Thursday, April 9, 2015
As highlights in many prior posts, students in my marijuana law school seminarare in the midst of assembling readings and leading discussions concerning the research topic(s) that are the focal point for class project(s). This week, among the interesting topics on the agenda, is impact of marijuana prohibition and of marijuana reform on law enforcement activities, and here are links to the student-assembled readings on this topic:
Wednesday, April 8, 2015
As reported in this local article, the "Arizona Supreme Court on Tuesday issued two rulings barring courts and prosecutors from denying marijuana use as a term of probation if the convicted felons have valid medical-marijuana cards." Here is more on these notable rulings:
In one case, a man convicted of possessing marijuana for sale in Cochise County was forbidden from using marijuana by a probation officer after he was released from prison.
In the second, a woman pleading guilty to DUI in Yavapai County refused to accept abstention from marijuana as a term of probation, prompting the prosecution to withdraw the plea agreement. Both had valid medical-marijuana cards.
The Supreme Court ruled that both had the right to use marijuana for their medical conditions and that prosecutors and courts could not block that right as a term of probation.
"The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine," said David Euchner, an assistant Pima County public defender. Euchner argued as a friend of the court in both cases in his role as a member of the executive committee for Arizona Attorneys for Criminal Justice....
"[I]f the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana ..." [one of the Arizona court's] ruling said.
Prosecutors are not pleased with the ruling. "It's another example of the problems with initiative drafting and unintended consequences," Maricopa County Attorney Bill Montgomery said in an e-mail to The Arizona Republic. "There was no discussion at the time of the election regarding the impact to case resolutions and the ability for parties to negotiate plea agreements."
Montgomery is a staunch opponent of marijuana use. On March 23, he raised eyebrows during a debate in Tempe over the use of recreational marijuana when he called a veteran who admitted to using the drug an "enemy."
But the defense attorney he faced off against, Marc Victor, said Tuesday's court ruling was just, "because the initiative specifically said your right to use medical marijuana can't be taken away."...
The second case Tuesday covered a slightly different probation angle. Jennifer Lee Ferrell was arrested in 2012 and charged with DUI.
Pursuant to Yavapai County Attorney's Office policy, Ferrell's plea agreement required her to avoid marijuana as a condition of probation. The high court said no.
Yavapai County Attorney Sheila Polk is also firmly against marijuana use. "I implemented the 'no marijuana condition' after the probation department noted a significant increase in the number of probationers obtaining a medical marijuana card to use marijuana while on felony probation," Polk said in an e-mail to The Republic. "My goal — and the goal of the system — is to set convicted felons up to succeed, to find employment and to turn their lives around. Marijuana is not part of that equation."
Polk said she is considering appealing to the U.S. Supreme Court.
Here are links to the opinions references in this article:
Rebecca White Berch, Author; Scott Bales, Concur; John Pelander, Concur; Robert M. Brutinel, Concur; Ann A. Scott Timmer, Concur
Ann A. Scott Timmer, Author; Scott Bales, Concur; John Pelander, Concur; Rebecca White Berch, Concur; Robert M. Brutinel, Concur
Sunday, April 5, 2015
Opponents of marijuana reforms have, understandably, made much of any deaths in Colorado that might be reasonably linked in some way to marijuana legalization. But this sad story from New York, headlined "Bronx Teenager Who Fell From Roof While Fleeing the Police Dies," provides an example of a death that might be reasonably linked to marijuana prohibition:
A Bronx teenager who fell off the roof of a sixstory apartment building on Thursday while fleeing police officers died of his injuries on Saturday at St. Barnabas Hospital, the police said.
Authorities said Hakeem Kuta, 17, was with a group of other teenagers who were smoking marijuana Thursday evening in the lobby of the apartment building at 2685 Valentine Avenue in the Bronx. A man who exited the building complained to four uniformed officers, who then entered the lobby.
When Mr. Kuta and several others ran to the roof, two officers chased them. All but Mr. Kuta and a 14-year-old were able to elude the police. With officers shouting, “please don’t move,” Mr. Kuta tried to step over a short wall at the edge of the building but stumbled, officials said. The 14yearold grabbed for Mr. Kuta’s vest as he fell, officials said, but he was not able to hang on.
