Monday, March 25, 2013
Eleventh Circuit discusses key factor in application of federal safety valveWhile on the road, I missed an intriguing lengthy Eleventh Circuit panel decision in US v. Carillo-Ayala, No. 11-14473 (11th Cir. Mar. 22, 2013) (available here), concerning the application of the safety-valve provision of federal law allowing sentencing below an otherwise applicable mandatory minimum. Here is how the opinion gets started:
This case presents an issue of first impression in this Court concerning the “safety valve,” but one the trial judge noted is an all too frequent conundrum for a sentencing judge. When a defendant stands convicted of a drug offense carrying mandatory minimum terms of imprisonment and supervised release, the sentencing judge may impose a sentence below the other wise mandatory minimum terms if the defendant meets five criteria. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Only one of the five criteria is relevant here. It requires the defendant to show that he “did not . . . possess a firearm . . . in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).
Defendant Arturo Carillo-Ayala admits he was a drug dealer and admits he sold firearms, but his ostensible business plan was “Guns and Drugs Sold Separately.” The question before us is whether a drug-dealer who also sells firearms to a drug customer possesses those firearms “in connection with” the charged drug offense. The answer is “not necessarily.”
Wednesday, March 20, 2013
New report details arrests and NYC police time spent on low-level marijuana offensesAs detailed in this new press release, the Drug Policy Alliance has released a new report on marijuana arrests in New York City. Here are details via the release:
A new report released today documents the astonishing number of hours the New York Police Department has spent arresting and processing hundreds of thousands of people for low-level misdemeanor marijuana possession arrests during Mayor Bloomberg’s tenure. The report finds that NYPD used approximately 1,000,000 hours of police officer time to make 440,000 marijuana possession arrests over 11 years. These are hours that police officers might have otherwise have spent investigating and solving serious crimes.
The report was prepared by Dr. Harry Levine, Professor of Sociology at Queens College and recognized expert on marijuana possession arrests, at the request of members of the New York City Council and the New York State Legislature.
Additionally, the report estimates that the people arrested by NYPD for marijuana possession have spent 5,000,000 hours in police custody over the last decade. The report includes a compendium of quotes from academics, journalists, law enforcement professionals and elected officials attesting to the wastefulness, consequences and racial disparities inherent in these arrests....
“This report shows that people arrested for marijuana possession spend an average of 12-18 hours, just in police custody, and the vast majority of those arrested are young Black and Latino men from seven to ten neighborhoods in NYC,” said Chino Hardin, Field Coordinator and Trainer with the Center for NuLeadership on Urban Solutions. “This is not just a crisis, but a frontline civil rights issue facing urban communities of color in the 21st century. We are calling on Governor Cuomo to do the right thing, and exercise the moral and political will to address this injustice.”...
The release of One Million Police Hours takes place as Governor Cuomo and leaders from the Senate and Assembly are in negotiations about the governor’s proposal to fix the state’s marijuana decriminalization law. Although the state decriminalized possession of less than one ounce of marijuana in 1977, it authorized the police to charge a person with a crime if the marijuana was “in public view.” As has been well-documented in both studies and media reports, police in New York, and particularly in NYC, have used this loophole to charge a crime when the marijuana is in public view as a result of a police search or a demand that the contents of someone’s pockets, backpacks, etc. be revealed.
The full 16-page report is available at this link.
Thursday, March 07, 2013
"Medical marijuana businesses see opportunity in Mass."One need not remember this classic scene from a classic political movie to know that one of the best ways to understand and predict human behavior (of politicians and others) is to "follow the money." This fascinating new Boston Globe article, with the headline that is quoted in the title of this post, has me thinking about these realities and the many ways in which they seem sure to impact our nation's quickly evolving perspectives on marijuana use and distribution. Here are excerpts from the article:
Kayvan Khalatbari rings up more than $1 million in annual sales at Denver Relief, the medical marijuana dispensary he runs out of a downtown storefront, and business keeps getting better.
But rather than opening an additional store, Khalatbari, 29, is expanding in a different direction: He has been devoting more time to doing lucrative consulting work for about 15 fledgling cannabis entrepreneurs who are interested in setting up shop in Massachusetts.
Denver Relief is one of several companies in Colorado — the epicenter of the nation’s medical marijuana industry — eager to capitalize on the expected “green rush” as Massachusetts’ medical marijuana program gets off the ground this year.
There is lots of money to be made by the ancillary businesses — including consulting, accounting, law, and marketing — as well as in the treatment centers. “There is a great opportunity here in Massachusetts,” said Khalatbari, who charges $250 an hour for his services.
Tripp Keber, widely considered the king of cannabis-infused products, is also looking East. His Dixie Elixirs & Edibles enterprise earned more than $1 million in 2012 by selling medicated carbonated beverages, infused edibles such as chocolate truffles and fruit lozenges, and other items to roughly 500 medical marijuana dispensaries in Colorado, where medical marijuana has been legal since 2000. The medical marijuana business has spawned a variety of companies making products like drug-laced mints and containers. The bag at bottom right holds medicated drinks, balms, and salves.
Keber projects his company’s sales will more than triple this year as Dixie Elixirs strikes deals in Arizona, Washington, D.C., Connecticut, and Massachusetts. He is in discussions with six Bay State entrepreneurs, including one in Nantucket, to license the brand and technology.
At Dixie’s Colorado headquarters, molecular biologists wearing white lab coats work with mechanical engineers, chemists, food scientists, and a chef to create dozens of products in a Willy Wonka-like setting. They concoct a rainbow of elixirs, including sparkling pomegranate sodas formulated with up to 75 milligrams of THC (the active ingredient in marijuana) per 12-ounce serving and mandarin orange-flavored energy boosters with about 60 milligrams of THC and as much caffeine as a cup of premium coffee. The standard dose is about 10 milligrams, so such products are not intended to be single-serve.
Keber has more than 40 employees after acquiring four medical marijuana businesses and is negotiating to take over two more. To support the growing empire, Dixie has hired three law firms, five consultants, a graphic designer, and a security company.
“Medical marijuana has created a cottage industry. This business is growing exponentially,” Keber said during an interview in his office, where he proudly showcases Dixie’s most recent honor: a fake marijuana leaf in a snow globe emblazoned with the words “Most Valuable MMJ Business,” awarded by local cannabis consultants. (MMJ is industry shorthand for medical marijuana.)
“Two to three years ago, we couldn’t get someone to return our calls,” Keber said. “Now, on any day, we have three to five vendors calling, e-mailing, or knocking on our door wanting to do business with us.”
