Pete of Drug WarRant referred yesterday to a post from NORML arguing that any proposals around marijuana legalization must include provisions to allow people to grow their own marijuana, and that "those of us who lobby on this issue must insist on amendments to permit personal cultivation."
It matters, in the sense that can actually resonate with democratic majorities, because criminal law around drugs is severely damaging our society by encouraging massive overincarceration and creating vast, violent black markets around drugs. Any legal reform that reduces those harms by moving toward a legal, regulated market would be an outstanding step forward.
I don't care how tightly regulated regulate the market is as long as the controls are primarily civil rather than criminal. I don't care if you can "grow your own" as long as somebody is allowed to grow it for you, legally, and sell it to you legally, and you are permitted to use it legally, as an adult. I don't even care if the market that results from that system is somewhat exploitative and doesn't entirely eradicate some percentage of black market trafficking, because -- guess what -- that's capitalism. The same system is already in place around cigarettes and alcohol. It's not perfect. But it's a hell of lot better than pretending to "control" a market primarily through the use of criminal law. Marijuana partisans should recognize this if their goal is to get legislation passed and not simply to spend time thinking about utopian alternatives to the status quo.
Now that we've admitted that opium eradication in Afghanistan was simply a massive "waste of money," shouldn't the next logical step be to take a look at the eradication campaigns we have going on right here on our own soil?
(Above: Opium eradication. Photo by David Guttenfelder, Associated Press, from the website of the Seattle Times. Below: CAMP marijuana eradication.)
What about California's CAMP program to "eradicate" marijuana, for example? While law enforcement gets to toot its own horn regarding the quantities of marijuana seized each year, many of the criticisms that can be leveled against the Afghan eradication program apply just as strongly to this domestic attempt to disrupt marijuana cultivation.
This campaign enriches the very people we're ostensibly trying to combat -- drug dealers -- just like the Afghan eradication campaign "helped the Taliban" under a misguided attempt to combat the Taliban.This happens because -- shock! -- reducing the supply of something simply causes a corresponding increase in its price, and the drug producers therefore get to pocket more money than they would in the absence of such intervention.
This campaign is also like the failed Afghan program in that it ultimately doesn't do very much to prevent consumers from obtaining the drug it targets. In Afghanistan, heroin production reached a record high in 2006 in spite of eradication efforts. In the case of marijuana, as the media has documented over and over again, outdoor eradication has simply driven cultivators indoors. Presumably that's why the annual Monitoring the Future study of youth drug use continues to show 80-90% of 12th graders saying that marijuana is "easy to get," year after year, no matter how dramatic the headlines may be about CAMP program "success."
(Above: Perceptions of marijuana availability among youth over time. Source: Monitoring the Future, 2008 Overview, p. 13.)
Finally, the CAMP program is absurd on its own terms here in California where the state is unable to pay its creditors and desperately needs new revenue. When we're slashing funding for schools and low income people, it's an extraordinary shame to see more than $6 billion dollars in marijuana being destroyed (along with its potential to be taxed and regulated) year after year.
Eradication didn't work in Afghanistan. Maybe it's time to realize that it's a bad policy for California, too.
Solano County Supervisor Barbara Kondylis is quoted today as follows in an article about Solano County's plans to begin issuing medical marijuana ID cards:
"This is too long in coming. (Marijuana) does nothing compared to the harm alcohol causes. It's
time in this country we start having a conversation about the war on
drugs."
(Above: Solano County Supervisor Barbara Kondylis. Photo from the website of Solano County.)
How? Kristof contends we need to move away from the criminal model of control.
we need to be less ideological and more empirical in figuring out what
works in combating America’s drug problem. One approach would be for a
state or two to experiment with legalization of marijuana, allowing it
to be sold by licensed pharmacists, while measuring the impact on usage
and crime.
One odd thing about this suggestion, of course, is that many states have already been engaged in a version of the experiment Kristof suggests, by allowing medical use of marijuana, and the evidence is quite clear that more liberal policies have been a success.
In California, where very permissive medical marijuana laws have been on the books since 1996, law enforcement is constantly claiming that our system is problematic. In fact, however, the data suggest otherwise. This is what crime in California looks like over the last , according to the California Attorney General: it has been going down significantly.
(Above: Graph of property and violent crime in California showing continued steady decline after the passage of medical marijuana laws in 1996. Source: Crime in California 2007, California Attorney General (pdf).)
Marijuana use has also continued to decline nationwide despite the proliferation of states allowing medical marijuana. More on this later today when I get a few minutes.
The New York Times posted an interesting multimedia feature on its website this week: "The Marijuana State." The piece looks at California law on medical marijuana, and the effect of those laws on various folks.
I find aspects of the piece frustrating -- such as the use of the term "exploit" to describe law abiding behavior of medical marijuana consumers (do people who use xanax or antidepressants to feel comfortable "exploit" the law around those drugs?) and especially the intro bit on "grow houses," which doesn't show any awareness of the way federal law forces people to resort to this form of semi-dodgy cultivation.
Overall, though, the piece seems to do a good job of discussing what is happening in California and letting the viewer decide whether it's an out-of-control bacchanalia, as some law enforcement folks suggest, or something a little more down to earth.
After several delays, Morro Bay medical marijuana dispensary operator Charles Lynch is scheduled to be sentenced today in federal court. More on that if/when it happens.
SACRAMENTO – Senator Mark Leno introduced a resolution late on Monday
that urges the federal government to end medical marijuana raids in
California. Senate Joint Resolution 14 also calls for a comprehensive
federal policy to ensure safe and legal access to medical marijuana for
patients who benefit from its therapeutic use.
Of course, it's not clear what effect, if any, it would have for the California legislature to pass such a measure, since California law does not preclude federal action.
