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Health Canada Approves Heroin Maintenance [FEATURE]

Last Friday, Health Canada used some creative rule-reading to approve a program that would provide prescription heroin to a small number of hard-core users, and the Conservative health minister isn't happy. But doctors, advocates, and the users themselves are quite pleased -- and once again, Canada stays on the cutting edge when it comes to dealing smartly with heroin use.

Health Canada approved access to prescription heroin for at least 15 people who are completing their participation in Vancouver's Study to Assess Long-term Opioid Dependence (SALOME), which is testing whether prescribing heroin was more effective than prescribing methadone for users who have proven resistant to conventional treatments. The move came after participants and advocates have been calling for an "exit strategy" for the 322 people in the study.

SALOME began at the end of 2011 and has been enrolling participants on a rolling basis for a year at a time. The final group of participants will finish up at the end of next year. It built on the success of the North American Opioid Maintenance Initiative (NAOMI), a study in Vancouver and Montreal from 2005 to 2008. That study found that using heroin is cheaper and more effective than using methadone to treat recalcitrant heroin users.

While the Conservative federal government has been a staunch opponent of heroin maintenance, not to mention also fighting a bitter losing battle to close down the Vancouver safe injection site, Health Canada bureaucrats were able to find a loophole that will allow doctors to prescribe heroin to graduating study participants under the ministry's Special Access Program (SAP).

That program is designed to provide drugs to Canadians with life-threatening illnesses on a "compassionate or emergency" basis. The SAP includes "pharmaceutical, biologic and radiopharmaceutical products that are not approved for sale in Canada." The program covers diseases including intractable depression, epilepsy, transplant rejection and hemophilia, but heroin addiction isn't mentioned.

"Health Canada made a wonderful decision," said Scott Bernstein, Health and Drug Policy Lawyer for the Vancouver-based Pivot Legal Aid Society, which represents 22 SALOME participants and the BC Association of People on Methadone in order to advocate for their continued access to health care and the protection of their human rights. "The decision was one based on the evidence and not ideology. It means that those SALOME participants allowed access can live safer, more stable lives, lives free of crime and remaining under the care of doctors, not drug dealers."

But Health Minister Rona Ambrose appeared to have been caught flat-footed by the Health Canada decision. She issued a statement the same day decrying the move, saying that it contradicted the government's anti-drug stance.

Pharmaceutical diacetylmorphine AKA heroin (wikimedia.org)
"Our government takes seriously the harm caused by dangerous and addictive drugs," Ambrose said. "Earlier today, officials at Health Canada made the decision to approve an application under the Special Access Program's current regulations to give heroin to heroin users -- not to treat an underlying medical condition, but simply to allow them to continue to have access to heroin for their addiction even though other safe treatments for heroin addiction, such as methadone, are available."

The move is "in direct opposition to the government's anti-drug policy and violates the spirit and intent of the Special Access Program," Ambrose said, adding that she would take action to "protect the integrity of the (SAP) and ensure this does not happen again."

Ambrose's remarks prompted a Monday response from SNAP (the SALOME/NAOMI Patients Association), comprised of "the only patients in North America to be part of two heroin-assisted treatment (HAT) clinical trials" -- NAOMI and SALOME. SNAP noted that European heroin-assisted treatment trials had allowed participants to continue to be prescribed heroin on compassionate grounds after the trials ended and that "heroin-assisted therapy is an effective and safe treatment that improves physical and psychological health when the participants are receiving treatment."

"The Canadian NAOMI trial is the only heroin-assisted treatment study that failed to continue offering HAT to its participants when the trial ended in Vancouver," SNAP said. "We do not want to see the same outcome for the SALOME trial. Currently, SALOME patients are being offered oral hydromorphone when they exit the trial. However, there is currently no scientific evidence to support this treatment option for opiate addiction in the doses required; thus we urge you to reconsider your comments and to support Health Canada's decision to grant special access to heroin for patients exiting the SALOME trial. We also urge Canadians to support the immediate establishment of a permanent HAT program in Vancouver, BC."

Patients and their supporters weren't the only ones supporting the Health Canada move and criticizing Minister Ambrose for her opposition. New Democratic Party health critic Libby Davies also had some choice words for her.

Davies was "outraged" that Ambrose would "overrule her own experts," she said. "Medicalized heroin maintenance has been used very successfully in places like Europe. It's another example of the Conservative government ignoring sound public policy, instead making decisions based on political dogma."

Indeed, while Canada has been on the cutting edge of opiate maintenance in North America, being the scene of the hemisphere's only safe injection site and heroin-maintenance studies, similar moves have been afoot in Europe for some time. Prescription heroin programs have been established in several European countries, such as Switzerland, Germany, Denmark, The Netherlands, and the United Kingdom.

Now, it seems that Canada will join them, despite the health minister's dismay.

Vancouver
Canada

Senate Hearing Takes on Mandatory Minimums [FEATURE]

The Senate Judiciary Committee held a hearing on mandatory minimum sentencing last Wednesday as Chairman Sen. Patrick Leahy (D-VT) and fellow committee member Sen. Rand Paul (R-KY) sought to create momentum for a reform bill they filed together this spring, the Justice Safety Valve Act (Senate Bill 619).

Senate Judiciary Committee, hearing on mandatory minimums -- Rand Paul waiting to testify
The hearing comes in the face of a federal prison population that has increased seven-fold in the past 30 years, driven in large part by mandatory minimum sentences, the number of which has doubled in the past 20 years. Many of them are aimed at drug offenders, who make up almost half of all federal prisoners. Taxpayers are shelling out more than $6.4 billion this fiscal year to pay for all those prisoners.

Mandatory minimum sentencing reform has already won support from the Obama administration, with Attorney General Eric Holder last month issuing guidance to federal prosecutors instructing them not to pursue charges with mandatory minimums in certain drug cases and announcing last week that the shift would also include people who have already been charged, but not convicted or sentenced.

And it has support on the federal bench. The same day as the hearing last week, Judge Robert Holmes Bell, chairman of the criminal law committee of the US Judicial Conference, sent a letter to the committee expressing the federal judiciary's position that mandatory minimums lead to "unjust results" and its "strong support" for the Justice Safety Valve Act. The letter noted that the federal judiciary has a longstanding policy of opposing mandatory minimums.

The hearing began with an extended photo-op and media availability as Sens. Leahy and Paul chatted before the cameras in an exercise in bipartisan camaraderie.

"Senator Paul and I believe that judges, not legislators, are in the best position to evaluate individual cases and determine appropriate sentences," said Leahy. "Our bipartisan legislation has received support from across the political spectrum."

Leahy noted the Justice Department's recent moves on mandatory minimums, but said that wasn't enough.

"The Department of Justice cannot solve this problem on its own," Leahy said. "Congress must act. We cannot afford to stay on our current path. Reducing mandatory minimum sentences, which have proven unnecessary to public safety, is an important reform that our federal system desperately needs. This is not a political solution -- it is a practical one, and it is long overdue."

Paul, for his part, was on fire at the hearing. The libertarian-leaning junior senator from Kentucky decried not only the inequity of the harsh punishments but also of policies that disproportionately affect racial minorities.

"I know a guy about my age in Kentucky who grew marijuana plants in his apartment closet in college," Paul related. "Thirty years later, he still can't vote, can't own a gun, and when he looks for work, he must check the box, the box that basically says, 'I'm a convicted felon, and I guess I'll always be one.'"

It wasn't just white guy pot offenders Paul was sticking up for.

Pat Leahy
"If I told you that one out of three African-American males is forbidden by law from voting, you might think I was talking about Jim Crow 50 years ago," Paul said. "Yet today, a third of African-American males are still prevented from voting because of the war on drugs. The majority of illegal drug users and dealers nationwide are white, but three-fourths of all people in prison for drug offenses are African American or Latino."

