Monday, July 11, 2016
The title of this post is the title of this new paper by Carrie Lynn Rosenbaum now available via SSRN. Here is the abstract:
This paper asserts that state and local marijuana reforms that relax criminal penalties should, but will likely not, benefit Latino/a noncitizens. Because of the intricate relationship between criminal and immigration enforcement, state and local police engagement in racial profiling will not only fail to be eliminated by state-level marijuana reforms but may be exacerbated. As a result, in spite of marijuana law reforms intended to lessen overly punitive penalties stemming from minor marijuana conduct, noncitizen Latino/as will continue to be disproportionately criminally policed and deported.
Scholarly literature addressing the intersection of criminal and immigration law has considered ways in which racial profiling in criminal law enforcement infects the immigration removal process. However, the literature has yet to explore the way in which sub-federal drug law reforms, and specifically, recent marijuana law reforms, will fall short for noncitizen Latino/as because of the way in which racial profiling in criminal law enforcement infects the immigration removal process.
After decades of excessive, punitive, and ineffective policies, particularly in the area of drug law enforcement, states have initiated reforms, including marijuana decriminalization. At the same time that decriminalization measures are being implemented, in the field of immigration law, resources for apprehension, detention and deportation have skyrocketed, with a focus on “criminal aliens.” The criminal-immigration removal system has resulted in local and state law enforcement agents playing a critical, and problematic role in the detection, apprehension, and removal of “criminal aliens.”
The plight of noncitizens deported or found inadmissible based on marijuana-related conduct highlights a deeper, systemic problem. Not only do extremely harsh immigration consequences serve as a double-penalty for potentially minor marijuana offenses, particularly in light of criminal law reforms, but enforcement of remaining marijuana laws will likely fall disproportionately on Latina/o noncitizens. Over ninety percent of deportations arising out of criminal law enforcement are to Central American and Mexico, yet Mexican and Central American immigrants make up less than half of the United States immigrant population.
While decriminalization of marijuana may be more than a symbolic move away from the failed “tough on crime” policies of the past, it not only fails to take into consideration the impact of marijuana laws on noncitizens but also may exacerbate the racially biased aspects of drug law enforcement on noncitizens, particularly Latinos. This Article discusses the ways in which criminal-immigration law enforcement has impacted noncitizens, primarily Latino/as, to demonstrate why sub-federal marijuana reforms will fail to alleviate racially disparate outcomes, perpetually leaving Latino/a noncitizens in the shadows.
July 11, 2016 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 (1)
Monday, June 6, 2016
Are any criminal justice researchers or marijuana reform groups taking a very close look at marijuana arrests in recent years?
The question in the title of this post is prompted by seeing today these two notable headlines about marijuana arrests in two notable cities:
UPDATE: Here are three more recent press piece on this topic that I just came across:
Tuesday, May 31, 2016
The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:
Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction. Subsequently, misdemeanor marijuana arrests plummeted by 86 percent. Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher. This can be a substantial burden for young and low-income people. According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....
Infraction data are hard to come by in California. The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys. In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.
These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough. There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys. While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.
Sunday, May 15, 2016
The title of this post is the headline of this notable new Christian Science Monitor article. It carries this subheadline: "A California law passed in October denies felons with drug convictions a license to sell medical marijuana. An new initiative would change that." And here are excerpts:
If you committed a felony for something that is no longer illegal, should your criminal record keep you out of the business now? A California law denying medical marijuana licenses to those with felony convictions for drug possession answers that question with a "yes," and it touches on the debate about how long a felony record should follow someone who has served their time....
The question could have even deeper implications for the state's pot industry, because although only medical marijuana is legal now, California voters will likely see a referendum for full marijuana legalization on the November ballot. Many current or prospective sellers of medical marijuana do have felony charges because of – for example – past drug possession. Casey O'Neill, board chairman of the marijuana group California Growers Association, told the Los Angeles Times' Patrick McGreevy that 25 to 30 percent of California's weed growers have felony convictions.
The current initiative, if passed by referendum in November, would change the law to permit people with felonies for drug possession of any kind to apply for a license to sell marijuana, according to the Coalition for Responsible Drug Policies for California.
Some members of law enforcement suggested that giving felons licenses to sell marijuana supports the growing pot industry at the expense of safety. "This new initiative will specifically allow for convicted major meth and heroin dealers to be licensed recreational marijuana vendors in California," said Chief Ken Corney, president of the California Police Chiefs Association, in a statement. "You have to question proponents in terms of placing personal wealth and corporation profits ahead of community well-being."
California's law enforcement has said fighting the black market by keeping felons out of these businesses is part of the reason the state requires licenses. California Assemblyman Tom Lackey (R) said the October law provides law enforcement with "clear rules for overseeing medical marijuana activities in their community—something badly lacking for the past 20 years," according to a press release for the California Police Chief Association.
Other states where medical marijuana is legal have different approaches to the question of whether a person convicted of selling marijuana before the state legalized it deserves a legal license now. Applicants for a medical marijuana license in Colorado must have all felony charges and sentences at least five years behind them; for drug charges, their record must have been clean for ten years. Colorado offers a case-by-case exemption for past state-level marijuana charges "that would not be a felony if the person were convicted of the offense on the date he or she applied," according to the Colorado Department of Revenue.
