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Salvia Divinorum: Ban Bill Filed in Texas Legislature, Another Would Bar Sales to Youth

Monday was the first day to file bills for the next session of the Texas legislature, and by day's end, two different bills addressing salvia divinorum had been filed. One would criminalize its possession, making it a Class A misdemeanor, while another would bar its sale to people under the age of 18.
Salvia leaves
Salvia divinorum is an hallucinogenic member of the mint family that has been used for centuries for religious purposes by the Masatec Indians of southern Mexico. In the past few years, awareness of the plant's psychedelic qualities has resulted in a spike of interest in it. It is currently sold in head shops, smoke shops, other outlets, and on the Internet.

Although about a dozen states have moved to either ban it outright or restrict its sales, the DEA, which has been studying salvia for years now, has not moved to place it on the schedule of federally controlled substances.

State Rep. Charles "Doc" Anderson (R-Waco) doesn't want to wait for the feds any longer. On Monday, Anderson filed House Bill 126 to ban possession of the plant.

"With a single use they can cause some serious, serious damage to their brain and their mental function and it causes hallucinations primarily, as the name would indicate," Anderson told the Waco Tribune. "It's a potent hallucinogen and we start to see some flashbacks scenarios and things like that from even one time use," he said.

Not one to shy away from the spotlight, Anderson appeared the following day on the Dr. Phil show during a segment on risky teen behavior. "I hope my appearance on the Dr. Phil show will help to educate people on the dangers of salvia and the nationwide exposure will help lend more credibility to our testimony," Anderson said, explaining that he was moved to act after a constituent's daughter suffered a bad experience with the plant.

The other salvia bill, Senate Bill 257, is much less restrictive. It would make it a Class C misdemeanor to supply salvia to a minor. The bill says that being an employee of a shop that sold salvia would not be a defense, but selling it to someone with an apparently valid ID who turned out to be a minor would.

If either bill passes the legislature, it would go into effect next September 1.

Salvia Divinorum: Massachusetts Ban Passes House

A bill that would add salvia divinorum to the Bay State's list of controlled substances has passed out of the Massachusetts House of Representatives. HB 4434 passed the House on September 29 and now heads for the state Senate.
salvia leaves
Supporters of the ban, led by Rep. Viriato Manuel deMacedo (R-Plymouth), who cosponsored the bill, said salvia is a dangerous, mild-altering drug. They cited the infamous Youtube videos of young people under the influence of the plant, as well as recent national survey data suggesting that use is on the rise.

Salvia has no known toxic level and produces a fast-acting, short-lived high. It has been used in traditional shamanism in Mexico, where it originated, for hundreds, if not thousands, of years. According to the Salvia Divinorum Research and Information Center, the herb has been used in divination, healing, meditation, and for exploration of consciousness.

If the Massachusetts salvia ban passes into law, Massachusetts would become at least the ninth state to outlaw the herb. Another handful of states have restricted its sales without an outright ban.

The Massachusetts bill also includes a provision adding blunt wrapping papers and glass rose pipes to the state's list of items deemed drug paraphernalia.

Medical Marijuana: Washington State Sets Supply Limits

Ending a contentious, year-long argument over what constitutes a 60-day supply of medical marijuana, the Washington state Department of Health last week issued new regulations setting the limit at 24 ounces of smokeable marijuana and 15 plants, no matter what size. The new standard comes a decade after Washington voters okayed the use of medical marijuana in 1998.
California medical marijuana bags (courtesy Daniel Argo via Wikimedia)
While the 1998 law specified that patients could have a 60-day supply, the law never specified just what that meant. As a result, some patients ended up being arrested and tried by prosecutors unfriendly to the law or intent on making sure it was not being used as a cover for marijuana manufacture and distribution. Some patients have even been convicted despite having physician recommendations.

Last year, the state legislature voted to order the Health Department to come up with reasonable quantities. After consulting with law enforcement, patients, medical personnel, and others, the department came up with a draft proposal calling for 24 ounces, six mature plants, and 18 seedlings, but that was lambasted by patients and advocates at an August hearing as insufficient for some patients.

The only differences between the draft and the final regulations were the move to allow 15 plants regardless of maturity, a move the department said would result in patients being able to harvest more, and the dropping of the requirement that patients get a doctor's note if they need more than the 60-day supply set by the department.

"We took a lot of public comment, listened to what people told us, and then made several changes after considering those comments," said Secretary of Health Mary Selecky. "The final rule is simpler and gives patients and caregivers more flexibility in growing plants. Many patients said they didn't like the distinction in the draft rule between mature and immature plants. We believe the patients and their caregivers are in the best position to decide that."

Although not everyone in the Washington medical marijuana community is pleased with the new quantity regulations, they are in line with those of neighboring Oregon and exceed those of some California counties.

