Friday, February 13, 2015

Is a federal judge about to declare unconstitutional federal marijuana law? And then what?

The question in the title of this post is prompted by this Reuters report on an on-going federal criminal trial in California. Here is why:

A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.

Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.

"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.

The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.

In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.

Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.

But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."

Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.

Cross-posted at Marijuana Law, Policy and Reform

February 13, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, February 07, 2015

Early February highlights from Marijuana Law, Policy and Reform

Though it has not been too long since my last round-up of notable new posts from Marijuana Law, Policy and Reform, I have been posting various topics that may be of interest to regular readers of this blog:

February 7, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Thursday, January 29, 2015

Some end-of-month highlights from Marijuana Law, Policy and Reform

Though it has been less than two weeks since my last round-up of notable new posts from Marijuana Law, Policy and Reform, a lot of cannabis commotion justifies another link review:

January 29, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Sunday, January 18, 2015

Long weekend highlights from Marijuana Law, Policy and Reform

Though it has only been about ten days since I last provided a round up of notable new posts from Marijuana Law, Policy and Reform, an important new report from the RAND Corporation along with lots of other cannabis commotion calls for another link review:

As hinted above, I think this big new RAND report seeking to take stock of the potential benefits and costs of various marijuana reform options for Vermont and other states is a must-read for anyone concerned about marijuana reform (pro or con).  Here is a paragraph from the report's abstract:

The principal message of the report is that marijuana policy should not be viewed as a binary choice between prohibition and the for-profit commercial model we see in Colorado and Washington.  Legalization encompasses a wide range of possible regimes, distinguished along at least four dimensions: the kinds of organizations that are allowed to provide the drug, the regulations under which those organizations operate, the nature of the products that can be distributed, and price.  These choices could have profound consequences for health and social well-being, as well as job creation and government revenue.

January 18, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (0) | TrackBack

Thursday, January 08, 2015

Early 2015 highlights from Marijuana Law, Policy and Reform

In this recent post, I called 2014 the most interesting and dynamic year in modern history for reform and debate over marijuana laws and policies and then provided some 2014 highlights from my Marijuana Law, Policy & Reform blog.  Even though 2015 is barely a week old, the round up below of notable new posts from MLP&R highlights that the buzz over marijuana policy is likely only to grow in the weeks and months ahead:

January 8, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Wednesday, December 31, 2014

Some (incomplete) year-in-review highlights from Marijuana Law, Policy & Reform

PotIt seems fair to call 2014 the most interesting and dynamic year in modern history for reform and debate over marijuana laws and policies.  It would be impossible to completely summarize the "year in pot" in one post, but linking here to some seasonal highlights from Marijuana Law, Policy & Reform perhaps provides at least a flavor of what has transpired on the cannabis front:

Winter 2014:

 Spring 2014:

Summer 2014:

Fall 2014:

And, last but not least, for some posts focused on reviewing the year that was, check out:

December 31, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Wednesday, December 24, 2014

Some recent highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I have done a round up of notable new posts from Marijuana Law, Policy and Reform, so here goes: 

December 24, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Friday, December 19, 2014

Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?

As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."  I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma.  And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court. 

This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug.  Here are passages from the filing to that end:

Congress has classified marijuana as a Schedule I drug.  21 U.S.C. § 812(c).  Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....

Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”

There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.

Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.

I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.

Recent related post:

Cross-posted at Marijuana Law, Policy and Reform

December 19, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, December 18, 2014

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution."  Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Via the Denver Post, the 83-page SCOTUS filing can be found at this link.

Wowsa (and cross-posted at Marijuana Law, Policy and Reform)!

December 18, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, December 17, 2014

Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?

Images (6)As reported in this post yesterday, an astute lawyer in California sought (and, I now know, obtained) a significant postponement of his client's scheduled federal marijuana sentencing based on a provision in H.R. 83, the 1700-page Cromnibus spending bill, which directs the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes.  Specifically, Section 538 of the Cromnibus states, in relevant part:

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Though this provision (which was officially signed into law by President Obama on Tuesday) is rightly being hailed as historic, what exactly Section 538 of the Cromnibus means formally and functionally for the Department of Justice and federal marijuana prohibition is anything but obvious or clear.  For starters, this provision is a funding directive to DOJ, not a formal restriction on DOJ activities, and it is unclear how such a provision is to be administered or enforced.  Moreover, this provision plainly does not provide a formal right or even permission for individuals under federal law to be involved in the "use, distribution, possession, or cultivation of medical marijuana."  Indeed, given that federal law currently has marijuana listed as a Schedule I drug, the very use of the term "medical marijuana" in this Section 538 of the Cromnibus is somewhat oxymoronic as a new phrase in the federal legal nomenclature.

That all said, the enactment of formal federal law ordering that DOJ not use funds to prevent the implementation of state medical marijuana laws clearly means something significant not only in states that have medical marijuana laws but throughout the nation.  In particular, as the question in the title of this post is meant to connote, I think this congressional approval (of sorts) of state medical marijuana laws should have a tangible (and perhaps significant) impact on any and all federal marijuana sentencings scheduled for the weeks and months ahead.

The specific instructions of 18 U.S.C. § 3553(a) tells federal judges that they must consider at sentencing, inter alia, "the nature and circumstances of the offense" as well as the "need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."  Even before the passage of Section 538 of the Cromnibus, I thought it was appropriate for a judge at a federal marijuana sentencing to consider based on these provisions a defendant's claim that he was in compliance with state medical marijuana laws.  But DOJ in the past could respond by reasonably asserting that Congress would not want a federal judge for federal sentencing purposes to inquire into any claims of state-law compliance.  

Now that Section 538 of the Cromnibus is official federal law, I believe every federal judge at any future federal marijuana sentencings should feel duty-bound to examine the particulars of a defense claim of compliance with state medical marijuana laws.  In light of what Congress enacted, consideration of claimed compliance with state medical marijuana laws seems essential to "promote respect for the law" as well as to stake proper stock of "the nature and circumstances of the offense" and "just punishment for the offense."

Moreover, I think some viable sentencing arguments might now be made based on Section 538 on behalf of some federal marijuana defendants even in the 18 states that have not yet enacted medical marijuana reforms.  If a federal defendant can reasonably assert, even in a non-reform state, that he was (mostly? somewhat? a little?) involved in distribution of marijuana for medical purposes, he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions.

Critically, I am not contending (yet) that Section 538 of the Cromnibus must or even should have a direct and substantial impact on federal marijuana sentencings in reform or non-reform states.  But I am contending that, thanks to Section 538 of the Cromnibus, there are now a lot more federal sentencing issues that need to be subject to a lot more thought before federal judges move ahead with the roughly 100 federal marijuana sentencings that take place throughout the US every week.

In sum, to answer my own question in the title of this post, I would say simple YES.

Some previous related posts:

December 17, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, December 16, 2014

Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws

California Attorney Ronald Richards today sent me a copy of a fascinating emergency motion he filed this week that seeks a postponement of his client's scheduled federal marijuana sentencing today. Here are excerpts from the four-page memorandum in support of the motion (which can be downloaded below) which highlights why I find it fascinating:

Rarely in any counsel’s career has he or she had to file an emergency motion.  However, in the world of marijuana laws, the landscape keeps changing; this time, on a historic level. On Saturday night, the United States Senate voted to approve H.R. 83.  This is a 1696 page spending bill.  In the bill, section 538 forbids the use of money by the Department of Justice for interfering with State laws that allow cultivation of marijuana....

