After passage of the 2018 federal farm bill legalized hemp production, states scrambled to pass their own laws legalizing hemp and CBD. But in doing so, they may have inadvertently signed a death warrant for the enforcement of marijuana prohibition.
hemp field at sunrise (votehemp.org)
Forty-seven states have now legalized hemp, but only 11 have legalized marijuana. The other 36 may be in for a refresher course in the law of unintended consequences.
Hemp and recreational marijuana both come from the same plant species, cannabis sativa. The only thing that differentiates hemp and marijuana are the levels of the intoxicating cannabinoid, THC. Under federal law and most state laws, hemp is defined as cannabis sativa containing less than 0.3% THC. In those states that have yet to legalize marijuana, hemp is thus legal, but THC-bearing weed is not.
But what police and prosecutors in those states are finding is that they can't tell the difference between the two. Their field drug tests can detect cannabis sativa, but they can't detect THC levels. Likewise, police drug dogs can sniff out cannabis, but can't distinguish between hemp and marijuana.
And if they can't prove the substance in question is illegal marijuana and not legal hemp, they don't have a case. Some state crime labs can test for THC levels, but those labs are busy, the tests are costly, and even police and prosecutors are questioning whether it's worth tying up resources to try to nail someone for possessing a joint or two.
In Ohio, after the Bureau of Criminal Investigation (BCI) analyzed the state's new hemp law, it sent an August 1 advisory to prosecutors warning that traditional tests could not differentiate between hemp and marijuana and that the agency was months away from "validating instrumental methods to meet this new legal requirement."
In the meantime, the BCI suggested, prosecutors could turn to private, accredited laboratories, but it also recommended that they "suspend any identification" by traditional tests and not prosecute "any cannabis-related items […] prior to the crime laboratory you work with being capable to perform the necessary quantitative analysis."
That prompted Columbus City Attorney Zach Klein to announce a week later that he will no longer prosecute misdemeanor marijuana possession cases and that he was dropping all current and pending cases, too.
"The prosecution of marijuana possession charges would require drug testing that distinguishes hemp from marijuana," Klein said in a written statement. "Without this drug-testing capability, the city attorney's office is not able to prove misdemeanor marijuana possession beyond a reasonable doubt" because "our current drug-testing technology is not able to differentiate."
The prosecutor in surrounding Franklin County, Ron O'Brien, who would handle felony pot possession cases, said his office would probably put those cases on hold unless they involved very large quantities. That's because even though there are labs in the state capable of measuring THC levels, they still have to be accredited to do so, a bureaucratic procedure that could take months, with a backlog of marijuana cases accumulating in the meantime.
And those tests cost money. That's why state Attorney General Dave Yost (R) announced in mid-August that the state was creating a special grant program to help local police agencies pay for testing that can differentiate between hemp and marijuana. It allocates $50,000 to help with testing until state-budgeted funding to upgrade state crime labs kicks in next year.
"Just because the law changed, it doesn't mean the bad guys get a 'get of out of jail free' card," Yost said. "We are equipping law enforcement with the resources to do their jobs."
He also took a pot shot at Columbus City Attorney Klein, saying: "It's unfortunate that Columbus has decided to create an island within Franklin County where the general laws of the state of Ohio no longer apply."
For now, though, it seems like "the general laws of the state of Ohio no longer apply" just about everywhere in the state when it comes to prosecuting marijuana cases.
In Texas, prosecutors have already dropped hundreds of low-level marijuana cases and said they won't pursue more without further testing. Again, it's that inability of standard tests to tell the difference between hemp and marijuana.
"The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency -- a category which apparently excludes most, if not all, of the crime labs in Texas right now," read a July advisoryfrom the Texas District and County Attorneys Association.
Since then, top prosecutors from across the state and across the political spectrum, including those in Bexar (San Antonio), Harris (Houston), Tarrant (Ft. Worth), and Travis (Austin), have dismissed hundreds of cases and are refusing more.
"In order to follow the Law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions… will not accept criminal charges for Misdemeanor Possession of Marijuana (4 oz. and under) without a lab test result proving that the evidence seized has a THC concentration over 0.3%," wrote the district attorneys from Harris, Fort Bend, Bexar and Nueces counties in a new joint policy released in August.
Travis County officials said they had dropped 32 felony and 61 misdemeanor marijuana cases and they wouldn't be doing any more -- at least for now.
