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The Push is On for PTSD and Medical Marijuana [FEATURE]

Access to medical marijuana continues to expand as more and more states embrace the healing power of the herb. At the same time, hundreds of thousands of veterans of America's decade of wars are returning home burdened with Post Traumatic Stress Disorder (PTSD), a condition as old as war itself, but that in years past went either unrecognized or was seen as a soldier's personal failure, his "shell shock" or "battle fatigue." Could medical marijuana help?

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Scott Murphy Iraq deployment photo
Scott Murphy of Newton, Massachusetts, is an Iraq combat veteran who uses medical marijuana for chronic pain. "I use medical cannabis for chronic pain from a motorcycle accident that was aggravated by my military service," Murphy said. "I had a severe accident when I was 18, I have a rod in my femur and four plates in my hip. The pain is to the point where it is affecting my walk."

But Murphy also wants to ensure that his state's new medical marijuana law provides for access to the plant for PTSD. A man Murphy described as his "best friend," a fellow veteran, committed suicide at age 22 after being kicked out of the Army for misconduct related to his mental issues rather than being given a medical discharge as promised.

"He had been showing signs of PTSD," Murphy recalled. "He was a good soldier, but when he got back from his second deployment he was having problems. When they kicked him out of the Army, he went home and killed himself."

Amid increasing evidence that medical marijuana can have a beneficial impact in helping people cope with PTSD, the push is on to expand access to the healing herb. Murphy spent Monday morning testifying at a public hearing on draft regulations for the Massachusetts medical marijuana program. Although voters voted for the initiative that listed specific qualifying conditions -- not including PTSD -- as well as "and other" conditions, state regulators are considering changing that to "and other debilitating" conditions, a change that Murphy and others fear could limit access to medical marijuana for PTSD patients.

In some medical marijuana states, adding PTSD requires going through a medical marijuana regulatory commission; in others, it is being pushed through the legislature. In Oregon, for example, Senate Bill 281, which would add PTSD to the list of treatable conditions, was approved by the state Senate last Thursday, and now moves to the House. In Michigan, by contrast, hearings on PTSD and medical marijuana were held recently by Michigan's Advisory Committee on Medical Marijuana (ACMM).

State legislatures are proving to be an easier path than unelected medical marijuana overseers, said activists. "There have been a number of states that have tried to petition to get it added to the list that have so far failed," said Kris Hermes, media liaison for Americans for Safe Access.

Air Force veteran Michael Krawitz of Veterans for Medical Cannabis Access (VCMA) and a plaintiff in Americans for Safe Access v. Drug Enforcement Agency, a case which seeks to see marijuana moved out of the Controlled Substance Act's Schedule I, agreed. "That Oregon effort is moving in the legislature because the state oversight panel was so intractable," said Krawitz, who was deeply involved in the effort there. "Any time we've had to go through the process provided by the state to address expanding access to medical marijuana, we've had trouble. Michigan is another example. There, there was a petition to add PTSD, but there was no actual process to do so. They were essentially keeping the process from moving forward until [vaunted Michigan marijuana attorney] Matt Abel sued them. Now, we have hearings before the advisory committee."

The need to do something for veterans is a major impetus behind the push, but PTSD effects lots of people who aren't veterans as well. "It isn't just veterans who suffer from PTSD," Krawitz said. "At that hearing, there were many veterans, but also other people who had suffered trauma -- child abuse survivors, rape survivors, emergency response workers."

Michael Krawitz testifying in support of Oregon bill
Still, veterans mustering out after more than a decade of US wars in Iraq and Afghanistan are coming home with PTSD in record numbers. A 2004 study in the New England Journal of Medicine estimated that 18% of returning Iraq combat veterans had PTSD. And a 2008 RAND Corporation report estimated that up to 225,000 veterans will return from the wars with PTSD.

The trauma of war is reflected not only in the number of vets suffering from PTSD, but even more ominously, in sky-high suicide rates. US military veterans are committing suicide at a rate of 22 per day, up 20% from just five years ago. And according to a Veterans Administration study released in February, that number almost certainly undercounts the number of veteran suicides because of data limitations.

The military and public health workers are keenly aware of the problem, and are attempting to address it through means both conventional and unconventional. The military and the Veterans Administration have been open to therapeutic interventions including yoga, meditation, and the use of companion dogs; they have also armed themselves with the arsenal of psychotherapeutic drugs -- anti-depressants, anti-psychotics, tranquilizers -- available in the standard pharmacopeia. But those drugs can have some nasty side effects, and their utility in treating PTSD is questionable; noting reports of negative consequences, the Army has warned against over reliance on them.

In the search for succor, more and more vets and other victims of PTSD are turning to medical marijuana. But there is a problem. Not only do a majority of states not recognize medical marijuana, even in those states that do, many of them do not allow its use for PTSD. Despite mounting evidence that medical marijuana can help with PTSD, only a handful of medical marijuana states have approved its used. According to Americans for Safe Access, only California, Connecticut, Delaware, New Mexico and Massachusetts would allow for its use for PTSD, and as we have seen above, it's still up in the air in the Bay State.

"As we find more and more people, especially veterans, benefiting from its use, we see the unfortunate absence of availability for patients across the country," said ASA's Hermes, "It's only approved in five states; that means well below half the medical marijuana states recognize the need for patients to use it for PTSD."

Americans for Safe Access supports expanded access to medical marijuana for PTSD, according to Hermes. "We wholeheartedly support the efforts to petition where patients can do so to get PTSD added to the list of conditions, and we're also pushing for recognition inside the Veterans Administration, but that's an uphill slog," he said.

And it isn't only PTSD treatment that's at stake for veterans. "I'm not only pushing for chronic pain and PTSD, but other stress-related combat issues, and that language is one of the things I asked [the Massachusetts Department of Public Health] to clarify today," Murphy said in an interview following the hearing. "Does their definition of 'debilitating' include PTSD? If they're going to use a broad definition of 'debilitating' so that it covers the full spectrum of vets' injuries, that would be one thing. But it's unclear if PTSD or other mental conditions will be covered. I think we should leave the wording with "and other" -- that's what the voters voted on. I don't think we should have to wait until someone's PTSD is so bad it's life-limiting to be able to get access."

Massachusetts regulators were supposed to have their draft regulations ready by May 5, but in the wake of the Boston bombings, that is now up in the air.

Part of the problem with winning acceptance of using medical marijuana for treatment of PTSD is the relative paucity of clinical studies on its safety and efficacy. When the state of Arizona considered adding PTSD to its list of qualifying conditions, researchers hired by the Department of Human Services found very little of use in their review of the literature.

But studies do exist. Krawitz and Veterans for Medical Cannabis Access compiled an impressive set of studies suggesting marijuana is safe and effective in treating PTSD and anxiety for Michigan regulators. (They are downloadable as submitted at the following links: Packet 1, part 1 of 3, Packet 1, part 2 of 3, Packet 1, part 3 of 3, Packet 2, Packet 3). That same packet also went out to New Mexico, where an effort to remove PTSD from the list of treatable ailments was foiled, and to Oregon, where the PTSD bill moved forward this week.

"While we don't have a lot of studies titled 'PTSD Response to Cannabis Therapy,' we do have a preponderance of evidence that shows cannabis works in various ways, including for symptoms of PTSD," said Krawitz.

Scott Murphy at 2013 press conference (courtesy ASA via YouTube)
One important reason the hard science officials would like to see on the efficacy and safety of marijuana for PTSD is federal government obstructionism. The Multidisciplinary Association for Psychedelic Studies (MAPS), for instance, has been attempting for years to win approval for its study of PTSD and medical marijuana. But it's still waiting and still patiently trying to satisfy the endless niggling of the National Institute on Drug Abuse and the Department of Health and Human Services. The DEA and the courts haven't helped either -- the agency in 2011 denied a request by UMass scientist Dr. Lyle Craker to grow marijuana for research purposes, disregarding its own administrative law judge's recommendation to approve it, and a court last week sided with DEA.

Nevertheless, anecdotal evidence on marijuana treatment for PTSD is helping to move the issue forward. The site ProCon.org, which features a major section devoted to medical marijuana, has posted several readers' comments on the subject:

"I had severe reservations about 'smoking pot.' It is illegal and I am a health care professional," one anonymous commenter wrote. "Still, I wanted to feel better, to be myself again, and to be the person I was before the PTSD. I smoked the pot. Immediately I felt relaxed and calm. I smiled and laughed. I finally felt at peace for the first time in two years. I slept my first night in three years without the sleep medication. The next day I felt refreshed and renewed. I had hope again. My son told me that he was so happy to see the old me again."
 