When states start medical marijuana programs, the business impact extends far beyond dispensaries and cultivation operations, said Chris Walsh, editor of the Medical Marijuana (MMJ) Business Daily, a trade publication based in Denver. Many other types of companies crop up to provide services, including hydroponics shops, software firms, and packaging vendors. For instance, MMC Depot, a Colorado company that sells high-end glass jars and colorful plastic prescription bottles to hold marijuana, is interested in opening an East Coast branch in Boston. “These other businesses generate millions of additional dollars in revenues and put more people to work,” Walsh said.
In Denver, Brian Vicente has built a law practice around medical marijuana. He helps start-ups across the country cope with local laws, negotiate leases, draw up mergers and acquisitions, and — if needed — represents them in court. The company is doing so well it recently moved from a modest office — with waiting room magazines that included The Hemp Connoisseur and High Times Medical Marijuana — to a brick mansion across the street.
Vicente’s firm has doubled its space and shares some with other medical marijuana firms. He was one of the first Denver professionals to set up an office in Massachusetts and hire a full-time lawyer, based in the Financial District, who helped organize the recently formed Massachusetts Medical Marijuana Association.
He estimates Massachusetts could enroll more than 100,000 patients within two years — similar to the patient base in Colorado. “We know this issue is going to be big, and we want to help it grow in the right direction,” Vicente said.
Sunday, March 03, 2013
Drug courts come to federal system (and New York Times' front page)Regular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system. But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention. Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:
Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.
The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases. The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.
But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences. So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington. About 400 defendants have been involved nationwide.
In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking. “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.
The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison....
The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.
“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement. “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...
The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement. He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”
At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending. Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress. In return for successful participation, they receive a reduced sentence or no jail time at all. If they fail, they are sent to prison....
In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench. “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.
Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor. The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.
In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time. The opinion chronicled the case of three graduates of the drug court....
Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.
At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”
Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.
Some older and newer related posts about drug court programs and research:
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Important new NACDL report critical of modern drug court movement
- New report on drug courts from The Sentencing Project
- "Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
- NJ commission endorsing expanding drug courts
- A religious pitch for drug courts
- New JPI report expressing concerns about drug courts and net widening
- New research shows positive outcomes from drug court programs
March 3, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, February 27, 2013
AG Holder indicates federal response to state marijuana reforms coming "soon"As reported in this piece from The Hill, "Attorney General Eric Holder promised Washington and Colorado state attorneys general on Tuesday that the Justice Department would issue its verdict 'soon' on how it plans to treat the states’ recent moves to legalize marijuana." Here is more from the report:
“We’re still in the process of reviewing both of the initiatives that were passed,” said Holder, speaking at the National Association of Attorney General annual conference in Washington, D.C.
“You will hear soon. We’re in the last stages of that review and we’re trying to make a determination as to what the policy ramifications are going to be, what our international obligations are — there are a whole variety of things that go into this determination — but the people of [Colorado] and Washington deserve an answer and you will have one soon.”
Holder was responding to Colorado state attorney general John Suthers, who asked the nation’s top law enforcement official when the DOJ would be weighing in on the state laws that have been in effect for nearly two months. The DOJ is charged with enforcing the federal prohibition on marijuana, and the state laws run counter to the long-existing ban, creating a debate over which law should be enforced and which law is most responsive to the will of the people.
Marijuana has been a centerpiece of the federal government’s “war on drugs,” aimed at cracking down on drug use in the United States. But the growing number of people who support the decriminalization of pot — which is still legally classified nationally in the same category as heroin — has some policymakers in Washington, D.C., rethinking their approach.
On Monday, nearly a dozen House Democrats introduced several bills that would decriminalize marijuana and remove the drug from the list of controlled substances, while requiring the federal government to regulate it and impose penalties on tax-evaders.
Wednesday, February 20, 2013
Some notable recent NPR coverage of modern incarceration realitiesI was pleased to hear on my local NPR station this afternoon, while I was driving around in my Prius looking for a good place to get a latte, this lengthy feature story concerning US incarceration levels on the On Point program. Here is how the program is described via its website:
The Cost Of Prison: States fed up with high prison costs and mandatory sentencing move to change. Must the U.S. be number one in prisoners?
The USA is number one in the world when it comes to the number of people in prison. Bigger than China. Bigger than Russia. America’s prison population is tops. 2.2 million. Bigger than fifteen American states. And its incarceration rate is number one..... All that American imprisonment is very expensive. And very debatable when it comes to effectiveness, fairness -- to justice itself. Now states across the country are reconsidering the mandatory sentencing policies and more that filled those cells. This hour, On Point: slimming down American prisons.
In addition, last week NPR had two new pieces as part of this special series titled "The Legacy And Future Of Mass Incarceration." Here are links and brief descriptions:
Decades On, Stiff Drug Sentence Leaves A Life 'Dismantled': George Prendes was 23 when he was sentenced under New York's Rockefeller drug laws — tough mandatory sentencing guidelines for nonviolent drug crimes. The 15 years Prendes served for a drug transaction still reverberate for him and his family.
The Drug Laws That Changed How We Punish: Forty years ago, New York enacted tough laws in response to a wave of drug-related crime. They became known as the Rockefeller drug laws, and they set the standard for states looking to get tough on crime. But a new debate is under way over the effectiveness of such strict sentencing laws.
February 20, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Saturday, February 16, 2013
Missouri dealing with pipeline sentencing issues after state changes to crack lawFederal sentencing practioners are well aware of the multi-year legal debate over the application of the new crack sentencing rules in the Fair Sentencing Act to pending cases. That legal debate culminated in the Supreme Court's Dorsey ruling last tear, and lower federal courts are still sorting through the consequences. Now I see from this local article, headlined "Crack cocaine sentencing law at crossroads in St. Louis case," that the Missouri now has the same kind of issue percolating as a matter of state sentencing law. Here is how this lengthy piece get started:
Two grams of crack cocaine could cost Jackie Murphy a lot more time in prison than many other defendants with identical drug cases awaiting trial. That’s because Murphy, of St. Louis, was charged before the Missouri legislature acted last summer to bring the penalties for possessing crack cocaine more in line with those for possessing powder cocaine.
St. Louis Circuit Attorney Jennifer Joyce’s office has taken the stance that the new legislation was not intended to apply to cases that were pending at the time — only to charges going forward. That means that Murphy, if convicted, could face five to 15 years in prison for his alleged possession in January 2009 of two to eight grams of crack cocaine, under the Class B felony of trafficking. Someone accused of the same conduct after August 2012 would face far less: one day to seven years for the lesser charge of possession, a Class C felony.
