby reports on a surprising piece of data in Colorado. Not only is medical marijuana outselling recreational marijuana, medical marijuana sales have (so far) increased under legalization:
In Colorado, recreational marijuana is making the news, but medical marijuana is dominating the market. The state officially reports that in February, medical marijuana outsold newly legal recreational marijuana better than two to one. And medical sales are growing more than twice as fast.
Taxes may explain the popularity of medical marijuana. Medical marijuana bears only a 2.9 percent sales tax. Recreational marijuana bears, along with that 2.9 percent sales tax, another 10-percent retail tax.
Not only are sales of medical marijuana outpacing recreational sales, they are growing faster. Medical marijuana sales taxes in January were just $$31,500,655. February’s $35,247,448 in medical marijuana sales represents a 11.9 percent increase. Recreational sales grew by only 5.2 percent. So the share of medical sales are growing faster than recreational sales — about 2.29 times as fast.
Given the different tax rates, it makes sense that Coloradans who had medical marijuana cards before legalization would continue to buy medical marijuana after legalization. But why would legalizing recreational marijuana increase medical marijuana purchases?
After all, since getting a medical marijuana card in Colorado isn't all that difficult, we might imagine that most regular users (who account for the bulk of marijuana that is used) would have already had medical cards before legalization.
My own guess (and it is entirely a guess) is that the increase in medical sales is likely being driven by the segment of regular users who had never gotten a card because it seemed like more trouble than it was worth (and/or they were worried that getting a card would put them on some sort of list that could become public.) The sort of person I'm envisioning would have had a regular black market dealer and figured "why bother getting a card."
After legalization, however, these folks started wandering into the newly established recreational stores for their purchases. And when they did, they found two counters: the recreational counter and the medical counter, where the same products were much cheaper becuase of the tax difference. Once they realized how much money they could save, getting a medical marijuana card suddenly seemed well worth the investment.
Of course, my guess may be completely off-base. It might turn out, for example, that the increase in medical marijuana sales is being driven primarily by existing medical marijuana consumers who've increased their consumption (e.g., a medical marijuana user who bought X grams/month before legalization, increasing their purchases to 2X grams/month after legalization.)
In any event, if this trend continues, it is something that will be well worth studying closely.
Monday, April 7, 2014
If it clearly cost thousands of innocent lives through heroin abuse, would most everyone oppose modern marijuana reforms?
I engendered an intriguing debate over research data, criminal drug reform and public safety concerns in my post at Sentencing Law & Policy last week titled "If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?". I am hoping to engender a similar debate with the question in the title of this new post, which is my sincere inquiry, directed particularly to those most supportive of modern marijuana reform movements, as a follow-up to this notable new Washington Post article headlined "Tracing the U.S. heroin surge back south of the border as Mexican cannabis output falls." Here are excerpts:
The surge of cheap heroin spreading in $4 hits across rural America can be traced back to the remote valleys of the northern Sierra Madre. With the wholesale price of marijuana falling — driven in part by decriminalization in sections of the United States — Mexican drug farmers are turning away from cannabis and filling their fields with opium poppies.
Mexican heroin is flooding north as U.S. authorities trying to contain an epidemic of prescription painkiller abuse have tightened controls on synthetic opiates such as hydrocodone and OxyContin. As the pills become more costly and difficult to obtain, Mexican trafficking organizations have found new markets for heroin in places such as Winchester, Va., and Brattleboro, Vt., where, until recently, needle use for narcotics was rare or unknown.
Farmers in the storied “Golden Triangle” region of Mexico’s Sinaloa state, which has produced the country’s most notorious gangsters and biggest marijuana harvests, say they are no longer planting the crop. Its wholesale price has collapsed in the past five years, from $100 per kilogram to less than $25. “It’s not worth it anymore,” said Rodrigo Silla, 50, a lifelong cannabis farmer who said he couldn’t remember the last time his family and others in their tiny hamlet gave up growing mota. “I wish the Americans would stop with this legalization.”
Growers from this area and as far afield as Central America are sowing their plots with opium poppies, and large-scale operations are turning up in places where authorities have never seen them....
The needle habit in the United States has made a strong comeback as heroin rushes into the country. Use of the drug in the United States increased 79 percent between 2007 and 2012, according to federal data, triggering a wave of overdose deaths and an “urgent and growing public health crisis,” Attorney General Eric H. Holder Jr. warned last month.
Although prescription painkillers remain more widely abused and account for far more fatal overdoses, heroin has been “moving all over the country and popping up in areas you didn’t see before,” said Carl Pike, a senior official in the Special Operations Division of the Drug Enforcement Administration.
With its low price and easy portability, heroin has reached beyond New York, Chicago and other places where it has long been available. Rural areas of New England, Appalachia and the Midwest are being hit especially hard, with cities such as Portland, Maine; St. Louis; and Oklahoma City struggling to cope with a new generation of addicts. Pike and other DEA officials say the spread is the result of a shrewd marketing strategy developed by Mexican traffickers. They have targeted areas with the worst prescription pill abuse, sending heroin pushers to “set up right outside the methadone clinics,” one DEA agent said.
