Drug Use

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Chronicle AM: Mexico Drug War Violence Roils Reynosa, RI MJ Commission Expanded, More... (6/8/17)

A Rhode Island legislative commission studying marijuana legalization gets an expanded membership, including more seats favorable to legalization, cartel infighting leaves a bloody toll in Reynosa, British public health experts call for festival pill testing, and more.

No let up in prohibition-related violence along the Rio Grande. (Borderlands Beat/Creative Commons)
Marijuana Policy

Rhode Island Legalization Commission Gets Expanded. The House Judiciary Committee has voted to expand the membership of a commission studying legalization by adding five more people. The five new members will add heft to the commission's pro-legalization contingent. They include the head of the local NAACP branch, a representative of Doctors for Cannabis Regulation, a criminal defense attorney, and the director of the local chapter of Direct Action for Rights and Equality. This brings the size of the commission to 22. The panel would report recommendations on legalizing marijuana to the General Assembly by March 2018.

Drug Policy

Wisconsin Seeks to Keep Locking Up Pregnant Women Suspected of Drug Use Despite Court Ruling. The state Department of Justice has asked the 10th US Circuit of Appeals to let it continue to apply a law allowing it to detain pregnant women it suspects of drug use even though a US district court judge struck it down in April. State officials first sought an emergency stay to block the ruling while they appeal, but when that was denied Monday, on Tuesday they asked to continue to apply the law to pending cases while it appeals the denial to the US Supreme Court.

International

British Public Health Group Calls for Pill Testing at Festivals. Citing the danger of "serious health harm" from stronger ecstasy in the UK, the Royal Society for Public Health is calling for a program to allow festival goers to test their drugs on site. The society reported than a one-off pill testing pilot program last year resulted in 18% of people bringing their drugs in deciding to through them in the garbage after they turned out to be counterfeit or adulterated.

Mexico Drug War Violence Continues to Roil Reynosa. At least 50 people have been killed in the past month in the Mexican border town of Reynosa, just across the Rio Grande River from McAllen, Texas, according to unofficial counts in local media. Most of the dead are reportedly gunmen from rival factions of the Gulf Cartel, who are fighting for control of local drug trafficking routes, but at least one civilizan -- a taco cart vendor -- is among the dead.

Chronicle AM: Sessions "Surprised" By MJ Support, VT MJ Bill on Last Legs, More... (4/12/17)

The US attorney general admits being surprised that people don't like his stance on marijuana, Vermont's legalization bill is on a death watch, Illinois legalizers gear up, and more.

Who knew marijuana legalization was popular? (senate.gov)
Marijuana Policy

Jeff Sessions "Surprised" By Opposition to His Marijuana Stance. At a speech at Luke Air Force Base in Arizona Tuesday, Attorney General Jeff Sessions pronounced himself "surprised" that his position against marijuana was drawing criticism. "When they nominated me for attorney general, who would have thought the biggest issue in America was when I said, 'I don't think America's going to be a better place if they sell marijuana at every corner grocery store?,'" Sessions asked. "They didn't like that; I'm surprised they didn't like that."

Hawaii Bill Would Roll Back Nation's Toughest Drug Paraphernalia Laws. Under current Hawaii law, possession of a pipe or bong for marijuana is punishable by up to five years in prison and a $10,000 fine, but perhaps not for long. A measure that would decriminalize marijuana paraphernalia, House Bill 1501, passed the Senate Tuesday. The bill has already been approved by the House, but differences in the amount of fines allowed will have to be ironed out in conference committee.

Illinois Legalization Backers Unveil Statewide Coalition. State Sen. Heather Steans (D) and Rep. Kelly Cassidy (D), the legislators behind the marijuana legalization bill, House Bill 2353, announced Tuesday that the bill would get a first hearing next week and that they had formed a statewide coalition, the Coalition for a Safer Illinois to garner public and legislative support.

Vermont Legalization Bill on Verge of Death. The prospects for the Green Mountain State legalizing marijuana this year grow exceedingly dim. Senate leaders said Tuesday their body is extremely unlikely to support a legalization measure, House Bill 170, currently stuck in the House. Proponents in the House had hoped they could get it moving again, but Senate President Pro Tem Tim Ashe said even if it passed the House, it still faced "insurmountable obstacles" in the Senate. The House bill would only legalize possession and personal cultivation -- not commercial marijuana -- while the Senate wants a regulated market.

Medical Marijuana

New Hampshire Medical Marijuana Bills Get Hearing. Measures that would add new qualifying medical conditions and allow patients to grow their plants got a hearing in the Senate Tuesday. The bills have already passed the House. No votes were taken, though.

Chronicle AM: House GOP Wants to Drug Test for Unemployment Benefits, More... (2/15/17)

Vermont's GOP governor throws up an obstacle to marijuana legalization, the House GOP is set to vote to force unemployed workers to take drug tests before receiving their earned benefits, the rightist mayor of South America's largest city turns his back on harm reduction, and more.

House Republicans want laid off workers to have to undergo suspicionless drug tests before receiving their earned benefits.
Marijuana Policy

Oregon Bill Would Limit Pipe, Bong Sales to Pot Shops. Minority whip Rep. Jodi Hack (R-East Salem) has filed a bill that would only allow pot paraphernalia to be sold a licensed marijuana shops. Hack said the measure, House Bill 2556, was aimed at stopping minors from buying the stuff at gas stations, minimarts, and tobacco shops. But smoke shop operators and other retailers are vowing a fight.

Vermont Governor Demands Tough Driving Provisions Before He Will Support Legalization. Gov. Phil Scott (R) says he will not support a legalization bill before the legislature unless it has provisions allowing police to determine is someone is driving while impaired. "Certainly it's still problematic from the standpoint of public safety," said Scott. "I want to make sure that we address those concerns I talked about on the campaign trail in terms of impairment on our highways." He also acknowledged that current tests don't provide clear evidence of impairment, but used that uncertainty to say Vermont should wait and see how other states deal with the issue.

Medical Marijuana

Arkansas Medical Marijuana "Fix" Bills Advance. The House voted Monday to approve two bills aimed at tidying up the state's new medical marijuana law. The measures, both authored by Rep. Doug House (R-North Little Rock) are House Bill 1371, which requires that Arkansans hold 60% ownership interest in pot businesses in the state, and House Bill 1298, which requires that persons, not corporations, hold the licenses. The bills now head to the Senate.

South Dakota CBD Bill Advances. The Senate Judiciary Committee voted Tuesday to approve Senate Bill 95, which would reschedule CBD as a Class 4 drug in the state and remove it from the definition of marijuana under state law. The bill would legalize the possession and use of CBD, but only upon approval by the FDA. That requirement was added in committee.

