Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, June 19, 2018

Lots of big marijuana reform news emerging from the Big Apple

DownloadThis local article sums up some developing marijuana reform news from New York that seems likely to have national ripples:

Mayor Bill de Blasio and Police Commissioner James O’Neill are expected to announce a new plan Tuesday on how police deal with people caught with marijuana. Sources tell CBS2 that police will soon issue a summons instead of making an arrest. It applies to people smoking or in possession of less than 25 grams of marijuana, CBS2’s Jenna DeAngelis reported.

“The goals are to reduce unnecessary arrests, which is something we’ve been doing overall — 100,000 fewer arrests overall in 2017 than 2013, crime going down consistently in that time frame. We want to build on that,” de Blasio said on NY1. But sources say there will exceptions, which include if the person is on parole or probation or behind the wheel and an arrest would be at the discretion of the officer.

The announcement comes as the New York State Health Department is also set to issue a recommendation to legalize marijuana state-wide, six months after Gov. Andrew Cuomo asked the department to study the effects of legalizing marijuana. “We have neighboring states that have legal marijuana. When those facts change, we need to look at things differently,” Health Commissioner Howard Zucker said. “That’s the decision, at this point, to have a regulated legal marijuana program for adults.”

While the report has not yet been finalized, Zucker said its authors reached their conclusion after a thorough review of the legal, medical and social implications of legalization. “We looked at the pros, we looked at the cons,” Zucker said. “When we were done we realized that the pros outweighed the cons.”

Though a new NYC arrest policy could have a real impact real quickly, I see the forthcoming report by the New York State Health Department to be especially notable and perhaps quite consequential.  I would be inclined to expect a state health department to be concerned about the public health consequences of legalization and to see potential health "cons" to generally outweigh other "pros."  I think that if the New York State Health Department articulates the pros and cons of full legalization in a powerful way that really speaking to public health and safety issues, this forthcoming report could become a template for marijuana reform advocacy in a lot of areas beyond New York.

June 19, 2018 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, June 18, 2018

Interesting review of the "footprint" of marijuana prohibition and expungement prospects in Michigan months before full legalization vote

RMLA-MichiganThe Detroit Free Press has this notable new article that includes interesting data on the bite of marijuana prohibition in the Wolverine State. The piece is headlined "Some marijuana convictions could disappear if voters approve legal pot," and here are excerpts:

Untold thousands of Michiganders could be in line for a second chance if voters decide to legalize the recreational use of marijuana in the Nov. 6 election.

In some other states where recreational use of marijuana has been legalized, voters or lawmakers have decided to make it easier for people convicted of marijuana crimes to get their records expunged or sealed. And Michigan could be on the same path if a bill introduced last week by state Rep. Sheldon Neeley gets a hearing and is passed.

“I hope we will listen to the will of the people. If the November vote is loud and clear, we should take a good look at it and balance the playing field on the usage of marijuana in the state of Michigan,” said the Flint Democrat. “We definitely don’t want people to have a criminal record for a nonviolent crime that is now legal if it passes in November.”

His bill would only deal with misdemeanor convictions, such as use or possession of small amounts of marijuana as well as some cannabis growing. But under the legislation, judges “shall grant” requests for expungement of criminal convictions if the proposal is passed by voters and the convictions are no longer considered a crime under the legalization....

In the past five years, 117,123 Michiganders have been arrested and charged with misdemeanor marijuana offenses and 49,928 of those people have been convicted, according to statistics compiled by Michigan State Police from records supplied by county prosecutors and courts.

Nationally, according to figures compiled by the American Civil Liberties Union (ACLU), 8.2 million people were arrested for marijuana offenses between 2001 and 2010. African-Americans were three times more likely to be arrested for marijuana crimes as whites, according to the data, compiled from the FBI’s annual crime statistics.

Altogether, 3,670 people are either in prison, jail or on probation for felony marijuana convictions, according to the Michigan Department of Correction’s 2016 annual report of its inmate population. Some of those convictions are for high-level marijuana distribution charges, but others are for possession or use of marijuana. Neeley’s bill would allow some of those people to request an expungement of their conviction, but judges wouldn’t be required to grant those requests.

Not many marijuana offenders are locked up in county jails in metro Detroit. In Wayne County, 25 of the 1,725 inmates in the county jail are there on felony marijuana charges and no one is locked up on a misdemeanor pot charge, according to Undersheriff Dan Pfannes. Others may be there on marijuana crimes, but have other charges pending as well, he said. In Oakland County, seven of the 1,300 inmates are in jail on misdemeanor marijuana charges and four for felony crimes, said Undersheriff Mike McCabe....

The Coalition to Regulate Marijuana Like Alcohol, which spearheaded the petition drive that got the marijuana legalization on the November ballot, considered adding a clause that would have allowed for expungement of criminal convictions. California did the same thing in 2016 when voters there passed a referendum to legalize weed by a 57 percent to 43 percent margin.

But there was a fear that because the proposal would deal with more than one state law that it could become vulnerable to a legal challenge. “Expungement is a separate issue than legalization,” said Josh Hovey, spokesman for the coalition. “Our first draft included expungement, but our attorneys strongly recommended pulling it or risk the whole thing.”

Neeley hopes his bill will get a hearing before the November election, but that’s unlikely in the Republican-controlled Legislature. “I’d like to see it taken up before the November election so people will have a clearer vision of what’s going to happen going forward,” he said, noting he hasn’t made up his mind on how he’ll vote on the ballot proposal.

But he will have support from some of the candidates running for statewide office. All the Democratic gubernatorial candidates — former Senate Minority Leader Gretchen Whitmer, former Detroit Health Department Director Abdul El-Sayed and retired businessman Shri Thanedar, as well as attorney general candidate Dana Nessel — favor the pot legalization proposal and allowing for the expungement of low-level marijuana convictions.

All of the Republican candidates for governor — Attorney General Bill Schuette, Lt. Gov. Brian Calley, state Sen. Patrick Colbeck and Saginaw Township doctor Jim Hines, as well as Speaker of the House Tom Leonard, R-Dewitt, and Sen. Tonya Schuitmaker, R-Lawton, who are running for attorney general, oppose legalizing marijuana, but they have said they would respect the will of the voters if the measure passes. Schuitmaker said it would make sense to expunge low-level convictions, but she would want to check with prosecutors first to see whether the original charge was more severe and pleaded down. None of the other GOP candidates were willing to address the expungement issue before the legalization vote is taken.

In addition to California, Colorado, Maryland, New Hampshire and Oregon have taken steps to make it easier for people to get their convictions sealed or expunged. Gov. Brian Sandoval, a Nevada Republican, vetoed a bill last year that would have made clearing those convictions easier, saying that the bill didn’t differentiate enough between low-level and more serious crimes.

Regular readers likely know I am very interested in these discussions because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which calls for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.   And I have blogged a lot about these issues here, as this partial sampling of some recent postings reveals:

June 18, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, June 16, 2018

"High on Crime? Exploring the Effects of Marijuana Dispensary Laws on Crime in California Counties"

The title of this post is the title of this notable new research now available via SSRN authored by Priscillia Hunt, Rosalie Liccardo Pacula and Gabriel Weinberger. Here is its abstract:

Regulated marijuana markets are more common today than outright prohibitions across the U.S. states.  Advocates for policies that would legalize marijuana recreational markets frequently argue that such laws will eliminate crime associated with the black markets, which many argue is the only link between marijuana use and crime.  Law enforcement, however, has consistently argued that marijuana medical dispensaries (regulated retail sale and a common method of medical marijuana distribution), create crime in neighborhoods with these store-fronts.

This study offers new insight into the question by exploiting newly collected longitudinal data on local marijuana ordinances within California and thoroughly examining the extent to which counties that permit dispensaries experience changes in violent, property and marijuana use crimes using difference-in-difference methods.  The results suggest no relationship between county laws that legally permit dispensaries and reported violent crime.  We find a negative and significant relationship between dispensary allowances and property crime rates, although event studies indicate these effects may be a result of pre-existing trends.  These results are consistent with some recent studies suggesting that dispensaries help reduce crime by reducing vacant buildings and putting more security in these areas.  We also find a positive association between dispensary allowances and DUI arrests, suggesting marijuana use increases in conjunction with impaired driving in counties that adopt these ordinances, but these results are also not corroborated by an event study analysis.

