Monday, November 7, 2011
By ETHAN NADELMANN
MARIJUANA is now legal under state law for medical purposes in 16 states and the District of Columbia, encompassing nearly one-third of the American population. More than 1,000 dispensaries provide medical marijuana; many are well regulated by state and local law and pay substantial taxes. But though more than 70 percent of Americans support legalizing medical marijuana, any use of marijuana remains illegal under federal law.
When he ran for president, Barack Obama defended the medical use of marijuana and said that he would not use Justice Department resources to override state laws on the issue. He appeared to make good on this commitment in October 2009, when the Justice Department directed federal prosecutors not to focus their efforts on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
But over the past year, federal authorities appear to have done everything in their power to undermine state and local regulation of medical marijuana and to create uncertainty, fear and confusion among those in the industry. The president needs to reassert himself to ensure that his original policy is implemented.
The Treasury Department has forced banks to close accounts of medical marijuana businesses operating legally under state law. The Internal Revenue Service has required dispensary owners to pay punitive taxes required of no other businesses. The Bureau of Alcohol, Tobacco, Firearms and Explosives recently ruled that state-sanctioned medical marijuana patients can not purchase firearms.
United States attorneys have also sent letters to local officials, coinciding with the adoption or implementation of state medical marijuana regulatory legislation, stressing their authority to prosecute all marijuana offenses. Prosecutors have threatened to seize the property of landlords and put them behind bars for renting to marijuana dispensaries. The United States attorney in San Diego, Laura E. Duffy, has promised to start targeting media outlets that run dispensaries’ ads.
President Obama has not publicly announced a shift in his views on medical marijuana, but his administration seems to be declaring one by fiat. The head of the Drug Enforcement Administration, Michele M. Leonhart, a Bush appointee re-nominated by Mr. Obama, has exercised her discretionary authority to retain marijuana’s classification as a Schedule I drug with “no currently accepted medical use in treatment in the United States.” And the pronouncements on marijuana, medical and otherwise, from Mr. Obama’s top drug policy adviser, R. Gil Kerlikowske, have been indistinguishable from those of Mr. Bush’s.
None of this makes any sense in terms of public safety, health or fiscal policy. Apart from its value to patients, medical marijuana plays an increasingly important role in local economies, transforming previously illegal jobs into legal ones and creating many new jobs as well, contributing to local tax bases and stimulating new economic activity. Federal crackdowns will not stop the trade in marijuana; they will only push it back underground and hurt those patients least able to navigate illicit markets.
Perhaps not since the civil rights era has law enforcement played such an aggressive role in what is essentially a cultural and political struggle. But this time the federal government is playing the bully, riding roughshod over states’ rights, not to protect vulnerable individuals but to harm them.
At the federal level, there have been few voices of protest. Senior Democrats on Capitol Hill shy away from speaking out. Republicans mostly ignore the extent to which anti-marijuana zealotry threatens core conservative values like states rights, property rights and gun ownership.
Mr. Obama briefly showed a willingness to challenge the drug-war mind-set that permeates the federal drug-control establishment. He needs to show leadership and intervene now, to encourage and defend responsible state and local regulation of medical marijuana.
Ethan Nadelmann is the executive director of the Drug Policy Alliance.
Monday, October 10, 2011
Betrayed by Barack
By Norm Kent
Some of the letters prosecutors sent out also warned the state and city-licensed dispensaries of enhanced federal penalties if their businesses happened to be within a thousand feet of schools or playgrounds.
Four US Attorneys gathered on Black Friday in Sacramento to announce the ultimatums delivered to at least 38 dispensaries throughout the state. Declaring that federal law “took precedence over state law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana," they told the proprietors they just don’t give a damn what laws California has enacted and whether their dispensaries are in compliance with local municipal ordinances or not.
“We are the kings,” they said, and you shall do our bidding or ‘go directly to jail.’ Do not pass Go. Do not collect $200. To them, it was a game, and they were the game makers.
The US Attorneys, wearing suits invisibly emblazoned with a hammer and sickle, announced that any dispensary that remained open “would be subject to criminal prosecution and civil enforcement actions,” including the seizure of real and personal property. No discussion. No debate. Just jail and seizures, fines and forfeiture.
The new road follows the appointment of a drug czar who was not sympathetic to dispensaries. It follows months of threats and warnings from local federales. And it follows months of IRS audits and bank actions refusing dispensary accounts.
The Obama Administration’s false promises were a misleading ruse, lulling supporters to expand and enhance dispensaries throughout California. This law enforcement initiative reflects that Obama was either never supportive of medical marijuana efforts or is transparently powerless to supervise the very US attorneys he has appointed.
