Prosecution

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Malta Legalizes Marijuana, NY GOP US Reps Back Bill to "Defund de Blasio's Injection Sites," More... (12/15/21)

A therapeutic psilocybin bill is filed in New York, the prosecutor in Arizona's second most populous county is at least temporarily not prosecuring drug possession cases, and more.

flag of Malta
Psychedelics

New York Assemblyman Files Bill to Allow Therapeutic Psilocybin Use. Assemblyman Pat Burke (D) has filed a bill that would legalize psilocybin mushrooms for therapeutic purposes and create facilities where the mushrooms could be grown and provided to patients. It is a set-up similar to what Oregon voters approved last year. The bill provides a list of qualifying medical conditions but also says psilocybin could be recommended "for any conditions" certified by a practitioner. The Department of Health would be responsible for providing a training course for practitioners and licensing the psilocybin centers.

Harm Reduction

New York GOP US Representatives Back Bill to Defund Safe Injection Sites. Republican members of the state's congressional delegation are lining up behind a bill from one of their own, Rep. Nicole Malliotakis (R-Staten Island), that aims to cut funding for group and governments that open safe injection sites. The bill is a response to the opening this month of the first officially acknowledged safe injection sites in the US in New York City. Her bill, the Defund de Blasio's Injection Sites Act of 2021 is being cosponsored by New York Republican Reps. Andrew Garbarino, John Katko, Claudia Tenney. And Lee Zeldin. They argue that safe injection sites violate the Controlled Substances Act, citing an appeals court ruling in January that blocked the opening of such a site in Philadelphia. "Gifting money to heroin shooting galleries that only encourage drug use and deteriorate our quality of life is an egregious abuse of taxpayer dollars," Malliotakis said, reprising a longstanding conservative position that does not recognize any benefit from such harm reduction practices.

Law Enforcement

Amidst Surging COVID Cases, Arizona's Pima County Will No Longer Prosecute Drug Possession Cases. Pima County (Tucson) Attorney Laura Conover (D) announced Tuesday that she will temporarily stop prosecuting drug possession cases because of pandemic-related risks. She said the policy will be in effect for at least 60 days "to protect both Pima County jail employees and people who are detained against the surging threat of COVID." Also included are people caught with drug paraphernalia or those in "related personal-use incidents."

A sizeable percentage of (society) has expressed disinterest in the vaccine, depriving us of the herd immunity that would have put this virus behind us," Conover wrote in a memorandum to law enforcement officials. "COVID is now spreading inside the jail, putting people there at risk. The health and safety of our community are paramount." The move comes as county officials prepare to fire hundreds of corrections officers who refused to get vaccinated.

International

Malta Legalizes Marijuana, First European Union Nation to Do So. Members of the Maltese Parliament on Tuesday approved a bill legalizing marijuana, becoming the first European Union country to make the leap. The law allows citizens 18 and over to possess up to seven grams of marijuana and cultivate up to four plants at home, harvesting up to 50 grams from them. The law also allows nonprofit cooperatives to produce marijuana to be sold to members, with an upper limit on membership per coop of 500. President George Vella supported the measure and is set to sign it later this week.

NYC Opens Nation's First Official Supervised Injection Sites, Toronto Moves Toward Drug Decrim, More... (11/30/21)

A pair of supervised injection sites are now operating in New York City, NORML issues a report on marijuana legislative victories in the states, and more.

Blotter acid. The Bombay High Court has ruled that the blotter paper must be weighed along with the LSD for sharing purposes.
Marijuana Policy

NORML Issues Report Highlighting 2021 State Legislative Victories. "State legislators in 2021 enacted over 50 laws liberalizing marijuana policies in more than 25 states, according to a report issued Monday by the National Organization of the Reform of Marijuana Laws (NORML)," the group said in a blog post. "Specifically, legislatures in five states -- Connecticut, New Jersey, New Mexico, New York, and Virginia -- enacted laws legalizing adult-use marijuana possession and regulating retail cannabis markets. These legislative victories mark a significant change from past years, when similar laws were primarily enacted via citizens' initiatives, not by legislative action. In total, 18 states -- comprising nearly one-half of the US population -- now have laws on the books regulating adult use marijuana production and retail sales. Many states also took actions facilitating the expungement or sealing of past marijuana convictions. Over the past several months, state officials have vacated an estimated 2.2 million marijuana convictions. Numerous states in 2021 also enacted legislation expanding medical cannabis access and stimulating greater diversity among licensed marijuana businesses."

Harm Reduction

New York City Opens Supervised Injection Sites. Supervised injection sites are now operating in East Harlem and Washington Heights -- a first for the city and the country. The two sites are already operating as needle exchanges. Mayor Bill de Blasio began calling for the harm reduction intervention in 2018, and on Tuesday, he and the city Health Department announced that "the first publicly recognized Overdose Prevention Center services in the nation have commenced."

"New York City has led the nation's battle against COVID-19, and the fight to keep our community safe doesn't stop there. After exhaustive study, we know the right path forward to protect the most vulnerable people in our city. And we will not hesitate to take it," de Blasio said in a statement announcing the move. "Overdose Prevention Centers are a safe and effective way to address the opioid crisis. I'm proud to show cities in this country that after decades of failure, a smarter approach is possible."