Some new heroin users begin by snorting the drug. But like addicts of synthetic painkillers who go from swallowing the pills to crushing and snorting them, they eventually turn to intravenous injection of heroin for a more powerful high. By then, experts say, they have crossed a psychological threshold — overcoming the stigma of needle use. At the same time, they face diminishing satisfaction from prescription pills that can cost $80 each on the street and whose effects wear off after four to six hours. Those addicts are especially susceptible to high-grade heroin offered for as little as $4 a dose but with a narcotic payload that can top anything from a pharmacy.
Unlike marijuana, which cartel peons usually carry across the border in backpacks, heroin (like cocaine) is typically smuggled inside fake vehicle panels or concealed in shipments of legitimate commercial goods and is more difficult to detect. By the time it reaches northern U.S. cities, a kilo may be worth $60,000 to $80,000, prior to being diluted or “cut” with fillers such as lactose and powdered milk. The increased demand for heroin in the United States appears to be keeping wholesale prices high, even with abundant supply.
The Mexican mountain folk in hamlets such as this one do not think of themselves as drug producers. They also plant corn, beans and other subsistence crops but say they could never earn a living from their small food plots. And, increasingly, they’re unable to compete with U.S. marijuana growers. With cannabis legalized or allowed for medical use in 20 U.S. states and the District of Columbia, more and more of the American market is supplied with highly potent marijuana grown in American garages and converted warehouses — some licensed, others not. Mexican trafficking groups have also set up vast outdoor plantations on public land, especially in California, contributing to the fall in marijuana prices.
“When you have a product losing value, you diversify, and that’s true of any farmer,” said David Shirk, a Mexico researcher at the University of California at San Diego. “The wave of opium poppies we’re seeing is at least partially driven by changes we’re making in marijuana drug policy.”
I find this article fascinating in part because it highlight one (or surely many dozen) serious unintended consequences of modern marijuana reforms in the United States. I also find it fascinating because, just as my prior post explored some possible public safety benefits of consumers switching from alcohol use to marijuana use, this article spotlights some possible public safety harms of producers switching from marijuana farming to opium farming.
Some recent related posts:
- If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?
- As heroin concerns grow, so do proposals to increase sentences
- "Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."
- Should the feds reallocate all drug war resources away from marijuana to heroin now?
The Maryland legislature has passed a law to decriminalize the possession of small amounts of marijuana (up to 10 grams or about 1/3 of an ounce.) And Maryland's Governor, Martin O'Malley (whose marijuana politics I blogged about a few weeks ago), is set to sign it:
Possession of small amounts of marijuana will no longer be a crime in Maryland under a law passed Monday and sent to Gov. Martin O'Malley for his expected signature.
Adults caught with less than 10 grams of pot will get a citation that will be treated like traffic ticket and pay a fine, but they could no longer be sent to jail. O'Malley said he plans to sign the law, a reversal from views he held as he gained prominence as Baltimore's tough-on-crime mayor.
"As a young prosecutor, I once thought that decriminalizing the possession of marijuana might undermine the public will necessary to combat drug violence and improve public safety," O'Malley said in a statement. "I now think that decriminalizing possession of marijuana is an acknowledgment of the low priority that our courts, our prosecutors, our police, and the vast majority of citizens already attach to this transgression of public order and public health. Such an acknowledgment in law might even lead to a greater focus on far more serious threats to public safety and the lives of our citizens.”
Friday, April 4, 2014
If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?
The question in the title of this post is my sincere inquiry, directed particularly to those most concerned about modern marijuana reform movements, as a follow-up to this extended (data-focused) commentary by Jacob Sollum at Forbes headlined "More Pot, Safer Roads: Marijuana Legalization Could Bring Unexpected Benefits." Here are excerpts (with key research links retained):
The anti-pot group Project SAM claims drug test data show that marijuana legalization in Washington, approved by voters in that state at the end of 2012, already has made the roads more dangerous. The group notes with alarm that the percentage of people arrested for driving under the influence of a drug (DUID) who tested positive for marijuana rose by a third between 2012 and 2013. “Even before the first marijuana store opens in Washington, normalization and acceptance [have] set in,” says Project SAM Chairman Patrick J. Kennedy. “This is a wakeup call for officials and the public about the dangerousness of this drug, especially when driving.”
In truth, these numbers do not tell us anything about the dangerousness of marijuana. They do not even necessarily mean that more people are driving while high. Furthermore, other evidence suggests that legalizing marijuana could make the roads safer, reducing traffic fatalities by encouraging the substitution of marijuana for alcohol....
According to State Toxicologist Fiona Couper, the share of DUID arrestees in Washington whose blood tested positive for THC, marijuana’s main psychoactive ingredient, rose from 18.6 percent in 2012 to 24.9 percent in 2013. That’s an increase of more than 33 percent, as Project SAM emphasizes with a scary-looking bar graph. At the same time, the total number of DUID arrests in Washington rose by just 3 percent, about the same as the increases seen in the previous three years, while DUID arrests by state troopers (see table below) fell 16 percent.