Reason has good coverage of the remarkable situation that California medical marijuana dispensary operator Charles Lynch is in now by virtue of the recent shift in federal policy on medical marijuana:
Lynch was convicted during the Bush years, but his sentencing will
occur under the new regime. So where would that leave him on his
sentencing day--a free man, a lifelong prisoner, something else?
It
turns out that the man who hold Lynch's life in his hands isn't sure
how the policy shift should affect sentencing. U.S. District Court
Judge George H. Wu postponed his decision until he learns more about
the Justice Department's policy regarding such cases.
I have a thought that might seem a little wacky, but it's this: Judge Wu could simply impose a sentence he considers to be appropriate and just (e.g. probation), guidelines be damned. The feds would then be in the position of deciding whether to appeal, and would have to take the affirmative step of pursuing that appeal. Yes, they could probably win an appeal if they went for it, but they would also have to decide whether they wanted to do so.
Clearing up some of the ambiguity that was left after his brief discussion of this issue last month, Attorney General Eric Holder has now stated explicitly that "the Justice Department’s enforcement policy would now be restricted to
traffickers who falsely masqueraded as medical dispensaries and 'use
medical marijuana laws as a shield.' "
There is still room for debate, of course, about who that policy would apply to. However, this statement seems to confirm that Holder's earlier remarks in response to a reporter's question were not simply a fluke.
The U.S. attorney in Los Angeles sent a confidential memo to
prosecutors last week ordering them to stop filing charges against
medical marijuana dispensaries, then abruptly lifted the ban on Friday,
according to sources familiar with the developments.
U.S. Atty. Thomas P. O'Brien declined comment on what prompted him to issue the directive or to later rescind it.
. . .
O'Brien's initial order was delivered in a memo
by Christine Ewell, head of the U.S. attorney's criminal division,
according to three sources who read the document, which was distributed
by e-mail on Feb. 27.
In addition to being told to stop filing new
cases, prosecutors were instructed to refrain from issuing subpoenas or
applying for search warrants in pending cases, said the sources, who
requested anonymity because they were not authorized to speak publicly
about the matter. In fact, a few hours after the memo was circulated,
Ewell sent out another e-mail admonishing prosecutors not to discuss
the contents of the memo with anyone outside the U.S. attorney's
office, the sources said.
Another e-mail came out Friday
instructing prosecutors to resume work on medical marijuana cases.
In apparent response to a lawsuit filed by Americans for Safe Access, the California DMV has backed away from an odd practice of revoking the driver's licenses of some motorists who use medical marijuana. The San Francisco Chronicle reports:
"The new DMV policy is a significant departure from how the agency
approached medical marijuana in the past," said Joe Elford, attorney
for the advocacy group. "Drivers will no longer have their licenses
suspended or revoked simply because of their status as medical
marijuana patients."
DMV spokesman Steve Haskins insisted that automatic suspensions have
never been the department policy. He said the new manual, issued Feb.
18, merely updated a 2001 document that referred to drivers who used
medication but did not mention medical marijuana.
"The policy is and has been that the department treats medical
marijuana exactly the same as any other prescription drug," Haskins
said.
Now that the Department of Justice has said it will stop raiding medical marijuana dispensaries, I can't help wondering if the California Supreme Court's analysis in Ross v. RagingWire still makes sense.
Part of the analysis, in RagingWire, had to do with the idea that an employer should not have to accommodate activity that constitutes a federal crime. The court wrote:
No state law could completely legalize marijuana for medical purposes
because the drug remains illegal under federal law(21 U.S.C. §§ 812, 844(a)),
even for medical users (see Gonzales v. Raich, supra, 545 U.S. 1, 26-29; United
States v. Oakland Cannabis Buyers’ Cooperative, supra, 532 U.S. 483, 491-495).
But does this analysis still cohere if there's no way the federal government will enforce the relevant law?
It is indeed wonderful news that Obama's administration will stop conducting raids on medical marijuana dispensaries. However, it's news that comes too late for many of the people in this movement who put their lives on the line fighting for this change in the first place.
It's too late for Charles Lynch, who has already been convicted in federal court.
It's too late for Ed Rosenthal, who was already convicted in federal court. (Rosenthal only spent one day in jail, but the conviction is a serious penalty in itself.)
These are just some of the folks who have done pioneering work in the medical marijuana field, folks whose actions the federal government now admits it ought not to be policing. In keeping with the new federal stance, wouldn't it make sense to pardon the pioneers?
Attorney General Eric Holder has stated that the Obama administration will stop medical marijuana raids. Holder made the statement Wednesday in response to a reporter's question at a press conference with acting DEA head Michele Leonhart, the video of which is here (the question and response begin at about 25 minutes).
Americans for Safe Access last week posted an item on its blog discussing some statistical patterns related to the way medical marijuana policing is occurring across California. The graph below seems particularly noteworthy, in that it suggests that law enforcement is scrutinizing medical marijuana patients even when they are well within their legal rights.
A former Morro Bay medical marijuana dispensary operator who is described as having made rigorous attempts to obey California law will be sentenced in Los Angeles Monday after his August conviction in federal court. Protestors plan to argue that Charles Lynch, who could face decades in prison, deserves a far more lenient sentence.
Protesters will gather on the corner of Main Street and Temple St outside the federal courthouse at 12:00 PM on Monday, February 23. The street address for the federal courthouse is 312 North Spring Street in downtown Los Angeles.
For about the last six months, any time I've done a Google News search for OxyContin, the headlines are nothing but stories about robberies of pharmacies by people looking for that drug. There are new stories on this theme literally every day.
Today I see that a pharmacist in Deland, Florida has decided to simply stop selling OxyContin altogether because he has been robbed at gunpoint for the drug and has had enough.
Even though the suspect [in that robbery] was shot and killed by a security guard, pharmacist Ken Ritter feels that a big change is needed.
"So
many pharmacies have been targeted by armed robbers lately. Most of
them looking for OxyContin and related drugs," Ritter said.
Last year, Ritter's pharmacy encountered another man looking for OxyContin.
