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Federal Judge Finds NYPD's Stop-and-Frisk Practices Unconstitutional

A federal judge Monday found that the New York Police Department's stop-and-frisk search tactics violated the constitutional rights of racial minorities in the city and ordered a federal monitor to oversee broad reforms in the department. Federal District Court Judge Shira Scheindlin did not find stop-and-frisks unconstitutional in themselves, but ruled that NYPD's policy on them amounted to "indirect racial profiling."

NYPD practices stop-and-frisk techniques (nyc.gov/nypd)
The ruling came in Floyd v. the City of New York, in which plaintiffs represented by the New York Civil Liberties Union and the Center for Constitutional Rights challenged the massive program, which has resulted in hundreds of thousands of street searches each year (4.43 million between 2004 and 2012, according to trial evidence), the vast majority aimed at young black and brown people, and the vast majority of which resulted in no findings of drugs or weapons.

The stop-and-frisk program did, however, contribute to the arrest and temporary jailing of tens of thousands of New Yorkers caught with small amounts of marijuana. Possession of small amounts was decriminalized in New York in 1978, but the NYPD effectively invalidated decriminalization by intimidating people into removing baggies of weed from their pockets and then charging them with public possession, a misdemeanor. Such tactics helped make New York City the world leader in marijuana arrests.

In her ruling Monday, Judge Scheindlin argued that the city's stop-and-frisk policies showed disregard for both the Fourth Amendment's protection against unreasonable searches and seizures and the 14th Amendment's equal protection clause. She said the evidence showed that police systematically stopped innocent people in the street without any objective reason to suspect them of wrongdoing.

Scheindlin didn't limit her criticism to the actions of police officers, but also held high NYPD and city officials responsible for what she called a "checkpoint-style" policing tactic.

"I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner," she wrote. "Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites," she noted.

While Scheindlin wrote that she was "not ordering an end to practice" of stop-and-frisk searches, she said that the racially disparate manner in which searches were carried out demanded reforms that "protect the rights and liberties of all New Yorkers, while still providing much needed police protection."

In addition to the outside monitor, Scheindlin ordered other remedies, including a pilot program in which officers in five precincts will be equipped with body-worn cameras to record street encounters and a "joint remedial process" where the public will be invited to provide input on how to reform stop-and-frisk. 

While Scheindlin noted NYPD's expressed purpose in the widespread searches was to reduce the prevalence of guns on the street, she said police went too far in their zeal, stretching the bounds of the Constitution as they did so.

 "The outline of a commonly carried object such as a wallet or cellphone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” she ruled.

And, after hearing more than two months of sometimes wrenching testimony from stop-and-frisk victims, Scheindlin deplored what she called "the human toll of unconstitutional stops," calling them "a demeaning and humiliating experience."

"No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life," she wrote. And it wasn't just fear of being stopped. Racial minorities in the city "were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

The city and the NYPD had argued that the targeting of young people of color was justified because they were more likely to commit crimes, but Scheindlin wasn't buying, especially since the searches usually came up empty.

"This might be a valid comparison if the people stopped were criminals," she wrote. "But to the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest." The city had a "policy of targeting expressly identified racial groups for stops in general," she noted. "Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality," she ruled.

The ruling didn't sit well with Mayor Michael Bloomberg, who has defended and championed stop-and-frisk as an effective crime fighting measure. In remarks after the verdict, Bloomberg lashed out at the judge and the ruling.

"This is a very dangerous decision made by a judge who I don’t think understands how policing works," Bloomberg said."The judge clearly telegraphed her intentions, and she conveyed a disturbing disregard for the intentions of our police officers, who form the most diverse police department in the nation. We didn’t believe we got a fair trial," he complained.

“Our crime strategies and tools -- including stop, question, frisk -- have made New York the safest big city in America," Bloomberg said. "We go to where the reports of crime are," he added. "Those, unfortunately, happen to be poor neighborhoods, or minority neighborhoods.... There are always people that are afraid of police ... some of them come from cultures where police are the enemy. Here, the police department are our friends."

