Drug Law Blog

Top 10 Drug Law Blog Stories of 2008

Here are the Top 10 Drug Law Blog stories of 2008. Keep in mind that my stories reflect the focus of this blog -- i.e. on changing areas of criminal drug law, with emphasis on California -- and so do not add up to the same list that might be compiled by a lawyer who works on pharmaceutical law, or even a criminal defense lawyer in another state. Prior years' lists are here: 2007, 2006.

10. Salvia divinorum becomes a YouTube celebrity. California passes AB259 to try to crack down on a drug that is not associated with any health problems.

2008 was the year that an obscure, hallucinogenic plant, salvia divinorum, made it onto the radar of many state legislatures not because it was actually causing problems anywhere but because there are lots and lots of YouTube videos of people smoking it and acting silly. You can get a sense of how this typically played out in the clip below: legislator proposes law, local news pulls a bunch of clips off of YouTube, and bingo, you've got a story with some impressive video. Reason enough to start arresting people and putting them in prison? Several state legislatures thought so, including California, which passed a law called AB259 criminalizing the sale of salvia to minors.

 

(Above: A New York TV news discussion of a proposal criminalize salvia divinorum in that state, drawing heavily on YouTube footage rather than any kind of actual research into salvia. Below: I made a short video about the use of YouTube videos by legislators, encouraging people to push lawmakers to base their policies on science rather than junk pulled off of the internet.)

9. For the second time in two years, Mexico proposes decriminalization of personal use of drugs. Just like the last time, this proposal goes nowhere fast. Meanwhile, Mexico spirals further into extreme, prohibition-related violence.

Back in 2006, the then-president of Mexico, Vicente Fox, briefly suggested that he intended to approve a law to decriminalize personal use of small amounts of drugs.  That proposal seemingly evaporated, reportedly after pressure from the U.S. This year, President Calderon proposed something very similar. More intriguing still, Office of National Drug Control Policy head John Walters said that he was actually in favor of the proposal.

However, the result of this year's proposal was the same as the result in 2006: absolutely nothing happened. Meanwhile, Mexico was absolutely savaged in 2008 by violence related to an attempt to crack down on drug trafficking. The AP reported in December that more than 5,000 people had been killed in these battles this year. Once-vibrant Places like Tijuana are basically ghost-towns now because of the threat of violence, underscoring the truly terrible human costs created by aggressive prohibition policies.

 

(Above: A police officer investigates the scene of a "drug-related" shooting in Culiacan, Mexico -- one of more than 5,000 deaths caused this year by a disastrous policy of aggressive prohibition. Photo by Don Bartlett, Los Angeles Times. Below: A TV News segment discusses the extreme impact of these policies on day-to-day life in Mexico.)

8. California's substantive law on medical marijuana evolves: The battle in People v. Kelly is won, but nobody seems to notice, Arnie vetoes a bill for medical marijuana patients' workplace rights, and the Attorney General releases some confusing guidelines around medical marijuana.

There were several important California medical marijuana cases in 2008: Ross v. RagingWire, in which we learned that there is not much workplace protection for medical marijuana users, People v. Mentch, in which we learned that you can't be a "primary caregiver" to a medical marijuana patient simply by providing marijuana to that person, and People v. Kelly, in which we learned that the quantity limits imposed on medical marijuana defenses by the California legislature may be unconstitutional. Also, the United States Supreme Court denied cert in Kha (Garden Grove), the case about return of seized medical marijuana to an individual who has raised a successful medical defense at trial. Some California advocates suggested that this cert denial was a really momentous victory for the prinicple of states' rights. I think that interpretation is, well, incorrect and misleading. But it's still nice that people can get back their medicine.

(Above: The Colbert Report does a segment on Gary Ross and his case in the California Supreme Court.)

People v. Kelly is still on review to the California Supreme Court, but as I noted back in October, the Attorney General has already conceded the argument in that case. That means that strict quantity limits on medical marijuana defenses brought under California's Compassionate Use Act are almost certainly going to be struck down by the Cal Supremes. Seems like a big deal to me, but nobody has picked up on this story.

In August, the Attorney General also released a set of guidelines around medical marijuana. I find them confusing, odd, and of uncertain value for defendants, but some people in the medical marijuana world consider them to be a victory. 

Finally, the California legislature passed a bill authored by Mark Leno, AB2279, that would have given workplace protections to medical marijuana users (in response to the defeat in RagingWire, noted above). However, California Gov. Arnold Schwarzenegger vetoed the measure.

 

(Above: California Representative Mark Leno, who stood up for the workplace rights of California medical marijuana patients. Below: Governor Schwarzenegger, who vetoed Leno's bill.)

7. Federalism follies: San Diego and San Bernardino Counties continue losing their protracted, mean-spirited attempt to overturn California medical marijuana law.

My birthplace of San Diego continued to embarrass itself in 2008 by relentlessly pursuing a case called County of San Diego v. San Diego NORML, which is basically an attempt to argue that California state law can not be modified to allow people to use medical marijuana without prosecution because the federal law of the United States preempts any action in that area. Got that? Federal preemption is so potent a force, according to San Diego County (and San Bernardino County, which is also pursuing this case), that California is literally obliged to continue arresting medical marijuana patients under state law and prosecuting them in state court. 

It's a terrible argument, which presumably is why it lost at the trial level and then lost in the court of appeal, and why the California Supreme Court denied review. Nevertheless, San Diego has vowed to seek certiorari in the United States Supreme Court, wasting still of more San Diego County's tax dollars, all in an attempt to argue that local governments should have less power, less flexibility, and should be obliged to spend more money on more prosecutions. If anyone ever wondered whether marijuana can drive people crazy, here is your answer: it's driven the leaders of two California counties completely loco.

(Above: An Aug 12, 2008 protest in San Bernardino County, at which the board of supervisors was urged to drop the NORML lawsuit.)

6. Massachusetts voters pass an initiative making personal possession of marijuana an infraction.

This is not a California story, but it's pretty darn remarkable and could well point the way toward reforms in other states. In the November 2008 election, voters in Massachusetts passed an initiative that makes possession of less than an ounce of marijuana for personal use an "infraction" -- in other words, an offense comparable to a speeding ticket.

Law enforcement in Masschusetts is already moaning that the administration of this law will be a real "headache" for them. Apparently it would be a lot easier --for them, that is -- just to go on arresting and prosecuting people for a nonviolent act that harms nobody.

(On a related point, as Pete of Drug WarRant noted, Arizona's Attorney General stated right at the end of 2008 that he might be willing to consider marijuana decriminalization if a way could be found to administer the process. With any luck, Massachusetts will show the rest of the nation that this is really not that big of a deal.)

(Above: Middlesex District Attorney Gerry Leone spoke at a rally to oppose the marijuana decriminalization initiative.  Only problem with this position: Leone and other DAs who took this public stance openly admitted that they themselves were prior users of marijuana, and had somehow managed not to become burnouts, maniacs or deadbeats. AP photo by Bizuayehu Tesafye. )

5. California's Prop. 5 (the Nonviolent Offender Rehabilitation Act) is defeated in California after a massive infusion of cash from the state prison guards' union. 

California voters had a chance in the 2008 election to enact really significant drug law reform via an initiative called the Nonviolent Offender Rehabilitation Act. Unfortunately, the initiative was extremely long and technical and very easily distorted by its opponents, including most of the usual suspects in state law enforcement. California's prison guards (the highest paid correctional officers in the nation) threw their weight into the anti-prop. 5 effort, and a chance to reduce the vast prison population of the state was unfortunately lost as a result.

(Above: This cool ad drew attention to the financial motives behind the Prop. 5 opposition, but it didn't manage to persuade voters to pass Prop. 5. Below: Instead, ads like this one, featuring California Senator Dianne Feinstein, scared the public away from reform.)

4. The slow-motion crackdown on California dispensaries continues

Though we finally moved toward what we fervently hope will be a more reasonable federal drug policy (see #3, below), 2008 saw a relentless and depressing parade of federal raids on California medical marijuana dispensaries and prosecutions and convictions of people who have simply tried to operate within the law as passed by California voters and the California legislature. It's as if the Bush administration was determined to waste as much taxpayer money as possible on these crackdowns while it was still holding onto the reigns of the Department of Justice.

One of the most discouraging cases in 2008 was the conviction in federal court of Charles Lynch, the Morro Bay dispensary operator whose story is told in the clips below. When the history of this movement is written, it is folks like Lynch who need to get the credit for bravely putting their own liberty on the line.

3. Barack Obama is elected after having promised to end federal raids on medical marijuana patients. Early indications of Obama's stance on drug policy, however, are not particularly encouraging.

Well, Obama got elected and that felt sort of warm and fuzzy, and it's at least possible that it will mean a more progressive federal stance on medical marijuana. Obama stated during his campaign that "I would not have the Justice Department prosecuting and raiding medical marijuana users. It's not a good use of our resources." If he stays true to his word, it will be a dramatic thing, and may well be the change that ushers in medical marijuana on a nationwide basis.

On the other hand, Obama has never seemed to be interested in taking a very progressive stance on drug policy.  His nominee for Attorney General, Eric Holder, is a former prosecutor who "proposed legislation to stiffen penalties for the possession of marijuana" while with the Justice Department, according to NORML. Obama is also reportedly considering Jim Ramstad as Drug Czar, despite the fact that Ramstad is reportedly an opponent of both medical marijuana and needle exchange.

All of which means  ... well, it's pretty hard to know what it means. But maybe that's the way Obama likes it.    

 

(Above: President-elect Obama. Thumbs up for ... something or other, it's not clear what.)

2. Prescription drugs outstrip street drugs as the drug of choice.

Despite the fact that the policing priorities of the federal government and most other jurisdictions are still heavily skewed toward traditional "street" drugs like marijuana, 2008 was the year when it became entirely obvious that "street" drugs are no longer the growth industry in recreational drug use: that dubious honor belongs, instead, to diverted pharmaceutical drugs, which are now the "drug of choice" for people all over America.

As the Office of National Drug Control Policy noted in its 2008 National Drug Control Strategy Document (see page 17 of the report (pdf)), more 12 and 13-year-olds now use prescription drugs recreationally than use marijuana. The numbers are sufficiently worrisome that some guy named Joe Biden held Senate hearings in March all about what it called "Generation Rx" -- i.e., a generation that has turned away from the drugs that we're sending people to prison for and turning instead to the drugs that are already in the medicine cabinet and being used by mom and dad.

