Monthly Archives: November 2012

Time to end the war on drugs

By Tuesday, November 20, 2012

With his final election behind him, and the final attack ads safely off the air, President Obama now returns to his regularly scheduled programming — governing. Yet, the chatter about his second term agenda, from deficit reduction to immigration reform, ignores one critical issue: ending our nation’s inhumane, irrational — and ineffective — war on drugs.

Since its launch in 1971, when President Nixon successfully branded drug addicts as criminals, the war on drugs has resulted in 45 million arrests and destroyed countless families. The result of this trillion dollar crusade? Americans aren’t drug free — we’re just the world’s most incarcerated population. We make China look like Woodstock. We’re also, according to the old definition, insane; despite overwhelming evidence of its failure, our elected officials steadfastly refuse to change course.

But on November 6, citizens in Colorado and Washington became the first to approve ballot initiatives legalizing the recreational use of marijuana. Their success illustrates growing tolerance and, indeed, support for a smarter approach that could change, and even save, countless lives.

Now, the question is how the federal government will respond to these new state laws, since they directly conflict with existing federal restrictions on drugs. Recreational use might be legal in the eyes of Colorado and Washington, but Uncle Sam can still put the boot down.

President Obama has a choice. He could direct the Department of Justice (DOJ) to crack down and prevent the two states from moving forward. Or he could finally, fully embrace sensible drug laws.

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Children and Life Sentences

Yesterday the Michigan Court of Appeals released a very disappointing opinion wherein they decided that, despite the U.S. Supreme Court’s ruling to the contrary, Michigan courts can continue to sentence minors to life imprisonment without parole for murder – as long as the judge makes an informed decision to do so. So said the court:

“The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment. Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole. While Miller does not serve to “foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

The Court also ruled that the U.S. Supreme Court’s holding is NOT retroactive – meaning that any children who were given life offenses without parole in a case where the judge didn’t consider the special circumstances of the child, the law doesn’t allow those children to apply for parole or resentencing. Bottom line: Those children are screwed.

This is a terrible opinion and it needs to immediately be appealed. Hopefully it will be.

You can read the full opinion here: http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20121115_C307758_66_307758.OPN.PDF

The American Public Is Doing a 180 on Marijuana Prohibition…How Come the Politicians Aren’t?

November 9, 2012  |  The election results this week from Washington, Colorado, Massachusetts and Arkansas demonstrate that public opinion about cannabis has moved much faster than the positions of elected officials. That Massachusetts voters would pass a fairly loosely regulated medical marijuana system isn’t very surprising. But that voters in Arkansas came within a whisker of passing one shows that it isn’t just a hippie-dippie issue anymore. And for Colorado and Washington to take the plunge into full legalization – not just of use or for medical purposes, but full-scale commercial growing and sales – marks an epoch.

There are two “What next?” questions: What happens at the ballot box two or four years from now? And what happens in Colorado and Washington over the next year or two? Neither question has a clear answer, but the political developments may be easier to forecast than the operational ones.

It seems virtually certain that there will be more action at the ballot box. There are a few deep-pocketed national funders interested in financing these initiatives, but they’ve been cautious about investing in ill-written proposals such as California’s Proposition 19 two years ago or Oregon’s Measure 80 this year. This year’s victories are likely to make funding more available for carefully drafted measures in the future. Expect an initiative on the California ballot two years from now. But an off-year electorate, with fewer young voters than a presidential-year electorate, is likely to be less receptive to marijuana legalization.

Not every state has an initiative process, and so far the legislatures have been much less adventurous than the voters. If public opinion keeps moving, eventually the officials will follow. But how long “eventually” will be is anyone’s guess.

But it’s the operational picture that is really cloudy. Despite what the voters in Washington and Colorado did, growing and selling marijuana will remain federal felonies. The federal reaction is crucial, and at the moment unpredictable. We probably won’t know until a new attorney general takes office.

The Colorado measure is much more radical than the Washington measure. Both intend to establish regulated markets on the alcohol model, something the federal government could probably shut down with relatively modest effort if it decided to. But Colorado also legalizes every resident to grow his or her own marijuana, and to give away as much as an ounce at a time to others. “Give away” is an interesting category; an informal market is likely to emerge, on a “Pay me $20 for this zip-lock baggie and I’ll give you the green stuff inside” basis.

While the feds could easily identify a limited number of state-licensed growers and retail outlets and shut them down with injunctions or with threats of arrest and property confiscation, identifying and cracking down on an unknown number of unlicensed home-growers would be next to impossible. So Colorado’s voters may well have let the genie out of the bottle in a way that no federal action can now reverse.