May 15, 2016 in Criminal justice developments and reforms, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, May 11, 2016
The title of this post is the headline of this BuzzFeed report. Here are excerpts:
Black and Latino adolescents in Colorado are being arrested for marijuana offenses at more disproportionate rates than they were before the state legalized recreational use of the drug, according to a new report from the Colorado Department of Public Safety.
The report, released in March, found a striking racial disparity in how adolescents aged 10–17 are being arrested: White juvenile marijuana arrests decreased by 8% between 2012 and 2014, while black juvenile arrests increased by 58% and Latino juvenile arrests increased 29%.
Colorado voters passed an initiative legalizing recreational marijuana use in 2012 — the year is used in the report to represent pre-legalization. The first full year that the state’s 21-and-older recreational marijuana market was operational was 2014.
Between 2012 and 2014, Colorado elementary and secondary schools saw a 34% increase in marijuana arrests, the overwhelming majority of which were for possession. These arrests were often done by “school resource officers” — local police officers who have increasingly been stationed on campuses in recent years. Although most of these juvenile arrests do not involve jail time, the student must pay a fine and, in order to get the arrest expunged from their permanent record, pay to participate in a drug education class....
According to a 2013 survey done by the Colorado Department of Public Health and Environment, Pueblo County has the highest rates of teen marijuana use in the state — 32.1% of high schoolers — but only five adolescents were arrested for marijuana-related crimes there in 2014. Compare that to Arapahoe County, which has about average rates of teen marijuana use (20.6% of high schoolers) when compared to the rest of the state (19.7%), but where nearly 400 students were arrested for marijuana in 2014.
Tustin Amole, the director of communications at Cherry Creek Schools in Arapahoe County, said that while her district decides how to handle marijuana offenses on a case-by-case basis, she felt the students who are being arrested accurately reflect which students are smoking pot. “We don’t really have zero tolerance policies, because there are so many variations and circumstances. You have to take them all into account,” Amole told BuzzFeed News. “All I can say is while it may seem disproportionate, those are the students we’re catching with the drugs.”
The state also found that while marijuana arrests among adults have nearly been cut in half since legalization, the racial disparities among those still being arrested grew slightly worse. In 2014, black people were arrested and cited for marijuana-related offenses at almost triple the rate of white people. Back in 2012, black people in Colorado were being arrested for pot crimes at a little less than double the rate of whites.
While national data has shown that adults and juveniles of all races use and sell marijuana at very similar rates, the 2013 survey done by the Colorado Department of Public Health and Environment found that a slightly bigger percentage of black (25.9%) and Latino (23.6%) high schoolers had used marijuana in the past 30 days, compared to white students (17%). But even if the disparity in that sample was representative for the entire state, the marijuana arrest numbers for black juveniles would still be wildly disproportionate. Other states and cities that have decriminalized or legalized recreational marijuana use — including Massachusetts, Chicago, and Washington state — have seen a similar trend: a drop in overall arrests but persistent or increased racial disparities among those still being arrested.
As reported in this press piece, headlined "Legal limits for driving on pot not backed by science, study shows," the folks at AAA have released a valuable new report on marijuana impairment and driving. Here are the basics via the press report:
Much of the work by AAA in this space can be found at this link.
Legal blood limits for marijuana are not an accurate way to measure whether someone was driving while impaired, and can lead to unsafe drivers going free while others are wrongfully convicted, according to a new study.
The study released Tuesday by the AAA Foundation for Traffic Safety found that drivers can have a low level of THC, the active ingredient in marijuana, in their blood and be unsafe behind the wheel, while others with relatively high levels may not be a hazard.
Marijuana is not metabolized in the system in the same way as alcohol. So while a person with a blood-alcohol level of .08 or higher is considered too drunk to drive, it's not possible to say the same thing absent other evidence about a person testing at 5 nanograms per milliliter of blood of THC — the level used to find impairment by Colorado, Montana and Washington, the study found.
The difference matters, because Illinois and 11 other states have laws that forbid any level of marijuana in the system while driving. A pot decriminalization bill being considered in the Illinois legislature would raise the level to 5 ng/ml. The bill faces opposition from law enforcement and anti-pot advocates.
Efforts to legally measure marijuana impairment have become a major concern for lawmakers as more states move to legalize cannabis, either for medical use or adult recreational use. Four states have legalized pot for recreational use by adults, and 24 states — including Illinois, plus Washington, D.C. — allow medical use, according to the Marijuana Policy Project, a D.C.-based advocacy group.
"It's an attempt to try to do an apples-to-apples comparison with blood alcohol concentration," said Chris Lindsey, senior legislative analyst for the Marijuana Policy Project. He noted that the AAA findings echo earlier research. "They found out that these things can't really be compared."