These numbers do not suggest that Washington’s highways are awash with dangerously stoned drivers. So why the substantial increase in positive marijuana tests? Lt. Rob Sharpe, commander of the Washington State Patrol’s Impaired Driving Section, notes that additional officers were trained to recognize drugged drivers in anticipation of marijuana legalization. So even if the number of stoned drivers remained the same, police may have pulled over more of them as a result of that training....
As Columbia University researchers Guohua Li and Joanne E. Brady pointed out a few months ago in the American Journal of Epidemiology, [a recent] increase in marijuana consumption has been accompanied by an increase in the percentage of drivers killed in car crashes who test positive for cannabinol, a marijuana metabolite.
But as with the increase in DUID arrestees who test positive for THC, this trend does not necessarily mean marijuana is causing more crashes. A test for cannabinol, which is not psychoactive and can be detected in blood for up to a week after use, does not show the driver was under the influence of marijuana at the time of the crash, let alone that he was responsible for it. “Thus,” Li and Brady write, “the prevalence of nonalcohol drugs reported in this study should be interpreted as an indicator of drug use, not necessarily a measurement of drug impairment.”
Another reason to doubt the premise that more pot smoking means more deadly crashes: Total traffic fatalities have fallen as marijuana consumption has risen; there were about 20 percent fewer in 2012 than in 2002. Perhaps fatalities would have fallen faster if it weren’t for all those new pot smokers. But there is reason to believe the opposite may be true, that there would have been more fatalities if marijuana consumption had remained level or declined.
While marijuana can impair driving ability, it has a less dramatic impact than alcohol does. A 1993 report from the National Highway Traffic Safety Administration, for example, concluded: “The impairment [from marijuana] manifests itself mainly in the ability to maintain a lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol. Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.” Similarly, a 2000 report commissioned by the British government found that “the severe effects of alcohol on the higher cognitive processes of driving are likely to make this more of a hazard, particularly at higher blood alcohol levels.”
Given these differences, it stands to reason that if more pot smoking is accompanied by less drinking, the upshot could be fewer traffic fatalities. Consistent with that hypothesis, a study published last year in the Journal of Law and Economics found that legalization of medical marijuana is associated with an 8-to-11-percent drop in traffic fatalities, beyond what would be expected based on national trends. Montana State University economist D. Mark Anderson and his colleagues found that the reduction in alcohol-related accidents was especially clear, as you would expect if loosening restrictions on marijuana led to less drinking. They also cite evidence that alcohol consumption declined in states with medical marijuana laws.
Anderson et al. caution that the drop in deadly crashes might be due to differences in the settings where marijuana and alcohol are consumed. If people are more likely to consume marijuana at home, that could mean less driving under the influence. Hence “the negative relationship between legalization and alcohol-related fatalities does not necessarily imply that driving under the influence of marijuana is safer than driving under the influence of alcohol,” although that is what experiments with both drugs indicate.
Arrest data from Washington are consistent with the idea that marijuana legalization could result in less drunk driving. Last year drunk driving arrests by state troopers fell 11 percent. By comparison, the number of drunk driving arrests fell by 2 percent between 2009 and 2010, stayed about the same between 2010 and 2011, and fell by 6 percent between 2011 and 2012. The drop in drunk driving arrests after marijuana legalization looks unusually large, although it should be interpreted with caution, since the number of arrests is partly a function of enforcement levels, which depend on funding and staffing.
Two authors of the Journal of Law and Economics study, Anderson and University of Colorado at Denver economist Daniel Rees, broadened their analysis in a 2013 article published by the Journal of Policy Analysis and Management. Anderson and Rees argue that marijuana legalization is apt, on balance, to produce “public health benefits,” mainly because of a reduction in alcohol consumption. Their projection hinges on the premise that marijuana and alcohol are substitutes. If marijuana and alcohol are instead complements, meaning that more pot smoking is accompanied by more drinking, the benefits they predict would not materialize. Anderson and Rees say “studies based on clearly defined natural experiments generally support the hypothesis that marijuana and alcohol are substitutes.” But in the same issue of the Journal of Policy Analysis and Management, Rosalie Liccardo Pacula, co-director of the RAND Corporation’s Drug Policy Research Center, and University of South Carolina criminologist Eric Sevigny conclude that the evidence on this point “remains mixed.”
A study published last month by the online journal PLOS One suggests that the substitution of marijuana for alcohol, assuming it happens, could affect crime rates as well as car crashes. Robert G. Morris and three other University of Texas at Dallas criminologists looked at trends in homicide, rape, robbery, assault, burglary, larceny, and auto theft in the 11 states that legalized marijuana for medical use between 1990 and 2006. While crime fell nationwide during this period, it fell more sharply in the medical marijuana states, even after the researchers adjusted for various other differences between states. Morris and his colleagues conclude that legalization of medical marijuana “may be related to reductions in rates of homicide and assault,” possibly because of a decline in drinking, although they caution that the extra drop in crime could be due to a variable they did not consider.
