Monday, January 26, 2015
Yes, according to the authors of "Fear and Loathing in Colorado: Invoking the Supreme Court's Jurisdiction to Challenge The Marijuana-Legalization Experiment." Their proposed remedy? Similar to any other polluter, Colorado should pay damages to neighboring states to compensate them for "negative externalities."
Here's the abstract:
In this Article, we assert that States may invoke the Supreme Court’s original jurisdiction to challenge Colorado’s marijuana-legalization experiment; the most appropriate remedy is damages. The Constitution endows the Court with jurisdiction to adjudicate suits between States. Historically, such cases generally fall into three categories: conflicts over boundary lines, water-rights disputes, and cross-border nuisances. Suits challenging the marijuana-legalization experiment would implicate the last category. Such suits once comprised a relatively common part of the Court’s docket. The number of these actions fell dramatically in the late-1970s following Congress’s passage of the Clean Air and Water Acts, rendering the Court’s historic role of establishing and enforcing interstate environmental standards obsolete. Colorado’s introduction of recreational marijuana into the stream of interstate commerce has reawakened this long-dormant body of constitutional law. Like downstream pollution produced by industrial operations, the cross-border externalities resulting from Colorado’s introduction of marijuana into the stream of interstate commerce fall squarely within the ambit of the Court’s original jurisdiction. The exercise of this jurisdiction is most appropriately applied “to questions in which the sovereign and political powers of the respective states [are] in controversy” — and in particular, those involving a quarrel for which a “sovereign State could seek a remedy by negotiation, and, that failing, by force.” The current controversy presents just such a case.
In such a controversy the Court should award damages to a prevailing state, using the Coase Theorem as its guide. The theorem states that if transaction costs are eliminated, “parties will negotiate the efficient solution to private nuisance problems.” Real-world application of the Coase Theorem is attained through the application of legal rules that best approximate the way disputes would be resolved in the absence of transaction costs. Such an outcome is best effectuated by a rule charging the nuisance with the damages it causes. As Coase observed, “when a damaging business has to pay for all damage caused” market forces will determine which of the competing enterprises should prevail, coercing the partisans to allocate their resources in the most economically efficient manner. If compelling a polluter to internalize the cost of his pollution drives him out of business, then his enterprise was not the most economically efficient use of the property and his interests should yield to that of his neighbors. In contrast, if the polluter assumes responsibility for all the costs of his venture and still realizes a sufficient profit to stay in business, then his use of the land is most efficient, and his neighbors should yield to his interest. If this remedy is applied, the market will determine the success or failure of Colorado’s marijuana legalization experiment and will serve as a guide to other states in deciding whether Colorado’s venture is worth emulating. This remedy respects the sovereignty of all States, leaving it to the market, not the Court, to decide which of the competing policies should prevail.
You may not agree with the authors' perspective [I didn't]; but the article provides some good background information on "original jurisdiction."
Wednesday, October 29, 2014
District court evidentiary hearing on the constitutionality of marijuana's Schedule I status is underway
Earlier this year, an Eastern District of California judge granted a very rare evidentiary hearing on the constitutionality of the federal government's treatment of marijuana. That hearing is finally underway this week. I'd recommend the Eastern District of California blog for following all of the news and developments.
The EDCA blog has been linking to relevant news coverage, which so far has been sparse unfortunately.
There have been some posts suggesting things aren't going very well for the federal government, but I'm not so sure how much stock to put in those reports.
For example, the Leaf has this post up on some of the testimony of defense witnesses, reprting that "attempts by US Attorneys to paint [Dr. Carl] Hart – who teaches neuroscience at Columbia University and sits on an advisory board to the National Institute of Drug Abuse (NIDA) – as a researcher blinded by his personal biases blew up, at times embarrassingly, in their faces." The anecdotes cited to support this seem focused more on cross examination drama sorts of points, however.
Though it does sound like Hart had a few snappy and effective replies to questions on cross, I doubt that tells us much at all about how the hearing is actually going ias far as what the likely outcome will be. (Even weirder, the Leaf's post comes with the click-driving headline "Federal Prosecutors Appear to Concede Cannabis' Medical Benefits" but there is absolutely nothing reported in the story that I see to back up that wild claim.)