The Police Department said that the officers appeared to have acted appropriately. After Mr. Kuta fell, officers raced from the roof to give first aid, officials said. Officer Maria Imburgia applied chest compressions until paramedics arrived. Officers made no arrests on Thursday evening, though marijuana was found in the lobby.
Tuesday, March 24, 2015
In addition to having a notable guest speaking in my marijuana law school seminar this week (basics here), we are starting a series of weeks in which students are to present to the class some readings and engage in discussion concerning the research topic that they are working up. This week, one of the topics to be covered is drugged driving, and here are links to the student-assembled reading:
(My students only need to read the Ohio section in the "Drug Per Se Laws" comparative article, though they (and other readers) might want to review the whole document for a national perspective.)
Thursday, March 19, 2015
This new Daily Caller piece, headlined "Poll: 61 Percent Of Americans Want Marijuana Legalization, Smashing Previous Records," reports on some details of a notable new poll about American opinions on marijuana reforms. Here are the basics:
A new poll has found that 61 percent of American voters agree with legalizing recreational marijuana, shattering previous records. The poll was released by the Benenson Strategy Group (BSG), while the old record of 58 percent supporting was done by Gallup in 2013.
Republicans still haven’t crossed the halfway point. According to the BSG survey, 48 percent agree with legalization, while 52 percent still oppose. A slightly wider gap exists for conservatives, with 45 percent supporting legalization and 55 percent opposing.
A total of 72 percent of voters think that jail time for marijuana possession doesn’t make sense. Instead, these voters believe that the punishment should be reduced down to as low as $25 dollars and as high as $100 dollars. Although Republicans are traditionally opposed to marijuana legalization, this is a measure they’re friendlier towards, as 68 percent agree with the proposal. Of conservatives, 63 percent agree with reduced penalties.
BSG relied on a sample size of 1,032 registered voters to create a nationally representative survey. The survey was conducted from Feb. 26 to 27. The margin of error is plus or minus 3.5 points.
This new Huffington Post piece provides a few more details and more background concerning this latest poll and prior polls on similar topics.
Monday, March 16, 2015
Connecticut Supreme Court clarifies erasure of past pot conviction comes with state decriminalization
This AP article, headlined "Ruling Clears Way for Marijuana Convictions to Be Erased," highlights a notable (state law) ruling from that echoes issues being confronted in a number of states as marijuana reforms become more common. Here are the basics:
Thousands of people busted in Connecticut for marijuana possession now have the right to get their convictions erased after the state Supreme Court ruled Monday that the violation had been downgraded to the same legal level as a parking ticket.
The 7-0 ruling came in the case of former Manchester and Bolton resident Nicholas Menditto, who had asked for his convictions to be overturned after the Legislature decriminalized possession of small amounts of pot in 2011. "It's a topic multiple states will have to be facing," said Aaron Romano, Menditto's attorney. "Because marijuana is being decriminalized across the United States, this issue needs to be addressed."
Colorado, Washington state, Washington, D.C., and Alaska have legalized the recreational use of pot. Oregon's law legalizing it takes effect in July. Connecticut and 22 other states allow marijuana for medicinal purposes, and 18 states have decriminalized possession of varying amounts.
Last year, Colorado's second-highest court ruled that some people convicted of possessing small amounts of marijuana can ask for those convictions to be thrown out under the state law that legalized recreational marijuana. Officials in the other states are grappling with the issue.
In 2011, Connecticut Gov. Dannel P. Malloy and legislators changed possession of less than a half ounce of marijuana from a misdemeanor with potential jail time to a violation with a $150 fine for a first offense and fines of $200 to $500 for subsequent offenses. Menditto, 31, wanted the state to erase his two convictions for marijuana possession in 2009 and a pending possession case. The Supreme Court ruled he could apply to have the two convictions erased, but declined to address the pending case.... The appeal involved the 2011 decriminalization and another state law that allows erasure of convictions of offenses that have been decriminalized....
"The legislature has determined that such violations are to be handled in the same manner as civil infractions, such as parking violations," Justice Carmen Espinosa wrote in the ruling. "The state has failed to suggest any plausible reason why erasure should be denied in such cases."
