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Mendocino County Could Adopt Wine Industry-Style Marijuana Appellations [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

Before too long, when you sit down to enjoy your 2014 vintage Caymus Napa Valley Cabernet Sauvignon, you'll be able to pair your wine with a nice South Mendocino County Sour Diesel or maybe a Mendocino Covelo/Dos Rios OG Kush for a sip and smoke that hits all the high notes.

That's right, pot farmers in one of California's Emerald Triangle marijuana-growing counties are about to follow their brethren in the wine industry by seeking to capitalize on its reputation as a pioneer and still cutting-edge presence in American cannabis cultivation. As with Bordeaux in France or the Napa Valley nearby, the Mendocino Appellations Project wants the county's marijuana brand protected and promoted by designating denominations of origin that reflect both the county provenance and the distinct pot-growing microclimates that Mendo offers.

The first-of-its-kind project is riding a tide of local optimism not only about the future -- legalization is set to be on the ballot in California this year -- but also the present, now that the state legislature has belatedly passed the Medical Marijuana Regulation and Safety Act (MMRSA). Twenty years after voters first approved medical marijuana, the act will finally bring some clarity to an endeavor that has operated with many grey areas. It defines marijuana cultivation as an agricultural activity, creates state licensing requirements, and also makes it a crime to label or sell medical marijuana as grown in a county if it actually isn't.

These rules are similar to the ones that protect the state's wine regions, whose global reputations for fine wines are jealously guarded. But unlike wine, which is regulated by the federal government, California's pot's regulation defaults to the state under federal marijuana prohibition.

"You have a product coming out of prohibition, essentially. Marijuana growers are caught in a very difficult situation. It's a bit of a 'catch-22'. Even though it's legal at the state level, it's not legal at the federal level. They can't operate in the normal way by creating bank accounts and the like. Appellations will help show the legitimacy of what they are doing," wine legal expert Richard Mendelson told The North Bay Business Journal

Mendelson has played a key role in the development of Napa County's wine appellations for more than 30 years, and he's now lending his expertise to the Mendocino Appellation Project.

"Appellations can be really powerful because they can be a means to protect everything from the intellectual property, to the labor force, to the culture and history. They can be very rich vehicles for promotion, protection, and rural development," he added.

"Mendocino is the Napa Valley of cannabis. It is by far the most conducive place for outdoor cultivation," said project founder Justin Calvino. "Mendocino is a growing culture you won't find anywhere else."

Calvino began the project last year with a topographical map of the county, then proceeded to listen to growers and others in the industry. After surveying local farmers last fall, he created the appellation map, with 11 different micro-regions based on ecological factors, such as watershed and microclimate.

The proposed appellations are: Spyrock-Bell Springs, Covelo-Dos Rios, Long Valley-Branscomb-Leggett, Willits, Comptche, Ukiah Valley, North Mendocino Coast, South Mendocino Coast, Anderson Valley South Mendocino, Potter Valley, and Mountainhouse South Mendocino County.

"I like the way he's gone about it, because he's factored in not just the natural elements, he's gone out and spoken to growers, asking the old-timers what they think, and is making revisions. He's being true to the history. This is a template for the future, creating a dossier of physical and human, historical factors -- I applaud him for that," Mendelson said.

There are issues yet to be resolved, including whether to brand the name "Mendocino" or focus on smaller areas, the setting of environmental standards, and the thorny philosophical question of whether marijuana grown indoors can lay claim to terroir, a wine term that means the specific environmental conditions, especially soil and climate, that give a wine its unique characteristics. Can a crop grown with hydroponics in a controlled indoor environment have a terroir?

In any case, the adoption of appellations should be good for consumers and good for the industry.

"This is what makes wine so much fun for consumers, to experiment and to be able to go from the larger country and regional levels all the way down to the specific vineyard designation, and see, as a consumer if you can spot those differences and understand the effect of terroir on the final product," Mendelson said.

"Tourism is big. We want people to come out and visit our tasting rooms. We want the debate and the talk about our appellations, and which one does it better than another," he said.

Calvino also sits on the board of the California Growers' Association and has been asked to lead a group working on developing appellations statewide. He said he is looking a neighboring Humboldt County next.

CA
United States

It's Official -- California Will Vote on Legalizing Marijuana in November [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

A broadly-backed initiative to legalize marijuana in the country's most populous state will be on the California ballot in November. The secretary of state's office made it official Tuesday afternoon, certifying that a random sample of more than 600,000 signatures turned in showed there were enough valid signatures to qualify the measure.

"Today marks a fresh start for California, as we prepare to replace the costly, harmful and ineffective system of prohibition with a safe, legal and responsible adult-use marijuana system that gets it right and completely pays for itself," said Jason Kinney, spokesperson for the Adult Use of Marijuana Act (AUMA)."This measure reflects years of hard work, diverse stakeholder input and broad, bipartisan public support, Kinney continued. "A growing majority of Californians support a smarter approach to marijuana and we're gratified that voters will finally have the opportunity in November to pass comprehensive, common-sense policy that protects children, local control, public health and public safety, saves state and local taxpayers hundreds of millions of dollars, funds critical local programs, and serves as a model for the rest of the nation."

California joins Maine and Nevada among states that have qualified marijuana legalization initiatives for the fall ballot. In two more states -- Arizona and Massachusetts -- legalization initiative campaigns are overcoming final hurdles and are almost certain to join them, but a valiant effort in Michigan faces an uphill battle, forced to rely on the courts to overturn a new state law and unfavorable election board rulings.

Marijuana is already legal in four states, voted in by residents in Colorado and Washington in 2012 and Alaska and Oregon in 2014. Washington, DC, approved possession and cultivation, but not a legal marijuana market, that same year.

Seeing more states go green in 2016 is one thing, but California is the Big Enchilada. With a population of 38 million, its market is more than twice the size of all the legal pot states combined, and it represents more than 10% of the entire country. What is currently a legal marijuana industry generating hundreds of millions of dollars in sales will easily tick over into multi-billion dollar territory once California joins in.

And it looks like that's likely to happen. A Probolsky Research poll in February had support for legalization at 59.6%. A Public Policy Institute of California poll in May had support at 55%, but at 60% among likely voters.

Poll numbers like these are encouraging for proponents, but skeptics can point to the failed Proposition 19 effort in 2010, which came up short with 47% of the vote after polling above 50% for months that year.

This year should be different, though. The AUMA has broad support, beginning with charismatic Lt. Gov. Gavin Newsom (D), and including the state Democratic Party, at least three members of the California congressional delegation, a number of state assembly members and other elected officials, the state NAACP, the state ACLU, the California Cannabis Industry Association, and the California Medical Association, as well as prominent figures in law enforcement.

It also has money, and a winning initiative campaign in California will need millions. The AUMA has some deep pockets behind it, including tech billionaire Sean Parker and Weedmaps founder Justin Hartfield, both of whom have dropped million dollar chunks of change into the campaign. The Drug Policy Action Network, the lobbying arm of the Drug Policy Alliance, has also kicked in at least $500,000.