The sites are not operated by the city but by two nonprofits, New York Harm Reduction Educators and the Washington Heights Corner Project. City officials said they have had "productive conversations" with state and federal officials and believe the federal government will not interfere becauwe of "a shared sense of urgency" around record overdose deaths.

International

Toronto Moves Toward Drug Decriminalization. Canada's largest city is preparing to take the first step toward municipal drug decriminalization after the city's top health officer, Dr. Eilenn de Villa, recommended Monday that the board of health approve a request to the federal government to exempt city residents from criminal charges for small-time drug possession. "The status quo approach to the drug poisoning crisis is not working," the report said. "There is an urgent need for a comprehensive public health approach to drug policy that removes structural barriers to health care and social services, provides alternatives to the toxic drug supply, and enhances and expands services to improve the health and well-being of Toronto's communities."

De Villa is recommending that the board of health direct her to apply for the exemption by year's end. If the board does so, she will not need city council approval to move forward. It will then be up to Health Canada to approve or deny the exemption. The city of Vancouver sought a similar exemption in March, but Health Canada has yet to rule on that request. The plan has the support of the police and Mayor John Tory.

Bombay High Court Rules Blotter Paper Should Be Included When Weighing LSD for Charging Purposes. The High Court in India's largest city has ruled that the weight of blotter paper is an integral part of contraband seizures and the paper should be included when weighing LSD for charging purposes. "I have held that having regard to the findings in Hira Singh's judgment passed by the Supreme Court and the objective of the NDPS Act, blotter paper forms an integral part of LSD and the blotter paper will have to be considered for taking weight of the LSD. The impugned order is quashed and set aside," Justice Dere pronounced.

A lower court had ruled that the blotter paper should not be included when weighing the drug. Indian drug law says that possession of more than a tenth of a gram of LSD indicates a commercial quantity, but the weight of a single blotter weighed by authorities came in at more than six tenths of a gram, signifying that the courts would consider a single hit of blotter LSD to be evidence of intent to deal drugs.

In the US, the US Sentencing Commission has weighed in on the issue and come to the opposite conclusion: "In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for the purposes of the Drug Quantity Table."

Baltimore No Drug Possession Arrest Policy is Working; Naloxone Shortages, Price Hikes Amid Overdose Surge, More... (10/19/21)

The South Dakota legislature continues to tangle with marijuana policy, Pennsylvania's Republican-led legislature is dithering on making fentanyl test strips legal, and more.

A manufacturing issue at Pfizer is contributing to naloxone shortages and price hikes. (pa.gov)
Marijuana Policy

Oregon County Asks for National Guard Help to Fight Illegal Marijuana Grows. With unlicensed marijuana grows and marijuana grows disguised as hemp operations running rampant in southern Oregon, commissioners in Jackson County have asked Gov. Kate Brown (D) to send in the National Guard "to assist, as able, in the enforcement of laws related to the production of cannabis." The move came last week, the same day police near Medford raided a site that had 17,500 pot plants and two tons of processed marijuana. That was only the latest massive bust in Jackson and neighboring Josephine counties this year, which act as a northern extension of California's Emerald Triangle of Humboldt, Mendocino, and Trinity counties. In both southern Oregon and northern California, marijuana cultivation has been entrenched for half a century. Gov. Brown has rejected the request for National Guard troops but could reconsider next year, her office said.

South Dakota Lawmakers Ponder Bill to Scrap Medical Marijuana Law but Legalize Adult Use. The legislature's Adult-Use Marijuana Committee on Tuesday is considering a bill that would undo the state's voter-approved medical marijuana law but would instead legalize the use and possession of marijuana by people 21 and over. The bill was drafted by committee chair Rep. Hugh Bartels (R), who characterized it as a compromise between factions that oppose and support legalization. Voters also approved legalization last year but allied of Gov. Kristi Noem (R) filed suit to block it. That case remains before the state Supreme Court. In the meantime, local activists have begun a signature-gathering drive to put a new legalization initiative on the ballot next year. Under the Bartels bill, people 21 and over could possess up to an ounce of weed and up to 22 grams of waxes, oils, and edibles, but home cultivation would not be allowed. Bartels said the medical marijuana law would not be needed if his bill passed, but the Health Department would issue medical marijuana cards for patients under 21.

Harm Reduction

Naloxone Price Soars, Shortages Occur Amid Overdose Surge. As the nation confronts all-time high overdose deaths, the opioid overdose reversal medication naloxone is increasingly scarce and increasingly expensive. Harm reduction and other community groups are now paying as much as 30 times more for the life-saving medication—when they can obtain it at all. "Not having this life-saving medication to reduce overdose deaths, during a time when we’re seeing the greatest increase we’ve ever seen, is a public health crisis," said Amanda Latimore, director of the Center for Addiction Research and Effective Solutions. "There hasn’t been a more important time than right now to have an overdose reversal drug available. And now that we’re seeing this shortage, we can expect even more fatal overdoses," she said. The shortages are a result of manufacturing problems at Pfizer, which has been providing the drug at low cost to harm reduction groups, and are expected to be resolved by year's end. But in the meantime, other pharmaceutical manufacturers could have ramped up production, but have not done so, no have they cut prices. The reason? "Profit. There’s no other way to put it," said Nabarun Dasgupta, an epidemiologist at the University of North Carolina at Chapel Hill.