Drug Testing

House to Vote on Drug Testing the Unemployed. The House was prepared to vote as early as today on House Joint Resolution 42, which would undo Obama administration limits on drug testing people seeking unemployment benefits. Under a compromise to extend unemployment benefits in 2012, the Obama administration agreed to limited drug testing, but only once the Labor Department had identified industries and sectors that "regularly require drug tests." People receiving unemployment benefits are people who have been laid off from work, not people who have been fired for cause, including drug use. People who are fired for cause don't qualify for unemployment benefits.

Arkansas Senate Approves Bill Making Welfare Drug Testing Permanent. The Senate Tuesday approved Senate Bill 123, which would make permanent a welfare drug testing pilot program approved two years ago, even though the pilot program had only two people fail a drug test and 11 decline to take it out of more than 3,000 people who applied for welfare last year. Under the Arkansas law, the children of people who fail a drug test lose their benefits unless their parent undergoes drug treatment at his or her own expense. The bill now goes to the House.

International

Sao Paulo's New Mayor Turns Back on Successful Harm Reduction Program. New Mayor Joao Doria will scale back a successful harm reduction program that provided housing and jobs to people with problematic crack cocaine use and replace it with a coercive and abstinence-based program. The Restart program Doria likes involves the involuntary "hospitalization and confinement of those who are victims of crack so that with medical treatment, they can stay away from drugs," he explained.

Venezuela VP Shrugs Off US Drug Sanctions. The Venezuelan government Tuesday condemned US sanctions imposed a day earlier on Vice President Tareck El Aissami as a "highly dangerous" infringement of Venezuelan sovereignty, while El Aissami himself called it a "miserable and defamatory aggression" that wouldn't distract him from his job. The US accuses El Aissami of facilitating cocaine shipments while he was a provincial governor.

A Possession Arrest Every 25 Seconds: The Cruel Folly of the War on Drugs [FEATURE]

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

Nearly a half century after Richard Nixon inaugurated the modern war on drugs, to criticize it as a failure as so common as to be banal. Yet even as marijuana prohibition falls in some states, the drug war rolls on, an assembly line of criminalization and incarceration, dealing devastating blows to the lives of its victims that linger far beyond the jail or prison cell.

More than 1.25 million arrests for simple drug possession last year. (Creative Commons)
And most of its victims are not capos or kingpins, but simple drug users. According to a new report from Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU), drug possession is the single offense for which the largest number of arrests are made in the US, totaling more than 1.25 million last year, and accounting for more than three-fourths of all drug arrests.

Based on analysis of national and state-level data, as well as more than 360 interviews with drug offenders, family members, past and present government officials, and activists conducted mostly in Texas, Florida, Louisiana, and New York, the 196-page report, "Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States," finds that enforcement of drug possession laws causes extensive and unjustifiable harm to individuals and communities across the country.

The long-term consequences can separate families; exclude people from job opportunities, welfare assistance, public housing, and voting; and expose them to discrimination and stigma for a lifetime. While more people are arrested for simple drug possession in the US than for any other crime, mainstream discussions of criminal justice reform rarely question whether drug use should be criminalized at all.

"Every 25 seconds someone is funneled into the criminal justice system, accused of nothing more than possessing drugs for personal use," said Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the ACLU and the report's author. "These wide-scale arrests have destroyed countless lives while doing nothing to help people who struggle with dependence."

Among those interviewed was for the study was Corey, who is doing 17 years in Louisiana for possessing a half ounce of marijuana. His four-year-old daughter, who has never seen him outside prison, thinks she's visiting him at work.

The harmful consequences of a drug arrest extend far beyond prison walls (ussupremecourt.gov)
Another is "Neal," whose name was changed to protect his privacy. Also in Louisiana, he's doing five years for possessing 0.2 grams of crack cocaine. He has a rare autoimmune disorder and said he cried the day he pleaded guilty because he knew he might not survive his sentence.

Then there's Nicole, held for months in the Harris County Jail in Houston and separated from her three young children until she pleaded guilty to a felony -- her first. The conviction meant she would lose her student financial aid, the food stamps she relied on to feed her kids, and the job opportunities she would need to survive. All for an empty baggie containing a tiny bit of heroin residue.

"While families, friends, and neighbors understandably want government to take action to prevent the potential harm caused by drug use, criminalization is not the answer," Borden said. "Locking people up for using drugs causes tremendous harm, while doing nothing to help those who need and want treatment."

The report also emphasized the now all-too-familiar racial disparities in drug law enforcement, noting that while blacks use drugs at similar or lower rates than whites, they're more than two-and-a-half times more likely to arrested for drug possession and more than four time more likely to be arrested for pot possession. It's even worse in some localities, such as Manhattan, where blacks are 11 times as likely to be busted for drug possession as whites. That amounts to "racial discrimination under international human rights law," the two groups said.

Aside from the vicious cruelty of imprisoning people for years or decades merely for possessing a substance, that drug conviction -- and drug possession, even of tiny amounts, is a felony in 42 states -- also haunts their futures. Drug convicts face the loss of access to social welfare benefits, the stigma of criminality, the disruption of family life, the financial burden of paying fines and fees, and the burden of trying to find work with a felony record. And that harms society at large as well as the criminalized drug users.

And despite tens of millions of drug arrests over the past few decades, with all their collateral damage, the war on drugs doesn't achieve its avowed goal: reducing drug use. There has to be a better way, and Human Rights Watch and the ACLU have something to say about that.

report launch at National Press Club, Washington, DC, 10/12/16
"State legislatures and the US Congress should decriminalize personal use and possession of all drugs. Federal and state governments should invest resources in programs to decrease the risks associated with drug use and provide and support voluntary treatment options for people struggling with drug dependence, along with other approaches," the two groups recommended.

"Until full decriminalization is achieved, officials at all levels of government should minimize and mitigate the harmful consequences of current laws and practices," they added, providing detailed recommendations to state legislatures, police, prosecutors, and other state and local government entities, as well as the federal government.

"Criminalizing personal drug use is a colossal waste of lives and resources," Borden said. "If governments are serious about addressing problematic drug use, they need to end the current revolving door of drug possession arrests, and focus on effective health strategies instead."

Chronicle AM: Supreme Court Takes Up CO Legalization, DEA Can't Keep Track of Evidence, More... (2/19/16)

The Supreme Court will decide if the case against Colorado can go forward, Ohio pot legalizers call it quits for now, Detroit dispensaries are facing a crackdown, a New Jersey bill would criminalize pregnant women who use drugs, and more.

Where did the drugs go? (justice.gov)
Marijuana Policy

Supreme Court Hears Case Against Colorado Legalization Today. The nation's highest court is deciding whether to take up a challenge against the state's legal marijuana law from neighboring Nebraska and Oklahoma. The death of Justice Antonin Scalia last weekend could alter the balance. If the court splits conservative vs. liberal, that would mean a 4-4 vote on the case. In regular cases that would mean that lower court rulings would hold. But the Supreme Court has "original jurisdiction" when states sue each other, meaning that there are no lower court rulings, raising the question of what would happen next.