Another problem is that high THC levels may drop before a test is administered, because the average time to collect blood from a suspect driver is often two hours, the AAA study found. Frequent pot users can exhibit high levels of the drug long after use, while levels can decline rapidly among occasional users, so it is difficult to develop fair guidelines, the study found.
Because of the problem in measuring whether someone is impaired with a blood test, AAA urged states to also look at behavioral and physiological evidence through field sobriety tests, such as seeing whether a driver has bloodshot eyes or is able to stand on one leg. "That kind of testing has proved effective in court," said J.T. Griffin, chief government affairs officer for Mothers Against Drunk Driving, or MADD.
He pointed to a 2015 study by the National Highway Traffic Safety Administration that found no big crash risk associated with people driving with marijuana in their system but says more study is needed. Alcohol remains the biggest drug problem on the highways, he said. "We know that almost one-third of all traffic deaths are caused by alcohol," Griffin said.
AAA released a second study Tuesday that showed fatal crashes involving drivers who recently used marijuana had doubled in Washington after that state legalized the drug in December 2012 — the percentage of drivers involved in fatal crashes who had used marijuana jumped to 17 percent from 8 percent between 2013 and 2014. Most drivers who had THC in their systems also had alcohol or other drugs in their blood at the time of the crash, the study found. The study noted that the drivers who had THC in their blood were not necessarily impaired nor were they necessarily at fault in the crashes.
Tuesday, April 12, 2016
Looking critically at the disproportionate impact that drug trafficking laws have on women (with emphasis on race, motherhood, and socioeconomic class)
The impact of the drug war on particular individuals and communities is a focal point for a student presentation this week in my semester-long OSU Moritz College of Law seminar on marijuana reform. My student provided this summary blurb to go along with the following links to background reading:
Between 1980 and 2010, the number of women in prison increased by 646 percent. And of those women, approximately 65 percent incarcerated in state prisons have a minor child; in comparison 55 percent of males in prison report having a minor child. My presentation will focus on the disproportionate impact that drug trafficking and conspiracy laws have on women, with emphasis on race, motherhood, and socioeconomic class. The discussion will be centered around the history of the war on drugs, incarceration trends of women, drug laws, and the familial consequences of incarceration.
Please read the following articles:
Wednesday, April 6, 2016
The question in the title of this post is posed by a student in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform as a preview to his in-class presentation/discussion on Fouth Amendment doctrines. The student has authored this preview blurb to go along with links to assembled background reading:
Warrantless searches are per se unreasonable subject only to a few specifically established and well-delineated exceptions. Over the last several decades, many of these exceptions to the protections of the Fourth Amendment have either revolved around or are tied to the presence of marijuana. The “Plain Smell” or marijuana from an officer is firmly supported among circuit courts as sufficient for granting probable cause for a search. The Supreme Court has upheld the use of drug detection dogs during traffic stops to generate probable cause to search a vehicle. When there is marijuana in a location where marijuana is illegal, police officers have a justification for a warrantless search.
With the current legalization of marijuana in many jurisdictions, these established exceptions and practices are being turned on their heads. However, the movements away from these established practices are inconsistent and uncoordinated. When dealing with drug detection dogs, some agencies are retiring established dogs and training new ones while some agencies are attempting to retrain their established dogs. But the proper course of action is legally and procedurally uncertain. To retire and retrain is expensive while it is unknown whether a drug detection dogs will remain effective upon retraining or if they can even be retrained. Is it impossible to teach an old dog new tricks?
Two articles on what is happening to drug dogs in jurisdictions where marijuana has been legalized:
An article which further examines marijuana legalization on drug dogs and wades into the discussion of automobiles searchs on the basis of marijuana:How medical marijuana legalization has affected the probable cause generating effect of marijuana odor in Arizona:
April 6, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Wednesday, March 30, 2016
Examining the modern intersection of the drug war and deportations (with a special focus on marijuana)
This week's presentation in my marijuana reform seminar is focused on immigration law and the "war on drugs." My student will be presenting, I believe, some original empirical research; as background reading he suggested this 2014 Huffington Post piece headlined "The Drug War = Mass Deportation: 250,000 Deported for Drug Offenses in Last 6 Years." Here is how this piece gets started (with links from the original):
The drug war has increasingly become a war against migrant communities. It fuels racial profiling, border militarization, violence against immigrants, intrusive government surveillance and, especially, widespread detentions and deportations.
Media and politicians have tried to convince us that everyone who gets deported is a violent criminal, a terrorist or a drug kingpin. But a newly released, first-of-its-kind report shatters that notion, showing instead that the majority (some two-thirds) of those deported last year were guilty of minor, nonviolent offenses — including thousands deported for nothing more than possessing small quantities of drugs, typically marijuana.
The report, an analysis of federal immigration data conducted by the Transactional Records Access Clearinghouse at Syracuse University, details how roughly 40,000 people have been deported for drug law violations every year since 2008. That means that nearly 250,000 — one-quarter of a million — people were deported for nonviolent drug offenses in just the past six years. A nonviolent drug offense was the cause of deportation for more than one in ten (11 percent of) people deported in 2013 for any reason — and nearly one in five (19 percent) of those who were deported because of a criminal conviction.