"I noticed him shaking. He had the black bag in his hand and he was shaking real bad," witness Susie Timko said.
The assailant then passed them a note that said, "I want OxyContin and I have a gun."
These stories are worth keeping in mind when we talk about the problems associated with markets around other drugs, such as medical marijuana. Robberies do occur in connection with medical marijuana dispensaries, but the incidence of such crime pales in comparison to the violence around the legal drug OxyContin.
The Obama administration appears to be taking a different approach toward state power than that seen in the prior administration, the New York Times reports today.
“I think it’s quite significant,” said Samuel Issacharoff, a professor of constitutional law at New York University
law school. “It shows the Obama administration’s more benign view of
government intervention,” Professor Issacharoff said, and “may indicate
a spirit of cooperative federalism” in which Washington will look to
the states for new ideas and even a measure of guidance.
Tom
Miller, the attorney general of Iowa, who met with the transition team
in December to discuss federalism and other issues, said he believed
the Obama administration would “usher in a new era in federal-state
relations.” Members of the new administration, Mr. Miller said, “are
open to what we’re talking about, what we’re thinking.” They also
appreciate, he said, the fact that state attorneys general often
achieve a level of bipartisan cooperation when they band together to
pursue lawsuits.
The general trend under previous
administrations had favored federal pre-emption, the belief that the
best law comes from Washington, a concept still favored by business
leaders.
One obvious area where this "progressive federalism" would be relevant, of course, is in medical marijuana policy. The Obama administration would greatly advance the research and regulation around medical marijuana if it were to follow through on Obama's campaign promise to end federal raids on medical marijuana dispensaries and leave policing in this area as a state-level issue. Unfortunately, we've already seen a federal raid on a dispensary under Obama's tenure, and it is unclear whether that raid represents an affirmative policy choice by Washington DC or was simply a parting gift from Bush.
Scott Morgan, as well as Americans for Safe Access, note that the DEA raided a California medical marijuana dispensary Thursday, despite President Obama's campaign promise to end such raids. ASA's Caren Woodson had a good, appropriately measured comment:
Whether or not this unconscionable raid on a medical marijuana
provider is the fault of federal officials from the previous
administration, President Obama has an opportunity to change this
harmful and
outdated policy. We are hopeful that these are the
last remnants of the Bush regime and that President Obama will quickly
develop a
more compassionate policy toward our most vulnerable citizens.
Update: Pete notes that the comment line for the White House is (202) 456-1111. Can't hurt to give a ring.
(Washington, D.C.) In a major setback to medical marijuana
research, the Drug Enforcement Administration has rejected the decision
of Administrative Law Judge Mary Ellen Bittner and blocked a medical
marijuana research project at the University of Massachusetts Amherst —
a project considered vital if marijuana is ever to be an FDA-approved
medicine. The DEA’s ruling, dated Jan. 7, was only released today.
“It’s no surprise that an administration that has rejected science
again and again has, as one of its final acts, blocked a critical
research project,” said Aaron Houston, director of government relations
for the Marijuana Policy Project in Washington, D.C. “With the new
administration publicly committed to respecting scientific research and
valuing data over dogma, this final act of desperation isn’t
surprising, but the true victims are the millions of patients who might
benefit.”
Professor Lyle Craker had applied for permission to cultivate
marijuana for use in medical research. At present, marijuana for
research can only be obtained through the National Institute on Drug
Abuse — a government monopoly that does not exist for any other
Schedule I drug. Because NIDA’s marijuana is of notoriously poor
quality and has only been inconsistently available to researchers,
scientists and advocates consider Dr. Craker’s project essential to the
advancement of medical marijuana research.
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.
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!
Sorry for the dearth of posting this week. Dealing with work takes time and energy, but it's nothing compared to the time and energy required when dealing with kids. Yipes!
Anyway, the California Supremes on Wednesday (12/17/08) issued an interesting modification to their opinion in Mentch (the case about who can qualify for a "primary caregiver" jury instruction in a medical marijuana defense).
The Supremes added a new footnote five, saying the following:
In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role.
California NORML has released a remarkable 2006 letter that the California Police Chiefs Association apparently wrote to the DEA in 2006 asking that federal agency to arrest and prosecute California residents for activity related to medical marijuana.
The letter (pdf), signed by Steve Krull, the then-president of the California Police Chiefs Association, laments the fact that "some [California] cities have determined that California law is what they want to follow," and asks for the DEA to intervene in California, using federal law, and "take these cases into the federal judicial system." The purpose of doing this, the letter states, would be to "send a strong message to local and county government that 'medical marijuana' is not allowed."
(Above: An excerpt from the 2006 letter. Click to enlarge.)
This isn't the only evidence of California police chiefs actively fighting against reform to marijuana policies. In October of 2008, as the Detroit Free Press noted, Modesto Police Chief Roy Wasden and El Cerrito Police Chief Scott Kirkland, both of whom are on the Board of Directors of the Police Chiefs Association, flew out to Michigan in an unsuccessful attempt to persuade voters there to reject that state's medical marijuana initiative. These officials claimed that they had "watched supposed medical marijuana users leave distribution co-ops and selling marijuana to youngsters," and claimed that passage of a medical marijuana law in Michigan would create "increased crime and drug use in teens."
The 2006 letter, however, is remarkable both in urging the arrest and prosecution of Californians under federal law for actions that do not necessarily violate California state law and, in particular, for its desire to convince the public "that 'medical marijuana' is not allowed," notwithstanding the fact that California had had a medical marijuana law on the books for ten years at the time this letter was sent.
The California Supreme Court has just issued an opinion that is sure to surprise many people in the medical marijuana field in California, holding unanimously in People v. Mentch that "a defendant whose
caregiving consist[s] principally of supplying marijuana and instructing on its use,
and who otherwise only sporadically [takes] some patients to medical appointments,
cannot qualify as a primary caregiver."