Ohio Legalization Initiative Campaign Calls It Quits. The group, Legalize Ohio 2016, says it has put its signature gathering drive on hold because it doesn't have any money. The group's political action committee, Ohioans to End Prohibition, had only $268 in the bank. The group has some 80,000 signatures, but needs more than 300,000 valid voter signatures to qualify for the ballot. It says it will instead concentrate on supporting the Marijuana Policy Project's medical marijuana initiative.

Medical Marijuana

Detroit Dispensary Boom Faces Looming Crackdown. The Motor City is now home to more than 200 dispensaries, but an ordinance that goes into effect March 1 is likely to put some of them out of business. The new ordinance insists that dispensaries must be at least a thousand feet from schools, parks, churches, libraries, and other dispensaries, and an unknown number are not going to be in compliance. Don't expect immediate raids, though; dispensary owners will have a chance to apply for licenses, and police said they would give dispensaries some time to comply before moving against them.

Asset Forfeiture

Illinois County Sued for Asset Forfeiture "Racketeering." Three people have filed a federal lawsuit against the Kane County Sheriff's Office alleging it is running a racketeering enterprise by stopping drivers, falsely arresting and searching them, and seizing their cash and cars for the benefit of the county. The suit also names three deputies, including one -- Sgt. Hain -- who is also employed by a private company, Desert Snow, that trains police to prolong traffic stops, conduct searches without warrants or consent, and aggressively seize assets. The plaintiffs allege they were stopped, searched, and had several thousand dollars in cash seized, and that they were booked into the county jail overnight, but never charged with a crime. They were released the next day. Police found no drugs or other suspicious items. The plaintiffs are seeking compensatory and punitive damages

Law Enforcement

Justice Department Inspector General Rips DEA Over Evidence Handling Procedures. The DEA isn't properly documenting, tracking, and relocating the drugs it seizes, compromising the security of the drugs and undermining their usefulness as evidence in court, the inspector general said in findings released Thursday. In nearly one out of every 10 cases, DEA could not even find the tracking documents that are supposed to account for the drugs. "Gaps in the formal documentation of the chain of custody for drug exhibits can compromise the security of the drugs and jeopardize the government's ability to use the evidence in court proceedings," the IG said. The IG also found that more than half of all seizures, DEA forms did not list the amount of drugs seized, making it impossible to know if they had been tampered with. The inspector general made nine recommendations in total to improve the oversight of DEA drug seizures, all of which the agency agreed to address.

New Jersey Bill Would Criminalize Drug Use By Pregnant Women. A trio of Democratic Assembly members have introduced Assembly Bill 774, which would make using drug while pregnant a felony crime. Advocates for pregnant women called the bill "blatantly discriminatory" and said it will deter pregnant women from seeking prenatal care and drug treatment. They also said it was aimed at poor women.

International

Report Criticizes Use of Private Contractors in Colombia Aerial Coca Fumigation. A new report from the United Kingdom's Swansea University analyzes the role of private contractors and finds their primary benefit to the governments involved -- Colombia and the US -- are "secrecy and lack of accountability." "The ineffective policy is of dubious legality, causes damage to people and the environment, and would, if carried out by US military forces, imply the direct involvement of the US in Colombia's civil war, thereby triggering the application of international law as it applies to armed conflict," the report found. Still, aerial fumigation achieved "strategic objectives" of the two governments by displacing rural populations from areas of insurgent influence.

Black Lives Matter Makes A Powerful Connection With Racist Drug War [FEATURE]

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

The Black Lives Matter movement sprung out of the unjust killings of young black men (Trayvon Martin, Eric Garner, Michael Brown), either at the hands of self-styled vigilantes or police. But as the movement blossomed and matured, BLM began turning its attention to a broader critique of the institutional racism behind police violence against the black population.

While the war on drugs plays a central role in generating conflict between the black community and law enforcement, the critique of institutional racism in policing and the criminal justice system necessarily implicates the nation's drug policies. The grim statistics of racially biased drug law enforcement are well-known: blacks make up about 13% of the population, but 30% of all drug arrests; blacks account for nearly 90% of all federal crack cocaine prosecutions; black federal crack offenders were sentenced to far more prison time that white powder cocaine offenders; blacks and other minorities are disproportionately targeted in traffic stop and stop-and-frisks despite being less likely than whites to be carrying drugs, and so on.

People who have been spent careers working in the drug reform movement didn't need the publication of Michelle Alexander's The New Jim Crow to understand the corrosive and screamingly unfair impact of drug war racism on black communities, but the 2010 broadside helped open eyes outside the movement and deepened the visceral impact of drug war racism for those already in the trenches. The book continues to reverberate. And now, Black Lives Matter is bringing a whole new sense of energy and urgency to the issue.

Despite efforts by leading drug reform groups like the Drug Policy Alliance, the world of drug reform remains overwhelmingly white. With marijuana legalization proceeding at a rapid pace and business opportunities emerging, the unbearable whiteness of the marijuana industry is becoming an increasingly high-profile issue.

Last month, Black Lives Matter activists released Campaign Zero, a comprehensive platform for curbing police violence and reforming the criminal justice system in the US. The platform does not explicitly call for ending the war on drugs, but drug war policies and policing techniques are inextricably intertwined with the policing problems (and solutions) it identifies. Campaign Zero calls for decriminalizing marijuana within the context of a broader call for moving away from "broken windows" policing, as well as demanding an end to mass stop-and-frisk and racial profiling policies, both impelled in large part by the drug war. It also calls for an end to "policing for profit," whether through issuing tickets for revenue-raising purposes or through another drug war creation, the use of civil asset forfeiture to seize cash and goods from people without convicting them of a crime (sometimes without even arresting them).

Most of the other Campaign Zero policy proposals regarding police use of force, militarization and community control don't directly address the war on drugs, but because the drug war is so pervasive, it is implicated with them as well. According to the FBI, drug offenses were the single largest category of arrests made, constituting 1.5 million of the 11 million arrests nationwide last year.

How does a mostly white drug reform movement that is already intellectually aware of drug war racism, and that has used it to its advantage in efforts like the Washington, DC marijuana legalization fight and the struggle to roll back harsh mandatory minimum drug sentencing laws, deal with Black Lives Matter? To its credit, the Drug Policy Alliance took a big whack at it during last month's International Drug Policy Reform Conference in suburban Washington. While race and the drug war were an issue at numerous sessions during the conference, a Live National Town Hall on "Connecting the Dots: Where the Drug Policy Reform Movement and the #BlackLivesMatter Intersect" brought a laser-like focus to the topic. And it was a hot topic -- event organizers had to move the event to a larger room at the last minute when it became evident that hundreds of people were determined to be there.

They came to hear from a panel that included BLM co-founder Patrice Cullors, Break the Chains: Communities of Color and the War on Drugs founder and executive director Deborah Peterson-Small, NAACP Legal Defense Fund senior organizer Lumumba Bandele, DPA policy manager Kassandra Frederique, and St. Louis hip-hop artist T-Dubb-O. DPA program director Asha Bandele was the moderator.