(Below: Vice President-elect Joseph Biden, who convened the hearing on youth use of over-the-counter and prescription drugs.)

1. The chickens come home to roost, as the United States is documented to have the highest drug consumption in the world, the highest incarceration rates in the word, and appalling levels of racial discrimination in drug policing. 

Everybody who has a decent head on their shoulders knows that the drug war is a policy that has some shortcomings. 2008, however, was the year in which the statistical evidence of those shortcomings began to pile up to a degree that was totally absurd on every level.

Problems with extreme overincarceration? Check. 2008 saw the release of the Pew Center's report One in 100: Behind Bars in America, officially marking the fact that 1 percent of the entire adult population of the United States is now locked up in jail or prison.  As I never tire of repeating, the U.S. is the highest per-capita and overall incarcerator in the world, vastly oustripping every other country, no matter how authoritarian.

Problems with unfair and racist policing patterns around drug use? Check, check and check. 2008 saw the release of not one but three reports documenting in exhaustive detail how extremely skewed drug policing is in terms of the way it targets minorities. (Actually, one of the reports was released in December 2007, but whatever.)  The reports are Human Rights Watch: Targeting Blacks: Drug Law Enforcment and Race in the United States (May 2008), The Sentencing Project: Disparity by Geography: The War on Drugs in America's Cities (May 2008), and the Justice Policy Institute: The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties (December 2007).  These three reports all document one basic reality, which is that all people use drugs, no matter whether they are rich or poor, no matter what color their skin might be, and no matter what part of town they live in. Drug policing, drug arrests and drug prosecutions, however, focus overwhelmingly on street-level interdiction in poor, minority neighborhoods, where it takes the least work for cops to make busts. The result is nothing more and nothing less than what can be seen any day of the week by walking into a California Superior Court and checking out who is on trial: it's overwhelmingly poor people and minorities. It's overwhelmingly the hapless and the helpless, people who are just being ground through the mill of of a dysfunctional system and don't have any way to break free.

Problems accomplishing the goals of prohibition? Check. A study released in the summer of 2008 showed that the United States actually leads the world in per capita consumption of marijuana, cocaine and alcohol. Meanwhile, the Office of National Drug Control Policy continued in 2008 to pat itself on the back by referring to the idea that drug use in America is "down by half" -- neglecting to mention one little detail, which is that the decline they are discussing happened more than 15 years ago. So not only are we locking up people like crazy, and not only are we making a mockery of racial justice in the process, we're also failing to accomplish the ostensible goal of our policy. It's absolutely nuts, and it's long past time for the kinds of changes we're finally starting to see in places like Massachusetts.

(Below: a breakdown by race of American incarcerated men, from One in 100, by the Pew Center.)

That's it for 2008 -- kind of a depressing list overall, but it was an election year. Here's hoping that we get a little sanity injected into the process in the year to come!

I Believe: 100 Words on Why Drug Policy Reform Matters

Drug policy is a complicated issue. Is there anything anybody can say in 100 words that would make you change your mind about the way we deal with drugs? Here's my stab at it. What's yours?

I believe that America needs to change the way it deals with drugs.

The war on drugs has made America the biggest incarcerator in the entire world.

It has put a lot of poor people and minorities in prison.

It has created a vast black market in illegal drugs, fueling gang violence and corruption.

It has eroded basic constitutional rights.

It has probably discouraged drug use, but America leads the world in consumption of marijuana and cocaine.

Drugs can be effectively regulated without using criminal law as the primary tool for control.

I believe the time to change is now.

Links to the studies and posts that support each assertion are on the jump. In fact, this post is a by-product of compiling a bunch of different studies on this subject, realizing how complex things are, and thinking that it might be helpful to state, in a very simple way, what all this stuff ultimately means (in my opinion).

Ninth Circuit on Drug Trafficking Offenses

Possession of methamphetamine for sale in violation of California Health & Safety Code § 11378 is a "drug trafficking offense" for purposes of the United States Sentencing Guidelines, the Ninth Circuit held Friday in United States v. Valle-Montalbo, No. 05-50876.

This decision hit Valle-Montalbo hard because the sentencing guidelines provide for a 16-level increase to the base offense level for illegal re-entry into the country for someone who has previously been removed following a felony drug trafficking conviction.

The Scope of O Centro

UCLA Public Policy Prof Mark Kleiman has a post up on his blog about a study describing the ability of psilocybin mushrooms to produce "mystical" experiences.

My only concern with the post is the way Prof. Kleiman characterizes the law around this area, which I think is overbroad. He writes "[T]he Supreme Court recently held (Gonzales v. O Centro) that the use of hallucinogens in religious ceremonies is protected under the Religious Freedom Restoration Act and must be permitted unless there is a particularized showing of harm."

That's not quite accurate. The Court upheld the use of a fairly obscure hallucinogen (ayahuasca) in the context of a long-established religious tradition practiced by a small minority. Other groups that have tried to capitalize on O Centro (for example by creating a "marijuana church") are in my opinion treading on pretty thin ice. Similarly, invoking O Centro to support the use of hallucinogenic mushrooms probably doesn't make sense unless such use actually is part of an established and fairly discrete religious tradition.

The fact that an experience is subjectively "mystical" is very unlikely to make it "religious" in a sense that would fall within O Centro. As I emphasized in my discussion of the marijuana church (linked above), the government in O Centro conceded that the use of ayahuasca was a "sincere exercise of religion." In the case of mushrooms, however, such a concession is extremely unlikely to be forthcoming. Instead, anyone attempting to litigate the issue would have to make a showing that such use was a sincere religious exercise, and I think that would involve demonstrating far more than the mere fact that isolated individuals find the ingestion of a chemical to be moving and significant. I find a good Syrah to be moving and signifcant, but that doesn't (quite) make it a religious experience when I drink it. Conversely, I don't find the experience of communion subjectively meaningful, but most reasonable observers would conclude that taking communion is a religious exercise.

Ninth Circuit on Use of Gun "In Furtherance" of Drug Trafficking

A gun is used "in furtherance" of drug trafficking, in violation of 18 USC 924(c), when there is a "nexus between the guns discovered and the underlying offense," the Ninth Circuit reaffirmed 1/25/07 in U.S. v. Hector, No. 05-50404. That legal standard is not new: it comes from U.S. v. Krouse, 370 F.3d 965 (9th Cir. 2004). The twist in Hector was that the court performed a de novo re-evaluation of what it said was essentially a factual inquiry into whether that nexus existed because the district court had acquitted the defendant of the 924(c) violation. Such an acquittal is reviewed de novo. Therefore, the court of appeal weighed evidentiary matters in a matter that would, under other circumstances, be done in a manner more deferential to the findings of the trial court.

Hector also held, as Electric Lawyer notes, that "suppression of evidence was not [an] appropriate remedy for failure to provide defendant with copy of search warrant before it was executed." The court relies on the Supreme Court's recent decision in Hudson v. Michigan in emphasizing that suppression is (in its view) a fairly drastic remedy that need not be imposed for every sort of Fourth Amendment violation. In Hudson, the Court noted that officers would have found the relevant evidence whether or not they conformed to the knock and announce requirement. Similarly here:

Regardless of whether the police officers had actually shown Hector the search warrant, they would have executed it and recovered the drugs and firearms inside his apartment. Thus, the acquisition of the evidence can hardly be characterized as a “fruit of the fact” that the officers failed to present the warrant.

Depravity, Moral Turpitude, and DUI

What's the difference between a DUI accident that results in manslaughter charges versus one that results in murder charges? In New York, it's the quality of "depraved indifference to human life."

But how do you decide what's really "depraved" and what's merely "quite drunk"? A Fox News article on the subject explores the nuances of this tricky area: "The bottom line: depraved indifference murder is meant to be among the very worst of all crimes. But the question remains — should drunken driving incidents, that result in death be included in that category?"

It reminds me of another issue I'm wondering about these days, which is the intersection of drug crime and the category of "moral turpitude" in immigration law. If you've committed a crime of "moral turpitude," it's a good way to end up inadmissible or deportable, and if you're a "drug abuser" you're in the same boat. And the question of DUI as a potential bar to a citizenship application just came up the other evening when I was working at an immigration clinic down in Redwood City. But I can't even try to venture an opinion about this stuff. I just soak up information, to be used at a later date.

(Hat tip: Crim Prof Blog.)

Wichita, Kansas: No Prison For Minor Drug Offenses

An interesting article ran 1/7/07 in the Wichita (Kansas) Eagle:

People arrested for possessing small amounts of illegal drugs no longer get hauled off to jail in Wichita.

Many caught with less than a quarter-gram of meth or cocaine are charged with possession of drug paraphernalia, given notice to appear in a misdemeanor courtroom and sent on their way.

...

The practice was changed in Wichita about two years ago to allow police to better use their resources, said Deputy Police Chief Tom Stolz. Detectives now can focus on more serious drug investigations.

"To be honest with you, there's so many paraphernalia cases that we could clog the District Court system if we charged them all as felonies," he said.

It's easy to have misgivings about this approach to drug use, but this is the wave of the future. It's a change that needs to happen around the country for the same reason it needed to happen in Wichita: we simply don't have the resources to continue locking up everybody and their brother for victimless crimes.

(Hat tip: Drug War Chronicle.)

Rex Farrance and Medical Marijuana

The SF Chronicle today notes a wrinkle in the investigation of the killing of senior PC World editor Rex Farrance: police claim he was "involved in illegal drugs."

However, Farrance's son, Sterling Farrance, 19, blasted the police assertion that his parents were involved with illegal drugs in any way. Sterling Farrance told The Chronicle on Wednesday night that he grew and stored medical marijuana at his parents' home with his father's permission.

"I have a prescription. I'm a patient. It was medical," he said. "This one officer I remember at the house, he had this predisposition to think it was all illegal."

CA Fifth District on Medical Marijuana As Violation of Probation Condition

Another holiday catch-up:

It was not an abuse of discretion for a court to set a probation condition barring a probationer from owning, possessing, controlling or being under the influence of marijuana but allowing him to use a prescription medication containing THC, the California Fifth District Court of Appeals held 12/22/06 in People v. Berry, FO48189. (Update: The California Supreme Court granted review on this case on 4/11/07.)