As was the case with the Judiciary Committee hearings on marijuana law reform earlier this month, octogenarian Sen. Charles Grassley (R-IA) appeared to be the sole holdout for maintaining harsh war on drugs policies. Grassley, the ranking minority member on the committee, complained that the move to pull back on mandatory minimums ignored the fact that the law was originally written to address sentencing disparities based on judicial discretion.

"No longer would sentences turn on which judge a criminal appeared before," Grassley said before criticizing the Supreme Court for making federal sentencing guidelines advisory and the Obama administration for citing prison costs as a reason to reduce mandatory minimums. "So we have this oddity, this administration finally found one area of spending it wants to cut," Grassley complained.

Among witnesses at the hearing, only Scott Burns, formerly of the drug czar's office and currently executive director of the National District Attorney's Association, sided with Grassley. He said crime is down and it is a myth that the federal system is in crisis.

"Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences," Burns said.

But other witnesses, including former US Attorney for Utah Brett Tolman, disagreed. Tolman told the committee that the mandatory minimum sentencing structure was inherently unfair because it put all discretion in the hands of prosecutors, who have a vested interest in securing convictions and harsh sentences. Political concerns of prosecutors rather than the public safety too often drive charging decisions, which should instead be left up to judges, he said.

Even conservative witnesses agreed that mandatory minimum sentencing had become excessive.

"The pendulum swung too far, and we swept in too many low-level, nonviolent offenders," said Mark Levin, policy director of the Right on Crime Initiative of the Texas Public Policy Foundation, a leading voice in the conservative criminal justice reform movement.

The bill has been filed, the hearing has been held, support has been made evident. Now, it is up to the Congress to move on the Justice Safety Valve Act and other pending sentencing reform legislation.

Washington, DC
United States

Hemp in the Time of New Federal Marijuana Policy [FEATURE]

It's not just medical and legal marijuana states that watched the Justice Department's announcement of its response to marijuana law reforms in the states with interest. Nine states have laws regulating the production of industrial hemp, and ten more have asked Congress to remove barriers to industrial hemp production.

Rep. Massie, Comm. Comer & Rep. Polis (Vote Hemp via youtube)
Hemp is also moving in the Congress. An amendment to the Farm Bill cosponsored by Reps. Earl Blumenauer (D-OR), Thomas Massie (R-KY), and Jared Polis (D-CO) passed the House on a vote of 225-200 in July and will now go to a joint House-Senate conference committee. And the Industrial Hemp Farming Act (House Resolution 525 and Senate Bill 359) is pending in both chambers.

At a Tuesday Capitol Hill briefing organized by the industry group Vote Hemp (video embedded below), state and federal elected officials said they thought the Justice Department's policy directive on marijuana opened the door not just to regulated medical and legal marijuana, but also to industrial hemp production. Some states intend to move forward, they said.

"That Department of Justice ruling pertained to cannabis," said Kentucky Agriculture Commissioner John Comer, "and hemp has always been banned because it's in the cannabis family. The Department of Justice ruling pertained to states with a regulatory framework for cannabis, and we feel that includes hemp as well. Our legislation set up a regulatory framework."

The legislation Comer is referring to is Kentucky Senate Bill 50, the Bluegrass State's industrial hemp bill, which passed the legislature with bipartisan support, gained endorsements by both of the state's Republican US senators, Mitch McConnell and Rand Paul, and became law without the governor's signature in April. It establishes an Industrial Hemp Commission and sets up procedures for licensing farming and processing.

"We have a hemp commission meeting Thursday, and we are going to request that Rand Paul send a letter to the DEA telling them we intend to get going next year unless the Department of Justice tells us otherwise," Comer said. "We are taking a very proactive stance in Kentucky. We've been trying to replace tobacco, and hemp is an option not only for our farmers, but it could also create manufacturing jobs in our rural communities."

The commission did meet Thursday, and it voted unanimously to move forward with industrial hemp production, aiming at producing hemp next year.

"That's our first goal, to get the crop established. Then, once companies and industries see that we have a crop here established and growing, we believe industries will start coming here looking for it instead of importing it from other countries," said Brian Furnish, chairman of the Industrial Hemp Commission, after the Thursday vote.

According to Vote Hemp, Kentucky isn't the only state planning on moving forward with hemp next year. Vermont just released its Hemp Registration Form that allows farmers to apply for hemp permits and the Colorado Department of Agriculture is developing regulations to license hemp farmers in 2014. North Dakota has issued permits for several years now.

Imported hemp is now a $500 million a year industry, Vote Hemp's Eric Steenstra said.

Congressman Thomas Massie (R-KY), who also played an important role in passing the Kentucky bill and who is a cosponsor of the House hemp bill, said he was encouraged by the Justice Department policy directive, but that it was not enough.

"We need more than a Justice Department ruling," he told the press conference. "As a farmer and entrepreneur, I want some certainty. I want a legislative remedy for this, and that's why I continue to push hard for our bill, which would exclude hemp from definition as a controlled substance."

Vote Hemp's Eric Steenstra
But while the House hemp bill now has 47 cosponsors, it still has a long row to hoe. The hemp amendment to the Farm Bill, which would allow hemp production for university research purposes, has already passed the House and awaits action in conference committee.

"If you can attach an amendment to a spending bill, then you can get action," said Massie. "I have to give credit to Rep. Polis for doing this. This is a farm issue, not a drug issue. And while there was debate over whether it was wise to even have a vote, it passed. People decided spontaneously to vote for it as an amendment."

While the Senate has not passed a similar provision, Massie said he was hopeful that it would make it through conference committee.

"There is no equivalent in the Senate, there is no companion amendment, but we do have [Senate Minority Leader] Mitch McConnell, who is all for it," he said. "I'm hopeful it will survive, and we'll continue to work on the standalone hemp bill."

"It was important to get the House language in the Farm Bill," said Polis. "Not only does it allow universities to do research that is needed, but it also symbolically moves forward with embracing the potential for industrial hemp production."

Polis said he was cheered by the Justice Department's policy directive when it came to hemp.

"They listed eight enforcement priorities, and industrial hemp isn't even on the enforcement radar," the Boulder congressman said. "We see no federal interest in going after states or hemp producers. The risk is minimal. But minimal isn't good enough for some folks, and that's why we want to continue to gather support for the Industrial Hemp Farming Act. You don't want to have to depend on a federal prosecutor or the attorney general not getting up on the wrong side of the bed in the morning."

Industrial hemp may be an afterthought for Justice Department policy setters, but the recent guidance has emboldened hemp advocates to push forward faster than ever. Getting hemp research approved in the Farm Bill would be a good first step; passing the Industrial Hemp Act would be even better. But it doesn't look like some states are going to wait for Congress to act.

Washington, DC
United States

Senate Holds Hearing on State Marijuana Legalization [FEATURE]

The Senate Judiciary Committee Tuesday afternoon held a hearing on marijuana legalization and conflicts between state and federal marijuana laws. Led by committee Chairman Sen. Patrick Leahy (D-VT), the hearing featured testimony from the deputy attorney general who has set Justice Department policy, two officials in states that have legalized marijuana and one critic of marijuana legalization.

The hearing marked the first time Congress has grappled with the issue of responding to state-level marijuana legalization and was notable for its emphasis on making legalization work in states where it is legal. It was also notable in that of all the senators present, only one, Sen. Charles Grassley (R-IA), bothered to dredge up the sort of anti-marijuana rhetoric that had in years and decades past been so typical on Capitol Hill.

"Marijuana is a dangerous and addictive drug," said Grassley, who turns 80 next week. "It's illegal under international law as well, and the treaty requires us to restrict its use to scientific and medical uses. These [legalization] laws flatly contradict our federal law. Some experts fear a Big Marijuana, a Starbucks of marijuana," he lamented.

Grassley's lonely stand reflects changing political realities around marijuana policy. The other senators who spoke up during the hearing -- Democrats Leahy, Richard Blumenthal of Connecticut, and Sheldon Whitehouse of Rhode Island -- all represent states where voters have already expressed support for medical marijuana and a region where support for outright legalization is high. They were all more interested in removing obstacles to a workable legalization than in turning back the clock.

