Breaking News:URGENT: Call Congress TODAY to Save DC Marijuana Legalization!

Drug War Chronicle #461 - November 10, 2006

1. Election 2006: Brief Comment on the Transfer of Power in Congress

DRCNet's executive director offers a brief analysis of the new political dynamic in Washington as it affects drug policy.

2. Election 2006: Initiatives Defeated in Colorado and Nevada, But Hundreds of Thousands Voted to Legalize Marijuana

Two marijuana legalization initiatives went down to defeat in Colorado and Nevada, but by relatively narrow margins. Organizers are vowing to try again.

3. Election 2006: Local Marijuana Initiatives Win Across the Board

Statewide marijuana initiatives may have had a tough time this year, but it was a clean sweep for local lowest priority initiatives, which went five for five, plus a local medical marijuana measure.

4. Election 2006: South Dakota Medical Marijuana Initiative Backers Vow to Try Again After Narrow Defeat

In a close vote, South Dakota voters became the first in the nation to turn back a medical marijuana initiative, but organizers vow to try again.

5. Election 2006: Drug Reformers in Third Party Statewide Bids Poll Single Digits, But One Wins a State House Seat in Washington

A drug reformer won a state house seat as a Democrat this week, but third-party reformers got largely ignored at the polls.

6. Election 2006: Arizona Voters Take a Step Backwards on Sentencing Reform

Arizona voters took a step backward by allowing first- and second-time methamphetamine offenders to be sentenced to jail or prison -- unlike any other Arizona drug possession offenders.

7. Election 2006: Massachusetts Voters in Four More Districts Continue the Clamor for Marijuana Law Reform

Four more Massachusetts representative districts have voted to ask their reps to support either marijuana decriminalization or medical marijuana bills in the state legislature.

8. Law Enforcement: This Week's Corrupt Cops Stories

A Kentucky deputy gets caught stealing from the office stash, so does a Cleveland court employee, and a Cleveland cop's husband's activities is raising eyebrows.

9. Weekly: This Week in History

Events and quotes of note from this week's drug policy events of years past.

10. Medical Marijuana: First New Federal Prosecution in Three Years Underway in California

Federal authorities had not prosecuted a California medical marijuana patient or provider since the Ed Rosenthal trial blew up in their face three years ago, but that changed Wednesday.

11. Sentencing: US Supreme Court to Try to Clean Up Post-Booker Ruling Issues

Last year's Supreme Court decision making federal sentencing guidelines only advisory has led to confusion in the federal courts. Now the high court has agreed to hear two cases that could help stop the head-scratching--and maybe get some drug offenders some shorter sentences.

12. Sentencing: Public Hearings on Illinois SMART Act Pack 'Em In

Public hearings on an Illinois bill that would divert first-time drug possession offenders into "drug schools" instead of prison are now underway across the state, and if the crowd in Chicago is any indication, public interest is high.

1. Election 2006: Brief Comment on the Transfer of Power in Congress

Drug War Chronicle has this week focused on the results of ballot measures and individual candidacies of relevance to drug policy reform. We will next week publish an in-depth analysis of the potential impact that the change of control of Congress from the Republicans to the Democrats could have on our issue, but in the meanwhile a few brief comments:

First, while DRCNet is a commitedly non-partisan organization that has had both good and bad -- mostly bad -- to say about both major parties' stances on drug policy, at the present moment in time our cause or at least some politically current corners of it, has more friends on the Democratic side of the aisle. Some of them are expected to take the chairmanships of key committees:

  • Rep. John Conyers (D-MI) is the next likely chairman of the House Judiciary Committee. He replaces James Sensenbrenner (R-WI), one of the most extreme drug warriors in Congress. Click here to read about Conyers' appearance at our Perry Fund event in Washington last year.)
  • Rep. Bobby Scott (D-VA), a committed criminal justice reform, is headed toward chairmanship of the subcommittee of Judiciary that deals with crime legislation.
  • George Miller (D-CA) is the likely chair of the House Education and the Workforce Committee, and Ted Kennedy (D-MA) of the Senate committee dealing with education, two of our best supporters in the effort to repeal the Higher Education Act drug provision -- we've gotten it part of the way already, it now may be a real possibility to get rid of it entirely.
  • Pat Leahy (D-VT) is in line to chair the Senate Judiciary Committee, another of the best members of Congress on criminal justice issues. The current chairman, Arlen Specter (R-PA), is pretty decent on drug policy, better I would say than a lot of Democrats. But Leahy will probably do more for us, and Specter will still be there as the ranking minority member.

