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

Monday, January 05, 2015

"Is Obama Finally Ready To Dial Back The War On Drugs?"

Meme1The title of this post is the headline of this lengthy Forbes piece by Jacob Sullum, which provides preview of sorts of of some of the biggest federal criminal justice issues to keep an eye on in the year to come. The piece merits a full read, and here are excerpts:

Some critics of the war on drugs — a crusade that Obama had declared “an utter failure” in 2004 — predicted that he would improve in his second term.  Safely re­elected, he would not have to worry that looking soft on drugs would cost him votes, and he would finally act on his avowed belief that the war on drugs is unjust and ineffective.  As Obama embarks on the third year of his second term, it looks like the optimists were partially right, although much hinges on what he does during the next two years.  Here are some of the ways in which Obama has begun to deliver on his promises of a more rational, less punitive approach to psychoactive substances:

Marijuana Legalization. Although the federal government cannot stop states from legalizing marijuana, it can make trouble for the ones that do by targeting state­licensed growers and retailers.  Under a policy announced in August 2013, the Justice Department has declined to do so, reserving its resources for cannabis operations that violate state law or implicate “federal law enforcement priorities.”...

Federal Marijuana Ban.... Contrary to the impression left by the president, the executive branch has the authority to reschedule marijuana without new legislation from Congress. In September, a few days before announcing that he planned to step down soon, Holder said whether marijuana belongs in the same category as heroin is “certainly a question that we need to ask ourselves.” Since the Controlled Substances Act empowers Holder to reclassify marijuana, it would have been nice if he had asked that question a little sooner. Still, Holder was willing to publicly question marijuana’s Schedule I status, something no sitting attorney general had done before.

Sentencing Reform.  Obama supports the Smarter Sentencing Act, which would make the 2010 crack penalty changes retroactive, cut the mandatory minimums for certain drug offenses in half, and loosen the criteria for the “safety valve” that allows some defendants to escape mandatory minimums.  Beginning last year, Holder has repeatedly criticized our criminal justice system as excessively harsh. Under a new charging policy he established last year, hundreds of drug offenders could avoid mandatory minimums each year....

Clemency.  After a pitiful performance in his first term, Obama has signaled a new openness to clemency petitions.  Last April an unnamed “senior administration official” told Yahoo News the administration’s new clemency guidelines could result in “hundreds, perhaps thousands,” of commutations.  Obama’s total so far, counting eight commutations announced a few weeks ago, is just 18, but he still has two years to go....

A few months ago, Obama chose former ACLU attorney Vanita Gupta, a passionate critic of the war on drugs who emphasizes its disproportionate racial impact (a theme Obama and Holder also have taken up), to head the Justice Department’s Civil Rights Division.  A year before her appointment, Gupta had criticized Holder’s moves on drug sentencing as an inadequate response to mass incarceration.  The previous month, she had endorsed marijuana legalization. The next two years will show whether Gupta’s appointment is a sop to disappointed Obama supporters or a signal of bolder steps to come.

If Obama actually uses his clemency power to free thousands, or even hundreds, of drug war prisoners, that would be historically unprecedented, and it would go a long way toward making up for his initial reticence.  He could help even more people by backing sentencing reform, which has attracted bipartisan support in Congress.  And having announced that states should be free to experiment with marijuana legalization, he could declare the experiment a success....

If none of those things happens, Obama’s most significant drug policy accomplishment may be letting states go their own way on marijuana legalization.  Even if our next president is a Republican drug warrior, he will have a hard time reversing that decision, especially given the GOP’s lip service to federalism.

This piece reviews some important basics, though hard-core sentencing fans know that there is a lot more the Obama Administration could be doing to radically reshape the battlefield in the modern federal drug war.

On the marijuana front, for example, DOJ could (and I think should) play an significant role defending Colorado as it gears up a response to the recent Supreme Court suit brought Nebraska and Oklahoma attacking its marijuana reform efforts. In addition, DOJ could (and I think should) be willing to interpret broadly the recent provisions enacted by Congress precluding it from using funds to interfere with state medical marijuana reform efforts.

On the broad drug war front, Prez Obama and DOJ could not only support the Smarter Sentencing Act but even try to give renewed life to the Justice Safety Valve Act. The JSVA, which Senator Rand Paul introduced and robustly promoted, would effectively reform the operation of all mandatory minimum sentencing provisions. Also Prez Obama and DOJ, especially in light of renewed concerns about racial biases in criminal justice systems, could (and I think should) return to the issue of crack sentencing reform. Specifically, given the apparent success of the Fair Sentencing Act of 2010, which only reduced the crack-powder disparity from the ridiculous 100-1 ratio to a ghastly 18-1, the Prez ought to get behind what I would call the Fully Fair Sentencing Act to eliminate any and all crack-powder sentencing disparity completely.

January 5, 2015 in Clemency and Pardons, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | 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

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 (1) | 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

Tuesday, November 25, 2014

"Did Marijuana Kill Michael Brown?"

The title of this post is the headline of this provocative and interesting new piece by Jacob Sullum now up at Reason.  Here is how the piece starts and ends:

In a radio interview on August 18, a self-identified friend of Darren Wilson's reported that the police officer suspected Michael Brown was under the influence of drugs the day Wilson shot him to death in Ferguson, Missouri.  "He really thinks he was on something," the friend said, "because he just kept coming."  Wilson made no mention of that theory during his grand jury testimony on September 16, although he did liken Brown to a "demon" and Hulk Hogan, descriptions reminiscent of the evil and strength sometimes attributed to illegal drugs.

One challenge for anyone pushing a pharmacological explanation of Brown's alleged behavior: Despite speculation that he was on PCP, marijuana is the only drug that was detected in his blood.  Kathi Alizadeh and Sheila Whirley, the assistant county prosecutors who presented evidence to the grand jury, did what they could with pot, raising the possibility that Brown had smoked enough to experience "paranoia," "hallucinations," and maybe even a "psychotic episode." They planted that idea in jurors' heads mainly by presenting a toxicologist's misleading testimony about the amount of THC in Brown's blood and the possible effects of large doses....

The prosecutors spent considerable time insinuating that Brown had consumed cannabis in the form of the concentrate known as "wax," even though there does not seem to be any evidence that he did and even though it would not matter if he had.  If the issue is Brown's level of intoxication, the amount of material he burned to achieve it is irrelevant.  The testimony about wax looks like an attempt to exoticize a familiar drug that people do not usually associate with demonic rage or Hulk-like strength.

Then again, marijuana my be exotic enough as far as the prosecutors are concerned. "You explained that the Delta-9-THC has a psychoanalytic effect?"  Alizadeh said at one point. "Psychoactive," the toxicologist corrected her.  Later Whirley asked, "Could this amount of THC that was found in the blood be — is it possible that someone [could be] ingesting that amount on a regular basis and not be dead?" The toxicologist explained that "marijuana really isn't lethal."  Unless you smoke it before getting stopped by a cop, I guess.

November 25, 2014 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (8) | 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

Tuesday, November 11, 2014

New York City mayor announces new policy concerning marijuana enforcement

ImagesAs reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:

Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.

Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.

The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.

“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”

For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.

But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....

As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...

At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....

Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.

In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.

Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.

Cross-posted at Marijuana Law, Policy & Reform

November 11, 2014 in Criminal Sentences Alternatives, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, November 06, 2014

"After the Cheering Stopped: Decriminalization and Legalism's Limits"

The title of this post is the title of this notable and timely paper by Wayne Logan which I just saw on SSRN. Here is the abstract:

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon.

Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.

November 6, 2014 in Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | 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