The AUMA's campaign fundraising committee has raised $3.7 million so far this year, which is a good start and dwarfs the amount raised by the opposition Coalition for Responsible Drug Policies, composed of law enforcement and health groups such as the California Police Chiefs Association, the California State Sheriffs Association, and the California Hospital Association. The cops and docs have only managed a paltry $125,000 so far, thanks to donations from groups such as the Association of LA Deputy Sheriffs and the LA County Professional Peace Officers Association.

And it isn't 2010 anymore. Since Prop 19 failed, marijuana legalization has now won in every state where it's been on the ballot, and the whole national atmosphere around it seems to have relaxed. And unlike 2010, this is a presidential election year, with higher turnout, especially among young voters, than is seen in off-year elections. The omens are good.

So what would the AUMA do? According to the campaign website (read the complete initiative text here):

  • Adults aged 21+ will be allowed to possess marijuana, and grow small amounts at home for personal use. Sale of marijuana will be legal and highly regulated to protect consumers and kids. [Possession of up to an ounce and cultivation of up to six plants]
  • This measure brings California's marijuana market out into the open -- much like the alcohol industry. It will be tracked, controlled, regulated and taxed, and we will no longer be criminalizing responsible adults or incarcerating children.
  • Includes toughest-in-the-nation protections for children, our most vulnerable citizens.
  • Protects workers, small businesses, law enforcement and local communities.
  • According to the independent Legislative Analyst and Governor's Finance Director, these reforms will save the state and local government up to $100 million annually in reduced taxpayer costs -- and raise up to $1 billion in new tax revenues annually.
  • Majority of revenues will be allocated to teen drug prevention and treatment, training law enforcement to recognize driving under the influence of drugs, protecting the environment from the harms of illegal marijuana cultivation, and supporting economic development in communities disproportionately impacted by marijuana prohibition.
  • AUMA includes strict anti-monopoly provisions and protects small farmers, so California's marijuana industry isn't overrun by mega-corporations.
  • The measure builds on the bipartisan legislation signed by Governor Brown to control and regulate California's medical marijuana industry, and is modeled after national best practices, lessons learned from other states, and the recommendations of the Lieutenant Governor's Blue Ribbon Commission on Marijuana Policy.

Whether the AUMA is the best way to go about legalizing marijuana in California is certainly debatable, and it does have its critics within the state's cannabis culture, but this is what's going to be before the voters in November.

Sacramento, CA
United States

Supreme Court Opens Door for More Lawless Police Searches [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

In a pair of decisions released Monday, the US Supreme Court again demonstrated its deference to law enforcement priorities, in one case by expanding an exception to the long-standing ruling requiring that unlawfully gathered evidence be discarded and in another by holding that drug dealers, even those engaged only in street-corner sales, are engaged in interstate commerce.

The two decisions expand the ability of local police to skirt the law without effective punishment on the one hand, and allow prosecutors to use the weight of the federal criminal justice system to come down on small-time criminals whose cases would normally be the purview of local authorities on the other. Taken together, the decisions show a high court that once again give great deference to the demands of law enforcement.

In the first case, Utah v. Strieff, the Supreme Court held that evidence obtained from the illegal stop of Strieff should not be thrown out under the exclusionary rule, which requires that illegally seized be suppressed as "fruit of the poisonous tree." The exclusionary rule, which dates back to 1920 and values the rule of law even at the expense of seeing a guilty suspect go free, has long been a bane of judicial conservatives, who have been trying to chip away at it since at least the 1980s.

In Strieff, a Salt Lake City police officer investigating possible drug activity at a residence stopped Strieff without "reasonable cause" after he exited the home. During his encounter with Strieff, the police officer found that he was wanted on a traffic warrant, arrested him, then searched him subsequent to arrest. The police officer found methamphetamine and drug paraphernalia, then charged him with drug and paraphernalia possession.

Strieff argued to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. He lost at the trial and appeals court levels, but the Utah Supreme Court overturned his conviction, holding that an exception to the exclusionary rule known as the "attenuation doctrine" did not apply. The US Supreme Court disagreed.

The attenuation doctrine holds that unlawfully obtained evidence may be used even if "the fruit of the search is tainted by the initial, unlawful detention…if the taint is dissipated by an intervening circumstance," as the Utah Supreme Court described it. In other words, if police acting in good faith violate the law and don't do it flagrantly, they should be able to use any evidence found as a result of that violation in court.

The Supreme Court divided 5-3 on the case, with Chief Justice Roberts joining justices Alito, Breyer, and Kennedy joined Justice Clarence Thomas in his majority opinion. Thomas held that the police misconduct was not bad enough to warrant suppression of the evidence and, besides, police probably aren't going to abuse their powers to do mass searches.

"[The officer's] purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs," Thomas wrote. "Strieff conflates the standard for an illegal stop with the standard for flagrancy, which requires more than the mere absence of proper cause. Second, it is unlikely that the prevalence of outstanding warrants will lead to dragnet searches by police."

Even if someone is unlawfully detained, evidence obtained from them can be used in court, the high court ruled. (wikimedia.org)
The Supreme Court's liberal minority was not nearly as sanguine. Justice Sonia Sotomayor, with Justice Ginsberg concurring, cut right to the heart of the matter:

"The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights," she wrote in her dissent. "Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants -- even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent."

In the second case, Taylor v. United States, the high court upheld the ability of federal prosecutors to use federal law to prosecute people who rob drug dealers, even if the dealers are dealing only in locally-grown marijuana with no evidence of interstate sales. That 7-1 decision is in just the latest in a long line of cases upholding the ability of the federal government to regulate interstate commerce under the Constitution's "commerce clause" and to protect it from robbery or extortion under the 1951 Hobbs Act.

It was the "commerce clause" line of cases that led to the 2005 Gonzales v. Raich decision in which the Supreme Court upheld the ability of the federal government to move against marijuana cultivation and sales even in states where it is legal. In that case, the high court ruled that California medical marijuana patient Angel Raich's cultivation of marijuana plants at her home in California for her use in California implicated interstate commerce and was therefore liable to federal jurisdiction.

Even marijuana grown and sold locally implicates the Constitution's commerce clause, the court has ruled. (flickr.com)
In Taylor, Taylor was part of a Virginia gang known as the "Southwest Goonz" who targeted and robbed marijuana growers and dealers. He was charged under the Hobbs Act with two counts of "affecting commerce or attempting to do so through robbery." In his first trial, which resulted in a hung jury, Taylor offered evidence that the dealers targeted only trafficked in locally-grown marijuana. In his second trial, prosecutors convinced the court to exclude that evidence, and Taylor was convicted on both counts. The 4th US Circuit Court of Appeals affirmed that conviction, "holding that, given the aggregate effect of drug dealing on interstate commerce, the Government needed only to prove that Taylor robbed or attempted to rob a drug dealer of drugs or drug proceeds to satisfy the commerce element."

In an opinion authored by Justice Alito, the Supreme Court agreed.