And the police know best, he added. "The public are not experts at policing," Bloomberg said. "Personally, I would rather have [Police Commissioner] Ray Kelly decide how to keep my family safe, rather than having somebody on the street who says, 'Oh, I don’t like this.'"

But the Center for Constitutional Rights suggested that the mayor should grow up and do what's right.

"The NYPD is finally being held to account for its longstanding illegal and discriminatory policing practices," the group said in a statement Monday. "The City must now stop denying the problem and partner with the community to create a police department that protects the safety and respects the rights of all New Yorkers."

New York, NY
United States

Advocates Seek Supreme Court Review of Marijuana Scheduling

The people behind a decade-long effort to reschedule marijuana out of the Controlled Substance Act's (CSA) Schedule I have now complied with a vow they made when the DEA's decision to reject the effort was upheld by a federal appeals court in Washington. On Monday, Americans for Safe Access (ASA) filed a writ of certiorari asking the US Supreme Court to review the case.

Filing the writ does not mean the Supreme Court will decide to take up the case. The high court receives thousands of such appeals each session, but actually decides to hear only a tiny percentage of them. This writ, however, has two things going for it: It is on the paid certiorari docket (most are not) and it argues that the Supreme Court needs to resolve conflicts between federal appellate courts.

With the appeal, petitioners are challenging what they call an unreasonable and unprecedented standard for proof of medical efficacy of marijuana set by the District of Columbia Circuit Court of Appeals, which upheld the DEA's denial of the petition.

"To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise," said ASA chief counsel Joe Elford, who argued the appeal before the DC Circuit in October of last year. "The Court has unreasonably raised the bar for what qualifies as an 'adequate and well-controlled' study, thereby continuing the government's game of 'Gotcha.'"

In 2002, the Coalition for Rescheduling Cannabis, made up of several individuals and organizations including ASA, filed a petition to reclassify marijuana for medical use. That petition was denied by the DEA in July 2011. The appeal to the DC Circuit was the first time in nearly 20 years that a federal court has reviewed the issue of whether adequate scientific evidence exists to reclassify marijuana. Before the January ruling, the DC Circuit had never granted plaintiffs the right to sue when seeking reclassification of marijuana.

But while the DC Circuit granted plaintiffs standing, it denied their appeal on the merits in a 2-1 ruling, by setting a new, virtually-impossible to meet standard for assessing medical efficacy. Although ASA cited more than 200 peer-reviewed studies in its appeal, the DC Circuit held that plaintiffs must produce evidence from Phase II and Phase III clinical trials -- usually reserved for companies trying to bring a new drug to market -- in order to show marijuana's medical efficacy.

"The Obama Administration's legal efforts are keeping marijuana out of reach for millions of qualified patients who would benefit from its use," continued Elford. "It's long past time for the federal government to change our country's harmful policy on medical marijuana, and if it must be compelled to do so by the courts then so be it."

Since the rescheduling petition was filed in 2002, an even greater number of scientific studies have been conducted showing the medical efficacy of marijuana, and national polls have consistently ranked popular support for medical marijuana at around 80%. Medical marijuana continues to be approved either by voters or legislators in more states each year.

ASA argues that the medical efficacy standard set by the DC Circuit conflicts with a 1987 ruling in the First Circuit in Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987), which held the DEA cannot treat a lack of FDA marketing approval as conclusive evidence that a substance has no "currently accepted medical use in treatment in the United States." The Grinspoon decision also held that for some drugs (like smoked marijuana) "there is no economic or other incentive to seek interstate marketing approval... because [they] cannot be patented and exploited commercially."

Repeated efforts to redress the unwarranted scheduling of marijuana as Schedule I have been underway since 1972. The DEA stonewalled the first petition in a regulatory process that lasted more than 20 years (and which included the Griswold case); it took six years to reject a second petition; and it took a decade before finally rejecting this third rescheduling petition.

