Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, November 21, 2017

Effective review of marijuana expungement prospects amidst nationwide state reforms

Legal Marijuana Oregon Measure 91Stateline has this effective new piece on a topic that I have long thought should get even more attention as the marijuana reform movement continues to pick up steam.  The piece is headlined "In These States, Past Marijuana Crimes Can Go Away," and here is how the article starts and ends:

When Californians voted to legalize marijuana last year, they also voted to let people petition courts to reduce or hide convictions for past marijuana crimes. State residents can now petition courts to change some felonies to misdemeanors, change some misdemeanors to infractions, and wipe away convictions for possessing or growing small amounts of the drug. “We call it reparative justice: repairing the harms caused by the war on drugs,” says Eunisses Hernandez of the Drug Policy Alliance, a nonprofit advocacy group that helped write the California ballot initiative.

Colorado, Maryland, New Hampshire and Oregon also have made it easier for people convicted of some crimes of marijuana possession, cultivation or manufacture to get their records sealed or expunged, which generally means removing convictions from public databases. Massachusetts lawmakers are considering a criminal justice bill that would, among other changes, allow people to expunge any conviction that’s no longer a crime, such as marijuana possession.

These efforts by states that have legalized or decriminalized marijuana are part of a national trend toward making it easier for people to seal or expunge a range of convictions. Americans with a criminal record — whether it’s marked with felonies, misdemeanors or both — can find it harder to get a job and find housing.

Hernandez and other social justice advocates say marijuana legalization should be paired with criminal justice reforms that help people convicted of past drug crimes rebuild their lives. Yet allowing people to seal their criminal records or reclassify convictions is not the rule in states that have legalized or decriminalized possession of small amounts of marijuana. Bills that would remove or reduce convictions on people’s records are often opposed by lawmakers and prosecutors who argue that people who knowingly violated prior laws shouldn’t be let off the hook just because the law changed.

California has done more than any other state to require judges to excuse residents’ past marijuana crimes. That’s because the state took the issue to voters, Hernandez said. “Through the Legislature, we would not have gotten this.”...

Defense lawyers and other advocates for decreasing penalties for nonviolent drug crimes say that sealing someone’s record can change their life. Yet state data from Oregon and California — the states that have done the most to allow people to take convictions off their records — suggest that so far, only a fraction of people with marijuana convictions have asked to get them sealed or set aside.

Nearly half a million people were arrested for marijuana crimes in California over the past decade, according to the Drug Policy Alliance. But California courts have received just 1,506 applications for reclassifying past marijuana-related crimes since state residents gained the option to do so last year. The Drug Policy Alliance also says that more than 78,000 convictions could be set aside in Oregon. But courts received just 388 requests for set-asides in cases that involved a marijuana charge in 2015, 453 in 2016, and 365 so far this year, according to the Oregon Judicial Department.

It could be that many people just don’t know they can get their records sealed. Marijuana industry and legal defense groups have hosted free events in both states to help people file the right paperwork — though in both states, lawyers say filing a petition is straightforward enough to handle without an attorney.

Another problem may be that many people have complicated criminal records, Margolis said. “Those people — they have not benefited.” Courts are more likely to reject petitions from people with long criminal histories, Margolis said. For instance, someone’s conviction for marijuana cultivation might be paired with a money-laundering conviction, a delivery conviction, or a criminal-mischief conviction because a house was vandalized.

Some people may just decide that hiding their conviction from view isn’t worth the hassle. If someone has another crime on his record that can’t be wiped away, say an unrelated felony, he might not bother to eliminate a minor marijuana conviction. One of the convictions that can be sealed in Colorado and California is possession of an ounce or less of marijuana. But in both states, even before marijuana possession was legalized, possession of a small amount of marijuana was just an infraction or a petty offense, punishable by a $100 fine.

Still, the California ballot initiative’s emphasis on criminal justice reform and releasing people from the burden of past crimes may be the new normal moving forward. The initiative has become “the gold standard,” said Art Way, director of the Drug Policy Alliance’s Colorado office. He said that activists in New Mexico, New Jersey and New York are all lobbying for racial justice and, to some extent, retroactive relief for marijuana crimes.

November 21, 2017 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, November 15, 2017

Exploring criminal justice echoes of past marijuana conviction in era of reform

A student in my Marijuana Law, Policy & Reform seminar this week in his presentation is addressing what he calls "one narrow evidentiary aspect of a much broader area of study: the effect of legalization on how society and the law treat people with marijuana-related felonies who would not have been guilty of the offense after legalization." As he explains, he will be using California as a case study to "examine the effect of Proposition 64 (The Adult Marijuana Use Act) on Cal. Evid. Code 788, which allows parties to admit criminal records of convicted felons to impeach their credibility." Here are the materials he has suggested for class consumption in this way:

Digestible:

S.E. Smith, Punishing Felons After They've Served Their Time, This Ain't Livin' (Oct. 14, 2013) 

Chris Conrad, Current California Penalties vs. Prop 64: Adult Use of Marijuana Act, Drug Policy Action (2016)

In the Weeds:

J. Richards Couzens & Tricia A. Bigelow, Propositon 64: "Adult Use of Marijuana Act" Resentencing Procedures and Other Selected Provisions, Barrister Press (Nov. 2016) 

Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67 (2005).

Joshua Dressler, Hating Criminals: How Can Something that Feels So Good Be Wrong?, 88 Mich. L. Rev. 1448 (1990).

November 15, 2017 in Assembled readings on specific topics, Criminal justice developments and reforms | Permalink | Comments (0)

Tuesday, November 14, 2017

"Cannabis, alcohol and fatal road accidents"

The title of this post is the title of this notable new research article authored by Jean-Louis Martin , Blandine Gadegbeku, Dan Wu, Vivian Viallon, and Bernard Laumon. Here is its abstract:

Introduction

This research aims to estimate the relative risks of responsibility for a fatal accident linked to driving under the influence of cannabis or alcohol, the prevalence of these influences among drivers and the corresponding attributable risk ratios. A secondary goal is to estimate the same items for three other groups of illicit drugs (amphetamines, cocaine and opiates), and to compare the results to a similar study carried out in France between 2001 and 2003.

Methodology

Police procedures for fatal accidents in Metropolitan France during 2011 were analyzed and 300 characteristics encoded to provide a database of 4,059 drivers. Information on alcohol and four groups of illicit drugs derived from tests for positivity and potential confirmation through blood analysis. The study compares drivers responsible for causing the accident, that is to say having directly contributed to its occurrence, to drivers involved in an accident for which they were not responsible, and who can be assimilated to drivers in general.

