Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Friday, September 25, 2015

Highlighting federal tax dollars still being spent to eradicate marijuana in legalization states

This interesting local report, headlined "Feds still waging war on weed in Oregon," details that state marijuana reform does not necessarily reallocate federal resources spent on the drug war. Here are the details:

Cannabis may be legal in Oregon, but police are still waging a war on weed.  A KGW investigation found the U.S. Drug Enforcement Agency is sending more than $750,000 to police in Oregon this year to snuff out pot operations.

“I think the DEA’s marijuana eradication program is a huge waste of federal taxpayer dollars,” Representative Ted Lieu, a Democrat from California, told KGW.  “We have states like Oregon, Washington and Colorado that have legalized marijuana and then you’ve got the federal government trying to eradicate it,” said Lieu.  “That doesn’t make any sense.” Congressman Lieu is pushing to get rid of the DEA’s $18 million marijuana eradication program.

In Oregon, the bulk of the anti-pot money is used for police to search for marijuana farms by helicopter and then have officers trample though the woods to pull out plants. “Those of us in reform have always seen eradication programs as largely a make-work, overtime program for cops to go pull weeds and spend taxpayer money on helicopters,” said Russ Belville, executive director of Portland NORML (National Organization for the Reform of Marijuana Laws).

Last year, state records show drug teams in Oregon spent $275,000 for police overtime and $685,000 for use of a helicopter. In 2015, Oregon will get $762,000 from the DEA’s eradication program. In August, the Oregon Department of Justice gave $450,000 of federal money to Brim Aviation of Ashland to help look for marijuana farms....

According to intelligence reports, violent Mexican drug cartels have been connected to large outdoor marijuana farms in Oregon. These sophisticated criminal gangs have been known to protect their grow operations with armed guards, booby traps and razor-wired fences. “This program has proven effective in dismantling and disrupting drug trafficking organizations, has protected public and tribal lands from illegal marijuana grows, and in 2014 was responsible for the removal of almost 5,000 weapons from cannabis cultivators,” said Special Agent Joseph Moses of the DEA....

In 2014, police in Oregon destroyed 16,067 cannabis plants, down from 26,597 pot plants in 2013 and 27,641 plants in 2012. Drug cops theorize that Mexican drug cartels have moved away from growing pot. Instead, they’re focused on trafficking other illegal drugs like heroin and methamphetamine.

“When there were huge cartel problems, we needed that money. But now we don’t,” said Jackson County Sheriff Corey Falls. Earlier this year, Falls disbanded a regional marijuana task force called SOMMER, or Southern Oregon Multi-Agency Marijuana Eradication and Reclamation. “I wanted to focus on person crimes,” said Falls. “Child abuse, sex assault, crimes against people.”...

“It makes no sense for one hand of government doing one thing, such as eradicate marijuana and have other parts of government, such as state governments, legalizing it,” said Rep. Lieu. “The war on marijuana has largely failed and the federal government should get out of the way.”

September 25, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, September 23, 2015

Is Ohio already the most interesting laboratory of democracy for marijuana reform?

A number of smart folks have talked about state-level marijuana reform as, in the words of GOP Prez candidate Ted Cruz,  "a great embodiment of what Supreme Court Justice Louis Brandeis called ‘the laboratories of democracy.’”   These two new stories about marijuana reform efforts in Ohio has me thinking that the Buckeye state is already in the midst of one of the most interesting and dynamic experimental forms:

 "A medical marijuana farm for Ohio?"

Excerpt: Dr. Suresh Gupta ticked off a list of conditions that marijuana could help alleviate: nausea, cancer, glaucoma, HIV, post-traumatic stress disorder, irritable bowel syndrome.... Gupta is one of several wealthy donors who contributed millions to help bankroll ResponsibleOhio’s effort to place marijuana legalization on the ballot and limit marijuana growing facilities to 10 locations....

Gupta, along with a Columbus co-investor, wants to grow multiple types of marijuana at the Pataskala facility, focusing on treating specific conditions.  The nine other marijuana farms will focus on growing marijuana to be sold at retail stores.  He also plans to use about 40,000 square feet for a research facility he’s calling the International Cannabis Institute.  There, researchers, chemists and microbiologists would study the makeup of each crop and replicate the best strains, Gupta said.  “In the United States, there’s virtually no research being done,” Gupta said.

"ResponsibleOhio moves marijuana offense expungement law forward"

Excerpt: The group behind November's marijuana legalization initiative said Tuesday it had collected more than enough signatures to advance a separate measure that would allow marijuana convictions to be purged. ResponsibleOhio, the group backing Issue 3, said it collected 236,759 signatures of registered Ohio voters to put the Fresh Start Act before state lawmakers next year -- 91,677 are needed to qualify....

Issue 3 would legalize recreational and medical marijuana sales and use for adults over age 21. Commercial growing would be limited to 10 sites belonging to initiative backers, and Ohioans could grow small amounts of marijuana at home. The Fresh Start Act would allow people with convictions made legal by Issue 3 and offenses made legal in the future to file a petition in court to reduce or eliminate their sentences or expunge, or destroy, their criminal records....

ResponsibleOhio Executive Director Ian James said many low-level offenders are unable to obtain employment or secure housing because of criminal background checks. "This allows people ability to move forward," James said at a news conference with several Ohio clergy members.

As an initiated statute, the Fresh Start Act would go before the legislature in January 2016. Lawmakers would have four months to pass the bill, pass a revised version, or reject the bill. If the language is changed or rejected, ResponsibleOhio would have to collect some 92,000 more signatures to put the measure before voters.

The Fresh Start Act would not automatically erase records or free inmates, and it wouldn't apply to federal marijuana offenses. Offenses that are illegal now and would remain illegal under Issue 3, such as driving under the influence of marijuana, would not be eligible for expungement under the proposed law.

Both of these stories suggest marijuana legalization in Ohio, if passed by voters this Novermber, would trigger novel legal and practical development that could significant reshape future marijuana reform efforts. Indeed, the existing ballot measure in Ohio, Issue 3, is already novel and interesting because it is trying to get Ohioians to support moving from blanket prohibition to full legalization in one vote and the effort is being backrolled by a group of investors poised to have a legal advantage in the future marijuana market based on the provisions of Issue 3.

How these experimental elements of proposed reform play out in the Buckeye state is already making Ohio a laboratory of democracy worth watching. And if Issue 3 is approved by voters, Ohio seems sure to have lots of experimental developments and data that should help advance the national dialogue and debate on these matters for years to come.

September 23, 2015 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Initiative reforms in states, Medical community perspectives, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Massachusetts top court says marijuana reforms limit police authority to stop drivers

As reported in this Boston Globe article, headlined "SJC bans police stops solely for suspected marijuana: Court ruling cites 2008 decriminalization law," a top state court yesterday ruled that state marijuana reforms necessarily changed policy powers related to suspicion on drug offenses. Here are the details:

In a decision hailed by civil rights advocates and supporters of marijuana legalization, the state’s highest court ruled Tuesday that police cannot stop motorists solely because they suspect the vehicle’s occupants are in possession of the drug.

The Supreme Judicial Court based its 5-2 ruling largely on a measure that voters approved in 2008 that reduced possession of an ounce or less of marijuana from a criminal offense to a civil violation punishable by a fine.

“Permitting police to stop a vehicle based on reasonable suspicion that an occupant possesses marijuana does not serve [the] objectives” of the law change, Justice Margot Botsford wrote for the majority. Botsford wrote that allowing such stops “does not refocus police efforts on pursuing more serious crime,” another goal of changing the law.

