The Speakeasy Blog
[I]n 2010, the crimes of possession and consumption accounted for 71 percent of all drug-related investigations initiated by the Public Prosecutor’s Office (Ministerio Público). Of all the rulings (convictions or acquittals) issued in 2010 for drug-related crimes, 18,343 -- 80.7 percent -- were for a single crime, meaning that no other crime was committed apart from the drug offense for which the person was sentenced or absolved.
The report also found disproportionate punishment for persons convicted of nonviolent distribution offenses:
[T]he maximum prison sentence for the crimes of production, commerce, supply, and trafficking of drugs -- all non-violent crimes -- is more than the maximum sentence established for violent crimes, including intentional homicide, rape -- both of minors and adults -- and robbery. The maximum prison sentence established for rape among adults is 11 years shorter than the maximum sentence established for drug offenses, and the maximum sentence established for robbery is 15 years, 10 years less than for drug crimes.
We see this kind of reversal of justice in the United States, of course, through the much-criticized sentencing guidelines and mandatory minimums. Mexico's public prosecutor's office does not seem more able or inclined to target its resources toward violent crime or the highest levels of the drug trade then the US Dept. of Justice does.
Of course in Mexico they have a full-blown crisis of drug trade violence -- prompting many Mexicans to call for legalization or at least a serious examination of it. So far the incoming president has vowed to continue to pursue the same strategies that led to the crisis, and it sounds like he has the full support of the prosecutor's office. But eventually things have to give.
A Washington Post story by Sari Horwitz reports that federal officials don't know what they are going to do about marijuana legalization in Colorado and Washington:
"I really don't know what we're going to do," said one high-ranking law enforcement official involved in the decision who was not authorized to speak publicly.
"It was a battleground state," said [another] administration official, who spoke on the condition of anonymity because he was not authorized to talk publicly
Horwitz's otherwise good article repeated the same fallacy we have seen crop up in other news reports of late, the idea that states can't do this because of federal law, a fallacy that I predicted here and have already noted here. The article states:
The most likely outcome will be that the Justice Department will prevent the laws from going into effect by announcing that federal law preempts the state initiatives, which would make marijuana legal for recreational use, law enforcement sources said.
Perhaps it's just a typo, and I don't know what the sources told Mr. Horwitz, but no matter what the legal and practical outcome of all of this, it is not the case that DOJ can preempt a state's law by making an announcement about. They can ask a court to preempt the laws, and then the court will decide. Significant legal precedent indicates that Congress cannot force states to criminalize conduct they don't want to criminalize, anymore more than states can force Congress to lift such criminalization -- as I've pointed out, in 16 years of state medical marijuana laws, no federal prosecutor has ever tried to do so. Maybe they'll try now, and if so we'll see what the Supreme Court's inconsistent conservatives say and what the liberals say. But they've had plenty of incentive to go that route already, and for some reason haven't.
Not that the feds can't make a fight of things. As the medical marijuana battles show, they have ways to interfere. They can send vaguely threatening letters, implying without directly stating that state employees would be violating federal law by implementing regulations for marijuana, as US Attorneys in most medical marijuana jurisdictions have done. That could scare the governors, who could seek delays implementing the initiatives, which in turn would have to be addressed in court. The IRS could move against the new businesses, auditing and penalizing them under a tax rule that disallows most expense deductions for illegal enterprises. (The law bizarrely allows dispensaries to deduct the cost of marijuana itself, but not other things like payroll or rent.) They can make it hard for marijuana businesses to maintain relationships with banks. And of course they can raid any marijuana store that they choose to.
But none of that is the same as preempting the laws themselves. And none of it would stop people from possession marijuana whenever they want, legally under the states' laws, or in Colorado from growing it. This needs to be repeated as often as possible: Colorado and Washington's marijuana laws are different from federal marijuana law, but that doesn't mean they conflict with it; and not every conflict is legally impermissible. If federal law just preempted state law in that way, 18 states would not have medical marijuana today.
Congressional staffers told the Independent that Colorado Reps Diana DeGette (CD1), Ed Perlmutter (CD7) and Jared Polis (CD2) are working independently and together on bills that would exempt states where pot has been legalized from the Controlled Substances Act.