Results

The proportion of persons driving under the influence of alcohol is estimated at 2.1% (95% CI: 1.4–2.8) and under the influence of cannabis at 3.4% (2.9%-3.9%). Drivers under the influence of alcohol are 17.8 times (12.1–26.1) more likely to be responsible for a fatal accident, and the proportion of fatal accidents which would be prevented if no drivers ever exceeded the legal limit for alcohol is estimated at 27.7% (26.0%-29.4%). Drivers under the influence of cannabis multiply their risk of being responsible for causing a fatal accident by 1.65 (1.16–2.34), and the proportion of fatal accidents which would be prevented if no drivers ever drove under the influence of cannabis is estimated at 4.2% (3.7%-4.8%). An increased risk linked to opiate use has also been found to be significant, but with low prevalence, requiring caution in interpreting this finding. Other groups of narcotics have even lower prevalence, and the associated extra risks cannot be assessed.

Conclusion

Almost a decade separates the present study from a similar one previously conducted in France, and there have been numerous developments in the intervening years. Even so, the prevalence of drivers responsible for causing fatal accidents under the influence of alcohol or narcotics has stayed remarkably stable, as have the proportion of fatal accidents which could in theory be prevented if no drivers ever exceeded the legal limits. The overall number of deaths from traffic accidents has dropped sharply during this period, and the number of victims attributable to alcohol and/or cannabis declined proportionally. Alcohol remains the main problem in France. It is just as important to note that one in two drivers considered to be under the influence of cannabis was also under the influence of alcohol. With risks cumulating between the two, it is particularly important to point out the danger of consuming them together.

November 14, 2017 in Criminal justice developments and reforms, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, November 8, 2017

A deep dive into the costs of raiding marijuana facilities

As mentioned repeatedly in recent posts, students in my Marijuana Law, Policy & Reform seminar are making presentations on marijuana-related topics of their choosing. One of the planned student presentations for this week will be exploring the "costs of raids" with "examples from states including Utah, California, and Colorado."  Here is an impressive array of materials/links that the student working on this topic has provided for class consideration:

"The High Cost of Shutting Down One Medical Marijuana Operation"

"Drug cops raid an 81-year-old woman’s garden to take out a single marijuana plant"

"DEA warns of stoned rabbits if Utah passes medical marijuana"

"Marijuana Law Enforcement Cost States An Estimated $3.6 Billion In 2010: ACLU"

"Wednesday's DEA Medical Marijuana Raids May Have Cost Taxpayers $12.3 Million"

"Weed dispensaries find legalization leaves them vulnerable to raids and harassment"

"Obama's War on Pot: In a shocking about-face, the administration has launched a government-wide crackdown on medical marijuana"

"Photos: DEA Raids Downtown Medical Marijuana Dispensary"

"Pot dispensary defenders say Toronto police raids were a 'disproportionate' and costly mistake"

"Canada's marijuana stocks on fire as dispensaries raids continue"

"Feds Spend $1 Million to Shut Down Single Marijuana Dispensary"

"New Report: Marijuana Raids Cost Lives, Cannabis Doesn’t"

"Feds Have Lost to the States on Marijuana: Denver Raids Add Proof"

"What's The Co$t?: The Federal War on Patients"

"The Price of Cannabis: An analysis of how decriminalization and Federal enforcement affect the price of marijuana"

November 8, 2017 in Assembled readings on specific topics, Criminal justice developments and reforms | Permalink | Comments (0)

Tuesday, October 31, 2017

Alaska marijuana tax revenues growing, which means more resources to help reduce criminal recidivism

Alaska-weed-webAs reported in this new local article, headlined "Alaska cannabis tax revenue tops $700K in September," the Last Frontier is continuing to reach new firsts when it comes to taxes collected from marijuana reform.  Here are the details:

Alaska's marijuana tax revenue continued a steady climb upward in September, with $723,757 collected statewide, according to a state official. Sixty-four growers from across the Interior, Southcentral and Southeast paid taxes to the Alaska Department of Revenue last month, wrote Kelly Mazzei, excise tax supervisor in the tax division.

Under Alaska's law, growers pay the tax of $50 an ounce for bud, and $15 an ounce for other parts of the plant, like leaves and stems. A total of 716 pounds of bud was sold wholesale in September, and 630 pounds of trim, according to data provided by Mazzei....

To date, Alaska has collected $3,741,810 in cannabis taxes. Most of it — a full 68 percent — has been paid in cash, Mazzei wrote. Alaska's first marijuana shop opened for business Oct. 29, 2016. Revenue was slow to start, as demand outweighed supply, and retailers struggled to get enough cannabis in their shops to keep their doors open.

In June, revenue nearly doubled after three months of hovering around $250,000. Since then, tax revenue has steadily climbed. Mazzei wrote that October's revenue could top $1 million, a potentially "amazing milestone" for the state. Many local governments have also put additional cannabis sales taxes in place.

Last year, the Alaska Legislature budgeted half of the cannabis tax to programs aimed at reducing repeat criminal offenders. The other half goes into the general fund.

Because I think of marijuana reform as, first and foremost, a form of criminal justice reform, I love the fact that Alaska has decide to commit half of its marijuana tax revenue to improving public safety and its criminal justice system. This article from July 2016, headlined "Here's where half of the revenue from Alaska's legal pot will go," provides these details:

Gov. Bill Walker signed Senate Bill 91, a comprehensive criminal reform bill meant to reduce the state's prison population and its associated costs. Included in the bill is a provision that diverts half of the state's cannabis excise taxes to programs aimed at reducing repeat criminal offenders, under a newly created recidivism reduction fund.

Marijuana will be taxed at $50 an ounce. Based on projected marijuana sales, the state hopes $3 million will go toward the recidivism reduction fund in fiscal year 2017, and $6 million in subsequent years.

The marijuana tax money will be used to fund the Department of Corrections' Substance Abuse Treatment Program, which will receive $700,000, and community residential centers, which will receive $300,000; the Department of Health and Social Services' Behavioral Health Treatment and Recovery Grants, which will receive $1 million; and the Department of Public Safety's Council on Domestic Violence and Sexual Assault, which will also receive $1 million.

Because fiscal year 2017 for Alaska started in July and the first 3 months have already brought in nearly $2 million in taxes and revenue growth is continuing, it would appear Alaska could have even more tax revenue than expected going to these important criminal justice concerns.

