Marijuana Law, Policy & Reform

If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?

The question in the title of this post is my sincere inquiry, directed particularly to those most concerned about modern marijuana reform movements, as a follow-up to this extended (data-focused) commentary by Jacob Sollum at Forbes headlined "More Pot, Safer Roads: Marijuana Legalization Could Bring Unexpected Benefits." Here are excerpts (with key research links retained):

The anti-pot group Project SAM claims drug test data show that marijuana legalization in Washington, approved by voters in that state at the end of 2012, already has made the roads more dangerous. The group notes with alarm that the percentage of people arrested for driving under the influence of a drug (DUID) who tested positive for marijuana rose by a third between 2012 and 2013. “Even before the first marijuana store opens in Washington, normalization and acceptance [have] set in,” says Project SAM Chairman Patrick J. Kennedy. “This is a wakeup call for officials and the public about the dangerousness of this drug, especially when driving.”

In truth, these numbers do not tell us anything about the dangerousness of marijuana. They do not even necessarily mean that more people are driving while high. Furthermore, other evidence suggests that legalizing marijuana could make the roads safer, reducing traffic fatalities by encouraging the substitution of marijuana for alcohol....

According to State Toxicologist Fiona Couper, the share of DUID arrestees in Washington whose blood tested positive for THC, marijuana’s main psychoactive ingredient, rose from 18.6 percent in 2012 to 24.9 percent in 2013.  That’s an increase of more than 33 percent, as Project SAM emphasizes with a scary-looking bar graph. At the same time, the total number of DUID arrests in Washington rose by just 3 percent, about the same as the increases seen in the previous three years, while DUID arrests by state troopers (see table below) fell 16 percent.

These numbers do not suggest that Washington’s highways are awash with dangerously stoned drivers. So why the substantial increase in positive marijuana tests?  Lt. Rob Sharpe, commander of the Washington State Patrol’s Impaired Driving Section, notes that additional officers were trained to recognize drugged drivers in anticipation of marijuana legalization. So even if the number of stoned drivers remained the same, police may have pulled over more of them as a result of that training....

As Columbia University researchers Guohua Li and Joanne E. Brady pointed out a few months ago in the American Journal of Epidemiology, [a recent] increase in marijuana consumption has been accompanied by an increase in the percentage of drivers killed in car crashes who test positive for cannabinol, a marijuana metabolite.

But as with the increase in DUID arrestees who test positive for THC, this trend does not necessarily mean marijuana is causing more crashes.  A test for cannabinol, which is not psychoactive and can be detected in blood for up to a week after use, does not show the driver was under the influence of marijuana at the time of the crash, let alone that he was responsible for it. “Thus,” Li and Brady write, “the prevalence of nonalcohol drugs reported in this study should be interpreted as an indicator of drug use, not necessarily a measurement of drug impairment.”

Another reason to doubt the premise that more pot smoking means more deadly crashes: Total traffic fatalities have fallen as marijuana consumption has risen; there were about 20 percent fewer in 2012 than in 2002.  Perhaps fatalities would have fallen faster if it weren’t for all those new pot smokers.  But there is reason to believe the opposite may be true, that there would have been more fatalities if marijuana consumption had remained level or declined.

While marijuana can impair driving ability, it has a less dramatic impact than alcohol does. A 1993 report from the National Highway Traffic Safety Administration, for example, concluded: “The impairment [from marijuana] manifests itself mainly in the ability to maintain a lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol.  Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort.  As a consequence, THC’s adverse effects on driving performance appear relatively small.”  Similarly, a 2000 report commissioned by the British government found that “the severe effects of alcohol on the higher cognitive processes of driving are likely to make this more of a hazard, particularly at higher blood alcohol levels.”

Given these differences, it stands to reason that if more pot smoking is accompanied by less drinking, the upshot could be fewer traffic fatalities. Consistent with that hypothesis, a study published last year in the Journal of Law and Economics found that legalization of medical marijuana is associated with an 8-to-11-percent drop in traffic fatalities, beyond what would be expected based on national trends.  Montana State University economist D. Mark Anderson and his colleagues found that the reduction in alcohol-related accidents was especially clear, as you would expect if loosening restrictions on marijuana led to less drinking. They also cite evidence that alcohol consumption declined in states with medical marijuana laws.