"[T]he Government met its burden by introducing evidence that Taylor's gang intentionally targeted drug dealers to obtain drugs and drug proceeds," he wrote. "That evidence included information that the gang members targeted the victims because of their drug dealing activities, as well as explicit statements made during the course of the robberies that revealed their belief that drugs and money were present. Such proof is sufficient to meet the Hobbs Act's commerce element."

Only Justice Thomas dissented, arguing that the whole line of "commerce clause" cases granted too much power to the federal government.

"The Hobbs Act makes it a federal crime to commit a robbery that 'affects' 'commerce over which the United States has jurisdiction," Thomas wrote. "Under the Court's decision today, the Government can obtain a Hobbs Act conviction without proving that the defendant's robbery in fact affected interstate commerce -- or any commerce. The Court's holding creates serious constitutional problems and extends our already expansive, flawed commerce-power precedents. I would construe the Hobbs Act in accordance with constitutional limits and hold that the Act punishes a robbery only when the Government proves that the robbery itself affected interstate commerce."

Two cases, two distinct lines of legal precedent, one outcome: Drug cases continue to provide a basis for the expansion of state law enforcement power.

Washington, DC
United States

Obama's Effort to Free Drug War Prisoners Hits Bureaucratic Roadblocks [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

With the sentence commutations announced last week, President Barack Obama has now cut more than 300 harsh drug war prison sentences, more than the previous six presidents combined. Thousands more could be eligible for commutations, but bureaucratic obstacles inside the Justice Department mean the clock could run out before Obama gets a chance to free them.

Thousands could go free with sentence cuts this year -- if bottlenecks are fixed. (nacdp.org)
As part of the Obama administration's emphasis on criminal justice reform and reducing the federal prison population, then Attorney General Eric Holder and Deputy Assistant Attorney General James Cole called on nonviolent federal drug war prisoners to seek clemency in April 2014.

"In 2010, President Obama signed the Fair Sentencing Act, reducing unfair disparities in sentences imposed on people for offenses involving different forms of cocaine, but there are still too many people in federal prison who were sentenced under the old regime -- and who, as a result, will have to spend far more time in prison than they would if sentenced today for exactly the same crime," said Holder at the time. "This is simply not right."

Holder noted that Obama had granted commutation to eight people serving time for crack offenses the previous December.

"The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety. The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences," Holder said.

The mass clemency program is one of Eric Holder's sentencing reform legacies. (justice.gov)
Under Holder's criteria for clemency, low-level drug offenders who had served at least 10 years, had good conduct in prison, had no significant criminal history or connection to gangs, cartels, or organized crime, and who would probably receive a "substantially lower sentence" if convicted of the same offense today would be eligible for sentence cuts.

Of roughly 100,000 federal drug prisoners -- nearly half the entire federal prison population -- more than 36,000 applied for clemency. Many of them did not meet the criteria, but the Justice Department has reviewed nearly 9,500 that did. Of those, only the 306 have actually been granted clemency; applications are still pending for 9,115 more. (An additional 8,000 pending applications are being handled by a consortium of private attorneys, the Clemency Project.)

Many of those might not make it to Obama's desk before the clock runs out on his term because the Justice Department has stumbled in administering the program. Thousands of prisoners doing harsh drug war sentences could lose their chance for early freedom because Justice didn't get around to hiring enough people to handle the flood of applications it generated.

The situation so infuriated Office of Pardons attorney Deborah Leff, who was hired to oversee the project, that she quit earlier this year. Her resignation letter to Deputy Attorney General Sally Yates made it clear why.

Despite her "intense efforts" to do her job, Justice had "not fulfilled its commitment to provide the resources necessary ffor my office to make timely and thoughtful recommendations on clemency to the president," she wrote. "The position in which my office has been placed, asking us to address the petitions of nearly 10,000 individuals with so few attorneys and support staff, means that the requests of thousands of petitioners seeking justice will lie unheard."

It wasn't just that Justice wasn't adequately staffing the pardons office -- it had a total of 10 staff attorneys -- but Yates was overturning the pardon attorneys' recommendations and blocking the office's traditional access to the White House, Leff complained.

"I have been deeply troubled by the decision to deny the Pardon Attorney all access to the Office of the White House Counsel, even to share the reasons for our determinations in the increasing number of cases where you have reversed our recommendations," Leff wrote in her resignation letter to Yates.

US Pardon Attorney Deborah Leff resigned in frustration.
"It is essential that this groundbreaking effort move ahead expeditiously and expand," she wrote, implying that the Justice Department process was stalling justice.

The staffing problems had been apparent early on, which is why the Department turned to the Clemency Project to help out last year. But that effort, which involved some 4,000 attorneys from 30 law schools, 70 large law firms, and more than 500 small firms and solo practitioners doing pro bono work, has also been slow to get rolling.

Now, with the days slipping away and freedom for thousands in the balance, both the Justice Department and the Clemency Project are feeling the heat. White House Counsel Neil Eggleston told the Washington Post last week that many more petitions will be granted in Obama's final months and that the Justice Department has doubled the number of lawyers at the pardon office. And administration officials said that President Obama wants to see more petitions on his desk.

"The President is deeply committed to the clemency initiative. That is evident not only by the historic number of commutations he's granted to date, but by his wholesale approach to revamping the way the government approaches commutations," White House spokeswoman Brandi Hoffine said in a statement.

The Justice Department said it was working hard, too.

"The Justice Department has dedicated the maximum amount of resources allowed by Congress to the Office of the Pardon Attorney, and we have requested additional funds from Congress for each year the initiative has been in place," spokeswoman Emily Pierce said in a statement.

But it may be too little, too late for the thousands of men and women behind bars who could see freedom being waved in front of them only to vanish when the clock runs out, if things don't change quickly.

Washington, DC
United States

Feds Give Up on Effort to Seize Nation's Largest Medical Marijuana Dispensary [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

In a stunning victory for California's marijuana industry, federal prosecutors have agreed to end their years-long effort to close and seize Oakland's Harborside Health Center, the nation's largest dispensary with more than 100,000 patients.

Inside Harborside. (HarborsideHealthCenter.com)
Harborside broke the news with a press release Tuesday, followed up by a press conference attended by Oakland officials who have stood by the dispensary since then-US Attorney Melinda Haag went after in 2012.

The effort to shut down Harborside was part of a broader offensive against the state's medical marijuana industry. Prosecutions and threats of prosecutions forced more than 500 dispensaries to shut down, but Harborside stood firm, didn't fold, and fought hard against the federal moves to seize its properties.

"When US Attorney Melinda Haag first filed suit to seize the property Harborside is located in, I vowed we would never abandon our patients... and predicted Harborside would outlast the efforts to close us down," Harborside Executive Director Steve DeAngelo said in the statement. "Today, thanks to the deep support of our community and our elected officials, and the skill and determination of our legal counsel, that prediction has come true."

"It's a great day for Oakland and for all of California," Oakland Mayor Libby Schaaf said at the press conference. "The federal government isn't going to waste tax dollars trying to frustrate the desires of Californians to have safe access to medical cannabis."

Harborside also stood firm because it had the money to do so. The dispensary, which also operates a facility in San Jose, brings in about $25 million a year from medical marijuana sales and was able to hire the finest legal talent in attorney Henry Wykowski.

