Tuesday, September 11, 2012

NORML By Your Side

NORML By Your Side

By Norm Kent
"Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive...”-----C.S. Lewis
Next month in Los Angeles, the National Organization for the Reform of Marijuana Laws will meet at its annual convention.

We are at a critical time for reform in America. We are at the precipice of change, despite unfortunate, untimely, and uncalled for setbacks by the Obama Administration.

Medical dispensaries in California have been under attack by federal prosecutors and state law enforcement officers. Local cities are backing away from their licensing of medical marijuana programs, authorized by state law.

NORML has always backed reform efforts, but last year a storm of controversy ensued when our own national director referred to the California plan as a ‘sham.’ In truth, advocates for the reform of marijuana laws never intended for pot to be conditionally ‘medicalized.’ We wanted it unconditionally legalized. Nothing has changed since the organization was founded 40 years ago.

Long before there were pharmacies for the federal government to raid, Thomas Szasz, a noted civil libertarian, writing in Liberty Magazine, warned us about the dangers of creating a therapeutic state. Here are his exact words:

“Drug prohibitionists were alarmed last November, when voters in Arizona and California endorsed the referendums permitting the use of marijuana for "medical purposes." Opponents of drug prohibition ought to be even more alarmed: The advocates of medical marijuana have embraced a tactic that retards the repeal of drug prohibition and reinforces the moral legitimacy of prevailing drug policies.”

No one at NORML has ever said that marijuana is not medicine. No one is saying that the war on drugs has not been an intrinsically evil exercise. We have even had voices argue that all use is medical.

The issue advocates debate today is the best and most appropriate path to legalization. Ironically, many thought the first step would be to support statewide medical marijuana programs. Instead, that highway has led to a federal law enforcement bulldozer. Innocent people are getting arrested and prosecuted.

NORML’s position has been to advocate for the free and unfettered use of marijuana by responsible citizens.

Why should we require any free citizen, patients included, to have to explain to a doctor why they are responsibly consuming a natural herb they should otherwise be free to use as they wish anyway?

Why should we embrace a system, where we know in advance, some people are going to use a ruse to get their medicine? It has contributed to the very consequences we are dealing with today.

When you position yourself as being an advocate of medical marijuana programs supervised by the state to help sick patients, you are correspondingly saying that the substance being administered should be regulated and controlled by that entity. You are not saying it should be freely disseminated to the general population at their leisure.  

NORML has a broad duty to serve the general public, not just a limited obligation to protect the medical marijuana clientele. Regrettably, the federal government is now demonstrating with arrests where that path has taken us, ignoring even decisions made by the states for their own citizens. 

Americans need to author their own drug policy, and not abdicate that right to physicians, the pharmaceutical lobby, or the government. Thomas Szasz was prophetic when he warned we were blinding ourselves by asking the government to adopt a “more rational policy.”

Any policy orchestrated by the government is simply another instrument of control inhibiting what should be the inalienable right of free citizens to decide which substances to use or avoid within their own bodies. If we bought into this idea of medicalization with governmental regulation, it was only because we hoped it would be a stepping-stone that would facilitate legalization. The broad primrose path sometimes leads to a nasty place.

Articles in the NY Times dating back to 2004 warned about the abuses inherent in California’s pioneering medical marijuana program. Shrewd reformers at the local and national level knew that these defects would eventually lead to a law enforcement backlash, which could potentially undermine the ability of patients to get their medicine. While justly empowering citizens to acquire marijuana as a medicine, we also saw it could lead to more stringent controls. Sadly, we face that today from a hypocritical Obama administration. We can say we are surprised this particular president reversed his course. We cannot say we are surprised that this day has come.

Consequently, rather than enhancing our civil liberties, we may have set into motion a process which diminished them. Allowing for medical marijuana access under a system of government administration is simply not the same as legalization, which provides adults with free and unfettered access to consume cannabis. Medical marijuana, for all its value, still has set forth a path of regulation, better perhaps than what existed before- but still not where we need to be.

Still, for any one of us that supports legalization not to also support medicalization is foolish. The fact is cannabis is a useful medicinal treatment alternative for dozens of ailments suffered by thousands of Americans. Not to allow its distribution through lawful and licensed dispensaries is inexcusable, indefensible, and unconscionable. So NORML very much joins with citizens from Colorado to California and all those communities now opening their doors to medical dissemination. Still, we can even do more than that.

Let’s move to a higher plateau and address the real issue of freeing nearly one million Americans a year from arrest and prosecution for the use of marijuana, medicinally or recreationally.

Medical? Recreational? Spiritual? Your body, your mind, your choice. A civil liberty is a civil liberty regardless of why you exercise that right.