"I was shot thru the right sub and supra orbital sections of the right side of my head exiting over my right ear. They rebuilt 1/4 of my skull," wrote another commenter. "Epilepsy, PTSD, and other issues such as severe anxiety, constant pain and depression... I am still alive because I smoke [marijuana] every day. Empirical evidence has proven to me that failure to utilize generally causes a seizure and at minimum I get really aggressive... I will not live on narcotics. Ibuprofen or aspirin all have side effects worse than any temporary pain. Replacement liver from the damage of man-made drugs? No thanks."

In the meanwhile, veterans and others continue to suffer from PTSD and continue to use marijuana for relief. In states that do not have medical marijuana laws, that makes them criminals. In states that do have medical marijuana laws, but don't allow it to be used for PTSD, they are criminals, too -- unless they hide what they're actually using it for.

"These state medical marijuana control boards are willing to allow vets to have it for pain, but not PTSD, so in states like Arizona, vets suffering from PTSD are using a pain diagnosis to be legal under state law, and that's problematic. We're trying to get people suffering from PTSD to actually come in and get help, and it's difficult because there's a lot of stigma around it. What are we telling our soldiers when we tell them 'tell the doc you have pain, don't say you have PTSD'"? Krawitz asked. "What are we saying about the validity of their condition?"

That leads to other problems, too Krawitz said.

"When we can't recommend medical marijuana for PTSD, we're pushing people to use chronic pain as a qualifying condition, and that leads to police and prosecutors seeing all those pain recommendations and saying there must be fraud in the system," he said. "There are a lot of patients who would otherwise have had recommendations for PTSD."

PTSD sufferers are not waiting for peer-reviewed, clinically-controlled studies to tell them what works. PTSD is a real and growing problem, and medical marijuana appears to do some good. The scientific studies that would satisfy legislators and state review boards need to be done, and that is happening, albeit too slowly, but in the meanwhile, people are suffering because the government they served at risk to life and limb is now obstructing the research that would legitimize their treatment.

Psychedelic Science Conference Examines MDMA Treatment for PTSD [FEATURE]

At the Multidisciplinary Association for Psychedelic Studies (MAPS) Psychedelic Science 2013 conference in Oakland this weekend there were mind-boggling displays of psychedelic art; tables full of books on LSD, MDMA, peyote, ayahuasca, and other, stranger hallucinogens; weird musical interludes; holotropic breathwork workshops, and indigenous shamans.

Psychedelic art, MAPS 2013
There was also some heavy duty science. Stretching over five days of workshops and conference presentations, the MAPS conference is perhaps the premier confab of psychedelic researchers worldwide. A look at just some of the topics covered in the remarkably broad-ranging affair makes that case.

Researchers from around the country and the world presented findings on three "tracks": clinical ("LSD-Assisted Psychotherapy in the Treatment of Anxiety Secondary to Life Threatening Illness," "The Neurobiology of Psychedelics: Implications for Mood Disorders"), interdisciplinary ("Psilocybin in the Treatment of Smoking Addiction: Psychological Mechanisms and Participant Account," "Ethical Considerations in the Medicinal Use of Psychedelics"), and a special track on the South American hallucinogenic tea, ayahuasca ("Ayahuasca Admixture Plants: An Uninvestigated Folk Pharmacopeia," "Ayahuasca, the Scientific Paradigm, and Shamanic Healing").

One series of research reports of urgent and immediate relevance centered on the use of MDMA ("ecstasy") in the treatment of Post-Traumatic Stress Disorder (PTSD). Although PTSD can be caused by any number of traumas, veterans mustering out after more than a decade of US wars in Iraq and Afghanistan are coming home with PTSD in record numbers. A 2004 study in the New England Journal of Medicine estimated that 18% of returning Iraq combat veterans had PTSD. And a 2008 RAND Corporation report estimated that up to 225,000 veterans will return from the wars with PTSD.

Dr. Michael Mithoefer describes his MDMA PTSD research protocol
The trauma of war is reflected not only in the number of vets suffering from PTSD, but even more ominously, in sky-high suicide rates. US military veterans are committing suicide at a rate of 22 per day, up 20% from just five years ago.

The military and public health workers are keenly aware of the problem, and are attempting to address it through means both conventional and unconventional. The military and the Veterans Administration have been opened to therapeutic interventions including yoga, meditation, and the use of companion dogs; they have also armed themselves with the arsenal of psychotherapeutic drugs -- anti-depressants, anti-psychotics, tranquilizers -- available in the standard pharmacopeia. But those drugs can have some nasty side effects, and their utility in treating PTSD is questionable, and, noting reports of negative consequences, the Army has warned against over reliance on them.

In a Saturday clinical track devoted to MDMA and PTSD, researchers reported on success in Phase II clinical trials (after Phase I studies had proven safety), as well as efforts to get more studies up and running, and the hoops they have to jump through to do so. Canadian researcher Andrew Feldmar perhaps best summed up professional exasperation with the complexities of doing research on drugs governments view with skepticism and suspicion.

"Give me a break!" snorted Feldmar after relating how it took 2 ½ years and three visits from bureaucrats in Ottawa to inspect his pharmacy safe before it was approved before the safe and the study were approved. "This is not science, its politics. Those people from Ottawa were doing what power does -- cover its ass and make people doing what it doesn't want squirm. We are not discovering anything with these studies; we are just proving something we already know. This is all politics."

Indigenous Huichol shaman from Mexico
While Feldmar was at least able to report that his study had been approved, researchers in Australia and England could report no such luck.

 Australian researcher Martin Williams reported that a randomized, double-blind Phase II study there had been stopped in its tracks by a Human Research Ethics Committee.

"The proposal was rejected by the committee with no correspondence," Williams sighed. "We submitted a comprehensive letter of appeal, and it was quickly rejected. Like MAPS in 2000, we're a bit ahead of our time for Australia, where we face war on drugs rhetoric, the psychotherapy community has more a psychopharmacology focus, and we're facing funding and regulatory hurdles."

"For the past eight years, I've been slowly trying to persuade the medical establishment this is worth doing," said British researcher Ben Sessa, who is trying to get a Phase II study off the ground there. "We have lots of war casualties because like the USA, we have a peculiar obsession with imposing democracy around the world."

Peyote-infuenced Huichol art
But his government grant was denied, with regulators saying there was insufficient proof of concept, the trial would be underpowered (because it was small), and the inclusion of patients with recreational drug histories was problematic.

"Those reasons are all rubbish," snorted Sessa, who said he was revising his protocol in hopes of it being accepted. "We went for the Rolls Royce and didn't get it; maybe we'll get the Skoda," he said.

Researchers at the University of Colorado in Boulder have gotten approval for a Phase II study of MDMA with people with chronic, treatment-resistant PTSD, but it wasn't easy. Sometimes the regulatory niggling borders on the absurd, they said.

"We started two years and were waiting on approval from the DEA," said researcher Marcela Ot'alora, who is doing the study with Jim Grigsby. "We thought they read the protocol and would let us know if we were doing something inappropriate, but that wasn't the case. We had to get a 500-pound safe and we put it in the therapists' office, but no, it had to be in the treatment room. Then, we get a second inspection by the DEA, and they said we had to install alarms. We did so, and thought we were good to go. The next day, the DEA and the city zoning department came together. The zoning department said we had to have a half bath instead of a full bath, and no kitchen."

Psychedelic Homer Simpson, MAPS 2013
Ot'alora showed slides of workers obediently demolishing the bath tub, but their travails weren't finished just yet.

"The zoning department said we had to find a place zoned for addiction and recovery, and my office met that criteria, so we moved the safe and alarms for a third time, then had a third DEA inspection," she related. "The local DEA said yes, but it also needed approval from headquarters. We had a congressman write a letter to the DEA to speed up the process, and now we have final approval and are screening our first participants. We hope to enroll the first one by the beginning of May."

That would appear to be a good thing, because other researchers reported that when they actually got studies up and completed, they were seeing good results. Israeli researcher Keren Tzarfatyl and Swiss researcher Peter Oohen both reported promising preliminary results from their studies.

But it was US researchers Michael and Annie Mithoefer who reported the most impressive results. They reported on a 2004 Phase II clinical trial with veterans, firefighters, and police officers. The research subjects were given MDMA (or a placebo) and psychotherapy sessions. MDMA-assisted therapy resulted in "statistically significant" declines in PTSD as measured by standard scales, the Mithoefers reported.

"We're doing Phase II studies, giving the substance to people who are diagnosed with PTSD and measuring the treatment effects. The results continue to be extremely impressive," said Michael Mithoefer. "These tools have so much promise for healing and growth. There are lots of reasons to think these will be useful and promising tools."

