Friday, February 20, 2015
Despite a New Year's resolution to resume regular posts to this blog, I have somehow managed not to write a single one until now. Hopefully I'll be able to pick things back up with regular contributions.
I'll start with this quick link to a guest blog post I wrote for the American Constitution Society's two-week blog symposium on racial inequalities in the criminal justice system. My post looks at some of the causes of the racial disparity in marijuana arrests and why the problem is so hard to correct. Here's how my post begins:
In their influential 1970 study of marijuana prohibition in the United States, Richard J. Bonnie and Charles H. Whitebread found that “racial prejudice” was the “most prominent” factor in the passage of early marijuana prohibition laws. When states began passing these laws in the first few decades of the 1900s, it was not uncommon to see legislatures expressly link marijuana prohibition with race.
Reporting on a1929 hearing on a marijuana prohibition bill in Montana, for example, the Montana Standard told readers:
“There was fun in the House Committee during the week when the Marihuana bill came up for consideration. Marihuana is Mexican opium, a plant used by Mexicans and cultivated by Indians. ‘When some beet field peon takes a few rares of this stuff,’ explained Dr. Fred Fulsher of Mineral County, ‘He thinks he has just been elected president of Mexico so he starts out to execute all his political enemies. I understand that over in Butte where the Mexicans often go for the winter they stage imaginary bullfights in the ‘Bower of Roses’ or put on tournaments for the favor of ‘Spanish Rose’ after a couple of whiffs of Marihuana.’ Everybody laughed and the bill was recommended for passage.”
It is rare to see anyone rely on anything approaching this sort of overt racism in the debate over marijuana laws today. Indeed, nearly everyone ― prohibitionists and legalization advocates alike ― agrees that racial disparities in marijuana enforcement (and drug enforcement more broadly) are undesirable. Most also acknowledge the issue is a cause for real concern and action.
And yet, disparities in marijuana enforcement persist.
Click over to the ACS blog for the rest.
Sunday, December 28, 2014
As reported in this local article, headlined "NAACP jumps into Nevada marijuana debate," a notable leader is making a notable pitch for marijuana legalization in a notable state. Here are the details:
Jeffery Blanck, the president of the Reno-Sparks chapter of the National Association for the Advancement of Colored People, has jumped into the legislative debate over the legalization of recreational marijuana in Nevada. Blanck has sent a letter to all legislators, urging them to legalize recreational use of marijuana during the 2015 Legislature.
Nevada lawmakers have the first 40 days of the 2015 Legislature to legalize recreational use. If that doesn't happen, the measure will be placed on the 2016 general-election ballot, since the Nevada Cannabis Industry Association has already collected enough signatures on a petition to do that.
In his letter, Blanck noted that the federal government has wasted millions of dollars on its "war on drugs." And when it comes to marijuana, that war in Nevada has been waged more against black citizens than white citizens. "The use of marijuana by blacks and whites is approximately the same," Blanck wrote in his letter to lawmakers. "Yet, if you are black and live in Nevada, you are four-and-a-half times more likely to be arrested for marijuana possession than if you are white.
"This is the 11th-worst disparity in arrest rates for marijuana possession in the country," Blanck wrote. "This is nothing to be proud of, seeing how we have historically been referred to as the 'Mississippi of the West.' "
Blanck told lawmakers that prisons populations have sky-rocketed because of drug possession laws and that the current system of punishment for low-level drugs crimes disproportionally hits blacks harder than whites. "It is time to end the failed war on marijuana," Blanck wrote. "Nevada needs to legalize its use and our federal government needs to repeal its listing as a dangerous drug. We need to stop wasting our hard-earned tax dollars on a program that provides no benefit and disproportionately impacts our black residents."...
Washoe County District Attorney Dick Gammick, who is set to retire on Jan. 4, continues to see any form of legal marijuana – medical or recreational – as a bad thing....
Gammick was asked if it would be better for Nevada to wait on the legalization of recreational marijuana, and see how issues surrounding recreational marijuana are handled in Colorado and Washington....
Gammick replied: "I have in my office a 150-page report out of the Office of Justice on Colorado and all of the issues they are dealing with," Gammick said. "They are having children OD (overdose) on this stuff. They are having children steal it from their grandparents and they're taking it to school and selling it. They are having all kinds of problems, not to include all the robberies and all of the other stuff going on."
