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.
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.
Monday, March 31, 2014
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.
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.
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.
Saturday, March 15, 2014
The retroactive application of Amendment 64 wasn't the only marijuana law issue before the Colorado appellate courts this week. In a decision that affects a much narrower group of defendants than the Amendment 64 issue, an appeals court (PDF) held that a doctor's post-arrest assessment will not help medical marijuana patients who want to grow more than 6 plants:
Section 14(4)(b) (the 14(4)(b) defense) of the Medical Marijuana Amendment (Amendment), article XVIII of the Colorado Constitution, creates an affirmative defense to the offense of cultivating marijuana, where the plants are needed for medical use. Whether this defense can be asserted based on a physician’s assessment obtained after the offense has been committed presents a novel question. We conclude that the 14(4)(b) defense cannot be raised based on such an after-the-fact assessment. Therefore, we affirm the judgment of conviction of defendant, Stephen S. Fioco, entered on a jury verdict finding him guilty of cultivating more than six but fewer than thirty marijuana plants.
Thursday, March 13, 2014
The interwebs are abuzz with news today that some pre-Amendment 64 marijuana offenders may be able to get their possession convictions wiped away. The appellant, Brandi Jessica Russell, was convicted of possessing less than one ounce of marijuana in August 2011 based on conduct that "occurred twenty months beforeAmendment 64's effective date."
In Colorado, courts presume a change in the law has prospective application only, absent an express intent to the contrary. This presumption can be overcome, however, in some circumstances. Specifically: "Section 18-1-410(1)(f)(I), C.R.S. 2013, permits a defendant to receive postconviction relief if 'there has been significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.'"
The Court held that "Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for 'a significant change in the law' and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct." In reaching this decision, the Court relied on a 1970s-era precedent that reduced some marijuana offenses from serious felonies to misdemeanors. The earlier case seems to be directly on point. Though I do not know anything about this area of the law, the Court's discussion leaves the impression that its decision is on pretty firm ground and unlikely to be overturned in the event the government appeals.
The decision does not appear to open the door for everyone who has a Colorado marijuana possession. The opinion notes that the 1970s case applies to defendants "on direct appeal" and the holding on this issue concludes: "Because defendant’s convictions were pending appeal when Amendment 64 became effective on December 10, 2012, her convictions for possession of marijuana concentrate and less than one ounce of marijuana must be reversed and vacated."
Similarly, because the decision is based on Colorado state law, I suspect it is unlikely to have any significant impact in other states (e.g., Washington), unless those states have similar retroactivity statutes.
Though the decision is limited (both inside Colorado and in its likely impact outside the state), it will give Coloradans with marijuana possession convictions on direct appeal the opportunity to get their record (at least for that charge) cleared. The case also raises the question of whether state legislatures may want to consider going further and permitting those with older convictions to seek expungement.
You can read the decision here (PDF).
Federal law makes it a crime for anyone who is an "unlawful user of or addicted to any controlled substance" to possess a gun or ammunition. It is also illegal to sell a gun to someone you know or have "reasonable cause to believe" is an unlawful user or addicted to a controlled substance.
With the rise of medical marijuana laws and the Supreme Court's determination that the Second Amendment grants an individual right to possess a firearm, is there any problem applying these gun laws to state-recognized medical marijuana patients?
Earlier this week, a Nevada District Court considered and rejected a challenge to these laws by a medical marijuana patient:
In September 2011, because of the growing number of states that permit the medicinal use of marijuana, the ATF issued an "Open Letter." Bureau of Alcohol, Tobacco, Firearms and Explosives, Open Letter, Open Letter to All Federal Firearms Licensees-The use ofmarijuana for medical purpose and its applicability to Federal firearms laws.
Notably, this letter informed all individuals licensed to sell firearms ("Federal Firearms Licensees" or "FFLs") that "if [the seller is] aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have 'reasonable cause to believe' that the person is an unlawful user of a controlled substance." Id. Thus, the letter advised FFLs and provided them notice that the agency which issues their license (the BATFE) interpreted § 922 as not only criminalizing the possession of a firearm by a registry card holder, but also the sale of a firearm to a registry card holder.
