Sentencing Law and Policy

California appeals court rules defendant was wrongly precluded from presenting medical marijuana defense

This local article from California, headlined "Drug conviction reversed in medical marijuana case," reports on a notable intermediate appellate court ruling. Here are the basics:

An appeals court reversed the felony conviction of a former marijuana dispensary manager in Kearny Mesa Wednesday who was found guilty of possessing and selling the drug for profit. The court found that the trial judge erred by barring Jovan Jackson from arguing that his conduct was permitted under California laws, which allows medical marijuana patients to associate for the purpose of “collectively cultivating” the drug....

Jackson was convicted in 2010 of illegally possessing and selling the marijuana through the Answerdam Alternative Care collective. He was placed on probation for three years and ordered to serve six months in county jail.

Before trial, the District Attorney’s Office filed a motion asking the judge not to allow Jackson to argue a medical marijuana defense. Prosecutors contended that Answerdam was not a collective as allowed by law, but instead a “retail business” that took in $1,000 to $1,500 a day....

On Wednesday, a three-judge panel of the 4th District Court of Appeal voted unanimously to reverse Jackson’s conviction. The judges determined that the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not preclude him from presenting a medical marijuana defense.

However, the court stressed that when considering such a defense, a judge or jury has to determine whether an organization operates on a nonprofit basis. To answer that question, and organization’s large membership and system of management are relevant.

The full 20-page appellate opinion in this case is available at this link.

Seventh Circuit panel rejects defendant's Eighth Amendment challenge to crack LWOP sentence

The Seventh Circuit has an interesting little panel ruling today rejecting an Eighth Amendment claim in US v. Ousley, No. 11-2760 (7th Cir. Oct. 22, 2012) (available here). Here is how the opinion starts and ends:

Anthony A. Ousley has an extensive history of peddling illegal drugs.  Caught dealing drugs yet again, Ousley was convicted of four felonies, including one count of possession of more than 50 grams of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).  On that count, the district court imposed a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).  On appeal, Ousley contends that the Eighth Amendment’s prohibition against cruel and unusual punishments precludes a mandatory life sentence for dealers who possess a smaller quantity of crack cocaine than the quantity of powder cocaine necessary to trigger a similar sentence for powder cocaine dealers. We affirm....

Ousley questions the continued vitality of these decisions [rejecting similar prior appeals] in light of the Supreme Court’s recent Graham decision addressing the constitutionality of sentencing a juvenile to life without parole for a non-homicide crime.  Before Graham, the Supreme Court had adopted categorical rules prohibiting death sentences for certain types of crimes or offenders.... In Graham, the Supreme Court held that sentencing a juvenile to life without parole for a non-homicide crime constitutes cruel and unusual punishment. 130 S. Ct. at 2030; see also Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012) (extending Graham to juvenile murderers). Thus, Graham is the first instance wherein the Supreme Court endorsed a categorical prohibition on a non-capital sentence — life without parole — for a certain type of offender — juveniles.

Ousley argues that Graham relieves us of our obligation to follow Harmelin, Ewing, and our decisions rejecting Eighth Amendment challenges to life sentences imposed pursuant to § 841(b)(1)(A).  According to Ousley, Graham empowers us to consider in the first instance whether to adopt a categorical prohibition on mandatory life sentences without parole for crack cocaine dealers who possess an amount of crack cocaine less than the amount of powder cocaine necessary to trigger a mandatory life sentence for powder cocaine dealers.  Ousley urges us to embrace this categorical rule based on the purported national consensus against crack and powder cocaine sentencing disparities.

Congress has addressed any national consensus issue in the Fair Sentencing Act. And this court recently held that Graham and Miller do not abrogate Harmelin.  United States v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012) (“Neither opinion overrules Harmelin; both, indeed, distinguish it explicitly. Our defendants were not juveniles and their crimes were more serious than the crime in Harmelin.”).  Moreover, “[e]ven if we thought Harmelin inconsistent with Graham and Millerand likely to be overruled, the Supreme Court has . . . told the lower courts in no uncertain terms to leave the overruling of its precedents to it.” Id.

Therefore, we conclude that Harmelin, Ewing, and our precedent unmistakably foreclose Ousley’s Eighth Amendment challenge to § 841(b)(1)(A). The district court did not commit legal error — much less plain error. 

Deputy AG Cole says federal prohibition to be enforced regardless of pot legalization initiatives

This new Reuters article, headlined "U.S. stance on marijuana unchanged by legalization votes: official," reports on new (and not very surprising) comments from a Justice Department official about state marijuana initiatives. Here are excerpts:

A top Justice Department official has told "60 Minutes" the federal government is ready to combat any "dangers" of state-sanctioned recreational pot, amid criticism of the Obama administration for its relative silence on legalization drives in three states.

Voters in Colorado, Washington state and Oregon are set to vote on November 6 on whether to legalize and tax marijuana sales, raising the possibility of a showdown with the federal government, which views pot as an illegal narcotic.

Deputy Attorney General James Cole, in comments to "60 Minutes" posted on Saturday to the website of CBS affiliate KCNC-TV in Denver, said his office's stance on pot would be "the same as it's always been" if voters approved legalization.

"We're going to take a look at whether or not there are dangers to the community from the sale of marijuana and we're going to go after those dangers," Cole told "60 Minutes" in an outtake from a report on Colorado's medical marijuana industry due to air on Sunday, according to the CBS affiliate.

Cole's statement is an indication the federal government, which has raided medical pot dispensaries in several of the 17 states that allow cannabis as medicine, could also take aim at state-sanctioned recreational marijuana.

It also represents a break with the Obama administration's relative silence about the pot referendums, which has led to uncertainty about whether federal officials would stop states from taxing and regulating sales of pot in special stores to those 21 and older, as proposed under each of the three state initiatives before voters....

In 2010, Holder issued a toughly worded letter that said his office "strongly" opposed the California proposal and would "vigorously enforce" drug laws against participants in the recreational pot trade, even if state law permitted it. Holder's statement is credited with helping to convince some California voters to reject the proposal.