"Last November, the people of Colorado and Washington voted to legalize marijuana, and these new laws are just the latest example of the growing tension between state and federal marijuana laws and the uncertainty about how such conflicts are resolved," Leahy said as he opened the hearing. "Marijuana use in this country is nothing new, but the way in which individual states deal with it continues to evolve. We all agree on the necessity of preventing distribution to minors, on preventing criminal enterprises from profiting, and on drugged driving. But I hope that there might also be agreement that we can't be satisfied with the status quo."

The first witness was Deputy Attorney General James Cole, author of last month's policy directive notifying state governments that the Justice Department would not seek to preempt their marijuana laws and instructing all federal prosecutors to leave legal marijuana alone -- with a number of exceptions. Sales to minors, the use of guns or violence, profiting by criminal groups, a marked increase in public health consequences like drugged driving, and distribution of marijuana into non-legal states are all among the factors that could excite a federal response, Cole's directive noted.

On Tuesday, Cole reiterated and went over the policy directive for senators, but the most striking part of his testimony was his admission that the federal government could not effectively put the genie back in the bottle.

"It would be very challenging to preempt decriminalization," Cole conceded in response to a question from Leahy. "We might have an easier time preempting the regulatory scheme, but then what do you have? Legal marijuana and no enforcement mechanism, which is probably not a good situation. You would also have money going to organized criminal enterprises instead of state coffers."

The three Democratic senators all prodded Cole and the Justice Department to do something about the legal marijuana (and medical marijuana) industry's problems with banks and financial services. Because of federal pressure, such institutions have refused to deal with marijuana, leaving those businesses drowning in cash. The senators also questioned reports that the DEA had been telling armored car companies not to do business with marijuana businesses.

"What about the banking industry?" asked Leahy. "A cash only business is a prescription for problems. We're hearing that DEA agents are instructing armored car companies to stop providing services to medical marijuana companies. It's almost as if they're saying 'let's see if we can have some robberies.' What is the department going to do to address those concerns?"

"The governors of Colorado and Washington raised this same issue," Cole acknowledged. "There is a public safety concern when businesses have a lot of cash sitting around; there are guns associated with that. We're talking with FinCEN and bank regulators to find ways to deal with this in accordance with laws on the books today."

"There should be specific guidance to the financial services industry," a not-quite-mollified Leahy replied.

The committee then heard from King County (Seattle), Washington, Sheriff John Urquhart. "The war on drugs has been a failure," the sheriff said bluntly. "We have not reduced demand, but instead incarcerated a generation of individuals. The citizens decided to try something new. We, the government, failed the people, and they decided to try something new."

Urquhart saw no great tension between the federal government and legal marijuana states, and he, too, brought up the issue of banking services.

"The reality is we do have complementary goals and values," Urquhart said. "We all agree we don't want our children using marijuana. We all agree we don't want impaired drivers. We all agree we don't want to continue enriching criminals. I am simply asking that the federal government allow banks to work with legitimate marijuana businesses who are licensed under this new state law."

The committee also heard from Kevin Sabet of Project SAM (Smart About Marijuana), the voice of 21st Century neo-prohibitionism.

"In states like Colorado," he said, "we've seen medical marijuana cards handed out like candy, we've seen mass advertising. At the marijuana festival in Seattle we saw 50,000 people smoking marijuana publicly; it's the public use of marijuana that worries me. I don't see the evidence of trying to implement something robust, especially in the face of an industry that will be pushing back against every single provision. In a country with a First Amendment and alcohol and tobacco industries that profit off addiction, I worry that, inevitably, American-style legalization is commercialization, no matter the interests of state officials and regulators."

But nobody except Grassley seemed to be listening.

Marijuana legalization advocates and drug law reformers liked what they heard Tuesday.

"It feels like there's a paradigm shift underway in the Justice Department's interpretation of federal drug control law," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "They seem to recognize that drug control should be first and foremost about protecting public health and safety, and that smart statewide regulatory systems of the sort that Colorado and Washington are proposing may advance those objectives better than knee-jerk enforcement of federal prohibitions."

"For years, the legalization movement has been gaining traction as people learn this is neither a fringe issue nor a partisan one, but one responsible for deep inequities in our justice system, the expansion of criminal gangs and the increase in unsolved violent crimes," said Law Enforcement Against Prohibition (LEAP) board member and former Denver cop Tony Ryan. "There's a long road ahead, and this hearing leaves many questions unanswered, but this historic discussion means we are on our way to a more rational and effective drug policy."

"The Department of Justice is finally taking seriously the dangers that a lack of access to simple banking services poses to consumers, employees and business owners," said Aaron Smith, director of the National Cannabis Industry Association. "We are encouraged that the growing consensus among essentially all stakeholders is that banking access must be available to legal businesses. It portends a quick reform to this dangerous and unnecessary situation."

"The era of robust state-based regulation is here," said Bill Piper, director of national affairs for the Drug Policy Alliance. "Legalizing marijuana and shrinking the number of people behind bars in the US is an issue the left and right can join together on. Like the repeal of alcohol prohibition, the repeal of marijuana prohibition will save taxpayer money, put organized crime syndicates out of business, and protect the safety of young people."

But at a time when marijuana prohibition remains the federal law of the land, perhaps former Seattle police chief and LEAP member Norm Stamper had the most down-to-earth take.

"While I would have liked to have seen a substantive change in policy, what we were really listening to in that hearing was the sound of a changing political climate," said Stamper. "People who can't agree on any other political issue are coming together over this one, and politicians on both sides of the aisle ignore that at their own peril."

Washington, DC
United States

Administration Gives States Okay on Marijuana Legalization [FEATURE]

Attorney General Eric Holder told the governors of Colorado and Washington Thursday that the Justice Department would not -- at least for now -- block their states from implementing regimes to tax, regulate, and sell marijuana. The message was sent during a joint phone call early Thursday afternoon.

The Justice Department will take a "trust but verify" approach, a department official said. The department said it reserved the right to challenge the state legalization laws with a preemption lawsuit at a later date if necessary.

The go-ahead from Holder to the states was accompanied by a memorandum from Deputy US Attorney General James Cole to federal prosecutors laying out Justice Department concerns and priorities. If marijuana is going to be sold, the memo said, it must be tightly regulated.

"The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests," the memo said. "A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice."

The memo listed a number of activities that could draw federal prosecutorial attention or result in a Justice Department reassessment, including sales to minors, profits going to criminal actors, diversion to pot prohibition states, marijuana sales as a cover for other drug sales, violence and the use of firearms, drugged driving and other "adverse public health consequences," and growing marijuana on public lands.

Attorney General Eric Holder (usdoj.gov)
That leaves some wiggle room for federal prosecutors, some of whom have shown a willingness to be quite aggressive in going after medical marijuana providers. But it also gives them a clear signal that legalization will, in general, be tolerated in states where voters have approved it.

In a first response from marijuana reform activists, Tom Angell of Marijuana Majority called the Justice Department's stance "a step in the right direction", but also blasted the administration for its aggressive enforcement activities against medical marijuana providers and warned that interpreting the new directive will be up to US attorneys.

"It's nice to hear that the Obama administration doesn't at this point intend to file a lawsuit to overturn the will of the voters in states that have opted to modernize their marijuana policies, but it remains to be seen how individual US attorneys will interpret the new guidance and whether they will continue their efforts to close down marijuana businesses that are operating in accordance with state law," Angell said.

"It's significant that US attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution, but the guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business," he continued.

Angell chided the administration for using cheap rhetoric about not busting pot smokers to obscure deeper issues of federal harassment of marijuana businesses.