Anderson et al. caution that the drop in deadly crashes might be due to differences in the settings where marijuana and alcohol are consumed. If people are more likely to consume marijuana at home, that could mean less driving under the influence.  Hence “the negative relationship between legalization and alcohol-related fatalities does not necessarily imply that driving under the influence of marijuana is safer than driving under the influence of alcohol,” although that is what experiments with both drugs indicate.

Arrest data from Washington are consistent with the idea that marijuana legalization could result in less drunk driving. Last year drunk driving arrests by state troopers fell 11 percent. By comparison, the number of drunk driving arrests fell by 2 percent between 2009 and 2010, stayed about the same between 2010 and 2011, and fell by 6 percent between 2011 and 2012. The drop in drunk driving arrests after marijuana legalization looks unusually large, although it should be interpreted with caution, since the number of arrests is partly a function of enforcement levels, which depend on funding and staffing.

Two authors of the Journal of Law and Economics study, Anderson and University of Colorado at Denver economist Daniel Rees, broadened their analysis in a 2013 article published by the Journal of Policy Analysis and Management. Anderson and Rees argue that marijuana legalization is apt, on balance, to produce “public health benefits,” mainly because of a reduction in alcohol consumption. Their projection hinges on the premise that marijuana and alcohol are substitutes. If marijuana and alcohol are instead complements, meaning that more pot smoking is accompanied by more drinking, the benefits they predict would not materialize.  Anderson and Rees say “studies based on clearly defined natural experiments generally support the hypothesis that marijuana and alcohol are substitutes.”  But in the same issue of the Journal of Policy Analysis and Management, Rosalie Liccardo Pacula, co-director of the RAND Corporation’s Drug Policy Research Center, and University of South Carolina criminologist Eric Sevigny conclude that the evidence on this point “remains mixed.”

A study published last month by the online journal PLOS One suggests that the substitution of marijuana for alcohol, assuming it happens, could affect crime rates as well as car crashes. Robert G. Morris and three other University of Texas at Dallas criminologists looked at trends in homicide, rape, robbery, assault, burglary, larceny, and auto theft in the 11 states that legalized marijuana for medical use between 1990 and 2006. While crime fell nationwide during this period, it fell more sharply in the medical marijuana states, even after the researchers adjusted for various other differences between states. Morris and his colleagues conclude that legalization of medical marijuana “may be related to reductions in rates of homicide and assault,” possibly because of a decline in drinking, although they caution that the extra drop in crime could be due to a variable they did not consider.

One needs to be very cautious, of course, drawing any firm conclusions based on any early research about impaired driving, car crashes, and marijuana reform. But let's imagine it does turn out generally true that legalizing medical marijuana helps produce a 10% drop in a jurisdiction's traffic fatalities. If extended nationwide throughout the US, where we have well over 30,000 traffic fatalities each and every year, this would mean we could potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. (One might contrast this number with debated research and claims made about the number of lives possibly saved by the death penalty: I do not believe I have seen any research from even ardent death penalty supporters to support the assertion that even much more robust use of the death penalty in the US would be likely to save even 1000 innocent lives each year.)

Obviously, many people can and many people surely would question and contest a claim that we could or would potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. But, for purposes of debate and discussion (and to know just how important additional research in this arena might be to on-going pot reform debates), I sincerely wonder if anyone would still actively oppose medical marijuana reform if (and when?) we continue to see compelling data that such reform might save over 50 innocent lives each and every week throughout the United States.

Cross-posted at Marijuana Law, Policy and Reform

Lawsuit against police who forced marijuana on protesters moves forward

In what has to be one of the more unusual police misconduct cases involving drugs, a group of protesters are suing the police for getting them high.  The case involves a group of Minnesota police officers who pushed marijuana on Occupy Minneapolis protesters as part of a training program to teach officers how to recognize when people are under the influence of drugs.  

A few days ago, a district court denied the officers' motion to dismiss the lawsuit.  The opinion's introduction (PDF) provides the highlights:

This lawsuit challenges the actions of law enforcement officials and entities involved with a Drug Recognition Evaluation (“DRE”) program through which law enforcement officers are trained to identify when citizens are under the influence of illicit drugs. Several individuals involved in the Occupy Minneapolis (“Occupy”) protests bring this action against a long list of law enforcement officials–in both their individual and official capacities–alleging that the officers targeted them to serve as test subjects for the program and provided them with substantial amounts of marijuana in violation of their rights under the First and Fourteenth Amendments of the United States Constitution. 