One needs to be very cautious, of course, drawing any firm conclusions based on any early research about impaired driving, car crashes, and marijuana reform. But let's imagine it does turn out generally true that legalizing medical marijuana helps produce a 10% drop in a jurisdiction's traffic fatalities. If extended nationwide throughout the US, where we have well over 30,000 traffic fatalities each and every year, this would mean we could potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. (One might contrast this number with debated research and claims made about the number of lives possibly saved by the death penalty: I do not believe I have seen any research from even ardent death penalty supporters to support the assertion that even much more robust use of the death penalty in the US would be likely to save even 1000 innocent lives each year.)
Obviously, many people can and many people surely would question and contest a claim that we could or would potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. But, for purposes of debate and discussion (and to know just how important additional research in this arena might be to on-going pot reform debates), I sincerely wonder if anyone would still actively oppose medical marijuana reform if (and when?) we continue to see compelling data that such reform might save over 50 innocent lives each and every week throughout the United States.
Cross-posted at Marijuana Law, Policy and Reform
April 4, 2014 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)
Thursday, April 3, 2014
In what has to be one of the more unusual police misconduct cases involving drugs, a group of protesters are suing the police for getting them high. The case involves a group of Minnesota police officers who pushed marijuana on Occupy Minneapolis protesters as part of a training program to teach officers how to recognize when people are under the influence of drugs.
A few days ago, a district court denied the officers' motion to dismiss the lawsuit. The opinion's introduction (PDF) provides the highlights:
This lawsuit challenges the actions of law enforcement officials and entities involved with a Drug Recognition Evaluation (“DRE”) program through which law enforcement officers are trained to identify when citizens are under the influence of illicit drugs. Several individuals involved in the Occupy Minneapolis (“Occupy”) protests bring this action against a long list of law enforcement officials–in both their individual and official capacities–alleging that the officers targeted them to serve as test subjects for the program and provided them with substantial amounts of marijuana in violation of their rights under the First and Fourteenth Amendments of the United States Constitution.
The Court finds that the allegations by some Plaintiffs and with regard to some Defendants adequately state claims for the violation of their constitutional rights. First, the allegations that certain Defendants administered large amounts of an illicit drug to Plaintiffs after intimating threats of arrest without first informing Plaintiffs of the risks or checking their medical histories and with no therapeutic purpose state a claim for violation of Plaintiffs’ clearly established substantive due process right to bodily integrity. Second, allegations that those Defendants chose to target Plaintiffs with this practice based on their participation in a protest state a claim for violation of their clearly established First Amendment rights. The Court therefore will deny Defendants’ motions to dismiss with regard to claims by Plaintiffs Michael Bounds and Forest Olivier against Defendants Jacobson, Kenneth Willers, Karl Willers, and John Does 1 and 2 in their individual capacities and will dismiss without prejudice all claims against those Defendants in their official capacities, all claims against all other Defendants, and all claims by all other Plaintiffs.
As reported in this Denver Post article, headlined "Denver coroner: Man fell to death after eating marijuana cookies," it appears that at least one fatality can now be directly linked to "legalized" marijuana use and abuse in Colorado. Here are the basics:
A college student visiting Denver jumped to his death from a hotel balcony after eating marijuana-infused cookies, according to a coroner's report that marks the first time authorities have publicly linked a death to marijuana since legal sales of recreational cannabis began in Colorado.
Levy Thamba, a 19-year-old student at Northwest College in Powell, Wyo., died last month at a Holiday Inn in northeast Denver. On Wednesday, the Denver coroner released a report concluding that Thamba's death was caused by "multiple injuries due to a fall from height." The coroner also listed "marijuana intoxication" from cannabis-infused cookies as a significant condition contributing to the death. The report classifies the death as an accident.
A brief summary of the investigation that was included in the autopsy report says Thamba, also known as Levi Thamba Pongi, traveled to Denver with three friends on spring break. On March 11, the report says, Thamba consumed "marijuana cookies" and "soon thereafter exhibited hostile behavior (pulling items off the walls) and spoke erratically."
"The decedent's friends attempted to calm him down and were temporarily successful," the report states. "However, the decedent eventually reportedly jumped out of bed, went outside the hotel room, and jumped over the balcony railing." Thamba and his friends were staying on the hotel's fourth floor, according to the report.
Michelle Weiss-Samaras, a spokeswoman for the coroner's office, said the office often lists alcohol intoxication as a significant contributing factor in a death — for instance, in an alcohol-related car accident. She said the office also has seen cases involving apparent marijuana-impaired driving, but she said she believes this is the first time it has listed marijuana intoxication from an edible product in such a way.
Weiss-Samaras said Thamba had no known physical or mental-health issues, and toxicology tests for other drugs or alcohol came back negative. "We have no history of any other issues until he eats a marijuana cookie and becomes erratic and this happens," she said. "It's the one thing we have that's significant."
According to the autopsy report, Thamba's marijuana concentration in his blood was 7.2 nanograms of active THC per milliliter of blood. In impaired driving cases, state law sets a standard of 5 nanograms per milliliter at which juries can presume impairment.
In January, Colorado became the first state in the country to allow people 21 and over to legally buy marijuana for any purpose from regulated stores. Weiss-Samaras said investigators believe a friend of Thamba's purchased the cookies in a recreational marijuana store. "We were told they came here to try it," she said.... It remains unclear how much of the marijuana-infused product Thamba consumed or how long after consuming it that he died.