June 16, 2018 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 | Permalink | Comments (0)

Wednesday, June 13, 2018

"Meet the Mother Teresa for Pot Prisoners"

Meet-mother-teresa-pot-prisoners-heroIn part because of the headline and in part because of the focal point, I could not resist linking to this effective High Times article with the headline that serves as the title of this post.  The piece merits a full read, and here are only some of the good parts (with links from the original):

Beth Curtis used to fill her days playing tennis with friends and attending community board meetings in her rural home of Zanesville, Ohio, a small coal country city on the outskirts of Appalachia. But in the past decade, the social calendar of the 76-year-old widow and mother of three has all but disappeared. Instead, she spends her time corresponding with incarcerated people, sending mailers to cannabis companies, talking to the media, and updating her website, LifeForPot.com — all exercises dedicated to advocating for nonviolent offenders serving life sentences without the possibility of parole on marijuana convictions.  Called the “Mother Teresa for Pot Prisoners,” Curtis is lauded as a crucial voice in criminal justice circles for her work calling attention to those who remain incarcerated on marijuana charges as the plant becomes legal across the country.

Curtis, who worked briefly as a social worker in the 1960s, spent the majority of her life raising her three sons and volunteering on various boards. That changed when her brother, John Knock, was given two life sentences plus 20 years without the possibility of parole for his involvement with a marijuana distribution ring. During the 1970s and early ‘80s, Knock, who had moved to San Francisco, spent most of his time out of the country as part of a group that imported marijuana into Europe, Canada, and the northwest.

He left the group in the late ‘80s to spend time with his family and son, moving to Hawaii. Knock was indicted in 1994, picked up in Paris in 1996, and extradited to the United States in 1999, where he stood trial at a federal district court in Florida. He was convicted of conspiracy to import and distribute marijuana and money laundering. Nine years later, when Knock’s legal team had exhausted all of his appeals, his loved ones were left in disbelief of the future that awaited him.

“Our family was shocked because we really didn’t understand the justice system and thought it couldn’t be right,” said Curtis....

Curtis, who was 66 at the time, had honed her skills on the internet investing in small pension plans in the early ‘90s.  She started searching government websites looking for people who had similar sentences for marijuana. She looked for cases that appeared to involve people who were incarcerated solely for marijuana offenses and wrote letters to them in prison in hopes they’d be willing to share more.  “It wasn’t that easy, at that time there weren’t a lot of people who were advocating for them,” Curtis said. “When a stranger writes to you in federal prison I think it’s very logical they were afraid it would be someone who would be an outside confidential informant trying to get information about them that would do harm.”

 Once she earned their trust, Curtis drew on the conversations to write profiles for her entirely self-funded website in a bid to raise awareness for people like her brother who were condemned to spend the rest of their lives behind bars for marijuana.   “It’s pretty satisfying to be able to give them some kind of the story on the outside,” she said. “Every story is a tragedy.”...

Curtis’ reputation has grown over the years and with that, she’s become a regular source for media navigating the sometimes intricate world of marijuana lifers and commutations. She regularly offers her expertise for articles, helps reporters fact check confusing court documents, and connects them with incarcerated people for interviews.  Curtis doesn’t know how many nonviolent drug offenders are now serving life sentences for marijuana but says there aren’t as many as people would expect. The website currently lists 29 people, separated into age categories of “inmates over 62” and “inmates under 62.”...

Amy Povah, a formerly incarcerated person and founder of the CAN-DO Foundation, an organization that advocates for clemency for all nonviolent drug offenders, christened Curtis as the “Mother Teresa for Pot Prisoners,” alluding to the Roman Catholic Saint known for her charitable work. CAN-DO works closely with Life For Pot and has taken over some advocacy work for pot lifers in recent years. Povah credited Curtis’ work vetting cases as a boon to many other advocates as “many people, myself included, have benefited from her body of work.”

At least five pot lifers who Curtis has advocated for have received commutations, but Cox and Knock were among the more than 3,000 cases denied commutations or pardons by former president Barack Obama before he left office in January 2017. Curtis had been helping families of pot lifers prepare complicated clemency petitions to be processed through Obama’s Clemency Project 2014, or CP14, which then Attorney General Eric Holder said could shorten the sentences of more than 10,000 incarcerated people behind bars for nonviolent offenses.

“It was pretty devastating. I honestly could not believe it,” Curtis said. “It was all very hard because everybody who didn’t receive mercy contacted me and they needed reassurance there’s still hope and frankly there still is.”...

Curtis pointed out that clemency is now especially relevant as marijuana is increasingly decriminalized and legalized while a bill to end the federal ban is gaining momentum.

But the policy shifts are bittersweet for those still behind bars for their own roles in harvesting and distributing the plant. In an effort to build support from people benefiting from the new regulations, Curtis has amassed a database of cannabis business enterprises, conglomerates, and venture capitalists to whom she sends mailings urging them to advocate for those serving life sentences for cannabis. There aren’t many in the industry doing so, Curtis said—a surprising revelation, given that the plant is now part of a $9 billion industry projected to employ 292,000 people by 2021.

Curtis talks to her brother a few times a week but has passed on work like communicating regularly with pot prisoners to other advocacy groups such as CAN-Do and Families Against Mandatory Minimums (FAMM), whose president, Kevin Ring, heralded her as an inspiration.

“When advocates say, ‘When a person goes to prison, the whole family serves the time,’ you just have to look at Beth’s life. I don’t think she’s breathed a free breath since her brother went to prison,” he said. 

June 13, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Friday, June 8, 2018

Telling modern Minneapolis tale of minor marijuana enforcement still flush with racial disparity

Ows_152840735539363The Chief of the Minneapolis Police Department, Medaria Arradondo, became the city's first African-American "top cop" last year.   But, as reported in this new local story, the city still has been involved in a remarkable form of disparate policing in its marijuana enforcement.  The piece is headlined "Minneapolis cops halt low-level marijuana stings after racial disparity revealed: All charges dropped after reports show 46 of 47 arrested were black," and here are the details:

Minneapolis police abruptly ended the practice of targeting small-scale marijuana sellers downtown after revelations that nearly every one arrested was black.  In a series of rushed announcements Thursday, authorities said that police would no longer conduct sting operations targeting low-level marijuana sales, and charges against 47 people arrested in the first five months of 2018 would be dismissed.

The extraordinary turnaround came after Hennepin County's chief public defender contacted Mayor Jacob Frey to complain about what looked like blatant racial profiling.  Frey then directed Chief Medaria Arradondo to stop the stings. "I believe strongly that marijuana should be a lowest-level enforcement priority and that it should be fully legalized at the state level," Frey said in a statement Thursday.  "The fact that racial disparities are so common nationwide in the enforcement of marijuana laws is one of the reasons I support full legalization."...

[I]n recent years, Minneapolis police have stepped up their presence on Hennepin Avenue in response to concerns about safety downtown.  Using undercover officers posing as buyers, they arrested 47 people for selling marijuana on Hennepin between 5th and 6th streets.

The Hennepin County Public Defender's office determined that 46 of those arrested were black.  All were charged as felonies.  Some were put in diversion programs, some were convicted and at least one man went to prison.  "Almost all of those cases involve a sale of 1-2 grams of marijuana for a total of $10-$20," assistant county public defender Jess Braverman wrote in a May 31 court document....

Arradondo announced Thursday in a 12:30 p.m. news conference that he had discontinued stings targeting low-level marijuana sales at the request of Frey.  "While the intention was good, it had an unintended consequence," he said.  He said that during the downtown police effort, officers arrested other people who were in possession of illegal guns and other drugs such as opioids, although that was separate from the marijuana arrests.

Arradondo defended his officers, saying they were acting professionally and not targeting black people because of their race.  A police spokesman said that while the undercover stings were being stopped, police would still make arrests for marijuana sales.

At 3 p.m., Hennepin County Attorney Mike Freeman issued a news release that said he had informed Arradondo that he would not charge any more people arrested in the stings and that he was reviewing the remaining cases.  An hour later, his office notified [Hennepin County Chief Public Defender Mary] Moriarty that all the cases were being dismissed. "These undercover drug stings by the Minneapolis Police Department occurred without our knowledge," Freeman said in a statement. "Because they occurred over a period of months and were distributed to about a half-dozen of our attorneys for prosecution, we did not detect any pattern."...