Pennsylvania's Republican-Dominated Legislature Stalls on Allowing Fentanyl Test Strips. Under current state law, fentanyl test strips are considered drug paraphernalia and are illegal, but even as the state and the nation face unprecedented numbers of opioid overdose deaths, the Republican-dominated state legislature is sitting on bills that would amend the law to allow people to use the test strips. House Bill 1393 and its companion measure, Senate Bill 845, are both languishing in committee. While the legislature dithers, the state attorney general, the Philadelphia DA, and the Philadelphia mayor have announced a commitment to not prosecute people for possessing fentanyl test strips.

Law Enforcement

Baltimore’s No-Prosecution Policy for Low-Level Drug Possession and Prostitution Finds Almost No Rearrests for Serious Offenses. A new report from researchers at Johns Hopkins Bloomberg School of Public Health found that Baltimore’s no-prosecution policy for minor drug possession and prostitution, enacted at the start of the COVID-19 pandemic, led to fewer new low-level drug and prostitution arrests, almost no rearrests for serious crimes for those who had charges dropped, and fewer 911 calls. The findings suggest the new policies did not result in increased public complaints about drug use or sex work, and that those who had charges dropped did not go on to commit serious crimes. Baltimore State’s Attorney Marilyn Mosby announced that Baltimore would stop prosecuting low-level drug and drug paraphernalia possession and prostitution in March 2020, chiefly as an infection-reduction measure at the start of the COVID-19 pandemic. A year later she announced that the policy would remain in place—even after the pandemic winds down—as a way of reducing the burdens on city police and on the poorer, predominantly Black city residents who are traditionally arrested for such crimes. The report’s key findings, covering the 14 months following the policy change (April 2020 to May 2021), include:

  • An estimated 443 new drug/paraphernalia-possession and prostitution arrests were averted as a result of the new no-prosecution policy, 78 percent of which were averted in the Black community. This analysis was based on Baltimore Police Department arrest data.
  • Of the 741 people whose drug and prostitution charges were dropped, six—less than 1 percent—had new arrests for serious crimes during the study period. This analysis was based on Maryland Courts Judicial Information System data.
  • Calls to 911 about drug/paraphernalia and prostitution declined significantly in the post-policy change period.

Chicago to Take Drug Diversion Program Citywide, ACLU Sues AZ County over Coercing Drug Defendants, More... (7/9/21)

A group of US senators is seeking some help for state-legal marijuana businesses, Chicago moves to expand a program that diverts drug arrestees into treatment citywide, and more.

Chicago police are expanding a drug diversion program so they can devote resources to fighting violent crime. (Creative Commons)
Marijuana Policy

Senators Ask That Marijuana Businesses Get Access to Federal SBA Loans. A group of 10 senators led by Sen. Jacky Rosen (D-NV) have sent a letter to Appropriations Committee leadership asking that language allowing marijuana businesses to access loans and other aid through the federal Small Business Administration (SBA) be included in an upcoming spending bill report. Allowing such loans to marijuana businesses "would fill gaps left by the private sector and help mitigate the effects of the COVID-19 pandemic." They are asking that Senate Appropriations Committee and the Appropriations Financial Services and General Government (FSGG) issue a report that specifically includes such language and stop the Small Business Administration (SBA) to stop "denying loan applications for the 7(a) Loan Guarantee Program, Disaster Assistance Program, Microloan Program, and 504/Certified Development Company Loan Program to legally operating cannabis small businesses in states that have legalized cannabis sale and use."

Law Enforcement

Chicago to Expand Drug Diversion Program. The Chicago Police Department and Public Health Department have announced they will expand the city's Narcotics Arrest Diversion Program to include the entire city by the end of the year. Under the program, people arrested on drug possession charges who meet certain qualifying criteria can be diverted from the criminal justice system toward rehabilitation programs instead. The program began in one district in 2018 and has expanded to 11 of the city's 22 districts already. More than 700 people have been diverted from the arrest track so far, and city officials say the move helps police focus on issues such as violent crime instead.

The program appears to be similar to Law Enforcement Diversion Programs (LEAD), which began in Seattle in 2014 and has now expanded to at least 42 cities nationwide. LEAD uses a harm reduction and community-based model; the Chicago program includes social service programs among its alternatives, not just drug treatment, according to reports. The Chicago program offers walk-in access to drug treatment; one doesn't have to face arrest or its prospect first. The LEAD Bureau web site says that they have added purely voluntary access to its programs as well, in response to recent movement in the issue.

While drug reformers generally see diverting drug users out of the criminal justice system as an important step, the devil is in the details -- not every program presented as diversion does a convincing job of it, and how for example treatment programs respond to relapses or continued drug use by some clients determines how many people ultimately will be helped.

Prosecution

ACLU Sues Arizona County over Threats of Harsher Sentences for Drug Defendants to Force Guilty Pleas. The American Civil Liberties Union filed a federal class-action lawsuit Wednesday charging that the Maricopa County (Phoenix) Attorney's Office routinely threatens people arrested for drug possession with "substantially harsher" punishments in order to coerce them into pleading guilty before prosecutors even have to turn over evidence. The threat is typically issued in writing, the lawsuit alleges, and explicitly warns that defendants who reject initial plea deals will face substantially worse plea offers in the future. The ACLU argues that the policy is unconstitutional because it punishes people for exercising their rights to a preliminary hearing and a jury trial and that it illustrates the '"vast racial and economic discrepancies in plea bargaining techniques used across the county."