October 31, 2017 in Criminal justice developments and reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Split New Jersey appeals court holds state officials can (and should?) consider reclassifying marijuana under state drug schedules

The Appellate Division of the Superior Court of New Jersey issued an interesting opinion today in Kadonsky v. Lee, No. A-3324-14T4 (N.J. App. Oct 31, 2017) (available here), resolving a appeal of the denial of a petition "seeking to have marijuana rescheduled from a Schedule I controlled dangerous substance to Schedule IV" under New Jersey laws. The majority remanded the case, explaining that reconsideration of marijuana's scheduling could be done under existing laws:

While this issue is not squarely before us, it is certainly ripe for a determination by the Director. When the inconsistencies of sections (a) and (c) of N.J.S.A. 24:21-3 are viewed through the prism of the dicta in Tate, we conclude that the Director erred in determining he lacked the authority to reclassify marijuana without a change in existing federal law.

The dissenting opinion starts with an effective account of the ruling and the judges' disagreements:

The question presented by this appeal is whether, as a result of evolving attitudes about marijuana and its potential for medical uses, the Director of the Division of Consumer Affairs was required to reschedule marijuana, removing it from Schedule I of the New Jersey Controlled Dangerous Substances Act (CDSA), N.J.S.A. 24:21-1 to -56.  The Director's decision that he was required, instead, to control marijuana in accord with federal schedules is subject to limited appellate review.  Circus Liquors, Inc. v. Governing Body of Middletown, 199 N.J. 1, 9 (2009).  In light of the unambiguous language of N.J.S.A. 24:21-3(c) that the Director adhere to federal schedules, his decision must be sustained because there is no "'clear showing' that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record." Ibid.

My colleagues conclude the Director erred in his interpretation of the law but do not conclude the Director's decision was arbitrary, capricious or unreasonable or consider that a fair interpretation of the governing statute provides support for his decision.  They have elected to decide an issue they acknowledge "is not squarely before us."  Despite the clear directive in N.J.S.A. 24:21-3(c), the majority concludes the Director may reconsider the classification of marijuana, placing it on a schedule different from its designation on the federal schedules and, because the issue is "ripe for determination" by the Director, remands the issue for his consideration.

The necessary premise for this conclusion is that the Director has the discretion to make a major policy decision regarding the scheduling of marijuana that directly conflicts with the legislative mandate contained in N.J.S.A. 24:21-3(c) and federal law.  That premise cannot withstand the application of established principles of statutory construction.

October 31, 2017 in Court Rulings, Criminal justice developments and reforms, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Notable look at criminal justice footprint of marijuana prohibition in Virginia

May 21  2015This new local article, headlined "Virginia State Crime Commission briefed on marijuana decriminalization study, hears from public," reports on some new research and discussion of marijuana prohibition in the Old Dominion State.  Here are highlights:

In the 10-year period ending last year, there were 133,256 arrests in Virginia for possession of marijuana, 84 percent of them first-time offenses.  Nevertheless, relatively few people go to jail in the state solely for possession of marijuana, according to a study prompted by a proposal that would decriminalize the possession of small amounts of the drug for personal use.

The report by the staff of the Virginia State Crime Commission found that on July 20, there were 96 jail inmates awaiting trial for possession of marijuana and 31 serving jail time after conviction.  State figures show there were more than 29,000 people in Virginia’s jails that same day.

State crime commission members were briefed on the findings of the months-long study prior to taking mixed comment from 32 people at a hearing Monday. Under the proposal, possession of small amounts of marijuana would remain illegal but would become a civil offense, instead of a criminal one.

“We are here to talk about decriminalization, not legalization,” said state Sen. Thomas K. Norment Jr., R-James City, to those in attendance. Norment, a member of the crime commission, helped prompt the study out of concerns about the collateral consequences of such convictions.  Colin L. Drabert, senior staff attorney for the commission, outlined some of those ramifications, which can include effects on employment, federal higher education aid, housing, immigration status, the ability to purchase or transport a firearm, and child custody.

Roy Scherer, who has long lobbied for the reform of the state’s marijuana laws, was one of the first speakers. “I’d like to congratulate you. The idea of decriminalizing marijuana is only 45 years old. So Virginia is catching up,” he told the commission.  A representative of the National Organization for the Reform of Marijuana Laws thanked the commission for considering the matter and said none of the states that have decriminalized have reversed course, showing the move is effective.

Two other early speakers strongly opposed the proposal, with one likening it to opening Pandora’s box. Another speaker said decriminalization would reduce the perception of harm the drug represents. “Marijuana is still an addictive, harmful drug. ... Please protect our youth,” she said.

A representative of the American Automobile Association told the commission that the organization does not have a position on the bill, but she urged legislators to carefully consider the possible impact on traffic safety.

The report found that 30 states have criminal penalties for possession; eight states and the District of Columbia allow for legal recreational use; seven states have civil or other noncriminal penalties; and five states have blended civil and criminal penalties.

In Virginia, the law does not specify an amount of marijuana to be considered for personal use, as opposed to amounts that could be construed as possession with the intent to distribute.  A first conviction can result in up to 30 days in jail and a $500 fine.  A defendant’s driver’s license is revoked for six months if convicted or if a judge defers deciding the matter.  Roughly half of first-time offenders charged are convicted, and of that number the great majority serve no jail sentence....

 

Drabert reported that the crime commission’s staff has received nearly 4,000 written comments from the public regarding the proposal, with 3,743 supporting decriminalization and 107 not supporting.  The staff will now consider the remarks as well as suggestions from commission members and make recommendations for the commission to consider at a future meeting.  Endorsement of legislation by the commission does not ensure passage of a bill, but it carries great weight in the legislature.

I believe the report reference in this article from the Virginia State Crime Commission is available at this link. There are some interesting case processing details in the slides of this report that folks outside of Virginia may want to look at.

October 31, 2017 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States | Permalink | Comments (1)

Wednesday, October 18, 2017

ACLU of Pennsylvania reports on a "Cannabis Crackdown" in form of increased and disparate marijuana arrests in most of the state

41b7c95bb04dddc3f92b10784f2131f5_f3209As reported via this press release, headlined "ACLU of Pennsylvania Analysis Shows Statewide Increase in Marijuana Arrests," a new report has some interesting new data on marijuana arrests in the Keystone state. Here are the basics from the release:

The American Civil Liberties Union of Pennsylvania released a new report [on October 16] that analyzes seven years of arrest data for marijuana offenses in the commonwealth. Based on Pennsylvania’s Uniform Crime Reporting System data over a period of seven years, the analysis shows a rise in marijuana possession arrests of adults of 33 percent in 66 counties between 2010 and 2016. Philadelphia was exempted from that analysis because its decriminalization ordinance led to a dramatic drop in arrests there in 2015 and 2016, and that drop was a significant outlier in the data set.

