Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Wednesday, May 20, 2015

"Racial disparities persist in Phila. marijuana arrests"

The title of this post is the headline of this notable recent article via Philly.com.  Here are excerpts:

There is a robust, national conversation about police and justice reform. And by decriminalizing marijuana, Philadelphia is getting a glimpse of what that entails.

Last October, Philly became America's largest city to make marijuana possession a civil, rather than a criminal, violation. The result has been a dramatic reduction in arrests....  They are down more than 70 percent.

For decades, Philly police put anyone caught with anything from a roach up to 30 grams into handcuffs and a holding cell. The city’s new decrim policy gives officers the option of issuing a Code Violation Notice: $25 for possession and $100 for smoking in public.  The result has meant fewer interactions between cannabis consumers and police.

It’s also saving tens of thousands of hours of police time -- and a big chunk of tax dollars. The RAND Corporation this year released a that calculated a single custodial arrest costs $1,266. Using the RAND numbers, Philly may have already saved more than $1 million under the new policy from January to March this year compared to 2013.  RAND estimated that the cost of issuing citations is a mere $20....

The shift in policy has allowed police to spend more time on other crimes. Cocaine and heroin possession arrests are combined in the same code in the Pennsylvania Uniform Crime Reporting System [and] while marijuana arrests have decreased there has been an uptick in arrests for harder drugs....

One of the most compelling reasons that City Council took on pot decriminalization was the disturbing racial disparity specifically in marijuana arrests.  Unfortunately, that has not changed ... [as] Black residents are still 7 times more likely to be arrested for weed than white residents. 

Some are quick to say that this disparity exists because police are heavily patrolling in neighborhoods of color. But that would mean other arrests, especially for other drugs, would have the same disparity. But that is not the case [as data shows] more white people got arrested for cocaine and heroin in Philly so far this year.  

[T]there is no statistical or procedural reason that can explain the continued brunt of marijuana enforcement on black residents. It highlights part of a bigger problem with urban policing, one that will take more than legalizing marijuana to solve.

May 20, 2015 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues | Permalink | Comments (0)

Tuesday, May 19, 2015

"How D.C. pot legalization has become ‘the dealer-protection act of 2015’"

The title of this post is the headline of this fascinating recent Washington Post article.  Here are excerpts:

Not long ago, a man who had covertly dealt pot in the nation’s capital for three decades approached a young political operative at a birthday party in a downtown Washington steakhouse. He was about to test a fresh marketing strategy to take advantage of the District’s peculiar new marijuana law, which allows people to possess and privately consume the drug but provides them no way to legally buy it for recreational use. Those contradictions have created a surge in demand and new opportunities for illicit pot purveyors.

“Do you like cannabis?” asked the dealer. “Yes,” answered the man, who had recently left his job as a Republican Senate staffer.

So, the dealer recalled, he handed his new acquaintance a tiny plastic bag that contained half a gram of “Blue Dream,” a sweet and fruity strain of marijuana. With the bag he also presented a business card and an offer: If you like what you try, call me. Within days, the man — now a lobbyist — picked up the phone.

The dealer — who, like others interviewed, spoke on the condition of anonymity because what they do remains illegal — said he has used that same in-plain-sight sales pitch at similarly upscale D.C. settings, collecting three new buyers and a pair of new suppliers. The new business is all thanks to the quirks of the District’s legalization, which has boosted the appetite for marijuana as more people become comfortable acquiring it through the black market. “It’s the dealer-protection act of 2015,” he said. “This was a license for me to print money.”

Who is responsible for this unintended consequence depends on whom you ask. In November, Washington voters overwhelmingly approved an initiative that made it legal to possess and grow marijuana, but the following month, Congress enacted a spending prohibition that barred the city from creating a system through which pot could be lawfully bought, sold and taxed.

That means there are only three ways for people in the District to legally obtain marijuana. Someone can give it to them, though the donors, of course, must find their own original source. Residents can each grow as many as three plants to maturity at one time, though that process is complicated, expensive and time-consuming. And with a doctor’s approval, people can get medical-marijuana cards, though supply remains dismal.

“The black market is the obvious choice,” said a 24-year-old government contractor who deals part time. “It’s awesome.”

Rep. Andy Harris (R-Md.), who has led Congress’s charge to thwart the legalization, blamed city leaders, insisting that they should have forbidden possession when he and other lawmakers prevented Washington from creating a controlled marketplace. “There’s no question that demand will go up, and there’s no legal source of supply,” he said. “Clearly, this was not thought out rationally by the city government, which chose to go forward with legalization without regulation.”

John Falcicchio, chief of staff for Mayor Muriel E. Bowser (D), sharply countered that assertion. “In D.C., it shouldn’t be called the black market. It should be called the Harris market,” he said. “If there’s any uptick in the black market, it’s thanks to Harris.”...