RI Becomes First State to Approve Safe Injection Sites, Federal Pot Prosecutions Plummet, More... (7/8/21)

The Congressional Black Caucus wants some justice for marijuana deportees, South Dakota's state governmnt is at war with itself over medical marijuana cards from a reservation dispensary, and more.

You can now become an FBI agent if it has been at least a year since you last toked up. (Creative Commons)
Marijuana Policy

Congressional Black Caucus Members Ask Biden to Reverse Marijuana Deportation Cases. In a Wednesday letter to President Biden authored by Rep. Mondaire Jones (D-NY) and signed by 30 members of the Congressional Black Caucus, the federal representatives urged him to reopen some deportation cases, including those involving marijuana. "We are grateful for President Biden's commitment to redressing racial injustice, particularly after the last four years of the Trump Administration's racist and xenophobic immigration agenda," the lettert says. "One critical step toward honoring that commitment is ensuring that people who were unjustly deported can be fairly and efficiently considered for return to their families and communities in the United States." The letter cited the cases of two military veterans who served honorably but were deported over years-old marijuana convictions. But it's not just veterans: "Untold numbers of others have been similarly wronged, from US veterans who served their country to longstanding neighbors who found themselves deported because of contact with the US criminal legal system -- a system acknowledged to unfairly and disproportionately target and discriminate against Black and Brown people," they wrote.

FBI Loosens Marijuana Employment Policy for Agents. In a sign of changing attitudes toward marijuana, the FBI has quietly loosened its employment restrictions for new agents who have used marijuana in the past. Under previous agency rules, marijuana use within the past three years was disqualifying; under the new rules, only marijuana use within the past one year is disqualifying. Neither will past underage use be automatically disqualifying, but "adjudicative personnel will evaluate the candidate by using the 'whole-person concept.'" For other drugs, the FBI's rule that use within the past 10 years is disqualifying remains unchanged.

Federal Marijuana Trafficking Convictions Have Fallen Dramatically Following Enactment of Statewide Legalization Laws. A new fact-sheet from the US Sentencing Commission shows a dramatic drop in federal marijuana trafficking convictions since 2012, when Colorado and Washington became the first states to legalize the herb. Just over 1,000 people were sentenced on federal marijuana trafficking, down 67% since 2016 and down more than 80% since 2012. "These trends illustrate the fact that state-legal domestic cannabis production has supplanted the foreign market and that marijuana law enforcement is becoming less of a federal priority in an age where the majority of Americans believe that cannabis ought to be legal," NORML's Deputy Director Paul Armentano said."

Medical Marijuana

South Dakota Attorney General at Odds with Highway Patrol over Medical Marijuana Cards from Reservation Dispensary. Although the state Department of Public Safety, which oversees the state Highway Patrol, said last week that it would still arrest non-tribe members with tribal medical marijuana cards, the state's top law enforcement official disagrees: "The tribe's right to self-governance also gives it the authority the set the parameters of its medical marijuana program," said Tim Bormann, chief of staff in the South Dakota Attorney General's Office. "It appears, at this time, that South Dakota law enforcement would have to accept a tribal-issued card." The position of the office is that arresting non-tribal members would violate the state's nascent medical marijuana law, which says that until the state Health Department makes applications available, "a valid written certification issued within the previous year shall be deemed a registry identification card for a qualifying patient."

Harm Reduction

Rhode Island Becomes First State to Approve Safe Injection Sites. Gov. Daniel McKee (D) has signed into law a bill, 2021-H 5245A/2021-S 0016B, to authorize a two-year pilot program to create "harm reduction centers" where people could "safely consume pre-obtained substances," otherwise known as a safe injection site. The bill would require local approval before such a site could open, but it could also face a federal challenge. An earlier effort to open a safe injection site in Philadelphia was blocked by the US 3rd Circuit Court of Appeals, which ruled it would violate the Controlled Substance Act. But that case was brought by a conservative US attorney during the Trump administration. To sue to block this bill would require a Biden administration US attorney to bring a case, and it's not clear that would happen. Also, Rhode Island sits in the 1st US Circuit Court district, not the 3rd, so that Philadelphia decision is not binding there.

International

Scotland to Provide Heroin Addiction Drug in Prisons Countrywide after Successful Pilot Program. A once-monthly injectable form of buprenorphine marketed a Buvidal will be available for heroin-addicted prisoners across the country after a pilot program using the drug proved overwhelmingly successful. The shot will replace daily doses of methadone. The Scottish Health and Social Care Analysis Hub reported positive results from the pilot program, which began as a response to the pandemic, and now the government is allocating $5.5 million to expand it.

Federal Appeals Court Taps the Brakes on Drug Induced Homicide Prosecutions of Drug Users [FEATURE]

A woman who bought heroin with a pair of friends, one of whom shortly afterward suffered a fatal overdose on the drug, is not a murderer, at least according to the US 3rd Circuit Court of Appeals. That was the June 1 ruling in US v. Semler, a case that may not set binding precedent, but does send a signal to the prosecutors and the judiciary that the federal courts do not want to see a federal law aimed at so-called drug kingpins applied to mere drug users.