So what does one have to do to be a "primary caregiver?" The court states:
a defendant asserting
primary caregiver status must prove at a minimum that he or she (1) consistently
provided caregiving, (2) independent of any assistance in taking medical
marijuana, (3) at or before the time he or she assumed responsibility for assisting
with medical marijuana.
The court adds:
The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing.
I respectfully disagree with the court on this point. The statute creates and defines the term primary caregiver. There is nothing circular about defining a term based on a given set of actions.
Update:
Here is a re-posting of a short highlight reel from the oral argument in Mentch.
The California Supreme Court's website today noted that an opinion will be coming soon in People v. Mentch, the case on medical marijuana caregivers. I'm not sure how soon "soon" is, but perhaps we'll see something Monday.
California's Proposition 5 has been defeated by a vote of about 60% opposed to 40% in favor. That's a letdown, but perhaps not too shabby of a poll result considering how extremely ambitious Prop. 5 was and how intense the opposition to it was from virtually the entire law enforcement community and Senator Feinstein.
(Californians also rejected Prop. 6, which would have required even more spending on law enforcement, but passed Prop. 9, which boosts victim input in criminal trials and restricts criminal defendants' rights.)
Drug warrior and Indiana Congressman Mark Souder was re-elected, overcoming a solid challenge from Democrat Michael Montagano.
In San Francisco, Measure T, which adequately funds drug treatment on demand, passed strongly.
Oregon's Measure 61 -- a real anachronism of a crime bill that would have established 3-year mandatory minimums for certain drug offenses -- appears to have been effectively defeated by the passage by a higher margin of a Measure 57, a competing initiative on the same subject.
Finally, I just can't help saying that Obama is the man. It should be a nice change of pace to have a president who can put together a complete sentence. The implications of an Obama White House in terms of an Attorney General pick are discussed a bit here. It should also be interesting to see Obama's pick when, as seems likely to happen soon, 88-year-old Justice Stevens retires from the Supreme Court.
(Above: President-elect Obama waves to supporters on election night. Photo by Michael Macor, San Francisco Chronicle.)
I made a little four-minute YouTube video that captures some of the interesting bits of last month's oral argument in People v. Mentch, the California Supreme Court case that will define which criminal defendants are entitled to get a jury instruction on acting as a "primary caregiver" to a medical marijuana patient.
(Update: the court's 11/24/08 opinion in Mentch is discussed here.)
The striking thing is that what Gibbs claims is the AG's position, right at the start of this clip, is actually asserted by Swanson at the end of the clip in the most extreme terms possible: that the provision of medical marijuana to an individual is literally meaningless in terms of whether a person is a "caregiver" to a patient. It's hard to imagine that that's what California voters meant when they voted for the statute allowing people to be "primary caregivers" to medical marijuana patients, but we'll see what the Supremes say about it.
Sorry about the crummy audio sync, by the way. I'm not sure why it came out that way.
Surprising news in California medical marijuana law: the California Attorney General has conceded that the legislature's amendment of the 1996 Compassionate Use Act was unconstitutional, meaning that criminal defendants may soon be able to regain the ability to put on a trial defense under the Compassionate Use Act even if the amount of medical marijuana they possess exceeds the 8-ounce/6-mature-plant presumptive limits spelled out under the law enacted by the California legislature in 2003.
The AG's concession is described in its brief filed October 14 with the California Supreme Court in People v. Kelly, S164830. The basic argument in Kelly looked like it was going to be about whether the legislature, in enacting the Medical Marijuana Program in 2003, could constitutionally have imposed quantity limits on the affirmative defense for medical marijuana users created by voters through the Compassionate Use Act in 1996.
Instead, the AG isn't even fighting the constitutional point. Its brief comes right out and states that it "does not contest the Court of Appeal’s conclusion that section 11362.77 [the section of the Health and Safety Code that sets the quantity limits] is unconstitutionally amendatory insofar as it limits an in-court CUA defense."
The AG's argument, then, is simply about the fact that the court of appeal could have created a more nuanced remedy to this constitutional problem by essentially making it clear that the MMP and the CUA operate as two distinct set of protections, one with quantity limits and one without. Under the CUA, the relevant legal standard is not any specific quantity cutoff but the more flexible language of People v. Trippet: a quantity “reasonably related to the patient’s current medical needs.”
Curiously, back in August, the AG released medical marijuana "guidelines" that did not discuss the idea that a medical marijuana patient could exceed the MMP quantity limits but still put on a defense under the Compassionate Use Act. In my opinion, the AG's reasonable position in Kelly will probably fix that problem, and will produce a structure that is both workable and coherent. The guidelines will provide clarity and security to individuals who want to be sure that they are staying within defined limits, while the Compassionate Use Act and the Trippet test will (if the Cal Supremes agree, and if they write an opinion that is sufficiently clear that trial courts and prosecutors can't wriggle out of it) continue to provide a "reasonableness" standard to be applied in situations where the quantity limits don't make sense for particular individuals.
As it said it probably would do, San Diego County has voted to ask the United States Supreme Court to consider its lawsuit challenging California's medical marijuana law. That lawsuit, however, has now lost at the trial level and at the court of appeal, and the California Supreme Court has declined to hear it.
The writeup on this case, by Jeff McDonald of the San Diego Union-Tribune, is one of the more helpful pieces on this case that I've seen so far, because McDonald took the time to talk to some legal experts about the broader context of the argument San Diego is making. As he makes clear, the argument being advanced is pretty tenuous:
Legal experts tend to agree with the courts that rejected the position
staked out by San Diego and San Bernardino counties. Those judges and
scholars say the bottom line is that state laws do not prevent federal
agents from enforcing the Controlled Substances Act, which classifies
marijuana as among the most dangerous known drugs.
