Court Rulings

RSS Feed for this category

Judge Challenges Nevada Medical Marijuana Restrictions

In a ruling Friday, a Nevada district court judge ruled that the state's laws for the distribution of medical marijuana were unconstitutional because they seemed designed to thwart their ostensible purpose. The ruling came in the case of two dispensary operators, Nathan Hamilton and Leonard Schwingdorf, who had been charged with drug trafficking for taking money to grow marijuana for patients.

Cathedral Gorge State Park, Nevada
Clark County District Court Judge Donald Mosley dismissed the charges against them, calling the law "ridiculous" and "absurd." Mosley said he was "not a proponent of medical marijuana," but that his job was to uphold the state constitution.

"It is apparent to the Court that the statutory scheme set out for the lawful distribution of medical marijuana is either poorly contemplated or purposely constructed to frustrate the implementation of constitutionally mandated access to the substance," Mosley wrote in his decision.

Voters approved a constitutional amendment allowing patients to use medical marijuana in 2000. That amendment charged the legislature with crafting "appropriate methods for supply of the plant to patients authorized to use it."

But the legislature didn't do that. While the law allows patient cardholders to possess and grow small amounts of marijuana, other state laws make it illegal to buy or sell it.

Although a number of dispensaries opened up in Las Vegas, they have mostly vanished now, after police and prosecutors made several dozen arrests of dispensary operators who charged set prices and thus received "consideration." Such a legal situation was "mind-boggling," Judge Mosley wrote.

"The law falls short however in providing a realistic manner in which a qualified purchaser and a qualified distributor of marijuana may function, thus frustrating the clear intent of the Nevada Constitutional Amendment," the judge's decision read.

Mosley found that disallowing any payment for the marijuana, as well as limiting anyone from possessing more than one what patient can possess, was simply unworkable.

"It is absurd to suppose that from an unspecified source 'free' marijuana will be provided to those who are lawfully empowered to receive it," Mosley wrote. As to the limited amounts, "This arrangement is of course ridiculous and in effect would make impossible any commercial distribution of medical marijuana," Mosley said.

Another Clark County judge has ruled differently, setting up a showdown over the law at the state Supreme Court. District Judge Douglas Smith denied a motion to dismiss another Las Vegas case even as he acknowledged that the legislature had not adequately addressed "methods of supply of medicinal marijuana to patients authorized to use it."

Las Vegas, NV
United States

Police Need Warrant for GPS Tracking, Supreme Court Rules

The US Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the decision was narrow, leaving unanswered lingering questions about citizens' expectations of privacy in an age of rapid technological advance.

The ruling came in US v. Jones, in which Washington, DC, nightclub owner Antoine Jones was convicted of drug trafficking offenses based in part on evidence developed after police placed a GPS device on his vehicle and monitored his movements for 28 days. (See the Chronicle's earlier coverage of the Antoine Jones case here.) Police had sought a warrant to place a GPS tracking device, but that warrant expired before the device was actually placed on Jones' vehicle.

Writing the majority opinion, Justice Antonin Scalia said police needed a search warrant before attaching a GPS device to a suspect's vehicle. He was joined in the opinion by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment's protection against unreasonable searches and seizures, Scalia wrote.

But the court split on whether the decision went far enough. Scalia wrote that if the government had been able to use electronic surveillance to spy on Jones without physically trespassing on his property, that may have been "an unconstitutional invasion of privacy." But, Scalia added, "The present case does not require us to answer that question."

That wasn't good enough for Justice Samuel Alito Jr., who, in a concurring opinion, said the court should have tackled the larger question instead of using "18th century tort law" to decide a case about "21st century surveillance techniques."

"The court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation)," Alito wrote.

It was the long-term surveillance itself, not the fact that police physically placed a tracking device on Jones' vehicle, that violated the Fourth Amendment's proscription against warrantless searches and seizures, Alito argued.

"The use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy," he wrote. "For such offenses, society's expectation has been that law enforcement agents and others would not -- and indeed, in the main, simply could not -- secretly monitor and catalog every single movement of an individual's car for a very long period."

Although Justice Sotomayor joined the majority opinion, she also seemed disappointed that the court had not ruled more broadly. She wrote that the court had in effect ducked the big question of whether warrantless electronic surveillance was constitutional and warned that Monday's decision will do little to answer that question.

"With increasing regularity, the government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smart phones," Sotomayor wrote. "In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance."

Still, this is a win for the Fourth Amendment and for individual privacy rights, even if it is limited.

Washington, DC
United States

Arizona Governor Must Implement Medical Marijuana Law, Judge Rules

A state court judge in Phoenix last Thursday ordered Arizona Gov. Jan Brewer (R) to fully implement the state's Medical Marijuana Act, which was approved by the voters in 2010. Maricopa County Superior Court Judge Richard Gama said Brewer was acting illegally in refusing to implement the law.

[Update: Last Friday, Brewer said she would direct state employees to implement the law.]

Brewer had argued that she had the discretion to delay enactment of the dispensary regulating portions of the law while she sought clarity in federal court about whether state workers who would regulate the industry faced prosecution under federal laws. Brewer's federal case was thrown out earlier this month and she gave up on that avenue two weeks ago, but that was irrelevant as far as Judge Gama was concerned because he didn't buy her argument in the first place.

"Defendants cite no authority for this proposition, and the court has found none," Gama wrote in his ruling. "The voters intended the Arizona Medical Marijuana Act be implemented within 120 days. This has not been done."

In that ruling, Gama also held that rules on who can and cannot have a dispensary permit imposed by Health Director Will Humble were illegal. There was nothing in the law to allow such restrictions, Gama said.

This is the end of the road for Brewer's opposition to the medical marijuana law. She campaigned against it in 2010, but voters approved it anyway. Then, even as the state processed some 18,000 patient registrations, Brewer blocked the implementation of the portion of the law allowing up to 125 state-regulated dispensaries.

Her effort in federal court went down in flames last month, and now the state court has ruled against her. She could have appealed the state court decision, but chose not to.

Phoenix, AZ
United States

Medical Marijuana Update

Here's our weekly look at medical marijuana news from around the country. There's plenty going on--and late breaking news from California Wednesday afternoon.

California

On January 11, the city of Upland filed a motion that would allow it to close the G3 Holistic dispensary. The motion seeks to vacate a stay granted by the 4th District Court of Appeal in Riverside to G3 back in June. The co-op and the city disagree over whether the stay allows the dispensary to stay open despite an injunction granted to the city in August 2010 by the West Valley Superior Court in Rancho Cucamonga.

Also on January 11, Mendocino County officials confirmed that the feds are threatening to sue over the county's marijuana cultivation permit program. The warning was delivered during a meeting a week earlier, county officials said. The program is already suspended pending resolution of a court case about whether local governments can regulate activities prohibited by federal law. Supervisors will consider amending its medical marijuana ordinance at the January 24 meeting.

