Friday, August 23, 2019
The title of this post is the headline of this notable new commentary authored by Peter Maguire. Here are excerpts:
Last month, American lawmakers, marijuana policymakers and industry leaders held a hearing on Capitol Hill about the future of marijuana legalization. While there was clear bipartisan support and even discussion of “restorative justice” for minorities adversely affected by the war on drugs, conspicuously absent was any discussion of sentence relief for those Americans still serving life sentences without the possibility of parole for nonviolent marijuana offenses.
If lawmakers and the leaders of this fledgling industry who hope to profit from legalization do not support retroactive sentence relief for these pot prisoners of war, the legal cannabis industry will have neither integrity nor credibility. True restorative justice can only begin with clemency for those Americans serving life sentences for marijuana. There were no allegations of violence in the cases of the white, black and Latino men serving life for marijuana, yet all will likely die in prison.
Leopoldo Hernandez-Miranda, a 78-year-old Cuban fisherman, has served 26 years while Anthony Kelly, 46, has served 20 years (for barely an ounce of pot). Less than two months ago, wheelchair-bound 62-year-old Michael Pelletier, who served 12 years, was denied compassionate release by the Bureau of Prisons. Kenny Kubinski, 72, a decorated Vietnam veteran with three purple hearts and a bronze star, has served 27 years for marijuana conspiracy and a cocaine charge that he vehemently denies.
Claude DuBoc and Albert Madrid, both over 70 years old, have served over 20 years. Marijuana smuggler John Knock was extradited from France in January 1999 and charged with an unproven conspiracy that was concocted by a U.S. attorney in Florida. After Knock’s co-conspirators, also facing life sentences, testified against him in exchange for immunity, he was sentenced to two life terms plus 20 years. DuBoc, Knock’s co-conspirator pleaded guilty on the advice of his lawyer, F. Lee Bailey. DuBoc cooperated with the government and surrendered approximately $100 million in cash and assets. The smuggler received a life sentence and lawyer Bailey went to prison rather than surrender $20 million of his client’s stock....
On the other hand, co-conspirator Julie Roberts surrendered through a high-profile lawyer, shrewdly negotiated a plea deal, testified against all of her former compatriots and helped the government recover assets. Although she too was facing a life sentence, Roberts did not spend a single night in prison....
The United States declared a war on drugs in 1973, and it has been fraught with contradictions and crippled by hypocrisy and unrealistic policy objectives. Forty-plus years and massive expenditure later, the U.S. has the largest prison population in the world and a racially imbalanced, two-tiered judicial system under which black teens caught with a handful of crack rocks do hard time in state prisons while the bankers who launder Mexican cocaine cartels’ blood-stained billions simply pay fines.
This month, after serving 30 years of a life sentence for marijuana and hashish smuggling, terminally ill Calvin Robinson was granted a compassionate release from prison. While this is a step in the right direction, it still falls far short of justice. Vietnam veteran Kubinski put it best: “Now I am a POW of another war with no clear mission. This time I am the enemy of the country I love and had sacrificed for.”
August 23, 2019 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)
Monday, August 12, 2019
This local piece from Ohio reports on the interesting criminal justice echoes from hemp reforms playing out this summer in a number of states. The piece is fully headlined "No, Ohio did not accidentally legalize marijuana. But a new hemp legalization law is causing problems for prosecutors." Here are excerpts:
Ohio prosecutors are holding off on pursuing marijuana charges or are even throwing them out altogether after Ohio decriminalized hemp.
Hemp and marijuana are cannabis plants; what sets them apart is the amount of THC, an intoxicating compound, each contains. The problem: Crime labs at the local and state level are equipped with technology that measures the presence of THC -- but not the amount.
Hemp, by legal definition, is cannabis with less than 0.3 percent THC. Anything more, and it's considered marijuana and illegal outside the confines of Ohio's highly regulated medical marijuana program. “At least for the next several months, it’s the de facto legalization of marijuana because there’s no way for law enforcement to tell what’s legal and what’s not legal,” said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association.
Ohio Attorney General Dave Yost sent prosecutors a letter last week suggesting they hold off on marijuana crime indictments until the cannabis can be tested. The state's Bureau of Criminal Investigation labs are in the process of buying and setting up testing equipment. Yost's office suggested several out-of-state labs where law enforcement could send material until Ohio labs could run the test. The state's three medical marijuana testing labs can perform the test, but need to first notify the Ohio Department of Commerce. None had done so as of Friday.
Because of the new hemp law, signed last week, Columbus won't prosecute misdemeanor marijuana crimes and are dismissing pending cases. The law could permanently change how the city handles misdemeanor marijuana crimes due to the cost of new equipment and testing and the city's newly reduced penalties for marijuana misdemeanors.
The holdup doesn't mean Ohioans found with marijuana have a "get out of jail free card." Columbus city attorney Zach Klein noted that marijuana remains illegal and can still be a legal reason to stop and search someone. Klein said driving under the influence of marijuana will still be prosecuted....
A wave of states, including Ohio, passed bills decriminalizing hemp this year following federal legalization by the 2018 Farm Bill. Law enforcement in several states are grappling with the same issue as Ohio.
Texas Department of Public Safety officers have been told to cite and release instead of arrest individuals suspected of misdemeanor marijuana crime, The Texas Tribune reported in July. Prosecutors in some parts of the state have dropped marijuana cases citing the inability to test for THC levels.
A prosecutor in Georgia's second largest county dismissed more than 100 marijuana cases this week after reaching a similar conclusion. Florida prosecutors are taking a mixed approach, with some dismissing all marijuana charges and other waiting for lab tests before filing charges in the first place.