It’s a dichotomy that Murphy’s public defender, Richard Kroeger, is calling “utterly wrong” in a motion arguing for a dismissal of the charges. He’s asking St. Louis Circuit Judge John Riley to follow the reasoning of the U.S. Supreme Court, which in June settled the same debate on the federal level. It was about two Illinois men whose cases were charged but not yet adjudicated when the Fair Sentencing Act of 2010 was enacted. The high court said the new law did apply to federal cases in the “pipeline.”
Joyce’s office opposes the motion, arguing that state law is clear and that the federal cases are a different matter. The office declined to make anyone available this week to answer questions about it. Riley is expected to issue a ruling as early as next week.
Those who advocated for the legislation here are watching carefully, saying this could be the test case for how the new law is applied across the state. It was unclear how many pending cases might be affected, but lawyers said “a number” were on hold pending the outcome.
Under the old Missouri law, trafficking more than 150 grams but less than 450 grams of powder cocaine was treated the same as trafficking at least two grams but less than eight grams of crack.
According to a 2011 report from the Sentencing Project, a nonprofit advocate on criminal justice policies, Missouri’s 75-to-1 ratio for weight-based penalties on crack versus powder cocaine was the highest disparity in the nation. It was adopted in 1989, according to the report, after a significant increase in cocaine-related deaths and at the tail end of a nationwide crack epidemic. The old federal law had a 100-to-1 disparity. Illinois, with no difference, was not mentioned in the report.
The Washington-based organization, and other advocates for equalizing crack and powder cocaine sentencing, argue that the old laws in Missouri and elsewhere are discriminatory because the heaviest penalties fell on minority and poor offenders, who have tended to choose crack. And in the last decade or so, lawmakers have begun to agree. Missouri is one of five states, among 13 with disparities, that have since moved either to close the gap or eliminate it, according to the organization.
Nicole Porter, director of advocacy for the Sentencing Project, said she was not aware of any legislation that included provisions to be applied retroactively, or specified whether it would apply to pending cases. Silence on the issue in the 2010 federal revision produced two years of uncertainty, until the U.S. Supreme Court issued its ruling in the consolidated cases of Dorsey v. United States and Hill v. United States. Porter added that Murphy’s case was the first she’d heard of on the state level that asks the courts how the pipeline cases should be handled. “That litigation that is going on in Missouri is really new territory,” she said.
February 16, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack
Wednesday, February 13, 2013
Hawaii house extinguishes bill proposing full legalization of marijuanaThere had been some notable buzz that Hawaii could become the first state with a legislative body voting to legalize recreational marijuana (as opposed to the voter iniatives which brought legal reform in Colorado and Washington). But, as this AP article reports, a "bill that would have legalized marijuana in Hawaii has died in the state House." Here is why and the surrounding debate:
House judiciary committee Chairman Karl Rhoads said Tuesday that he decided to kill the bill after learning from House leadership that the initiative does not have enough votes to pass the House. Key lawmakers in the Democratic-controlled House supported the measure, including the speaker and the majority leader.
Pamela Lichty, head of the Hawaii Drug Policy Action Group, says the organization is disappointed with the outcome but will continue to advocate for marijuana decriminalization through other measures. She says that the fact that there were more than 20 marijuana-related bills introduced this year is a sign of public support for the initiative. She says the organization plans to continue to advocate for bills related to medical marijuana, which is legal in Hawaii.
The proposal that failed Tuesday would have legalized marijuana for recreational use for people aged 21 or older. It can’t be revived until future sessions. The initiative ignited an outpouring of public testimony that reflected sharply divided public opinion.
At a public hearing on the bill, law enforcement officials told Hawaii lawmakers that marijuana is a dangerous drug. They said the societal costs of legalizing weed aren’t worth the risks of allowing marijuana culture to proliferate. Opponents of the bill included the state attorney general, the county police departments and the Coalition for a Drug-Free Hawaii.
Numerous community members voiced opinions in favor of legalization, including the American Civil Liberties Union of Hawaii. Proponents said the move would conserve state resources and respect residents’ freedom of choice. They said the state’s current law against marijuana disproportionately impacts Native Hawaiians and other minority groups.
Tuesday, February 12, 2013
DC Circuit works hard to figure out just what Freeman means for guideline retroactivityAn informed and thoughtful reader recommended to me today's interesting rulng by a DC Circuit panel in US v. Epps, No. 11-3002 (DC Cir. Feb 12, 2013) (available here). The Epps court, in a setting which one judge thought make the case moot, has to unpack the SCOTUS Freeman decision concerning plea agreements and guideline retroactivity. Among other interesting aspects of the case, the panel unpacks the important issue of which SCOTUS opinion controls when the Justices divide 4-1-4 . Here is how the Epps opinion gets started:
In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that the district court is not categorically barred from reducing a defendant’s sentence under 18 U.S.C. § 3582(c)(2) where the defendant entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The decision was splintered, however, with the plurality and concurring opinions adopting different reasoning. Prior to Freeman, the district court denied Ricardo Epps’ § 3582(c)(2) motion for a reduction of his Rule 11(c)(1)(C) sentence. United States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010). Epps appeals, contending that there is no controlling opinion in Freeman and that because the district court (as well as the Rule 11(c)(1)(C) agreement) relied upon the crack-cocaine Guidelines range when determining whether to accept the stipulated sentence, his sentence was imposed “based on” the Guidelines range and the district court was authorized under § 3582(c)(2) to reconsider and reduce his sentence in light of the Sentencing Commission’s reduction of the sentencing range applicable to him. For the following reasons, we reverse and remand the case to the district court.
February 12, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, February 11, 2013
"Doors swing open for advocates of marijuana legalization on Capitol Hill"The title of this post is the headline of this notable new piece from The Hill. It gets started this way:
Advocates for the legalization of marijuana plan to step up their political giving and lobbying efforts now that members of Congress are taking an interest in changing federal drug laws.
The lobbyists say lawmakers who wouldn’t give them the time of day are suddenly interested in meeting with them and introducing legislation following the approval of ballot initiatives in Colorado and Washington that legalized recreational use of the drug.
“These were folks who wouldn't take a call five years ago and now they are calling us and telling us to get up there with our PAC money and our expertise,” said Allen St. Pierre, executive director for the National Organization for the Reform of Marijuana Laws (NORML). “For those of us who have been at this for the past 20 years, it has been nice to see the warm turn.”
