Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

A Member of the Law Professor Blogs Network

Monday, September 15, 2014

Wisconsin police chief advocate marijuana legalization to fund treatment for harder drugs

54121e3ad6951.image

This Wisconsin State Journal article, headlined "Police chief: Legalize marijuana, use tax revenue to fund drug treatment," reports on a local police chief's notable response to reports highlighting racial disparities on who gets arrested for marijuana offenses. Here are excerpts from the article:

Madison Police Chief Mike Koval endorsed the legalization of marijuana last week, saying the drug should be regulated and taxed, with revenues used to fund treatment programs for harder drugs.

The comments came during an interview with the State Journal Wednesday about data showing African-Americans in Madison were arrested or cited for marijuana offenses at about 12 times the rate of whites in the city.

Koval called efforts to enforce laws against marijuana an “abject failure,” and said the same about the broader war on drugs. “We’ve done such an abysmal job using marijuana as a centerpiece of drug enforcement, that it’s time to reorder and triage the necessities of what’s more important now,” Koval said.

Referring to the states of Washington and Colorado, which have legalized the drug for recreational use and sell it at state-regulated stores, he said it was time for Wisconsin to consider doing the same.

Koval said he would like to see the state “acknowledge the failure” of marijuana prohibition and instead focus on the “infinite amount of challenges” posed by drugs such as heroin. Taxes from the legal sale of marijuana, he said, would create state revenue that could then be used to fund drug treatment and expand the capacity of drug court programs that divert addicts from the criminal justice system....

The cause has not advanced as far in Wisconsin, though, where the drug remains completely illegal. State Rep. Melissa Sargent, D-Madison, introduced a bill to legalize marijuana earlier this year, but the legislation stands little chance of becoming law.

September 15, 2014 in Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, September 4, 2014

"Legal pot, murky jobs: Marijuana laws put workers in tough spot"

The title of this post is the headline of this notable new USA Today article, which gets started this way:

Every time he goes to work, Harvard-trained lawyer Andrew Freedman faces federal prosecution thanks to the source of his paycheck: Colorado's burgeoning marijuana industry.

Freedman, the governor's chief marijuana adviser, faces prison time if federal prosecutors decide to step in.  That's because federal law still considers marijuana as dangerous as heroin or cocaine, and prosecutors could easily bring drug-trafficking charges if they choose. Freedman's salary is paid by the taxes collected on legal marijuana sales.  "I'm in murky territory every day," Freedman said.

He's not alone.  Tens of thousands of marijuana growers, bud tenders, edibles makers, store owners and couriers working in Colorado and Washington and any of the other 21 states and the District of Columbia that have legalized recreational or medical marijuana face the same penalties.

The risk is even greater for dozens of former cops and soldiers working as armed guards in the marijuana industry because federal drug-trafficking laws prescribe far stiffer penalties for anyone using a firearm while handling drugs and money.  Several of the guards interviewed by USA TODAY say they chose to work for Blue Line acknowledged the legal risks they're taking, but said it was safer than being shot at by insurgents or dealing with violent criminals daily.

So far federal prosecutors have held off bringing charges against security firms protecting and servicing the marijuana industry, even though they're aware of the flagrant violations.  USA TODAY in July published numerous photos of a Colorado-based security-firm workers carrying pot, cash and weapons -- photos federal agents and prosecutors confirm they saw.

The situation highlights the tenuous balance federal prosecutors strike as they monitor the sale of legalized marijuana.  Marijuana remains illegal at the federal level, even though voters in Colorado and Washington have allowed adults to possess and consume it for fun.  Federal officials say they're trying to balance state law while keeping pot out of the hands of kids and profits away from drug cartels.

Marijuana-industry workers acknowledge the risks they're taking, but say they're assuming federal prosecutors will leave them alone as long as they keep to the strictest interpretation of the state law.  "If you touch the product, then you're at risk for federal prosecution," said Michael Jerome, a spokesman for Blue Line Protection Group, which provides armed guards to transport marijuana and cash for pot-shop owners. "That's why we're trying to make it safe and legitimate and responsible, so we can respect the wishes of the voters of the state of Colorado and keep the federal government out of it."

September 4, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, August 22, 2014

"Come on vacation, leave on probation" says Idaho lawyer about state's pot policy

The quote in the title of this post is drawn from this new Businessweek article headlined "Marijuana Law Mayhem Splits U.S. as Travelers Get Busted."  Here is how the lengthy article gets started:

America is two nations when it comes to marijuana: in one it’s legal, in the other it’s not. The result is that people like B.J. Patel are going to jail.  The 34-year-old Arizona man may face a decade in prison and deportation following an arrest in 2012.  On a trip in a rented U-Haul to move his uncle from California to Ohio, he brought along some marijuana, which is legal for medicinal use in his home state.

Headed eastbound on I-44 through Oklahoma, Patel was stopped for failing to signal by Rogers County Deputy Quint Tucker, just outside Tulsa.  He was about to get off with a warning when Tucker spotted a medical marijuana card in his open wallet. “‘I see you have this card. Where’s the marijuana?’”  Patel recalled Tucker asking him. “I very politely and truthfully told him, ‘I’ll show you where it is.’”  That’s where things started to go bad for Patel.  He now faces trial next month on a felony charge.

Possessing pot for recreational use is legal in Washington and Colorado, and allowed for medicinal purposes in 23 states.  The other half of the country, which includes Oklahoma, largely prohibits any amount for any purpose.

While challenges may land the issue before the U.S. Supreme Court, what exists now is a legal checkerboard where unwitting motorists can change from law-abiding citizens to criminals as fast as they pass a state welcome sign.  The difference is especially clear in states like Idaho.  Surrounded on three sides by pot-friendly Washington, Oregon, Nevada and Montana, Idaho State Police seized three times as much marijuana this year as in all of 2011.

“The manner in which a person acquires the drug is not relevant,” Teresa Baker, an Idaho police spokeswoman, said.  “This is important to know for those who may purchase it legally elsewhere, believing that it will be overlooked.”  

James Siebe, a lawyer in Coeur d’Alene, put it another way: “Come on vacation, leave on probation.”