This is not to say that the Democratic Party is a reliable ally for us by any means. After all, the terrible mandatory minimums we are living with today were enacted 20 years ago by a Democratically-controlled Congress, on the initiative of Democratic leaders. Only a few months ago Democratic Senator Charles Schumer sponsored millions of dollars of funding for opium eradication in Afghanistan, in our opinion a big mistake and unjust to the farmers who have no other effective way of feeding their families.

Nevertheless, in our opinion we now have a much better fighting chance -- not yet for legalization, perhaps, but for much positive progress -- and less of a chance of seeing really bad bills go through. Sentencing reform, needle exchange, scaling back Plan Colombia funding, even medical marijuana -- could they happen? The answer is now a definite maybe.

The more our forces grow, the more of you, our readers, take action, the more clout the cause will have with both Democrats and Republicans. We are at a juncture of historic possibilities in the issue, and we hope we can count on your support and participation in the months and years to come.

http://stopthedrugwar.org/files/conyersarrival.jpg
John Conyers at DRCNet's Perry Fund reception, March 2005

back to top

2. Election 2006: Initiatives Defeated in Colorado and Nevada, But Hundreds of Thousands Voted to Legalize Marijuana

A Nevada initiative (Question 7) that would legalize the possession of up to an ounce of marijuana and provide for its regulated sale and taxation lost with 44% of the vote, while a Colorado initiative (Measure 44) that would have legalized the possession of up to an ounce lost with 40% of the vote. Both were bitterly opposed by local law enforcement and the federal drug war bureaucracy. In both cases, organizers are vowing to come back and try again.

The Nevada result is a 5% improvement over 2002, when a similar initiative garnered 39% of the popular vote. In Colorado, where legalization had never before been on the statewide ballot, four out of ten voters were prepared to vote for it the first time around.

In both states, anti-drug activists joined forces with law enforcement to turn back the tide. In Nevada, where gambling is legal and so is prostitution in most counties, the ironically named Committee to Keep Nevada Respectable resorted to misrepresentations of the measure to insist it would prevent employers from doing drug testing, as well as arguing that allowing for the regulated sale of marijuana would somehow increase youth marijuana use. The Committee consisted of a number of community anti-drug coalitions, the Reno and Las Vegas Chambers of Commerce, the Las Vegas Police Protective Association, the Southern Nevada Conference of Police and Sheriffs, and the Nevada Sheriffs and Chiefs Association.

In Colorado, the organized opposition was headed by Gov. Bill Owens and Attorney General John Suthers, who held a late press conference denouncing the measure (and who were rudely surprised by a vigorous counter-demonstration by Measure 44 supporters during that press conference). In both states, representatives of the Office of National Drug Control Policy showed up to interfere with state ballot measures.

While initiative organizers in both states professed disappointment at the results, they have vowed to continue the fight. "Today, a record number of Nevada voters called for an end to marijuana prohibition, the highest vote ever to end prohibition," said Rob Kampia, executive director of the Marijuana Policy Project (MPP), the parent group for the Committee to Regulate and Control Marijuana, the Nevada-based entity that led the campaign. "The momentum is with us. Major social change never comes easily, but change in our failed marijuana laws is coming because prohibition does nothing but harm. Prohibition funds criminals and guarantees that teens have easy access to marijuana, and voters have begun to see through the drug czar's lies. We've made huge progress since our 39% to 61% loss on a similar ballot measure in Nevada four years ago. We plan to try again with another marijuana initiative in Nevada in November 2008 or 2010."

"We are not disappointed at all with the results of today's election," said SAFER Colorado campaign director Mason Tvert. "This campaign, following on the heels of our successful legalization initiative in Denver last year, was just one step in a five- to ten-year battle to make marijuana legal in Colorado. Now we see that a number of counties support changing the state law regarding adult marijuana possession so that they have the right to set their own local policies."