A fourth rescheduling petition was filed by the governors of Colorado, Rhode Island, Vermont, and Washington in 2011. The DEA has yet to act on that, but ASA warns that the stringent standard for proving medical efficacy set out by the DC Circuit in conflict with Griswold means that this latest petition could also face an uphill battle.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Washington, DC
United States

Medical Marijuana Update

A federal medical marijuana banking bill was introduced, an Oregon bill that would allow and regulate dispensaries heads to the governor's desk, Berkeley and Oakland fight the feds, and more. Let's get to it:

National

On Wednesday, Rep. Ed Perlmutter (D-CO) introduced the Marijuana Business Access to Banking Act of 2013. The bill addresses the growing banking crisis for regulated, state-legal marijuana businesses which are frequently unable to access even the most basic of banking services such as business checking accounts or merchant services. It would block federal regulators from punishing or penalizing a bank or its employees because it provides services marijuana-related businesses, exempt depository institutions from persecution and forfeiture simply for providing services to a marijuana-related business, and exempt marijuana-related business accounts from disclosure reporting requirements intended to identify individuals engaging in federally illegal activities. The bill has 17 cosponsors.

California

Last Tuesday, the El Centro city council voted to extend his moratorium on new dispensary applications for another year. It cited concerns over federal preemption.

Last Wednesday, the city of Berkeley filed a lawsuit against the Department of Justice in an effort to block federal prosecutors from seizing the property that houses the Berkeley Patients Group.

Also last Wednesday, the city of Oakland won a ruling halting the Justice Department's effort to shut down Harborside Health Center. The ruling blocks the feds from seizing a building housing the country's largest dispensary while Oakland appeals the dismissal of its own suit challenging a prosecutor’s bid to close the store. US Magistrate Judge Maria-Elena James said the government won’t be harmed if its bid to seize the building where Harborside operates is put on hold pending Oakland’s appeal.

Also last Wednesday, the Rancho Santa Margarita planning commission approved a dispensary ordinance that would ban dispensaries in the city. The ordinance now goes before the city council, but the date for the hearing on it hasn't been set yet.

Also last Wednesday, the Palm Springs city council approved putting dispensary taxation to a popular vote. In a unanimous vote, the council approved the measure, which would allow it to tax permitted dispensaries at a rate of up to 15% of their sales. The council also voted to ban delivery services not linked to permitted dispensaries.

Florida

On Wednesday, the secretary of state gave final approval for signature-gathering to get underway on a proposed medical marijuana initiative. The initiative sponsors, People United for Medical Marijuana, now has until February 1 to gather some 700,000 valid voter signatures. The campaign is estimated to cost about $3 million, and the group has raised $200,000 so far.

Oregon

Last Wednesday, Southern Oregon NORML was evicted from its Medford offices. The group's director, Lori Duckworth, and her husband had been arrested in May for operating a dispensary, and her landlord said they must vacate for violating federal drug laws and because they failed to pay the rent. Duckworth said they couldn't pay the rent because police seized all their assets.

On Saturday, the legislature gave final approval to a dispensary bill and the measure now awaits the signature of Gov. John Kitzhaber (D). House Bill 3460 will set up a registration system for dispensaries, authorizing the transfer of marijuana and seedlings to patients. The state currently allows patients with certain debilitating medical conditions to grow their own marijuana or designate someone else to do it, but there isn't a place to legally purchase the medicine.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Juries Must Find Facts on Mandatory Minimum Sentences, Supreme Court Rules

The US Supreme Court Monday dealt a blow to mandatory minimum sentencing, ruling that any facts used to trigger a mandatory minimum sentence are "elements" of the crime and must be proven by a jury, not left to a judge. The 5-4 ruling came in Alleyne v. United States.