Much as the drug war drives mass incarceration, it also appears to be a major driver of mass deportation. Indeed, the report reveals that simple marijuana possession was the fourth most common cause of deportation for any crime, and the most common cause of deportation for crimes involving drugs. On average, more than 6,600 people were deported in each of the last two years just for personal marijuana possession, and overall, nearly 20,000 people were deported last year for simple possession of any drug or drug paraphernalia.
By contrast, relatively few of those deported were drug traffickers, let alone violent ones. “Convictions for drug trafficking accounted for only one percent of deportees recorded as convicted of a crime,” the report’s authors note, “while marijuana possession was more than three times that level.”
March 30, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)
Monday, March 21, 2016
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Sunday, March 20, 2016
As regular readers of my Sentencing Law and Policy blog should know, careful and responsible researchers and advocates should be careful and cautious about making any bold assertion about which kinds of laws and legal reforms may or may not impact crime rates. Just about every pundit who ever asserts boldly that this reform or that reform certainly will (or certainly won't) reduce or increase crime is proven wrong at some point in some way. For that reason, I am generally disinclined to put too much stock in any assertions that marijuana reform definitely will or definitely won't lead to a change in serious crime rates in a jurisdiction.
That all said, I think it is very important to keep an eye on any notable corrections between reported crime rates is jurisdictions that have reformed its marijuana laws. And, I just came across a few recent postings by Sierra Rayne at the American Thinker website that present data showing significant crime spikes in key marijuana reform jurisdictions. Going through the author's posting archive, I found this array of posts that ought to be of interest to everyone following the impact of marijuana reforms:
As these post headlines perhaps reveal, the author of all these pieces seems quite interested in making the case that there is a causal link between marijuana reform and increases in crime. But even if these posts involve an effort to spin crime data to serve a particular agenda, the data assembled in these posts are disconcerting (and perhaps help explain why we are not hearing from marijuana reform advocates the claim that reform contributes to a decrease in crime).
Critically, lots of crime rates were up in lots of urban and suburban US regions throughout the end of 2014 and through all of 2015; spikes in crime rates in marijuana reform cities might ultimately reflect some broader national trends that have no direct link to marijuana laws and related practicalities. In addition, especially because marijuana reformers reasonably assert that legalization enables law enforcement to refocus energies on more serious crimes, I wonder if any crime spikes in reform cities might reflect, at least in part, the ability for cops on the beat to discover a greater percentage of serious crimes that we already happening but were going unreported before marijuana reform.
I am hopeful (though not all that optimistic) that over time we will see more and more careful analyses of patterns of crime in the wake of local, state and national marijuana reforms. In the meantime, though, I want to complement Sierra Rayne for keeping an eye on this important issue, and I robustly encourage everyone else interested in marijuana reform to look closely at all the emerging data in this space.
March 20, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Sunday, February 28, 2016
Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer). Here are excerpts:
At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.
“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.
One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...
In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...
Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)
Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.
Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65. While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.
“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought. “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”
Cross-posted at Sentencing Law & Policy
Saturday, January 30, 2016
You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing
The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says." Here are the basics (with my emphasis added):
Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana. Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.
But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients. He told police that "he was operating his business as a source of income," Distel said.
Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW. Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants. Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.
He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court.... Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing. He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.
Schmidt is free on bond. Kent County prosecutors will drop a second charge of manufacturing marijuana.
His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives. After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party. He had spent 16 years on a Grand Rapids City Commission on the West Side of town.
I am cross-posting this story on my Sentencing Law & Policy blog because this case raises interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significntly influence what criminal sentence he receives?
But, of course, what really captured my attention in this case is the different ways this defendant's offense might be viewed by a sentencing judge. His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who would often sell to underage college students. But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.
Thoughts, dear readers?
Sunday, January 17, 2016
The folks at YouGov, as detailed in this posting headlined "Most Americans support marijuana legalization," have released some interesting new data based on interviews of one thousands of Americans in mid-December 2015. Here is part of the YouGov summary of its main findings:
Research from YouGov shows that a majority of Americans now support legalizing marijuana. 52% of Americans now support legalization, while only 34% oppose it. This is slightly up from 48% support for legalization when the question was last asked in March 2015.
Over half of all adults under the age of 65 support it, but over-65s do tend to oppose (49%) rather than support (39%) legalization. Politically, Democrats (66%) and independents (51%) want to legalize marijuana but half of Republicans are opposed. Just over a third of Republicans (36%) do support legalization, however.
While full legalization has the support of just over half of the country two-thirds of Americans believe that government efforts to enforce marijuana laws cost more than they are worth. Unsurprisingly a huge majority of people in favor of legalization (86%) say that the efforts cost more than they are worth, but even opponents of legalization narrowly tend to say that current efforts aren't worth the cost (42% to 33%).
As the last sentence of this summary reveals, the detailed YouGov poll results (which are available here) includes some interesting marijuana-related questions beyond just support for legalization reforms and its breaks down poll responses in some notable ways.
