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Why Doesn't the DEA Just Crack Down on Medical Marijuana?

Ever wonder why the federal government doesn't just go ahead and raid every medical marijuana dispensary in California? The DEA seems to conduct only enough raids to create the perception of risk, while completely failing to prevent widespread medical access. In an online chat, someone asked the Drug Czar about this, and you know what he said? Nothing. He may be afraid to answer, but I'm not.

First check out his lengthy response and note that it doesn't answer the main question:
Patrick, from San Francisco, CA writes:
Mr. Walters-- My son is a high school junior here in San Francisco, CA. A large percentage of high school students in San Francisco smoke pot on campus several times a day. Teachers and school administrators are powerless to stop it and simply look the other way, all due to state and local laws which make it almost impossible to control pot and thereby keep it out of the hands of kids. How serious is the federal government in its attempts to shut down the phony "medical marijuana" industry, which is really just an underhanded way to make it easy for people to use pot recreationally. Raiding pot clubs could be stepped up easily (with very few people), couldn't they? --Patrick

John Walters
I’m glad you raised this concern, Patrick. We’re hearing the same thing from many other communities dealing with the same issue.

We believe that if there are elements of marijuana that can be applied to modern medicine, they should undergo the same FDA-approval process any other medicine goes through to make sure it’s safe and effective. In absence of that approval, the Federal position is clear: the smoked form of medical marijuana is against Federal law and we will continue to enforce the law.

Last year, the FDA issued an advisory reinforcing the fact that no sound scientific studies have supported medical use of smoked marijuana for treatment in the United States, and no animal or human data support the safety or efficacy of smoked marijuana for general medical use. This statement adds to the already substantial list of national public health organizations that have already spoken out on this issue, including the American Medical Association, the National Cancer Institute, the American Cancer Society, and the National Multiple Sclerosis Society – all of which do not support the smoked form of marijuana as medicine. So who’s pushing for the smoked form of medical marijuana then?

Funded by millions of dollars from those whose goal it is to legalize marijuana outright, marijuana lobbyists have been deployed to Capitol Hill and to States across the Nation to employ their favored tactic of using Americans' natural compassion for the sick to garner support for a far different agenda. These modern-day snake oil proponents cite testimonials—not science—that smoked marijuana helps patients suffering from AIDS, cancer, and other painful diseases “feel better.” While smoking marijuana may allow patients to temporarily feel better, the medical community makes an important distinction between inebriation and the controlled delivery of pure pharmaceutical medication. If you want to learn more about this, we have information available that shows how medical marijuana laws increase drug-related crime and protect drug dealers. Hopefully you can help us educate more of our citizens about this fraud.
So it's clear that the Drug Czar opposes medical marijuana, but what about the raids? Well, I can think of a few reasons why a full-blown attack on medical access in California would be highly problematic:
1. Simultaneously raiding California's several hundred dispensaries would provoke aggressive protests and widespread bad publicity. The ensuing press coverage would highlight marijuana's well-known medical applications.

2. DEA's tactic of suppressing evidence in court that the marijuana is for medical use wouldn’t work if they raided all the providers at once. Jurors would figure it out and vote to acquit, wasting federal law enforcement and prosecutorial resources.

3. Black market violence would erupt immediately as criminals rush in to meet demand. This would prove to everyone that the medical marijuana industry actually made California safer.

4. Anti-medical marijuana statements from Republican presidential hopefuls have already jeopardized their chance at winning California's 54 electoral votes. An aggressive DEA campaign at this time would ensure a democratic victory there. Bush's Drug Czar knows better than to help democrats win California.

I suppose it's not very surprising that the Drug Czar declined to elaborate on this. He certainly wouldn't want to put ideas in anyone's head.

The point here isn't that providing medical marijuana carries no legal risks. It clearly does. But it's important for everyone to understand how hollow most of the DEA's threats really are. DEA's ongoing efforts against medical marijuana providers in California are designed to create the appearance of chaos, which is then cited as evidence that the medical marijuana industry is inherently harmful. This is purely political.

The Drug Czar's failure to answer this simple and common question reveals a great deal about his own reluctance to interfere with the will of California voters.