Until Monday's ruling, judges had been able to find certain facts that would trigger mandatory minimum sentences, such as quantities of drugs involved in an offense, based on a "preponderance of evidence" in post-conviction sentencing hearings. Now, those facts will have to established by juries in the course of the trial using the higher standard of proof "beyond a reasonable doubt."

The case is the latest in a line of cases that began with the groundbreaking 2000 Supreme Court decision in Apprendi v. New Jersey, which held that any fact that increases the range of punishments is an "element" of the crime and must be presented to a jury and proved beyond reasonable doubt.

Sentencing reform advocates were pleased by the ruling.

"Mandatory minimums for drug offenders will lessen, but it's difficult to say to what extent," said Marc Mauer, executive director of the Sentencing Project, which opposes mandatory minimum sentences. "It's also likely that this will have beneficial effects in reducing racial disparity, because so many mandatory minimums are imposed for drug offenses, and because African-Americans in particular are on the receiving end of those penalties."

"No defendant should have to face a mandatory minimum sentence because of facts that are not considered -- or worse, considered and rejected -- by a jury," said Mary Price, vice president and general counsel for Families Against Mandatory Minimums (FAMM), which submitted a friend of the court brief in the case. "As Justice Thomas noted in Monday's opinion, 'mandatory minimums heighten the loss of liberty.' Today, those who face mandatory minimums do so with the Constitution more firmly at their backs."

Drug offenders are those most likely to be hit with mandatory minimum sentences.

Washington, DC
United States

Big Sentencing Ruling Today from the Supreme Court

There was a big Supreme Court ruling today. In Alleyne v. United States, a 5-4 majority extended an important sentencing reform that had begun with in the 2000 case Apprendi v. New Jersey.

According to Mike Gottlieb on SCOTUSblog:

It has been settled since... Apprendi v. New Jersey that any facts which increase a criminal defendant's maximum possible sentence... must be proved to a jury beyond a reasonable doubt... [I]f a statute makes it illegal to sell a drug and authorizes a ten-year maximum sentence for such an offense, but provides for a twenty-year maximum sentence for a sale of a larger quantity of the same drug, the jury rather than the judge must make a finding about the quantity before the twenty-year maximum may be imposed.
 
In 2002, the Court decided... that Apprendi did not apply to facts that would increase a defendant's mandatory minimum sentence, and therefore that a judge could constitutionally decide to apply a mandatory minimum sentence on the basis of facts not proven to a jury.
 

But not anymore. According to Doug Berman's Sentencing Law and Policy blog:

[H]ere is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled."
 

It's hard to tell how things will play out. Apprendi had a larger long-term effect by leading to another ruling, Booker, in which sentencing guideline systems became advisory rather than obligatory -- judges can now sentence below the guidelines that Congress and the Sentencing Commission established, if they offer good reasons, though prosecutors can appeal it. That's an enormous change to the guidelines half of federal sentencing, though underused by (one might say overly-deferential) judges. Now it applies to mandatory minimums as well.

Berman also offers some initial reactions as to what it could mean here. He's not predicting an overturning of mandatory minimum sentencing in the way mandatory guidelines were undone, but significant changes are possible -- changes that could help a lot of people.

Also of interest -- in Apprendi it was Justice Scalia who was pivotal for the majority; today it was Justice Thomas.

Location: 
Washington, DC
United States

Iowa Federal Judge Criticizes Harsh Methamphetamine Sentences

A Sioux City-based US district court judge has criticized harsh tough methamphetamine sentencing guidelines, writing in a recent opinion that he considers them "fundamentally flawed," not based on empirical evidence, and too harsh for low-level offenders.

http://stopthedrugwar.org/files/judge-mark-bennett.jpg
Judge Mark Bennett (iand.uscourts.gov)
US District Judge Mark Bennett of the Northern District of Iowa cut the sentence of a convicted Sioux City methamphetamine dealer from nearly 16 years to just more than six years, saying in his 44-page ruling that he has a "fundamental policy disagreement" with the meth portion of the federal sentencing guidelines.