...

 

The Court finds that the allegations by some Plaintiffs and with regard to some Defendants adequately state claims for the violation of their constitutional rights. First, the allegations that certain Defendants administered large amounts of an illicit drug to Plaintiffs after intimating threats of arrest without first informing Plaintiffs of the risks or checking their medical histories and with no therapeutic purpose state a claim for violation of Plaintiffs’ clearly established substantive due process right to bodily integrity. Second, allegations that those Defendants chose to target Plaintiffs with this practice based on their participation in a protest state a claim for violation of their clearly established First Amendment rights. The Court therefore will deny Defendants’ motions to dismiss with regard to claims by Plaintiffs Michael Bounds and Forest Olivier against Defendants Jacobson, Kenneth Willers, Karl Willers, and John Does 1 and 2 in their individual capacities and will dismiss without prejudice all claims against those Defendants in their official capacities, all claims against all other Defendants, and all claims by all other Plaintiffs. 

Months into state experiment, first death officially linked to marijuana legalization in Colorado

As reported in this Denver Post article, headlined "Denver coroner: Man fell to death after eating marijuana cookies," it appears that at least one fatality can now be directly linked to "legalized" marijuana use and abuse in Colorado.   Here are the basics:

A college student visiting Denver jumped to his death from a hotel balcony after eating marijuana-infused cookies, according to a coroner's report that marks the first time authorities have publicly linked a death to marijuana since legal sales of recreational cannabis began in Colorado.

Levy Thamba, a 19-year-old student at Northwest College in Powell, Wyo., died last month at a Holiday Inn in northeast Denver.  On Wednesday, the Denver coroner released a report concluding that Thamba's death was caused by "multiple injuries due to a fall from height."  The coroner also listed "marijuana intoxication" from cannabis-infused cookies as a significant condition contributing to the death. The report classifies the death as an accident.

A brief summary of the investigation that was included in the autopsy report says Thamba, also known as Levi Thamba Pongi, traveled to Denver with three friends on spring break. On March 11, the report says, Thamba consumed "marijuana cookies" and "soon thereafter exhibited hostile behavior (pulling items off the walls) and spoke erratically."

"The decedent's friends attempted to calm him down and were temporarily successful," the report states. "However, the decedent eventually reportedly jumped out of bed, went outside the hotel room, and jumped over the balcony railing." Thamba and his friends were staying on the hotel's fourth floor, according to the report.

Michelle Weiss-Samaras, a spokeswoman for the coroner's office, said the office often lists alcohol intoxication as a significant contributing factor in a death — for instance, in an alcohol-related car accident. She said the office also has seen cases involving apparent marijuana-impaired driving, but she said she believes this is the first time it has listed marijuana intoxication from an edible product in such a way.

Weiss-Samaras said Thamba had no known physical or mental-health issues, and toxicology tests for other drugs or alcohol came back negative. "We have no history of any other issues until he eats a marijuana cookie and becomes erratic and this happens," she said. "It's the one thing we have that's significant."

According to the autopsy report, Thamba's marijuana concentration in his blood was 7.2 nanograms of active THC per milliliter of blood. In impaired driving cases, state law sets a standard of 5 nanograms per milliliter at which juries can presume impairment.

In January, Colorado became the first state in the country to allow people 21 and over to legally buy marijuana for any purpose from regulated stores.  Weiss-Samaras said investigators believe a friend of Thamba's purchased the cookies in a recreational marijuana store. "We were told they came here to try it," she said....  It remains unclear how much of the marijuana-infused product Thamba consumed or how long after consuming it that he died.  

Marijuana edibles — which account for 20 to 40 percent of overall sales, industry experts estimate — have been controversial in Colorado, and the legislature will likely take up the issue again this session.  Rep. Frank McNulty, R-Highlands Ranch, said he and Rep. Jonathan Singer, D-Longmont, plan to introduce a bill as early as this week that would further cap the potency of edibles and prohibit them from being made in forms that might appeal to children.