"We are gratified that the government has finally seen fit to lay down its arms against Harborside in this case," Wykowski said. "The will of the people is for medical cannabis dispensaries to operate free from federal threats of closure. We hope we are on the cusp of a policy change and that the Department of Justice will no longer target state-legal dispensaries for forfeiture."

But Harborside's success also made it an appealing target for US Attorney Haag. In July 2012, she filed a civil forfeiture action against Harborside, claiming it violated federal drug laws.

"The larger the operation, the greater the likelihood that there will be abuse of the state's medical marijuana laws, and marijuana in the hands of individuals who do not have a demonstrated medical need," Haag wrote.

Still, Harborside counted on local support, and got it in spades. In October 2012, the city of Oakland sued the federal government in a bid to block the Justice Department from seizing the dispensary's properties. The city argued that shutting down Harborside would harm its patients and force them into the black market to get their medicine.

Between then and now, Harborside won a series of legal victories that allowed it to stay open and avoid eviction, but the city's lawsuit was ultimately rejected by the 9th US Circuit Court of Appeals last August. In the meantime, though, developments at the federal level worked in Harborside's favor. In 2014, Congress approved an amendment by California Congressmen Sam Farr (D) and Dana Rohrabacher (R) that blocks the Justice Department from using federal funds to go after medical marijuana programs in states where it is legal. That amendment was reauthorized last year.

The US Attorney's Office for Northern California has not commented on the decision to drop the case, but the different federal landscape most likely played a key role.

Oakland politicians praised the move.

"Today's decision by the U.S. attorney is a victory for health care access," said Rep. Barbara Lee (D-Calif.), who represents Oakland and pressed for the DOJ to drop the case against Harborside. "For decades, Harborside has helped ensure members of our community can access their medicine. It's past time for the federal government to stop standing between these patients and their medicine."

"Harborside Health Center has been a strong positive presence in Oakland, both for the patients they serve, the workers they employ, and for the vital public services that are supported by their tax revenues," said Oakland City Councilmember Rebecca Kaplan. "I am glad that Oakland's work on the federal case helped keep Harborside open during this dispute, and heartened to know that the threat against them is now removed."

The federal war on medical marijuana in California appears to be ending with a whimper, not a bang.

Oakland, CA
United States

Video Killed the Drug Conviction: Chicago Narcs Busted Lying Through Their Teeth [FEATURE]

Part 10 of an occasional series on police and prosecutorial misconduct by Clarence Walker, cwalkerinvestigate@gmail.com.

It was just another marijuana bust by Chicago's crack dope squad and should have resulted in an easy conviction, but thanks to a forgotten camera, things didn't exactly work out the way the cops planned. Now, the pot dealer is free, he has a bunch of cash in pocket, and it's the cops who are facing justice.

It went down on June 6, 2013, when three Chicago Police narcotics officer and a pair of suburban Glenview police officers pulled over Joseph Sperling on the pretext that he had failed to properly use his turn signal, then claimed Sperling told them there were drugs in his vehicle. The cops said they found marijuana in plain view and arrested Sperling on marijuana possession and distribution charges. Business as usual, so far.

But when it came time to go to court the following March, things went south for the cops. Prosecutors had been questioning Chicago PD narcotics officer William Pruente, who said in sworn testimony that when police pulled over Sperling they immediately smelled marijuana and ordered him to exit the vehicle and stand at the rear of the car.

Then, defense attorney Steven Goldman asked the veteran narc if Sperling was handcuffed after he got out of the car.

"No, he was not handcuffed," Pruente replied. "He was not under arrest at that time."

Chicago narcotic officers Sergeant James Padar and Vince Morgan and Glenview Police officers James Horn and Sergeant Theresa Urbanowski backed up Pruente's story.

Then, as Urbanowski was testifying, defense attorney Goldman dropped a bombshell. He interrupted the testimony to inform Judge Catherine Haberkorn that he needed to offer a videotape into evidence.

In a moment of courtroom drama like something out of "Law and Order," Goldman revealed that the video came from Urbanowski's police cruiser and that it flatly contradicted the sworn testimony of the police officers. The police had been lying to the court and to the judge and the video would prove it, Goldman said.

As Goldman patiently took Urbanowski back over the events she'd testified about, he played the recording and asked her to describe the difference between her original testimony and what was happening on the tape.

The footage contradicted the testimony of the police officers. Pruente had testified that Sperling had not been arrested or handcuffed until the cops had found the dope in plain view, but the video showed Pruente walking up to Sperling's car, reaching in the open window, unlocking the door, pulling Sperling out, handcuffing him, and placing him in the back seat of a patrol car. Only then did the officers move to search the car.

The video clearly showed the officers spending minutes thoroughly searching Sperling's car before finding weed and a small amount of psychedelic mushrooms in a black duffel bag.

As defense attorney Goldman noted during questioning, if the drugs had really been in plain view on the front seat of the vehicle, the officers had no need or reason to search it because they already had the drugs.

The brazen distance between the officers' testimony and what the video revealed infuriated Judge Haberkorn, who immediately granted Goldman's motion to suppress the evidence because the video showed police had neither probable cause to arrest Sperling nor a warrant to search his vehicle.

"This is very outrageous conduct," Haberkorn said from the bench. "All the officers lied on the stand today. All their testimony is a lie. There is strong evidence it was a conspiracy to lie in this case, for everyone to come up with the same lie."

Haberkorn then dismissed the criminal charges against Sperling.

"If this could happen to me, it could happen to anyone," said Sperling, then 23, during a press conference with reporters after the release of his videotaped arrest. "I just happen to be one of the lucky few that had a video that proved the officers were wrong."

The Cook County criminal justice system may have been done with Sperling, but he wasn't done with it. Shortly after the charges were dismissed, he filed a federal civil rights lawsuit alleging illegal search and seizure against the Chicago and Glenview police departments. And he won. The two cities involved settled the suit, paying Sperling $195,000 for his troubles.

Others who have been similarly victimized could do the same. Under the US Code Section 1983, citizens are allowed to sue police in federal court as a result of an illegal search and arrest if the officer acted with malice "under color of law."

In Sperling's case, attorney John Loevy argued in the lawsuit that there was insufficient legal justification for officers to stop and arrest Sperling and search his vehicle, which was done without probable cause. Those illegal actions violated Sperling's civil rights under the Fourth, Fifth, and Fourteenth amendments, as prescribed under Section 18 US Code 242. The argument was strong enough to force the cities to settle.

Cook County State's Attorney Anita Alvarez (twitter.com)
Former Houston Police homicide and narcotic gang investigator Rick Moreno told Drug War Chronicle the officers lied to protect an informant when they could simply have gone by the book and done their bust right.

"Once those officers had all the information about this guy having dope in his car they needed a warrant," Moreno explained.

But the narcs plotted a scheme disguised as a routine traffic stop to avoid having to obtain one.

"What they've done in this case was a 'wall off' technique." Moreno said, referring to a strategy most narcotic officers use to put a wall between the officer and the information provided by a snitch. And if everything goes as planned, the officer gets the dope without a warrant, they got the dope dealer and the snitch is protected."

