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Nashville to End Small-Time Pot Prosecutions, More Cops Charged in Wake of Fatal Houston Drug Raid, More... (7/2/20)

Drug reform initiative campaigns are handing in signatures as deadlines approach, Nashville's DA says no more petty pot prosecutions, Mexican gunmen kill 24 in a raid on a drug rehab center, and more.

South Dakota's Badlands. Organized opposition to a marijuana legalization initiative has appeared. (Creative Commons)
Marijuana Policy

Arizona Marijuana Legalization Initiative Campaign Turns in Massive Signature Cache. Backers of the Smart and Safe Arizona Act marijuana legalization initiative filed more than 420,000 raw signatures with the secretary of state's office Thursday. It only needs 237,465 valid voter signatures to qualify for the November ballot. The initiative would allow people 21 and over to possess up to an ounce of marijuana, allow for cultivation, distribution, and retail sales, and use tax revenues from those sales to fund public education and public safety programs.

South Dakota Marijuana Legalization Initiative Draws Organized Opposition. The Amendment A marijuana legalization campaign, which has already qualified for the November ballot, is now drawing organized opposition. A ballot committee calling itself NO Way on Amendment A has been organized to defeat the initiative and is being led by David Own, the president of the state Chamber of Commerce and Industry. The opposition is being joined by the usual suspects, including law enforcement, public officials, and social work leaders.

Nashville to End Small-Time Marijuana Possession Prosecutions. Nashville District Attorney Glenn Funk announced Wednesday that his office will no longer prosecute cases involving less than a half-ounce of marijuana. "Effective today, the Nashville District Attorney's office will no longer prosecute individuals for possession of less than a half ounce of marijuana. Marijuana charges do little to promote public health, and even less to promote public safety," Funk said in a statement.

Medical Marijuana

Nebraska Medical Marijuana Initiative Campaign Hands in Signatures. Nebraskans for Medical Marijuana, the group behind the state's proposed medical marijuana initiative, handed in some 182,000 raw voter signatures Thursday. They need at least 121,669 valid voter signatures to qualify for the November ballot. The campaign must also meet a requirement that at least 5% of voters in at least 38 counties sign up.

Law Enforcement

Houston DA Files New Charges Resulting from Deadly Drug Raid. The investigation into a 2019 Houston drug raid that left two innocent homeowners dead has now resulted charges being filed against six former officers, who are accused of routinely using false information to get search warrants and of lying on police reports, prosecutors announced on Wednesday. Two former members of the unit -- Gerald Goines and Steven Bryant -- had previously been charged in state and federal court in the case, including two counts of felony murder filed in state court against Goines. Those two also got hit with numerous new charges. More than 160 drug convictions tied to Goines have been dismissed by prosecutors. Prosecutors expect more cases will be dismissed.

International

Mexican Cartel Gunmen Attack Drug Rehab Center, Killing 24. In one of the bloodiest attacks yet in the cartel wars, gunmen killed 24 people at a drug treatment center in the central Mexican city of Irapuato on Wednesday. It was the second attack on a rehab center in less than a month; on June 6, 10 were killed in a similar incident. Rival cartels sometimes use the centers as de facto bunk houses for their employees. The region is being flailed by fighting between the Jalisco New Generation Cartel and the Santa Rosa de Lima Cartel.

OR Psilocybin and Decrim Initiatives Hand in Signatures, MA Pot Shops Reopen, More... (5/26/20)

Massachusetts marijuana stores see long lines as they do a limited reopening, two Oregon initiative campaigns handed in signatures last Friday, the Harris County DA throws out nearly a hundred drug convictions linked to a disgraced Houston police officer, and more.