As described in the decision, the case began when two heroin-addicted Philadelphia women, Emma Semler and her old drug rehab buddy Jennifer Werstler, went to score heroin together at Wertsler's request. They were joined by Semler's sister Sarah, who drove them to the West Philadelphia locale where they bought their heroin. It is unclear who actually purchased and then shared the heroin. The trio then shot up in the restroom of a nearby KFC restaurant. Werstler began to show signs of overdosing, and the Semler sisters "attempted to revive Werstler by splashing cold water on her, then left the bathroom and called their mother for a ride home. They did not call 911 or alert anyone to Werstler's condition."

Werstler was later discovered by a KFC employee, who called 911, but EMTs arrived too late to save her and she was pronounced dead. Her official cause of death was "adverse reaction to heroin."

Semler was then indicted by a federal grand jury in the Eastern District of Pennsylvania with "distribution of heroin resulting in death," punishable by a 20-year mandatory minimum prison sentence. As an added bonus, she was also charged with doing so within 1,000 feet of a school, as well as aiding and abetting on both counts. She was found guilty at trial and sentenced to 21 years in prison.

Semler appealed, arguing that friends sharing jointly procured drugs did not qualify as drug distribution and that the district court had erred in refusing to allow a jury instruction to that effect, as well as erring in failing to instruct the jury that there had to be a "proximate cause" for it to convict.

Scott Burris, JD, is a professor of both law and public health at Temple University and directs Temple's Center for Public Health Law Research. He is also Semler's appellate counsel and coauthor of an amicus curiae brief supporting Semler, which nicely laid out the issues at play.

"This case presents the Court with an opportunity to determine the proper scope of the Drug Distribution Resulting in Death (DDRD) sentencing enhancement provision," the abstract explains. "The provision, its parent statute, and the totality of modern federal law and policy to stem the overdose crisis are intended to target major drug traffickers. Research suggests that DDRD prosecutions routinely pervert this intent, indiscriminately deploying DDRD and similar provisions to target end consumers of illicit drugs affected by addiction. Rather than deterring drug trafficking, such prosecutions deter help-seeking during overdose events and interfere with overdose prevention measures. This cuts at cross purposes to overdose crisis response, leading to more, not fewer deaths."

The 3rd District Court of Appeals agreed, vacating Semler's conviction and sending her case back for retrial using proper legal instructions for jurors. "We hold that the definition of 'distribute' under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire the possession of a small amount of a controlled substance solely for their personal use," wrote Judge Jane Richard Roth.

It was a victory, if not a complete exoneration, for Emma Semler and any other drug user federal prosecutors in the 3rd Circuit might have been thinking about charging under that statute. Hopefully it also serves as a distant early warning signal for states that have passed drug induced homicide laws, as well as for state-level prosecutors, who are zealously embracing them to convict low-level drug users as murderers.

The Health in Justice Action Lab at Northeastern University School of Law reported that the number of states with such laws jumped from 15 to 25 in from 2009 to 2019, while the number of drug induced homicide prosecutions hovered at near zero from the 1970s until the early 2000s. Then, as overdose deaths jumped, so did prosecutions, rising to 100 per year by 2011 before skyrocketing to nearly 700 per year by 2018.

In a 2019 Utah Law Review article, Northeastern law professor and faculty director of the Health in Justice Action lab faculty adviser Leo Beletsky found while the laws are ostensibly aimed at drug dealers, "half of those charged with drug induced homicide were not, in fact, 'dealers' in the traditional sense, but friends and relatives of the deceased." He also found that in cases that involved a traditional "drug dealer," half of those prosecuted were black or brown people who sold drugs to whites -- a fact he noted does not fit the demographics of the United States or of drug dealers.

"In view of that context," he wrote, "these findings suggest that drug-induced homicide charges are being selectively and disproportionately deployed to target people of color. This disparate application can further reinforce already dire racial disparities, particularly in the enforcement of drug laws and the length of sentencing for drug-related crimes."

And, as the Drug Policy Alliance (DPA) pointed out in its 2017 report, An Overdose Death is Not a Murder: Why Drug Induced Homicide Laws Are Ineffective and Inhumane, those laws don't work to reduce overdoses: "Prosecutors and legislators who champion renewed drug induced homicide enforcement couch the use of this punitive measure, either naively or disingenuously, as necessary to curb increasing rates of drug overdose deaths. But there is not a shred of evidence that these laws are effective at reducing overdose fatalities. In fact, death tolls continue to climb across the country, even in the states and counties most aggressively prosecuting drug-induced homicide cases."

"The Semler case is one more example of how the Drug War has warped our legal system and led to mass incarceration," DPA senior staff attorney Grey Gardner told the Chronicle in an email exchange. "Prosecutors twisted the law to criminalize this young woman and subject her to a more than 20-year sentence after several friends bought drugs to use together and one suffered a tragic fatal overdose. Urging the jury to convict one of them of drug distribution when each of these users were suffering from substance use disorder and using together was not only overreaching, it highlights the arbitrary nature of our drug laws."

It is also counterproductive, he added: "This prosecution and those like it do nothing to make people safer, but instead put people in greater danger. By elevating the threat of prosecution, they make it less likely that people close to an overdose victim will call for help," he pointed out.