“California can do whatever it wants to do and the U.S.
government can do whatever it wants to do,” said University of San
Diego law professor Shaun Martin, who has argued three cases before the
U.S. Supreme Court and prevailed once. “The counties' position that
there's a conflict on this is a minority – a very minority – view.”
Constitutional law expert Erwin Chemerinsky said the U.S.
Supreme Court generally reviews only those cases that have divided
lower courts.
“There's a lot of misunderstanding about federal law and state
law and pre-emption,” said Chemerinsky, the founding dean of the
University of California Irvine law school. “What the state law does is
say it's not a state crime to have medical marijuana.”
(Martin's suggestion in the passage above that the federal government can "do whatever it wants to do" is of course not correct. However, in the area of marijuana regulation, the feds asserted extremely broad powers in the 2005 case Gonzales v. Raich.)
If, as now seems quite likely, Barack Obama becomes president, who will he appoint as Attorney General to oversee federal law enforcement efforts? The new issue of the ABA Journal takes a stab at that question and suggests the following likely candidates:
Eric Holder, a partner with the firm of Covington & Burling, and
Deval Patrick, the governor of Massachusetts.
(Above: Eric Holder. Photo by Ray Lustig, Washington Post. Below: Deval Patrick.)
The ABA Journal writes of Holder:
Best known as a prosecutor, Holder was fresh out of law school when he was assigned to the newly formed public integrity section of the Justice Department. There, he helped prosecute several high-profile defendants, including a judge, a diplomat, an assistant U.S. attorney and a leading organized crime figure.
President Reagan nominated him to a D.C. judgeship and he was later tapped by President Clinton to serve as D.C.’s U.S. attorney. In 1997, Clinton elevated him to the No. 2 job in the Justice Department, and he briefly served as acting attorney general in the Bush administration while nominee John Ashcroft was being confirmed.
In 1997, according to NORML, Holder "proposed legislation to stiffen penalties for the possession of marijuana" while with the Justice Department.
Of Patrick, the ABA Journal writes:
Patrick clerked for a judge in the 9th U.S. Circuit Court of Appeals, worked as an attorney for the NAACP Legal Defense and Educational Fund and served in the Clinton administration as assistant attorney general in the civil rights division. Patrick has an extensive history of rights-related litigation, but he’s also served as general counsel for two major corporations—Texaco and Coca-Cola. Although he is only halfway through his term as governor, many believe he would be one of Obama’s top choices for AG, and Patrick would be hard-pressed to decline if asked.
Asked in March 2008 about the Massachusetts ballot initiative to decriminalize small amounts of marijuana for personal use, Patrick reportedly "said he had to consult with his Public Safety Secretary Kevin Burke and Secretary of Health and Human Services Dr. JudyAnn Bigby before staking out a position."
At the NORML (National Organization for the Reform of Marijuana Laws) conference in Berkeley today, Drug Policy
Alliance Executive Director Ethan Nadelmann spoke about California’s Prop. 5,
the Nonviolent Offender Rehabilitation Act, noting that if it passes it will be
“hands down the biggest reform in prisons and sentencing and drug policy in the
history of the country.”
(Above: Ethan Nadelmann speaks at the NORML conference.)
He noted, as news reports suggested yesterday, that CCPOA,
the union of California correctional officers, has jumped into the fray against
NORA – a factor that is sure to ramp up the level of hysteria and hype directed
against Prop. 5.
“We’ve got to do everything we can to get people to focus on
the bottom line,” Nadelmann said. “Ultimately it’s going to be a net fiscal
savings, bottom line.”
Joe Elford of Americans for Safe Access also spoke on the
medical marijuana guidelines recently released by the California Attorney
General. He noted that the AG had
started to develop the guidelines at the request of law enforcement after the
Fourth District Court of Appeal’s decision in Garden Grove (Kha). The AG
actually asked for ASA’s input on the guidelines, Elford said, but “we couldn’t
let anyone know about our involvement in this until the guidelines were
published."
The California Supreme Court has denied review in the suit brought by the counties of San Diego and San Bernardino challenging California's Compassionate Use Act on federalism grounds. San Diego now plans to take the case to the United States Supreme Court, according to news accounts.
(Above: An Aug 12, 2008 protest in San Bernardino County, at which the board of supervisors was urged to drop this lawsuit.)
In a nutshell, as the links below explain, this case is an argument by the counties that federal law on controlled substances prevents California from decriminalizing the use of marijuana for medical purposes. In other words, the counties are arguing that California is literally obliged to continue arresting and incarcerating people in state prisons for marijuana offenses because to do otherwise would simply upset the federal drug control regime. It's a strange and rather perverse thing to see counties spending their tax dollars in a protracted argument about why they need to have less local control, and why their approach to policing and public safety -- quintessentially local issues -- needs to be decided in Washington D.C. rather than in, say, San Diego and San Bernardino.
The California Supreme Court is hearing oral argument today in People v. Mentch, a case on the standards for instructing juries on the role of medical marijuana "primary caregivers" in marijuana prosecutions. The California Channel has streaming video. I'll try to get some clips to post later today. (Update: the court's 11/24/08 opinion in Mentch is discussed here.)
California Governor Arnold Schwarzenegger has vetoed AB2279, the bill sponsored by Rep. Mark Leno that would have given a degree of protection to employees who use medical marijuana. In vetoing the measure (see Arnie's statement here (pdf)), the Governator said "I am concerned with interference in employment decisions as they
relate to marijuana use. Employment protection was not a goal of the
initiative as passed by voters in 1996."
With Leno's bill struck down, the California Supreme Court's decision in Ross v. RagingWire -- holding that California law does not prohibit employees from firing employees who test positive for medical marijuana -- remains the guiding authority in this area.
At the blog of Americans for Safe Access, Don Duncan has a few thoughts on the veto.
A couple months ago, I spoke with a staff member in the office of Rep. Maurice Hinchey, who is typically a co-sponsor of the Hinchey-Rohrabacher Amendment to get the federal government out of the business of prosecuting medical marijuana crime. At that time, the staff member mentioned to me that there was a chance Hinchey-Rohrabacher wouldn't happen this year.