Location: 
United States

A Few Pardons Today -- Meanwhile the Pardon Attorney's Web Site Hasn't Been Updated Since the Clinton Administration

In addition to the good news about the crack sentencing reductions being retroactive, another piece of modest good news is that Pres. Bush granted some clemencies, including a few drug offenders. Via the Associated Press and CNN:
  • Jackie Ray Clayborn, of Deer, Arkansas, sentenced in 1993 to five months in prison, two years of supervised release and $3,000 in fines on marijuana charges.
  • John Fornaby, of Boynton Beach, Florida, convicted in 1991 of conspiring to distribute cocaine. He served three years in prison.
  • Bush cut short the 1992 prison sentence of crack cocaine dealer Michael Dwayne Short of Hyattsville, Maryland, who will be released on February 8 after serving 15 years of his 19-year sentence.
Let's include this one too, just to keep things in the holiday spirit (even though we don't oppose having reasonable regulations on legalized substances):
  • William James Norman of Tallahassee, Florida, convicted in 1970 for possessing and running an unregistered distillery that did not carry the proper signage and illegally produced alcoholic drinks made from mash. He was sentenced to three years probation.
Clemencies are a good thing, so I feel bad about using a negative-sounding headline. But it's important, because these few additional actions still leave George W. Bush far behind other presidential administrations in use of the pardon powers, even behind the pardon-parsimonious George Herbert Walker Bush. Interestingly -- and perhaps not coincidentally -- the US Pardon Attorney's office has not updated the sections of their web site listing clemency recipients and statistics since the end of the Clinton administration. They don't even include George W. Bush in the list of presidents. (I've saved copies of those two pages to prove it, in case they finally get around to updating those pages.) More importantly, we've heard from list members whose family members have clemency petitions in that not only have their loved ones not been released, they haven't even heard back from the office with any decision, not even a "no." If I remember correctly, FAMM has charged that the backlog in the office is literally in the thousands. Come on George, I've said it before, and I'm saying it again -- WE WANT PARDONS!!!!
Location: 
Washington, DC
United States

ASA: Judiciary Committee Chairman Conyers Opposes DEA Tactics

[Courtesy of Americans for Safe Access] Judiciary Committee Chairman Conyers Opposes DEA Tactics Pledges to Question DEA During Oversight Hearings Dear Friend, As many of you know, DEA recently launched an entirely new tactic in their continued efforts to undermine the effective implementation of medical marijuana laws in California. They have sent hundreds of letters threatening prosecution and asset forfeiture against property owners who rent to legal medical cannabis collectives – a strategy that could have ramifications for medical marijuana programs nationwide. ASA Government Affairs Director Caren Woodson has been talking to House Judiciary Committee Chairman John Conyers’ (D-MI) staff and other Democratic leadership to encourage them to oppose these tactics and stand up for patients in states where medical cannabis is legal. Today, Chairman Conyers issued at a statement saying: “I am deeply concerned about recent reports that the Drug Enforcement Administration is threatening private landlords with asset forfeiture and possible imprisonment if they refuse to evict organizations legally dispensing medical marijuana to suffering patients. The Committee has already questioned the DEA about its efforts to undermine California state law on this subject, and we intend to sharply question this specific tactic as part of our oversight efforts.” In conjunction with more than fifty raids at medical cannabis collectives in California this year, the asset forfeiture threats against property owners represent the most serious challenge to patients’ access in the United States today. Conyers’ support signals the first significant Congressional opposition to the DEA’s attempted end run around voters and state lawmakers. ASA welcomes this statement and we look forward to working with Chairman Conyers to finally end DEA interference in state medical marijuana laws. Congratulations to the hundreds of ASA members who helped put grassroots strength behind our work! Keep your eyes open for an Action Alert next week to put even more support behind Conyers’ initiative, and visit www.AmericansForSafeAccess.org/Donate to make a contribution to support our effective advocacy today. Thank you, Steph Sherer Executive Director Americans for Safe Access -------------------------------------------------------------------------------- Americans for Safe Access is the nation's largest organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research.
Location: 
Washington, DC
United States

Latin America: Mexico's President Says Fighting Drugs, Crime His Highest Priority

Marking his first year in office, Mexican President Felipe Calderón said Saturday that fighting the war on drugs and organized crime remained his highest priority. The speech came as the death toll in this year's prohibition-related violence topped 2,000 -- making it the bloodiest year yet in Mexico's drug war -- and as the US Congress contemplates a $500 million anti-drug assistance package crafted by the Calderón and Bush administrations.

"The biggest threat to Mexico's future is lack of public safety and organized crime," Calderón said in a speech at the National Palace. "But with one year in office, I am more convinced than ever that we are going to win this battle."