Gammick continues to oppose legal marijuana of any kind. "As far as I'm concerned, let's never do it (legalize it) because it is a dangerous drug," he said. "But you can't seem to get that across. Everybody seems to want to toke – not everybody – but there are enough people who want to toke up and sit around and be blown out of their brains…I keep asking folks, do you want that to be your pilot in an airplane?"
Tuesday, November 11, 2014
As reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.
“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”
For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.
But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....
As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...
At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....
Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.
In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.
Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.
Monday, September 15, 2014
This Wisconsin State Journal article, headlined "Police chief: Legalize marijuana, use tax revenue to fund drug treatment," reports on a local police chief's notable response to reports highlighting racial disparities on who gets arrested for marijuana offenses. Here are excerpts from the article:
Madison Police Chief Mike Koval endorsed the legalization of marijuana last week, saying the drug should be regulated and taxed, with revenues used to fund treatment programs for harder drugs.
The comments came during an interview with the State Journal Wednesday about data showing African-Americans in Madison were arrested or cited for marijuana offenses at about 12 times the rate of whites in the city.
Koval called efforts to enforce laws against marijuana an “abject failure,” and said the same about the broader war on drugs. “We’ve done such an abysmal job using marijuana as a centerpiece of drug enforcement, that it’s time to reorder and triage the necessities of what’s more important now,” Koval said.
Referring to the states of Washington and Colorado, which have legalized the drug for recreational use and sell it at state-regulated stores, he said it was time for Wisconsin to consider doing the same.
Koval said he would like to see the state “acknowledge the failure” of marijuana prohibition and instead focus on the “infinite amount of challenges” posed by drugs such as heroin. Taxes from the legal sale of marijuana, he said, would create state revenue that could then be used to fund drug treatment and expand the capacity of drug court programs that divert addicts from the criminal justice system....
The cause has not advanced as far in Wisconsin, though, where the drug remains completely illegal. State Rep. Melissa Sargent, D-Madison, introduced a bill to legalize marijuana earlier this year, but the legislation stands little chance of becoming law.
Saturday, September 13, 2014
The title of this post is the headline of this very intriguing piece from the Seattle Times, which spotlights a very interesting new lawsuit filed in Washington concerning a local ban on marijuana sales. Here are the details:
The growing number of cities and counties in Washington opting out of Washington’s marijuana legalization experiment is eating away at the foundation of Initiative 502, as a Seattle Times editorial in Thursday’s paper suggested. The lack of stores in widening swaths of the state perpetuates the black market and maintains underground access of youth.
A new lawsuit filed in Benton County Superior Court against Kennewick’s ban takes the argument further: Bans are also racially discriminatory. The suit, filed on behalf of a would-be marijuana company, suggests that Kennewick’s ban (as well as similar prohibitions in all three Tri-Cities and Franklin County) push the underground marijuana trade to poorer neighborhoods. Since marijuana is a cash cow for gangs, they’ll continue to battle for turf.
The lawsuit makes some broad assumptions, including that white marijuana users primarily buy from “friends,” and most transactions occur in private homes.... “Minorities and minority children, who reside in racially segregated, high poverty rate neighborhoods in Kennewick, where black market transactions do not occur in private between friends, but instead on the public streets, are therefore disproportionately subjected to violence as a product of the black market trade as compared to whites.”
Attorney Liz Hallock, who filed the suit on behalf of American Weed LLC, summed it up: “This is white people who don’t see the effect of a ban on their street corners.”
The case is scheduled for a hearing next week. Whether it is successful or not, the legality of these municipal bans is likely headed to the state Supreme Court, as another lawsuit, against Fife, is being directly appealed to the high court. These cases will hinge on a lack of specific authority in I-502 for cities and counties to opt out. Attorney General Bob Ferguson issued a non-binding opinion in January that they have an implied right under the state Constitution, which spurred jurisdictions queasy about marijuana to drop the curtain on I-502.
The ACLU’s Alison Holcomb, the architect of the initiative, believes the question about the bans falls to the Legislature: “Are we going to allow opt-out (from I-502), and under what circumstances?” State liquor laws, for example, require an alcohol ban to be put to voters. If state law now treats marijuana like liquor, shouldn’t voters get a say on pot bans?