On January 12, Shasta County medical marijuana advocates fell short in their effort to gather enough signatures to force a recent county ordinance restricting marijuana growing onto a ballot before it became law that day. Nor Cal Safe Access needed 6,544 valid signatures  to place a referendum on the ballot. Organizers didn't have an exact count, but said they gathered "thousands." It wasn't enough. The ordinance bans growing inside residences but allows it in detached accessory structures and sets limits for outdoor growing regardless of how many patients live at a residence.

Last Thursday, federal prosecutors filed a forfeiture complaint against the Sacramento Holistic Healing Center. The feds said the center had been warned in October it was operating within a thousand feet of an elementary school and high school and told to cease operations.

Also last Thursday, the owner of the Regenesis Health dispensary in Adelanto was arrested by San Bernadino County sheriff's deputies. Ramsey Najor, 69, of Hesperia was arresting for violating municipal codes and suspicion of assault on a peace officer after he dragged a deputy with his car as he fled the scene.

Also last Thursday, the Sonoma County Planning Commission recommended a cap on dispensaries in unincorporated areas of the county. The planners want to limit the number at nine. The Board of Supervisors will have to vote on it later. There currently are six permitted dispensaries in the unincorporated area of Sonoma County and another three pending applications. In addition there are four dispensaries within city limits: two in Santa Rosa, one in Cotati and one in Sebastopol. Those cities also have caps that prohibit additional shops. The remaining six cities in the county ban dispensaries.

Last Friday, Lake County authorities reported that dispensary numbers are dwindling. Supervisors decided last month that they are not authorized land uses in the county's jurisdiction and have moved forward with the abatement process to close them down. Of 10 dispensaries that were operating in unincorporated areas of the county, as few as three are still open.

Also last Friday, a second dispensary has opened in Murrieta despite a citywide ban. The Greenhouse Cannabis Club has been hit with thousands of dollars in fines and several code violations every day. Owner Eric McNeil said he plans to fight the ban in court. The first dispensary to open, the Cooperative Medical Group, which opened in July, is now closed by court order after going several rounds with the city's attorneys. They are still awaiting a final court decision in that case.

Also last Friday, the LA city council's Public Safety Committee approved a motion to ban dispensaries in the city. The motion now moves to the city council and Planning Commission, which next meets January 26. The motion would indefinitely shutter the estimated 300 dispensaries in the city. The motion is the work of Council Member Jose Huizar, who said he was responding to the Pack v. City of Long Beach ruling, which held that that city's ordinance, which is similar to LA's, violated federal law by attempting to regulate the sale of a federally banned drug.

On Tuesday, an East Palo Alto dispensary announced it was closing its doors because of threats from the feds. The Peninsula Care Givers Collective said it was losing its lease after its landlord received a letter from the federal government threatening to seize the building. The city had passed an ordinance in July banning dispensaries, but Peninsula Care Givers was already open by then and refused to close. The city had been pursuing civil remedies. East Palo Alto police Chief Ron Davis said the city had contacted the U.S. Attorney's Office for help in shutting down Peninsula Care Givers.

On Tuesday, the DEA and local law enforcement raided the Green Tree Solutions dispensary in Kearney Mesa. It was the fourth raid on a San Diego area dispensary in less than a week. The DEA raiders were met by protesting patients and advocates.

Also on Tuesday, the DEA raided three Costa Mesa dispensaries, along with their owners' homes. The targeted businesses were American Collective, Otherside Farms and Simple Farmer.

Also on Tuesday, the Monroe city council voted to extend a moratorium on dispensaries for 180 days, and will revisit the issue in 60 days.

Also on Tuesday, the Poway city council unanimously approved the first reading of an ordinance banning medical marijuana dispensaries, collectives and cooperatives.The ordinance will go into effect within 30 days if the council adopts it at its February 7 meeting.
 

On Wednesday afternoon, the California Supreme Court said it would review two controversial medical marijuana cases. In Pack v. City of Long Beach, the appeals court held that federal law preempted the city's ability to regulate dispensaries and in City of Riverside v. Inland Empire Patient's Health and Wellness Center, the appeals court held that cities could ban dispensaries altogether. The two rulings have been used by elected local officials to back away from regulating dispensaries and toward banning them.

Colorado

Last Thursday, federal prosecutors sent threat letters to 23 dispensaries and their landlords across Colorado warning that they must shut down within 45 days or "action will be taken to seize and forfeit their property." The letter was sent to dispensaries operating within 1,000 feet of a school.

Last Friday, state Sen. Steve King said he would reintroduce a drugged driving bill. The bill would set a per se limit on THC, meaning police would not have to prove actual impairment, only that the driver's THC levels exceeded the limit. Such laws are fervently opposed by the state's medical marijuana patients, who managed to block one last year.

Idaho

On Tuesday, a medical marijuana bill, HB 370, was introduced in the Idaho House. It is the brain child of Rep. Tom Trail (R-Moscow), who filed similar legislation last year. It got an informational hearing in the House Health & Welfare Committee, but didn't proceed. HB 370 would permit patients with debilitating medical conditions to be dispensed up to 2 ounces of marijuana every 28 days; they'd have to get it from state-authorized "alternative treatment centers."

Michigan

Last Thursday, the state Supreme Court heard oral arguments in a pair of medical marijuana cases that could clarify the state's murky law. In one case, the issues include when someone using marijuana must have consulted a doctor and received a state-issued registration card to be legally protected under the medical marijuana law. In the second case, the court must consider what constitutes an "enclosed, locked facility" under the law.

That same day, an Oakland County circuit court judge dismissed the case against seven employees of the Clinical Relief dispensary in Ferndale. Clinical Relief was the first dispensary raided back in August 2010, and since then Michigan's Court of Appeals has ruled that person-to-person marijuana sales through dispensaries are illegal, but that ruling hadn't been made when the Ferndale workers were arrested, so the judge dismissed the case. Oakland County Prosecutor Jessica Cooper said she plans to appeal.

Montana

Last Friday, federal prosecutors filed charges against four more people in their ongoing offensive against the medical marijuana industry in the state. They are 33-year-old Christopher Durbin, 40-year-old Justin Maddock, 29-year-old Aaron Durbin and 33-year-old Trey Scales. Christopher Durbin also is charged with structuring, or making bank deposits of less than $10,000 in order to avoid IRS reporting requirements.

New Jersey

On January 11, Assemblyman Declan O'Scanlon said he would file a bill that would keep the state's medical marijuana growers from running afoul of zoning laws. The move comes after several New Jersey communities have blocked dispensaries or grows through zoning laws.

Last Thursday, Gov. Chris Christie (R) said he would not force towns to allow medical marijuana facilities. He said he would veto O'Scanlon's bill if it came to that.

On Wednesday, patients and supporters rallied at the statehouse steps in Trenton to protest Gov. Christie's failure to implement the state's medical marijuana law. The protest and press conference came two years after the measure was signed into law. There are still no dispensaries in New Jersey.

Ohio

Last Thursday, backers of a medical marijuana initiative filed language with Attorney General Mike DeWine in a first step toward getting the measure on the November ballot. The Ohio Medical Cannabis Amendment of 2012, accompanied by nearly 3,000 signatures, will be submitted to DeWine to review the language summarizing the proposal. This is the second time the amendment has been submitted; the first proposal was rejected last year after DeWine said it did not fairly summarize the measure. If approved, backers will need to collect 385,245 signatures to get it on the ballot. A competing proposal, the Ohio Alternative Treatment Amendment, has already been approved for signature gathering.