"The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity," Bennett wrote in his Friday ruling in US v. Willie Hayes. "The system is too severe in the indiscriminate way it treats offenders… Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing" outlined in federal law.

Bennett has been a long-time critic of federal mandatory minimum sentencing, and in his ruling, he argued that meth sentencing guidelines seemed more based on politics than science and lacked the depth of other portions of the guidelines. Meth dealers are getting much harsher sentences than people convicted of selling heroin or cocaine, he noted.

Iowa defense attorneys consulted by the Des Moines Register said Bennett's ruling was "a very big deal."

"It is a very big deal, and it's also something that's been coming for awhile," said Des Moines defense attorney Angela Campbell. "And he's right. The guidelines are so high, you can have a runner or a very low-level pseudoephedrine (purchaser) who gets life very easily… If you're buying pseudoephedrine for a large-scale drug operation, you don't get hit just on what you buy, you’re responsible for the same thing as the entire conspiracy."

"He's not a lone voice in the wilderness," said Iowa defense attorney F. Montgomery Brown, who added that defense lawyers need to cite Bennett's opinion in meth cases. "It's an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make," Brown said. "It's malpractice not to."

At least two other federal judges, Joseph Bataillon in Nebraska and John Gleeson in New York have issued similar criticisms of meth guidelines. Bennett's ruling drew on their reasoning.

Bennett, for his part, said reducing meth guideline sentences by a third was "a good starting point and a reasonable way to express my policy disagreement." But, he added, he "will reserve the ability to adjust the figure upwards and downwards as I weigh" other "important factors the guidelines do not contemplate."

Prosecutors could appeal Bennett's ruling in the Yates case. If they do, that could open the door to a decision by the 8th US Circuit Court of Appeals in St. Louis, which in turn could open the door to a US Supreme Court review of sentencing procedure in the world of now-advisory guidelines, or even of the fairness of meth sentences.

Sioux City, IA
United States

Federal Appeals Court Panel Extends Crack Sentencing Retroactivity

In a Friday decision, a three-judge panel of the US 6th Circuit Court of Appeals in Cincinnati held that the provisions of the 2010 Fair Sentencing Act that reduced the sentencing disparity between crack and powder cocaine offenses should apply to people convicted even before the law was passed. If upheld, the ruling could reduce the sentences of thousands of inmates, mostly black, who were sentenced under the draconian old laws.

The case was US v. Cornelius and Jarreous Blewitt, in which the Blewitt cousins were convicted in 2005 of federal crack cocaine charges and sentenced to mandatory minimum prison sentences. The Blewitts appealed their sentences, citing the Fair Sentencing Act's impact on crack cocaine sentencing, and seeking retroactive sentencing in line with the act.

Even though the Fair Sentencing Act had reduced the 100:1 ratio between crack and powder cocaine for sentencing purposes to 18:1, "thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress," the court noted.

"In this case, we hold that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment," the court wrote, noting that the Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination.

The US Supreme Court had already approved sentencing retroactivity for crack offenders who were charged before the Fair Sentencing Act went into effect but sentenced after it in Dorsey v. US, but this decision from the 6th Circuit dramatically expands the impact of the Fair Sentencing Act's sentencing reductions by applying it to all federal crack cocaine offenders.

[Ed: Whether the ruling will survive the scrutiny of the 6th Circuit en banc or the US Supreme Court, if it gets that far, remains to be seen.]

Cincinnati, OH
United States

Supreme Court Rules No Automatic Deportation for Minor Marijuana Possession

A 26-year-old Jamaican who has resided in the US since he was three should not automatically be deported for being caught with a small amount of marijuana, the US Supreme Court ruled Tuesday. The case was Moncrieffe v. Holder.

In that case, Adrien Moncrieffe was caught with 1.3 grams of marijuana when police in Georgia pulled him over for a traffic stop. He pleaded guilty to possession with intent to distribute in a plea bargain in which the state of Georgia agreed to expunge the charges after he served five years' probation.