The Legislative debate is likely to center on whether cities and counties get some of the 25 percent marijuana excise taxes in exchange for accepting state-licensed I-502 businesses. Holcomb said municipalities should have to justify their costs, because legalization, in theory at least, would lower criminal justice costs. “Cities and counties need to make the case and tie the request to the needs,” she said.
Until the Legislature, or the court, acts, the bans are here to stay.
Thursday, August 21, 2014
The title of this post is the title of this potent and provocative new Huffington Post piece by Jelani Hayes. The piece demands a full read, and here are excerpts:
Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control. Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.
Cannabis prohibition did all three. The [New York] Times editorial board dedicated an entire article to explaining this phenomenon. Part 3of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...
The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.
The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence. Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities. Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.
Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done. She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction. "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said. "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year. And I feel like, here we go again."
Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs. Therefore, our solution to it can't be either.
We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....
In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.
Friday, May 23, 2014
I am pleased to learn from this new post on the Brookings Institution's blog that folks at this prestigious think tank "will be researching the new marijuana industry, not as advocates, but as social scientists, interested in how our federal system comes to terms with statewide decisions to legalize a substance that is illegal in the rest of the country, and how states implement those policy changes." And this new post authored by John Hudak, headlined "Dispatch from Colorado: The Interesting Case of Marijuana Entrepreneurs," already provides an interesting and exciting perspective on what the folks at Brookings are discovering as their research begins. Here are snippets:
I spent last week in the Greater Denver area researching implementation of legalized cannabis. In the process, I found a remarkable situation: a robust entrepreneurialism around an industry that elsewhere lives in the shadows of society....
Regardless of one’s personal feelings on the issue, Colorado has determined (and within bounds, the federal government has allowed) the construction of a legal, recreational, and highly regulated market by which consumers can purchase a vast array of cannabis products. And business is booming....
The legal market in Colorado, from professional grow operations to medical dispensaries to recreational dispensaries, looks nothing like street corner drug operation. These are professional businesses that are innovative and scientific. They bring black market lessons to the new, white market, while using tools of agriculture, engineering, science, manufacturing, and business to advance an industrial effort.
Businesses function in a market — though highly regulated — competing with each other to produce the best product in the highest demand. Surely there are members of the industry — like in any industry — who try to skirt the rules or operate outside of the regulatory structures. However, my interaction with businesses involved talking with executives, operators, and employees who embodied professionalism and care for their craft. They reminded me at every turn that they were quite aware that playing by the rules was a necessary condition to avoid the ever-possible federal intervention. At the same time, they showed pride in their efforts, just as a brewmaster would at a microbrewery or a vintner at a winery.
And the operations were just as scientific. For example, at the grow operation I toured, I was led through a series of rooms, engineered specifically for the growing of cannabis. The process involved water purification, testing pH levels, temperature, and conductivity. There was a genetics room where employees ensure a strain of marijuana is consistent in each subsequent plant of that strain. Lights (as it was an indoor grow) were metered, colored properly for the correct stages of growth, measured the proper distance from plants, and were shut off for the necessary periods of time each day. Feeding and watering were timed and measured, and every plant pinned with the state-required seed-to-sale tracking system identifier tags. While in some ways similar to a greenhouse where one would buy roses or petunias, this space looked nothing like the neighborhood florist’s supply space. It was a warehouse filled with advanced agro-science and manufacturing.
In addition, my visits to dispensaries and a grow operation offered a peek into the emerging labor market within the industry: it employs demographic groups hit hardest by the recent recession. Most employees were young (appearing 30 or under). There were numerous females and individuals of color. Though I lack systematic industry employment data and cannot make broad claims about employment trends, my conversations with those who know the industry best suggested that those observations were more than just anecdotes and reflect real trends among cannabis businesses.
Is the industry perfect? No. Does it need regulatory and legislative solutions to operate in a more effective, safe, and consistent way? Absolutely. I will address these topics in a paper to be released in the coming months.
However, a deep look into Colorado’s industry shows a professionalized marketplace that contrasts starkly with caricatures or stereotypes about marijuana growers and sellers. In Colorado, the marijuana seller may not look or dress the same as the woman selling pharmaceuticals or the man selling insurance, but they’re driven by similar entrepreneurial energy and a willingness to play by the rules in a regulated marketplace. The emergence of that marketplace, the ability of the state to respond to the unprecedented and unique challenges it will present, and its adaptation to the broader federal system will be the topics of more research.