A chunk of the opinion:

On the record here, the court’s exercise of discretion in imposing the marijuana condition was neither arbitrary nor capricious nor outside the bounds of reason. Berry’s possession of a marijuana cigarette laced with PCP and being under the influence of PCP were the stipulated factual basis of his convictions of possession of PCP and DUI. To infer from that record that the marijuana condition might deter him from again lacing a marijuana cigarette with PCP, again being under the influence of PCP in a marijuana cigarette, and again driving while under the influence of PCP in a marijuana cigarette and might “foster rehabilitation” and “protect public safety” was a sound exercise of the court’s discretion. (See People v. Carbajal, supra, 10 Cal.4th at p. 1120.) Since the marijuana condition had a reasonable relationship to the crimes of which he was convicted and forbade conduct reasonably related to his future criminality, he cannot satisfy two of the three prerequisites for establishing the invalidity of that condition.

Nonetheless, Berry seeks refuge in the holding in People v. Tilehkooh (2003) 113 Cal.App.4th 1433 (Tilehkooh) that a defendant can “assert [Health and Safety Code] section 11362.5 as a defense” to a probation revocation. (Tilehkooh, supra, at p. 1437.) The holding in Tilehkooh, however, was expressly limited to cases in which there is “no claim the conditions of probation which defendant violated concerned the rehabilitative purposes of the probation law or that defendant’s marijuana use and possession endangered others or was diverted for nonmedical purposes.” (Tilehkooh, supra, at p. 1437, fn. 4, citing Health & Saf. Code, § 11362.5, subd. (b)(2).)

Here, on the other hand, the marijuana condition sought to deny Berry in the future the means by which he ingested PCP in the past. That objective was patently relevant to the rehabilitative purposes of the probation law. Likewise, since PCP is capable of producing a “‘psychosis-like condition’” that might cause a user to become “‘extremely violent without provocation’” (In re Brown (1998) 17 Cal.4th 873, 888), his use of marijuana to ingest PCP endangered others and diverted marijuana for an illegal purpose in the past and could do so again in the future. Tilehkooh is inapposite. Berry’s marijuana condition was lawful. Neither the imposition of that condition nor the violation of his probation for his breach of that condition was an abuse of discretion.

"Leave Peace To The Experts"

Over the holidays I was flipping through the New Yorker's big book of cartoons, and one comic in particular caught my eye: It was an image from the late 1960s, with a couple of heavily decorated generals looking out the window of some D.C. office building at a protest going by.

The caption: "Why can't they leave peace to the experts?"

To my mind, it resonated with today's society -- most obviously, with the war in Iraq. But also with the war on drugs. There never seems to be any shortage of "experts" who pontificate about phenomena they don't actually understand, who treat tiny crumbs of ambiguous data as if they were vast mountains of incontrovertible fact, and who make predictions that eventually turn out to be wildly incorrect.

It happens all the time.

What's far more rare is for somebody to look back after the fact and say: Hey, you guys were wrong. You claimed you knew a great deal, but you were either lying or you were incompetent. You actually knew almost nothing. The world we actually live in is not remotely similar to the world you described. All your hysterics, all your doomsday scenarios, were nothing but the opportunistic rantings of a professional fear-monger. You said "Leave peace to the experts." And you said it purely so that war would be a certainty.

Today I thought of that cartoon again while reading a great op-ed by political consultants Bill Zimmerman and Dave Fratello in the LA Daily Journal. Essentially, it's a piece that looks back at all the ridiculous rhetoric that surrounded the passage of the Compassionate Use Act in California. It names names of people who claimed this law would be an absolute pandora's box. People like former drug czar Barry McCaffrey, like former CA Attorney General Dan Lungren, like Robert Novak.

Zimmerman and Fratello call these people out, ten years later. They say what needs to be said: You were wrong. You predicted pandemonium, and instead we've seen order. You predicted that the floodgates of drug abuse would be opened, and instead we've seen significant decreases in marijuana use.

It's not the worst thing in the world to be wrong. Everybody makes mistakes. But in the arena of drug policy it's interesting how often the experts seem to have no idea what they're talking about. The more mistakes they make, and the more they tell us to "leave peace to the experts," the more difficult their sales pitch will become.

Winnable Issues, Take Two

Back at the end of 2006 I posted an item about the need to focus on "winnable" areas of drug law and policy and to push actively for change in those areas. In response, both in the comments to the post and in the comments to an item on Daily Kos that thehim of Reload wrote, several folks have helpfully suggested areas that they think need attention. There's really a range of stuff people mentioned, from legalizing hemp farming to cutting the funding for Plan Columbia to expanding access to clean needles. All of these things strike me as worthwhile.

There are four areas that I, personally, want to try to work on this year. It would have been better, I suppose, if I had planned this out last fall so that the ball was already rolling by now, but better late than never. Here they are:

1. Make some progress on Hinchey-Rohrabacher, the amendment that would cut off federal funding for prosecution of medical marijuana patients. Last year, the amendment lost 259-163. Since then, Congress has seen a pretty big turnover. I'm not sure if it's realistic to think that we would pick up 20 votes this year, but it doesn't seem completely out of the question either. In the weeks ahead, I'd like to take a closer look at which legislators' support we could potentially win and figure out how to start the dialogue with those people and their constituents. Even if we pick up 20 votes, we still lose. But we push the idea further into the mainstream and set the stage for success down the line.

2. Help along the process of reform at the federal level of the crack-powder cocaine sentencing disparity. As Professor Berman at the Sentencing Law and Policy Blog noted the other day, some very promising hearings that the US Sentencing Commission held on this subject last November seem to have led to a big nothing. The difficulty, or at least one of the difficulties, is that the USSC is a judicial branch agency, which makes it quite removed from the ability of any regular person to affect it politically. But even if it's just a matter of publishing an op-ed, I think it is better to do something than do nothing.

3. Work to end the bar on federal education funding for people with drug convictions. This is something that Students for Sensible Drug Policy tried to accomplish last year through litigation, which was useful as an advocacy campaign and not very effective from the point of view of actually changing the law. If there was ever a wrongheaded law, though, this is it. So, as with Hinchey-Rohrabacher, the battle comes down to identifying the legislators who might be swayed one way or another and attempting to bring some pressure to bear on them. (Edit: Pete points out in the comments that SSDP's campaign against this funding law has not been limited to the litigation. Point taken, and I certainly am not trying to diminish the good work that SSDP is doing on this issue.)

4. Fight the backlash against Prop. 36 in California. It's interesting how the mere force of inertia in America tends to push the media and legislators toward an ever-more-punitive approach to drug policy. It's just what we've been doing for so long that it's sort of a reflex, even when (as in the case of Prop. 36) the voters have already explicitly rejected the use of prisons and jails to deal with nonviolent drug offenders. As I've described quite a bit on this site, there has already been a law passed to add a "flash incarceration" component to Prop. 36, and that change is already being litigated. My guess is that the flash incarceration component might eventually be struck down as unconstitutional. But whatever happens, I guarantee you that "flash incarceration" is just the beginning of what will be an ongoing effort by law enforcement, the media, and opportunistic politicians to dismantle this initiative. As I say, the default position of American politics is to use prisons to solve problems. So if there is not a consistent effort to push back against that type of nonsense, progressive reforms will gradually be eaten away. Already, if you look at the Google News entries on Prop. 36 right now you'll see awful headlines like "Is Prop. 36 hindering city's fight against meth?" written by a well meaning reporter who was nevertheless played like a fiddle by law enforcement. And of course there was that ridiculous LA Times piece a few weeks ago talking about "revolving door" jails in LA that quoted only law enforcement and put all the blame for recidivism at the feet of Prop. 36. In short, there needs to be an ongoing effort to counter these perceptions through the dissemination of accurate information and positive stories about the money and lives that progressive laws are saving. This kind of fact sheet from Drug Policy Alliance is a nice model. But it's three years old, and backlash is definitely winning out at the moment. That needs to end.

SF Supervisor Daly: Incarceration of Medical Marijuana Provider "The Definition of Injustice"

Luke Thomas at Fog City Journal has a writeup on the protest that was held yesterday in San Francisco as Stephanie Landa surrendered to begin a 41-month sentence for growing medical marijuana.

Thomas quotes San Francisco Supervisor Chris Daly as follows:

The federal government is using its resources to lock up someone who is non-violent but they can't find the resources to house people who are homeless. They can't find the resources to feed those who are hungry. They can't find the resources to provide health care to those who are sick, but they can find the resources to lock someone up who is helping people and is coming from a place of compassion.

That is the definition of injustice.

(Below: Supervisor Daly, speaking at the rally for Stephanie Landa, at left in the blue sweatshirt. Photo by Luke Thomas at Fog City Journal.)

LAT on Galland

The Fourth District Court of Appeal's unusually sharp language in U.S. v. Galland, which I mentioned yesterday, is the subject of an LA Times article today. Author H.G. Reza also discusses some of the controversial decisions that the trial judge, Robert Fitzgerald, has made in the past.

(Hat tip: How Appealing)

More Dispensary Bans and Moratoria

The Bakersfield California reported on 1/3/07 that the city of Taft had issued an "emergency moratorium" prohibiting medical marijuana dispensaires for 45 days. The same article notes that Bakersfield's City Council voted in 2004 to prohibit dispensaries.

The San Jose Mercury News reported on 1/2/07 that the city of Azusa had permanently banned dispensaries.

CA 4th District on Retention of Warrant Affidavit by Law Enforcement

A trial court violated a defendant's right to due process by allowing law enforcement to retain portions of an affidavit that had been used to support a sealed search warrant and by generally bungling the handling of court documents, the California Fourth District Court of Appeal held 12/28/06 in People v. Galland, G034189.

The trial judge allowed the police to keep a portion of a warrant affidavit rather than retaining that affidavit in the court record. It also told the Fourth District that it found another piece of the affidavit in a sealed envelope in its own files some five years after that document had apparently been submitted to the court.

Some of the language from the opinion is quite sharp:

The instant case presents a vivid example of why our courts are the preferred record keepers in judicial proceedings. Hankins presented a search warrant with supporting affidavit to the magistrate on August 9, 2001. In 2006, without the benefit of the original warrant affidavit or authenticated copy retained by the superior court, the parties seek this court’s independent review of the magistrate’s probable cause determination and the trial court’s subsequent rulings on motions to suppress and for discovery. The documents included in the appellate record are too far attenuated from the magistrate’s determination of probable cause to serve as a legitimate basis for any decision on the warrant’s validity. The events subsequent to the magistrate’s determination, Hankins retention of the crucial part of the warrant affidavit, the court’s initial handling of the hearing on Galland’s motions to disclose that document, and its subsequent and belated review, which yielded an entirely new page to add to it, provides no reasonable belief in the authenticity of any of the documents not retained by the court after the filing of the return.