"The administration's statement that it doesn't think busting individual users should be a priority remains meaningless, as it has never been a federal focus to go after people just for using small amounts of marijuana," he said. "The real question is whether the president will call off his federal agencies that have been on the attack and finally let legal marijuana businesses operate without harassment, or if he wants the DEA and prosecutors to keep intervening as they have throughout his presidency and thus continue forcing users to buy marijuana on the illegal market where much of the profits go to violent drug cartels and gangs."

The Marijuana Policy Project also reacted Thursday afternoon, saying it applauded the move.

"Today's announcement is a major and historic step toward ending marijuana prohibition. The Department of Justice's decision to allow implementation of the laws in Colorado and Washington is a clear signal that states are free to determine their own policies with respect to marijuana," said Dan Riffle, the group's director of federal policy.

"We applaud the Department of Justice and other federal agencies for its thoughtful approach and sensible decision," he added. "It is time for the federal government to start working with state officials to develop enforcement policies that respect state voters, as well as federal interests. The next step is for Congress to act. We need to fix our nation's broken marijuana laws and not just continue to work around them."

Washington, DC
United States

Senator Leahy Calls Judiciary Hearing on Federal Marijuana Policy [FEATURE]

US Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, announced Monday that he would hold a hearing next month on the Justice Department's response to marijuana legalization in Colorado and Washington and legal medical marijuana in 20 states and the District of Columbia. The hearing is set for September 10.

Patrick Leahy (senate.gov)
Leahy has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify before the committee and help clarify the conflicts between state and federal law, as well as the federal response. Cole is the author of the 2011 Cole memo giving federal prosecutors the green light to go after medical marijuana providers in states where it is not tightly regulated.

"It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal," Leahy said in a statement Monday. "I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government."

After Colorado and Washington legalized marijuana last November, Leahy sent a letter to the White House Office on National Drug Control Policy asking that the Obama administration make public its position on the matter. Although Holder said in February that a Justice Department response would be coming "relatively soon," it still hasn't appeared.

State officials in Colorado and Washington said last week that they thought the Justice Department had given them "tacit approval" to move forward with their plans to implement marijuana regulation, taxation, and legalization. Leahy, who has said he supports the efforts in those two states, would like to get something more definitive from the Justice Department.

In the meantime, while the feds are silent on how they will deal with legalization, federal prosecutors and the DEA have kept up the pressure on medical marijuana producers and distributors. Since the Cole memo came out two years ago, hundreds of dispensaries have been raided and hundreds more subjected to federal "threat letters." While actual prosecutions have been more rare, the result has been a reduction in access to medical marijuana for patients in areas where dispensaries have been forced out of business.

Leahy isn't the only one in Congress who is interested in federal marijuana policy. At least seven bills have been filed, most with bipartisan sponsorship, addressing federal marijuana policy. They range from bills to legalize hemp and marijuana to bills that would prevent the use of the IRS to crack down on medical marijuana dispensaries.

Holder won kudos from many drug reformers earlier this month when he announced his support for further sentencing reforms, but medical marijuana and marijuana legalization advocates were disappointed that he did not address the tension and contradictions between state and federal marijuana policies. Now, it appears that Leahy is going to force the issue, and marijuana reform advocates couldn't be more pleased.

"This is an important development for all sorts of reasons -- not least because the Senate has been so remarkably passive on marijuana issues even as twenty states have legalized medical marijuana and two have legalized it more broadly. I am delighted that Senator Leahy now seems ready to provide much needed leadership on this issue," said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"The ballot initiatives in Washington and Colorado made history not so much because they legalized possession of small amounts of marijuana but because they mandated that state governments regulate and tax what had previously been illicit markets," Nadelmann continued. "Ending marijuana prohibition not just in the states but also nationally is going to require the sort of leadership that Senator Leahy is now providing. Now is the time for his colleagues to stand up as well in defense of responsible state regulation of marijuana."

"Two states have made marijuana legal for adult use and are establishing regulated systems of production and distribution. Twenty states plus our nation's capital have made it legal for medical use. By failing to recognize the decisions of voters and legislators in those states, current federal law is undermining their ability to implement and enforce those laws," said Dan Riffle, director of federal policies for the Marijuana Policy Project.

"Marijuana prohibition's days are numbered, and everyone in Washington knows that," Riffle continued. "It's time for Congress to stop ignoring the issue and develop a policy that allows states to adopt the most efficient and effective marijuana laws possible. We need to put the 'reefer madness' policies of the 1930s behind us and adopt an evidence-based approach for the 21st Century."

"We're still waiting for the administration to announce its response to the marijuana legalization laws in Colorado and Washington, a policy that the attorney general has been saying is coming 'relatively soon' since December," said Tom Angell, head of Marijuana Majority. "If the administration is serious about using law enforcement resources in a smarter way, it should be a no-brainer to strongly direct federal prosecutors to respect the majority of voters by allowing these groundbreaking state laws to be implemented without interference."

It ought to be an interesting, and perhaps, historic hearing. It's two weeks away.

Washington, DC
United States

Florida Medical Marijuana Initiative Moving Forward [FEATURE]

Could Florida be the first state in the South to approve medical marijuana? A bill that would have done that was stymied this year in the legislature, but its proponents have vowed to continue the fight next year. And in the meantime, a move to put a constitutional amendment that would allow medical marijuana on the November 2014 ballot is moving forward.

Florida initiative organizers face an uphill battle. To make next year's ballot, petitioners must come up with some 683,419 valid voter signatures by February 1. Last week, the initiative campaign, known as United for Care, passed its first hurdle, turning in more than 110,000 signatures to trigger a state Supreme Court review of its language. Only 68,000 valid signatures were needed, but organizers wanted a nice cushion to ensure that they have the necessary numbers.

While awaiting the Supreme Court's imprimatur, the paid signature gathering campaign is on hold, although volunteer efforts continue. Once the high court gives its okay, phase two of the signature gathering will get underway, with more than a half million needing to be gathered. Organizers are looking to turn in signatures by the end of the year, ensuring they are verified in time for the February 1 deadline.

The state, the nation's fourth most populous with nearly 20 million people, is not an easy place to run an initiative. Needing hundreds of thousands of signatures means an extensive paid signature gathering campaign, as well as volunteers, and that's just to make the ballot. The state's multiple media markets mean it will take millions of dollars more in late advertising to ensure that the initiative actually passes come election day.

Circulating under the ballot title "Use of Marijuana for Certain Conditions," the initiative would allow for the medicinal use of marijuana for a list of specified conditions as well as "any other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient."

It would set up a system of state-regulated marijuana cultivation and distribution centers and would provide ID cards to patients and caregivers. But it would not allow patients or caregivers to grow their own.

At this stage of the game, advocates are certain they will succeed and are chomping at the bit.

"We are absolutely going to make the 2014 ballot," vowed Kim Russell, founder of People United for Medical Marijuana (PUFMM), which is running the United for Care campaign. "And we're very confident the Supreme Court will approve the wording."

Russell has some reason for her confidence. The initiative was written by Florida constitutional attorney John Mills, one of the state's foremost experts on initiatives, and a man who has written more than a dozen initiatives that have passed Supreme Court muster.

"We've got the best, and I'm sure this is going to be approved," said Russell.

A Florida initiative won't be cheap. Russell estimated that it would take between $2 ½ million and $5 million just to make the ballot, and another $5 million in advertising in the run-up to the 2014 election. But the campaign has had an early boost with the presence of John Morgan, a major Democratic Party fundraiser, who is now chairman of the campaign's political action committee.

In addition to paid signature gatherers, the campaign is relying on an extensive network of volunteers to make the ballot and it is working with existing activist groups.

The Florida Cannabis Action Network (FL CAN) has been concentrating its efforts on getting a medical marijuana bill through the legislature. Despite intense lobbying, it didn't happen this year. FL CAN remains committed to getting a bill through next year, but is also organizing volunteers to gather signatures for the initiative.