In this case, if the Department of Justice is mandated to not spend any money on interfering with lawful marijuana cultivations implementing state law, the raids, the seizures, and the federal prosecution will come to a halt in California.  In addition, if the scheduling is attacked by the litigation in the Eastern District and changed, there are just too many signals that the 77 years of marijuana prohibition may be coming to an end.  At least, there is not a direct policy mandate from Congress.  It is no different than a highway withholding funding to keep speeds under 80 MPH or at 55 MPH during the energy crisis....

If this bill is signed by the President, which all indications are that he will sign it or the government will shut down, it will become law and policy.  The Department of Justice could not in either the spirit or the letter of the law allocate any further staff, investigation, or budget to continue to prosecute this case.  Furthermore, all future prosecutions of legal California cultivators would cease to exist....

Based upon the historic passage by the House and the Senate of H.R. 83, the defendant requests a 90 day adjournment of his sentence.  If the bill becomes law, he will move to withdraw his plea or file a stipulation to that effect with the government.  It would be unfair for him to be burdened with a felony conviction and incarceration when in just two weeks, all the current cultivators in this State would enjoy the new found relief provided by the Congressional mandate.

Download Motion to postpone federal MJ sentencing in California

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Survey: Teen marijuana use declines even as states legalize"

The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws.  Here are the basics:

Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.

"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.

After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.

Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.

Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.

Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."

Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....

Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....

"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."

Cross-posted at Marijuana Law, Policy & Reform

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Monday, November 24, 2014

Pleased to see Marijuana Law, Policy & Reform make the ABA's Blawg 100

I am pleased and intrigued to see that the ABA Journal's annnual Blawg 100, which once gave lots of love to this blog (see here and here and here and here), has now decided to give some love to my other main blog, Marijuana Law, Policy & Reform.  All the details of the ABA's latest Blawg 100 can be found here, and MLP&R appears under the Profs category with this description:

With all due respect to the revered Sentencing Law and Policy blog, this year we wanted to showcase Ohio State law professor Douglas Berman's latest.  Now that marijuana is legal for recreational purposes in Alaska, Colorado, Oregon, Washington state and Washington, D.C, new legal issues are sprouting up.  Berman points readers to news coverage and podcasts discussing the mainstreaming of marijuana and its legal ramifications.

As I have noted in the past, it is an honor just to be nominated. I am especially hopeful that the ABA Journal's recognition serves as yet another marker of the importance and legitimacy of serious discussion of the many law and policy issues surrounding modern marijuana reform movements.  Also, my occasional co-bloggers Professor Alex Kreit and Professor Rob Mikos deserve credit and thanks for helping to elevate the substance and style of MLP&R.

November 24, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Wednesday, November 19, 2014

Some recent highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I have done a round up of notable new posts from Marijuana Law, Policy and Reform, so here goes: 

November 19, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (2) | TrackBack

Wednesday, November 12, 2014

Federal judge wonders if marijuana sentencing should be impacted by state reforms

As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:

U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."

"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.

Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.

"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?

"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.

November 12, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, November 05, 2014

Awaiting results from the Last Frontier, marijuana reform initiatives getting majority support

I am about to call it a night now that a few hours have passed since Election Day 2014 ended, but I am eager to note before I do that marijuana reform had a pretty good day at the polls.  A legalization initiative won big in DC, and another won confortably in Oregon, and a medical marijuana initiative garnered 58% of the vote in Florida though did not make the 60% level needed to become law.  And, in the Last Frontier, a legalization initiative is leading as of this writing.  For all the details and some early coverage, check out posts and links Over at Marijuana Law, Policy & Reform:

November 5, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 04, 2014

Will Election 2014 speed up or slow down the marijuana reform movement?

This new Quartz piece, headlined "However the US votes on marijuana today, it’s 2016 that really matters," highlights that the marijuana reform movement will march on even if voters this election cycle reject various reform initiatives now on the ballot: 

There are three marijuana ballot initiatives in today’s midterm elections — in Alaska, Oregon and Washington DC — where voters will decide on outright legalization of recreational marijuana.  In a fourth ballot, in Florida, voters will vote on a proposed amendment to the state’s constitution, which would legalize medical marijuana.  Initiative 71 in the nation’s capital is the only ballot that looks certain to pass. The remaining three are expected to go down to the wire.

While passage of these ballots could potentially signal growing momentum for the pro-marijuana legalization movement nationally, marijuana advocates are looking to the 2016 general elections as a more accurate barometer of where they stand within the American cultural and political mainstream.  The reason being is that more younger and minority voters — groups who polls show support marijuana legalization in higher numbers — vote during quadrennial general elections, while the electorate tends to be older and more conservative in the midterms.

At least five US states — Arizona, California, Maine, Massachusetts and Nevada — will hold ballot initiatives in 2016.  And the diverse political makeup of those states, from the conservative battleground of Arizona to the liberal hotbed of Massachusetts, means that success at the ballot box would show that legalization spans the political and ideological spectrum, says Mason Tvert, spokesperson for the Marijuana Policy Project.  “Whatever happens Tuesday, we don’t see a step backwards for the movement going into 2016,” Tvert tells Quartz.  “Public opinion is on our side, it is only going in one direction, and that is toward an end to marijuana prohibition in this country.”

Though it is a near certainty that marijuana reform issues will be an even bigger part of the political conversation in 2016 than in 2014, I expect the final voting results in Alaska, Florida, Oregon and Washington DC will have a huge impact on the tenor and tenacity of those advocate pushing for and resisting reform. If most of the reform initiatives pass in this year, advocates for reform will be able to continue a narrative of legalization's inevitability it will become every harder for serious candidates for state and federal offices to avoid discussing this issue. But if all of these initiatives fail, opponents of reform can and will assert that the voters are already starting to turn away from supporting legalization now that they are seeing what it really means in a few states.

Over at Marijuana Law, Policy & Reform, I have completed this series of posts on the dynamics in play in the three states with big reform initiative on the ballot:

November 4, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, November 02, 2014

Interesting review of the (too cautious?) work of California's Attorney General

Images (1)The Los Angeles Times has this notable review of the tenure and work of Califronia's Attorney General. Here are excerpts:

Kamala D. Harris, California's top law enforcement officer, had little to say in July when an Orange County federal judge declared the state's death penalty system unconstitutional.  Several weeks later, Harris announced that she would challenge the decision, but her reasoning was curious: The ruling, she said, "undermines important protections that our courts provide to defendants."

That she delayed making her views known — and then used a liberal justification to explain a response sought by conservatives — has fueled a perception that Harris is reluctant to stake out positions on controversial issues....

On the conservative side, Kent Scheidegger of the Criminal Justice Legal Foundation said Harris "hasn't done anything really bad but also hasn't been the vigorous leader California needs.…  [Former Republican Atty. Gen.] Dan Lungren would have been out the next day denouncing the opinion and vowing to take it to the Supreme Court."

Harris, 49, bristles at the suggestion that she is afraid to take stands.  "On the issue of same-sex marriage, my position was very clear," Harris said in a recent interview.  She was referring to her refusal to defend Proposition 8, the 2008 ballot measure limiting matrimony to one man and woman, which was struck down in court....

During her time as attorney general, Harris has used the office to draw attention to transnational crime, recidivism and truancy.  She also has created units to focus on cyber-crime and cyber-privacy.  In deciding to appeal the ruling against the death penalty, which excoriated the system for decades-long delays, Harris said she was moved by concern that appeals might be streamlined "at the expense of due process" — meaning the protection of inmates' rights.  In his decision, however, U.S. District Judge Cormac J. Carney had not suggested that defendants' protections should be curtailed.  He pointed to a study that blamed logjams in the system on various factors.