"The biggest casualty in the war on drugs is the truth," said Chicago civil attorney Jon Loevy, who represented Sperling in his civil rights lawsuit.

"The ends justify the means," said criminal defense attorney Goldman, explaining the attitudes that drove the cops to lie on the stand. "So because they get the bad guy off the street or the drugs out of their hands, everybody's happy."

Well, not everybody, not when the lies are so blatant they cannot be ignored. The Cook County criminal justice system wasn't done with the cops caught lying on the witness stand. Sgt. Urbanowski's camera had caught them red-handed, and four of them were indicted by a Cook County grand jury on perjury, obstruction of justice, and official misconduct charges in June 2015. They all face up to five years in prison on each count. The three Chicago police officers were immediately suspended, and the Glenview police officer was later fired. Their trials got underway this week.

"The foundation of our criminal justice system rests on the concept of truthful testimony," said Cook County States' Attorney Anita Alvarez in a press statement announcing the indictments. "We expect it from our witnesses and we demand it from our police officers."

The criminal charges filed against the officers made headlines across the state and constituted another black mark against the much criticized Chicago Police Department. But the buzz around the courthouse was not just over the charges, but whether they would lead to the dismissal of other drug cases in which the charged cops were involved.

Calls to the Cook County prosecutor's office regarding whether the four indicted officers would be investigated for perjury or illegal tactics in previous drug cases have not been returned.

While Sperling won $195,000 in damages from his illegal search and seizure lawsuit, legal experts say such victories are rare. Defendants usually don't pursue such suits due to lack of funds, and if a case involving a bad search is dismissed, most defendants are just relieved the case is over and they no longer face charges, said Penn State University law professor David Rudovsky, a leading civil rights and criminal defense attorney and author of The Law of Arrest, Search, and Seizure.

Penn State law professor David Rudovsky (law.penn.edu)
Rudovsky told Drug War Chronicle there is also another reason such lawsuits are rare.

"Why would a jury award money for damages to a criminal already proven to have committed a crime?" he asked rhetorically.

Police perjury is nothing new -- the practice has even generated its own nickname, "testilying" -- but the Sperling case has renewed debate over why law enforcers resort to breaking the law.

"Police perjury in court to justify illegal dope searches is commonplace," wrote former San Francisco police commissioner Peter Keane in a much-cited article on the topic.

"I've heard some police officers say in a social setting, 'If [the defendant] is going to lie to beat the case, why can't I lie too?" Cook County Public Defender, and former prosecutor Abishi Cunningham Jr. related.

"When police lie to make a case on someone they are saying the criminal justice system doesn't work... so I'm going to do it my way," Houston civil and criminal attorney Annie Briscoe told the Chronicle.

Briscoe recalled a drug case involving police illegal search where police recovered a sizeable amount of drugs from a client of hers. Houston police claimed he resembled a fugitive they were looking for. With her client facing up to life in prison, Briscoe convinced the trial judge to throw out the charge because of illegal search and seizure through the simple expedient of showing the judge a photo of the fugitive, who looked nothing like her client.

While the judge called Briscoe's client "one lucky guy," Briscoe had a slightly different take.

"The law should be enforceable by way of truth," she said.

Police are also incentivized by the war on drugs to cut corners so they can reap monetary rewards, whether through asset forfeiture or by earning federal anti-drug grants through aggressive enforcement actions. And each bust makes their numbers look better.

As NYPD Officer Adil Polanco once revealed through a surfeit of honesty, "Our primary job is not to assist anybody, our primary job is to get those numbers and come back with them. You have to write somebody, arrest somebody, even if the crime is not committed, the number is there."

Yes, there are numerous reasons cops lie. But none of them justify the lying, or the corrosive effect such behavior has on public trust and respect for law enforcement. These Chicago police officers are about to find out just how seriously the system takes such dishonesty, especially when it is so blatant the system can't pretend it doesn't see it.

Chicago, IL
United States

Beyond UNGASS: Looking Toward 2019 [FEATURE]

The United Nations General Assembly Special Session (UNGASS) on Drugs is set for UN Headquarters in Manhattan next week, and civil society and some European and Latin American countries are hoping to make limited progress in moving toward more evidence- and public health-based drug policies. But, knowing the glacial pace of change at the UN and well aware of how little of substance is likely to emerge from the UNGASS, some eyes are already turning to the post-UNGASS international arena.

UNGASS is coming... and then what? (Creative Commons)
Hopes for more forward movement at the UNGASS, always tentative and facing opposition from global drug war hardliners such as Russia, China, and Singapore, were effectively dashed at the run-up meeting of the Commission on Narcotic Drugs (CND) meeting last month in Vienna, whose outcome document was described as "quite awful" by leading Canadian drug policy expert Donald MacPherson.

The outcomes document includes some minor progressive movement, but does not challenge the trio of treaties that form the legal backbone of global drug prohibition, while its embrace of "flexibility" emboldens regressive, repressive measures (the death penalty for drug offenses, forced "treatment," criminalization of drug users) in hard line countries, despite being helpful for progressive reforms around the edges of the treaties' prohibition.

MacPherson was one of a handful of international drug policy experts and elected officials who took part in a teleconference last week organized by StoptheDrugWar.org (publisher of this newsletter), a US-based group that has been deeply involved in civil society organizing around the UNGASS. He wasn't the only one looking beyond 2016.

Mexican Senator Laura Angelica Rojas Hernández, chair of the Senate Committee on Foreign Affairs and International Organizations, called this year's UNGASS poses "a step" toward examining the objectives of the 2009 Political Declaration and Action Plan on drugs, which will be reviewed in 2019. While the CND outcomes document had good language around the need for embracing multiple approaches, such as public health, human rights, gender, and prevention, it also includes serious shortcomings, she said.

Mexican Senator Laura Angelica Rojas Hernandez (pan.senado.gob.mx)
"There is a lack of recognition of the relative efficacy of demand reduction and harm reduction policies and the absence of an acknowledgement of the high costs that the prohibitionist and punitive approaches have generated," the senator said.

Mexican senators know all too well the high costs of drug prohibition. For the past decade, the country has been battered by brutal prohibition-related violence that has left at least 100,000 dead, tens of thousands more "disappeared," a legacy of human rights abuses by soldiers and police fighting the cartels, and the legitimacy of the state severely weakened.

"The international community should continue to work toward the establishment of indicators that could help measure the impact of drug policies on people's lives and their rights," Rojas said, suggesting this could still happen at the UNGASS.

But she was also looking down the road.

"Something that should be placed on the table in 2019 is a thorough review of the three conventions on drug control that acknowledges the highly detrimental effects of the current approaches," she said. "And we should be more honest about the so-called flexibility of implementation offered by these treaties and acknowledge that there should be a wider range of action for countries to define their own drug policies, taking into consideration their national and cultural context."

Canadian drug policy expert Donald MacPherson (cssdp.org)
Both Rojas and Canada's MacPherson called for some sort of expert mechanism to guide policymakers eyeing the 2019 meeting.

