Friday, August 21, 2015
The question in the title of this post is the question which necessarily emerges from some recent public safety data released this week in Washington state, and it is also the headline of Jacob Sullum's new Reason column examining this data. Here are excerpts from Sullum's analysis (with key links preserved):
Data released by the Washington Traffic Safety Commission (WTSC) this week indicate that the number of drivers involved in fatal crashes with active THC in their blood jumped from 38 in 2013 to 75 last year....
Contrary to comments by Staci Hoff, the WTSC's director of data and research, the presence of active THC does not necessarily indicate that a driver was impaired by marijuana at the time of the crash, let alone that marijuana caused the accident. Noting that 85 percent of "cannabis-positive" drivers involved in fatal accidents had active THC (as opposed to an inactive THC metabolite) in their blood last year, Hoff concludes that "most of them were high." That is not a safe conclusion to draw, because (as the National Highway Traffic Safety Administration points out) there is no reliable way to relate THC blood levels to impairment....
The picture is further complicated by the presence of other drugs. The Times notes that "half the drivers with active THC in their blood also were under the influence of alcohol, and the majority of those were legally intoxicated." Alcohol has a much more dramatic impact on driving ability than marijuana does, and the two together have a greater effect than either alone. The Times adds that the WTSC's analysis "doesn't account for prescription drugs in the marijuana-positive drivers."Although marijuana's contribution to traffic accidents is hard to pin down, it is possible than an increase in cannabis consumption following legalization would lead to more stoned drivers on the road, resulting in more crashes. Alternatively, if more pot smoking is accompanied by less drinking, the net result could be fewer crashes, since alcohol impairs drivers a lot more than marijuana does. It is not clear yet whether either of those scenarios is materializing in Washington.
WTSC data show the total number of traffic fatalities rose by 6 percent last year (from 436 to 462) after falling the previous six years (including 2013, the first full year in which recreational use was legal, although state-licensed pot stores were not open yet). The number of fatalities from accidents in which the driver tested positive for marijuana (which does not necessarily mean he was impaired by marijuana) rose by 55 percent (from 64 to 99). Meanwhile, the number of fatalities from accidents in which the driver was deemed to be impaired by alcohol fell by 13 percent (from 127 to 111). That number had declined or remained steady in the previous six years, except for a 14 percent increase in 2009.
The 6 percent increase in total fatalities is consistent with the idea that legalization raises the number of dangerously impaired drivers. But that increase occurred entirely in the first half of 2014, before the pot shops started to open, which is a bit of a puzzle. By comparison, Colorado, where state-licensed marijuana merchants were open for business throughout 2014, saw only a 1.5 percent increase in total traffic fatalities that year. To get a better idea of what is happening, we will need more years of data, plus comparisons to trends in other states that have not legalized marijuana.
UPDATE: Based on data from a local article about marijuana's impact in Washington, I did an additional post on this topic over at my sentencing law blog: "Could marijuana reform be making Washington roadways safer even if more drivers test positive for THC?"
Sunday, June 28, 2015
The question in the title of this post is prompted by this new Indianapolis Star article headlined "Cops warn of arrests at Church of Cannabis." Here are some excerpts from a lengthy and interesting article:
The city's top law enforcements officials put the new First Church of Cannabis on notice Friday: Anyone who smokes marijuana at the inaugural service next week will face criminal charges.
The warning from Marion County Prosecutor Terry Curry and Indianapolis Metropolitan Police Department Chief Rick Hite "changes nothing," said Bill Levin, the church's founder, who pledged to move forward with plans for a service at noon Wednesday where marijuana will be smoked. "They haven't raised the stakes," Levin said. "These have been the stakes the whole time."
In fact, an arrest — or arrests — will spur the court fight that Levin wants. It is a legal battle that has been expected by nearly everyone, including Curry and Hite, who've watched the story of the controversial church unfold in the weeks since Gov. Pence signed Indiana's new Religious Freedom Restoration Act.
Levin contends the use of marijuana in the church service is protected by RFRA, which limits government encroachment on religious freedoms. Curry said he believes the new law is ill-advised and problematic. That said, he also stressed that RFRA is not "a legitimate defense to committing a crime."
Hite said police can't ignore Levin flaunting the law under the guise of religion. That means everyone in attendance next week is subject to criminal charges, he said, even if they do not partake of the church's sacrament.
Curry said observers could be charged with visiting a common nuisance. Those who smoke the drug could be charged with possession of marijuana. Both charges are class B misdemeanors, which carry a penalty of up to 180 days in jail and a $1,000 fine.
Curry and Hite said Friday they were announcing their plans in an effort to dissuade Levin and his followers from going through with wide-spread marijuana use at the service. Hite said his department would have police on the church property, including possibly inside the sanctuary itself. "I think it's important to know that we're not trying to create a police state," Hite said. "I think reasonably intelligent people will stay away, quite frankly. But as with any other events we happen to have in our city, we're prepared for it."
Curry listed six considerations he said he recently shared with Levin — and wants others who might attend the service to keep in mind. In addition to making arrests for those who possess or are simply in the presence of marijuana that is being used, Curry said, police will also be looking for impaired drivers, those with open warrants and those who are at the service in violation of a probation order. Curry also cautioned that minors should not be present if marijuana is being used, adding that such a violation has "numerous implications."
Curry and Hite said police and prosecutors are duty bound to uphold Indiana's drug laws and cannot ignore the event that has been widely promoted in the news and on social media. They also are disturbed that they have to expend valuable manpower on this event, when there are many other more pressing needs for law enforcement resources.
Curry added Levin's church is a direct result of the state's RFRA law, and renewed an earlier call for legislators to repeal the law which he sees as unneeded and the result of political posturing. "We anticipated that (RFRA) could be asserted as a defense to criminal prosecution," he said. "As with any defense, our office will address the argument within the context of the case in which it is presented."
The prosecutor said he has met twice with Levin to discuss alternatives to making mass arrests at the service next week, such as making his point on a smaller scale involving just one or two people challenging the law. "I understand completely that what (Levin) is doing is using RFRA as a vehicle to essentially advocate for what he's advocated for all along, and that is the legalization of marijuana," Curry said. "But until he and others convince the legislature otherwise, then it's a crime."
Curry also dismissed concerns that the attendees of next week's Church of Cannabis service would be treated differently than others who are cited for marijuana possession – though he added that the city's advance notice of the event did present a change in how they plan on enforcing the law. "Individuals are cited for criminal offenses when they are observed, whether it's at the Indy 500 or rock concerts," Curry said. "What is different here is that we've been given notice that this is going to occur. From our perspective, it would be entirely the wrong message that we would not react to that."
Hite said the church is not right for Indianapolis, adding he and his officers have talked to drug dealers who are "appalled" by the planned service next week. "Those who deal drugs for a living have said to us, 'Listen. We're trying to get out of the game. You're telling us to get out, chief,'" Hite explained. "How can we allow someone to willingly violate the law?"
Levin said he is unfazed by who might show up at the service Wednesday, including law enforcement officials "I don't have a problem with that," he said. "You want to come pray? Come pray. You better be on the guest list to get into the building, though, because we've already got this thing filled."