An Oregon campaign to legalize the therapeutic use of psilocbyin mushrooms has handed in signatures. (Greenoid/Flickr)
Marijuana Policy

Massachusetts Marijuana Stores Reopen with Curbside Service, Long Lines Form. After a two-month forced shutdown because of the coronavirus pandemic, state marijuana retailers faced long lines of customers Monday as they reopened for curbside pickup of phoned in orders. While most legal marijuana states allowed pot shops to stay open as essential businesses, Gov. Charlie Baker (R) refused, saying that because Massachusetts was the only state in the region to have recreational retail sales, it was likely to draw customers from other states, endangering the public health of the commonwealth.

Psychedelics

Poll Show Growing Support for Access to Magic Mushrooms. A new poll from the marijuana research firm Green Horizons has 13% saying psychedelic psilocybin mushrooms should be outright legalized, with another 25% saying they should be legal under limited circumstances, such as for medical or spiritual reasons. Among people who said they had some knowledge of psychedelics, those figures jump to 18% and 35%, respectively. The poll was conducted by online surveys with a nationally representative sample of a thousand people.

Oregon Therapeutic Psilocbyin Initiative Campaign Hands in Signatures. The campaign to put a therapeutic psilocybin initiative, Initiative Petition 34, submitted signature petitions last Friday. The group handed in 133,000 raw signatures, 18% more than the 112,000 valid voter signatures required to qualify for the ballot. The group still has until July 2 to come up with the additional needed to ensure there are enough valid signatures..

Asset Forfeiture

Arizona Legislature Kills Move to End Civil Asset Forfeiture. A bill that would have ended civil asset forfeiture in the state died in the House last Thursday. SB 1556 had passed the Senate in March on a unanimous vote, but all 29 House Democrats and eight Republicans voted to kill it. Democrats who might have been expected to vote for the reform cited budgetary concerns amidst the coronavirus crisis, with one saying she couldn't support it without also ensuring counties would still have the money they need at a time of reduced state revenues due to the pandemic.

Drug Policy

Oregon Drug Decriminalization and Treatment Initiative Hands in Signatures. The campaign behind the Drug Addiction Treatment and Recovery Act, Initiative Petition 44, handed in more than 147,000 raw voter signatures last Friday. It needs 112,000 valid voter signatures to qualify for the November ballot. The initiative would decriminalize the possession of personal use amounts of all drugs and fund drug treatment with marijuana tax revenues. The campaign still has until July 2 to gather more signatures.

Law Enforcement

Houston Overturns More Drug Convictions Linked to Officer Who Led Fatal Botched Raid. Harris County District Attorney Kim Ogg announced last Thursday that nearly a hundred more defendants convicted as part of cases made by former Houston Police Officer Gerald Goines will see their cases cleared. Goines now faces murder and records tampering charges over a raid that left two innocent homeowners dead, and investigations of Goines in the aftermath of the raid led to earlier and these latest dismissals. "We will continue to work to clear people convicted solely on the word of a police officer who we can no longer trust," Ogg said. "We are committed to making sure the criminal justice is fair and just for everyone."

Faced with Coronavirus, Big Cities Begin to Forego Drug Arrests, Prosecutions [FEATURE]

Editor's Note: This is the first of a series of pieces we will be doing that will focus on the coronavirus pandemic and its various intersections with drug policy, criminal justice, drug use, and the drug trade.

In a time of global pandemic, small-time drug busts are increasingly seen as a luxury we can't afford. (Creative Commons)
Arresting and imprisoning people for drug offenses is a luxury America's biggest cities are finding they can no longer afford as they struggle with the coronavirus pandemic. Now several of them are leading the way in jettisoning the long-entrenched but totally discretionary policing and prosecutorial practice.

Concerns over officer safety, public safety, and keeping jail populations down in a time of social distancing are driving the moves, which are only temporary. But perhaps politicians, police and prosecutors will have a chance to break their addiction to punishing drug users and sellers by going cold turkey amidst the pandemic. That would be a silver lining to the current crisis.

As the pandemic morphed from looming threat to ongoing crisis in mid-March, forward-looking police departments and prosecutors' offices began to act. In Philadelphia, progressive District Attorney Larry Krasner cited public health concerns as he called for police to revise their arrest policies. The following day, Police Chief Danielle Outlaw issued an internal memo telling police not to arrest people for drug and other low-level non-violent offenses -- at least for now.