"Compared to what they did two years ago in California, to have their federal posture be essentially a wait-and-see approach is encouraging," said Ethan Nadelmann, head of the Drug Policy Alliance, which through affiliates has funded marijuana legalization campaigns.

Polls show the American public is increasingly leaning toward legalizing pot, but no state has taken that step. Nadelmann said pot legalization is popular with young people and independents, two groups of voters crucial to President Barack Obama's re-election campaign, and that his administration is "being smart in basically not weighing in at this time."

Some recent and older related posts:

• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• VP candidate Paul Ryan says states should have right to legalize medical marijuana
• Is it really "shocking" that President Obama has not spoken out concerning state criminal justice reform proposals?
• "Bummer: Barack Obama turns out to be just another drug warrior"
• "Prominent Republicans in Washington state, Colorado endorse legal pot"
• New astute articles on the modern realities of pot politics, policies and practices
• Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?

UPDATE: The "60 minutes" segment from which this story emerges will be broadcast on Sunday, October 21, and here is a link to a preview, which provides this introductory paragraph:

Colorado's thriving medical marijuana business isn't just named for the color of today's green, potent pot. It's the color of the money being made in the medical marijuana industry.  Steve Kroft goes to the Rocky Mountain state to report on a business that's legal there and 16 other states, but in the eyes of the federal government is still as illegal as dealers selling heroin or LSD.  "Rocky Mountain High" will be broadcast on 60 Minutes Sunday, Oct. 21 at 7:30 p.m. ET and 7:00 p.m. PT.

High-profile state jury acquittal of New Jersey's "Weedman" on distribution charges

This local article, headlined "'NJWeedman' acquitted; Still faces prison time for possession," reports on a notable verdict in a high-profile state marijuana distribution case.  Here are the details:

Although a jury acquitted Ed “NJWeedman” Forchion of drug distribution on Thursday, the medical marijuana activist could still spend time behind bars for his love of pot.  Forchion, a Pemberton Township native who has long been a champion for the legalization of marijuana, was found guilty for possessing marijuana in a trial in May but a verdict could not be reached on the more serious distribution charge.

Forchion, who had been living in California, was arrested in Mount Holly in 2010 with a pound of pot in his trunk. After the retrial this week, the jury in Superior Court in Burlington County deliberated for only a short time on Thursday before returning a verdict of not guilty.  “I’m vindicated,” an upbeat Forchion said in an interview after the verdict announcement on Thursday.  “The people just don’t believe in the marijuana laws anymore.”

Forchion, 47, grew up in Browns Mills but later opened a medical marijuana dispensary in California.  He was arrested in April 2010 when he returned to New Jersey to visit his children and was stopped in Mount Holly with a pound of pot in his trunk. Since then, Forchion has heavily promoted his case in an effort to further argue against New Jersey’s marijuana laws.

Forchion was allowed to talk to jurors in both cases about his status as a licensed medical marijuana patient in California.  But he was barred from using his oft promoted “jury nullification” argument that would have asked jurors to disregard the state’s laws on marijuana use in determining a verdict that was instead based upon their own view of the substance.  “I think the jurors agree with me,” Forchion said Thursday.

But while avoiding the much more hefty weight of the drug distribution charge, Forchion still faces up to 18 months in prison when sentenced Jan. 17 for drug possession.  Forchion said he hopes the judge will consider the fact he is enrolled in a cancer study in California for painful tumors in his legs.

Forchion, who says he relies on marijuana to control pain from his tumors, has maintained that he never had any intent to peddle his “medicine” to others....  Forchion, a laid back, dread-locked Rastafarian who holds nothing back when it comes to his penchant for the wacky weed, has gained a large following of supporters.  He even admitted to jurors on Thursday he had eaten pot-laced cookies and brownies throughout the proceedings in court.

Recent related article:

• New Hampshire jury nullifies felony marijuana charges against 59-year-old Rastafarian

"Colorado marijuana-legalization measure raises question of pot tourism"

The title of this post is the headline of this notable new piece in the Denver Post.  Here are excerpts:

Colorado's legalization of limited possession of marijuana — if voters approve it this November — would bring the attention of the nation to the state, both sides of the issue agreed Wednesday.  Where they disagreed, though, is whether that attention would be a good thing.

In a debate..., Amendment 64 opponent Happy Haynes said the measure would attract illegal-drug dealers, hurt Colorado's brand among businesses and bring in unwanted marijuana tourists.  Proponent Betty Aldworth saw it differently, saying there is no evidence the measure would harm the state's business climate and that any marijuana-motivated visitors would be welcome.  "Those are tourism dollars, are they not?" Aldworth asked.

Haynes said the state should be more discriminating.  "The idea that any dollars that we get are OK, I'm not in favor of swelling our state coffers ... with money because people are getting high," she said.

Haynes said those types of regulations would draw not only tourists, but black-market dealers looking to operate under the cover of the state's marijuana laws. "Colorado will just become a magnet for pot dealers," she said. Haynes said businesses would be reluctant to move to the state if it is known for marijuana.

Aldworth, though, said regulation would make it easier to identify those acting illegally. And she disputed suggestions that Colorado's image would suffer if voters pass Amendment 64.  "The notion that Colorado's brand would be negatively impacted by Amendment 64 is not supported by any careful analysis," she said. "It's 'Reefer Madness' scare tactics."

Will there be a "constitutional showdown" if a state legalizes pot? And would that be so bad?

The question in the title of this post are prompted by this new piece at the Huffington Post, which is headlined "States Legalizing Marijuana Will Violate Federal Law, Trigger Constitutional Showdown: DEA, Drug Czars." The piece starts this way:

On a Monday teleconference call, former Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy voiced a strong reminder to the U.S. Department of Justice that even if voters in Colorado, Oregon and Washington pass ballot measures to legalize marijuana use for adults and tax its sale, the legalization of marijuana still violates federal law and the passage of these measures could trigger a "Constitutional showdown."

The goal of the call was clearly to put more pressure on Attorney General Eric Holder to make a public statement in opposition to these measures. With less than 30 days before Election Day, the DOJ has yet to announce its enforcement intentions regarding the ballot measures that, if passed, could end marijuana prohibition in each state.