Wednesday, March 11, 2015
Because the New York Times editorial board has already called for the full legalization of marijuana, it is no big surprised that today brings this editorial in support of the bipartisan federal CARERS Act introduced yesterday by three senators (basics here). Here are excerpts from the editorial:
The bill makes a number of important changes to federal marijuana policies — and it deserves to be passed by Congress and enacted into law. Though this legislation would not repeal the broad and destructive federal ban on marijuana, it is a big step in the right direction....
The bill, sponsored by Cory Booker of New Jersey and Kirsten Gillibrand of New York, both Democrats, and Rand Paul, a Republican of Kentucky, would not legalize medical marijuana in all 50 states. But it would amend federal law to allow states to set their own medical marijuana policies and prevent federal law enforcement agencies from prosecuting patients, doctors and caregivers in those states. Currently 35 states and the District of Columbia permit some form of medical marijuana use. States would remain free to ban medical marijuana if they wished.
Other important provisions would allow banks and credit unions to provide financial services to marijuana-related businesses that operate in accord with state law and protect them from federal prosecution or investigation. That is a crucial improvement over the current situation where marijuana business that is legal under state law is conducted in cash because financial institutions fear to step in.
The bill would also allow doctors in the Department of Veterans Affairs to prescribe medical marijuana to veterans, which they are currently prohibited from doing. And it would ease the overly strict procedures for obtaining marijuana for medical research and require the Food and Drug Administration to more readily allow the manufacture of marijuana for research....
Polls show a majority of Americans in favor of legalization of medical marijuana. It is long past time for Congress to recognize the need to change course.
The full text of the CARERS Act is available here.
Tuesday, March 10, 2015
I am watching the press conference (streamed here) with presentations by Senators Rand Paul, Cory Booker and Kirsten Gillibrand introducing their new federal medical marijuana reform bill, the CARERS Act. Fascinating stuff.
Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.
Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep. Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair. Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years. Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.
This Drug Policy Alliance press release summarizes what is in the CARERS Act:
The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:
Allow states to legalize marijuana for medical use without federal interference
Permit interstate commerce in cannabidiol (CBD) oils
Reschedule marijuana to schedule II
Allow banks to provide checking accounts and other financial services to marijuana dispensaries
Allow Veterans Administration physicians to recommend medical marijuana to veterans
Eliminate barriers to medical marijuana research.
March 10, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, March 9, 2015
As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:
In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.
The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.
The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....
In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.
Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.
March 9, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Saturday, March 7, 2015
Marijuana reform discussions at the state level, regarding both medical and recreational reforms, continue to generate lots of stories and headlines each week. Here is an abridged run-down of (and links to) some recent news stories reviewing recent state-level marijuana reform developments that caught my eye:
California: "GOP's risk-reward calculus on legalizing pot"
Nebraska: "Medical marijuana debated in Nebraska's Capitol"
New Hampshire: "Committee approves bill to decriminalize marijuana"
Rhode Island: "Rhode Island again takes up bills to legalize marijuana"
Wednesday, March 4, 2015
This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes. Here are the details:
Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.
The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.
U.S. District Court Judge Thomas Rice set sentencing for June 10.
The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."
However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.
Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.
"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.
On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.
Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"
The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.
The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.
Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....
Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.
I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).
Prior related posts:
- Family of medical marijuana patients in Washington turn down plea and set up notable federal trial
- New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
Tuesday, March 3, 2015
"Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"
The title of this post is the title of this notable new UCLA Law Review comment by Jordan Cunnings. Here is its abstract:
Marijuana is being decriminalized in many states and localities throughout the United States. While recreational use of marijuana is legal in only a handful of states, in many other areas it has become a type of pseudo-violation with such low criminal penalties that defendants may be issued just a citation or ticket and are often not entitled to the assistance of a public defender. While low-level marijuana offenses have fewer meaningful consequences within the criminal justice system in these jurisdictions, these offenses continue to create serious immigration consequences for noncitizen offenders. The Immigration and Nationality Act defines “conviction” in such a way that even civil infractions with very low penalties count as drug convictions that make lawful permanent residents deportable.