Tuesday, August 6, 2019
The title of this post is the title of this notable new empirical article authored by Jesse Burkhardt and Chris Goemans. Here is its abstract:
The recent legalization of marijuana in several states has led to increased public interest regarding the effect of legalization on crime. Yet, there is limited empirical evidence relating the legalization of marijuana use and distribution to criminal activity. This paper uses a difference-in-differences design to estimate the effect of marijuana dispensary openings on local crime rates in Denver, Colorado.
We find that the opening of dispensaries actually decreases violent crime rates in above median income neighborhoods, an important finding in light of increased political debate surrounding legalization. We also find robust evidence that non-marijuana drug-related crimes decrease within a half-mile of new dispensaries but do not simultaneously increase within a half-mile to mile of new dispensaries, with one possible explanation being that legal marijuana sales and hard drug sales are local substitutes. Finally, in line with previous research, we find that vehicle break-ins increase up to a mile away from new dispensaries.
Cross-posted at SENTENCING LAW AND POLICY.
Tuesday, July 23, 2019
New Marijuana Opportunity Reinvestment and Expungement Act envisions creating a Cannabis Justice Office
I was pleased to hear reports about, and then see an email describing, a notable new federal marijuana reform bill being proposed by notable federal officials. The email from the House Judiciary Democratic Press was titled "Nadler & Harris Introduce Comprehensive Marijuana Reform Legislation." Here are excerpts:
Today, U.S. Representative Jerrold Nadler (D-NY-10), Chairman of the House Judiciary Committee, and U.S. Senator Kamala D. Harris (D-CA) introduced the Marijuana Opportunity Reinvestment and Expungement Act, one of the most comprehensive marijuana reform bills ever introduced in the U.S. Congress.
“Despite the legalization of marijuana in states across the country, those with criminal convictions for marijuana still face second class citizenship. Their vote, access to education, employment, and housing are all negatively impacted,” said Chairman Nadler. “Racially motivated enforcement of marijuana laws has disproportionally impacted communities of color. It’s past time to right this wrong nationwide and work to view marijuana use as an issue of personal choice and public health, not criminal behavior. I’m proud to sponsor the Marijuana Opportunity Reinvestment and Expungement Act to decriminalize marijuana at the federal level, remove the needless burden of marijuana convictions on so many Americans, and invest in communities that have been disproportionately harmed by the war on drugs. I want to acknowledge the partnership in developing this legislation with my colleagues, Rep. Barbara Lee and Rep. Earl Blumenauer, Co-Chairs of the Congressional Cannabis Caucus, as well as the contributions of Rep. Hakeem Jeffries and Rep. Nydia Velazquez.”
“Times have changed — marijuana should not be a crime,” said Sen. Harris. “We need to start regulating marijuana, and expunge marijuana convictions from the records of millions of Americans so they can get on with their lives. As marijuana becomes legal across the country, we must make sure everyone — especially communities of color that have been disproportionately impacted by the War on Drugs — has a real opportunity to participate in this growing industry. I am thrilled to work with Chairman Nadler on this timely and important step toward racial and economic justice.”
The Marijuana Opportunity Reinvestment and Expungement Act aims to correct the historical injustices of failed drug policies that have disproportionately impacted communities of color and low-income communities by requiring resentencing and expungement of prior convictions. This will create new opportunities for individuals as they work to advance their careers, education, and overall quality of life. Immigrants will also benefit from the Marijuana Opportunity Reinvestment and Expungement Act, as they will no longer be subject to deportation or citizenship denial based on even a minor marijuana offense. The Marijuana Opportunity Reinvestment and Expungement Act also ensures that all benefits in the law are available to juvenile offenders.
The Marijuana Opportunity Reinvestment and Expungement Act:
- Decriminalizes marijuana at the federal level by removing the substance from the Controlled Substances Act. This applies retroactively to prior and pending convictions, and enables states to set their own policy.
- Requires federal courts to expunge prior convictions, allows prior offenders to request expungement, and requires courts, on motion, to conduct re-sentencing hearings for those still under supervision.
- Authorizes the assessment of a 5% sales tax on marijuana and marijuana products to create an Opportunity Trust Fund, which includes three grant programs:
- The Community Reinvestment Grant Program: Provides services to the individuals most adversely impacted by the War on Drugs, including job training, re-entry services, legal aid, literacy programs, youth recreation, mentoring, and substance use treatment.
- The Cannabis Opportunity Grant Program: Provides funds for loans to assist small businesses in the marijuana industry that are owned and controlled by socially and economically disadvantaged individuals.
- The Equitable Licensing Grant Program: Provides funds for programs that minimize barriers to marijuana licensing and employment for the individuals most adversely impacted by the War on Drugs.
- Opens up Small Business Administration funding for legitimate cannabis-related businesses and service providers.
- Provides non-discrimination protections for marijuana use or possession, and for prior convictions for a marijuana offense:
- Prohibits the denial of any federal public benefit (including housing) based on the use or possession of marijuana, or prior conviction for a marijuana offense.
- Provides that the use or possession of marijuana, or prior conviction for a marijuana offense, will have no adverse impact under the immigration laws.
- Requires the Bureau of Labor Statistics to collect data on the demographics of the industry to ensure people of color and those who are economically disadvantaged are participating in the industry.