Although Harris personally opposes the death penalty, her aides have emphasized that she would vigorously defend the law.  If the U.S. 9th Circuit Court of Appeals agrees with Carney, Harris then would have to decide whether to appeal to the Supreme Court.  If she decided against an appeal, the death penalty in California would probably end.  "We will have to see what the court rules," Harris said, without elaborating on her thinking.

She delighted death penalty supporters Wednesday by appointing Gerald Engler, a longtime assistant attorney general and former county prosecutor, to head the office's criminal division.  Scheidegger, a strong proponent of executions, called the choice "an out-of-the park home run."

When she first ran for attorney general four years ago, Harris barely defeated former Los Angeles Dist. Atty. Steve Cooley, who had heavy backing from law enforcement. Today, police groups back Harris.  "She has not let her personal views undermine the constitutional role of the office," said John Lovell, a lobbyist for the California Police Chiefs Assn., which has endorsed her. "She has been very accessible and she has a real problem-solving, analytical style."...

[Her Republican opponent Ron] Gold has blasted her for failing to take a stand on the legalization of marijuana. He favors legalization, while Harris has not made up her mind. "She does not take chances," Gold said. "AG for her doesn't mean 'attorney general.' It means 'almost governor.'"

Harris attributes her reticence to a desire for more information. She said she wants to review Washington's and Colorado's experiences with legalization before deciding whether it would be good for California. "It would be irresponsible for me as the chief law enforcement officer to take a position based on its popularity without thinking it would actually work," Harris said.

She backed the legalization of marijuana for medical needs, but has done little to clarify the law or push for regulation, activists complain. "She has been largely absent" from efforts in Sacramento to establish regulations, said Alex Kreit, a professor at Thomas Jefferson School of Law in San Diego and author of a textbook on drug law. "It's less about trying to be middle of the road and more about not rocking the boat."

November 2, 2014 in Death Penalty Reforms, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, October 27, 2014

Notable new Cato working paper examines "Marijuana Policy in Colorado"

Dr. Jeffrey Miron, who is director of economic studies at the Cato Institute and director of undergraduate studies in the Department of Economics at Harvard University, has just produced this significant new Cato working paper titled "Marijuana Policy in Colorado."  The paper is relatively short, though it includes lots of data, and here is its Executive Summary and its closing paragraphs:

In November 2012, voters in the states of Colorado and Washington approved ballot initiatives that legalized marijuana for recreational purposes.  Alaska, Oregon, and the District of Columbia are scheduled to consider similar measures in the fall of 2014, and other states may follow suit in the fall of 2016.

Supporters and opponents of such initiatives make numerous claims about state-level marijuana legalization.  Advocates believe legalization reduces crime, raises revenue, lowers criminal justice expenditure, improves public health, improves traffic safety, and stimulates the economy.  Critics believe legalization spurs marijuana use, increases crime, diminishes traffic safety, harms public health, and lowers teen educational achievement.  Systematic evaluation of these claims, however, has been absent.

This paper provides a preliminary assessment of marijuana legalization and related policies in Colorado.  It is the first part of a longer-term project that will monitor state marijuana legalizations in Colorado, Washington, and other states.

The conclusion from this initial evaluation is that changes in Colorado’s marijuana policy have had minimal impact on marijuana use and the outcomes sometimes associated with use.  Colorado has collected non-trivial tax revenue from legal marijuana, but so far less than anticipated by legalization advocates....

The evidence provided here suggests that marijuana policy changes in Colorado have had minimal impact on marijuana use and the outcomes sometimes associated with use.  This does not prove that other legalizing states will experience similar results, nor that the absence of major effects will continue.  Such conclusions must await additional evidence from Colorado, Washington, and future legalizing states, as well as more statistically robust analyses that use non-legalizing states as controls.

But the evidence here indicates that strong claims about Colorado’s legalization, whether by advocates or opponents, are so far devoid of empirical support.

Cross-posted at Marijuana Law, Policy & Reform

October 27, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Friday, October 24, 2014

Election season round-up of posts on pot politics from Marijuana Law, Policy and Reform

For various reasons and in various ways, I find the politics of modern marijuana reform even more interesting than its policies and practicalities. Consequently, a number of my recent posts at Marijuana Law, Policy and Reform have focused on political developments and discourse in those states with significant reform proposals on the ballot in 2014.  As this election season now kicks into its final stretch, I thought it useful to collect some of these posts in this space:

As time and energy permits, I am hoping soon to start a series of posts on pot politics circa 2014 over at Marijuana Law, Policy and Reform  in order to explain why I think the results of this election season in a Alaska, Florida and Oregon are likely to have a huge impact on marijuana policy and national politics in the coming years.

October 24, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Thursday, October 16, 2014

"Is Hillary Clinton ready for marijuana's 2016 push?"

The title of this post is the headline of this notable and lengthy new CNN article.  Here are excerpts:

When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug.  In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.

Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal.  It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.

"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance.  "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."

Demographics and money are also an important consideration.  Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.

On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.

"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.  "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...

Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.

Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."

"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."

This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."

Cross-posted at Marijuana Law, Policy & Reform

October 16, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, October 02, 2014

Intriguing new research on criminal justice impact of distinct marijuana reforms

Marijuana_comparison_Max.286.0The Center on Juvenile and Criminal Justice has produced this interesting new research report titled "Reforming Marijuana Laws: Which Approach Best Reduces The Harms Of Criminalization? A Five-State Analysis." Here is what the report's Introduction:

The War on Marijuana is losing steam. Policymakers, researchers, and law enforcement are beginning to recognize that arresting and incarcerating people for marijuana possession wastes billions of dollars, does not reduce the abuse of marijuana or other drugs, and results in grossly disproportionate harms to communities of color.  Marijuana reforms are now gaining traction across the nation, generating debates over which strategies best reduce the harms of prohibition.

Should marijuana be decriminalized or legalized?  Should it be restricted to people 21 and older?  Advocates of the latter strategy often argue their efforts are intended to protect youth.  However, if the consequences of arrest for marijuana possession — including fines, jail time, community service, a criminal record, loss of student loans, and court costs — are more harmful than use of the drug (Marijuana Arrest Research Project, 2012), it is difficult to see how continued criminalization of marijuana use by persons under 21 protects the young.  Currently, people under 21 make up less than one-third of marijuana users, yet half of all marijuana possession arrests (ACLU, 2013; Males, 2009).

This analysis compares five states that implemented major marijuana reforms over the last five years, evaluating their effectiveness in reducing marijuana arrests and their impact on various health and safety outcomes.  Two types of reforms are evaluated: all-ages decriminalization (California, Connecticut, and Massachusetts), and 21-and-older legalization (Colorado and Washington).  The chief conclusions are:

• All five states experienced substantial declines in marijuana possession arrests.  The four states with available data also showed unexpected drops in marijuana felony arrests.

• All-ages decriminalization more effectively reduced marijuana arrests and associated harms for people of all ages, particularly for young people.

• Marijuana decriminalization in California has not resulted in harmful consequences for teenagers, such as increased crime, drug overdose, driving under the influence, or school dropout.  In fact, California teenagers showed improvements in all risk areas after reform.

• Staggering racial disparities remain— and in some cases are exacerbated — following marijuana reforms.  African Americans are still more likely to be arrested for marijuana offenses after reform than all other races and ethnicities were before reform.