Join with NORML next month at the Omni Hotel in Los Angeles and express your preference that marijuana be freed from slavery. Go to our website at www.norml.org and register as soon as you can.

Tuesday, August 28, 2012

Pot Injustice Pervades Public

The city of Wilton Manors has decided they will not oppose my law firm’s sign being placed on a Wilton Drive Bus bench.

Society is safe, thank god.

If you missed the controversy last month, Wilton Manors had initially forbidden my bench ad because of the pot leaf in it (see below). If you are “busted,” you are encouraged to call the Criminal Defense Law Center of South Florida, which is the fancy name I have given my law firm.

My law office partner, Russell Cormican, and I, decided to advertise the firm’s new name and logo, and our move to a new office in the Legacy Bank Building. Often, we represent good people charged with criminal acts because of stupid laws, which long ago should have been discarded.  None are more glaring than those arrested for the use of marijuana.

Take Elvy Mussika, a Hollywood woman who grew and smoked her own pot in order to counteract glaucoma, which was causing her to lose her eyesight.  After 23 operations to remove cataracts, she discovered that the THC in marijuana reduced the intraocular pressure in her eye canals, enabling her to see without surgery.

 Faced with a cultivation charge 25 years ago, in 1987, she challenged the State of Florida, saying she had a constitutional right to see, and argued her possession and use of marijuana was lawful, based on medical necessity. A jury agreed, 24 years ago today, and we won the case. Now, Mussika is one of many activists who will attend the Seattle Hempfest this weekend. In fact, far away in the northwest corner of the United States, over 150,000 pot warriors will gather at Myrtle Beach State Park in Elliott Bay to demand the legalization of marijuana.

One of the people that should be there with her is Boynton Beach resident Robert Platshorn, 69, the leader of The Silver Tour, fighting to educate senior citizens about the medicinal uses of marijuana — how it is an alternative to traditional therapies, with less residual consequences. In 1987, he was in jail.

Unfortunately, Platshorn served the longest sentence in America for marijuana — over 30 years — but he is still a victim of America’s drug war. Still under federal parole supervision, it seems that the government is now questioning his right to attend festivals promoting the decriminalization of marijuana.  He is working for drug law reform. The federal government is insisting on drug war compliance.

Like Elvy Mussika, Platshorn will eventually prevail, because Truth cannot be suppressed or silenced by government agents acting foolishly. It blows up in their face and Justice eventually emerges. If you want to help fight for Platshorn’s cause, you can go on Facebook and help fund his remarkable video, “Should Grandma Smoke Pot?” You can write to the Parole Commission and tell them to let him travel. And you can read his book, The Black Tuna Diaries.

Unfortunately, the national media does not adequately cover the marijuana activist movement in America. If it did, you would know that over 18 states in America and the District of Columbia have decriminalized marijuana.

You would also know that in each and every place where a decriminalization bill gets on a ballot, it wins — almost everyone today 35 and older has smoked pot, and everyone 16 and older is willing to try it. And Platshorn is showing how marijuana is medicine for seniors.

In different decades, both Mussika and Platshorn have stood alone fighting battles against injustice and a legal system that has been far too harsh and cruel to marijuana smokers. Though 25 years apart in their dilemmas, they are inextricably woven together by a thread of injustice fostered and furthered even today by the Obama Administration.

In California, medical dispensaries for marijuana users have proliferated by virtue of local ordinances and state laws allowing for the same. Sadly, tragically, and I dare say moronically, the Obama Administration has engaged in an all out war on those dispensaries and lawfully licensed businesses.

Disregarding the people’s will, the U.S. and its Department of Justice have raided the establishments, seized the inventory of medicines that were going to be provided to patients, and even arrested numerous owners who had in good faith opened businesses according to local laws.

As an activist who has spent 40 years fighting for the decriminalization of marijuana laws, I have found the acts of the Obama Administration unconscionable, unjust and unacceptable. It is flat out the reason why I will not support his re-election, despite his noble and forward record on LGBT civil rights. Gary Johnson, the former governor of New Mexico, is most likely to get my vote even though he has not gotten the national media attention he deserves.

Nationally, the National Organization for the Reform of Marijuana Laws (NORML) is carrying on a battle originally engaged 40 years ago when its founder, Keith Stroup, first called for an end to prohibition by 1980. Locally, a small group of activists is petitioning the city of Miami Beach to decriminalize pot, but it is a strong and vocal chapter you can also find on Facebook, led by a middle aged mom, Karen Goldstein, who saw her own roommate once unjustifiably arrested for using marijuana while fighting a disabling multiple sclerosis.