Of particular interest was that the only racial demographic not expressing majority support for legalization was "Hispanic" and the lowest level of support for for legalization among economic demographics was found among families making less than $50,000 per year. I tend to assume that minority populations and lower income groups are more inclined to support marijuana reform because these groups seem to be subject to a larger share of the criminal justice consequences of blanket prohibition. But this YouGov poll suggests that reality may be far more nuanced.
In addition, I find especially significant the findings and political demographic breakdowns concerning the question "Do you agree or disagree that government efforts to enforce marijuana laws cost more than they are worth?". Notably, independents are more than five times more likely to agree (70%) than disagree (13%) with this statement, and even Republicans are more than twice as likely to agree (55%) than disagree (24%) with this statement. If other polls ask this question and produce similar result, such findings I think could well have a real impact on the positions of various presidential candidates in the months ahead.
January 17, 2016 in Criminal justice developments and reforms, Political perspective on reforms, Polling data and results, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (2)
Wednesday, December 2, 2015
Interesting on-the-ground perspective on impact (or lack thereof) of marijuana reform from a Florida public defender
CBS News has this intriguing new first-person piece about marijuana reform authored by Kim Segal, who serves as a public defender in Broward County, Florida. Here are excerpts:
A client called me to ask if I saw the news. He was referring to the unanimous vote by the Broward County Commission that would allow law enforcement to issue a civil citation instead of filing a criminal misdemeanor charge against anyone caught with a small amount of marijuana. The problem, I explained to my client, was that he was facing state charges. In the state of Florida marijuana is not only against the law but possession of a small amount is still punishable by a year in jail. In case that punishment wasn't enough of a deterrent the state legislature included in the law that anyone adjudicated guilty on this charge will lose their driver's license for a year.
While it has been decided in our county that fines are appropriate for people caught with small amounts of marijuana there are still many people fighting the system. They must fight to keep their license and to avoid a criminal charge on their record.
Take my client Drew Brown for example -- a young man who was getting ready to go to college to play football when he picked up a possession of cannabis 10 grams or less charge. The state refused to drop the case. Considering the national climate on marijuana I thought Drew's case would be an easy one for the prosecutor to justify dropping.
Why? This was a case of constructive possession as opposed to actual possession. A basic explanation is the marijuana was not found on my client it was found in an area where other people had access to it. Despite being adamant that the marijuana wasn't his, Drew had to go to trial if he wanted any chance of the charge going away. His record and his need for a driver's license while in college made the risky decision to go to trial easy for Drew.
As in all jury trials a panel of potential jurors was assembled. After a couple hours of questioning the group of eighteen, we were left with six people who would decide whether Drew broke the law.... Drew told the jury he was walking to a friend's house when a guy he knew drove by and offered him a ride. Drew was in the acquaintance's car for just a few minutes when he heard sirens and saw the lights from the police car behind them. The car was being stopped for a traffic violation. The driver continued a couple of blocks before stopping. The driver said he was near a house where he knew people and he wanted to stop in a place where he would feel safe. Once out of the vehicle the officers found marijuana under the passenger seat that Drew just vacated. Drew told the jurors he had no idea the marijuana was there.
The officer didn't believe him so Drew was arrested for possession of marijuana. Nary a bowl, pipe, wrapping papers or even a lighter was found on his person. Drew faced a criminal charge for allegedly bending over while sitting in a car that had marijuana in a drawer under the passenger seat, that he unfortunately chose to sit in. Thankfully the jury had the good sense to find Drew not guilty. This verdict only reinforced my thoughts on whether this case should have been pursued at all.
As headlines continue with stories about states and local governments decriminalizing the personal use of marijuana, the county court is still full of defendants facing this serious charge. Just this week I have three possession of cannabis cases set for trial. Until there's news that these criminal charges will be changed to civil infractions the court will be spending valuable time hearing about personal use of marijuana that often includes evidence of only residue and roaches.
Sunday, November 22, 2015
The New York Post has this notable new piece on marijuana enforcement patterns in the Big Apple. The piece is headlined "Marijuana arrests drop 40% this year as NYPD mellows out," and here are excerpts:
Cops are following through on Mayor de Blasio’s pledge to stop locking people up for carrying small amounts of pot. Police cuffed 18,120 stoners through Oct. 20 — a 40 percent plummet from the 29,906 pot busts in the same period last year, state Division of Criminal Justice records show.
At the same time, tickets for pot violations have surged. Cops handed out 13,081 low-level pot summonses through the end of September — and are on pace for more than 16,000 tickets. The NYPD issued 13,378 pot tickets for all of last year, and 13,316 tickets in 2013, records show. City Hall ordered cops last year to ticket suspects they caught with 25 grams or less of marijuana instead of arresting them after district attorneys and activists clamored for drug decriminalization.
Still, arrests outnumber tickets citywide, and there appears to be wide variations in enforcement. Bronx cops in the 45th Precinct in upscale Throggs Neck handed out 415 tickets for marijuana possession and made only 48 arrests in the first nine months of the year. Similarly, Staten Island cops in the 122nd Precinct ticketed 258 people and arrested only 18 suspects, city and state crime data show. But Bronx cops in the 52nd Precinct in Kingsbridge arrested 720 individuals but ticketed only 168 people in the first nine months of the year. And Queens cops made 259 pot arrests but only ticketed 79 people in South Jamaica’s 113th Precinct, the records show.