In a court document, Braverman wrote that the arrests "have resulted in felony convictions for numerous black defendants who had been targeted, and all the devastating collateral consequences that go along with such convictions: jail time, prison time, and even deportation proceedings."

Details about the stings were described in a case involving the arrest of one suspect, Shauntez Palmer, who was charged with fifth degree sale of 1.6 grams of marijuana. An undercover officer stated in her report that she purchased marijuana from another person, Ameir Davis on Hennepin Avenue between N. 5th Street and N. 6th Street, while Palmer acted as a lookout.  Both men were arrested and brought to jail....

"On the dates of the stings, officers are approaching people of color, individuals and groups, and asking to buy drugs," Braverman wrote.  "Officers have directly asked black men to facilitate drug deals with other black men, and have then requested that the facilitator be charged with sale.  They are submitting the cases for felony charges."  Moriarty said that the only white person arrested was not approached by police, but had himself approached an undercover officer about selling some marijuana.

In a letter to Arradondo on May 29, Moriarty wrote, "A review of the cases received by our office strongly suggests a trend of racial profiling under the guise of a 'livability' detail."

Mel Reeves, a human rights activist who lives in Minneapolis, said he was cheered by the decision to halt the stings. "It's not news that black people are targeted by law enforcement on marijuana charges," he said. "It's good news they are recognizing the disparities and doing something about it."

June 8, 2018 in Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Thursday, May 31, 2018

"Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States"

HeaderImageThe title of this post is the title of this big new report released today by the Governors Highway Safety Association.  This press release about the report provides some highlights on its coverage and points of emphasis:

A new report from the Governors Highway Safety Association (GHSA) finds that in 2016, 44% of fatally-injured drivers with known results tested positive for drugs, up from 28% just 10 years prior.  More than half of these drivers had marijuana, opioids, or a combination of the two in their system.

Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States presents new research to examine the impact of marijuana and opioids on driving ability and provides recommendations on how best to address these emerging challenges.  Funded by the Foundation for Advancing Alcohol Responsibility (Responsibility.org), the report found that among drug-positive fatally-injured drivers in 2016, 38% tested positive for some form of marijuana, 16% tested positive for opioids, and 4% tested positive for both marijuana and opioids.

While alcohol-impaired driving remains a significant threat to traffic safety, presence of alcohol in fatally-injured drivers is slightly lower than it was a decade ago, decreasing from 41% in 2006 to 38% in 2016.  Some of the strategies that have been used to address alcohol-impaired driving can also be employed to deter drug-impaired driving, yet drug impairment presents several unique challenges.  For example, there is no nationally-accepted method for testing driver drug impairment; there are an unwieldy number of drugs to test for; and different drugs have different impairing effects in different drivers.

Report author Dr. Jim Hedlund, former senior NHTSA official and nationally-recognized issue expert, explained, “Drugs can impair, and drug-impaired drivers can crash. But it’s impossible to understand the full scope of the drugged driving problem because many drivers who are arrested or involved in crashes, even those who are killed, are not tested for drugs. Drivers who are drug-positive may not necessarily be impaired.”

Adding to these concerns is the frequency of poly-drug use, or the use of multiple potentially-impairing substances simultaneously.  In 2016, 51% of drug-positive fatally-injured drivers were found positive for two or more drugs.  Alcohol is often in the mix as well: 49% of drivers killed in crashes who tested positive for alcohol in 2016 also tested positive for drugs.

May 31, 2018 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Saturday, May 19, 2018

New York Daily News says "End the war on pot"

7FZLW5L46V6V6AGOGX2CDDHXYYFor many reasons, New York is an important and interesting state to watch in the array of debates over marijuana reform.  And another notable voice chimed in yesterday in the form of the New York Daily News editorial board, which published this editorial headlined "End the war on pot: We welcome the push to legalize and regulate marijuana." Here are excerpts from an effective editorial:

After many decades of treating as a crime the personal possession and use of a drug that is a negligible threat to public safety, New York is awakening to the folly of — and racial disparities widened by — its approach.

We are part of this awakening, which is why we welcome the push to legalize and regulate marijuana. By every honest measure, the substance has more in common with alcohol and tobacco than it does harder drugs that are rightly illegal.

Which is not to say we endorse vaping or toking, or that government should. Legalization can coexist with stigmatization, especially for young people, for whom drug use and abuse is disastrous.

But continuing to turn the punitive gears of the criminal justice system against 50 people per day in the five boroughs for so much as touching a drug that countless adults use harmlessly in the privacy of their own homes does not serve New York.

It wasn't supposed to be this way. In 1977, New York decriminalized possession of 25 grams or less of marijuana, making it an infraction with a $100 fine. In the intervening 40 years, hundreds of thousands of people have been arrested. Police in the five boroughs continue to make some 17,000 arrests annually for pot possession. Though that's down 40% since 2013, due in large part to a rise in criminal summonses, it's still high.

And despite the fact that research shows marijuana is used in about equal numbers by whites, blacks and Latinos, blacks and Latinos make up 86% of arrestees. Those two groups account for just 51% of the city's overall population. Even the NYPD's chief of crime control strategies has said this gulf "should be troubling to anyone." While it's true that arrests are often driven by calls to 311 and 911, analysis by the Daily News this year showed the association to be far weaker than the city claims. The New York Times matched ethnically different neighborhoods with almost identical complaint levels — and found that the predominantly white and Asian neighborhoods generally saw orders of magnitude fewer arrests than the predominantly black and Latino ones.

This stubborn racial enforcement disparity points to a fundamental question: why it makes sense to treat marijuana use as a nail to be hit with the hammer of cuffs, cops and courts, saddling individuals with arrest records and sometimes, though infrequently, jail time for partaking....

Nine U.S. states, including Colorado, Massachusetts, California and Alaska, have fully legalized marijuana for recreational use. New Jersey is leaning strongly in the same direction.

Where the drug has been legalized, fears that taking sales out of the black market and into the open would lead to a surge in violent crime and drug use have not materialized. There are trends worth worrying about, and learning from, such as an apparent rise in pot-related DWIs. But the sky has not fallen, or even noticeably darkened, anywhere that marijuana has gone from being a criminally forbidden substance to a taxed and regulated one.

By the same token, it is crucial to make clear that legalization advocates oversell their product with the suggestion it will eliminate stubborn policing disparities. No state that allows small amounts of marijuana to be sold and held for personal use permits public smoking, which remains anything from a non-criminal ticket to a criminal misdemeanor. In other words, it is properly an offense to be enforced, and that enforcement may prove racially disparate, following differences in behavior. So, too, would black-market sales remain against the law.

One alternative to legalization is decriminalization. Manhattan DA Cy Vance and Brooklyn DA Eric Gonzalez call for declining to prosecute pot possession while keeping it illegal on the books. While tempting, this could create a patchwork of enforcement whereby the same offense is treated radically differently across New York jurisdictions. We've gained little, and lost plenty, in waging this misbegotten war. It's time to try another way.

May 19, 2018 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, May 16, 2018

Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program

DownloadAs reported in this local article, headlined "San Francisco will use new technology to automatically reduce marijuana convictions under Prop. 64: 'It’s about leveling the playing field'," a notable player in the tech world is stepping up to aid expungement efforts in California in the wake of marijuana legalization. Here are the details:

When recreational marijuana use was legalized in California, it presented an opportunity to reduce or expunge convictions for possession crimes that made it harder for some people to get ahead in life. Since then, some counties have worked to address those convictions, taking on the lengthy bureaucratic process so that people would not have to wade through the legal world on their own.

San Francisco led the charge, announcing in January that the district attorney's office would retroactively apply the new marijuana law to prior convictions dating as far back as 1975. But for prosecutors, the chance to change those convictions also came with a challenge: It required a lot of resources to plow through thousands of cases.

On Tuesday, Dist. Atty. George Gascón announced what he believes to be the solution. San Francisco is working with a nonprofit organization to create a program that would automatically clear eligible convictions under California's new marijuana legalization law. The program, created by Code for America, will allow the district attorney's office to use new technology to determine eligibility for record clearance under state law, automatically fill out the required forms and generate a completed motion in PDF format. The district attorney's office can then file the completed motion with the court....