The study also shows that black people statewide are more than eight times more likely than white people to be arrested for marijuana possession, despite similar usage rates among people of different races....

Among its findings, the report found that the Pennsylvania State Police (PSP) is one of the leading drivers of the increase in arrests.  PSP’s total arrests per year for possession more than doubled in seven years, from 2,221 arrests in 2010 to 4,612 in 2016. Using fiscal analysis from a 2015 report by the RAND Corporation, the ACLU of Pennsylvania estimates that Pennsylvania taxpayers have spent more than $225 million in enforcing its marijuana laws between 2010 and 2016.

The report, entitled “Cannabis Crackdown,” shows that racial disparities have actually become worse over the last seven years. In 2010, black people in Pennsylvania were 6.5 times more likely than white people to be arrested for marijuana possession. By 2016, that disparity had grown to 8.2 times more likely.

The full report is available at this link, and here is one excerpt from its executive summary:

The report finds that between 2010 and 2016, there were nearly 178,000 marijuana-related arrests in Pennsylvania, nearly 80 percent of which were for possession. Marijuana possession3 accounted for about 48 percent of Pennsylvania’s overall drug possession arrests for adults in 2016.

Adult marijuana possession arrests decreased slightly when looking at all 67 Pennsylvania counties over the last seven years, by less than five percent. That decrease, however, was due largely to a remarkable drop in enforcement in Philadelphia. By far Pennsylvania’s most populated county and its largest city, Philadelphia decriminalized marijuana in October 2014. The city implemented a municipal civil offense for possession of less than 30 grams of marijuana and enforced it in lieu of the commonwealth’s misdemeanor offense. Thus, Philadelphia County saw a resulting drop in adult marijuana possession arrests of more than 88 percent between 2010 and 2016.

Eliminating Philadelphia’s extraordinary decreases and looking only at Pennsylvania’s other 66 counties, marijuana arrests surged. Excluding Philadelphia, the commonwealth’s overall marijuana possession arrest numbers for adults and juveniles combined increased by nearly 25 percent between 2010 and 2016. Total possession arrests for adults alone increased by more than 33 percent commonwealth-wide when Philadelphia’s numbers were not included.

October 18, 2017 in Criminal justice developments and reforms | Permalink | Comments (0)

Thursday, October 5, 2017

"Cannabis Industry Struggles With Hiring People With Past Pot Convictions"

The title of this post is the headline of this notable new Forbes article, which includes these passages:

As the cannabis industry continues to grow, a debate is brewing over whether those with drug convictions should be allowed in the industry. Marijuana businesses are in a position of uncertainty amid U.S. Attorney General Jeff Sessions' anti-drug rhetoric. Meanwhile, the fast-growing, multi-billion-dollar industry is drawing investors and entrepreneurs.

Indeed, there is a hypocrisy evident in some corners of the newly legal marijuana market. Earlier this year, Massachusetts medical marijuana provider Patriot Care drew controversy after it opposed a proposal to remove the ban on felony drug convictions from the state's medical cannabis program. "Permitting those who have demonstrated the interest and willingness to ignore state and federal drug laws sends the wrong signals to those who would participate in the legal, regulated industry," wrote Robert Mayerson, CEO of Patriot Care, in a letter to the Massachusetts Public Health Council.  While companies like Patriot Care operate legally under state law, all state-legal cannabis companies are violating federal drug laws.

Many states have marijuana laws that bar drug offenders from entering the cannabis industry in an effort to legitimize the trade and help prevent out-of-state diversion. In practice, the ban does not prevent trafficking.  But it does shut out individuals with marijuana-related convictions, who are disproportionately black and Latino. And in a twist of absurdity, many of these felony bans apply only to drug-related crimes.

“You can go to a cannabis investment conference and no one is talking about the fact that just down the road there are people who are incarcerated for smoking or dealing or growing this very same product,” said Ryan Anslin, who has been investing in the industry for nearly four years.  “To entirely leave that out of an investment conversation is fundamentally wrong.” Anslin believes that those in the industry are obligated to put resources towards changing drug laws. "There's a level of complacency that has emerged in the early industry," he said.  While that may be the case for many investors and operators, other players are working towards creating an equitable industry.

Derek Peterson, the CEO of Terra Tech, thinks it's a "disaster" that there are executives in the marijuana space who oppose social justice reforms. Terra Tech is a publicly traded cannabis company that operates in California and Nevada, and has a cultivation facility in Oakland, Calif. with minority interest.  Peterson says the company supports equity programs like that in Oakland, and it is working with lobbyists to insert criminal justice-reform language into legalization legislation in New Jersey. "We don't feel very comfortable about the opening up of markets and economic development [while] watching people sit in prison," he said. "There needs to be allowances in new legislation that allows for people who have been incarcerated for drug crimes to [enter] this industry."

Barring those with experience in the illicit market could also shut out people with relevant expertise. "[It's] doing a disservice to some of the best knowledge base in the cannabis industry. These are the guys who paved the way," said Rob Hunt, principal of the consulting firm ConsultCanna who was formerly a founding partner of the cannabis private equity firm Tuatara....

For Anslin, the key to crafting reforms is focusing on record expungement. "As an employer in the space… I would always be really careful to hire people who have knowingly done things against the letter of the law," he said. But when it comes to certain marijuana offenses, "they shouldn't have been convicted of anything to begin with."

October 5, 2017 in Business laws and regulatory issues, Criminal justice developments and reforms, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, October 3, 2017

Unpacking marijuana arrest data in Massachusetts for the year the state voted for recreational reform

20170927_weedThis recent Boston Globe article canvasses some interesting data on marijuana arrests in Massachusetts under the headlined "Marijuana arrests plunge in 2016, but racial disparity remains."  Here are some of the details:

Police officers in Massachusetts, which in 1911 became the first US state to make cannabis illegal, arrested fewer people for marijuana-related offenses last year than they have in decades. But look at the people who were arrested in 2016, and there’s a clear pattern: They’re disproportionately black. That’s the upshot of new data collected by the FBI from most of Massachusetts’ municipal and statewide law enforcement agencies for an annual compendium of crime statistics.

While Massachusetts voters legalized marijuana in a statewide referendum last November, that law only took effect in mid-December. The arrest numbers, therefore, mostly reflect the earlier legal landscape in which possession of less than one ounce was decriminalized but growing and selling the drug were illegal. That means arrests for possession concerned larger amounts.