I am especially eager to see this report focus on the "emerging labor market" within the marijuana industry. I have long suspected and have been hoping that the labor force dynamics that can surround a legalized marijuana industry, especially if it is regulated in a manner that encourages job creation, could be very beneficial for many under-employed populations. I hope the folks at Brookings give particular attention to this issue in its coming research, in part because I have not seen any significant coverage of labor issues in other work to date in this field.
May 23, 2014 in Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Tuesday, March 18, 2014
In some parts of the country people are proudly announcing plans to get rich selling marijuana legally. But in Missouri, a man who ran a sophisticated illegal marijuana business was just sentenced to 30 years.
Not long ago, these sorts of stories were reported as big drug war wins. But the Riverfront Times ends its report on the case with this observation:
Incarcerating Henderson will cost taxpayers more than $800,000 at an average of about $27,000 per year.
Meanwhile, in Colorado, the state collected about $3.5 million in taxes from recreational marijuana sales in the month of January alone.
Seeing this story also brought to mind an article from April Short at Salon last Friday, which is well worth a read: "Legal Weed's Race Problem: White Men Get Rich, Black Men Stay in Prison."
Saturday, March 8, 2014
The Drug Policy Alliance hosted a call with Michelle Alexander, author of the New Jim Crow earlier this week. With respect to marijuana enforcement and legalization, Alexander noted an interesting and unsettling dynamic: though the criminalization of marijuana has disproportionately impacted people of color, it seems the emerging marijuana industry is largely white.
“When I see images of people using marijuana and images of people who are now trying to run legitimate marijuana businesses, they’re almost all white," she said, noting she supports legalizing pot.
“After 40 years of impoverished black men getting prison time for selling weed, white men are planning to get rich doing the same things," she added. "So that’s why I think we have to start talking about reparations for the war on drugs. How do we repair the harms caused?"
You can listen to the call in its entirety here.
I'm not aware of any data on ethnicity and marijuana businesses. But I think this is an issue well worth tracking. I will be especially curious to see if data emerges on race and marijuana license applications and outcomes.
To the extent that marijuana legalization laws limit people with criminal records from obtaining a license, it may unintentionally cement racial disparity in the legal market. Though there are clear political and policy reasons for criminal history license exclusions, we know that people of color are far more likely to be arrested and prosecuted for drug crimes than whites. As a result, a white illegal marijuana grower or dealer may be less likely to have a record and more likely to be eligible to get a license (so he or she can move into the legitimate market) than a similarly situated person of color.
Of course, the impact depends on what sort of criminal history results in an exclusion. For example, Washington State's point system--which excludes anyone with a felony conviction within the past 10 years--seems likely apply to most drug sale convicts, since trafficking crimes like sale and possession for sale are usually classified as felonies. However, the regulation does state that if a person has a single prior conviction involving marijuana that may be considered "for mitigation on an individual basis" .
In any event, I think this dynamic is something drafters of reform laws and the regulators that implement them should be attuned to. If formerly illegal white dealers and growers are able to get licenses in legalization states (because they have avoided criminal convictions) while people of color are shut out, it is certainly a cause for concern.
Tuesday, February 4, 2014
The question in the title of this post is prompted by this interesting article from the Washington Post headlined "Faith leaders wrestle over growing support for marijuana." Here are excerpts:
Sunday’s Super Bowl was dubbed by some as the “pot bowl,” as the Denver Broncos and Seattle Seahawks hail from the two states where fans can soon get marijuana as easily as they can get pizza. As public opinion has shifted in support of legalized marijuana, religious leaders are wrestling over competing interests, including high prison rates and legislating morality.
According to a 2013 survey from the Public Religion Research Institute, 58 percent of white mainline Protestants and 54 percent of black Protestants favor legalizing the use of marijuana. On the other side, nearly seven-in-10 (69 percent) white evangelical Protestants oppose it.
Catholics appear to be the most divided Christian group, with 48 percent favoring legalization and 50 percent opposing it. Opinions on how states should handle those who possess or sell marijuana varies among Christian leaders.
Caught in the middle of the debate are pastors, theologians and other religious leaders, torn over how to uphold traditional understandings of sin and morality amid a rapidly changing tide of public opinion.