"Next month in Colorado, Oregon and Washington states, voters will vote on legalizing marijuana," Peter Bensinger, the moderater of the call and former administrator of DEA during Ford, Carter and Reagan administrations, began the call. "Federal law, the U.S. Constitution and Supreme Court decisions say that this cannot be done because federal law preempts state law."

Bensinger added: "And there is a bigger danger that touches every one of us -- legalizing marijuana threatens public health and safety. In states that have legalized medical marijuana, drug driving arrests, accidents, and drug overdose deaths have skyrocketed. Drug treatment admissions are up and the number of teens using this gateway drug is up dramatically."

Bensinger was joined by a host of speakers including Bill Bennet and John Walters, former directors of the While House Office of National Drug Control Policy; Chief Richard Beary of the International Association of Chiefs of Police (IACP); Dr. Robert L. DuPont, founding director of the National Institute on Drug Abuse (NIDA) and who was also representing the American Society of Addiction Medicine (ASAM) and several others.

The position being pushed here by past and current drug warriors seems to have a little bit of a "chicken little" sky-is-falling quality to it.  Nevertheless, the apparent urgency of these respected voices confirms my strong belief that this is a topic very worthy of discourse on the Presidential campaign trail.  I am cautiously (and perhaps foolishly) optimistic that the next Prez debate's town hall format has the best chance to bring these issues into national discourse.  But even if it does not, I hope some members of the media might follow-up on these matters in interviews with both of the presidential contenders.

Some recent and older related posts:

• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• VP candidate Paul Ryan says states should have right to legalize medical marijuana
• Is it really "shocking" that President Obama has not spoken out concerning state criminal justice reform proposals?
• "Bummer: Barack Obama turns out to be just another drug warrior"
• "Prominent Republicans in Washington state, Colorado endorse legal pot"
• New astute articles on the modern realities of pot politics, policies and practices
• Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"

"Lethal Connection: The 'War on Drugs' and Death Sentencing"

The title of this post is the title of this interesting short piece by David McCord now available via SSRN. Here is the abstract:

Many defendants on death row committed murders in which illegal drugs were somehow involved.  This Article attempts to explain and quantify the involvement of drugs in the cases of death-sentenced defendants during the six year period of 2004 to 2009 and to imagine the ways that death rows would look different if there had been no "War on Drugs."  The Article will aslo examine the effects of drug-involved death sentences with respect to gender, race, and ethnicity (particularly Latino ethnicity).

"Marijuana Only for the Sick? A Farce, Some Angelenos Say"

The title of this post is the headline of this intriguing piece in today's New York Times.  Here are excerpts:

One year after federal law enforcement officials began cracking down on California’s medical marijuana industry with a series of high-profile arrests around the state, they finally moved into Los Angeles last month, giving 71 dispensaries until Tuesday to shut down.  At the same time, because of a well-organized push by a new coalition of medical marijuana supporters, the City Council last week repealed a ban on the dispensaries that it had passed only a couple of months earlier.

Despite years of trying fruitlessly to regulate medical marijuana, California again finds itself in a marijuana-laced chaos over a booming and divisive industry.  Nobody even knows how many medical marijuana dispensaries are in Los Angeles. Estimates range from 500 to more than 1,000.  The only certainty, supporters and opponents agree, is that they far outnumber Starbucks....

In the biggest push against medical marijuana since California legalized it in 1996, the federal authorities have shut at least 600 dispensaries statewide since last October. California’s four United States attorneys said the dispensaries violated not only federal law, which considers all possession and distribution of marijuana to be illegal, but state law, which requires operators to be nonprofit primary caregivers to their patients and to distribute marijuana strictly for medical purposes.

While announcing the actions against the 71 dispensaries, André Birotte Jr., the United States attorney for the Central District of California, indicated that it was only the beginning of his campaign in Los Angeles.  Prosecutors filed asset forfeiture lawsuits against three dispensaries and sent letters warning of criminal charges to the operators and landlords of 68 others, a strategy that has closed nearly 97 percent of the targeted dispensaries elsewhere in the district, said Thom Mrozek, a spokesman for the United States attorney.

Vague state laws governing medical marijuana have allowed recreational users of the drug to take advantage of the dispensaries, say supporters of the Los Angeles ban and the federal crackdown.  Here on the boardwalk of Venice Beach, pitchmen dressed all in marijuana green approach passers-by with offers of a $35, 10-minute evaluation for a medical marijuana recommendation for everything from cancer to appetite loss.

Nearly 180 cities across the state have banned dispensaries, and lawsuits challenging the bans have reached the State Supreme Court.  In more liberal areas, some 50 municipalities have passed medical marijuana ordinances, but most have suspended the regulation of dispensaries because of the federal offensive, according to Americans for Safe Access, a group that promotes access to medical marijuana.  San Francisco and Oakland, the fiercest defenders of medical marijuana, have continued to issue permits to new dispensaries....

In downtown Los Angeles, where most of the dispensaries were included in the order to close, workers were renovating the storefront of the Downtown Collective.  Inside, house music was being played in a lobby decorated to conjure “Scarface,” a poster of which hung on a wall. “We don’t worry about this,” the manager said of the federal offensive, declining to give his name. “It’s between the lawyers.”

David Welch, a lawyer who is representing 15 of the 71 dispensaries and who is involved in a lawsuit challenging a ban at the State Supreme Court, said the federal clampdown would fail.  “Medical marijuana dispensaries are very much like what they distribute: they’re weeds,” he said. “You cut them down, you leave, and then they sprout back up.”

Feds seeking lengthy prison terms for two who "shamelessly exploited" Michigan's medical marijuana law

This brief AP article reports on the severe sentences being sought by federal prosecutors this afternoon in a sentencing of a father and son involved in marijuana cultivation in Michigan.  Here are the details:

Federal prosecutors are seeking many years in prison for a Monroe County father and his son who were convicted of growing marijuana in greenhouses.  Gerald Duval Jr. and son Jeremy Duval are returning today to Detroit federal court.  The government says they "shamelessly exploited" Michigan's medical marijuana law to try to get around a federal ban on pot.