A rational basis challenge to marijuana's Schedule I status will be a tough claim to make out, as anyone familiar with the law in this area knows. Whatever the result, news about the hearings will be interesting to continue to follow.
Monday, October 20, 2014
A few years ago, an assistant principle at a Georgia middle school strip searched a twelve-year old boy in front of a few of his classmates, hoping to find marijuana. The school official did not find any marijuana and, I'm guessing, he is regretting having performed this sort of disturbing search.
The student now has a partial victory in a civil lawsuit, winning a summary judgment motion on one claim against the assistant principle (but losing on a failure to train claim against the school district.)
In an opinion dated September 30th (but just now appearing on my LEXIS alert), Judge Amy Totenberg (herself, coincidentally, a former school board lawyer) describes the facts in some detail. Unfortunately, the opinion does not appear to be available online yet.
D.H. was in his Language Arts class when Ratcliff came to the classroom and told him to bring his book bag and come with her.
Deputy Redding, McDowell, D.V., T.D., and R.C. were present in Deputy Redding's office when D.H. arrived with Ratcliff. (D.H. Dep. at 88-89.) Deputy Redding informed D.H. that drugs had been found at the school and he and McDowell wanted to know whether he had any drugs on him. (D.H. Dep. at 90.) D.H. denied having any drugs on him. (Id.) Redding asked him "are you sure because you are going to get searched," and D.H. responded that "yes," he was sure that he was not in possession of any drugs. (Id.)
McDowell informed D.H. that "because of the severity of the situation" he was going to have to search him "just to make sure" he did not have any drugs on him. (Id. at 114-115, 119.) McDowell then told D.H. to empty his book bag. (D.H. Dep. at 91.) McDowell looked through the pencil boxes, zippers, and pouches of D.H.'s book bag. (Id. at 92.)
Dowell then proceeded to search D.H.'s person. (D.H. Dep. at 92.) McDowell first told D.H. to take off his shoes. (Id. at 93; see also McDowell Dep. at 119 (stating that he asked D.H. to remove his shoes and socks).) Then he asked D.H. to empty his pockets. (D.H. Dep. at 94;see also McDowell Dep. at 119.) After D.H. emptied out his pockets, McDowell told him to take off his pants. (D.H. Dep. at 94; see also McDowell Dep. at 119 (stating that he asked D.H. to pull his pants down).) D.H. dropped his pants to the floor, stepped his legs out of them, and pushed them aside with his foot. (Id. at 95.) Underneath his pants, D.H. was wearing red and navy blue Tommy Hilfiger boxers — the kind with an elastic waist but that are loose around the thigh. (Id. at 94-95, 113.)
At some point, McDowell asked D.H. to remove his uniform polo-style shirt, which according to D.H. was the only shirt he was wearing that day. (D.H. Dep. at 99.) D.H. testified that he was not wearing an undershirt. (Id.) McDowell next told D.H. to flip his socks at the top to see if he was hiding anything under the band of the sock. (D.H. Dep. at 100.) McDowell then told D.H. to take off his socks. (D.H. Dep. at 100-101.) Finally, McDowell pointed at D.H.'s boxers and said "take those off." (D.H. Dep. at 102; see also McDowell Dep. at 120 (stating that he asked D.H. to "pull his underwear away from his body and in a down motion just in case if [sic] he had anything in his — on his person, it would fall to — fall to the ground").) D.H. asked McDowell "do I have to do this here," to which McDowell responded yes. (D.H. Dep. at 102.) D.H. complied by turning to the left (with his back to his classmates) and pulling his underwear down to his ankles. (D.H. Dep. at 103, 105, 107.) McDowell paused, bent over and observed D.H.'s genitalia. (D.H. Dep. at 108; McDowell Dep. at 120-121.) After  finding nothing hidden in D.H.'s underwear, McDowell asked him to put his clothes back on. (D.H. Dep. at 108; McDowell Dep. 120.) No marijuana or other illegal contraband was found on D.H. or in his belongings. (McDowell Dep. 124; Def.'s Resp. to PSMF ¶ 10.) Prior to requiring D.H. to strip down to his underwear to search him for marijuana, McDowell did not conduct a search of his locker, gym locker, desk, wastebasket, or classroom. (McDowell Dep. at 126-129.)