Mark DeMoss, a spokesman for several prominent evangelicals including Franklin Graham and Hobby Lobby founder Steve Green, admits he takes a view that might not be held by most Christian leaders. “When 50 percent of our prison beds are occupied by nonviolent offenders, we have prison overcrowding problems and violent offenders serving shortened sentences, I have a problem with incarceration for possession of marijuana,” he said. “None of that’s to say I favor free and rampant marijuana use. I don’t think it’s the most serious blight on America.”
Alcohol abuse, he said, is a much more serious issue. President Obama suggested something similar to The New Yorker recently when he said that marijuana is less dangerous than alcohol.
But don’t expect pastors to start preaching in line with DeMoss, who said he has not seen much comment from religious leaders on the issue. “If a pastor said some of what I said, there would be some who would feel the pastor was compromising on a moral issue,” he said. “No one wants to risk looking like they’re in favor of marijuana. I’m not in favor, but I think we should address how high of a priority it should be.”...
Laws on marijuana have disproportionately impacted minorities, said the Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference. “There are community programs that can better engage young people than incarceration,” he said. “Many black and brown lives are destroyed because of incarceration.”...
Most Christians are still reluctant to favor legalization, Rodriguez said, since the effects of marijuana aren’t much different from getting drunk, which is a biblical no-no. “It has the ability of diluting reason, behavior, putting your guard down,” he said. “We are temples of God’s Holy Spirit, and it has the ability of hindering a clear thought process.”
Some who favor legalized marijuana liken the Christians who oppose it to be like the early 20th-century evangelicals and fundamentalists who supported a federal prohibition on alcohol. Part of a move in the Republican Party toward a loosening on marijuana legislation could be coming from people who also would sympathize with the Tea Party, said Russell Moore, head of the Southern Baptist Convention’s Ethics & Religious Liberty Commission.
“I definitely think there’s been a coalition of ‘leave us alone’ libertarians and Woodstock nation progressives on this issue of marijuana,” Moore said. “I do think there has been an effort to stigmatize those with concerns as Carrie Nations holding on to prohibition.”
Tuesday, January 21, 2014
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.
January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, January 20, 2014
In this post a few months ago on the 50th Anniversary of Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech, I asked this question: Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?." Now, as a way to honor the special day in which we honor the legacy of Dr. King's work, I provide this abridged and tweaked version of famed "I Have A Dream" speech:
One score and four years ago, Congress enacted the Controlled Substances Act. This momentous decree came as a great prohibition to millions Americans who had been enjoying the flames of a plant. It came as a notable break to end the long American history of freedom to grow and use marijuana. Forty four years later, the American pot user still is not free. Forty four years later, the life of the American pot user is still sadly crippled by the manacles of marijuana prohibition and the chains of incarceration. Forty four years later, the American pot user lives on a peculiar island of marijuana prohibition in the midst of a vast ocean of alcohol and tobacco and prescription drug use and abuse. Forty four years later, the American pot user still languishes in the corners of American black markets and finds himself in exile in his own land....
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.
This note was a promise that all men, yes, men who like marijuana as well as men who like alcohol, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness....
It would be fatal for the nation to overlook the urgency of the moment. This exciting winter of legitimate marijuana sales will not pass until there is an invigorating autumn of freedom and equality. Twenty Fourteen is not an end, but a beginning. Those who hope that the American pot user needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the American pot user is granted his liberty and rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges....
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident; that all men are created equal."
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood with marijuana as well as with alcohol.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the intoxicant they responsibly enjoy but by the content of their character....
I have a dream that one day every valley shall be exhalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I will go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood.
With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with new meaning, "My country 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrims' pride, from every mountainside, let freedom ring."
And if America is to be a great nation, this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.
Let freedom ring from the snow-capped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that; let freedom ring from the Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee.
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! Free at last! Thank God Almighty, we are free at last!"
Saturday, November 16, 2013
The question in the title of this post is prompted by this recent New York Times commentary by Jim Dwyer headlined "A Marijuana Stash That Carried Little Risk." The piece is, I think, designed to complain about the impact and import of NYC stop-and-frisk policies, but my take-away is a bit distinct. Here are excerpts from the piece:
Walking down Eighth Avenue a few weeks ago, I made sure my backpack was fully zipped shut. Inside was a modest stash of pot, bought just an hour or so earlier. A friend knew someone in that world, and after an introduction, then a quiet, discreet meeting, I was on my way to the subway. Never before had I walked through Midtown Manhattan with it on my person. There were four cookies in vacuum-sealed pouches — “edibles” is the technical term — and then a few pinches of what was described as “herb.”