Without significant outside funding, SAFER Colorado managed to reach out to hundreds of thousands of Coloradans with an "alcohol vs. marijuana" campaign that clearly resonated with voters. "One low-budget initiative campaign cannot overcome 70 years of government lies and propaganda," Tvert said. "If it were possible to make marijuana legal with a $60,000 campaign in a state with nearly three million voters, it would have been done long ago. But the writing is on the wall in Colorado and we will continue to educate the public while pressuring government officials and community leaders to explain why they think adults should be punished for using a substance less harmful than alcohol."

Although lost elections are never popular, other leading drug reformers looked for the positive. "Even though they lost, hundreds of thousands of people in two states still voted to legalize marijuana," said Bill Piper, national affairs director for the Drug Policy Alliance. "I think that is very respectable, especially in Nevada, where the measure was so far-reaching."

Question 7 in Nevada would not only have legalized the possession of up to an ounce by adults, it would also have established a state-sanctioned system of regulated marijuana distribution. Colorado's Measure 44, on the other hand, was a simple marijuana possession legalization initiative that would have protected adults holding up to an ounce.

"These outcomes, while disappointing, were not unexpected," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML), who traveled to Colorado to assist in the campaign's final days. "Despite these results, adults in Colorado and Nevada continue to live under state laws that authorize the medical use of marijuana and allow adults to possess and use small amounts of pot without the threat of incarceration or a criminal record."

That's good, but it's not enough, said SAFER Colorado's Tvert. "There will be a continuing effort in Colorado," he told Drug War Chronicle. "We were up against 70 years of marijuana prohibition, 70 years of lies and distortions about marijuana. This was the first time Colorado voters had to confront marijuana prohibition, and it won more votes than the Republican governor candidate. We got the message out and shocked the hell out of Colorado, even with no money and what some people would call a reckless campaign."

Nearly seven decades after national marijuana prohibition was enacted, no state has yet voted to end it at the state level. But the forces of reform are edging ever closer to victory. Will 2008 be the beginning of the end? Stay tuned.

back to top

3. Election 2006: Local Marijuana Initiatives Win Across the Board

Statewide medical marijuana and marijuana legalization initiatives had a tough time at the polls on Tuesday, but it was a different story for a set of local measures that make adult marijuana possession offenses the lowest law enforcement priority. In three California cities, small-town Eureka Springs, Arkansas, and college town Missoula County, Montana, voters sent a clear message to law enforcement and local officials that they should find better things to do than persecute pot users.

Voters in Albany, California, also passed a medical marijuana initiative, Measure D, supported by Americans for Safe Access.

Tuesday's lowest law enforcement priority victories, which were funded by the Marijuana Policy Project, are the latest of a series of initiatives that started in Seattle in 2003 and now include Oakland, California, and Columbia, Missouri. In California, initiative supporters hope to use this week's victories as a springboard to either more local initiatives or statewide action in the near future.

In the Golden State, as part of the California Cities Campaign, the cities of Santa Barbara, Santa Cruz, and Santa Monica all passed lowest priority initiatives, with 65% of the vote in the first two and 64% in Santa Monica.

Sensible Santa Barbara campaign director Lara Cassell told Drug War Chonicle Thursday the group was eager to move on to implementing the new lowest priority policy. "We are looking forward to working with the police and the city council to get this up and running," she said.

But Cassell and the rest of the California Cities Campaign crew are not resting on their laurels. They are instead seeking to broaden the impact of their victories. "We are looking at the state and federal levels and we hope this will strengthen the case for reform," she said. "The voters have sent a really clear message that the drug war has failed and it is time for a new approach."

That same message was resonating -- though not quite as loudly -- in Big Sky Country. In Missoula County, Montana, the lowest priority initiative there won with 53% of the vote. Ignoring strong opposition from local law enforcement, voters in what is arguably Montana's most liberal county sent a strong signal that they, too, are looking for an alternative to the drug war, or at least marijuana prohibition.

Instead of listening to the police, a majority of Missoula voters listened to Citizens for Responsible Crime Policy, the group that proposed the measure and got it on the ballot. Led by spokesperson Angela Goodhope, the group argued that police should emphasize solving crimes that threaten people's lives and property, not those involving the use of marijuana by adults.