The ruling does not prevent police from issuing citations for marijuana possession if they stop a driver for a traffic infraction, such as speeding, and later notice marijuana in plain view inside the vehicle.

otsford’s opinion was welcomed by the Campaign to Regulate Marijuana Like Alcohol in Massachusetts, a group pushing for a 2016 ballot question that would legalize marijuana for adult recreational use. Jim Borghesani, a spokesman for the campaign, said in a statement that the ruling “provides further clarification for how police officers should handle vehicle stops in the era of decriminalization, and it advances the clear message sent by voters in 2008 to refocus police activity on more serious crimes.”

Matthew Segal, legal director of the ACLU of Massachusetts, echoed that view, saying that with the vote to decriminalize marijuana in 2008, residents of the Commonwealth were making a statement “about how the police ought to spend their time and the taxpayers’ money.” Pulling over a car on suspicion of marijuana possession, he said, is “not consistent with the Massachusetts constitution, nor is it consistent with the will of the voters who passed decriminalization.”

David Procopio, a State Police spokesman, said in a statement that troopers are not primarily concerned about a vehicle occupant who possesses an ounce or less of marijuana. He said troopers usually make observations of marijuana use after stopping a car for other reasons, such as traffic infractions.

“What does concern us about marijuana, even amounts less than an ounce . . . is whether the operator has used it and is thus driving while impaired,” Procopio said. “The voters decriminalized possession of less than an ounce. That does not mean that using less than an ounce means you are OK to drive . . . and this ruling will have no impact on the observations we use to establish probable cause for drugged driving or our determination that a driver should be charged as such.”

Botsford’s opinion followed SJC rulings in 2011 and last year finding that the odor of burned marijuana alone does not provide grounds for police to order occupants to exit a car, and that the smell of burned or unburned marijuana does not justify searching a vehicle without a warrant.

Bristol prosecutors who argued the Rodriguez case before the SJC asserted that police can stop vehicles for a civil marijuana offense, just as they can for a civil traffic offense. The court rejected that argument, finding that traffic laws promote road safety, but there “is no obvious and direct link” between issuing civil citations for marijuana possession and maintaining highway safety.

Justice Robert Cordy, in a dissenting opinion, expressed a different view, writing that even if not all civil marijuana violations affect highway safety, infractions “occurring in motor vehicles do implicate concerns regarding traffic and automobile safety.” He argued that “there is no constitutionally based reason to distinguish” motor vehicle stops for civil marijuana violations from stops for traffic infractions.

The full opinion in Commonwealth v. Rodriguez, No. SJC 11814 (Mass. Sept. 22, 2015), is available at this link.

September 23, 2015 in Court Rulings, Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Tuesday, September 22, 2015

Detailing distinctive dynamics of marijuana reform in Oregon

Yesterday's New York Times had this lengthy article, headlined "Oregon’s Legal Sale of Marijuana Comes With Reprieve," which discusses various differences in the various approaches Oregon is taking to marijuana reform. Here are excerpts:

Oregon was not the first state to legalize recreational marijuana, which happened through a state ballot vote last November, nor is it the largest. But in preparing to begin retail marijuana sales next month, it is nonetheless blazing a profoundly new trail, legal experts and marijuana business people said.

“Oregon is one of the first states to really grapple with the issue of what do you do with a record of something that used to be a crime and no longer is,” said Jenny M. Roberts, a professor of law at American University in Washington, D.C., who specializes in criminal law and sentencing....

“In criminal law reform on marijuana, Oregon has gone further than anyone else,” said Leland R. Berger, who specializes in marijuana law and practices in Portland. But the differences in Oregon’s way of handling marijuana go far beyond criminal law.

The state’s recreational marijuana taxes paid by consumers will be among the lowest in the nation. Across the border, Washington tacks on a 37 percent tax, compared with 17 percent in Oregon and a 3 percent local, optional addon.

That raises the possibility here in the Northwest, at least, of a border war, if marijuana consumers start crossing into Oregon for lower prices. (They already do for many other purchases, since Oregon has no regular state sales tax, either.) But Oregon officials say their main motive in tax policy is to better compete with the still-­illegal unregulated market at home, offering prices closer to what people are used to but with products and producers now inspected and monitored.

Oregon also rejected ideas tried in Washington and Colorado about how to monitor and license new industry participants. Washington, for example, created a set number of licenses and held a lottery to distribute them; Oregon is setting no limits on how many businesses can enter the industry. Likewise, Oregon has no barriers to so­called vertical integration ownership, in which one company can control the product from growth to sale, a practice Washington also restricts.

In Washington and Colorado, the police must administer blood tests on drivers suspected of marijuana impairment. To avoid such a tricky and cumbersome system, Oregon legislators adopted a more open­ended standard approved by voters, which lets an officer use his or her judgment as to whether a person is too high to drive.

September 22, 2015 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Friday, September 18, 2015

Ohio editorial highlights civic engagement that marijuana issues can produce

This new Toledo Blade editorial about a recent local marijuana decriminalization vote highlights a variety of themes that I am always drawn to when discussing the various benefits of robust debate over modern marijuana law and policy.  The subheadline of the editorial highlights its coverage: "Toledoans’ vote to decriminalize marijuana has implications for voter turnout,  campaigning, and public policy."   Here are excerpts: 

Toledo voters’ decision to decriminalize marijuana in the city, reducing penalties for the drug to the minimum allowed by state law and repealing penalties for possessing small amounts of marijuana, drove voter turnout in this week’s municipal primary to 9 percent. That may not sound like a lot, but it doubled the turnout from the comparable election four years ago. City and state officials should pay attention.

The marijuana measure drew votes from more than 11,000 Toledoans, compared with 4,700 who voted against the proposal. More residents voted for the measure than voted for all City Council candidates on the primary ballot combined.

The plan to decriminalize marijuana, called the Sensible Marihuana Ordinance to reflect the antiquated spelling in the municipal code, drew support from Mayor Paula Hicks-Hudson and most other mayoral candidates. City officials now say some parts of the new ordinance may be unenforceable because they conflict with state law.

Whatever the complications of the provision, though, its broad implications are clear. The proposal will, properly, abolish Toledo’s penalties for largely victimless crimes, such as possessing and selling marijuana paraphernalia and using small amounts of the drug. It will help spare nonviolent offenders needless fines, jail time, and criminal records that can keep them out of the work force and subject them to a cycle of crime and imprisonment....

Toledo’s vote creates a strong precedent for Ohioans to dismantle further the state’s marijuana penalties; although they already are among the most lenient in the nation, they are still tough enough to cause the arrests of tens of thousands of people for possessing the drug each year. Ohio voters will get that opportunity with a proposal on the statewide ballot in November.

Whether that initiative also would give a select group of marijuana growers an unacceptable advantage in the drug’s production is, or should be, a question for Ohioans to decide. Secretary of State Jon Husted has sought to tilt the campaign debate by including nonneutral descriptors such as “monopoly” in the language voters will consider. State officials should seek to embrace, not suppress, Ohioans’ desire to assert their own policy preferences through the political process.

More important at the moment, and worthy of celebration, is the level of civic participation that Sensible Toledo, the group behind the local marijuana decriminalization campaign, has activated to draw voters to the polls. On national political issues such as a living wage, racial justice, and now this one, grass-roots organizing has engaged ordinary citizens and forced once unheard-of ideas into the political arena.

When politics is about issues, not feuds or personalities, all citizens gain.


September 18, 2015 in Criminal justice developments and reforms, Initiative reforms in states, Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, September 16, 2015

Might Prez candidates Mike Huckabee and Ted Cruz come to defense of faith-driven marijuana user?