Virginia

Last Thursday, a bill, House Joint Resolution 139, requesting the governor to seek rescheduling of marijuana was filed in Richmond. Governors in four medical marijuana states have already called for rescheduling.

Washington, DC

On Tuesday, the DC city council approved emergency legislation limiting the number of marijuana cultivation permits in each ward to six. The measure came after residents of Ward 5 complained that because zoning restrictions closed off large swathes of the city to grows, their neighborhoods would be inundated.

Medical Marijuana Update

Here's the latest medical marijuana news from around the country. There's a whole lot going on.

California

On December 30, a Marin County judge ruled that a Novato dispensary cannot be evicted. The landlord for the Green Door Wellness Education Center had sought to evict it, saying it had violated its lease in various ways, including allowing marijuana smoking on the premises. The judge ruled that the smoke complaints were the most serious violations but "were mitigated and can be further mitigated." But Green Door and the neighboring Green Tiger Collective still face problems with the city, which sent both of them cease-and-desist orders months ago and has a moratorium on dispensaries.

On January 4, the Arcata city council voted for a temporary ban on new dispensaries. The measure does not affect existing dispensaries, but it puts a temporary hold on processing applications for new medical marijuana cooperatives and collectives. Staff will return to the council with a draft moratorium. Also in Arcata, the Humboldt Medical Supply dispensary closed its doors after its landlord received a threat letter from federal prosecutors. Another dispensary, the Sai Center, also received a letter, according to owner Stephen Gasparas, who spoke before the council.

On January 4, outgoing Marin County Supervisor Susan Adams sent a letter to Attorney General Eric Holder opposing the federal intervention in California's medical marijuana program.

Last Thursday, a Humboldt County supervisor met with US Attorney Melinda Haag to discuss the federal crackdown on dispensaries. Third District Supervisor Mark Lovelace said he expressed his disappointment with the crackdown and urged Haag to respect local governments, who decide what is appropriate safe access to medical marijuana.

On Monday, dozens of people protested in San Francisco over the closing of the Market Street Cooperative, which has been operating since 1997. The dispensary shut down after its landlord received a letter from federal prosecutors threatening seizure of the property.

On Tuesday, Marin County supervisors sent a smoking ban back for a rewrite to make clear it does not include marijuana. The ordinance would largely ban smoking in apartments in unincorporated areas of the county.

On Tuesday, the Anaheim city council extended the city's moratorium on new medical marijuana dispensaries for another year. The unanimous vote came after council members said they needed more time to study the "legal complexities" around the issue. The city has had a ban in place since 2007. Anaheim's law was challenged in court by medical-marijuana patients who said it unfairly limited their rights guaranteed by state law. He lost in Orange County Superior Court, but the case is on appeal. Dozens of dispensaries that opened before 2007, when the city began its moratorium, are still open.
 

On Wednesday, in late breaking news, the DEA raided three San Diego-area dispensaries. No reports yet on arrests.



Colorado

On January 3, the Boulder city council voted to enact an emergency moratorium on new applications for medical marijuana business licenses. The move came after a surprise request by City Attorney Tom Carr, who wants to review unintended consequences of rules the city adopted and who wants to see how a recent court case against the city by a dispensary operator shakes out. The moratorium will be in place pending a public hearing on February 7 in which the council will discuss a longer-term moratorium.

This week, two state legislators said they would propose a bill that would allow the medical marijuana industry to form a "financial cooperative" to provide banking services to medical marijuana businesses. The cooperative would work like a credit union, with membership limited to industry members. But it would be free of the kinds of federal insurance requirements that exist with banks and credit unions and that have made those institutions reluctant to work with medical-marijuana businesses. The bill is in response to federal pressure on banks that have led them to drop medical marijuana businesses. The two solons, Sen. Pat Steadman (D-Denver) and Rep. Tom Massey (R-Poncha Springs), said they would introduce the bill next week.

Florida

This week, medical marijuana bills were filed in the Florida House and Senate. This marks the second year in a row a bill has been filed in the House and the first time a bill has been filed in both chambers. (See our newsbrief on it here.)

Maryland

On Tuesday, a medical marijuana bill was introduced in the state House of Delegates. Introduced by Delegate Cheryl Glenn (D-Baltimore),  HB 15, the Maryland Medical Marijuana Act, would create clear rules for qualified patients and law enforcement, and put in place a strictly regulated production and distribution system. HB 15 would also protect patients from housing and workplace discrimination, something that the workgroup failed to address.

Michigan

On Wednesday, a Lansing medical marijuana dispensary owner was acquitted of charges he violated Michigan's election laws. Shekina Pena, 34, the owner of Your Healthy Choice Clinic, was charged by Attorney General Bill Schuette's office with trying to influence voters after he offered free marijuana to patients who registered to vote. A jury found him not guilty.

This week, an initiative campaign to repeal marijuana prohibition in Michigan, largely inspired by Schuette's antics and obstructionism, is gearing up for its signature-gathering phase. Read our feature article about it this week here.

Montana

Last week, two members of a family of medical marijuana providers were negotiating a plea deal with prosecutors, making it unlikely that a Montana court will ever have the chance to determine if federal drug laws preempt the state's medical marijuana law. Richard and Justin Flor face pot possession, distribution, and conspiracy charges after Montana Cannabis was raided last spring along with dozens of other providers. They had said they would challenge the charges, but now it looks like that won't happen.

New Jersey

On December 28, the town of Plumsted temporarily banned medical marijuana cultivation farms. The township wants time to plan where such a facility might be appropriately located. Plumsted is the third local government to ban medical marijuana cultivation, following Upper Freehold and Howell Township.

On January 4, the Westampton Land Development Board denied a permit for a medical marijuana grow and dispensary. The Compassionate Care Foundation, which had sought to locate the facility there, said it would appeal to state Superior Court. Only one of six care centers allowed under the New Jersey medical marijuana program has so far found a location.

Oregon

On Monday, several dozen people protested in Grants Pass to protest what they called corruption in law enforcement when it comes to medical marijuana. They accused by name a Grants Pass detective and an assistant district attorney, saying they violated people's rights, falsified documents, and wrongfully submitted evidence. Police denied any wrongdoing.

This week, the US Supreme Court declined to hear appeals from two Oregon sheriffs of a state Supreme Court ruling that found they could not deny concealed hand gun permits to registered medical marijuana patients. The sheriffs had attempted to argue that to provide permits to patients would force them to violate federal gun laws, which bar controlled substance users from obtaining weapons. They lost in every court that heard the cases.