Along with Nadler and Harris, co-sponsors of the Marijuana Opportunity Reinvestment and Expungement Act include U.S. Senators Cory Booker (D-NJ), Jeff Merkley (D-OR), and Ron Wyden (D-OR); in the U.S. House of Representatives, cosponsors Barbara Lee (D-CA) and Earl Blumenauer (D-OR), Co-Chairs of the Congressional Cannabis Caucus, and Hakeem S. Jeffries (D-NY) and Nydia M. Velazquez (D-NY), were particularly instrumental in developing this bill. Other House cosponsors include Matt Gaetz (R-FL), David Cicilline (D-RI), Steve Cohen (D-TN), J. Luis Correa (D-CA), Madeleine Dean (D-PA), Theodore E. Deutch (D-FL), Veronica Escobar (D-TX), Sheila Jackson Lee (D-TX), Pramila Jayapal (D-WA), Henry C. “Hank” Johnson, Jr. (D-GA), Ted Lieu (D-CA), Zoe Lofgren (D-CA), Jamie Raskin (D-MA), Eric Swalwell (D-CA), Dwight Evans (D-PA), Tulsi Gabbard (D-HI), Debra A. Haaland (D-NM), Ro Khanna (D-CA), James P. McGovern (D-MA), Eleanor Holmes Norton (D-DC), Ayanna Pressley (D-MA), Maxine Waters (D-CA), and Bonnie Watson Coleman (D-NJ).
The Marijuana Opportunity Reinvestment and Expungement Act has the support of a broad coalition of civil rights, criminal justice, drug policy, and immigration groups, including: the Drug Policy Alliance, Center for American Progress, 4thMVMT, ACLU, California Minority Alliance, Center for Law and Social Policy (CLASP), Human Rights Watch, Immigrant Legal Resource Center, Law Enforcement Action Partnership, Leadership Conference on Civil and Human Rights, National Council for Incarcerated and Formerly Incarcerated Women and Girls, National Organization for the Reform of Marijuana Laws (NORML), Sentencing Project, Students for Sensible Drug Policy, UndocuBlack Network, Washington Office on Latin America (WOLA).
The full text of the Marijuana Opportunity Reinvestment and Expungement Act is available at this link, and I especially what to note that Section 5 of the bill includes a provision for establishing within the federal Office of Justice Programs a new office call the "Cannabis Justice Office." In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I make the case for using marijuana revenues to help build an institutional infrastructure for helping to remediate the various harms from the war on drugs. Though this proposed Cannabis Justice Office is not exactly what I had in mind, I am really excited to see any major reform bill focus on creating a justice infrastructure for continued emphasis on justice and equity issues.
July 23, 2019 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)
Saturday, July 20, 2019
Throughout most of the Unites States, millions of Americans are able to "legally" buy and sell marijuana for medical or recreational purposes. (Of course, I put "legally" in quotes because all these activities are violations of federal law, but the laws and practices of states and localities define enforcement realities.) Given all the "legal" marijuana activity, it can be dangerously easy to forget that the criminalization of marijuana is still a significant criminal justice reality for a significant number of individuals. But these two new stories about arrests in two states provides an important reminder of this reality:
From the Washington Post, "Marijuana arrests in Va. reach highest level in at least 20 years, spurring calls for reform." An excerpt:
Nearly 29,000 arrests were made for marijuana offenses in Virginia last year, a number that has tripled since 1999, according to an annual crime report compiled by the Virginia State Police. Marijuana busts account for nearly 60 percent of drug arrests across Virginia and more than half of them were among people who were under 24, according to the data. The vast majority of cases involved simple possession of marijuana....
The Virginia Crime Commission found that 46 percent of those arrested for a first offense for possession of marijuana between 2007 and 2016 were African Americans, who represent about only 20 percent of Virginia’s population....
In Virginia, a first conviction for possessing marijuana is a misdemeanor that can result in up to 30 days in jail and a $500 fine. Subsequent arrests can result in up to 12 months in jail and a $2,500 fine. A defendant’s driver’s license is also revoked for six months for a drug conviction. The Virginia Crime Commission study found that only 31 people were in jail in July 2017 solely for a conviction of possessing marijuana in the state. The libertarian Cato Institute estimated Virginia spent $81 million on marijuana enforcement in 2016.
From Wisconsin Watch, "Blacks arrested for pot possession at four times the rate of whites in Wisconsin." An excerpt:
Almost 15,000 adults in Wisconsin were arrested in 2018 for marijuana possession, a 3% increase from 2017, according to data from the state Department of Justice. Prison admissions in Wisconsin for marijuana also were higher in 2016 for black individuals than for whites, according to the state Department of Corrections. Some experts believe this disparity can be attributed to policing practices in low-income neighborhoods that tend to have more residents of color....
Under state law, possession of marijuana of any amount for a first-time offense can lead to up to six months in jail and a fine of up to $1,000. Any offense after that is classified as a felony and can result in a sentence of three and a half years in prison with a maximum fine of $10,000.
I want to believe that recently increases in marijuana arrests are mostly a product of increased marijuana activity and not an extra focus on marijuana enforcement. But whatever the reason, I sincerely wonder if anyone sincerely believes that all of the time, money and energy expended for all these marijuana arrests serves to enhance justice or safety in these jurisdictions.
Cross-posed at SENTENCING LAW AND POLICY.