That boost in demand, supporters of legalization say, helps explain why lawful use in the District must be paired with lawful sales.   “If you’re going to legalize marijuana, you also have to legalize the supply because you want to get rid of the black market or at least limit the black market,” said Keith Stroup, founder of NORML.  “Right now, they’ve done the exact opposite.”

Delroy Burton, chairman of the D.C. Fraternal Order of Police, said a regulated market would have “pulled the teeth out of the illegal drug trade” and eventually wiped out the violence associated with it.

Jeffrey Miron, an economics teacher at Harvard University, compared marijuana’s potential evolution to that of alcohol after prohibition ended in 1933.   “People seem to prefer going to a legal supplier rather than making beer in their basement,” said Miron, director of economic studies at the libertarian Cato Institute, which supports the legalization of all drugs.

He and others who have studied the topic don’t suggest that illicit sales would disappear overnight, but after several years — even a decade — they argue that the black market could not compete with a controlled market.

Rep. Andy Harris rejected those arguments.  “I think there’s value in keeping the supply chain illegal at this point,” he said, maintaining that it provides “a check on the system.”

The longtime District dealer who now markets his product at chic D.C. gatherings has already considered what he would do if the city regulated pot sales.  He and his friends, he said, would open their own dispensary.  They’d go legit.

May 19, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, May 17, 2015

"New Challenge for Police: Finding Pot in Lollipops and Marshmallows"

Images (5)The title of this post is the headline of this new New York Times article, which includes these excerpts:

After nearly 20 years on the job, Jim Jeffries, the police chief in LaFollette, Tenn., has seen his share of marijuana seizures — dry green buds stashed in trunks or beneath seats, often double­bagged to smother the distinctive scent. But these days, Chief Jeffries is on the lookout for something unexpected: lollipops and marshmallows.

Recently his officers pulled over a Chevy Blazer driven by a couple with three children in tow. Inside, the officers discovered 24 pounds of marijuanalaced cookies and small hard candies shaped like gingerbread men, plus a tub of pungent marijuana butter perfect for making more. The bags of Kraft marshmallows looked innocent enough. But a meat injector was also found in the car. After searching the Internet, Chief Jeffries realized that the marshmallows probably had been infused with the marijuana butter and heat­sealed into their bags....

Across the country, law enforcement agencies long accustomed to seizures of bagged, smokable marijuana are now wrestling with a surge in marijuana­-infused snacks and confections transported illegally across state lines for resale.

Pot edibles, as they are called, can be much easier to smuggle than marijuana buds: They may resemble candy or home­baked goodies, and often have no telltale smell. And few police officers are trained to think of gummy bears, mints or neon­colored drinks as potential dope.

Some experts worry that smuggled pot edibles will appeal to many consumers, particularly adolescents, who are ill prepared for the deceptively slow high. Impatient novices can easily eat too much too fast, suffering anxiety attacks and symptoms resembling psychosis. Already, young children have eaten laced sweets left within reach. Many live in states where there has been no public education about responsible consumption of marijuana.

“Citizens in nonlegalization states are far less likely to be receiving those messages, so their risks are probably greater,” said Robert J. MacCoun, a professor of law at Stanford who recently co­wrote an editorial in The New England Journal of Medicine urging stronger regulation of pot edibles.

There are no hard numbers for the amount of pot edibles being trafficked interstate, but police departments in a variety of jurisdictions without legal sales report seizing increasing amounts in the past year. The quantities suggest the products are intended to supply a growing demand, law enforcement officials say....

The popularity of confections laced with marijuana has caught many health officials by surprise. Pot edibles took off in 2014, the first year of recreational sales in Colorado, when nearly five million individual items were sold to patients and adult users. Demand in Colorado and Washington State has spawned a stunning assortment of snacks and sweets, from Mondo’s sugar­free vegan bars to Dixie Edibles’ white chocolate peppermint squares.

Today consumers 21 and older can legally buy pot edibles in those two states; soon adults in Oregon and Alaska will join them. Pot edibles are available to medical users in at least a half dozen of the 23 states with medical marijuana programs.

Edibles make sense for marijuana entrepreneurs. In the past, marijuana buds were sold, and the rest of the plant was usually discarded. But with an extraction machine, makers of edible products can use the entire plant. “In a world where THC becomes inexpensive, you would like to differentiate your product from other people’s products in ways that allow you to maintain a higher profit margin,” said Jonathan Caulkins, a co­author of “Marijuana Legalization,” who has studied black markets for cocaine and marijuana. “Edibles offer some opportunities for that.”...

The manufacturers themselves say they receive constant requests for outof­state shipments. James Howler, the chief executive of Cheeba Chews, based in Denver, said his team fields emails from people nationwide — from epilepsy patients in Iowa to a retired mechanic in Florida, all of whom would rather snack on marijuana than smoke it.