"Organizations and even some governments are beginning to call for a mechanism post-UNGASS to get real with the modernizing of the treaties," MacPherson said, reflecting frustration with the UNGASS process and prospects. "It's really important that UN member states speak strongly for the need for that mechanism, whether it's an expert committee or some other sort of group. And it needs to happen now -- the next three years are critical coming up to 2019. We really do need to have that process in place to [counter] the kind of intransigence of other countries that use the consensus-based model to hold progress ransom."

"The international community should examine the possibility of establishing an analysis mechanism as a working group of experts, for example, with a mandate to formulate recommendations aimed at the modernization of the international system of drugs for the 2019 review process," Rojas added. "And from a longer-term perspective, we need to see the creation of a special office within the UN Human Rights Council, to follow up and monitor the respect of human rights in the context of the enforcement of the drug policies."

The UNGASS hasn't even gotten here yet, and interested observers are already looking past it. Welcome to politics at the United Nations where most things happen at a snail's pace. The global drug prohibition consensus may be crumbling, but it is crumbling very slowly at the level of international conventions and institutions. The work continues.

[A follow-up story on prospects for marijuana legalization in Canada and Mexico will highlight remarks during the teleconference by Canadian Member of Parliament Nathaniel Erskine-Smith, Aram Barra of Mexico United Against Crime, and StoptheDrugWar.org executive director David Borden.]

Highway Drug Dog Searches: Two Diverging Trends in the Case Law [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

Last year, in one of the Roberts' court's rare decisions not siding with law enforcement, the US Supreme Court ruled that police could not detain people pulled over for traffic violations in order to await the arrival of a drug-sniffing police dog. Once the traffic violation was dealt with, motorists were free to go, the court held.

"Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures," wrote Justice Ruth Ginsberg for the court's 6-3 majority in Rodriguez v. United States.

That case was a necessary antidote for police practices that evolved after the Supreme Court's decision in Illinois v. Caballes a decade earlier. In that case, the high court held the use of drug dogs during a traffic stop did not violate Fourth Amendment proscriptions against unwarranted searches and seizures because, in the court's rather involved reasoning, people carrying drugs have no expectation of privacy. Unlike the use of infra-red cameras to peer inside homes, which the court disallowed in an earlier case, the use of drug dogs would only reveal drugs, not other intimate details of one's life, so that was okay.

What came after Caballes was repeated reports of people being stopped for alleged traffic infractions on the highway, then forced to wait on the side of the road in a sort of legal limbo ("Am I under arrest?" "No." "Am I free to go?" "No.") for the arrival of a drug dog to conduct a search of their vehicles. Then, when the drug dog would "alert" to the presence of drugs, police had probable cause to search the vehicle, find the drugs, and arrest and charge the driver.

What also came after Caballes was people being arrested, convicted, and imprisoned for drug offenses after being detained for lengthy periods. Asserting that their rights had been infringed by the lengthy detentions, some of them appealed, arguing that the evidence against them should be suppressed because it was unconstitutionally obtained.

The situation festered until the Rodriguez decision was announced. Police would no longer have a free hand to hold people against their will while awaiting the drug dog's arrival. That should have reined in the cops, but it hasn't exactly worked out that way. Instead, two distinct lines of post-Rodriguez drug dog jurisprudence have emerged, one seeking to uphold and strengthen it, but the seeking to find work-arounds for drug-hunting police and their canine helpers.

Representative of Rodriguez's positive impact was last month's Kentucky Supreme Court decision in Davis v. Kentucky. In that case, an officer pulled over Thomas J. Davis for crossing the center line, administered field sobriety tests that Davis passed, then asked for Davis's consent to search the vehicle. Davis refused to consent to a vehicle search, at which point the officer had his drug dog sniff the exterior of the car, despite Davis's protests. The dog alerted, the car was searched, and police found methamphetamine and drug paraphernalia.

At trial, Davis moved to have the evidence suppressed as fruits of an unlawful search, but he lost at the trial level and reached an agreement to plead guilty while preserving his right to appeal the ruling on the motion. He was sentenced to 20 years in prison. The Kentucky Supreme Court reversed the conviction and sent the case back to the trial court.

"As recently clarified by the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), a police officer may not extend a traffic stop beyond its original purpose for the sole purpose of conducting a sniff search -- not even for a de minimus period of time," the state high court concluded. "Under Rodriguez, any nonconsensual extension of the detention beyond the time taken to verify Appellant's sobriety, unless accompanied by additional grounds to believe other criminal activity was afoot, was unconstitutional… With no articulable suspicion to authorize an extended detention to search for drugs, [the officer] prolonged the seizure and conducted the search in violation of Rodriguez and Appellant's Fourth Amendment protections."

"While Davis isn't perfectly clear, it strongly suggests that the use of drug dog without reasonable suspicion a crime has been committed offends the reasonableness clause of the Fourth Amendment, said John Wesley Hall, a Little Rock criminal defense attorney, former head of the National Association of Criminal Defense Attorneys (NACDL), and author of Search and Seizure, 5th Ed.

Keith Stroup, the founder and currently counsel for the National Organization for the Reform of Marijuana Laws (NORML), liked what he saw in Davis, too.

"This is a great decision," Stroup said. "It will help a lot of drivers, but it doesn't totally write drug dogs out. With no articulable suspicion to authorize an extended detention to search for drugs, the police are out of luck."

Police erred in this case, Stroup said, but not in the sense that the court meant.

"The mistake the cops made is that they didn't lie and claim they smelled marijuana," he said. "They will learn very quickly that the first thing to say is 'I smell marijuana.' Then they can at least do a search of the passenger compartment."

Still, Stroup pronounced himself pleasantly surprised at the ruling.

"In some states, the Supreme Court is very law enforcement-oriented and willing to give police the benefit of the doubt. That this came out of Kentucky is promising," he said.

The Kentucky case shows how the courts are applying Rodriguez to protect the rights of motorists, but other post-Rodriguez cases are heading in a different direction. As Hall notes on his Fourth Amendment blog linked to above, various US district and appellate courts are bending over backwards to find ways to allow drug dog searches to continue without any reasonable suspicion a crime is being committed.

"Dog sniff by second officer while first officer wrote ticket didn't extend stop," he wrote describing a case> out of the 7th US Circuit Court of Appeals.

"Dog sniff during the normal computer checks are valid," is how he characterized another case in federal district court in Georgia.

"GA holds that a dog sniff of a car before dispatch confirms ID is valid because it didn't extend the traffic stop," he wrote about another Georgia case.

The upshot of these and similar cases is that they provide an opening for police to get their drug dog searches in simply by delaying what should be routine, quickly accomplished, procedures, such as verifying license, registration, and outstanding criminal warrants. "I severely disagree with that case law," said Hall. "It just offends every sense of justice and privacy. It makes a car a target without any reasonable suspicion whatsoever, and it essentially rewards the cop with the drug dog in his car."

And he scoffs at the reported delays in those routine procedures. "The cops deliberately delay the response," he said. "As fast as these computers are, if it takes more than 60 seconds, it's complete bullshit. Or they call in the drivers' license number and it takes forever for the call to come back, so the cop can sit there and chat with you and try to find excuses to come up with reasonable suspicion.

