Monday, March 31, 2014
A helpful reader alerted me to this notable article from the Asbury Park Press, headlined "It's high time to legalize pot, N.J. prosecutors say." Here is how it starts:
Proponents of legalizing marijuana in New Jersey received a boost from an unlikely source — the very people who prosecute pot users. The New Jersey State Municipal Prosecutors Association in Hamilton, N.J., has come out in favor of legalizing possession of marijuana. The support of the prosecutors association comes as two bills were introduced this month in the New Jersey State Legislature and as polls show a majority of Americans favor legalization.
One of the bills, introduced March 10, calls for a referendum asking voters to legalize the possession of an ounce or less of marijuana. Assemblymen Reed Gusciora, a Democrat from Trenton, N.J., who also is municipal prosecutor in Lawrence Township, N.J., and Michael Patrick Carroll, a Republican from Morris Township, N.J., are its sponsors.
"If it were up to me, I would make all quantities legal," Carroll said. "Why should the government be in the business of criminalizing marijuana? All it does is create administrative Al Capones and puts the power in the hands of gangsters." From the government's perspective, Carroll said legalizing marijuana would be a huge benefit. Government could save money by hiring fewer police and parole officers. Carroll also noted that getting an arrest record has ruined many people's careers.
On March 24, Sen. Nicholas Scutari, a Democrat from Linden, N.J., who also is municipal prosecutor there, introduced another bill. Scutari's bill does not call for a referendum. Instead it would legalize the cultivation, sale and possession of marijuana; set up an agency to oversee the industry; and then funnel the sales tax revenue to the state Transportation Trust Fund, drug prevention and enforcement efforts and women's health programs....
The board of trustees of the municipal prosecutors association voted Feb. 21 to endorse legalization, said its president, Jon-Henry Barr, who is municipal prosecutor in Kenilworth and Clark Township, N.J. "The board was not unanimous, but a clear majority of municipal prosecutors favor the idea," Barr said.
Of the 10 members of the board of trustees, seven were in favor of legalization, Barr said. Two members were opposed to legalization, and one member of the board abstained from voting, Barr said. He said the association is made up of 150 prosecutors. Among the reasons the municipal prosecutors favor legalization is the damage a prosecution for marijuana possession has on a person's reputation and the growing acceptance among Americans that marijuana should not be criminalized, Barr said....
"The time has come to understand that this particular offense makes about as much sense as prohibition of alcohol did," Barr said. "It is time to stop the insanity." Barr said prosecutors are spending time prosecuting marijuana cases when they could be attacking more pressing problems.
Some municipal prosecutors were unaware of the association's position on marijuana, and not all agree with it. "I was not at the meeting," Municipal Prosecutor Bonnie Peterson said. She is prosecutor in Seaside Park, Ship Bottom and Harvey Cedars, three communities on the Jersey Shore. "They sent an e-mail. I was surprised. ... I would find it very hard to believe the municipal prosecutors association would come out with a blanket endorsement of legalization of marijuana."... Steve Rubin, prosecutor in Long Branch and West Long Branch, N.J., was one of the municipal prosecutors association's board of trustees who voted to endorse legalization. Still, he said he has some concerns, especially during a transition to legalization. He said he fears some marijuana trade would remain in the hands of criminals. "There still are people who are bookmakers," Rubin said. "We thought they would have been eliminated with OTB (off-track betting) and the lottery."
But Rubin said legalization would eliminate many of the court cases he has to present. "I would no longer have to prosecute a bunch of 18-year-olds who went to a frat party," Rubin said.
Last week, a Louisiana appeals court upheld the conviction and ten-year sentence (PDF) of Kyle Everett for attempted possession with intent to distribute marijuana. From the decision, it appears that Everett was found with somewhere in the neighborhood of $50 worth of marijuana (it isn't clear from the opinion why Everett was convicted of attempted, as opposed to actual, possession).
Officer Hunt then conducted a safety pat down. The officer felt a bulge in the front of the defendant's pants. He asked the defendant about the bulge, and the defendant told the officer that it was marijuana. The defendant shook his leg, and three bags of what appeared to be marijuana fell out of the defendant's pants leg. One bag contained loose marijuana, and the other bag contained ten individually hand-tied baggies of marijuana. The defendant was taken to the police station, where the green material was field tested positive for marijuana. Officer Birks testified that each little baggie appeared to be a "nickel" bag, indicating a value of five dollars for each baggie. Officer Birks further stated that the amount of marijuana that the defendant had in his possession was excessive for personal consumption.
