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Interview: Marc Mauer on Criminal Justice Reform in the Trump Years [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

For nearly half a century, America has been in the grip of incarceration fever. Beginning with the "law and order" campaigns of Richard Nixon, reprised by Ronald Reagan's "war on drugs," and seemingly carried on by inertia through the Bush-Clinton-Bush era, the fever only began to break in the last few years.

The Sentencing Project's Marc Mauer (Human Rights Project/Bard College)
For the first time in decades, we have not seen the ever-increasing uptick in the number of people behind bars in the United States. After the incredible expansion of imprisonment that made the land of the free the unchallenged leader in mass incarceration, the US prison population may have finally peaked. Small declines have occurred in state prison populations, and the federal prison population, fueled largely by drug war excess, is stabilizing.

Much of the progress has come under the Obama administration, but now, there's a new sheriff in town, and he doesn't seem remotely as reform-friendly as Obama. What's going to happen with sentencing reform and criminal justice under Trump and the Republicans?

To try to find some answers, we turned to someone who's been fighting for reform for decades now, Marc Mauer, executive director of the Sentencing Project, a Washington, DC-based nonprofit committed to working for a fair and effective criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration.

Drug War Chronicle: When it comes to sentencing reform, we're likely in for a rough ride these next few years with tough-talking Trump in the White House and Republicans in control of both houses of Congress. But before we look forward to what may come, it's worth looking back at where we've been and what's been accomplished in the last eight years. How did sentencing reform do under Obama?

Marc Mauer: I think we saw very substantial reform, both in terms of actual policy changes that have made a real difference, but also in terms of a change in the political environment, which is really critical for long-term reform.

We saw substantial changes coming out of Congress, the White House, and the US Sentencing Commission. In Congress, probably the most substantial piece of legislation was the Fairness in Sentencing Act of 2010, which reduced -- but didn't eliminate -- the crack vs. powder cocaine sentencing disparity.

But changes put in place by the Sentencing Commission have had the largest impact. It amended the sentencing guidelines to reduce punishments for drug offenders, which affected an estimated 46,000 people currently serving federal drug sentences. Of those, about 43,000 have seen their cases reviewed, with 29,000 getting sentence reductions and 14,000 getting denied. These are going to be rolling reductions -- for people who might have had three years left, the guidelines change might knock that down to six months; for people doing 30 years, it might knock it down to 27. They still have a long way to go, but not as far as before. This is having and will have the most significant effect.

The Obama White House was very active on sentencing reform, too. Obama commuted more than 1,700 federal prison sentences, a third of those life sentences, typically for third-time drug offenses, and that has a very significant effect. They've also done a number of initiatives around re-entry, collateral consequences, "ban the box" policies, and the like.

The Equal Employment Opportunity Commission recently issued guidance to employers about when it is and isn't appropriate to use prior criminal records when considering employment applications. The administration set up an interagency reentry council that brought together a number of cabinet agencies to see what they could do to have an impact on easing reentry.

There's been a congressional ban on inmates using Pell grant education funds, which only Congress can overturn, but the Obama administration created a pilot Pell grant program and was able to restore some funding on a research basis. The estimate is that about 12,000 incarcerated students will be able to take advantage of that.

President Obama meets with federal prisoners, El Reno, Oklahoma, 2015 (whitehouse.gov)
DWC: Now, it's a new era, and Jeff Sessions appears set to become our next attorney general. He was something of a player on criminal justice issues in the Senate; what's your take on what to expect from him on sentencing and criminal justice reform?

MM: I'm not overly optimistic. He's been supportive of some criminal justice reform in the past, most notably the Fair Sentencing Act and the Prison Rape Elimination Act -- that involved a left-right coalition that felt prison rape was a bad thing, and provided money for research, training, and oversight as ways to reduce prison rape and sexual assault.

But in other areas, he's pretty much a hardliner. He was one of a handful of Republicans who vocally opposed sentencing reform legislation that was moving through Congress last year. He's one of the reasons the bill never got a Senate floor vote, even though it had passed out of the Judiciary Committee.

He's expressed skepticism about the work of the Civil Rights Division at Justice, particularly toward the consent decrees that it has imposed on cities and police departments making them agree to try to deal with tensions police law enforcement and African-American communities. That wasn't a pro- or anti-law enforcement approach; we have a real problem, and we need to get the parties working together. Getting law enforcement and local officials to agree that we have a problem is a very important tool to address a very serious problem.

To just say as Sessions does that he supports law enforcement doesn't get us very far. What do we do when law enforcement isn't doing the right thing, when it's violating people's rights? This will be very problematic.

And he continues to express support for harsh sentencing. It will be very interesting to see what perspective he has on what federal prosecutors should do. Eric Holder directed US Attorneys to change their charging practices in low-level drug cases so that people with minimal criminal histories wouldn't be hit with mandatory minimum sentences when possible. We haven't heard from Sessions whether he will keep that in place, or overturn it, or come up with something else. That will be critical. Attorneys general have swung back and forth on this.

DWC: That sentencing reform bill died last year, in part because of election year politics. Now the campaigns are over, but the Republicans control Congress. What are the prospects for anything good happening there now?

MM: There is some hope for sentencing reform. Among the Republican leadership, both Sen. Chuck Grassley, head of the Senate Judiciary Committee, and House Speaker Paul Ryan have publicly expressed a desire to see criminal justice reform go through this Congress. It's not entirely clear what that would look like -- would it look like last year's bill or only contain some aspects? -- but it is encouraging that they're voicing support for moving in that direction. Clearly, the big question is how the White House responds.

DWC: That is the big question. So, what about Trump? What do you foresee?

MM: Well, during the campaign, Trump called himself the law and order candidate, and he's been a vocal proponent of the death penalty and other tough measures, so that isn't encouraging. And if Sessions becomes attorney general, he would be involved, too, and that doesn't bode well for sentencing reform. Whether he makes this a priority issue or lets his GOP colleagues on Capitol Hill take the lead will tell us a lot about the prospects.