The FBI sorts arrests into two somewhat broad categories: those for possession, and those for “sale/manufacture,” which in the case of marijuana includes growing it. Also, because of the way the federal government defines race, a portion of the “white” category includes Latinos. With that in mind, here are the findings:

- 545 people were arrested in Massachusetts in 2016 for selling or growing marijuana. That’s down from 1,031 in 2013, and roughly 1,500 each year from 2006 to 2012, according to the ACLU.

- 308 people were arrested in Massachusetts in 2016 for marijuana possession, down 96.5 percent from the 8,695 marijuana-related arrests made in 2008, the year before decriminalization took effect. It’s also half of the 616 arrests in 2014. The law didn’t change between 2014 and 2016, but thousands of people in Massachusetts during that period signed up for medical marijuana cards that make it legal to possess more cannabis and, in some cases, grow it.

- 28.9 percent of those arrested for marijuana possession in 2016 were black, in a state whose population was 8.6 percent black last year.

- The arrest rate of black people for marijuana possession offenses in 2016 was 15.19 per 100,000, about four times that of white people (3.79 per 100,000).

-42.2% of those arrested for growing or selling marijuana in 2016 were black. That’s up a tick from 2014, when 41 percent of those arrested for dealing were black.

- The arrest rate of black people for marijuana sale or cultivation was 39.3 per 100,000, seven times higher than the rate at which whites were arrested for the same offenses (5.35 per 100,000). Still, that’s lower than in 2014, when according to the ACLU the figure stood at 70.73. In 2008, it was ever higher: 106.58.

On one hand, the numbers suggest that campaigners for liberalizing marijuana laws (and the corresponding decrease in enforcement) are accomplishing one of their key goals, however slowly: reducing the impact of drug arrests on minority communities. However, even as fewer and fewer black people are sent to prison for marijuana offenses, the FBI data show they are still arrested at significantly higher rates than white people.

Meanwhile, it seems likely that black and white residents of Massachusetts use marijuana at similar rates. According to some admittedly stale federal data collected between 2002 and 2009, about 16.6 percent of black Massachusetts residents reported using marijuana once a year or more, while 14.4 percent of white residents said the same. It’s a modest gap, one that hardly accounts for the disparities among arrests.

Shaleen Title, a former marijuana activist who earlier this month was appointed to the new Cannabis Control Commission, said the findings were consistent with what happened in other states when marijuana laws were liberalized. “Arrests decline dramatically, but the racial disparities in the remaining arrests don’t necessarily disappear,” she said. “As our state law specifically acknowledges and addresses, the war on drugs has been disproportionately waged against certain communities. This new data confirms that legalization alone does not solve the disparity.”

October 3, 2017 in Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink | Comments (0)

Thursday, September 28, 2017

Al Sharpton makes the case for "decriminalization of marijuana [as] a civil rights cause"

2017-06-18T12-33-13-3Z--1280x720_video_512x342The controversial former Prez candidate Al Sharpton has this notable new commentary in The Guardian under the (anglicized) headline "Why the decriminalisation of marijuana is a civil rights cause." Here are excerpts:

There is no greater act of resistance than continuing to march towards the sweeping, systemic victories that have changed our nation’s trajectory for the better: voting rights, anti-employment discrimination measures, and most recently, President Obama’s success in securing health coverage for the 20 million Americans who were previously denied this universal human right.  Determined to punish the rising majority of Americans he thinks have slighted him, our president may erode these freedoms, but he will not succeed in taking them.

This is why I am proceeding undaunted towards our country’s next transformative victory – a fight I planned to pick under a Democratic administration, but one we should pursue just as vigorously in the reactionary Trump era: decriminalization of marijuana.  It is a civil rights cause that we should not postpone, but accelerate during these dark and difficult times.

For Democrats and progressives, the arguments have always been clear: generations of Americans, overwhelmingly people of color, have been imprisoned and starved of access to higher education, housing, and economic opportunities, and stripped of their inalienable right to vote thanks to non-violent acts.  Billions of dollars in funding have been diverted from healthcare, jobs, and schools and have entrenched a prison-industrial complex built on a foundation of racism.

But in truth, the conservative case for marijuana decriminalization is no less resonant. Archaic drug laws have fueled wasteful government spending, and made millions of Americans who dream, achingly, of being their family’s breadwinner dependent on the charity of others. And they have given rise of the epidemic of opiate drugs – often legally manufactured and prescribed – devastating communities that pundits have taken to calling the ‘white working class.’

The often-repeated reference to the ‘white working class’ has grown counterproductive as it focuses on a narrowly defined group instead of using more broader, inclusive categories. It also stifles the creative thinking and organizing needed to guide our efforts for the remainder of this presidency.  On the issue of medical marijuana, a more accurate term for the residents of these hard-hit towns and regions – many of whom voted for President Trump – would be natural allies to the movement to decriminalize marijuana.

In the coming weeks, I will be joining Decode Cannabis, a powerful new alliance of faith leaders, criminal justice reformers, healthcare practitioners, medical marijuana industry leaders and labor unions.  For years, these groups have labored toward shared goals, but have too often done so in their respective silos.  This initial coalition is impressive, but it is not enough to succeed.  At least not on its own.

To notch proactive policy wins in the Trump era, we must not retreat to the comfort of those of share our viewpoints.  We must enter the lion’s den – even uninvited – to confront and cultivate the prospective allies who will mutually benefit from this cause.  We must not allow the unique opportunities resulting from the intensifying rift between the White House and conventional Republicans to be squandered.

September 28, 2017 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Monday, September 25, 2017

Grinding out marijuana arrests withing rising drug arrests in latest FBI crime data

As reported in this post over at my sentencing blog, the 2016 edition of the FBI’s annual report Crime in the United States was released earlier today.  This FBI report also includes arrest data, and Tom Angell has been quick to review and report on what the new data say about marijuana arrests and drug arrests more generally.  Here are headlines/links and data from Tom's two early reports via Forbes:

"Drug Arrests On The Rise In US: New FBI Data"

The numbers, released on Monday, show that there were 1,572,579 drug arrests in the U.S. in 2016.  That's an average of one drug arrest every 20 seconds.  The total number is up roughly 5.6% from the 1,488,707 arrests for drug crimes in the country in 2015.  The increasing drug bust rate stands in contrast to the public-health-focused rhetoric from Obama administration drug officials who consistently tried to move away from "war on drugs" terminology.

"Trump Administration Makes It Harder To Track Marijuana Arrests (But I Did It Anyway)"

New FBI data reveals that drug arrests increased in the United States last year. But due to a change in how the annual law enforcement numbers are publicized, it is now harder to determine how many people were busted for marijuana or other drugs specifically....