A month or so ago, I left a message with Rep. Hinchey's office trying to get clarification on what's going on. I've heard nothing back. But it seems safe to say at this point that Hinchey-Rohrabacher isn't in the cards this year. I'm not entirely clear on why that is, and Rep. Hinchey's people never answered my question.
Obviously, there are bigger fish to fry at the moment, but it's still worth noting.
Update: Rebecca Saltzman of Americans for Safe Access notes the following in the comments:
the Hinchey-Rohrabacher amendment was never introduced because Congress did not follow through with the regular appropriations process.
Instead, they passed continuing resolutions to keep the country moving but held off on all appropriations debates until next year, when the Democrats are hoping they'll have a more sympathetic Administration.
Since the Hinchey amendment is an appropriations amendment, with no appropriations bill, there could be no amendment. So the fact that it didn't move forward has nothing to do with Hinchey or Rohrabacher's commitment to the issue, and nothing to do with the general state of medical marijuana in Congress. It instead has more to do with the overall state of Congressional politics and power.
Gammabutyrolactone was also the subject of People v. Boultinghouse (2005) 134 Cal.App.4th 619, in which a defendant convicted of possessing that chemical challenged the California statute on federal preemption grounds, noting that the federal Controlled Substances Act did not criminalize possession of gammabutyrolactone.
The Fourth District Court of Appeal rejected the preemption argument, and wrote the following:
Unlike Gonzales [v. Raich], our case does not present any issues respecting Congress' authority under the commerce clause. Rather, it involves the issue of preemption. While state power must yield to a legitimate exercise of federal commerce power, preemption is a far less restrictive doctrine when it comes to state authority. In fact, there is a strong presumption against federal preemption when it comes to the exercise of historic police powers of the states. ( Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407; Jevne v. Superior Court (2005) 35 Cal.4th 935, 949, 28 Cal.Rptr.3d 685, 111 P.3d 954.) That presumption will not be overcome absent a clear and manifest congressional purpose. ( Ibid.)
California's authority to regulate narcotics is well established. ( People v. Shephard (1959) 169 Cal.App.2d 283, 287, 337 P.2d 214.) Indeed, “ ‘The right to exercise this power is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.’ [Citation.]” ( Robinson v. California (1962) 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d 758; see also People v. Aston (1985) 39 Cal.3d 481, 490, 216 Cal.Rptr. 771, 703 P.2d 111 [California has a weighty interest in the suppression of controlled substances].) It would, therefore, take a clear expression of Congressional intent to convince us the preemption doctrine is applicable in this case. However, as noted at the outset, Congress has chosen to take a deferential approach to the states in the area of drug enforcement. Thus, we are loath to disturb Boultinghouse's conviction on the grounds of preemption.
All of this matters because the lawsuit that San Diego County is continuing to pursue to overturn California's medical marijuana law is based not on an argument about federal power to pass laws regarding drugs in connection with interstate commerce (that issue was put to bed by the United States Supreme Court in 2005 in Raich) but on an argument about preemption. San Diego isn't simply arguing that the federal government has the power to pass and enforce laws relating to marijuana. It's arguing that the federal government has acted so decisively in this area that states have no power to do anything other than what the feds want, that states are literally obliged to convict people under state law for using marijuana since the feds can convict people under federal law.
That type of argument didn't fly in Boultinghouse, although it's worth noting that it was being raised by a defendant rather than by a County in that case. We'll see how it works this time around.
Los Angeles criminal defense attorney Allison Margolin, who works quite a bit on medical marijuana cases, had an excellent piece in the Daily News this week deconstructing the notion that the Attorney General's guidlines somehow make California medical marijuana law "clear" and "simple."
In fact, she points out, the guidelines do not bind prosecutors and even if they did they actually are not all that clear:
Despite the fact that the attorney general
considers these dispensary-related activities in California law, it is
not a binding authority on district attorneys whose power is still left
unchecked. In fact, the attorney general's opinion that hashish is
considered within the purview of the medical-marijuana statute is often
disregarded by prosecutors who claim that they need not follow an
attorney general opinion.
Finally, the guidelines do nothing to clear up the
confusion regarding the meaning of nonprofit, though they do echo the
Medical Marijuana Program Act's restriction of collective activities to
those conducted on a not-for-profit basis. However, this emphasis will
do nothing to explain what is meant by not-for-profit. Currently,
police claim that any amount of money seized is evidence of
profit-making activities.
I have seen the lengths to which prosecutors will exploit
the vagueness of the law to prosecute people. The guidelines will do
nothing to curb the arbitrariness with which law enforcement and
prosecutors selectively enforce it.
The Appeal-Democrat of Marysville-Yuba City ran an editorial that is one of the more sensitive takes I've seen on the Attorney General's recently released guidelines on medical marijuana. In particular, the Appeal-Democrat notes the following:
Our main problem with Brown's guidelines has to do with his contention,
as stated in the summary, that the "guidelines affirm the legality of
medical marijuana collectives and cooperatives, but make clear that
such entities cannot be operated for profit." Proposition 215, the
initiative approved by voters in 1996, does not ban profit, and that
law can only be changed by a vote of the people, not by a legislative
enactment or a set of guidelines from the attorney general.
This is an interesting point, and it stems from basically the same issue that is at stake in recent Court of Appeal decisions regarding the quantity limits for medical marijuana users, cases like Kelly and Phomphakdy. That issue, again, is simply that it was voters who created California's original medical marijuana law, the Compassionate Use Act, by initiative, in 1996. Though the legislature passed an additional, more detailed law called the Medical Marijuana Program in 2003, the legislature does not have the power to "amend" a voter initiative without the approval of the voters. Therefore, it is at least worth asking whether the 2003 language, which is what the AG is relying on in promulgating these guidelines about dispensary operation, is even good law.