August 22, 2014 in Criminal justice developments and reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, July 17, 2014

Another notable House vote continues federal reform momentum

As reported in this AP piece, which is somewhat inaccurately headlined "House Votes to Allow Marijuana-Related Banking," last night brought another notable vote from the GOP-lead House of representatives concerning federal regulatory rules surrounding federal pot prohibition.  Here are the (somewhat complicated) details of the latest notable vote:

The House voted Wednesday in support of making it easier for banks to do business with legal pot shops and providers of medical marijuana. The 236-186 vote rejected a move by Rep. John Fleming, R-La., to block the Treasury Department from implementing guidance it issued in February telling banks how to report on their dealings with marijuana-related businesses without running afoul of federal money-laundering laws.

Marijuana dealing is still against federal law, so banks who do business with marijuana dispensaries could be accused of helping them launder their money. Federal money laundering convictions can mean decades in prison.

The Treasury guidance was intended to give banks confidence that they can deal with marijuana businesses in states where they're legal. Many banks are still reluctant to do so. That has forced many marijuana operations to stockpile cash, a situation that shop owners say is dangerous.

"They are operating just in cash, which creates its own potential for crime, robbery, assault and battery," said Rep. Ed Perlmutter, D-Colo., whose state has legalized recreational pot use. "You cannot track the money. There is skimming and tax evasion. So the guidance by the Justice Department and the guidance by the Treasury Department is to bring this out into the open."

The vote is largely symbolic since Treasury already had gone ahead with the guidance, but it demonstrates a loosening of anti-marijuana sentiment on Capitol Hill. "Whereas the federal government once stood in the way of marijuana reform at every opportunity, the changing politics of this issue are such that more politicians are now working to accommodate popular state laws so that they can be implemented effectively," said marijuana advocate Tom Angell.

A coalition of 46 mostly GOP moderates and libertarian-tilting Republicans joined with all but seven Democrats to beat back Fleming's attempt to block the Treasury guidance.

July 17, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (2)

Thursday, July 10, 2014

Massachusetts SJC holds marijuana smell insufficient to justify car search

As reported in this Boston Globe article, the Massachusetts "Supreme Judicial Court Wednesday said that because voters decriminalized small amounts of marijuana in 2008, police officers in Massachusetts can no longer rely on the odor of unburnt marijuana to justify searching a person’s car." Here is more:

In two unanimous rulings, the state’s highest court said they had already decided in 2011 that the odor of smoked marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles people are riding in.

The court said in its 2011 ruling that it would be legally inconsistent to allow police to make warrantless searches after they smell burning marijuana when citizens had decided through a statewide referendum question that law enforcement should “focus their attention elsewhere."

The court said Wednesday it was now extending the same reasoning to cases where the owner has not yet started smoking it. Marijuana, the court acknowledged, generates a pungent aroma, but an odor by itself does not allow police to determine whether a person has more than an ounce with them. Possession of an ounce or less of marijuana is not a crime.

“The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations," Justice Barbara Lenk wrote for the unanimous court.

“We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile."...

The court also rejected the argument from law enforcement that local police can use the odor of marijuana to stop someone because possession of marijuana is still an offense under federal law. “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search," Lenk wrote.

The full rulings from the Massachusetts Supreme Judicial Court are available here and here.

July 10, 2014 in Court Rulings, Criminal justice developments and reforms | Permalink | Comments (1)

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds' response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy.  But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Monday, June 2, 2014

"After 5 Months of Sales, Colorado Sees the Downside of a Legal High"

The title of this post is the headline of this lengthy recent article appearing in the New York Times.  As the headline suggests, the article documents glass-half-empty data and perspectives on Colorado's on-going experiment with marijuana legalization.  Here are excerpts:

Five months after Colorado became the first state to allow recreational marijuana sales, the battle over legalization is still raging. Law enforcement officers in Colorado and neighboring states, emergency room doctors and legalization opponents increasingly are highlighting a series of recent problems as cautionary lessons for other states flirting with loosening marijuana laws.

There is the Denver man who, hours after buying a package of marijuana-infused Karma Kandy from one of Colorado’s new recreational marijuana shops, began raving about the end of the world and then pulled a handgun from the family safe and killed his wife, the authorities say.  Some hospital officials say they are treating growing numbers of children and adults sickened by potent doses of edible marijuana.  Sheriffs in neighboring states complain about stoned drivers streaming out of Colorado and through their towns.

“I think, by any measure, the experience of Colorado has not been a good one unless you’re in the marijuana business,” said Kevin A. Sabet, executive director of Smart Approaches to Marijuana, which opposes legalization.  “We’ve seen lives damaged. We’ve seen deaths directly attributed to marijuana legalization. We’ve seen marijuana slipping through Colorado’s borders. We’ve seen marijuana getting into the hands of kids.”

Despite such anecdotes, there is scant hard data.  Because of the lag in reporting many health statistics, it may take years to know legal marijuana’s effect — if any — on teenage drug use, school expulsions or the number of fatal car crashes. It was only in January, for example, that the Colorado State Patrol began tracking the number of people pulled over for driving while stoned. Since then, marijuana-impaired drivers have made up about 1.5 percent of all citations for driving under the influence of drugs or alcohol.

Proponents of legalization argue that the critics s are cherry-picking anecdotes to tarnish a young industry that has been flourishing under intense scrutiny.  The vast majority of the state’s medical and recreational marijuana stores are living up to stringent state rules, they say.  The stores have sold marijuana to hundreds of thousands of customers without incident.  The industry has generated $12.6 million in taxes and fees so far, though the revenues have not matched some early projections.

Marijuana supporters note that violent crimes in Denver — where the bulk of Colorado’s pot retailers are — are down so far this year. The number of robberies from January through April fell by 4.8 percent from the same time in 2013, and assaults were down by 3.7 percent. Over all, crime in Denver is down by about 10 percent, though it is impossible to say whether changes to marijuana laws played any role in that decline....

The argument is being waged with fervor because both sides say Colorado’s successes and failures with regulating marijuana will shape perceptions of legalization for voters considering similar measures in other states and for leery federal law enforcement officials.  After the 2012 legalization votes in Colorado and Washington State — where recreational sales are expected to begin this summer — Justice Department officials gave the states a cautious green light. But they warned that they might intervene if marijuana ended up fueling violence or drug trafficking, or flowing across state lines or into the hands of children.

Marijuana opponents like Thomas J. Gorman of the Rocky Mountain High Intensity Drug Trafficking Area program, which helps law enforcement, say Colorado is already falling short of those standards.  “In any other state if they were making as much money and growing as much dope, they’d be taken out by the feds,” Mr. Gorman said.