The piece also includes a number of important observations on various fronts, particularly about fundraising and voting blocs, which are sure to impact political realities in the years ahead:
As the movement for marijuana legalization spreads, competition for fundraising dollars is likely to grow. A number of well-heeled donors have already opened their wallets for the cause. New Approach Washington, the main group that campaigned for legalization in that state, took in more than $6 million in contributions last election cycle.
The prolific liberal donor Peter Lewis gave more than $2 million to New Approach Washington for their legalization campaign, according to state campaign finance records. Drug Policy Action — the 501(c)(4) affiliate of Drug Policy Alliance — contributed more than $1.6 million. George Soros sits on Drug Policy Alliance’s board of directors and was a major donor to Drug Policy Action in 2012.
Lobbyists say the battle that is brewing over drug laws will be far-reaching and not confined to recreational use of marijuana. “You going to see reform on federal drug policy in general,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “It's not just about marijuana. It's about racial disparity, over-incarceration and saving money as well.”
Capitol Hill has certainly taken notice. Reps. Jared Polis (D-Colo.) and Earl Blumenauer (D-Ore.) each introduced separate bills this past week that would regulate and tax marijuana like alcohol. The two lawmakers also released a report on how to rethink federal marijuana policy. On the other side of the Capitol, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, plans to hold a hearing on marijuana policy this Congress.
Drug laws are also getting a second look from the GOP, with Kentucky Republicans rallying behind industrial hemp. Rep. Thomas Massie (R-Ky.) introduced legislation this past week to exclude hemp from the Controlled Substances Act’s definition of marijuana. Senate Minority Leader Mitch McConnell (R-Ky.) has backed that effort, saying he became convinced that hemp production would be good for his state after long discussions with the libertarian Sen. Rand Paul (R-Ky.).
Lobbyists don’t expect a marijuana legalization bill will be on President Obama’s desk this Congress, but lawmakers know they will have to reconcile federal policy at some point with the legalization movement sweeping the states. “I often tell elected officials that if you are going to remain relevant in politics, you are going to have to move towards drug policy reform because that's where the younger voters are,” Piper said.
One Democrat said he’s made a personal appeal to Obama — who has admitted to smoking marijuana as a teenager — for changes to federal policy. “I raised the issue myself with the president at the Democratic retreat [on Thursday]. … It should change,” Rep. Steve Cohen (D-Tenn.), noting thousands of people are in jail for marijuana use.
Cohen plans to introduce legislation to create a commission to study states where medical marijuana and marijuana have been legalized. Advocates believe the bill could attract White House support. “The commission gives the president some maneuvering room by affording him time and his administration acknowledges that public attitudes about this have changed,” St. Pierre said.
Though it is hard not to start thinking about funny names and acronyms for a new federal pot panel, I think a legislatively created commission tasked with reviewing and assessing marijuana reform options and realities is a fantastic ideas. There is already buzz of competing claims by partisans about the pros and cons of marijuana reform efforts at the state level, and a national commission created by Congress may have a unique ability to sort through a haze of advocacy more effectively than more partisan players or any state-level actors.
February 11, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, February 05, 2013
Are potential harms of "synthetic marijuana" another good argument for legalizing real pot?The question in the title of this post was my first reaction to this new CNN story headlined "Teen narrowly escapes death after smoking synthetic marijuana." Here are the excerpts from the very lengthy piece which lead me, quite sincerely, to wonder how the significant potential harms of spice and other forms of fake pot ought to inform the on-going national debates about marijuana law reforms:
Hospital staff removed Emily Bauer's breathing tube and stopped all medication and nourishment at 1:15 p.m. December 16. Only morphine flowed into her body, as the family waited by her side in her final moments.
But the next morning, she was still alive.... Emily was back.
Her family said the drug that landed the Cypress, Texas, teenager, then 16, in the ICU two weeks earlier wasn't bought from a dealer or offered to her at a party. It was a form of synthetic weed packaged as "potpourri" that she and friends bought at a gas station.
At first, her stepfather, Tommy Bryant, said he was "fixing to whip somebody's ass," as he thought someone older than 18 bought it for her. Bryant already knew she used real marijuana occasionally. "It's not that I condoned it," he said, adding that he couldn't follow her around all day. Bryant enforces a strict no-smoking rule in the house, and said that if he ever caught Emily smoking, she'd be grounded.
"Had I thought that there was any chance that she could have been hurt by this stuff, I would have been a lot more vigilant. I had no idea it was so bad," Bryant said. "I'd never have thought we'd be in this situation. If she had bought it off the street or from a corner, that's one thing, but she bought it from convenience store."
Best known by the street names "Spice" or "K2," fake weed is an herbal mixture sprayed with chemicals that's meant to create a high similar to smoking marijuana, according to the National Institute on Drug Abuse. Advertised as a "legal" alternative to weed, it's often sold as incense or potpourri and in most states, it's anything but legal.
Synthetic marijuana was linked to 11,406 drug-related emergency department visits in 2010, according to a first-of-its-kind report by the Substance Abuse and Mental Health Services Administration. This is when it first started showing up on health providers' radar, as the Drug Abuse Warning Nework detected a measurable number of emergency visits.
Who wound up in the emergency room the most? Children ages 12 to 17. The first state laws banning synthetic drugs popped up in 2010. Now at least 41 states -- including Texas, where Emily lives -- and Puerto Rico have banned them, according to the National Conference of State Legislatures.
Older legislation targeted specific versions of the drug, but the makers of Spice were a step ahead. "These drug manufacturers slightly change the chemical compound, and it becomes a different substance that's not covered by the law," said NCSL policy specialist Alison Lawrence. "That's why in 2011 and 2012, we saw the states enacting these broader language bans."...
Emily, a straight-A and B sophomore, developed persistent migraines about two weeks before she wound up in the ICU early on December 8, said Bryant. One bad migraine even sent her to the ER.... While her family doesn't know how long she'd been using the drug, her stepfather suspected she started around two weeks before the night that sent her to the hospital.
Common side effects to smoking synthetic marijuana include bloodshot eyes, disturbed perceptions and a change in mood, said Dr. Melinda Campopiano, a medical officer with the Substance Abuse and Mental Health Services Administration. "People can become very agitated or can be come unresponsive -- conscious but not reacting normal to situations," she said. They may also appear paranoid or describe hallucinations. Some of the more potentially serious effects include an elevated heart rate and elevated blood pressure.
Campopiano said she had never heard of a patient having a stroke in these circumstances, but she described how high blood pressure could lead to one. "Generally, strokes are caused by restricted circulation, or a blood clot that blocks circulation. What we would be looking at with Spice, or K2, is the restrictive circulation model," she said....