"Thankfully in this case the Court of Appeals rejected the prosecution's overbroad definition of distribution, but what's clear is that we need an entirely new approach," said DPA's Gardner. "Instead of the failed War on Drugs, we need to stop turning to the criminal legal system and spending billions on these ineffective policing strategies. Instead we need better approaches -- such as investments in drug checking, overdose prevention centers, and expanded access to naloxone -- to protect those who are experiencing addiction and are at the greatest risk."

"The court seemed sympathetic to the view that criminal law is not the best way to get at substance use disorder and the behavior of people coping with it," Burris told the Chronicle in an email exchange.

The appeals court labeled its decision as non-precedential, meaning it is not binding on federal district courts in its region, but it still may have a broader impact in the federal courts, Burris explained.

"I think her lawyers are going to ask the court to reconsider that," he said. "It is at least what we call 'persuasive authority' in that its reasoning may be adopted voluntarily by other courts."

As for impact on state and local prosecutions, not so much, he added.

"It has no impact other than as persuasive authority," Burris said. "The state attorney general and local district attorneys pursuing these cases seem to think they are sensible and just, and they are hard to shake," he confessed.

"The overdose crisis is just one symptom of the fundamental disease of inequality and inequity in our country," was Burris's bottom line. "Getting at that root cause requires a sea change in policy such that government at all levels -- and the people who elect the government -- commit to ensuring the basics of decent life to everyone: good work, good housing, good education, good transportation, and a place of respect in the community. In this the 'deaths of despair' idea seems to be to get the problem just right. Of course, short of that, there are many things to do: stop criminalizing drug use; create safe injection sites everywhere they are needed; eliminate regulations that make methadone and buprenorphine harder to get than the drugs whose use they are meant to reduce."

OD Deaths Hit Record High During Pandemic, Campaign to End Crack Cocaine Sentence Disparity, More... (4/14/21)

Washington's governor commutes some drug possession sentences after the state's Supreme Court voids its felony drug possession law, the St. Louis County Council votes to decriminalize pot possession, the Orleans Parish prosecutors is not going to try most drug possession cases anymore and more.

There's a move afoot in Congress to finally end the sentencing disparity between crack and powder cocaine.
Marijuana Policy

Connecticut Poll Finds Strong Support for Marijuana Legalization, Expungement. As legislators ponder whether to make Connecticut the next state to legalize marijuana, a new poll from Sacred Heart University shows strong popular support for the move. The poll had support at 66%, with 62% saying that if marijuana is legalized, those with prior marijuana convictions should have their records expunged.

St. Louis County Council Votes to Decriminalize Pot Possession. The council Tuesday night approved a resolution reducing the penalty for possessing less than 35 grams of marijuana to a fine of less than $100. The previous penalty had been up to a year in jail and a $1,000 fine.The Maplewood City Council also passed legislation Tuesday night to decriminalize marijuana possession.

Medical Marijuana

North Carolina Medical Marijuana Bill Filed. A medical marijuana bill with bipartisan has been filed in the Senate. Senate Bill 711, the North Carolina Compassionate Care Act, would protect doctors and patients from civil and criminal penalties for using or recommending medical marijuana and would allow the cultivation and sale of medical marijuana in the state. The bill has been referred to the Senate Committee on Rules and Operations.

Drug Policy

Orleans Parish District Attorney Will No Longer Charge Small-Time Drug Possession Offenses, Except for Heroin and Fentanyl. The Orleans Parish District Attorney's office has adopted a policy of refusing to prosecute charges for possession of small amounts of drugs. New Orleans police may continue to arrest people for small-time possession, but they will not be prosecuted for "an amount intended for personal use." But there is one big exception: Heroin and fentanyl charges will continue to be prosecuted.

Pardons and Commutations

Washington Governor Commutes Sentences After Felony Drug Possession Law Thrown Out. In the wake of a state Supreme Court decision voiding the state's felony drug possession law, Gov. Jay Inslee (D) announced Tuesday that he had commuted the sentences of 13 prisoners who were incarcerated on drug possession charges. More commutations are coming, his office said.

Sentencing

Coalition Asks Judiciary Committee Chairs to Eliminate Crack-Powder Cocaine Sentencing Disparity. More than two dozen think tanks and advocacy groups from across the political spectrum have banded together to call on the chairs and ranking members of the House and Senate Judiciary committees to end the crack-powder cocaine federal sentencing disparity by passing Senate Bill 71, the EQUAL Act. Sponsored by Sen. Cory Booker (D-NJ), the bill would eliminate the sentencing disparity between crack and powder cocaine and make that change retroactive.

Biden Administration Supports Temporary Extension of Ban on Fentanyl Analogues. The Justice Department said Monday it would support a bill that would extend a temporary ban on fentanyl analogues for another seven months. The Trump-era ban is set to expire next month without action by Congress. The department said it would "work with Congress to seek a clean, seven-month extension to prevent this important law enforcement tool from lapsing." The move has been opposed by criminal justice reform groups some researchers, who worry it could incite mass incarceration and make research more difficult. The department acknowledged these concerns, saying it intends to "address legitimate concerns related to mandatory minimums (prison terms) and researcher access to these substances."

Public Health

Drug Overdoses Hit Record High During Pandemic. Preliminary data from the Centers for Disease Control and Prevention (CDC) show that more than 87,000 people died of drug overdoses in the 12-month period that ended in September. That's the largest number for any year since the opioid epidemic began in the mid-1990s. The biggest jump in deaths took place in April and May, in the depths of pandemic lockdowns and attendant fear and stress.