“The needs and curiosity from around the country can be overwhelming,” he said. Still, Mr. Howler said, he declines them all. “It is highly illegal, and stupid to think we would risk everything,” he said.

May 17, 2015 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Monday, May 11, 2015

Notable Ohio county prosecutor calls pot prohibition a "disastrous waste of public funds"

Images (9)As reported in this Cincinnati Enquirer article, headlined "Prosecutor Deters OK with legalizing pot," a high-profile prosecutor in Ohio is now publicly getting involved with efforts to reform the state's marijuana laws. Here are the details:

The campaign to legalize marijuana in Ohio found an unlikely friend Monday in Hamilton County Prosecutor Joe Deters.

Deters, a life-long Republican and law-and-order prosecutor, said he agreed to lead a task force on the potential impact of legalization in part because he's been unhappy for years with the state's marijuana laws. He said they waste taxpayer dollars and target people who typically are not much of a threat to society.

"I think they're outdated and ludicrous," Deters said of marijuana laws. "I don't use marijuana, but I know people who do use marijuana, and I'd rather deal with someone who smoked a joint than someone who drank a bottle of vodka any day of the week."

When asked if he favors legalization, Deters told The Enquirer: "I don't have any problem with it at all."

ResponsibleOhio, the group of wealthy investors campaigning for legalization, asked Deters to lead the task force. Deters said he's not being paid for his work on the task force and agreed to do it because he's interested in the issue and the potential impact on law enforcement.

He said finding an affordable and efficient way to test drivers who are suspected of being impaired by marijuana use is one of his concerns. "There is a public safety element to this," Deters said. His goal is to produce a report on the impact of legalization within a few months....

Deters said he doesn't buy the argument that prisons are filled with low-level drug offenders, but he does think the time and money devoted to marijuana enforcement could be better spent elsewhere. "It's been a disastrous waste of public funds," Deters said....

Deters said he's not taking a position on ResponsibleOhio's proposed business model, but he said it makes sense for the state to regulate and tax marijuana. "You can walk outside your building and buy marijuana in 10 minutes," Deters said. "The question is, do we want schools and local governments getting the money or the bad guys?"

He said it's also wise for the state to prepare for legalization, whether or not ResponsibleOhio succeeds, because voters seem more willing to support it and other states are adopting similar measures. "The days of 'reefer madness' are gone, because that's not the reality," Deters said, referring to the 1950s-era movies that vilified marijuana and those who used it.

He said he's reaching out now to academics, elected officials and law enforcement to participate in the task force.

I have long known and respected the work of Joe Deters, even though we have sometimes disagreed on various professional matters through our work on the Ohio Death Penalty Task Force and in other settings.  I had heard from various folks involved with the ResponsibleOhio campaign that they were seeking to have a prominent, knowledgeable person running a task force to examine these important marijuana reform topics, and I am especially pleased to see that Joe Deters is now officially and publicly at the helm.

May 11, 2015 in Criminal justice developments and reforms, Initiative reforms in states, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (0)

Disconcerting data show problems and persistence of "racial grass gap" in Chicago

Download (1)This important Chicago Reader article by Mick Dumke spotlights issues at the intersection of marijuana reform and racial/social justice that I have been thinking about a lot lately.  The piece is headlined "Will marijuana decriminalization end the racial grass gap?: As the politics of pot shift, questions of justice remain," and merits a full read for anyone interested in these issues. Here are excerpts:

Many cannabis enthusiasts saw it as another reason to light up: in a span of three days, the Cook County state's attorney and the Illinois house both took steps to reduce penalties for marijuana possession.

But in some parts of Chicago, people were still getting busted for pot. Police made at least 212 arrests for misdemeanor possession that week, a rate of 30 per day, according to Chicago police data. More than 90 percent were in predominantly black neighborhoods.

Amid a national debate on race and the criminal justice system, the politics of pot are clearly blowing in a new direction. Simply put, it's no longer wise for an elected official to call for cracking down on low-level drug offenses. But the shift has also created a jumble of laws and policies that continue to send some people to jail for the same behavior that's overlooked, laughed off, or even celebrated for others.

It's the latest incarnation of what the Reader calls the grass gap: while people smoke marijuana all over Chicago — and Illinois, and beyond — almost everyone busted for it is black.

Ending this racial imbalance has become a top goal of elected officials and policymakers who see it as emblematic of the failed war on drugs. "Anything that takes a meaningful step toward not trapping black and brown men like myself in a cycle of poverty and prison, I'm behind," says state representative Christian Mitchell, a chief sponsor of the house bill to loosen pot penalties.

So far, though, the gap has remained stubbornly in place. In 2011 my colleague Ben Joravsky and I reported that African-Americans accounted for 78 percent of those arrested, 89 percent of those convicted, and 92 percent of those jailed for misdemeanor marijuana possession in Chicago, leaving thousands with criminal records for doing something that routinely went unpunished in other parts of the city.