The question in the title of this post is  my cheeky reaction to this somewhat amusing (but still serious) story emerging from Minnesota.  The piece is headlined "Defendant cites membership in First Church of Cannabis for pot use: She says smoking doesn't violate her probation because of her 'sincerely held' religious beliefs," and here are the details:

A Golden Valley woman is asking the courts to allow her to smoke marijuana for religious reasons — because she belongs to the First Church of Cannabis.

Through her lawyer, 31-year-old Ashley Firnschild is arguing to the Hennepin County District Court that the weed’s illegality places an “undue burden” on her “sincerely held” religious beliefs as a member of the Indiana-based church established earlier this year.  The case is coming before the court because Firnschild is alleged to have smoked the weed in violation of a condition of her probation for a drug charge.

Firnschild’s use of marijuana is based on “guidance in the philosophies of her church” and her embrace of the church’s mission “establishes her dedication and sincerity to such ideologies,” the motion said.

Hennepin County Attorney Mike Freeman said in a statement that selling, possessing or smoking marijuana is not a First Amendment right.  “Other folks have argued this in the past, unsuccessfully,” he said. “We will continue to vigorously prosecute this case of possession of a large amount of marijuana.”

Oral arguments on Firnschild’s motion are scheduled for Oct. 1. Firnschild’s lawyer, Camille Bryant, is arguing her case under the Minnesota Constitution, which provides greater religious freedom protections than the federal Constitution.

Although Firnschild’s argument is uncommon, the legal analysis is complicated, according to one Twin Cities law professor who cited multiple state cases where individuals have been allowed to exercise their religious convictions even though they violated state laws.

In 2014, Firnschild pleaded guilty to fifth-degree drug possession and was sentenced to community service and probation.  The previous year, police had searched her home after Hennepin County Child Protection Services alerted them to a potential marijuana-growing operation in her basement.  Police found such operations in the basement and attic. Firnschild said the drug was for personal use.

Last summer, Firnschild’s probation officer alerted the court to a possible violation of her probation for smoking marijuana.  Rather than admit to a violation, Firnschild is arguing that her religious freedom is at stake.

The church’s mission statement calls cannabis “the healing plant” and a staple of sacrament.  Members are neither required nor requested to smoke the weed, but to “embrace cannabis and hemp for betterment of the world, including medical, industrial, fuel, oil and housing,” the motion said, quoting the church doctrine.  By prohibiting her from smoking marijuana, the motion said, “she cannot adhere to the principal ideologies of her church, namely the positivity cannabis provides to the world.”

Her lawyer argues the state can’t demonstrate a “compelling interest” in banning her use of marijuana. Firnschild’s use hasn’t created a danger to the “peace or safety of the public,” nor have there been complaints, the motion said.

Michael Steenson, a professor at William Mitchell College of Law in St. Paul, said the court will balance the state’s interest in controlling marijuana use with Firnschild’s individual right.

State courts have been reluctant to explore whether a religious belief is sincerely held. In a 1989 case, an Amish family was given traffic citations for refusing to use the brightly colored emblems signaling slow-moving vehicles because they weren’t willing to compromise their belief that the loud colors were worldly symbols. The state Supreme Court found that the family’s beliefs were sincerely held even though the Amish community as a whole wasn’t in agreement....

Steenson noted, as Firnschild’s memo did as well, that there is no alternative to smoking as a means to exercise her religion — either she can or can’t smoke marijuana. “You can see it isn’t all that simple,” he said.

Some prior related posts concerning the First Church of Cannabis:

September 16, 2015 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Religion, Who decides | Permalink | Comments (0)

Tuesday, September 15, 2015

Rocky Mountain HIDTA releases third annual report on "impact" of marijuana legalization in Colorado

DownloadHigh Intensity Drug Trafficking Area Programs (HIDTAs) are, as explained here, a special kind of drug-enforcement task force that was "created by Congress with the Anti-Drug Abuse Act of 1988 [and] provides assistance to Federal, state, local, and tribal law enforcement agencies operating in areas determined to be critical drug-trafficking regions of the United States."  Usefully, the Rocky Mountain HIDTA has been especially focused on marijuana reform, and the last three years it has produced a annual report around this time under the title "The Legalization of Marijuana in Colorado: The Impact."  Volume Three of that report, which runs nearly 200 pages and was just release, can be accessed at this link.

Here is an excerpt from the report's executive summary highlighting its coverage:

Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA) is tracking the impact of marijuana legalization in the state of Colorado. This report will utilize, whenever possible, a comparison of three different eras in Colorado’s legalization history:

• 2006 – 2008: Early medical marijuana era

• 2009 – Present: Medical marijuana commercialization and expansion era

• 2013 – Present: Recreational marijuana era

Rocky Mountain HIDTA will collect and report comparative data in a variety of areas, including but not limited to:

• Impaired driving

• Youth marijuana use

• Adult marijuana use

• Emergency room admissions

• Marijuana-related exposure cases • Diversion of Colorado marijuana

This is the third annual report on the impact of legalized marijuana in Colorado. It is divided into eleven sections, each providing information on the impact of marijuana legalization. The sections are as follows:

Section 1 – Impaired Driving...

Section 2 – Youth Marijuana Use...

Section 3 – Adult Marijuana Use...

Section 4 – Emergency Room Marijuana and Hospital Marijuana-Related Admissions...

Section 5 – Marijuana-Related Exposure...

Section 6 – Treatment...

Section 7 – Diversion of Colorado Marijuana...

Section 8 – Diversion by Parcel...

Section 9 – THC Extraction Labs...

Section 10 – Related Data...

Section 11 – Related Material...

The nature and order of the sections in this big RMHIDTA "Impact" report help highlight that RMHIDTA is almost exclusively interested in emphasizing and lamenting any and all potential negative impacts from marijuana reform in Colorado and deemphasizing and mariginalizing any and all potential positive impacts.  

This bias toward emphasizing the negative and ignoring positive impacts is most obvious in terms of the report's (almost non-existant) discussion of the economic development and tax revenues resulting from legalization.  Jobs created by marijuana reform are not mentioned anywhere in the report, and a short discussion of tax revenues in the final sections of the report starts with this warning: "It will take years of data collection to complete an analysis of whether marijuana legalization is economically positive or an economic disaster."  

Similarly, changes in overall crime rates are only briefly discussed in the final "related data" section of the report, probably because the news seems pretty positive: property crime rates seem to be going down since marijuana reform throughout Colorado while violent crimes rates seem flat.  Of particular note, as this semi-official chart reveals, it appears Denver (which is sort-of ground-zero for marijuana reform relalities and likely impact) experienced a significant decrease in reported homicides, rapes and robbery in 2014 relative to 2013.   I suspect that this RMHIDTA report would have made much of Colorado and/or Denver homicide rates if they had gone up, but instead this "impact" goes undiscussed. 

Reporting biases notwithstanding, this is still an important report that assembles lots of data. And, perhaps in part because of its biases, this report now stands as the latest, greatest effort by the law enforcement community to make the case that marijuana reform in Colorado is a failed experiment. Any and all serious students of marijuana law and policy should take the time to review what this report says and how it is saying what it is saying.

September 15, 2015 in Criminal justice developments and reforms, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, September 9, 2015

"Life in prison for selling marijuana: Meet the people new pot laws forgot"

The title of this post is the headline of this recent MSNBC article, which includes these excerpts:

At least 67 people are in prison right now, sentenced to die there for selling marijuana, according to the best available data. Until last week, Jeff Mizanskey was one of them.

“Man, I feel great,” the great-grandfather told MSNBC, as he contemplated his first weekend as a free man in more than 20 years. His sentence was commuted in May from life without parole to simple life, and on Tuesday he walked out of a maximum security Missouri prison.  Someone helped him dial this wondrous new thing called a smart phone. “Do you have children?” he asked.  “The day a child is born – that’s what this feels like for me. I’ve finally made it to freedom.”

