Wednesday, March 12, 2014
A couple of years ago, filmmaker and Star Trek fan Terrance Huff released a YouTube video that went semi-viral after experiencing an all-too-common drug war practice.
Huff and his friend John Seaton were driving back to Ohio after visiting a St. Louis Star Trek exhibit when they were stopped, supposedly for an unsafe lane change. Following the questionable stop, Officer Michael Reichert started asking Huff if there were any drugs in the car and for consent to search. Eventually, Reichert ran a drug dog around the car. On the side of Huff's car that was not visible from the police-dash cam, the dog "alerted" (very likely, it seems, after prompting from Reichert.) Reichert then searched the car, claiming to have found marijuana shake (which, from the video, seems almost certainly to have been a lie). Reichert then let Huff and his friend go with a warning.
At the time the video was released, Radley Balko wrote a great piece on the incident and what it says about drug war-era policing. As Balko explained, the encounter had "all the markings of a forfeiture fishing expedition." Reichert likely pulled the car over because it had out-of-state plates and though he did not have anything approaching probable cause, he probably hoped a search would reveal drugs so his office could steal--err, I mean take through asset forfeiture--Huff's car.
These sorts of incidents are all-too-common. I had a close friend experience something very similar while driving through Utah with California plates (he was moving after finishing graduate school with his father as his road trip-partner). The cop searched through his bags for about an hour, assuring my friend that he didn't care all that much if there was a little marijuana in the car and encouraging him to just admit where it was. My friend did not have any marijuana or other drugs so, eventually, after the officer had wasted a good hour-plus of law enforcement time, my friend and his dad were allowed to continue on their way.
Usually, Huff's unpleasant encounter wouldn't have gone beyond that road in Collinsville, Illinois. But Huff was upset enough and resourceful enough to get Reichert's dash cam video and release his fantastic YouTube video that gained a bit of a following. (As an aside, I know a few law professors (myself included) who have used the video in class.)
Huff didn't just stop at releasing his video, however. He also filed a civil suit. Reichert's motion for summary judgment was denied and, of course, he appealed. On Monday, the Seventh Circuit upheld the denial of summary judgment. The decision is not especially groundbreaking as far as the law. The court goes through a pretty straightforward analysis explaining (among other points) that the police can't just pull people over because they have out-of-state plates and that there are enough disputed facts to survive summary judgment.
Though not a big legal development, I thought the news might be of interest to those who've seen the video already (and, especially to anyone who might use it in their course.) I was certainly glad to learn that the lawsuit is moving forward. And, for those who haven't seen the video, the decision is a good excuse for me to post it. It's a little lengthy--17 minutes or so--but worth a watch for those interested in highway drug enforcement shakedowns.
One last side-note sure to inspire confidence in drug war policing practices: in his deposition, Reichert admitted that he "randomly plant[s] drug scent on cars in public parking lots in order to train his dog, Macho."
Monday, February 17, 2014
As Doug has blogged about before, reforms and changing attitudes about marijuana laws raise the question of whether long sentences for small-time marijuana offenders may violate the Eighth Amendment.
Last Friday, a Lousiana appeals court considered this question, upholding a 13 1/3 year sentence for (.pdf) "possession of a small amount of marijuana."
The defendant's conviction was his fourth for marijuana possession, apparently warranting a mandatory minimum 13 1/3 year sentence under Louisiana's Habitual Offender Law. At first, the trial court departed from the mandatory minimum and imposed a (still very lengthy) five-year sentence. The intermediate appeals court upheld the sentence but the Lousiana Supreme Court reversed and vacated the five-year sentence. On remand, the trial court reluctantly sentenced the defendant to 13 1/3 years.
On appeal, the defendant argued that a 13 year sentence for marijuana possession was constitutionally excessive. The appeals court disagreed, seemingly finding itself constrained by the prior state Supreme Court ruling:
Although both trial judges clearly found that the mandatory minimum sentence in this case (thirteen and a half years) is grossly disproportionate to the crime in this case (possession of two marijuana cigarettes), particularly when compared to other jurisdictions,1 at the resentencing hearing the trial judge was unable to articulate additional reasons beyond those already found insufficient by the Louisiana Supreme Court to support a downward departure in this case.
The decision included a concurrence (.pdf), expressing concern about the long sentence:
The facts in this case are simple. The middle-aged defendant has no history of violence. He has an excellent work history and record of supporting his seven children. The trial judge reluctantly imposed the draconian (as it applies to this defendant and this offense) sentence mandated by the multiple offender statute. I point out (as did the trial judge at the resentencing hearing) that the per curiam issued in this case by the Louisiana Supreme Court implicitly ignored or overruled its own precedent in Dorthey, supra, thus leaving this court and the trial court without guidance as to what, if anything, remains of the discretionary authority of the trial and intermediate appellate courts to determine whether a sentence is constitutionally excessive as to a particular defendant or whether such judicial authority is now totally subsumed by the state’s discretionary authority to multiple bill a defendant.
