Federal Government

Two states have already legalized marijuana, bills to do the same have been or will be filed in a half-dozen more this year, a federal bill to repeal pot prohibition has also been introduced, legalization initiatives aimed at 2014 or 2016 are already being plotted, and public opinion polls are showing support for marijuana legalization edging into majority territory. The opposition is started to get worried.

And it is moving to blunt the legalization trend. While official Washington has so far remained largely silent in the face of the fact of legalization in two states and the threat of it in more in the near future, special interests threatened by the end of marijuana prohibition and self-appointed anti-pot crusaders are starting to stage a pushback. While it is tempting to dismiss the crusaders as being on the wrong side of history, reform advocates are wary of their advocacy and say the good guys need to step up their game.

Project SAM (Smart About Marijuana), the recently formed brainchild of former Congressman-with-addiction-issues Patrick Kennedy (D-RI) and former Office of National Drug Control Policy staffer Kevin Sabet, last week authored a letter to US Attorney General Eric Holder calling on him to stand firm against marijuana legalization.

Its co-signers include a veritable cavalcade of beneficiaries of government drug spending, among them the federally-funded Community Anti-Drug Coalitions of America, the National Narcotics Officers Association Coalition, and the National Association of Drug Court Professionals (NADCP). Other signers are a Colorado pediatric physicians' group and Smart Colorado, "a broad-based alliance of concerned public health officials," which is funded almost entirely by Mel and Betty Sembler, long-time drug warriors notorious for having operated abusive treatment programs for teens in the 1990s.

"We are writing to you to enforce the Controlled Substances Act (CSA) in Colorado and Washington with respect to recent ballot measures legalizing marijuana," wrote Kennedy and the gang. "These state laws would severely threaten public health and safety goals, expressly contradict the President’s National Drug Control Strategy, make it impossible to comply with federal regulations, and present an obstacle to the achievement of Congress' discernible objectives to prohibit the use, sale, manufacture, and distribution of marijuana. We urge you to restate marijuana is illegal."

The marijuana legalization laws in Washington and Colorado "violate both the intent of Congress in enacting the CSA and the letter of the law," the letter continued. "The Department of Justice and Congress have determined through the CSA that marijuana is a Schedule I drug and as such growing, distributing, and possessing marijuana in any capacity, save a federal research program, is in 'violation of federal law regardless of state laws permitting such activities.'"

Project SAM advocates prevention and drug treatment for marijuana users and wants to avoid stigmatizing them, but still wants marijuana to be illegal.

"There is an arrest and prosecution industry in this country that depends on marijuana remaining illegal to maintain their budgets and stay in business," retorted Mason Tvert, one of the key organizers of the Colorado initiative and now a spokesman for the Marijuana Policy Project. "As Project SAM has said, we need to be focusing our attention on providing treatment to those who need it, but unfortunately their stance on marijuana would waste treatment resources on people who don’t. These groups talk about teens using marijuana, and if their true goal was preventing teen marijuana use, we would gladly join them, but their real goal is to keep marijuana illegal, and that doesn't benefit teens or anyone else… but themselves."

For one of the Project SAM signatories, signing on to somebody else's letter wasn't enough. The NADCP Monday released its own position statement against legalizing marijuana, saying "every dangerous and addictive drug was once believed to be safe and medicinal."

NADCP "unequivocally stands against the legalization of marijuana and the use of smoked marijuana as medicine," the group said. Society need not fall for the "false choice" of legalization or incarceration when it can find a third way through the "curative effects of drug courts and dozens of other treatment programs."

"Drug court is the equivalent of purgatory in the Catholic theology," commented Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. "If you comport with their demands and accept your moral turpitude, they may let you ascend. But if you fail the drug test or don't show proper deference to the system, you will not only be stuck in purgatory, but may pushed down into the bowels of hell," the veteran activist said.