Marijuana edibles — which account for 20 to 40 percent of overall sales, industry experts estimate — have been controversial in Colorado, and the legislature will likely take up the issue again this session. Rep. Frank McNulty, R-Highlands Ranch, said he and Rep. Jonathan Singer, D-Longmont, plan to introduce a bill as early as this week that would further cap the potency of edibles and prohibit them from being made in forms that might appeal to children.
This story is already getting coverage in national newspapers, and it will now be interesting to see whether and how opponents of marijuana reform might actively use this sad development in support of their arguments against reform efforts. Notably, at age 19, Levy Thamba was technically underage and thus his recreation marijuana use was not legal. But that fact itself reinforces the arguments of opponents of marijuana reform that legalization makes it easier and more likely that underage persons will have access and be eager to try marijuana products.
Tuesday, April 1, 2014
The question in the title of this post came to mind when reading this Indiana appellate opinion (PDF), released yesterday.
From the opinion, it appears that Indiana's police lab has a policy prohibiting testing of marijuana below a certain quantity. I can only assume that the policy reflects the agency's belief that low level marijuana cases aren't important enough to be worth the laboratory's time.
One might think that if the state doesn't think it's worth a few bucks to test the marijuana, it would feel the same way about spending even more money prosecuting the case. But apparently, that isn't the case.
It seems Indiana is happy to continue prosecuting low-level marijuana cases. It just wants to do it on the cheap, without worrying about making sure that the substance at issue is actually, you know, marijuana.
The court's decision focuses on whether the identity of a substance can be proven by a police officer's testimony alone (without chemical analysis). The court finds that it can, a result that is not an outlier. This rule might make sense at first blush. After all, marijuana might seem to be pretty easy to identify. But misidentification happens a lot more often that one might think (PDF). Just last year, for example, some cops in New York mistook tomato plants for marijuana!
Putting the merits of that debate to one side, Indiana's lab policy seems to take visual identification to a whole new level. It's one thing to permit identification without chemical analysis when evidence is genuinely unavailable (for example, if an adult gives marijuana to a teen and the teen can identify the substance based on its effects.) It seems to me quite another to permit the state simply forego testing of a substance it has in a whole category of cases because it costs too much.
Judge Pyle offered these thoughts, expressing some concern, in a concurrence:
In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity.
While Indiana Supreme Court precedent allows the State to avoid this roadblock by having a law enforcement officer identify marijuana based upon his or her training and experience, the laboratory's present policy prevents prosecutors, and deprives jurors, from considering expert testimony based on scientific principles used to identify marijuana. This is particularly important because the State is required to prove, beyond a reasonable doubt, that an item alleged to be marijuana actually is marijuana.
Additionally, jurors are instructed that proof beyond a reasonable doubt means that they be firmly convincedthat the item is marijuana. When an expert testifies that an item has been examined macroscopically, microscopically, subjected to color tests, thin layer chromatography, and gas chromatography, his or her testimony goes a long way toward identifying an item as marijuana, beyond a reasonable doubt. Thus, increasing public confidence in Indiana's criminal justice system.
The selection of the type of evidence to bring before a jury should, as much as possible, be unconstrained by administrative decisions, and jurors should be able to assume that the State endeavored to bring its best case to trial. There is likely a rational reason behind the laboratory's policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory's policy decision be reconsidered by our colleagues in the executive branch.
Doug blogged over at SL&P last Friday about a notable district court opinion on federal drug sentencing. In the lengthy opinion, Judge James Browning makes an argument in defense of the federal drug sentencing guidelines (responding in large part to an opinion by Judge Gleeson taking the other side.)
Though the case involves methamphetamine, Judge Browning makes an interesting comment about marijuana legalization in a footnote (footnote 23):
This observation seems particularly true in light of the DOJ’s recent policy announcement not to spend its resources going after the marijuana dealers and growers who are acting consistent with Colorado’s new marijuana laws. This decision not to prosecute wealthy large-scale Anglo distributors in Colorado--on New Mexico’s northern border--calls into question whether the Court should mete out large sentences to poor backpackers from Mexico--on New Mexico’s southern border--bussing over bundles of marijuana.
The bservation reminds me of concerns raised by Michelle Alexander last month about legalizaiton and racial disparity, arguing that white men are getting rich while black men stay in prison. And, of course, it also echoes the concerns some Latin American leaders have also expressed about fighting a war to keep marijuana out of the United States when it is now legal to use and sell the substance in Colorado and Washington.
Monday, March 31, 2014
A helpful reader alerted me to this notable article from the Asbury Park Press, headlined "It's high time to legalize pot, N.J. prosecutors say." Here is how it starts:
Proponents of legalizing marijuana in New Jersey received a boost from an unlikely source — the very people who prosecute pot users. The New Jersey State Municipal Prosecutors Association in Hamilton, N.J., has come out in favor of legalizing possession of marijuana. The support of the prosecutors association comes as two bills were introduced this month in the New Jersey State Legislature and as polls show a majority of Americans favor legalization.