I find this basic data quite interesting, and I am hopeful there will soon be some serious resesrch done in conjunction with what this data reveal and suggest. For example, I would be interested in learning more about related economic realities, e.g., is the city as a whole and/or certain precincts starting to raise (considerably?) more revenue from issuing more tickets instead of making more arrests? And, of course, the relationships between these charing marijuana arrest rates and broader crime patterns could be fascinating if there were any notable correlations between the two. Finally, especially in light of historical patterns of disparate arrest rates for marijuana offenses for different races, I wonder if there are notable new racial dynamics in these notable new data.
Thursday, November 5, 2015
As reported in this New York Times article, headlined "Mexico’s Supreme Court Opens Door to Legalizing Marijuana Use," a major legal ruling in a notable country could provide yet another jolt to the legal and policy status of marijuana in the Americas. Here are the basics:
The Mexican Supreme Court opened the door to legalizing marijuana on Wednesday, delivering a pointed challenge to the nation’s strict substance abuse laws and adding its weight to the growing debate in Latin America over the costs and consequences of the war against drugs.
The vote by the court’s criminal chamber declared that individuals should have the right to grow and distribute marijuana for their personal use. The ruling is a first step — applying only to a single cannabis club that brought the suit — and does not strike down Mexico’s current drug laws. But it lays the groundwork for a wave of legal actions that could ultimately legalize marijuana.
The decision reflects a changing dynamic in Mexico, where for decades the American-backed war on drugs has produced much upheaval but few lasting victories. Today, the flow of drugs to the United States continues, along with the political corruption it fuels in Mexico. The country, dispirited by the ceaseless fight with traffickers, remains engulfed in violence....
The ruling on Wednesday was the culmination of an effort to change the law by four members of a prominent Mexican anticrime group, Mexico United Against Crime. Mr. Torres Landa and Mr. Santacruz formed a cannabis club with two other people, called the Mexican Society for Responsible and Tolerant Consumption — the Spanish acronym is Smart.
The group applied for a license from Mexico’s drug regulatory agency, but, as expected, was turned down. Their appeal of that decision eventually reached the Supreme Court. “We have been trying to struggle against illegality, and the results were almost negligible,” said Mr. Torres Landa, who says he has never tried marijuana and does not intend to. “Five or six years ago, we asked why? The answer, as the Americans say, was in the money.”
But the ruling on Wednesday applies only to their petition. For legal marijuana to become the law of the land, the justices in the court’s criminal chamber will have to rule the same way five times, or eight of the 11 members of the full court will have to vote in favor.
If the court decisions continue in that direction, they will be flying in the face of public opinion. Mexicans are so opposed to legalizing marijuana that a leading pollster told the Smart group not to bother with a survey, Mr. Santacruz recalled, or to limit it to young people. The Mexican government, legislators and security and health officials all came out against legalization, as did the Roman Catholic Church. Indeed, the authorities have not permitted even the use of medical marijuana.
Monday, October 19, 2015
Michigan arrest data highlight diverse impact of local decriminalization and continued impact of state-level marijuana prohibition
This notable new local article, headlined "Michigan pot arrests are trending up, and 8 other points about marijuana," provides data that reinforce my concern that modest marijuana reforms do not really change the basic realities of how marijuana prohibition impacts individuals. Here are some of the notable details:
At a time when surveys indicate a majority of Michigan residents support legalizing pot, arrests for marijuana possession or use are increasing — even as arrests for other crimes are going down, according to data collected by the Michigan State Police. Between 2008 and 2014, arrests for marijuana possession or use went up 17 percent statewide, that data shows, while arrests for all crimes dropped by 15 percent.
One possible reason: Federal health surveys indicate marijuana is the most commonly used illicit drug, and the number of regular users has been increasing. In 2013, about 7.5 percent of Americans age 12 or older had used marijuana in the past month, according the 2015 federal Survey on Drug Use and Health.
Below are other highlights from the Michigan arrest data, which was collected by the State Police from local and county enforcement agencies.
1. The vast majority of marijuana arrests are for possession or use.
In 2014, there were 20,483 arrests for marijuana use or possession, which was 86 percent of all marijuana arrests. About 10 percent of the other arrests are for selling the drug, and the remainder are for "producing" the drug, smuggling or "other." Arrests related to marijuana are about two-thirds of all drug arrests in Michigan and in 2014 were 9 percent of all criminal arrests.
2. A disproportionate number of those arrested for marijuana-related crimes are between the ages of 18 and 24.
About 43 percent of those arrested in 2014 for marijuana were age 18 to 24. The breakdown for other age groups: 26 percent were age 25 to 34; 11 percent were age 35 to 44; 9 percent were under 18; 7 percent were age 45 to 54, and 3 percent were sage 55 or older. The federal drug survey indicates that marijuana use is highest among young adults. In fact, 24 percent of male and 17 percent of female female full-time college students age 18 to 22 use marijuana, the survey shows.