Prohibition: Cincinnati Blames Drug Shortages For Rising Violence

It has been a long, hot summer in Cincinnati, with the Ohio River city on a pace to equal or top the record-setting 86 murders committed in 2006. Local officials there are blaming drugs -- or the lack of them -- for the violence -- which is just a step away from acknowledging the role of drug prohibition in violent crime, but don't expect them to take that last step.
Mayor's anti-violence graphic, Cincinnati
In the last week of September, there were five murders, increasing this year's toll to 58, three more than at the same time last year. It's because of a shortage of cocaine, said Cincinnati police.

"Our intelligence says there is quite a shortage of crack cocaine right now, and that has the buyers frantic to buy based on their addiction and the sellers know their livelihood is threatened based on supply and demand," said Lt. Col. James Whalen, Cincinnati's patrol bureau commander. "When you get involved with buying and selling drugs, unfortunately you run into violence," he told the Cincinati Enquirer.

Hamilton County Municipal Judge Melissa Powers said drugs are playing a part in the violence, but it has to do with competition rather than supply. "It's very difficult. Once you arrest one drug dealer, another one takes his place," she said. "I think that's what we're seeing now, the rooting out among drug dealers."

Cincinnati Mayor Mark Mallory and City Manager Milton Dohoney last week issued a joint statement calling for an end to prohibition-related violence, although they called it drug-related violence. "None of the shootings were random, which underscores the importance of staying out of illegal activities," the statement from Mallory and Dohoney said. "If you are involved in drug activity, whether as a buyer or a seller, you put yourself at a very high risk of becoming a victim of violence."

While Cincinnati's law enforcement and political establishment has clearly focused on a problem -- prohibition-related violence -- it has yet to properly identify it. By displacing that cause onto "drugs," the city will not solve its violence problem, but only exacerbate it.

Press Release: Illinois Commission to Study Racial Impact of Drug Laws

FOR IMMEDIATE RELEASE: October 8, 2008 Contact: Monica Hubert at 312-573-8214 Blagojevich signs law requiring new commission to study racial impact of IL drug laws Illinois incarcerates African-Americans at a rate 9 times greater than that of whites (Springfield)--On Friday, Gov. Rod Blagojevich approved legislation to create a new state commission that will study the impact of Illinois drug laws on minority communities. This measure addresses the findings of a 2007 study that showed African-Americans in Illinois were 9 times more likely to be incarcerated than whites, ranking Illinois 14th worst in the nation. "No legislature sets out to make a law that disproportionately imprisons a particular racial community, but I believe our laws here in Illinois do just that," said State Senator Mattie Hunter, chief sponsor of the bill creating the commission, Senate Bill 2476. "Now that there's a commission dedicated to examining the problem, legislators will have the opportunity to examine and right the wrong." The new commission--composed of legislators, members of the criminal justice system, social service agencies, and representatives from minority communities--is charged with examining the nature and extent of the harm caused to minority communities by disproportionate incarceration rates, and offering recommendations for legislation and policy changes to address the impact. "We now have the opportunity to render an informed judgment based on an empirical data analysis and not just intuition," said Pamela Rodriguez of the Center on Criminal Justice at TASC, who will assist the commission's study. "This study will thoroughly examine drug laws from the ground up and open doors for the creation of effective, fair drug policies." Creasie Finney Hairston, dean and professor at the Jane Addams College of Social Work at the University of Illinois at Chicago, who will also assist the commission's study, agrees with Rodriguez. "Illinois' policies have to change. Our legislators need a different, informed perspective. This study will provide the perspective needed to help establish laws that not only positively affect the well-being of minority families but address community safety as well." The Commission's report must be submitted to the Illinois General Assembly on or before December 31, 2009. The initial appointments to the commission included: - Judge Timothy Evans, chief judge of the Circuit Court of Cook County - Ed Burnett, Cook County Public Defender - Lori Levin, executive director of the Illinois Criminal Justice Information Authority - Terry Solomon, executive director of the Illinois African-American Family Commission SB2476 was co-sponsored in the Illinois House by State Representative Art Turner. The commission's operations will be managed by the Center on Criminal Justice at TASC and the Jane Addams College of Social Work at the University of Illinois at Chicago.
United States

Sentencing: Pennsylvania Reform Measure Becomes Law

Sentencing reform is coming to Pennsylvania. As we reported last week, sentencing reform bill House Bill 4 had passed the Senate and awaited routine approval in the House. Now the bill, which would allow for the diversion of nonviolent drug offenders into treatment programs, has passed the House and been signed by Gov. Ed Rendell (D) and will go into effect 90 days after official publication.
State Correctional Institution, Chester, Pennsylvania
It won't be soon enough for the cash-starved Keystone State, where the number of prisoners has quadrupled since the 1980s and increased by 21% in the last six years. Prison spending currently eats up 6% of the total state budget.