The church plans to have a tent to accommodate overflow from the relatively small church building. What Levin described as "ushers" — who sound more like security — will screen people entering the building. The church also will have legal representation on site for the inaugural service.
A woman at the church Friday, wearing a shirt with a peace symbol on it, scoffed at Curry's suggestion for Levin to scale down whatever might trigger a legal battle. "Bill doesn't do anything on a small scale," she said. "I've known him for 35 years."...
"I believe in religious freedom and I will never tell my congregants what not to do," Levin said. "I will warn them of what might happen. If you're on probation, they might nail you. If you're there with a kid, they might get CPS on you. … This is civil disobedience in its finest form while we're celebrating a beautiful birth of a new religion."
Levin appears to be doing as much as he can to protect the church legally. He has non-profit religious status certified by the Internal Revenue Service. He made sure the church building conforms to safety codes. He's not allowing anyone under 21 into the sanctuary, where marijuana will be smoked at the end of the ceremony. And he is not selling or distributing the drug; its a bring-your-own event.
While Levin said he would prefer that officials leave him and church members alone, he's not about to back down from a legal fight. "I'd just as soon not do it. Am I afraid of it? No. Not at all. I'm sorry, I'm right," he said. "I will defend my beliefs as long as it takes and as far as it takes."
Any decision the state makes on religious laws — including whether the First Church of Cannabis is a legitimate religion — "they're going to have to be very committed to, and that goes across the board," Levin said. "Because what's good for one religion is good for all."
Friday, June 26, 2015
I am more than a bit biased in reporting the latest notable news from Ohio's marijuana reform arena because I had a hand in making it happen. But especially because my interest in marijuana reform stems largely from my concerns about the criminal justice harms and costs of marijuana prohibition, I am especially pleased and proud that those advocating for marijuana legalization in Ohio are committed also to advocating for related criminal justice reforms. This local article, headlined "ResponsibleOhio proposes legislation to expunge marijuana offense records," provides these basis:
Pro-marijuana group ResponsibleOhio has drafted a law that would allow Ohioans convicted of certain marijuana crimes to expunge their records if the group's marijuana legalization proposal is approved by voters this fall.
The proposed initiated statute would allow Ohioans who were convicted of a marijuana offense to have their records expunged. On Wednesday, the group submitted language to the Ohio attorney general for approval. ResponsibleOhio plans to propose legalizing marijuana for personal and medical use through a constitutional amendment on this November's ballot. The expungement issue would come next year.
"We believe that we should not keep people unfairly shackled to their past when marijuana is legalized," ResponsibleOhio Executive Director Ian James said in a news release. The group's "Fresh Start Act" would first go before state lawmakers. If lawmakers vote it down or do not act within four months, Ohio voters would then vote on the law. Even if approved by voters, lawmakers could still change or repeal the language in state law.
In Ohio, expungement typically means the records are sealed unless opened by court order. But in recent years, state lawmakers have allowed records to be expunged, or destroyed, for committing two crimes later made legal: Storing a loaded firearm in a vehicle and soliciting sex as a victim of human trafficking.
The proposed statute mirrors the concealed carry language. ResponsibleOhio spokeswoman Faith Oltman said lawmakers should be in favor of extending that opportunity to past marijuana convictions. Oltman said offering the idea as an initiated statute gives lawmakers an opportunity to review and revise the language before voters weigh in. "An amendment meant the legislature couldn't manipulate or alter this piece of good public policy we created," Oltman said. "The Fresh Start Act is more straight forward so not as many guardrails needed to be put in place."
Records would not be automatically destroyed. Individuals would have to file an application in court and prosecutors would have the opportunity to weigh in before the judge makes a final decision....
If the petition language is approved by the attorney general and bipartisan Ohio Ballot Board, the group will then need to collect more than 91,677 signatures of Ohio voters. If lawmakers don't pass the law within four months, petitioners would have to collect another 91,677 signatures to put the proposed law on the statewide ballot.
Tuesday, June 23, 2015
The question in the title of this post is the headline of this new Time article, which includes these excerpts:
The exact impact of marijuana on driving ability is a controversial subject—and it’s become more important states continue to loosen their drug laws. And, while drunk driving is on the decline in the U.S., driving after having smoked or otherwise consumer marijuana has become more common. According to the most recent national roadside survey from the National Highway Traffic Safety Administration of weekend nighttime drivers, 8.3 percent had some alcohol in their system and 12.6 percent tested positive for THC—up from 8.6 percent in 2007....
[In a recent federal study], researchers looked at 250 parameters of driving ability, but this paper focused on three in particular: weaving within the lane, the number of times the car left the lane, and the speed of the weaving. While alcohol had an effect on the number of times the car left the lane and the speed of the weaving, marijuana did not. Marijuana did show an increase in weaving. Drivers with blood concentrations of 13.1 ug/L THC, the psychoactive ingredient in cannabis, showed increase weaving that was similar to those with a .08 breath alcohol concentration, the legal limit in most states. For reference, 13.1 ug/L THC is more than twice the 5 ug/L numeric limit in Washington and Colorado....
The study also found that pot and alcohol have more of an impact on driving when used together. Drivers who used both weaved within lanes, even if their blood THC and alcohol concentrations were below the threshold for impairment taken on their own.... Smoking pot while drinking a little alcohol also increased THC’s absorption, making the high more intense. Similarly, THC delayed the peak of alcohol impairment, meaning that it tended to take longer for someone using both to feel drunk. Such data is important to educate the public about pot’s effects before they get on the road.
“I think this has added really good knowledge from a well-designed study to add to the current debate,” on marijuana’s effects on road safety, says Dr. Marilyn Huestis, the principal investigator in the study, which was conducted by researchers at the National Institute on Drug Abuse.
Friday, June 19, 2015
The title of this post is the headline of this new Forbes column by Jacob Sullum. This piece reinforces my belief that family law and family lawyers need to be paying considerable attention to marijuana reform developments and realities. Here is an excerpt:
In Live Free or Die, a 2010 memoir recounting how cannabis oil saved her life, Shona Banda emphasizes the importance of “self-taught knowledge,” acquired by constantly asking questions and “looking at all of the angles of any information given.” Her son may have learned that lesson too well. Had he been less inquisitive, less prone to question authority, he might still be living with his mother, and she might not be facing criminal charges that could send her to prison for decades.
Banda, a 38-year-old massage therapist who appeared in criminal court for the first time on Tuesday, is free on a $50,000 bond while her case is pending. She was able to pay a bail bondsman the $5,000 fee necessary to stay out of jail thanks to donations from supporters across the country who were outraged by her situation. The case has drawn international attention partly because it features draconian penalties and a mother’s forcible separation from her 11-year-old son but also because of the way it started.
During a “drug education” program at his school in Garden City, Kansas, on March 24, Banda’s son heard some things about marijuana that did not jibe with what he had learned about the plant from his mother. So he spoke up, suggesting that cannabis was less dangerous and more beneficial than the counselors running the program were claiming. That outburst of skepticism precipitated a visit to the principal’s office, where the fifth-grader was interrogated about his mother’s cannabis consumption. School officials called Child Protective Services (CPS), which contacted police, who obtained a warrant to search Banda’s house based on what her son had said.