But a federal immigration judge ruled that the plea bargain made Moncrieffe deportable as an "aggravated felon." While federal law considers possession of small amounts of weed a misdemeanor, federal officials argued that his plea was to an offense analogous to a federal felony and thus calling for automatic deportation under federal immigration law. With the lesser offense, Moncrieffe might potentially face deportation, but the government would not have to seek it and Moncrieffe could make his case before a judge if it did.

The US 5th Circuit Court of Appeals in New Orleans upheld the immigration judge's ruling, but the Supreme Court accepted the case for review last year. On Tuesday, seven justices agreed that Moncrieffe's conviction did not rise to the level of a drug trafficking offense that triggered the aggravated felony classification for deportation under the Immigration and Nationality Act (INA).

"Moncrieffe's conviction could correspond to either the CSA [Controlled Substances Act] felony or the CSA misdemeanor," Justice Sonia Sotomayor wrote for the majority. "Ambiguity on this point means that the conviction did not 'necessarily' involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony."

Although federal prosecutors had argued that any marijuana distribution conviction (even intending to distribute one gram) is "presumptively" a felony, Sotomayor and the other six justices weren't buying that.

"That is simply incorrect, and the government's argument collapses as a result," Sotomayor wrote. "Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach."

That paragraph lists exceptions to the offense of marijuana distribution that allow defendants to be considered misdemeanor "simple drug possessors."

To follow prosecutors' logic, Sotomayor argued, "would render even an undisputed misdemeanor an aggravated felony. Recognizing that its approach leads to consequences Congress could not have intended, the government hedges its argument by proposing a remedy: Non-citizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing," she wrote.

But that approach was "entirely inconsistent with both the INA's text and the categorical approach," Sotomayor stressed. "The government cites no statutory authority for such case-specific fact finding in immigration court, and none is apparent in the INA. Indeed, the government's main categorical argument would seem to preclude this inquiry: If the government were correct that 'the fact of a marijuana-distribution conviction alone constitutes a CSA felony,' then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the government's follow-on fact finding procedure. The government cannot have it both ways."

And the government's approach would lead to a litany of "absurd consequences that would flow from" immigration investigations into such offenses. "That the only cure is worse than the disease suggests the government is simply wrong," she wrote.

Only Justices Clarence Thomas and Samuel Alito dissented, with Thomas arguing that since Georgia punished Moncrieffe's offense as a felony, he should be deportable under the CSA, and Alito warning that the majority had just given a free ride to "drug traffickers in about half the states."

"In those states," Alito wrote in his dissent, "even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country. Large-scale marijuana distribution is a major source of income for some of the world's most dangerous drug cartels, but the court now holds that an alien convicted of participating in such activity may petition to remain in this country."

Of course, Moncrieffe was not convicted of "large-scale marijuana trafficking" and was not a member of one of "the world's most dangerous drug cartels;" he was a guy busted with a couple of joints worth of weed. And the government may still be able to deport people in Moncrieffe's situation, but now they will have to make the case for deportation before a judge.

Washington, DC
United States

Medical Marijuana Update

More DEA raids in Los Angeles, federal prison bureaucrats ignore a Michigan medical marijuana prisoner's medical needs, federal drug bureaucrats prevail in a medical marijuana research case, and there is lots of action in state legislatures, including a Wednesday afternoon victory in the Illinois House. Let's get to it:

National

On Monday, a federal appeals court rejected Prof. Lyle Craker's appeal to overturn a DEA decision to not allow him to grow medical marijuana for research purposes.The appeals court sided with the DEA, finding its decision to maintain the federal marijuana cultivation monopoly was reasonable and in line with the Controlled Substances Act. Craker first sought approval in 2001.