DWC: With Trump and a Republican Congress you're facing a different political constellation than you were last year. How does that change your work, or does it?

MM: It doesn't change much in the day-to-day work. To make criminal justice reform work, we've always needed to make it bipartisan. It's been too sensitive and too emotional for so long that it's just not going to work unless it's bipartisan. That worked with crack sentencing and some other sentencing reform measures moving through Congress, and we are just going to continue the work. We meet regularly with congressional offices.

When it comes to justice reform issues, the political environment has shifted from the days of just "lock 'em up." There is growing and substantial support for reform from the right, not uniformly, but there is enough commonality of purpose that there is a good base for some kind of legislative change. That doesn't mean it's going to be easy, though.

DWC: Our conversation has focused so far on the federal level, but it's the states -- not the feds -- who hold the vast majority of prison inmates. How are things looking at the state level, and what impact do you thing the new order in Washington will have at the statehouse?

The states have begun reducing their prison populations. (nadcp.org)
MM: Unlike issues like health care, criminal justice is primarily a state and local issue, and over the last 10 or 15 years, there has been significant forward momentum. Overall, the state prison population has declined modestly, but in a handful of states they have achieved reductions of 25% or 30% over this period. And they did it on their own; this wasn't inspired by Washington.

And this wasn't just a blue state phenomenon. The state with the most substantial prison reduction was New Jersey with 31% -- under Christ Christie, who was generally supportive. Other states that saw big reductions were California, Connecticut, Rhode Island, and New York, but also Mississippi. We've also seen reforms enacted in places like Georgia and South Carolina, and Republican governors have been supportive.

It's quite likely the momentum we see at the state level will continue to a significant extent. At that level, policymakers are closer to the issue, and money issues are more relevant -- states actually have to balance their budgets. And by now, a number of states have had good experiences with reducing prison populations, with no adverse effects on public safety. The public has been supportive, or at least not opposed.

DWC: So, where do we go from here?

MM: Our goals and our strategy largely remain the same. We have to speak to broad audiences and work both sides of the aisle. Most importantly, we have to remember that criminal justice reform has never been easy. For several decades, we spent a good part of our careers trying to explain why tough on crime policies are counterproductive. It's been a long battle, but it's come to the point where the public environment has been shifting in a more rational, compassionate direction.

We have to build on the hard work that's been done. Now, we have Black Lives Matter and related grassroots activity, which has really spread quite quickly, creating a broader demand for change from the ground up. Some political leaders lead, but many follow; the more active support there is around the country, the more politicians have to respond.

Still, going backwards is quite possible. What happens to the commitment to civil rights? What happens to sentencing policy? If not actual backward movement, probably at least a halt to work around reentry programming in prisons and the like. That would be a real shame. We have made significant progress, the field has a much greater store of knowledge about what works and what doesn't. We are ready to try to expand on that; it would be extremely foolish in terms of public safety not to take advantage of that.

Chronicle AM: CA Faces Plethora of Pot Bills, NM Legalization Bill Advances, More... (2/6/17)

Marijuana-related legislation is moving in several states, the HIA is suing the DEA over hemp foods, Philippines Catholic bishops speak out against drug war killings, and more.

The Hemp Industry Association is suing the DEA (again) over hemp foods. (thehia.org)
Marijuana Policy

Alaska On-Site Consumption Not Dead Yet. Last Wednesday, the Marijuana Control Board shot down a proposal that would have allowed for Amsterdam-style cannabis cafes, but a day later, the state's Department of Economic Development clarified in a press release that the decision didn't amount to a permanent ban on such businesses. The department encouraged marijuana businesses that want to allow on-site consumption to continue filing relevant paperwork, even though there is not yet an alternative proposal to regulate businesses allowing on-site consumption.

After Legalization, California Faces a Plethora of Pot Bills. The passage of Prop 64 appears to have left as many questions as answers, and legislators in Sacramento are working to address them with at least nine bills filed already. The proposals range from efforts to reconcile the medical marijuana and legal marijuana regulatory systems to protecting non-union workers to helping pot businesses gain access to financial services and beyond. Click on the link to see the full list of bills and accompanying discussion.

New Mexico Legalization Bill Wins House Vote. The House Consumer and Public Affairs Committee voted to allow a legalization measure, House Bill 89, to keep advancing through the House. The committee made no recommendation for or against. The bill still faces to more committee votes before it can head for a House floor vote. "This is the one thing we can do this year that will instantly inject a massive amount of money into our economy and create jobs right away," said bill sponsor Rep. Bill McCamley (D-Mesilla Park).

New York Legalization Bills Filed. A pair of identical bills to legalize marijuana for adults and allow for legal, taxed, and regulated marijuana commerce have been filed in Albany. They are Senate Bill 3040, with Sen. Liz Krueger (D-Manhattan) as primary sponsor, and Assembly Bill 3506, with Assemblymember Crystal Peoples-Stokes (D-Buffalo) as primary sponsor.

Wyoming House Votes to Cut Pot Penalties. The House voted Saturday to approve House Bill 197, which would reduce the penalty for possession of three ounces of marijuana or less. The bill now moves to the Senate.

Medical Marijuana

Washington Bill to Allow Medical Marijuana Use at School Wins Committee Vote. The House Health Care and Wellness Committee approved "Ducky's Bill," House Bill 1060, last Friday on a 13-3 vote. The bill is named after an elementary school student who can only attend half-days of class because of intractable epileptic seizures. It would require school districts to allow students to use medical marijuana on school grounds, on a school bus, or while attending a school-sponsored event. A companion measure has been filed in the Senate, but has not moved yet.