Existing treatments for PTSD -- cognitive-behavioral therapies, psychodynamic psychotherapies, pharmacological interventions -- too often just don't work for large numbers of sufferers, Mithoefer said. He cited estimates of 25% to 50% who don't respond favorably to existing treatments.

"We have looming problems with veterans coming back from Iraq and Afghanistan, and most of them are not getting the treatment they need," said Mihoefer. "The Veterans Administration is overwhelmed, but also many vets just don't show up for treatment or stay in it. People with PTSD have a lot of trouble with trust, making it hard to form a therapeutic alliance. They can also either be overwhelmed by emotion and then drop out, or they are in avoidance, emotionally numb, and then the therapy doesn't work. If MDMA can increase trust and decrease fear and defensiveness, maybe it can help overcome these obstacles to successful treatment."

But even so, the research effort is starved for funds.

"This would not be happening if not for these remarkable non-profits supporting research," said Mithoefer, referring to groups like MAPS and the Beckley Foundation, which co-hosted the conference. "The government is not funding this, Big Pharma isn't funding this; the community is funding it. We are trying to build bridges, not be a counterculture, and we hope the government will get involved."

What they've found so far is definitely worth pursuing, Mithoefer said.

"We've established that for this kind of controlled use with well-screened people, there is a favorable risk-benefit ratio and no indication of neurotoxicity," he explained, although a small numbers of participants reported unhappy side effects, such as anxiety (21%), fatigue (16%), nausea (8%), and low mood (2%).

With a follow-up three years later, the Mithoefers found that the benefits of MDMA-assisted therapy remained largely intact.

"For most people, the benefits in terms of PTSD symptoms were maintained," Mithoefer reported. "With people who completed the assessment, 88% showed a sustained benefit, and assuming that those who didn't relapsed, that's still a 74% sustained benefit."

The Midhoefers are now in the midst of another Phase II study and are finding similar results.  They are finding reductions in PTSD symptoms as measured by standard measures. They are also finding lots of interest among PTSD sufferers.

"More than 400 vets have called us from around the country," said Mithoefer. "The need is so great. It's heartbreaking that we can't accommodate them all."

Anna Mithoefer read to the audience some of the responses from their research subjects.

"It's like PTSD changed my brain, and MDMA turned it back," reported a 26-year-old Iraq veteran.

"Being in Iraq was bad, but what was worse was having my body back here and part of my mind still in Iraq," said a 27-year-old who had served as a turret gunner in Iraq. "This helped me come home."

"MDMA helped me in so many ways, it feels like it is gradually rewiring my brain," said a female military sex trauma survivor. "The MDMA sessions were the crack in the ice because the trauma was so solid before that. It was incredibly intense around the MDMA sessions -- a lot like popping a big bubble from the unconscious."

The Phase II studies underway or completed strongly suggest that MDMA is useful in the treatment of PTSD. The Phase II studies trying to win approval around the world could strengthen that case -- if they can overcome the political and regulatory obstacles before them. In the meantime, another 22 veterans are killing themselves each day.

Oakland, CA
United States

Are We Really "Going Dark"? -- The DEA and Apple's iMessage [FEATURE]

special to Drug War Chronicle by veteran investigative crime journalist Clarence Walker, cwalkerinvestigates@gmail.com

When the tech world news web site CNET published excerpts of a leaked DEA memo explaining how, during an investigation, the agency was unable to access the messages of drug dealers using the Apple iMessage system built into a Verizon cell phone, it ignited a media frenzy. "It is impossible to intercept iMessages between two Apple devices," even with a court order approved by a judge, DEA complained.

The DEA's warning, marked "law enforcement sensitive," was the most detailed example yet of the technological obstacles law enforcement faces when attempting to conduct court-authorized surveillance on non-traditional forms of communication. Federal law enforcers have coined the catchy phrase "Going Dark" to illustrate the problem.

News stories and tech blogs nationwide highlighted the effectiveness of Apple's encryption protection from privacy invaders, particularly law enforcement. (See, for example, stories here and here.) Amidst the frenzy, what went little noted was that no one's private messages held by Apple's iMessage or any other cell phone service are actually immune from federal government snooping. Under the Stored Communications Act (SCA), if the DEA wants access to someone's messaging communications, all it has to do is get a warrant to review those messages.

Why most media accounts neglected to mention this basic fact is uncertain, but the failure to do so not only misled readers into believing their iMessage communications were secure from government spying, it also fed into and reinforced a narrative being constructed by federal law enforcement agencies -- that rapid advances in telecommunications technologies are leaving the government in danger of "Going Dark" when it comes to its ability to surveil its citizens, and something needs to be done to fix the "problem."

"Apple iMessage users should be aware that regardless of what they heard last week, their messages can be easily obtained by law enforcement pursuant to a warrant under the Electronic Communication Act [ECPA]," said Alan Butler, an in-house attorney with the Electronic Privacy Information Center (EPIC). "The ECPA provides in Title 111, commonly referred to as the Stored Communication Act, that a government entity may require the disclosure of electronic communications held by a provider electronic storage," Butler told the Chronicle by email. Even though the messages are encrypted by the phone company as they are sent by iMessage, Apple can decrypt messages and hand them over to law enforcement with a warrant!"

"Nothing about the DEA memo says anything about trying to crack iMessage," Cato Institute analyst Julian Sanchez told the Chronicle in an email. "All it really says is that an ordinary wiretap on a cellphone's text messages isn't going to pick up iMessages, which is a no brainer because iMessages go over the Internet and not over a cell carrier."

The case that inspired the DEA memo centers around a drug investigation in Texas back in February where it was unable to intercept iMessages even though a federal judge had issued a court order approving the DEA's interception of the suspects' discussions about drug deals. Although the Federal Wiretap Act allows real-time surveillance of a device or computer, the DEA discovered in the February case that most records obtained from Verizon -- the carrier of the suspect's device -- were incomplete.

Cell phone surveillance is a key tool for law enforcement in monitoring criminal activity. The New York Times reported last June that federal, state, and local officials nationwide had requested assorted cell phone data 1.3 million times in the previous year. But  iMessages can be sent through iPhones, iPads, and even Macs running the OS platform with the capability to bypass the text messaging services of a cell phone carrier. Apple revealed in January that it sees over 2 billion messages sent each day from a half-billion iOS and Mac devices that uses the iMessage to keep private conversations and text messages secure from snooping.

When iMessage was launched in 2011, company executives boasted about its "secure end-to-end" encryption, and some critics say the leaking of the DEA memo is a clever scheme by the feds to help convince lawmakers to mandate that all communication systems, including social media and internet messaging systems have a back-door mechanism to allow government access to the data. 

Cato's Sanchez explained why he was leery of the DEA memo and the motives for its leaking.

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EPIC attorney Alan Butler
"If this leak came from law enforcement, and that's mostly who would have access to this memo, I wonder why someone would leak it," he said. "One reason might be to support the larger 'Going Dark' campaign by the Department of Justice. Another reason might be the hope that drug dealers will mistakenly assume iMessages are safe and get lazy. Those are two possibilities worth thinking about."

The DEA also complained "that iMessages between two Apple devices are considered encrypted communication and cannot be intercepted regardless of the cell phone service provider," even though in the same memo, it conceded that "sometimes the messages can be intercepted depending where the intercept is placed."

Was the DEA memo leak part of an ongoing campaign to revamp the federal laws governing surveillance of electronic communications? That's hard to prove, but showing that there is such a campaign is less difficult.

In February testimony to the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security, FBI General Counsel Valerie Caproni coined the term "Going Dark" to describe what she called federal law enforcement's rapidly diminishing ability to monitor high-tech communications products as technologies advanced over the past 10 to 15 years. Caproni singled out "social-networking sites, web-based email and peer-to-peer communications."

Other federal officials have been making similar noises.  

"The FBI simply can't keep up with criminals taking advantage of online communication to hide evidence of their actions," FBI lawyer Andrew Weissman said last month during a meeting with American Bar Association.

The FBI and other federal law enforcers claim there is a growing gap between the legal authority of federal and other law enforcement agencies to intercept electronic communications pursuant to court order or direct warrant under the Communications Assistance Law Enforcement Act (CALEA) and their ability to actually do so. And they want new legislation to fix that.

Passed in 1994, CALEA law initially ordered phone companies to create a mechanism to have their systems conform to a wiretap in real-time surveillance. The Federal Communications Commission (FCC) extended CALEA in 2005 to apply to broadband providers, such as universities and Internet service providers, but messaging and social media services, such as Google Talk, Skype, Myspace, Yahoo and Facebook, as well as encrypted devices like Blackberry and Apple communications are not covered.