Few agree on how much legally purchased marijuana is being secreted out of Colorado.  Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase in Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase inseizures of marijuana that could be traced to Colorado. But according to the Kansas Highway Patrol, total marijuana seizures fell to 1,090 pounds from 2,790 pounds during the first four months of the year, a 61 percent decline.

Some sheriffs and police chiefs along Colorado’s borders say they have noticed little change. But in Colby, Kan., which sits along an interstate highway running west to Colorado, Police Chief Ron Alexander said charges for sale, distribution or possession related to marijuana were rising fast.  This year, he tallied 20 such cases through May 23. Two years ago, there were six during that same time period.  Sheriff Adam Hayward of Deuel County, Neb., said he was locking up more people for marijuana-related offenses. “It’s kind of a free-for-all,” he said. “The state or the federal government needs to step up and do something.”...

Police and fire officials across the state have been contending with a sharp rise in home explosions, as people use flammable butane to make hashish oil.. And despite a galaxy of legal, regulated marijuana stores across the state, prosecutors say a dangerous illicit market persists....

Many of Colorado’s starkest problems with legal marijuana stem from pot-infused cookies, chocolates and other surprisingly potent edible treats that are especially popular with tourists and casual marijuana users. On Colorado’s northern plains, for example, a fourth grader showed up on the playground one day in April and sold some of his grandmother’s marijuana to three classmates.  The next day, one of those students returned the favor by bringing in a marijuana edible he had swiped from his own grandmother.  “This was kind of an unintended consequence of Colorado’s new law,” said John Gates, the district’s director of school safety and security. “For crying out loud, secure your weed. If you can legally possess it, that’s fine. But it has no place in an elementary school.”

So far this year, nine children have ended up at Children’s Hospital Colorado in Aurora after consuming marijuana, six of whom got critically sick.  In all of 2013, the hospital treated only eight such cases.

June 2, 2014 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)

Saturday, May 31, 2014

"Why Republicans are slowly embracing marijuana"

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

Marijuana is a political conundrum for the GOP, traditionally the stridently anti-drug, law and order party. More than half the voters in the country now live in states where medical marijuana is legal, in many cases as a result of ballot measures. The most recent poll by the Pew Research Center found most Americans think pot should be legal, a major shift from just a decade ago when voters opposed legalization by a 2-to-1 margin.

Most GOP stalwarts, of course, continue to rail against liberalization of the laws. Rep. Andy Harris of Maryland, a physician, declared during floor debate that medical marijuana is a sham. Real medicine, he said, “is not two joints a day, not a brownie here, a biscuit there. That is not modern medicine.”

But in a sign of how the times are changing, he found himself challenged by a colleague from his own caucus who is also a doctor. Rep. Paul Broun (R-Ga.) spoke passionately in favor of the bill. “It has very valid medical uses under direction of a doctor,” he said. “It is actually less dangerous than some narcotics prescribed by doctors all over the country.” Georgia is among the many states experimenting with medical marijuana. A state program there allows its limited use to treat children with severe epileptic seizures.

The rise of the tea party, meanwhile, has given an unforeseen boost to the legalization movement. Some of its more prominent members see the marijuana component of the War on Drugs as an overreach by the federal government, and a violation of the rights of more than two dozen states that have legalized cannabis or specific components of it for medical use.

Pro-marijuana groups have lately taken to boosting the campaigns of such Republicans, even those running against Democrats. A notable case is in the Sacramento region, where the Marijuana Policy Project recently announced it was endorsing Igor Birman, a tea partier seeking to knock out Democrat Ami Berra in a swing congressional district.

May 31, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, May 26, 2014

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

La-me-g-mendocino-potwebThe Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

May 26, 2014 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (3)

"Legalization Conflicts and Reliance Defenses"

The title of this post is the title of this notable new and timely paper by Mary Fan now available via SSRN.  Here is the abstract:

This article addresses an open question of pressing practical import – whether people and businesses operating in the shadow of a legalization conflict have a reliance defense.  A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime.  For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes and financial affairs around legalization laws and decrees.  If people take actions now in reliance, will they face sanctions later?  The question is of great import for many people and businesses, as well as the lawyers who advise them.

The article argues that reliance defenses should be available when governmental actors in charge of enforcing the criminal regime expressly acquiesce in the competing legalization.  In such cases, reliance is reasonable and estoppel is required lest people or businesses be lulled by the statements of actors charged with administering the law into a snare of sanctions.  Potential objections regarding privileging governmental lawlessness and the danger of giving people a normative choice of law that enables strategic gamesmanship are addressed.

May 26, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, April 29, 2014

This is your brain on drugs: what a recent fMRI study can and can’t tell us about the effects of marijuana use

Two weeks ago (okay, I'm late to the party), news broke of a new study showing that the brains of casual marijuana users are different than those of non-users. The study was just published in the Journal of Neuroscience and can be found here.

The researchers used magnetic resonance imaging (MRI) to scan the brains of 40 young adults aged 18-25. 20 of those subjects were casual marijuana users and 20 were non-users. Controlling for other behaviors such as alcohol and tobacco use, the researchers found that marijuana use was correlated with changes to the shape, size, and density of particular areas of the brain. From the study:

“The results of this study indicate that in young, recreational marijuana users, structural abnormalities in gray matter density, volume, and shape of the nucleus accumbens and amygdala can be observed. Pending confirmation in other cohorts of marijuana users, the present findings suggest that further study of marijuana effects are needed to help inform discussion about the legalization of marijuana.”

The study generated a lot of media coverage, and, unfortunately, over-statements of the study’s actual implications for ongoing policy debates. For example, the Society for Neuroscience issued a press release for the study. The release, while titled with appropriate caution (“Brain Changes are Associated with Casual Marijuana Use in Young Adults”), relays unsupported claims from scientists regarding the ramifications of the study. One of the authors, Hans Breiter, is quoted as saying ““This study raises a strong challenge to the idea that casual marijuana use isn’t associated with bad consequences.” And Carl Lupica, a researcher from the National Institute on Drug Abuse who was not involved with the study, similarly suggests that “This study suggests that even light to moderate recreational marijuana use can cause changes in brain anatomy.”  