People have to open their minds to new paradigms, the panelists warned. "People are so wedded to the institution of policing they can't even imagine something different, something radical," said Cullors. "We have to transform the way our communities have been completely devastated by the war on drugs."

"We are at a historic moment right now, a moment where freedom looks different to people than how it looked before," said Peterson-Small. "Harriet Tubman famously said she could have freed more slaves if the people only knew they were slaves -- that's the psychology of enslavement. What we need now is a conversation about white people who believe they're free when they're not," she said.

"We black people already know we're not free," Small continued. "I worry about the people who believe they're free, the people who think the police are your friends, that they're here to serve and protect you. You have a lot of illusions about the role of police in your lives."

The legacy of slavery lives on all too vividly in the modern criminal justice system, she said.

"Policing is the way white America continues to replicate the cycle of enslavement, the power dynamic on which this society is based. Every time a black man is arrested, it's a reenactment of that dynamic," Peterson-Small said.

"We believe in two incompatible things," she told the audience. "We believe that we live in a free and democratic country where anyone who works hard can succeed, but we also know we live in a country established by and for the benefit of white men. White folks are in denial about that incompatibility, but it's no longer possible to pretend something that's been going on for 200 years hasn't been happening."

Removing the blinders from white people's eyes is part of the struggle, she said. "Our fight for freedom is your fight for freedom. Oppressed people have to be the agent and catalyst of freedom for their oppressors," she told a rapt crowd.

DPA's Frederique talked about the imperative she felt to make the connection between her work as a drug reformer and the broader issue of racism in America in the wake of the Trayvon Martin killing.

"We can't wait to make the connection, I needed to understand how to make the connection," she said, "but I was without words. Now, I locate the work I do as racial justice. If we're going to continue to say that the war on drugs is war on people of color, if we continue to get nontraditional allies and say marijuana legalization is a civil rights issue and how we are winning, I find it hard to believe the idea that we can win the war on drugs without winning the war on people of color. If we think that, we're doing something wrong."

"Drug policy reform needs to systematically disrupt and destroy institutional racism," she said. "If we don't, we can't ask black people to sit at the table."

But as moderator Asha Bandele noted, it's not just white racism that's holding down black people when it comes to drug policy. "Respectable" black people have been a bulwark of the drug war, too. If you just obey the law, you won't get in trouble, they say, looking down their noses at their troublesome brethren.

That's wrongheaded, said Peterson-Small. "If we were having this conversation 135 years ago, people would have said the same thing about the pig laws as we say now about the crack laws," she said. "We've always been in a war for our survival in this country. The only reason we are here is to be a source of economic profit for other people."

Alluding to Poland's WWII-era Lodz Ghetto, Peterson-Small warned that meekly complying with harsh and arbitrary authority to ensure the survival of the community can end up with the elimination of the community.

"We've got to stop drinking that Kool-Aid," she said. "When we as a community are willing to stand up for the brother with a blunt and a 40 the way we did with Trayvon, they won't be able to keep us down."

"Just look at me," said hip-hop attired T-Dubb-O. "I have a dream, too. I don't want to be a hashtag, I don't want to sell drugs, to kill somebody who looks like me. It's the system of white supremacy that puts me in that mind state. When you talk about the war on drugs, that school-to-prison pipeline, that's what gives them that mind-state," he said.

"We don't own no poppy farms, but now we have a heroin epidemic," he said. "The murders you see in Chicago, those killings in St. Louis, that's heroin."

T-Dubb-O took drug war solidarity to the next level, mentioning the case of the 43 missing Mexican student teachers presumably killed by drug gangs working in cahoots with corrupt local politicians.

"We have to have an international vision of the people who are repressed," he said.

In response to an audience question, Peterson-Small got down to nuts and bolts. If we want to dismantle racism, drug policy provides a space to apply harm reduction to the problem.

"The work that really needs to be done is for people to understand that we're not the ones who need fixing," she said. "All of us have been infected by this thing. If we apply harm-reduction principles, we would focus on what is the intervention, not who is the racist. It's a course of treatment, not a weekend of racial sensitivity training."

The National Town Hall is just a beginning. We still have a long way to go.

Chronicle AM: NYC Council Head Says Legalize, UT Drug Defelonization Move, Burma Opium, More (11/14/14)

New York's city council speaker says legalize it, there are medical marijuana moves in Connecticut and Maryland, a Utah commission suggests defelonizing drug possession, a Peruvian petition seeks to end arrests for drug use, which is not a crime in Peru, and more. Let's get to it:

image from the Peruvian petition drive campaign to stop illegal drug use arrests
Marijuana Policy

New York City Council Speaker Says Legalize It. Melissa Mark-Viverito, speaker of the New York City Council, has come out for marijuana legalization. "It's not something we can just do randomly, but with a thought process, and looking how it's being implemented in other areas. But I do support the legalization of marijuana," she said in response to a reporter's question. "States are speaking. Based on the conversations that we see happening nationally, and how people feel about it, I think that it's just something that is appropriate at this time." At least four other council members, including Rafael Espinal, Stephen Levin, Mark Levine, and Jumaane Williams, have also pronounced in favor of freeing the weed.

Medical Marijuana

San Diego Moves Ahead on Shutting Down Unpermitted Dispensaries. San Diego officials forced yet another unpermitted dispensary to shut down Thursday after shutting down four others three weeks ago. About 50 unpermitted dispensaries still operate in the city, which is going to allow permitted dispensaries to begin operating early next year.

Maryland Commission Approves Medical Marijuana Regulations. The commission charged with drafting the regulations approved them Thursday, but they still need to be approved by a legislative panel and the state's health secretary. The approval came after a delay last month, when some critics said fees for growers and dispensaries were too high. They still ain't cheap: Fifteen licensed growers will have to pay $250,000 every two years, while dispensaries will have to pay $80,000 every two years. The program isn't expected to be operational until 2016.

South Carolina Senator Will Introduce Medical Marijuana Bill. State Sen. Tom Davis (R-Beaufort), who sponsored a successful low-THC, high-CBD medical marijuana bill this year, said Thursday he will sponsor a full-fledged medical marijuana bill next year. He made the announcement at a meeting of the state Medical Marijuana Study Committee at Clemson University.

Connecticut to Consider Adding New Qualifying Conditions for Medical Marijuana. The state Department of Consumer Protection is considering whether to expand the state's quite restrictive list of qualifying medical conditions to include sickle cell anemia, Tourette's syndrome, "failed back syndrome," severe psoriasis, and psoriatic arthritis. The Board of Physicians will hold a public hearing on the matter on November 26. Click on the title link for more information.