When it comes to marijuana, there is injustice on every corner. So that sign on Wilton Drive is where it needs to be, and no city is going to tell me I can’t have it there as long as their cops perpetuate the inequity of the drug war.

The only danger facing a pot smoker sitting on that bench is not from the weed but from a speeding drunk driver who hits him while he’s just sitting there.

Sunday, August 26, 2012

City Tries to Snuff Out Pot Ad

A massage parlor can’t advertise on park benches in Wilton Manors — and now neither can I.
Here I am, the vice chairman of the National Organization for the Reform of Marijuana Laws (NORML), and the city is telling me I can’t place an ad on a bus bench because it’s got a big pot leaf behind the text.
Here I am, a guy who has spent 40 years in the trenches as a criminal defense lawyer representing pot smokers, helping pave the way for 18 states to decriminalize marijuana, and our own little city of Wilton Manors now tells me that my ad is “objectionable.”
Hey, I did not mean to become the center of a news item. But now, a little ad that would have caught a few eyes is taking up a page in my newspaper. I guess I should thank the city, not bury them. But first, let me tell the story and the facts.
The City of Wilton Manors entered into a contract with Martin Outdoor Media a few years ago, allowing them to place 48 bus benches with professionally designed, commercial advertising on them in and about the city. No problem.
The city, however, imposed a restrictive condition on their contract with Martin, stating that “advertising of tobacco, firearms, massage parlors, adult book stores, adult theaters, adult escort services and pornographic or obscene matters are prohibited. The determination of objectionable, obscene advertising shall be the right of the City, and their decisions shall be final.”
My gut reaction at looking at that statute is how dare they presume that licensed massage parlors are presumptively obscene or offensive? But wait, it gets better.
I submitted an ad to replace the SFGN ad at the epicenter of Wilton Manors, on the Drive in front of the Alibi. The ad I submitted is to promote my other career, my law practice, the Criminal Defense Law Center of South Florida.
As you can see, the ad features the word ‘Busted?’ superimposed on top of a pot leaf. As is the nature of the industry, I am a lawyer who represents people who get busted. Note, I am advertising my law firm, not marijuana.
Nevertheless, our city, after meeting with the City Manager, the Leisure Services Director, Patrick Cann, has rejected my ad. They told Martin Media not to place it. They deemed it “objectionable.” They courteously and politely asked (told) me to cooperate with their advertising program, and requested me to “consider revising it.”
Cann, a nice enough guy, even added: “I greatly appreciate your consideration and would like to thank you for your support with the advertisement program.”
As I was writing this, Cann emailed me again to say the city isn’t actually saying I can’t do it, but ‘requesting’ I don’t do it.
Unfortunately, that does not hold water — they already told Martin Media they preferred not running the ad, and without the city’s approval, Martin Media won’t run it. In fact, the city said it was the “depiction of an illegal drug” in the ad, i.e., weed, that’s inconsistent with their objectives.
Well, here is the problem: I don’t agree or support the program as worded, and not just because I am bucking for a free massage from a wealth of licensed and legitimate massage therapists, who are getting screwed here, too.
First of all, I find nothing ‘objectionable’ about pot leaves. In fact, I love pot leaves. I wish I could grow them in my home in South Florida like I do in my apartment in San Francisco, where, as a surviving cancer patient, I have a grow license and medical marijuana card.
Second, the bottom line is that my ad does not violate the city’s contract. I am not posting something that is inherently ‘objectionable.’ What are objectionable for 40 years are the outdated laws that make pot illegal still. Marijuana has been decriminalized in 18 states, dozens of cities, and about 200 million Americans agree with me, but not Wilton Manors.
If more pot smokers came out of the closet the way gay people did, there would be less laws in America restricting pot possession. Hell, I just got back from Chicago, where their city council voted 43-3 to decriminalize the possession of small amounts of pot. As a guy who stands up for his clients, I sure as hell am going to stand up for myself. Like the country song goes, if you don’t stand for something, you will for anything. I won’t fall for this.
And I think this rule is beyond dumb that it’s almost comical.
It’s freaking 2012. There is a cable TV show called ‘Weeds.’ Presidents and pontiffs smoke the damn herb, and I bet there are plenty of residents of Wilton Manors who do as well.
Please, people are going to laugh about this while smoking a joint. Instead of focusing on building a parking lot in the center of the city, engineering economic development for its small businesses, and making its epicenter more pedestrian friendly, the city is worried about a sign with a pot leaf in it?
You have got to be kidding. I wonder if we drug tested every single one of our city employees, including commissioners and cops, for marijuana this week, how many would come up “objectionable.”
You make the call. Do you find the ad offensive? Should it be on a bus bench or not?
The back-and-forth with Wilton Manors is still on going as of press time. Check back next week and I’ll let you know how it all went down.