"I will also be informing the law enforcement agencies by letter not to file marijuana or THC felony cases without consulting with the DA's Office first to determine whether the necessary lab testing can be obtained," Travis County District Attorney Margaret Moore said in a statement.
As in Ohio, law enforcement is awaiting the availability of certified testing labs, but in the meantime, pot prosecutions are basically non-existent in most of the state's largest cities. And now, some Austin city council members are even wondering whether cops there should bother to hand out tickets for pot possession.
It's not just Texas and Ohio. Once Florida's hemp law went into effect, the Miami-Dade State Attorney's office announced it would no longer prosecute small-time marijuana cases and police in numerous southwest Florida towns and cities are also putting marijuana arrests on pause.
"Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis -- or its odor alone -- will no longer be sufficient to establish probable cause to believe that the substance is cannabis," wrote Miami-Dade State Attorney Katherine Fernandez Rundle. "Since every marijuana case will now require an expert and necessitate a significant expenditure by the State of Florida, barring exceptional circumstances on a particular case, we will not be prosecuting misdemeanor marijuana possession cases."
Other state attorneys across the state are issuing similar memos. In Gainesville, prosecutors are dropping all cannabis charges. But other prosecutors say they will continue to review each case individually, with some like Tallahassee saying they will try "a variety of arguments" before the courts, while other places like Orlando and the Treasure Coast say they will wait until after they receive lab tests before filing charges.
Just across the state line in Georgia, similar scenes are playing out. Gwinnett County Solicitor General Brian Whiteside has begun dropping marijuana cases brought forward since that state's hemp law went into effect, and the Gwinnett County Police Department is now writing tickets for pot possession instead of making arrests.
In Cobb County, Solicitor General Barry Morgan warned there would be no "blanket dismissal" of marijuana cases, but the police chief there sent a memo to his staff saying that "arresting someone for misdemeanor marijuana possession is not recommended."
In Athens-Clarke County, police have been instructed to stop making arrests or issuing citations. Instead, they will seize the substance in question and write a report. Once testing is available and the THC level is above legal limits, they will then seek an arrest warrant. And DeKalb County is dismissing marijuana cases too, with Solicitor General Donna Coleman saying the county "will not proceed with any single-count marijuana cases occurring after the passage of this new law."
It's not just marijuana arrests and prosecutions that are at stake. Neither police nor drug dogs can sniff out the difference between hemp and marijuana. That is going to make it more difficult for police to develop probable cause to search people or vehicles, and it's likely to lead to early retirement of a generation of drug dogs.
"The dogs are done," said State Attorney Jeff Siegmeister of Florida's Third Judicial District. "If they're pot-trained, I don't know how we can ever recertify them. Unless they're trained in the future in a different way, in my area, every dog is going to be retired."
"The dog doesn't put up one finger and say, 'cocaine,' two fingers and say, 'heroin,' and three fingers and say, 'marijuana'," admitted Florida Sheriff's Association President Bob Gaultieri. "We had a very, very hard bright line up until this point that if a cop walks up to a car and you smell marijuana, well no matter what it was, any amount of THC is illegal, so if you smelled it, that gave you probable cause... Now that bright line isn't bright anymore. Now if you walk up to a car and you smell marijuana, you have to conduct an investigation, and that along with other things may give you probable cause."
And it isn't just a handful of states. Any state that has legalized hemp with less than 0.3% THC but hasn't legalized marijuana could face similar quandaries.
"This is a nationwide issue," said Duffie Stone, president of the National District Attorneys Association and a South Carolina prosecutor. "This problem will exist in just about every state you talk to."
There is one quick fix, though: Legalize marijuana.
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Dear friend,
David Borden
The drug war isn't waiting -- so we can't either. That goes for the opportunities and it goes for the crises.
Marijuana reform continues to have 2019 momentum. Presidential candidates are debating criminal justice and drug policy more than ever. Harm reduction measures are progressing, like the overdose antidote naloxone and safer injection sites.
But politicians are still ready to file new and bad sentencing bills – sometimes responding to legitimate concerns, like opioid overdoses, but misguidedly forgetting the mistakes that led to mass incarceration. Mitch McConnell still won't let more marijuana reform bills get Senate votes. And President Duterte's drug war mass killing campaign in the Philippines – an issue on which we are organizing – is getting imitated in countries like Indonesia and Brazil.