As Doug blogged about previously here, last month a Colorado bankrupcty judge dsimissed a Denver marijuana business owner's bankrupcty petition. The court reasonined that allowing the petition to go forward would put the bankrupcty trustee in the untenable position of administering assets that are being used to commit federal crimes.
As the story last month noted, the debtor was appealing the decision. And, late last week, the bankruptcy judge granted the debtor's request to stay enforcement of the court's judgment pending appeal. The decision does not seem to be available yet on the Colorado bankrupcty court's site (or, at least, it is not coming up in response to my searches.) But, it is on Lexis at 2014 Bankr. LEXIS 4409.
This development will essentially put everything on hold in the case until the appeals court has weighed in.
Here are a few excerpts from the court's opinion:
The Debtors' appeal raises important questions. As illustrated by this case, the intersection between the federal marijuana prohibition and state level liberalization of marijuana laws significantly complicates bankruptcy proceedings where those issues arise. For a trustee, taking custody of and administering assets that are used in the commission of a federal crime can involve a trustee in conduct that violates the federal criminal law. Because of those complications in this case, the Court found that bankruptcy relief was impossible to grant to these Debtors.
The policy of The United States Department of Justice, with respect to state citizens who are acting in compliance with liberalized state marijuana laws, is to initiate enforcement actions under the CSA primarily where overriding federal concerns are implicated. The same Department of Justice, through the United States Trustee (the "UST"), moved to dismiss these Debtors' bankruptcy case on account of conduct which does not appear to implicate the type of federal concerns that would typically lead a United States Attorney to initiate a criminal prosecution or other enforcement action under the CSA.
The Court finds that the balance of the harms favors granting the stay. In the Court's Dismissal Order, after hearing evidence at the trial of the UST's motion to dismiss, the Court recognized that the denial of bankruptcy relief would be "devastating" to the Debtors. (Dismissal Order at p. 9). Also, in its response to the Debtors' Motion, the UST has not alleged that the creditors would suffer any harm if the Court's Dismissal Order is stayed and the UST asserted that it does not oppose the stay. Given that the UST is statutorily tasked with supervising "the administration of cases and trustees in cases under chapter 7 . . . ," 28 U.S.C. 586, and is the party that sought dismissal of the Debtors' case in the first instance, his lack of opposition to the Debtors' Motion is significant to the Court. Thus, the balance of the harms strongly favors granting a stay pending appeal.
The Court also believes that the Debtors' appeal presents novel and substantial questions of law that will benefit from appellate review. As a consequence of these factors, the Debtors have raised at least some uncertainty as to the merits of their appeal.
Even though the Court cannot assess the Debtors' likelihood of success as being great, because the balance of the harms supports granting the stay, the UST does not oppose granting such relief, and the Debtors' appeal raises important legal issues, a stay of the Court's Dismissal Order pending appeal is appropriate in this case.
This appeal will certainly be worth watching closely.
Thursday, October 9, 2014
Yesterday, the Second Circuit upheld a Board of Immigration decision finding a woman subject to removal from the US based on a since-vacated 1997 conviction for attempted possession of marijuana for sale. Though the decision does not break new legal ground, it is a reminder of the serious collateral consequences marijuana convictions can carry (and of the fact that under our immigration laws longtime residents can be forced back to countries they may now barely know based on relatively minor convictions.)
The court itself lamented the outcome, writing in its conclusion:
The sad truth of this case is that petitioner’s removability only came to light after she applied for citizenship. For almost seventeen years, she has owned and operated a business and by all accounts was a productive member of our society. Now, she will be returned to Jamaica and her community here will be the poorer for it. The Attorney General may, of course, review this matter in the exercise of his discretion in immigration matters. The petition for review is DISMISSED and any outstanding motions are DENIED as moot.