Prosecutors are recommending nearly 16 years in prison for the elder Duval and 14 years for his son. The greenhouses on Ida Center Road in Monroe County were approximately 100 feet long and 50 feet wide.

The Duvals admit they were growing marijuana but insist it was for medicinal use under Michigan law. Jeremy Duval says he thought the large operation was protected.

I fully understand (though do not fully condone) the views of federal prosecutors who believe it is a justifiable use of federal resources to vigorously pursue persons who willfully endeavor to violate federal law flagrantly under the cover of questionable state laws.  That said, I do not fully understand (and I do fully condemn) the belief by federal prosecutors that these defendants should serve more than a decade in prison for this kind of behavior.  Unless and until there is reason to believe these defendants pose a real threat to public safety (or there are some special aggravating circumstances), the harms of adding more bodies to an already over-crowded federal prison system (including the costs to federal taxpayers) that would result from such long federal prison terms seem to surely outweigh any obvious benefits.

UPDATE:  According to this follow-up AP piece Gerald Duval Jr was "sentenced to 10 years in prison ... Monday by Detroit federal Judge David Lawson, while Jeremy Duval is returning to court Tuesday." As suggested above, though well below what federal prosecutors sought, this decade-long prison sentence still strikes me as potentially "greater than necessary" to serve federal sentencing purposes unless there are serious aggravating factors or evidence that Gerald Duval is a threat to public safety.

I am hopeful the media might report on these sentencings further after Jeremy Duval is sentenced today, at which time I may do further posts on this case.

Prominent conservative Tom Tancredo supporting marijuana legalization initiative in Colorado

The Huffington Post via this new entry headlined "Tom Tancredo Backs Legal Weed: 'Marijuana Prohibition Has Failed Us'," has alerted me to another prominent conservative voice speaking out in support of state marijuana reform efforts. Tom Tancredo is a former Republican congressman who is now endorsing Colorado's ballot initiative to legalize marijuana.  Here is part of his explanation why in this commentary appearing in the Colorado Springs Gazzette:

Exactly 80 years ago, the people of this great state passed a ballot initiative declaring an end to the misguided big-government policy experiment that was alcohol prohibition.  One year later, the federal government followed.

This November, the voters of Colorado have the opportunity to repeat history.  On the ballot is Amendment 64, an initiative that would end marijuana prohibition in the state and regulate the production and sale of the substance.

In many ways, marijuana prohibition is very similar to alcohol prohibition.  Nowhere is this more apparent than in their impact on public safety.

In the 1920s, alcohol prohibition led to the widespread proliferation of violent criminal organizations who corrupted politicians and law enforcement officials to illegally peddle booze to otherwise law-abiding citizens.  Similarly, by keeping marijuana illegal for the last 75 years, we have created a black market that helps fuel some of the most dangerous terrorist organizations in the world....

I am endorsing Amendment 64 not despite my conservative beliefs, but because of them. Throughout my career in public policy and in public office, I have fought to reform or eliminate wasteful and ineffective government programs.  There is no government program or policy I can think of that has failed in such a unique way as marijuana prohibition.

Our nation is spending tens of billions of dollars annually in an attempt to prohibit adults from using a substance objectively less harmful than alcohol.  Yet marijuana is still widely available in our society.  We are not preventing its use; we are merely ensuring that all of the profits from the sale of marijuana (outside the medical marijuana system) flow to the criminal underground.

Regardless of what ultimately happens on the federal level, we have an opportunity to stop pouring money into a failed system in Colorado.  According to the Colorado Center on Law and Policy, we current spend anywhere from $25 to $40 million dollars per year arresting, citing, processing, and prosecuting marijuana offenders throughout the state.  A recent report from the Colorado Center on Law and Policy found that savings achieved through eliminating these law enforcement costs, combined with increased tax revenues generated from the legal production and sale of marijuana, would net the state $60 million in the first year alone.

In addition to the economic and public safety arguments for ending marijuana prohibition, I also support Amendment 64 for a much broader, philosophical reason.  Marijuana prohibition is perhaps the oldest and most persistent nanny-state law we have in the U.S. We simply cannot afford a government that tries to save people from themselves.  It is not the role of government to try to correct bad behavior, as long as those behaviors are not directly causing physical harm to others....

Across the board, our current system of marijuana prohibition has failed. It has failed to protect our kids from drug dealers pushing other, far more dangerous drugs, it has failed to keep our borders safe, and it has failed to use taxpayer dollars in the most responsible and efficient manner possible.  It is time to try something new. 

New Hampshire jury nullifies felony marijuana charges against 59-year-old Rastafarian

The state motto for New Hampshire is "Live Free or Die," and I joked in this June post that the state's Governor seemed to pick the opposite of live free when he vetoed a medical marijuana bill.  This fascinating new local story, however, suggests that jurors in New Hampshire are still inclined to go with live free despite the state's marijuana laws.  The piece is headlined "Jury clears NH man of felony pot charge, use was part of Rastafarian religion," and here are excerpts:

A Belknap County Superior Court jury cleared a Barnstead resident of a felony drug charge last week, siding with a defense lawyer who encouraged the jury to nullify the verdict on the grounds that the marijuana use was part of his Rastafarian religion.  The decision on Thursday cleared Doug Darrell, 59, a piano tuner and woodworker, of manufacture of marijuana, a Class B felony that carries a maximum prison sentence of 3.5 to seven years.

Under the principle of jury nullification, a jury can find a defendant innocent, even if prosecutors have proved guilt beyond a reasonable doubt. “It's a really important development,” said Concord defense lawyer Mark Sisti, who represented Darrell. Legislatures around the country are rethinking marijuana laws, and most New Hampshire residents have no problem with moderate use of the drug by responsible adults, he said.

“We're moving along a path we should have been on years ago,” he said. Key to the case was a decision by Superior Court Judge James O'Neill to instruct the jury about nullification, he said....

Juror Cathleen Converse of Barnstead said several members of the jury were uncomfortable with the case. “Mr. Darrell seemed to be the only victim here,” said Converse, a retiree who moved to New Hampshire in 2004 from South Carolina. “Almost everyone said this just shouldn't have happened to these peaceful people.”