Emily complained of a migraine and took a nap at her house after allegedly smoking Spice with friends on December 7, said Bryant. She woke up a different person. Stumbling and slurring her words, she morphed into a psychotic state of hallucinations and violent outbursts, her family said.
They called 911 after they realized she had "done something," some drug, said her stepfather. The Harris County Sheriff's Office confirmed they visited the house but declined to provide details. When paramedics arrived, they restrained her and rushed her to a Houston-area hospital, where she was admitted to the ICU....
She bit guardrails and attempted to bite those trying to help her. Hospital staff strapped Emily down in the bed, said her sister. "We thought once she comes down off the drug, we'd take her home and show her the dangers of this drug," said the 22-year-old. "We didn't think it was as big of a deal until 24 hours later she was still violent and hurting herself. We realized you're not supposed to stay high this long."
To keep Emily safe, doctors put her in an induced coma. After days in the sedated state, an MRI revealed she had suffered several severe strokes, said Bryant. "In four days' time, we went from thinking everything is going to be OK and we'll put her in drug rehabilitation to now you don't know if she's going to make it," he said....
Knowing how different people will react to fake weed is impossible. There are a few reasons that explain why. "You're hearing some pretty bad things with the synthetic cannabinoids -- part of that has to do with the potency. It can be 100 times more potent than marijuana," said U.S. Drug Enforcement Administration spokeswoman Barbara Carreno....
Carreno explained there's no consistency or quality control from one time to the next. The people making these products can be anyone from a college kid wanting to make extra cash to an operation blending large quantities in a cement mixer, she said. Two batches made by the same person could have different doses....
One in every nine high school seniors admits to having used fake weed in 2011, according to a national survey by the University of Michigan. Synthetic marijuana is the second-most popular illicit drug they use, behind marijuana.
In July 2012, President Barack Obama signed legislation banning five common chemicals used to make synthetic marijuana and bath salts. And that same month, the DEA seized almost 5 million packets of fake weed in its first national sweep of the drug....
Bryant and his family are starting a nonprofit organization called Synthetic Awareness For Emily. Their goal with SAFE is to educate families, as well as teachers and doctors, about the dangers and warning signs of synthetic marijuana use. Bryant said he has filed the paper work and is waiting to hear from the federal government on reviewing their nonprofit application.
"That's why we want to let kids and parents know about the warnings signs: migraines and withdrawal," he said. "We all know the warning signs of alcohol and cocaine, but with this synthetic weed stuff, it's so new that nobody knows about this stuff. We want to let other parents know about this so they don't have to go what we've been going through."
Friday, February 01, 2013
"Medical marijuana grower gets 5 years in federal prison"The title of this post is the headline of this article from Montana concerning a high-profile federal sentencing case (which I have not recently blogged about because I ended up, for complicated reasons, meddling in a little part of the sentencing process). Here are the basics:
Medical marijuana grower Chris Williams was sentenced Friday to a mandatory five years on a federal gun charge, and time served on a marijuana charge. In sentencing Williams, U.S. District Court Judge Dana Christensen called him “a principled man, stubborn in his beliefs, [who] remains steadfast in his conviction that he has done nothing wrong.”
Williams was convicted in a September trial of four federal drug counts and four weapons counts in connection with his involvement in Montana Cannabis, a large medical marijuana grow operation with a greenhouse in Helena and operations around the state. It was one of scores of medical marijuana businesses around Montana that sprang up after voters legalized the medical use of cannabis in 2004. But marijuana remains illegal under federal law, and agents raided many of those businesses in March 2011. All the other people charged in connection with those raids made plea agreements with the government; Williams was the only one to insist upon a trial.
He could have faced mandatory minimum sentences totaling 85 years -- 80 of those on the firearms charges alone. “It was my belief that an 85-year sentence in this case would have been unjust,” Christensen said Friday in reviewing the history of the case. So he urged a settlement conference, presided over by U.S. District Judge Donald Molloy, in which the government agreed to drop all but one of the drug charges and one of the gun charges, in exchange for Williams’ promise not to appeal.
That obligated Christensen to sentence Williams only to five years on the gun charge (penalties would have increased for each addition weapons charge). In addition to the five years on the charge of possession of a firearm during a drug-trafficking offense, Christensen sentenced Williams to the 130 days he’s already served, on the charge of possession with intent to distribute marijuana. He also sentenced Williams to four years’ supervised probation on the drug charge, and five years on the gun charge, to run concurrently, and levied the standard $100 federal fee on each charge.
Many in the courtroom packed with Williams’ supporters -- and one pug service dog -- wept as the sentence was pronounced. “He has done nothing wrong,” said Karie Boiter of Seattle, who described herself as a “full-time supporter of Chris Williams.” She was among several medical marijuana advocates who traveled in a green school bus from California, picking up people along the way to Missoula, to attend Friday’s sentencing. The group held a brief protest outside the federal courthouse Friday morning....
Williams was taken immediately into custody Friday. Christensen recommended that he serve his time in the federal prison in Sheridan, Ore., so that he can be as close as possible to his 16-year-old son, a student at Montana State University.
Prior posts on Williams case and related prosecutions:
- Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider
- Montana medicial marijuana activist gets (way-below-guideline?) probation sentence
- "Plead Guilty or Go to Prison for Life"
February 1, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing | Permalink | Comments (25) | TrackBack
Tuesday, January 29, 2013
US District Judge Gleeson assails drug guidelines in another potent opinonA number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below). The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:
These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:
Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....
Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.
The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines. The drug trafficking offense guideline was born broken. Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe. Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges. The Commission should listen and act. It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. That process will take time. In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....
Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case. The debate is good for the health of our federal criminal justice system. But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous. That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself. If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....
The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline. The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing. We must never lose sight of the fact that real people are at the receiving end of these sentences. Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.
January 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (34) | TrackBack
New Sentencing Project report on 2012 state statutory sentencing developments
I just received an e-mail promoting a notable new report just released by The Sentencing Project. Here is the full text of the e-mail, signed by Marc Mauer, which includes a link to the report:
I am pleased to share with you a new report from The Sentencing Project, The State of Sentencing 2012: Developments in Policy and Practice, by Nicole D. Porter. The report highlights reforms in 24 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety. The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice. Highlights include:
- Mandatory minimums: Seven states — Alabama, California, Missouri, Massachusetts, Kanas, Louisiana, and Pennsylvania — revised mandatory penalties for certain offenses, including crack cocaine offenses and drug offense enhancements.
- Death penalty: Connecticut abolished the death penalty, becoming the 17th state to do so.
- Parole and probation reforms: Seven states — Colorado, Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania — expanded the use of earned time for eligible prisoners and limited the use of incarceration for probation and parole violations.