The most important part of a search warrant is the affidavit of probable cause. Without good reason, Hankins and his department retained the original affidavit, which no longer exists because of that agency’s actions, and the appellate record supplies scant evidence on which this court can place its confidence in what is included in the record. How much more disturbing to the average citizen to discover the law enforcement agency involved in a criminal case retained the document that provided legal justification for a search of home, possessions, and person. Human nature precludes an unquestioning faith in a legal procedure that cannot guarantee objectivity and proper respect for important documents. Public confidence in our judicial system is founded on its ability to serve as a neutral player in the proceedings before it. Reliable record keeping is a basic component of public trust.

In short, the Fourth District concluded, "at every procedural juncture the trial court’s handling of the warrant affidavit invited error and confusion."

Update: This decision was the subject of a Los Angeles Times article on 1/5/07.

LAT on Medical Marijuana Dispensaries

I'm still catching up on stuff that I missed over the holidays. One LA Times article that came out on 12/27/06 did an awesome job of discussing the complications involved in running a medical marijuana dispensary. Author Eric Bailey does a long analysis of the complications that San Francisco medical marijuana entrepreneur Kevin Reed has had in trying to operate the Green Cross dispensary.

The article also included this map of the dispensary regulatory scheme in place in California, which is apparently an illustration of the legal information that Americans for Safe Access has posted on its site. (That information, however, is not up to date, which is perhaps not strange given how quickly the law is changing in this area.) I would love to do a version of this map that can be scaled up or down and that would show the law for particular areas when a user hovers over a data point. My coding skills are definitely not slick enough to do such a thing, but if anybody wants to help out please let me know.
 

Hat tip: the ONDCP's Pushing Back blog. (!)

How to Run a Boring Medical Marijuana Dispensary

Yesterday I wrote about a guy from Modesto who was running a medical marijuana dispensary in perhaps the worst way possible: in a very flashy, aggressive manner. The guy was producing rap videos that insulted law enforcement, making all kinds of references to weapons, and generally playing the role of a hoodlum rather than being a responsible member of his community.

That's the wrong way to run a business. Any business. And especially a business that is vulnerable to law enforcement scrutiny.

The best way to run a medical marijuana dispensary is to make it as boring as possible. As low-key as possible. And as professional as possible. The model to emulate is not Al Capone. It's John Mackey, the libertarian founder of Whole Foods.

(Below: Al Capone, unsuccessful entrepreneur. Below that: John Mackey, wildly successful entrepreneur. Mackey photo from Grist.)

What does it mean to act like a normal, boring business? A couple things:

• To cultivate good relationships with the surrounding community, and to give back to the community through charitable giving and participation in community events.
• To recognize and attempt to respond to the societal costs that one's own business may externalize. This should be a big deal for dispensaries, because some users of medical marijuana struggle with dependence, just as users of many other drugs do. A dispensary should therefore make a public commitment to "responsible use." Giving away "free samples" of medical marijuana, on the other hand, is a bad idea. It trivializes the very notion of marijuana as a legitimate drug and it plays directly into societal fears about a "pusher" who tries to hook people on his product.
• To engage with the power structure through donating to law enforcement and supporting legislators who will advance the interests of dispensaries. This is something that I'm sure many dispensary operators feel ambivalent about, but there simply is no other way to go. Every dispensary operator in this country should commit $20,000, or whatever they can afford, to advance the Hinchey-Rohrabacher amendment this year, they should give generously to the fundraisers of their local police department, and they should be taking City Councilmembers out to dinner. Dispensaries should also form an industry alliance, a lobbying group that recognizes and advances their shared interests. Or they should be giving heavily to Americans for Safe Access, a group that already has a great, appealing name and a fairly mainstream image.

It's easy for me to talk about this stuff, and I recognize that it's a different ballgame actually to be on the frontlines of this area of the law, either as a grower or as a dispensary operator. People like Stephanie Landa, or people like the owner of the Valley Wellness Center in Tracy, CA: they are the ones who are actually putting their liberty on the line. But the more the medical marijuana movement adopts the style and practices of mainstream, responsible business, the less dangerous the field will become. 

Medical Marijuana: The Experience in Hawaii

The number of people registered to use medical marijuana actually dropped last year in Hawaii, the Honolulu Advertiser reported on 1/2/07. Hawaii legalized the medical use of marijuana in 2000.

Keith Kamita, who oversees the program as administrator of the department's Narcotics Enforcement Division, said people continue to sign up, so he doesn't see the decline as any indication that patients are having trouble getting certified.

"I think there's a lot of people who try it and then don't go back to it," Kamita said.

CA "Smurfing" Law Goes Into Effect

A California law that makes it a crime to knowingly obtain methamphetamine or PCP precursors for another person went into effect on 1/1/07. The law, which applies to pseudoephedrine, was SB 1299, authored by Jackie Speier and Jeff Denham, and background is here.

The Legislative Counsel's Digest states the following:

SB 1299, Speier  Controlled substances: precursors: phencyclidine or methamphetamine.    

(1) Existing law generally makes it a felony punishable by 2, 4, or 6 years in the state prison for a person to possess specified substances at the same time with the intent to manufacture phencyclidine or methamphetamine.    

This bill would reorganize these provisions.    

This bill would also make it a felony, punishable by 16 months, 2, or 3 years in state prison, for any person to posses specified chemicals with the intent to sell, transfer, or otherwise furnish those chemicals to another knowing that they will be used to manufacture phencyclidine or methamphetamine.    

By revising existing crimes and creating new crimes, this bill would impose a state-mandated local program.  

With this law on the books, Health and Safety Code 11383.7(b)(1) reads as follows:    

(b) (1) Any person who possesses ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses a substance containing ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses at the same time any of the following, or a combination product thereof, with the intent to sell, transfer, or otherwise furnish those chemicals, substances, or products to another person with the knowledge that they will be used to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055 is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, two, or three years:

Ninth Circuit: No Eighth Amendment Violation in Denial of Sentencing "Safety Valve"

It's not cruel and unusual punishment to deny a defendant access to a statutory "safety valve" that would have lessened a sentence for conspiracy to distribute a cocaine mixture, even when the denial of the safety valve was based on a very minor prior offense. That was the holding of a Ninth Circuit December 28 in U.S. v. Gomez, No. 06-30288.

Gomez argued that he qualified, under 18 U.S.C. § 3553(f), from departure from a mandatory minimum sentence, and that failure to allow him to invoke this safety valve under the circumstances of his case would amount to an Eighth Amendment violation.

The basic rule for the safety valve is that it applies only to people with not more than one criminal history point. Gomez had three points.

The wrinkle: Gomez' criminal history points were based on nothing more than a conviction for failing to give information to a police officer. Thus Gomez' argument that some individualized consideration should be given to the type of offense that created the criminal history, and that the lack of such individualized consideration was a Constitutional violation.

Individualized consideration of sentences, however, has been interpreted by the Supreme Court as being required under the Eighth Amendment only in capital cases. So Gomez got nowhere before the Ninth Circuit.

Federal Judge Rejects "Pot Church" Argument

From the Arizona Daily Star of 12/27/06:

A federal judge has ruled against the founders of a Southeastern Arizona church that deifies marijuana and uses it as a sacrament, saying they don't have a "sincere" religious belief.

In her refusal to dismiss charges against Dan and Mary Quaintance, U.S. District Judge Judith C. Herrera in Albuquerque wrote that evidence indicates the pair "adopted their 'religious' belief in cannabis as a sacrament and deity in order to justify their lifestyle choice to use marijuana."

Herrera's Dec. 22 order means the government's criminal case against the Quaintances will proceed in the new year. The couple is scheduled to go to trial on Jan. 16 on criminal charges of possessing more than 100 pounds of marijuana, as well as conspiracy charges.

This church was arguing that there was a First Amendment right to use marijuana for religious purposes, in much the same manner that the plaintiffs in the February Supreme Court case of Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal argued (successfully) that they had a right to use a drug called ayahuasca.

I wrote about a similar "marijuana church" back in April and argued that the attempt to stretch O Centro to cover the use of marijuana probably wouldn't fly except in the case of a very sincere, longstanding religious practice. That issue of sincerity seems to have been a stumbling block here, because the judge "cited evidence she said indicates the [defendants] created the church to justify their belief that marijuana should be legalized" as opposed to creating it on the basis of some more deep-seated tradition.

Winnable Issues

The Correctional Association of New York (which is a criminal justice reform nonprofit) has a good item on its website right now looking at 5 areas in New York law that the association considers "winnable issues."  Those issues are:

• Repeal the Rockefeller Drug Laws
• Provide Treatment for Inmates with Mental Illness
• Stop Locking Up Sexually Exploited Girls and Boys
• Make Alternatives to Detention Available for Youth
• Grant Merit Time Eligibility for Domestic Violence Survivors in Prison

This list is a model, in my opinion, for the kind of move that drug policy advocates need to be making in 2007. We spend so much time cataloging the horrors of the war on drugs and making easy judgments about the obvious shortcomings of our public officials. Far less time is spent on the more difficult task of identifying "winnable" areas where laws could realistically change and proposing specific, concrete ways that those laws might be enacted.

Making the shift from drug-horror documentarians to legislative advocates involves coming down to earth from our theoretical pedestals and attempting to engage with a system that is very slow-moving and complicated. But it's the only way that a progressive agenda will actually advance. And just the effort of locating and focusing on "winnable" or potentially winnable areas sometimes has the real-world effect of transforming what seemed like lost causes into viable opportunities. Daily Kos, along with its many allies in the progressive blogosphere and in the broader Democratic political structure, achieved something like this feat in the 2006 election by pushing for Democratic candidates to run even in districts that had previously seemed like "safe" Republican seats. By waging a battle for actual power, and not just fighting a war of words from the safety of the Internet, these bloggers and advocates made a difference in real outcomes.

So the question, I think, is this: what are the "winnable" issues for advocates of drug law reform? Not just here in California, but on the national level as well. Is there any way, for example, to get California municipalities to stop cracking down on medical marijuana dispensaries in a manner that seems to be directly opposed to the will of California voters? At the federal level, is there any chance that the vote tally on the Hinchey-Rohrabacher amendment could be pushed closer to victory?