A “grow-your-own” system with an unregulated market of small-scale producers has some attractive features, compared to the alcohol model: There won’t be any marketing executives using their ingenuity to create as many as possible of the chronic stoners who represent a small minority of marijuana users but account for most of the volume of marijuana consumed. (Just as the minority of problem drinkers accounts for most of the alcohol consumed.) On the other hand, there also wouldn’t be any revenue for the states.

Even if Colorado manages to set up a taxed and regulated market, it’s not clear how many customers that market would have in competition with untaxed and unregulated small-scale growing. Prices in that untaxed and unregulated small-scale market might be much, much lower than current prices either from illicit pot-sellers or from medical dispensaries. Growing pot, if you don’t have to worry about the police, is a very cheap activity.

via Alternet

‘The Fight Over Medical Marijuana’

Our federal marijuana policy is increasingly out of step with both the values of American citizens and with state law. The result is a system of justice that is schizophrenic and at times appalling.

Though the federal government considers marijuana a Schedule I Controlled Substance and bans its use for medical purposes, a growing number of states feel differently. Today, 18 states and Washington, D.C., have legalized medical marijuana for people suffering from debilitating medical conditions like cancer, epilepsy, severe nausea, multiple sclerosis and chronic pain. And on Tuesday, Colorado and Washington State voted to legalize marijuana for adult use, regardless of medical condition. But these states cannot stop the federal government from enforcing its own laws.

And federal drug laws are unjustifiably extreme. Consider the case of Chris Williams, the subject of this Op-Doc video, who opened a marijuana grow house in Montana after the state legalized medical cannabis. Mr. Williams was eventually arrested by federal agents despite Montana’s medical marijuana law, and he may spend the rest of his life behind bars. While Jerry Sandusky got a 30-year minimum sentence for raping young boys, Mr. Williams is looking at a mandatory minimum of more than 80 years for marijuana charges and for possessing firearms during a drug-trafficking offense.

This outcome is sad, of course — Mr. Williams will not be free to raise his teenage son — but it is also morally repugnant. Even if you think that the benefits of legalized medical marijuana do not outweigh the costs — a crucial debate, but one we can table for the moment — a coherent system of justice must explain why one defendant is punished more harshly than the next. It must explain why a farmer who grows marijuana in compliance with state law should be punished much more harshly than some pedophiles and killers. If we cannot explain this disparity, we should fight to change it.

Leading up to Mr. Williams’s trial, federal prosecutors offered him various plea bargains, but he turned them all down. He believed, quixotically enough, that he deserved his day in court. He held this conviction even though prosecutors precluded him from presenting his compliance with state law as a defense to the federal charges. Without this essential context, the jury heard a deeply distorted version of Mr. Williams’s story.

After Mr. Williams’s conviction, the United States attorney general’s office came back with a new deal. If he waived his right to appeal, they would drop most of the charges so that he would face a minimum of 10 years in prison and pay a $288,000 judgment.

His response? “This is nothing more than slavery and completely disregards my rights as a citizen of the United States of America. I have declined the offer.”

When asked for comment, a Department of Justice press officer said the department, like the attorney general’s office, could not discuss the facts of a pending case.

Rebecca Richman Cohen is an Emmy Award-nominated filmmaker and a lecturer on law at Harvard Law School. Her latest documentary, “Code of the West,” follows the political process of medical marijuana reform. She is a Soros Justice Fellow.

This article has been revised to reflect the following correction:

Correction: November 7, 2012

An earlier version of this article incorrectly stated the number of states which have legalized medical marijuana. The correct number is 18, not 17.

via The New York Times

Summary of Last Night’s Election Results

The Supreme Court:

Barack Obama won re-election. From a criminal defense standpoint, this is important because it is very likely that the 45th President will select at least one, perhaps 2 new U.S. Supreme Court Justices. It is certainly possible that what has been a conservative court for the past 40 years will transform into a liberal court within the next 2 years. This is perhaps the single most important consequent of Barack Obama being re-elected.

Medical Marijuana:

Two U.S. States, Massachusetts and Montana, approved Medical Marijuana. 18 states have now legalized medical marijuana. As more states approve the use of medical marijuana it will be harder for the feds to regulate and prohibit medical marijuana. Some experts believe that when the number gets to just over 26 U.S. states, that the federal government will be forced to change their position regarding the classification of marijuana as a schedule one controlled substance with no medicinal value.

Recreational Marijuana:

Two more U.S. States, Colorado and Washington, legalized the recreational use of marijuana within their respective states. According to the laws, individuals over the age of 21 will be able to purchase and possess marijuana under state law – meaning the state will no longer be able to charge them with marijuana related crimes. However, marijuana possess, distribution, manufacture and use will still be prohibited under federal law. It will be interesting to see how it all plays out over the next couple of years, but it seems certain that the federal government has come to a crossroads: Either the federal government will step out of the way and let the states run their own marijuana programs, or the federal government will step in and penalize the states in the event that they move forward with implementing their recreational marijuana schemes. This penalization could include withholding of federal funds, just like the federal government did when certain states refused to raise their drinking age from 18 to 21 years old.