To make matters worse, the officers who arrested Everett were later found to have planted cocaine on a different suspect (by coincidence, Everett's cousin) about a month after they arrested Everett! The officers pled guilty to perjury and malfeasance charges for the cocaine-planting incident. They received suspended sentences and were fined $5,000 and $2,500.
The contrast between the officers' sentences (no jail time, low fines) and Everett's (10 years) is pretty striking.
In his appeal, Everett challenged the constituionality of the search and argued the trial court should have granted his motion for a new trial "on the basis of the subsequent convictions of Officers Hunt and Birks." (The appeals court rejected both arguments.)
Here's the officers' story about stopping Everett:
"[B]oth officers testified that they stopped their vehicle and approached the defendant and the other unknown man as they were riding bicycles and "goofing off" in the middle of the street. The officers stated that they only sought to talk to the defendant about bicycle safety because the defendant and the other man almost created an accident when the officers turned onto the street. We find that the officers were well within their right to make such a stop."
And here's what these same officers did to Everett's cousin one month after Everett's arrest:
Joshua Hunt and Samuel Birks claimed they arrested Bean on Jan. 25, 2011, while on foot patrol at Jackson’s Landing apartments in Algiers. They said a rock of crack cocaine fell out Bean’s pocket as they searched him.
Bean spent more than four months in the parish jail before Hendrix proved that the officers had lied in a police report on the arrest, and that Hunt had lied under oath during a pre-trial hearing in the case.
According to the suit, filed in December 2011, Birks drove up as Bean left his apartment, handcuffed him and placed him in the back of his patrol car.
Birks allegedly told Bean he was wanted in connection with drug dealing in the area. Birks then got a phone call from Hunt, asking to be picked up at a dentist’s office in the 4000 block of MacArthur Boulevard, also in Algiers, the suit says.
With Bean in the back of their patrol car, the officers returned to the Garden Oaks Drive area to cruise around and ask Bean about criminal activity in the area, the complaint alleged.
Hunt then ran a check on Bean’s criminal history and found he was a parolee with three prior convictions. According to the complaint, Hunt then placed a rock of crack in Bean’s jacket pocket, and the officers drove him to the 4th District station to arrest him.
Did these officers do something similar to Everett? The appeals court recognized the possibility but didn't think it likely enough to warrant a new trial (or, apparently, to cast doubt on the officers' questionable account of their stop/frisk of Everett):
[Everett] maintains his innocence and claims that the officers lied to effectuate his arrest and conviction just as the officers lied in the Alvin Bean case. The defendant's argument, while plausible, is simply argument without any factual support or evidence. We do not find that the trial court abused its great discretion when it denied the motion for new trial based on serving "the ends of justice" pursuant to La. C.Cr.P. art. 851(5).
More about Louisiana's marijuana sentencing practices here.
The question in the title of this post is prompted by this interesting new piece providing a very personal account of the benefits of medical marijuana. The piece is headlined "The story behind a Mormon marijuana lobby: How a conservative Mormon family found hope in cannabis," and here is how it concludes:
Cannabis isn't a substance my family — under just about any circumstances — would have an interest in legalizing, but what we call normal keeps changing. Alepsia has emerged as a source of legitimate hope for Amelia. Currently, 80 percent of children being treated with Alepsia in Colorado have experienced at least a 50 percent decline in seizures. Although still preliminary, those results vastly outstrip all the FDA-approved medications Amelia has tried. Other states are taking action, and that's a good thing. While Alepsia won't "save" Amelia, it might mean more days smiling and laughing, and fewer sitting on the couch drooling. And it might mean a new routine for my family — which would be more than enough, for us.
Last week, the First Circuit issued an opinion upholding a 5 year mandatory minimum sentence for possession of a gun in furtherance of a drug trafficking charge, based on possession of marijuana with intent to distribute.