I'm not sure that the AG's description of rules regarding dispensaries clearly "amends" the 1996 Compassionate Use Act in the way that the quantity limits rules did, because the Compassionate Use Act simply doesn't say very much one way or another about the way that dispensaries should operate. The broader point, though, is that it's an curious decision by the AG to issue such extensive, detailed and sweeping guidelines about the way California's medical marijuana law "works," exactly at a time when, because of Kelly and Phomphakdy, it is no longer very clear how it works.
A lawsuit claims that the San Diego District Attorney's Office and other agencies are violating California's medical marijuana law by investigating
doctors who treat medical marijuana patients.
The suit, filed by Dr. Alfonso Jimenez in San Diego Superior Court, names as defendants the San Diego County District Attorney's Office, District Attorney Bonnie Dumanis and one of her deputies, as well as the San Diego Police Department, its chief, William Lansdowne, and several individual officers, along with the Laguna Beach Police Department, its chief of police and a detective.
...
The suit alleges that the defendants have conspired with the Drug Enforcement Administration to violate a federal injunction against initiating an investigation of a physician solely on the ground that a doctor makes a recommendation for medical marijuana based on his or her medical judgment.
Despite my extremely crabby reaction to the Attorney General's release of medical marijuana guidelines, Americans for Safe Access is calling them "a huge victory" for the medical marijuana movement.
ASA also says that the AG's issuance of the guidelines sends a message to the feds "that we are staying our course in California and that dispensaries, at
least most of them, are law-abiding entities and should be protected by
state law."
Here's a radical thought: perhaps it would have been easier for the dispensary in question to operate "legally" if the AG had given the guidelines to the dispensary at least somewhat before conducting the raid.
Is this any way for California law enforcement to be handling this issue?
Would they treat a supermarket or a liquor store this way? Arrest first and ask questions later?
This is the first raid in recent memory on a medical marijuana dispensary that has been carried out specifically by the California Attorney General rather than the DEA.
There is a reason for that.
California voters support medical marijuana. They support medical marijuana dispensaries. If a dispensary is not complying with what the Attorney General feels is the law, there are a whole host of responses that would help these business comply with the relevant guidelines.
Engaging in these federal-style "crackdowns" is obnoxious, counterproductive, and in bad faith. It will only drive operators underground, out of the reach of state regulators.
The California Attorney General has issued a strange and interesting set of "guidelines" (pdf) around medical marijuana, a document whose legal significance would seem to be totally unclear. These guidelines are actually required by statute (H&S 11362.81(d)) but they are coming at a time when the medical marijuana law is really, seriously unsettled as a result of the recent decisions in Kelly and Phomphakdy. As a result, these guidelines try to present the medical marijuana law as a coherent body of regulations precisely at the time when these regulations are the most confused they've been in the last 12 years. I think it's really problematic. The AG's press release is here.
The most striking thing about this announcement, from my point of view, is its seeming disregard for the way California government works. The Attorney General is not the legislature, and does not have the power to re-write the Health and Safety Code to mean whatever it would like it to mean. In other words, even though the AG states on page 6 that "Qualified patients claiming protection under Proposition 215 may possess an amount of marijuana that is 'reasonably related to [their] current medical needs' " that assertion is simply not the law of California at the moment. At least, it's not the law as it's actually enforced by police and prosecuted by district attorneys. Rather, it seems to be what the AG would like the law to be.
The guideline also suggests on page seven that non-cardholders who possess more than eight ounces of marijuana can seek immunity from arrest, and that law enforcement should evaluate this claim based on "the totality of the circumstances," a phrase borrowed from Fourth Amendment jurisprudence. That, too, seems to go beyond the text of H&S 11362.71(e), which provides protection for arrest -- but only for individuals who possess marijuana within the quantity limits of the Medical Marijuana Program, i.e. eight ounces, six mature plants, etc.
Meanwhile, on the basis of this very same "totality of the circumstances" test, the AG says that an officer can also make a determination that a non-cardholder's marijuana quantities "exceeds the applicable possession guidelines" and may seize the marijuana. Does that include situations when a non-cardholder possesses less than eight ounces? Tough to say.
Totally bizarre. I think the intentions behind this document are basically good. But, uh, there's this little thing called separation of powers. If the Attorney General can rewrite the law at will just by issuing a "guideline," we're in serious trouble.
The Colbert Report ran quite a funny segment on Gary Ross, the plaintiff of the recent California Supreme Court case Ross v. RagingWire, which was about the workplace rights of medical marijuana users. Last week, the California legislature passed AB2279 in response to the California Supreme Court's decision in that case.
A federal judge on Wednesday (8/20/08) denied the federal government's request to dismiss a lawsuit challenging the feds' attempt to undermine California's medical marijuana law. The ACLU describes this ruling as stating "that
the U.S. Constitution bars deliberate subversion by the federal government of
state medical marijuana laws." Judge Jeremy Fogel writes:
Plaintiffs allege that federal officials have devised a strategic plan of targeted enforcement that has had the intended effect of “rendering California’s medical
marijuana laws impossible to implement and thereby forcing California and its political
subdivisions to recriminalize medial marijuana.” SAC ¶ 4. Specifically, Plaintiffs allege that
Defendants have: (1) threatened to punish California physicians who recommend marijuana, Id.
at ¶¶ 85-91; (2) threatened government officials who issue medical marijuana identification
cards, Id. at ¶¶ 94(a), 95-96; (3) interfered with municipal zoning plans, Id. at ¶94(c); and (4)
targeted for arrest and prosecution those providers of medical marijuana who cooperate most
closely with municipalities. Id. at ¶¶ 94(b), 94(d)-(e), 97. Plaintiffs assert that these actions
violate the Tenth Amendment by making it impossible for the state to distinguish between
authorized and recreational users of marijuana, a distinction that is necessary for the proper
enforcement of California law.