"We are very pleased that Missoula voters approved a clearer, safer and smarter crime policy," Goodhope told the Missoulian newspaper. Voters rejected law enforcement claims approval would result in the loss of federal anti-drug dollars, she noted. "None of the negative outcomes our opponents predicted will come true," Goodhope said. "We know that for a fact."

Meanwhile, down in Eureka Springs, Arkansas, a counterculture haven near the University of Arkansas in Fayetteville, voters approved a similar lowest priority initiative with 64% of the vote. Sponsored by the Fayetteville/University of Arkansas NORML, the Eureka Springs vote marked the first rollback of marijuana prohibition in Arkansas history.

The strong showing in local races from California to Montana to Arkansas suggests that American voters are ready for more sensible marijuana policies, said National Organization for the Reform of Marijuana Laws executive director Allen St. Pierre. "What these results tell us is that citizens strongly support reforming America's marijuana laws, but that they prefer to do so incrementally," he said. "These successes on the municipal level, once again, affirm that a majority of US citizens don't want adults who use marijuana responsibly to face arrest or jail, and they do not want their tax dollars spent on policies that prioritize targeting and prosecuting marijuana offenders."

back to top

4. Election 2006: South Dakota Medical Marijuana Initiative Backers Vow to Try Again After Narrow Defeat

In an unexpectedly strong showing, an initiative that would have allowed seriously ill patients to use marijuana garnered nearly half the votes in the socially conservative Upper Midwest state of South Dakota. But it couldn't quite get over the top, losing by a margin of 48% to 52%. South Dakota thus earns the distinction of being the only state where voters have rejected medical marijuana at the ballot box.

Backers of the effort, while disappointed, are undeterred, and have already announced they will try again in 2008 or 2010. But the state will remain a tough nut to crack.

A stark illustration of the political atmosphere in the state when it comes to marijuana was the fact that South Dakotans for Medical Marijuana, the initiative organizers, could only come up with two patients willing to go public about their marijuana use. But perhaps that should be no surprise in a state where "ingestion" of marijuana is a criminal offense for which people are routinely sentenced to jail time and a public acknowledgment of one's marijuana use could became the basis for a search warrant demanding a urine sample, which would then be used to file ingestion charges.

The measure won majority support in Minnehaha County (52%), where nearly a quarter of the state's voters reside, the college town environs of Brookings County (52%) and Clay County (62%), Gateway Computers' home Union County (51%), the Black Hills' Lawrence County (52%), and a handful of other sparsely populated West River counties. But in most of the state's East River farm country counties, voters rejected the measure, sometimes narrowly, but occasionally by large margins, and even Pennington County, the home of Rapid City, the state's second largest city, voted narrowly against it (51%).

While initiative supporters ran a relatively low-profile campaign -- the state's ballot was full of hot button issues, including an abortion ban and a constitutional amendment banning gay marriage -- opponents led by Republican South Dakota Attorney General Larry Long rallied local law enforcement in opposition to the measure. Long also called in the big guns from Washington, DC, bringing White House Office on National Drug Control Policy Deputy Director Scott Burns to the state for a series of widely publicized press conferences denouncing the measure as a "con" and a "sham."

Drug czar John Walters himself weighed in on the state initiative with a press release the Friday before the election. "This proposal is a scam being pushed on the citizens of South Dakota by people who want to legalize drugs," Walters warned. "Marijuana is a much more harmful drug than many Americans realize. There are more teens now in treatment for marijuana dependence than for all other illegal drugs combined. It is unfortunate that people who have been trying to legalize this drug for many years are exploiting the suffering of genuinely sick people to further their political ends."

The intervention by South Dakota law enforcement and federal drug warriors was key in preventing the measure from passing, said initiative spokesperson and medical marijuana patient Valerie Hannah, a Gulf War veteran who uses the drug to ease the symptoms of neurological disorders she suffers as a result of her service. "Attorney General Long bringing in the drug czar's people really hurt us," she told Drug War Chronicle. "They said things like having a caregiver just meant somebody to get high with, which is just not the case."