One of the bills, introduced March 10, calls for a referendum asking voters to legalize the possession of an ounce or less of marijuana. Assemblymen Reed Gusciora, a Democrat from Trenton, N.J., who also is municipal prosecutor in Lawrence Township, N.J., and Michael Patrick Carroll, a Republican from Morris Township, N.J., are its sponsors.
"If it were up to me, I would make all quantities legal," Carroll said. "Why should the government be in the business of criminalizing marijuana? All it does is create administrative Al Capones and puts the power in the hands of gangsters." From the government's perspective, Carroll said legalizing marijuana would be a huge benefit. Government could save money by hiring fewer police and parole officers. Carroll also noted that getting an arrest record has ruined many people's careers.
On March 24, Sen. Nicholas Scutari, a Democrat from Linden, N.J., who also is municipal prosecutor there, introduced another bill. Scutari's bill does not call for a referendum. Instead it would legalize the cultivation, sale and possession of marijuana; set up an agency to oversee the industry; and then funnel the sales tax revenue to the state Transportation Trust Fund, drug prevention and enforcement efforts and women's health programs....
The board of trustees of the municipal prosecutors association voted Feb. 21 to endorse legalization, said its president, Jon-Henry Barr, who is municipal prosecutor in Kenilworth and Clark Township, N.J. "The board was not unanimous, but a clear majority of municipal prosecutors favor the idea," Barr said.
Of the 10 members of the board of trustees, seven were in favor of legalization, Barr said. Two members were opposed to legalization, and one member of the board abstained from voting, Barr said. He said the association is made up of 150 prosecutors. Among the reasons the municipal prosecutors favor legalization is the damage a prosecution for marijuana possession has on a person's reputation and the growing acceptance among Americans that marijuana should not be criminalized, Barr said....
"The time has come to understand that this particular offense makes about as much sense as prohibition of alcohol did," Barr said. "It is time to stop the insanity." Barr said prosecutors are spending time prosecuting marijuana cases when they could be attacking more pressing problems.
Some municipal prosecutors were unaware of the association's position on marijuana, and not all agree with it. "I was not at the meeting," Municipal Prosecutor Bonnie Peterson said. She is prosecutor in Seaside Park, Ship Bottom and Harvey Cedars, three communities on the Jersey Shore. "They sent an e-mail. I was surprised. ... I would find it very hard to believe the municipal prosecutors association would come out with a blanket endorsement of legalization of marijuana."... Steve Rubin, prosecutor in Long Branch and West Long Branch, N.J., was one of the municipal prosecutors association's board of trustees who voted to endorse legalization. Still, he said he has some concerns, especially during a transition to legalization. He said he fears some marijuana trade would remain in the hands of criminals. "There still are people who are bookmakers," Rubin said. "We thought they would have been eliminated with OTB (off-track betting) and the lottery."
But Rubin said legalization would eliminate many of the court cases he has to present. "I would no longer have to prosecute a bunch of 18-year-olds who went to a frat party," Rubin said.
Last week, a Louisiana appeals court upheld the conviction and ten-year sentence (PDF) of Kyle Everett for attempted possession with intent to distribute marijuana. From the decision, it appears that Everett was found with somewhere in the neighborhood of $50 worth of marijuana (it isn't clear from the opinion why Everett was convicted of attempted, as opposed to actual, possession).
Officer Hunt then conducted a safety pat down. The officer felt a bulge in the front of the defendant's pants. He asked the defendant about the bulge, and the defendant told the officer that it was marijuana. The defendant shook his leg, and three bags of what appeared to be marijuana fell out of the defendant's pants leg. One bag contained loose marijuana, and the other bag contained ten individually hand-tied baggies of marijuana. The defendant was taken to the police station, where the green material was field tested positive for marijuana. Officer Birks testified that each little baggie appeared to be a "nickel" bag, indicating a value of five dollars for each baggie. Officer Birks further stated that the amount of marijuana that the defendant had in his possession was excessive for personal consumption.
To make matters worse, the officers who arrested Everett were later found to have planted cocaine on a different suspect (by coincidence, Everett's cousin) about a month after they arrested Everett! The officers pled guilty to perjury and malfeasance charges for the cocaine-planting incident. They received suspended sentences and were fined $5,000 and $2,500.
The contrast between the officers' sentences (no jail time, low fines) and Everett's (10 years) is pretty striking.
In his appeal, Everett challenged the constituionality of the search and argued the trial court should have granted his motion for a new trial "on the basis of the subsequent convictions of Officers Hunt and Birks." (The appeals court rejected both arguments.)
Here's the officers' story about stopping Everett:
"[B]oth officers testified that they stopped their vehicle and approached the defendant and the other unknown man as they were riding bicycles and "goofing off" in the middle of the street. The officers stated that they only sought to talk to the defendant about bicycle safety because the defendant and the other man almost created an accident when the officers turned onto the street. We find that the officers were well within their right to make such a stop."
And here's what these same officers did to Everett's cousin one month after Everett's arrest:
Joshua Hunt and Samuel Birks claimed they arrested Bean on Jan. 25, 2011, while on foot patrol at Jackson’s Landing apartments in Algiers. They said a rock of crack cocaine fell out Bean’s pocket as they searched him.