Asset Forfeiture

The Orange County Register Calls for Federal Asset Forfeiture Reform. In a Thursday editorial, The Orange County Register wrote that one way a divided Congress could show some bipartisanship is by passing asset forfeiture reform legislation. "Civil asset forfeiture hasn't made many headlines until this year. But its very obscurity has bred a degree of corruption that badly undermines the integrity of law enforcement -- from local police all the way to the FBI," the newspaper noted, calling the process "rife with abuse." The suburban Los Angeles daily, California's 5th largest circulation newspaper, also said asset forfeiture too often resembled "literal highway robbery -- committed by the very people charged to serve and protect." The Civil Asset Forfeiture Reform Act (HR 5212) is pending in the Congress.

Harm Reduction

Report on the 10th National Harm Reduction Coalition Conference. The Harm Reduction Coalition's 10th national conference took place late last month in Baltimore. Click on the title link to get a lengthy and informative report on it from the North Carolina Harm Reduction Coalition's Tessie Castillo.

Sentencing

Utah Crime Commission Calls for Defelonzing Drug Possession. In a report released Thursday, the Criminal and Juvenile Justice Commission rolled out a package of recommendations for controlling prison population growth, including making first-time drug possession a misdemeanor instead of a felony. All of the report's recommendations were approved unanimously by the commission. Now, it will be up to the legislature to enact them.

International

Another Year of Rising Opium Production in Burma. The Irawaddy Journal and Magazine has a lengthy report on this year's opium crop in the Shan state. Production is up for the sixth year in a row, and Burma now accounts for 18% of global opium production, according to the UN Office on Drugs and Crime (UNODC). "We could not grow any other plants here to make a living, except poppy. If they [the government] ban it, we will have no other jobs," said a 50-year-old villager. A good read; check it out.

Petition Urging Peruvian Government to Stop Arresting People for Drug Use, Which is Not a Crime. Drug use is not a crime under Peruvian law, but more than half of all drug trafficking charges are for drug use -- not drug trafficking. Activists in Peru have been working to get police to actually obey the law and not arrest drug users, but so far to no avail. Now, there is a petition directed at Interior Minister Daniel Urresti and the National Police, urging them to abide by the law. Click on the link to sign it. They are seeking 25,000 signatures, but only have 526 so far. Okay, make that 527 now.

Saudi Arabia Executes Another Drug Offender, 22nd This Year. A Pakistani man convicted of smuggling heroin into the kingdom in his intestines was beheaded in Kharj Thursday. Niaz Mohammed Ghulam Mohammed was the seventh person beheading for drug trafficking this month, and the 22nd of the year. Drug offenders account for about 40% of all Saudi executions so far this year.

Chronicle AM: AR Initiative Rejected, SWAT Lobby Gears Up, Israel Bans New Synthetics, More (8/22/14)

It's back to the drawing board for an Arkansas legalization initiative, we have a pair of Minnesota court cases, the Michael Brown killing starts bleeding into drug-policy related areas, Israel bans new synthetics, and more. Let's get to it:

history repeats itself (image is of and infamous 1914 NYT editorial)
Marijuana Policy

Arkansas Attorney General Rejects Wording for Legalization Initiative. Attorney General Dustin McDaniel has rejected the proposed wording for a prospective 2016 legalization initiative, the Cultivate Hemp and Regulate Marijuana Amendment. The name and ballot title are ambiguous and have "misleading tendencies," McDaniel wrote. Read the opinion here.

Fewer Than One in Five New Yorkers Oppose Marijuana Reform. According to a new Quinnipiac Poll, only 19% of New Yorkers oppose legalizing marijuana for personal or medical use, while 44% say it should be available for medical purposes and another 35% say it should be legal for personal use.

Asset Forfeiture

Minnesota Supreme Court Rules Evidence from Illegal Search Can't Be Used in Asset Forfeiture Proceedings. The state high court ruled Wednesday that evidence derived from a traffic stop that was determined to be unlawful cannot be used to seize someone's property. The court held that Fourth Amendment proscriptions against unlawful search and seizure apply to civil cases as well. The case is Daniel Garcia-Mendoza v. 2003 Chevy Tahoe.

Drug Testing

Minnesota Drug Testing Law's Worker Protections Don't Extend Outside State, Federal Court Rules. The state's Drug and Alcohol Testing in the Workplace ACT (DATWA) doesn't apply to state residents working or applying to work outside the state, a federal court has ruled. DATWA provides employees with the right to challenge positive drug test results and to try to seek treatment before being fired, but in Olson v. Push, Inc, the court ruled that those protections did not apply to drug tests taken for employment outside Minnesota.

Law Enforcement

SWAT Lobby Gears Up to Keep Access to Surplus Military Equipment. In the wake of unrest in Ferguson, Missouri, after the police killing of Michael Brown, the practice of equipping local law enforcement with surplus military equipment has come under significant criticism. Now the "SWAT lobby," in the form of the National Tactical Officers Association, is moving to ensure that access to military hardware remains unimpeded. It sent a mass email to all congressional offices lamenting the situation in Ferguson, but the bottom line was that police need that surplus military equipment.

Race

The Return of the Drug Crazed Negro. Reason magazine's Jacob Sullum has penned a piece noting the revival of a century-old racist trope -- that of the drug-crazed black man -- in the wake of the police shooting of 18-year-old black man Michael Brown in Ferguson, Missouri. Sullum notes that conservative commentators have been quick to speculate that he was hopped up on PCP or some other drug that made him crazy enough to attack a cop. Autopsy results say he had smoked marijuana.

International

Young Europeans Split on Marijuana Legalization. The European Union's polling arm Eurobarometer has found Europeans 15 to 24 divided on legalization. According to its poll of 13,000 respondents, 45% favored marijuana legalization, with 53% opposed. European youth was much more unified when it came to other drugs -- more than 90% said drugs like cocaine, ecstasy, and heroin should be illegal.

Israel Bans 10 New Synthetic Drugs. Health officials in Israel have banned 10 new synthetic drugs, or "kiosk drugs," as they are known there. They include synthetic cannabinoids, stimulants, and hallucinogens.

ATF's Operation Gideon Raises Questions of Fairness, Justice, and Race [FEATURE]

Special to Drug War Chronicle by Clarence Walker, cwalkerinvestigate@gmail.com

Part I of a series on the ATF's Operation Gideon, targeting inner city "bad guys" with drug house robbery stings

Early in May, a panel of judges from California's 9th US Circuit Court of Appeals denied petitions for an "en banc" hearing that would have allowed the full court to consider overturning long prison sentences for four would-be robbers seduced by an informant into believing they were about to rip-off a stash house loaded with drugs.

The stash house was fictional, those drugs never existed, and the brains behind the plot were not criminals, but federal agents.

The denial of the petition was not a unanimous decision, and it revealed deep fissures on the appeals court. Dissenting judges argued that the practice of enticing poor young men into robbing stash houses raised questions not only of fair play, but also of constitutionality. The dissenters were particularly concerned that federal agents targeted primarily minority neighborhoods filled with desperate, unemployed young men tempted by the lure of fast cash.