As translated by the Garden City Police Department, Banda’s son “reported to school officials that his mother and other adults in his residence were avid drug users and that there was a lot of drug use occurring in his residence.” From Banda’s perspective, what her son had observed was her consumption of a medicine that had “fixed” her Crohn’s disease, alleviated her pain, and restored her energy. “I had an autoimmune disease,” she says in a 2010 YouTube video during which she displays the scars left by multiple surgeries aimed at relieving her crippling gastrointestinal symptoms. “With Crohn’s disease, it’s like having a stomach flu that won’t go away.” But after she started swallowing capsules containing homemade cannabis oil, she says, her life was transformed. “I’m working for the first time in four years,” she says. “I’m hiking. I’m swimming. I’m able to play with my kids [two sons, one of whom is now 18]….Anything beats raising your kids from a couch and lying there in pain all day.” Banda’s personal experience aside, there is scientific evidence that cannabis is an effective treatment for the symptoms of Crohn’s disease.
As far as the police were concerned, none of that was relevant, since Kansas is not one of the 23 states that allow medical use of cannabis. In the cops’ view, what they found at Banda’s house — “approximately 1 ¼ pounds of suspected marijuana” — was contraband, not medicine. And when CPS caseworkers took Banda’s son away from her, they were protecting him, not kidnapping him. “The most important thing here is the child’s well-being,” Capt. Randy Ralston told the Associated Press. “That is why it is a priority for us, just because of the danger to the child.”
The precise nature of that danger remains mysterious. Ralston says “the items taken from the residence” — the marijuana, plus “a lab for manufacturing cannabis oil on the kitchen table and kitchen counters, drug paraphernalia and other items related to the packaging and ingestion of marijuana” — were “within easy reach of the child.” But police came to Banda’s house in the middle of the afternoon, so that detail is less alarming than it sounds. “She was producing oil during the day, while her son was in school,” says Sarah Swain, Banda’s criminal defense attorney.
So far Banda has been unsuccessful at regaining custody of her son, who is living for the time being with her husband, from whom she is separated. “He is in state custody and has been since the beginning of the case,” Swain says. “He is placed [temporarily] with the father.” A family court judge ultimately will decide whether it is in the boy’s best interest to be reunited with his mother.
But as Swain notes, that process will be “moot” if “Shona goes to prison.” The charges against her, which Finney County Attorney Susan Richmeier announced on June 5, include two misdemeanors—endangering a child and possession of drug paraphernalia—and three felonies: unlawful manufacture of a controlled substance, possession of equipment used to manufacture a controlled substance, and distribution or possession with intent to distribute a controlled substance within 1,000 feet of school property. The distribution charge, a “drug severity level 1 felony,” carries the longest maximum sentence: 17 years. Swain says Kansas law allows sentences for different offenses to be imposed consecutively as long as the total term does not exceed twice the longest maximum, which means Banda could be sent to prison for as long as 34 years. Richmeier, apparently based on the assumption that any sentences would be served concurrently, says the maximum term Banda faces is 17 years.
It seems unlikely that Banda, who has no criminal record, would receive a sentence as long as 34 or even 17 years. But a substantial prison sentence is a real possibility given the charges she faces. “When your cure is illegal,” says a caption at the beginning of Banda’s 2010 video, “you are forced to make the choice to live free or die.” If Richmeier has her way, living free will no longer be an option for Banda.
June 19, 2015 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Sunday, June 14, 2015
Supreme Court of Canada issues big medical marijuana ruling (and highlights import of judiciary in marijuana reform)
As reported in this local Canadian article, headlined "Medical marijuana includes cookies, brownies, Supreme Court rules," the top court in Canada issues a significant medical marijuana ruling last week. Here are the details:
A former cannabis club head baker at the centre of a Supreme Court of Canada ruling is both thrilled and relieved after the high court struck down limits on what constitutes legally acceptable medical marijuana products. The court ruled unanimously on Thursday that medical marijuana can be legally consumed in a range of ways, from cannabis-infused cookies and brownies to cooking oils and teas. “I think across the country there will be a lot more smiles and a lot less pain,” said Owen Smith with the Victoria Cannabis Buyers Club, whose 2009 arrest was the focus of the decision.
Smith was charged after police found hundreds of pot cookies and cannabis-infused olive and grapeseed oils in his Victoria apartment. He was acquitted at trial and won an appeal.
The outpouring of gratitude since the ruling was handed down has been overwhelming, Smith said. He received a phone call from a mother who used cannabis-infused oil to treat her daughter’s epilepsy. “She was just overjoyed and in tears about the decision,” he said. “It’s been emotional, that’s for sure.”
Not only was it a unanimous 7-0 ruling, but the court made a point of attributing the written decision to the entire court — something the justices do when they want to underline a finding.
It was yet another rebuke of the Harper government’s tough-on-crime agenda. Until now, federal regulations stipulated that authorized users of physician-prescribed cannabis could only consume dried marijuana.
But limiting medical consumption to dried pot infringes on liberty protections under the Charter of Rights and Freedoms, the court said. “The prohibition of non-dried forms of medical marijuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice,” said the written judgment.
Cheryl Rose, whose daughter Hayley takes cannabis for a severe form of epilepsy, said the 22-year-old’s seizures have dropped dramatically. Under the previous law, Hayley had to take 15 capsules of dried cannabis daily. Now, she will only have to take one concentrated capsule made with oil. “Without having extracts available for her, I don’t think we’d be able to keep it up. It’s way too much for a person to consume,” she said. “She’s finally going to fully have her life back.”
Alex Repetski, of Thornhill, Ont., could have been charged with possession and trafficking for converting dried bud into oil for his 3-year-old daughter, Gwenevere, whose debilitating epilepsy has left her developmentally delayed. Since starting on the low-THC marijuana, Gwenevere has seen an incredible recovery, Repetski said. He no longer fears prosecution.
Limiting medical marijuana use to dried pot “limits life, liberty and security of the person” in two ways, the court said. First, the prohibition on possession of cannabis in forms other than dried pot places a person at risk of imprisonment when they wouldn’t face the same threat if they possessed dried marijuana buds. It also exposes people with a legitimate need for marijuana to other potential medical ailments, it stated. “It subjects the person to the risk of cancer and bronchial infections associated with smoking dry marijuana and precludes the possibility of choosing a more effective treatment.”...
Health Minister Rona Ambrose said she was “outraged” by the marijuana decision. “The big issue here is the message about normalization,” she said. “The message that judges, not medical experts, judges have decided something is a medicine.” Ambrose noted that marijuana has never faced a regulatory approval process through Heath Canada.
The full 24-page ruling in R. v. Smith, 2015 SCC 34 (Canada June 11, 2015) is available at this link.
As the last line of my post headline emphasizes, I think this ruling highlights the importance and impact of how a judiciary responds to a jurisdiction's marijuana reform efforts. For any jurisdiction that reforms blanket marijuana prohibition in any ways, the dynamics of just how courts interpret and apply reform statutes and regulations will necessarily have an impact on the actions of other government officials and individuals seeking to comply with reformed laws and practices.