The government found about 7.5 ounces of marijuana in the defendant's car, along with a gun about three feet from the marijuana. At trial, the defendant testified that the marijuana was for his own use:
He stressed that the marijuana found in his van was for his own personal use and claimed he smoked between 10 and 12 joints per day, with each joint containing 1 to 2 grams of marijuana. He estimated that, after he removed the stems and seeds, the 7.5-ounce bag found in his car would yield only 5 or 5.5 ounces of usable drug. Thus, he figured he only had enough marijuana to make about 50 joints, which he said would last him a week or two. He explained that buying his marijuana in bulk was more economical, more convenient, and reduced the risk of getting caught.
The jury sided with the government and, on appeal, the First Circuit rejected the defendant's sufficiency of the evidence challenges (both on proof of an intent to distribute the marijuana and proof that the gun was possessed in furtherance of the marijuana possession.)
The case is most noteworthy for the majority's conclusion, in which it expresses some reservations about the outcome and the government's decision to charge the case as it did in the first place:
Before we wrap up, we pause to make explicit our ambivalence towards the jury's findings. While it is clear that Bobadilla guiltily possessed a small quantity of marijuana and an illegal firearm, whether he intended to distribute that marijuana, as well as whether he possessed the firearm "in furtherance of" a drug trafficking crime, are harder questions. The jury answered "yes" to both. Another jury may have concluded otherwise. Obviously too, another prosecutor could have opted to indict Bobadilla on lesser charges, i.e., simple possession of marijuana and an unlicensed firearm. This prosecutor chose not to, as was within her discretion. And at this stage, we are duty-bound to enforce the jury's amply supported verdict. Consequently, today, like September 27, 2011, is not Bobadilla's lucky day.
The decision is an interesting one for thinking about the scope of sufficiency of the evidence review. The majority feels the need to express its "ambivalence" about the jury's verdict. But it does not feel ambivalent enough to disturb it.
Thursday, March 27, 2014
As reported in this local article, the "New Hampshire House voted against legalizing marijuana 192-140 yesterday, marking a significant shift after passing the bill by eight votes in January." Here is more:
The Senate was nearly certain to block the bill, and Democratic Gov. Maggie Hassan had promised to veto any bill legalizing marijuana. Hassan signed a medical marijuana bill last year, and last month the House passed a bill to decriminalize possession of up to an ounce of marijuana. Opponents of legalization said the state should take small steps when it comes to marijuana. Hassan has already said she’s unlikely to sign a decriminalization bill. “Good public policy means taking one step at a time,” said Rep. Donna Schlachman, an Exeter Democrat.
A certain death didn’t stop supporters from making a passionate case for legalizing the drug. Rep. Steve Vaillancourt, a Manchester Republican and the bill’s prime sponsor, spoke for 30 minutes about what he thinks are misconceptions about the drug and the revenue it could bring into New Hampshire. A February poll by the UNH Survey Center showed 53 percent of people support legalizing marijuana for recreational use. Legalizing, regulating and taxing the drug is the best way to ensure safe use, Vaillancourt said. “This is the only way to break the back of the black market,” he said.
Rep. Romeo Danais, a Nottingham Republican, encouraged his colleagues to challenge their own misperceptions about the drug. Marijuana is not a gateway drug, he said, but people who buy it from drug dealers might be more easily exposed to harder drugs. Just as with alcohol, legalizing marijuana doesn’t mean people would be allowed to drive or show up to work under its influence, he said. “Just because it’s legal does not mean that anyone would use it,” Danais said....
But opponents of the bill said no state agency testified in favor of legalizing marijuana during a public hearing. The system of regulation and taxation in the bill would have involved the departments of Revenue Administration, Safety, Health and Human Services, Agriculture and the Liquor Commission. The Liquor Commission said it wouldn’t sell marijuana in state liquor stores, said Rep. Patrick Abrami, a Stratham Republican.
Furthermore, opponents said selling marijuana would be a cash-only business because banks would not accept money from marijuana transactions. The bill also raised questions about people growing their own marijuana and making “edibles,” or marijuana baked into food. Several opponents said New Hampshire should see how legalization pans out in Colorado and Washington state before moving forward with a similar plan. “I don’t think New Hampshire wants to be known as the ‘East Coast pot state,’ ” said Rep. Mary Cooney, a Plymouth Democrat.
Among interesting aspects of this story is the apparent reality that at least a few Republicans were the most vocal advocates for legalization, while at least a few Democrats appeared most eager to get behind these reforms. In addition, this story highlights yet again how the experiences in Colorado and Washington over the next few months and years seem certain to have a profound impact on how politicians and other policy-makers view various marijuana reform efforts.