"The sting poses questions of whether the government intentionally targets poor minority neighborhoods, and thus, seeks to tempt their residents to commit crimes that might well result in their escape from poverty," Justice Stephen Reinhardt wrote in a blistering dissent. He also called it "a profoundly disturbing use of government power that directly imperils some of our most fundamental constitutional values."

The case involved four Phoenix men -- Cordae Black, Kemford Alexander, Angel Mahon and Terrance Timmons -- who were convicted in 2010 on charges of conspiracy to distribute more than five pounds of cocaine, as well as federal firearms charges, for a fake drug rip scheme set up by the Bureau of Alcohol, Tobacco and Firearms (ATF). All four are now serving prison sentences of 13 to 15 years.

Even though federal appeals court judges have joined defense attorneys in calling the ATF drug rip schemes "outrageous conduct," they are not an anomaly, but are instead part and parcel of ATF's Operation Gideon, a nationwide program. The ATF, federal prosecutors, and the Phoenix police said a press release announcing a pilot sweep that rolled up 70 people, including Cordae Black and his crew, that Gideon "involved the deployment of some of ATF's most experienced undercover operatives to team with local agents and police investigators by conducting sting investigations involving violent home invasion crews."

According to a USA Today investigative report, as of last year, the feds had already locked up more than a thousand people who its agents had enticed into conspiracies to rob fake drug stash houses. And it's not just the AFT. The DEA often uses the fake drug rip-off schemes, as well.

US 9th Circuit Court of Appeals Judge Stephen Reinhardt
The argument at the 9th Circuit in the Phoenix case centered on entrapment and whether ATF agents illegally enticed the defendants into the crime through "outrageous government conduct" beyond that allowed by entrapment doctrine.

Relying on the US Supreme Court's 1973 ruling in US v. Russell, where the court upheld such schemes if the defendant showed a predisposition to commit the offense, 9th Circuit Judges Susan Graeber and Raymond Fisher rejected claims of entrapment and outrageous conduct by the agents, and argued that the reverse sting was within legal boundaries of law enforcement tactics, which includes officers working undercover to infiltrate criminal organizations.

Fisher and Graeber said the agents' actions were reasonable when they offered the men the opportunity to make money by committing a drug robbery. The pair also held the defendants failed to show they lacked "predisposition to commit the offense."

That provoked a sharp retort from a second dissenter as well, Judge John T. Noonan.

"Today our court gives approval to the government tempting people in the population at large currently engaged in innocent activity, and leading them into the commission of a crime, which the government will then prosecute," he wrote.

It's not just the 9th Circuit. Fake drug stash operations that only target inner-cities have ignited a firestorm of controversy, including other caustic remarks from the federal bench.

"There is a strong showing of potential bias in the robbery stings," US District Court Judge Rueben Castillo wrote in an order last year. Castillo noted that since 2011, federal agents have used such stings to lock up at least 26 people in the Chicago area -- and that all of them were either black or Hispanic.

Federal officials retort that they are not engaging in selective prosecution based on race, but are going where known felons often commit violent home invasion-type drug robberies.

But defense attorneys argue that the operations target people who weren't doing anything, entice them with visions of easy wealth, set them up, and then throw the book at them.

"What the ATF is doing is basically targeting low-level criminals for high-level crimes," said attorney Tara Loveland, who is representing Cordae Black on appeal.

The case against Black and his codefendants raises serious questions about racial profiling. According to evidence introduced at the original trial -- and subsequently heard again at the re-hearing (via the appellate brief) -- ATF Agent Richard Zayas had a paid informant travel from Miami to Arizona to find "bad guys" in a "bad part of town."

That prompted Judge Reinhardt to say that Zavas' instructions obviously meant the informant should recruit people from minority communities. The targeting of the fake drug house robbery scheme was a practice "that creates the appearance of selective prosecution based on race and wealth inequality," he said.

"It is a tragedy when ATF has to drum up a crime that didn't exist," attorney Eugene Marquez, who represented Cordae Black at trial, told the Chronicle.

Chicago Operation Gideon suspect William Alexander just before his arrest (atf.gov)
Defense attorneys who represented the defendants on appeal argued that "fake drug stings initiated by ATF amount to entrapment because there were no drugs -- and none of the defendants would have agreed to participate had it not been for a paid snitch and the ATF's scheme of enticing the men to arm themselves with weapons to rip-off a large quantity of drugs that automatically brings severe mandatory prison sentences."

"Our defense was outrageous conduct and sentencing entrapment," Marquez explained.

But 9th Circuit majorities weren't listening to the defense attorneys. In a separate ruling, they reiterated their original decision denying defense counsel's motion to overturn the original convictions.

"There is no bright line dictating when laws enforcement conduct crosses the line between acceptable and outrageous," Judge Raymond C. Fisher wrote for the majority. Outrageous government conduct can only occur when government agents engineer and direct a "criminal enterprise from start to finish -- or creating new crimes merely for the sake of pressing criminal charges," he argued.

Judge Reinhardt again dissented.

"In this era of mass incarceration, in which we already lock up more of our population than any other nation on earth, it is especially curious that the government feels compelled to invent fake crimes and imprison people for long periods of time for agreeing to participate in them -- people who but for the government's scheme might not have ever entered the world of major felonies," Reinhardt wrote.

If getting set up and convicted in a sting weren't bad enough, the defendants also got hit with longer sentences based on the imaginary amounts of drugs that were going to rob. Marquez explained that his client, Cordae Black, was hit a 10-year mandatory minimum because the ATF pretended the imaginary drug house had more than five kilos of cocaine in it.

But while jurists and defense attorneys grumbled, the ATF was pleased with its handiwork.

Arizona ATF agent Thomas Mangan welcomed the convictions of Black and his partners, as well as appeals court rulings upholding them. The stings had resulted in over 70 Arizona arrests, and the crew had "ample opportunity to back out, but had remained committed to carry out the robbery until they were arrested," he said in the Operation Gideon press release.

While court-approved enticement has a lengthy pedigree in this country, so does "outrageous government conduct" that can take it over the line into entrapment. A classic case is that of legendary automaker John Delorean, who was acquitted of cocaine conspiracy charges in 1984, even though prosecutors had Delorean on videotape wisecracking and saying that the cocaine stuffed inside a suitcase was "good as gold."

But Delorean's attorney was able to convince the jury that the FBI had leaned on a convicted drug smuggler, James Hoffman, to draw Delorean into a trap, complete with thinly-veiled threats if Delorean backed out of the sting.

"Without the government there would be no crime," Delorean's attorney told the jury.

Taking Down the Phoenix Crew

Putting together a fake drug robbery stings is like assembling the cast of a gritty crime drama. The Phoenix reverse sting worked against Cordae Black and his eager crew in typical take-down fashion. ATF agent Richard Zayas recruited a paid informant to frequent seedy bars and diffferent places in the "bad part" of town -- to find receptive players to rip-off a drug house. Zayas's informant met Shaver "Bullet" Simpson, a big-talking guy ready to play.