Once these issues are identified, the question is who can push for change. Who are the legislators with spine, who will stand up for a position that might seem radical to some voters? Who are the legislators whose regressive politics can be a point of vulnerability for them? Who are the judges, academics or correctional officials who will write op-eds calling for change? And can the intiative process, as screwed up as it is, be a useful tool for creating better laws, as it was in the context of Prop. 36?

This blog is an advocate, on the theoretical level, for a total end to the War on Drugs, which (as pretty much everybody knows) is ripping apart this country and stacking up people in prison as if they were so much cordwood. But a total end to prohibition is the theory, and reality is another, more complicated question. When it comes to reality, you look for winnable issues. You look for victories that will advance the cause even if they don't produce the perfect outcome that you think would be best.

Monitoring the Future Study, and Criminal Law as Incentive to Abuse Prescription Drugs

This year's Monitoring the Future study on youth drug use came out today, and it reports that while the use of marijuana and other illegal drugs continues to decline gradually, young people continue to use fairly high quantities of prescription drugs like vicodin and oxycontin.

It makes a lot of sense if you just think, from a teen's point of view, about the costs and benefits of using oxycontin recreationally versus a drug like cocaine. If you get caught with oxycontin, you get a lecture and maybe a trip to rehab. If you get caught with coke, it's a whole different story. The criminal laws of our society send a clear message: it's safer and easier to abuse prescription meds. That's probably a message that makes pharmaceutical manufacturers grind their teeth at night, but it's the reality.

Simi Valley Bans Medical Marijuana Dispensaries

The Ventura County Star reports:

The [Simi Valley] City Council on Monday night gave final approval to an ordinance prohibiting cannabis clubs within Simi Valley's borders.

In doing so, it joins the California cities of San Pablo, Susanville, San Rafael, Pismo Beach and San Marcos, which also have permanent bans.

The vote comes about 10 weeks before a moratorium on medical marijuana dispensaries was to expire Feb. 28. The vote was 4-0; Councilwoman Barbra Williamson was absent.

A temporary moratorium was initially approved in February 2005 after a Simi Valley man approached city officials about opening a dispensary. That vote made Simi Valley the first city in Ventura County to temporarily ban cannabis clubs. Other cities, including Moorpark and Oxnard, followed suit.

In addition to the cities mentioned in the article, the cities of Concord, Dublin, Fremont, Livermore, Newark, Pleasanton, San Diego and Union City have also officially banned medical marijuana dispensaries or have effectively pushed them all out of business. See this post for background.

WaPo on Black Male Incarceration

The Washington Post has a pretty amazing video feature up on its website right now, asking and attempting to answer a really hard question: Why are so many black men in prison? I'm writing about it here just because overincarceration, and particularly the disparate impact of overincarceration on the poor and on communities of color, is really the reason this blog exists.

First of all, it's awesome that a major media company is simply addressing this issue, and speaking (as it were) about the elephant in the room. In that regard, reporters Ben de la Cruz and Hamil Harris have done an awesome job. But the thing that really strikes me about this video is something I noticed two years ago when I was interviewing parolees in San Francisco: People blame themselves over and over for ending up behind bars.

Cocaine, the Trademark

Well I don't normally do drug IP stories, but this one is too funny to miss. The Wall Street Journal's Law Blog takes note of the fracas over the dumb new energy drink "Cocaine." Students at the Cleveland State Law School have "persuaded an examiner at the U.S. Patent and Trademark Office to oppose an application to register a federal trademark" for the drink, according to the blog.

Why are the students all up in arms? Because the name is “'immoral and scandalous,' as well as 'deceptively misdescriptive,' becuase [the drink] doesn't contain cocaine." Seems like they can't make up their mind which side they're on.

Where were these outraged students back when Christian Dior created Poison perfume?  "We're outraged! This perfume is not actually poisonous!"

(Below: A case of the "scandalous" energy drink with the dumb name. Below that: Poison, by Christian Dior.)

"Stupid was a factor"

Reload Blog links to a great writeup by a blogger who served on a jury in a marijuana possession case. They hung 11-1 in favor of acquittal, and the blogger has this to say of the holdout for conviction:

Do I think racism was a factor? Hell, yes. But I suspect stupid was a factor, also — the juror lacked the mental capacity to understand abstract concepts like “burden of proof” or even “evidence.”

Never underestimate the power of stupid.

CA 2d District on Patdown Search for Identification

A patdown search merely to find a suspect's identification is not okay under Terry v. Ohio. That's the holding of People v. Garcia, B187453, decided today by the California Second District Court of Appeal.

In this case, a police officer stopped a man for the heinous offense of riding a bike without a headlamp and asked him for ID. He didn't have it, so the officer "attempted to search his person for identification in order to issue him a citation for the Vehicle Code violation." While doing so (and after placing the suspect first in a control hold to force submission and then in handcuffs) he found methamphetamine.

The Second District says this does not fly. The purpose of a patdown search during a Terry stop, the court reaffirms, is to protect a police officer if the officer has "specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous." There were no such facts here, and the search was therefore a violation of the Fourth Amendment.

Conviction reversed, evidence suppressed.

Ninth Circuit Vacates Two Drug Sentences in Booker-Related Decision

The Ninth Circuit today vacated two harsh drug sentences in a really interesting case dealing with some fairly arcane aspects of postconviction remedies. The case is called Carrington v. United States, No. 05-36143.

Basic facts: Carrington pled in 1990 to conspiracy to distribute 500 grams or more of a mixture containing cocaine. He was sentenced to 324 months in prison, the low end of the guideline range. A co-petitioner, Tillitz, was convicted in 1998 of several charges related to importing and distributing hashish. He was sentenced to 360 months, also the low end of the guideline range.

The same judge, Robert Bryan, handled both these cases and in each case he expressed explicit dissatisfaction with his obligation to hand down these stiff sentences. His comments at Carrington's sentence, in particular, are strikingly frank:

San Diego Appeals Ruling on Medical Marijuana

Ah good old San Diego. It's where I grew up. And every time I read the news these days I'm always thrilled to see the San Diego government litigating on the wrong side of the important issues of our time. They've been energetically violating the First Amendment with their display of an enormous crucifix on Mount Soledad since I was a wee lad, ignoring court orders to take it down, and appealing every possible decision suggesting that they might just be misguided.

Similarly with medical marijuana. They just lost a case arguing that federal law trumps the state's Compassionate Use Act. Now they're going to appeal. Makes perfect sense, right? Why wouldn't a county government spend its resources in a protracted legal battle to prove that it can ignore the will of California voters and leave authority entirely in federal hands instead? Why wouldn't a county go out of its way to fight to deny a drug to seriously ill people? I wonder if San Diego will now be consistent in its position and litigate to invalidate every other California initiative that might potentially implicate the commerce clause powers of the United States? Somehow I doubt it.

San Diego reminds me of a bad Joss Stone song from her second record: "I gotta right to be wroooooooong." Anyway here's a few graphs from the AP article, just to save the news from the dustbin of time.

SAN DIEGO - The San Diego County Board of Supervisors voted Tuesday to appeal a judge's recent decision to reject the county's challenge to California's decade-old law legalizing marijuana use by the chronically ill.

The county sued California and its health services director in February over a state requirement that counties issue identification cards for medical marijuana users and maintain a registry of people who apply for the cards. San Bernardino and Merced counties joined the suit.

The counties argued that local governments shouldn't be bound to uphold state laws that are weaker than the federal blanket ban on marijuana.

Update: San Diego lost the appeal on 7/31/08.

Top 10 Drug Law Stories of 2006 (Part One)

Well the year isn't officially over yet, but I thought I better do this before everybody goes on vacation, including me. So without further ado, here are the Drug Law Blog Top 10 stories from 2006. Some of these got covered on this blog. Some didn't. But they're all related to the basic issues with which this blog is concerned.

10. The Chicago Museum of Science and Technology Hosts a Bizarre Pro-Drug War Propaganda Exhibit for the DEA and Attempts to Silence Protestors. I'm still trying to figure out what this "Target: America" exhibit was about. It seemed to be an  attempt to link the use of drugs to terrorism, including the 9/11 attack on the World Trade Center, that somehow found its way into an otherwise respectable museum, giving a black eye to the folks running the place and drawing the derision of the blogosphere as well as some mainstream press sources, including the Washington Post and Chicago Tribune. Pete Guither, who writes the great blog Drug WarRant, actually went so far as to organize a peaceful leafleting protest outside the museum, and was corralled by museum staff into a "safe zone" that effectively made it impossible for him to contact any actual patrons of the museum. All in all, an  embarrassing move by the Museum of Science and Technology.

(Above: Pete Guither of Drug WarRant attempts to protest the Chicago Museum of Science and Technology's Target: America exhibit after being herded into a "safe zone" by the museum staff. Below: One of the displays from the exhibit, featuring wreckage from the World Trade Center.)

9. Merck Delivers The Smackdown to Plaintiffs' Attorneys in Vioxx Litigation, Absolutely Refusing to Settle and Winning More Than It Loses. This was an example of an absolutely ferocious civil litigation strategy that appears to have paid off for a pharmaceutical manufacturer. Of 16 trials that were set to go, juries had decided in Merck's favor in seven cases, five cases were dismissed, and Merck lost in four. Because 2006 was the year when the verdicts really started coming in (although a couple occurred in late 2005), Vioxx was arguably the year's biggest drug safety story. (If you don't count tobacco.)  Merck wasn't handing out any settlements to anybody. This Law.com piece called Merck's strategy "The most prominent example of defense intransigence right now." And that's the kind of thing that gives you civil lawyers nightmares or shivers of delight, depending on who pays your billable hours. 

8. Mexico Decides to Decriminalize Recreational Drugs! And Then Changes Its Mind! Another odd moment in 2006 occurred when the Mexican legislature passed a bill that would have decriminalized possession of small amounts of most recreational drugs, including things like cocaine, marijuana, heroin and so forth. Then-President Vicente Fox reportedly said he was going to sign the bill in early May. Then, just days later, Fox announced that he was not going to sign the bill after all. The New York Times reported that representatives from the U.S. State Department had met with the Mexican ambassador in Washington before this decision was made, but it was never entirely clear what exactly had changed Fox's mind.

(Below: Former Mexican President Vicente Fox.)