• Further reforms are needed in all five states to move toward full legalization and to address racial disparities

Cross-posted at Marijuana Law, Policy & Reform

October 2, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Sunday, September 28, 2014

Another round of highlights from Marijuana Law, Policy and Reform

It seems like a good time to do another round up of notable bew posts from Marijuana Law, Policy and Reform, so here goes: 

September 28, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Tuesday, September 23, 2014

"Banks, Marijuana, and Federalism"

The title of this post is the title of this new paper by Julie Andersen Hill now available via SSRN.  Here is the abstract:

Although marijuana is illegal under federal law, twenty-three states have legalized some marijuana use. The state-legal marijuana industry is flourishing, but marijuana-related businesses report difficulty accessing banking services.  Because financial institutions won’t allow marijuana-related businesses to open accounts, the marijuana industry largely operates on a cash only basis — a situation that attracts thieves and tax cheats.

This article explores the root of the marijuana banking problem as well as possible solutions.  It explains that although the United States has a dual banking system comprised of both federal- and state-chartered institutions, when it comes to marijuana banking, federal regulation is pervasive and controlling.  Marijuana banking access cannot be solved by the states acting alone for two reasons.  First, marijuana is illegal under federal law. Second, federal law enforcement and federal financial regulators have significant power to punish institutions that do not comply with federal law.  Unless Congress acts to remove one or both of these barriers, most financial institutions will not provide services to the marijuana industry.  But marijuana banking requires more than just Congressional action. It requires that federal financial regulators set clear and achievable due diligence requirements for institutions with marijuana business customers.  As long as financial institutions risk federal punishment for any marijuana business customer’s misstep, institutions will not provide marijuana banking.

Cross-posted at Marijuana Law, Policy and Reform.

September 23, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Saturday, September 20, 2014

Recent highlights from Marijuana Law, Policy and Reform

Since it has once again been a few weeks since I did a round-up of recent posts from Marijuana Law, Policy and Reform, here goes:

September 20, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Thursday, September 11, 2014

"Marijuana, Federal Power, and the States"

The title of this post is the title of the exciting symposium taking place all day tomorrow, Friday, September 12, at Case Western Reserve University School of Law.  The website for the event with the full schedule of speakers is available at this link (including a webcast link), and the website sets up the event with this overview:

In 2013 voters in Colorado and Washington legalized the possession of marijuana under state law. Several other states allow the possession and use of marijuana for medicinal purposes, and others appear ready to follow suit. Yet marijuana remains illegal under federal law.  The federal governmental has not sought to preempt these decisions, and has outlined a new enforcement policy that largely defers to state law enforcement.
Nonetheless, the conflict between federal and state laws creates legal difficulty for business owners, financial institutions, and local law enforcement.  Is this dual regime sustainable? Should the federal government defer to state electorates on marijuana policies? Is drug policy best made at the federal or state level?  How should principles of federalism inform the federal government’s response to state initiatives on marijuana? Prominent academics will consider these and related questions raised by state-level marijuana policy reforms.

Professor Jonathan Adler, along with Case's Center for Business Law and Regulation, has brought together for this event nearly all of the leading legal and policy scholars doing research and work on these topics.  I am heading up to Cleveland right after I finish this post and I am very excited to be a part of this great event.

September 11, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, September 01, 2014

Lots more highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I did a round-up of recent posts at Marijuana Law, Policy and Reform. Here are some of the latest posts from a a variety of bloggers, with my own little bit of organization added in:

General research and commentary


State-specific research and developments


Campaign 2014 advocacy and developments


Special series by Prof Mikos on "The Local Option"

September 1, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, August 28, 2014

How should governments approach a product that research suggests reduces overdose deaths, domestic violence and Alzheimer's?

The question in the title of this post is prompted by this week's research news indicating, as reported in recent posts here and here, that reform of marijuana prohibition and/or marijuana use might alleviate some of biggest social ills and public health concerns in the United States.

In a prior post, I noted that I have been trying to avoid claiming that marijuana reform likely can and will improve many social ills and that marijuana is some kind of magical wonder drug.  But upon seeing this notable new FoxNews piece, headlined "Marijuana compound may slow, halt progression of Alzheimer's," it is now that much harder for me to resist suggesting that marijuana reform could very well end up being a real boon for public health.  

Perhaps even more importantly, as the question in the title of this post highlights, I think it is now becoming especially difficult for government officials and bureaucrats to keep saying seriously and aggressively that even considering the reform of marijuana prohibition is obviously dangerous and is sure to result in profound public health problems.  I certainly understand and appreciate and respect concerns of anti-drug advocates who, I believe in good-faith, fear the potential consequences of wide-spread repeal of marijuana prohibition.  But, especially in light of the growing research suggesting marijuana reform may do a whole lot more good than harm, I hope prohibitionist might become a bit more open-minded about array of positives that might come from smart, good-government, liberty-enhancing reforms in this arena.

August 28, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, August 26, 2014

Two positive reports on positive public health results from marijuana reform and use

My Google news feed with marijuana headlines was topped this morning with these two notable reports about research suggesting both legal reform and usage can have positive public health consequences:

I am strongly trying to resist the impulse to claim that marijuana reform can and will improve many social ills and that marijuana is some kind of magical wonder drug.  Nevertheless, it is hard not to get excited about the results of the research reported above.  Of particular note, the study concerning opiate overdoses, which is available in full here and is titled "Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010," is published in the highly-respected JAMA Internal Medicine journal.

August 26, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Thursday, August 21, 2014

After Ferguson, can and should marijuana legalization and drug war reform become a unifying civil rights movement?

The-New-Jim-CrowThe question in the title of this post is prompted in part by my own uncertainty concerning the fitting public policy responses to the events in Feguson this month and in part by this potent and provocative new Huffington Post piece by Jelani Hayes headlined "Ending Marijuana Prohibition Must Take a Historical Perspective."  Here are excerpts from the commentary (with links from the original):  

Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control.  Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.

Cannabis prohibition did all three.  The [New York] Times editorial board dedicated an entire article to explaining this phenomenon.  Part 3 of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...

Additionally, business interests play a part in keeping cannabis illegal.  Some pharmaceutical companies, drug-prevention nonprofits, law enforcement agencies, and the private prison industry have an economic interest in criminalization, what is known as the drug control industrial complex. It pays big to help fight the war on drugs, and marijuana prohibition is a crucial facet of that effort. The Nation has recently called these interests "The Real Reason Pot is Still Illegal."

The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.

The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence.  Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities.  Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.

Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done.  She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction.  "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said.  "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year.  And I feel like, here we go again."

Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs.  Therefore, our solution to it can't be either.

We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....

In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression  — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.

Regular readers likely know that I see marijuana and drug sentencing reform efforts as tied to a broader civil rights movement (and not just for people of color). But, especially in the wake of what has transpired this month in Ferguson, I am getting especially drawn to the idea that appropriate public policy response is to connect criminal justice reform efforts to civil rights messages and history as this HuffPo commentary urges.

A few (of many) recent and older related posts (some from Marijuana Law, Policy & Reform):

August 21, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Saturday, August 16, 2014

Recent highlights from Marijuana Law, Policy and Reform

It has been a few weeks since I did a round-up of recent posts at Marijuana Law, Policy and Reform, so here goes:

August 16, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Saturday, August 09, 2014

Early data from Colorado suggest teenage use of marijuana is down since legalization

I have tended to assume that teenage use of marijuana would likely increase in the wake of legalization in Colorado, but the early data suggest a reduction in teenager use of marijuana since the stuff became legal for adults.  This recent news report, headlined "Pot Use Among Colorado Teens Appears to Drop After Legalization," provides these details:

Marijuana use among Colorado high school students appears to be declining, despite the state’s pioneering voter-approved experiment with legalization. According to preliminary data from the state’s biennial Healthy Kids Colorado Survey, in 2013 - the first full year the drug was legal for adults 21 and older - 20 percent of high school students admitted using pot in the preceding month and 37 percent said they had at some point in their lives.