Either way, this new legal initiative will send a message not only to the sixteen states that have enacted medical marijuana laws. It will intimidate and warn others not to even try. Threatened municipal officials will see what is happening in California and back off everywhere else. Prohibition has returned, in a big, federal way. Thanks, Mr. President.
To his credit, Rob Kampia, Executive Director of the Marijuana Policy Project, was one of the first persons to condemn the administration. He published a column in the Huffington Post entitled: “Obama- From First to Worst on Medical Marijuana.”
Two months later Obama added that he would stop the DEA’s raids on growers since “our federal agents have better things to do, like catching criminals and preventing terrorism." As columnist Jacob Sullum wrote yesterday, Oregon medical marijuana growers who were raided by the DEA last weekend probably are wishing that guy had been elected president.
As for those enterprises which legitimately invested their life savings in starting a ‘cannabiziness’ which complied with local and state regulations, and offered a public service to those who found marijuana had legitimate medical uses, well they are just damn well out of luck. Who ever said the government was going to be fair? Who ever believed the government could not be ruthless?
What will go away is the potential revenue stream lawful distribution could have generated, the public safety regulation would have brought, and the access medical patients so desperately need.
A Florida attorney who can be reached at email@example.com, Norm Kent serves on the NORML Board of Directors.
Wednesday, August 10, 2011
As if America's highly-publicised "war on drugs" were not already facing a credibility gap, two US superior court judges – one in Washington, DC, another in Colorado – are raising questions about whether the federal Drug Enforcement Agency (DEA) and police departments are using "pseudo-scientific" drug identification methods to bust hundreds of thousands of suspected drug users, many of them inner-city minority kids. A flawed drug test means that innocent people are being locked up as suspects, deprived of their due process rights, and then pressured to accept plea bargains, whether they're guilty or not.
At issue in the growing controversy is whether current drug identification methods, including the widely-used "Duquenois-Levine test", can verify – and how accurately – that the substance police seize during an arrest is the one they say it is. The test, a variation on simple techniques first employed in the 1930s, exposes the suspect substance to a liquid chemical, and if it turns a certain colour – purple, in the case of marijuana – it's deemed likely to be the real thing.
But according to leading defence experts, including Heather Harris, a highly-trained chemist who's gone head-to-head with DEA lab "experts" and won, there are hundreds of legal substances, many of them readily available commercially, or in nature, that would normally turn purple under the exact same test conditions. Which means the Duquenois test, while ruling marijuana "in" as one theoretical possibility, perhaps, can't confirm its presence, either – at least, not "beyond a reasonable doubt", the legal threshold required for a conviction.
But that hasn't stopped police from using the test widely. In one recent case in Florida, police descended on a middle-aged woman bird-watcher in a public park and busted her after noticing a leafy substance in a package in her purse, which later turned out to be sage she'd purchased as incense for her home. The woman tried to inform the police about sage's medicinal and spiritual uses, and even Googled the manufacturer's website on her laptop, which matched the branding on the package. But the police busted her anyway, after the substance turned purple in a lab test. She's now planning to sue for damages.
In fact, the problem of "false positives" in drug tests isn't just limited to substances that appear to resemble marijuana. In Canada, the owners of a family-based chocolatier business were fingered as dangerous drug dealers by a Duquenois field test, and found themselves in jail.
The chocolate case may seem extreme but it's happening all across America, experts say. That's, in part, because of the pay incentives involved. Police can earn large amounts of overtime pay by conducting routine drug busts, especially after hours; they even have a name for the practice: "collars for dollars". In New York, where possession of less than an ounce of marijuana was decriminalised some years ago, marijuana drug busts have not declined; they've skyrocketed – from 5,000 to roughly 30,000 annually – in part, because police find the practice so lucrative.
Of course, Duquenois-Levine is not the only DEA-approved drug test available. A far more conclusive test, known as GC/MS, using far more advanced techniques, can also be performed, but defendants and even many lawyers are rarely aware that they can insist on such a test, or have much incentive to do so.
And, in fact, even the GC/MS test is increasingly under fire, because the DEA doesn't have standard lab protocols to govern its use, and has angered judges, including those in Washington and Colorado, by overstating the test's reliability in court. In one recent case, a Colorado superior court judge threw out all of the DEA's testimony in a drug case after its witness, under cross-examination, failed to demonstrate that the GC/MS testing conducted at one of its 18 national labs was reliable. It's a legal precedent that has the DEA reeling, experts say.
Of course, many people arrested for drug use and possession are undoubtedly guilty as charged – how many is unclear, though, because plea bargaining is so commonplace. But using manifestly flawed drug identification tests to charge defendants, or pressure them to plead guilty, is hard to square with a defendant's right to due process. And the DEA and local police, by relying on such methods, are in danger of damaging even their "good" cases, making a further mockery of the "war on drugs", while leaving ordinary citizens more at risk than ever.