The FBI argues that "Going Dark" is a real and threatening possibility, with increased risk to national security and public safety. And the FCC has joined forces with the FBI by considering updating CALEA to require that digital products equipped with video or voice chats over the Internet, including Skype and Google Box Live, to rejigger their systems to allow the feds to monitor criminal activity as it happens in real time.

"We have noticed a massive upstick in the amount of FCC-CALEA inquiries within the last year, most of which are intended to address 'Going Dark' issues," said Chris Canter, a lead compliance counsel at Marashlian & Donahue , a law firm specializing in CALEA law. "This generally means that the FCC is laying the groundwork for regulatory action," he told the Chronicle.

"If we applied the FBI's logic to the cell phone carriers, it would state that every individual phone should be designed with built-in bugs," the Electronic Frontier Foundation said in a statement on CALEA. "Consumers would simply have to trust law enforcement or the phone companies not to activate those bugs without just cause."

EFF filed a Freedom of Information Act (FOIA) request with the FBI and other federal law enforcement agencies showing how the feds might try to justify forcing high-tech services to rewire their systems for expanded wiretapping purposes. The FOIA requested "information concerning the difficulties that the FBI and DOJ has encountered in conducting authorized electronic surveillance."

But so far, the Department of Justice has withheld the bulk of relevant information on the topic, provoking San Francisco US District Court Judge Richard Seeborg to order the feds to turn over the records. No court date scheduled for the feds to comply.

While law enforcement is calling for legislative changes to aid its work, critics insist that even if Congress refuses to pass laws to tackle the "Going Dark" problem, investigators can still obtain a special warrant allowing them to sneak into private residences and businesses to install a keystroke-logging system onto a computer or other devices to record passwords to unlock data they need to make a case.

The DEA adopted this same technique in the Texas case and another case where suspected drug dealers used PGP and the encrypted Web-email service identified in court records as Hushmail.com. Investigators can also send a malware to gain control of a targeted cell phone to extract the text messages, or as a last resort, obtain a warrant to seize the physical device and perform a traditional forensic analysis.

"New technologies frequently create uncertainty and the law is slow to adapt while leaving us to fight over how much surveillance we can tolerate in a free society," noted EPIC attorney Butler. "No one has quite figured out how to strike that balance in every case. However, the Fourth Amendment requires that our persons, houses, papers, and effects be protected from unreasonable search and seizures."

The battle between the imperatives of law enforcement and the privacy rights of Americans is never definitively won. Instead, it is better viewed as a never-ending series of skirmishes. And the contested terrain of this particular skirmish is your iPad.

House Members File Bipartisan "Respect States' Marijuana Laws Act" [FEATURE]

A bi-partisan group of US representatives led by Rep. Dana Rohrabacher (R-CA) Friday introduced legislation that would end the enforcement of federal marijuana laws in states that have either legalized it or adopted medical marijuana laws. That would bring 18 medical marijuana states and two legalization states -- Colorado and Washington -- out from under the shadow of the Controlled Substances Act when it comes to marijuana law reform.

Dana Rohrabacher
The bill is H.R. 1523, the Respect State Marijuana Laws Act. It was not yet available online as of the original press time, but is now.

"This bipartisan bill represents a common-sense approach that establishes federal government respect for all states' marijuana laws," said Rohrabacher. "It does so by keeping the federal government out of the business of criminalizing marijuana activities in states that don't want it to be criminal."

Joining Rohrabacher as cosponsors of the bill were Reps. Justin Amash (R-MI), Earl Blumenauer (D-OR), Steve Cohen (D-TN), Jared Polis (D-CO), and Don Young (R-AK).

That brings to at least five the number of marijuana reform bills introduced in the 113th Congress, six if you count an industrial hemp bill. Three of those bills deal with medical marijuana, one with the ability of states to tax marijuana commerce, and one would end federal marijuana prohibition.

Reps. Polis, Blumenauer, Rohrabacher, and others also introduced that latter bill, House Bill 499, the Ending Federal Marijuana Prohibition Act, H.R. 499, which would set up a federal regulatory process -- similar to the one for alcohol -- for states that decide to legalize. Senate Judiciary Chairman Patrick Leahy (D-VT) has said he will hold hearings to examine Colorado and Washington’s new marijuana laws and explore potential federal reforms.

Marijuana law reform efforts in the Congress are being propelled not only by the continuing spread of medical marijuana laws and the impressive victories in Colorado and Washington -- each state saw 55% of voters approve legalization -- but also by ever-mounting evidence that public opinion nationwide is swinging in favor of legalization, and against federal interference in states undertaking marijuana law reforms.

A Pew poll released earlier this month had support for marijuana legalization at 52%, the highest ever for a Pew poll and the first time a Pew poll showed majority support for legalization. Five other recent opinion polls have shown support for legalization hovering at the tipping point, with two of them just under 50%, one at 50%, one at 54%, and one at 57%.

That same Pew poll also found considerable skepticism about enforcing the marijuana laws, with 72% agreeing that "government efforts to enforce marijuana laws cost more than they are worth" and 60% saying that the federal government should not try to enforce marijuana laws in states where it is legal.

"The people have spoken and members of Congress are taking action," said Bill Piper, director of national affairs for the Drug Policy Alliance. "This bill takes conservative principles and applies them to marijuana policy; in terms of the national debate it’s potentially a game-changer."

"This bill is a win for federalism and a win for public safety," said Neill Franklin, a former Maryland narcotics detective and now executive director of Law Enforcement Against Prohibition. "In a time of bitter partisanship, it is quite telling that both Republicans and Democrats are calling for respect for the reform of marijuana laws. Polls show this is a winning issue for politicians, and change is inevitable. We applaud those legislators who, rather than trying to impede this progress, stand with the vast majority of Americans who believe these laws should be respected."

"Marijuana prohibition is on its last legs because most Americans no longer support it," said Steve Fox, national political director for the Marijuana Policy Project. "This legislation presents a perfect opportunity for members to embrace the notion that states should be able to devise systems for regulating marijuana without their citizens having to worry about breaking federal law. If a state chooses to take marijuana sales away from cartels and the criminal market and put them in the hands of legitimate, tax-paying businesses, it should be able to do so without federal interference."

"We've reached a tipping point," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance, "and it is time Congress acknowledge what voters, law enforcement, and state officials have been telling us for years: the feds should stop wasting money interfering when the states are more than capable of regulating marijuana effectively."

Even though this and the other federal marijuana reform bills have been introduced with bipartisan support, their future in the Republican-dominated House this session is murky at best. Some key committee chairs, such as Rep. Bob Goodlatte (R-VA), head of the House Judiciary Committee, are very hostile to any reform efforts. But the pressure is mounting.

Washington, DC
United States

Celebrities Urge Obama Forward on Drug, Sentencing Reform [FEATURE]

A coalition of more than 175 artists, actors, athletes, elected officials, and civil rights and civil liberties advocates Tuesday sent an open letter to President Obama urging him to redouble his efforts to shift from a punitive, repressive federal criminal justice policy to one emphasizing prevention and rehabilitation.

Russell Simmons, 2012 Tribeca Film Festival (courtesy David Shankbone via Wikimedia)
The US is the world's leading incarcerator, with more than 2.3 million people behind bars. The US leads the world both in absolute numbers of prisoners and in prisoners per capita, with 715 per capita, comfortably leading the nearest per capita contenders, Russia (584) and Belarus (554).

Of those 2.3 million people behind bars, more than 500,000 are charged with drug offenses. While the number of prisoners being held by the states and the number of drug offenders held by the states have begun to decline slightly in recent years as state-level policy makers grapple with economic problems, the federal prison population continues to grow, driven in part by drug offenders. According to the Bureau of Justice Statistics, there were some 95,000 federal drug war prisoners at the end of 2011, nearly half the federal prison population. That's up from only 70,000 a decade ago.

"It is critical that we change both the way we think about drug laws in this country and how we generate positive solutions that leave a lasting impact on rebuilding our communities," said hip-hop mogul Russell Simmons, who helped organize the star-studded effort. "We need to break the school to prison pipeline, support and educate our younger generations and provide them with a path that doesn’t leave them disenfranchised with limited options."

In the letter, the coalition praised Obama for criminal justice reforms he had undertaken, such as the Fair Sentencing Act, which reduced (but did not eliminate) the crack-powder cocaine sentencing disparity, but urged him to do more. "Mr. President, it is evident that you have demonstrated a commitment to pursue alternatives to the enforcement-only "War on Drugs" approach and address the increased incarceration rates for non-violent crimes," the letter said. "We believe the time is right to further the work you have done around revising our national policies on the criminal justice system and continue moving from a suppression-based model to one that focuses on intervention and rehabilitation."

The coalition called for specific reforms.