This story is already getting coverage in national newspapers, and it will now be interesting to see whether and how opponents of marijuana reform might actively use this sad development in support of their arguments against reform efforts.   Notably, at age 19, Levy Thamba was technically underage and thus his recreation marijuana use was not legal.  But that fact itself reinforces the arguments of opponents of marijuana reform that legalization makes it easier and more likely that underage persons will have access and be eager to try marijuana products.

Can a state decline to conduct chemical analysis in low-level marijuana cases but prosecute anyway?

The question in the title of this post came to mind when reading this Indiana appellate opinion (PDF), released yesterday.  

From the opinion, it appears that Indiana's police lab has a policy prohibiting testing of marijuana below a certain quantity.  I can only assume that the policy reflects the agency's belief that low level marijuana cases aren't important enough to be worth the laboratory's time.  

One might think that if the state doesn't think it's worth a few bucks to test the marijuana, it would feel the same way about spending even more money prosecuting the case.  But apparently, that isn't the case.  

It seems Indiana is happy to continue prosecuting low-level marijuana cases.  It just wants to do it on the cheap, without worrying about making sure that the substance at issue is actually, you know, marijuana.  

 

The court's decision focuses on whether the identity of a substance can be proven by a police officer's testimony alone (without chemical analysis).  The court finds that it can, a result that is not an outlier.  This rule might make sense at first blush.  After all, marijuana might seem to be pretty easy to identify.  But misidentification happens a lot more often that one might think (PDF).  Just last year, for example, some cops in New York mistook tomato plants for marijuana!  

Putting the merits of that debate to one side, Indiana's lab policy seems to take visual identification to a whole new level.  It's one thing to permit identification without chemical analysis when evidence is genuinely unavailable (for example, if an adult gives marijuana to a teen and the teen can identify the substance based on its effects.)  It seems to me quite another to permit the state simply forego testing of a substance it has in a whole category of cases because it costs too much.

Judge Pyle offered these thoughts, expressing some concern, in a concurrence:

In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because  Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity.

 

While Indiana Supreme Court precedent allows the State to avoid this roadblock by having a law enforcement officer identify marijuana based upon his or her training and experience, the laboratory's present policy prevents prosecutors, and deprives jurors, from considering expert testimony based on scientific principles used to identify marijuana. This is particularly important because the State is required to prove, beyond a reasonable doubt, that an item alleged to be marijuana actually is marijuana.

 

Additionally, jurors are instructed that proof beyond a reasonable doubt means that they be firmly convincedthat the item is marijuana. When an expert testifies that an item has been examined macroscopically, microscopically, subjected to color tests, thin layer chromatography, and gas chromatography, his or her testimony goes a long way toward identifying an item as marijuana, beyond a reasonable doubt. Thus, increasing public confidence in Indiana's criminal justice system.

 

The selection of the type of evidence to bring before a jury should, as much as possible, be unconstrained by administrative decisions, and jurors should be able to assume that the State endeavored to bring its best case to trial. There is likely a rational reason behind the laboratory's policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory's policy decision be reconsidered by our colleagues in the executive branch.

Interesting comment on marijuana legalization in notable new federal sentencing opinion

Doug blogged over at SL&P last Friday about a notable district court opinion on federal drug sentencing.  In the lengthy opinion, Judge James Browning makes an argument in defense of the federal drug sentencing guidelines (responding in large part to an opinion by Judge Gleeson taking the other side.)

Though the case involves methamphetamine, Judge Browning makes an interesting comment about marijuana legalization in a footnote (footnote 23):  

This observation seems particularly true in light of the DOJ’s recent policy announcement not to spend its resources going after the marijuana dealers and growers who are acting consistent with Colorado’s new marijuana laws.  This decision not to prosecute wealthy large-scale Anglo distributors in Colorado--on New Mexico’s northern border--calls into question whether the Court should mete out large sentences to poor backpackers from Mexico--on New Mexico’s southern border--bussing over bundles of marijuana. 

The bservation reminds me of concerns raised by Michelle Alexander last month about legalizaiton and racial disparity, arguing that white men are getting rich while black men stay in prison.   And, of course, it also echoes the concerns some Latin American leaders have also expressed about fighting a war to keep marijuana out of the United States when it is now legal to use and sell the substance in Colorado and Washington.