The title of this post is the headline of this notable new Newsweek article. Here are excerpts:
In New York City, misdemeanor marijuana possession arrests were dramatically lower between January and March 2015 than in the same period of 2014—2,960 compared to 7,110, respectively—but stark racial disparities persist among those arrested, new data obtained by Newsweek indicate.
During the first quarter of 2015, African-Americans were arrested for misdemeanor marijuana possession 1,494 times: That’s 50.47 percent of the total. Hispanics were arrested 1,130 times, or 38.18 percent, and together these two groups accounted for 88.65 percent of the total. Meanwhile, whites totaled 228 of these arrests (7.70 percent) and 79 (2.67 percent) of the arrestees listed as Asian/Indian, according to the state’s Division of Criminal Justice Services.
In terms of the racial breakdown, this isn’t all that different from the first quarter of 2014. Of those 7,110 misdemeanor marijuana arrests, 3,370 (47.4 percent) were African-American and 2,791 (39.25 percent) were Hispanic. So, these two group comprised 86.65 percent of misdemeanor marijuana arrests early in 2014, suggesting the racial disparity in these arrests has grown slightly this year. Whites were arrested 650 times (9.14 percent) and Asian/Indian were arrested 236 times (3.32 percent) during this period. (Some arrestees did not list race-ethnicity data.)
The year-over-year decrease in arrests follows the announcement in November by Mayor Bill de Blasio and Commissioner William Bratton that they would issue summonses for small amounts of marijuana rather than collar them. The rule applies to those caught with 25 grams or less of pot, “so long as there is no warrant for the individual’s arrest and the person has identification.” Police can arrest those in possession of 25 grams or less “if the marijuana is burning, if the type of possession indicates intent to sell, if the individual has an outstanding warrant, or if the individual is in a location with special consideration, like a school.”...
New York Police Department officers made 26,385 misdemeanor marijuana possession arrests in 2014. That was down from 28,954 in 2013. Both years, African-Americans and Hispanics comprised some 86 percent of these arrests. Asked about the numbers, a department official responds that these statistics do not reflect racially motivated policing, but result from data driven crime enforcement.
“The NYPD endeavors to assign its resources based, in considerable part, on an analysis of various conditions in different areas of the city. Among these conditions include level of crime, both major crime and lesser offenses. Another significant consideration relates to the nature and number of local citizen and community complaints in the various neighborhoods. This includes calls to 911, calls to 311 and complaints voiced by members of local precinct community groups,” the official says.
“Analysis has clearly shown that a significantly higher level of these conditions and complaints exist in those areas of New York City where there is also a high minority population. Based on these crime-related conditions, as well as complaints, the NYPD attempts to assign its resources to appropriately address these demands. A higher level of police presence in any particular area in which there is a greater level of offenses, in public, will often result in more enforcement activity.”
Tuesday, June 9, 2015
The title of this post is the headline of this notable new Washington Post piece. Here are excerpts:
With a wave of legalization measures in recent years, marijuana in some form is now legal in 38 states. But in the 12 where it is not — a swath of the west and Midwest, including Kansas, Nebraska and the Dakotas, and in the rust belt states of Ohio, Michigan and Pennsylvania — parents whose use of the drug would be legal elsewhere are losing their children and often seen as irresponsible parenting pariahs.
In March, Child Protective Service workers took Shona Banda’s 11-year-old son from her home in Garden City, Kansas, saying her use of marijuana to control debilitating Crohn’s Disease put the child in danger.
Last Friday, the state of Kansas charged Banda with five felony counts of possession of marijuana with the intent to distribute, manufacturing Tetrahydrocannabinol, an oil extracted from marijuana, two counts of possession of drug paraphernalia and one count of child endangerment. Banda, who will turn herself in to authorities June 15, according to her attorney, could face a maximum of 30 years in prison.
On the day she was charged, June 5, the Louisiana state legislature sent a bill to legalize medical marijuana to Republican Gov. Bobby Jindal, who’d indicated he’d sign it, and the Detroit Free Press reported that establishment Republicans are backing a recreational marijuana bill for 2016. It was also the day Amber Thurmond, of Arizona, appeared in family court in Hays, Kansas and was told by a judge that if she ever wanted to be reunited with her nine-year-old daughter, Thurmond would have to move to Kansas.
Thurmond lives in Arizona, where medical marijuana is legal, uses medical marijuana to control seizures and works at a medical marijuana dispensary. She’s facing charges of physical, mental and emotional neglect in Kansas, where she sent her daughter to live with her brother, a police officer, for a semester, she said, while she got on her feet financially. Eighteen months later, her daughter has been put in the state foster care system and placed with her brother.
“These mothers are being forced to choose between their health and their ability to be a parent,” said Sarah Swain, a Kansas attorney who is representing both Banda and Thurmond. “And there really is no choice to be made. We can’t be mothers if we’re so sick that we’re bedridden, or if we aren’t alive.”
Thurmond was featured on the National Geographic TV series, “American Weed,” which followed the story of the town of Castle Rock, Colorado voting to close down her medical marijuana dispensary, Plants4Life. “I want to tell everyone I see, ‘you have children? Well, you better reconsider your usage,’” Thurmond said. “And yet, we can go home and drink ourselves to death and never have children removed from our homes.”
Charlene Brubaker, the county attorney involved in Thurmond’s case, said the judge found that her daughter had special needs that could only be met with Thurmond’s frequent presence with the child in Kansas. “The court did not make its decision based on medical marijuana. It’s just their spin, not the truth,” Brubaker said, though she said she could not say more for confidentiality reasons.
Chuck Noerenberg, president of the National Alliance for Drug Endangered Children, a group that works with law enforcement and social services, say they’re intensely watching how legalizing marijuana is affecting caregivers’ ability to provide proper care to children. “Whether it’s a legal or illegal substance, if it has an impact on caregivers’ ability to take care of children, that’s a concern of ours,” he said.
Banda, who has become an outspoken advocate for medical marijuana, had 17 surgeries, tried a number of medications and was prescribed the powerful narcotic, fentanyl, to “ease her passing,” she said, because her doctors thought she was going to die. Then she tried marijuana, and began to heal, a journey she chronicles in her book, Live Free or Die, and on her Facebook page. “I spent years raising my children from a couch, not being able to move much,” Banda said, who also has an 18-year-old son. “I wasn’t able to be a proper mother when I was sick. And now I’m a fantastic mother.”
Twice Banda tried to move to Colorado, where marijuana is legal, she said, but was forced to move back to Kansas near family for financial reasons. Banda is separated from her husband, who now has custody of their 11-year-old son. The child was in a drug education class at school March 24, and spoke up about his mother’s medical marijuana use. School officials called the police and Child Protective Services. A search of the house found marijuana and drug paraphernalia on the kitchen counters.
Banda has seen the child just once since March 24, she said. Nor has she used cannabis, advocates’ preferred term for marijuana. She’s begun losing weight and an infection that rotted the roof of her mouth has returned. “I’m very afraid,” she said. “I cannot believe that I could be facing 30 years in prison for trying to save my life.”
