Marijuana and Federalism: California a Test Case

On Friday, August 6, 2010 I attended a forum of the Voluntary Committee of Lawyers called “Marijuana and Federalism: California a Test Case.” The event was originally conceived as a chance for experts to publicly examine the implications of the state-federal conflict of the passage of A.B. 2254, Assm. Ammiano’s tax-and-regulate marijuana bill. Then, Ammiano withdrew 2254 in light of Proposition 19, a voter initiative legalizing marijuana and allowing local governments to tax and regulate sales.

Washington State Representative Roger Goodman, E.D. of the VCL, moderated the first of two panels, “Marijuana Legalization: A Clash of Federal Power and States’ Rights.” His excellent panelists explored the contours of the state-federal conflict, and its implications for potential legal challenges to Prop 19. First, Professor Robert Hirshon, who was president of the ABA during 9/11, spoke. Bob said that his “uber-blue-blood” law firm back in Maine had recently asked the Maine State Bar Association for guidance on the professional responsibility considerations of representing medical marijuana dispensaries (Maine has recently become the first American state to issue licenses to retail marijuana stores). The Maine Board of Overseers of the Bar responded with Advisory Opinion 199, advising that because marijuana is federally illegal, representing dispensaries could be a breach of the professional responsibility rules against knowingly assisting a crime.

Next Allen Hopper of the ACLU Drug Law Reform Project affirmed that representing dispensaries could arguably conflict with federal law and thus the PR code. However, he carved out an exception for attorneys who believe they are acting legally and in good faith. His best point came from his personal experience in representing WAMM, the Wo/Men’s Alliance for Medical Marijuana, in County of Santa Cruz v. Gonzalez. In that case, earlier this year, a medical marijuana collective and the county regulating it reached a settlement in which the federal government agreed to drop its prosecution.

Finally Professor Alex Kreit of the Thomas Jefferson School of Law in San Diego composed the meat of the panel by summarizing the law review articles he has published on this topic. Alex bifurcated analysis of Prop 19’s two sections, one of which legalizes personal possession and cultivation of marijuana, and the other of which allows counties and municipalities to regulate and license marijuana sales. He referred to Section 903 of the federal Controlled Substances Act, which says that the CSA will only preempt state law in the event of a “positive conflict” between state law and the CSA (which prohibits marijuana etc.). Alex analogized that there is no “positive conflict” between prohibiting marijuana and allowing marijuana, since a non-user can comply with both laws — this is, at worst, a passive conflict — whereas a “positive conflict” would result from a state law requiring mandatory marijuana consumption (preventing anyone from being able to follow both state and federal law simultaneously). He supposed that federal prosecutors would likely go after locally-licensed marijuana retailers, but would probably lose. Alex also pointed out that the federal government simply lacks the resources to enforce this federal law, rendering the point largely moot. He mentioned his shortly forthcoming article in the Chapman Law Review on this topic, “Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms.”

VCL President Eric Sterling moderated the second panel, “Marijuana Legalization on the Ground: Practical Considerations.” First, Assm. Tom Ammiano discussed his marijuana legalization bill, which gained notoriety last year as AB 390 when it passed the Public Safety Committee. He mentioned that this legislation would pass in a “hallway vote,” highlighting his fellow legislators “cowardice” on this issue. He also explained to the audience the concept of “contingency legislation.” The legislature could pass a law or laws regulating marijuana sales this year, set to take effect only in the event that the voters approve Prop 19. Though the Supreme Court would be required to overturn legislation amending a voter-approved initiative, legislation that adds to an initiative and is within its spirit and intent is not only acceptable but good planning. In fact, Section 5 of Prop 19’s text specifically allows for new laws creating a statewide regulatory system.

Drug Policy Alliance Staff Attorney Theshia Naidoo (disclaimer: was recently my boss) addressed the main substance of the panel by raising numerous practical considerations related to the passage of Prop 19. She provided an overview of the legal issues, especially on the civil side, likely to arise. She also mentioned the social justice implications of legalization, as DPA has just released a new report, “Targeting Blacks for Marijuana: Possession Arrests of African Americans in California, 2004-08,” available here. African Americans are 7% of California’s population but 33% of all felony marijuana arrests.

