Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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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 (0)

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)

Monday, February 17, 2014

Is 13 years for possession of a small amount of marijuana constitutionally excessive?

As Doug has blogged about before, reforms and changing attitudes about marijuana laws raise the question of whether long sentences for small-time marijuana offenders may violate the Eighth Amendment.  

Last Friday, a Lousiana appeals court considered this question, upholding a 13 1/3 year sentence for (.pdf) "possession of a small amount of marijuana."  

The defendant's conviction was his fourth for marijuana possession, apparently warranting a mandatory minimum 13 1/3 year sentence under Louisiana's Habitual Offender Law.  At first, the trial court departed from the mandatory minimum and imposed a (still very lengthy) five-year sentence.  The intermediate appeals court upheld the sentence but the Lousiana Supreme Court reversed and vacated the five-year sentence.  On remand, the trial court reluctantly sentenced the defendant to 13 1/3 years.

On appeal, the defendant argued that a 13 year sentence for marijuana possession was constitutionally excessive.  The appeals court disagreed, seemingly finding itself constrained by the prior state Supreme Court ruling:

Although both trial judges clearly found that the mandatory minimum sentence in this case (thirteen and a half years) is grossly disproportionate to the crime in this case (possession of two marijuana cigarettes), particularly when compared to other jurisdictions,1 at the resentencing hearing the trial judge was unable to articulate additional reasons beyond those already found insufficient by the Louisiana Supreme Court to support a downward departure in this case. 

The decision included a concurrence (.pdf), expressing concern about the long sentence:

The facts in this case are simple. The middle-aged defendant has no history of violence. He has an excellent work history and record of supporting his seven children. The trial judge reluctantly imposed the draconian (as it applies to this defendant and this offense) sentence mandated by the multiple offender statute. I point out (as did the trial judge at the resentencing hearing) that the per curiam issued in this case by the Louisiana Supreme Court implicitly ignored or overruled its own precedent in Dorthey, supra, thus leaving this court and the trial court without guidance as to what, if anything, remains of the discretionary authority of the trial and intermediate appellate courts to determine whether a sentence is constitutionally excessive as to a particular defendant or whether such judicial authority is now totally subsumed by the state’s discretionary authority to multiple bill a defendant.

 

This is not to say that I approve of the use or distribution of marijuana, but, like the majority notes, the crimes of which Mr. Noble has been convicted have been related to harm that he primarily and directly has caused to himself.

 

In my view, this is not the case that our courts should be using as the poster child for harsh sentencing. 

For more on Lousiana's harsh approach to marijuana sentencing, see here and here.

February 17, 2014 in Court Rulings, Criminal justice developments and reforms | Permalink | Comments (0)

Monday, February 10, 2014

State-by-state: present and possible future state marijuana reforms

With so many medical marijuana state laws and a wave of new proposals, it can be difficult to follow them all.  Luckily, last week saw the release of two guides to help you keep track.

The Marijuana Policy Project has released an update to its state-by-state guide to marijuana laws.

And, for the reforms on the horizon, John Ross of Reason.com has posted "a 50-state guide to legislation and ballot measures that are in the works thus far this year."

February 10, 2014 in Criminal justice developments and reforms, Current Affairs, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, January 31, 2014

Clemency for federal medical marijuana offenders?

As Doug has been following at Sentencing Law and Policy, earlier this week Deputy Attorney General James Cole called on attorneys to help bring more drug clemency applicaitons before the administration.  

The comments seem targeted primarily at federal inmates serving mandatory minimum drug sentences--particularly crack offenders sentenced before the 2010 Fair Sentencing Act.  But another area immediately comes to mind: federal medical marijuana inmates.  

Americans for Safe Access (on whose board I serve) has an online petition up urging the President to grant clemency to federal medical marijuana offenders--medical marijuana caregivers who were acting in compliance with their state's law but were subjected to federal prosecutions.  Hopefully the administration will give serious consideration to this group as it considers drug clemency applications.    

January 31, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Tuesday, January 21, 2014

Can President Obama single-handedly legalize marijuana?

This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.

The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.

Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.

I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.

Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers.  In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on.  In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today.  Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.