Citing those findings, the Chicago City Council passed an ordinance in 2012 to go easier on some pot possessors. Under the new rules, police officers were allowed to issue tickets to those caught with up to 15 grams (about half an ounce) instead of hauling them to the station to be booked and locked up.

The measure succeeded in reducing busts. In 2010, police made more than 22,000 arrests for misdemeanor possession. Last year the total fell to about 12,800, the lowest in two decades, according to police data. Yet the grass gap hardly budged. In 2014, 76 percent of those arrested for low-level pot possession were black, 19 percent were Hispanic, and 5 percent were white — almost exactly the same breakdown as before the new rules were enacted.

Disparities existed almost everywhere in the city, even in areas with relatively small black populations. African-Americans accounted for a majority of pot possession arrests in all but 97 of the city's 268 police beats. In contrast, though more whites live in Chicago, they made up the majority of arrests in only 13 beats — and in ten of those, fewer than ten people were arrested.

Marty Maloney, a spokesman for the Chicago Police Department, points to the drop in total arrests as a sign of the department's commitment to making enforcement "even more effective and fair." "The City's cannabis ticketing initiative has already kept thousands out of jail," he wrote in an e-mail. Unfortunately, thousands are still going there.

After being arrested, offenders are held in police lockup for hours. Many are then transferred to the county jail before they're given a court date and released. Most misdemeanor marijuana cases are eventually thrown out of court at the discretion of prosecutors and judges. Those that move forward usually involve repeat offenders, but not always. People who've spent a day or two behind bars often plead guilty in return for a sentence of the time they've already served.

All told, 1,263 misdemeanor marijuana cases resulted in jail time last year in Cook County, according to data from the circuit court clerk's office. In almost all of these cases — 84 percent — the defendants were African-American.

In short, while pot has essentially been decriminalized for some people, it still lands others behind bars. And in addition to being unfair, the system is expensive. These misdemeanor pot cases cost county taxpayers approximately $38 million in court and jail expenses in 2014....

Cops say the grass gap is the result of aggressive patrols in high-crime neighborhoods. Officers charged with reducing violence pull people aside for interviews — Chicago's version of stop and frisk. While arrests consume two to four hours of an officer's time, police say they can also be useful in leveraging drug sellers and gang members for information, or simply getting them off the street for awhile.

When low-level possession is decriminalized, police will probably issue more tickets — but even then African-Americans will bear the brunt of enforcement. That's what's happened in Chicago. As marijuana arrests fell, the number of cannabis citations shot up from 1,074 in 2013 to 4,032 in 2014, police data show. And the vast majority — 78 percent — were issued to African-Americans. Just 16 percent went to Hispanics and 5 percent to whites.

When possible, cops will arrest offenders on different charges — such as possessing more than 15 grams, or possessing with the intent to deliver, the formal charge for dealing. Police, prosecutors, and politicians acknowledge that decriminalization won't address the economic roots of the grass gap either. Many of those prosecuted in the last couple years are repeat offenders who appear to have been selling to make money, according to police reports and court records.

A few prior posts on racial justice and marijuana reform:

May 11, 2015 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues | Permalink | Comments (0)

Tuesday, May 5, 2015

Does new Mizzou "right to farm" amendment create a state constitutional right to grow marijuana?

The question in the title of this post is prompted by this intriguing new St. Louis Dispatch article headlined "Does Missouri's 'right to farm' amendment mean you can grow marijuana in the basement?".  Here are the details of an interested new state constitutional provision and argument in litigation over marijuana prohibition:

A Missouri woman believes her constitutional right to farm shields her against being prosecuted for allegedly growing a small crop of marijuana in her basement.

Lisa Loesch, 52, of Jefferson City, was charged in 2013 with a felony count of manufacturing and/or distributing a controlled substance. Investigators with the Jefferson City Police Department and a regional drug task force said they found nine healthy, potted marijuana plants under grow lights in her basement in October 2012. “The room was set up with grow lights, a CO2 generator, and pots with potting soil,” police said in court records. “The plants were approximately 1 and ½ to 2 feet in height.”

Loesch’s lawyer, a public defender named Justin Carver, filed a motion April 28 asking for her case’s dismissal. Carver argued that growing marijuana is protected by Missouri’s new farming rights amendment, which voters narrowly passed in an August referendum. Of nearly 1 million votes cast, the amendment passed by a margin of 2,376 votes.

The amendment enshrined the right to farm in the state constitution, saying the right of Missouri citizens to engage in agricultural production and ranching practices “shall not be infringed.” It was prompted by rural legislators who said farm culture needed protection from environmentalists and animal-rights activists. Missouri was the second state behind North Dakota to place farming rights in its constitution. “The amendment prohibits the Legislature from declaring what can and cannot be grown in Missouri,” Carver wrote in his motion for dismissal.