Hemp

Hemp Industries Association Sues DEA Over Illegal Attempt to Regulate Hemp Foods as Schedule I Drugs. The Hemp Industries Association (HIA) has filed a motion to hold the Drug Enforcement Administration (DEA) in contempt of court for violating an unchallenged, long-standing order issued by the U.S. Court of Appeals in San Francisco, prohibiting the agency from regulating hemp food products as Schedule I controlled substances. Specifically, the HIA asserts that the DEA continues to operate with blatant disregard for the 2004 ruling made by the Ninth Circuit Court of Appeals, which permanently enjoined the DEA from regulating hemp fiber, stalk, sterilized seed and oil, which are specifically exempted from the definition of "marijuana" in the federal Controlled Substances Act.

Asset Forfeiture

Colorado Bill Would Close Federal Asset Forfeiture Loophole in Most Situations. A bipartisan group of four senators has filed Senate Bill 136, which would require state law enforcement to comply with extensive reporting requirements, but would also prohibit them from entering into agreements to transfer seized property to the federal government unless it amounts to more than $100,000. Law enforcement agencies use federal sharing programs to get around state laws aimed at reining in asset forfeiture procedures. The bill is now before the Senate Judiciary Committee.

Drug Testing

Colorado Companies Shedding Marijuana Drug Tests. The Associated Press is reporting that in the past two years, seven percent of Colorado companies have dropped marijuana from pre-employment drug tests. Would you test someone for alcohol or something like that I mean it's legal like alcohol is. Why would you test someone for marijuana especially if it's legal?" said one small business owner.

Rhode Island Random Welfare Drug Testing Bill Filed. State Sen. Elaine Morgan last Thursday filed a bill that would allow the Department of Human Services to conduct random, suspicionless drug tests on welfare recipients. The bill heads to the Senate Judiciary Committee. It has yet to appear on the legislative website.

International

Israeli Ministers Endorse Bill to Allow Medical Marijuana Exports. The Ministerial Committee on Legislation has endorsed a draft bill to allow the export of medical marijuana. That means the measure will now move forward as a government bill.

Tel Aviv Marijuana Legalization Demonstration Draws Thousands. As the Knesset and the Israeli cabinet ponder marijuana decriminalization, thousands of Israelis gathered in Tel Aviv Saturday night to call for full legalization. At least two Knesset members, Likud's Sharren Haskel and Meretz's Tamar Zandberg, were present.

Philippines Catholic Bishops Issue Pastoral Statement Condemning Drug War Killings. The Catholic Bishops Conference of the Philippines issued a pastoral statement Sunday expressing opposition to President Rodrigo Duterte's campaign of killings of drug users and sellers. The bishops called on Filipinos to follow the basic teaching of the Church. The full text of the statement is available at the link.

Chronicle AM: Sessions AG Nomination Advances, FL Bill Would Fix MedMJ System, More... (2/2/17)

The Senate Judiciary Commitee has approved the nomination of Sen. Jeff Sessions to be attorney general, a legalization bill pops up in Wyoming, a Florida bill that would fix the state's medical marijuana system has the support of the folks behind the constitutional amendment, and more.

Marijuana foe Jeff Sessions is one step closer to being Attorney General (senate.gov)
Marijuana Policy

Wyoming Bill to Put Legalization to Popular Vote Filed. State Reps. James Byrd (D-Cheyenne) and Mark Baker (R-Rock Springs) have filed House Joint Resolution 11, which would allow the state's residents to vote on a constitutional amendment legalizing marijuana. The measure envisions legalizing up to three ounces and six plants, three of which can be mature. The bill's prospects are dim; the legislature has already defeated a decriminalization bill this year and is currently fighting over how much jail time pot possessors should face.

Medical Marijuana

Florida Bill Would Overhaul State's Medical Marijuana Laws. State Sen. Jeff Brandes (R-St. Petersburg) filed Senate Bill 614 Wednesday. The bill would scrap the state's existing system and replace it with a new set of rules. The move is supported by the people behind the successful Amendment 2 initiative. "Sen. Brandes' bill does an excellent job of establishing a comprehensive, tightly regulated medical marijuana system in Florida," said United For Care campaign manager Ben Pollara on Wednesday. "The two most essential pieces of implementation are maintaining the primacy of the doctor-patient relationship, and expanding the marketplace to serve patient access. SB 614 does both in a well-regulated, well thought out manner."

Asset Forfeiture

Kansas Legislature Punts on Asset Forfeiture. The House Judiciary Committee voted Wednesday to set aside five bills dealing with asset forfeiture issues until it could get input from an advisory committee. The bills have been referred to the Kansas Judicial Council, which Committee Chairman Blaine Finch said may "possibly draft legislation," but probably not this year.

Drug Testing

Iowa Workplace Hair Drug Testing Bill Passes Senate. A bill that would allow employers to conduct drug tests using hair samples passed the Senate 35-15 on Wednesday. Employers can already conduct drug tests using blood, urine, or saliva, but the hair tests can indicate drug use months in the past.

Drug Policy

The Senate Judiciary Committee Thursday approved the nomination of Sen. Jeff Session (R-AL) to be attorney general on a party line vote of 11-9. The nomination now goes before the full Senate.

Chronicle AM: AR Lawmakers Meddle With MedMJ, Major Reform Package Rolled Out in MD, More... (2/1/17)

Technical issues stopped us from publishing yesterday, but the news didn't stop. Here's a couple days worth of mainly, but not entirely, marijuana policy news.

Arkansas legislators can't keep their paws off the voter-approved medical marijuana initiative. (Creative Commons/Wikimedia)
Marijuana Policy

District Attorneys Form Marijuana Policy Group. The National District Attorneys Association has formed a working group of 14 prosecutors from across the country to arrive at policy positions on marijuana. The association "formed an internal working group made up of prosecutors from around the country to develop association policy on the subject of marijuana," said NDAA political director Nelson Bunn. "Contrary to other reporting, the working group is not affiliated with any other organization or entity, including the incoming administration."