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StoptheDrugWar.org
Washington, DC
"US and UN Drug Policy Reform"
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Two former NYPD cops get a hand-slap for raping an 18-year-old they busted for marijuana, a former DEA agent's crooked activities are going to get him sent away, and more. Let's get to it:
In South Bend, Indiana,
a St. Joseph County parole officer was arrested last Wednesdayand accused of soliciting bribes to ensure probationers' drug test results came back negative. Raymontow Davis, 34, is charged with Level 5 felony bribery and Level 6 felony official misconduct. Davis went down after a "cooperating source" went to authorities and told them Davis had discussed taking cash in return for falsifying drug test results. That source provided investigators with call and text message logs showing Davis offering to ensure good test results for $150. He's looking at up to 8 ½ years in prison.
In New York City, two former NYPD detectives pleaded guilty to lesser charges last Thursday after being arrested for raping an 18-year-old Brooklyn woman they had detained on marijuana possession charges. Eddie Martins and Richard Hall were originally charged with rape, sexual assault, and kidnapping, but prosecutors agreed to a plea deal because of "inconsistencies" in the victim's statements. The pair agreed to plea to official misconduct and accepting a bribe and were sentenced to five years' probation.
In Houston, Texas, a former DEA special agent was convicted last Wednesday on seven counts for corrupt activities, including telling an alleged drug dealer to buy a pickup drug valued at $43,000 and then seizing the vehicle for his own use. Former agent Chad Scott was found guilty of two counts of perjury, three counts of obstruction of justice, and two counts of falsifying government records after a seven-day trial. Scott made up fake seizure paperwork for the truck, as well as convincing two drug dealers to falsely testify in federal court about another alleged drug dealer. That man was convicted, but the conviction was overturned after Scott's dirty work came to light. Scott and former DEA Task Force Officer Rodney Gemar were also charged with unlawful conversion of property by a government officer or employee and removing property to prevent seizure. The trial for these charges is scheduled for October 2019.
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Federal officials issue a warning on marijuana for teens and pregnant women, the Philadelphia DA deals with a drug sample testing crisis, Colombian FARC dissidents pick up their guns again, and more.
A Dutch cannabis cafe. A pilot program to begin in 2021 will see legal suppliers for the shops in 10 cities. (Creative Commons)
Federal Officials Issue Warning on Marijuana for Teens, Pregnant Women. Health and Human Services Secretary Alex Azar and Surgeon General Jerome Adams warned jointly Thursday against marijuana use by adolescents and pregnant women. Azar, a former pharmaceutical company executive, called marijuana "a dangerous drug," while Adams warned that "this isn't your mother's marijuana" because of higher THC levels.
Oklahoma Poll Shows State Not Ready to Support Legalization. State voters approved medical marijuana last year, but a new poll suggests legalization may be a bridge too far. A new SoonerPoll found that 59% opposed legalization for non-medical use, with 50.5% strongly opposed.
Law Enforcement
Philadelphia Drug Sample Testing Backlog Means DA Will Prosecute Fewer Low-Level Cases. Faced with a backlog of thousands of untested drug samples, District Attorney Larry Krasner's office has announced an "emergency protocol" to suspend the automatic testing of new samples for low-level drug cases. That means the number of low-level drug cases the DA's office prosecutes each year should be reduced because without testing to prove beyond reasonable doubt that a white powder is actually a controlled substance, prosecutors have no case.
International
Colombia FARC Dissidents Take Up Arms Again. Three years after an historic peace agreement between the leftist guerrillas of the FARC and the Colombian state, dissident FARC leaders announced Thursday that they were rejoining the path of armed struggle. Saying the rightist government of President Ivan Duque has betrayed the accord, the dissidents led by Ivan Marquez (Luciano Marin) said they were ready for a "new stage of fighting." They cited the murders of more than a hundred former FARC members and labor activists, as well as the government's failure to provide sustainable development assistance to areas formerly under their control. "The state has not fulfilled its most important obligation, which is to guarantee the life of its citizens and especially avoid assassinations for political reasons," Marquez. Marquez said his group would work with the ELN, another leftist guerrilla army. The number of dissidents affiliated with Marquez is estimated at around 2-3,000. The civil war with the FARC that began in 1964 left more than 220,000 people dead.