"Getting the Cathy Jordan Medical Marijuana Act passed is our Plan A," said FL CAN director Jodie James, "but the initiative is Plan B. The initiative has licensed dispensaries, but no personal cultivation, but we're still putting our energy behind the amendment. Florida CAN will do whatever we need to ensure that patients in this state don't have to be afraid. If we don't succeed in the legislature, we want to make sure we have enough signatures to get on the ballot in 2014."

Cathy Jordan is perhaps Florida's most well-known medical marijuana patient. The Parrish resident is a long-time sufferer of amyotrophic lateral sclerosis (ALS, commonly known as Lou Gehrig's Disease), and she and her husband have been lobbying for years to win the ability to legally use marijuana to treat her symptoms.

It is her name that adorned this year's thwarted medical marijuana bill, and it was a February raid on her residence by local law enforcement after she went public with her lobbying that helped focus outrage on the state's last-century approach to the healing herb.

"It's not exactly what we would have done, and it leaves some things to be desired, such as not being able to grow your own, but I have to give John Morgan credit," said Jordan's husband Bob. "He brought a lot of interest and money to it, and while we may be on different paths, we're going toward the same destination."

"We're working with him because we all want basically the same thing," said Cathy Jordan, her voice barely understandable due to the effects of her disease. "We think our bill is a better and faster fix because they can work all this stuff out. The legislature says the bill is too big, too bulky, but they need to do their job. But with the bill and the initiative, we're all heading for the same place."

But while they're looking to the legislature, the Jordans are also working to help the initiative.

"We were out getting signatures here in Bradenton this weekend," Bob Jordan related. "I ran into an Iraq and Afghanistan veteran who wants to use cannabis, but he can't. In states where it's legal, he could use it, but here, he's a criminal. This guy is ready to eat a bullet. This is definitely a vets' issue, too."

While both the Jordans and FL CAN grumbled about no personal cultivation, Russell said there was good reason not to include personal grows.

"We did a lot of polling before we wrote the initiative; we had to make sure this thing could not fail," she said. "We got 70% for medical marijuana, but when we asked about growing it, the approval rate dropped to 30%. If you're spending this much money, time, and effort, you can't take a chance on losing."

National reform groups are watching with interest.

"It's a daunting process down there, but it sounds like there is a lot of energy and potentially a lot of resources," said Tvert. "We hope they qualify, and we certainly hope they're successful. A whole lot of old people would find relief for their ailments."

Turning Florida medical marijuana green would be a big deal, Tvert said.

"It's the largest state in the South. If Florida passed this, the number of people living in medical marijuana states would increase dramatically. There is significant support for this initiative; we hope that support will be reflected in the months to come."

Pressure for medical marijuana has been building for years now, and it looks like 2014 is the year. Whether via the legislature or via the initiative process, Florida appears poised to join the ranks of the medical marijuana states.

FL
United States

Is There a Perfect Storm for Federal Sentencing Reform? [FEATURE]

After decades of ever-increasing resort to mass incarceration in the United States, we seem to be reaching the end of the line. Driven in large part by economic necessity, state prison populations have, in the past three years, begun to decline slightly. The federal prison system, however, continues to grow, but now, there are signs that even at the federal level, the winds of change are blowing, and the conditions are growing increasingly favorable for meaningful executive branch and congressional actions to reform draconian sentencing policies.

prison dorm
There are currently more than 100,000 people incarcerated in federal prisons for drug offenses, or nearly half (47%) of all federal prisoners. The federal prison population has expanded an incredible eight-fold since President Ronald Reagan and a compliant Congress put the drug war in overdrive three decades ago, although recent federal prison population increases have been driven as much by immigration prosecutions as by drug offenses.

Earlier this week, the Chronicle reported on Attorney General Holder's speech to the American Bar Association in San Francisco, where he announced a comprehensive federal sentencing reform package with a strong emphasis on drug sentencing, especially a backing away from the routine use of mandatory minimum sentencing via charging decisions by federal prosecutors.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder said Monday. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it. Too many Americans go to too many prisons for far too long and for no good law enforcement reason. We cannot simply prosecute or incarcerate our way to becoming a safer nation."

On drug sentencing, Holder said he would direct US attorneys across the country to develop specific guidelines about when to file federal charges in drug offenses. The heaviest charges should be reserved for serious, high-level, or violent offenders, the attorney general said.

But while Holder outlined actions that can be taken by the executive branch, he also signaled administration support for two pieces of bipartisan sentencing reform legislation moving in the Senate. Those two bills, the Justice Safety Valve Act (S. 619), introduced in the spring, and the Smarter Sentencing Act (S. 1410), introduced just last week, have better prospects of moving forward now than anything since the Fair Sentencing Act passed three years ago. .

Pat Leahy
That's because it's not just Democrats or liberals who are supporting them. The Justice Safety Valve Act, sponsored by Sens. Rand Paul (R-KY) and Patrick Leahy (D-VT), has not only the usual suspects behind it, but also The New York Times, conservative taxpayer advocate Grover Norquist, and a group of 50 former prosecutors. And, somewhat surprisingly, that bane of liberals, the American Legislative Exchange Council (ALEC), just came out in with model legislation mirroring the act's provisions.The Justice Safety Valve Act would allow federal judges to sentence nonviolent offenders below the federal mandatory minimum sentence if a lower sentence is warranted.

The other bill, the Smarter Sentencing Act, also has bipartisan support and was sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT). It would reduce some federal mandatory minimum sentences, make a modest expansion to the safety valve provision (though continuing to exclude anyone previously incarcerated in prison for more than 13 months in the past 10 years), and make the 2010 Fair Sentencing Act applicable to persons sentenced before its enactment, which would reduce sentences for people convicted of crack cocaine offenses.

The Justice Safety Valve Act has companion legislation in the House, again bipartisan, sponsored by Reps. Bobby Scott (D-VA) and Thomas Massie (R-KY). And another House bill, the Public Safety Enhancement Act (H.R. 2656), cosponsored by Scott and Rep. Jason Chaffetz (R-UT), would allow certain federal prisoners to be transferred from prison to community supervision earlier if they take rehabilitation classes, thus saving taxpayer money while improving public safety.

Only bolstering the case for further sentencing reform is the US Sentencing Commission's preliminary report on crack retroactive sentencing data, released late last month. That report found that some 7,300 federal crack defendants received an average 29-month reduction in their sentences, saving roughly half a billion dollars in imprisonment costs without an concomitant increase in crime rates.

"Taxpayers have received the same level of crime control but for a half- billion dollars cheaper," noted Families Against Mandatory Minimums (FAMM). "What’s not to love?"

Given the passage of the Fair Sentencing Act three years ago with conservative support, the proven budgetary benefits of reducing incarceration, and the current role of conservatives in pushing for reform, the chances are better than ever that something could pass this year, and even if it doesn't, the changes announced by Holder should ensure that at least some federal drug defendants will get some relief, observers said.

"The policies Holder described in his speech will probably help produce reduced drug sentences in some cases," said Marc Mauer, executive director of the Sentencing Project. "But it is also important in a symbolic sense. The fact that the attorney general is leading this conversation may help to open up the political space where we can have a different discussion about crime policy. The discussion has been evolving significantly over recent years, and in some ways, his speech represents an affirmation that the climate has shifted, and that there is commitment from the top to moving forward on sentencing reform."

Rand Paul
"I think we're at a moment when bipartisan sentencing reform is possible," said Bill Piper, national affairs director for the Drug Policy Alliance. "We've got those bipartisan bills in Congress, we have that ALEC endorsement, we have Holder's speech, and more."

"Given how little bipartisan cooperation there is on anything, it's remarkable that we have two bills in the Senate addressing mandatory minimums," Mauer noted. "This bipartisan cosponsorship is very intriguing, and is contributing to the momentum. There has been no significant backlash to Holder's speech, and that suggest a pretty broad recognition that the time has come to move in this direction."