Wednesday, March 26, 2014
As Rob explained last week, calling Alabama's CBD-only law a medical marijuana law is a stretch for a number of reasons. Yesterday, bloggers for NORML and the Drug Policy Alliance weighed in on the emergence of CBD only laws. Both posts are well worth reading in their entirety.
For NORML, Paul Armentano discussed measures in Utah and Alabama, saying that describing them as medical marijuana laws is "far from accurate."
For DPA, Amanda Reiman discussed the idea of CBD-only legislation more generally:
So, is CBD-only legislation a good thing?
Yes and no.
In some states, the only way medical marijuana is going to get its foot in the door is through the strictest of incrementalism. And, preventing access to an effective, safe and natural medicine for families in those states is of course, not a preferred outcome.
But, what about the children and adults with cancer, HIV and other serious illnesses in those states whose use of THC rich medicine might ease the nausea and pain associated with their treatments?
The adoption of CBD-only legislation might be a way to start the conversation in some states, but it should not be the end.
Tuesday, March 25, 2014
The other week a Colorado appellate court held that Amendment 64 applies retroactively, to at least some pre-passage marijuana possession convictions. Just how many marijuana possession convictions remains uncertain, however.
John Ingold of the Denver Post has an article exploring this question today. The headline says it all: "Marijuana ruling could overturn thousands of convictions — or dozens."
Anywhere from a few dozen to more than 10,000 people could be eligible to have their old marijuana convictions overturned as the result of a landmark Colorado Court of Appeals ruling that applied marijuana legalization retroactively.
Colorado defense attorneys are poring through previous marijuana cases, looking for former clients who might be eligible for such relief, but much depends on how subsequent courts apply this month's ruling. On the surface, the ruling appears to have little reach, but attorneys say it is possible courts could follow the reasoning of the ruling to overturn every marijuana case in the state in which an adult was convicted of a crime that stopped being illegal when the state's marijuana-legalization law went into effect in late 2012.
"I think there are thousands of people who could potentially have their convictions overturned," said Sean McAllister, an attorney who specializes in marijuana cases and who said he is already working with several clients to see if their previous convictions could be tossed.
But, in order for that to be true, Colorado courts will have to adopt an expansive reading of the ruling — a scenario prosecutors see as unlikely.
The full article explains the issues and uncertainty in more detail.
Add New Jersey to the list of states which have introduced legalization/recreational marijuana bills this year.
Yesterday State Senator Nicholas Scutari introduced S 1896 which would legalize possession of less than one ounce of marijuana for anyone 21 or older. The bill also allows individuals to grow up to 6 plants. People who are interested in operating a "marijuana establishment" will apply for a license from the newly renamed Division of Alcoholic Beverage and Marijuana Control. A 7% sales tax, which would not apply to medical marijuana, would be used for worthwhile purposes including repairing NJ's transportation infrastructure.
Chris Christie's probable reaction from statements at a town hall-"I will not decriminalize marijuana," Christie said. "I will not permit recreational use, and I will not legalize marijuana, because I think that is the wrong message to send to the children in this state and to young adults."
Monday, March 24, 2014
The title of this post is the headline of this article today in AdAge. In it, the head of Partnership at Drugfree.org (formerly the Partnership for a Drug-Free America) talks about why his group has declined to run ads criticizing the legalization laws in Colorado and Washington.
Ever since Colorado and Washington state voters legalized recreational marijuana use, Partnership at Drugfree.org has been lobbied to run ads criticizing the decision. But that's the last thing the group wants to do. "A public-service ad that says: 'By the way, voters of Colorado, you don't know what you are doing.' Come on," said Steve Pasierb, the partnership's CEO. Pot legalization is "happening in America," he added.
As I've said before, I don't think we've quite reached the place where we can say with certainty that nationwide legalization is inevitable (more likely than not, yes, but I believe there is still the possibility of a backlash). But, when the head of the group behind the "this is your brain" ads acknowledges legalization is "happening in America," it is certainly a sign that the point of no return may be near.
As reported in this new Denver Post article, headlined "Colorado Supreme Court OKs lawyers to work with marijuana businesses," an notable amendment was made today to the Colorado Rules of Professional Conduct. Here are the basics (with my emphasis added):
Colorado's lawyers now have the state's permission to work with marijuana businesses, after the Colorado Supreme Court approved a rule change Monday that eliminates the threat of ethics sanctions.