DeGette Chief of Staff Lisa Cohen told the Independent that proposals the representatives are working on would alter section 903 of the act to allow states to establish their own marijuana laws free from federal preemption.
Winning has consequences. Of the three of them, it was only Polis from Colorado who had previously signed on to H.R. 2306, the Ending Federal Marijuana Prohibition Act. DeGette and Perlmutter did cosponsor legislation to protect medical marijuana dispensaries' ability to do banking. But now all three of them seem not only willing to take on prohibition, but eager.
H.R. 2306 has garnered 21 cosponsors, including 19 Democrats and two Republicans. Some of those are leaving Congress at the end of their current terms -- Ron Paul (R-TX) is retiring, as is the legislation's sponsor, Barney Frank (D-MA). Pete Stark (D-CA) and Dennis Kucinich (D-OH) lost their seats after redistricting forced them to run against other Democrats.
Paul and Frank in particular were particularly active champions of drug reform, but Stark and Kucinich were among our champions too. Polis is certainly eager to take the lead on these issues; another H.R. 2306, Earl Blumenauer (D-OR) posted on his Facebook page last Thursday, "We must be rational about its medical use, then move to legalize it." Hopefully we'll find enough support in the new Congress to move reform forward
A final note on H.R. 2306: One of the things we heard from activists was that they were too discouraged to work on passing the bill, because it wasn't going anywhere -- hardline Judiciary chair Lamar Smith (R-TX) wasn't going to allow hearings, and passing it after hearings didn't seem likely. I hope that people will reconsider that. Think about how long people worked before it became possible to pass these initiatives on the ballot. It just takes awhile to move legislation in Congress too, but that doesn't mean that progress isn't being made.
In fact it's the opposite -- when members of Congress see their constituents working for something, lobby them, building coalitions and so forth, and when they see other members of Congress supporting them, over time more of them become willing to sign on to bills or to expend political capital moving them forward. Eventually a bill moves, or more likely, its language or something like it gets included in a larger piece of legislation, when it's introduced or through an amendment. In the meanwhile, we have to do as much as we can to build that support and awareness on the part of members of Congress, so they'll think of us and our issues when there's a new chairman or some other window of opportunity is opened.
One small way to do that is to use our web site to email your representatives in Congress asking them to support H.R. 2306. Some of them will not be returning to Congress in January, when a new version of the bill will have to be offered, but many of them will be. Of course sending an email is just the bare beginning -- we will be organizing a second teleconference in the near future to talk about more.
- You can legally carry up to an ounce of marijuana, as of December 6th, but not in public view.
- Rules for marijuana stores will be developed over the next year, and won't be done until December 1st, which means no legal sales until then.
- Growing is still illegal.
- Marijuana smoking in public is ticketable in some places -- treated like cigarette smoking.
- Driving under the influence of marijuana is illegal.
- Police like the clarity of legalization more than the grey area of Seattle's previous "lowest priority" policy for marijuana enforcement.
- Police are reviewing their hiring policies with regard to prospective officers' past marijuana use.
- Police will not assist the federal government in any investigations into marijuana offenses that are legal under state law.
- Police will not return marijuana they seized from you prior to the passage of the initiative.
The article was written with humor, and includes embedded video from The Lord of The Rings movie of Gandalf and Bilbo blowing smoke rings.
I almost forgot the main highlight from the bulletin: "You can certainly use marijuana in the privacy of your own home."
With US public support for marijuana legalization now at the 50% mark, and state legalization efforts now starting to come to fruition, people are naturally talking about it. Academics at RAND and elsewhere recently came out with a book, "Marijuana Legalization: What Everyone Needs to Know," discussing the wide range of issues impacted by legalization and that will come into play affecting how it will play out. (We are sending out copies of this book, complimentary with donations, by the way.)
"It seems to me that we should move to authorize exports," [governor of the the violence-plagued border state of Chihuahaha Cesar] Duarte [an ally of Pena Nieto] told Reuters in an interview. "We would therefore propose organizing production for export, and with it no longer being illegal, we would have control over a business which today is run by criminals, and which finances criminals."