For the national marijuana reform movement, the South Dakota loss -- its first at the polls -- was a tough blow, but movement leaders vowed to try again. "We knew from the early polling that this would be an uphill fight, particularly on a ballot filled with hot-button issues, and with the White House and the whole state establishment, including the attorney general, against us," said Rob Kampia, executive director of the Marijuana Policy Project (MPP), which provided support for the South Dakota effort. "The fact that we came this close against such powerful opposition is remarkable. Working with the local activists who started this effort, we plan to try again with another medical marijuana initiative in South Dakota in November 2008 or 2010," he announced.

"Every day, science continues to prove the medical value of marijuana," Kampia continued. "In just the last two months we've seen evidence of remarkable benefit against hepatitis C and even potential against Alzheimer's disease. It's tragic that brave patients like Val Hannah, who spoke out for the initiative, will continue to face arrest and jail for simply trying to preserve their health, but in the long run, science and common sense will triumph over ignorance and fear."

"South Dakota's result, while disheartening, does nothing to change the fact that according to national polls, nearly eight out of ten Americans support the physician-approved use of medicinal cannabis," said Paul Armentano, senior policy analyst for the National Organization for the Reform of Marijuana Laws (NORML).

Sick people like Hannah remain at risk of arrest and imprisonment for using marijuana to relieve their symptoms, but she refused to be saddened by the outcome. "I'm proud of what we did. We came very close, and this means people here are waking up. The South Dakotans who supported us made a wise choice. Next time, we will be working to get the education and knowledge out to the public more efficiently so they can make a more informed decision," she said. "We can pass this in South Dakota, perhaps through another ballot initiative in 2008. I remain hopeful," she added.

back to top

5. Election 2006: Drug Reformers in Third Party Statewide Bids Poll Single Digits, But One Wins a State House Seat in Washington

Third party candidacies for statewide office by prominent drug reformers garnered significant attention for drug reform issues during the campaign season, but failed to make a dent in the two-party monopoly on competitive races for elected offices. On the other hand, one prominent drug reformer running as a Democrat will take a seat in his state's House of Representatives.

In Washington state, Roger Goodman, the guiding force behind the emergence of the King County Bar Association's Drug Policy Project, has won the District 45 Position 1 state representative race with 55% of the vote. While Goodman is known as an articulate advocate of substantive drug policy reform, he did not emphasize those positions during the campaign and was attacked in opposition mailings (quoting extensively from Drug War Chronicle) for speaking out on those positions.

In Alabama, Loretta Nall, running a write-in campaign for governor on the Libertarian Party ticket, reports that her write-in votes will not even be counted until a week from Monday. She also reports receiving numerous e-mails from angry voters wondering why their votes aren't being counted.

In Connecticut, Cliff Thornton, the founder of the Hartford-based drug reform organization Efficacy, ran for governor on the Green Party ticket. Despite a vigorous campaign and a full-fledged drug policy blitz, he could do no better than 1%.

In Maryland, long-time drug reformer Kevin Zeese ran a three-party third-party campaign for US Senate under the banner of the Green, Populist, and Libertarian parties, with a broad range of issues ranging from the war in Iraq to corporate control of US politics to drug policy reform, Zeese hoped to break through the bipartisan stranglehold on electoral office. Democratic nominee Ben Cardin ended up defeating his Republican challenger Michael Steele by 55% to 44%. Zeese got the difference, 1% of the vote.

back to top

6. Election 2006: Arizona Voters Take a Step Backwards on Sentencing Reform

Arizona voters Tuesday approved Proposition 301, which rolls back a decade-old sentencing reform when it comes to methamphetamine offenders, by a margin of 58% to 42%. Under the state's reformed sentencing structure, people convicted for first- or second-offense drug possession cannot be sentenced to jail or prison. Tuesday's vote means that Arizona voters have now singled out meth users as eligible for jail or prison for first- or second-offense possession.

Votes for Prop. 301 came primarily from the metropolitan Phoenix area, which supported the rollback by 60%, compared to only 52% in Tucson, the state's other significant metropolitan area.

Under the sentencing reform, the 1996 Drug Medicalization, Prevention and Control Act, which was approved by two-thirds of the voters, while drug possession offenders could not be sentenced to jail or prison, they could be subjected to mandatory probation and drug treatment. Now, methamphetamine possession offenders will not be eligible for this program.