"Some of the initial policies we recommend is, under the Fair Sentencing Act, extend to all inmates who were subject to 100-to-1 crack-to-powder disparity a chance to have their sentences reduced to those that are more consistent with the magnitude of the offense," the letter said. "We ask your support for the principles of the Justice Safety Valve Act of 2013 (Senate Bill 619), which allows judges to set aside mandatory minimum sentences when they deem appropriate."

The letter also implicitly chided the Obama administration for its failure to make much use of his power to pardon and commute sentences. In fact, Obama has pardoned prisoners or commuted sentences at a much lower rate than any of his recent predecessors. He has granted only 39 pardons and one commutation (of a terminally ill cancer patient) in five years in office, while failing to act on such deserving and well-publicized cases as that of Clarence Aaron, who is now 20 years into a triple life sentence for a cocaine deal in which he was neither the buyer, seller, or supplier of the drugs.

"We ask that you form a panel to review requests for clemency that come to the Office of the Pardon Attorney," the letter said. "Well-publicized errors and omissions by this office have caused untold misery to thousands of people."

The letter also applauded Obama's "staunch commitment" to reentry programs for prisoners who have finished their sentences and urged him to expand those transition programs, and it urged him to support the Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education (Youth PROMISE) Act (House Bill 1318), "a bill that brings much needed focus on violence and gang intervention and prevention work."

The coalition also asked for a meeting with the president.

"We request the opportunity to meet with you to discuss these ideas further and empower our coalition to help you achieve your goals of reducing crime, lowering drug use, preventing juvenile incarceration and lowering recidivism rates," the letter said.

From the Hollywood community, signatories to the letter included: Roseanne Barr, Russell Brand, Jim Carrey, Cedric The Entertainer, Margaret Cho, Cameron Diaz, Mike Epps, Jamie Foxx, Jon Hamm, Woody Harrelson, Ron Howard, Eugene Jarecki, Scarlett Johannson, the Kardashians, LL Cool J, Eva Longoria, Demi Moore, Michael Moore, Tim Robbins, Chris Rock, Susan Sarandon, Sarah Silverman, Jada Pinkett Smith, Will Smith, and Mark Wahlberg.

From the music community, signatories included: Big Boi of Outkast, Sean "Diddy" Combs, Chuck D, DJ Envy, DJ Pauly D, Ani Difranco, Missy Elliot, Ghostface Killah, Ginuwine, Jennifer Hudson, Ice-T, Talib Kweli, John Legend, Ludacris, Lil Wayne, Natalie Maines, Nicky Minaj, Busta Rhymes, Rick Ross, RZA, and Angela Yee.

From the civil rights and civil liberties community, signatories included: Harry Belafonte, Julian Bond, Dr. Benjamin Chavis, Law Enforcement Against Prohibition leader Neill Franklin, Rev. Jesse Jackson, NAACP head Benjamin Todd Jealous, National Urban League leader Marc Morial, Drug Policy Alliance head Ethan Nadelmann, Rev. Al Sharpton, ACLU head Anthony Romero, Families Against Mandatory Minimums head Julie Stewart, and Dr. Boyce Watkins.

From the faith community, signatories included:  Bishop James Clark, Bishop Noel Jones, Bishop Clarence Laney, Bishop Edgar Vann, Dr. Iva Carruthers, Deepak Chopra, Father Michael Pfleger, Rabbi Robyn Fryer Bodzin, Rabbi Menachem Creditor, Rabbi Nina Mandel, Rev. Jamal Bryant, Rev. Delman Coates, Rev. Leah D. Daughtry, Rev. Dr. Fredrick Haynes, Rev. Michael McBride, Rev. Dr. W Franklyn Richardson, and Rev. Barbara Skinner Williams.

Media and academic figures who signed on include: CNN's TJ Holmes, Radio One's Cathy Hughes and Alfred Liggins, former MSNBC host (and now hydroponic farmer!) Dylan Ratigan, "The New Jim Crow" author Michelle Alexander, Michael Eric Dyson, Naomi Klein, Julianne Malveaux, and Spelman College's Dr. Beverly Daniel Tatum.

Also signing were businessmen Virgin Airlines magnate Sir Richard Branson, US Black Chamber of Commerce head Ron Busby, and St. Louis Rams owner Chip Rosenbloom, elected officials Congressman Tony Cardenas (D-CA), Congressman Keith Ellison (D-MN), Congresswoman Marcia Fudge (D-OH), Congresswoman Barbara Lee (D-CA), Congressman Bobby Rush (D-IL), and Congressman Bobby Scott (D-VA), and professional athletes Brendon Ayanbadejo, Lamar Odom, Isaiah Thomas, and MikeTyson, among others.

"The letter is intended to be a respectful appeal to the Obama administration asking that we develop productive pathways to supporting families that have been harmed by the War on Drugs," said Dr. Boyce Watkins, author, entrepreneur, and current scholar in residence in entrepreneurship and innovation at Syracuse University. "Countless numbers of children have been waiting decades for their parents to come home, and America is made safer if we break the cycle of mass incarceration. Time is of the essence, for with each passing year that we allow injustice to prevail, our nation loses another piece of its soul. We must carefully examine the impact of the War on Drugs and the millions of living, breathing Americans who've been affected.  It is, quite simply, the right thing to do."

"So called 'tough on crime' policies have failed our nation and its families, while 'smart on crime' policies work," said NAACP head Benjamin Todd Jealous. "When we know that drug treatment is seven times more effective than incarceration for drug addicts, basic human decency demands our nation makes the switch. The fate of hundreds of people and the children who need them home and sober hang in the balance. Great progress is being made in states from New York to Georgia with strong bipartisan support. The time has come for all of us to do all that we can. The future of our families, states, and nation demand it."

Will President Obama respond to this clarion call for action? Stay tuned.

Feds' New Cell Phone Spying Device Raising Privacy Concerns [FEATURE]

special to Drug War Chronicle by independent investigative journalist Clarence Walker, freelancewriter82@gmail.com

Blocked by a Supreme Court decision from using GPS tracking devices without a warrant, federal investigators and other law enforcement agencies are turning to a new, more powerful and more threatening technology in their bid to spy more freely on those they suspect of drug crimes. That's leading civil libertarians, electronic privacy advocates, and even some federal judges to raise the alarm about a new surveillance technology whose use has yet to be taken up definitively by the federal courts.

StingRay cell phone spying device (US Patent photo)
The new surveillance technology is the StingRay (also marketed as Triggerfish, IMSI Catcher, Cell-site Simulator or Digital Analyzer), a sophisticated, portable spy device able to track cell phone signals inside vehicles, homes and insulated buildings. StingRay trackers act as fake cell towers, allowing police investigators to pinpoint location of a targeted wireless mobile by sucking up phone data such as text messages, emails and cell-site information.

When a suspect makes a phone call, the StingRay tricks the cell into sending its signal back to the police, thus preventing the signal from traveling back to the suspect's wireless carrier. But not only does StingRay track the targeted cell phone, it also extracts data off potentially thousands of other cell phone users in the area.

Although manufactured by a Germany and Britain-based firm, the StingRay devices are sold in the US by the Harris Corporation, an international telecommunications equipment company. It gets between $60,000 and $175,000 for each Stingray it sells to US law enforcement agencies.

[While the US courts are only beginning to grapple with StingRay, the high tech cat-and-mouse game between cops and criminals continues afoot. Foreign hackers reportedly sell an underground IMSI tracker to counter the Stingray to anyone who asks for $1000. And in December 2011, noted German security expert Karsten Nohl released "Catcher Catcher," powerful software that monitors a network's traffic to seek out the StingRay in use.]

Originally intended for terrorism investigations, the feds and local law enforcement agencies are now using the James Bond-type surveillance to track cell phones in drug war cases across the nation without a warrant. Federal officials say that is fine -- responding to a Freedom of Information Act (FOIA) request filed by the Electronic Freedom Foundation (EFF) and the First Amendment Coalition, the Justice Department argued that no warrant was needed to use StingRay technology.

"If a device is not capturing the contents of a particular dialogue call, the device does not require a warrant, but only a court order under the Pen Register Statute showing the material obtained is relevant to an ongoing investigation," the department wrote.

The FBI claims that it is adhering to lawful standards in using StingRay. "The bureau advises field officers to work closely with the US Attorney's Office in their districts to comply with legal requirements," FBI spokesman Chris Allen told the Washington Post last week, but the agency has refused to fully disclose whether or not its agents obtain probable cause warrants to track phones using the controversial device.

And the federal government's response to the EFF's FOIA about Stingray wasn't exactly responsive. While the FOIA request generated over 20,000 records related to StingRay, the Justice Department released only a pair of court orders and a handful of heavily redacted documents that didn't explain when and how the technology was used.