Just as he began his first year in office by sending troops into Baja California and Michoacán, so Calderón marked its end by army special forces into Reynosa, Tamaulipas, on the Texas border. The area, where the Gulf Cartel is powerful, was the scene of the assassination last week of former Río Bravo Mayor Juan Antonio Guajardo and five companions.

But while the violence continues and the drugs flow north seemingly unabated, Calderón claimed success in the battle, citing the arrest of more than 14,000 people in the drug trade, including 20 regional drug trafficker captains, as well as the extradition of leading traffickers to the US. He also hailed what he called Mexico's largest drug bust, the seizure November of 26 tons of cocaine. That came only a month after authorities in northern Mexico seized another 11 tons of the white powder.

"With each drug confiscation, with each criminal behind bars, with each zone we recover from organized crime, we drive away our children from addictions, from violence and from delinquency," Calderón declared.

While Calderón has controversially deployed more than 24,000 soldiers in his drug war, he did not mention the role of the military in his speech. The military has been criticized for human rights violations.

Southwest Asia: US Plan For Aerial Spraying of Afghan Poppies on Hold -- for Now

The US government has given up for now on efforts to persuade the Afghan government of President Hamid Karzai to allow aerial spraying of the country's opium poppy crop, Reuters quoted a senior US government official as saying Wednesday. The US State Department and Office of National Drug Control Policy (ONDCP) had pushed hard for spraying, but ran into opposition not only from the Afghans, but also from the US's European allies and even other parts of the US government, including the Congress and the Pentagon, which fears such an effort could backfire and drive Afghans into the waiting arms of the Taliban.

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incised papaver specimens (opium poppies)
"We've talked to President Karzai about the program we want to work with him on this season," Thomas Schweich, the US coordinator on counternarcotics in Afghanistan, told the news agency. "He has said he doesn't want to do aerial eradication so we won't do aerial eradication. If he changes his mind, we will," Schweich said in Brussels.

Instead of aerial spraying of herbicides, Schweich said, the US will rely on ground eradication. A ground eradication program this year managed to eradicate only 9% of the crop, according to the United Nations.

"That program is going to continue," Schweich said. "It got about 15-16,000 hectares last year. We didn't think it was enough so we are going to monitor very closely whether it is down equitably," he said, adding that there are signs some powerful figures in Afghanistan are using their positions to ensure their fields are not targeted.

Afghanistan produced 93% of the world's opium supply this year, according to the UN Office on Drugs and Crime in a report released last month. In addition to finding their way into the pockets of corrupt government officials and poor Afghan farmers, profits from the opium trade have also fueled the Taliban insurgency, leaving Western policy-makers with a real dilemma: Do they crack down on opium and drive farmers into the hands of the Taliban or do they turn a blind eye and watch opium profits buy shiny new weapons for the Taliban? Prohibition appears to have created a lose-lose situation for the West.

Hemp: Court Rejects Bid By North Dakota Farmers to Get DEA Out of the Way

In Bismarck, US District Court Judge Daniel Hovland Wednesday dismissed a lawsuit filed by two would-be North Dakota hemp farmers seeking to end the DEA's ban on commercial hemp farming in the United States. Controlling opinions in the 8th US Circuit Court of Appeals find that the federal Controlled Substances Act includes industrial hemp within the definition of marijuana, thus leaving hemp under the jurisdiction of the drug agency, Hovland wrote in his 22-page decision.

Backed by a state law permitting industrial hemp production and a friendly state Department of Agriculture, farmers Wayne Hauge and David Monson, the latter also a Republican state legislator, applied for licenses from the DEA to grow hemp. When the DEA failed to act on their applications, they sued in federal court.

Attorneys for the farmers said they are considering whether to appeal the decision. Among possible grounds would be the court's finding, following the DEA, that hemp and marijuana are the same thing.

While recognizing that industrial hemp could be a valuable commercial crop for North Dakota and that the farmers are unlikely to ever get DEA approval of their applications, Hovland wrote that the issue is one best resolved by Congress.

"The policy arguments raised by the plaintiffs are best suited for Congress rather than a federal courtroom in North Dakota," wrote Hovland, noting that a bill -- the Industrial Hemp Farming Act of 2007 -- had been introduced to address the issue. "Whether efforts to amend the law will prevail, and whether North Dakota farmers will be permitted to grow industrial hemp in the future, are issues that should ultimately rest in the hands of Congress rather than in the hands of a federal judge."