Loesch’s lawyer wrote that state laws that prohibit the cultivation of marijuana violate the state and U.S. constitutions and are “vague in that a reasonable person cannot tell and is not given clear notice as to what is prohibited and what is permitted” by law.

The amendment was passed after Loesch was charged. But her attorney says the language of the amendment makes it clear it is not establishing a new right but clarifying an existing right, so it should apply retroactively to Loesch. Loesch pleaded not guilty to the drug charge in February 2013.

This Ballotpedia entry provides background on the "right to farm" provision now in the Missouri constitution, and it reports that the provision reads as follows:

Section 35. That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy. To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.

I suspect that defendant Lisa Loesch will have a hard time establishing in this case that she qualifies as a farmer exercising her "right ... to engage in farming and ranching practices" through growing a small crop of marijuana in her basement. That said, I could readily imagine a true family farmer starting to grow a small crop of marijuana plants on his family farm and thereafter asserting in the face of a state prosecution that he was just engaged in a form of Mizzou agriculture designed to provide "food, energy, health benefits and security" for his fellow state citizens.

May 5, 2015 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, May 2, 2015

"Do marijuana prisoners deserve amnesty?"

The title of this post is the headline of this notable new CNN commentary authored by Mike Riggs, who is the communications director for Families Against Mandatory Minimums. Though the commentary starts with a discussion of marijuana reforms, its real focus seems to be advocating wholesale federal drug sentencing reform. Here are excerpts: 

Since 2012, when voters in Colorado and Washington approved the tax and sale of recreational marijuana, the cognitive dissonance of America's drug penalties has become even more absurd.  Where we once incarcerated people for growing and selling "just a plant," we're now incarcerating people for growing and selling "just a plant" that tens of millions of people can grow and sell legally.

Marijuana is legal only in certain states, and illegal under federal law.  Still, it's worth asking what Congress would do with the thousands of pot offenders sent to federal prison each year if we repealed, or even just reformed, federal pot laws.

In 2010, Congress voted to change federal penalties for crack cocaine with the Fair Sentencing Act.  Prior to the law's passage, 5 grams of crack cocaine triggered the same mandatory minimum sentence as 500 grams of powder cocaine. Congress reduced that disparity, from 100-to-1 to 18-to-1, which significantly reduced crack cocaine sentences.  But Congress did nothing to change the sentences of the more than 8,000 federal crack prisoners who were locked up when the bill was signed into law.

So the repeal of federal marijuana laws could likely leave us with many thousands of federal pot prisoners serving sentences longer than what they'd receive in a post-reform courtroom....

If Congress changes marijuana laws without allowing currently imprisoned pot offenders to seek new sentences, should this president or the next simply throw open the gates?   Clemency feels particularly appropriate for marijuana prisoners, who sit in cells for trafficking and dealing while state legislators argue over how to spend the revenues generated from pot taxes and newspapers tell us how to incorporate the plant in our cooking....

In 2014, then-Deputy Attorney General James Cole announced a Justice Department initiative to review the petitions of federal prisoners serving sentences longer than what they'd receive if sentenced today, and to grant clemency to those whose early release would not compromise public safety.  The second wave of clemencies granted since the initiative launched included both crack offenders and a single marijuana offender.

But clemency, by its very nature, benefits only a small number of people. Even if President Obama were to grant 2,000 commutations over the next 21 months — an unprecedented number — there are roughly 100,000 drug offenders in federal prison. The vast majority would be left to serve excessively long sentences.

Our drug policies — and not just those pertaining to marijuana — require sweeping, comprehensive, grand reform....  All drug offenders are getting a raw deal from our criminal justice system. It would be a mistake to say, "Let out the people who sell a drug that I'm comfortable with, and to hell with all the rest." Federal and state legislators need to address bad policies for all drug types, and then establish a clear route to resentencing for pot dealers — and everybody else.

May 2, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Thursday, April 9, 2015

Examining impact of marijuana legalization and/or decriminalization on law enforcement

As highlights in many prior posts, students in my marijuana law school seminarare in the midst of assembling readings and leading discussions concerning the research topic(s) that are the focal point for class project(s). This week, among the interesting topics on the agenda, is impact of marijuana prohibition and of marijuana reform on law enforcement activities, and here are links to the student-assembled readings on this topic:

"Police chief: Legalize marijuana, use tax revenue to fund drug treatment"

"Concerns in Criminal Justice System as New York City Eases Marijuana Policy."

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

CJCJ Research report, "Reforming marijuana laws: Which approach best reduces the harms of criminalization?"