Sunday, June 7, 2015
The title of this post is the title of this notable new empirical-oriented new paper by Paul Hofer now available via SSRN. Here is the abstract:
Unidimensional rankings comparing the harmfulness of different drugs have been criticized as too simplistic for policy making. A type of unidimensional ranking of direct drug harms is needed for sentencing policy making, however, in order to implement the sentencing principle of just desert. Available empirical evidence of the relative harmfulness of illegal drugs on several measures of direct harm is reviewed. Data on typical dosage weight is used to evaluate the proportionality of current federal mandatory minimum statutes and guidelines for drug trafficking offenses. Several drugs that rank relatively low on harms are punished as, or more, severely than drugs that are far more harmful. Mandatory minimum statutes and congressional directives to the United States Sentencing Commission must be repealed or revised before recommendations of the federal sentencing guidelines will result in proportionate punishment.
Saturday, June 6, 2015
The question in the title of this post is the central topic of a presentation I am honored to be giving today at the Cuyahoga Criminal Defense Lawyers Association's annual meeting.
As is often true when I speak to a group of experienced defense attorneys, I expect I will learn more from the assembled participants than I am likely to teach them. But, in part because Ohio has not (yet) reformed its marijuana laws in any way, I am cautiously hopeful I can give the group some useful insights about the inevitability of legal and practical uncertainties, especially in the criminal law arena, as to what really happens in a state after it formally repeals blanket marijuana prohibition in some way.
Based on case rulings, policy reports and conversations with lawyers in the field in states like Colorado, I have a general sense of various possible answers to the multi-dimensional query in the title of this post. But I would be especially eager to hear from any and all persons in reform states if they have distinctive experiences or thoughts in reaction to my question.
Wednesday, June 3, 2015
House of Representatives again votes to limit federal interference with state medical marijuana programs
As reported in this AP piece, headlined "GOP-Controlled House Backs State Medical Marijuana Laws," today brought a number of notable federal votes on federal marijuana enforcement funding. Here are the details:
The federal government would be unable to block state laws permitting the use of medical marijuana under legislation approved Wednesday by the GOP-controlled House. But lawmakers narrowly rejected an amendment that would stop the Justice Department from interfering with states like Colorado and Washington that permit the recreational use of marijuana.
The 242-186 vote on medical pot was a larger margin than a tally last year, when the House first approved it as part of a bill funding the Justice Department. Wednesday's vote was to renew the pro-pot language as part of a bill providing funding for the coming fiscal year. The overall measure passed by a mostly party-line vote.
Most Republicans opposed the idea and the Senate is in GOP hands this year, so the outcome could still be reversed. But Senate advocates of medical marijuana won a test vote in the GOP-controlled Appropriations Committee last month.
On Wednesday, 67 Republicans, including libertarian-minded lawmakers such as Thomas Massie of Kentucky, combined with all but a handful of Democrats in support of states that allow doctors to prescribe pot for medical uses, such as improving the appetites of cancer patients undergoing chemotherapy....
The amendment to allow recreational pot use, offered by conservative Rep. Tom McClintock, R-Calif., was rejected by a surprisingly narrow 222-206 vote. McClintock's measure had less GOP support and more Democratic opposition than did the amendment on medical marijuana. "This is not an argument for or against marijuana," McClintock said. "This strictly involves the rights of citizen in various states to regulate commerce that occurs entirely within their own borders."
Monday, June 1, 2015
Former federal prosecutor: "Legal Marijuana Dealers -- And The Government -- Need Bankers And Lawyers"
The title of this post is drawn from the headline of this notable new Forbes commentary by Matthew L. Schwartz, who for a decade served as a federal prosecutor and is now partner at Boies, Schiller & Flexner. Here are excerpts from an important piece:
It is not unusual for legal marijuana businesses to become entangled in government investigations. Although it wasn’t my focus, as a former federal prosecutor I sometimes investigated unlawful drug trafficking organizations. Following the drugs and money back to their source increasingly led to marijuana businesses in states that had legalized it.
In many cases, the “legal” marijuana business was knowingly involved in the unlawful distribution. But on more than one occasion, legitimate marijuana businesses were victims of circumstance. In one case, for example, a licensed grower in California had a handful of workers who were diverting a portion of the crop to a criminal organization. In another case, a dispensary in Colorado was purchasing unlawfully-produced marijuana. In both cases, the guilty were arrested and the innocent business owners were not, but the businesses were adversely affected – each was the subject of a government investigation, its premises were searched by law enforcement agents, and its bank accounts and property were subject to seizure.... Companies without stringent compliance programs are particularly at risk.
As a result, virtually every bank of any size has decided not to do business with legal marijuana companies, concluding that the so-called “regulatory risk” outweighs the benefits of doing business with them.... Major law firms, ever risk-averse, have also decided not to advise marijuana companies... [because] most major law firms have decided that the risk that they will be deemed an aider and abettor of criminal activity makes advising marijuana businesses untenable....
The lack of access to banks and lawyers is a problem not only for legal marijuana businesses, but for regulators and law enforcement, as well. Though marijuana remains a controlled substance, legalized marijuana is a reality in many states – and arguably an inevitability, even at the federal level – and it is in the government’s interest for companies in that market to have robust compliance programs. Likewise, the government has no desire for marijuana businesses to be conducted in cash: the use of cash makes it significantly harder for the government to trace the proceeds of the marijuana businesses, not to mention the fact that businesses that deal in large volumes of cash present opportunities for robbery and other crimes of violence. But for marijuana money to be both traceable within the legitimate financial system and subject to stringent compliance programs – both within the marijuana businesses and at the institutions that handle their money – means having access to banks and lawyers....
Until marijuana businesses have regular access to the financial system and can turn to a broad array of sophisticated lawyers for counsel, they will remain half-way in the shadows. This is by no means an argument for legalizing marijuana; it doesn’t have to be legal for marijuana businesses to have access to professional services. Last month, the Marijuana Business Access to Banking Act was introduced in the House of Representatives; among other things, it would prohibit banking regulators or criminal prosecutors from investigating or penalizing a financial institution for “providing financial services to a marijuana-related legitimate business.” Congress could easily pass similar protections for lawyers. Doing so would recognize a basic proposition: when a bank or a lawyer provides services to a legal marijuana business, it is not helping that business to break the law. To the contrary, lawyers and banks – especially sophisticated and responsible ones – help businesses to comply with the law. That helps the marijuana business and government alike.
June 1, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Tuesday, May 26, 2015
Regular readers likely already know that I find extra interesting and important the intersection of marijuana reform and civil rights and social justice issues. Consequently, I have been especially pleased to see that that NBC has been running a number of article under the banner "Black & Green, A Series About African Americans & the Marijuana Industry." This piece, headlined "Post-Legalization Many African Americans 'Just Say No' To Marijuana Industry," is the latest in the series, and it gets started this way:
It's not surprising that many African Americans are leery about cashing in on the legal cannabis industry. Numerous reports show that the black community continues to pay a high price for it in the criminal justice system even where marijuana is legal.