7. The United States Gets Tough on Methamphetamine By Locking Up All Its Cold Medicine, Forcing Tweakers To Import Speed From Mexico Instead and Messing Up the Formula For Nyquil. In March, President Bush signed the renewal of the Patriot Act, which included the Combat Methamphetamine Act. As a result of that piece of legislation, drugs like Sudafed that contain pseudoephedrine, which can be used to make methamphetamine, had to be put behind the counter of pharmacies. The result is that domestic meth production has indeed fallen, but much of the slack has been taken up by skyrocketing production of meth south of the border. Not only that: they changed the formula in Nyquil to take out the pseudoephedrine so they wouldn't have to put it behind the counter! As the blog The Consumerist noted: "Nyquil has ditched the decongestant pseudoephedrine in favor of phenylephrine and doxylamine succinate. Neither apparently works as effectively as the pseudoephedrine, either on a sick person's nose, or in the crusty coffee machine carafe of the apocryphal neighborhood meth cooker."

(Below: CA Senator Dianne Feinstein. She, along with Senator Jim Talent, authored the Combat Meth Act.)

6. Andrew Von Eschenbach Allows Plan B Achieve Over-The-Counter Status And Then Is Confirmed as FDA Head. Politics swirled around the FDA as Senators Hillary Clinton and Patty Murray essentially held the nomination of Andrew Von Eschenbach hostage until he ended the FDA's refusal to grant over-the-counter status to Plan B. Now Eschenbach has been confirmed and Plan B has OTC status.

(Above: Plan B. Below: Newly Confirmed FDA Head Andrew Von Eschenbach.)

5. FDA Issues a "4/20" Declaration On Medical Marijuana. In what seemed like an inside joke, the FDA chose April 20th -- that is, 4/20, a seeming nod to marijuana users around the world  --  to issue a statement reasserting its position on the merits of medical marijuana: namely, that medical marijuana can not be a legitimate form of medicine because it is smoked.

(Update: here's Part Two.)

Ninth Circuit on 'Good Faith' Exception When Warrant Clearly Unsupported By Probable Cause

The U.S. v. Leon rule allowing officers to rely in "good faith" on what turns out to be an inadequate warrant does not apply when it was not objectively reasonable in the first place for the officers to believe that the warrant was supported by probable cause, a Ninth Circuit panel held today in U.S. v. Luong, No. 05-50090.

In this case, the DEA and LAPD searched Luong's home based on a warrant affidavit that merely (1) repeated an anonymous tip that somebody who was coming to Los Angeles from Hong Kong might be involved in making methamphetamine, and (2)described an observation of Luong, together with a companion who had come to Los Angeles from Hong Kong, buying a high-pressure hose at Home Depot.  These allegations, by themselves, did not constitute probable cause for the search, a point the government conceded on appeal. But more critically, the court said it was not reasonable for the officers to believe in good faith that probable cause existed or for other factors to be figured in after the fact in an effort to cure the deficiencies that existed in the warrant at the time.

In a little dose of sanity, the court rejected the argument that the inadequacy of the warrant should be chalked up to "exigent circumstances" because law enforcement was concerned that a meth lab might start up and thereby "threaten the community with a chemical explosion or fire." (If the court had accepted that argument, it would have essentially meant that police dealing with meth labs could disregard the 4th Amendment as a matter of course on "exigent circumstances" grounds.) The court also rejected the notion that evidence extrinsic to the affidavit (such as comments made by the officers to the judge over the telephone) should be considered in determining whether probable cause existed.

Judge Callahan dissented, noting that "a police officer generally should be able to rely on a judge’s probable cause determination." To my mind, this is actually an interesting point. Even if the warrant was based on flimsy evidence, the judge approved it. Why would a reasonable officer second guess that determination? On this issue, the majority says: "Leon clearly and unequivocally states that when the affidavit itself is entirely lacking in indicia of probable cause, it cannot be said that the officer acted in good faith in relying on a warrant that issues. That is the precise situation we have in this case." So it seems that the rule is that an officer can rely in good faith on a defective warrant, as long as the warrant isn't so manifestly defective that good faith reliance is simply not possible.

 

On Meth Registries

Yipes. CrimProf Blog points to an effort to fight meth production by producing "meth registries" for convicted meth manufacturers -- modeled, of course, after the sex offender registries that are used to harass people convicted of sex offenses.

"It lets the community know that there’s someone like this in their community, because the likelihood of them going back and doing it again is high," said Georgia state Rep. Mike Coan, who is spearheading meth registry legislation. "It’s no different, really, from the sex offender (registry). If there’s one living near me, I want to know it."

It's really not any different? The distinction between sexual assault and production of a recreational drug is irrelevant? This is a wild claim.

The state of Tennessee already maintains a "meth offender registry," which you can view here.

Update: I just noticed, by the way, that I actually wrote about an Illinois meth registry back in June but had forgotten all about it. Sorry to be repeating myself!

On that Marijuana Policy Project Study

Well I always think it's a good idea to piss off your potential allies, so here goes:

The Marijuana Policy Project released a study this week the point of which is supposed to be that "marijuana prohibition may actually be responsible for increasing teen marijuana use," or that, at the very least, such prohibition is not helping to curb marijuana use.

I like the contrarian premise of the study, which corresponds neatly to my own biases as a quasi-libertarian on drug policy. And I also agree strongly with the overall psychological argument that the MPP is making, which is the notion that "forbidden fruit" is made attractive by the very fact that it is forbidden. 

My only problem with the MPP study? I think the statistical argument is not very well supported. In fact, I think the numbers show that the actual correspondence between prohibition and marijuana use trends is pretty loose at best. And, at least when it comes to recent trends, the MPP's characterization of reality is actually inaccurate.

The MPP is taking a very, very big-picture look at this issue, comparing use trends today to those that existed before marijuana was criminalized in 1937. Back in those days, not too many people smoked pot. And while that's sort of an interesting point of reference, it's just kind of ridiculous to write something like "youth marijuana use has increased by a minimum of 2,000%, and perhaps much more, since the advent of national marijuana prohibition" (p. 7) as if the main thing that's changed since 1937 in our national culture around marijuana is that the drug was criminalized. I mean, there was also something called the 1960s. Not to mention the 1970s. There was the flowering of the counterculture. And so on. Drug law was part of it, but you could hardly call it the most important part. 

Moreover, when you take a look at recent trends in marijuana use, they're really all over the place in a way that is tough to explain and certainly does not seem to map neatly onto trends in prohibition. If you look at Table 5-1 of the Monitoring the Future Study (see pages 190 and 191), you'll note that marijuana use among 12th graders went from 47.3% in 1975 up to a high of 60.4% in 1979, gradually dropped down to 32.5 in 1992, climbed back up to 49% in 2001, and has been slowly dropping since that time (not "continuing to rise," as the MPP asserts in its conclusion). In other words, marijuana use has been fluctuating dramatically back and forth over the last three decades or so. There might be some relationship between these trends and prohibition practices, but it's pretty hard to say what the hell it is. Marijuana was illegal in 1979 and it was illegal in 1992, so why were nearly twice as many 12 graders reporting that they had used it in 1979 as in '92?

Probably the fact that marijuana is illegal makes some sort of baseline contribution to its popularity. The MPP's discussion of places like the Netherlands is useful in this regard, because it suggests that noncriminal approaches to marijuana may remove some of the "forbidden" allure of the drug. But ignoring the near-term picture allows the MPP to make some arguments about legalization that are just plain sketchy. For example, they assert that "The latest state to decriminalize marijuana, Nevada, has seen a drop in teen marijuana use since the decriminalization law took effect in 2001" without noting that teen marijuana use declined everywhere during that period, according to Monitoring the Future, not just in Nevada. Similarly, the example of the effect of "downgrading" marijuana in the UK in 2004 lacks context. Yes, pot use dropped there, but pot use dropped in the U.S. too over the same period, without any corresponding change in the law.

I'm also kind of amazed that the MPP in this study invokes the so-called "gateway effect" of marijuana when, in other contexts, I'm quite sure that they would deny (reasonably) that the use of marijuana is necessarily a gateway to harder drugs. (In fact, here's a press release from the MPP just a few months ago talking about the fact that the gateway effect "may be a mirage.") For my money, the bigger and more accurate "gateway" to worry about when you criminalize a drug is the gateway to America's gargantuan prison system, which gobbles up lives and possibilities like a sumo wrestler at a buffet dinner.   

And with that, I'm going to bed.

(By the way, Drug WarRant's take on this study is here. Pete says: "Each year, the ONDCP cherry-picks some out-of-context set of numbers from that report and touts it as either a victory in the drug war or a sign that we need to spend more/arrest more, etc. With the new MPP report, the press will have the option of at least 'balancing' those claims with the real in-context information in the MPP report." I gotta say, even though I agree with Pete about 95% of the time, I think that characterization is just not accurate with respect to this particular report. Jacob Sullum's summary at Hit & Run is, in my opinion, much more fair: "this may overstate what the evidence shows, but various kinds of data reviewed in the report do indicate that variations in drug policy have little or no impact on pot smoking by teenagers.")

FDA Proposes Guideline on Access to Experimental Drugs

The AP reports today that the FDA has released proposed guidelines that would allow "greater numbers of seriously ill patients [to] get experimental medicines . . .  [and] allow drug companies to charge for the medicines."

Interestingly, however, the Abigail Alliance for Better Access to Developmental Drugs is characterizing the proposed guidelines (available here) as little more than a "smokescreen."

"They've taken an existing policy and put it into a regulation. We don't see any change there. There's nothing new that didn't already exist," said Abigail Alliance President Frank Burroughs in a conversation with Drug Law Blog. "What's really disheartening is that they've been working on this for three years and it falls short of the needed change that the Abigail Alliance and others have been pushing for." 

The Abigail Alliance is the plaintiff in the DC Circuit case on access to experimental drugs which will be reheard en banc.

House Passes Dextromethorphan Bill

The House last week passed a bill which would prohibit the distribution of raw dextromethorphan, an ingredient that is used in many cough remedies and is sometimes used recreationally. The text of the bill, HR 5280, is here.

The bill would add language to the Federal Food, Drug, and Cosmetic Act, 21 USC 331, making that law apply to the sale of dextromethorphan that is not in "finished dosage form."

The passage of this bill comes on the heels of the study released last week suggesting that increasing numbers of young people are using cough syrup recreationally.  It will be interesting to see if the legislative reaction to this issue is to be as restrictive of dextromethorphan as Congress was of pseudoephedrine, or whether measures like HR 5280 will stake out some kind of middle ground that allows cough remedies to still be displayed on pharmacy shelves.