The combination of lowered criminal penalties for marijuana offenses and severe resulting immigration consequences causes significant problems for noncitizens. First, as the penalties for marijuana offenses are lowered at the state and local levels, a defendant is less likely to have a right to appointment of a public defender when charged with possession of a small amount of marijuana. This situation implicates potential violations of the Sixth Amendment right to effective assistance of counsel in criminal proceedings, which has been held to cover affirmative advice on the immigration consequences of a criminal charge. Additionally, even with the assistance of a public defender, individuals may still be unable to avoid the harsh immigration consequences that often result from marijuana offenses. These harsh consequences violate our society’s understanding of proportionality of punishment in criminal law. Even though immigration law is traditionally insulated from proportionality considerations because of the plenary power doctrine, deportation for low-level marijuana offenses provides one example of why this doctrine should be reconsidered.
Friday, February 13, 2015
The questions in the title of this post are prompted by this Reuters report about an on-going federal criminal trial in California. Here is why:
A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.
Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.
"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.
The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.
In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.
Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.
But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."
Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.
February 13, 2015 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)
Thursday, January 15, 2015
The question in the title of this post is the headline of this new Jacob Sullum commentary at Forbes. Here are excerpts:
Drug dogs typically are trained to detect marijuana and several other substances. When they smell one of those drugs, they are supposed to alert their handlers with a signal such as barking, scratching, or sitting down. But the dogs cannot indicate which drug they have smelled, let alone distinguish different quantities—a crucial issue in Colorado, Washington, Oregon, and Alaska, where adults 21 or older are allowed (or soon will be allowed) to possess up to an ounce of marijuana in public.
Until recently, those canine limitations did not matter, because any quantity of marijuana was unambiguously illegal throughout the country. But the ongoing collapse of marijuana prohibition is undermining the legal assumptions that have made drug-detecting dogs such a handy law enforcement tool, one that can be deployed at will to justify searches that would otherwise be unconstitutional.
According to the Supreme Court, letting a police dog sniff a suitcase or a car is not a search, so it does not require probable cause. At the same time, an alert by that dog provides probable cause for a search. Those conclusions, which have always been questionable because they are based on a grossly exaggerated sense of the average police dog’s accuracy, look even shakier in light of marijuana legalization....
Washington State Patrol and the Seattle Police Department [have] decided to phase out the use of marijuana-trained dogs, gradually replacing them with animals that alert only to heroin, methamphetamine, crack, and cocaine powder. Police in some Oregon jurisdictions, including Clackamas County and Medford, also are moving away from marijuana-trained dogs....
The Tacoma Police Department is sticking with conventionally trained dogs, and so are police in several Colorado cities, including Denver, Aurora, Lakewood, Pueblo, and Colorado Springs. New dogs are expensive (about $15,000 each if fully trained, according to the Colorado Springs Gazette), and these departments say the old ones are still useful in certain situations, such as school searches, or in conjunction with other sources of evidence.
Some cops say they are waiting for guidance from state courts. “There are so many unanswered questions,” the officer in charge of K-9 training at the Colorado Springs Police Department told Bloomberg News. “There have not been any test cases to say yes or no, we do not have the right to do this.”
Other departments are being more proactive. The Gazette reports that Loveland, a city about 50 miles north of Denver, is phasing out its marijuana-detecting dogs based on advice from the Larimer County District Attorney’s Office. “It basically goes back to the Fourth Amendment prohibition on illegal searches,” a police spokesman told the paper. “We want to make sure we aren’t infringing on people’s rights.”
Thursday, January 8, 2015
Rolling Stone details how marijuana reform is "leading a dramatic de-escalation in the War on Drugs"
This astute, lengthy Rolling Stone article, headlined "The War on Drugs Is Burning Out," give special and justified attention to how modern marijuana reform is changing dramatically the modern drug was landscape. The full piece is a must-read, and here are excerpts:
The conservative wave of 2014 featured an unlikely, progressive undercurrent: In two states, plus the nation's capital, Americans voted convincingly to pull the plug on marijuana prohibition. Even more striking were the results in California, where voters overwhelmingly passed one of the broadest sentencing reforms in the nation, de-felonizing possession of hard drugs. One week later, New York Mayor Bill de Blasio and the NYPD announced an end to arrests for marijuana possession. It's all part of the most significant story in American drug policy since the passage of the 21st Amendment legalized alcohol in 1933: The people of this country are leading a dramatic de-escalation in the War on Drugs.