The Top Ten Domestic US Drug Policy Stories of 2011 [FEATURE]

http://stopthedrugwar.org/files/usmap-small.jpg
We can put 2011 to bed now, but not before looking back one last time at the good, the bad, and the ugly. It was a year of rising hopes and crushing defeats, of gaining incremental victories and fending off old, failed policies. And it was a year in which the collapse of the prohibitionist consensus grew ever more pronounced. Let's look at some of the big stories:

Progress on Marijuana Legalization

Last year saw considerable progress in the fight for marijuana legalization, beginning in January, when Law Enforcement Against Prohibition (LEAP) got President Obama to say that legalization (in general) is "an entirely legitimate topic for debate," and that while he does not favor it, he does believe in "a public health-oriented approach" to illicit drugs. Before the LEAP intervention, which was made via a YouTube contest, legalization was "not in the president's vocabulary." While we're glad the president learned a new word, we would be more impressed if his actions matched his words. Later in the year, in response to "We the People" internet petitions, the Obama White House clarified that, yes, it still opposes marijuana legalization.

In June, Reps. Barney Frank (D-MA) and Ron Paul (R-TX) made history by introducing the first ever bill in Congress to end federal marijuana prohibition, H.R. 2306. It hasn't been scheduled for a hearing or otherwise advanced in the legislative process, but it has garnered 20 cosponsors so far. Sadly, its lead sponsors are both retiring after this term.

Throughout the year, there were indications that marijuana legalization is on the cusp of winning majority support among the electorate. An August Angus Reid poll had support at 55%, while an October Gallup poll had it at 50%, the first time support legalization has gone that high since Gallup started polling the issue. A November CBS News poll was the downside outlier, showing support at only 40%, down slightly from earlier CBS polls. But both the Angus Reid and the Gallup polls disagreed with CBS, showing support for legalization trending steadily upward in recent years.

Legalization is also polling reasonably -- if not comfortably -- well in Colorado and Washington, the two states almost certain to vote on initiatives in November. In December, Public Policy Polling had legalization leading 49% to 40% in Colorado, but that was down slightly from an August poll by the same group that had legalization leading 51% to 38%.

In Washington, a similar situation prevails. A January KING5/SurveyUSA poll had 56% saying legalization would be a good idea and 54% saying they supported marijuana being sold at state-run liquor stores (similar to what the I-502 initiative proposes), while a July Elway poll had 54% either definitely supporting legalization or inclined to support it. But by September, the Strategies 360 Washington Voter Survey had public opinion evenly split, with 46% supporting pot legalization and 46% opposed.

The polling numbers in Colorado and Washington demonstrate that victory at the polls in November is in reach, but that it will be a tough fight and is by no means a sure thing. "Stoners Against Proposition 19"-style opposition in both states isn't going to help matters, either.

Oh, and Connecticut became the 14th decriminalization state.

Medical Marijuana Advances…

In May, Delaware became the 16th state to enact a medical marijuana law. Under the law, patients with qualifying conditions can legally possess up to six ounces of marijuana, but they cannot grow their own. Instead, they must purchase it from a state-licensed compassion center. That law will go into effect this year.

Meanwhile, New Jersey and Washington, DC, continue their achingly slow progress toward actually implementing existing medical marijuana laws. In New Jersey, Gov. Chris Christie (R) finally got out of the way and okayed plans for up to six dispensaries, but early efforts to set them up are running into NIMBY-style opposition. In DC, a medical marijuana program approved by voters in 1998 (!) but thwarted by Congress until 2009 is nearly at the stage of selecting dispensary operators. One of these months or years, patients in New Jersey and DC may actually get their medicine.

And late in the year, after the federal government rejected a nine-year-old petition seeking to reschedule marijuana, the governors of Rhode Island, Vermont, and Washington formally asked the Obama administration to reschedule it so that states could regulate its medical use without fear of federal interference. As the year came to an end, Colorado joined in the request for rescheduling.

…But the Empire Strikes Back

Last year saw the Obama administration recalibrate its posture toward medical marijuana, and not for the better. Throughout the year, US Attorneys across the country sent ominous signals that states attempting to regulate medical marijuana dispensaries could face problems, including letters to state governors not quite stating that state employees involved in regulation of the medical marijuana industry could face prosecution. That intimidated public officials who were willing to be intimidated, leading, for example, to New Jersey Gov. Chris Christie (R) delaying his state's medical marijuana program, Rhode Island Gov. Lincoln Chafee (I) to kill plans for dispensaries there, and Washington Gov. Christine Gregoire (D) to veto key parts of a bill there that would have regulated dispensaries.

Then the feds hit hard at Montana, raiding dispensaries and growers there, even as the state law was under attack by conservative Republican legislators. Now, Montana medical marijuana providers are heading to federal prison, and the state law has been restricted. What was once a booming industry in Montana has been significantly stifled.

There have also been raids directed at providers in Colorado, Michigan, Oregon, and Washington, but California has been the primary target of federal attention in the latter half of the year. Since a joint offensive by federal prosecutors in the state got underway in October, with threat letters being sent to numerous dispensaries and their landlords, a great chill has settled over the land. Dispensary numbers are dropping by the day, the number of lost jobs number in the thousands, and the amount of tax revenues lost to local jurisdictions and the state is in the millions. That's not to mention the patients who are losing safe access to their medicine.

It's unclear whether the impetus for the crackdown originated in the Dept. of Justice headquarters in Washington or with individual US Attorneys in the states. Advocates hope it will stay limited mainly to states that are not effectively regulating the industry, and a coalition in California has filed a ballot initiative for 2012 that would do just that. Either way there is plenty of pain ahead, for patients and for providers who took the president's and attorney general's earlier words on the subject at face value.

Synthetic Panic

Last year, Congress and state and local governments across the land set their sights on new synthetic drugs, especially synthetic cannabinoids ("fake marijuana") and a number of methcathinone derivatives ("bath salts") marketed for their stimulating effects similar to amphetamines or cocaine. Confronted with these new substances, politicians resorted to reflex prohibitionism, banning them as fast as they could.

Some 40 states and countless cities and counties have imposed bans on fake weed or bath salts or both, most of them acting this year.

At the federal level, the DEA enacted emergency bans on fake weed -- after first being temporarily blocked by retailers -- and then bath salts until Congress could act. It did so at the end of the year, passing the Synthetic Drug Control Act of 2011. The bill makes both sets of substances Schedule I drugs under the Controlled Substances Act, which will pose substantial impediments to researching them. Under the bill, prison sentences of up to 20 years could be imposed for the distribution of even small quantities of the new synthetics.

But the prohibitionists have a problem: Synthetic drug makers are responding to the bans by bringing new, slightly different formulations of their products to market. Prosecutors are finding their cases evaporating when the find the drugs seized are not the ones already criminalized, and retailers are eager to continue to profit from the sales of the new drugs. As always, the drug law enforcers are playing catch-up and the new drug-producing chemists are way ahead of them.

The Drug War on Autopilot: Arrests Hold Steady, But Prisoners Decline Slightly

overcrowded Mule Creek State Prison, CA
Last year saw more evidence that drug law enforcement has hit a plateau, as 2010 drug arrests held steady, but the number of prisoners and people under correctional supervision declined slightly.

More than 1.6 million people were arrested for drug offenses in the US in 2010, according to the FBI's Uniform Crime Report 2010, and more than half of them were for marijuana. That's a drug arrest every 19 seconds, 24 hours a day, every day last year. The numbers suggest that despite "no more war on drugs" rhetoric emanating from Washington, the drug war juggernaut is rolling along on cruise control.