"Obviously we are disappointed with the decision," said Eric Steenstra, president of Vote Hemp, a grassroots group working to bring industrial hemp farming back to the US. "The court's decision shows it understands that the established and growing market for industrial hemp would be beneficial for North Dakota farmers to supply. Yet the decision overlooks Congress's original intent -- and the fact that farmers continued to grow hemp in the US for twenty years after marijuana was banned. If the plaintiffs decide to appeal the case, we would wholeheartedly support that effort. We are not giving up and will take this decision to Washington, DC to prompt action by Congress on HR 1009, the Industrial Hemp Farming Act of 2007, which would clarify a state's right to grow the crop," added Steenstra.

While the farmers lost their case, it has apparently prompted the DEA to finally act on an eight-year-old application from North Dakota State University to conduct research on industrial hemp. During oral arguments in the case two weeks ago in Bismarck, the DEA's failure to act on the university's application came under discussion as the court weighed the likelihood of the agency ever responding to the farmers. Now, the DEA has sent a "Memorandum of Agreement" to the university which, if signed by the school, would clear the way for research to get underway.

"It seems our arguments about the DEA's delay in processing NDSU's application have resulted in the agency finally taking positive action to allow research," noted David Bronner, president of the Hemp Industries Association (HIA) and Dr. Bronner's Magic Soaps, a manufacturer of soap and other body care products using hemp oil imported from Canada.

But that's small solace for hemp advocates and North Dakota farmers in the face of a federal court system that has so far been unable to apply common sense to the hemp question.

Medical Marijuana: Invited By "Pro-Family Group," Drug Czar's Chief Scientist Testifies at Tennessee House Hearing

A Tennessee House committee considering a medical marijuana bill heard from a number of witnesses, many of them hostile, including Office of National Drug Control Policy (ONDCP) chief scientist Dr. David Murray, at a hearing this week. Much of the opposition was organized by a "pro-family" Christian organization normally worried about issues such as gay adoption and subtle anti-Christian messages in movies. Reformers were present too, among them Marijuana Policy Project legislative analyst Nathan Miller and Maury County epidemiologist and substance abuse researcher Bernie Ellis, himself a medical marijuana patient.

The hearing came Tuesday before the House Health and Human Services Committee on House Bill 486, sponsored by Rep. Sherry Jones (D-Nashville). The bill would create a state identity card and registry system for terminally ill patients only. But even that was too much for drug war bureaucrats and moral crusaders.

According to a report in The Chattanoogan, Murray, New York anti-drug crusader Steven Steiner, and Nashville oncologist Dr. Kent Shih, who all testified against the bill, all appeared thanks to the efforts of the Family Action Council of Tennessee. Headed by former state Sen. David Fowler, the council says it promotes "the culture that values the traditional family, for the sake of the common good" and is generally concerned with opposing reproductive rights, restricting adult-oriented businesses, and fighting homosexuality.

"We appreciate the willingness of these individuals to come, at their own expense, to educate the committee members about what is really at stake in the debate over 'medical marijuana,'" said Fowler. "Having seen my own mother suffer and die from cancer, I know how much we all desire to see relief for those we love. But we cannot allow the compassion of the average American to overcome good science and good medicine. Nor can we allow that compassion to be manipulated by those who have, as their ultimate agenda, the legalization of marijuana and even other drugs."

Worse yet, Fowler said, the bill "would inevitably lead to increased public consumption of marijuana and make a mockery of our criminal drug laws. What has been observed in other states is that marijuana distribution becomes uncontrollable in society at large even when it is restricted to 'medicinal uses.' With an individual able to produce up to 13,000 joints per year under this bill, it is naïve to think that those joints won't wind up in the wrong hands."

Fowler also cited California's wide-open medical marijuana scene to suggest the Tennessee bill would make enforcement of the criminal law regarding marijuana impracticable. "In North Hollywood, there are now more medical pot clubs than there are Starbucks. In fact, the co-founder of the California medical pot referendum has now said that most of the medical pot dispensaries in California are 'little more than dope dealers with storefronts,'" he added, citing the infamous words of Scott Imler.

Miller told committee members 12 states have medical marijuana laws and there was no evidence they "send the wrong message" to young people. In 11 of those states, Miller pointed out, teen marijuana use had declined.