The survey’s 2011 edition found 22 percent of high school students used the drug in the past month and 39 percent had ever sampled it. It’s unclear if the year-to-year decline represents a statistically significant change, but data from 2009 suggests a multiyear downward trend. That year 25 percent of high school kids said they used pot in the past month and 45 percent said they had ever done so.

The data released Thursday by the Colorado Department of Public Health and Environment also appears to show post-legalization pot use among Colorado teens was lower than the national average....

Supporters of marijuana legalization argue underage use will shrink as states impose strict age limits. Opponents of legalization, meanwhile, fear that declining perceptions of harm associated with the drug will lead to an uptick in teen use. According to the data released Thursday, students surveyed do have a lowered perception of harm - 54 percent perceived a moderate or great risk in using the drug, down from 58 percent in 2011 - but use did not increase.

“Once again, claims that regulating marijuana would leave Colorado in ruins have proven to be unfounded,” Marijuana Policy Project Communication Director Mason Tvert said in a statement. “How many times do marijuana prohibition supporters need to be proven wrong before they stop declaring our marijuana laws are increasing teen use?”

Tvert, co-director of Colorado’s successful Amendment 64 legalization campaign, said “the drop in teen use reflects the fact that state and local authorities have far more control over marijuana than ever before.” He argues “our goal should not be increasing teens’ perception of risk surrounding marijuana. It should be increasing teens’ knowledge of the actual relative harms of marijuana, alcohol, and other substances so that they can make smart decisions."

Foes of legalization haven't thrown in the towel. "No statistician would interpret that as being a decline," Kevin Sabet, co-founder of the anti-legalization group Smart Approaches to Marijuana, says of the 2 percentage point year-to-year drop. Sabet says it will be important to review county-level data when full survey results are released later this year and points out that state-licensed stores were not open in 2013.

August 9, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Tuesday, August 05, 2014

Notable discussion of traffic fatalities in Colorado after marijuana legalization

Radley Balko has this notable new Washington Post piece headlined "Since marijuana legalization, highway fatalities in Colorado are at near-historic lows." The full piece merits a full read for those thinking about the potential public safety impact of marijuana, and here are excerpts:

It makes sense that loosening restrictions on pot would result in a higher percentage of drivers involved in fatal traffic accidents having smoked the drug at some point over the past few days or weeks. You’d also expect to find that a higher percentage of churchgoers, good Samaritans and soup kitchen volunteers would have pot in their system. You’d expect a similar result among any large sampling of people. This doesn’t necessarily mean that marijuana caused or was even a contributing factor to accidents, traffic violations or fatalities.

This isn’t an argument that pot wasn’t a factor in at least some of those accidents, either. But that’s precisely the point. A post-accident test for marijuana metabolites doesn’t tell us much at all about whether pot contributed to the accident....

It seems to me that the best way to gauge the effect legalization has had on the roadways is to look at what has happened on the roads since legalization took effect.... [R]oadway fatalities this year are down from last year, and down from the 13-year average. Of the seven months so far this year, five months saw a lower fatality figure this year than last, two months saw a slightly higher figure this year, and in one month the two figures were equal....

What’s notable here is that the totals so far in 2014 are closer to the safest composite year since 2002 than to the average year since 2002. I should also add here that these are total fatalities. If we were to calculate these figures as a rate — say, miles driven per fatality — the drop would be starker, both for this year and since Colorado legalized medical marijuana in 2001. While the number of miles Americans drive annually has leveled off nationally since the mid-2000s, the number of total miles traveled continues to go up in Colorado. If we were to measure by rate, then, the state would be at lows unseen in decades.

The figures are similar in states that have legalized medical marijuana. While some studies have shown that the number of drivers involved in fatal collisions who test positive for marijuana has steadily increased as pot has become more available, other studies have shown that overall traffic fatalities in those states have dropped. Again, because the pot tests only measure for recent pot use, not inebriation, there’s nothing inconsistent about those results....

Of course, the continuing drop in roadway fatalities, in Colorado and elsewhere, is due to a variety of factors, such as better-built cars and trucks, improved safety features and better road engineering. These figures in and of themselves only indicate that the roads are getting safer; they don’t suggest that pot had anything to do with it. We’re also only seven months in. Maybe these figures will change. Finally, it’s also possible that if it weren’t for legal pot, the 2014 figures would be even lower. There’s no real way to know that. We can only look at the data available. But you can bet that if fatalities were up this year, prohibition supporters would be blaming it on legal marijuana.

August 5, 2014 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Sunday, August 03, 2014

Round-up some more potent posts from Marijuana Law, Policy and Reform

Not surprisingly, the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here) has generated lots of buzz.  And, as demonstrated by this round-up of recent posts at Marijuana Law, Policy and Reform, lots of folks are talking about lots of issues in addition to the points being raised by the NYTimes:

August 3, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, July 31, 2014

More potent reviews of criminal justice data via the Washington Post's Wonkblog

WonkIn this post last week, titled " "There’s little evidence that fewer prisoners means more crime," I made much of some recent postings on the Washington Post Wonkblog and suggested that sentencing fans ought to make a habit of checking out Wonkblog regularly.  This set of new posts at that blog reinforce my views and recommendation:

Though all these posts merit a close read, I especially recommend the first one linked above, as it meticulously details all significant problems with all the "science" claims made by the federal government to justify marijuana prohibition. Here is how that piece it gets started:

The New York Times editorial board is making news with a week-long series advocating for the full legalization of marijuana in the United States. In response, the White House's Office of National Drug Control Policy (ONDCP) published a blog post Monday purporting to lay out the federal government's case against marijuana reform.

That case, as it turns out, it surprisingly weak. It's built on half-truths and radically decontextualized facts, curated from social science research that is otherwise quite solid. I've gone through the ONDCP's arguments, and the research behind them, below.

The irony here is that with the coming wave of deregulation and legalization, we really do need a sane national discussion of the costs and benefits of widespread marijuana use. But the ONDCP's ideological insistence on prohibition prevents them from taking part in that conversation.

July 31, 2014 in Data on sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, July 30, 2014

"The Federal Marijuana Ban Is Rooted in Myth and Xenophobia"

The title of this post is the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here).  Here are excerpts:

The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria during the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that is it almost impervious to reason.

The cannabis plant, also known as hemp, was widely grown in the United States for use in fabric during the mid-19th century. The practice of smoking it appeared in Texas border towns around 1900, brought by Mexican immigrants who cultivated cannabis as an intoxicant and for medicinal purposes as they had done at home....

The law enforcement view of marijuana was indelibly shaped by the fact that it was initially connected to brown people from Mexico and subsequently with black and poor communities in this country. Police in Texas border towns demonized the plant in racial terms as the drug of “immoral” populations who were promptly labeled “fiends.”

As the legal scholars Richard Bonnie and Charles Whitebread explain in their authoritative history, “The Marihuana Conviction,” the drug’s popularity among minorities and other groups practically ensured that it would be classified as a “narcotic,” attributed with addictive qualities it did not have, and set alongside far more dangerous drugs like heroin and morphine.

By the early 1930s, more than 30 states had prohibited the use of marijuana for nonmedical purposes. The federal push was yet to come. The stage for federal suppression of marijuana was set in New Orleans, where a prominent doctor blamed “muggle-heads” — as pot smokers were called — for an outbreak of robberies. The city was awash in sensationalistic newspaper articles that depicted pushers hovering by the schoolhouse door turning children into “addicts.” These stories popularized spurious notions about the drug that lingered for decades.