Instead, those who would have been arrested are being briefly detained to be identified and while officers gather evidence and then released. Their actual arrests somewhere down the road would be "effectuated by arrest warrant," according to the memo.

In a statement released the following day, Outlaw laid out a public health and police officer safety rationale for the move: "Our mission is to protect and promote the health and safety of our officers and the community we serve to the best of our ability while continuing to discharge every aspect of our core duties," she wrote.

Philadelphia isn't "turning a blind eye to crime," Outlaw told local media as she tried to assuage fears of criminals run amok. "This is similar to the 'summons process' that is utilized in many other counties throughout the Commonwealth. To reiterate, criminal offenders will be held accountable for the crimes they commit," she said.

But that's only if prosecutors in Krasner's office decide to pursue those cases after the fact. And Krasner is not a big fan of the war on drugs. He applauded Outlaw's move in an interview with local media the same day: "It's clear to me that the police commissioner is trying to be thoughtful and creative as we move into uncharted territory," Krasner said, "We commend her for putting the safety of the public's health first."

It's not just Philadelphia. Just days later, Krasner joined DAs from 30 other cities in signing on to an open letter urging local governments to make change in the face of COVID-19. The prosecutors, including those from Baltimore, New York, San Francisco, and St. Louis, called for police to adopt "cite and release policies for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances." They also called for the release of people being held solely because they can't come up with cash bail and for reducing jail and prison populations "to promote the health safety, staff, those incarcerated, and visitors."

Baltimore State's Attorney Marilyn Mosby cited the Philadelphia no-arrest policy when she ordered her prosecutors to dismiss any pending charges for drug possession and attempted drug distribution, as well as such offenses as urinating in public, open container, prostitution and minor traffic offenses.

In a memo to prosecutors, she wrote that such crimes pose no risk to public safety and arrestees would normally be released before trial anyway, so it made sense to take that action to limit the threat of a coronavirus outbreak behind bars. "An outbreak in prison or jails could potentially be catastrophic," she wrote. "Now is not the time for a piecemeal approach where we go into court and argue one by one for the release of at-risk individuals."

Baltimore Police have not adopted a no-arrest policy for such offenses, but a day after Mosby announced her moratorium on new prosecutions, the department said it had given officers guidance to use their own discretion in making low-level arrests to limit their exposure to the virus.

"For the safety of our residents and officers, the Baltimore Police Department is assessing and evaluating what calls-for-service our officers will be responding to in order to minimize the potential for exposure to COVID-19," the department said in a statement. "This includes giving guidance to officers in using their discretion to further minimize arrests on low-level and non-violent offenses, especially those outlined in the State's Attorney letter."

"We are very encouraged to see some policymakers, like Marilyn Mosby, putting public health first and freeing up important public safety resources at this critical time," said Matt Sutton, director of media relations for the Drug Policy Alliance. "Drug use does not pose any risk to public safety, so it makes sense that we would not arrest or prosecute people for that alone. Doing so is contrary to public health interests, subjecting them to incarceration where they would be put at greater risk of contracting COVID-19 or spreading it within an already unshielded population that is incapable of practicing the kind of social distancing and increased hygiene measures the rest of us are taking."

Meanwhile, in Chicago, Cook County State''s Attorney Kim Foxx announced that her office was putting a moratorium on prosecuting low-level, non-violent drug offenses while the pandemic rages. "Out of an abundance of caution for the health of law enforcement and the community at large, the State's Attorney's Office will not be pursuing cases which pose little to no risk to public safety at this time," Foxx said.

She added that the move was also necessitated by staffing reductions at the Illinois State Police lab. Even if police seized drugs, there is for now no way to test them, thwarting moving forward with prosecutions.

Chicago Police spokesman Anthony Guglielmi said officers won't stop making arrests for "large amounts" of drugs and downplayed the effect of the staffing reductions at the state crime lab. He also implied many drug arrestees are not being booked into jails.