Tennessee GOP Lawmaker Files Bill to Overturn Memphis, Nashville Pot Laws. The state's two largest cities have moved toward partial decriminalization of marijuana possession, passing laws last fall allowing police discretion to hand out civil violations for small-time offenders, and now a key state legislator is striking back. House Criminal Justice Committee Chairman William Lamberth (R-Cottontown) filed House Bill 173 Monday. It would repeal any local law that is inconsistent with penalties outlined in the state's drug laws. It would also prevent local governments from acting like Memphis and Nashville in the future. Democrats Rep. Harold Love and Sen. Jeff Yarbro, both of Nashville, respond by announcing plans to file a bill that would make possession a Class C misdemeanor punishable by a fine of $50 or less.

Vermont Bill Would Legalize Marijuana, But Not Sales. A bipartisan group of lawmakers has filed House Bill 170, which would allow adults to possess up to two ounces of marijuana and grow up to two mature and seven immature pot plants. The bill does not contain provisions allowing for marijuana commerce, or its taxation. Similar to the initiative passed in Washington, DC, the bill would be "decrim 2.0," said cosponsor Rep. Maxine Grad (D-Moretown).

Wyoming House Panel Rejects Decrim, But Approves Adjusting Pot Penalties. The House Judiciary Committee voted Tuesday to reject decriminalization, but approve House Bill 197, which would create a tiered system of penalties for pot possession. Under the bill, first time possession of up to three ounces (or eight ounces of edibles) would face up to 20 days in jail, a second offense would garner up to six months, a third offense would earn up to two years in jail, and a fourth offense would be a felony punishable by up to five years in prison. There would be a 10-year limit on counting previous convictions. The bill now goes to the House floor.

San Diego Okays Pot Shops. California's second largest city has given the green light to marijuana businesses. The city council voted unanimously Tuesday night to allow sales at 15 dispensaries already approved to sell medical marijuana, as well as opening up the possibility it will allow grows, testing facilities, and testing labs. The council will take up those issues later.

Medical Marijuana

Arkansas Legislators File Three More Bills Ban to Amend Voter-Approved Initiative. Republicans in Little Rock have filed three more bills that would tighten up the state's new law. One would ban the smoking of medical marijuana (House Bill 1400), one would ban edibles (House Bill 1392), and would require previous local zoning to be in place before licenses for dispensaries or grows are issued (House Bill 1391). HB1391 and HB1392 have been sent to Committee on House Rules while HB1400 has only been filed.

Colorado Bill to Add PTSD as Qualifying Condition Moves. The Senate State, Veterans and Military Affairs Committee unanimously approved Senate Bill 17-017 Monday. The measure would add post-traumatic stress disorder as a qualifying condition for medical marijuana. The bill is now on the Senate's "consent calendar," meaning it should move through the Senate with little debate. Then it's on to the House.

Utah Medical Marijuana University Study Bill Advances. The House Health and Human Services Committee unanimously approved House Bill 130 Monday. The measure would allow universities in the state to study medical marijuana. The bill is supported by the Utah Medical Association, which has opposed medical marijuana bills saying more study is needed. It now heads for a House floor vote.

Drug Policy

Groundbreaking Drug Policy Bill Package Reintroduced in Maryland. Delegate Dan Morhaim, M.D., has introduced three bills to transform drug policy in the state. This legislative package, with multiple cosponsors from across Maryland, would reduce the harms associated with substance abuse disorders, costs to the general public, and incarceration rates. H.B. 515 requires specified hospitals to establish a substance use treatment program, H.B. 488 removes criminal penalties for low-level, non-violent drug offenses under certain minimal threshold limits, and H.B. 519 permits the establishment of safe consumption programs which allow individuals to consume controlled substances in a safe space.

Drug Testing

New York Bill to Require Drug Testing Kids of Busted Parents Passes Senate. The state Senate passed "Kayleigh Mae's Law" (Senate Bill 137), which would require child protective services to investigate and drug test children under three who were present during a parent's drug arrest. The bill is named after Kayleigh Mae Cassell, who died of a drug overdose at age 13 months after her mother and mother's boyfriend were arrested and pleaded guilty to drug crimes. A companion measure, Assembly Bill 3900, has yet to move.

International

Philippines Police Suspend Drug War to Clean Up Corrupt Drug Cops, Government Says. National Police Chief Ronald de la Rosa said Monday that the country's brutal crackdown was suspended and police anti-drug units were being dissolved in the wake of a scandal around the murder of a South Korean businessman inside police headquarters at the hands of anti-drug police. More than 7,000 people have been killed in the six months since President Rodrigo Duterte's crackdown began. De la Rosa said a temporary halt had been ordered by Duterte. News reports have not yet independently verified whether the killings have stopped or not.

Gorsuch on Grass: Where Does Trump's Supreme Court Pick Come Down on Marijuana? [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

Where does Donald Trump's pick for the Supreme Court come down on weed? The record is pretty sparse.

Neil Gorsuch hasn't made any known public pronouncements about marijuana policy, and despite his tenure on the 10th US Circuit Court of Appeals in Denver, he hasn't ruled in any cases that directly take up the issue.

But he has ruled on some marijuana cases, and he didn't go out of his way to support freeing the weed in them. And there's at least one marijuana-related case he's ruled on that demonstrates a disquieting deference to law enforcement.

In Feinberg et al. v. IRS, Gorsuch ruled against a Colorado dispensary that sought not to report data about its operation to the IRS because marijuana remains illegal under federal law and it feared incriminating itself. But in passing, he offered some commentary on the legal weirdness of state-legal but federally illegal marijuana commerce.

"This case owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana. Officials at the Department of Justice have now twice instructed field prosecutors that they should generally decline to enforce Congress's statutory command when states like Colorado license operations like THC. At the same time and just across 10th Street in Washington, D.C., officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws. So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will."

And he marveled at the federal government's contortions as it sought to accommodate commerce in a substance it considers illegal.