Website of Law Enforcement Against Prohibition (LEAP)

April 9, 2015 in Assembled readings on specific topics, Criminal justice developments and reforms | Permalink | Comments (0)

Wednesday, April 8, 2015

Arizona Supreme Court rules in favor of medical marijuana patients in criminal justice system

DownloadAs reported in this local article, the "Arizona Supreme Court on Tuesday issued two rulings barring courts and prosecutors from denying marijuana use as a term of probation if the convicted felons have valid medical-marijuana cards."  Here is more on these notable rulings:

In one case, a man convicted of possessing marijuana for sale in Cochise County was forbidden from using marijuana by a probation officer after he was released from prison.

In the second, a woman pleading guilty to DUI in Yavapai County refused to accept abstention from marijuana as a term of probation, prompting the prosecution to withdraw the plea agreement. Both had valid medical-marijuana cards.

The Supreme Court ruled that both had the right to use marijuana for their medical conditions and that prosecutors and courts could not block that right as a term of probation.

"The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine," said David Euchner, an assistant Pima County public defender. Euchner argued as a friend of the court in both cases in his role as a member of the executive committee for Arizona Attorneys for Criminal Justice....

"[I]f the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana ..." [one of the Arizona court's] ruling said.

Prosecutors are not pleased with the ruling. "It's another example of the problems with initiative drafting and unintended consequences," Maricopa County Attorney Bill Montgomery said in an e-mail to The Arizona Republic. "There was no discussion at the time of the election regarding the impact to case resolutions and the ability for parties to negotiate plea agreements."

Montgomery is a staunch opponent of marijuana use. On March 23, he raised eyebrows during a debate in Tempe over the use of recreational marijuana when he called a veteran who admitted to using the drug an "enemy."

But the defense attorney he faced off against, Marc Victor, said Tuesday's court ruling was just, "because the initiative specifically said your right to use medical marijuana can't be taken away."...

The second case Tuesday covered a slightly different probation angle. Jennifer Lee Ferrell was arrested in 2012 and charged with DUI.

Pursuant to Yavapai County Attorney's Office policy, Ferrell's plea agreement required her to avoid marijuana as a condition of probation. The high court said no.

Yavapai County Attorney Sheila Polk is also firmly against marijuana use. "I implemented the 'no marijuana condition' after the probation department noted a significant increase in the number of probationers obtaining a medical marijuana card to use marijuana while on felony probation," Polk said in an e-mail to The Republic. "My goal — and the goal of the system — is to set convicted felons up to succeed, to find employment and to turn their lives around. Marijuana is not part of that equation."

Polk said she is considering appealing to the U.S. Supreme Court.

Here are links to the opinions references in this article:

CV-14-0226: KEENAN REED-KALIHER v. HON. HOGGAT/STATE

Rebecca White Berch, Author; Scott Bales, Concur; John Pelander, Concur; Robert M. Brutinel, Concur; Ann A. Scott Timmer, Concur

CV-14-0084: STATE v. HON. HANCOCK/JENNIFER FERRELL

Ann A. Scott Timmer, Author; Scott Bales, Concur; John Pelander, Concur; Rebecca White Berch, Concur; Robert M. Brutinel, Concur

April 8, 2015 in Court Rulings, Criminal justice developments and reforms, Who decides | Permalink | Comments (1)

Sunday, April 5, 2015

A New York teen dies as a consequence, arguably, of marijuana prohibition

Opponents of marijuana reforms have, understandably, made much of any deaths in Colorado that might be reasonably linked in some way to marijuana legalization.  But this sad story from New York, headlined "Bronx Teenager Who Fell From Roof While Fleeing the Police Dies," provides an example of a death that might be reasonably linked to marijuana prohibition:

A Bronx teenager who fell off the roof of a six­story apartment building on Thursday while fleeing police officers died of his injuries on Saturday at St. Barnabas Hospital, the police said.

Authorities said Hakeem Kuta, 17, was with a group of other teenagers who were smoking marijuana Thursday evening in the lobby of the apartment building at 2685 Valentine Avenue in the Bronx. A man who exited the building complained to four uniformed officers, who then entered the lobby.

When Mr. Kuta and several others ran to the roof, two officers chased them. All but Mr. Kuta and a 14­-year-­old were able to elude the police. With officers shouting, “please don’t move,” Mr. Kuta tried to step over a short wall at the edge of the building but stumbled, officials said. The 14­year­old grabbed for Mr. Kuta’s vest as he fell, officials said, but he was not able to hang on.

The Police Department said that the officers appeared to have acted appropriately. After Mr. Kuta fell, officers raced from the roof to give first aid, officials said. Officer Maria Imburgia applied chest compressions until paramedics arrived. Officers made no arrests on Thursday evening, though marijuana was found in the lobby.

April 5, 2015 in Criminal justice developments and reforms, Current Affairs | Permalink | Comments (0)

Tuesday, March 24, 2015

Basic readings concerning drugged driving realities and laws

In addition to having a notable guest speaking in my marijuana law school seminar this week (basics here), we are starting a series of weeks in which students are to present to the class some readings and engage in discussion concerning the research topic that they are working up. This week, one of the topics to be covered is drugged driving, and here are links to the student-assembled reading:

Drug Impaired Driving: Understanding the Problem and Ways to Reduce It

Drug Per Se Laws: A Review of Their Use in States

(My students only need to read the Ohio section in the "Drug Per Se Laws" comparative article, though they (and other readers) might want to review the whole document for a national perspective.)