Although the proposition was opposed by prominent Arizona jurists and a coalition of community-based activists organized as Meth-Free Arizona -- No On Proposition 301, voters chose to go back to the bad old days when it comes to the demon drug du jour and its users.

back to top

7. Election 2006: Massachusetts Voters in Four More Districts Continue the Clamor for Marijuana Law Reform

Since 2000, marijuana reform activists associated with MassCann, the Bay State NORML affiliate, and the Drug Policy Forum of Massachusetts have sponsored advisory marijuana reform questions in state representative and senate districts and have won every one. The trend continued this year, with reform questions in four more districts being approved by voters.

According to DPFMA board member John Leonard, a question asking whether representatives in the 1st and 12th Plymouth Representative Districts should be instructed to support marijuana decriminalization passed in both, with margins of 61% and 60% respectively. In the 3rd Middlesex Senate District and the 7th Norfolk Representative District, voters were asked to vote on questions asking whether to instruct their representatives to support medical marijuana legislation. Those questions won with 67% in Middlesex and 64% in Norfolk.

According to MassCann, more than 420,000 Massachusetts residents in 110 communities had voted to urge their legislators to embrace either decriminalization or medical marijuana before Election Day. We can now add another 63,000 pro-reform votes and four more communities to the tally.

In a debate last month, newly elected Democratic Gov. Deval Patrick said he's "very comfortable" with the idea of marijuana legalization but would veto a decriminalization bill if it came to his desk because "I just don't think it ought to be our priority." Hopefully the legislature will give him the opportunity to change his mind.

back to top

8. Law Enforcement: This Week's Corrupt Cops Stories

A quiet week on the drug war corruption front. A Kentucky deputy gets caught stealing from the office stash, so does a Cleveland court employee, and a Cleveland cop's husband's activities is raising eyebrows. Let's get to it:

In Greensburg, Pennsyvlania, a Westmoreland County court employee was arrested for stealing cocaine to be used as evidence in an upcoming trial. Therece Lynn McCloskey allegedly made off with five grams of coke in October, and is now charged with theft by unlawful taking, tampering with physical evidence, and violating state drug laws. She is now also a former court employee. No word on whether some coke offender is now getting a free walk.

In Richmond, Kentucky, a former Madison County sheriff's deputy is charged with stealing drugs from the department. Deputy James Fee, 37, allegedly took three hydrocodone tablets from an evidence locker and told investigators he was taking them for his wife, who had had an operation and wanted pain pills. He is charged with theft of a controlled substance, and faces one to five years in prison if convicted. Deputy Fee was first suspended, then became former Deputy Fee a few weeks ago when he resigned under pressure from his boss.

In East Cleveland, Ohio, an East Cleveland police officer is being investigated by the feds to see whether she is involved in a drug conspiracy with her cocaine-dealing husband. Officer Tiffiney Cleveland has been reassigned from the department's detective bureau to a desk job in the wake of the July arrest of her husband, who was carrying seven ounces of crack cocaine, an East Cleveland Police detective badge, and his wife's business card when he was popped. The husband had been the object of a DEA investigation and had spent eight years in prison on drug charges since 1993. Cleveland maintains she is shocked by her husband's arrest and is not involved in his drug dealing.

back to top

9. Weekly: This Week in History

November 15, 1875: San Francisco passes the first US anti-drug law, an ordinance outlawing Chinese opium dens.

November 12, 1970: Keith Stroup forms the National Association for the Reform of Marijuana Laws (NORML).

November 12, 1980: New York City Mayor Ed Koch admits to having tried marijuana.

November 15, 1984: Spanish police arrest Jorge Ochoa on a US warrant and both the U.S. and Colombia apply for his extradition. Soon after, the Medellin cartel publicly threatens to murder five Americans for every Colombian extradition. The Spanish courts ultimately rule in favor of Colombia's request and Ochoa is deported. He serves a month in jail on charges of bull-smuggling before he is paroled.

November 11, 1988: The Anti-Drug Abuse Act establishes the creation of a drug-free America as a policy goal. A key provision of the act is the creation of the Office of National Drug Control Policy (ONDCP) to set priorities, implement a national strategy, and certify federal drug-control budgets.