3. The vast majority of those arrested in marijuana cases are men.
Men comprised 83 percent of marijuana arrests in 2014, which is disproportionate compared to their rate of usage. About 9.7 percent of American males age 12 and older are users of marijuana compared to 5.6 percent of women, according to a 2013 federal survey on drug use. That means men are 1.7 times more likely to use marijuana, but are five times more likely to be arrested on marijuana charges.
4. African-Americans are a disproportionate number of marijuana arrests.
An African-American in Michigan was three times more likely to be arrested in 2014 for violating marijuana laws compared to a white person, although surveys and research indicate little difference between usage rates between the two groups. In all, African-Americans comprise about 14 percent of Michigan's population, but 35 percent of marijuana arrests....
6. Since 2011, 21 Michigan cities have voted on legalizing or decriminalizing marijuana....
7. Decriminalization initiatives have had mixed impact on arrests in those communities.
Six communities — Detroit, Grant Rapids, Lansing, Kalamazoo, Flint and Ypsilanti — passed decriminalization initiatives before 2014. Based on arrests in those cities for marijuana use or possession in 2011 compared to 2014, the initiatives had mixed impact.
The most dramatic changed occurred in Grand Rapids, where arrests for marijuana use or possession dropped from 952 in 2011 to 93 in 2014. The numbers also dropped significantly between 2011 and 2014 in the city of Kalamazoo, from 327 to 166. In Detroit, arrests dropped from 1,297 to 974 during the three-year period.
Arrests for marijuana use or possession actually went up in Lansing and Ypsilanti. Lansing had 73 arrests for marijuana use or possession in 2011, compared to 79 in 2014. In Ypsilanti, arrests went from 74 to 88 during that time frame.
Wednesday, October 7, 2015
Reefer madness or state law sanity?: Ohio AG sues Toledo after passage of local marijuana decriminalization measure
As noted in this prior post, last month Toledo voters overwhelmingly passed a measure to decriminalize marijuana in the city by reducing penalties for the drug to the minimum allowed by state law and repealing penalties for possessing small amounts of marijuana. But now, as reported in this new Toledo Blade article, headlined "Ohio sues city over marijuana ordinance: Attorney general sees state conflict," Ohio's top state lawyer believes it is necessary to sue the city to block some aspects of what the local voters' approved. Here are the basics:
The Ohio Attorney General’s Office filed suit Tuesday against the city of Toledo, asking a judge to declare invalid several key sections of the city’s new “Sensible Marihuana Ordinance.”
The legal challenge in Lucas County Common Pleas Court claims several portions of the voter-approved Toledo law, including restricting fines and incarceration for marijuana possession, contradict Ohio law. Lucas County Prosecutor Julia Bates and Sheriff John Tharp joined Attorney General Mike DeWine in the lawsuit.
Voters last month approved a measure reducing penalties in Toledo Municipal Code for all marijuana-related crimes to no fines or jail time. They also supported stopping city police from reporting the convictions to state authorities.
Although it is unfortunate to oppose the will of a majority of voters, significant portions of this law are “clearly unconstitutional,” Mr. DeWine said. He announced the legal action during a news conference at One Government Center.
Mr. DeWine discussed a seizure last month by the Ohio Highway Patrol in Lucas County that found 226 pounds of marijuana. If the motorists had been charged through this Toledo ordinance, neither would be incarcerated or fined. “Such a scenario is completely unacceptable, and it violates the Ohio Constitution,” Mr. DeWine said.
Mr. DeWine said this lawsuit does not seek to dismiss the entire measure, but the portions that contradict state law. Ohio’s constitution allows cities to adopt and enforce local regulations if they do not conflict with the state, according to the complaint. Police are empowered to arrest suspects in their municipality found breaking state law, the lawsuit states. “Municipal drug ordinances are police power regulations, and drug statutes duly enacted by the state of Ohio are laws of general application throughout the state,” the suit states.
The lawsuit specifically names a “gag rule” in the ordinance that says city police and the law director may not report for prosecution under state law any marijuana or hashish offense to an authority besides the law director. The prosecution would be left pursuing a misdemeanor case in Toledo Municipal Court under a law claiming to abolish incarceration, fines, and probation. “The city of Toledo is not empowered to establish or amend Ohio felony law. And municipal authorities are not authorized to prosecute felony offenses under state law,” according to the suit.
When asked during the news conference why Mr. DeWine’s office did not intervene prior to the vote, he said that he did not believe “anyone was aware of everything that was in there.”
City officials were not surprised by the lawsuit. Adam Loukx, Toledo law director, said there were concerns about its potential contradictions with state law, but he will defend the voters’ choice. “It’s only appropriate a court would be the one to decide that,” Mr. Loukx said. Mr. Loukx said he recently obtained a copy of the lawsuit and could not yet say what would remain of the law if Mr. Dewine is successful.
Sean Nestor, campaign manager for the Sensible Marihuana initiative that promoted the ballot measure, said the group expected a legal challenge. When they were crafting the ordinance, organizers studied other successful decriminalization measures in Ohio and Michigan, he said. “We used laws that had survived court challenges,” he said.