Friday, July 5, 2019
I have seen a number of notable marijuana-related stories this past week, and regular readers know my eye is always drawn to the criminal justice pieces in this space. So, as we wind down an Independence Day holiday week, I figured I would do a wrap-up of worthwhile reading with an emphasis of freedom-enhancing news at the end:
A few general interest pieces of note:
From the New York Times, "Marijuana, Reefer, Weed: How Language Keeps Evolving for the Devil’s Lettuce"
A few criminal justice pieces of note:
From Illinois, "Illinois set to expunge nearly 800,000 marijuana convictions"
Wednesday, June 26, 2019
Spotlighting (and following) the social equity and justice provisions in new Illinois "Cannabis Regulation and Tax Act"
As everyone likely knows by now, Illinois this week became the eleventh state to fully legalize adult use of marijuana and the first state to do so with regulated sales through the regular legislative process. But what I did not full realize until reading this local press article, headlined "Countdown begins to Jan. 1 after Pritzker signs bill making marijuana legal in Illinois," are all the particulars of the major social equity and justice provisions in the new law. Here are the basics:
The most unusual and far-reaching aspect of the bill is its “social equity” component. It calls for 25% of tax money for grants to fund neighborhood improvement projects in poor minority areas. Proposals are to be chosen by a board led by Lt. Gov. Julianna Stratton.
In addition, anyone with a marijuana arrest for under 30 grams would have the case automatically cleared, while the governor will pardon convictions for up to 30 grams. Prosecutors and individuals may petition the courts to expunge convictions for amounts between 30 and 500 grams.
The state will also provide lower licensing fees, low-interest loans and preference in awarding licenses to social equity applicants, defined as those from areas most affected by the war on drugs, or having criminal records eligible for expungement.
“What we are doing here is about reparations,” state Rep. Jehan Gordon-Booth, a Democrat from Peoria, said. “Black and brown people have been put at the very center of this policy.”
Regular readers know that I think marijuana reform can and should be an impactful form of criminal justice reform, and I have authored an article, "Leveraging Marijuana Reform to Enhance Expungement Practices," which urges jurisdictions to earmark a portion of marijuana revenues to devote to improving the criminal justice system. In my article, I specifically advocate for the creation of a new criminal justice institution, which I call a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for all people with past criminal convictions. Though Illinois has not quite created a new criminal justice infrastructure through its "Cannabis Regulation and Tax Act," it merits a good star in my book for achieving more on this front than any other jurisdiction to date.
But, as wise folks say in a variety of settings, effective implementation of the law can often be even more important than its initial reform. Anyone and everyone seriously interesting in social equity and justice should be seriously interested in following how this law plays out in the months and years ahead.
Prior related posts:
- Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation
- Illinois officially now the eleventh US state to legalize marijuana for adult use
- "Leveraging Marijuana Reform to Enhance Expungement Practices"
June 26, 2019 in Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, June 11, 2019
"The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"
The title of this post is the title of this new paper recently posted to SSRN authored by Finley Newman-James, who is a student at The Ohio State University Moritz College of Law. This paper is the sixth of an on-going series of student papers supported by Drug Enforcement and Policy Center. (The first five papers in this series are linked below.) Here is this latest paper's abstract:
In 1975, Ohio’s 63rd Governor James A. Rhodes joined the growing trend of marijuana decriminalization by signing a bill passed by the legislature that supported amending the Ohio Revised Code to remove criminal penalties for use of marijuana. This was the first big change to marijuana laws in Ohio. Despite Ohio being one of the most conservative states in the country at the time, Rhodes brought Ohio to become the 6th state to relax punishments on marijuana use. Since that time, a lot has changed regarding the status of cannabis in the Buckeye State.
This paper will first describe the past legal framework for marijuana along with current developments and proposed changes in the future, including a citizen’s ballot initiative that will appear on the November 2019 ballot that could potentially make sweeping changes to Ohio’s Constitution and marijuana law in Ohio. This is then followed by an analysis of the potential benefits that recreational marijuana could have in respect to key fiscal budgetary issues facing the state of Ohio.
Prior student papers in this series:
- "The Canna(business) of Higher Education"
- "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
- "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
- "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"
- "An Argument Against Regulating Cannabis Like Alcohol"
June 11, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Thursday, June 6, 2019
Last month, the Congressional Research Service released this interesting short report titled simply "Marijuana Use and Highway Safety." Here is its introduction:
A growing number of Americans report that they use marijuana. As more states decriminalize the use of marijuana, the question of what impact marijuana usage has on the risk of a driver being involved in a motor vehicle crash has become more pertinent. In a survey, the majority of state highway safety offices rated drugged driving an issue at least as important as driving while impaired by alcohol.
When faced with the issue of driver impairment due to marijuana, some stakeholders tend to approach the issue using the analogy of driver impairment due to alcohol. However, there are important differences between the two substances. The fact that alcohol reduces a user’s ability to think clearly and to perform physical tasks has been known for decades. Extensive research has established correlations between the extent of alcohol consumption and impairment, including drivers’ reaction times. Much less research has been done on marijuana. Marijuana is a more complex substance than alcohol. It is absorbed in the body differently from alcohol; it affects the body in different ways from alcohol; tests for its presence in the body produce more complicated results than tests for the presence of alcohol; and correlating its effects with its levels in the body is much more complicated than for alcohol.
That marijuana usage increases a driver’s risk of crashing is not clearly established. Studies of marijuana’s impact on a driver’s performance have thus far found that, while marijuana usage can measurably affect a driver’s performance in a laboratory setting, that effect may not translate into an increased likelihood of the driver being involved in a motor vehicle crash in a real-world setting, where many other variables affect the risk of a crash. Some studies of actual crashes have estimated a small increase in the risk of crash involvement as a result of marijuana usage, while others have estimated little or no increase in the likelihood of a crash from using marijuana.