November's election results have teed up pot prohibition as a potent campaign issue for 2016. Notwithstanding the House GOP's contested effort to preserve pot prohibition in D.C., the flowering of the marijuana-legalization movement is creating space for a more rational and humane approach to adjudicating users of harder drugs, both on the state level and federally. "The door is open to reconsidering all of our drug laws," says Alison Holcomb, who led the pot-legalization push in Washington state in 2012, and has been tapped to direct the ACLU's new campaign against mass incarceration.
On the federal stage, the Justice Department continues to provide what Ethan Nadelmann, director of the Drug Policy Alliance, calls "a discreet form of leadership" on state experiments in drug reform – giving tax-and-regulate marijuana laws broad latitude, and even declaring that Native American tribal governments can also experiment with marijuana law, opening a path for recreational pot on reservations in, potentially, dozens of states. Congress, in the same legislation that sought to derail D.C. legalization, carved out historic protections from federal prosecution for state-legal medical-marijuana operations....
Top drug reformers had been wary about putting marijuana initiatives on midterm election ballots – worried that younger, pot-friendly voters might stay home, dealing the anti-Drug War movement a costly setback. "The midterm electorate in 2014 represented a wave of anti-progressive, pro-conservative voters," says the ACLU's Holcomb. Voters under 30 comprised just 12 percent of the national electorate, while voters over 60 – seniors are the one demographic that strongly opposes legalization – made up a whopping 37 percent. Nonetheless, each legalization measure passed, easily. In red-state Alaska, 53 percent endorsed legal pot. In Oregon, the tally was 56 percent – 35,000 more votes than any statewide elected official received. In Washington, D.C., legalization romped with 65 percent of the vote, carrying 142 out of the city's 143 precincts....
The issue of pot could prove more complicated on the presidential stage in 2016, where the big question, says Holcomb, is: "Will Democrats grab the issue as strongly as Rand Paul?"
Among likely 2016 contenders, of either party, the Kentucky senator is the most progressive on marijuana. He's sponsored legislation to make medical marijuana fully legal in states that have adopted it. In the last election, Paul championed the right of D.C. voters to decide on legalization for themselves. Paul has also been a vocal advocate for decriminalization, decrying the practice of booking kids for cannabis. "I don't want to encourage people to do it," he has said. "I think even marijuana is a bad thing to do. But I also don't want to put people in jail who make a mistake."
If Paul were to face off in a contest with Hillary Clinton, pot could emerge as an unlikely wedge issue for the Republican – particularly in libertarian-leaning swing states like Arizona and Nevada, where legalization initiatives are expected. That's because Clinton has continued to talk like a 1990s drug warrior, recently fretting over the dangers of marijuana edibles to children in Colorado, and even declaring that "the feds should be attuned to the way that marijuana is still used as a gateway drug."...
Regardless of the final presidential matchup, pot initiatives in battleground states will make it impossible for the 2016 candidates to ignore, or to simply laugh off, the marijuana issue as they've done so often in the past, says Tom Angell, chairman of the advocacy group Marijuana Majority. "The road to the White House," he says, "travels through legal-marijuana territory."
January 8, 2015 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, December 18, 2014
As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution." Here is more on the latest fascinating development in the world of marijuana reform law and policy:
At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."
Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.
Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...
He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.
Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.
During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."
Via the Denver Post, the 83-page SCOTUS filing can be found at this link.
December 18, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Monday, December 8, 2014
"Stigma Dilution, Over-Criminalization, and Some Additional Reasons to Decriminalize Marijuana Possession and Consumption Offenses"
The title of this post is the title of this notable new paper by Murat Mungan now available via SSRN. Here is the abstract:
Criminalizing an act that provides weak signals about a person's productivity and character can dilute the stigma attached to having a criminal record. This reduces the deterrence of serious crimes that do provide strong signals regarding the offender's character. Over-criminalization occurs when the costs associated with reduced deterrence due to stigma dilution off-set potential benefits associated with criminalizing the less harmful act.
Identifying and analyzing the factors that affect the likelihood of over-criminalization reveal that the penalization of marijuana possession and consumption most likely constitutes over-criminalization. The normative desirability of various practices in criminal law (e.g. the felony murder rule, conspiracy liabilities, scienters, mens rea requirements, expungements) are also discussed vis-à-vis their impacts on stigma dilution.