The new program will clear people's records of crimes that can be barriers to employment and housing, the district attorney said. Lack of access to employment and housing drive recidivism, Gascón said, adding that he hopes the partnership will inspire other prosecutors who have cited resource constraints to follow suit.

In February, Los Angeles County Dist. Atty. Jackie Lacey said petitioning through the courts would be faster for people seeking relief than waiting for her office to review the case files. The same month, the Los Angeles County Board of Supervisors approved a motion to develop a plan to help make it easier for people to reduce or clear minor pot convictions. The Los Angeles County district attorney's office estimates there have been 40,000 felony convictions involving pot-related offenses since 1993. It is unclear how many of those people are eligible for relief or how many have petitioned for it.

Although "drug use in this country has not been limited to people of color" in California, minorities — particularly African Americans and Latinos — have been arrested and jailed for marijuana offenses at much higher rates than white people, Gascón said. Many of those affected are poor, he added, or lack the resources needed to change their criminal records on their own. "It's about leveling the playing field," he said. "Justice is supposed to be about fairness and equity."...

The district attorney's office said Gascón and Code for America began exploring the possibility of automating the process in February, after recognizing how "resource intensive" it was to wipe out or reduce convictions. Some 962 motions to dismiss a misdemeanor marijuana conviction have been prepared, 528 have been submitted to the San Francisco Superior Court and 428 have been granted, the district attorney's office said, but felony convictions take longer because they require an analysis of rap sheets in order to determine eligibility.

Code for America plans to expand the pilot program to other California counties with the target of clearing 250,000 convictions by 2019. The organization has previously delved into the realm of criminal justice: In 2016, it created Clear My Record, an online application that connects people with lawyers to clear criminal records across California.

"By reimagining existing government systems through technology and user-centered design, we can help governments rethink incarceration, reduce recidivism, and restore opportunity," Code for America Executive Director Jennifer Pahlka said in a statement. The program, she said, will demonstrate that "our institutions can deliver on the promise voters intended when they passed propositions like Proposition 64."

Regular readers perhaps already know that I am eager to follow-up this story by plugging my new paper written for a forthcoming issue of the Federal Sentencing Reporter focused on the intersection of marijuana reform and ameliorating collateral consequences.  Among the themes of that paper is the opportunity that marijuana reform presents for building a more robust infrastructure for helping individuals access existing expungement remedies.  In my writing, I was thinking primarily about building up government infrastructures here, but this new development is a great indication of how technological infrastructure can develop to extend the benefits of marijuana reform in various ways.

Prior related post:

"Leveraging Marijuana Reform to Enhance Expungement Practices"

May 16, 2018 in Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

The power of the pen: NYC mayor and prosecutors pledge to reduce marijuana arrests after new reports on racial disparity

6a00d8341bfae553ef0223c84afc33200c-320wiAs reported in this recent post, titled "NY Times highlights racialized realities of NYC marijuana arrests," the Gray Lady earlier this week ran a big story on the racially disparate patterns of arrests for marijuana offenses in New York City.  Though lots of other folks have tracked and reported on these racialized realities in the past, the New York Times can often capture attention like few others.  And proof of this reality comes from this follow-up New York Times article headlined "Mayor and Some Prosecutors Move to Curb Marijuana Arrests." Here are excerpts:

After years of halting steps, top prosecutors and elected officials in New York City on Tuesday made a sudden dash toward ending many of the marijuana arrests that for decades have entangled mostly black and Hispanic people.

The plans, still unwritten and under negotiation, will rise or fall on the type of conduct involving marijuana that officials decide should still warrant arrest and prosecution. The changes appear likely to create a patchwork of prosecution policies across the city’s five boroughs, and are unlikely to restrict police officers from stopping and searching people on suspicion of possessing a drug that is now legal in a number of states.

But with the city now conceding a wide racial gap in arrests and with the Police Department’s rationale for that gap collapsing under scrutiny, the plans represent a striking shift that could lead in some parts of the city to people generally facing no criminal penalties for smoking marijuana.

Mayor Bill de Blasio, who suggested only weeks ago that city policy would hold fast until New York State legalized the drug, directed the Police Department on Tuesday to have a plan within 30 days to “end unnecessary arrests.”

The Manhattan district attorney, Cyrus R. Vance Jr., said he would stop prosecuting marijuana possession and smoking arrests this summer, and he gave the Police Department until then to make a case for still charging limited categories of people. The Brooklyn district attorney, Eric Gonzalez, said that over the last three months his office had doubled the number of marijuana smoking cases it had stopped prosecuting and that it now planned to start throwing out more cases after the Police Department weighed in.

And the police commissioner, James P. O’Neill, said he would convene a working group to review marijuana enforcement tactics and conceded that at least some arrests “have no impact on public safety.”

A New York Times investigation published on Sunday showed that black people were arrested on low-level marijuana charges at eight times the rate of white people over the last three years, and that among neighborhoods where people called to complain about marijuana at the same rate, the police almost always made arrests at a significantly higher rate in the area with more black residents.

Defense lawyers and drug reform advocates, stung by years of piecemeal policy changes that have only reined in prosecution and arrest tactics bit by bit, said the plans did not yet offer any assurances that the decades-long era of mass enforcement of marijuana laws was over. Kassandra Frederique, the New York State director at the Drug Policy Alliance, which has long pushed for legalization and publicized the racial gap in arrests, faulted Mr. de Blasio for not acting sooner. In January, the mayor said the roughly 17,500 annual marijuana arrests represented “a normal level in the sense of what we were trying to achieve.”...

At the end of 2014, Mr. de Blasio said the police would largely give summonses instead of making arrests for carrying personal marijuana, and reserve arrests mainly for smoking in public. Arrests fell from about 26,000 people in 2014 to 17,500 people on average in the years since then, about 87 percent of them black or Hispanic. But still, thousands of people continued to miss work and school for court and face consequences in their searches for housing or jobs. Research has shown there is no good evidence that marijuana arrests are associated with reductions in serious crime in New York City.

In a report released Tuesday, Mr. Vance said he supported legalizing marijuana and had found no rationale for the New York City’s enforcement tactics: “These arrests waste an enormous amount of criminal justice resources for no punitive, rehabilitative, deterrent or other public safety benefit. And they do so in a racially disparate way that stigmatizes and disadvantages the arrestees,” the report said....

The district attorneys in Manhattan and Brooklyn left the door open to prosecuting people on marijuana charges if they had previous criminal records. Scott Hechinger, a senior staff lawyer and director of policy at Brooklyn Defender Services, said doing so would undermine a policy intended to reduce the impact of marijuana laws on black and Hispanic people: “The people that are going to have records are folks that live in neighborhoods that are overpoliced and targeted for enforcement,” he said....

The moves on Tuesday highlighted the discretion afforded the city to enforce the state’s marijuana law as police officials see fit. But defense lawyers and drug reform advocates said that so long as using marijuana was still a crime, police officers would continue to seize on the smell of marijuana to stop and search people and check for open warrants. “The odor of marijuana has become the new broken taillight,” Mr. Hechinger said. “It creates a pretext that’s quite difficult to disprove for officers to approach and search our clients in neighborhoods with a high police presence.”

Some (of many) prior related posts:

May 16, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms | Permalink | Comments (0)

Monday, May 14, 2018

Center for Justice Reform at Vermont Law School conducting expungement days for old misdemeanor marijuana possession offenses

CFJR-LOGO-and-text-larger-highresAs explained in this recent press release, the Center for Justice Reform at Vermont Law School is taking an active role in helping Vermont's recent marijuana reform become consequential for persons with certain prior marijuana convictions. Here are the details (with links from the original):

Windsor County State’s Attorney David Cahill, Chittenden County State’s Attorney, Sarah George, and the Center for Justice Reform at Vermont Law School, invite community members convicted of misdemeanor marijuana offenses to Expungement Day, a free information session to assist individuals with removing convictions from their record. Expungement Day for Windsor County convictions will be held from 9 a.m. to Noon Saturday, June 9, in Oakes Hall, Room 012 at VLS.  Expungement Day for Chittenden County convictions will be held from 9 a.m. to 4 p.m., Tuesday, June 12, in Courtroom 2C of the Costello Courthouse at 32 Cherry Street in Burlington. 