The annual publication, based on data from the FBI's Uniform Crime Report (UCR), has in years past contained a convenient table that shows the percentage of drug arrests accounted for by marijuana possession or heroin or cocaine sales and manufacturing..... But the new data, released on Monday, contains no such helpful breakdown.

The removal of the table is part of an overall paring back of information made publicly available with the report. "The UCR Program streamlined the 2016 edition by reducing the number of tables from 81 to 29," Stephen G. Fischer Jr., the chief of multimedia productions for the FBI's Criminal Justice Information Services Division, said in an email.

Helpfully, however, Fischer did share FBI's internal drug-by-drug breakdown numbers, and here's what they reveal: Marijuana possession busts comprised 37.36% of all reported drug arrests in the U.S. in 2016, and cannabis sales and manufacturing arrests accounted for another 4.18% of the total.

Added together, marijuana arrests made up 41.54% of the 1,572,579 drug busts in the country last year.  That means, based on an extrapolation, that police arrested people for cannabis 653,249 times in the U.S. in 2016. That averages out to about one marijuana arrest every 48 seconds.

According to the same calculation, there were 643,121 U.S. cannabis arrests in 2015.  So arrests for marijuana are on the rise, even as more states legalize it.

September 25, 2017 in Criminal justice developments and reforms | Permalink | Comments (0)

Tuesday, September 19, 2017

Massachusetts top court addresses challenging issues surrounding marijuana and proof of impaired driving

A9550b3be615060eb72595ef090dc566The Massachusetts Supreme Judicial Court this morning issued a unanimous opinion in Commonwealth v. Gerhardt, No. SJC-11967 (Mass. Sept. 19, 2017) (available here), which addresses matters of proof of marijuana-impaired driving.   This Boston Herald account of the ruling provides a punny summary in its headline: "SJC spliffs the difference in marijuana OUI case." Here is how the actual opinion gets started:

In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs -- the "horizontal gaze nystagmus test," the "walk and turn test" and the "one leg stand test" -- during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs.  These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

 

By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

 

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. We conclude that, to the extent that they are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment. The introduction in evidence of the officer's observations of what will be described as "roadside assessments" shall be without any statement as to whether the driver's performance would have been deemed a "pass" or a "fail," or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

September 19, 2017 in Court Rulings, Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Sunday, September 10, 2017

Limit on DOJ funding for medical marijuana prosecutions extended to December 2017 in stop-gap spending bill

As reported in this prior post, last week early developments in the US House of Representatives made uncertain the prospects for continuation of the spending rider that currently blocks the US Justice Department from going after state-compliant medical marijuana actors.  But, as this Cannabist article reports, another stop-gap spending bill keeps the DOJ spending limit in place for at least another three months.  The article is headlined "Rohrabacher-Blumenauer medical marijuana protections extended by debt limit deal," and here are the details:

Existing federal protections for medical marijuana states are expected to continue through at least Dec. 8.  The $15.3 billion disaster aid package, debt limit increase and government spending extension approved by Congress on Friday includes the existing Rohrabacher-Blumenauer provision, which prevents the Justice Department from using funds to interfere with the 46 states that have legalized some form of medical marijuana.

The aid bill, which was sent to President Donald Trump, extends the omnibus legislation passed in May and will fund the government through Dec. 8.  The short-term spending fix is also a short-term victory for Rohrabacher-Blumenauer sponsors, which were dealt a blow by the House Rules Committee earlier this week. The legislative committee nixed the amendment from House consideration for the fiscal year 2018 funding bill.

“We have at least three months of certainty now, but the fight isn’t over,” officials for Rep. Earl Blumenauer, D-Oregon, told The Cannabist on Friday.  That fight includes efforts to land the provision in the final spending bill, officials said, noting the language was included in the Senate Appropriations Committee’s approved version of the bill.

September 10, 2017 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, August 20, 2017

"Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine"

The title of this post is the title of this notable new article authored by Kevin Cole now available via SSRN. Here is the abstract:

When simple possession of marijuana was invariably illegal under state law, a dog alert or a police officer’s own perception of the scent of raw or burnt marijuana sufficed to permit a search for the source of the scent.  As states went beyond decriminalization to legalize possession, for medical or recreational use, the smell of marijuana became less probative on the question of whether the state’s laws were being violated.  

But even in legalization states, courts have upheld an officer’s right to search a car upon detecting the scent of marijuana.  The courts’ explanations have been analytically troubling. Analyzing the problem is complicated by more general phenomena: the Supreme Court’s reluctance to specify in greater detail the nature of the probable cause requirement, and the Court’s differing approaches to the significance of state law in federal constitutional doctrine.

August 20, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Saturday, August 12, 2017

"Legalizing Pot Is a Bad Way to Promote Racial Equality"

The title of this post is the headline of this recent Wall Street Journal commentary authored by Jason Riley in response to Senator Cory Booker's new federal marijuana reform bill. Here are excerpts:

Cory Booker, New Jersey’s ambitious junior senator, has gone to pot. Last week the Democrat introduced a bill that would legalize marijuana at the federal level while withholding funds from states that don’t legalize it and that disproportionately incarcerate “low-income individuals and people of color for marijuana-related offenses.”

The legislation may help Mr. Booker burnish his image with progressives if he runs for president in 2020, but it almost certainly is going nowhere. Republicans control Congress, and Attorney General Jeff Sessions is a drug warrior, which is one reason President Trump put him in charge of the Justice Department.  Nevertheless, Mr. Booker’s arguments for drug legalization are worth considering because they represent a large and growing consensus. Support for marijuana legalization has nearly doubled to 60% since 2000, according to a 2016 Gallup survey. Even 42% of Republicans support legalization.

In his Facebook posts promoting the bill, Mr. Booker cites some of the more common rationales put forward by proponents of pot legalization, including racial disparities in drug arrests and prisons teeming with “nonviolent” offenders that drain state budgets. “In the United States today, black people are almost four times more likely than their white counterparts to be arrested for marijuana use or possession,” writes the senator. “This is the right thing to do for public safety, and will help reduce our overflowing prison population.”

Mr. Booker believes drug legalization would address these racial disparities, but don’t bet on it. Violent offenses, not drug offenses, drive incarceration rates, and blacks commit violent crimes at seven to 10 times the rate whites do. Data from 2015, the most recent available, show that about 53% of people in state prisons (which house nearly 90% of the nation’s inmates) were imprisoned for violent crimes, 19% for property crimes and just 16% for drug crimes. Given that blacks are also overrepresented among those arrested for property and other nonviolent offenses, merely altering U.S. drug laws would effect little change in the racial makeup of people behind bars.