And as The Economist noted last week (hat tip The Dish), the Mexico City-based think tank Mexican Institute for Competitiveness (IMCO) believes that legalization may cost the cartels big time. IMCO estimates that Mexican drug trafficking organizations earn $2 billion per year from marijuana, with $1.4 billion of it going to the US. Significantly, IMCO doesn't just think that legalization by the US and Mexico would cut off the cartels from those funds. They have speculated that marijuana grown in Washington and Colorado (particularly Colorado) might be diverted and sold in other states, with a dramatically lowered cost made possible by legalization causing prices to drop elsewhere as well. Lower prices in turn might lead US marijuana users who now buy Mexican weed to switch to marijuana grown in the US instead, even if it's still illegal in their own states.
I am skeptical that we will see that kind of price drop just yet, in the absence of federal legalization, even in Washington or Colorado. It hasn't happened yet from medical marijuana, even though marijuana grown for the medical market is just as divertable as marijuana grown for the recreational market may be -- the dispensaries themselves haven't undercut street prices, partly to try to avoid diversion. Sellers in other states, and the people who traffic it to them, will continue incur the kinds of legal and business risks that they have now. And it is still impossible to set up the large scale farming operations for marijuana that reduce production costs today for licit agriculture. But we don't really know yet.
Now one study is just one study, at the end of the day -- there are other estimates for the scale and value of the marijuana markets and for how much Mexican marijuana makes up of our market. But the cartels clearly have a lot of money to lose here, if not now then when federal prohibition gets repealed -- IMCO's point is valid, whether they are the ones to have best nailed the numbers or not.
It's also the case that some participants in the drug debate, such as Kevin Sabet, have argued that legalization won't reduce cartel violence, because "the cartels will just move into other kinds of crime." But those arguments miss some basic logical points. Cartels will -- and are -- diversifying their operations to profit from other kinds of illegal businesses besides drugs. But it's their drug profits -- the most plentiful and with the highest profit margin -- that enable them to invest in those businesses. The more big drug money we continue to needlessly send them, the more they will invest in other businesses, some of which are more inherently violative of human rights than drugs are.
Some researchers believe that Mexican cartels will step up their competition in other areas, if they lose access to drug trade profits, which could increase violence at certain levels of the organizations. But such effects are likely to be temporary. Nigel Inkster, former #2 person in Britain's intelligence service and coauthor of "Drugs, Insecurity, and Failed States: The Problems of Prohibition," at a book launch forum said he thinks that at a minimum the upper production levels of the drug trade, as well as the lower distribution levels, would see violence reductions. (We are also offering Inkster's book to donors, by the way.)
And it isn't just violence that's the problem. As a report last year by the Center for International Policy's Global Financial Integrity program noted, "[C]riminal networks... function most easily where there is a certain level of underdevelopment and state weakness... [I]t is in their best interest to actively prevent their profits from flowing into legitimate developing economies. In this way, transnational crime and underdevelopment have a mutually perpetuating relationship." The money flow caused by prohibition, accompanied by violence or not, is itself an important enough reason to urgently want to end prohibition as we do, and to reduce the reach of prohibition as much as is politically possible in the meanwhile, as Colorado and Washington have done.
And so Mexican and other thinkers are speaking up, as are victims of the current policy. For all their sakes, President Pena Nieto should not dismiss legalization so quickly. And Sabet and others should not be so quick to try to argue away the impact that the billions of dollars drug prohibition sends each year to the illicit economy has in fueling criminality and hindering societies from developing.
"Although the effective date of I-502 is not until December 6, there is no point in continuing to seek criminal penalties for conduct that will be legal next month," [King County Prosecutor Dan] Satterberg said in a statement.
Satterberg dismissed 175 possession cases involving persons age 21 or over possession one ounce or less. In neighboring Pierce County, Mark Lindquist said he was dismissing about four dozen marijuana cases, but was continuing to prosecute them if they were secondary to more serious offenses such as DUI.
"The people have spoken through this initiative," said Lindquist. "And as a practical matter, I don't think you could sell a simple marijuana case to a jury after this initiative passed."
As I noted Wednesday, Tuesday really happened.
These 220 people are lucky. Drug convictions including marijuana can trigger a range of collateral consequences, including loss of college aid, difficulty qualifying for public housing and other penalties, in Washington including the ability to trigger a firearm. According to marijuana-arrests.com:
Employers, landlords, credit agencies, licensing boards for nurses and beauticians, schools, and banks now routinely search these databases for background checks on applicants. A simple arrest for marijuana possession can show up on criminal databases as "a drug arrest" without specifying the substance, the charge, or even if the person was convicted. Employers and landlords, faced with an abundance of applicants, often eliminate those with criminal arrest records, especially for drugs. Nurses, security guards, and others licensed by the state can lose their licenses and their jobs from just one misdemeanor marijuana arrest.