March 24, 2015 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, March 19, 2015

New poll indicates over 60% support for marijuana legalization

This new Daily Caller piece, headlined "Poll: 61 Percent Of Americans Want Marijuana Legalization, Smashing Previous Records," reports on some details of a notable new poll about American opinions on marijuana reforms. Here are the basics:

A new poll has found that 61 percent of American voters agree with legalizing recreational marijuana, shattering previous records. The poll was released by the Benenson Strategy Group (BSG), while the old record of 58 percent supporting was done by Gallup in 2013.

Republicans still haven’t crossed the halfway point. According to the BSG survey, 48 percent agree with legalization, while 52 percent still oppose. A slightly wider gap exists for conservatives, with 45 percent supporting legalization and 55 percent opposing.

A total of 72 percent of voters think that jail time for marijuana possession doesn’t make sense. Instead, these voters believe that the punishment should be reduced down to as low as $25 dollars and as high as $100 dollars. Although Republicans are traditionally opposed to marijuana legalization, this is a measure they’re friendlier towards, as 68 percent agree with the proposal. Of conservatives, 63 percent agree with reduced penalties.

BSG relied on a sample size of 1,032 registered voters to create a nationally representative survey. The survey was conducted from Feb. 26 to 27. The margin of error is plus or minus 3.5 points.

This new Huffington Post piece provides a few more details and more background concerning this latest poll and prior polls on similar topics.

March 19, 2015 in Criminal justice developments and reforms, Polling data and results, Recreational Marijuana Data and Research | Permalink | Comments (0)

Monday, March 16, 2015

Connecticut Supreme Court clarifies erasure of past pot conviction comes with state decriminalization

This AP article, headlined "Ruling Clears Way for Marijuana Convictions to Be Erased," highlights a notable (state law) ruling from that echoes issues being confronted in a number of states as marijuana reforms become more common. Here are the basics:

Thousands of people busted in Connecticut for marijuana possession now have the right to get their convictions erased after the state Supreme Court ruled Monday that the violation had been downgraded to the same legal level as a parking ticket.

The 7-0 ruling came in the case of former Manchester and Bolton resident Nicholas Menditto, who had asked for his convictions to be overturned after the Legislature decriminalized possession of small amounts of pot in 2011. "It's a topic multiple states will have to be facing," said Aaron Romano, Menditto's attorney. "Because marijuana is being decriminalized across the United States, this issue needs to be addressed."

Colorado, Washington state, Washington, D.C., and Alaska have legalized the recreational use of pot. Oregon's law legalizing it takes effect in July. Connecticut and 22 other states allow marijuana for medicinal purposes, and 18 states have decriminalized possession of varying amounts.

Last year, Colorado's second-highest court ruled that some people convicted of possessing small amounts of marijuana can ask for those convictions to be thrown out under the state law that legalized recreational marijuana. Officials in the other states are grappling with the issue.

In 2011, Connecticut Gov. Dannel P. Malloy and legislators changed possession of less than a half ounce of marijuana from a misdemeanor with potential jail time to a violation with a $150 fine for a first offense and fines of $200 to $500 for subsequent offenses. Menditto, 31, wanted the state to erase his two convictions for marijuana possession in 2009 and a pending possession case. The Supreme Court ruled he could apply to have the two convictions erased, but declined to address the pending case.... The appeal involved the 2011 decriminalization and another state law that allows erasure of convictions of offenses that have been decriminalized....

"The legislature has determined that such violations are to be handled in the same manner as civil infractions, such as parking violations," Justice Carmen Espinosa wrote in the ruling. "The state has failed to suggest any plausible reason why erasure should be denied in such cases."

March 16, 2015 in Court Rulings, Criminal justice developments and reforms, Medical Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)

Wednesday, March 11, 2015

NY Times praises "A Sensible Bill on Medical Marijuana"

Because the New York Times editorial board has already called for the full legalization of marijuana, it is no big surprised that today brings this editorial in support of the bipartisan federal CARERS Act introduced yesterday by three senators (basics here). Here are excerpts from the editorial:

The bill makes a number of important changes to federal marijuana policies — and it deserves to be passed by Congress and enacted into law. Though this legislation would not repeal the broad and destructive federal ban on marijuana, it is a big step in the right direction....

The bill, sponsored by Cory Booker of New Jersey and Kirsten Gillibrand of New York, both Democrats, and Rand Paul, a Republican of Kentucky, would not legalize medical marijuana in all 50 states. But it would amend federal law to allow states to set their own medical marijuana policies and prevent federal law enforcement agencies from prosecuting patients, doctors and caregivers in those states. Currently 35 states and the District of Columbia permit some form of medical marijuana use. States would remain free to ban medical marijuana if they wished.