Ten Dutch Cities Will Participate in Legal Marijuana Supply Pilot Program. Beginning in 2021, cannabis cafes in 10 Dutch cities will be supplied with legally grown marijuana under a pilot program aimed at solving the country's "back door problem," where marijuana is allowed to be sold but there is no legal source of supply. The ten cities selected for the program are Arnhem, Almere, Breda, Groningen, Heerlen, Hellevoetsluis, Maastricht, Nijmegen, Tilburg and Zaanstad. In those towns, all cannabis cafes must obtain their supply from legally regulated growers. That's why bigger cities such as Amsterdam and Rotterdam opted out: They have large numbers of cannabis cafes and authorities worry problems could arise if they all abandoned their illicit suppliers simultaneously.
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The president reiterates his states' rights approach to marijuana legalization, the DEA goes massively after opioids in a Florida operation, Thailand okays hemp and cannabis extracts, and more.
The president reiterated his adminstration's hands-off approach to state-level marijuana legalization last Friday. (CC)
President Trump Says Marijuana Legalization Up to States. Reiterating a stance he has held since the 2016 presidential campaign [Ed: One of Trump's few consistent stances. - DB], President Donald Trump last Friday said the White House would not interfere with state-level legalization efforts. "We're going to see what's going on. It's a very big subject and right now we are allowing states to make that decision. A lot of states are making that decision, but we're allowing states to make that decision," he said in response to a reporter's question.
Minnesota Democrats Begin Legalization Push. Using the state fair in St. Paul as a venue, state Democratic leaders vowed to legalize marijuana next year and announced a series of town halls across the state to see what Minnesotans think about the issue. "We believe that Minnesota can have the best marijuana laws in the country," said House Majority Leader Ryan Winkler (D-Golden Valley), who handed out blue cowbells inscribed with the words "Be Heard on Cannabis" to fairgoers. "We think it's vitally important that Minnesotans weigh in directly on this policy change."
Law Enforcement
DEA Arrests 300 in Massive Florida Opioid Operation. In an enforcement operation late last week named "Operation Cazador," DEA agents in Florida arrested nearly 300 people, seized roughly 200,000 opioid pills and about $3.3 million in assets, and shut down a dozen pharmacies. The operation included roughly 50 search warrants on pharmacies, 25 interviews with physicians, and interdiction of a small number of UPS and FedEx packages.
International
Thailand Removes Marijuana Extracts from Narcotics List. Thailand has removed marijuana and hemp extracts, such as CBD, from its list of controlled substances, officials said Monday. The move is seen as an effort to promote the development of marijuana products for medicinal purposes. Medical use and research was legalized last year.
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Half of Arizonans area ready to legalize marijuana, a Mexican senator files a marijuana legalization bill, US and China officials trade fentanyl complaints, more.
A marijuana legalization bill has been filed in Mexico as a Supreme Court deadline looms. (Creative Commons)
Arizona Poll Has 50% for Legalization. A new OH Predictive Insights poll has 50% in favor and 40% opposed, with 10% undecided. The poll comes as organizers of a 2020 legalization initiative campaign seek to qualify for the ballot. The support level is not enough to be comfortable, but greater than a narrowly defeated 2016 initiative ever had.
Foreign Policy
China Says Only "Limited" Cooperation with US on Fentanyl. Responding to complaints from Washington that it is not doing enough to stop the export of fentanyl from illicit labs there, China responded Tuesday by saying it and the United States have only "limited" cooperation on stopping fentanyl smuggling. Liu Yuejin, Vice Commissioner of the China National Narcotics Control Commission, told a news conference that China was cracking down on illicit fentanyl production: "The National Narcotics Control report states that looking at cases, counternarcotics law enforcement departments from China and the United States have for many years maintained a good cooperative relationship," Liu said. "But cooperation on investigating and prosecuting fentanyl-related substances is extremely limited." Since 2012, Liu said the US has only provided "clues" on six fentanyl smuggling cases to the Chinese government, with only three of those resulting in arrests. Liu also denied that China is the source of most fentanyl smuggled into the US.
International
Mexican Senator Files Marijuana Legalization Bill as Supreme Court Deadline Looms. Sen Julio Menchaca Salazar, a member of the ruling MORENA Party, filed a bill to legalize marijuana on Tuesday. The move comes only a month ahead of a deadline imposed by the country's Supreme Court to end marijuana prohibition. The measure also addresses hemp and medical marijuana. The bill comes as the Senate continues with a series of events designed to foster dialogue about how to legalize marijuana. The Supreme Court ruled last year that the existing ban on personal use and cultivation is unconstitutional and gave the congress until next month to remedy the country's drug laws.
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