The new rule gives lawyers the go-ahead to work with marijuana businesses — even though those businesses are breaking federal law — so long as the lawyers don't help businesses also break state law. The updated rule, signed by Chief Justice Nancy Rice, states that a lawyer "may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state and local provisions implementing them." The rule requires lawyers also to advise their clients about federal marijuana laws and policies.
The notice of the new rule states that justices Nathan Coats and Allison Eid dissented, though no explanation was given.
Colorado's constitutional amendments legalizing both medical and recreational marijuana left Colorado lawyers in a professional pickle. Because ethics rules prevent lawyers from helping clients do illegal things, the Colorado Bar Association last year declared that lawyers could be in trouble for doing more than giving basic advice to marijuana businesses. Arranging a lease, negotiating a contract or soliciting financial help would all violate ethics rules, according to the bar association's analysis.
Though no attorney had ever been disciplined for working with a marijuana business, the opinion alarmed the growing number of lawyers in Colorado who specialize in cannabis law. They argued that lawyers are crucial in helping marijuana businesses negotiate Colorado's complicated regulations.
Because I am not an expert on legal ethics and state bar rules, I am not sure it is unprecedented or unusual for a state rule to expressly require a state lawyer to advise certain clients about federal law. My instinct is that it is unusual for a state legal ehtics rule to include such a mandate, which in turn reinforces my view that the laws and regulations surround state-legal marijuana industries will be quirky and complicated as long as federal prohibition remains firmly in place. (In addition, I suspect unexplained dissents from the amendment of state ethics rules is also unusual.)
Friday, March 21, 2014
Federal court to hold evidentiary hearing on the constitutionality of marijuana as a Schedule I substance
An Eastern District of California Court will be holding an evidentiary hearing this summer (June 2nd) on the constitutionality of the federal government's treatment of marijuana.
The development comes in the context of a criminal prosecution. The defense requested the hearing to present their claims that marijuana's classification under the Controlled Substances Act is irrational and that the DOJ's current enforcement policies raise equal protection problems. The court granted the request over the government's opposition.
I'm not sure whether the defense will be able to get any sort of discovery leading up to the hearing. But, if so, we may have a chance to learn a bit more about the process that went into the DOJ's advisory memos or what was behind the DEA's nearly decade long delay before it took action and issued its most recent denial of a petition to reschedule marijuana. (I'll admit that my knowledge of federal trial procedure is shaky at best. If anyone has a sense of the likelihood of discovery for this type of hearing, I'd be very interested to know.)
At the very least, I imagine the hearing will generate some media interesting coverage. And even though the government has a pretty strong legal case, I'm not sure how well its position will play out in the court of public opinion. After the President has said marijuana is no more dangerous than alcohol or tobacco, I think defending marijuana's Schedule I status will become an increasingly tricky thing to explain to reporters (of course, alcohol and tobacco are exempt from CSA regulation and scheduling status is not as important as many believe, but that doesn't change the fact that the tension between the President's words and federal law's treatment of marijuana is a tough thing to get around in the media.)
The Eastern District of California Blog has the story (here's the first paragraph):
In United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, the EDCA Court yesterday apparently became the first court in the country to set an evidentiary hearing on defendants' constitutional claims that the continued inclusion of marijuana as a Schedule I controlled substance violates the Equal Protection Clause of the Fifth Amendment and the DOJ's enforcement policies violate the constitutional requirements of federalism and equal sovereignty. The evidentiary hearing is currently set for June 2, 2014, at 9:00 a.m. before Judge Mueller. The government is said to be bringing in attorneys from Main Justice in D.C. to handle the hearing. Here are the briefs: Defendants' Motion to Dismiss And Memorandum Of Law, Government's Opposition, andDefendants' Reply Brief.
Thanks to MMP's Dan Riffle for sending this along.
Not really. But both houses of the state legislature did just pass a limited measure (called Carly’s Law) that is expected to be signed by the governor. The measure would ostensibly legalize a marijuana extract known as Cannabidiol (CBD) to treat epilepsy. CBD, like other forms of marijuana, is banned by federal law, though it contains none of the psychoactive content (THC) normally found in marijuana. For the story, see this Reuters report. Supporters of the law have a Facebook page as well.