The problem is that the study doesn’t necessarily support such conclusions. The study’s findings, while intriguing and valuable, are still quite limited. For one thing, the study will need to be replicated. The subject pool of 40 is rather small. That’s not reason enough to dismiss the study -- much brain science research relies on small n studies, because MRIs are cumbersome and expensive, and one can find statistically significant results with small pools – but it is reason to be particularly cautious about the results pre-replication.

Second, correlation doesn’t equal causation. Law policymakers commonly ignore this important scientific concept, but even scientists sometimes get ahead of themselves and jump to conclusions not warranted by a study’s design. In this study, for example, it is quite possible that people who use marijuana have differently sized and shaped brains to begin with; for example, maybe their brains are simply wired to seek out more risky behaviors and that’s why they’ve decided to use an illicit substance. Since we don’t know the size and shapes of these brains before they started using marijuana, we can’t say which came first: the marijuana usage or “the structural abnormalities in gray matter density, volume, and shape of the nucleus accumbens and amygdala.”

Third, even if the study’s results could be replicated and even if they could (somehow) demonstrate a causal connection between marijuana use and brain structure, it’s not clear from this study anyway why we should care. To be sure, different areas of the brain are associated with different functions and I wouldn't want to tinker with the size, shape, or density of my brain. But the study’s author’s can’t yet say that the changes they observe in brain structure necessarily cause negative changes in behavior.  For example, some studies suggest that the nucleus accumbens might play a role in drug addiction. But it’s not clear whether that changes observed in this study are associated with (let alone cause) marijuana addiction or any other bad behavioral outcomes; indeed, the authors made a point of excluding “dependent” marijuana users from the subject pool.

Law and neuroscience is a very promising field. It is generating intriguing findings concerning important issues like culpability. But as the best in this nascent field know, there is still much to be learned about the brain. This study is an intriguing development and clearly worthy of more follow ups. I think research on the brain cold help us understand marijuana’s effects and put them in perspective with those of alcohol, tobacco, cocaine, etc. But for now, bold statements about the import of brain science for policy debates over marijuana seem premature.

April 29, 2014 in Criminal justice developments and reforms, Current Affairs, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Science | Permalink | Comments (2)

Monday, April 21, 2014

Great New Orleans Times-Picayune op-ed on Louisiana drug sentencing

As I've blogged about a few times here, Louisiana has one of the nation's most unforgiving drug sentencing regimes and is particularly out of step when it comes to marijuana.  This past Friday, the New Orleans Time-Picayune editorial board ran this op-ed highlighting the problem and calling for reform.  The first few paragraphs follow:

Someone caught in Louisiana for the second time with a small amount of marijuana faces up to five years in jail and the possibility of hard labor. On a third or subsequent offense, the sentence can be 20 years with hard labor. These sorts of harsh penalties for marijuana possession and other non-violent crimes are one reason the state has the highest incarceration rate in the world.

 

There's a simple change that could make a significant difference.

 

Senate Bill 323 by Sens. J.P. Morrell and Robert Adley would make the penalty for possession of marijuana a fine of up to $100 and six months in jail on all offenses. The legislation would eliminate the enhanced penalties in current law for second and subsequent pot possession convictions.

 

That is a sensible reform the coalition behind the Smart on Crime legislative agenda says would save the state "millions of dollars in supervision and incarceration costs." It also would bring tremendous relief to thousands of families across Louisiana.

April 21, 2014 in Criminal justice developments and reforms | Permalink | Comments (0)

Friday, April 18, 2014

How might (rare?) tragedies linked to legal marijuana use impact reform developments?

The question in the title of this post is prompted by this recent AP story from Colorado  headlined "2 Denver deaths tied to recreational marijuana use."  Here are excerpts:

This week, two Denver deaths were linked to marijuana use, and while some details of the deaths have yet to emerge, they are the first ones on record to be associated with a once-illegal drug that Colorado voters legalized for recreational use last year.  One man jumped to his death after consuming a large amount of marijuana contained in a cookie, and in the other case, a man allegedly shot and killed his wife after eating marijuana candy.

Wyoming college student Levy Thamba Pongi, 19, jumped to his death at a Denver hotel on March 11 after eating more of a marijuana cookie than was recommended by a seller, police records show - a finding that comes amid increased concern about the strength of popular pot edibles after Colorado became the first state to legalize recreational marijuana.  Pongi consumed more than one cookie purchased by a friend - even though a store clerk told the friend to cut each cookie into six pieces and to eat just one piece at a time, said the reports obtained Thursday.

Pongi began shaking, screaming and throwing things around a hotel room before he jumped over a fourth-floor railing into the hotel lobby March 11.  An autopsy report listed marijuana intoxication as a "significant contributing factor" in the death....

In a separate case, a Denver man, Richard Kirk, 47, is accused of killing his wife, Kristine Kirk, 44, on Monday while she was on the phone with a 911 dispatcher. Police say he ate marijuana-infused candy and possibly took prescription pain medication before the attack, according to a search warrant affidavit released Thursday. The affidavit states that Kristine Kirk told the dispatcher her husband had ingested marijuana candy and was hallucinating.

She pleaded with dispatchers to hurry and send officers because her husband had asked her to get a gun and shoot him. She said she was "scared of what he might do." Richard Kirk could be heard in the background of the 911 call talking about the candy he bought from a pot dispensary earlier that night, and surveillance footage from the shop captured the transaction, police said.

A detective who interviewed him after the killing noted that he appeared to be under the influence of controlled substances based on his speech and inability to focus, according to the warrants. Blood samples will be tested to see whether he was on any other drugs or medications....

The cannabis industry tries to educate consumers about the potency of marijuana-infused foods. But despite the warnings - including waiting for up to an hour to feel any effects - complaints by visitors and first-time users have been rampant.

Investigators believe Pongi, a native of the Republic of Congo, and three friends from Northwest College in Powell, Wyo., traveled to Colorado on spring break to try marijuana. At their hotel, the group of four friends followed the seller's instructions. But when Pongi felt nothing after about 30 minutes, he ate an entire cookie, police said. Within an hour, he began speaking erratically in French, shaking, screaming and throwing things around the hotel room. At one point he appeared to talk to a lamp....Pongi's friends tried to restrain him before he left the room and jumped to his death, police said.

One of his friends told investigators it may have been his first time using the drug - the only one toxicology tests found in his system. All three friends said they did not purchase or take any other drugs during their stay.