Not every reformer was as sanguine as Mauer. In California, marijuana reformers and industry players, many of whom have borne the brunt of a federal crackdown, were offended that Holder would give a speech in San Francisco and not address their issue. Harborside's Steve DeAngelo posted the following statement in reaction: "Eric Holder's speech advocating drug war changes rings hollow to those of in states that have already passed reform legislation, only to see it relentlessly attacked by Mr. Holder's very own US Attorneys," DeAngelo said. "We had hoped the Attorney General would clarify federal policy toward state cannabis laws, as he promised to do almost a year ago. But instead of concrete action to support state reform efforts, Holder offered more vague promises about future changes in federal policy."

Conversely, it wasn't just reformers seeing possible changes on the horizon.

"It is impressive that Holder has decided to stay with a lame duck president and emphasize this issue," said Phil Stinson, professor of criminal justice at Bowling Green University. "I think there is a consensus forming for reform, and I would not have thought that possible two years ago. If something is going to happen, I expect it to happen within the next 18 months."

Stinson made a telling, if seldom mentioned, point.

"This is largely driven by economics," he said, "but also by the fact that by now, almost everybody knows a family member or friend or friend's child who has been behind bars. It has taken awhile to get to this point, but now the issue is ripe, and the opportunity is there."

"It looks like there is a real opportunity in Congress," Piper argued. "The general consensus is that there are too many people in prison and too many tax dollars wasted. Even some of the most conservative offices we talk to want to talk about sentencing reform. Something is possible, even though this is Congress and the Obama administration we're talking about. The stars are aligning, but it will take a lot of work to get it done. There seems to be something real happening with sentencing reform based on the number of Republicans starting to talk about it, and I'm certainly more optimistic than I was a year ago."

"While things are moving in the Senate, the House is more difficult to predict," said Mauer. "But even if something does get through, the scale of the problem of mass incarceration is going to require a wholesale shift in approach and policy. The current proposals are steps in that direction, but it will require a much more substantial shift if we are to see significant reductions."

Or, as Nora Callahan of the November Coalition has long argued, reforms on the back end -- sentencing -- will have limited impact on people sent to prison for drug offenses, absent change on the front end -- ending drug prohibition and prohibition-driven policing.

Whether a perfect storm for sentencing reform is brewing remains to be scene, but there are winds blowing from unusual directions. The collision of Democratic social justice liberalism and Republican fiscal conservatism and libertarianism could on this occasion produce, if not a perfect storm, at least the first rumblings of a political earthquake.

[See our related story this issue, "As Pressure Mounts, Holder Acts on Sentencing Reform."]

Washington, DC
United States

As Pressure Mounts, Holder Acts on Sentencing Reform [FEATURE]

US Attorney General Eric Holder announced Monday a comprehensive federal sentencing reform package with a strong emphasis on drug sentencing. He said he will direct US Attorneys that low-level, nonviolent drug offenders not tied to gangs or major trafficking organizations should not be charged in ways that trigger lengthy mandatory minimum sentences.

Attorney General Eric Holder (usjoj.gov)
Holder's announcement is only the latest indicator that -- after decades of "tough on crime" politics in Washington -- pressure is mounting to do something about the huge number of people in federal prisons. The Chronicle will be reporting on the rising calls for reform in both the executive branch and the Congress later this week.

In a major speech to the American Bar Association in San Francisco Monday morning, Holder laid out Obama administration sentencing reform plans, some of which can be implemented by executive action, but some of which will require action in the Congress. The comprehensive sentencing reform package is designed to reduce the federal prison population not only through sentencing reforms, but also through alternatives to incarceration in the first place.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder said. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it. Too many Americans go to too many prisons for far too long and for no good law enforcement reason. We cannot simply prosecute or incarcerate our way to becoming a safer nation."

On drug sentencing, Holder said he would direct US attorneys across the country to develop specific guidelines about when to file federal charges in drug offenses. The heaviest charges should be reserved for serious, high-level, or violent offenders, the attorney general said.

There are currently more than 100,000 people incarcerated in federal prisons for drug offenses, or nearly half (47%) of all federal prisoners. The federal prison population has expanded an incredible eight-fold since President Ronald Reagan and a compliant Congress put the drug war in overdrive three decades ago, although recent federal prison population increases have been driven as much by immigration prosecutions as by drug offenses.

"It's time -- in fact, it's well past time -- to address persistent needs and unwarranted disparities by considering a fundamentally new approach," Holder told the assembled attorneys. "While I have the utmost faith in -- and dedication to -- America's legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time -- and our duty -- to identify those areas we can improve in order to better advance the cause of justice for all Americans."

One of those areas, Holder said, is mandatory minimum sentencing.

"We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences -- regardless of the individual conduct at issue in a particular case -- reduce the discretion available to prosecutors, judges, and juries," said the former federal prosecutor. "Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They -- and some of the enforcement priorities we have set -- have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive."

In addition to reducing the resort to mandatory minimum sentencing and directing prosecutors to use their discretion in charging decisions, Holder will also order the Justice Department to expand the federal prison compassionate release program to include "elderly inmates who did not commit violent crimes and who have served significant portions of their sentences."

Beside the executive branch actions, Holder also committed the Obama administration to supporting sentencing reform legislation currently pending before Congress, specifically the Justice Safety Valve Act (Senate Bill 619), which would give federal judges the ability to sentence below mandatory minimums when circumstances warrant, and the the Smart Sentencing Act (Senate Bill 1410), which would reduce mandatory minimums for drug crimes, slightly expand the existing drug sentencing safety valve, and apply retroactively the Fair Sentencing Act of 2010's reduction in the crack-powder cocaine sentencing disparity.

"Such legislation will ultimately save our country billions of dollars," Holder said. "Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable."

Sentencing and drug reform advocates welcomed Holder's speech and the Obama administration's embrace of the need for criminal justice reforms, but also scolded the administration and lawmakers for taking so long to address the issue and for timidity in the changes proposed.

"For the past 40 years, the Department of Justice, under both political parties, has promoted mandatory minimum sentencing like a one-way ratchet. Federal prison sentences got longer and longer and no one stopped to consider the costs and benefits," said Julie Stewart, founder and head of Families Against Mandatory Minimums (FAMM). "Today, at long last, the politics of criminal sentencing have caught up to the evidence. The changes proposed by the Attorney General are modest but they will make us safer and save taxpayers billions of dollars in the process."

"There's no good reason, of course, why the Obama administration couldn't have done something like this during his first term -- and tens, perhaps hundreds, of thousands of Americans have suffered unjustly as a result of their delay," said Drug Policy Alliance executive director Ethan Nadelmann in a message to supporters. "But that said, President Obama and Attorney General Holder deserve credit for stepping out now, and for doing so in a fairly decisive way."

[See our related story this issue, "Is There a Perfect Storm for Federal Sentencing Reform?"]

San Francisco, CA
United States

Serial Offender: Miami Fed. Prosecutor Called on Misconduct in Drug Cases [FEATURE]

special to Drug War Chronicle by Houston-based investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

Part 6 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

There is something rotten in Miami. A federal prosecutor there, Assistant US Attorney Andrea Hoffman, seems to have problems staying within the bounds of the law as she attempts to prosecute major drug cases. As a result, cases are coming undone, and some Colombians are going home, some who likely were innocent. And Hoffman's pattern of prosecutorial misconduct has so far come without serious professional consequences.

2011 press conference in Bogota announcing the 56 indictments (presidencia.gov.co)
On September 2, 2011, US Attorney for the Southern District of Florida in Miami Wilfredo Ferrer announced the arrest of 56 Colombians in a trio of separate foreign investigations -- Operation Seven Trumpets, Operation Under the Sea, and Operation BACRIM (Bandas Criminales). In what was one of America's biggest drug busts, authorities also seized 21 airplanes, 12 submarines, millions of dollars in cash, and more than 20 tons of cocaine and heroin.