Zayas's informant duped Simpson into believing he had a friend with information on a stash house filled with drugs worth thousands of dollars. Simpson boasted he could find some tough-ass homies to do the job. Agent Zayas reminded Simpson that everyone involved with the plot must keep their mouths shut, and not talk about what goes down.

"My people straight," Simpson replied. "I hate snitchers."

Following the informant's meeting with Shaver Simpson, he introduced "Bullet" to undercover ATF Agent Richard Zayas, who fronted himself off as a disgruntled drug courier interested in having someone rob a dope house owned by Zayas's supposed cartel's connections. Zayas informed Simpson that Simpson's homeboys would need the "balls to do it because this ain't no easy lick."

Simpson then posed a question to Zayas: "My goons want to know whether they need to kill the people in the house."

Zayas responded nonchalantly that he "didn't care what they did as long as they took care of business."

Hooked like a fish, Simpson swallowed the bait, "Don't worry Daddy," he told Zavas. You got a real Jamaican (expletive), that's my family business; it's where I worked; I got this shit down to a science, man."

The beat goes on. Press conference announcing latest round of Operation Gideon busts, Stockton, CA, 2014 (atf.gov)
The trap was set. Shaver Simpson, the braggart, strangely, didn't show up for the showdown. But the work crew did. Once Cordae Black, Terrence Timmons, Kemford Alexander and Angel Mahon showed up at the designated meeting spot, the ATF agents and local police took the hapless crew down with guns drawn. A search of their vehicles produced four loaded weapons (which, according to the appellate brief, Zava insisted the crew have with them).

Despite Simpson's bravado about not being a snitch and hating such creatures, he pounced on the first opportunity to become one by testifying against his four homies. Still, at trial, Simpson accused ATF agent Richard Zayas of pressuring him to quickly find as many guys he could find to pull off the robbery.

Same Sorts of Cases, Different Results

In another Operation Gideon case, Chicago native William Alexander, a street-level crack dealer and beauty school dropout, got stung in a fake drug robbery on February 23 2011, along with his cohorts Hugh Midderhoff and David Saunders. All three were convicted of possession with intent to deliver five or more kilos of cocaine, along with firearms charges. To win a new trial, Alexander's lawyer argued on appeal that ATF's systematic strategy of sending informants into "bad parts of town" to recruit "bad people" meant that racial profiling played a vital role in Alexander's case.

His appeal brief noted that in the 17 stash house robbery stings prosecuted in the Northern Illinois Federal District since 2004, blacks were disproportionately represented. Of the 57 defendants, 42 were black, eight Hispanic, and seven white.

His appeal was denied -- because he couldn't show that the ATF and prosecutors intended racially disparate outcomes.

"To establish discriminatory intent, Alexander failed to show the decision makers in (his) case acted with discriminatory purposes -- and that the Attorney General and US Attorneys has broad discretion to enforce federal criminal laws," the appeals court held.

Antuan Dunlap and his heavily-armed posse-mates, Cedrick Hudson and Joseph Cornell Whitfield, had better luck. They were released from jail in an ATF drug house rip-off scheme when California US District Court Judge Otis Wright ruled the ATF crossed the line into entrapment.

Prosecutors had argued that Dunlap "manifested his propensity to commit robberies" by claiming to have engaged in similar activities in the past, and thus, "the defendant's words justified the reverse sting."

But in a 24-page stinging rebuke, the angry judge said the ATF engaged in "outrageous conduct" by enlisting people in "made-up crime" just so they could bust eager volunteers in drug stings. "Society does not win when the government stoops to the same level as the defendants it seeks to prosecute -- especially when the government has acted solely to achieve a conviction for a 'made-up' crime, Wright wrote. He also noted that such tactics "haven't brought down the crime rate nor taken drugs off the streets."

But the ATF and DEA fake drug rip-off schemes remain in full-swing across the nation despite the brewing controversy over tactics some defense attorneys and jurists regard with loathing. If the Justice Department will investigate whether the stings are aimed disproportionately at minority communities remains to be seen. Meanwhile, the Phoenix crew sits in federal prison, while their attorneys plan an appeal to the US Supreme Court.

Next in the series: ATF's Deadly Takedown in Fake Drug Robberies.

Tennessee's Scary New Law Criminalizing Drug-Using Pregnant Women [FEATURE]

When -- despite the objections of medical groups, reproductive health advocates, and even the drug czar's office -- Tennessee Gov. Bill Haslam (R) signed into law Senate Bill 1391 late last month, the Volunteer State became the first in the nation to pass a law criminalizing pregnancy outcomes. Other states, such as Alabama and South Carolina, have used fetal harm laws to charge drug-using pregnant women, but Tennessee is the first to explicitly criminalize drug use during pregnancy.

Passed in the midst of rising concern over prescription drug and heroin abuse and aimed, its proponents said, at protecting babies, the law allows women to be criminally charged with an "assaultive offense for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug or for criminal homicide if her child dies as a result of her illegal use of a narcotic drug taken while pregnant."

Felony assault can earn you up to 15 years in prison in Tennessee. And while some prosecutors have said they will only file misdemeanor charges, that's not written into the law.

Proponents cited recent reports that the number of babies being born addicted to drugs is on the rise. Such infants are diagnosed as having Neonatal Abstinence Syndrome, or withdrawal symptoms after being exposed to opiates in the womb.

"Over the past decade, we have seen a nearly ten-fold rise in the incidence of babies born with NAS in Tennessee," the state Department of Health reported. Infants with NAS stay in the hospital longer than other babies and they may have serious medical and social problems."

But the state Health Department notwithstanding, experts in the field say that NAS doesn't actually have long-term effects, it's not accurate to call newborn infants "addicted," and that misrepresenting matters by vilifying pregnant women isn't helpful. In fact, more than 40 of them said so in an open letter last month.

More generally, leading medical groups, including the American Medical Association, the American Nurses Association, the American Academy of Pediatrics, and the American Public Health Association reject the prosecution and punishment of pregnant women who use drugs. The groups mentioned above and many others said so in this 2011 document.

A coalition of medical, public health, women's rights, and social justice groups worked to oppose the bill as it made its way through the legislature, and then to convince Gov. Haslam to kill it. A petition with over 11,000 signatures urging him to veto the bill went to his office late last month. More than two dozen organizations devoted to ensuring families have access to health care likewise urged a veto, as did the American Association of Pediatrics, the National Perinatal Association, and International Doctors for Healthier Drug Policy.

Even acting drug czar Michael Botticelli raised a warning flag.

"Under the Obama administration, we've really tried to reframe drug policy not as a crime but as a public health-related issue, and that our response on the national level is that we not criminalize addiction," he said during a visit to Nashville as the governor pondered. "We want to make sure our response and our national strategy is based on the fact that addiction is a disease. What's important is that we create environments where we're really diminishing the stigma and the barriers, particularly for pregnant women, who often have a lot of shame and guilt about their substance abuse disorders."

But none of that mattered. On April 29, Haslam signed the bill into law.