The LA Weekly reported in January that the StingRay "intended to fight terrorism was used in far more routine Los Angeles Police criminal investigations," apparently without the courts' knowledge that it probes the lives of non-suspects living in the same neighborhood with a suspect.

Critics say the technology wrongfully invades technology and that its uncontrolled use by law enforcement raised constitutional questions. "It is the biggest threat to cell phone privacy you don't know about," EFF said in a statement.

ACLU privacy researcher Christopher Soghoian told a Yale Law School Location Tracking and Biometrics Conference panel last month that "the government uses the device either when a target is routinely and quickly changing phones to thwart a wiretap or when police don't have sufficient cause for a warrant."

"The government is hiding information about new surveillance technology not only from the public, but even from the courts," ACLU staff attorney Linda Lye wrote in a legal brief in the first pending federal StingRay case (see below). "By keeping courts in the dark about new technologies, the government is essentially seeking to write its own search warrants, and that's not how the Constitution works."

Lye further expressed concern over the StingRay's ability to interfere with cell phone signals in violation of Federal Communication Act. "We haven't seen documents suggesting the LAPD or any other agency have sought or obtained FCC authorization," she wrote.

StingRay pricing chart (publicintelligence.net)
"If the government shows up in your neighborhood, essentially every phone is going to check in with the government," said the ACLU's Soghoian. "The government is sending signals through people's walls and clothes and capturing information about innocent people. That's not much different than using invasive technology to search every house on a block," Soghoian said during interviews with reporters covering the StingRay story.

Advocates also raised alarms over another troubling issue: Using the StingRay allows investigators to bypass the routine process of obtaining fee-based location data from cell service providers like Sprint, AT&T, Verizon, T-Mobile and Comcast. Unlike buying location data fro service providers, using StingRay leaves no paper trail for defense attorneys.

Crack defense attorney Stephen Leckar who scored a victory in a landmark Supreme Court decision over the feds' warrantless use of a GPS tracker in US v. Jones, a cocaine trafficking case where the government tracked Jones' vehicle for weeks without a warrant, also has concerns.

"Anytime the government refuses to disclose the ambit of its investigatory device, one has to wonder, what's really happening," he told the Chronicle. "If without a warrant the feds use this sophisticated device for entry into people's homes, accessing private information, they may run afoul of a concurring opinion by Justice Alito, who ruled in US v Jones whether people would view unwarranted monitoring of their home or property as Constitutionally repugnant."

Leckar cited Supreme Court precedent in Katz v. US (privacy) and US v. Kyllo (thermal imaging), where the Supreme Court prohibited searches conducted by police from outside the home to obtain information behind closed doors. Similar legal thinking marked February's Supreme Court decision in a case where it prohibited the warrantless use of drug dogs to sniff a residence, Florida v. Jardines.

The EFF FOIA lawsuit shed light on how the US government sold StingRay devices to state and local law enforcement agencies for use specifically in drug cases. The Los Angeles and Fort Worth police departments have publicly acknowledged buying the devices, and records show that they are using them for drug investigations.

"Out of 155 cell phone investigations conducted by LAPD between June and September 2012, none of these cases involved terrorism, but primarily involved drugs and other felonies," said Peter Scheer, director of the First Amendment Center.

The StingRay technology is so new and so powerful that it not only raises Fourth Amendment concerns, it also raises questions about whether police and federal agents are withholding information about it from judges to win approval to monitor suspects without meeting the probable cause standard required by the Fourth. At least one federal judge thinks they are. Magistrate Judge Brian Owsley of the Southern District of Texas in Corpus Christi told the Yale conference federal prosecutors are using clever techniques to fool judges into allowing use of StingRay. They will draft surveillance requests to appear as Pen Register applications, which don't need to meet the probable cause standards.

"After receiving a second StingRay request," Owsley told the panel, "I emailed every magistrate judge in the country telling them about the device. And hardly anyone understood them."

In a earlier decision related to a Cell-site Simulator, Judge Owsley denied a DEA request to obtain data information to identify where the cell phone belonging to a drug trafficker was located. DEA wanted to use the suspect's E911 emergency tracking system that is operated by the wireless carrier. E911 trackers reads signals sent to satellites from a cell phone's GPS chip or by triangulation of radio transmitted signal. Owsley told the panel that federal agents and US attorneys often apply for a court order to show that any information obtained with a StingRay falls under the Stored Communication Act and the Pen Register statute.

DEA later petitioned Judge Owsley to issue an order allowing the agent to track a known drug dealer with the StingRay. DEA emphasized to Owsley how urgently they needed approval because the dealer had repeatedly changed cell phones while they spied on him. Owsley flatly denied the request, indicating the StingRay was not covered under federal statute and that DEA and prosecutors had failed to disclose what they expected to obtain through the use of the stored data inside the drug dealer's phone, protected by the Fourth Amendment.

"There was no affidavit attached to demonstrate probable cause as required by law under rule 41 of federal criminal procedures," Owsley pointed out. The swiping of data off wireless phones is "cell tower dumps on steroids," Owsley concluded.

But judges in other districts have ruled favorably for the government. A federal magistrate judge in Houston approved DEA request for cell tower data without probable cause. More recently, New York Southern District Federal Magistrate Judge Gabriel Gorenstein approved warrantless cell-site data.

"The government did not install the tracking device -- and the cell user chose to carry the phone that permitted transmission of its information to a carrier," Gorenstein held in that opinion. "Therefore no warrant is needed."

In a related case, US District Court Judge Liam O'Grady of the Northern District of Virginia ruled that the government could obtain data from Twitter accounts of three Wikileakers without a warrant. Because they had turned over their IP addresses when they opened their Twitter accounts, they had no expectation of privacy, he ruled.

"Petitioners knew or should have known that their IP information was subject to examination by Twitter, so they had a lessened expectation of privacy in that information, particularly in light of their apparent consent to the Twitter terms of service and privacy policy," Judge O'Grady wrote.

A federal judge in Arizona is now set to render a decision in the nation's first StingRay case. After a hearing last week, the court in US v. Rigmaiden is expected to issue a ruling that could set privacy limits on how law enforcement uses the new technology. Just as the issue of GPS tracking technology eventually ended up before the Supreme Court, this latest iteration of the ongoing balancing act between enabling law enforcement to do its job and protecting the privacy and Fourth Amendment rights of citizens could well be headed there, too.

The Rocky Mountain Road to Legal Marijuana Commerce [FEATURE]

http://stopthedrugwar.org/files/rockies.jpg
Rocky Mountain National Park, Colorado
When Colorado voters last November gave the thumbs up to marijuana legalization, the celebrations came quickly, with overjoyed pot smokers triumphantly lighting up, even though the pot laws had yet to officially change. Indeed, in following the will of the voters, Gov. John Hickenlooper (D) within weeks announced that marijuana was no longer illegal in Colorado.

But that was only the beginning. Amendment 64, the marijuana legalization initiative approved by the voters, didn't just legalize marijuana -- it also called on the state to come up with a regulatory regime for legal marijuana commerce. That process is now well underway, with the state legislature currently considering implementation legislation.

The legislature is working on a framework crafted by a Hickenlooper-appointed Amendment 64 Implementation Task Force, which in mid-March released its Final Report with 58 discrete recommendations for the legislature to consider. The highlights included:

  • The adult-use marijuana industry should be required to have common ownership from seed to sale. This vertical integration regulatory model means that cultivation, processing and manufacturing, and retail sales must be under common ownership.
  • During the first year of licensing, only entities with valid medical marijuana licenses should be able to obtain licenses to grow, process and sell adult-use cannabis.
  • A new Marijuana Enforcement Division in the Department of Revenue would be funded by General Fund revenue for the next five years and would provide the necessary regulatory oversight of all marijuana industries in Colorado.
  • Refer a ballot initiative to voters this November for a 15% excise tax, with the first $40 million of excise tax proceeds going to the state’s school construction fund as outlined in Amendment 64, and a "marijuana sales tax" to create funding sources to cover the costs of regulating the industry, implementing consumer safeguards and establishing youth prevention and treatment programs.
  • Only Colorado residents should be allowed to hold licenses to grow, process and sell adult-use cannabis. But sales to both residents and visitors to the state should be permitted, with stricter quantity limits for visitors.
  • All types of marijuana sold from adult use cannabis retail facilities should be in child-proof packaging and have warning labels that detail tetrahydrocannabinol (THC) potency and list all pesticides, herbicides, fungicides and solvents used in cultivation or processing.

Other recommendations included not allowing pot smoking in bars or other facilities impacted by the state's anti-smoking laws, barring "open containers" of marijuana in vehicles, and requiring people with children at home to keep their marijuana gardens secure.