I hope you find this publication useful in your work. The full report, which includes a comprehensive chart on criminal justice reform legislation, details on sentencing, probation and parole, collateral consequences of conviction, juvenile justice and policy recommendations, can be found online here. I’d encourage you to be in touch with Nicole D. Porter, Director of Advocacy, at firstname.lastname@example.org to discuss how we can support your efforts in the area of state policy reform.
- Juvenile life without parole: Three states — California, Louisiana, and Pennsylvania — authorized sentencing relief for certain individuals sentenced to juvenile life without parole.
January 29, 2013 in Data on sentencing, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
Thursday, January 24, 2013
Lots of interest and interesting ideas in Washington forum concerning marijuana legization implementationHow Colorado and Washington seek to implement their new regimes of legalizaed marijuana should be a fascinating story to watch throughout 2013 and beyond. And this new local article from the Evergreen State, headlined "Washington Pot Forum Draws Standing Room Crowd," provides a window into the interesting discussions already taking place in one of these states:
The first public forum on how to implement Washington’s new marijuana law drew a capacity crowd Tuesday night in Olympia. The state’s Liquor Control Board is seeking input as it writes the rules for enacting Initiative 502 – Washington’s new pot legalization law.
They arrived early and in droves – the smell of marijuana clung in the air. First in line to get a seat for the forum was Leslie Tikka of Olympia. She mainly came to see a bit of history in the making. “I’ve thought about getting a license and holding it because I think it would be valuable because no one knows what’s going to happen with it," Tikka said. "But I don’t think I’d want to go in production. I don’t know enough.”
Inside, Liquor Control Board chair Sharon Foster had one reaction to the standing room only crowd: “wow.”... Foster told the audience Washington is about to go where no other state has gone before. The task over the next year: create a complex system to license marijuana producers, processors and sellers. And the audience had plenty of advice.
Justin Pitts came to Olympia all the way from Spokane. He has a felony conviction for pot and said that shouldn’t disqualify him from getting a license. “I’m one of the casualties that at 20 years old I got caught with a backpack full of pot and became a felon from it," Pitts explains. "Twenty years later now I’ve no other convictions, no problem, have multiple businesses and pay lots of taxes but yet I would be barred.”
Other suggestions: license as many producers as qualify in order to flood out the black market. Survey the public to see how much pot will be needed to meet demand – and then double it. Take into account the environmental impact of marijuana production.
It was mostly a ball caps and t-shirt crowd. But there was one guy in a pinstripe suit. Jamen Shively is a former Microsoft strategist. Now he plans to open high-end marijuana retail shops. “Our target market is baby boomers and so you’re going to have a lot of baby boomers. Maybe they tried the product 40 years ago, maybe they didn’t inhale," Shively says. "Well, now it’s safe to inhale. And the product has changed a lot.”...
The Liquor Control Board has five more public meetings scheduled around the state and plans to add more dates as needed.
Tuesday, January 22, 2013
"Indonesia sentences British woman to death for drug smuggling"The title of this post is the headline of this notable international sentencing story which I suspect will get a significant measure of worldwide attention for various reasons. Here are the details:
A 56-year-old British woman caught smuggling blocks of cocaine in her suitcase has been sentenced to death in Indonesia. Prosecutors in Bali had asked for a 15-year sentence for Lindsay June Sandiford, who was arrested last May carrying what officials said was cocaine worth an estimated $2.6 million.
But a panel of judges opted Tuesday to hand down the death penalty. Their decision was based on the defendant having shown no regret for what she did, Indonesian state news agency Antara reported.
Sandiford, from northeast England, was found to have blocks of cocaine weighing 4.7 kilograms (10.4 pounds) in her suitcase when she arrived on the island of Bali in May, the court heard.
"We were surprised by the decision, because we never expected the death penalty," Ezra Karo Karo, a lawyer acting for Sandiford, is quoted by Antara as saying. He said the judge did not consider mitigating circumstances in his client's case, such as that she acted under the threat of violence to her family, the news agency reported.
The UK Foreign Office confirmed the sentence but said only that it would continue to provide consular assistance. "The UK remains strongly opposed to the death penalty in all circumstances," a Foreign Office statement said.
Indonesia, the world's most populous Muslim nation, has strict laws against drug trafficking. The head of Bali's Customs and Excise Agency monitoring division, Made Wijaya, warned at the time of her arrest that Sandiford could face execution if convicted.
"The main reason is because narcotics can massively endanger the young and, thus, whoever is caught with drugs should be severely punished. If three people can consume one gram of cocaine, then this operation has potentially saved up to 14,000 lives," he said....
Any appeal for Sandiford must be filed within 14 days.... Sandiford's lawyer told Antara that it was likely that his client would appeal the sentence.
DC Circuit rejects efforts to force DEA to consider "rescheduling" of marijuanaAs reported in this AP article, the DC Circuit earlier today "rejected a petition to reclassify marijuana from its current federal status as a dangerous drug with no accepted medical use." Here is more about the ruling and its context:
The appeals court panel denied the bid from three medical marijuana groups, including Americans for Safe Access, and several individuals. In 2011, the Drug Enforcement Administration had rejected a petition by medical marijuana advocates to change the classification.
In his majority opinion, Judge Harry T. Edwards wrote that the question wasn't whether marijuana could have some medical benefits, but rather whether the DEA's decision was "arbitrary and capricious." The court concluded that the agency action survived a review under that standard....
In the federal system, marijuana is classified as a controlled substance, categorized as having a high potential for abuse and no currently accepted medical use, together with drugs like heroin, LSD and ecstasy.
The court noted that the DEA denied the petition to change the classification after the Department of Health and Human Services gave the DEA its evaluation that marijuana lacks a currently accepted medical use in the United States. DEA regulations define "currently accepted medical use" to require, among other things, "adequate and well-controlled studies proving efficacy."
Americans for Safe Access cited more than 200 peer-reviewed published studies demonstrating marijuana's efficacy for various medical uses, including a 1999 study by the respected Institute of Medicine, a government adviser on health issues. "The IOM report does indeed suggest that marijuana might have medical benefits," the court conceded. "However, the DEA fairly construed this report as calling for 'more and better studies to determine potential medical applications of marijuana' and not as sufficient proof of medical efficacy itself."
The lengthy opinion in Americans for Safe Access v. DEA, No. 11-1265 (D.C. Cir. Jan. 22, 2013), is available at this link. There is a dissent from the panel ruling, though it is focused only on the question of standing and argues that the panel majority ought not have reached the merits. I presume there may be an effort to bring this issue to an en banc court or even to the Supreme Court, though upon first impression I am disinclined to predict any change in the outcome in this matter.