"In reviewing this bill, I have had extensive conversations with experts including substance abuse, mental health, health and law enforcement officials," Haslam said in a statement. "The intent of this bill is to give law enforcement and district attorneys a tool to address illicit drug use among pregnant women through treatment programs."

"Today, the Tennessee governor has made it a crime to carry a pregnancy to term if you struggle with addiction or substance abuse," Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project, said in a statement in response to the signing. "This deeply misguided law will force those women who need health care the most into the shadows. Pregnant women with addictions need better access to health care, not jail time."

The statewide coalition Healthy and Free Tennessee also lambasted the new law.

"We are very sorry to see that Governor Haslam let an opportunity to do the right thing slip through his fingers," said Rebecca Terrell, the group's chairwoman."The experts could not have been clearer: this law is bad for babies and bad for Tennessee."

"This law says that women are to be held criminally accountable for the outcomes of their pregnancies," said Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women, which was part of the coalition fighting the new law. "It essentially creates a system of separate and unequal rights. Drug ingestion is not a crime in Tennessee, just possession, and now, only pregnant women are criminalized for ingesting. They can be surveilled and punished by the state in ways different from other people. The law also treats fertilized eggs or fetuses as if they were people independent of the pregnant woman," she told the Chronicle.

Gov. Bill Haslam (tn.gov)
"It's the wrong response to the problem of addiction," said Diaz-Tello. "It's a health problem that is not responsive to threats and punishment. What kind of society do we want to be? Do we want to punish the people most in need of help and support? These are women largely living in poverty, women of color, who are already made vulnerable by our social policies, and now we hold them solely responsible without looking at society and what else is going on leading to pregnancy among addicted people and this horrible punitive response."

Even framing the issue as "pregnant women taking drugs" is somewhat misleading, said Diaz-Tello.

"We often make the mistake of thinking of people using drugs during pregnancy as pregnant women who became addicted to drugs when it should be the other way around," she said. "The reasons for addiction are complex and often gender-based. Women who have experienced violence and trauma are often self-medicating, and there is a lot of unresolved pain and trauma out there. And half the pregnancies in our country are unintended, which disproportionately affects women on the margins. It's not like someone wakes up pregnant one day and decides they want to do drugs."

The law will not operate in a vacuum. Tennessee is one of those states that has refused to expand Medicaid and has rejected the Affordable Care Act. It is more difficult for poor women there to get access to health care services, including drug treatment, but now it will be easier to prosecute them.

"This is definitely for the most part going to affect poor, marginalized, predominantly rural women," said Cherisse Scott, founder of SisterReach, a Memphis-based group working for reproductive justice for women and girls in the city and the Mid-South area. "That's because of the many barriers they face. Many rural areas just don't have the facilities to offer help to these women."

Scott also bemoaned the criminalization of pregnant women who use drugs under the law, a process of stigmatization and punishment only made more severe for women lacking resources.

"Low income women, women of color, already have issues navigating the court system, and many don't have any kind of support system," she said. "When their children are taken, they don't have the resources to get them back. And the other piece of this is that jails aren't hospitals or treatment centers. They don't offer women an opportunity to be properly rehabilitated from drug use."

And then there's the aftermath of a criminal conviction.

"If you look at this through the lens of racial and reproductive justice, how does a woman with this on her record bounce back, how does she get a job? With a criminal background, she will be further locked out," said Scott. "These are the kinds of barriers and issues that will ultimately hurt the mothers of Tennessee. We can't support legislation that uses criminalization as a means of rehabilitating people," she told the Chronicle.

"Our lawmakers had good intentions, but they didn't think it through," said Scott. "They seem to be very ready to separate mothers and children as a way of helping, and we don't see it like that, especially when there are rehab programs that keep mother and children together."

The new law is also generating alarm with advocates for people who use opioid maintenance therapy to deal with opiate addictions. Methadone and buprenorphine maintenance are the gold standard for treating pregnant women addicted to narcotics. While state health officials have said they interpret the law to mean that a pregnant woman on methadone maintenance would not be in violation of it, there is no language in it that explicitly says that.

"I asked the governor to veto the bill because that exclusion wasn't made," said Mark Parrino, president of the American Association for the Treatment of Opioid Dependence. "The real question is whether some representative for the attorney general's office or a DA or child protection services interprets it that way. This is a potential problem. When you're talking about child protection, it's not unusual for a judge or child protection worker to say to a pregnant mom 'You can't be on methadone.' I hope this law will not be used as a method of forcing maintained patients out of care."

While babies born to opiate-addicted women can suffer from Neonatal Abstinence Syndrome, or withdrawals, they can be treated for that, mainly by slowly tapering the dose of opiates. But, Parrino said, not all pregnant mothers on methadone maintenance have babies with the syndrome, and consequences for fetuses can be serious if mothers are forced off opiates during their pregnancies.

"What happens to a fetus if you force mom to end her medication?" he asked. "In the first trimester, a sudden decrease can be harmful to the fetus. There could be spontaneous abortion. It's in the literature. That's why laws like this raise concerns in people who have some knowledge about how pregnant women are treated."

Parrino, too, saw race a playing a role, but in an unexpected way.

"What I am seeing for the first time in 30 years is a real interest by elected officials, many US senators and governors and legislators, who can't wrap their heads around why white teens and 20-somethings from middle class families in the suburbs and rural areas are shooting heroin," Parrino observed. "Those elected officials are right to be worried. This legislation in Tennessee is a result of those dynamics."

While the law may have been passed with the best motives, "the problem is the criminalization aspect," said Parrino. "Even if it can be explained as having a reasonably good intention of getting pregnant women not to use drugs and go to treatment, you are unwittingly subverting that goal by saying that being in methadone maintenance might be seen as not complete treatment. That uncertainty is creating anxiety."

The new law is set to go into effect on July 1, but efforts are already underway to block it and, barring that, to mitigate its effects.

"We're still trying to figure out the best plan of action," Scott said. "We want to figure out the best way to support women who are going to be victims of this policy. At the grass roots level, that means education, awareness, getting the word out through rehab centers to let the women know this is coming. Then we have to figure out what is the legal strategy to try to change this law. We're working on it."

"We're thinking about a legal challenge, especially on constitutional grounds," said Diaz-Tello. "We have worked with public defenders in Tennessee and other states on challenging similar laws on constitutional grounds. There's also the possibility of an affirmative suit to get the law enjoined. It would be ideal to stop this law before anyone gets arrested under it."

Barring the successful blocking of the law, drug-addicted pregnant women in Tennessee will face the tender mercies of the criminal justice system. But not all of them, of course.

"Race and class plays a role as always," said Scott. "Poor mothers go to jail; mothers with access to more resources may not be penalized at all. Women who have access to health care and can afford private prenatal care and treatment will get treatment; women who have no alternative but public aid or a public health clinic will be disproportionately impacted as always. Nothing's changed as far as race and class."

TN
United States

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