As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.

Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law.  There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.

It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.

In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.   

January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, January 16, 2014

Sincere marijuana reform question: exactly what are DEA officials "scared" of?

The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level."  Here is the context:

The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.

“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan.  “Every part of the world where this has been tried, it has failed time and time again.”

Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....

Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay.  “There are more dispensaries in Denver than there are Starbucks,” he said.  “The idea somehow people in our country have that this is somehow good for us as a nation is wrong.  It’s a bad thing.”

Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...

Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said.  “It’s going to cost us in terms of social costs.”

Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.

That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere.  Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual.  Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."

This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States.  The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming.  These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.

It is quite possible, as the DEA official suggests, that "this is a bad experiment."  But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared."  More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:

  • roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;

  • roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.

I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal.  But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments.  Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.

But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will.  But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.

I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.

January 16, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)

Sunday, January 12, 2014

Notable new data showing pot arrests way down in Colorado after reforms

This new Denver Post article, headlined "Marijuana case filings plummet in Colorado following legalization," spotlights one notable criminal justice metric that has been dramatically impacted by legal developments in the Centennial State. Here are some details:

Charges for all manner of marijuana crimes plummeted in the months after Colorado voters legalized limited possession of cannabis for people over 21.

According to a Denver Post analysis of data provided by the Colorado Judicial Branch, the number of cases filed in state court alleging at least one marijuana offense plunged 77 percent between 2012 and 2013.  The decline is most notable for charges of petty marijuana possession, which dropped from an average of 714 per month during the first nine months of 2012 to 133 per month during the same period in 2013 — a decline of 81 percent.

That may have been expected — after all, people over 21 can now legally possess up to an ounce of marijuana. But The Post's analysis shows state prosecutors also pursued far fewer cases for marijuana crimes that remain illegal in Colorado. For instance, charges for possessing more than 12 ounces of marijuana dropped by 73 percent, and cases alleging possession with intent to distribute fewer than 5 pounds of marijuana dipped by 70 percent. Even charges for public consumption of marijuana fell statewide, by 17 percent, although Denver police have increased their number of citations issued for public consumption.

While marijuana prosecutions against people over 21 declined, so did prosecutions against people under 21, for whom all marijuana possession remains illegal except for medical marijuana patients.

Colorado Attorney General John Suthers said he thinks the drop in cases may be due to police not wanting to parse the complexities of the state's marijuana law. "I think they've kind of thrown their arms up in the air," he said.

Marijuana advocates, meanwhile, praised the drop in prosecutions — even for things that remain illegal under state law — because it lessens what they say is the racially biased impact of marijuana enforcement. A report last year from the American Civil Liberties Union found that blacks in Colorado were arrested for marijuana crimes at a rate nearly double that of whites. Overall, the report found arrests for marijuana possession in 2010 made up more than 60 percent of all drug-offense arrests.

"We're talking about not only saving the state time and money," said Art Way, a policy manager in Colorado for the Drug Policy Alliance, a supporter of legalization, "but we're no longer criminalizing primarily young adults, black and brown males primarily, with the collateral consequences of a drug charge."

The Post's analysis is not a comprehensive look at marijuana prosecutions in Colorado because prosecutors can also file cases in municipal courts, which aren't tracked by the data provided. Even though Colorado voters partially legalized marijuana for adults in 2012, there are still numerous marijuana crimes on the books. Possession of more than an ounce, cultivation of more than six plants and sales without a special state license all remain illegal and can be punished.

But Tom Raynes, the executive director of the Colorado District Attorneys Council, said the state's new marijuana laws are likely making it tougher for police to crack down on the remaining marijuana crimes. Because some marijuana possession and use is now legal, Raynes said that means police are no longer allowed to investigate in depth purely because they smell pot. "Just because your car smells like marijuana doesn't give an officer enough probable cause to initiate an arrest or a search," Raynes said....

[T]here is no evidence so far that Colorado's new laws on marijuana have resulted in a dramatic reduction in caseloads for prosecutors or police. Denver police, for instance, recorded only 3 percent fewer arrests for any crime in the first 11 months of 2013 when compared with the first 11 months of 2012.