"We can make an arrest," he said. "An individual could be released pending further investigation. So just because the drugs aren't being tested right away, it doesn't prohibit our ability to do our job. It will prolong it. But we can certainly conduct narcotics investigations that extend when the state lab reopens."

But in New York City, the current epicenter of the pandemic in the US, where dozens of NYPD officers have already contracted COVID-19, the department said it "won't slow arrests." If the NYPD is being stubbornly recalcitrant, at least one of the city's borough prosecutors is getting on board with using discretion. Brooklyn DA Eric Gonzalez announced that his prosecutors wouldn't be going after "low-level offenses that don't jeopardize public safety."

The NYPD's stance is hard to fathom, especially as the city is being swamped by a deluge of new coronavirus cases, and the department may by forced to shift its positions as the crisis deepens. At this point, though, it seems to be suffering from a sort of institutional inertia, blindly valuing the arrest of small-time drug offenders and other scofflaws over the health and safety of its own officers and the city's residents. In the midst of the current crisis, it would behoove police and prosecutors everywhere to knock off the rote drug busts and concentrate on the threat staring them in the face.

(The Drug Policy Alliance is a funder of StoptheDrugWar.org.)

Chronicle AM: Federal Marijuana Prosecutions Drop, Drug Czar Touts Reduced Overdoses, More... (1/17/20)

A New Mexico pot legalization bill gets filed, Rhode Island's governor calls for legalization, the drug czar touts a drop in drug overdose deaths, and more.

Federal marijuana prosecutions declined significantly last year, a new report finds. (Creative Commons)
Marijuana Policy

Federal Prosecutions Decline. Federal marijuana prosecutions declined by 28% from September 30, 2018 to September 30, 2019, according to a report from Supreme Court Justice John Roberts. The year-end report also found that total federal filings for drug crimes was up 5% over the same period, with some 83,000 cases.

New Mexico Legalization Bill Filed. State Sen. Jerry Ortiz y Pino (D) and Rep. Javier Martinez (D) have filed a bill, Senate Bill 115, that would allow adults in the state to possess and purchase cannabis from licensed retailers. The move comes just a day after Gov. Michelle Lujan Grisham (D) signaled that she supported legalizing marijuana this year. The bill would also automatically expunge prior possession convictions and promote participation by small and tribal-owned businesses. The bill would not allow home cultivation, but would decriminalize the growing up of to three plants and six seedlings.

Rhode Island Governor Includes Marijuana Legalization Proposal in State Budget Plan. Gov. Gina Raimondo (D) has included marijuana legalization as a priority in the state budget plan she released Thursday. The plan envisions state-contracted private marijuana retailers with the state controlling location, price, potency, and quantity of sales. Revenues would be divvied up among the state (61%), the private contractors (29%), and local communities (10%). This is the second year Raimondo is including adult-use cannabis legalization in the state budget; she introduced a similar proposal last year, which was ultimately unsuccessful.

Heroin and Prescription Opioids

Drug Czar Touts Decline in Overdose Deaths. Jim Carroll, the director of the Office of National Drug Control Policy (ONDCP -- the drug czar's office), said Friday that the country had seen a decline in drug overdose deaths for the first time in 30 years. "For the first time in almost 30 years, we've seen a decline in the number of Americans dying from an overdose -- it's a 5 percent reduction," he said. According to the Centers for Disease Control and Prevention (CDC), more than 70,000 people died of a drug overdose in 2017, with synthetic opioids such as fentanyl being the main driver behind those deaths.

Foreign Policy

US, Mexico Agree on Plan to Reduce Illegal Guns, Drug Trade. The Mexican government said Thursday it had reached agreement with the United States on a plan to combat the illicit trafficking of arms, drugs, and money. The announcement came after a meeting between US Attorney General William Barr and Mexican officials. The two countries said they agreed to cooperate on reducing drug consumption and combating addiction. The agreement came after President Trump threatened in November to designate Mexican drug cartels as terrorist organizations, prompting Mexican officials to quickly seek talks.