This CRS report addresses various aspects of the issue of marijuana-impaired driving, including patterns of marijuana use, the relationship and detection of marijuana use and driver impairment, and related state law and law enforcement challenges. The report also references the congressionally required July 2017 report by the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), Marijuana-Impaired Driving: A Report to Congress (hereinafter referred to as NHTSA’s 2017 Marijuana-Impaired Driving Report to Congress), as well as other studies and research.
Tuesday, May 28, 2019
Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization
Last week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs. The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:
In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.
The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.
The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress. The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue. Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.
This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."
Monday, May 20, 2019
There is so much media coverage of so many marijuana related issues that I barely have time to keep up with my reading, let alone blog about all the interesting stories. (E.g., I keep meaning to blog about the New York Times Magazine's CBD cover story.) But in the last day, I saw three lengthy and connected stories that relate to the intersection of marijuana reform, politics and social justice that seems to have come now to define the realities and challenges of this space. The headlines of the three pieces help capture the themes:
From the AP, "Pot ‘legalization 2.0’: Social equity becomes a key question"
From Politico, "How Democrats are failing on legalized marijuana"
In addition to recommending all these pieces, I will seek to summarize them by just saying it has always been clear to me that effective and sound legal reform in this space is very, very hard and calls for lots and lots of folks working very, very hard to get it as right as possible from the outset and then continuing to work very, very hard to assess and refine reform regimes.
May 20, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, May 15, 2019
The title of this post is the title of this interesting new paper now available via SSRN authored by Jacob Kaplan and Li Sian Goh. Here is its abstract:
While all forms of domestic violence can be uniquely traumatizing, incidents resulting in serious injury can lead to lasting physical, mental, and financial consequences for the victim. Hence, it is surprising that most literature on the effects of policy intervention on domestic violence treats such incidents as homogeneous rather than considering differing levels of victim injury. This study provides evidence that decriminalization of marijuana leads to substantial declines in victim injury. Among domestic violence assaults where the victim suffered a serious injury, there was a significant decline in incidents where the offender was under the influence of alcohol or used a weapon.
The American Civil Liberties Union of the District of Columbia has this notable new report titled "Racial Disparities In D.C. Policing: Descriptive Evidence From 2013–2017," which includes a section on marijuana arrests. Here is what this report reports (with some added emphasis):
Passed in 2014, Initiative 71 made it legal for people to possess, use, grow, and share small quantities of marijuana. The law does not authorize individuals to consume marijuana in public or sell the drug to other people. As a result, public consumption and distribution remains illegal.
The marijuana statute became effective in February 2015 and, that year, the overall number of arrests for marijuana-related offenses plummeted, from 1,747 arrests in 2014 to just 216 arrests in 2015. The drop was largely driven by the reduction in arrests for marijuana possession.
However, while arrests for marijuana possession remained low, the number of arrests for public consumption of marijuana has been steadily increasing, particularly for Black people. After marijuana legalization, consumption arrests briefly declined before starting to rise, increasing from 79 arrests in 2015 to 217 in 2017. Arrests for that offense are racially skewed: even though white and Black D.C. residents use marijuana at similar rates, Black individuals comprised 80% of the individuals arrested for marijuana consumption from 2015–2017.
This disparity could stem from officers’ racial bias. Alternatively, the disparity could be the result of another statute that makes it illegal to do in public what is legal to do in private — thereby penalizing those who have less access to private property. These explanations could also work in tandem. No matter the cause, the consequence of the current marijuana regime is that Black people are ensnared in the criminal justice system at disproportionate rates for what the D.C. government agrees is a minor offense.
I understand the continued concern, as expressed here, that even after marijuana legalization "Black people are ensnared in the criminal justice system at disproportionate rates." But I think the dramatic decline in the total number of marijuana arrests is the much bigger story and one that cannot be emphasized too much. Because even the most minor of drug convictions or even just arrest can have profound impact on all sorts of future employment, schooling and housing opportunities, a yearly reduction of 1500 arrests means (somewhat invisible) yearly improvements in 1500 lives (and all those touched by those lives) thanks to marijuana reform.
May 15, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Tuesday, May 7, 2019
As reported in this article, headlined "Denver Measure to Decrim Magic Mushrooms Trailing in Returns," it appears that voters in the Mil High City are not quite ready to pioneer a new front in the drug reform movement. Here are the basics:
A Denver initiative that would have made it the first city in the country to decriminalize hallucinogenic psilocybin mushrooms was trailing in the polls as early results were announced Tuesday night. The measure was losing, 54% to 45%, in early election returns on Tuesday night. As of 8:30 p.m., Initiative 301 was down by 54% to 45%, a margin of more than 8,600 votes.
The measure would have decriminalized possession and use of the drug — which remains classified as a Schedule I substance by the U.S. government — within city limits, which advocates said would have opened up the potential health benefits of hallucinogenics.
Research from Johns Hopkins University found that psilocybin showed benefits for depression and anxiety; other research has shown that it showed benefits for addiction, cluster headaches and even post-traumatic stress disorder.
Kevin Matthews, a stay-at-home dad and campaign manager for Decriminalize Denver, the campaign for Initiative 301, spoke to supporters just after results poured in and offered an optimistic message. “This is not over yet,” he said. “We all know that this goes way beyond Denver,” he added. “Right now this thing is a coast-to-coast movement.”...
Attention will now turn to other progressive cities. Advocates in Oakland, CA, are working on their own psychedelic decriminalization ballot measure, and a campaign in Oregon seeks to put a magic mushroom measure before voters in the 2020 election.