Mr. Nestor said his group is ready to work with city officials to defend the measure in court. While the case remains pending, Mr. Loukx said a Toledo police officer who finds a resident possessing marijuana could cite the suspect under Ohio Revised Code. The officer also might be permitted to charge under Toledo Municipal Code as well, Mr. Loukx said. “At this point, a lot of it will be in the discretion of the officer,” he said.
Because I am not an expert on local government law, I am going to need to read the full lawsuit filed by Attorney General DeWine [which is available here] before commenting on its merits. But I can say at the outset that I suppose I am pleased to learn that other crimes and legal concerns in the state of Ohio are so low that the AG's office had ample time to focus on what (I would hope) is a relatively low-level concern for state official.
This local article, headlined "Marijuana legislation calls for DUI study," reports on a notable (and I think very valuable) element of California's recent new law concerning medical marijuana. Here are the details and the context:
Recent legislation awaiting Gov. Jerry Brown’s signature not only seeks to implement a statewide regulatory system on the medical marijuana, but also calls for a study on how law enforcement can better detect stoned drivers.
Nestled within one of the bills — Assembly Bill 266 by Assemblyman Rob Bonta (D-Oakland) — is a sentence that calls for the state to commission the UC San Diego’s Center for Medicinal Cannabis Research to develop a study that identifies how cannabis impacts motor skills. The language was written by Assemblyman Tom Lackey (R-Palmdale), a retired California Highway Patrol sergeant of 28 years who said he was motivated to coauthor the bill to give officers another tool to get impaired drivers off the street and to save lives.
“We’ve done a good job of reducing alcohol DUIs,” he said. “With drug impairment we have a long way to go. I believe this is a pioneering effort to allow that to take place.” Lackey — who made his first visit to Humboldt County on Tuesday along with two other bill authors to call on Gov. Brown to sign the bills — said that the study could provide data that he hopes will result in an improved field sobriety test specifically for marijuana impairment.
The three-bill package known as the “Medical Marijuana Regulation and Safety Act” is currently sitting on Gov. Brown’s desk. If signed, the bills would create a licensing and regulatory scheme for all aspects of the medical marijuana industry including cultivation, distribution, transport, dispensary sales, laboratory testing, environmental protections and storage.
Unlike with alcohol, where a legal blood alcohol concentration has been established, local law enforcement officials say they are currently limited in their methods of detecting drivers under the influence of the marijuana’s main psychoactive component, THC, with no set level of impairment and no easy detection method like a Breathalyzer.
“We do not have a cutoff point where we can say we know they are impaired,” Humboldt County District Attorney Maggie Fleming said. “The proof goes back to whether or not their driving showed they were impaired.” When prosecuting someone for driving under the influence of marijuana, Fleming said evidence usually includes patrol car dash cam videos, testimony by drug recognition experts and observations by a law enforcement officer.
Even if such a level were established, a local defense attorney and several studies state that THC processing by the human body is more complicated than alcohol and other drugs. A former president of the DUI Lawyers Association and current member of National College of DUI Defense, Eureka-based attorney Manny Daskal said some studies have shown that drivers actually exhibited safer driving habits and kept more room between themselves and other drivers to compensate for their impairment, though other studies refute the findings. “Right now the research isn’t there for them to accurately predict when impairment occurs or at what level it occurs,” Daskal said.
Regardless of what type of drug a California Highway Patrol officer suspects a driver is impaired by, Humboldt County CHP Public Information Officer Cy May said they will perform the same field sobriety test. “Usually we’re not sure it’s cannabis,” May said, adding there are certain giveaway signs. Such signs include marijuana odor emanating from the car or driver, bloodshot or dilated eyes, and a higher pulse rate....
Two studies by the National Highway Transportation Safety Administration released in February found that 12.6 percent of surveyed drivers had evidence of marijuana use in their systems — up from 8.6 percent in 2007 — while those driving under the influence of alcohol dropped by one-third in the same time period.
Another study by the administration found that marijuana users were 25 percent more likely to be in a crash than non-marijuana users, but that the increased risk “may be due in part because marijuana users are more likely to be in groups at higher risk of crashes” — such as young men. “When you take all the confounding factors into account there is not much of an indication that marijuana causes an increase of crashing,” Daskal said.
Speaking at Tuesday’s rally in Eureka, Lackey said a September 2015 report by the Rocky Mountain High Drug Trafficking Area showed a 32 percent increase in marijuana-related traffic deaths in Colorado in 2014 — the same year recreational marijuana use became legal — compared to 2013. “We will not stand for that in California,” he said to the crowd.
While these studies state the risk of a crash is much higher when THC impairment is factored in, others — like a 2010 study in the The American Journal on Addictions — state some experimental studies have shown it can have the opposite effect. “Several reviews of driving and simulator studies have concluded that marijuana use by drivers is likely to result in decreased speed and fewer attempts to overtake, as well as increased ‘following distance,’ ” the study states. “The opposite is true of alcohol.”