"Yes, the Fifth Amendment normally shields individuals from having to admit to criminal activity. But, the IRS argued, because DOJ's memoranda generally instruct federal prosecutors not to prosecute cases like this one the petitioners should be forced to divulge the requested information anyway. So it is the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law."

Gorsuch also pointedly noted the provisional nature of the Obama administration's decision to work with -- instead of against -- the states experimenting with marijuana legalization.

"It's not clear whether informal agency memoranda guiding the exercise of prosecutorial discretion by field prosecutors may lawfully go quite so far in displacing Congress's policy directives as these memoranda seek to do. There's always the possibility, too, that the next... Deputy Attorney General could displace these memoranda at anytime."

This is, of course, something of which the marijuana industry and legalization advocates are painfully aware and explains much of the movement's agonizing over the nomination of pot foe Sen. Jeff Sessions (R-AL). A single signature on a new policy memorandum at the Justice Department could throw the industry into chaos.

As Tom Angell notes at the MassRoots blog, Gorsuch ruled in a 2010 case, US v. Daniel and Mary Quaintance, that a couple charged with federal marijuana distribution offenses couldn't use the Religious Freedom Restoration Act as a defense because their claims weren't sincere.

"Numerous pieces of evidence in this case strongly suggest that the [couple's] marijuana dealings were motivated by commercial or secular motives rather than sincere religious conviction... "The record contains additional, overwhelming contrary evidence that the [couple was] running a commercial marijuana business with a religious front."

In other words, if you're trying to run a real marijuana ministry, don't be selling weed.

But it's a 2013 case, Family of Ryan Wilson v. City of Lafeyette and Taser International , that raises disturbing implications that go beyond marijuana policy into the broader realm of police use of force. In that case, Gorsuch held that a police officer's fatal tazing of Wilson, who was fleeing a marijuana arrest, was "reasonable."

"[T]he illegal processing and manufacturing of marijuana may not be inherently violent crimes but, outside the medical marijuana context, they were felonies under Colorado law at the time of the incident... And Officer Harris testified, without rebuttal, that he had been trained that people who grow marijuana illegally tend to be armed and ready to use force to protect themselves and their unlawful investments."

As Angell noted, that ruling in particular had the National Urban League tweeting its concern and calling for close scrutiny of Gorsuch's record within hours of Trump's announcement of his selection.

Overall, Gorsuch hasn't provided a whole lot of hints about how he might rule on cases revolving around the conflict between state and federal marijuana, although he has shown he's aware of it. Any members of the Senate Judiciary Committee representing states where medical or recreational marijuana commerce is legal might want to be asking for some clarification when his confirmation hearings come around.

Chronicle AM: Ethan Nadelmann Steps Down at DPA, Seattle Approves Safe Injection Sites, More... (1/30/17)

The leader of the nation's largest drug reform group steps down, Maine becomes the eighth legal pot state, Seattle approves safe injection sites -- and isn't asking federal approval -- and more.

Thanks you all you've done, Ethan! (Open Society Institute)
Marijuana Policy

Maine Becomes Eighth State to Eliminate Marijuana Possession Penalties. The personal possession and cultivation provisions of the Question 1 legalization initiative went into effect Monday. Adults may now possess up to 2.5 ounces of marijuana and cultivate up to six plants and keep the harvest without any criminal penalty. Marijuana sales won't come until next year.

Maine Governor Signs Bill Delaying Implementation of Legal Marijuana Commerce. Gov. Paul LePage (R) last Friday signed into law LD 88, which delays the onset of retail pot sales for a year. LePage had threatened to veto the bill unless it included $1.6 million to fund the costs of creating rules and regulations and unless it transferred oversight of the industry from the agriculture department to the Bureau of Alcoholic Beverages and Lottery Operations. The bill did neither of those things, but he signed it anyway.

Maryland Legalization Bill Coming. Lawmakers were set to announce today plans for a pair of bills related to marijuana legalization. One would make it legal for adults and regulate it like alcohol; the other would enact taxes on legal, non-medical marijuana. The state decriminalized pot possession in 2014.

South Dakota Bill Would End "Internal Possession" Charge for Pot. State Rep. David Lust (R-Rapid City) and Sen. Justin Cronin (R-Gettysburg) last week introduced Senate Bill 129, which would no longer make it legal for someone to have marijuana in their system. Under current state law, people who test positive for marijuana can be charged with "unlawful ingestion" or "internal possession," a misdemeanor.

Medical Marijuana

Arkansas Lawmaker Files Bill to Ignore State Voters' Will Until Federal Law Changes. State Sen. Jason Rapert (R-District 18) last week filed a bill that would delay the voter-approved medical marijuana law until marijuana is legal under federal law. The measure is Senate Bill 238, which has been referred to the Senate Committee on Public Health, Welfare, and Labor.

Utah Lawmakers Scale Back Medical Marijuana Plans. Legislators said last Friday they were retreating from plans to expand the state's CBD-only medical marijuana law and will instead call for more research. They also said they wanted to see what the Trump administration was going to do before they moved forward with a broader medical marijuana bill.

Drug Policy

Ethan Nadelmann Steps Down as Head of the Drug Policy Alliance. "The time has come for me to step aside as executive director of the Drug Policy Alliance," Nadelmann wrote in a letter last Friday to DPA staff announcing his resignation. "This is just about the toughest decision I've ever made but it feels like the right time for me personally and also for DPA. It's almost twenty-three years since I started The Lindesmith Center and approaching seventeen years since we merged with the Drug Policy Foundation to create DPA. We've grown from little more than an idea into a remarkable advocacy organization that has built, led and defined a new political and cultural movement." Click on the link to read the whole letter.

Maine Governor Wants to Ban Welfare Benefits for Drug Felons. As part of his budget proposal, Gov. Paul LePage is calling for a ban on food stamps and cash assistance for anyone convicted of a drug felony in the past two decades. He also wants to try again to pass a welfare drug test law. Similar efforts by LePage and the Republicans have failed in the past.