Americans for Safe Access Chief Counsel Joe Elford discussed Prop 19’s effects on medical marijuana law. ASA neither supports nor opposes Prop 19, but is neutral. He used medical marijuana as a case study for potential legal challenges to Prop 19. Joe mentioned that the upcoming appellate ruling in Qualified Patients Association v. Anaheim could undermine retail sales (though the ruling, since released, did not). He focused on his “greatest loser,” Ross v. RagingWire, in which the California Supreme Court ruled medical marijuana patients can be discriminated against for purposes of employment. Joe’s main takeaway was that Prop 19 expressly does not change our medical marijuana laws, except that it would overturn RagingWire — and would likely lower the price of medicine for patients.

Finally, Sheriff Tom Allman of Mendocino County explained his opposition to Prop 19. He said he supports medical marijuana, but opposes the way it has been implemented in California: by patchwork. He explained that medical marijuana has brought money, and money has brought greed, and greed has brought violence. He sees Prop 19 bringing more marijuana money into the public eye, and thus leading to more violence. His specific stated example for opposing medical marijuana implementation in Mendocino County was “stench,” i.e., neighbors’ complaints about odor from cultivation.

Economist: Rough Justice

We Americans look especially ridiculous from across the pond. California even gets a special international shout-out for just how expensive our prison system is…
The Economist, “Crime and Punishment in America: Rough Justice”
http://www.economist.com/node/16640389

America locks up too many people, some for acts that should not even be criminal

IN 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America’s incarceration rate has quadrupled since 1970.

Similar things have happened elsewhere. The incarceration rate in Britain has more than doubled, and that in Japan increased by half, over the period. But the trend has been sharper in America than in most of the rich world, and the disparity has grown. It is explained neither by a difference in criminality (the English are slightly more criminal than Americans, though less murderous), nor by the success of the policy: America’s violent-crime rate is higher than it was 40 years ago.

Conservatives and liberals will always feud about the right level of punishment. Most Americans think that dangerous criminals, which statistically usually means young men, should go to prison for long periods of time, especially for violent offences. Even by that standard, the extreme toughness of American laws, especially the ever broader classes of “criminals” affected by them, seems increasingly counterproductive.

Many states have mandatory minimum sentences, which remove judges’ discretion to show mercy, even when the circumstances of a case cry out for it. “Three strikes” laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of “the intangible right of honest services”, which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious.

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.


Less punishment, less crime

It does not have to be this way. In the Netherlands, where the use of non-custodial sentences has grown, the prison population and the crime rate have both been falling (see article). Britain’s new government is proposing to replace jail for lesser offenders with community work. Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors’ powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.

Fewer inmates entering Md., Va. prisons

I’m reposting this article from The Washington Examiner because I was intrigued by the connection drawn between international interdiction efforts and local corrections statistics.

By Liz Essley

Special to The Washington Examiner

Maryland and Virginia kept fewer people behind bars last year, in step with a nationwide trend that saw the first drop in states’ prison populations since 1972.

Maryland held 4.6 percent fewer prisoners in 2009 than in 2008 — one of the biggest decreases in the United States — and Virginia held 0.5 percent fewer.

Nationwide, states housed 0.2 percent fewer inmates, though the federal prison population grew by 3.4 percent.

“It absolutely is unprecedented. And that’s what was shocking for us. Within the available data, going back 10 years, [prison population] had gone up for 10 years. The drop is absolutely unprecedented,” said Baron Blakley, an expert with Virginia‘s Department of Criminal Justice Services.

Maryland’s shift — 1,069 fewer prisoners last year, leaving the state with 22,255 inmates — probably reflects new policing policies in Baltimore, said Marty Burns, a spokeswoman for the Baltimore City State’s Attorney’s Office. About 30 percent of the state prison system’s inmates come from Baltimore, he said.

The number of arrests in Baltimore dropped after 2007, when the police commissioner eliminated the city’s “zero-tolerance” crime policy and police started concentrating on violent, repeat offenders, said Anthony Guglielmi, spokesman for the Baltimore Police Department.