The marijuana concentration in Pongi's blood was 7.2 nanograms of active THC per milliliter of blood. Colorado law says juries can assume someone is driving while impaired if their blood contains more than 5 nanograms per milliliter.

In the days that followed the death of Pongi, Denver police confiscated the remaining cookies from the pot shop to test their levels of THC. The wrapper of the cookies bought by the students said each contained 65 mg of THC for 6 1/2 servings. Tests showed the cookies were within the required THC limits, police said. "The thing to realize is the THC that is present in edibles is a drug like any drug, and there's a spectrum of ways in which people respond," said Michael Kosnett, a medical toxicologist on the clinical faculty at the University of Colorado School of Medicine.

April 18, 2014 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (7)

Friday, April 4, 2014

If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?

The question in the title of this post is my sincere inquiry, directed particularly to those most concerned about modern marijuana reform movements, as a follow-up to this extended (data-focused) commentary by Jacob Sollum at Forbes headlined "More Pot, Safer Roads: Marijuana Legalization Could Bring Unexpected Benefits." Here are excerpts (with key research links retained):

The anti-pot group Project SAM claims drug test data show that marijuana legalization in Washington, approved by voters in that state at the end of 2012, already has made the roads more dangerous. The group notes with alarm that the percentage of people arrested for driving under the influence of a drug (DUID) who tested positive for marijuana rose by a third between 2012 and 2013. “Even before the first marijuana store opens in Washington, normalization and acceptance [have] set in,” says Project SAM Chairman Patrick J. Kennedy. “This is a wakeup call for officials and the public about the dangerousness of this drug, especially when driving.”

In truth, these numbers do not tell us anything about the dangerousness of marijuana. They do not even necessarily mean that more people are driving while high. Furthermore, other evidence suggests that legalizing marijuana could make the roads safer, reducing traffic fatalities by encouraging the substitution of marijuana for alcohol....

According to State Toxicologist Fiona Couper, the share of DUID arrestees in Washington whose blood tested positive for THC, marijuana’s main psychoactive ingredient, rose from 18.6 percent in 2012 to 24.9 percent in 2013.  That’s an increase of more than 33 percent, as Project SAM emphasizes with a scary-looking bar graph. At the same time, the total number of DUID arrests in Washington rose by just 3 percent, about the same as the increases seen in the previous three years, while DUID arrests by state troopers (see table below) fell 16 percent.

These numbers do not suggest that Washington’s highways are awash with dangerously stoned drivers. So why the substantial increase in positive marijuana tests?  Lt. Rob Sharpe, commander of the Washington State Patrol’s Impaired Driving Section, notes that additional officers were trained to recognize drugged drivers in anticipation of marijuana legalization. So even if the number of stoned drivers remained the same, police may have pulled over more of them as a result of that training....

As Columbia University researchers Guohua Li and Joanne E. Brady pointed out a few months ago in the American Journal of Epidemiology, [a recent] increase in marijuana consumption has been accompanied by an increase in the percentage of drivers killed in car crashes who test positive for cannabinol, a marijuana metabolite.

But as with the increase in DUID arrestees who test positive for THC, this trend does not necessarily mean marijuana is causing more crashes.  A test for cannabinol, which is not psychoactive and can be detected in blood for up to a week after use, does not show the driver was under the influence of marijuana at the time of the crash, let alone that he was responsible for it. “Thus,” Li and Brady write, “the prevalence of nonalcohol drugs reported in this study should be interpreted as an indicator of drug use, not necessarily a measurement of drug impairment.”

Another reason to doubt the premise that more pot smoking means more deadly crashes: Total traffic fatalities have fallen as marijuana consumption has risen; there were about 20 percent fewer in 2012 than in 2002.  Perhaps fatalities would have fallen faster if it weren’t for all those new pot smokers.  But there is reason to believe the opposite may be true, that there would have been more fatalities if marijuana consumption had remained level or declined.

While marijuana can impair driving ability, it has a less dramatic impact than alcohol does. A 1993 report from the National Highway Traffic Safety Administration, for example, concluded: “The impairment [from marijuana] manifests itself mainly in the ability to maintain a lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol.  Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort.  As a consequence, THC’s adverse effects on driving performance appear relatively small.”  Similarly, a 2000 report commissioned by the British government found that “the severe effects of alcohol on the higher cognitive processes of driving are likely to make this more of a hazard, particularly at higher blood alcohol levels.”

Given these differences, it stands to reason that if more pot smoking is accompanied by less drinking, the upshot could be fewer traffic fatalities. Consistent with that hypothesis, a study published last year in the Journal of Law and Economics found that legalization of medical marijuana is associated with an 8-to-11-percent drop in traffic fatalities, beyond what would be expected based on national trends.  Montana State University economist D. Mark Anderson and his colleagues found that the reduction in alcohol-related accidents was especially clear, as you would expect if loosening restrictions on marijuana led to less drinking. They also cite evidence that alcohol consumption declined in states with medical marijuana laws.

Anderson et al. caution that the drop in deadly crashes might be due to differences in the settings where marijuana and alcohol are consumed. If people are more likely to consume marijuana at home, that could mean less driving under the influence.  Hence “the negative relationship between legalization and alcohol-related fatalities does not necessarily imply that driving under the influence of marijuana is safer than driving under the influence of alcohol,” although that is what experiments with both drugs indicate.

Arrest data from Washington are consistent with the idea that marijuana legalization could result in less drunk driving. Last year drunk driving arrests by state troopers fell 11 percent. By comparison, the number of drunk driving arrests fell by 2 percent between 2009 and 2010, stayed about the same between 2010 and 2011, and fell by 6 percent between 2011 and 2012. The drop in drunk driving arrests after marijuana legalization looks unusually large, although it should be interpreted with caution, since the number of arrests is partly a function of enforcement levels, which depend on funding and staffing.