The bill and related legislation is being described by some involved in the process as the biggest sentencing reform in years in Pennsylvania. It will allow the early release of some prisoners, including drug and petty theft offenders, if they complete educational and job-training programs.

"This represents a new approach to criminal justice for offenders convicted of nonviolent crimes," said House Speaker Dennis M. O'Brien (R-Philadelphia), one of the bills' chief advocates. "It will make the public safer, ensure that offenders receive services essential to break the cycle of crime, reduce duplication of efforts that waste taxpayer dollars, and ensure that crime victims are treated fairly," he told the Philadelphia Inquirer.

"We have a serious problem here in Pennsylvania with the numbers of people we are sending to prison," said William DiMascio, whose organization, The Prison Society, advocates on behalf of prisoners. "With so many new people entering the system, and with sentences becoming longer and parole becoming tighter, it was inevitable that we would reach a point of saturation. With prisons at capacity -- and beyond capacity -- you begin to have dangerous conditions, both for the people held there and for the people who work there," he said. "Doing nothing was not an option."

But although early release and diversion provisions in the bill do not apply to violent offenders, the politics of violent crime has already intruded. In response to the killing of a Philadelphia police officer, just four days after signing the bill, Gov. Rendell issued a statement announcing the suspension of releases for all paroled prisoners pending a review of the parole and corrections systems.

"Last week, Philadelphia Police Officer Patrick McDonald was tragically murdered by a paroled offender, but it is even more tragic that this was the second instance within the last four months of a parolee shooting a Philadelphia police officer," wrote Rendell, referring to the shooting of Sgt. Stephen Liczbinski. "Heartbreaking losses such as these have shed light on the need to thoroughly review the process by which Pennsylvania paroles violent offenders. Therefore, I am asking you to review the way in which these two cases were managed by the Department of Corrections and the Board of Probation and Parole in order to minimize the likelihood that these kinds of scenarios will be repeated."

So, for the time being, someone paroled after doing time for a nonviolent drug offense is going to be stuck in prison because a paroled violent offender killed a police officer, the new law notwithstanding.

Medical Marijuana: Bill Coming Down the Pike in Idaho?

Idaho is a rocked-rib Republican state, and the state's Republican Party is no friend of medical marijuana, but that isn't stopping one GOP legislator from going ahead with plans to introduce a medical marijuana bill in the next legislative session. Rep. Tom Trail (R-Moscow) told the local Fort Mill Times over the weekend that he is drafting a bill now.

Although Idaho is a conservative state, it is bordered by four medical marijuana states -- Washington, Oregon, Nevada, and Montana -- as well as less medical marijuana-friendly Utah and Wyoming. And voters in at least one Idaho town, Hailey, last year approved a municipal medical marijuana referendum. After town officials balked at enforcing them, voters passed it again in May.

Rep. Trail said the bill he is drafting will be based on existing laws in Oregon and Washington. He also said he has been in contact with some Idaho doctors who support allowing the use of medical marijuana.

Still, it will be an uphill fight for the Panhandle Republican. In June, the GOP state convention committee voted 21-9 to oppose any relaxation of Idaho's marijuana laws, including medical marijuana. And there's still no medical marijuana in Hailey -- officials there filed a lawsuit after the May vote seeking guidance on how to deal with unruly voters who don't want authorities brutalizing medical marijuana users.

Medical Marijuana: Schwarzenegger Vetoes Employment Rights Bill

California Gov. Arnold Schwarzenegger Wednesday vetoed a bill that would have protected medical marijuana patients from being fired from their jobs for testing positive for pot on a drug test.

The bill, AB 2279, authored by marijuana-friendly Assemblyman Mark Leno (D-San Francisco), would have overturned a January California Supreme Court ruling that allowed employees to fire or otherwise punish employees who legally use medical marijuana under state law. Under the Leno bill, only people in safety-related or law enforcement positions could have been fired.

In that January ruling, the Supreme Court held that the state's Compassionate Use Act did exempt patients and caregivers from being prosecuted by the state, but was not intended to stop employers from firing workers for violating federal drug laws.

Schwarzenegger sang from the same hymnal in his veto message. "I am concerned with interference in employment decisions as they relate to marijuana use," the governor wrote. "Employment protection was not a goal of the initiative as passed by voters in 1996."

But medical marijuana supporters who spoke to the San Francisco Chronicle after the veto announcement begged to differ. "The intent of Prop. 215 was to treat marijuana like other legal pharmaceutical drugs," said Dale Gieringer, a coauthor of the ballot measure and California coordinator of the National Organization for the Reform of Marijuana Laws.