In 2008 and 2009, there were 5 percent fewer arrests, Guglielmi said.

“When you’re reducing the amount at the front of the pipeline, that ultimately will have an effect on the pipeline,” Guglielmi said.

Other factors reducing the number of Baltimore arrests could be tighter budgets and fewer officers, Burns said.

In Virginia, experts say a reduction in cocaine availability is decreasing the number of state prisoners.

The state inmate population was 37,633 in May, down from 38,329 in July 2009.

A 30 percent drop in the number of felony drug arrests over the past few years drove the prison population decline, said Meredith Farrar-Owens, a member of the Virginia Criminal Sentencing Commission.

Police are arresting fewer people for felony drug offenses because cocaine has become less available, according to Blakley. The drug war in Mexico, increased coca eradication in Colombia and an expanding cocaine market in Europe mean less cocaine on the streets of Virginia, he said.

Justice Policy Institute release

FOR IMMEDIATE RELEASE:
May 24, 2010

CONTACT: Adam Ratliff, aratliff@justicepolicy.org, (202) 558-7974 x306

Crime report shows crime fell in 2009 as prison growth rates decreased

Drop in crime comes as states seek ways to reduce prison populations and improve savings for state budgets

WASHINGTON, D.C.-Reported violent crime in the United States fell by 5.5 percent and property crime by 4.9 percent in 2009, according to an analysis released today by the Justice Policy Institute (JPI). The analysis, which was based on the FBI’s Preliminary Annual Uniform Crime Report, released earlier today, also found that this drop in crime coincided with decreasing use of prisons from previous years. This corresponds with a national trend of states seeking ways to curtail corrections spending in light of the economic downturn. JPI applauded the news, saying it highlights that states can save money, promote alternatives to incarceration and still maintain public safety.

“Increased incarceration does not increase public safety,” said Tracy Velázquez, executive director of the Justice Policy Institute. “The FBI’s report shows that we can improve public safety and put fewer people in prisons, which means savings for taxpayers in addition to stronger communities. Investments in jobs, education and treatment are areas where states should focus their dollars, as all of these will help reduce crime more effectively and fairly than building more prisons.”

According to the analysis, the 2009 drop in crime came at a time when the prison growth rates fell from previous years. While the number of people in prison is still growing, it is at a slower rate than the last few decades.

“Contrary to the conventional wisdom that locking people up makes communities safer, the data is clearly showing that crime is going down as fewer people are being put in prison,” Velázquez added. “Rather than spending more money unnecessarily on policing and incarceration, we recommend that states increase their investments in people and communities, rather than prisons, as a better way of ensuring that public safety continues to improve.”

The Justice Policy Institute (JPI) is a Washington, D.C.-based organization dedicated to reducing society’s use of incarceration and promoting just and effective social policies.

For a more in-depth analysis of crime trends, and information on effective public safety practices, please visit our website at www.justicepolicy.org.

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SF Public Defender: Justice Summit

On May 19 I attended the San Francisco Public Defender’s 2010 Justice Summit, at the SF Public Library. Jeff Adachi eloquently introduced a day of 3 panels, one Clara Foltz impersonator, a TV PSA, and free lunch. The PSA video was a startling, professionally-produced 15-second spot promoting the abstract concept of the public defender (“PD”).

The first panel, “Ordinary Injustice,” offered a scathing critique of every level of our criminal justice system. The title was taken from the book of the same name by Amy Bach, who spoke first and stole the show with firsthand stories of miscarriages of justice in rural courtrooms. She also noted that these problems affect everyone, not just those caught up in this system, because our tax dollars become the collateral consequences. Laurence Benner made the point that this injustice will inherently remain so long as local politicians are entrusted with funding our indigent defense system. Kenneth Tanaguchi, Fresno PD, mentioned thatjustice suffers in counties using contract defenders because of their innate conflict of interest: turning a profit will trump clients’ best interests when criminal defense services are auctioned. John Terzano, Justice Project ED, explained prosecutorial misconduct as a product of prosecutors’ discretion, lack of accountability, and entrenched culture. Sam Webby described his series of stories for the San Jose Mercury-News about the San Jose’s defendants going without representation at their first (and usually only) appearances, which led to a change in policy: now those courtrooms have lawyers in them everyday for the first time.