Clearly, Rodriguez hasn't settled the issue. While law enforcement is now somewhat constrained in the use of drug-sniffing dogs on the highway, police -- and friendly courts -- are working assiduously to find ways to continue to use them. Ironically, the current state of the law could result in not fewer but more drug dogs on the highway, because under some of these rulings, the police officer who has a dog with him can get away with a quick sniff, while the officer who has to call and wait for one to arrive would be out of luck.

And that means the litigation likely isn't over. "The Supreme Court is going to have to take this up one of these days," said Hall. "This whole idea of pulling people over with dogs smacks of Nazi Germany."

New England 2016 is a Marijuana Legalization Hotbed [FEATURE]

This article was produced in collaboration with AlterNet and first appeared here.

No state east of the Mississippi has legalized marijuana, but that's very likely to change this year, and New England will be leading the way. Two of the six New England states will likely let the voters make the call in November, while the others all have legalization bills pending.

New England pastoral (wikimedia.org)
So far, with the exception of Washington, DC, where voters elected to legalize the possession and cultivation, but not the sale of marijuana in 2014, all of the legalization action has been in the West. The four states that have legalized it so far -- Alaska, Colorado, Oregon, and Washington -- are all Western states.

More Western states will likely legalize it this year, including the nation's most populous, California, as well as Arizona and Nevada. The Nevada Regulation and Taxation of Marijuana Act has already qualified for the November ballot, while the Arizona campaign behind that's state's Regulation and Taxation of Marijuana Act is well-advanced in signature gathering and appears poised to easily qualify for the ballot as well.

Meanwhile, California's Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) is late out of the gate, but well-financed and broadly supported. It, too, should be on the ballot in November.

Another possible legalization state this year is Michigan, where the campaign behind the Michigan Marihuana Legalization, Regulation and Economic Stimulus Act just last week announced that it has 240,000 raw signatures and is aiming for 300,000 by March 15. But it needs 252,000 valid voter signatures to qualify, and with the rule of thumb for petition campaigns being that between 20% and 30% of raw signatures are likely to be invalidated, whether the Michigan initiative will qualify remains to be seen.

But it's Yankee country that will see the most concentrated regional push toward marijuana legalization this year. Initiatives that make the ballot will go before New England populations that are showing majority support for legalization this year, and, while progress toward legalization though the legislative process can be achingly difficult, the region also appears poised to produce the first state to free the weed through the legislature, not the popular vote.

Here's the rundown on New England legalization efforts this year. Chances are good that legalization will happen in two of them -- the initiative states -- and possibly in one or more of the other states:

Connecticut. Earlier this month, Rep. Juan Candelaria (D-New Haven) introduced House Bill 5209, which would allow adults to use, grow, and sell marijuana. Candelaria introduced a similar bill last year that went nowhere. "I'm going to be pushing very hard," Candelaria said. "I'm going to be engaging my leadership in conversation to at least allow a public hearing." Gov. Dannel Malloy (D) said the same day he could only support medical marijuana. "That's as far as I'm comfortable going," the governor said.

Maine. The legalization initiative from the Campaign to Regulate Marijuana Like Alcohol has not yet officially qualified for the ballot, but is poised to. On February 1, the campaign turned in more than 103,000 raw signatures from its petition drive. It only needs 61,000 valid voter signatures to qualify for the November ballot, and should have a sufficient cushion to do so. The most recent of Mainers' attitudes toward marijuana legalization, from the spring of 2015, had support at 65%.

Massachusetts. The legalization initiative from the Campaign to Regulate Marijuana Like Alcohol has already qualified for the ballot, but under Massachusetts law, the legislature must first take up the issue. If, as expected, it fails to adopt legalization, the campaign must then collect another 10,000 signatures to place the initiative on the November ballot. It should be able to do that easily, and if it gets on the ballot, it should win, although perhaps not as handily as Maine. There are no hot-off-the-press polls, but a 2014 poll had support at 53% and a Boston Globe poll from last year had a dead heat, with 48% in favor, 47% opposed. Numbers this tight means it's not a done deal, but given expected high voter turnout this election year, the Bay State should be able to pull it off.

Fall in New Hampshire (wikimedia.org)
New Hampshire. The House actually passed a legalization bill in 2014, only to see it die in the Senate. This year, there are already three legalization bills filed, but two of them have already been deemed "inexpedient to legislate" in committee. The remaining legalization bill, House Bill 1610, is currently before the House Criminal Justice and Public Safety Committee. Even if the bill were to pass the House, it faces a tough battle in the Senate. In addition to killing legalization in 2014, the Senate has at least twice killed decriminalization bills that passed the House.

Rhode Island. Rep. Scott Slater (D-Providence) said he will file a marijuana legalization bill in the General Assembly last week, and Sen. Joshua Miller (D-Cranston) will file companion legislation in the Senate. As of Saturday, the bills have not yet been posted on the legislative website, but they are definitely coming. This marks the fifth consecutive year legalization bills have been filed in Providence, and they have previously been stifled, but there are signs progress could be made this year. The Senate bill has 17 cosponsors (out of 38 senators), and the House bill has more than 30 cosponsors. Republican House Leader Brian Newberry (R-North Smithfield) supports it, and House Speaker Nick Mattiello (D-Cranston), who has long opposed legalization, is now becoming "more open-minded" as eyes tax revenues from pot in the already legal states.

Vermont. The Green Mountain State is the most likely to actually pass a legalization bill this year. Senate Bill 241, backed by Gov. Peter Shumlin (D), has already passed the Senate Judiciary and Finance committees and is moving toward a Senate floor vote. But the committees have amended the bill to kill home cultivation and to reduce the legalized amount from an ounce to a half ounce. And if and when the bill gets out of the Senate, it still faces a tough battle in the House.

This could well be the year New England goes green. Winning in three states -- Maine, Massachusetts, and Vermont -- would be a big victory; winning in more would be a very pleasant surprise. Not winning in any of them would be a huge setback for the marijuana reform movement, but at this point, that looks extremely unlikely.

A Maryland Lawmaker's Paradigm-Shifting Approach to the Heroin and Pain Pill Crisis [FEATURE]

With nearly 47,000 Americans dying of drug overdoses in 2014 -- more than from gunshots or car crashes -- the problem of heroin and prescription opioid (pain pill) addiction is getting well-deserved attention. From community town halls to state capitals, as well as in Congress and on the rival presidential campaigns, the crisis is spawning demands for solutions.

http://stopthedrugwar.org/files/dan-morhaim-180px.jpg
Dan Morhaim
The response, in general, has been more sympathetic than to earlier waves of hard drug use, such as heroin in the 1960s or crack cocaine in the 1980s, which brought down the harsh drug war policies of Nixon and Reagan. Now, there are more calls for drug treatment than for further law enforcement crackdowns, police departments are carrying overdose reversal drugs, and public health agencies are taking on a more prominent role.