Overall, 1,638,846 were arrested on drug charges in 2010, up very slightly from the 1,633,582 arrested in 2009. But while the number of drug arrests appears to be stabilizing, they are stabilizing at historically high levels. Overall drug arrests are up 8.3% from a decade ago.

Marijuana arrests last year stood at 853,838, down very slightly from 2009's 858,408. But for the second year in a row, pot busts accounted for more arrests than  all other drugs combined, constituting 52% of all drug arrests in 2010. Nearly eight million people have been arrested on pot charges since 2000.

The vast majority (88%) off marijuana arrests were for simple possession, with more than three-quarters of a million (750,591) busted in small-time arrests. Another 103,247 people were charged with sale or manufacture, a category that includes everything from massive marijuana smuggling operations to persons growing a single plant in their bedroom closets.

An analysis of the Uniform Crime Report data by the University of Maryland's Center for Substance Abuse Research added further substance to the notion that drug enforcement is flattening. The center found that the arrest rate for drug violations has decreased for the last four years, but still remains more than twice as high as rates in the early 1980s. The all-time peak was in 2006.

Meanwhile, the Bureau of Justice Statistics reported that for the first time since 1972, the US prison population in 2010 had fallen from the previous year and that for the second year in a row, the number of people under the supervision of adult correctional authorities had also declined.

In its report Prisoners in 2010, BJS reported that the overall US prison population at the end of 2010 was 1,605,127, a decrease of 9,228 prisoners or 0.6% from year end 2009. The number of state prisoners declined by 0.8% (10,881 prisoners), while the number of federal prisoners increased by 0.8% (1.653 prisoners). Drug offenders accounted for 18% of state prison populations in 2009, the last year for which that data is available. That's down from 22% in 2001. Violent offenders made up 53% of the state prison population, property offenders accounted for 19%, and public order or other offenders accounted for 9%.

In the federal prison population, drug offenders made up a whopping 51% of all prisoners, with public order offenders (mainly weapons and immigration violations) accounting for an additional 35%. Only about 10% of federal prisoners were doing time for violent offenses. Overall, somewhere between 350,000 and 400,000 people were doing prison time for drug offenses last year.

Similarly, in its report Correctional Population in the US 2010, BJS reported that the number of people under adult correctional supervision declined 1.3% last year, the second consecutive year of declines. The last two years are the only years to see this figure decline since 1980.

At the end of 2010, about 7.1 million people, or one in 33 adults, were either in prison or on probation or parole. About 1.4 million were in state prisons, 200,000 in federal prison, and 700,000 in jail, for a total imprisoned population of about 2.3 million. Nearly 4.9 million people were on probation or parole.

America's experiment with mass incarceration may have peaked, exhausted by its huge costs, but change is coming very slowly, and we are still the world's unchallenged leader in imprisoning our own citizens.

Federal Crack Prisoners Start Coming Home

Hundreds of federal crack cocaine prisoners began walking out prison in November, the first beneficiaries of a US Sentencing Commission decision to apply retroactive sentencing reductions to people already serving time on federal crack charges. As many as 1,800 federal crack prisoners were eligible for immediate release and up to 12,000 crack prisoners will be eligible for sentence reductions that will shorten their stays behind bars.

The releases come after Congress passed the Fair Sentencing Act in August 2010, which shrank the much criticized disparity between mandatory minimum sentences for crack and powder cocaine from 100:1 to 18:1. After Congress acted, the Sentencing Commission then moved to make those changes retroactive, resulting in the early releases beginning in November.

Despite the joyous reunions taking place across the country, the drug war juggernaut keeps on rolling, and there is much work remaining to be done. Not all prisoners who are eligible for sentence reductions are guaranteed to receive one, and retroactivity won't do anything to help people still beneath their mandatory minimum sentences. A bill with bipartisan support in Congress, H.R. 2316, the Fair Sentencing Clarification Act, would make Fair Sentencing Act changes to mandatory minimum sentences retroactive as well, so that crack offenders left behind by the act as is would gain its benefits.

And the Fair Sentencing Act itself, while an absolute advance from the 100:1 disparity embodied in the crack laws, still retains a scientifically unsupportable 18:1 disparity. For justice to obtain, legislation needs to advance that treats cocaine as cocaine, no matter the form it takes.

But even those sorts of reforms are reforms at the back end, after someone has already been investigated, arrested, prosecuted, and sentenced. Radical reform that will cut the air supply to the drug war incarceration complex requires changes on the front end.

Also in November, the US Supreme Court announced that it will decide whether the Fair Sentencing Act should be applied to those who were convicted, but not sentenced, before it came into effect -- the so-called "pipeline" cases. The decision to take up the issue came after lower courts split on the issue. The Supreme Court is expected to rule on the issue in June.

Drug Testing the Needy

drug testing lab
With state budgets strained by years of recession and slow recovery, lawmakers across the country are turning their sights on the poor and the needy. In at least 12 states, bills have been introduced that would require people seeking welfare or unemployment benefits to undergo drug testing and risk losing those benefits if they test positive. Some Republicans in the US Congress want to do the same thing. In a thirteenth state, Michigan, the state health department is leading the charge.

The race to drug test the needy appears to be based largely on anecdotal and apocryphal evidence. South Carolina Gov. Nikki Hailey (R), to take one example, cited reports that a nuclear installation there couldn't fill vacancies because half the applicants failed drug tests, but had to retract that statement because it was nowhere near to being true. In Florida, where welfare drug testing was briefly underway before being halted by a legal challenge, 96% of applicants passed drug tests, while in an Indiana unemployment drug testing program, only 2% failed.

While such legislation appeals to conservative values, it is having a tough time getting passed in most places, partly because of fears that such laws will be found unconstitutional. The federal courts have historically been reluctant to approve involuntary drug testing, allowing it only for certain law enforcement or public safety-related occupations and for some high school students. When Michigan tried to implement a welfare drug testing program more than a decade ago, a federal appeals court ruled that such a program violated welfare recipients' right to be free from unreasonable searches and seizures.

That ruling has served to restrain many lawmakers, but not Florida Gov. Rick Scott (R) and the Florida legislature. Scott issued an executive order to drug test state employees, but had to put that on hold in the face of threatened legal challenges. The state legislature passed and Scott signed a bill requiring welfare applicants and recipients to undergo drug testing or lose their benefits.

But the ACLU of Florida and the Florida Justice Institute filed suit in federal court to block that law on the grounds it violated the Fourth Amendment. In October, a federal judge granted a preliminary injunction preventing the state from implementing it. A final decision from that court and decisions about whether it will be appealed are eagerly awaited.

Marking 40 Years of Failed Drug War

Drug War 40th anniversary demo, San Francisco
June 17 marked forty years since President Richard Nixon, citing drug abuse as "public enemy No. 1," declared a "war on drugs." A trillion dollars and millions of ruined lives later, a political consensus is emerging that the war on drugs is a counterproductive failure. The Drug Policy Alliance led advocates all across the country in marking the auspicious date with a day of action to raise awareness about the catastrophic failure of drug prohibition and to call for an exit strategy from the failed war on drugs. More than 50 events on the anniversary generated hundreds of local and national stories.