Effective July 1, Vermont law changes to allow for the personal possession of small amounts of marijuana by individuals age 21 and older. In recognition of this change and shifting attitudes about marijuana, the Windsor and Chittenden County State’s Attorneys have agreed to support the expungement of all old misdemeanor marijuana possession offenses that arose within Windsor and Chittenden County.  This does not apply to felony-level offenses, convictions for sale of marijuana, or any offenses that took place outside of Windsor or Chittenden County.   Cahill and George will support expungement regardless of any prior or subsequent convictions for other offenses. However, even after July 1, it will remain illegal to possess more than an ounce of marijuana, to use marijuana in a public place, or to drive under the influence of marijuana or any other drug.  These laws will continue to be enforced by police and prosecuted by the Windsor and Chittenden County State’s Attorneys. 

Under Vermont law, 13 VSA §7606, once a conviction is expunged, a person may lawfully claim that he or she was never arrested, convicted, or sentenced for the marijuana possession offense.  While Vermont affords these protections for expunged offenses, other states and the federal government may treat the effect of the expungement differently.

During each Expungement Day, Professor Robert Sand, director of the Center for Justice Reform, VLS students, and other volunteers will educate community members about how to complete an expungement petition.  Though volunteers will not provide legal advice, by the end of the session, participants will have a completed expungement petition ready for filing.  Both State’s Attorneys have agreed to accept the petitions and file them with their respective courts. 

“When a person has paid their debt by virtue of a criminal conviction, that should be finite — they shouldn’t keep paying” said Sand in a VPR interview earlier this year. “There is room within our judicial system — and it should be appropriately resourced — for court to be a place where rights are restored.”  Participants in Expungement Day should plan to bring valid, government-issued photo identification as well as any records they have related to their prior misdemeanor marijuana offense, to include the original docket number. For more information about Expungement Day, email justicereform@vermontlaw.edu

Expungement Day is supported with a generous contribution by the Pennywise Foundation.

May 14, 2018 in Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

NY Times highlights racialized realities of NYC marijuana arrests

Images (10)The front page of this morning's New York Times give attention to marijuana arrests via this extended article with this full headline summarizing its coverage: "Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic: The police explanation that more black and Hispanic people are arrested on marijuana charges because complaints are high in their neighborhoods doesn’t hold up to scrutiny." Here is for the piece starts and some data reported:

They sit in courtroom pews, almost all of them young black men, waiting their turn before a New York City judge to face a charge that no longer exists in some states: possessing marijuana. They tell of smoking in a housing project hallway, or of being in a car with a friend who was smoking, or of lighting up a Black & Mild cigar the police mistake for a blunt.

There are many ways to be arrested on marijuana charges, but one pattern has remained true through years of piecemeal policy changes in New York: The primary targets are black and Hispanic people.

Across the city, black people were arrested on low-level marijuana charges at eight times the rate of white, non-Hispanic people over the past three years, The New York Times found. Hispanic people were arrested at five times the rate of white people. In Manhattan, the gap is even starker: Black people there were arrested at 15 times the rate of white people.

With crime dropping and the Police Department under pressure to justify the number of low-level arrests it makes, a senior police official recently testified to lawmakers that there was a simple reason for the racial imbalance: More residents in predominantly black and Hispanic neighborhoods were calling to complain about marijuana.

An analysis by The Times found that fact did not fully explain the racial disparity. Instead, among neighborhoods where people called about marijuana at the same rate, the police almost always made arrests at a higher rate in the area with more black residents, The Times found.

In Brooklyn, officers in the precinct covering Canarsie arrested people on marijuana possession charges at a rate more than four times as high as in the precinct that includes Greenpoint, despite residents calling 311, the city’s help line, and 911 to complain about marijuana at the same rate, police data show. The Canarsie precinct is 85 percent black. The Greenpoint precinct is 4 percent black.

In Queens, the marijuana arrest rate is more than 10 times as high in the precinct covering Queens Village as it is in precinct that serves Forest Hills. Both got marijuana complaints at the same rate, but the Queens Village precinct is just over half black, while the one covering Forest Hills has a tiny portion of black residents.

And in Manhattan, officers in a precinct covering a stretch of western Harlem make marijuana arrests at double the rate of their counterparts in a precinct covering the northern part of the Upper West Side. Both received complaints at the same rate, but the precinct covering western Harlem has double the percentage of black residents as the one that serves the Upper West Side....

Mayor Bill de Blasio said in late 2014 that the police would largely give summonses instead of making arrests for carrying personal marijuana, and reserve arrests mainly for smoking in public. Since then, the police have arrested 17,500 people for marijuana possession on average a year, down from about 26,000 people in 2014, and issued thousands of additional summonses. Overall, arrests have dropped sharply from their recent peak of more than 50,000 during some years under Mayor Michael R. Bloomberg. About 87 percent of those arrested in recent years have been black or Hispanic, a proportion that has remained roughly the same for decades, according to research led by Harry G. Levine, a sociology professor at Queens College....

The city’s 77 precincts, led by commanders with their own enforcement priorities, show erratic arrest patterns. In Sunset Park, Brooklyn, for example, the police made more than twice as many marijuana arrests last year as in 2016, despite receiving roughly the same number of annual complaints. And in a precinct covering a section of northwestern Harlem, arrests dropped to 90 last year from almost 700 a year earlier, even though complaints fell only slightly from one year to the next.

The NY Times also has this companion article headlined "Using Data to Make Sense of a Racial Disparity in NYC Marijuana Arrests." Here is how it ends:

What we discovered was that when two precincts had the same rate of marijuana calls, the one with a higher arrest rate was almost always home to more black people. The police said that had to do with violent crime rates being higher in those precincts, which commanders often react to by deploying more officers.

More scrutiny is in store for the department’s low-level arrest tactics. A recently passed local law requires the police to post data about the race of people arrested for fare evasion and the subway stations where they are arrested, but the police have yet to comply.

When it comes to marijuana, Mayor Bill de Blasio has said he’s still making up his mind about where he stands on legalization. In the first three months of this year, 89 percent of the roughly 4,000 people arrested for marijuana possession in New York City were black or Hispanic.

May 14, 2018 in Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Thursday, May 10, 2018

"Driving While Stoned: Issues and Policy Options"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark A.R. Kleiman, Tyler Jones, Celeste Miller and Ross Halperin. Here is its abstract:

THC is the intoxicant most commonly detected in US drivers, with approximately 13% of drivers testing positive for marijuana use, compared to the 8% that show a measurable amount of alcohol (NHTSA, 2015). (The two figures are not strictly comparable because cannabis remains detectable for much longer than alcohol, and also for long after the driver is no longer impaired; therefore, the difference in rates does not show that stoned driving is more common than drunk driving.)  Cannabis intoxication has been shown to impair reaction time and visual-spatial judgment.

Many states, including those where cannabis sales are now permitted by state law, have laws against cannabis-impaired driving based on the drunk-driving model, defining criminally intoxicated driving as driving with more than a threshold amount of intoxicant in one’s bloodstream — a per se standard — as opposed to actual impairment.  That approach neglects crucial differences between alcohol and cannabis in their detectability, their pharmacokinetics, and their impact on highway safety.

Cannabis intoxication is more difficult to reliably detect chemically than alcohol intoxication.  A breath alcohol test is (1) cheap and reliable; (2) sufficiently simple and non-invasive to administer at the roadside; and (3) a good proxy for alcohol in the brain, which in turn is (4) a good proxy for subjective intoxication and for measurable driving impairment.  In addition, (5) the dose-effect curve linking blood alcohol to fatality risk is well-established and steep.

None of those things is true for cannabis.  A breath test remains to be developed.  Oral-fluid testing can demonstrate recent use but not the level of impairment.  A blood test requires a trained phlebotomist and therefore a trip to a medical facility, and blood THC levels drop very sharply over time-periods measured in minutes.  Blood THC is not a good proxy either for recency of use or for impairment, and the dose-effect curve for fatality risk remains a matter of sharp controversy.  The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs.  Moreover, the lipid-solubility of THC means that a frequent cannabis user will always have measurable THC in his or her blood, even when that person has not used recently and is neither subjectively intoxicated nor objectively impaired.  That suggests criminalizing only combination use, while treating driving under the influence of cannabis (however this is to be proven) as a traffic offense, like speeding.

May 10, 2018 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Travel | Permalink | Comments (0)

Monday, May 7, 2018

"Can the Mass. marijuana industry help heal communities devastated by the War on Drugs?"