November 14, 1999: In an editorial, the Lancet, one of the world's leading medical journals, says, "On the medical evidence available, moderate indulgence in cannabis has little ill effect on health."

November 13, 2000: The National Association of Criminal Defense Lawyers (NACDL) releases the final version of its "NACDL Board Resolution to End the 'War on Drugs.'”

November 10, 2001: The Austin American-Statesman reports that police publicly apologized to Maria Flores for a botched drug raid on May 16.

November 15, 2001: Asa Hutchinson, administrator for the Drug Enforcement Administration, and Republican Gov. Gary Johnson of New Mexico debate the war on drugs in front of about 150 people in Yale's Law School auditorium.

November 15, 2002: NFL star and NORML advisory board member Mark Stepnoski is interviewed on the O'Reilly Factor.

back to top

10. Medical Marijuana: First New Federal Prosecution in Three Years Underway in California

The US Justice Department had not prosecuted a California medical marijuana patient since 2003, but that changed Wednesday as the federal trial of Merced County medical marijuana patient and provider Dustin Costa got under way in Fresno. Costa, a leading medical marijuana activist, was originally arrested on state charges, but Merced County prosecutors handed his case over to the feds when it became apparent that California's Compassionate Use Act would make it impossible to convict him under California law.

The last federal medical marijuana patient and provider trial in California was the Ed Rosenthal debacle. In that case, Rosenthal was convicted on federal marijuana manufacture charges after the jury was not allowed to hear testimony relating to medical marijuana. Rosenthal was convicted, but when jurors learned the rest of the story, many of them publicly denounced the trial and the verdict, and the federal judge trying the case sentenced him to only one day in jail.

In Costa's case, the 60-year-old retired Marine who headed the Merced Patients Group, a nonprofit cultivation collective, was originally arrested by Merced County sheriff's deputies when they raided a greenhouse he was using to cultivate marijuana for patients in March 2004. But local prosecutors turned the case over to the feds, and Costa was re-arrested on federal charges in August 2005. Since then, he has been imprisoned at the Fresno County Jail. If convicted on the charges, he faces a mandatory minimum 20-year federal prison sentence.

Costa now faces federal charges of cultivation, possession with intent to distribute, and possession of a firearm. As in the Rosenthal case, Costa will not be allowed to even mention medical marijuana or its legality under state law during the trial.

"Dustin Costa is a victim of the federal government's refusal to respect medical science," said Steph Sherer, executive director of Americans for Safe Access, a national medical marijuana advocacy group. "He and all the others being denied a medical defense at trial are the new targets in our government's war on patients."

Costa may be the first medical marijuana patient to be tried by the feds since the Rosenthal trial, but he probably will not be the last. According to figures compiled by Americans for Safe Access, at least 91 other California patients and providers have been arrested on federal marijuana charges and are awaiting trial.

back to top

11. Sentencing: US Supreme Court to Try to Clean Up Post-Booker Ruling Issues

Early last year, the Supreme Court sent shockwaves through the federal criminal justice system when, in its decision in the Booker and Fan Fan cases, it threw out mandatory federal sentencing guidelines, instead making them merely advisory. Since then, federal district and appeals courts have struggled to interpret just what that means. Last Friday, the high court agreed to hear two cases, Claiborne v. US and Rita v. US, from a pile of pending appeals in an effort to provide greater clarity for jurists, prosecutors, and defendants.

Mario Claiborne is a 21-year-old first offender who was convicted of possessing a small amount of crack cocaine. Although the now advisory sentencing guidelines called for a sentence of 37 to 46 months, a federal district court judge in St. Louis was persuaded to sentence him to only 15 months. Federal prosecutors appealed, and the 8th US Circuit Court of Appeals in St. Louis overturned the lenient sentence. Noting that it was an "extraordinary" departure from the guidelines, the appeals court held that "an extraordinary reduction must be supported by extraordinary circumstances."

As the Supreme Court noted when it accepted the case, it must answer two questions: "1) Was the district court's choice of below-Guidelines sentence reasonable? 2) In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?"