Decriminalization of Marijuana in Detroit:

It seems that the people the City of Detroit have decriminalized marijuana within city limits. Therefore, individuals within the city of Detroit are now permitted under city ordinance to possess and consume small amount of marijuana. However, there are several caveats that need to be addressed: 1) The buying and selling of marijuana within the city of Detroit is still illegal; 2) the manufacture or growing of marijuana is still illegal; 3) this is a local ordinance issue, which means that the police can still arrest you for possession and use of marijuana and charge you with a crime under state law; 4) possession and use is still prohibited under federal law. 3 and 4 above are the most problematic because people in possession and those using marijuana really have no protection if the Wayne County Prosecutor’s Office decides to start prosecuting individuals under state law. Even more troubling are the statements made by the head of the Detroit Police, wherein he stated that if the decriminalization passed, his officers would disregard the law and arrest people and charge them regardless. That said, be careful utilizing the new law – as it may not really guarantee any protection at all.

Gay-Marriage:

Three U.S. States, Maine, Maryland, and Washington, all voted to legalize gay-marriage. This is significant, because this is the first time in history any state, let alone, three, have actually voted in support of gay-marriage; in all other states where it is legal, it was done so through the legislative process as opposed to the electoral process. It obviously won’t have any direct impact on Michigan, as we banned gay-marriage years ago – but it’s good to know that the country as a whole seems to be moving in the right direction.

Proposals 1-6:

By now most people have probably heard that all 6 of the proposals in Michigan were defeated. I don’t necessarily agree with the defeat of Props 2 and 3, but personally the defeat of Props 1, 5, and 6 were necessary. Apparently we really hate approving referendums in the state of Michigan.

– Colin A. Daniels

Court OKs warrantless use of hidden surveillance cameras

Police are allowed in some circumstances to install hidden surveillance cameras on private property without obtaining a search warrant, a federal judge said yesterday.

CNET has learned that U.S. District Judge William Griesbachruled that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission — and without a warrant — to install multiple “covert digital surveillance cameras” in hopes of uncovering evidence that 30 to 40 marijuana plants were being grown.

This is the latest case to highlight how advances in technology are causing the legal system to rethink how Americans’ privacy rights are protected by law. In January, the Supreme Courtrejected warrantless GPS tracking after previously rejecting warrantless thermal imaging, but it has not yet ruled on warrantless cell phone tracking or warrantless use of surveillance cameras placed on private property without permission.

Yesterday Griesbach adopted a recommendation by U.S. Magistrate Judge William Callahan dated October 9. That recommendation said that the DEA’s warrantless surveillance did not violate the Fourth Amendment, which prohibits unreasonable searches and requires that warrants describe the place that’s being searched.

“The Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance,” Callahan wrote.

Two defendants in the case, Manuel Mendoza and Marco Magana of Green Bay, Wis., have been charged with federal drug crimes after DEA agent Steven Curran claimed to have discovered more than 1,000 marijuana plants grown on the property, and face possible life imprisonment and fines of up to $10 million. Mendoza and Magana asked Callahan to throw out the video evidence on Fourth Amendment grounds, noting that “No Trespassing” signs were posted throughout the heavily wooded, 22-acre property owned by Magana and that it also had a locked gate.

Callahan based his reasoning on a 1984 Supreme Court case called Oliver v. United States, in which a majority of the justices said that “open fields” could be searched without warrants because they’re not covered by the Fourth Amendment. What lawyers call “curtilage,” on the other hand, meaning the land immediately surrounding a residence, still has greater privacy protections.

“Placing a video camera in a location that allows law enforcement to record activities outside of a home and beyond protected curtilage does not violate the Fourth Amendment,” Justice Department prosecutors James Santelle and William Lipscomb told Callahan.

As digital sensors become cheaper and wireless connections become more powerful, the Justice Department’s argument would allow police to install cameras on private property without court oversight — subject only to budgetary limits and political pressure.

About four days after the DEA’s warrantless installation of surveillance cameras, a magistrate judge did subsequently grant a warrant. But attorneys for Mendoza and Magana noticed that the surveillance took place before the warrant was granted.

“That one’s actions could be recorded on their own property, even if the property is not within the curtilage, is contrary to society’s concept of privacy,” wrote Brett Reetz, Magana’s attorney, in a legal filing last month. “The owner and his guest… had reason to believe that their activities on the property were not subject to video surveillance as it would constitute a violation of privacy.”

A jury trial has been scheduled for January 22.

via CNET