Law enforcement officials, too, trafficked in the “assassin” theory, under in which killers were said to have smoked cannabis to ready themselves for murder and mayhem.

In 1930, Congress consolidated the drug control effort in the Federal Bureau of Narcotics, led by the endlessly resourceful commissioner, Harry Jacob Anslinger, who became the architect of national prohibition. His case rested on two fantastical assertions: that the drug caused insanity; that it pushed people toward horrendous acts of criminality. Others at the time argued that it was fiercely addictive....

The country accepted a senselessly punitive approach to sentencing as long as minorities and the poor paid the price. But, by the late 1960s, weed had been taken up by white college students from the middle and upper classes. Seeing white lives ruined by marijuana laws altered public attitudes about harsh sentencing, and, in 1972, the National Commission on Marihuana and Drug Abuse released a report challenging the approach.

The commission concluded that criminalization was “too harsh a tool to apply to personal possession even in the effort to discourage use,” and that “the actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only with the greatest reluctance.” The Nixon administration dismissed these ideas.

During the mid-1970s, virtually all states softened penalties for marijuana possession. Thirty-five states and the District of Columbia have made medical use of some form of the drug legal. The Justice Department’s recent decision not to sue states that legalize marijuana — as long as they have strong enforcement rules — eases the tension between state and federal laws only slightly but leaves a great many legal problems unresolved.

The federal government has taken a small step back from irrational enforcement. But it clings to a policy that has its origins in racism and xenophobia and whose principal effect has been to ruin the lives of generations of people.

Prior related posts:

July 30, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Monday, July 28, 2014

"The Injustice of Marijuana Arrests"

The title of this post is the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here).  This lengthy editorial is authored by Jesse Wegman, and here are excerpts:

America’s four-decade war on drugs is responsible for many casualties, but the criminalization of marijuana has been perhaps the most destructive part of that war. The toll can be measured in dollars — billions of which are thrown away each year in the aggressive enforcement of pointless laws.  It can be measured in years — whether wasted behind bars or stolen from a child who grows up fatherless.  And it can be measured in lives — those damaged if not destroyed by the shockingly harsh consequences that can follow even the most minor offenses.

In October 2010, Bernard Noble, a 45-year-old trucker and father of seven with two previous nonviolent offenses, was stopped on a New Orleans street with a small amount of marijuana in his pocket.  His sentence: more than 13 years. At least he will be released. Jeff Mizanskey, a Missouri man, was arrested in December 1993, for participating (unknowingly, he said) in the purchase of a five-pound brick of marijuana.  Because he had two prior nonviolent marijuana convictions, he was sentenced to life without parole.

Outrageously long sentences are only part of the story.  The hundreds of thousands of people who are arrested each year but do not go to jail also suffer; their arrests stay on their records for years, crippling their prospects for jobs, loans, housing and benefits. These are disproportionately people of color, with marijuana criminalization hitting black communities the hardest.

Meanwhile, police departments that presumably have far more important things to do waste an enormous amount of time and taxpayer money chasing a drug that two states have already legalized and that a majority of Americans believe should be legal everywhere....

Nationwide, ... [f]rom 2001 to 2010, the police made more than 8.2 million marijuana arrests; almost nine in 10 were for possession alone.  In 2011, there were more arrests for marijuana possession than for all violent crimes put together.

The costs of this national obsession, in both money and time, are astonishing. Each year, enforcing laws on possession costs more than $3.6 billion, according to the American Civil Liberties Union. It can take a police officer many hours to arrest and book a suspect.  That person will often spend a night or more in the local jail, and be in court multiple times to resolve the case.  The public-safety payoff for all this effort is meager at best: According to a 2012 Human Rights Watch report that tracked 30,000 New Yorkers with no prior convictions when they were arrested for marijuana possession, 90 percent had no subsequent felony convictions. Only 3.1 percent committed a violent offense.

The strategy is also largely futile.  After three decades, criminalization has not affected general usage; about 30 million Americans use marijuana every year.  Meanwhile, police forces across the country are strapped for cash, and the more resources they devote to enforcing marijuana laws, the less they have to go after serious, violent crime. According to F.B.I. data, more than half of all violent crimes nationwide, and four in five property crimes, went unsolved in 2012.

The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity.  Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the A.C.L.U.

While the number of people behind bars solely for possessing or selling marijuana seems relatively small — 20,000 to 30,000 by the most recent estimates, or roughly 1 percent of America’s 2.4 million inmates — that means nothing to people, like Jeff Mizanskey, who are serving breathtakingly long terms because their records contained minor previous offenses....

Even if a person never goes to prison, the conviction itself is the tip of the iceberg. In a majority of states, marijuana convictions — including those resulting from guilty pleas — can have lifelong consequences for employment, education, immigration status and family life. A misdemeanor conviction can lead to, among many other things, the revocation of a professional license; the suspension of a driver’s license; the inability to get insurance, a mortgage or other bank loans; the denial of access to public housing; and the loss of student financial aid....

As pioneers in legalization, [Colorado and Washington] should set a further example by providing relief to people convicted of crimes that are no longer crimes, including overturning convictions.  A recent ruling by a Colorado appeals court overturned two 2011 convictions because of the changed law, and the state’s Legislature has enacted laws in the last two years to give courts more power to seal records of drug convictions and to make it easier for defendants to get jobs and housing after a conviction.  These are both important steps into an uncharted future.

July 28, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Sunday, July 27, 2014

New York Times: "on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization" of marijuana

NYTThe title of this is drawn from the heart of this this important new New York Times editorial calling for the legalization of marijuana.  The editorial is headlined "Repeal Prohibition, Again," and it kicks off a series of pieces about marijuana law and policy.  Here are excerpts from the editorial:

The federal government should repeal the ban on marijuana. We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals....

Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.

In coming days, we will publish articles by members of the Editorial Board and supplementary material that will examine these questions. We invite readers to offer their ideas, and we will report back on their responses, pro and con.

We recognize that this Congress is as unlikely to take action on marijuana as it has been on other big issues. But it is long past time to repeal this version of Prohibition.

I will be covering this notable editorial development, reactions to it, and the coming Times series more fully at Marijuana Law, Policy & Reform.

July 27, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (6) | TrackBack

Thursday, July 24, 2014

Round-up of posts from Marijuana Law, Policy and Reform

As demonstrated by this round-up of recent posts at Marijuana Law, Policy and Reform, there are many developments for lawyers and law reform observers to be thinking about these days:

July 24, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0) | TrackBack

Wednesday, July 16, 2014

Latest polling shows rich, white, midwestern guys aged 30-44 most likely to favor pot legalization

As this press release details, the "latest research from YouGov shows that most Americans (51%) support legalizing marijuana, while 37% oppose it."  And, as the title of this post highlights, I find especially interesting the demographics of which groups of persons are most in favor of legalization as reflected in these detailed breakdowns:

Male: 54% to 36%

Age 30-44: 60% to 28%

Democrat: 62% to 27%

White: 52% to 37%

Income $100+: 57% to 32%

Midwest: 55% to 31%

Cross-posted at Marijuana Law, Policy and Reform

July 16, 2014 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, July 11, 2014

Some more informed legal buzz about marijuana reform via MLP&R

The mainstream media is buzzing plenty about marijuana law and policy again now that Washington state has now officially started legal recreational sales under its state legalization initiative.  But, as demonstrated by this round-up of recent posts at Marijuana Law, Policy and Reform, there is a lot much for lawyers and law reform observers to be thinking about these days:

July 11, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2) | TrackBack

Wednesday, July 09, 2014

Following the money behind sustaining pot prohibition

Nat potThe Nation has this fascinating new investigative report with a  headline and subheadline that highlights its themes: "The Real Reason Pot Is Still Illegal: Opponents of marijuana-law reform insist that legalization is dangerous — but the biggest threat is to their own bottom line." Here are excerpts from the start of a lengthy article:

Taking the stage to rousing applause last February, [Patrick] Kennedy joined more than 2,000 opponents of marijuana legalization a few miles south of Washington, DC, at the annual convention of the Community Anti-Drug Coalition of America (CADCA), one of the largest such organizations in the country....