Drug Testing

Montana Woman Faces Felony Charge for Trying to Beat Drug Test. A Helena woman on probation who tried to pass off someone else's urine as her own to beat a drug test is now facing a felony charge of tampering with or fabricating evidence. Jessica McNees said she wouldn't have done it if she knew she faced a felony charge.

Indiana Legislator Files Bill to Criminalize Fake Urine. State Rep. Greg Beumer (R-Modoc) has filed a bill that would make it a misdemeanor crime to distribute, market, sell or transport synthetic urine with the intent to defraud an alcohol, drug or urine screening test. The measure is House Bill 1104.

Harm Reduction

Seattle Approves Nation's First Supervised Injection Facilities. The city of Seattle and surrounding King County have approved setting up "Community Health Engagement Locations," better known as supervised injecting sites, for injection drug users in a bid to reduce the associated harms. The city and county are not seeking prior federal approval and acknowledge that the federal government could intervene, but say they are confident it won't. Two such sites will be set up.

International

Colombian Government and FARC Announce Coca Substitution, Eradication Plans. The government and the leftist rebels of the FARC announced plans eradicate and provide substitute crops for some 125,000 acres of coca plants. President Juan Manuel Santos and the FARC leadership agreed on the plan as part of a peace agreement to end a civil war running since 1964. "The goal is to replace approximately 50,000 hectares of illicit crops during the first year of implementation in more than 40 municipalities in the most affected departments," the government and the rebels said in a joint statement.

Colombia Coca Producers March Against Crop Eradication, Substitution Program. Coca producers have taken to the streets to protest against the new program, undertaken jointly by the Colombian government and the FARC. "The areas with coca cultivations are isolated areas, with simple people, good workers," said Edgar Mora, leader of a coca growers' union. "Rural people haven't found an alternative to cultivating coca because if they cultivate other products they'll lose money and they don't find profitability in the legal products the government talks about."

Medical Marijuana Update

The Illinois treasurer asks Trump for clarity on banking for the medical marijuana industry, North Dakota legislators work to ensure workers' compensation won't pay for medical marijuana for injured employees, and more.

Arkansas

On Monday, Athe legislature approved changes to the state's new medical marijuana law. With the state Senate's approval Monday, House Bill 1058 now goes to the governor. It passed the House last week. The bill removes a requirement that doctors declare the benefits of medical marijuana outweigh the risk to the patient. It also specifies that patient information submitted to qualify for medical marijuana is "confidential," but would not be considered "medical records" subject to the Health Information Privacy Protection Act.

On Tuesday, the governor signed a pair of medical marijuana "fix" bills. Gov. Asa Hutchinson (R) signed into law two bills aimed at modifying the state's new, voter-approved medical marijuana law. House Bill 1026 will extend the deadline for rulemaking from 120 days to 180 days, and House Bill 1058 removes the requirement that doctors certify in writing that the help benefits of marijuana would outweigh the risks to the patient.

Illinois

On Monday, the state treasurer asked Trump for clarity on banking for the medical marijuana industry. State Treasurer Michael Frerichs sent a letter to President Trump urging him to give clear guidance to the banking industry on marijuana. Frerichs said currently federal law makes it difficult for legal businesses to get loans and restricts customers to cash-only transactions.

North Dakota

On Monday, the House approved a bill preventing workers' comp from paying for medical marijuana. The House overwhelmingly approved House Bill 1156. Passed in response to voters' approval of a medical marijuana initiative in November, the bill prevents the state Workforce Safety and Insurance agency from paying for medical marijuana to treat a workplace injury. Legislators said marijuana remains illegal under federal law.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Chronicle AM: NFL Players Want Less Punitive MJ Approach, Israel MedMJ Research, More... (1/25/17)

NFL players want the league to ease up on weed, an Oregon bill seeks to declare a kratom "emergency" and study whether to ban it, the Israelis are funding medical marijuana research, and more.

Oregon is the second state this year to see moves toward banning kratom at the statehouse. It's happening in Florida, too.
Marijuana Policy

NFL Players Association Will Propose Less Punitive Approach to Pot. The NFLPA is working on a proposal to change the league's drug policy to take a softer line on marijuana. The association will take the proposal its board of representatives first, and if the board approves it, on to the league. Currently, players are subject to fines or suspensions for using marijuana, whether recreationally or medicinally.

Medical Marijuana

Arkansas Governor Signs Medical Marijuana "Fix" Bills. Gov. Asa Hutchinson (R) signed into law two bills aimed at modifying the state's new, voter-approved medical marijuana law. House Bill 1026 will extend the deadline for rulemaking from 120 days to 180 days, and House Bill 1058 removes the requirement that doctors certify in writing that the help benefits of marijuana would outweigh the risks to the patient.

Kratom

Oregon Bill Would Declare Emergency, Study Whether to Ban Kratom. The state Senate Interim Committee on the Judiciary has filed a measure, Senate Bill 518, which would declare a kratom "emergency" in the state and direct the state Board of Pharmacy to conduct a study to see if the plant and its derivatives should be scheduled as a controlled substance under state law. The DEA is currently weighing a similar move on the federal level, but has run into stiff opposition from users and advocates.

Heroin and Prescription Opioids

Maryland Governor Rolls Out Package to Fight Heroin. Gov. Larry Hogan (R) unveiled a package of proposals to deal with heroin and prescription opioid use in the state. He wants strict limits on doctors' ability to write prescriptions for opioids, stiff penalties for sellers of those drugs, and a new "command center" to coordinate the official response. In other states where such measures have been proposed, doctors have objected loudly to politicians placing legal limits on the care they provide. Democrats in the legislature are working on their own package of measures, but have released no details.