A 2013 ACLU report noted that on average, a black person is 3.73 times more likely to be arrested for marijuana possession than a white person," even though blacks and whites use marijuana at similar rates." Such racial disparities in marijuana possession arrests exist in all regions of the country, in counties large and small, urban and rural, wealthy and poor, and with large and small black populations, concluded the report, touted as the first to examine marijuana possession arrest rates by race for all 50 states (and the District of Columbia) and their respective counties from 2001 to 2010.
"There's more of a negative stigma surrounding this industry — the [cannabis] culture and religion [in the black community] plays a heavy factor," says Lakisha Jenkins, president of the California Cannabis Industry Association, which has been a part of the National Cannabis Industry Association (NCIA) since 2013. The Washington D.C.-based non-profit organization billed as the largest cannabis trade association in the U.S., has formed a committee focused on figuring out ways to draw more people of color to the industry. "Since we're the ones who've been incarcerated [the most for marijuana possession and use] it makes it rather difficult [for some people of color] to see it as a positive and viable industry," says Jenkins, a committee member.
Here are the other notable piece in the series so far:
Wednesday, May 20, 2015
The title of this post is the headline of this notable recent article via Philly.com. Here are excerpts:
There is a robust, national conversation about police and justice reform. And by decriminalizing marijuana, Philadelphia is getting a glimpse of what that entails.
Last October, Philly became America's largest city to make marijuana possession a civil, rather than a criminal, violation. The result has been a dramatic reduction in arrests.... They are down more than 70 percent.
For decades, Philly police put anyone caught with anything from a roach up to 30 grams into handcuffs and a holding cell. The city’s new decrim policy gives officers the option of issuing a Code Violation Notice: $25 for possession and $100 for smoking in public. The result has meant fewer interactions between cannabis consumers and police.
It’s also saving tens of thousands of hours of police time -- and a big chunk of tax dollars. The RAND Corporation this year released a that calculated a single custodial arrest costs $1,266. Using the RAND numbers, Philly may have already saved more than $1 million under the new policy from January to March this year compared to 2013. RAND estimated that the cost of issuing citations is a mere $20....
The shift in policy has allowed police to spend more time on other crimes. Cocaine and heroin possession arrests are combined in the same code in the Pennsylvania Uniform Crime Reporting System [and] while marijuana arrests have decreased there has been an uptick in arrests for harder drugs....
One of the most compelling reasons that City Council took on pot decriminalization was the disturbing racial disparity specifically in marijuana arrests. Unfortunately, that has not changed ... [as] Black residents are still 7 times more likely to be arrested for weed than white residents.
Some are quick to say that this disparity exists because police are heavily patrolling in neighborhoods of color. But that would mean other arrests, especially for other drugs, would have the same disparity. But that is not the case [as data shows] more white people got arrested for cocaine and heroin in Philly so far this year.
[T]there is no statistical or procedural reason that can explain the continued brunt of marijuana enforcement on black residents. It highlights part of a bigger problem with urban policing, one that will take more than legalizing marijuana to solve.
Tuesday, May 19, 2015
The title of this post is the headline of this fascinating recent Washington Post article. Here are excerpts:
Not long ago, a man who had covertly dealt pot in the nation’s capital for three decades approached a young political operative at a birthday party in a downtown Washington steakhouse. He was about to test a fresh marketing strategy to take advantage of the District’s peculiar new marijuana law, which allows people to possess and privately consume the drug but provides them no way to legally buy it for recreational use. Those contradictions have created a surge in demand and new opportunities for illicit pot purveyors.
“Do you like cannabis?” asked the dealer. “Yes,” answered the man, who had recently left his job as a Republican Senate staffer.
So, the dealer recalled, he handed his new acquaintance a tiny plastic bag that contained half a gram of “Blue Dream,” a sweet and fruity strain of marijuana. With the bag he also presented a business card and an offer: If you like what you try, call me. Within days, the man — now a lobbyist — picked up the phone.
The dealer — who, like others interviewed, spoke on the condition of anonymity because what they do remains illegal — said he has used that same in-plain-sight sales pitch at similarly upscale D.C. settings, collecting three new buyers and a pair of new suppliers. The new business is all thanks to the quirks of the District’s legalization, which has boosted the appetite for marijuana as more people become comfortable acquiring it through the black market. “It’s the dealer-protection act of 2015,” he said. “This was a license for me to print money.”
Who is responsible for this unintended consequence depends on whom you ask. In November, Washington voters overwhelmingly approved an initiative that made it legal to possess and grow marijuana, but the following month, Congress enacted a spending prohibition that barred the city from creating a system through which pot could be lawfully bought, sold and taxed.
That means there are only three ways for people in the District to legally obtain marijuana. Someone can give it to them, though the donors, of course, must find their own original source. Residents can each grow as many as three plants to maturity at one time, though that process is complicated, expensive and time-consuming. And with a doctor’s approval, people can get medical-marijuana cards, though supply remains dismal.
“The black market is the obvious choice,” said a 24-year-old government contractor who deals part time. “It’s awesome.”
Rep. Andy Harris (R-Md.), who has led Congress’s charge to thwart the legalization, blamed city leaders, insisting that they should have forbidden possession when he and other lawmakers prevented Washington from creating a controlled marketplace. “There’s no question that demand will go up, and there’s no legal source of supply,” he said. “Clearly, this was not thought out rationally by the city government, which chose to go forward with legalization without regulation.”
John Falcicchio, chief of staff for Mayor Muriel E. Bowser (D), sharply countered that assertion. “In D.C., it shouldn’t be called the black market. It should be called the Harris market,” he said. “If there’s any uptick in the black market, it’s thanks to Harris.”...
That boost in demand, supporters of legalization say, helps explain why lawful use in the District must be paired with lawful sales. “If you’re going to legalize marijuana, you also have to legalize the supply because you want to get rid of the black market or at least limit the black market,” said Keith Stroup, founder of NORML. “Right now, they’ve done the exact opposite.”
Delroy Burton, chairman of the D.C. Fraternal Order of Police, said a regulated market would have “pulled the teeth out of the illegal drug trade” and eventually wiped out the violence associated with it.
Jeffrey Miron, an economics teacher at Harvard University, compared marijuana’s potential evolution to that of alcohol after prohibition ended in 1933. “People seem to prefer going to a legal supplier rather than making beer in their basement,” said Miron, director of economic studies at the libertarian Cato Institute, which supports the legalization of all drugs.
He and others who have studied the topic don’t suggest that illicit sales would disappear overnight, but after several years — even a decade — they argue that the black market could not compete with a controlled market.
Rep. Andy Harris rejected those arguments. “I think there’s value in keeping the supply chain illegal at this point,” he said, maintaining that it provides “a check on the system.”
The longtime District dealer who now markets his product at chic D.C. gatherings has already considered what he would do if the city regulated pot sales. He and his friends, he said, would open their own dispensary. They’d go legit.