...
In his concurring opinion in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), Chief
Judge Kozinski opined that Defendants’ manner of enforcing the CSA had commandeered
California’s legislative process, at least as to the legal rights and obligations of physicians:
The state relies on the recommendation of a state-licensed physician to define the line between legal and illegal marijuana use. The federal government’s policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law. Normally, of course, this would not be a problem, because where state and federal law collide, federal law wins. . . . . . . Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. Yet the effect of the federal government’s policy is precisely that: By precluding doctors, on pain of losing their DEA registration, from making a recommendation that would legalize the patients’ conduct under state law, the federal policy makes it impossible for the state to exempt the use of medical
marijuana from the operation of its drug laws. In effect, the federal government is
forcing the state to keep medical marijuana illegal. But preventing the state from
repealing an existing law is no different from forcing it to pass a new one; in
either case the state is being forced to regulate conduct that it prefers unregulated.
Id. at 645-46 (Kozinski, concurring).
While this authority is not controlling, it is the only
authority that addresses the precise issue at hand, and it suggests that at least at the pleading stage
Plaintiffs’ claim may be cognizable. If Plaintiffs can prove that Defendants are enforcing the
CSA in the manner alleged, a question as to which the Court expresses no opinion, they may be
able to show that Defendants deliberately are seeking to frustrate the state’s ability to determine
whether an individual’s use of marijuana is permissible under California law. A working system
of recommendations, identification cards and medicinal providers is essential to the
administration of California’s medical marijuana law. The effect of a concerted effort to disrupt
that system at least arguably would be to require state officials to enforce the terms of the CSA.
Because the Court must assume that Plaintiffs’ allegations are true and resolve any doubt in
Plaintiffs’ favor for the purposes of the instant motion, and because Plaintiffs have alleged their
claim with considerably greater factual specificity than they did in their First Amended
Complaint, the motion to dismiss will be denied as to Plaintiffs’ third claim.
A medical marijuana employment rights bill,
which
would protect hundreds of thousands of medical marijuana patients in
California
from employment discrimination, passed the State Senate today. AB2279
had
already passed the State Assembly in May, which means the bill now
heads to the
Governor's desk. Advocates expect the bill to reach Schwarzenegger's
desk in the next few weeks.
This bill is a response to the California Supreme Court's decision in Ross v. RagingWire, in which the court held that California's law on medical marijuana does not prevent employers from firing employees on the basis that marijuana continues to be illegal under federal law.
Update: AB2279 was ultimately vetoed by Gov. Schwarzenegger.
Jill Adams had a marvelous piece in the LA Times Monday (8/18/08) on the pros and cons of medical marijuana. The article is refreshingly straightforward and candid, presented with context that helps the reader understand how marijuana stacks up against other drugs that are commonly used. She notes:
The truth, these researchers say, is that marijuana has medical
benefits -- for chronic-pain syndromes, cancer pain, multiple
sclerosis, AIDS wasting syndrome and the nausea that accompanies
chemotherapy -- and attempts to understand and harness these are being
hampered. Also, they add, science reveals that the risks of marijuana
use, which have been thoroughly researched, are real but generally
small.
Bravo to Adams for cutting through the hype and just presenting the facts.
I had hoped that NPR would do a little more to put medical marijuana in context vis a vis the use of other medical drugs, but on balance this a better piece than the New Yorker did recently. NPR is taking the issue a little more seriously, doing a little more work to move beyond the stereotypes (although the whole "Alice in Wonderland" thing is awfully predictable and frankly pretty disappointing), and even illustrating some of the ways that federal policies seem to be misguided. I'll take it.
This morning Bob Egelko has a pretty good writeup in the SF Chronicle about the grant of review in People v. Kelly, the medical marijuana quantity limits case, and also about the way the medical marijuana community has been split over whether the quantity limits established by SB420/the Medical Marijuana Program are a good or a bad thing. Egelko notes that some groups, such as Americans for Safe Access and the ACLU, think the court of appeal "should have left some standards in place to guide police and protect patients" and argue that the quantity limits of the Medical Marijuana Program were intended to be an optional rather than a mandatory guideline -- something that patients could opt in to, if they wanted to, through the ID card program established under the MMP.
The confusion in this area stems from two distinct problems: one is that the legislature made a drafting error in writing SB420, such that the quantity limit language of that law seems to apply to absolutely all medical marijuana patients, not just patients who opt-in to the ID card program. The second problem is that the California Supreme Court, when it discussed this general issue in the 2006 case of People v. Wright, wrote the following about the quantity limits:
the amounts set forth in section 11362.77, subdivision (a) were intended "to be the threshold, not the ceiling."
That line about the "threshold, not the ceiling," comes from the legislative history of SB420, but trying to figure out exactly what it means has taken up the brain power of many otherwise capable people. As best I can tell, the word "threshold" in that sentence does not mean "entrance" to legal protections, as one might suppose from the association between "threshold" and "doorway." Rather, it means that the quantity limit is the "boundary" between the protections of SB420 and the broader, less specifically defined "reasonableness"-oriented protections of the Compassionate Use Act. But that's just my best guess. When law is written in metaphors, it reads like haiku. Unfortunately, many people who thought they were legitimate medical marijuana patients have been arrested, prosecuted and convicted under state law on the basis of that haiku.
The California Supreme Court has granted review in People v. Kelly, the Second District Court of Appeal case dealing with the quantity limits on the affirmative defense for medical marijuana users under California's Medical Marijuana Program. Meanwhile, it did not grant review in People v. Phomphakdy, the Third District Court of Appeal case dealing with the same issue, which reached basically the same holding as Kelly.
California's legislatively enacted medical marijuana quantity limits are now a puzzle wrapped in a muddle tucked inside a problem. In short: total chaos.
(Update: in its brief in Kelly, the Attorney General has conceded that the quantity limits do not apply to a defense based on the Compassionate Use Act.)