"Together with our law enforcement partners in Colombia, we have developed a proactive strategy to combat the rise of narco-trafficking operations to eliminate the threat they pose to the security of the international community," Ferrer crowed at a press conference with Colombia President Santos and Prosecutor General Viviane Morales in Bogota that day.

But what appeared to a slam-dunk case validating America's never-ending war on drugs soon went sideways, and Hoffman was there. Two Colombian nationals arrested in the case, John Winer and Jose Buitrago, who were looking at life in prison without parole, are now free men after federal District Court Judge Marcia Cooke ruled earlier this year that Hoffman deliberately withheld key evidence from the defense, undermining the defendants' rights to a fair trial.

And that's just for starters.

Winer and Buitrago

On May 21, a jury had already been seated to hear the case against Winer, represented by attorney Jose Quinon, and Buitrago when the latter's defense attorneys, Kashap Patel and Helen Batoff, got DEA agents and a Colombian narcotics officer to acknowledge they knew the DEA was making monthly payments to "vetted units" of the Colombian narcotics police -- and that prosecutor Hoffman also knew about those payments.

"Vetted units" are elite anti-drug squads whose members have passed muster as not being corrupt, and are often used by the DEA and other agencies in their overseas investigations. These units are required to file monthly reports on their activities in order to justify incurred expenses paid for by the DEA as part of US foreign assistance to Colombia to wage the drug war.

Hoffman denied any previous knowledge of the payments to the vetted units.

But on the stand that day, Colombian police officer Pacheco blew up Hoffman's denials about the DEA payments. Pacheco said the matter about the money was discussed between him, Hoffman, and DEA agent Guillermo Turke upon arriving in Miami from Bogota on Sunday, May 14th.

Attorneys Patel and Batoff had already been tipped-off about the use of the vetted units in the case against their clients, and prosecutors acknowledged as much, but refused to disclose information about their role in the case unless the defense attorneys could prove they were entitled to it.

Under the Brady rule, the government is required to turn over exculpatory evidence or material information in the government's possession that could be favorable to a defendant.

"The defense sent a written request to get the documents from Hoffman and her co-counsel, Cynthia Wood, on April 3, 2013," Patel told Judge Cooke. Receiving no reply from Hoffman,  defense attorneys re-sent the letter and, on May 1, received a reply from Hoffman's office acknowledging that the payment information existed, but demanding that the defense explain how it was entitled to that information.

"Tell me why it's Brady material, or under what theory you are entitled to it," prosecutor Christina Maxwell responded.

"The DEA payments to Colombian officers were disclosable to the defense without them having to file a Brady motion to get them," harrumphed Washington, DC, criminal defense attorney Stephan Leckar in an interview with the Chronicle.

US District Court Judge Marcia Cooke didn't let Hoffman get away with misconduct. (stu.edu)
Judge Cooke suspended the trial to hold a hearing on the matter, and things only got worse for Hoffman. Cook and the defense attorneys grilled a bevy of DEA agents, and they testified that Hoffman had known about the payments at an earlier date.

Bogota DEA Special Agent Guillermo Turke reiterated Pacheco's testimony that the "payments were specifically discussed with Hoffman on May 19th".

Miami DEA Corrine Martin told the frustrated judge "after all of the court motions, we spoke with DEA Special Agent Ed Reed about the payments and we also let Ms. Hoffman know."

Replying to a question from Judge Cook, Miami DEA Special Agent Mike Torbert concurred.

"I discovered there was a $200 operational expense given to SIU (special investigation units)," he told the court. "I passed the information to Ms. Hoffman."

Although her office had responded to defense letters about the payments on May 1, acknowledging they had occurred, Hoffman insisted to Judge Cooke that she had first found out about them on May 20, on the eve of the trial. But when Cooke pressed, Hoffman revised.

"Your honor, I found out about the payments at noon on May 21," she then replied.

But after hearing the defense evidence that Hoffman in fact knew about the money paid to the Colombian sources before the trial started, Judge Cooke accused Hoffman of prosecutorial misconduct, or intentionally engaging in inappropriate or illegal behavior by withholding evidence or knowing permitting false testimony and tampering with witnesses. Hoffman had violated the Brady rule by not automatically turning over materially important evidence to the defense prior to trial and when the trial started.

Had defense attorneys been given the information by Hoffman about the DEA payoffs, the wiretaps in the Winer-Buitrago case could have been challenged and used to impeach witnesses, the attorneys argued.  "The scope of the defense would've been different," Patel explained to the judge.

Hoffman apologized to the court, blaming her misconduct on miscommunications due to language barriers, but Judge Cooke wasn't buying it.

"I think the US government was aware of Colombian police officers receiving payments and did not disclose it to the defense," an angry Cooke replied. "The prosecutor was ethically and legally bound to turn the information over. This does not make sense to me. This is all you do. Answer this:  Why does the government get a pass?"

Defense attorneys moved to have the case dismissed because of Hoffman's misbehavior.

"The government's conduct deprived the defendants of their constitutional rights to due process," the attorneys wrote. "Such flagrant disregard for the rule of law and brazen dishonesty to the court and to opposing counsel should 'shock' the court's conscience."

Judge Cooke denied the motion to dismiss but a deal was struck. Winer and Buitrago both pleaded guilty to a lesser charge of conspiracy to transport cocaine and were sentenced to 36 months, with credit for the two years they had already been behind bars pending trial. Both men were subsequently released from custody.

Winer and Buitrago and the Practice of Information Buying and Selling

The little matter of the Brady rule violation in the area of the vetted units wasn't Hoffman's only problem in the Winer-Buitrago case. Defense attorneys also accused her of failing to disclose a letter indicating that another Colombian, Daniel Bustos, who was facing years in prison on a cocaine conspiracy charge, had paid money to another drug defendant, Fabian Cruz, so that Cruz would use his informant connection with prosecutors or outsiders to obtain "inside information" about evidence in the Winer-Buitrago case and feed it to Bustos. Then, Bustos and other defendants could use that information to testify falsely for the prosecution against the Operation Seven defendants in exchange for leniency.

But Assistant US Attorney Hoffman rejected a defense request to obtain the whistleblower letter exposing the dealings between Bustos and Cruz. In the courtroom, Hoffman confirmed that the letter existed, and Judge Cooke gruffly ordered her to produce it for the defense, again citing the Brady rule. At the time, Bustos and Cruz were already on the prosecutors' witness list.

This underground scheme is called "buying and selling" evidence (fake or real) for a defendant to get on the bus with the Feds and ride all the way home to freedom. In a December 2012 story in USA Today, reporter Brad Heath exposed the inner workings of the practice, illustrating how prisoners game the system by buying and selling evidence against other defendants with pending drug cases, then using that bought information to testify for the prosecution in exchange for sentence cuts and early freedom.

That report found that "one out of eight" federal drug convicts had their sentences reduced for helping prosecutors. Similarly, the Houston Chronicle reported that federal judges last year "resentenced 1,738 inmates nationwide after they provided substantial assistance" to investigators and prosecutors.

The corrupt scheme works like this: An inmate with outside connections (or already an informant) will have relatives and friends collect information on the street about a drug dealer's operation, or have operatives to dig up additional information about a dealer awaiting trial. Then the inmate will sell the collected information to prisoners who have money but are short on facts or criminal contacts to cooperate with the government on their own.

Daniel Bustos was hoping to lessen his sentence by paying Cruz to get information on Winer and Buitrago and then using that information to testify against them. And Hoffman was prepared to let him until defense attorneys blew the whistle.

Hoffman has not been officially sanctioned by the court for her misconduct in the Winer-Buitrago case. A court worker told the Chronicle recently that while the matter was under consideration, no ruling had been issued, and Hoffman was still assigned to Cooke's courtroom.

A Miami public affairs spokesman for US Attorney's Office for Florida Southern District declined to comment.

That's not the end of the trouble in Miami. Operation Seven Trumpets and its prosecutors have taken more hits, with other Colombians who had been indicted in the operation and extradited to the US being released and sent home after the charges turned out to have been unfounded.