Rastafarianism is closely associated with reggae music, dreadlocks and Caribbean culture. According to the website rastafarian.com, it arose in Jamaica in the 1930s and promotes the spiritual use of marijuana and the rejection of Western society. A Rastafarian since the 1980s, Darrell has no criminal history and has been married to his wife for 38 years, Sisti said. They have four grown children who are successful in their fields.

The couple use the marijuana plant more often for tea and medicinal rubs than to smoke it, he said. “This is the real deal here. This isn't some kid who listened to Bob Marley last week and decided to be Rastafarian,” Sisti said. Darrell refused several plea bargains because they would require him to plead guilty to something his religions deems as sacramental, Sisti said.

He said Darrell was arrested after a National Guard helicopter, working on a grid with New Hampshire State Police, spotted 15 marijuana plants in July 2009....

Belknap County Attorney Melissa Countway Guldbrandsen said she brought the charge against Darrell because he was breaking the law. It wouldn't matter whether a defendant were an active drug dealer or someone like Darrell, Guldbrandsen would still bring the charge, she said.

Like Sisti, she said a key to the case was the judge's decision to instruct the jury about nullification. She was surprised that Judge O'Neill gave the instruction, which lent credence to Sisti's argument in favor of jury nullification. “I don't see it as being that significant in changing our practice and the practice of the court,” Guldbrandsen said about the verdict. In January, a new law goes into effect that codifies current practice, which permits a lawyer to argue for nullification.

Interesting Montana Supreme Court opinions on state medical marijuana laws

Montana is one of a number of western states that has been having, now for almost a decade, a wild legal and practical experience with medical marijuana legalization and regulation. This paragraph from the start of a new ruling from the Montana Supreme Court in Montana Cannabis Industry Association v. Montana, 2012 MT 201 (Mont. Sept. 11, 2011) (available here), provides this account of the legal basics:

In 2004, Montana voters approved the use of medical marijuana through the passage of I-148, the Medical Marijuana Act.  The 2004 Medical Marijuana Act left in place those provisions in the Montana criminal code that make it illegal to cultivate, possess, distribute or use marijuana, while simultaneously protecting authorized users of medical marijuana from being prosecuted.  Section 50-46-201(1), MCA (2009) (repealed 2011).  In 2011, the Montana Legislature, in response to a drastic increase of caregivers and medical marijuana users, passed House Bill 161, which repealed I-148.  The Governor vetoed House Bill 161, and in response, the Legislature enacted Senate Bill 423, which repealed the 2004 Medical Marijuana Act and replaced it with the Montana Marijuana Act (“MMA”), § 50-46-301 et seq., MCA, which dramatically changed the landscape for the cultivation, distribution, and use of marijuana for medical purposes.

Anyone interested in the law and policy of state marijuana prohibitions and regulations should be sure to read the lead opinion in Montana Cannabis Industry Association: the majority of the Montana Supreme Court sets forth a cogent and convincing explanation for why regulations in the new Montana Marijuana Act do not violate various individual rights provisions of the Montana Constitution.

In addition, anyone interested in federalism and justiciability issues should be sure to read the dissenting opinion in Montana Cannabis Industry Association: Justice James Nelson sets forth a forceful and not-quite-convincing explanation for why he believes the Montana Supreme Court ought not have ruled in this case given the federal statutory prohibition on marijuana possession. Here is a key passage from Justice Nelson's dissenting opinion which I continue to ponder (with my emphasis added):

Stripped to its core, the remarkable premise underlying Plaintiffs’ request for relief in this case is that they have a fundamental right under the Montana Constitution to engage in conduct which is criminal under federal law. Indeed, no matter what this Court might hold in this case or any of the other medical marijuana cases, the underlying assumption of everyone involved is that the plaintiffs intend to go out and violate the federal Controlled Substances Act.  That Montana’s courts have become complicit in this endeavor (by taking up questions regarding the interpretation of Montana’s medical marijuana laws in the absence of an actual underlying criminal prosecution) is shocking.

I disagree with the premise implicit in the Court’s approach — namely, that it is appropriate for state legislatures to enact laws which purport to make lawful conduct which federal law has already dictated is unlawful. Despite the Court’s, the Legislature’s, and the Plaintiff’s efforts, marijuana possession and distribution cannot simultaneously be both lawful and unlawful — except, perhaps, inside Schrödinger’s cat’s box. Indeed, it is axiomatic that federal laws prevail over contrary state laws....

Under the Supremacy Clause, state law must give way to federal law in certain circumstances, including “cases where compliance with both federal and state regulations is a physical impossibility.” Arizona, 132 S. Ct. at 2501 (internal quotation marks omitted). Under federal law, marijuana is classified as a Schedule I drug. Gonzales v. Raich, 545 U.S. 1, 14, 125 S. Ct. 2195, 2204 (2005). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. Gonzales, 545 U.S. at 14, 125 S. Ct. at 2204. It is a physical impossibility to comply with this federal law while, at the same time, engaging in the use, possession, or distribution of medical marijuana which Plaintiffs claim Montana’s Constitution and statutes allow. Of course, Plaintiffs could avoid this conflict by simply refraining from engaging in such activities; however, they have indicated a desire not to do so. In this circumstance, federal law prevails over state law. Gonzales, 545 U.S. at 29, 125 S. Ct. at 2212 (“[L]imiting the activity to marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”). And thus the question whether Plaintiffs’ use, possession, or distribution of marijuana is in compliance with Montana law involves a purely academic (and therefore nonjusticiable) determination.

I suspect it is the substance of the law in question here that in part prompts Justice Nelson to claim to find "shocking" efforts by Montana's legislature and its judiciary to develop and review state criminal laws independent of federal criminal laws.  That said, I wonder if others think there may be some force to the notion that state courts ought not even take up state marijuana legalization issue in the shadow of blanket pot prohibition at the federal level. 