Mizanskey received his harsh sentence in 1996, after he was convicted for trying to distribute six pounds of Mexican marijuana.  There was no violence involved, no selling to kids.  But Mizanskey had two previous convictions for the possession and sale of pot totaling 10 ounces.  That qualified him as a “persistent” drug offender under Missouri law, subject to any punishment short of the death penalty.  That law has since been repealed, but similar policies continue to echo down the halls of American prisons, dividing families across the country.

Today, more than twenty states have legalized marijuana in one form or another, and with $22 billion in legitimate sales expected by 2020, pot has become a consumer product like any other.  But new laws have done nothing for people with past convictions, including some with sentences heavier than for rape or murder.

About 40,000 inmates of state and federal prison have a current conviction involving marijuana, according to research co-authored by UCLA professor Mark Kleiman. About half of them are in for marijuana offenses alone.  And all of them are, in one way or another, victims of the stupendous drug panic that swept America in the 1980s and 1990s....

The war on marijuana dealers began in the 1980s, but it did not end in that decade. Between 1996 and 2014, federal judges sentenced 54 people to life without parole for marijuana offenses, according to new work by The Clemency Report, a project of former USA Today reporter Dennis Cauchon.   The American Civil Liberties Union has found about a dozen more cases at the state level, and at least a dozen more are alleged by various advocacy groups.

Few if any of these lifers were kingpins, according to the ACLU. One man was busted for selling 32 grams of marijuana. Another conspired to sell 130 grams, the equivalent of less than a carton of cigarettes. Still others were nabbed in cases involving between two and 50 pounds of pot. They all got life in prison and, as far as can be known, that’s where they remain.

September 9, 2015 in Criminal justice developments and reforms | Permalink | Comments (0)

Friday, August 21, 2015

"Is Marijuana Causing More Car Crashes in Washington?"

The question in the title of this post is the question which necessarily emerges from some recent public safety data released this week in Washington state, and it is also the headline of Jacob Sullum's new Reason column examining this data.  Here are excerpts from Sullum's analysis (with key links preserved):

Data released by the Washington Traffic Safety Commission (WTSC) this week indicate that the number of drivers involved in fatal crashes with active THC in their blood jumped from 38 in 2013 to 75 last year....

Contrary to comments by Staci Hoff, the WTSC's director of data and research, the presence of active THC does not necessarily indicate that a driver was impaired by marijuana at the time of the crash, let alone that marijuana caused the accident. Noting that 85 percent of "cannabis-positive" drivers involved in fatal accidents had active THC (as opposed to an inactive THC metabolite) in their blood last year, Hoff concludes that "most of them were high." That is not a safe conclusion to draw, because (as the National Highway Traffic Safety Administration points out) there is no reliable way to relate THC blood levels to impairment....

The picture is further complicated by the presence of other drugs.  The Times notes that "half the drivers with active THC in their blood also were under the influence of alcohol, and the majority of those were legally intoxicated."  Alcohol has a much more dramatic impact on driving ability than marijuana does, and the two together have a greater effect than either alone.  The Times adds that the WTSC's analysis "doesn't account for prescription drugs in the marijuana-positive drivers."

 Although marijuana's contribution to traffic accidents is hard to pin down, it is possible than an increase in cannabis consumption following legalization would lead to more stoned drivers on the road, resulting in more crashes.  Alternatively, if more pot smoking is accompanied by less drinking, the net result could be fewer crashes, since alcohol impairs drivers a lot more than marijuana does.  It is not clear yet whether either of those scenarios is materializing in Washington.

WTSC data show the total number of traffic fatalities rose by 6 percent last year (from 436 to 462) after falling the previous six years (including 2013, the first full year in which recreational use was legal, although state-licensed pot stores were not open yet). The number of fatalities from accidents in which the driver tested positive for marijuana (which does not necessarily mean he was impaired by marijuana) rose by 55 percent (from 64 to 99).  Meanwhile, the number of fatalities from accidents in which the driver was deemed to be impaired by alcohol fell by 13 percent (from 127 to 111). That number had declined or remained steady in the previous six years, except for a 14 percent increase in 2009.

The 6 percent increase in total fatalities is consistent with the idea that legalization raises the number of dangerously impaired drivers.   But that increase occurred entirely in the first half of 2014, before the pot shops started to open, which is a bit of a puzzle. By comparison, Colorado, where state-licensed marijuana merchants were open for business throughout 2014, saw only a 1.5 percent increase in total traffic fatalities that year.   To get a better idea of what is happening, we will need more years of data, plus comparisons to trends in other states that have not legalized marijuana.

UPDATE: Based on data from a local article about marijuana's impact in Washington, I did an additional post on this topic over at my sentencing law blog: "Could marijuana reform be making Washington roadways safer even if more drivers test positive for THC?"

August 21, 2015 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)

Sunday, June 28, 2015

Will "First Church of Cannabis" really create a legal showdown in Indiana?

The-first-church-of-cannabisThe question in the title of this post is prompted by this new Indianapolis Star article headlined "Cops warn of arrests at Church of Cannabis." Here are some excerpts from a lengthy and interesting article:

The city's top law enforcements officials put the new First Church of Cannabis on notice Friday: Anyone who smokes marijuana at the inaugural service next week will face criminal charges.

The warning from Marion County Prosecutor Terry Curry and Indianapolis Metropolitan Police Department Chief Rick Hite "changes nothing," said Bill Levin, the church's founder, who pledged to move forward with plans for a service at noon Wednesday where marijuana will be smoked. "They haven't raised the stakes," Levin said. "These have been the stakes the whole time."

In fact, an arrest — or arrests — will spur the court fight that Levin wants. It is a legal battle that has been expected by nearly everyone, including Curry and Hite, who've watched the story of the controversial church unfold in the weeks since Gov. Pence signed Indiana's new Religious Freedom Restoration Act.

Levin contends the use of marijuana in the church service is protected by RFRA, which limits government encroachment on religious freedoms. Curry said he believes the new law is ill-advised and problematic. That said, he also stressed that RFRA is not "a legitimate defense to committing a crime."

Hite said police can't ignore Levin flaunting the law under the guise of religion. That means everyone in attendance next week is subject to criminal charges, he said, even if they do not partake of the church's sacrament.

Curry said observers could be charged with visiting a common nuisance. Those who smoke the drug could be charged with possession of marijuana. Both charges are class B misdemeanors, which carry a penalty of up to 180 days in jail and a $1,000 fine.

Curry and Hite said Friday they were announcing their plans in an effort to dissuade Levin and his followers from going through with wide-spread marijuana use at the service. Hite said his department would have police on the church property, including possibly inside the sanctuary itself. "I think it's important to know that we're not trying to create a police state," Hite said. "I think reasonably intelligent people will stay away, quite frankly. But as with any other events we happen to have in our city, we're prepared for it."

Curry listed six considerations he said he recently shared with Levin — and wants others who might attend the service to keep in mind. In addition to making arrests for those who possess or are simply in the presence of marijuana that is being used, Curry said, police will also be looking for impaired drivers, those with open warrants and those who are at the service in violation of a probation order. Curry also cautioned that minors should not be present if marijuana is being used, adding that such a violation has "numerous implications."

Curry and Hite said police and prosecutors are duty bound to uphold Indiana's drug laws and cannot ignore the event that has been widely promoted in the news and on social media. They also are disturbed that they have to expend valuable manpower on this event, when there are many other more pressing needs for law enforcement resources.