In dozens of cities across the land, activists, drug war victims, and just plain folks gathered to commemorate the day of infamy and call for an end to that failed policy. Messages varied from city to city -- in California, demonstrators focused on prison spending during the budget crisis; in New Orleans, the emphasis was on racial injustice and harsh sentencing -- but the central overarching theme of the day, "No More Drug War!" was heard from sea to shining sea and all the way to Hawaii.

The crowds didn't compare to those who gather for massive marijuana legalization protests and festivals -- or protestivals -- such as the Seattle Hempfest, the Freedom Rally on Boston Commons, or the Ann Arbor Hash Bash, or even the crowds that gather for straightforward pot protests, such as 420 Day or the Global Marijuana March, but that's because the issues are tougher. People have to break a bit more profoundly with drug war orthodoxy to embrace completely ending the war on drugs than they do to support "soft" marijuana. That relatively small groups did so in cities across the land is just the beginning.

Congress Reinstates the Federal Ban on Funding Needle Exchanges

Two years ago, after years of advocacy by public health and harm reduction advocates, the longstanding ban on federal funding for needle exchanges was repealed. Last month, the ban was restored as the Senate took the final votes to approve the 2012 federal omnibus spending bill.

It was a Democratic-controlled House and Senate that rescinded the ban two years ago, and it was House Republicans who were responsible for reinstating it this year. Three separate appropriations bills contained language banning the use of federal funds, and House negotiators managed to get two of them into the omnibus bill passed Saturday.

A Labor-Health and Human Services appropriations bill including the ban on domestic use of federal funds for needle exchanges and a State Department bill including a ban on funding for needle exchange access in international programs both made it into the omnibus bill.

The Centers for Disease Control and Prevention (CDC), American Medical Association, National Academy of Sciences, American Public Health Association, and numerous other scientific bodies have found that syringe exchange programs are highly effective at preventing the spread of HIV/AIDS and other infectious diseases. Eight federal reports have found that increasing access to sterile syringes saves lives without increasing drug use.

Needle exchange supporters said restoring the ban will result in thousands of Americans contracting HIV/AIDS, hepatitis C or other infectious diseases next year alone.

US Drug War Deaths

As far as we know, nobody has ever tried to count the number of people killed in the US because of the war on drugs. We took a crack at it last year, counting only those deaths directly attributable to drug law enforcement activities. The toll was 54, including three law enforcement officers.

Most of those killed were shot by police, many of them while in possession of firearms (some in their own homes) and some of them while shooting at police. Some were shot in vehicles after police said they tried to run them down (why is it they never were merely trying to get away?). But not all died at the hands of police -- several died of drug overdoses from eating drugs while trying to evade arrest, several more died from choking on bags of drugs they swallowed, one man drowned after jumping into a river to avoid a pot bust, and another died after stepping in front of a speeding semi-trailer while being busted for meth.

People were killed in "routine traffic stops," SWAT-style raids, and undercover operations. Hardly any of those cases made more than a blip in local media, the two exceptions being the case of Jose Guerena, an Iraq war vet gunned down by an Arizona SWAT team as he responded to his wife's cry of intruders in his own home, and the case of Eurie Stamps Sr., a 68-year-old Massachusetts man accidentally shot and killed by a SWAT team member executing a warrant for small-time crack sales.

Our criteria were highly restrictive and absolutely undercount the number of people who are killed by our drug laws. They don't include, for instance, people who overdosed unnecessarily because they didn't know what they were taking or medical marijuana patients who die after being refused organ transplants. Nor do they include cases where people embittered by the drug laws go out in a blaze of glory that wasn't directly drug law-related or cases, like the four men killed last year by Miami SWAT officers during an undercover operation directed at drug house robbers.

The toll of 54 dead, then, is an absolute minimum figure, but it's a start. We will keep track again this year, and look for a report on last year's numbers in the coming weeks.

In Conclusion...

Last year had its ups and downs, its victories and defeats, but leaves drug reformers and their allies better placed than ever before to whack away at drug prohibition. This year, it looks like voters in Colorado and Washington will have a chance to legalize marijuana, and who know what else the new year will bring. At the least, we can look forward to the continuing erosion of last century's prohibitionist consensus.


 

New Canadian Drug Reform Coalition Emerges [FEATURE]

Even as Canada's Conservative federal government attempts to drag the country back into the last century with its drug and crime policies, a new drug reform umbrella group has emerged to fight for smart, sensible, evidence-based alternatives. The Canadian Drug Policy Coalition (CDPC) unveiled itself and its new web site late last month.

http://stopthedrugwar.org/files/cdpc-logo.jpg
Enlisting many of Canada's leading experts in drug policy, the coalition is headed by Donald Macpherson, the former head of Vancouver's ground-breaking Four Pillars approach to the drug problem. It also includes researchers, public health officials, front-line harm reduction and treatment providers, people who use drugs, HIV/AIDS service organizations, youth organizations, parents, and community members, all of whom are concerned with the health and safety outcomes of Canadian drug strategies. Its emergence couldn't be more timely. (See a complete list of member organizations here.)

Tuesday, the House of Commons approved a draconian omnibus anti-crime bill, C-10, that would, among other things, create mandatory minimum sentences for growing as few as six marijuana plants and for manufacturing small amounts of hashish or hash oil. The Tories were able to shove the bill through despite broad opposition from across Canada after winning an outright parliamentary majority in the last elections.

Reformers say they will be unable to stop the bill's passage, although they will likely challenge it in the courts, which have proven friendlier to innovative drug policy reforms. The Supreme Court of Canada earlier this year blocked the federal government from shutting down Insite, Vancouver's safe injection site. It is in this contested terrain of federal drug policy, as well at the provincial level, that the coalition seeks to intervene.

"We're letting the world know we're here and we're a coalition that wants to grow," said Macpherson. "We’re working toward trying to change the paradigm and the direction of the federal government and introducing a public health and human rights perspective on drug policy in Canada."

The coalition went public last week, marking its coming out with a press conference in Vancouver, a Macpherson op-ed in the Vancouver Sun, and joining with the British Columbia Health Officers' Council (HOC) in releasing an HOC report, Public Health Perspectives for Regulating Psychoactive Substances, which describes how public health oriented regulation of alcohol, tobacco, prescription and illegal substances can better reduce the harms that result both from substance use and substance regulation than current approaches.

"This paper highlights the large number of needless and preventable deaths, hospitalizations and human suffering consequent to our current approaches," said Dr. Richard Mathias of the HOC. "The Health Officers’ Council is inviting feedback on its ideas and requesting that organizations and individuals join with us in a call for immediate changes to put the public’s health first."

"The story about the emperor's new clothes is replayed time and again by governments unwilling to own up to realities," said Robert Holmes, head of the British Columbia Civil Liberties Association, as he saluted the report. "Public health professionals in B.C. are right to point out that our current chaotic and contradictory drug laws and policies need to be reviewed against scientific evidence of what works to reduce consumption, social harms, and costs," he said.