Drug Testing

New York Bill Would Require Drug Testing Children Whose Parents Get Arrested for Drugs. A bill named after an infant who died of a drug overdose would require hair follicle testing of children if their parent or guardian has been arrested on a drug charge. Kayleigh Mae's Law is not yet on the legislative website. Kayleigh Mae Cassell was found to have been given cocaine and heroin by her mother and live-in boyfriend, both of whom have pleaded guilty in her death.

International

Israel Will Fund Research for Medical Marijuana Crops. The Ministry of Agriculture and Rural Development will fund medical marijuana research in what it says is a pioneering step to aid researchers in developing a new generation of medical marijuana products. The ministry and the Health Ministry have allocated $2.1 million US for the project.

Chronicle AM: More State Forfeiture Bills, Colombia Drug Farmers Organizing, More... (1/24/17)

Colorado high court rules cops don't have to give your legal weed back if they seize if, changes in the Arkansas medical marijuana law go to the governor, there's more asset forfeiture activity in the states, Colombia's drug crop growers organize, and more.

Asset forfeiture abuses are leading to corrective efforts in more and more states. (Creative Commons/Wikimedia)
Marijuana Policy

Colorado Supreme Court Says Cops Don't Have to Give Seized Marijuana Back. The state Supreme Court ruled Monday that police cannot be forced to return marijuana to a defendant acquitted of pot crimes, because that would cause them to violate the federal Controlled Substances Act. "The return provision requires law enforcement officers to return, or distribute, marijuana," the decision says. "Thus compliance with the return provision necessarily requires law enforcement officer to violate federal law." Three justices disagreed, however, saying that the CSA "immunizes federal and state officers from civil and criminal liability in the circumstances at issue here." But they lost.

Virginia Bill to End Drivers' License Suspension for Possession Advances. A bill that would undo an existing state law requiring the suspension of drivers' licenses for people convicted of pot possession was approved by the Senate Courts of Justice Committee Monday. The measure, Senate Bill 1091 still need approval from the full chamber.

Texas Judge Recommends No Punishment for Teacher Who Smoked Pot in Colorado. A teacher who admitted legally consuming marijuana while in Texas should not face any legal or professional penalty, an administrative judge has ruled. The Texas Education Agency sought to suspend the teacher's license for two years after she handed in a urine sample that tested positive for marijuana. The judge found that the teacher was not "unworthy to instruct" and that there was no evidence to suggest she was under the influence of marijuana while teaching. The TEA will have to make a final decision.

Medical Marijuana

Arkansas Legislature Approves Changes to Medical Marijuana Law. With the state Senate's approval Monday, House Bill 1058 now goes to the governor. It passed the House last week. The bill removes a requirement that doctors declare the benefits of medical marijuana outweigh the risk to the patient. It also specifies that patient information submitted to qualify for medical marijuana is "confidential," but would not be considered "medical records" subject to the Health Information Privacy Protection Act.

Illinois State Treasurer Asks Trump for Clarity on Banking for Medical Marijuana Industry. State Treasurer Michael Frerichs said Monday he sent a letter to President Trump urging him to give clear guidance to the banking industry on marijuana. Frerichs said currently federal law makes it difficult for legal businesses to get loans and restricts customers to cash-only transactions.

North Dakota House Approves Bill Preventing Worker's Comp from Paying for Medical Marijuana. The House overwhelmingly approved House Bill 1156 Monday. Passed in response to voters' approval of a medical marijuana initiative in November, the bill prevents the state Workforce Safety and Insurance agency from paying for medical marijuana to treat a workplace injury. Legislators said marijuana remains illegal under federal law.

Kratom

Florida Kratom Ban Effort Gets Senate Companion Bill. Rep. Kristin Jacobs' (D) lonely crusade to ban kratom is not quite as lonely today. Democratic state Sen. Darryl Rouson has filed Senate Bill 424, which, like Jacobs' House bill, would add the active ingredients in kratom to the state's list of controlled substances.

Asset Forfeiture

Alaska Civil Asset Forfeiture Reform Bill Filed. State Rep. Tammie Wilson (R-North Pole) has filed House Bill 42, which would end civil asset forfeiture by requiring law enforcement obtain a criminal conviction before property is seized. "This has to do with the belongings that are taken," Wilson said. "They still can seized. But now there will be a process for those who were not involved to be able to get their items back without a lengthy proceeding and have to get an attorney to be able to do that."

Oklahoma Asset Forfeiture Bill Coming Back. State Sen. Kyle Loveless (R-Oklahoma City) will once again file asset forfeit legislation this year. The bill would require convictions before asset forfeiture unless the property is valued at more than $50,000, if the person denies any connection to the property, or is deported or otherwise unavailable. Similar efforts in past years have been blocked by strong law enforcement lobbying efforts.

Wisconsin Asset Forfeiture Bill Filed. A bipartisan group of lawmakers is preparing an asset forfeiture reform bill that would require a criminal conviction before any seizure takes place, that any seizure be proportional to the offense, and that proceeds from forfeitures be directed to state general funds, and not law enforcement. The bill is not yet available on the legislative website.

Drug Testing

North Dakota Welfare Drug Testing Bill Filed. State Sen. Tom Campbell (R-Grafton) has filed Senate Bill 2279, which would require the state Department of Human Services to develop a procedure for testing welfare applicants suspected of illegal drug use. The bill would deny benefits for a year to applicants who refuse a drug assessment, refuse a drug test, or don't participate in a treatment program. Similar legislation has been introduced the last three sessions. The Department of Human Services does not support it.

International

Colombia Coca, Opium, and Marijuana Farmers to Form Association. The growers are planning to found the National Coordinator of Coca, Marijuana, and Opium Growers to try "to forge a common negotiating front with the government to influence any potential agreements on drug control that come as a result of peace talks with the Revolutionary Armed Forces of Colombia (FARC). The organization would have national reach and appears to be an effort to create a political coalition with the aim of directly negotiating with the government. Notably, such a coalition could form a future political support base for an eventual FARC political party. By linking the future of a FARC party to the issue of forceful eradication, which the group would almost assuredly oppose, the pace of eradication in Colombia could end up slowing even further," Stratfor reported.