Curry added Levin's church is a direct result of the state's RFRA law, and renewed an earlier call for legislators to repeal the law which he sees as unneeded and the result of political posturing. "We anticipated that (RFRA) could be asserted as a defense to criminal prosecution," he said. "As with any defense, our office will address the argument within the context of the case in which it is presented."

The prosecutor said he has met twice with Levin to discuss alternatives to making mass arrests at the service next week, such as making his point on a smaller scale involving just one or two people challenging the law. "I understand completely that what (Levin) is doing is using RFRA as a vehicle to essentially advocate for what he's advocated for all along, and that is the legalization of marijuana," Curry said. "But until he and others convince the legislature otherwise, then it's a crime."

Curry also dismissed concerns that the attendees of next week's Church of Cannabis service would be treated differently than others who are cited for marijuana possession – though he added that the city's advance notice of the event did present a change in how they plan on enforcing the law. "Individuals are cited for criminal offenses when they are observed, whether it's at the Indy 500 or rock concerts," Curry said. "What is different here is that we've been given notice that this is going to occur. From our perspective, it would be entirely the wrong message that we would not react to that."

Hite said the church is not right for Indianapolis, adding he and his officers have talked to drug dealers who are "appalled" by the planned service next week. "Those who deal drugs for a living have said to us, 'Listen. We're trying to get out of the game. You're telling us to get out, chief,'" Hite explained. "How can we allow someone to willingly violate the law?"

Levin said he is unfazed by who might show up at the service Wednesday, including law enforcement officials "I don't have a problem with that," he said. "You want to come pray? Come pray. You better be on the guest list to get into the building, though, because we've already got this thing filled."

The church plans to have a tent to accommodate overflow from the relatively small church building. What Levin described as "ushers" — who sound more like security — will screen people entering the building. The church also will have legal representation on site for the inaugural service.

A woman at the church Friday, wearing a shirt with a peace symbol on it, scoffed at Curry's suggestion for Levin to scale down whatever might trigger a legal battle. "Bill doesn't do anything on a small scale," she said. "I've known him for 35 years."...

"I believe in religious freedom and I will never tell my congregants what not to do," Levin said. "I will warn them of what might happen. If you're on probation, they might nail you. If you're there with a kid, they might get CPS on you. … This is civil disobedience in its finest form while we're celebrating a beautiful birth of a new religion."

Levin appears to be doing as much as he can to protect the church legally. He has non-profit religious status certified by the Internal Revenue Service. He made sure the church building conforms to safety codes. He's not allowing anyone under 21 into the sanctuary, where marijuana will be smoked at the end of the ceremony. And he is not selling or distributing the drug; its a bring-your-own event.

While Levin said he would prefer that officials leave him and church members alone, he's not about to back down from a legal fight. "I'd just as soon not do it. Am I afraid of it? No. Not at all. I'm sorry, I'm right," he said. "I will defend my beliefs as long as it takes and as far as it takes."

Any decision the state makes on religious laws — including whether the First Church of Cannabis is a legitimate religion — "they're going to have to be very committed to, and that goes across the board," Levin said. "Because what's good for one religion is good for all."

June 28, 2015 in Criminal justice developments and reforms, Religion, Who decides | Permalink | Comments (0)

Friday, June 26, 2015

Ohio advocates of marijuana legalization now backing expungement reforms via Fresh Start proposal

Images (1)I am more than a bit biased in reporting the latest notable news from Ohio's marijuana reform arena because I had a hand in making it happen.  But especially because my interest in marijuana reform stems largely from my concerns about the criminal justice harms and costs of marijuana prohibition, I am especially pleased and proud that those advocating for marijuana legalization in Ohio are committed also to advocating for related criminal justice reforms.   This local article, headlined "ResponsibleOhio proposes legislation to expunge marijuana offense records," provides these basis:

Pro-marijuana group ResponsibleOhio has drafted a law that would allow Ohioans convicted of certain marijuana crimes to expunge their records if the group's marijuana legalization proposal is approved by voters this fall.

The proposed initiated statute would allow Ohioans who were convicted of a marijuana offense to have their records expunged. On Wednesday, the group submitted language to the Ohio attorney general for approval. ResponsibleOhio plans to propose legalizing marijuana for personal and medical use through a constitutional amendment on this November's ballot. The expungement issue would come next year.

"We believe that we should not keep people unfairly shackled to their past when marijuana is legalized," ResponsibleOhio Executive Director Ian James said in a news release. The group's "Fresh Start Act" would first go before state lawmakers. If lawmakers vote it down or do not act within four months, Ohio voters would then vote on the law. Even if approved by voters, lawmakers could still change or repeal the language in state law.

In Ohio, expungement typically means the records are sealed unless opened by court order. But in recent years, state lawmakers have allowed records to be expunged, or destroyed, for committing two crimes later made legal: Storing a loaded firearm in a vehicle and soliciting sex as a victim of human trafficking.

The proposed statute mirrors the concealed carry language. ResponsibleOhio spokeswoman Faith Oltman said lawmakers should be in favor of extending that opportunity to past marijuana convictions. Oltman said offering the idea as an initiated statute gives lawmakers an opportunity to review and revise the language before voters weigh in. "An amendment meant the legislature couldn't manipulate or alter this piece of good public policy we created," Oltman said. "The Fresh Start Act is more straight forward so not as many guardrails needed to be put in place."

Records would not be automatically destroyed. Individuals would have to file an application in court and prosecutors would have the opportunity to weigh in before the judge makes a final decision....

If the petition language is approved by the attorney general and bipartisan Ohio Ballot Board, the group will then need to collect more than 91,677 signatures of Ohio voters. If lawmakers don't pass the law within four months, petitioners would have to collect another 91,677 signatures to put the proposed law on the statewide ballot.

June 26, 2015 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Initiative reforms in states | Permalink | Comments (1)

Tuesday, June 23, 2015

"How Much Does Marijuana Impact Your Driving?"

The question in the title of this post is the headline of this new Time article, which includes these excerpts:

The exact impact of marijuana on driving ability is a controversial subject—and it’s become more important states continue to loosen their drug laws. And, while drunk driving is on the decline in the U.S., driving after having smoked or otherwise consumer marijuana has become more common. According to the most recent national roadside survey from the National Highway Traffic Safety Administration of weekend nighttime drivers, 8.3 percent had some alcohol in their system and 12.6 percent tested positive for THC—up from 8.6 percent in 2007....

[In a recent federal study], researchers looked at 250 parameters of driving ability, but this paper focused on three in particular: weaving within the lane, the number of times the car left the lane, and the speed of the weaving. While alcohol had an effect on the number of times the car left the lane and the speed of the weaving, marijuana did not. Marijuana did show an increase in weaving. Drivers with blood concentrations of 13.1 ug/L THC, the psychoactive ingredient in cannabis, showed increase weaving that was similar to those with a .08 breath alcohol concentration, the legal limit in most states. For reference, 13.1 ug/L THC is more than twice the 5 ug/L numeric limit in Washington and Colorado....

The study also found that pot and alcohol have more of an impact on driving when used together. Drivers who used both weaved within lanes, even if their blood THC and alcohol concentrations were below the threshold for impairment taken on their own.... Smoking pot while drinking a little alcohol also increased THC’s absorption, making the high more intense. Similarly, THC delayed the peak of alcohol impairment, meaning that it tended to take longer for someone using both to feel drunk. Such data is important to educate the public about pot’s effects before they get on the road.

“I think this has added really good knowledge from a well-designed study to add to the current debate,” on marijuana’s effects on road safety, says Dr. Marilyn Huestis, the principal investigator in the study, which was conducted by researchers at the National Institute on Drug Abuse.