Given that CADCA is dedicated to protecting society from dangerous drugs, the event that day had a curious sponsor: Purdue Pharma, the manufacturer of Oxy-Contin, the highly addictive painkiller that nearly ruined Kennedy’s congressional career and has been linked to thousands of overdose deaths nationwide.

Prescription opioids, a line of pain-relieving medications derived from the opium poppy or produced synthetically, are the most dangerous drugs abused in America, with more than 16,000 deaths annually linked to opioid addiction and overdose. The Centers for Disease Control and Prevention report that more Americans now die from painkillers than from heroin and cocaine combined. The recent uptick in heroin use around the country has been closely linked to the availability of prescription opioids, which give their users a similar high and can trigger a heroin craving in recovering addicts....

People in the United States, a country in which painkillers are routinely overprescribed, now consume more than 84 percent of the entire worldwide supply of oxycodone and almost 100 percent of hydrocodone opioids. In Kentucky, to take just one example, about one in fourteen people is misusing prescription painkillers, and nearly 1,000 Kentucky residents are dying every year.

So it’s more than a little odd that CADCA and the other groups leading the fight against relaxing marijuana laws, including the Partnership for Drug-Free Kids (formerly the Partnership for a Drug-Free America), derive a significant portion of their budget from opioid manufacturers and other pharmaceutical companies. According to critics, this funding has shaped the organization’s policy goals: CADCA takes a softer approach toward prescription-drug abuse, limiting its advocacy to a call for more educational programs, and has failed to join the efforts to change prescription guidelines in order to curb abuse. In contrast, CADCA and the Partnership for Drug-Free Kids have adopted a hard-line approach to marijuana, opposing even limited legalization and supporting increased police powers.

A close look at the broader political coalition lobbying against marijuana-law reform reveals many such conflicts of interest. In fact, the CADCA event was attended by representatives of a familiar confederation of anti-pot interests, many of whom have a financial stake in the status quo, including law enforcement agencies, pharmaceutical firms, and nonprofits funded by federal drug-prevention grants....

The opponents of marijuana-law reform argue that such measures pose significant dangers, from increased crime and juvenile delinquency to addiction and death. But legalization’s biggest threat is to the bottom line of these same special interests, which reap significant monetary advantages from pot prohibition that are rarely acknowledged in the public debate....

[B]oth CADCA and the Partnership for Drug-Free Kids are heavily reliant on a combination of federal drug-prevention education grants and funding from pharmaceutical companies. Founded in 1992, CADCA has lobbied aggressively for a range of federal grants for groups dedicated to the “war on drugs.”  The Drug-Free Communities Act of 1997, a program directed by the White House Office of National Drug Control Policy, was created through CADCA’s advocacy.  That law now allocates over $90 million a year to community organizations dedicated to reducing drug abuse.  Records show that CADCA has received more than $2.5 million in annual federal funding in recent years.  The former Partnership for a Drug-Free America, founded in 1985 and best known for its dramatic “This is your brain on drugs” public service announcements, has received similarly hefty taxpayer support while advocating for increased anti-drug grant programs.

The Nation obtained a confidential financial disclosure from the Partnership for Drug-Free Kids showing that the group’s largest donors include Purdue Pharma, the manufacturer of OxyContin, and Abbott Laboratories, maker of the opioid Vicodin. CADCA also counts Purdue Pharma as a major supporter, as well as Alkermes, the maker of a powerful and extremely controversial new painkiller called Zohydrol.  The drug, which was released to the public in March, has sparked a nationwide protest, since Zohydrol is reportedly ten times stronger than OxyContin. Janssen Pharmaceutical, a Johnson & Johnson subsidiary that produces the painkiller Nucynta, and Pfizer, which manufactures several opioid products, are also CADCA sponsors.  For corporate donors, CADCA offers a raft of partnership opportunities, including authorized use of the “CADCA logo for your company’s marketing, website, and advertising materials, etc.”

July 9, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, July 03, 2014

"6 Months Later, Legalizing Weed In Colorado Is A Huge Success"

The title of this post is the headline chosen by Business Insider for this Reuters mid-year update on marijuana reform in Colorado.  Here is an excerpt:

Six months on, Colorado's marijuana shops are mushrooming, with support from local consumers, weed tourists and federal government taking a wait-and-see attitude. Tax dollars are pouring in, crime is down in Denver, and few of the early concerns about social breakdown have materialized - at least so far.

"The sky hasn't fallen, but we're a long way from knowing the unintended consequences," said Andrew Freeman, director of marijuana coordination for Colorado. "This is a huge social and economic question."

Denver, dubbed the "Mile High" city, now has about 340 recreational and medicinal pot shops. They tout the relaxing, powerful or introspective attributes of the crystal-encased buds with names like Jilly Bean, Sour Diesel and Silverback Kush. In the first four months, marijuana sales amounted to more than $202 million, about a third of them recreational. Taxes from recreational sales were almost $11 million.

Despite some critics' fears of a pot-driven crime explosion, Denver police say burglaries and robberies were down by between 4 and 5 percent in the first four months of the year. On the down side, sheriff's deputies in neighboring Nebraska say pot seizures near the Colorado border have shot up 400 percent in three years, while Wyoming and New Mexico report no significant increases.

In May, controls on marijuana edibles were tightened after two people died. In one case, a college student jumped from a hotel balcony after eating six times the suggested maximum amount of pot-laced cookies. In the other, a Denver man was charged with shooting dead his wife after apparently getting high from eating marijuana-infused candy.

As Colorado passes the six-month mark, Washington state is approaching with some trepidation the launch next week of the nation's second recreational pot market.

July 3, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (7) | TrackBack

Wednesday, July 02, 2014

Another round-up of recent posts of note from Marijuana Law, Policy & Reform

The official start of summer does not slow down the array of marijuana developments in states and elsewhere, and here is a collection of recent notable posts from Marijuana Law, Policy and Reform:

July 2, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1) | TrackBack

Friday, June 27, 2014

New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution

Kettle_falls_signI am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state.  This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:

[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.

To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....

Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)

Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”

But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.

This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.

Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.

Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....

Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.

So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.

If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.

As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.

In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context.  Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility."   I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.

Prior related post:

June 27, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy. But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, June 20, 2014

Some recent posts of note from Marijuana Law, Policy & Reform

Continuing the sporatic tradition of a review of activities on marijuana law and policy fronts, here is a round up of recent notable posts from Marijuana Law, Policy and Reform:

June 20, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 15, 2014

Is God a supporter of marijuana reform?

The question in the title of this post is my (only slightly) tounge-in-cheek response to this Christian Post article headlined "Oklahoma Senator Quotes Genesis 1:29 to Seek Marijuana Legalization." Here are excerpts:

Oklahoma state Sen. Constance Johnson announced the filing of a statewide initiative petition to legalize marijuana, telling supporters that the campaign is based on Genesis 1:29, which suggests that God created "this wonderful, miraculous plant."

"We're putting forth Genesis 1:29 as the basis of this campaign," quoted Sen. Johnson, a Democrat, as telling supporters at the State Capitol on Friday after filing the petition with the office of the Oklahoma secretary of state.