Monday, July 14, 2014
Sixth Circuit dissenter highlights state marijuana reforms in case of marijuana defendant sentenced to 20-years
Last week, the Sixth Circuit issued a notable opinion (PDF) on whether the U.S. Supreme Court's 2013 decision in Alleyne v. US means the government must now prove drug defendants knew the type and quantity of drugs involved to trigger an applicable mandatory minimum sentence.
I'll return to the legal issue in a moment, but of particular interest to the topic of this blog is the conclusion of Judge Merritt's dissenting opinion, in which he questions the wisdom of a 20 year marijuana sentence in light of legalization laws:
In addition, I note in passing that the defendant was sentenced to an absurdly long mandatory sentence of 20 years imprisonment for growing marijuana plants. In a legal system that has historically strongly disfavored criminal strict liability and has favored requiring mens rea or knowledge of the crime, we should not hesitate to insist that the prosecutor prove a defendant's knowledge of the scope of the conspiracy. We should take into account that a number of states have now legalized growing marijuana plants for both medicinal and recreational use. This change in attitude toward the crime should lead us to try to avoid such excessive sentences that have now filled the jails of the country with drug offenders, particularly the federal prisons. If the criminal division of the Department of Justice cannot desist from asking for such long sentences, and continues its policy of insisting on excessive drug sentences, the courts should at least follow a consistent policy of requiring knowledge of the elements of the crime.
Though Merritt's discussion of marijuana reforms is noteworthy, those who follow federal sentencing will almost certainlty be more interested in the Alleyne issue in the case.
For the uninitiated, the issue is a tricky one to summarize, but it centers around the fact that federal mandatory minimum drug sentences are based primarily on the type and quantity of drugs involved in the offense. For some time, courts have held that the government only needs to prove a defendant knowingly possessed drugs to get a conviction and to trigger a mandatory minimum sentence. Whether the defendant knew the type or quantity of drugs is immaterial.
To get a sense of how this works, imagine a drug courier who agrees to transport a car across the border. The courtier is told the car has marijuana in an amount that would trigger a 5-year minimum sentence. But the car actually has methamphetamine in an amount that would trigger a 10-year minimum. If the courier is convicted, she'll receive the 10-year mandatory minimum based on the type and quantity of drugs in the car. The fact that she thought she was transporting X amount of marijuana is irrelevant. So long as the government can prove she knew she had a controlled substance of some kind, she'll be sentenced based on what she actually had (Y amount of methamphetamine.)
As summarized by SCOTUS Blog, Alleyne held that "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' of the crime that must be submitted to the jury."
Does this holding also mean that the government must now prove drug defendants knew the type and quantity of drugs involved to trigger a relevant minimum sentence? The Sixth Circuit held that it does not. Judge Merritt, in dissent, says it should.
I'll avoid trying to summarize the competiting points and, instead, recommend that anyone who is interested in the Alleyne issue take a look at the opinion and dissent which are both well worth reading.
Thursday, July 3, 2014
The federal government has been taking a hands-off approach in Colorado (at least, so far). If that ever changes, however, Colorado operators are sure to be facing lengthy sentences. A recent case from the Eighth Circuit serves as a good reminder of this fact.
In the case, an Iowa man named Robert Meeks participated in a marijuana growing operation that netted between 300 and 500 marijuana plants annually. He was convicted of conspiracy to manufacture 1,000 or more marijuana plants. To make matters worse for Meeks, in 1987 he was convicted of aiding and abetting the distribution of cocaine. As a result, Meeks was subject to a 20 year mandatory minimum sentence.