The innovations of Michael R. Bloomberg as mayor are legion, but his enforcement of marijuana laws has broken all records. More people have been arrested for marijuana possession than any other crime on the books. From 2002 through 2012, 442,000 people were charged with misdemeanors for openly displaying or burning 25 grams or less of pot.
I wasn’t sure about the weight of my stash — although a digital scale was used in the transaction, I didn’t see the display — but it didn’t feel too heavy. Still, I wasn’t about to openly display or burn it.
It turns out that there was little to fret over. While scores of people are arrested on these charges every day in New York, the laws apparently don’t apply to middle-aged white guys. Or at least they aren’t enforced against us.
“It is your age that would make you most unusual for an arrest,” said Professor Harry Levine, a Queens College sociologist who has documented marijuana arrests in New York and across the country. “If you were a 56-year-old white woman, you might get to be the first such weed bust ever in New York City — except, possibly, for a mentally ill person.”
About 87 percent of the marijuana arrests in the Bloomberg era have been of blacks and Latinos, most of them men, and generally under the age of 25 — although surveys consistently show that whites are more likely to use it.
These drug busts were the No. 1 harvest of the city’s stop, question and frisk policing from 2009 through 2012, according to a report released Thursday by the New York State attorney general, Eric T. Schneiderman. Marijuana possession was the most common charge of those arrested during those stops. The few whites and Asians arrested on these charges were 50 percent more likely than blacks to have the case “adjourned in contemplation of dismissal,” the report showed.
Now, having a little bit of pot, like a joint, is not a crime as long as you don’t burn or openly display it. Having it in my backpack was a violation of law, meaning that it is an offense that is lower than a misdemeanor. Pot in the backpack is approximately the same as making an illegal turn in a car. Taking it out and waving it in the face of a police officer or lighting up a joint on the street would drive it up to the lowest-level misdemeanor.
How was it that all the black and Latino males were displaying or burning pot where it could be seen by the police? The answer is that many of them were asked during the stops to empty their pockets. What had been a concealed joint and the merest violation of the law was transformed into a misdemeanor by being “openly displayed.” If these were illegal searches — and they very well could have been — good luck trying to prove it....
Michael A. Cardozo, the chief lawyer for the city, is eager to get an appeals court to throw out the findings of fact by a judge who ruled against the city in a lawsuit over the stop-and-frisk tactics. Mr. Cardozo appears to believe, mistakenly, that losing a lawsuit is going to damage the legacy of his patron, Mayor Bloomberg. Undoing a lawsuit will not unstain this history.
As for me, the pot got to a couple of people who might need it to get through some medical storms. It’s too risky for me to use: I already have a hard enough time keeping my backpack zipped.
Sunday, November 3, 2013
The Nation talks up "Dope and Change" and explains "Why It’s Always Been Time to Legalize Marijuana"
If magazine covers serve as a marker of some kind of tipping point, then November 2013 should be marked as the month when these covers went to pot. As noted in this prior post, the November 2013 issue of Reason magazine has lots of terrific coverage of modern marijuana realities and a lengthy cover story titled "Pot Goes Legit." Now I see that the November 18, 2013 issue of The Nation is covering marijuana mania with a cover picture of President Obama's high-school "Choom Gang" under the headline "Dope and Change" and this editorial headlined "Why It’s Always Been Time to Legalize Marijuana." Here is how the editorial gets started:
“Marijuana is indeed a gateway drug,” quips Sanho Tree of the Institute for Policy Studies. “It’s a gateway drug to the Oval Office!” Indeed. From Bill Clinton’s “I didn’t inhale it” through George W. Bush’s “I was young and foolish” to Barack Obama’s teen years in the Choom Gang (“I inhaled frequently—that was the point”), the last three presidents have more or less owned up to breaking America’s drug laws.
All of them were elected. Then re-elected.