The second case, that of Victor Rita, raises sentencing issues that are the flip-side of the Claiborne case. Rita, a retired Marine and former federal worker, was convicted of making false statements in a federal investigation of the sale of machine gun kits. His sentence, 33 months, was within the range recommended by the sentencing guidelines, but he appealed, saying it was unreasonably long given his poor health and unblemished record. But the US 4th Circuit Court of Appeals in Richmond, Virginia, denied his appeal, holding that sentences within the guidelines must be presumed to be reasonable.

In the Rita case, the Supreme Court noted it will consider three questions: "1) Was the district court's choice of within-Guidelines sentence reasonable? 2) In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences? 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. §3553(a) factors and any other factors that might justify a lesser sentence?"

The Booker and Fan Fan cases were decided by a divided Supreme Court that did not include Chief Justice John Roberts and Justice Samuel Alito, and it is unclear how they will attempt to interpret it. But the two cases taken together have the potential to further open the door to more just and reasonable sentencing in the federal courts.

back to top

12. Sentencing: Public Hearings on Illinois SMART Act Pack 'Em In

Supporters of an Illinois bill that would allow judges to divert low-level drug offenders into county "drug schools" instead of jail or prison are holding a series of public hearings across the state to drum up renewed support for the stalled measure. If the turnout in Chicago is any indication, public interest is high.

Illinois House Bill 4885, the Substance Abuse Management Addressing Recidivism Through Treatment (SMART) Act", would appropriate $3.5 million to allow state's attorneys' offices to open drug schools where low-level drug offenders could have their cases dismissed and arrest records expunged after completing an eight-hour course and -- depending on a mental health and addiction assessment -- possibly undergoing drug treatment.

The bill would allow counties to opt to follow the example set in Cook County (Chicago), where District Attorney Dick Devine pioneered the drug school idea. In the Cook County Drug School program, first-time drug possession offenders are offered mental health screenings, addiction assessment, and an eight-hour drug education program, and some -- depending on their assessment -- may be ordered into drug treatment. The county spends roughly $350 per person per year on the program, compared to the more than $21,000 it costs to incarcerate someone for a year.

After being introduced in January, the bill stalled in the legislature this fall, but supporters were able to pass a resolution calling on legislators to participate in a series of public hearings on alternatives to imprisonment and issue a report on those hearings. Hearings have already been held in Champaign, East St. Louis, and Chicago, with more set later this month for Decatur, Rockford, Rock Island, and Waukegan.

At the October 25 meeting in the Ashburn Lutheran Church in Chicago, the Southwest News Herald reported that "hundreds of people crowded into the church for the hearing, with some coming on buses from as far away as Rockford." Convened by the Developing Justice Coalition, a statewide alliance of community-based social service and religious organizations working on issues such as sentencing reform, prisoner re-entry, and public, the hearing featured several dozen speakers, including many ex-prisoners who said their drug arrest records had dogged them ever since. The coalition was organized by the Safer Foundation, which works to help ex-prisoners re-enter society.

Turnout for the hearing was "phenomenal," said Ashburn Lutheran pastor the Rev. Pam Challis. "It has been a long time since we had to put chairs in the aisles," said Challis, looking around at the standing-room only crowd after the meeting. "It is indicative of the fact that this is needed."

"I am a product of incarceration. I was in jail twice, and while I was incarcerated I learned absolutely nothing," said drug educator Armando Fox. After the Brighton Park Neighborhood Council gave him "a second chance" he was able to turn his life around. "Sometimes the choices we make aren't always the best, but we really shouldn't just throw people in prison. They don't learn anything."

But with its current drug laws, the state of Illinois throws quite a few people in prison. It spends nearly $250 million a year on its prison budget.

Attending the hearing were state Representatives Mary Flowers (D-31st) and Esther Golar (D-6th). Flowers, a 23-year veteran of the legislature, accused the body of passing "bad legislation" with its zero tolerance drug laws that set strict sentencing guidelines for drug offenses. "Some of those crimes should have been probational. The only thing we did was dig ourselves a bigger hole at your expense," she said.

The legislature is out of session now, but the SMART Act will probably come to a vote in January. Advocates are doing all they can do to show lawmakers there is broad public support, and packing hundreds of people into a hearing on a relatively obscure piece of legislation is a good start.

back to top
Permission to Reprint: This issue of Drug War Chronicle is licensed under a modified Creative Commons Attribution license. Articles of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School