On appeal, Meeks argued (among other things) that the sentence amounted to cruel and unusual punishment. Not surprisingly for those familiar with the caselaw in this area, the appeals court rejected that argument:
The district court sentenced Meeks to the mandatory minimum sentence of 240 months’ imprisonment. This sentence was based on the jury’s special finding that the conspiracy involved 1,000 or more marijuana plants and on the fact that Meeks had previously been convicted of a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A), 851. We repeatedly have held that applying a mandatory minimum penalty for drug offenses does not violate the Eighth Amendment. United States v. Garcia, 521 F.3d 898, 901 (8th Cir. 2008) (collecting cases). Meeks argues, however, that the 20-year mandatory minimum sentence is grossly disproportionate to the underlying crime because (1) the conspiracy involved the manufacture and sale of marijuana rather than “harder-core” substances, such as cocaine; (2) the prior drug conviction which qualified Meeks for the mandatory minimum occurred twenty-six years ago; (3) the sentence results in a near-life sentence given Meeks’s age; and (4) the profit from the growing and sales operation was negligible. None of these arguments demonstrates that Meeks’s case is the extreme case that violates the Eighth Amendment. See United States v. Burton, 894 F.2d 188, 190, 192 (6th Cir. 1990) (holding that marijuana’s Schedule I classification is not irrational, and thus the resulting penalties do not violate the Eighth Amendment); United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982) (holding that marijuana’s Schedule I classification is not irrational); United States v. Gallegos, 553 F. App’x 527, 532-33 (6th Cir. 2014) (holding that 20-year mandatory minimum sentence for conspiring to distribute at least 1,000 kilograms of marijuana did not violate the Eighth Amendment); United States v. Hoffman, 710 F.3d 1228, 1232-33 (11th Cir. 2013) (rejecting argument that life sentence based on convictions that occurred approximately twenty-five years earlier when defendant was a juvenile constituted cruel and unusual punishment); United States v. Mathison, 157 F.3d 541, 551 (8th Cir. 1998) (holding that a sentence “although in excess of a defendant’s life expectancy, does not violate the Eighth Amendment”); Ewing, 538 U.S. at 28-30 (holding that the defendant’s sentence of 25 years’ to life imprisonment was not unconstitutionally disproportionate where the defendant stole three golf clubs worth about $1,200 and was a recidivist). Accordingly, we conclude that a term of 240 months’ imprisonment, imposed for Meeks’s offense of felony drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A), is not “grossly disproportionate,” Ewing, 538 U.S. at 30, and we affirm his sentence.
Wednesday, June 11, 2014
Simple possession of marijuana is a federal crime. Only a very very very small fraction of marijuana possession cases end up in federal court (for example, in 2010, there were about 1,000 federal marijuana possession cases disposed of in federal court (PDF) and 750,000 simple marijuana arrests nationwide.) Compared to the number of people who use and smoke marijuana every year, the number of federal marijuana possession prosecutions is ridiculously small. About 25 million Americans use the drug every year. But only an unlucky 1,000 or so end up in federal court for possessing it.
Of course, even most of the marijuana simple possession defendants who end up in federal court are not facing very serious penalties--a first offense is a misdemeanor and carries no mandatory prison time.
But the cliffs and bright lines of the federal sentencing guidelines--even in their advisory state--can sometimes change the equation and result in real federal time for possession of small amounts of marijuana. Yesterday, in an unpublished decision (PDF), the Eleventh Circuit upheld a federal gun sentence that included an additional 20 months for possession of less than 2 grams of marijuana.
Here are the relevant details:
Jabriel Fitzgerald Lakes appeals his 58-month sentence, imposed after pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing hearing, the district court enhanced Lakes’ base offense level by four points pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Lakes “used or possessed a firearm . . . in connection with another felony offense.” The district court found that, due to his prior drug convictions, Lakes’s possession of 1.8 grams of marijuana at the same time as his possession of a firearm constituted “another felony offense” under the language of 21 U.S.C. § 844(a). The court then imposed a 58-month sentence, which fell within the applicable guideline range of 57 to 71 months’ imprisonment.
Lakes appeals the application of the four-point enhancement to his base offense level as substantively unreasonable, arguing that the resulting sentence is unduly harsh given the circumstances of this case. Lakes argues that application of the enhancement “resulted in a grossly disproportional sentence in light of the actual amount of marijuana” in his possession at the time of arrest. While Lakes concedes in his brief that his prior drug convictions would render him ineligible to receive misdemeanor treatment on the marijuana charge under 21 U.S.C. §§ 841(b)(4) and 844, he argues that an additional 20 months of imprisonment for possession of less than 2 grams of marijuana is patently unreasonable.