This raises obvious questions: If Clinton, Bush and Obama, ex–pot smokers all, were deemed responsible enough to lead the world’s most powerful nation, largest economy and strongest military (with thousands of nukes), why are we still arresting young men and women — especially young African-Americans and Latinos — for doing what these men did? Why do countless people languish behind bars for nonviolent drug crimes? And why is pot still classified as a dangerous drug?
This is especially astonishing when you consider that almost half of all Americans — myself included — admit to having at least tried pot. As a parent who has had the substance use-and-abuse talks with my 22-year-old daughter, I’ve had a hard time explaining why she can freely purchase cigarettes, which can certainly kill her, but not marijuana, which will surely not.
When the Eighteenth Amendment banned alcohol in 1920, it took thirteen years to admit failure and enact the Twenty-first, which ended Prohibition. By contrast, it has now been almost eighty years since the Federal Bureau of Narcotics launched the “reefer madness” era. The ensuing decades have been a debacle, from Nixon’s “war on drugs” to the creation, by Joe Biden, of a national “drug czar.”
So much failure. So many lives ruined. So much time wasted. Enough. It’s time to end pot prohibition. It’s time to legalize marijuana.
In addition to this editorial, The Nation has in both its print edition and on-line an extraordinary amount of insightful commentary about modern marijuana realities past, present and future. Here are links to all the coverage, cut and pasted straight from the end of the editorial:
Also In This Issue
Mike Riggs: “Obama’s War on Pot”
Carl L. Hart: “Pot Reform’s Race Problem”
Kristen Gwynne: “Can Medical Marijuana Survive in Washington State?”
Atossa Araxia Abrahamian: “Baking Bad: A Potted History of High Times”
Various Contributors: “The Drug War Touched My Life: Why I’m Fighting Back”
And only online…
J. Hoberman: “The Cineaste’s Guide to Watching Movies While Stoned”
Harmon Leon: “Pot Block! Trapped in the Marijuana Rescheduling Maze”
Seth Zuckerman: “Is Pot-Growing Bad for the Environment?”
November 3, 2013 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Sunday, September 29, 2013
Did Louisiana really give Corey Ladd "20 years hard labor" for possessing less than an ounce of marijuana?
While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana.
Corey Ladd, 27, had prior drug convictions and was sentenced September 4, 2013 as a “multiple offender to 20 years hard labor at the Department of Corrections.”
Marijuana use still remains a ticket to jail in most of the country and prohibition is enforced in a highly racially discriminatory manner. A recent report of the ACLU, “The War on Marijuana in Black and White,” documents millions of arrests for marijuana and shows the “staggeringly disproportionate impact on African Americans.”...
Louisiana arrests about 13,000 people per year for marijuana, 60% of them African Americans. Over 84 percent were for possession only. While Louisiana’s population is 32 percent black, 60 percent of arrests for marijuana are African American making it the 9th most discriminatory state nationwide. In Tangipahoa Parish, blacks are 11.8 times more likely to be arrested for marijuana than whites and in St. Landry Parish the rate of black arrests for marijuana is 10.7 times as likely as whites, landing both parishes in the worst 15 in the country.
In Louisiana, a person can get up to six months in jail for first marijuana conviction, up to five years in prison for the second conviction and up to twenty years in prison for the third. In fact, the Louisiana Supreme Court recently overturned a sentence of five years as too lenient for a fourth possession of marijuana and ordered the person sentenced to at least 13 years....
Arrests and jail sentences continue even though public opinion has moved against it. National polling by the Pew Research Center show a majority of people support legalizing the use of marijuana. Even in Louisiana, a recent poll by Public Policy Polling found more than half support legalization and regulation of marijuana.
Karen O’Keefe, who lived in New Orleans for years and now works as Director of State Policies at the Marijuana Policy Project, said “A sentence of 20 years in prison for possessing a substance that is safer that alcohol is out of step with Louisiana voters, national trends, and basic fairness and justice. Limited prison space and prosecutors’ time should be spent on violent and serious crime, not on prosecuting and incarcerating people who use a substance that nearly half of all adults have used.”
Defense lawyers are appealing the twenty year sentence for Mr. Ladd, but the hundreds of thousands of marijuana arrests continue each year. This insanity must be stopped.