"We get calls all the time from people facing this Hobbesian choice of drug courts or traditional courts, and we have to warn them that, unlike the early 1990s, when they looked like a good alternative to incarceration, we have seen so many cases where individuals face far worse penalties, fines, and incarceration in drug court than if they took the worst plea bargain in regular court. Drug court pleaders belong in the category of special interests who clearly benefit -- if not exist wholly -- because of this government prohibition."

Reformers should not take this new opposition lightly, some reformers say.

"While these groups are completely dependent on federal government anti-drug money and can be discounted as fighting to protect their own rice bowls, it would be a naïve and arrogant mistake to ignore them," said Eric Sterling, executive director of the Criminal Justice Policy Foundation. "Kevin Sabet is an energetic guy, and these groups have lots of taxpayer money to spend on this. They will mobilize in other states, and they have the ability to get the ear of the attorney general and others."

Similarly, said Sterling, "to a lay person, the NADCP statement is an impressive statement," even though policy and other experts may see their claims as overstated.

"People in reform should be concerned about a reaction," he said. "It is certain that these documents represent products being developed by a concerted movement to turn back the tide. The opposition is first out of the box on this," Sterling warned as he wondered aloud what the reform movement is doing to counter the counter-revolution.

"I was told in November that folks at Justice were completely blindsided by the victories in Colorado and Washington," he said. "What written correspondence to Holder can we point to about what they should do? I know there have been some informal conversations between state officials and the attorney general, but there is nothing in writing that both lays out a plea and a case for accommodating state laws."

That reflects a broader problem of lack of aggressiveness within the reform movement, he said.

"On one level, the reform movement is not being proactive," Sterling argued. "It's one thing to get an initiative passed, and we've demonstrated a high degree of competence at that, but we haven't seen that same sort of competence when it comes to Washington. It's a much more complex and tricky problem to mobilize a majority of the House or Senate, and there has not been a well-organized effort on a sustained basis to get Congress to weigh in. It's amazing to me that so far after 1996, no senator has ever introduced a bill to allow their state to have a medical marijuana program free from federal interference. There are now 36 senators from 18 medical marijuana states, and not one of them has ever introduced a bill. That's an amazing failure to organize by our movement."

The movement -- especially that part of it with deep pockets -- needs to step up, Sterling said.

"I'm not aware that any of our movement organizations have a strategy for getting the American Bar Association or other high-profile groups to take a position on marijuana enforcement after the passage of the initiatives," he said. "Those kinds of campaigns need to be thought about and have people assigned to do them. I haven't done that either, but I'm not a leader of any of the 'angel organizations' that do this work."

While the reform movement builds itself, it can still attack the foe, St. Pierre said.

The opposition is actively pushing back now. Reformers are working quietly with state officials on implementation of regulation, but they can't forget that Washington is where some crucial decisions get made. Project SAM and its allies certainly haven't.

Two Democratic congressmen announced Tuesday that they are introducing legislation to reform federal marijuana policy. In a joint press conference that also included representatives of drug reform groups, Reps. Earl Blumenauer (D-OR) and Jared Polis (D-CO) announced two separate bills aimed at addressing the looming clash between intransigent federal marijuana policies and states that have or likely will legalize marijuana. And more bills are pending, they said.

Blumenauer and Polis also released a report entitled "The Path Forward: Rethinking Federal Marijuana Policy," which outlines their perspective on marijuana policy and provides some background on regulation and opportunities for action. The congressmen have also established the Sensible Drug Policy Working Group, which will provide a forum for members of Congress who are working on related issues and hope to advance legislation.

Polis's Ending Federal Marijuana Prohibition Act would remove the DEA's authority over marijuana, end federal marijuana prohibition, and leave it to the states to decide whether to prohibit marijuana or not. Blumenauer's Marijuana Tax Equity Act, House Bill 501, would create a federal excise tax on marijuana similar to those imposed on alcohol and tobacco. Taken together, the two bills would provide for a system of marijuana regulation and taxation in states where it is legal.

More specifically, Polis's bill would:

• Remove marijuana from the Controlled Substances Act;
• Transfer the Drug Enforcement Administration’s authority to regulate marijuana to a newly renamed Bureau of Alcohol, Tobacco, Marijuana and Firearms, which will be tasked with regulating marijuana as it currently does alcohol;
• Require marijuana producers to purchase a permit, as commercial alcohol producers do, of which the proceeds would offset the cost of federal oversight; and
• Ensure federal law distinguishes between individuals who grow marijuana for personal use and those involved in commercial sale and distribution.

Blumenauer's bill would:

• Impose a 50% excise tax on the first sale of marijuana, from the producer to the next stage of production, usually the processor;
• Impose an occupational tax similar to those in the tobacco and alcohol industries on those operating in marijuana, with producers, importers and manufacturers facing an occupation tax of $1,000 per year and any other person engaged in the business facing an annual tax of $500 per year;
• Impose civil penalties for failure to comply with taxing duties. Criminal penalties will be assessed for intentional efforts to defraud the taxing authorities; and
• Require the IRS to produce a study of the industry after two years, and every five years after that, and to issue recommendations to Congress to continue improving the administration of the tax.

The time has come for marijuana law reform at the federal level, the two congressmen said.

"There has been an enormous evolution of American opinion on marijuana. Americans are sick and tired of the costs of marijuana prohibition, whether it’s the financial costs or the human costs. Americans are saying enough is enough, let's try a new policy. We need to address drug use as a public health issue, not a criminal justice one," said Polis.

"My bill doesn't affect the legal status of marijuana where it is currently illegal," the Colorado congressman explained, "but it does allow states that have created either a legalized and regulated scheme for sales or that have medical marijuana laws to operate, without the constant fear that the federal government and the DEA and the other agencies will prosecute patients or businesses that are fully legal under state law. This is an idea whose time has come."

"Forty years ago, as a freshman member of the Oregon legislature, I was able to vote to make Oregon the first state to decriminalize the possession of small amounts of marijuana," said Blumenauer. "Since then, 14 states have joined Oregon, and after California legalized medical marijuana in 1996, we now have 19 jurisdictions that have authorized it, and we now have the first two states that have legalized marijuana for recreational use."

The Oregon congressman added that he and Polis are working with a bipartisan group of representatives and that up to eight or 10 marijuana reform bills could be introduced this session.

"We're looking at antiquated and sometimes nonsensical federal laws and policies to try to get us on a path that is less expensive, more productive, more fair, and more in tune with where America is going," Blumenauer said. "We arrested two-thirds of a million people in 2011 for a substance most people think should be legal. The president said he has bigger fish to fry, but there are still people further down the federal food chain frying those fish."

"This is a very exciting day," said Bill Piper, director of national affairs for the Drug Policy Alliance. "Last November, voters in Colorado and Washington made history, and the polling shows that a majority of Americans now support legalizing marijuana. There is no doubt more states will legalize in the years to come. This is the beginning of the end of marijuana prohibition."

"We were a primary backer of Amendment 64 in Colorado, which directed the state to regulate marijuana in a manner similar to alcohol," said Steve Fox, director of government relations for the Marijuana Policy Project. "That's how we believe it should be treated, and we look forward to working with Reps. Polis and Blumenauer to see that this legislation is eventually passed by Congress."

If not this year, then soon, the congressmen said.

"There is growing support for this bill," Polis argued. "There has really been a sea change; we saw test votes in the last Congress for defunding the DEA and other things, and saw very strong support, and that will only increase over time. Congress is frequently a lagging indicator for public opinion; it’s a question of Congress catching up."

"This is the beginning, not the end," said Blumenauer. "My bill is a first step and we anticipate some give and take, but this will be gaining momentum.  We've got legislation here today to get the ball rolling, but there will be more that you will be hearing about in the days ahead."

"It's clear that we've reached a tipping point," said Piper. "Major changes are going to happen and are happening now. The American people are demanding reform, and members of Congress are starting to give it to them."

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

In a major victory for property rights advocates, a federal judge in Massachusetts last week struck down a scheme by federal prosecutors to seize a motel owned by the Caswell family on rundown Main Street in Tewksbury. The ruling in US v. 434 Main Street, Tewksbury, Massachusetts should make it more difficult for the government to seize a person's property if third parties committed criminal offenses on that property without the property owner's knowledge.

The ruling reinforced longstanding complaints that the use of asset forfeiture statutes -- both federal and state -- is so broad as to be tantamount to an abuse of power. Under such laws, prosecutors file civil actions seeking to seize the property of accused criminals as the fruits of crime, but they often result in citizens being deprived of their property without ever being convicted of a crime, sometimes even without ever having been arrested.

"People better wake up to what's going on with the government taking property under this federal civil forfeiture law," said Russ Caswell, 69, longtime owner of the Caswell Motel. "I was never charged with a crime and I never participated in no drug crimes on my property," he told the Chronicle Sunday. "Neither did the police tell me that my business was a problem, plus we often reported to police about criminal activity on the premises, but they still tried to take my property. I am thankful to God and my attorneys that this nightmare is over."

The Caswell Motel isn't the Hilton -- like countless thousands of other low-end motels on gritty streets across the country, it offers rooms by the week, and its clientele includes itinerant construction workers, traveling salesmen, the just-up-from-homeless, and, yes, the occasional drug user or peddler.

US Attorney Carmen Ortiz had sought to seize the Motel Caswell from the Caswell family under the theory that the motel allegedly facilitated drug crimes. The government provided evidence of 15 drug-related incidents between 1994 and 2008, rousing US Magistrate Judith Dein to note tartly in her opinion that "it should be noted that during this 14 year period, the Motel Caswell rented out approximately 196,000 rooms."

Dein found that Caswell "did not know the guests involved in the drug crimes, did not know of their anticipated criminal behavior at the time they registered as guests, and did not know of the drug crimes while they were occurring."

The government argued that the Caswells had failed to cooperate with police to alleviate drug problems at the property, but Dein cited numerous examples of the motel's cooperation with Tewksbury Police, and also noted that "there is no contention in this case that anyone from the Caswell family has been involved in any criminal activity either at the Motel or elsewhere. It is undisputed that they are a law-abiding family. Mr. Caswell testified that he had never been charged with any crime in his life."

Then Dein blistered the prosecution.

"It is rather remarkable," she wrote, "in this court's view, for the Government to argue in this case that the Property owner should lose his property for failure to undertake some undefined steps in an effort to prevent crime, while putting on evidence that the police drove through the Property routinely, knew the Property owner's identity and that he lived next door to the Motel, and never contacted him in an effort to work together to control crime at the Property. No comparable cases have been cited by the parties, and none have been found. Having failed to notify Mr. Caswell that he had a significant problem, and having failed to take any steps to advise him on what to do, the Government's resolution of the crime problem should not be to simply take his Property."

The federal magistrate then flatly dismissed the government's case. "The Government has failed to meet its burden of establishing that the Motel is subject to forfeiture," Dein found. "In addition, this Court concludes that the Claimant has met his burden of proving that he is the innocent owner of the Property."

Attorneys and asset forfeiture critics applauded the decision. Darpana Sheth, a Virginia-based pro-bono attorney who assisted with the defense of the Caswell Motel called the verdict "very important" and said it could have wider implications if other judicial districts and lawyers pick up on it.

"This decision will make it tougher for the government to initiate forfeiture proceedings or file complaints based on the actions of third parties," she said.

"This is a complete victory for the Caswell family and for the protection of private property rights," said attorney Scott Bullock, after Dein's ruling. Bullock, who represented the family, is a senior attorney for the Institute for Justice (IJ), a Virginia-based public interest law firm specializing in fighting federal and state forfeiture abuse nationwide.

Caswell definitely needed the Institute's help, his family's limited resources having been eaten up in earlier stages of their battle with a relentless federal prosecutor.
 

"After running out of money after spending over $100,000, my local attorney discovered the Institute for Justice on the Internet," said Caswell."Had it not been for the Institute representing me pro-bono, I would have lost the motel and my livelihood."

While the Institute is a bulwark of the fight against asset forfeiture abuses, it is perhaps best known for its David vs. Goliath victory over billionaire Donald Trump in an Atlantic City eminent domain case in the 1990s. In that case, the Institute successfully represented a property owner whose land Trump wanted for a parking lot for his casino and hotel, blocking Trump's plan and saving the property.

The Caswell Motel case also opened a window on unsavory practices around asset forfeiture and raised questions of "policing for profit." Although Caswell attorneys argued -- and the court agreed -- that the family had cooperated with police to alleviate the drug problem, someone tipped the DEA to a potential target. The property had an estimated value of between $1.5 million and $1.8 million. Through the federal asset forfeiture "Equitable Sharing Program," state and local law enforcement agencies involved would have received 80% of the value of the Caswell property, with the feds reaping the other 20%.

"What the government did amounted to a grab for quick cash under the guise of civil forfeiture," said attorney Larry Salzman, another IJ attorney.

The workings of the asset forfeiture machine were partially revealed in the deposition of Vincent Kelly, DEA Special Agent in the New England office asset forfeiture unit. He testified under oath that his job was to look for high-dollar property with no mortgage to be forfeited. Kelly explained clearly how he checked the Registry of Deeds "to find out who owns the property and how much equity is on the property." Then, the DEA would contact local police to see how many drug arrests or other serious crimes been committed on the property.

Kelly said it was DEA policy to deal only with property worth at least $50,000.00. With Caswell Motel's worth between $1.5 and $1.8 million dollars, it was ripe for forfeiture since many drug arrests had occurred there.

In another sign that the motel had been the target of selective prosecution, defense attorneys and the Lowell Sun also uncovered evidence that at one point, narcotic officers and police made more arrests on the premises of Walmart, IHop, and Home Depot, nearby businesses also located off I-95 on Main Street. From 2010-2012, the attorneys said 19 drug arrests were made at Caswell Motel, with 24 drug arrests on Walmart's premises, 14 at Home Depot and five each at Applebee's and Burger King. But those are all deep-pocketed corporations with legions of lawyers; the Caswell family and its motel was not.

The Caswell Motel case is only an especially egregious example of asset forfeiture abuses. For years, attorneys, community activists, and advocacy groups, such as Forfeiture Endangers Americans Rights (FEAR) and Americans for Forfeiture Reform have been fighting to reign in such prosecutorial misconduct, and some progress has been made.

Some states implemented higher burdens of proof for police to seize property or acted to reduce the incentive to police for profit by directing that all or some seized funds go to the state general fund or education fund -- not straight into police coffers. And some states require an actual conviction before civil asset forfeiture can proceed.

But facing increasingly tougher standards and regulations, state and local law enforcement have learned to hand their cases over to the feds, ensuring that the cops get their cut under the equitable sharing program, but in effect robbing state governments of funds that should have gone to them. According to a Cato Institute study, as of 2008, the Justice Department's forfeiture fund reached $3.1 billion, with less than 20% of property seized coming from cases where the owners were prosecuted.

At the federal level, things are a bit better than they used to be, but it clear that room for abuse still exists, as the Caswell case demonstrates. Prior to federal asset forfeiture reform legislation passed in 2000, seizures could be made on mere suspicion that the property was involved in a crime. Once that happened, the property owner had to prove by a "preponderance of evidence" that the property was not involved in a crime.