Jacob Sullum has a detailed discussion in Reason's "Hit & Run" blog of "What Legal Pot in Washington Will Look Like." Jacob compares Washington's I-502 with Colorado's Amendment 64 and notes that while both initiatives legalize marijuana for adults 21 or over, and authorize state-licensed marijuana stories, in other (but not all) ways Washington's law is more restrictive than Colorado's.
Conversely, Washington's law does not allow local jurisdictions to ban marijuana stories within their borders, an option that cities in Colorado will have. If you've followed the Medical Marijuana Update series that Phil has been writing in our newsletter, you'll probably agree that that is a big benefit.
Unlike Colorado's law, which can only be changed by constitutional amendment, I-502 can be amended by the legislature at any time -- with a 2/3 vote for the next two years, or by majority vote after that. Our friend Roger Goodman, election this week for a fourth term in Washington's House of Representatives, told the Seattle Weekly last month that he and Sen. Jeanne Kohl-Welles hope to address the DUI issue, and improve the state's medical marijuana system, perhaps through requiring that impairment be determined by independent experts rather than the per se DUI standard or other means.
Hopefully other changes or expansions to the law will become possible over time too, as voters and legislatures become accustomed to marijuana being legal and are satisfied that things are working. Unlike with medical marijuana, non-patients (over 21) obtaining marijuana will not be an issue anymore in Washington or Colorado.
John Stewart just took the media to task for all the marijuana jokes. Marijuana prohibition is a serious matter. Of course the show was funny nonetheless. :)
Update: Video is available now, in two parts:
|The Daily Show with Jon Stewart||Mon - Thurs 11p / 10c|
|Post-Democalyptic World - Potted Up|
Though the law goes into effect on December 6, it is December of next year when the licensing system for sellers is scheduled for. (If you think that's a long time, don't ask me how long we've waited for Washington, DC to get its medical marijuana law moving.) An evaluation is to be published in September 2015. (Which is as long as DC is taking to just get started.)
502 does not provide for home growing. But patients maintain their home growing rights under the state's medical marijuana law.
Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.
I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:
"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.
The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:
In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.
As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.
Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.
In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.
Prosecutors won't charge marijuana possession cases anymore, starting December 6th:
Ian Goodhew, deputy chief of staff for the King County Prosecuting Attorney, says his office is trying to figure out how if they will charge the marijuana possession cases are pending. "We haven't figured out how we will handle all of those cases," he says. But assuming the possession portion of the law is not federally challenged -- and no credible lawyer thinks the possession portion can be -- Goodhew says that in future cases, "we cannot charge someone under state statute."
Sergeant Sean Whitcomb, a spokesman for the Seattle Police Department, says this: "For us, the law has changed, and people can expect no enforcement for possession."
Or to put it another way: Yesterday Really Happened.
"The department's enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiatives and have no additional comment at this time."
I haven't seen the statement on the DOJ web site yet. Perhaps it's only been sent to media outlets. Colorado's governor, meanwhile, hopes to talk to US Attorney General Eric Holder as soon as this week, according to the Denver Post.
Gov. Hickenlooper and CO Atty. General John Suthers both have said they intend to respect the will of the voters. But if the feds tell them that Colorado can't do this, that would be a convenient answer for these officials who probably don't want the trouble, especially when a little time has gone by and the spotlight on them over the amendment is a little less intense. So far DOJ's statements as well as Hickenlooper's sound accurate to me, to the extent that I've studied them. But it's important to be prepared to communicate a factual understanding of how the law works, in the event that federal or even state officials attempt to obfuscate.
As a CNN legal analyst this morning commented (email or post if you know his name), federal law toward marijuana, and state law in Colorado and Washington (as well as all medical marijuana states) are different. But that doesn't necessarily mean that they "conflict." Specifically, it doesn't mean that they have a "positive conflict." If the state itself were to sell or traffic in marijuana, that would be a "positive conflict" with federal law. But Colorado and Washington have no obligation to enforce federal drug laws. The legal question as far as federal preemption is whether they can issue licenses to marijuana sellers that protect the sellers under state law.