"God created this wonderful, miraculous plant and we know that it has been vilified for the last 100 years, and it's time to change that in Oklahoma," added the senator, who has led efforts, along with attorney David Slane, to legalize pot.  The advocates of marijuana will require 160,000 signatures from registered voters within three months to get the proposal on a statewide ballot....

The petition states that up to one ounce of marijuana should be allowed for recreational use, and three ounces for medical reasons.  The senator is of the opinion that resultant tax benefits would benefit the state.... Johnson also says that decriminalizing possession would ease the burden on prisons. "We're locking up non-violent, marijuana possessing people, giving them felonies and filling up our prisons."

"It's just the right thing to do. It's a plant. It's a God given plant and it could change the world," Fox 25 quoted a petition supporter, Pamela Street, as saying Friday....

Marijuana is different in nature from caffeine, Christian theologian John Piper wrote on the blog of his Desiring God ministry recently. While marijuana "temporarily impairs the reliable processing of surrounding reality," caffeine "ordinarily sharpens that processing," he said.

Cross-posted at Marijuana Law, Policy and Reform

June 15, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (9) | TrackBack

Friday, June 06, 2014

Notable new federal drug war frontier: "DEA targets doctors linked to medical marijuana"

The title of this post comes from the headline of this lengthy Boston Globe report, which gets started this way:

US Drug Enforcement Administration investigators have visited the homes and offices of Massachusetts physicians involved with medical marijuana dispensaries and delivered an ultimatum: sever all ties to marijuana companies, or relinquish federal licenses to prescribe certain medications, according to several physicians and their attorneys.

The stark choice is necessary, the doctors said they were told, because of friction between federal law, which bans any use of marijuana, and state law, which voters changed in 2012 to allow medical use of the drug.

The DEA’s action has left some doctors, whose livelihoods depend on being able to offer patients pain medications and other drugs, with little option but to resign from the marijuana companies,where some held prominent positions.

The Globe this week identified at least three doctors contacted by DEA investigators, although there may be more. “Here are your options,” Dr. Samuel Mazza said he was told by Gregory Kelly, a DEA investigator from the agency’s New England Division office. “You either give up your [DEA] license or give up your position on the board . . . or you challenge it in court.”

Cross-posted at Marijuana Law, Policy and Reform

June 6, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, June 02, 2014

"After 5 Months of Sales, Colorado Sees the Downside of a Legal High"

The title of this post is the headline of this lengthy recent article appearing in the New York Times.  As the headline suggests, the article documents glass-half-empty data and perspectives on Colorado's on-going experiment with marijuana legalization.  Here are excerpts:

Five months after Colorado became the first state to allow recreational marijuana sales, the battle over legalization is still raging. Law enforcement officers in Colorado and neighboring states, emergency room doctors and legalization opponents increasingly are highlighting a series of recent problems as cautionary lessons for other states flirting with loosening marijuana laws.

There is the Denver man who, hours after buying a package of marijuana-infused Karma Kandy from one of Colorado’s new recreational marijuana shops, began raving about the end of the world and then pulled a handgun from the family safe and killed his wife, the authorities say.  Some hospital officials say they are treating growing numbers of children and adults sickened by potent doses of edible marijuana.  Sheriffs in neighboring states complain about stoned drivers streaming out of Colorado and through their towns.

“I think, by any measure, the experience of Colorado has not been a good one unless you’re in the marijuana business,” said Kevin A. Sabet, executive director of Smart Approaches to Marijuana, which opposes legalization.  “We’ve seen lives damaged. We’ve seen deaths directly attributed to marijuana legalization. We’ve seen marijuana slipping through Colorado’s borders. We’ve seen marijuana getting into the hands of kids.”

Despite such anecdotes, there is scant hard data.  Because of the lag in reporting many health statistics, it may take years to know legal marijuana’s effect — if any — on teenage drug use, school expulsions or the number of fatal car crashes. It was only in January, for example, that the Colorado State Patrol began tracking the number of people pulled over for driving while stoned. Since then, marijuana-impaired drivers have made up about 1.5 percent of all citations for driving under the influence of drugs or alcohol.

Proponents of legalization argue that the critics s are cherry-picking anecdotes to tarnish a young industry that has been flourishing under intense scrutiny.  The vast majority of the state’s medical and recreational marijuana stores are living up to stringent state rules, they say.  The stores have sold marijuana to hundreds of thousands of customers without incident.  The industry has generated $12.6 million in taxes and fees so far, though the revenues have not matched some early projections.

Marijuana supporters note that violent crimes in Denver — where the bulk of Colorado’s pot retailers are — are down so far this year. The number of robberies from January through April fell by 4.8 percent from the same time in 2013, and assaults were down by 3.7 percent. Over all, crime in Denver is down by about 10 percent, though it is impossible to say whether changes to marijuana laws played any role in that decline....

The argument is being waged with fervor because both sides say Colorado’s successes and failures with regulating marijuana will shape perceptions of legalization for voters considering similar measures in other states and for leery federal law enforcement officials.  After the 2012 legalization votes in Colorado and Washington State — where recreational sales are expected to begin this summer — Justice Department officials gave the states a cautious green light. But they warned that they might intervene if marijuana ended up fueling violence or drug trafficking, or flowing across state lines or into the hands of children.

Marijuana opponents like Thomas J. Gorman of the Rocky Mountain High Intensity Drug Trafficking Area program, which helps law enforcement, say Colorado is already falling short of those standards.  “In any other state if they were making as much money and growing as much dope, they’d be taken out by the feds,” Mr. Gorman said.

Few agree on how much legally purchased marijuana is being secreted out of Colorado.  Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase in Michele Leonhart, the head of the Drug Enforcement Administration, told a Senate panel in April that officials in Kansas had tallied a 61 percent increase inseizures of marijuana that could be traced to Colorado. But according to the Kansas Highway Patrol, total marijuana seizures fell to 1,090 pounds from 2,790 pounds during the first four months of the year, a 61 percent decline.

Some sheriffs and police chiefs along Colorado’s borders say they have noticed little change. But in Colby, Kan., which sits along an interstate highway running west to Colorado, Police Chief Ron Alexander said charges for sale, distribution or possession related to marijuana were rising fast.  This year, he tallied 20 such cases through May 23. Two years ago, there were six during that same time period.  Sheriff Adam Hayward of Deuel County, Neb., said he was locking up more people for marijuana-related offenses. “It’s kind of a free-for-all,” he said. “The state or the federal government needs to step up and do something.”...

Police and fire officials across the state have been contending with a sharp rise in home explosions, as people use flammable butane to make hashish oil.. And despite a galaxy of legal, regulated marijuana stores across the state, prosecutors say a dangerous illicit market persists....

Many of Colorado’s starkest problems with legal marijuana stem from pot-infused cookies, chocolates and other surprisingly potent edible treats that are especially popular with tourists and casual marijuana users. On Colorado’s northern plains, for example, a fourth grader showed up on the playground one day in April and sold some of his grandmother’s marijuana to three classmates.  The next day, one of those students returned the favor by bringing in a marijuana edible he had swiped from his own grandmother.  “This was kind of an unintended consequence of Colorado’s new law,” said John Gates, the district’s director of school safety and security. “For crying out loud, secure your weed. If you can legally possess it, that’s fine. But it has no place in an elementary school.”

So far this year, nine children have ended up at Children’s Hospital Colorado in Aurora after consuming marijuana, six of whom got critically sick.  In all of 2013, the hospital treated only eight such cases.

Cross-posted at Marijuana Law, Policy and Reform

June 2, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (6) | TrackBack