USA Today has these two notable new stories about how (legal/illegal?) marijuana money is coming and going in Colorado:
Friday, November 28, 2014
The question in the title of this post is prompted by this recent Reason commentary by Jacob Sullum, which is headlined "A Cannabis Crackdown Contracts: After rising dramatically, marijuana arrests are falling and the trend seems likely to continue." Here are some data and context from the piece:
In 1992, when Americans elected a president who said he had smoked pot without inhaling, the number of marijuana arrests in the United States began a steep climb. It peaked in 2007, during the administration of a president who refused to say whether he had smoked pot because he worried about setting a bad example for the youth of America. Since 2009, when a president who "inhaled frequently" because "that was the point" took office, the number of marijuana arrests has fallen steadily — a trend that continued last year, according to FBI numbers released this month.
It's not clear exactly why pot busts exploded during the last decade of the 20th century and the first decade of the 21st century, when the annual total rose from fewer than 288,000 to almost 873,000 — a 200 percent increase. There does not seem to be any consistent relationship between the level of marijuana consumption and the number of arrests, the vast majority of which (nearly nine out of 10 last year) involved simple possession rather than cultivation or distribution. Judging from survey data on marijuana use, arrests did not rise in response to increased consumption; nor did the cannabis crackdown have a noticeable deterrent effect. The risk of arrest for any given pot smoker rose substantially between 1991 and 2007 but remained small.
In 1991, according to the National Household Survey on Drug Abuse (NHSDA), about 15 million Americans smoked pot. That year there were about 288,000 marijuana arrests, one for every 52 cannabis consumers. In 2007, according to the National Survey on Drug Use and Health (successor to the NHSDA), about 25 million Americans smoked pot. That year there were about 873,000 marijuana arrests, one for every 29 cannabis consumers.
Although the overall risk of arrest is small, it is decidedly higher for blacks and Latinos. In 2010, according to a report from the American Civil Liberties Union, blacks were nearly four times as likely to be arrested for marijuana possession as whites, even though survey data indicated they were no more likely to smoke pot. In some jurisdictions the black-to-white risk ratio was even higher. It was 8 to 1 in the District of Columbia, which helps explain the dramatic turnaround in black Washingtonians' opinions about marijuana legalization.
The good news is that the downward trend in marijuana arrests since 2009 seems likely to continue, helped along by the spread of decriminalization and legalization. In recent years California, Colorado, Maine, Massachusetts, and Washington have changed their marijuana laws so that people caught with small amounts are no longer arrested. That change has eliminated tens of thousands of marijuana arrests each year — more than 50,000 in California alone. Under ballot initiatives approved this month, Alaska and Washington, D.C., will eliminate all penalties for possessing small amounts of marijuana. (Possessing up to an ounce was already a citable offense in Oregon, where voters also approved marijuana legalization this month.)...
Even in New York City, where the cannabis crackdown has been especially noticeable, police are arresting fewer pot smokers, a trend that is likely to accelerate as a result of a policy change that took effect last week. Low-level marijuana possession arrests by the New York Police Department (NYPD) skyrocketed from about 3,000 in 1994, when Rudolph Giuliani took office as mayor, to more than 51,000 six years later. The crackdown continued during Michael Bloomberg's administration, when the NYPD arrested an average of nearly 39,000 pot smokers each year, compared to 24,487 under Giuliani, 982 under David Dinkins, and 2,259 under Ed Koch, according to data gathered by Queens College sociologist Harry Levine.
As the question in the title of this post highlights, I am eager to attach some kind of benefit (and perhaps cost) metric to these data about reduced arrest. In the context of incarceration changes, we know each prison year served costs the government about $30,000 taxpayer dollars (while also potentially preventing some criminal activity which is much harder to quantify). I am inclined to speculate that there must be $100 in administrative costs associated with formal arrests, which would mean that every 10,000 fewer marijuana arrests benefits taxpayers with about $1,000,000 in savings.
Tuesday, November 11, 2014
As reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.
“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”
For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.
But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....
As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...
At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....
Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.
In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.
Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.