Bean spent more than four months in the parish jail before Hendrix proved that the officers had lied in a police report on the arrest, and that Hunt had lied under oath during a pre-trial hearing in the case.
According to the suit, filed in December 2011, Birks drove up as Bean left his apartment, handcuffed him and placed him in the back of his patrol car.
Birks allegedly told Bean he was wanted in connection with drug dealing in the area. Birks then got a phone call from Hunt, asking to be picked up at a dentist’s office in the 4000 block of MacArthur Boulevard, also in Algiers, the suit says.
With Bean in the back of their patrol car, the officers returned to the Garden Oaks Drive area to cruise around and ask Bean about criminal activity in the area, the complaint alleged.
Hunt then ran a check on Bean’s criminal history and found he was a parolee with three prior convictions. According to the complaint, Hunt then placed a rock of crack in Bean’s jacket pocket, and the officers drove him to the 4th District station to arrest him.
Did these officers do something similar to Everett? The appeals court recognized the possibility but didn't think it likely enough to warrant a new trial (or, apparently, to cast doubt on the officers' questionable account of their stop/frisk of Everett):
[Everett] maintains his innocence and claims that the officers lied to effectuate his arrest and conviction just as the officers lied in the Alvin Bean case. The defendant's argument, while plausible, is simply argument without any factual support or evidence. We do not find that the trial court abused its great discretion when it denied the motion for new trial based on serving "the ends of justice" pursuant to La. C.Cr.P. art. 851(5).
More about Louisiana's marijuana sentencing practices here.
The question in the title of this post is prompted by this interesting new piece providing a very personal account of the benefits of medical marijuana. The piece is headlined "The story behind a Mormon marijuana lobby: How a conservative Mormon family found hope in cannabis," and here is how it concludes:
Cannabis isn't a substance my family — under just about any circumstances — would have an interest in legalizing, but what we call normal keeps changing. Alepsia has emerged as a source of legitimate hope for Amelia. Currently, 80 percent of children being treated with Alepsia in Colorado have experienced at least a 50 percent decline in seizures. Although still preliminary, those results vastly outstrip all the FDA-approved medications Amelia has tried. Other states are taking action, and that's a good thing. While Alepsia won't "save" Amelia, it might mean more days smiling and laughing, and fewer sitting on the couch drooling. And it might mean a new routine for my family — which would be more than enough, for us.
Last week, the First Circuit issued an opinion upholding a 5 year mandatory minimum sentence for possession of a gun in furtherance of a drug trafficking charge, based on possession of marijuana with intent to distribute.
The government found about 7.5 ounces of marijuana in the defendant's car, along with a gun about three feet from the marijuana. At trial, the defendant testified that the marijuana was for his own use:
He stressed that the marijuana found in his van was for his own personal use and claimed he smoked between 10 and 12 joints per day, with each joint containing 1 to 2 grams of marijuana. He estimated that, after he removed the stems and seeds, the 7.5-ounce bag found in his car would yield only 5 or 5.5 ounces of usable drug. Thus, he figured he only had enough marijuana to make about 50 joints, which he said would last him a week or two. He explained that buying his marijuana in bulk was more economical, more convenient, and reduced the risk of getting caught.
The jury sided with the government and, on appeal, the First Circuit rejected the defendant's sufficiency of the evidence challenges (both on proof of an intent to distribute the marijuana and proof that the gun was possessed in furtherance of the marijuana possession.)
The case is most noteworthy for the majority's conclusion, in which it expresses some reservations about the outcome and the government's decision to charge the case as it did in the first place:
Before we wrap up, we pause to make explicit our ambivalence towards the jury's findings. While it is clear that Bobadilla guiltily possessed a small quantity of marijuana and an illegal firearm, whether he intended to distribute that marijuana, as well as whether he possessed the firearm "in furtherance of" a drug trafficking crime, are harder questions. The jury answered "yes" to both. Another jury may have concluded otherwise. Obviously too, another prosecutor could have opted to indict Bobadilla on lesser charges, i.e., simple possession of marijuana and an unlicensed firearm. This prosecutor chose not to, as was within her discretion. And at this stage, we are duty-bound to enforce the jury's amply supported verdict. Consequently, today, like September 27, 2011, is not Bobadilla's lucky day.
The decision is an interesting one for thinking about the scope of sufficiency of the evidence review. The majority feels the need to express its "ambivalence" about the jury's verdict. But it does not feel ambivalent enough to disturb it.
Thursday, March 27, 2014
As reported in this local article, the "New Hampshire House voted against legalizing marijuana 192-140 yesterday, marking a significant shift after passing the bill by eight votes in January." Here is more:
The Senate was nearly certain to block the bill, and Democratic Gov. Maggie Hassan had promised to veto any bill legalizing marijuana. Hassan signed a medical marijuana bill last year, and last month the House passed a bill to decriminalize possession of up to an ounce of marijuana. Opponents of legalization said the state should take small steps when it comes to marijuana. Hassan has already said she’s unlikely to sign a decriminalization bill. “Good public policy means taking one step at a time,” said Rep. Donna Schlachman, an Exeter Democrat.