Two authors of the Journal of Law and Economics study, Anderson and University of Colorado at Denver economist Daniel Rees, broadened their analysis in a 2013 article published by the Journal of Policy Analysis and Management. Anderson and Rees argue that marijuana legalization is apt, on balance, to produce “public health benefits,” mainly because of a reduction in alcohol consumption. Their projection hinges on the premise that marijuana and alcohol are substitutes. If marijuana and alcohol are instead complements, meaning that more pot smoking is accompanied by more drinking, the benefits they predict would not materialize.  Anderson and Rees say “studies based on clearly defined natural experiments generally support the hypothesis that marijuana and alcohol are substitutes.”  But in the same issue of the Journal of Policy Analysis and Management, Rosalie Liccardo Pacula, co-director of the RAND Corporation’s Drug Policy Research Center, and University of South Carolina criminologist Eric Sevigny conclude that the evidence on this point “remains mixed.”

study published last month by the online journal PLOS One suggests that the substitution of marijuana for alcohol, assuming it happens, could affect crime rates as well as car crashes. Robert G. Morris and three other University of Texas at Dallas criminologists looked at trends in homicide, rape, robbery, assault, burglary, larceny, and auto theft in the 11 states that legalized marijuana for medical use between 1990 and 2006. While crime fell nationwide during this period, it fell more sharply in the medical marijuana states, even after the researchers adjusted for various other differences between states. Morris and his colleagues conclude that legalization of medical marijuana “may be related to reductions in rates of homicide and assault,” possibly because of a decline in drinking, although they caution that the extra drop in crime could be due to a variable they did not consider.

One needs to be very cautious, of course, drawing any firm conclusions based on any early research about impaired driving, car crashes, and marijuana reform. But let's imagine it does turn out generally true that legalizing medical marijuana helps produce a 10% drop in a jurisdiction's traffic fatalities. If extended nationwide throughout the US, where we have well over 30,000 traffic fatalities each and every year, this would mean we could potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. (One might contrast this number with debated research and claims made about the number of lives possibly saved by the death penalty: I do not believe I have seen any research from even ardent death penalty supporters to support the assertion that even much more robust use of the death penalty in the US would be likely to save even 1000 innocent lives each year.)

Obviously, many people can and many people surely would question and contest a claim that we could or would potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. But, for purposes of debate and discussion (and to know just how important additional research in this arena might be to on-going pot reform debates), I sincerely wonder if anyone would still actively oppose medical marijuana reform if (and when?) we continue to see compelling data that such reform might save over 50 innocent lives each and every week throughout the United States.

Cross-posted at Marijuana Law, Policy and Reform

April 4, 2014 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, March 31, 2014

New Jersey State Municipal Prosecutors Association endorses marijuana legalization

A helpful reader alerted me to this notable article from the Asbury Park Press, headlined "It's high time to legalize pot, N.J. prosecutors say." Here is how it starts:

Proponents of legalizing marijuana in New Jersey received a boost from an unlikely source — the very people who prosecute pot users. The New Jersey State Municipal Prosecutors Association in Hamilton, N.J., has come out in favor of legalizing possession of marijuana. The support of the prosecutors association comes as two bills were introduced this month in the New Jersey State Legislature and as polls show a majority of Americans favor legalization.

One of the bills, introduced March 10, calls for a referendum asking voters to legalize the possession of an ounce or less of marijuana. Assemblymen Reed Gusciora, a Democrat from Trenton, N.J., who also is municipal prosecutor in Lawrence Township, N.J., and Michael Patrick Carroll, a Republican from Morris Township, N.J., are its sponsors.

"If it were up to me, I would make all quantities legal," Carroll said. "Why should the government be in the business of criminalizing marijuana? All it does is create administrative Al Capones and puts the power in the hands of gangsters." From the government's perspective, Carroll said legalizing marijuana would be a huge benefit. Government could save money by hiring fewer police and parole officers. Carroll also noted that getting an arrest record has ruined many people's careers.

On March 24, Sen. Nicholas Scutari, a Democrat from Linden, N.J., who also is municipal prosecutor there, introduced another bill. Scutari's bill does not call for a referendum. Instead it would legalize the cultivation, sale and possession of marijuana; set up an agency to oversee the industry; and then funnel the sales tax revenue to the state Transportation Trust Fund, drug prevention and enforcement efforts and women's health programs....

The board of trustees of the municipal prosecutors association voted Feb. 21 to endorse legalization, said its president, Jon-Henry Barr, who is municipal prosecutor in Kenilworth and Clark Township, N.J. "The board was not unanimous, but a clear majority of municipal prosecutors favor the idea," Barr said.

Of the 10 members of the board of trustees, seven were in favor of legalization, Barr said. Two members were opposed to legalization, and one member of the board abstained from voting, Barr said. He said the association is made up of 150 prosecutors. Among the reasons the municipal prosecutors favor legalization is the damage a prosecution for marijuana possession has on a person's reputation and the growing acceptance among Americans that marijuana should not be criminalized, Barr said....

"The time has come to understand that this particular offense makes about as much sense as prohibition of alcohol did," Barr said. "It is time to stop the insanity." Barr said prosecutors are spending time prosecuting marijuana cases when they could be attacking more pressing problems.

Some municipal prosecutors were unaware of the association's position on marijuana, and not all agree with it. "I was not at the meeting," Municipal Prosecutor Bonnie Peterson said. She is prosecutor in Seaside Park, Ship Bottom and Harvey Cedars, three communities on the Jersey Shore. "They sent an e-mail. I was surprised. ... I would find it very hard to believe the municipal prosecutors association would come out with a blanket endorsement of legalization of marijuana."... Steve Rubin, prosecutor in Long Branch and West Long Branch, N.J., was one of the municipal prosecutors association's board of trustees who voted to endorse legalization. Still, he said he has some concerns, especially during a transition to legalization. He said he fears some marijuana trade would remain in the hands of criminals. "There still are people who are bookmakers," Rubin said. "We thought they would have been eliminated with OTB (off-track betting) and the lottery."

But Rubin said legalization would eliminate many of the court cases he has to present. "I would no longer have to prosecute a bunch of 18-year-olds who went to a frat party," Rubin said.

March 31, 2014 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, March 20, 2014

ACLU of Washington State reports drop in low-level marijuana offense court filings after legalization initiative

As detailed in this press release, the ACLU of Washington State has some new data on one criminal justice reality dramtically impacted by marijuana reform.  Here are the details:

Passed by Washington voters on November 6, 2012, Initiative 502 legalized marijuana possession for adults age 21 and over when it went into effect 30 days later.  New data show the law is having a dramatic effect on prosecutions for misdemeanor marijuana possession offenses in Washington courts.  The ACLU of Washington’s analysis of court data, provided by the Administrative Office of the Courts, reveals that filings for low-level marijuana offenses have precipitously decreased from 2009 to 2013:

• 2009 – 7964
• 2010 – 6743
• 2011 – 6879
• 2012 – 5531
• 2013 – 120

“The data strongly suggest that I-502 has achieved one of its primary goals – to free up limited police and prosecutorial resources. These resources can now be used for other important public safety concerns,” says Mark Cooke, Criminal Justice Policy Counsel for the ACLU of Washington....