Supporters were hopeful that Denver, which became the first city to decriminalize cannabis in 2005, could be the standard bearer for hallucinogenic legalization as well. The 2005 vote eventually led to the state legalizing recreational marijuana seven years later, setting off a wave of legalization across the country.
Monday, April 15, 2019
Fascinating map and data highlighting prevalence and intensity of marijuana's criminal enforcement footprint
Over at the Washington Post, Christopher Ingraham has this great new piece fully titled "Where the war on weed still rages: In some U.S. counties, more than 40 percent of all arrests are for marijuana possession." The title highlights the piece's themes, but the text and a map therein reinforce the point in various ways:
Marijuana possession led to nearly 6 percent of all arrests in the United States in 2017, FBI data shows, underscoring the level of policing dedicated to containing behavior that’s legal in 10 states and the nation’s capital.
But the figure obscures the considerable variations in enforcement practices at the state and local levels. In many areas of the country in 2016, more than 20 percent of all arrests stemmed from pot possession, according to newly released county-level arrest figures from the National Archive of Criminal Justice Data. The figure exceeds 40 percent in a handful of counties, topping out at nearly 55 percent in one Georgia county.
The data tracks arrests, not individuals, so there’s no mechanism for winnowing out repeat offenders. Nor does it include arrests for the sale or production of marijuana. But the numbers still illustrate how marijuana enforcement continues to make up a big part of many police agencies’ caseloads.
The findings reflect, in part, a few simple realities: The federal government incentivizes aggressive drug enforcement via funding for drug task forces and generous forfeiture rules that allow agencies to keep cash and other valuables they find in the course of a drug bust. And because marijuana is bulky and pungent relative to other drugs, it’s often easy for police to root out.
But given that recreational marijuana is legal throughout the West, and that two-thirds of the public supports legalization, critics view such aggressive enforcement tactics as wasteful, ineffective and even racially biased....
Nationwide, a few clear patterns emerge in the county-level arrest statistics from 2016, the latest year for which data is available. A swath of mostly conservative states, running from North Dakota through Texas, is home to many counties where marijuana enforcement accounts for 10 percent or more of all arrests — well above the national average.
But those conservative states are by no means alone. On the East Coast, New York and New Jersey stand out for relatively high arrest rates for marijuana possession. In New England, New Hampshire — the “Live free or die” state — also shows a high number of arrests relative to its neighbors.
States that have legalized marijuana, on the other hand, tend to have lower arrest rates. Colorado and Washington, where recreational use had been legal for two years at the time the data was taken, few counties attributed more than 2.5 percent of their arrests to marijuana enforcement. Not a single county in California, which legalized the drug in 2016, met that threshold. Alabama and Kentucky — which are not known for liberal marijuana policies — also appeared to place a low priority on marijuana possession enforcement.
The data shows that Dooley County, Ga., has the highest rate of marijuana arrests in the nation. Out of 422 total arrests in 2016, 230, or 54.5 percent, were for marijuana possession. The next highest was Hamilton County in New York’s Adirondack Mountains, where 43.5 percent of the 130 arrests logged in 2016 targeted marijuana offenders. That’s followed by Sterling (42.1) and Hartley (42.0) counties in Texas, with South Dakota’s Edmunds County (33.3 percent) rounding out the top five.
While these counties are all small and rural, some larger counties in and around big cities also reported unusually high arrest rates. In Chesapeake, Va., (population 233,000), for instance, 23 percent of its nearly 3,600 arrests were for marijuana possession. In Maryland’s Montgomery County (population 1 million), just outside of Washington, D.C., about 20 percent of its 24,000 arrests were for pot....
Another notable component of the study is what’s missing. Individual police agencies share arrest statistics with the FBI as part of its Uniform Crime Reporting Program. But participation is voluntary, and different states use different systems to report crime and arrest data, which means that some jurisdictions have more complete coverage than others. The map above omits all jurisdictions where the reporting rate is less than 90 percent, which eliminates large parts of some states and removes others, like Illinois and Florida, completely.
Not all marijuana arrests lead to convictions or prison time. But an arrest can be highly disruptive in and of itself: Legal fees, bail and bond costs, time lost from work and the potential for pretrial detention can take a heavy toll on arrested individuals. In a number of cases, suspects have been inadvertently or deliberately killed while in police custody for possessing small quantities of pot. In one recent high-profile case, a Pennsylvania man was crushed by a bulldozer as he fled from police attempting to apprehend him over 10 marijuana plants — a quantity that is legal in other parts of the country.
Wednesday, April 10, 2019
The fourth and final planned presentation (both this week and for the semester) by a student in my Marijuana Law, Policy & Reform seminar will look closely at the intersection of marijuana use and parenting. Here's a brief summary of the student's approach to this topic, along with some relevant articles she assembled:
As states increasingly legalize marijuana for medicinal and recreational use, one largely unexplored area is the complicated relationship between marijuana use and parenting. As with other substances (both legal and illicit), marijuana can have a significant impact on the lives of both parents and children. Parents who use marijuana likely have conflicting interests and may prioritize their own use over the care of their children. This could take the form of neglect, through inadequate supervision, or through misallocation of family resources to buy marijuana and other non-essentials. Parents who use marijuana also risk exposing their children to marijuana in any number of ways. Second-hand smoke is an obvious risk, as is the potential for children to gain access to marijuana (particularly edibles).