California

On Monday, a hearing on a Lake County lawsuit challenging the county's cultivation ordinance was postponed when the judge hearing the case recused himself. Judge Richard Martin recused himself because his son is running for sheriff against Sheriff Frank Rivero, who is a defendant in the case. As a result, the lawsuit against the county and its sheriff will be sent to Lake County Superior Court Presiding Judge Stephen Hedstrom for reassignment. Lake County resident Donald Merill is suing over the Board of Supervisors' decision last summer to approve an ordinance limiting the number of pot plants allowed in outdoor cultivation, banning commercial cultivation of medical marijuana and prohibiting growing on vacant lands in the unincorporated areas of the county. Now, a case management conference set for next week has been pushed back until late August, too late for this year's outdoor growing season.

On Tuesday, supporters of a Los Angeles dispensary initiative kicked off their campaign with a city hall press conference. Proposition D is one of three dispensary initiatives going before city voters on May 21. The measure would cap the number of dispensaries at 135, as would Proposition E, whose backers have switched to supporting Prop D. A third initiative, Proposition F, has no caps on dispensaries, but imposes other restrictions. Both Props D and F would impose a gross tax receipts of 2% on medical marijuana dispensary revenues.

Also on Tuesday, DEA and local law enforcement raided four Los Angeles area dispensaries. Hit were the Zen and Alternative Herbal Health Services dispensaries on Santa Monica Boulevard in West Hollywood, La Brea Compassionate Caregivers in Los Angeles, and Marina Caregivers in Marina del Rey. Law enforcement also executed search warrants at seven other locations and arrested three people. Those arrested are accused of selling marijuana outside of California and various other offenses.

Illinois

On Tuesday, nearly 250 doctors signed on to support medical marijuana legislation pending at the state house. Several of them, along with patients, spoke at a Chicago press conference one day before a vote on House Bill 1 was expected in the House. The bill would create a pilot medical marijuana program, including a dispensary system.

On Wednesday, the bill passed the House on a 61-57 vote. It now goes to the Senate.

Michigan

Late last week, the federal Bureau of Prisons refused to house an ailing medical marijuana patient at one of its medical facilities even though he is a kidney-pancreas transplant candidate, suffers coronary artery disease, and requires a strict medication regime. Jerry Duval, 53, must report to federal prison on June 11 and must serve his sentences at a federal correctional facility in Ohio. His sentencing judge had recommended that he be "placed in a Federal Medical Center or other facility deemed to be appropriate in consideration of the Defendant's medical needs." Last August, Montana medical marijuana prisoner Richard Flor, 68, died in federal prison after his medical conditions were given short shrift.

Nevada

Last Thursday, a medical marijuana dispensary bill won a Senate committee vote. Senate Bill 374 was approved by the Senate Judiciary Committee on a unanimous vote. The bill now goes to the Senate Finance Committee. Because the bill includes fees, it must win two-thirds approval to pass the Senate.

On Saturday, the state's first medical marijuana school opened. The Cannabis Career Institute launched its Budtender School with a workshop for about 40 students on Saturday in Henderson. The school will teach all aspects of the medical marijuana business, including how to grow marijuana legally and bake it into brownies, cookies and cakes. The institute has held similar workshops in other cities across the US, and more than 1,500 people hold certificates from it.

New Hampshire

Last Thursday, medical marijuana legislation got a hearing in a key Senate committee. The bill, House Bill 573, was heard in the Senate Health, Education, and Human Services Committee. Opponents suggested that a clinical study be done, but supporters retorted that such suggestions were merely a way to delay the bill. A similar measure has already passed the House. While Gov. Maggie Hassan (D) has said she would support a tightly regulated program, she has expressed concern about a home-grow option.

New York

On Tuesday, a medical marijuana bill passed the Assembly Health Committee on a 21-4 vote. The bill, Assembly Bill 6357, would allow patients suffering from severe debilitating or life-threatening conditions to use medical marijuana. A practitioner who is licensed to prescribe controlled substances would certify that a patient has a severe debilitating or life-threatening condition that should be treated with the medical use of marijuana.  Certifying and dispensing medical marijuana would be included in the I-STOP prescription monitoring system for controlled substances enacted in 2012.