June 23, 2015 in Criminal justice developments and reforms, Food and Drink, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Friday, June 19, 2015

"After Losing Custody Of Her Son, Medical Marijuana Advocate Could Lose Her Freedom"

Shona Banda mugshotThe title of this post is the headline of this new Forbes column by Jacob Sullum.  This piece reinforces my belief that family law and family lawyers need to be paying considerable attention  to marijuana reform developments and realities.  Here is an excerpt:

In Live Free or Die, a 2010 memoir recounting how cannabis oil saved her life, Shona Banda emphasizes the importance of “self-taught knowledge,” acquired by constantly asking questions and “looking at all of the angles of any information given.” Her son may have learned that lesson too well. Had he been less inquisitive, less prone to question authority, he might still be living with his mother, and she might not be facing criminal charges that could send her to prison for decades.

Banda, a 38-year-old massage therapist who appeared in criminal court for the first time on Tuesday, is free on a $50,000 bond while her case is pending. She was able to pay a bail bondsman the $5,000 fee necessary to stay out of jail thanks to donations from supporters across the country who were outraged by her situation. The case has drawn international attention partly because it features draconian penalties and a mother’s forcible separation from her 11-year-old son but also because of the way it started.

During a “drug education” program at his school in Garden City, Kansas, on March 24, Banda’s son heard some things about marijuana that did not jibe with what he had learned about the plant from his mother. So he spoke up, suggesting that cannabis was less dangerous and more beneficial than the counselors running the program were claiming. That outburst of skepticism precipitated a visit to the principal’s office, where the fifth-grader was interrogated about his mother’s cannabis consumption. School officials called Child Protective Services (CPS), which contacted police, who obtained a warrant to search Banda’s house based on what her son had said.

As translated by the Garden City Police Department, Banda’s son “reported to school officials that his mother and other adults in his residence were avid drug users and that there was a lot of drug use occurring in his residence.” From Banda’s perspective, what her son had observed was her consumption of a medicine that had “fixed” her Crohn’s disease, alleviated her pain, and restored her energy. “I had an autoimmune disease,” she says in a 2010 YouTube video during which she displays the scars left by multiple surgeries aimed at relieving her crippling gastrointestinal symptoms. “With Crohn’s disease, it’s like having a stomach flu that won’t go away.” But after she started swallowing capsules containing homemade cannabis oil, she says, her life was transformed. “I’m working for the first time in four years,” she says. “I’m hiking. I’m swimming. I’m able to play with my kids [two sons, one of whom is now 18]….Anything beats raising your kids from a couch and lying there in pain all day.” Banda’s personal experience aside, there is scientific evidence that cannabis is an effective treatment for the symptoms of Crohn’s disease.

As far as the police were concerned, none of that was relevant, since Kansas is not one of the 23 states that allow medical use of cannabis. In the cops’ view, what they found at Banda’s house — “approximately 1 ¼ pounds of suspected marijuana” — was contraband, not medicine. And when CPS caseworkers took Banda’s son away from her, they were protecting him, not kidnapping him. “The most important thing here is the child’s well-being,” Capt. Randy Ralston told the Associated Press. “That is why it is a priority for us, just because of the danger to the child.”

The precise nature of that danger remains mysterious. Ralston says “the items taken from the residence” — the marijuana, plus “a lab for manufacturing cannabis oil on the kitchen table and kitchen counters, drug paraphernalia and other items related to the packaging and ingestion of marijuana” — were “within easy reach of the child.” But police came to Banda’s house in the middle of the afternoon, so that detail is less alarming than it sounds. “She was producing oil during the day, while her son was in school,” says Sarah Swain, Banda’s criminal defense attorney.

So far Banda has been unsuccessful at regaining custody of her son, who is living for the time being with her husband, from whom she is separated. “He is in state custody and has been since the beginning of the case,” Swain says. “He is placed [temporarily] with the father.” A family court judge ultimately will decide whether it is in the boy’s best interest to be reunited with his mother.

But as Swain notes, that process will be “moot” if “Shona goes to prison.” The charges against her, which Finney County Attorney Susan Richmeier announced on June 5, include two misdemeanors—endangering a child and possession of drug paraphernalia—and three felonies: unlawful manufacture of a controlled substance, possession of equipment used to manufacture a controlled substance, and distribution or possession with intent to distribute a controlled substance within 1,000 feet of school property. The distribution charge, a “drug severity level 1 felony,” carries the longest maximum sentence: 17 years. Swain says Kansas law allows sentences for different offenses to be imposed consecutively as long as the total term does not exceed twice the longest maximum, which means Banda could be sent to prison for as long as 34 years. Richmeier, apparently based on the assumption that any sentences would be served concurrently, says the maximum term Banda faces is 17 years.

It seems unlikely that Banda, who has no criminal record, would receive a sentence as long as 34 or even 17 years. But a substantial prison sentence is a real possibility given the charges she faces. “When your cure is illegal,” says a caption at the beginning of Banda’s 2010 video, “you are forced to make the choice to live free or die.” If Richmeier has her way, living free will no longer be an option for Banda.

June 19, 2015 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Sunday, June 14, 2015

Supreme Court of Canada issues big medical marijuana ruling (and highlights import of judiciary in marijuana reform)

As reported in this local Canadian article, headlined "Medical marijuana includes cookies, brownies, Supreme Court rules," the top court in Canada issues a significant medical marijuana ruling last week. Here are the details:

A former cannabis club head baker at the centre of a Supreme Court of Canada ruling is both thrilled and relieved after the high court struck down limits on what constitutes legally acceptable medical marijuana products. The court ruled unanimously on Thursday that medical marijuana can be legally consumed in a range of ways, from cannabis-infused cookies and brownies to cooking oils and teas. “I think across the country there will be a lot more smiles and a lot less pain,” said Owen Smith with the Victoria Cannabis Buyers Club, whose 2009 arrest was the focus of the decision.

Smith was charged after police found hundreds of pot cookies and cannabis-infused olive and grapeseed oils in his Victoria apartment. He was acquitted at trial and won an appeal.

The outpouring of gratitude since the ruling was handed down has been overwhelming, Smith said. He received a phone call from a mother who used cannabis-infused oil to treat her daughter’s epilepsy. “She was just overjoyed and in tears about the decision,” he said. “It’s been emotional, that’s for sure.”

Not only was it a unanimous 7-0 ruling, but the court made a point of attributing the written decision to the entire court — something the justices do when they want to underline a finding.

It was yet another rebuke of the Harper government’s tough-on-crime agenda. Until now, federal regulations stipulated that authorized users of physician-prescribed cannabis could only consume dried marijuana.

But limiting medical consumption to dried pot infringes on liberty protections under the Charter of Rights and Freedoms, the court said. “The prohibition of non-dried forms of medical marijuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice,” said the written judgment.

Cheryl Rose, whose daughter Hayley takes cannabis for a severe form of epilepsy, said the 22-year-old’s seizures have dropped dramatically. Under the previous law, Hayley had to take 15 capsules of dried cannabis daily. Now, she will only have to take one concentrated capsule made with oil. “Without having extracts available for her, I don’t think we’d be able to keep it up. It’s way too much for a person to consume,” she said. “She’s finally going to fully have her life back.”

Alex Repetski, of Thornhill, Ont., could have been charged with possession and trafficking for converting dried bud into oil for his 3-year-old daughter, Gwenevere, whose debilitating epilepsy has left her developmentally delayed. Since starting on the low-THC marijuana, Gwenevere has seen an incredible recovery, Repetski said. He no longer fears prosecution.