Friday, February 24, 2012

A Legal Take on Ryan Braun

A Legal Take on Ryan Braun

by Norm Kent

Vice President, National Organization for the Reform of Marijuana Laws

After being exonerated by major league baseball yesterday from his potential suspension, Ryan Braun owes all fantasy baseball players an apology.

In his press release acknowledging the support he had from his family and friends, he forgot to thank all those early-drafting fantasy players who stood by him and selected him in the top 20 picks. After all, as the NL MVP he was one of baseball's best players in 2011.

But now let me speak as a constitutional rights lawyer. Neither a technicality nor a loophole today freed Ryan Braun from a 50 game suspension. What saved Braun today was the fact that we leave in a society which is supposed to preserve due process, insure fairness, and honor agreements protecting the rights of employees. Baseball is no different. Players are very well paid obviously, but as Curt Flood, challenging baseball's free agency system years ago once stated, 'A high paid slave is still a slave.'

Today, baseball players are hardly slaves. Free agency has given them vast negotiating rights, but that does not change the fact that drug testing procedures in America are inherently flawed. Every day, using a substantially compromised field test, cops arrest innocent people for purportedly carrying contraband that turns out not to be so. The list and litany of false positives could and do fill a book, and I cite a few examples in a link at the bottom of the page. Beware of Dr. Bronner's natural, herbal, liquid soaps. They could put you in jail.

Nevertheless, in this era of steroids and performance enhancing drugs, major league baseball players and its management negotiated drug-testing protocols to insure the integrity of the game and trust of its fan base. However, as lawyers for the players sat down to work out the drug testing initiatives, it was imperative that mechanisms and processes be implemented that would insure the integrity of drug testing and fairness for both sides.

Scientists and lawyers had seen for years a panoply of poorly administered procedures which compromised the accuracy of results. These included a variety of situations, from not properly storing drug specimens at specific temperatures, to failing to initiate a timely testing of the sample. The reason meticulous guidelines and standards were imposed for all drug testing was because the failure to do so would render the test inherently unreliable, and could very well lead to false positives wrongly accusing an otherwise innocent individual.

The issue today with Ryan Braun is apparently chain-of-custody, but the reason chain-of-custody is critical is because the failure to preserve it exactly could potentially compromise the integrity of the test. That is why the failure to safeguard chain of custody was negotiated as a material factor in relying upon a drug test in the first place- because there is a history of insanely false positives when chain-of-custody protocols are not exactingly followed, or the specimens are not tracked thoroughly.

As the Ryan Braun case unfolds, it appears those procedures, agreed upon in writing by major league baseball and the players’ association, were not followed. He was ‘acquitted’ of wrongdoing not by a technicality. He was ‘acquitted’ of wrongdoing because of the wrongdoing by major league baseball operatives not abiding by the agreement they entered into.

This is not about a player getting off. This is about a contract being honored; about both parties being faithful to the rules and regulations they mutually negotiated before a player’s career could be interrupted and his reputation irreparably stained.

It is not that drug testing lost today. Fairness won. It is not a technicality that saved Ryan Braun. It is that we as a society have preserved due process, and the same procedures that have been used to affirm a dozen previous rulings on steroids, have now been applied to exonerate one. That is the way it should be when one side does not abide by its agreements. This time, it was the owners that lost, but neither did baseball win.

What won was the right of a censured athlete to argue an appeal and mandate that the landlords of the game respect the rights of its tenants pursuant to the terms of a lease they mutually negotiated beforehand.

For more information on how drug testing procedures in America are flawed, visit this article I published at http://jaablog.jaablaw.com/2011/08/18/field-drug-tests-fa.aspx It is hard to believe a bar of chocolate or some herbal incense can put you in jail, but in our Amerika, it still can.

As for Norm Kent, the fantasy baseball player, I should have known better. I should have had more faith in my own words, and drafted Ryan Braun in the freaking first round. My bad.

Sunday, January 8, 2012

A Felon for Life

By Norm Kent

I was trying to think of the most common questions I am routinely asked as a criminal defense lawyer- other than the predominant one, “How can you defend a guilty person?”. I will answer that on another day.

What's right behind that one? The most recurring inquiry for a lawyer representing someone charged with a crime, is if you can win your client a “withheld adjudification.” And everyone wants to know just what that means. Of course everyone wants to be acquitted or have their cases dismissed. But if the odds of that are unlikely, you want to know what is the next best alternative.