What also appears relatively unchanged is the treatment of petty marijuana-possession charges: It is far more likely that those charges will be dismissed by either a judge or a prosecutor than it is the charges will result in a finding of guilty for the defendant, according to the data. For the charges filed in September 2012, 79 percent were ultimately dismissed. In September 2013, it was 84 percent.

But Raynes said those similarities belie the uncertainty police and prosecutors now feel when approaching marijuana cases. "With small quantities especially," he said, "I think law enforcement feels like they don't know which way to turn."

Though I obviously cannot speak for the blue line on the ground in Colorado, it seems to me that these data show law enforcement in the state knows exactly which way to turn: away from wasting time and energy and other scarce law enforcement resources on low-level marijuana matters and instead focusing more time and energy and other scarce law enforcement resources on more serious and harmful matters.

January 12, 2014 in Criminal justice developments and reforms, Recreational Marijuana Data and Research | Permalink | Comments (1)

Monday, December 2, 2013

Great state government summer job for teens(?): trying to buy pot illegally in Washington

One oft-heard argument in support of ending marijuana prohibition concerns the economic and job creation developments expected to follow a regime of legalization and regulation.  And, as highlighted in this AP article, headlined "Washington state will use minors in marijuana buying stings," the employment benefits will flow down to a few young workers in at least one state:

Charged with implementing the new law that allows adults over age 21 to possess an ounce of pot, the state Liquor Control Board already uses minors in "controlled buys" of alcohol at retail stores. The board's enforcement chief said using the same strategy with marijuana makes sense, especially because federal officials want to make sure Washington restricts minors' access to the drug.

"Of course the feds are looking at a tightly regulated market around youth access, and I think this shows we're being responsible," said Justin Nordhorn. The agency also will ask the Legislature to set penalties for minors who attempt to purchase legal pot and those who use or manufacture fake ID cards for that purpose.

Alison Holcomb, chief author of the new law voters approved last year, agreed that using minors in pot-buying stings would support the state and federal emphasis on limiting youth access. But as criminal-justice director for the ACLU of Washington, Holcomb does not believe that adding criminal laws for pot possession is a good idea. She said she would prefer a focus on other prevention strategies.

Nordhorn said there are currently no penalties for teenagers who try to buy legal pot. He'd like the offense to be a misdemeanor or gross misdemeanor, and likewise for making or using fake IDs to buy pot.

This Seattle Times article concerning the state's sting plans provides a bit more background on Washington's current activities concerning illegal alcohol sales to minors:

Stings appear to be warranted in alcohol enforcement. Data for the past 17 months show that alcohol retailers had an 85 percent compliance rate in youth stings. In other words, for every seven times minors working for the state tried to buy alcohol in stores, bars or restaurants, they succeeded once.

While Washington has licensed more than 20,000 locations to sell alcohol, the state plans to allow just 334 marijuana stores, making it easier, in theory, to enforce marijuana laws at them.

The pot stings would work similarly to the alcohol buys, Nordhorn said. The state now hires 18-, 19- and 20-year-olds across the state to use in alcohol stings, according to Nordhorn. About 30 minors, both men and women, work for the liquor board. They get paid about $10 an hour, Nordhorn said, and they tend to be students interested in law enforcement and substance-abuse prevention.

He declined to make any available for an interview. “We try to protect their identities because we don’t want anyone knocking on their door,” he said. Nordhorn plans to send minors into pot stores to try to purchase products. It’s the store clerks’ responsibility to make sure customers are 21. The law does not even allow minors in stores.

December 2, 2013 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, November 27, 2013

Should reform advocates welcome latest DEA raids of hinky medical marijuana facilities in Colorado?

20131125__hector-diaz-comlaint~p1The question in the title of this post is prompted by this recent report from The Denver Post, headlined "Feds arrest one, seize guns and ammo in Colorado marijuana raids" about recent federal raids of medical marijuana facilities in a state now only a month away from having recreational marijuana stores.  Here are the details of the latest federal intervention:

When federal agents swooped into a swanky Cherry Hills Village home last week as part of widespread raids tied to medical-marijuana businesses, they found a person inside holding a loaded gun, according to a court document unsealed Monday. By the time they were done searching the $1.3 million home Thursday, agents had collected five assault-style rifles, five handguns, a shotgun and a "large cache of ammunition," according to the document. It did not identify the person with the gun.