Limiting medical marijuana use to dried pot “limits life, liberty and security of the person” in two ways, the court said. First, the prohibition on possession of cannabis in forms other than dried pot places a person at risk of imprisonment when they wouldn’t face the same threat if they possessed dried marijuana buds. It also exposes people with a legitimate need for marijuana to other potential medical ailments, it stated. “It subjects the person to the risk of cancer and bronchial infections associated with smoking dry marijuana and precludes the possibility of choosing a more effective treatment.”...

Health Minister Rona Ambrose said she was “outraged” by the marijuana decision. “The big issue here is the message about normalization,” she said. “The message that judges, not medical experts, judges have decided something is a medicine.” Ambrose noted that marijuana has never faced a regulatory approval process through Heath Canada.

The full 24-page ruling in R. v. Smith, 2015 SCC 34 (Canada June 11, 2015) is available at this link.

As the last line of my post headline emphasizes, I think this ruling highlights the importance and impact of how a judiciary responds to a jurisdiction's marijuana reform efforts. For any jurisdiction that reforms blanket marijuana prohibition in any ways, the dynamics of just how courts interpret and apply reform statutes and regulations will necessarily have an impact on the actions of other government officials and individuals seeking to comply with reformed laws and practices.

June 14, 2015 in Court Rulings, Criminal justice developments and reforms, International Marijuana Laws and Policies, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"Whites Just 8% of New York City's Marijuana Arrests"

The title of this post is the headline of this notable new Newsweek article.  Here are excerpts:

In New York City, misdemeanor marijuana possession arrests were dramatically lower between January and March 2015 than in the same period of 2014—2,960 compared to 7,110, respectively—but stark racial disparities persist among those arrested, new data obtained by Newsweek indicate.

During the first quarter of 2015, African-Americans were arrested for misdemeanor marijuana possession 1,494 times: That’s 50.47 percent of the total. Hispanics were arrested 1,130 times, or 38.18 percent, and together these two groups accounted for 88.65 percent of the total. Meanwhile, whites totaled 228 of these arrests (7.70 percent) and 79 (2.67 percent) of the arrestees listed as Asian/Indian, according to the state’s Division of Criminal Justice Services.

In terms of the racial breakdown, this isn’t all that different from the first quarter of 2014. Of those 7,110 misdemeanor marijuana arrests, 3,370 (47.4 percent) were African-American and 2,791 (39.25 percent) were Hispanic. So, these two group comprised 86.65 percent of misdemeanor marijuana arrests early in 2014, suggesting the racial disparity in these arrests has grown slightly this year. Whites were arrested 650 times (9.14 percent) and Asian/Indian were arrested 236 times (3.32 percent) during this period. (Some arrestees did not list race-ethnicity data.)

The year-over-year decrease in arrests follows the announcement in November by Mayor Bill de Blasio and Commissioner William Bratton that they would issue summonses for small amounts of marijuana rather than collar them. The rule applies to those caught with 25 grams or less of pot, “so long as there is no warrant for the individual’s arrest and the person has identification.” Police can arrest those in possession of 25 grams or less “if the marijuana is burning, if the type of possession indicates intent to sell, if the individual has an outstanding warrant, or if the individual is in a location with special consideration, like a school.”...

New York Police Department officers made 26,385 misdemeanor marijuana possession arrests in 2014. That was down from 28,954 in 2013. Both years, African-Americans and Hispanics comprised some 86 percent of these arrests. Asked about the numbers, a department official responds that these statistics do not reflect racially motivated policing, but result from data driven crime enforcement.

“The NYPD endeavors to assign its resources based, in considerable part, on an analysis of various conditions in different areas of the city. Among these conditions include level of crime, both major crime and lesser offenses. Another significant consideration relates to the nature and number of local citizen and community complaints in the various neighborhoods. This includes calls to 911, calls to 311 and complaints voiced by members of local precinct community groups,” the official says.

“Analysis has clearly shown that a significantly higher level of these conditions and complaints exist in those areas of New York City where there is also a high minority population. Based on these crime-related conditions, as well as complaints, the NYPD attempts to assign its resources to appropriately address these demands. A higher level of police presence in any particular area in which there is a greater level of offenses, in public, will often result in more enforcement activity.”

June 14, 2015 in Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink | Comments (0)

Tuesday, June 9, 2015

"Mom who uses medical marijuana faces up to 30 years in prison"

The title of this post is the headline of this notable new Washington Post piece.  Here are excerpts:

With a wave of legalization measures in recent years, marijuana in some form is now legal in 38 states.  But in the 12 where it is not — a swath of the west and Midwest, including Kansas, Nebraska and the Dakotas, and in the rust belt states of Ohio, Michigan and Pennsylvania — parents whose use of the drug would be legal elsewhere are losing their children and often seen as irresponsible parenting pariahs.

In March, Child Protective Service workers took Shona Banda’s 11-year-old son from her home in Garden City, Kansas, saying her use of marijuana to control debilitating Crohn’s Disease put the child in danger.

Last Friday, the state of Kansas charged Banda with five felony counts of possession of marijuana with the intent to distribute, manufacturing Tetrahydrocannabinol, an oil extracted from marijuana, two counts of possession of drug paraphernalia and one count of child endangerment.  Banda, who will turn herself in to authorities June 15, according to her attorney, could face a maximum of 30 years in prison.

On the day she was charged, June 5, the Louisiana state legislature sent a bill to legalize medical marijuana to Republican Gov. Bobby Jindal, who’d indicated he’d sign it, and the Detroit Free Press reported that establishment Republicans are backing a recreational marijuana bill for 2016.  It was also the day Amber Thurmond, of Arizona, appeared in family court in Hays, Kansas and was told by a judge that if she ever wanted to be reunited with her nine-year-old daughter, Thurmond would have to move to Kansas.

Thurmond lives in Arizona, where medical marijuana is legal, uses medical marijuana to control seizures and works at a medical marijuana dispensary.  She’s facing charges of physical, mental and emotional neglect in Kansas, where she sent her daughter to live with her brother, a police officer, for a semester, she said, while she got on her feet financially.  Eighteen months later, her daughter has been put in the state foster care system and placed with her brother.

“These mothers are being forced to choose between their health and their ability to be a parent,” said Sarah Swain, a Kansas attorney who is representing both Banda and Thurmond.  “And there really is no choice to be made. We can’t be mothers if we’re so sick that we’re bedridden, or if we aren’t alive.”

Thurmond was featured on the National Geographic TV series, “American Weed,” which followed the story of the town of Castle Rock, Colorado voting to close down her medical marijuana dispensary, Plants4Life. “I want to tell everyone I see, ‘you have children? Well, you better reconsider your usage,’” Thurmond said. “And yet, we can go home and drink ourselves to death and never have children removed from our homes.”

Charlene Brubaker, the county attorney involved in Thurmond’s case, said the judge found that her daughter had special needs that could only be met with Thurmond’s frequent presence with the child in Kansas.  “The court did not make its decision based on medical marijuana. It’s just their spin, not the truth,” Brubaker said, though she said she could not say more for confidentiality reasons.

Chuck Noerenberg, president of the National Alliance for Drug Endangered Children, a group that works with law enforcement and social services, say they’re intensely watching how legalizing marijuana is affecting caregivers’ ability to provide proper care to children. “Whether it’s a legal or illegal substance, if it has an impact on caregivers’ ability to take care of children, that’s a concern of ours,” he said.

Banda, who has become an outspoken advocate for medical marijuana, had 17 surgeries, tried a number of medications and was prescribed the powerful narcotic, fentanyl, to “ease her passing,” she said, because her doctors thought she was going to die. Then she tried marijuana, and began to heal, a journey she chronicles in her book, Live Free or Die, and on her Facebook page. “I spent years raising my children from a couch, not being able to move much,” Banda said, who also has an 18-year-old son. “I wasn’t able to be a proper mother when I was sick. And now I’m a fantastic mother.”