Massachusetts-marijuanaThe question in the title of this post is the headline of this recent Boston Globe article.   (At the risk of getting redundant, I will again note ow this press piece is related in theme to my most recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices.")  Here are excerpts from the Globe piece:

Last month, Massachusetts rolled out the country’s first statewide marijuana industry “equity” program, giving preferential treatment to people who are typically marginalized by the business world.

One key to the effort: giving a head start in the rush for cannabis licenses to companies that are led by or employ minorities, to people with past marijuana convictions, or to residents of low-income neighborhoods with high arrest rates for drug crimes. All other companies that grow, process, or sell pot, meanwhile, are required to help those communities, and are limited in the size of their operations. The Massachusetts Cannabis Control Commission will also launch a training program for inexperienced pot entrepreneurs.

The provisions spring from a simple premise: People of color were disproportionately prosecuted and jailed amid the nation’s “war on drugs,” even though whites had similar rates for using or selling marijuana. It would be unfair, proponents argued, to allow the windfall of a now-legal cannabis industry to flow only to the already privileged, while those who suffered the most under pot prohibition remain frozen out. “We’re going to use this moment to try to rebalance the scales — or, at the very least, to stop creating new unbalanced scales,’’ said state Senator Sonia Chang-Diaz, who helped to write the so-called equity provisions into state law.

While it may seem radical to give previously incarcerated people the right to sell a product that was illegal until recently, the equity provisions so far haven’t been particularly controversial. Even Walpole Police Chief John Carmichael, a fierce critic of legal marijuana, is on board. “It’s going to open the door for people who just wouldn’t otherwise have the ability and financial background to break in,” Carmichael said. “We have to give them a chance.”

As the commission developed its regulations this year, county prosecutors asked the agency to bar people convicted of trafficking certain still-illegal drugs such as heroin or fentanyl from even working at a cannabis company. “This is not an area for permissiveness,” the Massachusetts District Attorneys Association warned in a letter. The cannabis commission partially acquiesced, restricting such people to administrative positions that don’t involving handling marijuana products.

For owners of cannabis businesses, the bar is higher than for their employees. People convicted of serious crimes, including nonmarijuana drug felonies, firearm violations, and sex offenses, cannot own licensed pot companies. However, businesses can hire people with records for possessing opioids, for example, and receive preferential treatment if they employ enough people with criminal records. People convicted of large-scale marijuana trafficking may qualify under the rules, though some might have related convictions that would automatically disqualify them anyway. The commission also has discretion to reject any applicant.

Marijuana equity programs elsewhere operate only on the local level, and have a limited track record. Oakland, Calif., for example, this year adopted a policy that reserves more than half of the city’s licenses for equity applicants, and most of the rest for large companies that agree to host and mentor them. The system has indeed helped people of color break into the business — but it’s also drawn sharp backlash from smaller companies that do not qualify.

Massachusetts has taken a less restrictive approach. The primary initiative underway provides expedited review to applications from companies that meet certain criteria — those owned by people from places with high rates of poverty and drug arrests, for example, or that employ mostly people with drug-related convictions. It’s an important benefit, as many Massachusetts communities limit the number and locations of pot businesses, giving a big advantage to the first stores.

Later this year, the commission will work with community groups to develop a crash course in business planning and fund-raising for entrepreneurs who were arrested or live in so-called communities of disproportionate impact. Those entrepreneurs will also be exempt from many state fees and will be allowed to open pot-delivery services and lounges ahead of other companies if the commission decides to issue those licenses....

Entrepreneurs who do not have drug convictions or arrests can still qualify if they show their business will benefit poorer communities with high arrest rates. For example, Dishon Laing dreams of opening an alternative health center in his native Dorchester that would offer yoga, vegan food, and cannabis. He, too, wants to hire people with criminal records, and also plans to run drug education programs for teenagers. “Everything we do is connected to giving back,” said Laing, a city public health worker. “I know my partners and I will face stigma based on being people of color and the industry we’re in, but we want to show that we’re actually improving our communities.”

Another requirement is intended to recruit marijuana companies that don’t qualify for the equity program to the cause: All applicants must show how their businesses will benefit communities hurt by the drug war. For example, Sira Naturals, a larger medical marijuana operator that’s seeking recreational licenses, plans to host an incubator for equity applicants at its growing facility in Milford. Licensed marijuana businesses must also write and adhere to a diversity plan that promotes gender equity and the employment of veterans, LGBT people, and people with disabilities.

The commission also offers incentives: Companies that provide money and mentoring to entrepreneurs from “areas of disproportionate impact” can get the cannabis equivalent of a Good Housekeeping seal of approval: a “social justice leader” label affixed to their product packaging. State officials also have moved to protect smaller equity businesses by banning larger companies from holding more than three licenses of any type and capping each company’s cultivation area at 100,000 square feet.

All these advantages, however, may not help applicants overcome the biggest hurdle: winning approval from local officials for the location and opening of their businesses. Somerville and other municipalities are considering local versions of the equity program, but none have been adopted yet. Advocates are worried established companies — such as existing medical dispensaries, which are nearly all white-owned — can outbid smaller players by offering communities generous financial packages.

“Cities and towns need to step up, or in a few years we’ll see we had this opportunity to put diversity into action and we failed,” said Ross Bradshaw, who hopes to open a pot business in a Worcester neighborhood designated as an area of disproportionate impact. “There are going to be municipalities that only allow three licenses, and two are going to medical marijuana companies. That’s less opportunity for people of color.”

Cannabis commissioner Shaleen Title, who championed the equity initiatives, acknowledged they are hardly a cure-all. But Title is heartened by the early numbers: 68 applicants have cleared a first hurdle in the process for licensing, and more than 100 more under review. Those people would have their applications reviewed ahead of others. “We’ll never be able to repair the damage caused by drug prohibition, but these programs at least begin to help provide a fair shot,” Title said. “Think about having a conviction that was based on unfair enforcement, and how that holds you back in so many different ways — we want to make that right.”

May 7, 2018 in Business laws and regulatory issues, Criminal justice developments and reforms, Employment and labor law issues, History of Marijuana Laws in the United States, Initiative reforms in states, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, May 4, 2018

"Some Prosecutors Are Erasing Old Weed Convictions. Why Isn’t Yours?"

Legal Marijuana Oregon Measure 91The title of this post is the title of this new HuffPost piece on a topic that readers know is dear to my heart in part due to my work on my most recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices."  Here are excerpts from the HuffPo piece: 

In California, prosecutors in Alameda, Santa Clara, San Diego and San Francisco counties announced earlier this year they will automatically review, recall, resentence and potentially dismiss and seal more than 10,000 misdemeanor and felony marijuana convictions.

The movement is spreading. On Friday, Seattle City Attorney Pete Holmes became the latest top prosecutor to join, asking a city court to vacate all convictions and dismiss all charges for misdemeanor marijuana possession that were prosecuted in the city before the state legalized marijuana for recreational purposes in 2012. Now prosecutors in Denver and Burlington, Vt., are mulling similar measures, their representatives told HuffPost this week.

In Denver, where prosecution of low-level pot offenses has been a low priority for a decade, Ken Lane, a spokesman for newly elected DA Beth McCann, said that while McCann hasn’t retroactively applied Colorado’s laws for post-conviction relief, “she has asked staff to research the matter... in response to what DAs in California are doing.” And in Vermont, which recently became the first state in the nation to legalize marijuana via legislature rather than ballot measure, another prosecutor is making moves.

Justin Jiron, deputy state’s attorney in Chittenden County, Vermont, which contains Burlington, told HuffPost that his office is weeks away from announcing a new policy that will allow individuals to apply to have their past marijuana possession records expunged or sealed regardless of when the conviction took place. It’s not as immediate of a review as San Franciscans and San Diegans can expect, but it’s a meaningful step. “I think the simplest way of looking at it for us is just that these people have convictions that if they were to commit them today they wouldn’t be a crime,” Jiron said. “So it seems unfair to basically saddle them with a conviction for something that is now legal.”

Prosecutors in pot-friendly jurisdictions have enormous power to offer relief for people previously convicted of marijuana offenses in their jurisdiction, but many aren’t using it. California’s marijuana law requires individuals to apply for relief for previous marijuana-related crimes — a process that can be costly and time-consuming. Prosecutors there could greatly speed up the process by following San Francisco’s automatic process, which makes relief more immediate.