This is not to say that I approve of the use or distribution of marijuana, but, like the majority notes, the crimes of which Mr. Noble has been convicted have been related to harm that he primarily and directly has caused to himself.
In my view, this is not the case that our courts should be using as the poster child for harsh sentencing.
Thursday, January 23, 2014
In an earlier post, I explained why courts won’t enforce some contracts between marijuana dealers and their investors, landlords, suppliers, etc.
Without the state’s help in enforcing their bargains, the state-legalized marijuana industry will face higher costs of doing business compared to other industries. After all, contracting parties are more likely to engage in opportunistic behavior (e.g., refusing to repay a loan) when their partners have no legal recourse.
But the unavailability of legal remedies isn’t the “final nail in the coffin” of the marijuana industry because there are viable, albeit second-best alternatives to contract law. Indeed, black markets can flourish without lawful contracts (think Silk Road), and even lawful businesses sometimes prefer cheaper non-legal solutions to expensive legal ones.
Here I briefly tease out some non-legal strategies the marijuana industry and its partners might pursue in the wake of an Arizona court ruling holding their contracts unenforceable. (Note I purposely avoid illegal strategies, like, well, this.)
One, obvious solution is to limit the universe of contracting partners, namely, to persons who are known and can be trusted. Indeed, reputation plays a pivotal role in some industries (think Amazon, EBay, and their illicit cousin Silk Road). A good reputation is a valuable asset, one that vendors won’t sacrifice too readily (particularly when they hope to remain in the industry). For example, if a marijuana dealer like the one in my prior post thought it might need future financing, it would be less likely to walk away from $500,000 in obligations to its current lenders. Firms can even take this idea to the next level and integrate. Indeed, Colorado has required vertical integration of marijuana growers and sellers. Such integration creates its own problems, but a dealer which grows its own stock now at least doesn’t have to worry about enforcing deals with third-party suppliers.
A second strategy involves taking various forms of self-protection against breach. Think of a security deposit paid to a landlord. The deposit reduces the risk to the landlord that the tenant will just walk away from the lease. The payment of such a deposit should help marijuana dealers secure leases. And as long as tenants remain in possession of the property under lease, they have their own ways of protecting themselves against breach by landlords.
In short, there are alternative, albeit second best alternatives to contract law. Readers, I would be curious to know how people are now handling deals in the marijuana industry.
Tuesday, January 21, 2014
Early federal drug prohibition laws operated in a cumbersome manner. At the time, courts took a restrictive view of the federal government's Commerce Clause power. So Congress had to rely on its taxing power to enact federal drug prohibition.
Though they are rarely employed, a number of states still have drug tax stamp laws on the books (PDF). The state drug tax stamp laws operate alongside state laws criminalizing drug possession and distribution as a way to impose additional punishment and, perhaps, collect a bit of money.
Of states with these laws, Kansas is one of the few that seems to have employed them with any regularity. It looks like that will change as the Kansas Supreme Court issued an opinion last week limiting the use of the Kansis drug tax stamp law:
A drug tax-stamp law that has been on the state’s books for more than 25 years lost some of its teeth last month when the Kansas Supreme Court ruled that a defendant who has been convicted of possession of marijuana can’t be convicted of possessing the same marijuana without a tax stamp.
The case, State v. Hensley, has prompted the dismissal of a handful of tax-stamp charges in Sedgwick County and is expected to prevent the future filing of such charges in routine drug cases.
“We’re just not going to file them unless there are some exceptional circumstances involved,” District Attorney Marc Bennett said.
The Supreme Court case involved a Saline County man, Michael Rae Hensley, who was charged with possession of marijuana with intent to sell after officers found 200 grams of marijuana in his freezer in 2007. Investigators also confiscated a baggie containing marijuana, a marijuana roach, some rolling paper and a pipe. Hensley was convicted of possession of marijuana, possession of marijuana with no tax stamp affixed and possession of drug paraphernalia. He was placed on probation but appealed the convictions.
Although the court rejected several points of Hensley’s appeal, it agreed that he should not have been convicted of both the possession and tax-stamp charges.
Friday, January 17, 2014
I'm very excited to be guest-blogging here--thanks so much, Doug, for the invitation! My start was delayed by travel and some administrative glitches but I've finally gotten everything sorted and I'm looking forward to being a part of the blog.
Although Friday night is a low-traffic time for my first contribution, I just came across a case decided earlier this week that I could not resist sharing.
As Colorado and Washington wrestle with marijuana legalization and even many prohibition supporters say they want to reduce reliance on the criminal justice system when it comes to marijuana, this decision (PDF) from a Louisiana appeals court is a reminder that people can still receive long sentences for minor marijuana offenses in parts of the United States.