Well, first of all, there is no such thing and no such word as “adjudification.” I don’t know how the common occurrence of misstating the word came about, but a court may do one of two things with the disposition of your case- it can adjudicate you guilty, or withhold adjudication of guilt. An adjudication means you have been found guilty and are stuck forever with that finding, in this lifetime and the next. It means you have a permanent criminal record, which can never be sealed or expunged, removed or eliminated, absent a legislative change or pardon from the Governor.

An adjudication of guilt on a felony strips you of a breadth of your rights as a citizen, not only your right to vote but to hold a variety of public service jobs, as well as professional licenses. It takes away your driver’s license for two years, and it impacts your right to collect government benefits. Thus, if you are entering a plea to a criminal charge anytime anywhere, you want to seek a withheld adjudication of guilt, whether it is for a misdemeanor or felony.

In Florida and elsewhere, that is becoming more and more difficult. For example, if you enter a plea to drunk driving, courts have no discretion. It is mandatory that they adjudicate you guilty. Fortunately, that is not a felony, so some of your rights are preserved. But more and more criminal acts are coming under the penumbra of mandatory adjudications, the most frustrating of which are battery cases against law enforcement officers.

Very often, the battery charges evolve out of barroom brawls in which intoxicated patrons do not even know what is going on at the time. Sometimes a good Samaritan attempting to render aid to a police officer is seen by an arriving officer as possibly assaulting their fellow officer. They are then suddenly struggling with one officer while trying to help the other. In the melee that follows, they wind up in jail too. In other instances, of course, people, good people sometimes do get drunk, and then they act badly. There are no second chances.

Even though it is only the least serious felony, a third degree, if you strike a cop carelessly in a moment of anger or intoxication, you are likely to become branded a felon for life. In addition, more and more legislators are now talking about expanding the concept of mandatory adjudications to many other offenses. Florida, for example, now includes fleeing from a police officer as one of those offenses. Heaven help you if you do not hear those sirens.

A misdemeanor is less serious than a felony. In fact, the word ‘misdemeanor’ is derived from the Latin phrase for ‘misbehavior.’ Unfortunately though, if you are ever adjudicated guilty, even of only a misdemeanor, you will never, under Florida law, ever be able to get your record expunged. And if the adjudication is for a sexual offense, you can be barred from working in nursing homes, schools, and a variety of venues. Those that plea out may be having deal with those pleas for the rest of their life, as these cases generally can never be expunged or sealed. An expunction erases a criminal charge from your ‘record.’

Two years ago, I handled a case for a drag queen, Tiny Tina, who had been adjudicated for engaging in a lewd act in 1976, when she hosted a wet jockey contest at the Copa Bar. In the year 2010, she was denied a job at an assisted living facility when a state records search revealed that 34-year-old finding of guilt. Fortunately, I eventually had that horrible ruling overturned.

Indeed, it is getting tougher to seal or expunge any record of your arrest for misdemeanors or felonies. For example, charges that are now disqualifying, and make you ineligible for an expunction, include sexual offenses, acts of domestic violence, battery, residential burglaries, stalking and fleeing police. State law allows you only one expunction ever, and only if you have never been ‘adjudicated.’

When the term ‘adjudication’ is used in traffic court, the meaning is drastically different. You see, traffic tickets are considered only ‘civil infractions.’ Therefore, if you are found guilty and ‘adjudicated,’ it simply means that you are getting points assessed against your driver’s license by the Department of Motor Vehicles. It does not mean that you have been found guilty of a crime. If that is the worst thing that ever happens to you, then you will have lived a very decent life.

Many people come to Florida on vacation and wind up on probation. Many come from urban populations where certain behaviors are threated more leniently and liberally. In Dade County, however, the average traffic ticket will cost you about $250. In Broward, if you commit a felony, you are more likely to go to jail than almost any county in the state. Sell just one ounce of marijuana to an undercover police officer and our state attorney’s office will make you a plea offer of no less than 18 months in Florida state prison.

Ultimately, these harsh laws present grave consequences to the average citizen who makes one costly mistake. It means that a momentary lapse today can mean a lifetime of explaining it away tomorrow. What it means is your record and your life can become subject to permanent public scrutiny, accessible to anyone- friends, enemies, lovers, creditors, employers, credit agencies, and anyone with a computer that has Internet access.

We live in a country where one out of every 100 adults is either in prison or under some form of judicial probation or supervision. For Hispanics and African Americans, those statistics are even more dramatic. Too many acts have been declared illegal, and too much government has restrained our liberties. Florida is one of those places. Keep it in mind the next time you go off to party. The sun tans as well as burns.