At his sentencing hearing, Lakes pointed out that his applicable guideline range which would have been 37 to 46 months without the enhancement, jumped to 57 to 71 months “for such a small amount of drugs.” As stated by his lawyer at sentencing: “As a practical matter I don’t know that you could cover up my thumbnail with 1.8 grams of marijuana . . . I am certainly not excusing any of this stuff, but it’s just a small amount that—and such a large enhancement, really, for such a small amount of drugs.” Lakes stated that he was holding the marijuana for a friend, and not for himself. Accordingly, he argued, the application of the enhancement does not serve the factors enumerated in § 3553(a).
After three prior drug convictions, Lakes was caught with a loaded firearm while in possession of three separate bags of marijuana, subjecting him to the four- level enhancement under the advisory guidelines. The record demonstrates that the district court considered the parties’ arguments, the presentence investigation report, the Guidelines and the § 3553(a) factors when it pronounced its sentence. The sentence is within, and at the low end of the applicable guideline range. It is also below the statutory maximum, further lending itself to a finding of reasonableness. Thus, Lakes has not met his burden of showing that the district court abused its discretion in applying the enhancement. We affirm the district court’s sentence as reasonable.
Thursday, May 1, 2014
Yesterday, the U.S. Court of Appeals for the Fourth Circuit released an interesting opinion considering the federal "unlawful user" statute. The unlawful user law makes it a crime for anyone who "is an unlawful user of and addicted to a constrolled substance" to possess a firearm--and yes, that includes marijuana.
A while back, the Fourth Circuit sent a case back to the trial court to conduct an evidentiary hearing on whether this law runs afoul of the Supreme Court's recent Second Amendment jurisprudence. The trial court found that making it a crime for a marijuana user to possess a gun did not pose any Second Amendment problem. Yesterday, a unanimous panel of the Fourth Circuit agreed.
Here are a few excerpts from the opinion (PDF), by Judge Niemeyer, that provide an overview of the court's reasoning:
Carter argues that the district court, in concluding that the government carried its burden, erred in two respects: (1) it improperly relied on factors other than empirical evidence in evaluating the soundness of § 922(g)(3); and (2) it failed to recognize that the studies submitted by the government were inadequate because they related to drug use generally rather than marijuana use specifically and they failed to prove a causal link between marijuana use and violence. He maintains that the studies he submitted demonstrate that, in fact, “marijuana users are not prone to violent behavior.”
Focusing on the substance of the studies presented by the government to the district court, Carter contends that the data were inadequate because they related to drug use generally rather than marijuana use specifically and because they failed to prove a causal relationship between marijuana use and violence. He maintains that the studies he submitted, by contrast, demonstrated that “marijuana users are not prone to violent behavior.”
We have little trouble concluding that the studies presented to the district court by both the government and Carter indicate a strong link between drug use and violence. A study by Carrie Oser and colleagues, offered by the government, found that probationers who had perpetrated violence in the past were significantly more likely to have used a host of drugs -- marijuana, hallucinogens, sedatives, and heroin -- than probationers who had never been involved in a violent episode. [The Court went on to cite a few additional studies.)
Carter seeks to marginalize these studies, arguing first that they are too broad and discuss only “general categories of offenders, including those who abuse a range of controlled substances.” He contends that, even if there is a link between “harder” controlled substances and violence, the government’s evidence does not indicate that marijuana users are prone to violence. To the contrary, he claims that the evidence he submitted disproves such a link. Yet, even if such a particularized demonstration is necessary -- an issue we need not reach -- the studies presented by the government amply demonstrate a connection between marijuana use specifically and violence. The Harrison and Gfroerer study, for instance, found that, “[e]ven after controlling for other variables[,] such as age, race, income, education, and marital status, . . . using marijuana in the past year . . . [was] significantly related to criminal behavior.”