As a legal matter, the case isn't exceptional. In a brief opinion, the court rejects Russell Jones's attempt to challenge his 14-year sentence following a plea deal. What's striking is what has landed Jones in prison for the next 14 years: selling $40 worth of marijuana.
The prosecutor recited the factual basis for the plea as follows
“Your Honor, if this matter were to go to trial, the State would present evidence, both audio and video, which would prove that Russell Jones, on or about the 28th day of February 2012, did knowingly and intentionally distribute a Schedule 1 controlled dangerous substance, namely, marijuana, to a confidential informant, while located here in Webster Parish on Milton Drive, which is in the City of Minden. We would present evidence which would show that at approximately 10:50 a.m., Mr. Jones came in contact with the confidential informant and did exchange with the confidential informant four bags of suspected marijuana for $40 from the confidential informant. The substance that the confidential informant received was sent to the North Louisiana Criminalistic Laboratory and in fact determined to be Schedule I, marijuana.”
The decision isn't long on detail but footnotes referencing Jones's "significant criminal history" indicate that recidivism played a role in the sentence.
Nevertheless, I think it's noteworthy (and, in my opinion, sad and depressing) that someone can end up with a 14-year sentence for selling $40 worth of a substance that roughly half of the country thinks ought to be legal.
Wednesday, January 15, 2014
Businesses are built on contracts. Consider a mom and pop grocer. It will have a lease agreement with its landlord, purchase agreements with the firms that supply its food, and loan agreements with the investors who provide financing for equipment, inventory, etc. We take it for granted that such contracts are enforceable. For example, if the grocer fails to make timely loan payments, we know its lenders can sue for breach. And if the court adjudicates in their favor, the state will use its coercive power to help the lenders recoup their principal and unpaid interest against the delinquent borrower.
But what if those contracts are not enforceable? That’s a very real possibility now confronting parties doing business with the marijuana industry in Colorado and elsewhere. In at least one recent decision, a state court has refused to enforce loan agreements between two investors and a retail medical marijuana shop operating in Colorado. Under the agreements, the investors provided $500,000 to finance the shop’s sale and distribution of marijuana in Colorado, for which the shop promised to pay 12% interest annually. When the shop failed to make those payments on time, the investors sued to recoup their principal and unpaid interest in an Arizona state court. But the court balked. Noting that the sale of marijuana remains illegal under federal law, and reflexively citing a contract doctrine that discourages enforcement of contracts against public policy, the court dismissed the investors’ lawsuit. It essentially allowed the marijuana shop to walk away with $500,000 of the investor’s money. Ouch. (The opinion and some analysis of the case can be found here.)
I’m no contracts scholar, but I have some doubts about the court’s rather superficial and cursory analysis of contracts doctrine (the opinion runs all of three pages). The late Allan Farnsworth’s venerable Contracts treatise suggests that contracts against public policy are not per se void, and that a court needs to engage in a more nuanced balancing of interests before refusing to enforce one. In particular, Farnsworth instructs courts to consider the strength of the public policy involved and the justified expectations of the parties. And on the basis of such factors, the Arizona court’s decision appears unsound. For one thing, it’s not clear the agreement is against a relevant public policy. After all, both Arizona and Colorado have legalized medical marijuana, and it’s not obvious to me why their policy interests should be passed over in favor of Congress’s, at least as a matter of contract law. What’s more, it seems likely all parties expected their agreement would be enforced. The only factor that suggests otherwise is the rather high rate of interest involved, which might have reflected awareness that the agreement entailed unusual risks, including perhaps the risk of non-enforcement. But at the very least, the court should have done a better job justifying its decision to let the shop walk away with someone else’s $500,000.
Even if the court erred as a matter of contract law, however, there might be a sounder basis on which to bar enforcement of these agreements: preemption. The investors in this case were asking the state to help them violate federal law. Whether or not this offends contracts principles, it likely offends the Supremacy Clause. As I mentioned in my post Monday, Congress has the constitutional authority to block all state interference with the private market, including, in a case like this, a state’s intervention in a contract dispute between two private parties. To be sure, as I’ve explained in more detail elsewhere, Congress might not want to preempt enforcement of all contracts involving the marijuana industry. But its unlikely to tolerate enforcement of at least some types of contracts. Suppose, for example, that the shop had sued its landlord for wrongful eviction. If the court ordered the landlord to reinstate the shop to its premises, it would force the landlord to violate a provision of federal law making it a crime to rent property to drug dealers.
In sum, caveat contractor.
In my next post, I’ll discuss what parties can do to adapt to this legal predicament.
Monday, January 13, 2014
Thanks for inviting me! I really appreciate the opportunity to post here. In my first few posts, I’ll be discussing federal preemption of state marijuana reforms, a topic on which I’ve written extensively.