Ellis, who suffers from degenerative joint disease and fibromyalgia, and who was convicted on federal drug charges for growing medical marijuana for himself and providing it for free to four terminal patients, said that marijuana was once a significant medicine before it was banned 70 years ago. He read testimonials from cancer and AIDS patients who said marijuana helped eased their suffering. "We would not be here urging you to make medical marijuana legal again in the state if it were not safe and effective," Ellis said.

ONDCP's Murray told lawmakers they should not do an end run around the Food & Drug Administration. "My concern is we're doing more harm than good with these measures," he said.

Dr. Shih, who practices in Nashville, told the committee that marijuana is "impractical" and that other legal medications are as effective. "I believe there are safer drugs," he said.

William Benson, assistant director of the Tennessee Bureau of Investigation, also testified. He said the bill could present complications for law enforcement because Tennessee is a leading producer of marijuana.

Rep. Jones, for her part, went after Fowler's characterization of her bill as a stalking horse for legalization. "This is not about making marijuana legal across the state. This is strictly for medical reasons, only to help people feel better," Jones said. "Any suggestion that there might be something hidden in the legislation is absurd."

Former Sen. Steve Cohen (D-Memphis), now a member of the US House of Representatives, tried with no luck to get a medical marijuana bill through in years past. Jones' bill is unlikely to go anywhere this year, although she said she was open to changes that could make it more politically palatable next year. Given the mobilization of the "pro-family" groups and the participation of the drug czar's office, it will be an uphill battle in the Volunteer State. The drug czar has lost before, though, so stay tuned.

Feature: Would-Be North Dakota Hemp Farmers Have Another Day in Court

A pair of North Dakota farmers who are suing the federal government over the DEA's failure to act on their applications to grow hemp will know by month's end if their case will continue, a federal district court judge in Bismarck said Wednesday. That comment from Judge Dan Hovland came at the end of a hearing on a motion by the government to dismiss the case.

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Wayne Hauge, David Monson, ND attorney Tim Purdon
Drug War Chronicle was there, sitting in the back of the courtroom as the farmers, the state of North Dakota, and hemp industry advocates took on a stubborn and recalcitrant DEA and its Justice Department mouthpieces. Besides the plaintiffs and lawyers for both sides, only a handful of hemp advocates and local media reporters were present.

Judge Hovland said he will rule on the motion within two weeks. He also stayed other motions before the court pending his ruling on the motion to dismiss.

Hemp products may be imported to the US, but a DEA ban on domestic production prevents US farmers from growing it, meaning domestic hemp product makers must turn to suppliers in countries where it is legal to grow, including Canada, China, and most of Europe.

Hemp is a member of the cannabis family, but unlike the marijuana consumed by recreational and medical marijuana users, contains only tiny amounts of the psychoactive substance that gets marijuana users "high." But the DEA argues that hemp is marijuana and that the Controlled Substances Act gives it authority to ban it.

The farmers and their attorneys disagree, pointing out that the CSA contains language explicitly exempting hemp fiber, seed oil, and seed incapable of germination from the definition of "marihuana" and are thus not controlled substances under that law. That same language was used to allow the legal import of hemp into the US as a result of a 2004 federal court decision siding with the hemp industry against the DEA.

The lawsuit filed by farmers Wayne Hauge and Dave Monson (who is also a Republican state legislator) is only the latest chapter in a decade-long struggle by North Dakota farmers to grow hemp. The state first passed hemp legislation in 1997, but things really began moving when state Agriculture Commissioner Roger Johnson, a strong hemp supporter, issued the first state permits to grow hemp to Hauge and Monson on February 6. One week later, Hauge and Monson sent a request to the DEA requesting licenses to grow their crops and noting that they needed a response by early April in order to get the crops in the ground this year.

The DEA failed to respond in a timely fashion. According to a March 27 DEA letter to Ag Commissioner Johnson, seven weeks was not enough time for the agency to arrive at a ruling on the request. That letter was the final straw for the North Dakotans, who then sued in federal court to get the DEA out of the way.

Just as the DEA appears determined to stall the hemp applications -- it has been sitting on one from North Dakota State University for eight years -- so the Justice Department seems much more interested in killing the case than arguing it. Wednesday's hearing in Bismarck saw Assistant US Attorney Wendy Ertmer try to make the case go away by arguing that the plaintiffs had no standing to sue the government because they had not been arrested or indicted and by arguing that district court was not the proper venue to hear it.