Also on Tuesday, Gov. Andrew Cuomo (D) said he still opposes medical marijuana. "I do not support medical marijuana. I understand the pros and cons. I understand the argument," Cuomo said. "We are looking at it, but at this point, I don't support medical marijuana. I understand the benefits, the risks. How do you construct a system that really is that tightly controlled that you don’t have dissemination beyond the directed population?"

North Carolina

Last Friday, Rep. Kelly Alexander introduced a medical marijuana study bill. The bill, House Bill 941, would require a legislative research commission to study medical marijuana-related issues. Earlier this session, Alexander had introduced a medical marijuana bill, but that was killed by legislators who complained they were getting too much feedback from constituents.

Oregon

Last Friday, it was learned that the federal government had forced the state to release medical marijuana patient records. The Oregon Public Health Division, which keeps tabs on medical marijuana card holders, has handed over an undisclosed number of patient records as the result of a federal search warrant. The DEA executed the warrant and seized Oregon Medical Marijuana Program records in an investigation into illegal drug activity. The name and number of patients information pulled is still unknown because the investigation is ongoing and more records could be subpoenaed. Patients and activists are not pleased.

Rhode Island

Last Thursday, medical marijuana supporters protested proposed restrictions on caregivers at a rally at the state house. More than two dozen people showed up to oppose amendments to the state's law that would reduce the number of plants that a caregiver could grow from 24 to 12 and allow a patient to grow a maximum of 6 plants. Patients can currently grow twice that number. The caregivers and patients also criticized amendments that would require the growers to notify city or town zoning officials about their plans to grow marijuana.

Federal Appeals Court Rejects Researcher's Bid to Grow Medical Marijuana

The US First Circuit Court of Appeals in Boston Monday sided with the Drug Enforcement Administration (DEA) in rejecting University of Massachusetts-Amherst scientist Dr. Lyle Craker's appeal of the agency's decision to deny him a license to grow medical marijuana for research purposes.

Professor Lyle Craker (maps.org)
Craker sought to break the federal government's monopoly on the production of marijuana for research purposes. Because of hostility to research on the possible benefits of marijuana in the federal drug control and research bureaucracies, the federal monopoly on marijuana for research purposes created a bottleneck, blocking potential valuable research efforts.

The decision in Craker v. DEA caps a 12-year odyssey through federal regulatory purgatory for Craker and the Multidisciplinary Association for Psychedelic Studies, which had backed the UMass-Amherst scientist's bid to develop a source of marijuana independent of that produced under the auspices of NIDA.

"After such a long struggle, I'm disappointed that the Court failed to recognize the need for an independent source of plant material for use in research on the medical uses of marijuana," said Prof. Craker. "In doing so, they have failed the American people, especially those for whom marijuana as a medicine could help."

Craker first applied for a license from the DEA in 2001; it took the agency three years to initially deny his request. In 2007, the DEA's own administrative law judge recommended that the agency grant his application, but two years later, then DEA Deputy Administrator (and current Adminstrator) Michele Leonhart rejected that recommendation. Craker sought a formal reconsideration, which Leonhart denied in 2011.

Craker then appealed to the First Circuit, with oral arguments taking place in May 2012. In its decision Monday, the First Circuit upheld Leonhart's denial. In so doing, it dismissed Craker's claims that the DEA had changed the rules in the middle of the game and that the supply of marijuana from the NIDA facility was inadequate and uncompetitive. Leonhart's interpretation of the Controlled Substances Act was permissible and her findings were "reasonable and supported by the evidence," the court held.

"This ruling will result in sick people continuing to be denied the medicine they desperately need, and which 18 states and the District of Columbia recognize as legitimate," said Allen Hopper, criminal justice and drug policy director for the ACLU of California and one of the lawyers representing Prof. Craker. "The Obama administration must stop blocking the research necessary to take marijuana through the FDA approval process."

Boston, MA
United States

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