Perhaps shifting the conversation to gun rights might provide a useful perspective on these matters.  Do readers think Justice Nelson would find "shocking" efforts by Montana's legislature and its judiciary to develop and review a new state statute which provided, for example, that nonviolent low-level drug offenders and/or persons with domestic violence misdemeanor convictions could get a state gun permit a decade after completing their sentence?  Such a statute would seek to legally authorize for state law purposes an activity that federal law right now makes illegal.  Is there are argument that any effort to seek a clarification of the reach and application of such a gun law should be deemed "purely academic (and therefore nonjusticiable)" by Montana courts?

"A father's plea: End the war on drugs"

The title of this post is the headline of this new commentary by Javier Sicilia appearing at CNN.  Here is how it begins:

Why was my son murdered?  He was 24, and he had never tried drugs.  He didn't even smoke. He had paid half his university costs with a sports scholarship and was working as administrative staff at a cardiac clinic in Morelos, Mexico. Why then was my son suffocated by hit men from the Gulf Cartel?  Why did his six friends, just like him, die at his side?

The answer, you may tell me, is obvious. "Because drug traffickers are bad, and must be stopped." The answer, however, is not that simple.  If it were I would not be leading a caravan for peace across the United States.  Let's pose the question differently.  If Mexico's President Felipe Calderon had treated drug abuse as a question of public health rather than a matter of national security, might my son and his friends still be alive today? If instead of declaring war on drug trafficking, Calderón had pursued a bilateral agenda with the United States to decriminalize drugs and regulate their use, is it possible that they and tens of thousands of other young people killed in the last six years would be still be with us?

Declaring a war obliges one's enemy to build up defensive armies.  And if the principal tactic of that war is identifying and taking out crime syndicate leaders, it leaves their decapitated, but ever profitable, organizations adrift.  President Calderon went on the offensive against cartel "capos." The result was a proliferation of criminal gangs.

My son, Juan Francisco, and his friends were kidnapped, tortured and killed by one of those new splinter gangs, who did the hit for just $25,000 and two pickup trucks.

Why? One of the young men killed with my son had complained about a theft in the valet parking of a bar that turned out to be managed by one of the criminal gangs untethered after drug lord Beltrán Leyva was killed and his lieutenants scattered.  "Comandante H," a former Beltrán Leyva confidante, was recently apprehended by authorities, telling his captors, "I was quite outraged when they murdered Sicilia's son and his friends.  Murdering innocent people is not our business.  Our business is drugs.  But I was fleeing, and I could not do anything."

The horrific story of my son and his friends is one of thousands like it in our country.  More than 60,000 people have been killed and 20,000 have disappeared because of the myopic war strategy Felipe Calderon and the Mexican security forces have pursued since 2006. Some murder estimates are even higher.

That is why I stopped writing poetry and took to the streets with thousands of other grieving Mexicans to make my son, and other victims like him, visible.  Now, I'm traveling across the United States with members of dozens of families broken by violence to seek common cause with Americans whose communities, especially the African American and Latino communities who have so warmly hosted us, that have been battered by the violence and the criminalization that this same counterproductive war inflicts on the U.S. side of the border.

Montana medicial marijuana activist gets (way-below-guideline?) probation sentence

As reported in this local article, headlined "Medical marijuana activist Daubert gets probation in federal drug case," a high-profile federal defendant got a low-level punishment in Montana yesterday. Here are the details:

Tom Daubert, who led the push for the voter-approved law legalizing medical marijuana in Montana, was sentenced Thursday to five years’ probation in a federal drug case. “I’m feeling relieved and grateful for the judge’s mercy and leniency,” Daubert said. “ … I’m very glad he recognized the uniqueness of my particular case.”

Daubert was among several people charged after federal agents raided medical marijuana businesses, including the Helena-based Montana Cannabis, around the state last year. Daubert had ended his interest in Montana Cannabis before the raids, something U.S. District Court Judge Dana Christensen noted in imposing probation.

Daubert pleaded guilty in April to a charge of conspiracy to maintain drug-involved premises, which carries a maximum potential sentence of 20 years in prison. Assistant U.S. Attorney Joe Thaggard sought a prison term of six-and-a-half to eight years for Daubert, calling him “a talented man, (who) also used those talents to exercise leadership in a conspiracy.”

But Christensen noted that Daubert had lobbied long and hard for stricter state regulations of Montana’s medical marijuana industry, and -– while he was still with Montana Cannabis -– routinely conducted tours through the company’s Helena greenhouse for lawmakers and law enforcement officers....

Christensen also sentenced Daubert to pay a total of $50,000 in forfeiture and other fees, which he’s already paid, as well as a standard $100 fee.

Daubert formed Montana Cannabis with partners Richard Flor, Chris Lindsey and Chris Williams. Flor, of Miles City, pleaded guilty in April to maintaining drug-involved premises and was sentenced to five years in prison.  But the 68-year-old Flor, who suffered from dementia and other serious medical conditions, died in custody last month after being moved to Nevada from a private prison in Montana.

Lindsey pleaded guilty Thursday to maintaining drug-involved premises. Christensen set his sentencing for Dec. 13. Williams’ trial is scheduled for Sept. 24.

Peter Lacny, of Missoula, one of Daubert’s defense attorneys, noted he’d submitted more than 70 letters attesting to Daubert’s character, more than in any other case he’s handled. Christensen noted Thursday that he’d read all of the letters and also watched two DVDs, one called “Medical Cannabis in Montana,” and the other a documentary called “Code of the West.” The latter focused on legislative attempts to reform Montana’s vague medical marijuana law, and prominently featured Daubert’s efforts.

Daubert’s work on behalf of medical cannabis patients began years ago as the head of the advocacy group Patients and Families United, which fought for the 2004 voter initiative. That work won Daubert a loyal following, and Thursday’s sentencing hearing was crowded with supporters, who mobbed him with bear hugs after it was over.

The longtime lobbyist who has spent years working the halls of the Montana Capitol said he’s not sure whether he’ll stay politically involved.  “One of the many heartbreaking moments for me right after the raids” occurred when he returned to the Capitol, he said. “Every time I walked into the Capitol, I felt its grandeur and beauty.”  But after the raids, he said, “I lost completely any kind of good feeling going in there.”