"People routinely get put in jail for conduct related to active drug addictions, but the criminal justice system is hardly a surrogate for medical care. It is plain that we have inadequate treatment and detox available for people with addictions to help them cope, recover or quit," noted Holmes. "By making cannabis taboo, our society both prohibits and makes more alluring its use. It is, of course, widely used. But instead of recognizing that and taxing it like tobacco and liquor products, with the tax revenue going to the cost of education and care, we leave the massive profits of this industry to organized crime and leave taxpayers with the bill for police efforts to contain it."

"This report is important because it's not about which drugs are legal and which are not," Macpherson said. "We need to look at all drugs through a public health lens. We're trying to get beyond 'good drug, bad drug' and move toward finding a regulatory system that minimizes the harm and maximizes the benefits of these substances."

The provincial health officers' report is also noteworthy because it actually addresses the benefits of drug use, Macpherson said.

"It takes courageous public health doctors to dare to talk about the benefits of drug use," he said. "We all know that drugs can be beneficial from our use of alcohol to relax or become more social or our use of pharmaceuticals to kill pain, but you're not allowed to talk about that in the drug policy arena. It's all about reducing harm, but we need to acknowledge that drug use has its benefits."

More broadly, the CDPC is working toward:

  • A health, social and human rights approach to substance use;
  • The important role harm reduction approaches play;
  • Removing the stigma of criminalization for people who use drugs;
  • Moving beyond the current approach to drug prohibition;
  • A national dialogue on drug policy for Canada.

"We'll advocate for a comprehensive public health and human rights approach," said Macpherson. "It's not just about health, but also looks at social and human rights issues. And it's not just about ending the drug war, but to start talking about alternatives to the failed war on drugs."

The CDPC sees itself as facilitating the dialog, Macpherson said. "A lot of change in drug policy requires political leadership, but politicians also need support in taking those courageous steps, so that when you bring people together to talk reasonably in an informed way and bring the evidence to bear, you can then move forward. They can see that despite their fears about safe injection sites or cannabis regulation, those are actually sound ways to go that make their communities safer in the long run than the way we're going now," he said. "We're trying to position ourselves as the organization than can help find the answers through our expertise and by looking at what's worked and what hasn't in other jurisdictions, and by convening people who care about these issues to look for solutions that actually work instead of the same old same old."

And despite Conservative domination at the federal level, there is still plenty that can be done, both in Ottawa and in the provinces, Macpherson said. "There is a lot that can be done around health and harm reduction because most of the health approaches emanate from provincial health ministries," he said. "Harm reduction can also be done locally by municipalities, for example, by making the criminalization of drug users a low priority for police."

While any decision to end Canada's drug war will have to come from Ottawa, Macpherson said, the provinces can still move forward themselves. "We can expand the number of safe injection sites and other harm reduction programs, and we can move toward a more comprehensive public health approach. They're doing that in some provinces," he said.

Given the obstinacy and recalcitrance of the government of Prime Minister Steven Harper, the CDPC certainly has its work cut out for it, but there couldn't be a group more suited for the task.

Vancouver, BC
Canada

Cities Can Ban Marijuana Dispensaries, CA Court Rules

In a decision that is already having an impact on medical marijuana access, a California appeals court ruled November 9 that cities and counties can lawfully ban medical marijuana dispensaries. In the days since the ruling was announced, a number of localities have already either moved to enact bans or halted plans to regulate dispensaries.

California laws "do not provide individuals with inalienable rights to establish, operate or use" dispensaries, nor do they say that dispensaries "shall be permitted within every city and county," wrote Justice Carol Codrington for a unanimous court in City of Riverside v. Inland Empire Patients Health and Wellness Center.

California law expressly allows localities to regulate dispensaries and restrict their locations, Codrington wrote, adding that a total ban is "simply a means of regulation or restriction."

The issue is one that has been roiling the waters for years, but the decision by the 4th District Court of Appeals in Riverside is clear and unambiguous. Combined with an appeals court ruling last month that the city of Long Beach could not adopt regulations allowing dispensaries because marijuana remains illegal under federal law, the ruling paves the way for a reinvigorated crackdown on dispensaries by local governments across the state.

Access to medical marijuana is already problematic in large areas of the state. According to Americans for Safe Access, 168 cities and 17 counties have banned dispensaries and another 80 cities and 10 counties have enacted moratoriums. On the other side of the coin, only about 40 cities and 10 counties have enacted ordinances to allow dispensaries.

Localities were already getting nervous in the wake of the Long Beach decision last month, and the number of locales enacting bans is likely to grow quickly after the ruling. Santa Cruz County is likely to impose a moratorium this week, while the city of South Lake Tahoe is looking to repeal its recently enacted dispensary ordinance. The city of Long Beach is now considering a ban, and other cities that have been facing court challenges on similar issues, like Rancho Mirage, are now more confident their bans will be upheld.

While the city of Riverside now plans to move ahead with shutting down all 15 dispensaries in its jurisdiction, Inland Empire founder Lanny Swerdlow told the Los Angeles Times he expects the collective will appeal to the state Supreme Court.

"We think that it's wrong that a city can ban a state-permitted activity by zoning it out of existence," he said. "By allowing cities to ban, it just makes a crazy-quilt pattern across the state."

This pair of appeals courts decisions are yet another blow to a medical marijuana industry beset by a renewed federal offensive against distribution and cultivation. Federal prosecutors across the state last month moved to shut down a number of dispensaries, have threatened landlords with asset forfeiture and possible prosecution, and have even warned elected officials they were not immune to possible federal action.

Riverside, CA
United States

Federal Judge Blocks Florida Welfare Drug Testing Law

A federal judge Monday halted Florida's law mandating drug testing for welfare applicants. District Court Judge Mary Scriven in Orlando granted a temporary injunction barring the state from enforcing the law until the case is resolved.

The new law, which went into effect in July, was challenged as an unconstitutional violation of the Fourth Amendment's proscription against unwarranted searches and seizures in a lawsuit filed by the ACLU of Florida and the Florida Justice Institute on behalf of a Central Florida man. Luis Lebron, 35, a Navy veteran turned college student was denied state benefits after he refused to submit to a drug test.

In her order granting the temporary injunction, Judge Scriven thoroughly demolished the state's arguments that drug testing didn't amount to a search, that welfare applicants were more likely to use drugs than the population as a whole, and that the state had a special interest in drug testing welfare applicants that would override constitutional proscriptions against it. She also found that the ACLU of Florida has a good chance of prevailing in its lawsuit.

Scriven noted that Florida legislators passed the law despite an earlier Florida demonstration project that failed to uncover evidence of rampant drug use among welfare applicants, that concluded that drug use did not adversely impact the goals of the welfare program, that found that drug testing did not save the state money, and "despite the express recommendation that the project not be continued or expanded."