Leno told the local newspaper he was not surprised by the veto, given the Chamber of Commerce's opposition to the bill. He said the court majority and the governor apparently presumed that "the voters who supported Prop. 215 in 1996 intended that only those medical marijuana patients who are unemployed could make use of (the law)."

Search and Seizure: Florida Defense Attorneys Challenge Drug Dog "Hits"

Defense attorneys in Florida's Sarasota and Manatee counties are challenging the reliability of drug dog "hits" in drug possession and trafficking cases. So far, the tactic has produced mixed results.
drug dog
Drug-sniffing dogs are increasingly used in traffic stops. Thanks to the US Supreme Court, which bizarrely ruled that a drug dog search is not a search, no search warrant or probable cause is needed for police to sic the dogs on unwary travelers. Controlled by a police handler, the drug dogs typically circle the vehicle once or twice and "alert" their handlers if they smell drugs. That "alert" then constitutes probable cause for a warrantless search of the vehicle.

But some drug dogs are just too good to be believed. In one case reported by the Tampa Tribune, a now-retired drug dog named Talon "alerted" on every single vehicle he sniffed during a four-month period -- even though drugs were found in less than half of them.

Such results call into question the dog's reliability and can result in a successful motion to suppress the evidence in drug cases, usually leading to the dismissal of charges. That's what happened in a recent Manatee County case. Circuit Judge Johnes Riva said in a ruling the dog's record of false "hits" gave her no choice but to throw out the evidence in a drug case.

But another drug dog, Zuul, who belongs to the Sarasota County Sheriff's Office, fared better in court recently. Even though, like Talon, Zuul "hit" on almost every car he sniffed even though no drugs were found in half of them, Sarasota County Circuit Court Judge Charles Roberts ruled that his nose was reliable enough to justify searching vehicles. Roberts bought prosecutors' and deputies' arguments that in every case where Zuul "alerted," either drugs were found or people in the vehicle admitted to using or possessing drugs in the recent past. That ruling has set up an appeal that could be headed for the Florida Supreme Court.

That set well with the Sarasota Sheriff's Office, which, along with other law enforcement entities, worried that Riva's earlier ruling against Talon would set a trend in case law. More rulings like Riva's would be "catastrophic to the way we've been doing business," said sheriff's office Sgt. Brian Olree, who oversees the K-9 division.

Now, local defense attorneys are checking the reliability of at least three other local drug dogs. "I don't think any of the dogs the Sarasota sheriff's office uses are qualified to detect drugs to get probable cause for searches," Assistant Public Defender Mark Adams told the Tribune.

Defense attorney Liane McCurry, who first successfully challenged Talon's drug-sniffing acumen, told the Tribune she expects to see more challenges to drug dogs' reliability. "I think every attorney should do that," she said.

Medical Marijuana: Washington State Judge Plays Doctor, Convicts Authorized Patient of Cultivating His Own Medicine

A Washington state man with a doctor's authorization to use medical marijuana was convicted of cultivation last Friday after a state judge ruled that his use of the herb to treat chronic lower back pain did not meet the conditions of the state's medical marijuana law. Superior Court Judge Anna Laurie ruled that Robert Dalton's marijuana use did not qualify because he failed to show his pain was "unrelieved by standard medical treatments and medications," such as opiate-based painkillers.
medical marijuana demonstration, DC
Dalton was arrested in August 2007 after detectives with the West Sound Narcotics Enforcement Team raided his property and found 88 plants growing. Police claimed the plants were more than the 60-day supply allowed by law. But that claim was problematic, since the state Health Department has not defined what constitutes a 60-day supply.

Kitsap County Deputy Prosecutor Coreen Schnepf argued during the trial that Dalton was receiving relief from opiate pain medications and that he needed to have pain that was not relieved by other medications in order to use medical marijuana. It is not known where Schnepf obtained her medical degree.

Defense attorney Douglass Hiatt argued that opiates sickened Dalton and did not relieve his pain, but Judge Laurie sided with prosecutors, effectively overruling the recommendation of the physician who okayed Dalton's medical marijuana use.

An angry Hiatt said the judge had no business second-guessing the doctor's recommendation. "If Judge Laurie wants to be a doctor, she should go to medical school," Hiatt told the Kitsap Sun. "No patient in this state is safe if she's right."

With the conviction, Dalton's medical marijuana card has been revoked and he now faces up to six months in jail for the felony conviction. His attorneys will ask for the sentence to be suspended pending appeals.

Dalton told the Sun after the verdict that he did not want to use opiates for pain relief because they are addictive. "I don't want to be a drug addict," he said. "That's why I chose medical marijuana." [Ed: It should be noted that opiate use for pain management does not constitute addiction, and opiophobia is itself another evil of the drug war just as is medical marijuana prohibition. For some patients marijuana is a better medicine, for others opioids are better.]

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