Other important provisions would allow banks and credit unions to provide financial services to marijuana­-related businesses that operate in accord with state law and protect them from federal prosecution or investigation. That is a crucial improvement over the current situation where marijuana business that is legal under state law is conducted in cash because financial institutions fear to step in.

The bill would also allow doctors in the Department of Veterans Affairs to prescribe medical marijuana to veterans, which they are currently prohibited from doing. And it would ease the overly strict procedures for obtaining marijuana for medical research and require the Food and Drug Administration to more readily allow the manufacture of marijuana for research....

Polls show a majority of Americans in favor of legalization of medical marijuana. It is long past time for Congress to recognize the need to change course.

The full text of the CARERS Act is available here.

March 11, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, March 10, 2015

Proposed federal CARERS Act includes rescheduling marijuana under CSA

I am watching the press conference (streamed here) with presentations by Senators Rand Paul, Cory Booker and Kirsten Gillibrand introducing their new federal medical marijuana reform bill, the CARERS Act.  Fascinating stuff.

Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.

Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep.  Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair.   Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years.   Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.

This Drug Policy Alliance press release summarizes what is in the CARERS Act: 

The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:

  • Allow states to legalize marijuana for medical use without federal interference

  • Permit interstate commerce in cannabidiol (CBD) oils

  • Reschedule marijuana to schedule II

  • Allow banks to provide checking accounts and other financial services to marijuana dispensaries

  • Allow Veterans Administration physicians to recommend medical marijuana to veterans

  • Eliminate barriers to medical marijuana research.

March 10, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, March 9, 2015

Bipartisan federal medical marijuana bill to be introduced Tuesday

As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:

In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.

The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.

The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....

In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.

Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.

March 9, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, March 7, 2015

Another round of state reform news from coast to coast

Marijuana reform discussions at the state level, regarding both medical and recreational reforms, continue to generate lots of stories and headlines each week. Here is an abridged run-down of (and links to) some recent news stories reviewing recent state-level marijuana reform developments that caught my eye:

Alaska: "Alaska lawmakers hold marijuana show and tell"

California: "GOP's risk-reward calculus on legalizing pot"

Nebraska: "Medical marijuana debated in Nebraska's Capitol"

New Hampshire: "Committee approves bill to decriminalize marijuana"

Oregon: "Oregon Liquor Control Commission Releases Marijuana Policy Recommendations"

Rhode Island: "Rhode Island again takes up bills to legalize marijuana"

March 7, 2015 in Criminal justice developments and reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, March 4, 2015

Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington

This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes.  Here are the details:

Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.

The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.

U.S. District Court Judge Thomas Rice set sentencing for June 10.

The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."

However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.

Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.

"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.

On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.

Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"

The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.

The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.

Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....

Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.

I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).

Prior related posts:

March 4, 2015 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Tuesday, March 3, 2015

"Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"

The title of this post is the title of this notable new UCLA Law Review comment by Jordan Cunnings. Here is its abstract:

Marijuana is being decriminalized in many states and localities throughout the United States. While recreational use of marijuana is legal in only a handful of states, in many other areas it has become a type of pseudo-violation with such low criminal penalties that defendants may be issued just a citation or ticket and are often not entitled to the assistance of a public defender. While low-level marijuana offenses have fewer meaningful consequences within the criminal justice system in these jurisdictions, these offenses continue to create serious immigration consequences for noncitizen offenders. The Immigration and Nationality Act defines “conviction” in such a way that even civil infractions with very low penalties count as drug convictions that make lawful permanent residents deportable.

The combination of lowered criminal penalties for marijuana offenses and severe resulting immigration consequences causes significant problems for noncitizens. First, as the penalties for marijuana offenses are lowered at the state and local levels, a defendant is less likely to have a right to appointment of a public defender when charged with possession of a small amount of marijuana. This situation implicates potential violations of the Sixth Amendment right to effective assistance of counsel in criminal proceedings, which has been held to cover affirmative advice on the immigration consequences of a criminal charge. Additionally, even with the assistance of a public defender, individuals may still be unable to avoid the harsh immigration consequences that often result from marijuana offenses. These harsh consequences violate our society’s understanding of proportionality of punishment in criminal law. Even though immigration law is traditionally insulated from proportionality considerations because of the plenary power doctrine, deportation for low-level marijuana offenses provides one example of why this doctrine should be reconsidered.

March 3, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)

Friday, February 13, 2015

Is a federal judge about to declare unconstitutional federal marijuana law? And then what?

The questions in the title of this post are prompted by this Reuters report about an on-going federal criminal trial in California. Here is why:

A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.

Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.

"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.

The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.

In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.

Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.

But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."

Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.

February 13, 2015 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)