Expectant and breast-feeding mothers are also of particular concern, as there is some data linking marijuana use at these critical stages in development to a whole host of lifelong issues in children. As with most issues surrounding marijuana use, there simply is not yet enough data in this area. For example, although some studies have linked marijuana use during pregnancy to particular developmental problems, existing studies have not been able to isolate marijuana as the cause (as opposed to other drugs, nicotine, etc.). I plan on providing background on existing public health research, giving examples of how various states are dealing with this issue, and presenting issues that have not been adequately addressed by research or policy.
April 10, 2019 in Assembled readings on specific topics, Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, April 8, 2019
Regular readers will not be surprised to hear I am excited for the first of the last four student presentations planned for this coming week in my Marijuana Law, Policy & Reform seminar. Of course, I am excited about the work of all my students, but this wee we have a student focused on a topic on which I have done some writing, namely expungement practices. Here is how my student has summarized this topic, along with the background readings she has provided:
States that have chosen to decriminalize or legalize marijuana have, in most places, chosen to enact a specific marijuana expungement scheme within the bill that legalizes marijuana or separately. The expungement schemes offer a way for some to shed the hurtful effects of collateral consequences from a marijuana misdemeanor or felony.
As we come closer to legalizing marijuana on the federal level, the question of how to repair for the harms done by the War on Drugs and how best to expunge records will continue to be visited. The collateral consequences have consequences of their own and the War on Drugs helped fuel mass incarceration and racist policing practices. Robust and broad reforms will be needed to repair for the extensive damage to the criminal justice system, something marijuana legalization isn’t equipped to do wholly on its own. But the current expungement schemes, with filing fees, waiting periods and other hurdles, don’t set a good example as we head toward nationwide legalization.
Links to readings and background materials:
"Federal Collateral Consequences for Marijuana Convictions", Marijuana Policy Project paper explaining some of the federal collateral consequences resulting from marijuana convictions
"Drug offenders in American prisons: The critical distinction between stock and flow", Brookings piece by Jonathan Rothwell highlighting difference between stock and flow of drug prisoners which highlights that there are many more drug convictions than violent offense convictions.
"Why you can’t blame mass incarceration on the war on drugs", Vox article by German Lopez disputing Michelle Alexander’s "drug war" explanation for mass incarceration while explaining why the path to ending mass incarceration is complicated.
“Leveraging Marijuana Reform to Enhance Expungement Practices” by Douglas Berman
Links to Expungement Schemes:
Connecticut Bill - Bill for legalization in state's house judiciary committee
Thursday, April 4, 2019
In my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I gave justified credit to work being done at the state and local level in California to ensure marijuana reform is operationalized as a form of criminal justice reform. I am pleased to see this work continuing, especially as described in this news release from the LA DA titled "Los Angeles, San Joaquin County District Attorneys Announce Code for America Partnership to Reduce, Clear Cannabis Convictions." Here is how the release starts:
District Attorneys Jackie Lacey of Los Angeles County and Tori Verber Salazar of San Joaquin County joined with Code for America today to announce a cutting-edge, criminal justice reform partnership to automatically clear more than 50,000 eligible cannabis convictions under Proposition 64.
The two counties are among the first in California to take part in Code for America’s pilot program that proactively identifies convictions that qualify for resentencing or dismissal under the voter-approved initiative in November 2016.
“We have partnered with Code for America to take on this monumental effort in the state’s most populous county,” District Attorney Lacey said. “As technology advances and the criminal justice system evolves, we as prosecutors must do our part to pursue innovative justice procedures on behalf of our constituents. This collaboration will improve people’s lives by erasing the mistakes of their past and hopefully lead them on a path to a better future. Helping to clear that path by reducing or dismissing cannabis convictions can result in someone securing a job or benefitting from other programs that may have been unavailable to them in the past. We are grateful to Code for America for bringing its technology to our office.”
“The war on drugs led to decades-long racial disparities in cannabis-related arrests and convictions,” said Los Angeles County Board Supervisor Mark Ridley-Thomas. “We have a responsibility to right these wrongs by utilizing the latest innovations in technology, such as Code for America’s Clear My Record initiative, to ensure that people who have been disproportionately harmed by the war on drugs get the second chance they deserve.”
“Since the passage of Propositions 47 and 64, the San Joaquin County District Attorney’s Office, in partnership with the Public Defender’s Office and the Superior Court, have worked collaboratively to successfully implement the law in a timely and efficient manner,” said San Joaquin County Public Defender Miriam Lyell in joint statement with District Attorney Tori Verber Salazar. “We have seen firsthand the capabilities of the Clear My Record tool to facilitate the record clearing process and provide a much-needed service to our community, restoring families along with tremendous cost savings to the People of the State of California. This powerful tool represents the best of public-private partnerships: harnessing the power of technology to create new pathways of opportunity for members of our community with convictions.”
“In the digital age, automatic record clearance is just common sense,” said Jennifer Pahlka, Founder and Executive Director, Code for America. “Thanks to the leadership of District Attorneys Lacey and Salazar, we’ve shown how records clearance can and should be done everywhere. When we do this right, we show that government can make good on its promises, especially for the hundreds of thousands who have been denied jobs, housing and other opportunities despite the passage of laws intended to provide relief. Clear My Record changes the scale and speed of justice and has the potential to ignite change across the state and the nation.”
Both offices have been working with Code for America since July 2018 to develop a system that examines cannabis convictions. There is estimated to be approximately 50,000 eligible convictions in Los Angeles County. There are an additional 4,000 eligible convictions in San Joaquin County.