The only reason this development is even worth noting is that it’s occurring in Alabama, the heart of the deep South, where the marijuana reform movement has yet to make any headway. But even in that context, the measure is a rather small victory for reformers. Vanishingly small. Indeed, I’m confident saying this would be the narrowest medical marijuana law any state has troubled to pass, and it might not even meet its quite limited ambitions.
The text of the house and senate versions of the bill can be found here. In a nutshell (it’s a big nut), the law creates an affirmative defense against prosecution for simple possession of CBD by someone who has been diagnosed by a University of Alabama,Birmingham employed physician, as suffering from a debilitating epileptic condition; and for whom a UAB employed physician has also prescribed CBD. Lastly, the UAB shall be the sole supplier of CBD for such persons (the law provides legal protections for UAB employees). Oh, and the law has a sunset provision—it expires in 5 years.
To explain how limited (and potentially ineffective) the measure is, consider that: (1) patients can still be charged with possession of CBD and they (rather than the prosecution) bear the burden of persuading a jury that their possession of the drug was in compliance with the law; (2) CBD isn’t for everybody, especially those who believe marijuana’s medical benefits stem from THC; (3) the provision only protects those suffering from serious epilepsy, and not the myriad other conditions for which other states have allowed treatment (wasting syndrome, PTSD, glaucoma, etc.); (4) patients must be under the care of a UAB employed physician, not just any state-licensed physician; (5) the law requires a physician prescription, which, as I explained in a earlier comment regarding NY’s proposed medical marijuana law, might be impossible to get; that’s because the DEA can take away a physician’s authority to prescribe any legal drug if the physician prescribes a Schedule I controlled substance like CBD; (6) patients must obtain their CBD from the UAB, but the UAB probably can’t supply CBD; as I’ve pointed out repeatedly, direct state supply of marijuana is preempted by federal law, and regardless of whether the DOJ would sue to stop UAB, many other people could probably do so, meaning that perhaps no one – not even sufferers of serious epileptic conditions being treated by UAB physicians who don’t mind putting their medical practices at risk – will get the drug.
When it comes to marijuana-related violence, most of the focus today is on "the drug cartels"--specifically, it seems, Mexican drug trafficking organizations. Though the attention is well deserved, I sometimes feel like black market violence right here at home is often overlooked. I think this may be because of a belief that most illegal marijuana dealers are just peace loving stoners. There's probably some truth to that.
But it is important to remember that, even so, violence is still a part of the domestic marijuana market. The facts from this Texas appeals court decision from earlier this week provides a sad reminder of the sort of black market violence that legalization could help to reduce:
In 1993, Fortino Delangel was working at a used car dealership from which appellant had purchased two vehicles. After the second purchase, appellant asked Delangel if he knew anyone who sold marijuana. Delangel contacted his brother-in-law, Jose Guerrero, and asked if he knew anyone who sold marijuana. In turn, Guerrero contacted Salvador Vargas. With Delangel and Guerrero acting as middlemen, appellant and Vargas agreed that appellant would purchase approximately thirty pounds of marijuana from Vargas. Delangel understood that appellant would compensate him for his participation, although the precise amount of that compensation was not clear.
Delangel, Guerrero, appellant, and an unidentified companion of appellant, drove in two cars to Room 28 at the Lafronda Motel in South Houston to meet with Vargas. Delangel and appellant rode in separate cars. Delangel testified that he had never met Vargas before that evening.
Vargas initially stated that only one individual could come into the room; he relented when appellant insisted that all four men be allowed to enter. Appellant's unidentified companion stood near the door inside the room and Delangel stood off to the side of the room with Guerrero while Vargas and appellant conducted the drug transaction.
Appellant asked Vargas about the marijuana, and Vargas replied, "[W]here is the money[?]" Appellant "opened his jacket" and said "[h]ere's the money." Delangel did not see what was in appellant's jacket, but assumed it was payment for the marijuana.
Vargas removed a "suitcase" from under the bed and handed appellant a package of marijuana from the bag.
Appellant tore each package open with his teeth, smelled the marijuana, and told Vargas, "[T]his is the money." However, rather than give Vargas the money, appellant pulled out a gun and shot him in the chest. Vargas fell forward onto the floor of the room and died shortly thereafter.