One person was detained and later arrested on suspicion of weapons violations, authorities announced Monday. As part of their investigation, agents had obtained an e-mailed photograph that appears to show that man, 49-year-old Hector Diaz, holding two semi-automatic rifles while wearing a Drug Enforcement Administration ball cap.

The details on the raids — disclosed for the first time Monday — come from an affidavit in the criminal case against Diaz and provide new context for the largest federal operation against medical-marijuana businesses ever in Colorado. Agents executed "approximately 15" search warrants during the raids, the affidavit states.  Sources have told The Denver Post that the raids — which a search warrant shows targeted 10 men — were part of an investigation into a single enterprise that detectives believe may have ties to Colombian drug cartels.

Diaz, a Colombian national, was charged with a single count of possessing a firearm after having been admitted to the United States under a non-immigrant visa.  He could face up to 10 years in prison if convicted. Appearing in court Monday afternoon, Diaz was advised of the charge against him and ordered held until at least Wednesday, when a hearing will determine whether he should be released and at which time more information about the raids will likely be disclosed.

The raids focused especially on stores, cultivation warehouses and individuals connected to the VIP Cannabis dispensary in Denver. On Sunday, an attorney for one of the owners of the dispensary sent a letter to Colorado U.S. Attorney John Walsh proclaiming his client's innocence. Attorney Sean McAllister wrote that his client, Gerardo Uribe, did nothing wrong under state law and "will be vindicated by a full review of this matter."...

The raids are not the first time, however, the people associated with VIP Cannabis have been accused publicly of marijuana misdeeds. A lawsuit filed last month in Denver claims Gerardo Uribe and two other men named in the search warrant, Luis Uribe and Felix Perez, have not made good on hundreds of thousands of dollars owed to three men for the purchases of a dispensary on East Colfax Avenue and a grow warehouse on Elizabeth Street. The suit also alleges that the Uribes and Perez were suspected of hiding profits and product from their marijuana businesses and selling marijuana out of state.

"Marijuana product is unaccounted for, proceeds from the dispensary are unaccounted for and Plaintiffs assume that the Defendants have stolen product and money from them," the lawsuit states. Another section of the suit alleges: "Plaintiffs believe that the Defendants may be transacting business with people in other states and do not want to reveal what the businesses are really making or who they are conducting business with."...

Other lawsuits also provide a glimpse into the high-dollar business of marijuana in which the raid targets were involved. A lawsuit filed this year in Jefferson County accuses businesses controlled by Luis Uribe and another person named as a target in the search warrant, Carlos Solano, of not paying up on the purchase of a cultivation facility. In a settlement reached in September, Uribe and Solano agreed to pay $90,000 to the plaintiffs.

As the title of this post hints, I think advocates for legalizing and regulating marijuana ought generally be pleased when the feds go after the most shady operators of marijuana facilities. I suspect businesses that follow the law in any industry can and do generally hope that those competitors cutting corners will get in trouble for regulatory failings. And, with respect to state-legalized marijuana industries, even advocate for a regulatory scheme instead of prohibition may still find it useful and beneficial for there to be the ever-present threat of the feds bringing a severe criminal justice hammer down on those businesses getting the most out of line.

November 27, 2013 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Thursday, November 21, 2013

Maryland Gov. candidate running on "comprehensive plan to legalize and regulate marijuana"

MizAs reported in this local article, headlined "Gubernatorial Candidate Mizeur Proposes Marijuana Legalization In Md.," a relatively high-profile candidate in a relatively high-profile state has come out with a campaign message that ensures she will be endorsed by High Times.  Here are the basics:

A candidate for governor wants to legalize the recreational use of marijuana and she’s drawing passionate reaction.... It comes from Democratic candidate Heather Mizeur and would highly regulate the use of pot. She says it’s time to decriminalize it and she’s making more than just political waves.