"This is a very comprehensive report, developed in a rapid timeframe, that lays the groundwork for the establishment of a robust regulatory framework, with adequate funding for marijuana industry oversight and enforcement, consumer protection and prevention and treatment programs for young people," said Task Force co-chair and governor's legal counsel Jack Finlaw. "The Task Force recommendations will now need to be perfected through the legislative process and rulemakings by various state agencies."

While there is some quibbling over the various recommendations and some concerns about what the legislature might do, Amendment 64 proponent (and now Marijuana Policy Project communications director) Mason Tvert said things were going pretty much as expected.

"The goal is to establish regulated retail stores that provide marijuana to adults, and we are steadily moving toward that," he said. "There are obviously lots of details to be worked out, and lots of different opinions on those details, but overall, we're moving in the direction of accomplishing our goal. There is debate over vertical integration, whether sales should be restricted to non-residents, the levels of sales tax -- these are all important issues, but overall things are going well, and we're well on our way to having a system of regulated marijuana cultivation and sales in Colorado."

Now, the Task Force recommendations are before a joint legislative committee charged with turning them into regulatory legislation. The committee had hoped to be done by the end of March, but progress has been slow, and the new deadline date is next week. If the committee meets that deadline, that will give the legislature as a whole exactly one month to craft and pass enabling legislation before the session ends.

The politicians are doing what they are supposed to do, said Tvert. There have been no real attempts to sabotage the will of the voters, and legislators are trying with good faith to implement Amendment 64.

"Generally, elected officials have been responsive," he said. "There have been some proposals for restrictions, but overall, they are moving forward to pass this. There is really nothing else they can do. For most Coloradans, this is going exactly as planned. For people in the industry, for advocates, for elected officials, there are lots of details being debated and it can feel like there's a lot of drama, but overall, everything's happening as it's supposed to."

The clock is ticking in Colorado. The voters have already voted to legalize marijuana. Either the legislature passes regulations to implement it -- and quite possibly puts anticipated taxes on the ballot, as required by state law for any new taxes -- and Colorado has legal, taxed and regulated marijuana commerce, or it simply has legal marijuana possession with no taxes and no regulations. The threat of the latter should be enough to ensure the success of the former.

CO
United States

Sens. Leahy, Paul Introduce Federal Mandatory Minimum Reform Bill [FEATURE]

Sen. Rand Paul (R-KY) joined Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) in introducing legislation that would give federal judges greater flexibility in sentencing in cases where mandatory minimum sentences are involved. The bill, Senate Bill 691, also known as the Justice Safety Valve Act of 2013, would expand the "safety valve" to apply to all federal crimes.

Senators Patrick Leahy (D-VT) and Rand Paul (R-KY)
Currently, the "safety valve" allows judges to impose a sentence below the mandatory minimum only in some drug cases. Only about 25% of federal drug offenders are currently able to take advantage of the "safety valve" to earn reduced sentences.

The bill comes as the federal government faces chronic budget crises and a federal prison population that has grown nearly 10-fold in the past three decades and by 55% since 2000. In 1980, there were some 25,000 federal prisoners; now there are more than 217,000, and almost half of them are drug offenders. At more than $7 billion this year, the federal prison budget now accounts for almost one-quarter of all Justice Department spending, and is up by $2 billion in the last five years alone.

The bill also comes amidst a rising hue and cry to move away from mandatory minimums. The non-partisan Congressional Research Service issued a January report that suggested that instead of expanding federal prison construction, Congress "could consider options such as modifying mandatory minimum penalties," as well as increased resort to probation, reinstating parole in the federal system, and "repealing federal criminal statutes for some offenses."

Similarly, the US Sentencing Commission surveyed federal judges in 2010 and found that 70% of the 600 judges who responded favored expanding the "safety valve" to all mandatory minimum sentences. Rising federal prison budgets and sentencing reform have also been a continuing concern for Chairman Leahy. He held hearings last summer on the issue, and now he has sponsored legislation to do something about it.

"As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep criminals off the street and deter those who would commit violent crime," Sen. Leahy said. "Our reliance on mandatory minimums has been a great mistake.  I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them.  A one-size-fits-all approach to sentencing does not make us safer."

"Our country's mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the constitutional separation of powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer," said cosponsor Sen. Paul. "This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties."

Drug and sentencing reform advocates celebrated the bill's introduction, although some thought that even more should be done.

The Yankton (SD) Federal Prison Camp. It used to be Yankton College, but now houses minimum security prisoners. (wikimedia.org)
"I am thrilled that Sen. Leahy and Sen. Paul are promoting this common-sense sentencing reform," said Julie Stewart, founder and executive director of Families Against Mandatory Minimums (FAMM). "The mandatory minimum sentences Congress might be appropriate in many cases, but certainly not in every case, especially those involving non-violent offenders. By giving courts more flexibility, Congress will ensure that judges use our scarce prison beds and budget to keep us safe from truly violent offenders."

"Congress must reexamine mandatory minimum sentencing to determine whether they are necessary and appropriate while also analyzing the racial disparities that have arisen in the imposition of mandatory sentences," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance. "This bill is a step in the right direction. While overdue, the recent reform of the crack-powder cocaine sentencing disparity did not do enough to alleviate mass incarceration, or racial disparities, in the federal system. Passage of this bill will hopefully mean more judges won’t give low-level drug law offenders draconian sentences reserved for drug kingpins. Research has shown that more than half of all federal drug law offenders had little or no criminal history but they make up more than half of all federal prisoners."

"We are pleased that after decades of 'lock 'em up' rhetoric, Republicans and Democrats are beginning to realize that ever increasing penalties are not the most effective way to keep Americans safe," said Jeremy Haile, federal advocacy counsel for the Sentencing Project. "Nowhere is this more true than in the area of mandatory minimum penalties, which are limited because they address severity of punishment, not certainty. A recent Congressional Research Service report shows that mandatory minimums are a primary driver of our high prison populations and costs. Moreover, they are rife with racial unfairness.  While it would be better to eliminate mandatory minimums altogether, we are pleased that Senators Leahy and Paul have introduced legislation that would mitigate their harshest effects. Congress should take up this legislation to address ineffective 'one size fits all' mandatory minimum penalties that allow little consideration for individual characteristics and drive racial disparities in sentencing."

And, as Nora Callahan of the November Coalition, a drug reform group that concentrates on federal prisoners, has been pointing out for years, mandatory minimum reforms and sentencing reforms in general are "back end" solutions. While such measures are a necessary corrective to ameliorate what Leahy called the country's "mass incarceration problem," the more radical solution is on the "front end" -- stopping those federal arrests and prosecutions.
 

"It's a good news bill, don't get me wrong," Callahan said Thursday. "Dismantling the drug war a brick at a time is one way to get rid of it -- or will we just create more space for more people to do less time? I can't help but know that leaders can get bolder than this. And those judges would do well to use a lot more discretion pretrial and start disallowing various 'extrajudicial procedures' like count-stacking, reliance on informants and rewarded witnesses; fast-tracking--and it wouldn't take an act of Congress."

Washington, DC
United States

NYPD Facing Double-Barreled Challenge to Marijuana Practices [FEATURE]

There has been a double-barreled challenge this week to the NYPD and its heavy-handed policing. On the one hand, the department and the city are being sued in federal court over their stop-and-frisk program, which is aimed predominantly at young men of color. On the other, the NYPD is facing the glare of publicity over a new report that contends it has wasted as much as a million man-hours over the past ten years arresting low-level marijuana offenders.

March 2012 protest of NYC stop and frisk violations
Under the stop-and-frisk program, which the city touts as a crime-fighting effort, more than 531,000 people were stopped last year and nearly five million in the past decade. Some were stopped only for questioning, some had their bags or backpacks searched, some were subjected to full pat-down searches. Only 10% of those stops resulted in arrests -- including arrests for public marijuana possession after police tricked or intimidated people into pulling out their baggies (possession is otherwise decriminalized in the state) -- and only a tiny number resulted in the seizure of weapons.

The massive number of annual stop-and-frisks, five times the number a couple of decades ago, raises questions itself. But who is being stopped-and-frisked is raising even more questions and concerns. While blacks make up a quarter of the city's population, they accounted for 51% of all stop-and-frisk encounters, being stopped at a rate twice what would be expected with color-blind enforcement. Whites, on the other hand, make up 44% of the population, but accounted for only 11% of stop-and-frisk encounters.

Many of the stop-and-frisks are illegal and the enforcement is racially biased, argued attorneys in the class action lawsuit in federal court this week. In the case, which began Monday, attorneys for the plaintiffs -- people who were subjected to stop-and-frisk searches -- are seeking a court-appointed monitor to oversee changes in police practices.