Sadly, cases like this one aren't all that unusual. But I think they are worth trying to call more attention to.
Of course, if someone is intent on committing a robbery changing the marijuana laws won't stop them. But forcing the marijuana trade underground is a recipe for (and certainly increases) this type of violence. Illegal dealers are sitting targets for robberies like this because they have a valuable product and sell it behind closed doors, without video cameras to record customers. As a result, there is a steady stream of robbery/murder cases that center around marijuana deals gone bad. This is one of the more compelling reasons to support legalization, in my view, though it is often overshadowed today by the more pressing black market concern of the drug cartels.
Thursday, March 20, 2014
ACLU of Washington State reports drop in low-level marijuana offense court filings after legalization initiative
As detailed in this press release, the ACLU of Washington State has some new data on one criminal justice reality dramtically impacted by marijuana reform. Here are the details:
Passed by Washington voters on November 6, 2012, Initiative 502 legalized marijuana possession for adults age 21 and over when it went into effect 30 days later. New data show the law is having a dramatic effect on prosecutions for misdemeanor marijuana possession offenses in Washington courts. The ACLU of Washington’s analysis of court data, provided by the Administrative Office of the Courts, reveals that filings for low-level marijuana offenses have precipitously decreased from 2009 to 2013:• 2009 – 7964• 2010 – 6743• 2011 – 6879• 2012 – 5531• 2013 – 120
“The data strongly suggest that I-502 has achieved one of its primary goals – to free up limited police and prosecutorial resources. These resources can now be used for other important public safety concerns,” says Mark Cooke, Criminal Justice Policy Counsel for the ACLU of Washington....
Although the overall number of low-level marijuana offenses for people age 21 and over has decreased significantly, it appears that racial bias still exists in the system. An African American adult is still about three times more likely to have a low-level marijuana offense filed against him or her than a white adult.
Initiative 502 legalized possession of up to one ounce of marijuana for adults 21 and over. However, possession of more than an ounce, but no more than 40 grams, remains a misdemeanor. Exceeding the one-ounce threshold is a likely explanation for the presence of 120 misdemeanor filings against adults in 2013.
Cross posted (with some added commentary) at Sentencing Law & Policy
Pat Oglesby of newrevenue.org has just posted his analysis of two competing proposals to legalize marijuana in Oregon, focusing on the very different revenue generating models espoused by each proposal.
One proposal proceeds along the lines of what Colorado and Washington have done. It would tax marijuana sold by private vendors, though the Oregon tax would be based (loosely) on the THC content of the marijuana (or more precisely, a heuristic approximating THC content).
The second proposal would be quite novel for marijuana, though states have tried something similar regarding sales of alcoholic beverages. Namely, it would give a state commission a monopoly over the sale of marijuana. Since the state would set the price of (legal) marijuana and would cut out the middle-man (i.e., private dealers), this proposal could generate more revenue for
the state than the more common tax model (especially one with a low tax rate). However, as I’ve explained before (p. 25 and 34) – and as Pat notes – a law creating state owned and operated marijuana stores would probably be preempted by the federal Controlled Substances Act, so this novel proposal might be a non-starter for Oregon. Pat’s analysis is short, insightful, and accessible – well worth the read.
Wednesday, March 19, 2014
Yesterday, the National Journal published an article asking how Maryland Governor Martin O'Malley's marijuana prohibitionist outlook might impact his possible 2016 bid for the Democratic presidential nomination. The piece ran with this subheadling: "Would Democrats support an antimarijuana candidate for president? O'Malley may be about to find out."
The story is another sign of how quickly the conventional political wisdom is changing when it comes to marijuana. And it raises an interesting question. Is it possible that marijuana reform could become a litmus test for Democratic candidates in the coming years?
Though marijuana reform and marriage equality are often compared (perhaps too often), I can't help but think back to the reaction when Gavin Newsom began marrying same sex couples. I think a lot of people have forgotten that, at the time, Democrats couldn't run away from him fast enough. Even more striking: just a year earlier, in the 2004 Presidential race, many people argued Howard Dean was unelectable because he had signed a civil union bill in Vermont (as it turned out, yelling into a bad sound system is what made him unelectable).