I cannot find any press report on this sentencing to confirm my suggestion in the title of this post that the probation sentence here was way below the applicable sentencing guidelines. But, absent evidence to the contrary, I have to believe that the prosecutor's recommendation of a sentence of 6.5 to 8 years came from a guideline calculation setting the suggested sentence at a range of 78-97 months (which comes from an offense level of 28 for a first offender).

I quite interested in this sentencing result not only because of my enduring concern about federal/state conflicts in the criminalization and regulation of marijuana, but also because the guideline calculation, the sentencing process and the departure/variance decision by the sentencing judge here all are notable beyond the specifics of this case and this kind of offense. (Especially if commentors express interest, I may try to track down the sentencing filings in this case and comment more on its more interesting legal elements.)

My sense is that, in many types of cases, federal prosecutors consider very seriously a sentencing appeal when a district judge varies so much from the applicable guideline as appears here. And given the enduring importance of these kinds of issues in the Ninth Circuit, which I believe is home to 8 of the 17 states to legalize medical marijuana, a strong argument could be made that the government ought to appeal in order to clarify the natural and proper application of the sentencing laws in this setting. That said, I would predict that federal prosecutors will not ultimately appeal because a fear of the consequences of a loss were they to take these matters to the Ninth Circuit in this particular high-profile setting.

Lengthy New Yorker piece about confidential informants

This new piece in The New Yorker discusses the harmful realities faced by some offenders working as confidential police informants. (And this NPR segment discusses the issue further).  Here is an excerptfrom the piece:

Informants are the foot soldiers in the government’s war on drugs.  By some estimates, up to eighty per cent of all drug cases in America involve them, often in active roles ....  For police departments facing budget woes, untrained C.I.s provide an inexpensive way to outsource the work of undercover officers.  “The system makes it cheap and easy to use informants, as opposed to other, less risky but more cumbersome approaches,” says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and a leading expert on informants.  “There are fewer procedures in place and fewer institutional checks on their use.”  Often, deploying informants involves no paperwork and no institutional oversight, let alone lawyers, judges, or public scrutiny; their use is necessarily shrouded in secrecy.

“They can get us into the places we can’t go,” says Brian Sallee, a police officer who is the president of B.B.S. Narcotics Enforcement Training and Consulting, a firm that instructs officers around the country in drug-bust procedures.  “Without them, narcotics operations would practically cease to function.”

Every day, offenders are sent out to perform high-risk police operations with few legal protections.  Some are juveniles, occasionally as young as fourteen or fifteen.  Some operate through the haze of addiction; others ... are enrolled in state-mandated treatment programs that prohibit their association with illegal drugs of any kind.  Many have been given false assurances by the police, used without regard for their safety, and treated as disposable pawns of the criminal-justice system.

"Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"

The title of this post is the headline of this new article by Professor Michal Buchhandler-Raphael now available via SSRN. Here is the abstract:

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change.  One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors.  One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, particularly drug offenses, significant limits on the scope of victimless crimes have not yet been adopted.  Two features characterizing criminal law account for this: first, in contrast with criminal procedure, constitutional law has not placed any significant limits on substantive criminal law, and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors.

This article proposes a constitutional constraint to limit criminalization of victimless crimes, and particularly to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs."  To accomplish this goal, the article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law.  The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity on the other.  However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash.  The article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law.

Stressing AEDPA deference, Eleventh Circuit upholds Florida law requiring defendant to prove lack of mens rea for drug crime

Long-time readers may recall the news last year of a federal habeas ruling in Shelton v. Florida DOC, No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011), finding unconstitutional the operation of Florida's criminal drug laws because it made lack of mens rea an affirmative defense for a defendant to prove rather than require state prosecutors to prove a defendant was knowingly involved in an illegal drug transaction.  Today's follow-up comes via this Eleventh Circuit ruling in Shelton, which starts this way:

A Florida state prisoner petitioned for federal habeas relief, challenging the constitutionality of a Florida statute that altered the mens rea requirement for state drug offenses.  The district court, finding a due process violation, granted relief.  We conclude that the state court did not unreasonably apply clearly established federal law, as determined by the U.S. Supreme Court, and reverse.

Here is a segment of the Eleventh Circuit panel's substantive analysis:

In order for Shelton to prevail here, he must be able to point to Supreme Court precedent clearly establishing that the Due Process Clause forbids the partial elimination of mens rea as an element of crimes analogous to those in Florida’s Drug Abuse Prevention and Control Act, beyond any possibility for fairminded disagreement.  That is a tall order, and as it happens, an impossible one....

[A] fine-grained parsing of Supreme Court precedents is unnecessary to resolve our constricted inquiry.  One very general principle can be distilled from the Court’s cases in this area: legislatures have “wide latitude . . . to declare an offense and to exclude elements of knowledge and diligence from its definition,” but they still must “act within any applicable constitutional constraints” when defining the elements of a criminal offenses.  The Court has not drawn lines around this principle sufficient to dictate a particular result of the Florida court here, especially considering that Florida’s elimination of mens rea was only partial.  The Supreme Court has acknowledged that its work in this area has only just begun, noting twice that no court “‘has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.’”  Absent a Supreme Court case directly on point or a case so closely analogous that fairminded jurists would agree that its rule must extend to the present scenario, the Court’s acknowledgment of uncertainty in this key principle effectively answers the AEDPA inquiry in Florida’s favor.

Today, we need not march through all Supreme Court cases to prove the negative that the Supreme Court has never addressed Shelton’s issue head-on, much less addressed it in his favor.  It suffices to note that only once, in Lambert v. California, has the Supreme Court held a criminal provision unconstitutional under the Due Process Clause for failing to require sufficient mens rea.  Lambert was an as-applied challenge to a Los Angeles municipal ordinance requiring felons to register with the city.  The Court held that because failing to register is “wholly passive,” the defendant lacked any notice whatsoever of her wrongdoing, violating her due process rights.  The actions criminalized by the Florida Act as amended are sufficiently distinguishable — requiring affirmative acts of selling, manufacturing, delivering, or possessing, in addition to knowledge of the presence of the substance, all with an affirmative defense of lack of knowledge available — that we cannot say the state courts were unreasonable not to import Lambert’s reasoning into this very different context.