The second panel discussed PDs’ public relations problem: “Public pretender or public crusader?” Former prosecutor Jonathan Shapiro, now famous for The Practice and Boston Legal, started controversially by telling the audience of PDs to cut their ponytails, lose their earrings, and wear dark suits with white shirts and red ties. His main point was that PDs need more self-promotion, and collective national representation to educate the public on their purpose and worth. Jami Floyd of tv’s The Best Defense agreed that the media contributes to misperceptions of the PD’s role, because of the pro-prosecution bias in the assumption that defendants did something wrong (violating innocent-until-proven-guilty). A New Yorker, she argued that reforming draconian drug laws is the best issue to start with reshaping the PD’s image. Criminal defender Gerald Schwartzbach drew applause for, “You don’t fight crime by cutting social services,” and for, “Putting a black robe on a jackass doesn’t get you a judge,” and for, “The whole criminal defense bar, public and private, needs to circle the wagons” and unify to improve its reputation/image. Carol Dee Huneke of PD Revolution (pdrevolution.blogspot.com) pointed out that even though emotionality usually favors victims, occasionally it works for defenders, and then they ought to call the media.

The third panel focused on prisoner re-entry services, from the mixed viewpoints of service providers, former prisoners, and advocates. It was pretty depressing, as highlighted by Eliza Hersh of the East Bay Community Law Center’s Clean Slate program: “There’s not really such a thing as a ‘clean slate’ in California.”

Truancy Courts: Problem-Solving or Criminalization?

A weekend story on the Chron provides a peek into Oakland’s truancy court, where parents are charged for their children’s absences from school. The consequences include arrest and fines, but also stern lectures from the judge about the need to reduce truancy. This is not the first time we have noted this indirect mechanism for crime control: In San Francisco, Kamala Harris has often drawn attention to the link between truancy and crime, both in op-eds and in her book Smart on Crime. Harris’ website boasts a 23% decline in truancy as a result of these policies (no statistics for recidivism reduction are offered, however).

These policies often raise important questions. Is there a connection between truancy and crime, and if so, is it causal or a mere correlation caused by something else? There are plenty of quantitative studies that point to the correlation, and some have included truancy in models of juvenile delinquency. Life-course criminologists, such as Sampson and Laub in their book Crime in the Making, argue that truancy is one of many “turning points” that direct one’s life toward crime. It appears to be a trend that goes beyond U.S. borders: Joanne Baker, in a project by the New South Wales Bureau of Crime Statistics and Research, recognizes truancy as one of the “risk factors” for crime. But isn’t the real problem lack of parental supervision, or social disorganization in the neighborhood?
Whatever the answer, it seems that attention to truancy also raises important concerns about criminalization. “Crime”, after all, is what the legislator wants it to be, and over the years, the contours of parental neglect have modified and changed. Whether it is paternalism or governing through crime, it seems that focusing on early stages espouses a philosophy that addresses crime indirectly.

Close the CA Division of Juvenile Justice

Daniel Macallair has made an outstanding argument in the LA Times for closing the Division of Juvenile Justice and its five state-run youth correctional facilities. “The system is broken everywhere you look.” Allowing counties, instead of the state, to house juvenile offenders (currently about 1,400 of them) would save the state government $322.7 million (yes, a third of a billion dollars). County probation systems already handle 99% of juvenile cases.

Portugal Decriminalized All Drugs; Drug Use Dropped


As of this week, it’s been one year since the Cato Institute published its land report “Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies,” authored by Glenn Greenwald. The report examines eight years of Portugal’s drug policy: decriminalization of possession of all substances.

Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, “Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale.”

However, the Cato report found that Portugal’s total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce’s post reminds me, we never thought we’d see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates’ good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors’s new report, in 2008 RI imprisoned 188 people and jailed 396–who spent a collective 2,366 days in jail.