Monday, January 14, 2013
Are there constitutional limits on severe mandatory federal punishments for those complying with state marijuana laws?The question in the title of this post is prompted by this interesting lengthy article in today's New York Times. The piece is headlined "In California, It’s U.S. vs. State Over Marijuana," and here are excerpts from the start and end of the article:
As the question in the title of this post hints, I strongly believe there are some unique (and uniquely important) constitutional arguments based in the Eighth Amendment (and perhaps also the Fifth Amendment) to preclude extreme application of extreme mandatory minimum federal sentencing terms to persons in full compliance with state medical marijuana laws.
Matthew R. Davies graduated from college with a master’s degree in business and a taste for enterprise, working in real estate, restaurants and mobile home parks before seizing on what he saw as uncharted territory with a vast potential for profits — medical marijuana.
He brought graduate-level business skills to a world decidedly operating in the shadows. He hired accountants, compliance lawyers, managers, a staff of 75 and a payroll firm. He paid California sales tax and filed for state and local business permits.
But in a case that highlights the growing clash between the federal government and those states that have legalized marijuana for medical or recreational use, the United States Justice Department indicted Mr. Davies six months ago on charges of cultivating marijuana, after raiding two dispensaries and a warehouse filled with nearly 2,000 marijuana plants.
The United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee, wants Mr. Davies to agree to a plea that includes a mandatory minimum of five years in prison, calling the case a straightforward prosecution of “one of the most significant commercial marijuana traffickers to be prosecuted in this district.”
At the center of this federal-state collision is a round-faced 34-year-old father of two young girls. Displaying a sheaf of legal documents, Mr. Davies, who has no criminal record, insisted in an interview that he had meticulously followed California law in setting up a business in 2009 that generated $8 million in annual revenues. By all appearances, Mr. Davies’ dispensaries operated as openly as the local Krispy Kreme, albeit on decidedly more tremulous legal ground.
“To be looking at 15 years of our life, you couldn’t pay me enough to give that up,” Mr. Davies said at the dining room table in his two-story home along the San Joaquin River Delta, referring to the amount of time he could potentially serve in prison. “If I had believed for a minute this would happen, I would never have gotten into this.
“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”
His lawyers appealed this month to Attorney General Eric H. Holder Jr. to halt what they suggested was a prosecution at odds with Justice Department policies to avoid prosecutions of medical marijuana users and with President Obama’s statement that the government has “bigger fish to fry” than recreational marijuana users. “Does this mean that the federal government will be prosecuting individuals throughout California, Washington, Colorado and elsewhere who comply with state law permitting marijuana use, or is the Davies case merely a rogue prosecutor out of step with administration and department policy?” asked Elliot R. Peters, one of his lawyers.
“This is not a case of an illicit drug ring under the guise of medical marijuana,” Mr. Peters wrote. “Here, marijuana was provided to qualified adult patients with a medical recommendation from a licensed physician. Records were kept, proceeds were tracked, payroll and sales taxes were duly paid.” Mr. Holder’s aides declined to comment, referring a reporter to a letter from Mr. Wagner to Mr. Davies’s lawyers in which he disputed the depiction of the defendant as anything other than a major-league drug trafficker.
“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” the letter said. Mr. Wagner said that prosecuting such people “remains a core priority of the department.”
The case illustrates the struggle states and the federal government are now facing as they seek to deal with the changing contours of marijuana laws and public attitudes toward the drug. Colorado and Washington legalized marijuana for recreational use last year, and are among the 18 states, and the District of Columbia, that currently allow its medical use.
Two of Mr. Davies’s co-defendants are pleading guilty, agreeing to five-year minimum terms, to avoid stiffer sentences. Mr. Davies, while saying he did not “want to be a martyr,” decided to challenge the indictment with a combination of legal and public-relations measures, setting up a Web site devoted to his case and hiring Chris Lehane, a hard-hitting political consultant and former senior aide in Bill Clinton’s White House....
This is as much a legal clash as a cultural clash. Recreational marijuana use is common across this state, and without the legal stigma attached to it in much of the country. The federal government is viewed as a distant force.
“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”
In a variety of punishment contexts, the Supreme Court has frequently used the Eighth Amendment to prevent one uniquely harsh jurisdiction from imposing a uniquely harsh punishment to certain offenders. In the marijuana setting, it is federal sentencing law being used to impose or threaten a mandatory sentence on defendants who, in probably every state in the United States, would have been legal or subject to a minor non-incarcerative criminal punishment or, at most, a short period of imprisonment. As long as the Eighth Amendment is understood to preclude some extreme outlier punishments, I think there must be some limit on how extreme a sentence the feds can threaten against a medical marijuana provider who is genuinely seeking to comply with applicable state laws.
Some other very recent coverage of this notable case from other media include:
- From The Atlantic here, "The High Cost of Shutting Down One Medical Marijuana Operation"
- From The Huffinton Post here, "Matthew Davies' Wife Asks Obama To End Family's 'Nightmare,' Drop Medical Marijuana Case"
- From Reason.com here, "Who Will Be the Last Baby Girl to Go Fatherless in the Feds' War on State-Legal Marijuana?"
Friday, January 11, 2013
New report urges Texas to save money and improve public safety via drug treatment
As detailed via this article in the Texas Tribune, headlined "Report: Invest in Drug Treatment Instead of Punishment," a detailed new report is pitching Texas lawmakers to spend more resources on treatment for drug offenders. Here is the start of the article (which includes a link to the report):
Instead of throwing drug addicts in jail, the state should invest more money in substance abuse treatment, says a report issued Thursday by the Texas Criminal Justice Coalition, which adds that the move could provide millions of dollars in savings and improve public safety.
“You cannot cure addiction by locking it up,” said Ana Yáñez Correa, executive director of the coalition. “It doesn’t cure it; it makes it worse.”
In Texas, arrests for drug possession have increased 32 percent in the last decade, and about 90 percent of all drug-related arrests are for possession — not dealing, according to the report. In 2011, the nearly 15,000 inmates in jails and prisons on drug possession offenses statewide cost taxpayers more than $725,000 daily. The coalition argues that providing more state resources for treatment would be less costly and would prevent crimes associated with drug use.
Since 2007, lawmakers have directed money that would have been invested in building new facilities for a growing inmate population to diversion, probation and treatment programs. As a result, the prison population has fallen so much that in 2011 lawmakers for the first time closed a Texas prison, the Central Unit in Sugar Land. And this year, state Sen. John Whitmire, D-Houston, has said lawmakers should consider shuttering two additional units.