For the first time, a major party candidate for Maryland governor wants to open the door to legalized recreational marijuana use. “We will take the underground market that exists for everyone trying to access this substance and bring it to the light of day,” Mizeur said.

Mizeur says it would only be for those over 21, illegal to smoke in public and she wants to tax it $50 an ounce, bringing in as much as $157 million a year for education. “Drug dealers on the streets are still selling marijuana to children. They’re not asking for an ID,” she said.

But critics like former addict and counselor Mike Gimbel call the controversial proposal dangerous. “It is totally backwards, irresponsible, stupid and it’s going to hurt people and nobody really seems to care,” he said.

A poll last month showed 51 percent of Marylanders support legalization and 40 percent oppose it.... Maryland is surrounded by jurisdictions that have legalized medical marijuana like D.C. and Delaware, and states considering doing so, like Pennsylvania and West Virginia.

Past attempts for less strict laws have largely failed here and none of Delegate Mizeur’s opponents – Democratic or Republican – support it.

What I find especially noteworthy (and appealing) about this political development is that delegate Mizeur seems eager to make marijuana reform a centerpiece of her campaign and she has this part her official website promoting this detailed 11-page document titled "A Comprehensive Plan to Legalize and Regulate Marijuana in Maryland." Here is how that document gets started:

Marijuana's time as a controlled, illegal substance has run its course.  Marijuana laws ruin lives, are enforced with racial bias, and distract law enforcement from serious and violent crimes. Marijuana criminalization costs our state hundreds of millions of dollars every year without making us any safer.  A Maryland with legalized, regulated, and taxed marijuana will mean safer communities, universal childhood education, and fewer citizens unnecessarily exposed to our criminal justice system.

I do not know local Maryland politics well enough to have any real idea if Mizeur has any real chance to become the next governor of Maryland.  But I do have an idea that her campaign on this issue is just the latest sign of being in interesting political times concerning drug laws and policies.

November 21, 2013 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, November 19, 2013

Readings on marijuana laws' impact on immigration and extradition issues

Especially because I tend to be under-informed about immigration laws and policies, I am very excited that the student-selected topic for discussion this week in my Marijuana Law, Policy and Reform seminar is the impact of marijuana laws on immigration and extradition issues. Here are the readings assembled by the students as background:

UPDATE: My students also have suggested that these issues merit consideration of "whether or not legalizing marijuana in the United States will thwart the drug cartels in Mexico [and how this impacts] the massive amount of Mexican asylum cases the US is currently receiving (and denying)."

Here are additional readings on this topic:

And some conflicting views on whether or not marijuana legalization would stop Mexican cartels:

November 19, 2013 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, International Marijuana Laws and Policies | Permalink | Comments (0)

Sunday, November 17, 2013

Another weekend round of notable marijuana news and headlines

With each weekend bringing many marijuana stories that seem worthy of attention, I am going to once again set forth headlines and links those pieces that struck me as especially noteworthy:

  • From The Daily Beast here, "Pot’s Black Market Backlash: How prohibitionists and nanny staters are trying to keep marijuana illegal — or at least inconvenient"

  • From the Kansas City Star here, "Dwayne Bowe's arrest fires up debate over marijuana in the NFL"

  • From The Oregonian here, "Medical marijuana in Oregon: Committee meets Monday to review draft dispensary rules"

  • From the Provo Daily Herald here, "Utah doctors endorse push for medical marijuana"

  • From Salon here, "An MBA for stoners: Get ready for the next growth industry"

November 17, 2013 in Criminal justice developments and reforms, Current Affairs | Permalink | Comments (0)

Saturday, November 16, 2013

Is pot already really legal for middle-aged white folks?

The question in the title of this post is prompted by this recent New York Times commentary by Jim Dwyer headlined "A Marijuana Stash That Carried Little Risk."   The piece is, I think, designed to complain about the impact and import of NYC stop-and-frisk policies, but my take-away is a bit distinct.  Here are excerpts from the piece:

Walking down Eighth Avenue a few weeks ago, I made sure my backpack was fully zipped shut. Inside was a modest stash of pot, bought just an hour or so earlier. A friend knew someone in that world, and after an introduction, then a quiet, discreet meeting, I was on my way to the subway. Never before had I walked through Midtown Manhattan with it on my person. There were four cookies in vacuum-sealed pouches — “edibles” is the technical term — and then a few pinches of what was described as “herb.”