But addicts continue to be arrested, with all the deleterious consequences that entails, and, when it comes to policy, the problem of addiction remains largely in the realm of criminal justice. Harm reduction practices proven in other parts of the world improve both the lives of drug users and those of the communities they live in continue to be shunted aside in the US.

That could change in at least one state. Veteran Maryland Delegate Dan Morhaim (D-Baltimore County) has just introduced a paradigm-shifting package of bills that would begin to move the state's posture toward drug use from prohibition to public health and harm reduction. Morhaim, a practicing physician with three decades of frontline hospital ERs, brings to his approach a vision formed by that experience.

If enacted, Morhaim's package would mark a radical, but commonsensical, humane, and scientifically-supported shift in Maryland's drug policies. Here's what it includes:

  • Emergency Room Treatment on Demand. House Bill 908 provides treatment on demand in emergency rooms and hospital settings. The bill requires acute care hospitals to have a counselor available or on-call at all times and specified arrangements for transferring patients to appropriate treatment settings. Addicted patients make up a large percentage of uninsured visits to ERs, making them an ideal place for initial therapeutic contact.
  • Safe Consumption Sites. House Bill 1212 allows individuals to use drugs in approved facilities while supervised by trained staff who also provide sterile equipment, monitor the person for overdose and offer treatment referrals. Similar on-going programs in Australia, Canada, and several European countries have eliminated overdose deaths, reduced the spread of disease, and provided points of accessto the most hard-to-reach drug users.
  • Drug Decriminalization. House Bill 1219 decriminalizes the possession and use of small quantities of drugs: one gram of meth or heroin, two grams of cocaine, 10 hits of MDMA, 150 micrograms of LSD. The object is to keep otherwise non-criminal drug users out of the criminal justice system, saving resources and avoiding saddling more residents with criminal records.
  • Heroin Maintenance. House Bill 1267 allows a four-year pilot study of "poly-morphone assisted treatment" with pharmaceutical grade opioids, including heroin, to treat under medical supervision a small number of hardcore users who have proven resistant to other forms of treatment. Ongoing heroin maintenance programs in several European countries have been shown to reduce illegal drug use, decrease crime, reduce the black market for heroin, and lead to less chaotic lives for their participants.

The package didn't exactly come out of nowhere. Morhaim's experiences in the ER, where he dealt not only with direct consequences of drug use -- overdoses, infections -- but also direct consequences of drug prohibition -- old women injured in muggings for black market drug money, the toll of dead and wounded in black market drug turf battles -- colored his approach.

"I'm a physician, not a prosecuting attorney," Morhaim told the Chronicle. "I come at this from a public health perspective. We talk about 'surges' to fight this and that, but what we haven't had in this country is a surge in the public health approach, real, substantive public health. This is different, and some will see it as controversial, but I'm comfortable with that. This is something that's really corroding the heart and soul of our society."

He wasn't alone.

"I've had a lot of conversations, and my district has generally been very supportive of these kind of innovative things. No negative feedback. There's a broad consensus that the war on drugs is a failure," Morhaim said. "People are really cognizant of that. And I'm an Emergency Room physician at a Level II trauma center, I've also done healthcare for the homeless. I've been on the front lines, seen the carnage, the death, the violence, and the way this affects the families, and I'm speaking from true experience, and people respect that."

Not only did Morhaim have support in his community, he had support from a strong group of advocates and experts.

"As things were coming to a head, Delegate Morhaim reached out to us at the Drug Policy Alliance (DPA)," said DPA staff attorney Lindsay LaSalle, who was involved in developing the proposals. "He said he felt like he could offer progressive solutions to the crisis and he wanted our subject matter expertise to help develop those proposals."

DPA, Law Enforcement Against Prohibition (LEAP), whose executive director, Neill Franklin, is a former Baltimore police officer, and the Open Society Foundations joined with academics, lawyers, doctors, and harm reductionists to develop and refine the policy proposals that became the bill package. Local institutions of higher learning, including the University of Maryland, the University of Baltimore, and Johns Hopkins University, had academics involved in the effort as well.

Passing the bills won't be easy, and it's not likely to happen this year, but Morhaim and his supporters are playing to win in the not-too-distant future.

"Dan is currently on the second year of a four year term," LaSalle said. "These bills were introduced strategically this term with the understanding that it would be a year of educating colleagues and generating positive media coverage. This is always a long game; we don't expect passage this year, but we hope to gain traction on one or more of these in the next two or three years."

"I've been in the legislature a long time, and I've learned you just have to be persistent, you listen and address concerns, maybe you accept an amendment to a bill," Morhaim said.

He pointed to the successful effort to get medical marijuana through the legislature.

"On that, people had suggestions, and we said let's fix it in the bill," he recalled. "Law enforcement didn't oppose it because I sat down and worked with them."

He also recalled legislative battles he had fought -- and won -- around smoking in restaurants and the use of safety seats for children.

"Banning smoking in restaurants seemed impossible in 1995, but now it's commonplace," he said. "The same with kids safety seats. Both of those were hard-fought on the political level, but when we talk to people, we can convince them. These things take time, but when you recognize what's not working, then you can explore what is. People are looking for answers."

Although Morhaim's package of bills is the most comprehensive, explicit harm reduction interventions are being considered in other places, too. California will see a safe consumption site bill introduced next week, and activists and officials in a number of cities, including New York City, San Francisco, and Seattle are laying the groundwork for such facilities at the local level.

"We're getting traction on these issues," said LaSalle. "Nevada was the first state with a heroin-assisted treatment bill, and while it didn't get out of committee, we had robust hearings, with international experts. And that California bill will be moving forward this session. Drug treatment and harm reduction don't always go hand in hand, but in this case the treatment community is cosponsoring or officially supporting safe consumption sites."

Meanwhile, some states are moving in the opposite direction. In Maine, the administration of Tea Party Gov. Paul Le Page (R) is seeking to reverse a law passed last year that defelonized drug possession. (The rambunctious Republican has also called for guillotining drug dealers, blamed black drug dealers for impregnating white Maine girls, and called for vigilantes to shoot drug dealers.) And next door in New Hampshire, the attorney general wants to start charging heroin suppliers with murder in the event of fatal overdoses. Prosecutors in other states have also dusted off long-unused statutes to bring murder or manslaughter charges.

"We need to ask those people why they're doubling down on a failed policy," said LaSalle. "Why would this work now when it's just more of the same that's been in place for four decades, and now we have use and overdoses and Hep C increasing."

"I understand the impulse to 'Do Something!' in response, and because criminalization has been our go-to response, it seems logical that increasing penalties or prosecutions is a way to solve the problem, but we know, we have shown, that it is not. It's frustrating."

It can be worse than frustrating, too, LaSalle noted.

"Using murder charges as a whipping stick in the case of overdoses is really counterproductive," she said. "If the goal is to reduce overdoses, this is going to reduce the likelihood of anyone calling 911. Maybe they shared their stash, and if they could face murder charges, they now have a serious disincentive to call."

Clearly, the war on drugs is not over. But after half a century of relying predominantly on the forces of repression to deal with drug use, a new vision, both smarter and more humane, is emerging. Now comes the political fight to enact it.

Annapolis, MD
United States

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