International

Canadian Health Minister Says Time Not Right for Drug Decriminalization. Health Minister Patty Hadju said Thursday that talk about decriminalizing drugs to deal with the country's opioid crisis is premature until people have enough help to fight their addictions. "My personal perspective on decriminalization is that it can't be done in a broad sweep," she said. "I think that having a comprehensive kind of approach that includes things like prevention, treatment, harm reduction, enforcement, housing, those are the kind of things that are actually going to start to move the needle," Hajdu said. "It's too premature to have a conversation about full decriminalization of substances until we get to the place where we have comprehensive support for people to get well."

Is This the Worst State in America on Drug Policy? [FEATURE]

With endless miles of farmland shading into ever higher and drier terrain as one moves West, then on to the Badlands and then the Black Hills, South Dakota has a certain austere beauty. Not so in its approach to drugs. When it comes to drug policy, it is one of the ugliest places in the country.

South Dakota's Badlands. The state is a pretty bad land for drug users, too. (Creative Commons)
The staunchly conservative state holds the dubious distinction of being the only state to twice defeat a medical marijuana initiative (although activists are giving it another shot this year, and a more wishful legalization initiative, too). And it is being sued by the state ACLU over the forced drug testing of toddlers and arrestees alike.

South Dakota also boasts the nation's only law making ingestion -- not possession -- of a controlled substance a felony, which helps explains the reflex resort to drug testing arrestees: A positive drug test becomes a prosecutable offense. While 10 other states have ingestion laws on the books, none of them make it a felony.

And now, a new report from the Prison Policy Initiative finds that South Dakota jails more people per capita than any other state, that almost half of all arrests are drug- or alcohol-related (compared to 29 percent nationally), and that people of color -- in this case, primarily Native Americans -- are disproportionately arrested at a rate far above the national average.

According to the report, South Dakota jailed 2,888 people per 100,000, nearly twice the national average of 1,506, and narrowly edging out Mississippi, which had 2,814 per 100,000. (Other states that jailed more than one out of 50 of their residents were Georgia, Kansas, Kentucky, New Mexico, Oklahoma, and Wisconsin.)

But jail is just the gateway to the incarceration complex, and when it comes to long-term stays behind bars, South Dakota displays the same sort of worrying numbers. According to the ACLU of South Dakota, the state's prison population has increased more than five-fold since the beginning of the drug war era 50 years ago. And despite 2013 reforms designed to reduce the prison population, it stubbornly stays near an all-time high reached in 2017.

In fact, new prison admissions spiked upward by 49 percent between 2015 and 2018. These numbers are largely attributable to drug prosecutions, with nearly one in three prisoners doing time for drugs in 2015, up from one in four the year before.

As the ACLU noted, "This increase was driven almost entirely by a rise in the number of people whose most serious offense was unauthorized ingestion of a controlled substance."

That's right -- South Dakota is spending millions of dollars to incarcerate people not for drug dealing, not for drug possession, but for having used drugs and still having traces of them in their system.

And it's doing so in a stunningly racially disproportionate manner. Native Americans make up only 7 percent of the state's population but constitute nearly one-third (31 percent) of the state prison population. Similarly, the state has a tiny African American population (2 percent), but black South Dakotans made up 8 percent of the prison population. The imprisonment rate for both African Americans and Native Americans was seven times that of the state's overwhelmingly white population. For the state's Latino population, the imprisonment rate was three times that of whites.

In a press release in October, the state ACLU reported that it's just as bad in the state's jails, with Native Americans making up roughly half of all jail admissions and accounting for the majority of all drug- and alcohol-related arrests in the state. The group noted that Native Americans between ages 15 and 64 are jailed at 10 times the rate of white people in South Dakota.