The innovations of Michael R. Bloomberg as mayor are legion, but his enforcement of marijuana laws has broken all records. More people have been arrested for marijuana possession than any other crime on the books. From 2002 through 2012, 442,000 people were charged with misdemeanors for openly displaying or burning 25 grams or less of pot.

I wasn’t sure about the weight of my stash — although a digital scale was used in the transaction, I didn’t see the display — but it didn’t feel too heavy. Still, I wasn’t about to openly display or burn it.

It turns out that there was little to fret over. While scores of people are arrested on these charges every day in New York, the laws apparently don’t apply to middle-aged white guys. Or at least they aren’t enforced against us.

“It is your age that would make you most unusual for an arrest,” said Professor Harry Levine, a Queens College sociologist who has documented marijuana arrests in New York and across the country. “If you were a 56-year-old white woman, you might get to be the first such weed bust ever in New York City — except, possibly, for a mentally ill person.”

About 87 percent of the marijuana arrests in the Bloomberg era have been of blacks and Latinos, most of them men, and generally under the age of 25 — although surveys consistently show that whites are more likely to use it.

These drug busts were the No. 1 harvest of the city’s stop, question and frisk policing from 2009 through 2012, according to a report released Thursday by the New York State attorney general, Eric T. Schneiderman. Marijuana possession was the most common charge of those arrested during those stops. The few whites and Asians arrested on these charges were 50 percent more likely than blacks to have the case “adjourned in contemplation of dismissal,” the report showed.

Now, having a little bit of pot, like a joint, is not a crime as long as you don’t burn or openly display it. Having it in my backpack was a violation of law, meaning that it is an offense that is lower than a misdemeanor. Pot in the backpack is approximately the same as making an illegal turn in a car. Taking it out and waving it in the face of a police officer or lighting up a joint on the street would drive it up to the lowest-level misdemeanor.

How was it that all the black and Latino males were displaying or burning pot where it could be seen by the police? The answer is that many of them were asked during the stops to empty their pockets. What had been a concealed joint and the merest violation of the law was transformed into a misdemeanor by being “openly displayed.” If these were illegal searches — and they very well could have been — good luck trying to prove it....

Michael A. Cardozo, the chief lawyer for the city, is eager to get an appeals court to throw out the findings of fact by a judge who ruled against the city in a lawsuit over the stop-and-frisk tactics. Mr. Cardozo appears to believe, mistakenly, that losing a lawsuit is going to damage the legacy of his patron, Mayor Bloomberg. Undoing a lawsuit will not unstain this history.

As for me, the pot got to a couple of people who might need it to get through some medical storms. It’s too risky for me to use: I already have a hard enough time keeping my backpack zipped.

November 16, 2013 in Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Wednesday, November 6, 2013

Election outcomes in Nov 2013 keep up marijuana reform momentum

Though it would be unwise jump to too many conclusions based on off-year election results, these headlines reporting on results concerning various marijuana initiative in various jurisdictions suggest a continuing affinity for responsible reform and sensible regulation of maijuana laws, policies and practices:

  • From Colorado here, "Colorado voters approve new taxes on recreational marijuana"

  • From Maine here, "Portland voters legalize marijuana; The ‘Yes’ vote wins in a landslide, claiming 67 percent of the tally with many of the precincts reporting"

  • From Michigan here, "Voters in three more Michigan cities pass marijuana decriminalization proposals"

Practically speaking, the Colorado vote is probably the most important and consequential, as it ensures a significant tax revenue stream now flowing from marijuana legalization in the Mile High state.  But politically speaking, the voting outcomes in Maine and Michigan, though most symbolic, could still prove important if (and when?) more politicians on both side of the aisle in the northeast and upper midwest see that there could be political upsides in 2014 and beyond from supporting responsible reform and sensible regulation of maijuana laws, policies and practices.

November 6, 2013 in Criminal justice developments and reforms, Current Affairs, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)