To my mind, federal preemption constitutes a very potent threat to some state marijuana reforms, notwithstanding the Department of Justice’s assurances that it has no plans to challenge state marijuana reforms. While I believe the DOJ, it isn’t the only entity that can challenge state law on preemption grounds, and there is no shortage of persons interested in doing so. Indeed, over the past decade, local officials and private firms have filed dozens of lawsuits asking courts to block state marijuana reforms as preempted.
To be sure, I think most of the suits that have been brought to date lack merit. Many of them have failed to acknowledge that federal supremacy has some limits. Chief among these is a constitutional doctrine called the anti-commandeering rule. In a nutshell, this rule says Congress may not force a state to regulate marijuana or to help the federal government enforce its own brand of marijuana regulations. In other words, states may always adopt a laissez faire approach toward marijuana, regardless of how Congress treats it.
But most states don’t want to simply legalize marijuana, they want to regulate the drug. Think licensing requirements for distributors, labeling requirements for marijuana products, and employment protections for some users. And herein lies the problem. Any state regulation of the private marijuana market can be preempted by Congress. Of course, Congress doesn’t want to preempt all state regulation. After all, many state regulations short of prohibition will still further federal objectives. Requiring vendors to obtain a state license, for example, should help limit access to marijuana, and Congress probably prefers some state controls to none at all.
But there are some types of state regulation that arguably impede federal objectives and are thus vulnerable under classic conflict preemption principles. These include state redistribution of marijuana (per the Cuomo New York plan, as Sam discussed last week) and perhaps even state enforcement of marijuana contracts. I’ll be writing about these issues in greater detail in the coming days and weeks. In the meantime, thanks again for having me!
Monday, November 4, 2013
Sentencing judge explains his view on how nationwide reforms should impact federal marijuana sentencing
The evolving landscape of state law and federal enforcement policy regarding marijuana is particularly relevant to two of these [statutory sentencing] factors, namely (1) the need for any sentence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” § 3553(a)(2)(A), and (2) the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” § 3553(a)(6).....
The Court’s role is not to question, criticize, or laud the Justice Department’s new enforcement priorities or the recent enactments of state voters and legislators. These policy choices reflect an on-going effort to address a complex, difficult, and highly controversial issue. Rather, the Court’s role is simply to take note of these developments and consider them as part ofits assessment of the seriousness of these offenses. Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” § 3553(a)(2)(A)....
The Court also finds that Guidelines sentences in these cases would fail to address the “need to avoid unwarranted sentence disparities among defendant s with similar records who have been found guilty of similar conduct.” § 3553(a)(6). The Court construes this factor broadly, interpreting it as a command to ensure that sentences comport with the notion of equal justice under the law. The Justice Department has decided it will not prosecute certain marijuana traffickers, including large-scale commercial distributors who, in compliance with state laws and regulations, establish retail outlets that cater to recreational marijuana users in Colorado and Washington. Although the illegal enterprise in these cases is not identical to these commercial distributors — i.e., it did not comply with the laws or regulations of any state and implicated several federal enforcement priorities — it nonetheless bears some similarity to those marijuana distribution operations in Colorado and Washington that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities. As a result, the Court finds this factor too justifies a downward variance from the sentence the Guidelines would otherwise recommend....
Of course, these two factors are not the only ones the Court must consider under § 3553(a). Others, particularly “the nature and circumstances of the offense,” § 3553(a)(1), and“the need for the sentence imposed to afford adequate deterrence to criminal conduct” § 3553(2)(B), militate more strongly in favor of a Guidelines sentence. Indeed, the conspiracy at issue in these cases was a large, elaborate, and profitable illegal operation involving well in excess of 1,000 kilograms of marijuana. The Court therefore believes that a two-level variance from the Guidelines, which would reduce each defendant’s sentence by roughly 20 to 25%, is appropriate. Such a variance reflects national trends in the enforcement of marijuana-related offenses, while recognizing the undeniable illegality of defendants’ conduct. As it determines the sentence of each defendant in these cases, the Court will adopt this analysis, and accordingly it will grant each defendant the benefit of a two-level downward variance.
Recent related post:
- Do nationwide reforms now call for federal judges to sentence below the guidelines in all marijuana cases?
Sunday, September 15, 2013
Will Big Pharma, and "the Impact of Marijuana Pharmaceuticals," determine the future of marijuana reform?
The FDA will soon approve Sativex, the first marijuana-based pharmaceutical. Sativex is a tipping point in the marijuana law and the politics of strict prohibition. The reclassification of marijuana under the Controlled Substances Act is in the financial interests of the American pharmaceutical industry. The availability of marijuana-based, or synthetic cannabinoid-based, pharmaceuticals will change the politics of marijuana prohibition.