Carlos Ortega Bonilla

Carlos Ortega Bonilla hugs his son as he is released. (seitleslaw.com)
Carlos Ortega Bonilla and William "Willy" Gil-Perenguez, both Colombian nationals, were arrested and extradited to the US as part of operations Seven Trumpets and BANCRIM. Both were thrown into the Miami Federal Detention Center to await trial on cocaine charges, and both faced up to life in prison if convicted.

Ortega Bonilla, the former head of Colombia's Flight Security (the equivalent to the Federal Aviation Administration), was enjoying his retirement in Bogota when agents armed with paramilitary-style weapons swarmed his home and arrested him.

"You have been indicted for supplying airplanes to traffickers to ship tons of cocaine to other Latin countries and the US," one of the drug agents told him. The agent explained that Ortega Bonilla's voice had been heard on wiretaps selling planes to drug dealers, in particular one Alvaro Suarez, a veteran trafficker who had once worked as a pilot for legendary Medellin Cartel capo Pablo Escobar.

Protesting his innocence all the while, Ortega Bonilla was imprisoned in Bogota while he unsuccessfully fought extradition to the US. He was eventually transferred to Miami, where he languished in jail as he sought to prove his innocence, but that was an extremely hard sell for Assistant US Attorney Hoffman.

"I never worked harder in my life," Miami criminal defense attorney Mark Seitles told the Daily Business Review about his attempts to convince Hoffman to drop the charges.

Seitles immediately hired Ed Kacerosky as an investigator. Kacerosky is a highly decorated former US Customs Agent credited with helping the Feds dismantle the infamous Cali Cartel. Ironically as an agent, Kacerosky had worked closely on previous major drug cases with Hoffman.

Authorities targeted Ortega Bonilla, tapping his phone, but failed to provide evidence that any airplanes he sold were linked to drug trafficking. The key to his freedom would lie in the wiretaps.

"Kacerosky realized after hearing the wiretaps that there was a gross misidentification, and they indicted my client Ortega for acts of another guy named Carlos," Seitles explained.

At an August 14, 2012, hearing in the courtroom of Judge Cooke, Seitles explained that his client had been wrongfully indicted on drug crimes and that his own investigation discovered irrefutable evidence the feds had misidentified his client's voice on the wiretaps.

As a plane broker, Ortega Bonilla sold or leased aircraft, and someone had convinced the feds that he was dirty. But they were wrong.

"Ortega Bonilla's voice was on the wiretaps in one plane deal where he determined that the men who sought the aircraft were drug dealers," Seitles explained. "And he refused to do the deal. No plane was ever sold and emails sent by Ortega Bonilla to the men showed he refused to do business with drug traffickers. There are even recorded calls with Ortega Bonilla attempting to contact the FBI to tell them about this. And the affidavit in support of extraditing Mr. Ortega Bonilla mentioned seven planes and no mention of that airplane, which was an E-90."

The seven planes in question actually belonged to another Carlos, Honduran drug dealer Carlos Litona, Seitles explained.

But Hoffman was having none of it. She argued to Judge Cooke that she had a witness, a co-defendant willing to testify that Carlos Ortega Bonilla was the right guy. Seitles countered in a separate hearing, putting Kacerosky on the stand with the wiretap tapes to explain how he had uncovered evidence that the feds had fingered the wrong man.

"The real guy is Carlos Litona," Kacerosky told the judge.

Without calling her secret witness, Hoffman dropped the charges on August 31.

When Ortega's family arrived at the airport in the Colombian capitol, hundreds of supporters surrounded them, hugging him with teary eyes and wishing him well. But his problems aren't over.

"Ortega Bonilla's US visa has been revoked, and he's having a hard time accepting that he was in custody for a crime he did not commit," Seitles told the Chronicle.

Ortega Bonilla has hired a Colombian attorney to file a lawsuit there and is currently searching for legal representation in the US to file a lawsuit here.

William "Willy" Gil-Perenguez

In June 2006, DEA and Colombian National Police jointly investigated a widespread conspiracy among multiple defendants importing cocaine and heroin on cargo planes traveling from Colombia and landing at Miami International Airport. DEA picked up the name of a cargo worker named "Willy" who supposedly was part of the conspiracy. An informant even identified "Willy" 's voice on wiretaps.

Willy Gil-Perenguez was living the good life at the time in Cali. He had a beloved girlfriend and a decent job, working for the Girag cargo air freight company. But in June 2007, his good life came to a screeching halt, when Colombian drug agents arrested him, believing he was the "Willy" overheard on the drug investigation wiretaps.

He was taken to a DEA office in Colombia, where agents threatened him, telling him to cooperate with them or they could make a phone call and have him sent to prison for 30 years. Gil-Perenguez maintained his innocence, saying he had no idea what they were talking about. In September 2008, he was extradited to Miami to face assorted drug charges that potentially carried a maximum penalty of life in prison.

Facing the wrath and the resources of the US government, Gil-Perenguez caught a lucky break while sitting at the Miami Federal Detention Center awaiting trial. He encountered another detainee, Neixi Garcia Lamela, a major target of Operation Seven Trumpets, who had agreed to cooperate with the feds. But he had bombshell news for Gil-Perenguez.

"DEA agents and Hoffman tried to pressure me to implicate you but I refused, because I knew I would be fabricating testimony to implicate an innocent person," Garcia Lamela told Gil-Perenguez, according to a lawsuit he later filed.

Gil-Perenguez immediately contacted his attorney, Luis Guerra. Guerra relayed to Hoffman the information about Garcia Lamela's admission that his client was innocent.

"I went to Hoffman and said, 'You have the wrong guy. My guy is innocent,'" Guerra told Law.com. "She said she had other witnesses. Turns out the witnesses never existed," Guerra recounted.

After serving 19 months behind bars, which included one year in Colombia's Combita lockup, a place described by human rights activists as one of the most oppressive and notorious prisons in the world, US District Judge Donald Graham freed Gil-Perenguez in February 2009, finding that his voice had been wrongfully identified on the wiretaps.

Gil-Perenguez returned to Colombia wearing a "bad jacket." His fellow countrymen think he snitched on others to be released so early. He filed a $10 million wrongful arrest lawsuit against the US government, charging that he had been left jobless and in pain and suffering. But the US 11th Circuit Court of Appeals threw out the lawsuit, ruling that the US lacked jurisdiction and that it couldn't be sanctioned for "any claims arising in a foreign country."

"Our country is not supposed to be making these kinds of mistakes," Florida attorney Richard Diaz, who represented Gil-Perenguez  in the civil suit, told Law.com.

Hoffman and her colleagues have managed to win some convictions in these high-profile drug conspiracy cases, and given her hardball attitude and willingness to skirt -- if not cross over completely -- the bounds of prosecutorial misconduct, that comes as no surprise. But other Colombian defendants continue to be exonerated, with two more of them, Luis Alfonso Rubiano Ramos and Jose Norberto Mejia Cortez having their cases dismissed and going home in June.

Dr. Ali Shaygan

Dr. Ali Shaygan has nothing to do with Colombian drug trafficking conspiracies, but his case is yet another example of Hoffman's prosecutorial overreach. As previously reported in the Chronicle, Shaygan was charged with overprescribing narcotics as part of the federal government's campaign against prescription drug abuse, but later acquitted.

After his acquittal, Shaygan won a $600,000 judgment against Hoffman and another federal prosecutor, with the judge in the case finding their conduct in attempting to influence witnesses and deny potentially exculpatory evidence to the defense so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute."

That judgment was overturned by the 11th US Circuit Court of Appeals. Shaygan and his supporters sought review at the US Supreme Court, but were turned down. In the meantime, Hoffman is still on the job in Miami and, if her work on the big drug investigations is any indication, still bumping up against the rules without serious professional consequence. Prosecutorial misconduct still seems to be a bridge too far for the American criminal justice system to address.

Miami, FL
United States

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