BusinessWeek on Online Prescribing

BusinessWeek has a piece up today discussing the willingness of some doctors to prescribe drugs online, facilitating a bustling Internet trade in prescription meds. A few graphs:

An accomplished "doc-in-a-box," as the hired hands of online "pharmacies" are known, typically approves Internet prescriptions at a rate of more than 1,000 a day—without communicating with the purchaser or, in many cases, reading the questionnaire. Such work may be less challenging than the average medical practice—and can be swiftly rewarding. For each prescription, a "doc-in-a-box" typically earns up to $10, and sometimes even more. An ambitious doctor can earn over $1 million a year.

Some shady online pharmacies don't even bother with prescriptions or doctors at all, they just respond to orders. Others hire doctors to approve prescriptions, generally required by law, for controlled pharmaceuticals. But without a physical exam, discussion of symptoms, consideration of medical history, and a diagnosis, a person can suffer unexpected consequences from medication they believe can help alleviate their condition. In Schmidt's case, he nearly died and has been left permanently impaired.

How easy is it to get prescription drugs online? In 2004, private investigators at Beau Dietl & Assoc., hired by the drug industry group Pharmaceutical Research & Manufacturers of America, easily obtained a range of prescription medicines by lying on questionnaires. Among them: antidepressants Zoloft and Paxil, muscle relaxant Zanaflex, and weight-loss drugs Meridia and Bontril. In a June, 2006, report for Columbia's National Center on Addiction & Substance Abuse, the same investigators noted that "it was rare for an online pharmacy to reject an order or even follow through with a phone call."

The interesting legal wrinkle, according to Keith Epstein, who wrote the article, is that a prescription is only valid if issued by a doctor "in the usual course of his professional practice." And of course what passes for "usual" is changing these days, simply because the Internet is such a ubiquitous tool and because people don't have much time for face-to-face meetings.

Even the lawmakers aren't clear on what's legal or not. By complying with federal law which requires prescriptions—but then having doctors approve them without seeing or speaking with a patient—"some rogue sites operate in a legal gray area," noted a legislative attorney for the Congressional Research Service in a May, 2005, report to Congress. "This practice, though potentially unsafe for patients who may be diagnosed incorrectly, is not necessarily illegal," the attorney added.

It's a very interesting article. Worth a look.

A Belated Nod to Lopez v. Gonzales

Today is the first time I've had a chance to sit down and think about the Supreme Court's decision in Lopez v. Gonzales. In that case, as has been extensively written up elsewhere, the court held 8-1 that "that state convictions for simple drug possession, whether felony or misdemeanor, do not constitute an 'aggravated felony' under the immigration statutes and, therefore, the federal sentencing guidelines." That summary of the holding is from Ninth Circuit Blog, and the opinion itself is here.

A few good graphs from Linda Greenhouse's New York Times writeup:

In analyzing the government’s position that any offense “punishable” under the Controlled Substances Act therefore became a “drug trafficking” felony, Justice Souter said that “there are a few things wrong with this argument, the first being its incoherence.” While “trafficking” ordinarily meant “some sort of commercial dealing,” he said, “commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess.”

Justice Souter continued that while the government’s argument appeared implausible, that was “not to deny that the government might still be right; Humpty Dumpty used a word to mean ‘just what he chose it to mean — neither more nor less,’ and legislatures, too, are free to be unorthodox.”

But in this instance, he said, if Congress meant to define drug trafficking in such an “unexpected” way, “Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”

I think the only thing I have to add to the discussion is that Lopez comes only a few months after the Supreme Court's per curiam decision in Salinas v. U.S., which also concerned simple drug possession. In that case, the Court said that simple possession was not a "controlled substance offense" for purposes of the federal sentencing guidelines, and here they reject the idea that simple possession is an aggravated felony.

And: Justice Thomas, though I sometimes feel he is wrongly maligned, is really pushing the boundary between "plain meaning" and "plainly ridiculous" in his dissent. To suggest that the words "felony punishable under the Controlled Substances Act" don't refer to an offense that would be a felony under the Controlled Substances Act is just, well, a stretch. The one good shot he does get in comes in footnote 2, where he invokes Gonzales v. Raich to ding the majority on their inconsistent view on whether simple possession of a drug implicates commerce:

In its discussion of whether possession may constitute “trafficking,”the Court takes its own trip “through the looking glass.” See ante, at 6. “Commerce,” according to the Court, “certainly . . . is no element of simple possession . . . .” Ante, at 5. Not long ago, the Court found the opposite to be true when interpreting the scope of Congress’ power under the Commerce Clause. See Gonzales v. Raich, 545 U. S. 1, 22 (2005) (plurality opinion) (concluding that Congress may regulate the mere possession of marijuana as affecting “commerce”). In Raich, the Court fell into the very trap it purports to identify today by “turn[ing]simple possession into [commerce], just what the English language tells us not to expect.” Ante, at 6; see also Raich, supra, at 57–58 (THOMAS, J., dissenting). The Court’s broadening of the Commerce Clause stands in tension with its present narrow interpretation of “trafficking,” which8 U. S. C. §1101(a)(43)(B) explicitly alters to include at least some possession offenses.

Counties' Medical Marijuana Suit: Now Completely Dead

That tentative ruling against the counties of San Diego, San Bernardino and Merced, which had been challenging California's medical marijuana law, has now become final, the San Diego Union reports.

Judge William R. Nevitt Jr. ruled that state law enforcement officials are not obligated to arrest and prosecute people who violate federal laws. The ruling favored the state and a handful of patients and advocacy groups that joined the case after it was filed early this year.

The final ruling was welcome news to lawyers and patient advocates who support medical marijuana. The case has been closely watched from Sacramento to Washington, D.C., for its obvious political implications.

The discussion of the tentative ruling is here, and the text of the ruling is here, courtesy of How Appealing. 

Update: Days after this decision, San Diego decided to appeal.

Update Again: A year and a half later, after spending who knows how much money on this case, San Diego lost the appeal on 7/31/08.

High Court Declines to Hear Case of Tough Drug Sentence

From the Salt Lake Tribune:

WASHINGTON - A Utah record producer will likely have to serve his 55-year sentence on federal weapons and drug charges, after the U.S. Supreme Court refused Monday to hear his case.

Weldon Angelos was convicted of 16 counts of weapons and drug violations after officers arranged three drug buys from him in mid-2002. Angelos carried a gun during the purchases, and later searches turned up more drugs and a weapon.

U.S. District Judge Paul Cassell balked at the length of the mandatory sentence he had to impose, saying "to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel and even irrational." Cassell said he had to abide by Congress' wishes, though he recommended the 55-year sentence be commuted by the president.

The 10th U.S. Circuit Court of Appeals upheld Cassell's sentence, and the Supreme Court declined Monday to review the case.

. . .

The federal law imposes a five-year minimum sentence for carrying a firearm during a drug sale, and a 25-year minimum for each subsequent conviction. Angelos was convicted of three of the five charges.

Cassell imposed a one-day sentence for the other 13 counts of Angelos' conviction.

In comparison to sentences for other crimes, Luna claims, the prison time imposed on Angelos is clearly excessive.

A criminal would get up to 24 years and 5 months for hijacking an airplane or less than 20 years for blowing up a bomb to try to kill someone. A drug kingpin running a major drug ring in which a death results would be eligible for less than 25 years.

Hat tip: How Appealing.

Another Suit on CA versus federal marijuana law

Palm Springs' Desert Sun newspaper ran an article this weekend about a group from the Coachella Valley that has filed suit against the California Attorney General "aimed at stopping the state from using federal law to prosecute legal medical marijuana users."

There has already been a related lawsuit, described here, that addressed the question whether federal law prohibited California from complying with the terms of Prop. 215. And the answer, at least according to a tentative ruling, was "No, it doesn't." (Update: that tentative ruling has since become final.)

This new suit seems to be asking a different, related question: Does Prop. 215 prohibit state law enforcement agencies from spending money in cooperating with federal efforts to apprehend people involved in the cultivation/use of medical marijuana? For example, the article notes that the Riverside sheriff "took part in a federal raid last March at the Sky Valley home of Garry Silva, a qualified medical marijuana user who was growing plants for a small group of patients, which is legal under state law."

Back to the FDA's Preemption Preamble

This past summer one of my pet interests was the FDA's so-called "preemption preamble," which went into effect on June 30, 2006 and purports to forestall plaintiffs' suits for drug companies' failure to warn of drug dangers as long the companies have obtained FDA approval for their drug labels. Background discussion of the preamble is in this post from July as well as a longer post from June.

So what's up with the preemption preamble after about 6 months?

A two-part, subscription-only piece on the preamble ran on Martindale-Hubbell ran in September (a version of part one is available here), and the basic thrust of the articles seemed to be that the effect of the rule appears significant but perhaps not as dramatic as initially thought. In particular, the authors of the piece noted a Rhode Island Superior Court case, Cotu v. Tracy, Not Reported in A.2d, 2006 WL 1314261 (R.I. Super. 2006), in which the court rejected the notion that the state law failure-to-warn claim was pre-empted by FDA approval of an AstraZeneca label. The conclusion of the authors: "The Preemption Preamble appears to be landmark legislation on its face, but only the passage of time will reveal whether the new Rule is anything more than a puff piece."

Right on the same day the Martindale-Hubbell articles came out, a federal trial court in New Jersey issued an opinion in McNellis v. Pfizer, 2006 U.S. Dist. LEXIS 70844. In that case, the district court granted Pfizer's motion for an interlocutory appeal of its ruling on the pre-emption issue, which had cut against Pfizer but had been made before the FDA issued its final rule. The court added that it was

required to give less deference to an agency's interpretation of its own regulations  if the agency's interpretation of those regulations has not been consistent. Second, this Court finds that the majority of cases cited by Pfizer in support of its argument that this Court should grant deference to the FDA's interpretation of its regulations involve the agency's interpretation of an express preemption clause. As such, these arguments carry little weight in this Court's determination of the present regulations.  

Ultimately, however, the court passed the issue to the Third Circuit, certifying the following question: "Whether that the United States Food and Drug Administration's requirements for the form and content of the labeling for the prescription antidepressant Zoloft preempted New Jersey's failure-to-warn law, under the doctrine of conflict preemption, where the FDA's regulations at 21 C.F.R. 201.57(e) and 314.70(c)(6)(iii) permit a manufacturer to unilaterally enhance its warning when the manufacturer has reasonable evidence of an association of a serious hazard with a drug." I'm still of the opinion that the preemption preamble is going to be a very big deal. But we'll see.