Fast forward ten years. Today, opposition to marriage equality would be a deal breaker in a statewide Democratic primary in many (perhaps most) parts of the country. Some might remember a period of media focus last year on the Democratic Senators who still opposed same sex marriage to the point where it became sort of a count down.
I'm not sure we can say whether marijuana will ever reach that same tipping point. There are reasons to think it may not. Unlike same sex marriage, which directly relates to equality under the law (a core Democratic value), marijuana reform's relationship to civil rights principles is arguably much less direct.
Either way, the prospect of marijuana as a Democratic litmus test is certainly interesting to consider. The National Journal article notes, for example, that O'Malley will soon have to take action on a marijuana decriminalization bill and asks: "Can O'Malley possibly veto this sort of bill and go on to be taken seriously as a national Democratic contender for president?"
This will be something to watch very closely in 2016. If the Democratic presidential candidates (assuming there is more than one) feel the need to voice support for marijuana reform (even limited support like for decriminalization), it could have a huge ripple effect.
(Hat tip to Eric Sterling for sending the article my way.)
Tuesday, March 18, 2014
Stephen Colbert had this amusing little segment about marijuana taxes recently:
Though Colbert is hilarious as always, those wanting serious coverage of pot taxes should be sure to follow Pat Oglesby's always fantastic work at http://newrevenue.org.
Professional ethics rules has been a bit of a sleeper issue in the area of marijuana law reform. To be sure, it hasn't been overlloked entirely. A handful of states have issued opinions on the topic and Sam Kamin and Eli Wald wrote an excellent law review article considering the question. But in most states that have enacted reforms, there has been no official analysis of how the ethics rules might apply to medical marijuana lawyers.
Nevada appears to be taking a more proactive approach:
Facing a conflict between state and federal law, attorneys in Nevada are asking the state Supreme Court to set rules to protect lawyers who advise clients on medical marijuana issues.
Nevada Bar Association President Alan Lefebvre said Thursday the request submitted seeking expedited state high court action comes with private and public attorneys unsure whether they can advise clients how to handle a medical marijuana law that takes effect April 1.
The state bar governing board submitted its petition Tuesday to the Nevada Supreme Court seeking an amendment to rules of professional conduct so lawyers can safely provide legal advice about medical marijuana.
The state high court is expected to hold a public hearing before making a decision.
Via Nicole Flatow at ThinkProgress, researchers are one step closer to studying the use of medical marijuana to treat PTSD.
On Friday, the federal government took a potentially momentous step back from this position, granting researchers who have for years borne the brunt of this policy access to a legal supply of marijuana. The decision means a psychiatry professor at the University of Arizona who specializes in treating veterans may for the first time be able to perform a triple-blind study on marijuana and post-traumatic stress disorder.
The Multidisciplinary Association for Psychedelic Studies (MAPS) was granted permission to purchase marijuana fro the National Institute on Drug Abuse. The DEA still needs to sign off but it seems likely that it will given this development.
As I discuss in more detail in this law review article, I find the Controlled Substances Act's research restrictions for Schedule I substances especially hard to defend (or, really, to make any sense of at all).
The CSA places substances into Schedule I if they have no currently accepted medical use. Importantly, this category includes both (1) substances we are fairly certain have no medical value and (2) substances that we think may have promise as medicines even if we aren't yet sure either way. (Marijuana is, of course, the most high profile of the latter sort of substance.)
It seems to me that the two categories should be treated very differently as far as research goes. If we know a substance has no medicinal value, then we arguably lose very little by making it hard to study the substance. But if preliminary studies indicate the substance has medicinal value--as, for example, with marijuana--then I'd think we'd want to encourage further study, not make it more difficult.
The CSA, however, puts up the same roadblocks for studying all Schedule I substances, including those that we think hold medical promise. The only conceivable reasons for doing this are leakage concerns (ie, that substances approved for research will leak into the black market) or that the substance is so very dangerous that we need to be extra cautious when studying its medical value.
Certainly neither of these are legitimate concerns when it comes to marijuana. The only people in the United States who have any trouble getting their hands on marijuana are researchers. And the health risks of marijuana are certainly no worse than many FDA approved drugs.
All this is to say this while the news that the federal government may be easing up when it comes to studying marijuana is worth cheering, the core of the problem remains: a regulatory scheme that makes the study of Schedule I substances difficult, even for substances that have shown promise as medicines.
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."