May 19, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Sunday, May 17, 2015
The title of this post is the headline of this new New York Times article, which includes these excerpts:
After nearly 20 years on the job, Jim Jeffries, the police chief in LaFollette, Tenn., has seen his share of marijuana seizures — dry green buds stashed in trunks or beneath seats, often doublebagged to smother the distinctive scent. But these days, Chief Jeffries is on the lookout for something unexpected: lollipops and marshmallows.
Recently his officers pulled over a Chevy Blazer driven by a couple with three children in tow. Inside, the officers discovered 24 pounds of marijuanalaced cookies and small hard candies shaped like gingerbread men, plus a tub of pungent marijuana butter perfect for making more. The bags of Kraft marshmallows looked innocent enough. But a meat injector was also found in the car. After searching the Internet, Chief Jeffries realized that the marshmallows probably had been infused with the marijuana butter and heatsealed into their bags....
Across the country, law enforcement agencies long accustomed to seizures of bagged, smokable marijuana are now wrestling with a surge in marijuana-infused snacks and confections transported illegally across state lines for resale.
Pot edibles, as they are called, can be much easier to smuggle than marijuana buds: They may resemble candy or homebaked goodies, and often have no telltale smell. And few police officers are trained to think of gummy bears, mints or neoncolored drinks as potential dope.
Some experts worry that smuggled pot edibles will appeal to many consumers, particularly adolescents, who are ill prepared for the deceptively slow high. Impatient novices can easily eat too much too fast, suffering anxiety attacks and symptoms resembling psychosis. Already, young children have eaten laced sweets left within reach. Many live in states where there has been no public education about responsible consumption of marijuana.
“Citizens in nonlegalization states are far less likely to be receiving those messages, so their risks are probably greater,” said Robert J. MacCoun, a professor of law at Stanford who recently cowrote an editorial in The New England Journal of Medicine urging stronger regulation of pot edibles.
There are no hard numbers for the amount of pot edibles being trafficked interstate, but police departments in a variety of jurisdictions without legal sales report seizing increasing amounts in the past year. The quantities suggest the products are intended to supply a growing demand, law enforcement officials say....
The popularity of confections laced with marijuana has caught many health officials by surprise. Pot edibles took off in 2014, the first year of recreational sales in Colorado, when nearly five million individual items were sold to patients and adult users. Demand in Colorado and Washington State has spawned a stunning assortment of snacks and sweets, from Mondo’s sugarfree vegan bars to Dixie Edibles’ white chocolate peppermint squares.
Today consumers 21 and older can legally buy pot edibles in those two states; soon adults in Oregon and Alaska will join them. Pot edibles are available to medical users in at least a half dozen of the 23 states with medical marijuana programs.
Edibles make sense for marijuana entrepreneurs. In the past, marijuana buds were sold, and the rest of the plant was usually discarded. But with an extraction machine, makers of edible products can use the entire plant. “In a world where THC becomes inexpensive, you would like to differentiate your product from other people’s products in ways that allow you to maintain a higher profit margin,” said Jonathan Caulkins, a coauthor of “Marijuana Legalization,” who has studied black markets for cocaine and marijuana. “Edibles offer some opportunities for that.”...
The manufacturers themselves say they receive constant requests for outofstate shipments. James Howler, the chief executive of Cheeba Chews, based in Denver, said his team fields emails from people nationwide — from epilepsy patients in Iowa to a retired mechanic in Florida, all of whom would rather snack on marijuana than smoke it.
“The needs and curiosity from around the country can be overwhelming,” he said. Still, Mr. Howler said, he declines them all. “It is highly illegal, and stupid to think we would risk everything,” he said.
May 17, 2015 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)
Monday, May 11, 2015
As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:
The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.
Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.
"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."
When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."
ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.
He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....
Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....
Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"
He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.
He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.
I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings. I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.
May 11, 2015 in Criminal justice developments and reforms, Initiative reforms in states, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (0)
This important Chicago Reader article by Mick Dumke spotlights issues at the intersection of marijuana reform and racial/social justice that I have been thinking about a lot lately. The piece is headlined "Will marijuana decriminalization end the racial grass gap?: As the politics of pot shift, questions of justice remain," and merits a full read for anyone interested in these issues. Here are excerpts:
Many cannabis enthusiasts saw it as another reason to light up: in a span of three days, the Cook County state's attorney and the Illinois house both took steps to reduce penalties for marijuana possession.
But in some parts of Chicago, people were still getting busted for pot. Police made at least 212 arrests for misdemeanor possession that week, a rate of 30 per day, according to Chicago police data. More than 90 percent were in predominantly black neighborhoods.
Amid a national debate on race and the criminal justice system, the politics of pot are clearly blowing in a new direction. Simply put, it's no longer wise for an elected official to call for cracking down on low-level drug offenses. But the shift has also created a jumble of laws and policies that continue to send some people to jail for the same behavior that's overlooked, laughed off, or even celebrated for others.
It's the latest incarnation of what the Reader calls the grass gap: while people smoke marijuana all over Chicago — and Illinois, and beyond — almost everyone busted for it is black.
Ending this racial imbalance has become a top goal of elected officials and policymakers who see it as emblematic of the failed war on drugs. "Anything that takes a meaningful step toward not trapping black and brown men like myself in a cycle of poverty and prison, I'm behind," says state representative Christian Mitchell, a chief sponsor of the house bill to loosen pot penalties.
So far, though, the gap has remained stubbornly in place. In 2011 my colleague Ben Joravsky and I reported that African-Americans accounted for 78 percent of those arrested, 89 percent of those convicted, and 92 percent of those jailed for misdemeanor marijuana possession in Chicago, leaving thousands with criminal records for doing something that routinely went unpunished in other parts of the city.
Citing those findings, the Chicago City Council passed an ordinance in 2012 to go easier on some pot possessors. Under the new rules, police officers were allowed to issue tickets to those caught with up to 15 grams (about half an ounce) instead of hauling them to the station to be booked and locked up.
The measure succeeded in reducing busts. In 2010, police made more than 22,000 arrests for misdemeanor possession. Last year the total fell to about 12,800, the lowest in two decades, according to police data. Yet the grass gap hardly budged. In 2014, 76 percent of those arrested for low-level pot possession were black, 19 percent were Hispanic, and 5 percent were white — almost exactly the same breakdown as before the new rules were enacted.
Disparities existed almost everywhere in the city, even in areas with relatively small black populations. African-Americans accounted for a majority of pot possession arrests in all but 97 of the city's 268 police beats. In contrast, though more whites live in Chicago, they made up the majority of arrests in only 13 beats — and in ten of those, fewer than ten people were arrested.
Marty Maloney, a spokesman for the Chicago Police Department, points to the drop in total arrests as a sign of the department's commitment to making enforcement "even more effective and fair." "The City's cannabis ticketing initiative has already kept thousands out of jail," he wrote in an e-mail. Unfortunately, thousands are still going there.
After being arrested, offenders are held in police lockup for hours. Many are then transferred to the county jail before they're given a court date and released. Most misdemeanor marijuana cases are eventually thrown out of court at the discretion of prosecutors and judges. Those that move forward usually involve repeat offenders, but not always. People who've spent a day or two behind bars often plead guilty in return for a sentence of the time they've already served.