Much is made of studies that show blacks and whites use drugs at similar rates.  But a large majority of drug arrests are for trafficking, not possession, so we shouldn’t expect usage rates and arrest rates to be identical.  Anyway, marijuana offenders of any race occupy relatively few jail and prison cells, and the ones who do tend to be dealers. “As a percentage of our nation’s incarcerated population, those possessing small amounts of marijuana barely register,” writes James Forman, a former District of Columbia public defender, in his new book, “Locking Up Our Own.”  He continues: “For every ten thousand people behind bars in America, only six are there because of marijuana possession.”...

But if the goal is more racial parity in our penal system, drug legalization seems like an odd place to start.  Citizens of Washington state and Colorado voted to make recreational pot legal in 2012.  A 2016 study from the Center on Criminal and Juvenile Justice found that while pot arrests overall were down in Washington, large racial discrepancies remained.  In fact, blacks were still twice as likely as whites to be arrested for marijuana-related offenses.  And Jeff Hunt of Colorado Christian University reports that the illegal market for weed in the Rocky Mountain State is still thriving and seems to have exacerbated racial inequities.  “According to the Colorado Department of Public Safety, arrests in Colorado of black and Latino youth for [underage] marijuana possession have increased 58% and 29% respectively after legalization,” Mr. Hunt wrote in USA Today recently.  “This means that Black and Latino youth are being arrested more for marijuana possession after it became legal.”

Astute observers of US criminal justice systems might well predict that we could see worsening racial disparities if and when there are fewer arrests and prosecutions for marijuana activity. Data on incarceration in US states generally show that the states with smaller prison populations actually have greater disparities within these smaller numbers. And it does create an interesting and important normative question for those especially concerned with racial equality whether they should celebrate a big decrease in marijuana arrests and prosecutions if only certain favored groups get a disproportionate benefit from such a change.

August 12, 2017 in Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink | Comments (0)

Friday, August 4, 2017

AG Sessions Task Force reportedly not pushing for a crack-down on marijuana reform states

As reported in a new AP article, which the Washington Times gives the headline "Sessions task force on marijuana not producing ammo to bolster federal war on weed," it appears that the DOJ task force looking at federal marijuana policies is not advocating any major changes for now.  Here are the basic details:

The betting was that law-and-order Attorney General Jeff Sessions would come out against the legalized marijuana industry with guns blazing. But the task force Sessions assembled to find the best legal strategy is giving him no ammunition, according to documents obtained by The Associated Press.

The Task Force on Crime Reduction and Public Safety, a group of prosecutors and federal law enforcement officials, has come up with no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views. The group’s report largely reiterates the current Justice Department policy on marijuana.

It encourages officials to keep studying whether to change or rescind the Obama administration’s hands-off approach to enforcement — a stance that has allowed the nation’s experiment with legal pot to flourish. The report was not slated to be released publicly, but portions were obtained by the AP.

Sessions has been promising to reconsider that policy since he took office six months ago. He has assailed marijuana as comparable to heroin and blamed it for spikes in violence. His statements have sparked support and worry across the political spectrum as a growing number of states have worked to legalize the drug....

[T]he tepid nature of the recommendations signals just how difficult it would be to change course on pot. Some in law enforcement support a tougher approach, but a bipartisan group of senators in March urged Sessions to uphold existing marijuana policy. Others in Congress are seeking ways to protect and promote pot businesses.

The vague recommendations may be intentional, reflecting an understanding that shutting down the entire industry is neither palatable nor possible, said John Hudak, a senior fellow at the Brookings Institution who studies marijuana law and was interviewed by members of the task force....

The task force suggestions are not final, and Sessions is in no way bound by them. The government still has plenty of ways it can punish weed-tolerant states, including raiding pot businesses and suing states where the drug is legal, a rare but quick path to compliance. The only one who could override a drastic move by Sessions is President Donald Trump, whose personal views on marijuana remain mostly unknown.

Rather than urging federal agents to shut down dispensaries and make mass arrests, the task force puts forth a more familiar approach. Its report says officials should continue to oppose rules that block the Justice Department from interfering with medical marijuana programs in states where it is allowed. Sessions wrote to members of Congress in May asking them — successfully so far — to undo those protections. The Obama administration also unsuccessfully opposed those rules.

The report suggests teaming the Justice Department with Treasury officials to offer guidance to financial institutions, telling them to implement robust anti-money laundering programs and report suspicious transactions involving businesses in states where pot is legal. That is already required by federal law.

And it tells officials to develop “centralized guidance, tools and data related to marijuana enforcement,” two years after the Government Accountability Office told the Justice Department it needs to better document how it’s tracking the effect of marijuana legalization in the states.

Most critically, and without offering direction, it says officials “should evaluate whether to maintain, revise or rescind” a set of Obama-era memos that allowed states to legalize marijuana on the condition that officials act to keep marijuana from migrating to places where it is still outlawed and out of the hands of criminal cartels and children, among other stipulations. Any changes to the policy could impact the way pot-legal states operate, but the task force offers no further guidance on how to do that.

It remains unclear how much weight Sessions might give the recommendations. He said he has been relying on them to enact policy in other areas. Apart from pot, the task force is studying a list of criminal justice issues and the overall report’s executive summary says its work continues and its recommendations “do not comprehensively address every effort that the Department is planning or currently undertaking to reduce violent crime.”

August 4, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Reactions to Cory Booker's Marijuana Justice Act

Senator Cory Booker (D NJ) has introduced a proposal to repeal the federal marijuana ban. In a nutshell, Booker’s Marijuana Justice Act (MJA) would exempt marijuana from the Controlled Substances Act.

I believe Booker’s proposal is incomplete (and therefore, both unwise and politically unpalatable) because it fails to offer any replacement for prohibition. I develop this argument in a new op-ed at Fortune: http://fortune.com/2017/08/04/senator-cory-booker-marijuana-bill-justice-act-legalization/. Check it out.

The MJA does one additional thing that is worth noting but which I did not have space to address in Fortune: It pressures states to repeal their own marijuana bans. It does so by withholding a portion of federal law enforcement grants from prohibition states (and only prohibition states) if “the percentage of minority individuals arrested [or incarcerated] for a marijuana related offense in a [prohibition] State is higher than the percentage of the non-minority individual population of the State.” (The measure has similar language regarding treatment of low-income populations, but to simplify I’ll focus on racial minorities.)