A certain death didn’t stop supporters from making a passionate case for legalizing the drug. Rep. Steve Vaillancourt, a Manchester Republican and the bill’s prime sponsor, spoke for 30 minutes about what he thinks are misconceptions about the drug and the revenue it could bring into New Hampshire. A February poll by the UNH Survey Center showed 53 percent of people support legalizing marijuana for recreational use. Legalizing, regulating and taxing the drug is the best way to ensure safe use, Vaillancourt said. “This is the only way to break the back of the black market,” he said.
Rep. Romeo Danais, a Nottingham Republican, encouraged his colleagues to challenge their own misperceptions about the drug. Marijuana is not a gateway drug, he said, but people who buy it from drug dealers might be more easily exposed to harder drugs. Just as with alcohol, legalizing marijuana doesn’t mean people would be allowed to drive or show up to work under its influence, he said. “Just because it’s legal does not mean that anyone would use it,” Danais said....
But opponents of the bill said no state agency testified in favor of legalizing marijuana during a public hearing. The system of regulation and taxation in the bill would have involved the departments of Revenue Administration, Safety, Health and Human Services, Agriculture and the Liquor Commission. The Liquor Commission said it wouldn’t sell marijuana in state liquor stores, said Rep. Patrick Abrami, a Stratham Republican.
Furthermore, opponents said selling marijuana would be a cash-only business because banks would not accept money from marijuana transactions. The bill also raised questions about people growing their own marijuana and making “edibles,” or marijuana baked into food. Several opponents said New Hampshire should see how legalization pans out in Colorado and Washington state before moving forward with a similar plan. “I don’t think New Hampshire wants to be known as the ‘East Coast pot state,’ ” said Rep. Mary Cooney, a Plymouth Democrat.
Among interesting aspects of this story is the apparent reality that at least a few Republicans were the most vocal advocates for legalization, while at least a few Democrats appeared most eager to get behind these reforms. In addition, this story highlights yet again how the experiences in Colorado and Washington over the next few months and years seem certain to have a profound impact on how politicians and other policy-makers view various marijuana reform efforts.
Wednesday, March 26, 2014
As Rob explained last week, calling Alabama's CBD-only law a medical marijuana law is a stretch for a number of reasons. Yesterday, bloggers for NORML and the Drug Policy Alliance weighed in on the emergence of CBD only laws. Both posts are well worth reading in their entirety.
For NORML, Paul Armentano discussed measures in Utah and Alabama, saying that describing them as medical marijuana laws is "far from accurate."
For DPA, Amanda Reiman discussed the idea of CBD-only legislation more generally:
So, is CBD-only legislation a good thing?
Yes and no.
In some states, the only way medical marijuana is going to get its foot in the door is through the strictest of incrementalism. And, preventing access to an effective, safe and natural medicine for families in those states is of course, not a preferred outcome.
But, what about the children and adults with cancer, HIV and other serious illnesses in those states whose use of THC rich medicine might ease the nausea and pain associated with their treatments?
The adoption of CBD-only legislation might be a way to start the conversation in some states, but it should not be the end.
Tuesday, March 25, 2014
The other week a Colorado appellate court held that Amendment 64 applies retroactively, to at least some pre-passage marijuana possession convictions. Just how many marijuana possession convictions remains uncertain, however.
John Ingold of the Denver Post has an article exploring this question today. The headline says it all: "Marijuana ruling could overturn thousands of convictions — or dozens."
Anywhere from a few dozen to more than 10,000 people could be eligible to have their old marijuana convictions overturned as the result of a landmark Colorado Court of Appeals ruling that applied marijuana legalization retroactively.
Colorado defense attorneys are poring through previous marijuana cases, looking for former clients who might be eligible for such relief, but much depends on how subsequent courts apply this month's ruling. On the surface, the ruling appears to have little reach, but attorneys say it is possible courts could follow the reasoning of the ruling to overturn every marijuana case in the state in which an adult was convicted of a crime that stopped being illegal when the state's marijuana-legalization law went into effect in late 2012.
"I think there are thousands of people who could potentially have their convictions overturned," said Sean McAllister, an attorney who specializes in marijuana cases and who said he is already working with several clients to see if their previous convictions could be tossed.
But, in order for that to be true, Colorado courts will have to adopt an expansive reading of the ruling — a scenario prosecutors see as unlikely.
The full article explains the issues and uncertainty in more detail.
Add New Jersey to the list of states which have introduced legalization/recreational marijuana bills this year.
Yesterday State Senator Nicholas Scutari introduced S 1896 which would legalize possession of less than one ounce of marijuana for anyone 21 or older. The bill also allows individuals to grow up to 6 plants. People who are interested in operating a "marijuana establishment" will apply for a license from the newly renamed Division of Alcoholic Beverage and Marijuana Control. A 7% sales tax, which would not apply to medical marijuana, would be used for worthwhile purposes including repairing NJ's transportation infrastructure.
Chris Christie's probable reaction from statements at a town hall-"I will not decriminalize marijuana," Christie said. "I will not permit recreational use, and I will not legalize marijuana, because I think that is the wrong message to send to the children in this state and to young adults."