All told, 1,263 misdemeanor marijuana cases resulted in jail time last year in Cook County, according to data from the circuit court clerk's office. In almost all of these cases — 84 percent — the defendants were African-American.
In short, while pot has essentially been decriminalized for some people, it still lands others behind bars. And in addition to being unfair, the system is expensive. These misdemeanor pot cases cost county taxpayers approximately $38 million in court and jail expenses in 2014....
Cops say the grass gap is the result of aggressive patrols in high-crime neighborhoods. Officers charged with reducing violence pull people aside for interviews — Chicago's version of stop and frisk. While arrests consume two to four hours of an officer's time, police say they can also be useful in leveraging drug sellers and gang members for information, or simply getting them off the street for awhile.
When low-level possession is decriminalized, police will probably issue more tickets — but even then African-Americans will bear the brunt of enforcement. That's what's happened in Chicago. As marijuana arrests fell, the number of cannabis citations shot up from 1,074 in 2013 to 4,032 in 2014, police data show. And the vast majority — 78 percent — were issued to African-Americans. Just 16 percent went to Hispanics and 5 percent to whites.
When possible, cops will arrest offenders on different charges — such as possessing more than 15 grams, or possessing with the intent to deliver, the formal charge for dealing. Police, prosecutors, and politicians acknowledge that decriminalization won't address the economic roots of the grass gap either. Many of those prosecuted in the last couple years are repeat offenders who appear to have been selling to make money, according to police reports and court records.
A few prior posts on racial justice and marijuana reform:
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- Is pot already really legal for middle-aged white folks?
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
- Race, marijuana enforcement and legalization
- Racial Disparities in Marijuana Enforcement
- NAACP advocating for full legalization of marijuana ASAP in Nevada
- "Are cities being racially discriminatory in banning legal marijuana?"
- Considering marijuana prohibition and reform through the lens of minority communities
Tuesday, May 5, 2015
The question in the title of this post is prompted by this intriguing new St. Louis Dispatch article headlined "Does Missouri's 'right to farm' amendment mean you can grow marijuana in the basement?". Here are the details of an interested new state constitutional provision and argument in litigation over marijuana prohibition:
A Missouri woman believes her constitutional right to farm shields her against being prosecuted for allegedly growing a small crop of marijuana in her basement.
Lisa Loesch, 52, of Jefferson City, was charged in 2013 with a felony count of manufacturing and/or distributing a controlled substance. Investigators with the Jefferson City Police Department and a regional drug task force said they found nine healthy, potted marijuana plants under grow lights in her basement in October 2012. “The room was set up with grow lights, a CO2 generator, and pots with potting soil,” police said in court records. “The plants were approximately 1 and ½ to 2 feet in height.”
Loesch’s lawyer, a public defender named Justin Carver, filed a motion April 28 asking for her case’s dismissal. Carver argued that growing marijuana is protected by Missouri’s new farming rights amendment, which voters narrowly passed in an August referendum. Of nearly 1 million votes cast, the amendment passed by a margin of 2,376 votes.
The amendment enshrined the right to farm in the state constitution, saying the right of Missouri citizens to engage in agricultural production and ranching practices “shall not be infringed.” It was prompted by rural legislators who said farm culture needed protection from environmentalists and animal-rights activists. Missouri was the second state behind North Dakota to place farming rights in its constitution. “The amendment prohibits the Legislature from declaring what can and cannot be grown in Missouri,” Carver wrote in his motion for dismissal.
Loesch’s lawyer wrote that state laws that prohibit the cultivation of marijuana violate the state and U.S. constitutions and are “vague in that a reasonable person cannot tell and is not given clear notice as to what is prohibited and what is permitted” by law.
The amendment was passed after Loesch was charged. But her attorney says the language of the amendment makes it clear it is not establishing a new right but clarifying an existing right, so it should apply retroactively to Loesch. Loesch pleaded not guilty to the drug charge in February 2013.
This Ballotpedia entry provides background on the "right to farm" provision now in the Missouri constitution, and it reports that the provision reads as follows:
Section 35. That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy. To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.
I suspect that defendant Lisa Loesch will have a hard time establishing in this case that she qualifies as a farmer exercising her "right ... to engage in farming and ranching practices" through growing a small crop of marijuana in her basement. That said, I could readily imagine a true family farmer starting to grow a small crop of marijuana plants on his family farm and thereafter asserting in the face of a state prosecution that he was just engaged in a form of Mizzou agriculture designed to provide "food, energy, health benefits and security" for his fellow state citizens.
Saturday, May 2, 2015
The title of this post is the headline of this notable new CNN commentary authored by Mike Riggs, who is the communications director for Families Against Mandatory Minimums. Though the commentary starts with a discussion of marijuana reforms, its real focus seems to be advocating wholesale federal drug sentencing reform. Here are excerpts:
Since 2012, when voters in Colorado and Washington approved the tax and sale of recreational marijuana, the cognitive dissonance of America's drug penalties has become even more absurd. Where we once incarcerated people for growing and selling "just a plant," we're now incarcerating people for growing and selling "just a plant" that tens of millions of people can grow and sell legally.
Marijuana is legal only in certain states, and illegal under federal law. Still, it's worth asking what Congress would do with the thousands of pot offenders sent to federal prison each year if we repealed, or even just reformed, federal pot laws.
In 2010, Congress voted to change federal penalties for crack cocaine with the Fair Sentencing Act. Prior to the law's passage, 5 grams of crack cocaine triggered the same mandatory minimum sentence as 500 grams of powder cocaine. Congress reduced that disparity, from 100-to-1 to 18-to-1, which significantly reduced crack cocaine sentences. But Congress did nothing to change the sentences of the more than 8,000 federal crack prisoners who were locked up when the bill was signed into law.
So the repeal of federal marijuana laws could likely leave us with many thousands of federal pot prisoners serving sentences longer than what they'd receive in a post-reform courtroom....
If Congress changes marijuana laws without allowing currently imprisoned pot offenders to seek new sentences, should this president or the next simply throw open the gates? Clemency feels particularly appropriate for marijuana prisoners, who sit in cells for trafficking and dealing while state legislators argue over how to spend the revenues generated from pot taxes and newspapers tell us how to incorporate the plant in our cooking....
In 2014, then-Deputy Attorney General James Cole announced a Justice Department initiative to review the petitions of federal prisoners serving sentences longer than what they'd receive if sentenced today, and to grant clemency to those whose early release would not compromise public safety. The second wave of clemencies granted since the initiative launched included both crack offenders and a single marijuana offender.
But clemency, by its very nature, benefits only a small number of people. Even if President Obama were to grant 2,000 commutations over the next 21 months — an unprecedented number — there are roughly 100,000 drug offenders in federal prison. The vast majority would be left to serve excessively long sentences.
Our drug policies — and not just those pertaining to marijuana — require sweeping, comprehensive, grand reform.... All drug offenders are getting a raw deal from our criminal justice system. It would be a mistake to say, "Let out the people who sell a drug that I'm comfortable with, and to hell with all the rest." Federal and state legislators need to address bad policies for all drug types, and then establish a clear route to resentencing for pot dealers — and everybody else.