Chronicle AM: MA Bills Subvert Legalization Init, OR MJ Bill Protects Workers, More... (1/23/17)

A Democratic Massaschusetts state senator is out to seriously undercut the state's new, voter-approved marijuana legalization law, an Oregon bill seeks to protect marijuana users' employment rights, El Chapo gets extradited to the US, and more.

Marijuana Policy

DC Activists Hand Out 8,000 Joints for Trump Inauguration. The same folks who brought you legal marijuana in the District were on hand Friday for the inauguration of the incoming president. DCMJ activists handed out nearly double the promised 4,200 joints they promised. A good time was had by all. "Oh yeah, there's 10,000 people who showed up for free marijuana today, so it's really busy," DCMJ founder Adam Eidinger said. "The goal is really to get Donald Trump talking about marijuana, to show the tremendous support. To show that you can have Trump supporters and non-Trump supporters together in unity."

Arizona Decriminalization, Legalization Bills Filed. State Rep. Mark Cardenas (D-Phoenix) filed a bill to decriminalize pot possession (House Bill 2002) and one to legalize marijuana (House Bill 2003). Previous similar bills have never won even a committee hearing, but the state's felony marijuana possession law may finally be out of step with the times enough to give the decrim bill a hearing.

Hawaii Marijuana Legalization Bill Filed.Speaker of the House Joseph Souki (D-District 8) has filed House Bill 205, which "authorizes persons 21 years of age or older to consume or possess limited amounts of marijuana for personal use. Provides for the licensing of marijuana cultivation facilities, product manufacturing facilities, safety testing facilities, and retail stores" and "applies an excise tax on transactions between marijuana establishments."

Maryland Appeals Court Upholds Search Based on Pot Smell, Despite Decriminalization. Even though the possession of small amounts of pot has been decriminalized in the state, the state's highest court has ruled that it remains a banned substance and thus give police probable cause to search a vehicle if they smell it. "Simply put, decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful," Court of Appeals Judge Shirley M. Watts wrote in a unanimous opinion issued Friday. Defendants had argued that police should be required to cite factors leading them to believe the amount they smelled was greater than the 10 grams decriminalized under state law. But the court didn't buy that argument.

Massaschusetts Bills Would Gut Legalization Law. Hardline marijuana foe state Sen. Jason Lewis (D-Winchester) has filed legislation that would deeply curb the ability of state residents to possess and grow marijuana and threaten the ability of recreational pot shops to begin selling a full range of products next year. Lewis would delay the ability of pot shops, now set to open in July 2018, to sell edibles and concentrates for at least two more years, and he would dramatically increase the ability of local governments to reject marijuana businesses. Under the legalization law, they must go to the voters, but Lewis's legislation would undo that. Groups that led the successful November legalization initiative are vowing a vigorous fightback. His package of 14 bills was filed last Friday, the last day to do so.

Oregon Bill to Prevent Pot Smokers From Getting Fired Filed. State Rep. Ann Lininger (D-Lake Oswego) has filed Senate Bill 301, which would override a state Supreme Court decision saying employers can fire marijuana users even though it is legal in the state. The bill would bar employers from requiring workers or prospective workers to "refrain from using a substance that is lawful to use under the laws of this state during nonworking hours."

Virginia Legislators Punt on Decriminalization Bills. A state Senate committee Monday refused to approve a pair of decriminalization bills, instead opting to delay them while the Virginia State Crime Commission studies decriminalization. The bills were Senate Bill 1269 from Sen. Adam Ebbin (D-Alexandria) and Senate Bill 908 from Sen. Louise Lucas (D-Portsmouth).

Asset Forfeiture

Illinois Bill Would End Civil Asset Forfeiture. State Rep. Al Riley (D-Hazel Crest) has filed House Bill 468, which would prohibit the state from seizing property without a criminal conviction. The measure would also block prosecutors from doing an end run around state law by passing cases off to the feds, who then return 80% of the money to the law enforcement agency involved. The bill has been referred to the House Rules Committee.

Drug Policy

California Bill Would Protect Immigrants from Deportation in Low-Level Drug Cases. Assemblywoman Susan Talamantes Eggman (D-Stockton) Monday filed a bill to shield immigrants from deportation for minor drug offenses -- as long as they seek drug treatment or counseling. The bill would adjust state law so that defendants without prior convictions within the last five years could enroll in drug treatment before entering a guilty plea and have those charges wiped from their record upon successful completion. That would prevent them from being considered drug offenders eligible for deportation under federal law. Gov. Jerry Brown (D) vetoed a similar bill last year. The bill is not yet available on the legislative website.

Drug Testing

Missouri College Appeals to US Supreme Court Over Student Drug Testing. Linn State Technical College has appealed to the Supreme Court to overturn federal appeals court rulings that its program requiring mandatory drug testing of all incoming students is unconstitutional. The college has lost at just about every turn in this case, with a federal district court judge issuing an injunction to block implementation of the program, and the 8th US Circuit Court of Appeals rejecting mass, suspicionless drug testing. The appeals court did allow the college to impose testing on students in five safety-sensitive programs.

International

El Chapo Extradited to the US. Longtime Sinaloa Cartel leader and repeat Mexican prison escapee Joaquin "El Chapo" Guzman was extradited to the US last Thursday to face drug and other charges in New York City. "The government of the republic today delivered Mr. Guzmán to the authorities of the United States of America," the Mexican foreign ministry said in a statement.

German MPs Vote to Approve Medical Marijuana. The lower house of parliament last Thursday approved a measure legalizing the medicinal use of marijuana. The law limits the use of medical marijuana to "very limited exceptional cases" and patients will not be allowed to grow their own. Instead medical marijuana will be imported until state-supervised grow operations are set up in Germany.

Drug War Issues

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