Prosecutors in other legal-weed jurisdictions could potentially follow Seattle prosecutor Holmes’ lead and leverage their own state’s laws to move for post-conviction relief for past marijuana offenses. Those state laws, however, are complex and vary tremendously by jurisdiction ― this includes expungement, which does not have a standard definition across jurisdictions, as well as sealing and dismissal. Some states don’t address retroactive relief for past criminal convictions. Some require a governor’s pardon to vacate a conviction. Others allow post-conviction relief but require years-long wait periods, or limit which kinds of convictions can be removed from a person’s record.

But few prosecutors are making moves like Holmes’ — either because they don’t want to, or because state legislatures haven’t passed laws that allow relief for now-legal acts. People convicted of state pot crimes in the past in Washington, Oregon, Nevada, Colorado, Alaska, Vermont, Massachusetts and Maine — all places where the drug is now legal for recreational purposes — may still have violations on their record. And even in California, where the legal marijuana industry is already valued at $7 billion, according to one estimate.

In Los Angeles County, California’s largest by population, District Attorney Jackie Lacey announced in February that individuals will have to continue to apply for relief themselves, “rather than wait for [her] office to go through tens of thousands of case files.” Lacey estimated there were 40,000 felony convictions involving marijuana since 1993 in Los Angeles County. When reached by HuffPost, her office did not have any updates on this decision....

The exact extent to which prosecutors can retroactively apply their state marijuana laws o
r seek to vacate past convictions is a point of debate, and it depends on many complicated factors. This includes a prosecutors’ individual preferences, resources, a state’s laws regarding retroactivity and post-conviction relief, said Lauren-Brooke Eisen, a former prosecutor who is now a senior fellow at New York University School of Law’s Brennan Center for Justice. “There’s no one right answer to this,” Eisen said. “But what’s happening with marijuana in states like California and Colorado, which have built in some of this retroactivity, it does open the door absolutely for a little bit more pushing the envelope by DAs.”

Rodney Holcombe, staff attorney at the Drug Policy Alliance echoed this sentiment, saying it is not enough to simply legalize marijuana because prohibition ravaged many communities. “Tens of thousands of people across the country – especially persons of color – continue to suffer from the consequences of prohibition,” he said. “We cannot in good conscience legalize without repairing the harms wrought by the failed drug war. We can only truly claim victory when we center our efforts on the persons most harmed by prohibition.”

Prior related post:

"Leveraging Marijuana Reform to Enhance Expungement Practices"

May 4, 2018 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, April 28, 2018

Seattle prosecutors now taking proactive steps to expunge past marijuana convictions

Seattle-marijuana-jobsBecause of my work on my new article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I am especially attune to how marijuana reform is now intersecting with criminal justice concerns. So this new USA TOday article, headlined "Seattle seeks to abolish hundreds of pot convictions in light of legal marijuana," caught my eye this morning. Here are excerpts:

Seattle prosecutors are seeking to abolish more than 540 convictions against people caught carrying small amounts of pot in the city. A municipal judge is reviewing the convictions with an eye toward clearing offenders' criminal records, which advocates say have limited their job and housing opportunities.

The 542 people were convicted prior to 2010, when city prosecutors stopped bringing minor possession charges. Washington state legalized minor marijuana possession in 2012, and no one would be convicted in Seattle on minor possession charges today.

“Vacating charges for misdemeanor marijuana possession is a necessary step to correct the injustices of what was a failed war on drugs, which disproportionately affected communities of color in Seattle,” Mayor Jenny Durkan said in a statement. “The war on drugs in large part became a war on people who needed opportunity and treatment. While we cannot reverse all the harm that was done, we must do our part to give Seattle residents – including immigrants and refugees – a clean slate."

The move is the latest in a series of steps Seattle has taken to reduce or eliminate penalties for pot possession. In 2003, city voters mandated that marijuana possession be made the lowest law-enforcement priority possible, and in 2010, City Attorney Pete Holmes announced he would stop prosecuting simple possession cases, no matter how many tickets the police department wrote....

A few months later after legal sales began, an angry Holmes threw out nearly 90 marijuana tickets written by a single officer who appeared upset at legalization and began targeting homeless and minority men with public consumption and possession tickets. At the time, Holmes called the officer's actions "abhorrent."

The move also makes Seattle the latest large, liberally minded city to overturn marijuana convictions. San Francisco in January announced it would begin vacating thousands of minor marijuana convictions, and prosecutors are also reviewing an additional 4,000 felony cases for potential reductions. San Diego is following a similar process.

Prior related post:

"Leveraging Marijuana Reform to Enhance Expungement Practices"

April 28, 2018 in Criminal justice developments and reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Sentencing Law & Policy

April 23, 2018 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Notable new (and incomplete) data on marijuana arrests

Marijuana_arrests_chart500_shortWriting at The Intercept, Tana Ganeva has this notable new article reporting on some notable new data on marijuana arrests under the headline "The War On Pot Marches On: In Nearly Half The Country, Marijuana Arrests Have Gone Up Since 2014." Here are excerpts (with links from the original):

This week, Senate Minority Leader Chuck Schumer, D-N.Y., a politician adept at reading and responding to the public mood, introduced a bill to decriminalize cannabis at the federal level. And in some states, pot is already being taxed and regulated.   Underneath that progress, however, a war is still raging.  New data published here for the first time show that in at least 21 states, more people were arrested in 2016 than in 2014. Meanwhile, thousands of people who were arrested previously for what is now legal in many places continue to languish in prisons.

Jon Gettman, associate professor of criminal justice at Shenandoah University, used data from the FBI’s Uniform Crime Report to put together previously unpublished arrest data, which he provided to The Intercept.  The data show that in at least 21 states, pot arrests went up from 2014 to 2016, even as weed has been legalized and decriminalized in other states and cities.  Complete data were not available for Florida, Illinois, Alabama, and Washington, D.C.

Gettman says the idea that we’ve taken a laxer approach to pot prohibition is not true across the board.  “In some places, arrest rates are not only plugging along, they’re going up,” he told The Intercept.  “The idea that marijuana prohibition is going away is not supported by the data.”  

In Arkansas, arrests jumped 30 percent from 2014 to 2016.  In Hawaii, they went up 51 percent.  New Jersey saw a 31 percent increase in marijuana arrests, from 27,208 in 2014 to 35,700 in 2016.  In other states, they’ve stayed at the same high levels.   Georgia arrested 27,738 people for pot in 2014; 27,548 in 2015; and 28,223 in 2016. In Texas, arrests hovered in the 60,000s during those years.

Meanwhile, in states that had legalized or decriminalized pot as of 2016, people were still getting arrested, albeit at lower rates.  Georgia, for instance, has twice the population of Colorado, but arrested more than five times as many people.  In Colorado, which boasts a thriving legal market, 5,771 people were arrested for marijuana in 2014, down from 10,438 in 2012, the year voters legalized it.  That number was lower in 2016, but not by much: 5,098. The overwhelming majority of arrests were for possession.   As NPR reported, these tend to be low-income, young people of color running afoul of the strict regulations imposed in legal markets.

“Marijuana law enforcement becomes a convenient and useful tactic in the implementation of other law enforcement policies,” Gettman said. “You have to ask, ‘What purpose do pot arrests serve the local police?’”

Take New York City.  Pot possession arrests fell from 26,390 in 2014 to 18,120 in 2016, according to data assembled by the Marijuana Arrest Research Project and the Drug Policy Alliance.  Yet police officers continue to target young people of color: Between 2014 and 2016, 86 percent of pot arrests were of blacks and Latinos....

Nationwide, there’s an endless list of factors that might influence pot arrest rates. Do police make a lot of traffic stops?  Do they target certain areas or populations, like people they suspect might be undocumented?  Are they trying to establish authority on the street by busting teenagers?  New York’s stop-and-frisk program, in which police used a loophole to conduct illegal searches of primarily black and brown young people, is a classic example.   The policing of homeless people like Winslow, which happens all over America, is another.

A few other factors drive the arbitrary nature of marijuana arrest rates.   There’s some diversion from states where it’s legal, and the creation of black markets driven by the high cost of taxed legal pot.  People might be less discreet in public, thinking they’re not going to get busted for weed, Gettman says.  It’s also possible that there might be backlash among some police against the growing public acceptance of marijuana. 