They are not seeking to ban stop-and-frisk searches because they have been found legal. But US District Court Judge Shira Scheindlin, who has expressed deep concerns over the tactic in previous rulings, could order reforms. The trial could last for up to a month.

NYPD is doing illegal stops and must reform its practices, said Center for Constitutional Rights attorney Darius Charney, who is representing the plaintiffs. The stops are "arbitrary, unnecessary, and unconstitutional" and a "frightening and degrading experience" for "thousands, if not millions" of New Yorkers, Charney argued. He said plaintiffs will present "powerful testimonial and statistical evidence" that residents are stopped for no good reason.

On Monday, the first plaintiff witnesses took the stand. Devin Almonor, 16, the son of a police officer, testified that he was stopped when he was 13, handcuffed and thrown against an unmarked police car as he made his way home. David Floyd, now a 33-year-old medical student, testified that he was stopped twice without cause.

Attorneys for the city responded that in a city that large, large numbers of stop-and-frisks should not be unexpected and that the NYPD went where the crime was.

"The New York Police Department is fully committed to policing within the boundaries of the law," said Heidi Grossman, an attorney for the city. "Crime is not distributed evenly across the city. Police are given an awesome responsibility, one of which is to bring crime down and keep people safe."

Given those awesome responsibilities, a new report from the Drug Policy Alliance and the Marijuana Arrest Research Project is raising eyebrows. The report's main finding is clear from its title: One Million Police Hours: Making 440,000 Marijuana Possession Arrests in New York City, 2002-2012. The report was authored by CUNY sociology professor Dr. Harry Levine, an expert on marijuana possession arrests, at the request of members of the city council and the state legislature.

While marijuana possession offenders typically faced only fines once they had their day in court, the report found that the arrests themselves inflicted immediate pain. Those 440,000 arrests resulted in five million hours of police custody, an average of more than 10 hours per person of being held in the city's notorious holding cells, often overnight.

"We cannot afford to continue arresting tens of thousands of youth every year for low-level marijuana possession," said Alfredo Carrasquillo, civil rights organizer with VOCAL-NY. "We can't afford it in terms of the negative effect it has on the future prospects of our youth and we can't afford in terms of police hours. It's shocking that the same mayor who has been taking money away from youth programs and cutting other social services, is wasting tens of millions of dollars locking youth up through the NYPD's marijuana arrests crusade. We need legislative action to fix this madness."

"This report shows that people arrested for marijuana possession spend an average of 12-18 hours, just in police custody, and the vast majority of those arrested are young Black and Latino men from seven to ten neighborhoods in NYC," said Chino Hardin, field coordinator and trainer with the Center for NuLeadership on Urban Solutions. "This is not just a crisis, but a frontline civil rights issue facing urban communities of color in the 21st century. We are calling on Governor Cuomo to do the right thing, and exercise the moral and political will to address this injustice."

While Mayor Bloomberg and Police Commissioner Raymond Kelly last fall announced changes it how the NYPD processes marijuana arrests and the number of pot possession busts have begun to decline slightly, advocates are calling on the legislature and the governor to change the state's 1977 decriminalization law to remove law enforcement's "in public view" loophole, the provision NYPD has used to great effect.

"For years, New Yorkers from across the state have organized and marched and rallied, demanding an end to these outrageous arrests. And now we learn that the police have squandered one million hours to make racially biased, costly, and unlawful marijuana possession arrests. This is scandalous," said Gabriel Sayegh, New York state director for the Drug Policy Alliance. "I’m sure we can all think of more effective things for the police to spend their time on -- imagine if NYPD committed one million hours to working with communities to stop gun violence or to pursue unsolved serious crimes. We stand with the caucus and other leaders in Albany -- both Democrats and Republicans -- in demanding reform. The hour of change is upon us, and reform is long, long overdue."

Whether it is the massive stop-and-frisk policing program or the practice of turning marijuana possession tickets into misdemeanor arrests complete with post-booking jail time and criminal records, NYPD is coming under increasing scrutiny and criticism..

New York City, NY
United States

Snitch: Action Thriller With a Drug War Message [FEATURE]

Snitch is a Hollywood action thriller with a message, and it’s a message that is so far playing well with audiences and theaters across the land. The $15 million crime and justice pic starring Dwayne "The Rock" Johnson and Susan Sarandon has already done more than $32 million in gross box office receipts, and its being held over for a fourth week in select theaters around the country.

Based on a 1999 PBS Frontline documentary of the same name, Snitch tells the story of trucking company owner John Matthews (Johnson), whose estranged son is set up by a friend in trouble with the law. The son accepts delivery of a package of Ecstasy, and is then raided and arrested by the DEA. Matthews' hired attorney explains to the stunned parents that their son is looking at a 10-year mandatory minimum sentence, and the only way out is to snitch on somebody else.

The son bravely refuses to rat out his friends and is kept behind bars, where he is brutalized, but Matthews feels it is nobler to save his son and decides to intercede on his behalf. Using his business connections, he wrangles a meeting with hard-hearted, politically-driven US Attorney Joanne Keeghan (Sarandon) and offers to set up dope dealers himself if that can get his son out of trouble.

From there, it's typical action thriller material, with dangerous, desperate dope dealers (who already have two strikes and aren't about to go down for a third), tormented ex-cons trying to go straight, duplicitious (but kind hearted) DEA agents, and bloodthirsty Mexican cartels. There is danger, suspense, shoot 'em ups, and car chases before the movie resolves with junior getting out of jail and the family disappearing into the witness protection program.

But running throughout the nearly two-hour movie are the twin themes of snitching and mandatory minimum sentencing. Snitch lays bare the workings of the drug war's informing imperative, scratching at the surface of the moral contradictions involved, and subtly brings to life the mindless cruelty of imposing lengthy mandatory minimums on nonviolent drug offenders, but it manages to do so in the middle of a mainstream cinematic entertainment vehicle.

That's just what director Ric Roman Waugh wanted, he told Drug War Chronicle in a phone interview Wednesday from Austin, where he is attending the SXSW festival. Once merely a music showcase, SXSW is now a playland for all sorts of artistic endeavors, including Hollywood action films with a message.

"The move is really a first testament to how far you go to protect your kids," said Waugh. "In the documentary, he didn't just talk the talk, he walked the walk. He got the US Attorney to sign off and reduce his kid's sentence for a bigger bust. That really happened, and we wanted to open that up."

When he was offered the chance to rewrite the script for the movie, he jumped at the offer, he said.

"They sent me the original script and the Frontline documentary, and it was that core message that really jumped out, and we turned that into a first-person point of view movie," the stuntman turned director said. "The snitching and the mandatory minimums were integral to what we wanted to talk about. The message of the movie is that you can be for or against the war on drugs, but watch what this father went through and then think about these controversial mandatory minimums. When you walk out of the theater and realize nonviolent drug offenders are doing longer sentences than rapists and people who committed manslaughter, that's something to think about."

panel at DC Snitch screening, with Rep. Bobby Scott (D-VA, FAMM president Julie Stewart, Waugh, and Lawrence & Lamont Garrison
Snitch was screened last week at an event hosted by Families Against Mandatory Minimums (FAMM) in Washington, DC, but the film has been generating buzz among the broader public as well.

"The response has been tremendous," Waugh said. "There is a core audience that will go see a movie with a message, but that's a relatively small audience. But when you can put that message in the body of bigger action thriller and you're not hitting them over the head with it but just allowing them to experience the controversies, they're coming out and talking about it. They're talking about the world of informants, the liar's club, if you will, and what you would do if your life or the life of your child was on the line. It's created a lot of dialog, and that's what we intended.

Unlike documentaries, which typically play to art house audiences and die quiet, largely unlamented deaths, this Hollywood treatment of the issues has demonstrated some staying power.

"It's been playing for three weeks and will continue for quite awhile," said Waugh. "We've exceeded expectations for movies this size, lots of theaters are keeping us over for the fourth week, and we're even adding a few screens. People are able to relate to this in their own lives. What would happen if their kids were in harm's way? The movie tries to look these draconian laws and the system as a whole and get people to ask where they stand on them. We're only halfway there, and it's already a success. That's a real testament that you can do a message movie, you can do a commercial action thriller that's about something."

As noted above, even though Snitch opened on February 22, it's still being held over in theaters across the land. If you have an interest in drug war issues or if you get off on action flicks in general or flicks starring The Rock in particular, or better yet, if you have a friend or family member who's gaga for The Rock or a sucker for car chases, but has displayed no particular interest in or awareness of issues like snitching or mandatory minimums, it's time to have a movie date while Snitch is still on the big screen.

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