New USSC report provides data on federal sentencing realities

The US Sentencing Commission recently published this interesting and effective little document titled simply "Overview of Federal Criminal Cases, Fiscal Year 2010." Here are one of many passages that should interest federal sentencing data junkies:

Until fiscal year 2009, drug offenses had been the most common federal crime during the 20 years for which the Commission has released sentencing data.  In fiscal year 2010, 25,043 offenders were convicted of a drug crime, the majority involving the manufacture, sale, or transportation of a drug.  Of these, 1,025 offenders were convicted of an offense involving simple possession of a drug.

Offenses involving cocaine, in either powder form or base (crack) form, were the most common drug crimes, accounting for 43.6 percent of the offenders sentenced under the Chapter Two drug guidelines.  These cases were almost evenly split between offenses involving crack cocaine (20.1%) and offenses involving powder cocaine (23.5%).

Marijuana cases were the next most common, representing 26.0 percent of all drug crimes.  In fact, marijuana cases were more prevalent than either crack cocaine or powder cocaine cases.  Drug offenses involving methamphetamine represented 17.7 percent of all drug crimes.  Heroin cases were the least common of the major drug offenses, accounting for 6.7 percent of all drug crimes.

Arkansas voters likely to have opportunity to vote on medical marijuana in 2012

This AP article, which is headlined "Ark. medical marijuana group submits signatures," reports on another state ballot initiative likely to give voters a direct opportunity to participate in pot policy reform. Here are the details:

Backers of an initiative that would legalize the use of medical marijuana in Arkansas submitted more than 74,000 additional signatures Monday to the secretary of state's office, though only about a quarter of them need to be valid to get the issue on the November ballot.

The group Arkansans for Compassionate Care was given time to gather more signatures after it submitted 65,413 names on July 5. Only 36,495 names from that batch were certified as being from registered voters, leaving organizers shy of the required 62,507 verified names.

The group's treasurer, Melissa Fults, said organizers learned more about the process after submitting its first batch of signatures. This time, she said, they made sure that volunteers and paid canvassers asked people when and where they last voted before asking them to sign the petition to help ensure the signees were registered voters. "I don't think there's much of a chance we won't" make the Nov. 6 ballot, Fults said....

Fults, of Hensley, said the group wants to convince voters that marijuana is the most appropriate treatment for some illnesses. So does Emily Williams, who said marijuana enabled her to cope with chemotherapy when she was being treated for lymphoma.

Williams, who spoke during a news conference at the Capitol with Faults' group, said she experienced constant nausea and vomiting. She said her doctor wouldn't prescribe marijuana but told her he didn't see the harm because other anti-nausea medications weren't working. "You hurt all over. Everything is just kind of black," the 55-year-old Fayetteville resident said.

Katherine Reynolds of Bella Vista said using marijuana helped her through breast cancer treatment and bone marrow transplants, explaining that it enabled her eat after hospital treatments. She said it was a necessary treatment and thought it absurd that she could be arrested for it. "If I didn't have that, I wouldn't be here talking to you," Reynolds said.

But the measure has drawn a tepid response from politicians. Gov. Mike Beebe and Attorney General Dustin McDaniel, both Democrats, have said they won't actively oppose the measure but that they probably won't vote for it. Spokesmen for Beebe and McDaniel said Monday that their positions have not changed.

The conservative Arkansas Family Council opposes the measure, arguing that marijuana is an illegal drug under federal law, which trumps state law. The group's director, Jerry Cox, didn't immediately return a message seeking comment Monday.

"Marijuana Legalization Ballot Shows To Be Favored By Colorado Voters"

The title of this post is the headline of this notable new report on a notable new poll from the state which may soon become known as the highest state for a new reason.  Here is how the story starts:

Public Policy Polling released a new poll this week showing that likely voters in Colorado are in support of Amendment 64.

Colorado Amendment 64 is an amendment to Article 18 of the Colorado state constitution. If the amendment passes, it will permist a person 21-years of age or older to consume or possess limited amounts of marijuana.  The intent of the amendment is for marijuana to be regulated in a manner similar to alcohol.

The new survey presented by PPP was of 779 likely Colorado voters.  The Huffington Post reports that the survey, conducted between the dates of August 2nd and August 5th, shows that 47% would vote for Amendment 64 to pass if the election were held right now. 38% of the voters would vote against it, and 15% of voters remain uncertain in their decision.

Back in June, the PPP conducted a similar poll. The votes for passing Amendment 64 barely outpaced the opposition 46 percent to 42 percent.  Now two months later, support for the amendment has grown to 47-38.  According to PPP, the reason for this are the independent and young voters who are increasingly in favor of legalization.

As I have suggested in prior posts, Colorado is shaping up to be ground-zero for debate and discussion about pot policy.  These new polling data, and especially the apparent affinity that independent and young voters have for pot legalization, confirms my belief that national candidates in both political parties would be wise to develop ASAP a nuanced set of policy positions concerning how the federal government might respond if (and when?) this Colorado ballot initiative were to pass.

Some recent and older related posts on pot policies and politics: 

• New astute articles on the modern realities of pot politics, policies and practices
• When and how might pot prohibition or federal pot policy enter the 2012 Prez campaign?
• Two notable new pieces on pot policy debates coming to mainstream politics
• Colorado the new "ground zero" for debates over pot prohibitions and policies
• "Medical Marijuana in Colorado and the Future of Marijuana Regulation in the United States"
• "Bummer: Barack Obama turns out to be just another drug warrior"
• A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
• Marijuana legalization advocate getting warm reception at CPAC
• Could Romney appeal to independents and minorities with bold crime and punishment vision?

UPDATE:  Another state to watch on this front is Washington, and here is a notable new AP article on its marijuana reform ballot initiative.  The piece is headlined, "Legalizing marijuana could bring in $2 billion for Washington," and here is how it begins: "The state's latest financial analysis says legalizing and taxing marijuana could bring Washington as much as nearly $2 billion over the next five years — or as little as nothing."