More on the CA Supreme Ruling in People v. Wright

Following up on Monday's item on People v. Wright, the California Supreme Court case dealing with the Compassionate Use Act:

The LA Times had an article on 11/28 that I think fails to capture what's really noteworthy about this  decision. Here are the first three graphs:

SAN FRANCISCO — People charged with transporting marijuana may avoid conviction if they can show that the drug was for their personal medical use, the California Supreme Court ruled Monday.

In a 6-1 decision, the state high court said California's medical marijuana law protects patients who transport even relatively large quantities of the drug if they can show that the amount was consistent with their medical needs and recommended by a licensed physician.

The court interpreted a 2004 law passed by the Legislature to address uncertainties that followed voter passage of the Compassionate Use Act of 1996. The attorney general's office said the ruling would affect a handful of cases.

This is a weird spin on the decision because the real issue in this case wasn't whether the Compassionate Use Act provided a defense to the charge of transporation -- indeed, everybody agreed that it clearly should provide a defense, under the explicit terms of the Medical Marijuana Program, a California law enacted while this case was pending that "extended a CUA defense to a charge of transporting marijuana where certain conditions are met." (p. 12.) There was some question about whether the MMP should apply retroactively, but really the debate in this case was not whether there was or was not a defense to transportation.

The more interesting debate was about whether, under the facts of this case, Wright was entitled to a jury instruction that discussed the terms of the Compassionate Use Act. The majority concluded that Wright should have received that instruction even though several facts suggested he might have possessed marijuana with intent to sell.

Justice Baxter's partial dissent focuses specifically on this issue, though Baxter concurs with the ultimate outcome of the case. Baxter says that the majority concludes that Wright was entitled to the instruction simply because he "adduced evidence sufficient to raise a reasonable doubt concerning both his medical eligibility to use the quantity of marijuana with which he was arrested, and his actual intent to use it only for his personal medical purposes."

But Baxter says this is the wrong analysis:

[T]o justify a CUA defense [jury] instruction under the MMP, defendant must have adduced creditable evidence, first, that he was a “qualified patient,” in that a licensed physician had recommended or approved his personal use of marijuana to treat a condition specified in the CUA (see §§ 11362.715, 11362.765, subds. (a), (b)(1)), second, that the quantity possessed or transported, to the extent it exceeded eight ounces of dried marijuana, was consistent with his particular medical needs, as approved by a physician (§ 11362.77, subds. (a), (b)), and third, that the marijuana on which the charges are based actually was “for his . . . own personal medical use” (§ 11362.765, subd. (b)(1)). I am persuaded defendant did not satisfy this minimal burden as to any of the prongs of the defense.

The majority looks at it differently. It simply says that Wright "presented evidence at trial that he had purchased the marijuana found in his car on the morning of his arrest for his own personal medical use and was in the process of transporting the marijuana to his home when he was arrested. This testimony was sufficient to merit instruction on the defense to a charge of transporting marijuana set forth in the MMP." (Emphasis added.)

The court rejects Justice Baxter's argument that the quantity of marijuana seized should have made Wright inelligible for the instruction (see pp. 19-20) and the court rejects the argument that Wright should not have received the instruction because he may have had an intent to sell the marijuana. (p. 20.) So the reason Wright will matter, going forward, isn't because of the viability of a CUA defense to transportation. It will matter because because it allows a defendant to get a jury instruction on the CUA even when they have too much marijuana, when they aren't a card carrying patient, and where evidence suggests an intent to sell. That's a very pro-defense standard, at least on my reading.

CA Supremes on Compassionate Use Act as Affirmative Defense to Transportation

A man who (1) failed to identify himself as a medical marijuana patient, and (2) was carrying slightly more marijuana than allowed under California's Compassionate Use Act, and (3) was found by a jury to have posssessed the marijuana with intent to sell was nevertheless entitled to a jury instruction on the Compassionate Use Act as a defense against a charge of transporting marijuana, the California Supreme Court held today in People v. Wright, S128442..

There is a sharp partial dissent by Justice Baxter. More on this later. Gotta go to class!

Update: a more detailed discussion of this case is in this post.

Conviction Overturned for Kentucky Pain Doctor

The Kentucky Supreme Court has tossed out the conviction of a pain doctor who had been sentenced to 20 years in prison for unlawfully prescribing medication.

The evidence against Dr. Fortune J. Williams was based in part on files seized during a warrantless raid of his office -- a raid that was carried out both by medical investigators (who did not need a warrant) and by detectives (who did). Because of the Fourth Amendment violation, the conviction could not stand. The prosecution plans to retry Dr. Williams, however.

Ninth Circuit: State Law Possession of Marijuana for Sale is a "Drug Trafficking Offense" under Federal Sentencing Guidelines.

A conviction under Cal. H&S 11359 of marijuana possession for sale is a "drug trafficking offense" for purposes of the federal sentencing guidelines, the Ninth Circuit held Nov. 21 in U.S. v. Martinez-Rodriguez, No. 05-50719.

Martinez-Rodriguez's sentence was enhanced by 16 levels on the federal guidelines because of his prior conviction under California law. He argued that "because California’s definition of constructive possession is broader than the federal definition of constructive possession, a violation of section 11359 is not a drug trafficking offense under the categorical approach." But that argument did not fly. I think I'll leave it at that, because this seems like a pretty common sense outcome.

Trying to Prevent Another 'Operation Meth Merchant'

The North American South Asian Bar Association (NASABA) announced this week that it had put on a workshop at a meeting hosted by Atlanta retailers to help them avoid a recap of "Operation Meth Merchant," the sting operation that resulted in the arrest of more than 40 mom-and-pop convenience store clerks in Georgia. The workshop was a sort of primer on how meth gets made, why many of the ingredients for the recipes tend to get purchased at convenience stores, and why the legal implications of selling those ingredients to people know to be meth cooks can be devastating for store operators. And while that's all true, it's also important to remember that Operation Meth Merchant was a pretty obvious case of racial targeting, with the overwhelming majority of those arrested being South Asian, and stores owned by whites and other ethnic groups almost wholly ignored by law enforcement.

This blog previously wrote about NASABA's plans to host this workshop, and its break with the DEA over Operation Meth Merchant, here and here.

The Dutch Model vs. The 'Boring' Model

Over at Reason's Hit & Run blog, Radley Balko has a post up reflecting on the recent Students for Sensible Drug Policy conference on the drug war. A key point he makes is that advocates of what he calls "The Dutch Model" of drug policy -- i.e. an essentially medicalized approach to drug use, with heavy state involvement in the lives of users -- fail to do an important thing: to treat "citizens as actual adults, capable not only of making their own decisions about what they put into their bodies, but also of assuming full responsibility for those decisions."

Fair enough. I'm all for treating grownups as grownups. But I have two reactions.

1)If the government is going to be getting in anybody's business, it's a hell of a lot better for that intervention to be in the form of doctors and nurses, counselors and other more or less benign types than for it to be in the form of cops, corrections officers, SWAT teams and so forth. If I could pick my poison, it would be the guy in the white coat, not the guy in the flack jacket.

2)But more importantly, the alternatives in drug policy are not simply a heavy handed Dutch model approach versus a libertarian free-for-all. Instead, what I've been calling the make-drugs-boring model, which primarily involves treating now-illicit drugs the same way that legal drugs are already treated in the U.S., could gradually change our national culture around drug use. In this model, it's not so much about medicalizing drugs and turning recreational drug use into a "disease," as the Dutch would have it, and it's certainly not about pursuing the impossible goal of eliminating recreational drug use. It's more about providing adequate, accurate information for recreational drug users, safe packaging for drugs, and rudimentary regulation of the illicit drug-production industry. Making heroin a buzz that is just as boring, workaday and predictable as Coors Lite. Making the labelling of a box of Benadryl perfectly explicit: take 2 of these and you'll get rid of your allergies; take 15 or so and you'll experience unpleasant hallucinations that are extremely difficult to distinguish from reality, and you'll also put your health in serious danger. As an adult, you can take your pick, and take the consequences.

One thing that seems to be implied by the tone of some Reason writers in their approach to drug policy is that they would really like to preserve space in civil society for adults to be, for lack of a better word, bad. Or naughty. Or risky. As long as it doesn't hurt anybody else.  I understand that perspective, but I'm ultimately coming from a different place. I'm less interested in preserving people's ability to goof around and more interested in reducing America's insane addiction to incarceration as a tool of social policy. So if making drugs boring also makes it a little less easy to be naughty and transgressive, I say that's a small price to pay. Our government should not be a parental figure against which we need to rebel, but our current drug policy unfortunately places it in exactly that role.

On Crack and Sentencing

Thanks to the Sentencing Project, we learn today that the DOJ considers the current sentencing scheme for crack cocaine to be "reasonable" and "necessary to shut down violent drug gangs."

Perhaps that's why there aren't any more violent gangs. 20 years of putting people in prison for crack possession has solved the problem. . . . Oh wait, I guess the empirical evidence doesn't support that conclusion.

At any rate, that characterization of America's approach to crack sentencing comes from a writeup of last week's Sentencing Commission roundtable on the 100-to-1 disparity between crack and powder cocaine sentences.

Another perspective discussed in the writeup is that of D.C. District Court Judge Reggie Walton, who told the commission that "the existing sentencing differences between crack and powder cocaine punishments symbolize for the public the racial unfairness of the criminal justice system."

It's still not clear to me what, if anything, will come of this roundtable. Certainly it's a useful discussion to have, but whether it will lead to any change at all is another question.

Hat tip to the Sentencing Law and Policy blog.

CA Counties' Medical Marijuana Suit Headed For Defeat

A suit by the counties of San Diego, San Bernardino and Merced Counties challenging California's law on medical marijuana is headed for defeat, according to a tentative ruling released Friday by San Diego Superior Court Judge William Nevitt.

The SF Chronicle reports:

Federal officers are free to enforce the U.S. law prohibiting possession and cultivation of marijuana, but that doesn't prohibit California from allowing medical use of the drug under its own law, Superior Court Judge William Nevitt said. The voters did just that when they approved Proposition 215 in 1996.

The two laws would be in conflict only if California required its residents or officials to do something that specifically was banned by the federal law, Nevitt said. California's decision to allow medicinal use of marijuana doesn't qualify, he said.

This case is called County of San Diego v. San Diego NORML. Basic background is in this post from June 2006, and this post from August 2006 describes the efforts of the Drug Policy Alliance and the ACLU to get involved in the case.

Update: This ruling became final in December.