The Louisiana Supreme Court case referenced in this commentary is Louisiana v. Noble, No. 12-K-1923 (La. April 19, 2013) (available here), and the Noble court did in fact rule that Louisiana's Habitual Offender Law demanded imposition of a mandatory prison term of 13.3 years for a defendant who "was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine" and even though "defendant supports seven children, two of whom have significant medical problems, and ... all of the defendant’s offenses have been non-violent ... and all involved the possession of small quantities of narcotics."
The Noble case documents that at least some defendants are, despite claims by supporters of the modern drug war, that nobody really serves long terms of imprisonment merely for possessing marijuana. But the opinion in Noble does not reveal just how much much marijuana the defendant in that case possessed, and perhaps the possession offense there involved a significant quantity.
This case involving Corey Ladd surely also involves application of Louisiana's Habitual Offender Law because subsection 4(a) of that law provides a mandatory minimum of 20 years for the "fourth or subsequent felony." And I suspect the sentencing court felt obligated to give the 20-year term because the Noble court reversed another sentencing court for trying to go below the applicable mandatory minimum. But I am still gobsmacked that possessing such a small amount of marijuana in the Bayou could be a felony and in turn require the imposition of a 20-year prison term for a habitual offender.
Saturday, August 24, 2013
Perhaps like many others today, I have been thinking about (as well as listening again to) Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech from the famous March on Washington five centuries ago. In so doing, I noticed this posting from The Crime Report, which is headlined "50th Anniversary March on Washington Will Emphasize Criminal Justice Issues" (and has links to the full speeches of August 1963 speeches of both MLK and John Lewis). Here is an excerpt from the post:
Half a century after Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech at the March on Washington for Jobs and Freedom, the often-parallel topics of racism and criminal justice have been thrust into the spotlight.
[Today] and on August 28 civil rights leaders will demand reforms to such racially-tinged criminal justice issues as police “Stop-and-Frisk” tactics, “Stand Your Ground” laws and mass incarceration at the Lincoln Memorial where King made his impassioned plea so many years before.
These policies, among others, have added to the increasingly heavy cost of incarceration of African-Americans effectively decimating the fabric of many communities. The numbers are startling: one in three black men can expect to be in jail during their lifetime. African-Americans are arrested at nearly six times more than whites and almost one million of the United States 2.3 million prison population are black.
But in the last month some strides have been giving leaders attending the march more urgency.
Perhaps at no time since King’s famed speech have the often-parallel topics of racism and criminal justice been so intertwined and in the spotlight. On August 12, Attorney General Eric Holder announced the "Smart on Crime" program, a sweeping initiative by the Justice Department that pivots away from decades of tough-on-crime anti-drug legislation. That same day, Judge Shira Scheindlin of U.S. Southern District Court in Manhattan, declared the New York Police Department’s use of “Stop-and-Frisk” unconstitutional. The tactic is used to search individuals — predominantly minorities — for drug paraphernalia and guns....
Among those speaking will be Congressman John Lewis, whose speech at the original March on Washington cited “the constant fear of a police state.”
"We are tired of being beat by policemen. We are tired of seeing our people locked up in jail over and over again,” Lewis said at the time. ...
The week of events will culminate on August 28, when President Barack Obama will give a speech in which he is expected to emphasize the “dreams” of King that remain unfulfilled.
I have long believed and long contended that Dr. Martin Luther King Jr., were he still alive today, would be a vocal proponent of criminal justice reform and that he would consider such advocacy a continuation of his civil rights work. But, as the question in the title of this post suggests, I wonder if some folks (especially those working toward ending marijuana prohibition) think that MLK would be a vocal advocate for marijauana legalization were he alive today. In other words, do folks think it is proper or at least plausible for advocates of marijuana reform to be considered civil rights activists?
Obviously, to the extent MLK stressed the theme of freedom in his famous Dream speech, it is relatively easy for marijuana reform advocates to contend they are working in the MLK tradition when advocating for all people to be able to freely and legally use marijuana. But, as the graphic above notes, the March on Washington 50 years ago was for jobs and freedom. When I think of my own criminal justice reform advocacy, it has a lot to do with freedom but very little to do with jobs. Marijuana reform advocates, however, often can and sometimes do speak of the job-creation possibilities of a fully legalized and regulated marijuana industry. In this way, I do think marijuana reform advocates can arguably claim to be even more in harmony with the DC marchers 50 years ago than even today's criminal justice reform advocates.