In the fall of 2010, due to her struggle with severe dysmenorrhea, Plaintiff applied for and obtained a state marijuana registry card. Plaintiff subsequently applied to purchase a firearm at a gun store in Mound House, Nevada. However, the store's proprietor prevented her from completing her application he knew she carried a state marijuana registry card.
As a result, Plaintiff filed this lawsuit in October 2011. In her suit, Plaintiff challenges the constitutionality of the two provisions of the Gun Control Act that effectively criminalize the sale and possession of a firearm by the holder of a registry card: 18 U.S.C. §§ 922(d)(3) and (g)(3). Plaintiff also challenges the constitutionality of one of the accompanying regulations, 27 C.F.R. § 478.11, that defines the term "unlawful user of or addicted to any controlled substance" as used in §§ 922(d)(3) and (g)(3). Finally, Plaintiff challenges the ATF policy that federal firearms licensees may not sell a firearm to persons they know are "in possession of a card authorizing the possession and use of marijuana under State law . . .." ATF Open Letter. Plaintiff claims that these provisions, along with the ATF policy, violate her Second Amendment right to "keep and bear Arms"; her First Amendment right to free speech; as well as her rights to substantive due process, procedural due process and equal protection as secured by the Fifth Amendment.
In response to Plaintiff's initiating this action, Defendant filed a Motion to Dismiss . . . which, for the reasons discussed below, the Court grants.
A brief search did not turn up a publicly available version of the decision. But it is up on lexis at Wilson v. Holder, 2014 U.S. Dist. LEXIS 31905.
A California appellate court issued a decision earlier this week considering "whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement."
The defendant was a medical marijuana patient and among the issues in the case was whether California's medical marijuana laws impact this question. As I posted yesterday, the Seventh Circuit recently issued some defense-friendly dicta on this question. The California court, however, held squarely for the government.
That appellant possessed a valid 215 card does not vitiate Deputy Griffin's probable cause to search the truck pursuant to the automobile exception.
That California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception. Here, Deputy Griffin was entitled to investigate to determine whether appellant possessed marijuanafor personal medical needs and to determine whether he adhered to the CUA's limits on possession. “Otherwise, every qualified patient would be free to violate the intent of the medicalmarijuana program expressed in section 11365.5, and deal marijuana from his car with complete freedom from any reasonable search.” (Strasburg, supra, 148 Cal.App.4th at p. 1060.) Deputy Griffin testified at the preliminary hearing that people often possess more marijuana than allowed under the CUA and “hide” additional quantities of marijuana in their vehicles. It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities ofmarijuana might be found in the car. (Dey, supra, 84 Cal.App.4th at p. 1322; Hunter, supra, 133 Cal.App.4th at p. 382 [“discovery of marijuana in the passenger area of defendant's car” did not foreclose possibility of additional “drugs being found in the trunk” and noting “marijuana is a drug that can be concealed in a variety of containers”].)
The full opinion is here (PDF).
Wednesday, March 12, 2014
Marijuana reforms present some interesting Fourth Amendment questions. In particular, does the scent of marijuana give the police probable cause to search in a state where some of the residents (i.e., medical marijuana patients) can legally possess the drug? The issue has been litigated here and there but it's still very much an open question and the answer may depend on the particulars of state law (for example, does the state create an affirmative defense for medical marijuana patients at trial or does it give patients protection from arrest.)
Those who follow (or even have the occasion to litigate) the issue may be interested in some defense-friendly dicta from this recent Seventh Circuit decision on exigent circumstances and the smell of burnt marijuana:
The possession of a small amount of marijuana is far from that rare case. In all of the states in this circuit, mere possession is only a misdemeanor. In fact, in Illinois, possession will soon no longer be per se illegal under state law, as Illinois has begun implementing regulations to permit the use of medical marijuana for qualifying individuals. See Medical Cannabis Pilot Program, ILLINOIS.GOV, http://www2.illinois.gov/gov/mcpp/Pages/default.aspx (visited March 5, 2014). Thus, once this regulatory scheme is in place, the smell of burning marijuana will not necessarily be indicative of any wrongdoing under Illinois law.
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.