"The plaintiffs have suffered no injury," said Ertmer.

"Must they expose themselves to arrest to have standing?" asked an incredulous Judge Hovland.

"Generally, yes," Ertmer responded.

Hovland and Ertmer also tangled over the issue of jurisdiction, with Ertmer arguing that challenges to administrative rulings should be handled by federal appeals courts. Hovland seemed to differ, saying that district courts can indeed render declaratory judgements.

Judge Hovland also questioned Ertmer closely over the DEA's failure to act on either the NDSU application or Hauge and Monson's application. "There seems to be no realistic prospect that the DEA will grant the applications," he said.

"Why has it taken eight years and there is still no response to the NDSU application?" he asked. "Is exercising administrative remedies an exercise in futility? I see no prospect the plaintiffs will ever get a license," he said.

Throughout, Ertmer stuck to her guns and the government's official position that hemp is marijuana. She repeatedly referred to industrial hemp as "bulk marijuana" and derided North Dakota legislation that defines hemp as distinct from marijuana as meaningless. "It's still marijuana," she said.

Washington, DC, attorney Joe Sandler, who is representing the plaintiffs, provided a hint of arguments to come as he argued that neither the Supreme Court decision in the Raich case nor an 8th Circuit Court of Appeals case banning South Dakota Lakota Indian Alex White Plume from growing hemp on the Pine Ridge reservation should be controlling in the current case.

Hovland listened attentively, but then, noting that an industrial hemp bill had been introduced in Congress, wondered if a political solution were not the most appropriate. "Isn't the best remedy to amend the definition of industrial hemp under the (federal) Controlled Substances Act?" he asked. "To me, it seems like the easiest solution."

But Hauge, Monson, and their allies in the North Dakota state government and the hemp industry aren't waiting on Congress or the DEA. "If NDSU needed eight years and nothing was resolved, I think the DEA is trying to wait us out," Monson said. "It's a de facto denial of our license and that's part of our frustration."

Hauge and Monson said hemp could be a beneficial crop for North Dakota farmers. "We can start an entire industry with fiber, oil and meal," Monson said. "There are literally thousands of uses. This could be a huge economic benefit for North Dakota."

He is already getting requests for product from people who mistakenly think he's already growing a hemp crop, he said. "At least weekly, someone is calling asking to buy fiber or seed," Monson said. "There is certainly a market, especially on the West Coast and especially in the food industry. We can benefit here in North Dakota from the fiber."

Hauge, who farms a spread near the Canadian border in the western part of the state, said hemp is a potential money-maker, especially when grown in rotation with his durum, pea, and lentil crops. "You can make a profit, it's not just an alternative," Hauge said. "This is a rotation with a profit."

Hauge was hopeful following the hearing, saying he expected a ruling in the plaintiff's favor. "I'm positive about this," Hauge said. "The judge asked good questions and it shows his insight."

If Hovland denies the government motion to dismiss, it's back to court, where the plaintiffs will seek a summary declaration in their favor. But the federal courts move slowly, and planting season is only a few months away.

Hemp On the Menu in Bismarck, North Dakota

Bismarck's Bistro restaurant is known for its fine, grass-fed North Dakota beef and fine wines, but the menu last night included a tasty garden salad with hemp oil dressing. Hemp isn't usually on the menu--at least so far--but the folks at the Bistro added it in honor of the plaintiffs in a case that is being heard at the federal courthouse here this morning. In a little less than an hour, North Dakota farmers Wayne Hauge and Roger Munson, who is also a state senator, and their attorneys, will be in federal court to argue motions in their case against the DEA for refusing to act on their applications to grow hemp. The farmers have the support of the state government, which, in the face of DEA intransigence, has acted to get the DEA out of the way, as well as the hemp industry, some of whose representatives were at the dinner table at the Bistro last night. The attorneys told me last night the most likely outcome of today's hearings is that the judge will not rule immediately, but take the motions under consideration with a ruling to come shortly. The government will ask for a dismissal, but the hemp attorneys think that's unlikely. The hearing will last until about noon, then there will be a post-hearing press availability, which I will attend before heading back to central South Dakota. Yesterday, on the way up here, my gas mileage sucked as I fought bitter winds out of the northwest. Local TV news reported gusts of 74 mph yesterday. The wind is still blowing, but at least this afternoon it'll be at my back as I scoot across the lonely prairies. Look for a feature article on the hemp hearing on Friday.
Location: 
Bismarck, ND
United States

Feature: New, Less Severe Federal Crack Cocaine Sentencing Guidelines Go Into Effect, But Will They Be Retroactive?