The wording of the condition is somewhat opaque (raising its own set of problems), but let me illustrate how I think the condition would work in a hypothetical state with a 30% minority population. If minorities comprised more than 70% of those persons arrested or incarcerated on marijuana charges in that state, the state would lose some federal grant money going forward. If minorities comprised 70% or less of those arrested or incarcerated, the state would retain full eligibility for federal grants. The fact that this provision is aimed only at prohibition states (what the MJA calls “Covered States”) is why I say it pressures states to legalize marijuana: if a state does so, its federal grants are safe, even if it enforces any remaining prohibitions--say, on possession by minors--disproportionately against minorities. (This has happened in some legalization states, as in discuss in my book on pages 249 and 521).

I think this is an interesting and novel proposal to address race (and class) disparities in the enforcement of criminal law, and it deserves further consideration. But I think it also raises a handful of serious constitutional concerns (not to mention practical and political ones). Let me briefly flag just two of those legal concerns here.

One problem is that the MJA arguably fails to give states adequate notice of the new conditions it imposes on the receipt of federal grants. The problem arises from tying federal grant funds to the composition of the presently incarcerated population. The problem is that disparities in the racial composition of the incarcerated population undoubtedly stem from actions taken by the states in the past– i.e., before they were aware of the new condition. After all, many of those who are now serving time in state prison on marijuana charges would have been arrested and prosecuted years ago. Even though Congress can condition federal funds on states doing (or not doing) X, Y, and Z, it has to give them clear notice of those conditions in advance. E.g., Arlington v. Murphy, 548 U.S. 291 (2006). I’m not sure whether a condition that seemingly requires states to remedy past discrimination (e.g., by releasing inmates) would pass muster under this test.

A second concern is that the measure arguably amounts to reverse discrimination (or pressures states to engage in the same) in violation of the Equal Protection Clause. Return to my hypothetical state above, with a minority population of 30%. Suppose, fancifully, that this state arrested and incarcerated on marijuana charges only whites. Under the MJA, there would be no consequences for this state. In other words, the MJA only punishes a state if it discriminates against minorities. And the MJA would appear to pressure states to engage in reverse discrimination – for example, to keep its federal grant dollars, a state might have to release only minorities currently serving prison time on marijuana charges, or selectively target whites for marijuana arrests (so as to balance the ledger).  Again, this approach might survive constitutional scrutiny, but it raises some doubts.

The simpler solution might be to preempt state marijuana bans. As I’ve argued elsewhere, that’s a permissible approach for Congress to take and would avoid the clear notice and Equal Protection concerns raised by the MJA.

August 4, 2017 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, July 27, 2017

Senate committee preserves spending limit precluding DOJ interference with medical marijuana regimes

As this new piece from The Hill reports, the "Senate Appropriations Committee approved an amendment to a budget bill on Thursday to protect medical marijuana programs from federal interference in states that have legalized the drug for medical use." Here is more:

The amendment to the 2018 Commerce, Justice and Science appropriations bill passed by a voice vote and prohibits the Justice Department from using funds to prevent states from "implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana."

"The federal government can't investigate everything and shouldn't, and I don't want them pursuing medical marijuana patients who are following state law," said Sen. Patrick Leahy (D-Vt.), who offered the amendment. Leahy argued that the Department of Justice (DOJ) should be focusing its limited resources on more legitimate threats.

"We have more important things for the Department of Justice to do than tracking down doctors or epileptics using medical marijuana legally in their state," he said. Sen. Richard Shelby (R-Ala.), however, argued that while civil liberties and states' rights are important, telling DOJ not to enforce federal laws goes against legal principles. "If Congress wants to tell the Department of Justice to stop enforcing the medical marijuana laws, then it should change the authorization within the Judiciary Committee, not through an appropriations provision," he said.

The amendment passed despite a letter Attorney General Jeff Sessions sent in May asking House and Senate leadership not to block DOJ from using funds to enforce federal marijuana laws. "I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime," Session wrote in the letter first obtained by Massroots.com and later confirmed by The Washington Post. "The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives."

Rep. Dana Rohrabacher (R-Calif.) told The Hill on Thursday that he plans to once again offer the amendment to the House Commerce, Justice and Science Appropriations bill, which passed the appropriations committee earlier this month. When asked if he's expecting a fight on the floor, where he'll be forced to offer the amendment, Rohrabacher said he hopes there isn't one "but if there is, clearly we will win."

July 27, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, July 25, 2017

Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY

As reported in this Newsweek article, former New York Jets defensive end Marvin Washington "is one of five plaintiffs in a federal lawsuit against Sessions, the Department of Justice and the Drug Enforcement Agency" that attacks federal marijuana prohibition on various grounds.  Here is a bit more about the lawsuit via the press report:

The Manhattan lawsuit targets the 1970 Controlled Substances Act, which established federal drug policy and delineated narcotics into different schedules. Under the legislation, marijuana is considered a Schedule I controlled substance—along with other drugs such as heroin and ecstasy—and is subjected to the tightest restrictions.... “Classifying cannabis as a ‘Schedule I drug’ is so irrational that it violates the U.S. Constitution,” the lawsuit said.

Washington has joined the lawsuit because the current legislation prevents him from obtaining federal grants to start a business aimed at professional football players who want to use medical marijuana to manage pain.... Other plaintiffs include an 11-year-old boy, Alexis Bortell, who requires medical marijuana to control his epilepsy, and a disabled military veteran, Jose Belen, who uses it to control post traumatic stress syndrome....

Washington, whose playing career ended in 1999, has been a vocal advocate for the use of medical marijuana in football. He has lobbied the NFL to promote medical marijuana as an effective means of pain relief. Washington played eight seasons with the Jets, while also playing for the San Francisco 49ers and the Denver Broncos in a 11-year career. He won the Super Bowl XXXIII in 1999 with the Broncos.

Keith Stroup, legal counsel for the advocacy group NORML, has a lot more of the legal particulars in this new posting which also includes a link to the 89-page complaint in this case. Here are parts of his post:

Washington, et.al v. Sessions, et.al, was recently filed in US District Court in the Southern District of New York by lead attorney Michael Hiller, with NORML Legal Committee (NLC) attorneys David Holland and Joseph Bondy serving as co-counsel. The full complaint can be found here.

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution.

Named as defendants in the case are Attorney General Jeff Beauregard Sessions, Acting Administrator of the DEA Chuck Rosenberg, the Justice Department, the DEA and the Federal Government.

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution.

 Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

July 25, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)