Scriven then turned to the state's contention that drug testing is not a search. "Notwithstanding the overwhelming body of case law to the contrary, the State contends that the drug testing of welfare recipients is not a search," she wrote. "According to the State, the drug test is not forced or compelled, and, if there is no consent to the testing, there is no drug test and, thus, no search… The Court finds this argument unpersuasive," she noted tersely.

Nor was she persuaded by Florida's claims about the risk to public health and the levels of drug use among welfare applicants. "Though the State speaks in generalities about the 'public health risk, as well as the crime risk, associated with drugs' being 'beyond dispute,' it provides no concrete evidence that those risks are any more present in TANF applicants than in the greater population," she noted. "Rather, the evidence suggests that those risks are less prevalent among TANF applicants. The Court, therefore, rejects the suggestion that the inchoate public health or crime risks assertions incanted by the State justify the Fourth Amendment intrusions mandated by [the drug testing law]."

Florida should have listened to its own researchers, whose earlier demonstration project found no evidence of widespread drug use among welfare applicants, Scriven wrote. "Florida gathered evidence on the scope of this problem and the efficacy of the proposed solution. The results debunked the assumptions of the State, and likely many laypersons, regarding TANF applicants and drug use. The State nevertheless enacted [the drug testing law], without any concrete evidence of a special need to do so -- at least not that has been proffered on this record. As the State has failed to demonstrate a special need for its suspicionless drug testing statute, the Court finds no need to engage in the balancing analysis -- evaluating the State's interest in conducting the drug tests and the privacy interests of TANF applicants."

The law requires applicants to pay for the drug test out of their own pockets -- those whose test clean would later be reimbursed by the state -- and bars them from benefits for a year unless they undergo drug treatment. So far, only about 2% of applicants have tested positive for drugs.

"I'm delighted for our client and delighted to have confirmation that all of us remain protected from unreasonable, suspicionless government searches and seizures," said Maria Kayanan, associate legal director of the ACLU of Florida, who is lead counsel in the case.

"The governor and the legislature sent their lawyers into court to advance a very startling proposition. They argued that some Floridians, namely poor families with children who qualify for temporary public assistance, are not protected by the Constitution of the United States," said ACLU of Florida executive director Howard Simon. "This extreme position -- that if the state provides assistance to someone it can conduct a privacy-invading physical search -- is especially startling coming from a governor who campaigned to stop government from trampling on the rights of the people."

"This should send a message to all lawmakers that the 4th Amendment protects everyone," said Randall Berg of the Florida Justice Institute and co-counsel with the ACLU.

Given that a number of states are currently considering hopping on the welfare drug testing bandwagon, Berg's comments are especially apropos.

Orlando, FL
United States

Canada Supreme Court Okays Safe Injection Site [FEATURE]

Rebuffing the Conservative government of Prime Minister, the Canadian Supreme Court Friday ruled unanimously that Vancouver's safe injection site for heroin addicts can stay open. Known as Insite, the Downtown Eastside facility is the only safe injection site in North America.

Vancouver's safe injection site wins a reprieve. (Image: Vancouver Coastal Health)
The Downtown Eastside, centered on the intersection of Main and Hasting, streets, has one of the highest concentrations of injection drug users in the world. An overgrown Skid Row flush with prostitution and destitution, most of its residents live in decaying SRO hotels lining Main Street. Out of 12,000 residents in the area, some 5,000 are estimated to be drug addicts.

At Insite, drug users are provided clean needles and sterilized water with which to mix their drug. Insite does not provide the drugs; users must bring their own. The users inject under medical supervision at one of 12 injecting alcoves.

Insite operates under the auspices of the British Columbia Ministry of Health and the local public health authority, Vancouver Coastal Health. Numerous research reports on Insite have found that it has reduced fatal drug overdoses, reduced HIV and Hepatitis C transmission rates, reduced crime rates in the neighborhood, and increased the number of drug users entering treatment.

It has operated since 2003 under an exemption to Canada's drug laws, but since coming to power, the Harper government has attempted to shut it down, claiming it "enables" drug users. Friday's decision by the Canadian Supreme Court is the final chapter in that effort.

The Harper government argued that the federal drug law took precedence over British Columbia's public health policies. British Columbia and other Insite supporters argued that because Insite is providing a form of health care, its operation is a provincial matter. The federal government's concerns did not outweigh the benefits of Insite, the court said.

"The grave consequences that might result from a lapse in the current constitutional exemption for Insite cannot be ignored," the court said. "Insite has been proven to save lives with no discernible negative impact on the public safety and health objectives of Canada."

Hundreds of Insite supporters gathered at the facility at dawn and broke out in cheers after the decision was announced. As the news spread, harm reduction, public health, and drug reform groups in Canada and around the world lined up to applaud it.

"We are absolutely delighted that we finally have a clear decision on the legal framework for Insite," said Dr. Patricia Daly, Vancouver Coastal Health Chief Medical Health Officer. "Since 2003, Insite has made a positive impact on thousands of clients, saved lives by preventing overdoses, and provided vital health services to a vulnerable population. Today's ruling allows us to continue the outstanding work Insite, its doctors, nurses, staff and partners provide."

"This represents a victory for science," said Dr. Julio Montaner, Director of the BC Center for Excellence for HIV/AIDS. "Prior attempts from the federal government to stop the activities of Insite have been ruled unconstitutional. We are thankful for the continued and unwavering support from the provincial government that has allowed us to set an example in Canada and the world for how to deal with addiction which is, indeed, a medical condition."

"We applaud today's landmark decision by the Canadian Supreme Court to uphold the human rights of all Canadians by allowing Insite to remain open," said the Canadian HIV/AIDS Legal Network, CACTUS Montreal, and Harm Reduction International in a joint statement. "We are heartened the Supreme Court of Canada has recognized that criminal laws on drugs must give way to good public health practices and harm reduction."

"This is a victory for science, compassion and public health -- and, given the fiscal benefits of such programs, the Canadian taxpayer. The Supreme Court of Canada recognized that Insite saves lives, and that that should be a guiding principle in deciding drug policy," said Laura Thomas, California deputy director for the Drug Policy Alliance. "Congratulations to the advocates, drug users, researchers, nurses, and elected officials who have campaigned for Vancouver's supervised injection facility for so long. This is a complete validation of their work."

The Supreme Court of Canada's Insite ruling applies only to Insite. Other Canadian localities seeking to establish safe injection sites must win permission from the federal government. Canadian activists urged them to do so.

"In light of today's Supreme Court decision, jurisdictions Canada-wide should act fearlessly on evidence and make harm reduction services modeled on Insite available to those in need in their locales," said the Canadian groups. "The Minister of Health must respect the court's decision and grant similar exemptions to other sites so that people across Canada will be able to access the public health services they desperately need."

There are 67 safe injection sites operating today, with one in Australia, Insite in Vancouver, and the rest in Europe. There are no safe injection sites operating in the United States, although a move is afoot in San Francisco to get one underway there. The Drug Policy Alliance's Thomas said it is time to start pushing harder.

"For communities in the US which have been hard hit by drug use, it is time to look at the evidence from Canada and start opening supervised injection facilities here," she said. "We look forward to implementing the same desire to save lives in the US."

Vancouver, BC
Canada

Drug War Issues

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