Carter also objects to the government’s evidence on the grounds that it demonstrated, at most, a correlation between marijuana use and violence and not a causal relationship. Quoting the Wei study, he argues that “[t]he relationship between marijuana use and violence ‘is due to the selection effects whereby these behaviors tend to co-occur in certain individuals, not because one behavior causes the other.’” (Emphasis added) (quoting Wei et al., Teasing Apart, at 166).
This argument is flawed, however, because it assumes, incorrectly, that Congress may not regulate based on correlational evidence. We conclude that it may and that the government need not prove a causal link between drug use and violence in order to carry its burden of demonstrating that there is a reasonable fit between § 922(g)(3) and an important government objective. . . . We have emphasized that, under intermediate scrutiny, the fit between the regulation and the harm need only be reasonable, not perfect. Carter I, 669 F.3d at 417. The correlational evidence put forward by the parties in the present case easily clears that bar.
Wednesday, April 30, 2014
Federal appeals Judge cites shifting views on marijuana to question mandatory minimum marijuana prosecutions
Earlier this week, in a dissenting opinion, Eighth Circuit Judge Myron Birght raised the question of whether it makes sense for the federal government to pursue mandatory minimum sentences in marijuana cases in a world where a large number of people think the drug should be legal. The legal quesiton in the case (PDF) involved application of the aggravating role enhancement for managers of drug opertions and may be of interest to those who follow federal sentencing law. Judge Bright's comments on marijuana policy follow:
I add an observation. In today’s world where several states in this country have legalized marijuana use for medical purposes and two states have even legalized its recreational use, a hard look should apply to marijuana prosecutions carrying mandatory minimum sentences as in this case. United States Attorney General Eric H. Holder, Jr. has concluded that a new approach must be taken in federal sentencing and that we must ensure that our criminal justice system is “[t]argeting the most serious offenses” and “prosecuting the most dangerous criminals.” . . . Randy Irlmeier’s conduct is not a “most serious” offense nor is he a “most dangerous” criminal. A five-year mandatory minimum sentence for his crime is far too long. I would remand to the district court to apply the safety valve and resentence Randy Irlmeier accordingly.
Monday, April 28, 2014
Because possessing marijuana is a crime, its scent can provide the police with probable cause to search your car or to get a warrant for your home. Though I'm sure most police officers honestly report the facts of their searches, I'm equally sure that there are some bad actors who justify bad searches by falsely testifying that they smelled marijuana. It is very difficult for courts to pick the liars out from the truth tellers and so it is rare to see a decision dismissing an officer's claim to have smelled marijuana.
Last week, however, a federal trial judge in Massachusetts found an officer's marijuana smell story implausible enough to hold against the government (PDF):
An odor of marijuana is often sufficient to justify the warrantless search of an automobile. See Staula, 80 F.3d at 602 (“The case law is consentient that when a law enforcement officer detects the odor of marijuana emanating from a confined area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes the officer with probable cause to conduct a search of the confined area.”). I suspect that not only lawyers and judges know this, but police officers do, too.
After hearing the testimony of Trooper Morris, I do not credit his testimony that he “detected a faint odor of ... raw marijuana coming from the interior of the vehicle.” (Tr. at 18.) Trooper Morris’s testimony is telling as to his true reason for searching the car.
Q. After searching the vehicle and not finding any marijuana, did you remain suspicious?
A. I did.
Q. Why is that?
A. Based on the inconsistencies in their story. And I was concerned that there were -- there was something in the car that I was missing or I wasn’t finding.
Q. And you remained concerned because you could still detect the odor?
A. Not just the odor, just -- like I said, their story was -- their stories weren’t consistent; they didn’t sort of make sense; they weren’t reasonable. So I believed there was something hidden in the car.Perhaps Trooper Morris thought he smelled a faint odor of raw marijuana; perhaps the wish was father to the thought. On the evidence, I am not persuaded there was such an odor, and the government has failed in its burden on that factual issue.
Thursday, April 3, 2014
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.
Tuesday, April 1, 2014
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.
Monday, March 31, 2014
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.
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.