Although the overall number of low-level marijuana offenses for people age 21 and over has decreased significantly, it appears that racial bias still exists in the system. An African American adult is still about three times more likely to have a low-level marijuana offense filed against him or her than a white adult.

Initiative 502 legalized possession of up to one ounce of marijuana for adults 21 and over. However, possession of more than an ounce, but no more than 40 grams, remains a misdemeanor. Exceeding the one-ounce threshold is a likely explanation for the presence of 120 misdemeanor filings against adults in 2013.

Cross posted (with some added commentary) at Sentencing Law & Policy

March 20, 2014 in Criminal justice developments and reforms | Permalink | Comments (1)

Saturday, March 8, 2014

Race, marijuana enforcement and legalization

The Drug Policy Alliance hosted a call with Michelle Alexander, author of the New Jim Crow earlier this week.  With respect to marijuana enforcement and legalization, Alexander noted an interesting and unsettling dynamic: though the criminalization of marijuana has disproportionately impacted people of color, it seems the emerging marijuana industry is largely white.  

“When I see images of people using marijuana and images of people who are now trying to run legitimate marijuana businesses, they’re almost all white," she said, noting she supports legalizing pot.

 

“After 40 years of impoverished black men getting prison time for selling weed, white men are planning to get rich doing the same things," she added. "So that’s why I think we have to start talking about reparations for the war on drugs. How do we repair the harms caused?"

You can listen to the call in its entirety here.  

I'm not aware of any data on ethnicity and marijuana businesses.  But I think this is an issue well worth tracking.  I will be especially curious to see if data emerges on race and marijuana license applications and outcomes.  

To the extent that marijuana legalization laws limit people with criminal records from obtaining a license, it may unintentionally cement racial disparity in the legal market.  Though there are clear political and policy reasons for criminal history license exclusions, we know that people of color are far more likely to be arrested and prosecuted for drug crimes than whites.  As a result, a white illegal marijuana grower or dealer may be less likely to have a record and more likely to be eligible to get a license (so he or she can move into the legitimate market) than a similarly situated person of color.  

Of course, the impact depends on what sort of criminal history results in an exclusion.  For example, Washington State's point system--which excludes anyone with a felony conviction within the past 10 years--seems likely apply to most drug sale convicts, since trafficking crimes like sale and possession for sale are usually classified as felonies.  However, the regulation does state that if a person has a single prior conviction involving marijuana that may be considered "for mitigation on an individual basis" .  

In any event, I think this dynamic is something drafters of reform laws and the regulators that implement them should be attuned to.  If formerly illegal white dealers and growers are able to get licenses in legalization states (because they have avoided criminal convictions) while people of color are shut out, it is certainly a cause for concern.

March 8, 2014 in Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, March 4, 2014

"Immigration Law in the Age of Marijuana Decriminalization"

The title of this post is the title of this new post by Jordan Cunnings at the blog crImmigration.com.  The full post is worth a read, and here is how it starts:  

In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington.

While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his administration’s consistently harsh enforcement efforts in the area of marijuana use and immigration. While marijuana use is legal in one form or another in twenty states and the District of Columbia, and banks now have the green light from the Treasury Department to finance legally operating marijuana dispensaries, noncitizens remain at risk for incredibly harsh and disproportionate immigration consequences when using small amounts of marijuana. Low-level marijuana charges often funnel noncitizens into the immigration law system, prevent otherwise-eligible noncitizens from obtaining lawful immigration status, and subject lawfully present noncitizens to deportation. Worse yet, marijuana laws are disproportionately enforced in poor and minority communities—as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests may disproportionately impact the people of color who make up the bulk of today’s immigrant groups.

Though recent prosecutorial discretion memos by the former head of the Immigration and Customs Enforcement (ICE) agency John Morton purport to refocus enforcement priorities away from individuals who have only minor criminal histories, immigration law enforcement statistics from the past two years show that this policy is not being followed. Marijuana laws are disproportionately enforced in poor and minority communities – as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do” — meaning that marijuana citations and arrests often serve as entry point into the criminal justice system and then the deportation system. A Transactional Records Access Clearinghouse (TRAC) review of ICE documents from fiscal years 2012 and 2013 found that marijuana possession was one of the top five most common offenses for which ICE issued immigration detainers against individuals. This means that thousands of noncitizens are funneled into ICE custody after being charged with low-level marijuana possession offenses. 

March 4, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, International Marijuana Laws and Policies | Permalink | Comments (1)

Tuesday, February 18, 2014

Using Banks to Police the Marjiuana Industry

As I noted Friday, the Treasury Department just issued new guidance designed to make it easier for banks to serve state-authorized marijuana businesses. In a less-noticed move, the DOJ also issued new guidance urging federal prosecutors not to pursue financial crimes charges against marijuana businesses outside of the circumstances outlined in its August 2013 memo regarding drug crimes. The Treasury guidance and new DOJ memo can be found here.

Banks have long refused to serve the marijuana industry, citing, among other reasons, federal statutes that criminalize financial transactions involving proceeds of illegal activity, including marijuana sales. Sam Kamin and Joel Warner discuss the banking issue here.

Now, I doubt this new guidance will convince many banks to serve the marijuana industry. Among other things, and as I explained in a paper critical of the DOJ’s first marijuana enforcement guidelines (the 2009 Ogden memorandum), such guidance does not shield banks from all of the relevant federal sanctions that serving marijuana businesses might trigger.

But if banks DO end up serving marijuana businesses, it might give a boost to state and federal efforts to police the marijuana industry. In particular, banks could help government officials determine whether the marijuana industry is violating state law and / or engaging in behavior that would justify federal legal action under those 2013 DOJ enforcement guidelines (e.g., selling to minors).

Here’s how. Federal law requires banks to monitor and report on the financial transactions of their clients. Under federal law, for example, banks are required to file “Suspicious Activity Reports” anytime they know, suspect, or have reason to suspect a client is engaging in a financial transaction involving proceeds of illegal activity. The government then uses these SARs to investigate and prosecute federal crimes committed by the clients.