Federal Drug Cases Continue to Decline, Schumer Ready to Move Ahead With Legalization, More... (4/5/21)

DC's mayor is ready to move ahead with legalizing marijuana sales, Senate Majority Leader Chuck Schumer is ready to move ahead with federal marijuana legalization, and more.

Magic mushrooms and other natural entheogens are now deprioritized in a third Massachusetts city. (Creative Commons)
Marijuana Policy

Senate Majority Leader Says Democrats Are Ready to Push Ahead on Marijuana Legalization Whether President Supports It or Not. Senate Majority Leader Chuck Schumer (D-NY) said that even though President Joe Biden (D) only supports marijuana decriminalization, "we will move forward" even if the president doesn't get on board. "He said he's studying the issue," Schumer said. "I want to make my arguments to him, as many other advocates will. But at some point, we're going to move forward, period." Schumer also clarified that: "I am personally for legalization. And the bill that we'll be introducing is headed in that direction."

Nevada Bill Would Allow for Marijuana Consumption Lounges. Assemblyman Steve Yeager (D-Las Vegas) has filed a bill that would allow for marijuana consumption lounges to operate in the state. While marijuana is legal, it is illegal to consumer it in public or in hotel rooms, and Yeager said that presents a conundrum for residents and tourists. "They can't bring it into their hotel rooms. They can't consume it outside," Yeager said. The bill, introduced Friday, is not yet available on the state legislative web site.

DC Mayor Says City is Ready to Legalize Marijuana Sales Once Congress Gets Out of the Way. Mayor Muriel Bowser (D) said last Friday that city officials are ready to move forward with implementing legal marijuana sales once Congress removes a rider that has prevented the city from doing so. "We have a tax-and-regulates scheme. We've prepared our alcohol and beverage office to be prepared to implement regulation," she said. "And we have to we have to get the hurdle of Congress out of the way."

NYPD Says You Can Now Smoke a Joint in Public. In the wake of Governor Andrew Cuomo's (D) signing marijuana legalization into effect, with the legalization of possession of small amounts in effect immediately, the NYPD has issued a memo noting that people can smoke marijuana in public anywhere they can smoke a cigarette in public. Smoking marijuana on sidewalks or front stoops is no longer "a basis for an approach, stop, summons, arrest, or search" the department memo said. But the city bans smoking in parks and at beaches, so there is no marijuana smoking allowed there, either.

Psychedelics

Third Massachusetts City Approves Psychedelic Decriminalization. Last Thursday night, the Northampton City Council approved a resolution calling for the deprioritization of drug law enforcement against natural psychedelics. Included are psilocybin, ayahuasca, and a number of other entheogenic plants and fungi. The measure passed on a unanimous vote, making Northampton the third city in the state to enact such reforms, after Somerville and Cambridge.

Drug Treatment

ACLU, NYCLU Sue New York County over Methadone Access in Prison. The ACLU and its state affiliate, the New York Civil Liberties Union filed a lawsuit Monday against Jefferson County seeking to compel the Jefferson County Correctional Facility to provide access for methadone treatment for opioid use disorder. The county bans methadone treatment for prisoners, which plaintiffs argue violates state civil rights law, the US Constitution, and the Americans with Disabilities Act.

Law Enforcement

Sentencing Commission Report Decline in Drug Prosecutions Last Year. During Fiscal Year 2020, federal prosecutors filed some 64,565 criminal cases, a decline of 15.6% over the previous year, "reflecting the impact of the COVID-19 pandemic on the work of the courts." Drug possession cases continued a five-year decline, dropping 22%, while drug trafficking cases, which had gone up slightly in Fiscal Year 2019, had declined 17% in FY 2020. The most common federal prosecutions were immigration cases, accounting for 41% of all federal prosecutions.

Milwaukee Pot Fine to Drop to $1, Baltimore Ends Prosecutions for Drug Possession, More... (2/26/21)

Democrat lawmakers in Congress ask the Biden administration to reconsider its policy on past employee marijuana use, a Minnesota bill to provide protections for informants passes the Senate, and more.

France has embarked on a two-year experiment with medical marijuana.
Marijuana Policy

House Democrats Ask Biden to Reverse Employee Policy on Past Marijuana Use. Some 30 Democratic lawmakers sent a letter Thursday to President Biden calling on him to reverse his administration's policy of removing or relocating staffers who had admitted to past marijuana use. The letter comes after reports came out that five staffers had been fired for past marijuana use. While they praised the administration's overall orientation, they said: "We, however, were dismayed to learn that several White House staffers were reportedly suspended, put on probation, or asked to resign after honestly disclosing past cannabis use. We ask that you clarify your employment suitability policies, remove past cannabis use as a potential disqualifier, and apply these policies with consistency and fairness."

Wisconsin's Most Populous County Drops Marijuana Fine to $1. The Milwaukee County Board of Supervisors voted Thursday to drop the fine for small-time marijuana possession from $275 to $1. The measure passed on a 16-1 vote, and County Executive David Crowley says he will sign it into law.