Recognizing that California’s record clearance process was not designed for the digital age, this historic partnership demonstrates a growing momentum for technology-assisted record clearance in California. It builds on last month’s announcement that Code for America’s Clear My Record technology helped San Francisco dismiss and seal more than 8,000 cannabis convictions.
The references to Code for America’s work in San Francisco is both timely and a bit dated. I say that because of this recent tweet by the SF DA:
9,361 marijuana convictions-every single one since 1975 that is eligible pursuant to #Prop64-have officially been dismissed and sealed. Here’s the official court order. #SignedSealedDelivered pic.twitter.com/Kjg0SEfC5h— George Gascón (@GeorgeGascon) April 3, 2019
April 4, 2019 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Monday, April 1, 2019
The question in the title of this post is the headline given to this Connecticut public radio show which aired today. I am very grateful to Professor Jenny Roberts, who was part of the show, for sending me the link to the show and also for providing this summary:
As you may know, Connecticut's proposed bill has some really interesting social justice/equity provisions – not only with expungement, but also with who will actually get the licenses in Connecticut. The show also explored issues of how those affected negatively by drug laws over the years might now get funding, etc, to start a marijuana business. State Sen. Gary Winfield, who is sponsoring part of the legislation, is on the whole time and well worth a listen, and a Boston Globe journalist joined for one segment on the Massachusetts social equity situation.
Here is how the show's website describes the 50-minute segment:
With recreational marijuana on sale in Massachusetts, Connecticut lawmakers are looking at legalizing recreational cannabis more seriously than ever. Meanwhile, research continues to show that the enforcement of drug laws in recent decades has disproportionately impacted communities of color. This hour, we ask: if Connecticut legalizes recreational marijuana, can it do so in a way that corrects some of this history of discriminatory enforcement?
We talk with Judiciary co-Chair Senator Gary Winfield, who is calling for putting equity at the front of legalization efforts. And we check in about how racial justice has — or hasn’t — come along with legalization in states that already have legal weed, from Massachusetts to California.
April 1, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Friday, March 22, 2019
Spotlighting "a hazy cannabis stalemate" after Baltimore State’s Attorney says she will stop prosecuting these cases and police resist change
This new CityLab article by Ethan McLeod reports on the notable state of marijuana affairs in the city of Baltimore. The Full headline and subheadline provides the basics: "For Weed Arrests in Baltimore, It’s Catch-and-Release Season: Baltimore prosecutors won’t charge people for marijuana possession, but police are still making arrests. Result: a hazy cannabis stalemate." Here is an excerpt from the story, with links from the original:
Mosby’s move added Baltimore to a growing list of cities where prosecutors are dropping cannabis offenses en masse and moving to purge thousands of conviction and charges. From New York to Philadelphia to Houston to St. Louis and elsewhere, these efforts share a common goal: Reduce enforcement of drug laws proven to largely target African Americans, and free up resources for prosecutors and cops to focus on more serious crimes.
In most cities, district and state’s attorneys are pursuing these reforms with the cooperation—albeit sometimes grudging—of police and city leaders. Even if they lack enthusiastic endorsements from police, they’re already working with officials and police departments that have instructed officers to hand out tickets or criminal summonses in lieu of arrests for possession (often of around an ounce).
But not in Baltimore. Here, police have pledged to keep following the letter of the law, which states that possessing anywhere from 10 grams to 50 pounds of cannabis is a misdemeanor statewide—and using cannabis arrests as a means to an end. “Arresting people for marijuana possession is an infrequently used, but sometimes important, law enforcement tool as we focus on violent crime and violent criminals in Baltimore,” BPD’s chief spokesman Matt Jablow said in an emailed statement.
Baltimore Mayor Catherine Pugh isn’t on board with the policy, either: She’s said that she supports the principle behind Mosby’s move, but that “those who deal illegal substances fuel criminality in our neighborhoods which leads to violence.” Pugh called on prosecutors and police to craft a singular approach to possession, but has been silent on advocates’ subsequent calls to push BPD to cease arrests.
All this is happening in a city whose struggles with corruption and violent crime have made it the focus of growing national attention. The city also has a new police commissioner, former New Orleans police superintendent Michael Harrison. He recently told city council members he’s met with Mosby about their conflicting policies and insisted that the BPD has been de-prioritizing possession arrests since decriminalization of up to 10 grams took effect in 2014. (Arrest data, however, shows hundreds are still being arrested annually, almost all of them black, and the same pattern goes for citations.)
“Our policies align with the law, and the law didn’t change,” Harrison told council members. And, he argued, even if possession is nonviolent in nature, “it doesn’t always mean that a person caught with simple possession of marijuana is a nonviolent offender.”
Like other prosecutors charting the cannabis-decriminalization course, including Philadelphia’s Larry Krasner and St. Louis’s Kim Gardner, Mosby has drawn varied criticism for the policy. Defense attorneys have argued that without BPD buy-in, the pledge amounts to “virtue signaling” by Mosby, whose prosecutors can elevate cases to possession with intent to distribute—a crime they’re still pursuing—at their discretion. Vacating and expunging the cases has already proven to be challenging for her office, given that many of them included charges other than possession. Dropping them could have unintended repercussions, as for someone who violated probation because of a weed arrest.
More broadly, Mosby’s policy risks exacerbating the rift that has grown between her and BPD since her high-profile decision to charge six officers in the killing of Freddie Gray, the 25-year-old man who died in police custody in April 2015. Three of those officers were acquitted; charges were dropped for the rest. (Mosby’s office did not respond to requests for comment from CityLab.)
Prior related post: