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Feature: West Virginia School Board's Random Teacher Drug Testing Plan Headed for Court

After several months of discussion, the Kanawha County (Charleston), West Virginia, school board voted 4-1 in October to go ahead with a plan to randomly drug test teachers and other school district employees. The new policy expands an existing policy that provides for drug testing of teachers upon suspicion of drug use. The move came despite repeated warnings that it would result in a long and costly legal battle with teachers and civil libertarians.
drug testing lab
The policy of randomly testing teachers and other employees without cause is at the spear tip of the expansion of drug testing. While random drug testing of students involved in athletics or extracurricular activities has been approved by the US Supreme Court, the random testing of teachers and other district employees breaks new ground. A similar battle is underway in Hawaii, where Gov. Linda Lingle is attempting to impose drug testing as part of a new teachers' contract, and a Louisiana state legislator is attempting to do the same thing there. But beyond those instances, data is scarce.

"It's hard to get firm data on this," said Lisa Soronen of the National School Board Association. "We don't have much more than anecdotal information, but my sense is that teacher drug testing is an issue that is more often considered than followed through on because cost, constitutional challenges, and political pressure not to do it make in undesirable for many school boards."

The association takes no position on teacher drug testing, said Soronen. "We have not taken specific positions on either student or teacher drug testing," she explained. "Our mantra is one of local control. Our view is not that school districts should do this, but that they should make the decisions themselves. If they want to do it, they should be able to."

Although both West Virginia courts and the US Supreme Court have held that government workers cannot be forced to participate in suspicionless random drug testing programs unless they are working in "safety sensitive" positions, the Kanawha school board is hoping to get around those rulings by defining virtually all school jobs as "safety sensitive."

"I guess there's nothing more safety sensitive than someone who has my child all day long," school board president and mother Becky Jordon told the Charleston Daily Mail late last month.

In local press articles, all four board members who voted for random drug testing cited community pressure, despite little evidence of drug use among district employees. That pressure was in part the result of three highly publicized but statistically insignificant incidents involving drugs and school employees in recent years. In one case, an elementary school teacher was arrested for cocaine possession, but was later acquitted and returned to work. In another case, there are allegations that a librarian had a relationship with two male students that included drug use. In a third case, an elementary school teacher was arrested after police found methamphetamine making materials in his home.

But some board members also suggested they hoped they could set legal precedent in expanding the scope of drug testing. "As a board member elected by the public, with the constituents I could not find any reason why I should not at least respond to the will of the people to pursue something I was not totally convinced had been eliminated as totally unconstitutional," board member Bill Raglin told the Daily Mail. "I'm not going to go against the ruling of the courts, but I want to hear what the courts have to say," he said. "And I'm not willing to accept what I am told by the ACLU lawyer or anyone else because it's an opinion they have -- it's not a court ruling."

Now, the warnings of legal challenges have come true. On November 26, the American Federation of Teachers (AFT) West Virginia affiliate filed suit in Kanawha County District Court seeking to block the program from being implemented. Last week, the West Virginia Education Association (WVEA) and the American Civil Liberties Union (ACLU) joined the fray, filing a second district court lawsuit seeking to block the program before it goes into effect on January 1.

"The Board left us no choice but to file the suit once they decided to implement a policy that risks student safety and violates the constitutional rights of its employees," said AFT-Kanawha chapter head Fred Albert. "The policy violates the constitutionally protected privacy rights of those school employees who will be randomly screened and who are not engaged in safety sensitive positions. The policy, in effect, places all teachers under suspicion; and this is both morally and legally wrong."

"The proposed random drug testing of public school employees is an affront to our fundamental rights and a senseless waste of scarce taxpayer dollars that will not increase student safety," said Adam Wolf, an attorney with the American Civil Liberties Union. "Public servants should not be required to surrender their constitutional rights as a condition of serving their community."

The AFT-Kanawha's Albert told the Chronicle Wednesday that while the issue of employee drug use probably drove the board to its decision, there was really very little of substance to it. "We had a case three years ago of an administrator who was caught with a substance, but he was cleared in a court of law and reinstated," Albert said. "There have been two other cases, but neither one was people showing up impaired by drugs. I think this was the primary factor in the board's decision."

Albert was quick to point out that while his organization is fighting the new policy, that doesn't mean it supports dope-snorting teachers. "My union does not and has never advocated for teachers or any other school employee using drugs or being impaired and putting children in harm's way," he said. "There is a policy in place, approved by the board about a year ago, that anyone who appeared to be impaired on the job should be tested on suspicion. We don't have any problem with that. But we don't feel that the rest of us who don't use illegal drugs should be considered guilty and have to prove our innocence."

Now it will be up to the courts to decide. And the Kanawha School Board is preparing to spend hundreds of thousands of scarce education dollars to find out. Albert and the teachers think that money, and the estimated $40,000 a year to implement the random drug testing program, could be better spent actually educating students.

Marijuana: "Substantial" Settlement in Lawsuit in Case of DC Quadriplegic Who Died in Jail While Serving 10-Day Sentence for a Joint

The mother of a quadriplegic inmate who died after suffering breathing problems in the District of Columbia Jail has reached a settlement with the DC government and care providers. While Jonathan Magbie's mother declined to reveal a dollar figure, the ACLU National Prison Project, which helped litigate the case, called the sum "substantial."
Jonathan Magbie
Magbie, 27, a resident of nearby Maryland, was paralyzed from the neck down and used a mouth-operated wheelchair to get around. He was arrested in April 2003 when DC police found a gun and a small amount of marijuana in his pocket after they pulled over a vehicle driven by his cousin. In September 2004, DC Superior Court Judge Judith Retchin sentenced him to 10 days in jail after he pleaded guilty to marijuana possession. Although it was Magbie's first offense, Retchin later told a judicial review committee she sentenced him to jail because he said he would continue to smoke marijuana to relieve his pain.

Magbie died before making it halfway through his sentence. He needed a ventilator to breathe at night, but the DC jail infirmary didn't have one. Investigations after his death determined that he was taken to a hospital for "respiratory distress," but later returned to the infirmary. Jail doctors did not perform a follow-up exam, nor did they regularly conduct rounds to check on patients, including Magbie.

"DC's jail system had a duty to care for Jonathan Magbie's serious medical needs," said Elizabeth Alexander, director of the ACLU National Prison Project. "The jail and the Greater Southeast Community Hospital failed to live up to that obligation and it resulted in an agonizing and unnecessary death."

As part of the settlement, correctional officials have agreed to modify a number of policies in order to protect prisoners with severe medical problems and physical disabilities, including modifying the medical screening forms for incoming prisoners and spelling out medical conditions too severe to be treated at the jail's infirmary. Also, prisoners with medical needs that can't be met by correctional staff must be transferred to a facility that can provide an appropriate level of medical care.

"The family's concern was to make certain that, to the extent anyone can prevent it, that this terrible type of event never happens again," said Alexander. "A series of people dealt with this young man, and every single place where something could go wrong, it did go wrong."

Marijuana: Chicago Heights Decriminalizes

The far south Chicago suburb of Chicago Heights, Illinois, has hopped on the marijuana decriminalization bandwagon. The town of just over 30,000 people acted Monday night to craft a local ordinance that it will use instead of prosecuting people under state law.

Under the ordinance approved under the city's home rule authority, people caught with less than 30 grams of marijuana will not face criminal charges, but will instead be ticketed and go through an administrative hearing in city court.

Making simple marijuana possession an ordinance violation rather than a crime will help "unclog" the criminal justice system, said City Attorney TJ Somer. It will also provide extra revenue to the city because the city does not have to share revenue from fines with the Cook County Circuit Court system, as it would have to do if it handled them under state law.

Medical Marijuana: US Supreme Court Declines to Hear Challenge to Appeals Court Ruling Protecting State Medical Marijuana Laws

The US Supreme Court Monday declined to review a lower court decision that ordered Garden Grove, California, police to return marijuana seized from a medical marijuana patient. In November 2007, the California Fourth District Court of Appeal had ordered the marijuana returned, finding that "it is not the job of local police to enforce federal drug laws."
US Supreme Court
The case was that of Felix Kha, who was pulled over by Garden Grove police in 2005 and cited for marijuana possession despite showing officers his medical marijuana documentation. The possession case against Kha was subsequently dismissed, and the Orange County Superior Court ordered the police to return Kha's wrongfully seized quarter-ounce of marijuana. Police and the city of Garden Grove refused to return the pot, and appealed the ruling, but lost in the state appeals court last year.

The California Supreme Court refused to review the case in March. Now, the US Supreme Court has followed suit. The refusals to hear the appeal means the two high courts have accepted the state appeals court's reasoning that California's medical marijuana law is not preempted by federal law, said medical marijuana advocates.

"It's now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law," said Joe Elford, chief counsel with Americans for Safe Access (ASA), the medical marijuana advocacy organization that represented Kha. "Perhaps, in the future local government will think twice about expending significant time and resources to defy a law that is overwhelmingly supported by the people of our state."

But Lois Bobak, a private attorney whose firm represents the city on a contract basis, said the issue in the case was a narrow one. "The US Supreme Court didn't issue any kind of ruling, it just failed to review a lower-court decision," Bobak told NBC Los Angeles. "You can't read too much into that fact. The city felt it was important to pursue the legal principle that police shouldn't be put in a position of returning a substance that is contraband under federal law."

It's federal law that needs to change, said ASA spokesman Kris Hermes. "The source of local law enforcement's resistance to upholding state law is an outdated, harmful federal policy with regard to medical marijuana," he said. "This should send a message to the federal government that it's time to establish a compassionate policy more consistent with the 13 states that have adopted medical marijuana laws."

Feature: South Dakota Medical Marijuana Backers Take Aim at the Statehouse

In 2006, South Dakota gained the dubious distinction of being the only state to defeat an initiative that would have legalized the medicinal use of marijuana. That effort failed narrowly, garnering 48% of the popular vote. But now, South Dakota marijuana reform activists are back, and they are hoping to move a bill through the state legislature in the session beginning next month.
South Dakota badlands
According to Bob Newland, spokesman for South Dakotans for Safe Access, a proposed bill that would allow qualifying patients to cultivate, possess, and use medical marijuana has been drafted, and the hunt is on for sponsors. The legislative session begins next month, and any bill to be considered must be introduced by early February.

Newland said the group is also considering other legislation, including a bill to reschedule marijuana from Schedule I to Schedule IV and a bill that would allow an affirmative defense for medical marijuana patients.

"Everything is moving much faster than we thought it would," said Newland. "We've lined up a couple of stellar medical witnesses and may get a couple more, and I think we have a good doctor lined up, too. There has been lots of email and phone support in the couple of weeks since we announced we were moving ahead, and lots of donations, too. Now, we need to find sponsors."

Newland said he was working on that this week, holding meetings in the state capital, Pierre, on Thursday and talking to Democratic Party members in Sioux Falls, the state's largest city, today.

A change in the state's approach to medical marijuana couldn't come early enough for patients. Not only does South Dakota not recognize medical marijuana, it is a state where people actually go to jail for simple possession -- and to prison for growing even a pair of plants.

"We absolutely need a medical marijuana law, and not just for AIDS patients, but for cancer, glaucoma, you name it," said Western South Dakota rancher Tom Faltynowicz, an AIDS sufferer. "It would make a huge difference not having to worry about being busted for something that's keeping me alive. The law needs to change."

Faltynowicz speaks from personal experience. While he has being using medical marijuana with his doctor's knowledge and approval for nearly 20 years, that didn't stop him from being arrested and prosecuted for growing his own medicine. Earlier this year, Faltynowicz pleaded guilty to possession of more than two ounces but less than a pound of marijuana, a felony under South Dakota law.

Fortunately for him, and thanks to letter-writing efforts to his sentencing judge, Faltynowicz was sentenced only to probation, including drug testing, and was specifically allowed to use Marinol during his probation. (Since drug tests only detect the presence of THC, they cannot distinguish between Marinol and marijuana.)

"We need it as much as ever, not only for the people suffering within the state, but to show the rest of America that a red state like South Dakota can accept this," said medical marijuana patient Valerie Hannah, who served as a spokesperson for the 2006 initiative. "If someplace like South Dakota can pass medical marijuana legislation, that should be a huge wakeup call for the federal government to stop prosecuting patients as criminals," she said.

But it won't be easy. Republicans dominate both houses of the state legislature, where earlier bills went nowhere. The Republican attorney general, Larry Long, spearheaded law enforcement opposition to the 2006 initiative and appears ready to reprise that role in the coming months.

"Long had some complaints about the wording of the 2006 initiative," said Newland. "I am telling Long that South Dakotans for Safe Access is willing to work with the attorney general's office in drafting a law all of us can live with."

According to his spokesperson, Sara Rabern, Long remains opposed to medical marijuana. "His stance is still the same," she said Thursday. Long was traveling, and Rabern did not know whether he would be amenable to working with the bill's sponsors to address law enforcement concerns.

"It will be an uphill battle in the legislature," Hannah predicted. "We need someone with clout to carry our message in Pierre, and we need to get some real grassroots support going," Hannah said. "I fear they will throw it out again, but if we can get out of committee and make it to a floor vote, that would be real progress."

Another key constituency in medical marijuana battles is the medical profession. In several states that have had successful medical marijuana campaigns, state nursing and/or medical associations have publicly supported the therapeutic use of marijuana. That's not the case in South Dakota.

"We haven't looked at this issue for awhile," said Brittany Novotny, head of the South Dakota Nurses Association. "We do not take a formal stance for or against. If this comes up in the next session, our government relations committee will have to decide whether this is a fight we want to be part of or not."

The South Dakota State Medical Association did not return calls seeking comment.

One factor that may be working in favor of the legislation is the closeness of the 2006 vote, which demonstrated significant, if not quite majority support for medical marijuana, and the threat of another effort to go direct to the voters in 2010. "Maybe the fear of leaving this to the people will prod them into action," said Hannah. "One of the big concerns here is how this will affect illegal drug use in South Dakota, but if crafted correctly, the bill could be a boon to law enforcement. If they are willing to sit down and work with us, we could come up with a bill that could address their concerns."

Newland said he is hard at work on endorsements from medical professionals, as well as working with some churches to garner support. While the effort faces long odds, Newland remains optimistic. "The last time we went to the legislature, we didn't have 48% of the people voting for medical marijuana two years earlier. We had always bargained from a position of weakness, but now we have a club to carry into the hearing rooms."

Feature: On the 75th Anniversary of the Repeal of Prohibition, Reformers Ponder the Past and Look to the Future

Today marks the 75th anniversary of the repeal of alcohol Prohibition, when Utah -- Utah!--became the 38th state to ratify the 21st Amendment to the Constitution, repealing the 18th Amendment and the Volstead Act and drawing the curtain on America's failed experiment with social engineering. Repeal of Prohibition seemed unthinkable in 1930, but three years later it was history. Perhaps there are lessons to be learned as we commemorate that day.
prohibition-era beer raid, Washington, DC (Library of Congress)
Prohibition engendered many of the same ills identified as plaguing drug prohibition today -- huge economic costs of enforcement, the criminalization of otherwise law-abiding citizens, the growth of criminal trafficking groups, corruption, deleterious public health consequences (bathtub gin, anyone?) -- and its repeal may be instructive for people working to end the drug war now. It is certainly an occasion worthy of note by anti-prohibitionists, and at least two groups, LEAP (Law Enforcement Against Prohibition) and the Criminal Justice Policy Foundation, used the anniversary to call this week for an end to drug prohibition.

At a Tuesday press conference in Washington, DC, LEAP unveiled a new project, We Can Do It Again!, where people are invited to send the anti-prohibitionist message to their federal representatives, and a report with the same title detailing and comparing the ills of Prohibition and current day drug prohibition. In its recommendations to policymakers, the report called for a national commission to study the true costs of drug prohibition, called on state and local legislatures and executive branches to reevaluate drug war spending, and urged "incremental reforms" and harm reduction measures in the short-term.

"In 1932, a majority of Congress realized that prohibition was ineffective," recalled Eric Sterling, head of the Criminal Justice Policy Foundation, at the press conference, "In 1933, more than two thirds of Congress sent prohibition repeal to the States for ratification. We ended prohibition's ineffective approach to alcohol control then, and we can do it again for drug prohibition now."

The parallels between Prohibition and today's drug prohibition are many, said Sterling. "Congress embraced the term 'war on drugs' in the early 1980s as the Colombians drove the Cubans out of control of the cocaine traffic with machine gun battles on South Florida streets and shopping malls. The violence mimicked the street battles to dominate the beer and liquor trade in American cities in the 1920s, exemplified by the 1929 Valentine's Day massacre in Chicago," he noted. "In 1929 the ruthless violence of Al Capone was fueled by alcohol prohibition profits. Maintaining our current approach, in 2009, the violence of al Qaeda will be financed by drug prohibition profits. We have to stop this violence, as we did 75 years ago. In Colombia, for more than two decades, I have observed drug prohibition finance terror -- by both the enemies and the allies of the government -- that undermines the institutions of their society. Seventy-five years ago, we ended the violence of alcohol prohibition, and we must do it again. We can do it again."

"We believe there are significant similarities between alcohol Prohibition and the drug war prohibition we have going on right now," Richard Van Winkler, LEAP member and superintendent of a New Hampshire correctional facility, told the Chronicle Thursday. "Prohibition doesn't stop Americans from using any substance they choose to. We tried that in the 1920s, and it failed, and now we are trying it again. We advocate for drug legalization not because we advocate for drug use, but because as those drugs are prohibited, we will continue to fund a significant criminal element that is getting larger and more powerful every day."

Sterling and LEAP weren't the only people musing about the end of Prohibition this week. "There are significant parallels, but also dissimilarities," said Dale Gieringer, head of California NORML. "Both Prohibition and drug prohibition are products of the same Progressive Era, an era of intense temperance agitation on all levels, with a lot of religious fervor behind it. One lasted 13 years, the other is with us still."

Long-time marijuana activist Dana Beal of Cures Not Wars saw little reason for optimism in the end of Prohibition. "I think you're dreaming if you think you can apply to marijuana the experience of repeal of prohibition of the psychoactive sacrament of the Catholic Church," he said. "Think outside the box. The end of alcohol prohibition has almost zero lessons for how we get out of pot prohibition."

But his was a decidedly minority view. "One lesson we can draw from Prohibition is that it did not work very well," said Aaron Houston director of government relations for the Marijuana Policy Project, "and we're seeing parallels to that today. In Mexico, the drug trade violence is spectacularly awful and increasingly vicious. Heads are rolling onto playgrounds there, and the cartels are coming to the US and kidnapping American citizens. By maintaining prohibition, we are giving our money to some very, very bad people, and there is a lesson there for our current prohibition policy; I call it the Al Capone lesson," he said.

"I think what many people don't realize is that what gave the Prohibition repeal movement muscle in 1930 was the Great Depression," said Houston. "Federal income tax revenues were declining significantly. Now, we are seeing similar economic problems. I think reformers should focus on the cost of marijuana prohibition. We have 13 states that are spending more than a billion dollars a year each on prisons, and what's the payoff?"

One big difference between Prohibition and drug prohibition is the level of debate, Gieringer said. "There was a huge public debate about Prohibition, it was a dominant issue for years, but there was very little debate about drug prohibition. Even now, drug prohibition is not that much of an issue. There is a lot of very ugly stuff going on in foreign countries, but that's not here. The last time drugs were a big issue here was 20 years ago, with the crack violence in the streets of America, and that got people riled up and not in an anti-prohibitionist way."

Some of the sunnier views of both the status quo and the prospects for change come from California, where the state's loosely-written medical marijuana law has created a sort of de facto personal legalization for anyone with a little initiative and $150 for a visit to the doctor's office for a recommendation. The state's network of dispensaries, now in the hundreds, has flourished despite the DEA's best efforts, creating a real world vision of what retail marijuana sales could look like. And now, the incoming president has promised to call off the dogs.

"After being involved in this issue since 1994, I think we're seeing a need for a lot of things to shift around to end prohibition, and the perfect storm may have arrived this year," said Jeff Jones, founder of the Oakland Cannabis Buyers Club. "We have the alignment of a Democratic Congress and a Democratic president who has said he has used drugs, both soft and hard, and an economic recession. This could trigger a turn similar to that which we saw with the Great Depression and Prohibition."

Facts on the ground are creating a new reality, Jones said. "An end to prohibition is knocking at the door. There are new tax revenue streams being identified here, and public officials are starting to rethink this whole issue. And the Supreme Court's refusal to overturn the Kha case [where a California appeals court ruled that state and local police need not enforce federal drug laws; see story here] means it's over. We won with no fanfare. We don't get a badge or a checkered flag, but by default, we have won this week. It doesn't matter what the feds do. We're going to create infrastructure, jobs, and tax dollars, and we're going to change minds. The medicalization of cannabis has changed things forever, and there's no going back now," Jones prophesied.
Speakeasy photo, with flappers (courtesy
"I think with marijuana prohibition, developments on the ground can drive the lawmakers faster than anything else," said Gieringer. "We had medical marijuana in California before we ever passed Proposition 215, thanks to people like Dennis Peron. And now you have Oaksterdam and the efforts to promote that. Although that is still in embryonic form, the more we have it out there on the ground, the more people will come to accept it."

Coming out of the closet is both desirable and necessary, said Gieringer. "Most people are happy as long as drugs stay out of sight and mind, but as we've seen with the LA cannabis clubs, people have learned to be comfortable having them around. We need more of this. Drugs in general need more public visibility to gain more public acceptance," Gieringer argued. "People need to know the world isn't going to collapse, because they've forgotten what it was like a hundred years ago, when our 19th Century legal drug market worked very well."

"With alcohol Prohibition, people had living memories of life before Prohibition," agreed LEAP's Van Wickler. "The generation taking power now doesn't know life without drug prohibition. That makes the paradigm shift all the more difficult."

But even with what's going on in California, there is a long way to go, said Gieringer. Federal legalization of marijuana is unlikely, he said, and thus, so is outright legalization in the states. "I don't see any state passing legalization, in part because of the harsh federal response to medical marijuana. What we need to do is first create de facto, on the ground legalization," as is arguably or partially the case in Gieringer's home state.

The United States has pinned itself to perpetual prohibition through the UN Single Convention, Gieringer noted. Federal legalization would require modifying the convention, and that would require a two-thirds vote in the Senate. "That's a major project, given that we don't have even one senator who even supports medical marijuana, much less decriminalization," he noted dryly.

If the federal government appears unmovable in the near term, then it is going to be up to the states to push the envelope, despite the obstacles. "I think the end of marijuana prohibition is going to come with the states taking action first," said Dr. Mitch Earleywine, a leading academic marijuana expert and editor of Pot Politics. "As a number of states not only have good experiences, but also start bringing in the tax revenues, the cogs will begin to turn at the federal level. We're already seeing this in California, where the rough economic times are being buffered by medical marijuana cash."

But despite all the cautious prognostications, there is one final lesson of Prohibition that may warm reformers hearts. "One of the most cheering things about Prohibition was that even though it looked impossible to end for so long, it collapsed so quickly," Gieringer said. "In 1930, the prohibitionists said there was as much chance of ending it as a bird flying to the moon with the Washington monument tied to its tail, but within three years it was gone. The conventional wisdom of 1930 about Prohibition is the same as the conventional wisdom about repealing the drug laws now, but as we saw, things can happen very quickly."

So, tonight, toss down a cold one as you commemorate Repeal Day and hope we don't have to wait another 75 years to celebrate the end of drug prohibition. How about 7.5 years instead?

Medical Marijuana: California Supreme Court Tightens Definition of "Caregiver," Ruling Will Push Patients Toward Co-ops and Dispensaries

In a narrow interpretation of the state's Compassionate Use Act, the California Supreme Court ruled Monday that people who supply medical marijuana to an approved patient can be prosecuted as drug traffickers if they don't meet the court's standards for caregivers. That standard must involve more than merely supplying medical marijuana to a qualifying patient, the court held.
California medical marijuana bags (courtesy Daniel Argo via Wikimedia)
Prior to Monday's ruling, marijuana growers who had been designated as caregivers by multiple patients had been able to win protection from prosecution under the Compassionate Use Act. Now, patients who relied on such growers to provide their medicine will have to turn to dispensaries that are organized as co-ops or collectives in accordance with California law.

The ruling came in the case of California v. Mentch. Roger Mentch was arrested in 2003 after a bank teller smelled marijuana on repeated cash deposits he made and police subsequently searched his home, where they found nearly 200 pot plants growing. Mentch told investigators he was the "primary caregiver" for five qualified patients, but at trial, the judge refused to let the jury consider whether he was a caregiver, and Mentch was convicted and sentenced to probation. An appeals court in San Jose overturned his conviction, saying jurors should have been allowed to decide whether he was indeed the patients' caregiver, but now the state's high court has disagreed.

"We hold that a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense," wrote Justice Werdegar for the court. "We further conclude that nothing in the Legislature's subsequent 2003 Medical Marijuana Program (Health & Saf. Code, §11362.7 et seq.) alters this conclusion or offers any additional defense on this record."

The language of Proposition 215 defines a primary caregiver as "the individual designated by the [patient]... who has consistently assumed responsibility for the housing, health, or safety of that person." With this ruling, the state Supreme Court has defined that definition to "imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need."

Thus, for someone to be able to assert a caregiver defense to a marijuana cultivation or distribution charge, he "must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana."

"Ideally, it won't have a tremendous effect," Joseph Elford, attorney for the medical marijuana advocacy group Americans for Safe Access told the San Francisco Chronicle. "Patients will now increasingly get their medication through collectives and cooperatives."

The 2003 law establishing the dispensary system "provides an alternative outlet for patients," agreed Deputy Attorney General Michele Swanson, the state's lawyer.

But Mentch attorney Lawrence Gibbs told the Chronicle the court's decision "made it much, much more difficult" for qualified patients to get their medical marijuana. While the ruling may not have a significant impact on access to medical marijuana in areas where dispensaries are plentiful, large swathes of the state have no dispensaries. In those areas, patients will have to grow for themselves, have a spouse, domestic partner, or family member who can meet the court's definition grow it for them, travel long distances to areas where there are dispensaries, or resort to the black market.

Drug War Chronicle Book Review: "Cop in the Hood: My Year Policing Baltimore's Eastern District," by Peter Moskos (2008, Princeton University Press, 245 pp., $24.95 HB)

Immortalized by the hit HBO series "The Wire," Baltimore's Eastern District is one tough neighborhood in one of the country's toughest towns. With some 45,000 residents, almost entirely black, it generates 20,000 arrests a year, the vast majority of them drug-related. It's a tough, gritty neighborhood with widespread poverty, open-air drug markets, a healthy heroin (or "hair-on" in Eastern District-speak) habit, and all the attendant problems associated with those ills.
For a bit more than a year, the Eastern District was Peter Moskos' beat. The Harvard educated sociologist (now on the faculty of City University of New York's John Jay College of Criminal Justice) with an interest in police socialization joined the Baltimore Police Department to become a "participant-observer" on the sociology of policing in that department, enabling him to achieve a degree of intimacy with his fellow officers rarely achieved by outside academics.

For Moskos, and for his readers, his sojourn on the mean streets has paid off handsomely. Moskos got a book deal (and presumably a dissertation) out of his experiences, and we readers get a real treat. The uniformed Moskos -- he served exclusively as a beat officer -- was able to win the trust and fellowship of his colleagues, and in so doing, he was able to open a window on what it is like to be a police officer in the drug war.

I would imagine that most Drug War Chronicle readers -- LEAP members excluded -- have little knowledge of or empathy for the men in blue. The cops, after all, are the front line in the drug war. And, as Moskos reports, drawing on extensive notes, the drug dealers and users of the Eastern District are relatively easy pickings for police officers looking to generate arrest statistics.

"In high drug areas, there is no shortage of drug offenders to arrest," he writes. "The decision to arrest or not arrest becomes more a matter of personal choice and police officer discretion than of any formalized police response toward crime or public safety."

Not only do police routinely arrest suspect Eastern District residents -- for loitering, if nothing else -- they almost universal despise them and their drug habits. Moskos really shines at getting his comrades to speak openly and honestly about their attitudes, and in that sense, "Cop in the Hood" is as revelatory as it is sometimes disturbing. Such attitudes may be deplorable, but they are also understandable. When all you see is the worst of humanity, it's easy to get alienated. As one officer put it, "You don't get 911 calls to tell you how well things are going."

But not all beat officers are eager to arrest drug offenders. As Moskos details, the cops get frustrated by the revolving-door that sees drug offenders sent to county jail on arrest only to be spit out a few hours later or to have drug dealing charges reduced to simple possession because prisons are packed and prosecutors overworked. (Moskos observes that the drug war would grind to a halt if drug offenders uniformly demanded jury trials. Now, there's a reason to unionize drug users!)

Police officers don't want to be social workers, Moskos reports, and they are not interested in the root causes of drug use and attendant social ills. What they are interested in is doing their job with a minimum of hassle (from the streets or their superiors), returning home safely each night, and retiring with a nice pension. That means that for many officers, high drug arrest numbers early in their careers will drop off over time as they confront a combination of a sense of futility, overtime, and paperwork. As one officer put it:

You'll get out there thinking you can make a difference. Then you get frustrated: a dealer caught with less than 25 pieces will be considered personal use... Or you go to court and they take his word over yours. You're a cop and you're saying you saw something!... After it happens to you, you don't care. It's your job to bring him there [to court]. What happens after that is their problem. You can't take this job personal. Drugs were here before you were, and they'll be here long after you're gone. Don't think you can change that. I don't want you leaving here thinking everybody living in this neighborhood is bad, does drugs. Many cops start beating people, thinking they deserve it.

While Moskos by no means sugarcoats the behavior or attitudes of his coworkers, his reporting will undoubtedly help readers attain some understanding of how they got that way. "Cops in the Hood" is also useful for understanding the bureaucratic grinder facing police officers in large urban departments, where they are caught between pressures from above for more arrests, from Internal Affairs to do it by the book, from the neighborhoods to clean out the riff-raff and from the same neighborhoods to respect the civil rights of residents.

Moskos brings the added advantage of not writing like an academic. "Cops in the Hood" is engaging, even riveting, and makes its points straightforwardly. Yes, Moskos references policing theory, but he does so in ways that make it provocative instead of off-putting.

He also includes a well-researched and -written chapter on the evils of prohibition -- it's subtitled "Al Capone's Revenge" -- but in this case, it's hardly necessary. Like a good student listening to his English composition instructor, Moskos has shown us and he really doesn't need to tell us. Still, it is a strong chapter.

Moskos writes about his experience as a beat officer. That's a different animal from the largely self-selected group of police cowboys who end up in drug squads and SWAT teams. I have less sympathy for them, but that's another book, not this one.

People interested in the nitty-gritty of street-level drug law enforcement need to read this book. Criminal justice students and anyone thinking about becoming a police officer need to read this book, too. And the politicians who pass the laws police have to enforce (or not), need to read this book as well, although they probably won't.

Press Release: California Supreme Court Strikes Down "Caregiver" Defense for 215 Growers - People V. Mentch

Cal NORML Release - Nov. 24, 2008 Cal Supreme Court Rules Prop 215 Caregivers Must Do More Than Just Supply Marijuana In a blow to medical marijuana providers, the California Supreme Court ruled that defendants are not entitled to a defense as Prop 215 caregivers if their primary role is only to supply marijuana to patients. The court unanimously overruled an appellate court decision in the case People v Roger Mentch", writing: "We hold that a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense. We further conclude that nothing in the Legislature's subsequent 2003 Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.) alters this conclusion or offers any additional defense on this record." Full text of the decision may be found at Prop 215 defines primary caregiver to be the "individual designated by the [patient]... who has consistently assumed responsibility for the housing, health, or safety of that person." According to the Court, these words " imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." The Court concluded, " a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana." The Court's ruling effectively limits the caregiver defense to relatives, personal friends and attendants, nurses, etc. In particular, it excludes its use by medical marijuana "buyers' clubs," retail dispensaries and delivery services. The remaining legal defense for medical marijuana providers is to organize as patient cooperatives and collectives, which are legal under SB 420. "The Mentch decision highlights the inadequacy of California's current medical marijuana supply system," said Cal NORML coordinator Dale Gieringer. "The law needs to allow for professional licensed growers , as with other medicinal herbs." - D. Gieringer Cal NORML -- Dale Gieringer - California NORML, 2215-R Market St. #278, San Francisco CA 94114 -(415) 563- 5858 -
United States

Feature: No Post-Election Pause in Colorado -- Activists Attend Marijuana Boot Camp

This month's national elections are over, but marijuana reformers in Colorado are taking no breaks. Just 11 days after red state Colorado turned dramatically blue, nearly 300 activists and would-be activists gathered last Saturday morning at Regis University in Denver for the 2008 Colorado Marijuana Reform Seminar and Activist Boot Camp, designed to make them more effective and to pave the way for more marijuana law reform in the Rocky Mountain State.
There is plenty to build on. Colorado has been a medical marijuana state since 2001 and a decrim state since the 1970s. In the past few years, activists like Mason Tvert of SAFER (Safer Alternatives for Enjoyable Recreation) and Brian Vicente of Sensible Colorado have been building an impressive movement for a new set of reforms. In 2005, SAFER won a Denver vote to legalize marijuana possession, and after that was ignored, came back in 2007 with a winning lowest law enforcement priority initiative in Denver.

But while Denver appears ready to embrace legal weed, the rest of the state is not quite there yet, and a 2006 statewide legalization initiative ultimately came up short with 41% of the vote. A big part of the focus of the boot camp was to ensure that next time a legalization initiative appears on the ballot, it goes over the top.

To that end, SAFER and Sensible Colorado assembled a series of panel for the day-long seminar. Beginning with "Colorado's Marijuana Laws: Past, Present & Future," and "Everyone Can Agree: Colorado Needs Reform," "Citizen Lobbying: Reaching & Influencing Elected Officials," "The Media: How It Works, How We Can Use It, & Why It Matters," and culminating with "Taking Action: Building Support & Maintaining Momentum," organizers created a very full plate indeed for the assembled activists. The panels featured scientists, liberal and conservative public policy analysts, media representatives, and seasoned activists.

One big catch for the boot camp was House Majority Leader Paul Weissmann (D-Louisville), who explained the necessity and the how-to of lobbying elected officials to bring change. "We frankly just listen to each other unless there's an effort for people to get a hold of us," Weissmann said. It is more effective to build long-term relationships with elected officials than to make a campaign donation, he said. "The people who I remember more aren't folks who wrote a check, but the people who went door-knocking," he said.

"The 2008 campaign season only just ended for most people," said SAFER executive director Mason Tvert. "But for the growing number of Coloradans committed to reforming state and local marijuana laws, the 2009 campaign season has already begun. Our first goal -- to disprove the myth that marijuana makes people less motivated -- has clearly already been accomplished."

The boot camp filled an identifiable need among Colorado activists, said Tvert. As groups who had led campaigns and garnered considerable notoriety, it fell on SAFER and Sensible Colorado to address that need, he said.

"Because of all the work we've done around the state and all the media coverage we've received, we frequently hear from people who want to get involved; there are some every week," Tvert explained. "We wanted to find productive things for these people to do and we wanted to create a more supportive environment for ballot measures, so we identified areas where people can make a difference and developed materials so they can do things more effectively and understand the whys and wherefores," he explained. "The boot camp brought everyone together to provide them with the materials and some training. The point of the panels was to give them first-hand information that will help them be better, more effective activists," he added.
"We didn't realize it would garner this much interest," said a clearly pleased Tvert. "We got people from all around the state. There were students, there were professionals, there were retirees. There were medical marijuana people there, but this wasn't about medical marijuana; it was about broader marijuana policy reform."

"The boot camp was an unqualified success," declared Sensible Colorado's Brian Vicente. "We thought we might pull in 75 people on a Saturday morning, but I think we actually had 283 register. That shows there is an overwhelming interest in this issue in Colorado. We had lots of people from the Front Range because that's where most of the people are here, but we also had dozens of people from areas considered less friendly, like Colorado Springs and out on the West Slope."

That's important because even in unfriendly environments, votes matter, he said. "Whether it's someplace friendly, like Boulder or Fort Collins, or someplace unfriendly, if we can pick up even a couple of percentage points, that can make the difference in a statewide vote," he said.

"It was really inspiring to see everybody there focusing on the same goal, even people who don't necessarily smoke marijuana, but see it as a civil rights issue and want to help out victims," said Andrew Stephens, a 20-year-old student at Fort Lewis College in Durango, a seven-hour drive over the mountains from Denver. "I was outraged watching those federal raids on the California dispensaries -- that's what motivated me to get involved -- so I started a NORML chapter this year to work with other organizations and chapters to change marijuana policies."

Stephens said he was going to apply some of what he learned at the boot camp back home in Durango. "I'm interested in getting a lowest law enforcement priority initiative passed in Durango like there is in Denver," he said. "That would help give law enforcement more resources and time to spend on more important matters and lift a burden on college students who face persecution from law enforcement," he added, practicing his talking points.

Panelist Pam Clifton, outreach director for the Colorado Criminal Justice Reform Coalition, also called the event a success. "It was really well attended, people were really excited, and people stayed put in their seats," said Clifton. "It was a great event, very diverse, and there was a lot of energy in the air."

For Clifton, marijuana law reform is part of a broader criminal justice agenda. "We're about working to stop mass incarceration in Colorado, and recidivism and drug policy are really driving a lot of that, so a lot of our fight is about stopping the drug war," she said. "We want people to make the connection between how a marijuana conviction can affect the rest of their lives and changing those laws, and since we do a lot of grassroots activism, this event gave us an opportunity to reach out to these people."

The interest in last weekend's Marijuana Boot Camp may reflect not only the years of activism by the likes of Tvert, Vicente, and their allies, but also changing Colorado demographics and political attitudes. For the first time in decades, Colorado voted for the Democratic presidential candidate this year.

"You're certainly seeing more progressives and Democrats getting into power here, and that bodes well for marijuana reform," said Sensible Colorado's Vicente. "Also, Colorado had a very strong grassroots machine in place that helped Obama win a traditionally red state, so there's something to be said for people power. And the fact that almost 300 people showed up on a Saturday morning a week after the election to talk marijuana reform politics is also a very good sign."

"The atmosphere has really changed quite a bit," said Clifton. "We're really blue these days. Last year, the legislature passed an act creating a governmental commission on criminal justice. They have to reduce the prison population in this state, so they looked at recidivism, next is some juvenile justice stuff, and then sentencing. But measures to reduce the prison population are the low-hanging fruit. I think only after that we will have a real opportunity to make changes around the marijuana and other drug laws."

Part of what makes marijuana law reform a relatively lower priority, said Clifton, is that Colorado's marijuana laws are already quite liberal for simple possession. Under current state law, possession of less than an ounce is already decriminalized with a maximum sentence of a $100 fine.

But the fact that Colorado has relatively progressive marijuana laws already is no reason to slow down down, said Tvert. "Whether it's more local initiatives or another statewide one in 2010 or 2012, we want to get these people active in their communities spreading our message," said Tvert. "We made 25,000 four-page business cards with our marijuana is safer than alcohol message on one page, that it should be treated that way on the next, how to contact elected officials on the third, and lastly, how to contact us."

While the legislature and other sections of the criminal justice reform community may have their attention elsewhere, an army of activists is now haunting the streets of Denver and Boulder, the high plains of Eastern Colorado, and the snowy peaks of the Rockies, laying the groundwork to take it to the next level.

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