Importantly, the bulk of the new Treasury guidance is actually devoted to reaffirming and clarifying the duty of banks to file SARs on clients engaged in the marijuana industry. It makes abundantly clear that a “financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) . . .  if, consistent with FinCEN regulations, the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution . . . involves funds derived from illegal activity.” (emphasis added)

To be sure, the reporting requirement could simply overwhelm government agents, since every transaction involving a marijuana business might trigger a new report. Indeed, federal agents are already deluged with SARs; in 2009, for example, banks submitted more than 700,000 SARs (banks in Colorado and Washington submitted more than 17,000 SARs), far too many for the government to investigate them all.

But the new Treasury guidance instructs banks to distinguish between good and bad marijuana businesses. Namely, if a bank believes a marijuana business is abiding state law and avoiding activities the federal government considers objectionable (e.g., selling across state lines), the bank may file an abbreviated SAR, simply by writing “MARIJUANA LIMITED” in the notations section of the report. But if the bank believes the business is flouting state law or engaging in one of those objectionable activities, it is supposed to file more detailed SAR, writing “MARIJUANA PRIORITY” in the notations section and explaining why the bank believes the business deserves closer scrutiny.

The information provided on these SARs could greatly enhance the efforts of federal and state enforcement agencies to police the marijuana industry. Banks won’t necessarily have perfect information about their clients, but they will often possess information that government agencies cannot realistically gather on their own. Indeed, as I’ve discussed at length elsewhere, governments commonly use private parties to gather information they need to enforce their regulations; e.g., without the W-2s filed by employers, the IRS would struggle (mightily) to collect individual income taxes. And requiring banks to further distinguish between law-abiding and law-shirking marijuana business greatly enhances the utility of this information for government agencies.

Knowing that banks will share information with the federal government could have a powerful deterrent effect on marijuana businesses. These businesses need bank services – try operating any business without a checking account, for example. But if they misbehave, banks will shun them, or worse yet, report their misbehavior to the feds. To be sure, some misbehaving businesses will simply avoid the banks altogether. But those businesses will be put at a serious competitive disadvantage vis a vis their more law abiding rivals.

In sum, if the guidance works (a big if), marijuana businesses will get access to banking services; banks will expand their market; and government agencies will get a new watchdog to help police the marijuana industry.  Looks like a win win win.

February 18, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Could marijuana reforms end up making our roadways much safer?

The question in the title of this post might be a bit of foolish wishful thinking on my part, but these passages from this notable new New York Times article provides the foundation for my (undue?) optimism:

[S]cience’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public.  “Our goal is to put out the science and have it used for evidence-based drug policy,” said Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse.  “But I think it’s a mishmash.”

A 2007 study found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking.  (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.)  Six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability.  Some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.

“We’ve done phone surveys, and we’re hearing that a lot of people think D.U.I. laws don’t apply to marijuana,” said Glenn Davis, highway safety manager at the Department of Transportation in Colorado, where recreational marijuana use became legal on Jan. 1. “And there’s always somebody who says, ‘I drive better while high.’ ”

Evidence suggests that is not the case. But it also suggests that we may not have as much to fear from stoned driving as from drunken driving.  Some researchers say that limited resources are better applied to continuing to reduce drunken driving.  Stoned driving, they say, is simply less dangerous.

Still, it is clear that marijuana use causes deficits that affect driving ability, Dr. Huestis said.  She noted that several researchers, working independently of one another, have come up with the same estimate: a twofold increase in the risk of an accident if there is any measurable amount of THC in the bloodstream....

The estimate is low, however, compared with the dangers of drunken driving. A recent study of federal crash data found that 20-year-old drivers with a blood-alcohol content of 0.08 percent — the legal limit for driving — had an almost 20-fold increase in the risk of a fatal accident compared with sober drivers. For older adults, up to age 34, the increase was ninefold.

The study’s lead author, Eduardo Romano, a senior research scientist at the Pacific Institute for Research and Evaluation, said that once he adjusted for demographics and the presence of alcohol, marijuana did not statistically increase the risk of a crash. “Despite our results, I still think that marijuana contributes to crash risk,” he said, “only that its contribution is not as important as it was expected.”

The difference in risk between marijuana and alcohol can probably be explained by two things, Dr. Huestis and Dr. Romano both say. First, stoned drivers drive differently from drunken ones, and they have different deficits. Drunken drivers tend to drive faster than normal and to overestimate their skills, studies have shown; the opposite is true for stoned drivers. “The joke with that is Cheech and Chong being arrested for doing 20 on the freeway,” said Mark A. R. Kleiman, a professor of public policy at the U.C.L.A. School of Public Affairs....

Another factor is location. A lot of drinking is done in bars and clubs, away from home, with patrons driving to get there and then leaving by car. By contrast, marijuana smokers tend to get high at home....

All of these facts lead experts like Dr. Romano and Dr. Kleiman to believe that public resources are better spent combating drunken driving. Stoned driving, they say, is best dealt with by discouraging people from mixing marijuana and alcohol — a combination that is even riskier than alcohol alone — and by policies that minimize marijuana’s risk on the road.

For instance, states that legalize recreational marijuana, Dr. Kleiman said, should ban establishments like pot bars that encourage people to smoke away from home. And Dr. Romano said that lowering the legal blood-alcohol concentration, or B.A.C., to 0.05 or even 0.02 percent would reduce risk far more effectively than any effort to curb stoned driving. “I’m not saying marijuana is safe,” he said. “But to me it’s clear that lowering the B.A.C. should be our top priority. That policy would save more lives.”

My supposition based on this article that marijuana reforms could end up making our roadways much safer is a result of two potential impacts of ending pot prohibition: (1) if marijuana reform leads a number of people who would generally go get drunk at a bar to instead now just get stoned at home, the net effect will be safer roads, and (2) if enduring concerns about the impact of marijuana reform leads more policy-makers to focus on highway harms, we might see a greater effort to get much tougher on the enduring public safety disaster that is drinking and driving.

I am not expecting that we will get strong evidence that marijuana reforms end up making our roadways much safer anytime soon, but I am hopeful that researchers like Dr. Romano and Dr. Kleiman continue to stress that our modern alcohol policies and practices now impact highway safety much more than any marijuana reforms are likely to do. And, as these related recent articles also highlight, the media so far is doing a pretty good job defusing the risk of misguided reefer madness when it comes to driving under the influence:

February 18, 2014 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)