My understanding of the law as well as that of colleagues I've spoken with is that this is not a positive conflict, as it does nothing to prevent the feds from making a drug bust if they choose to do so. It may well get tested in court. But it's worth noting that in 16 years of state medical marijuana laws, no federal prosecutor in the country has ever tried to preempt state medical marijuana laws -- they've busted dispensaries, but they have not tested the laws themselves in court. The same law is at stake with these legalization initiatives, with the difference being the scope of what they legalize and regulate.
My guess is that DOJ will face greater pressure to try to lawfully preempt one of these laws (as opposed to squashing them by force) than they have felt with state medical marijuana laws, even if they are doubtful of their chances for success. But time will tell. For us, the thing to remember -- and to point out whenever it comes up -- is that federal law and state law are "different" -- they conflict politically, but that doesn't mean they conflict legally. The feds don't have a lot of incentive to acknowledge this, and as the statement shows, they can can be factual but still leave out that important point.
When I first noted last night that Colorado's Amendment 64, marijuana legalization, was ahead, partial results had it leading with a little over 52% of the vote, with exit polling reportedly at 57%. When the Denver Post called the measure as passing, it was over 53%. The official Colorado election results now have Amendment 64 at 54.82% voting yes -- almost as high as Washington I-502's 55.44%.
When I first noted that Montana's medical marijuana initiative wasn't doing well, I linked to the state election results page but didn't write out the percentage split, 58-42. Maybe I didn't want to. It was still at that level later in the night. But as of right now (with still a bit of counting to go), I-124 was up to 43.45. (As we noted before, our side was hoping for a "no" vote on the initiative -- the "no" referring to a bill passed by the legislature that weakened the initiative passed by voters.)
Every little bit counts, and some of thes increases mean more than a little bit. Of the three defeats (Oregon, Arkansas and Montana), Montana's worries me the most, as it is a tough situation right now for the state's medical marijuana community, with both the state and the feds. But maybe our national momentum for marijuana law reform will make more things possible soon, maybe even in Montana. Phil wrote a feature story on the legalization initiatives last night -- live from Amendment 64 campaign headquarters -- and will be coming out with another on the rest of the election story later today.
There were public policy questions on the ballots of 45 cities in Massachusetts today, asking voters their opinion on marijuana legalization. Boston.com has results for most of them -- all winning.
Winning means that the people have spoken that they'd like (but don't require) their state representatives to vote in favor of legislation to legalize marijuana.
So another congratulations tonight for Massachusetts.
California's three strikes reform, Prop 36, is up to 68%, with 14% of precincts partially reporting.
Montana still losing 58-42 (or passing -- which for us means losing).
Arkansas is still losing 48-52, with 65% reporting.
Note that it's possible that some news outlets may have higher percentages reporting, if they got results through routes other than the state web sites.
(Hat tip Eric Sterling for the link.)
First marijuana legalization vote!!!!!!!!!!!!!!!!!!!!!!!
There are postings on Facebook saying that Colorado's Amendment 64 for marijuana regulation has been called as passing. I don't think that's possible, with the amount of reporting so far. What I think people are thinking of is that the Denver Post has projected it passing. Things are looking very good, but I don't think it's been called yet.
Massachusetts has passed medical marijuana!
First results for Montana are not good, but very little of the state has reported yet. (Note that the result we want is "no," to undo the legislature's restrictions on the state medical marijuana program, whereas it's running 58% toward the "yes" side.)
Arkansas medical marijuana is also trailing 48-52, 27% reporting according to Huffington Post.
Colorado is up to 52.7% for legalization!
California's Prop 36, to reform the state's three strikes law, is leading with 61.5%, but also very little of the state counted.
Anxiously awaiting Washington and Oregon news.
As of 8:12pm mountain time, the Colorado secretary of state site shows Amendment 64 leading 671,027 to 610,202, over 52% in favor. The site says that Colorado has 3,647.082 registered voters, with 31.41% of them having had votes counted so far. Assuming Colorado doesn't get 100% voter turnout, does this mean half the vote counted so far? Very promising.
Update (8:24pm mountain time): MPP says exit polling is at 57%.