Law Enforcement

Minnesota Senate Approves Bill to Protect Police Informants. The Senate on Thursday unanimously approved "Matthew's Law," a bill named after Matthew Klaus, who died of a drug overdose while working as an informant for the Rochester Police. "Matthew had been a confidential informant in Rochester, working with the Rochester Police Department on drug buys, and during that whole process Matthew himself became the victim of a heroin overdose and passed away," Sen. Dave Senjem told his colleagues before they passed Senate File 304. The bill would require law enforcement entities in the state create and abide by statewide standards for handling informants and ensuring their rights are protected. The bill has now gone to the House, where it is before the Public Safety and Criminal Justice Reform and Finance and Policy committees.

Baltimore State's Attorney Makes No Prosecution Policy for Minor Offenses Permanent. Last year, as the coronavirus pandemic swept the country, State's Attorney Marilyn Mosby (D) announced the city would no longer prosecute drug possession and other minor charges, and then crime dropped in Baltimore. On Friday, Mosby announced that the changes will be permanent and the city will continue to decline to try drug possession, prostitution, minor traffic, and misdemeanor cases. "A year ago, we underwent an experiment in Baltimore," Mosby said. "What we learned in that year, and it's so incredibly exciting, is there's no public safety value in prosecuting these low-level offenses. These low-level offenses were being, and have been, discriminately enforced against Black and Brown people. Prosecutors have to recognize their power to change the criminal justice system."

International

British Private Members' Bill Calls for Review of Drug Laws. MP Tommy Sheppard (Labor) has filed the Problem Drugs Bill, which seeks to reframe drug policy as a health issue, rather than one oriented around criminalization. It also calls for a basic review of the Misuse of Drugs Act 1971. This would allow not only a review of the classification system, but a fundamental reconsideration of Britain's legal framework for drug policy. The bill also calls for drug decriminalization and the approval of safe injection sites. Because it is a private member's bill, it is unlikely to pass, but can provide an opportunity to advance debate on the issue.

France Embarks on Two-Year Medical Marijuana Trial. The Health Ministry has announced that some 3,000 patients will be given medical marijuana while the national medicines watchdog monitors their health. The trial will go on for two years. The parliament had approved the project in 2019, but it was delayed because of the coronavirus pandemic.

House Passes George Floyd Justice in Policing Act, HI Marijuana Legalization Bill Advances, More... (3/5/21)

A Long Island doctor has been the first in New York to be charged with murder for his opioid prescribiing practices, there's strong popular support for marijuana legalizaion in Connecticut, and more.

The killing of George Floyd has now led to the House passage of a major policing reform bill. (Creative Commons)
Marijuana Policy

Alabama Marijuana Decriminalization Bill Advances. The Senate Judiciary Committee on Wednesday approved a marijuana decriminalization bill sponsored by Sen. Bobby Singleton (D-Greensboro). The bill would turn the current possession misdemeanor for less than two ounces into a violation with a maximum $250 fine. Possession of more than two ounces would be a misdemeanor, but punishable only with a fine. The bill now heads to the Senate floor.

Connecticut Poll Has Strong Majority for Marijuana Legalization. A new poll from Sacred Heart University has support for marijuana legalization at 66%, with 38% strongly supporting and 28% merely supporting. The poll comes as Gov. Ned Lamont (D) seeks support for a marijuana legalization push.

Hawaii Marijuana Legalization Bill Wins Senate Committee Vote. In a joint meeting Wednesday, the Senate Judiciary and Ways and Means committees voted to approve Senate Bill 767, which would legalize the possession of up to an ounce of marijuana by people 21 and over and create a path toward legal marijuana commerce. The bill now heads for a Senate floor vote.

Medical Marijuana

Tennessee Medical Marijuana Bill Advances. The Senate Government Operations Committee on Wednesday approved SB0854/HB0621, the Tennessee Medical Cannabis Act. It is a full-fledged medical marijuana bill that would allow use of the substance for a set of specified qualifying medical conditions. The bill now heads to the Senate Judiciary Committee.

Heroin and Prescription Opioids

New York Physician Charged with Murder for Pain Pill Prescribing. A Long Island doctor, George Blatti, has become the first physician in the state to be charged with second-degree murder after police and prosecutors accused him of "depraved indifference" in prescribing opioid pain medications to his patients, including five who died of drug overdoses. Prosecutors characterized the 76-year-old physician as a "serial killer" who knowingly prescribed "huge" amounts of opioids to his patients.

Blatti's arrest is part of a larger trend of going after doctors for opioid prescribing. In 2011, 88 nationwide doctors faced criminal charges, civil lawsuits or medical suspensions over opioid prescribing; in 2019, that number had jumped to 477. Historically such prosecutions haven't always been reasonably targeted -- the '00s case of Dr. Frank Fisher is instructive -- and deciding whether a given prosecution of this type is a reasonable one can require extensive research.

Law Enforcement

House Passes George Floyd-Inspired Police Reform Bill. The House on Wednesday approved HR 1280, the George Floyd Justice in Policing Act on a 220 to 212 vote mainly along party lines. The measure had passed the House last year, but didn't move in the then Republican-controlled Senate. The bill would create a national database to track police misconduct, ban some no-knock warrants, ban chokeholds, and move to end racial and religious profiling. It would also weaken "qualified immunity" for police officers, lowering the bar for people to sue police for alleged civil rights violations. Now, the ball is in the Senate's court.

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