I am grateful to Professor Gettman for assembling this state-by-state marijuana arrest data, though it only provides the most basic of essential information about marijuana enforcement practices. It would be, of course, valuable and important to have more data on specific marijuana charges (other than just the possession/sale distinction in the data), as well as more data on the demographics of who is getting arrested.  And breaking down county-by-county data could also be quite informative and useful, especially in prohibitionist states that border full legalization states.  Last but not least, I do not believe there is any collection of data on what becomes of all these arrests, and I would guess that the rate at which an arrest turns into a formal charge and a conviction varies dramatically from jurisdiction-to-jurisdiction.

April 23, 2018 in Criminal justice developments and reforms, Recreational Marijuana Data and Research | Permalink | Comments (0)

Tuesday, April 3, 2018

"Marijuana use is associated with intimate partner violence perpetration among men arrested for domestic violence"

Tps-150The title of this post is the title of this notable new research published in Translational Issues in Psychological Science. Here is the article's abstract:

Intimate partner violence (IPV) is a serious public health problem. Substance use, particularly alcohol, is a robust risk factor for IPV.  There is a small but growing body of research demonstrating that marijuana use is positively associated with IPV perpetration.  However, research on marijuana use and IPV has failed to control for other known predictors of IPV that may account for the positive association between marijuana use and IPV perpetration.  Therefore, the current study examined whether marijuana use was associated with IPV perpetration after controlling for alcohol use and problems, antisocial personality symptoms, and relationship satisfaction, all known risk factors for IPV.

Participants were men arrested for domestic violence and court-referred to batterer intervention programs (N = 269). Findings demonstrated that marijuana use was positively and significantly associated with psychological, physical, and sexual IPV perpetration, even after controlling for alcohol use and problems, antisocial personality symptoms, and relationship satisfaction.  Moreover, marijuana use and alcohol use and problems interacted to predict sexual IPV, such that marijuana use was associated with sexual IPV at high, but not low, levels of alcohol use and problems.  These findings lend additional support to the body of research demonstrating that marijuana use is positively associated with IPV perpetration in a variety of samples.  Results suggest that additional, rigorous research is needed to further explore why and under what conditions marijuana is associated with IPV perpetration.

April 3, 2018 in Criminal justice developments and reforms, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, March 28, 2018

"Enforcing Federal Drug Laws in States Where Medical Marijuana Is Lawful"

Jama-logoThe title of this post is the title of this  new Viewpoint commentary authored by Lawrence Gostin, James Hodge, and Sarah Wetter published earlier this week on line at JAMA. Here is how it concludes:

Toward Rational Medical Marijuana Policies

Although public opinion and state action have trended strongly toward permitting use of marijuana, especially for medical purposes, controversy continues to exist.  The specter of federal prosecution could refrain physicians, patients, and dispensaries from providing marijuana in states where the drug is lawful and dissuade additional jurisdictions from legalizing marijuana.  Public policy formed and implemented in the context of inconsistent federal and state laws, unpredictable legal enforcement, and insufficient scientific evidence is unsustainable.  Rational policies should follow a 3-pronged agenda.

A Solid Research Foundation

Sound policy requires a strong evidence base.  Scientific studies could quell ongoing disagreements about marijuana’s medical effectiveness, harms, and status as a gateway drug.  Yet limited funding and restrictive access to uniformly high-quality cannabis have sharply curtailed longitudinal studies on a drug already in wide use. Physicians require rigorous evidence to inform prescribing practices and counseling of patients.  At present, wide regional variations in prescribing practices exist, and patients do not have access to consistently high-quality, uncontaminated cannabis — where the purity, potency, and dosage can be ensured.  Health officials, moreover, rarely conduct careful surveillance of marijuana use incidence, prevalence, and outcomes.  Public policy on a potentially hazardous psychotropic drug is difficult when short- and long-term effects across populations are underreported, insufficiently studied, and poorly funded.

A Harmonized Legal Environment

Substantial variability of legal approaches to marijuana use exists across jurisdictions and between states and the federal government.  Individuals in certain jurisdictions can lawfully access marijuana for medical use, recreational use, or both, whereas individuals in other jurisdictions cannot do so.  Conditions under which physicians can prescribe (or patients can access) marijuana fluctuate extensively.  Federal law is inconsistent with policy in virtually all states.  The CSA should be revised to operate harmoniously with prevailing state law. Model legislation for medical use of marijuana, based on scientific evidence, could help reconcile activities across jurisdictions.

Federal Law Enforcement Respectful of States’ Sovereignty

Under US constitutional design, states and localities are laboratories for innovation, with state sovereignty and local home rule respected and preserved.  This requires federal prosecutorial discretion to hew to the legal environment of states that have legalized marijuana use.  Respecting marijuana laws is essential in states where cannabis is prescribed and used for medical purposes.  On an issue as consequential as marijuana, the nation needs consistent legal norms based on the best available scientific evidence.

March 28, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, March 14, 2018

SAM releases major new report on "Lessons from Marijuana Legalization"

6a00d8341bfae553ef01bb09f38626970d-320wiThe leading national group opposed to modern marijuana reform, Smart Approaches to Marijuana (SAM), today released this big new report titled "Lessons from Marijuana Legalization in Four U.S. States and D.C." Here is how this big report was introduced and described via an email sent my way (with links from the original):

Today, Smart Approaches to Marijuana (SAM), the leading, nonpartisan U.S. organization offering a science-based approach to marijuana policy, released the most comprehensive study to date today entitled: Lessons from Marijuana Legalization in Four U.S. States and D.C.  This study, validated by scientists from around the country, found that since legalization, marijuana use has soared, the black market is thriving, and communities of color are being negatively affected.

The study found that legalized states are leading the nation in past-year marijuana use among every age group. Among those states, Colorado currently holds the lead for first-time marijuana use among youth aged 12-17, representing a 65% increase since legalization. Young adult use is also highest in legalized states. Further, the number of young people arrested for marijuana use in Colorado saw an increase from 2015-2016.
 
Not only are more young people being arrested for marijuana use in states that have legalized the substance, but Colorado has also seen an increase in the amount of youth on probation who have tested positive for the drug.
 
This rise in youth use of marijuana is particularly frightening to see given the longterm implications involved with young people becoming addicted to marijuana. "Since commercialization, those of us in addiction treatment have been seeing an increase in the number of patients who have become addicted to marijuana. Their symptoms, particularly sleep disturbance, appetite disturbance and psychosis, don't consistently remit after ninety days of treatment,"  said Bari Platter, Clinical Nurse Specialist at the University of Colorado Hospital's CeDAR (Center for Dependency, Addiction and Rehabilitation). "We need to do more research about the devastating long-term effects of marijuana before considering commercialization in other states," continued Platter.

Some supporters of legalization have argued that the relaxing of marijuana laws would lead to lower rates of alcohol consumption. The data prove otherwise. In the immediate year following legalization of marijuana, there was a clear drop off, but by year three alcohol consumption was at a multi-year high. 

Commercialization advocates have long argued that legalization will reduce black market marijuana activity in legalized states. However, criminal activity has only been amplified. In 2016 alone, Colorado law enforcement confiscated 7,116 pounds of marijuana, carried out 252 felony arrests, and made 346 highway interdictions of marijuana headed to 36 different U.S. states. The U.S. mail system has also been affected by the black market, seeing an 844% increase in postal marijuana seizures. Narcotics officers in Colorado have been busy responding to the 50% increase in illegal growing operations across rural areas in the state.

One of the most common arguments prevalent amongst the pro-marijuana lobby is that the legalization of the substance will greatly assist communities of color. The study found that the common disparities among use and criminal offense rates continue among race, ethnicity, and income levels. The District of Columbia saw public consumption and distribution arrests nearly triple and a disproportionate number of those marijuana-related arrests occur among African-Americans.

Finally, the study found a disturbing trend in that drugged driving and motor vehicle fatalities have increased in states that have legalized recreational marijuana. The number of drivers in Colorado intoxicated with marijuana and involved in fatal traffic crashes increased 88% from 2013-2015 and marijuana-related traffic deaths increased 66% between the four-year averages before and after legalization.

March 14, 2018 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)