Since Congress failed to act by Thursday to stop them, new, less severe federal sentencing guidelines for crack cocaine offenses promulgated by the US Sentencing Commission are now in effect. That means some 4,000 federal crack defendants each year can now count on marginally shorter sentences. For those serving the longest sentences that could mean years off.

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DEA crack cocaine photo
"We're very encouraged about this reform," said Marc Mauer, executive director of the Sentencing Project. "What the Sentencing Commission is doing is terrific and long overdue."

Under federal drug laws adopted by Congress in the mid-1980s, crack offenders are treated much more severely than powder cocaine offenders. Selling five grams of crack carries a mandatory minimum five-year prison sentence, while it takes 500 grams of powder cocaine to merit the same treatment.

The Sentencing Commission, whose job it is to set federal sentencing guidelines, responded to the mandatory minimums by adjusting the guidelines to incorporate them, resulting in guideline sentences that were above the mandatory minimums. The Commission also tried, in 1995, to reduce crack cocaine sentences to match those for powder cocaine, a move that prompted Congress to reverse the Commission's recommendation for the first time in its history. Now, in frustration with congressional failure to deal with the rising clamor over the inequities of the federal cocaine laws, the commission has amended the guidelines to lower the base offense levels for crack convictions.

The differences this time are marginal, but will still make a difference for those facing federal crack time. For example, instead of a sentencing range of 12 to 15 years for a certain drug quantity, defendants will face 10 to 12 years.

But the Sentencing Commission has not yet decided whether to make those changes retroactive, a move that, according to a Sentencing Commission impact analysis published in October, could bring relief to nearly 20,000 crack defendants currently behind federal prison bars -- about 85% of them black. It has the authority to do so; the question is whether it has the political will. The commission recently extended the period for public comment on the retroactivity issue from October 1 to November 1, and has scheduled a November 13 public hearing.

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prison dorm
The response has been intense, with the commission reporting that more than a thousand comments have been received -- most of them favoring retroactivity. That is at least in part because groups like Families Against Mandatory Minimums (FAMM) have launched a campaign to support the commission's long-held position that the racial disparity in cocaine sentences undermines the objectives of the country's sentencing laws.

It's not just FAMM. The American Bar Association, the American Civil Liberties Union, the Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, and numerous other groups have weighed in in support of retroactivity.

"Retroactivity is huge," said Nora Callahan, executive director of the November Coalition, an anti-prohibitionist group that concentrates on drug war prisoners. "If it isn't retroactive, it isn't justice," she said.

"The commission has for years acknowledged the adverse impacts of the current sentencing structure, and that hasn't gone unnoticed," Callahan continued. "The system lacks transparency, consistency, and fairness. That's not the commission's fault, but it is the commission's responsibility to address these issues. Reducing the racial disparities resulting from the crack laws cannot be accomplished without retroactivity. If there is no relief, that will only breed more despair and disrespect for the law," she said.

"I'm encouraged about retroactivity because there have been thousands of comments sent to the commission supporting it," said Mauer. "The commission has both a moral and a practical reason to support retroactivity. In terms of equity issues, there is a strong argument for retroactivity there. The commission has been on record since 1995 recommending reform of the crack penalties, and it seems to us that anyone sentenced since then should certainly be eligible to receive these reductions. If the commission supports retroactivity, it would be entirely consistent with what it has been recommending for years."

The Sentencing Commission's crack sentencing guideline amendment that went into effect this week and its pending decision on retroactivity come as the federal crack laws are under attack from all sides. The Supreme Court is considering them in the recently heard Kimbrough case, and at least three bills to address the crack-powder sentencing disparity are pending in Congress.

"There is more momentum now than at any time since the laws were established two decades ago," said Mauer. "It is that overdue recognition that the laws don't make sense, they're ineffective, and they are having a terrible racial impact. It's very encouraging to see this critique of the crack laws coming from all these different directions. We don't know how it will all play out, but there is a growing consensus that some reform will take place."

Hopefully it will include those already imprisoned under the draconian federal crack laws, some of whom have been behind bars since 1992. If not, the bulging federal prison system could see ominous rumbling like it hasn't seen for a decade -- the last time crack prisoners got their hopes up, only to see them dashed.

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, 2015 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