Twice Banda tried to move to Colorado, where marijuana is legal, she said, but was forced to move back to Kansas near family for financial reasons. Banda is separated from her husband, who now has custody of their 11-year-old son. The child was in a drug education class at school March 24, and spoke up about his mother’s medical marijuana use. School officials called the police and Child Protective Services. A search of the house found marijuana and drug paraphernalia on the kitchen counters.

Banda has seen the child just once since March 24, she said. Nor has she used cannabis, advocates’ preferred term for marijuana. She’s begun losing weight and an infection that rotted the roof of her mouth has returned. “I’m very afraid,” she said. “I cannot believe that I could be facing 30 years in prison for trying to save my life.”

June 9, 2015 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, June 7, 2015

"Ranking Drug Harms for Sentencing Policy"

The title of this post is the title of this notable new empirical-oriented new paper by Paul Hofer now available via SSRN.  Here is the abstract:

Unidimensional rankings comparing the harmfulness of different drugs have been criticized as too simplistic for policy making.  A type of unidimensional ranking of direct drug harms is needed for sentencing policy making, however, in order to implement the sentencing principle of just desert.  Available empirical evidence of the relative harmfulness of illegal drugs on several measures of direct harm is reviewed. Data on typical dosage weight is used to evaluate the proportionality of current federal mandatory minimum statutes and guidelines for drug trafficking offenses.  Several drugs that rank relatively low on harms are punished as, or more, severely than drugs that are far more harmful.  Mandatory minimum statutes and congressional directives to the United States Sentencing Commission must be repealed or revised before recommendations of the federal sentencing guidelines will result in proportionate punishment.

June 7, 2015 in Criminal justice developments and reforms | Permalink | Comments (2)

Saturday, June 6, 2015

How has, can, should and will marijuana reform impact the work of defense attorneys?

The question in the title of this post is the central topic of a presentation I am honored to be giving today at the Cuyahoga Criminal Defense Lawyers Association's annual meeting.  

As is often true when I speak to a group of experienced defense attorneys, I expect I will learn more from the assembled participants than I am likely to teach them.  But, in part because Ohio has not (yet) reformed its marijuana laws in any way, I am cautiously hopeful I can give the group some useful insights about the inevitability of legal and practical uncertainties, especially in the criminal law arena, as to what really happens in a state after it formally repeals blanket marijuana prohibition in some way.

Based on case rulings, policy reports and conversations with lawyers in the field in states like Colorado, I have a general sense of various possible answers to the multi-dimensional query in the title of this post.  But I would be especially eager to hear from any and all persons in reform states if they have distinctive experiences or thoughts in reaction to my question.

June 6, 2015 in Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Wednesday, June 3, 2015

House of Representatives again votes to limit federal interference with state medical marijuana programs

As reported in this AP piece, headlined "GOP-Controlled House Backs State Medical Marijuana Laws," today brought a number of notable federal votes on federal marijuana enforcement funding.  Here are the details:

The federal government would be unable to block state laws permitting the use of medical marijuana under legislation approved Wednesday by the GOP-controlled House. But lawmakers narrowly rejected an amendment that would stop the Justice Department from interfering with states like Colorado and Washington that permit the recreational use of marijuana.

The 242-186 vote on medical pot was a larger margin than a tally last year, when the House first approved it as part of a bill funding the Justice Department. Wednesday's vote was to renew the pro-pot language as part of a bill providing funding for the coming fiscal year. The overall measure passed by a mostly party-line vote.

Most Republicans opposed the idea and the Senate is in GOP hands this year, so the outcome could still be reversed. But Senate advocates of medical marijuana won a test vote in the GOP-controlled Appropriations Committee last month.

On Wednesday, 67 Republicans, including libertarian-minded lawmakers such as Thomas Massie of Kentucky, combined with all but a handful of Democrats in support of states that allow doctors to prescribe pot for medical uses, such as improving the appetites of cancer patients undergoing chemotherapy....

The amendment to allow recreational pot use, offered by conservative Rep. Tom McClintock, R-Calif., was rejected by a surprisingly narrow 222-206 vote. McClintock's measure had less GOP support and more Democratic opposition than did the amendment on medical marijuana. "This is not an argument for or against marijuana," McClintock said. "This strictly involves the rights of citizen in various states to regulate commerce that occurs entirely within their own borders."

June 3, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Monday, June 1, 2015

Former federal prosecutor: "Legal Marijuana Dealers -- And The Government -- Need Bankers And Lawyers"

The title of this post is drawn from the headline of this notable new Forbes commentary by Matthew L. Schwartz, who for a decade served as a federal prosecutor and is now partner at Boies, Schiller & Flexner.  Here are excerpts from an important piece:

It is not unusual for legal marijuana businesses to become entangled in government investigations. Although it wasn’t my focus, as a former federal prosecutor I sometimes investigated unlawful drug trafficking organizations.  Following the drugs and money back to their source increasingly led to marijuana businesses in states that had legalized it.

In many cases, the “legal” marijuana business was knowingly involved in the unlawful distribution.  But on more than one occasion, legitimate marijuana businesses were victims of circumstance.  In one case, for example, a licensed grower in California had a handful of workers who were diverting a portion of the crop to a criminal organization.  In another case, a dispensary in Colorado was purchasing unlawfully-produced marijuana.  In both cases, the guilty were arrested and the innocent business owners were not, but the businesses were adversely affected – each was the subject of a government investigation, its premises were searched by law enforcement agents, and its bank accounts and property were subject to seizure....  Companies without stringent compliance programs are particularly at risk.

As a result, virtually every bank of any size has decided not to do business with legal marijuana companies, concluding that the so-called “regulatory risk” outweighs the benefits of doing business with them....  Major law firms, ever risk-averse, have also decided not to advise marijuana companies... [because] most major law firms have decided that the risk that they will be deemed an aider and abettor of criminal activity makes advising marijuana businesses untenable....

The lack of access to banks and lawyers is a problem not only for legal marijuana businesses, but for regulators and law enforcement, as well.   Though marijuana remains a controlled substance, legalized marijuana is a reality in many states – and arguably an inevitability, even at the federal level – and it is in the government’s interest for companies in that market to have robust compliance programs.  Likewise, the government has no desire for marijuana businesses to be conducted in cash: the use of cash makes it significantly harder for the government to trace the proceeds of the marijuana businesses, not to mention the fact that businesses that deal in large volumes of cash present opportunities for robbery and other crimes of violence.  But for marijuana money to be both traceable within the legitimate financial system and subject to stringent compliance programs – both within the marijuana businesses and at the institutions that handle their money – means having access to banks and lawyers....

Until marijuana businesses have regular access to the financial system and can turn to a broad array of sophisticated lawyers for counsel, they will remain half-way in the shadows. This is by no means an argument for legalizing marijuana; it doesn’t have to be legal for marijuana businesses to have access to professional services.  Last month, the Marijuana Business Access to Banking Act was introduced in the House of Representatives; among other things, it would prohibit banking regulators or criminal prosecutors from investigating or penalizing a financial institution for “providing financial services to a marijuana-related legitimate business.” Congress could easily pass similar protections for lawyers. Doing so would recognize a basic proposition: when a bank or a lawyer provides services to a legal marijuana business, it is not helping that business to break the law. To the contrary, lawyers and banks – especially sophisticated and responsible ones – help businesses to comply with the law. That helps the marijuana business and government alike.

June 1, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)