But in the face of a $27 billion budget shortfall in 2011, lawmakers curtailed the growth of some of the diversion and treatment programs that had helped slow the incarceration rate in Texas. Without more investment in those kinds of programs, Texas prisons and jails could again exceed their capacity by 2014, according to the report.
While Texas has one of the highest incarceration rates nationally, the report notes, it has one of the lowest drug treatment admission rates. In 2009, more than 53,500 outpatient and residential treatments slots were available statewide, and a waitlist with more than 14,000 names. Forcing addicts who are seeking treatment to wait can have dire consequences, including the commission of crimes that land them behind bars.
January 11, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Thursday, January 10, 2013
Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservativesOne of my favorite readers forwarded me this recent commentary by Carl Hiaasen of the Miami Herald concerning pot policy which included a sentence that gave me real clarity on why I find the politics of marijuana reform so interesting. The piece is headlined "War on pot has gone up in smoke," and here are some excerpts with the key sentence emphasized:
Though I suppose this point should be pretty obvious, the sentence I have highlighted above provides an effective and stark reminder that positions on pot policy now provide an effective means to distinguish social conservatives and fiscal conservatives. Indeed, for me personally, I suspect it my own deep fiscal conservative instincts — and surely not any 1960s-era, Great-Society-type social liberalism — that leads me to be a sharp critic of the drug war in general and of pot prohibition generally. More broadly, as this commentary rightly asserts, it is hard to see how any TRUE fiscal conservatives could or would support the status quo of federal pot prohibition. If one claiming to be a fiscal conservative supports federal pot prohibition, she must at least admit that, as a governing philosophy, she cares more about social issues than economic ones and that she thinks it essential for the federal government to prioritize social issues over economic concerns even while racking up trillions in debt on a yearly basis.
The war on marijuana is going up in smoke, and it's about time. There is no bigger waste of money and resources in all law enforcement. Failure is too polite a description for the long campaign to eliminate the pot trade in the United States. A colossal flop is what it is. After four decades and billions spent, marijuana is easier to get, and more potent, than ever.
More than 40 percent of all Americans over 12 have tried it, and at least 30 million people smoke it every year. The most recent national drug survey found that 18.1 million Americans had used it during the previous month.
Pot is now medically dispensed in 18 states and Washington, D.C. It's the largest cash crop in the nation's largest agricultural state, California. A legitimate pain reliever for cancer victims, "medicinal" marijuana is now available for an assortment of other symptoms, some of them conveniently vague and impossible to discount. It's not terribly hard to get a prescription.
In November, voters in Colorado and Washington dropped the pretense and approved the adult recreational use of weed. Other states will follow in coming years.
Absurdly, the government still classifies pot as a Schedule I Controlled Substance, the same as heroin and cocaine. Federal law prohibits medical marijuana use, and the Obama administration has taken action against dispensaries in California. It's a lost cause, and an expensive one. Any true fiscal conservative should be outraged by the waste and futility.
States are rewriting their marijuana laws because that's what makes sense. Regulate it, tax it, and make a ton of money from it. Another benefit of decriminalization is liberating overworked police and prosecutors, whose talents are being misspent on dumb, dead-end pot cases — 50 plants in a grow house tended by some hapless bozo who doesn't even know where the seeds came from. Most Americans would prefer to see drug agents shutting down meth labs and pill mills, which actually kill people.
Like it or not, marijuana is so deeply imbedded in our culture that it will never go away. You can find it on Wall Street, Main Street or K Street, on any college campus or military base. Some drug experts fear that more lenient laws will increase consumption and abuse. Others believe a lawful marketplace will prove safer. Regardless, the saturation level of reefer is already high.
In 2011, according to FBI statistics, a marijuana-related arrest occurred every 42 seconds in the United States. That's how abundant the stuff is. Some of those who got busted were career criminals who happened to be caught with a joint in their pockets, but many were casual users or small-time sellers.
Those who get prosecuted on minor pot charges disproportionately tend to be Hispanics and African-Americans, not the white college kids who are toking up a storm. Cannabis laws have always been selectively enforced, and lots of people are sitting in jail who shouldn't be there.
The current useless Congress is unlikely to tackle marijuana reform, but the Justice Department could do all taxpayers a favor by letting each state decide for itself. Making pot legally available to adults will require caution.... Inevitably, though, more states will ease their marijuana laws. Money is why; potential revenues from taxing pot cultivation and sales are too substantial to forego. Even the boneheads in Tallahassee will one day figure that out.
Watching America's legalization movement with gloom are the Mexican drug cartels, whose vast profits from grass smuggling will wither with the loss of their most lucrative market. Pot smokers would just as soon buy it from a licensed dispensary, but they will definitely keep buying it, no matter what the government does.
This fiscal vs. social perspective serves, of course, to further link continued support for modern pot prohibition with historic support for alcohol prohibition and similar morals legislation typically advanced by big-government progressive movements. Historically, it is would-be social reformers who believe government can and should advance a particular social agenda and who will consistently spport bigger and more expensive government if and whenever that government promises to further a (now-government-imposed) social agenda.
In addition to having historical resonance, this perspective makes it easier to understand the seemingly disparate leaders of the new anti-marijuana reform group calling itself Project SAM (discussed here; website now here). Project SAM is headed by Patrick Kennedy and its most vocal leader of late has been David Frum, who was a chief speechwriter in the Bush Administration. (The rest of the leadership team for Project SAM, as reported here, appears to be persons with MDs and PhDs, which supports SAM's claim to be eager to bring a public health focus to the marijuana reform discussion.) Patrick Kennedy, of course, comes from the political family perhaps most well known in modern Democratic history for supporting big-federal-government, tax-and-spend programs to promote one vision of social welfare without too much concern about whether expensive government-run social programs actually work. And David Frum comes from a Bush Administration which made its mark by being fiscally irresponsible through big-federal-government, spend-and-spend programming at home and abroad.
It should thus come as no surprise that these kinds of folks will be heading up efforts to continue to support what looks like a failed big-government criminal justice program. That said, the marijuana part of the drug war can claim, as one very tangible achievement, that it has helped ensured that lots of taxpayer-funded police, prosecutors and prison officials could make healthy public-sector-union salaries and pensions while being able to focus time and energies on what would appear to be among the least dangerous of modern drugs and drug offenders. And I suppose only time will tell whether and how the long-term financial burdens imposed by the enduring, big-government "war on pot" will hurt our kids more than a regulatory regime which might lead them to make false IDs in the hope of scoring some pot from the local drug store for a high school party.