Ironically, it was the attempted seizure of another motel, the Red Carpet Inn in Houston, Texas, that helped lead the way to passage of the Civil Asset Forfeiture Reform Act of 2000. In that case, the feds seized the motel in 1998, claiming it was a "drug haven."

Like Caswell, Red Carpet owner Jason Brice had complied with police by hiring security and allowing police to patrol his property, and had spent thousands of dollars to comply with law enforcement demands that the motel discourage drug dealing. But when Brice balked at raising room rates and then revoked permission for police to patrol the property, the feds moved in with a civil forfeiture claim. Brice won in court, but only after years of stress and hundreds of thousands of dollars in attorneys' fees.

Led by then Rep. Henry Hyde (R-IL) and inspired by cases like that of the Red Carpet Inn, Congress finally acted in 2000, passing the first effort to rein in asset forfeiture abuse at the federal level. The reforms include the "innocent owner" defense that Caswell successfully used in its trial.

But the civil asset forfeiture machine that grew out of Ronald Reagan's 1980s drug war keeps on humming. When the Department of Justice's Asset Forfeiture Fund to split seized goods with local and state law enforcement started in 1986, it took in $93.7 million. Last year, it took in $1.5 billion. That is a real and continuing incentive to pervert policing in pursuit of profits.

"It's like stealing your property in a hold-up without a gun," summed up Russ Caswell. "It goes back to our founding fathers. What happened to me was so un-American."

Someone needs to tell US Attorney Ortiz, who has not yet given up the fight for the Caswell Motel. On Tuesday, her office said "we are weighing our options with respect to appeal." They have until March 15 to file, and until then, Russ Caswell and his motel still aren't in the clear.

A US Food and Drug Administration advisory panel voted last Friday to recommend that popular pain relievers containing the opioid hydrocodone be moved from Schedule III to Schedule II of the Controlled Substances Act. Popular prescription drugs containing hydrocodone include Vicodin and Lortab.

That would put Lortab and Vicodin in the same schedule as morphine and Oyxcontin, which contains oxycodone.

If the FDA agrees with its advisory panel and reschedules hydrocodone, pain patients using the drug will have to go the doctor's office to get prescriptions written twice as frequently as now. Schedule III drugs can be prescribed for up to six months at a time, while Schedule II drugs can only be prescribed for three months without another visit to the doctor.

The FDA has for years resisted efforts to tighten controls over hydrocodone, saying it could limit patients' access to pain medicine, but as overdose deaths and addiction rates from prescription pain relievers have jumped in recent years, pressure has been mounting on the agency. The agency is acting now after receiving a request from the DEA to consider rescheduling.

The advisory panel's 19-10 vote received mixed reviews from experts consulted by the Milwaukee Journal-Sentinel.

Andrew Kolodny, a psychiatrist and addiction specialist who heads Physicians for Responsible Opiate Prescribing lauded the vote, saying it will lead to fewer people getting addicted to opiates.

"Doctors have had a false sense of security (about prescribing the drugs)," said Kolodny. "This is a clear message that hydrocodone is addictive," he told the Wisconsin newspaper.

"It seemed pretty clear to me that the preponderance of the evidence supported rescheduling," said Peter Kaboli, associate professor at the University of Iowa Carver College of Medicine.

But Jan Chambers, president of the National Fibromyalgia and Chronic Pain Association, said she voted against the proposal because she has heard so much from family members of people who have committed suicide because they are in such pain.

"Millions of people don't have access to the pain specialist or the doctors who can prescribe these Schedule III drugs," she said.

And Lynn Webster, president-elect of the American Academy of Pain Medicine, said putting tighter controls on hydrocodone will reduce prescribing and abuse, but worried about the impact on pain patients.

"I hope chronic pain patients and acute pain patients don't suffer as a result," said Webster, who spoke at the panel hearing but was not a panel member.

The FDA has not said when it will make a final decision on the issue. Now, the FDA and the National Institutes of Health must make a recommendation to the assistant secretary for health, who will make a final recommendation to the DEA.