"It's time to come to terms with the significant racial disparities that are so ingrained in our criminal legal system," said said Libby Skarin, ACLU of South Dakota policy director. "This is not something that can be mitigated by solely reducing the number of arrests in South Dakota. Our elected officials need to acknowledge the realities of these racial disparities and commit to tackling them head-on."

State leaders grasp that there is a problem here. The state legislature has set up an interim study group to examine the state's approach to drug offenses, which met for the first time in August. The group includes legislators, law enforcement, court administrators, the South Dakota attorney general and the secretary of the Department of Corrections, but not public health officials or actual drug users.

The panel heard even more disturbing numbers about drug prosecutions. There were 2,104 people convicted of drug possession statewide last year, a more than five-fold increase from 2009, even though drug use levels have remained relatively stable over that period. That is leading panel members to wonder about the role of local prosecutors in generating such large increases in prosecutions.

"Though drug use is undoubtedly a serious issue, we can't incarcerate our way out of addiction," said the ACLU's Skarin, "The enormous amount of money South Dakota spends on jailing people for drug-related offenses is disproportionate and causes more harm than good to individuals struggling with addiction, their families and their communities."

That's why the ACLU is supporting initiatives such as reclassifying ingestion as a misdemeanor.

"Reclassifying ingestion as a misdemeanor and investing the resulting savings of state funds in diversion and treatment programs designed to combat addiction would go a long way in helping to solve the underlying problems leading to drug abuse," Skarin said.

Pennington County (Rapid City) public defender Eric Whitcher is on the same page as the state ACLU. He told the interim panel that 73 of his last 100 drug possession cases involved only trace amounts of not enough of the drug to be able to be weighed and that if such cases were not charged as felonies, his office could operate with significantly fewer felony prosecutors.

"We are an outlier," Whitcher said of South Dakota. "We are creating more felonies for the same conduct than our neighboring states. What impact does that have on their lives?"

Dropping ingestion from a felony to a misdemeanor would be a step in the right direction, but it's an awfully small step. South Dakota has a long, long way to go to get on the right side of drug policy, and no natural beauty can hide that.

Chronicle AM: Opioid Makers Settle with Ohio Counties, Mexico Marijuana Legalization Moves, More... (10/21/19)

A federal court says the DEA is doing what it needs to in processing marijuana research applications, more opioid makers and distributors settle and pay out over the opioid crisis, the Honduran president's brother has been convicted of drug trafficking conspiracy in New York, and more.

Fentanyl manufacturer Teva Pharmaceuticals is among four companies who just settled for millions with two Ohio counties. (CC)
Marijuana Policy

Federal Court Dismisses Suit Against DEA over Marijuana Growing Applications. The US Court of Appeals for the District of Columbia dismissed a lawsuit against the DEA over the processing of applications for research-grade marijuana cultivators. The court found that since the case was filed in June, the DEA had fulfilled the requirement to process those applications.

Medical Marijuana

Georgia Medical Marijuana Program Stalled. Six months after Gov. Brian Kemp (R) signed a bill allowing for the cultivation and sales of medical marijuana in the state, the program is stalled because he and other top political figures have yet to appoint the members of a commission that will oversee the expansion. Neither the governor nor other key figures have explained the delay.

Utah Medical Marijuana Advocates Win Round in Lawsuit over Replacing Initiative. Medical marijuana advocates who are suing the state after the legislature replaced a voter-approved initiative with its own medical marijuana bill won an initial victory in court last Thursday. US Magistrate Judge Dustin Pead denied a motion from the attorney general's office to dismiss their lawsuit. He also accepted plaintiff's request to send the case back to state court.

Heroin and Prescription Opioids

Ohio Counties to Receive Millions in Settlement with Opioid Makers. Cuyahoga and Summit counties will receive at least $260 million from four opioid distributors and manufacturers as a settlement of their case against them for their role in the opioid epidemic. The four are drug distributors McKesson, AmerisourceBergen, and Cardinal Health as well as generic opioid painkiller maker Teva Pharmaceuticals. The only remaining defendant, Walgreens, did not settle, but now its case, which was set to begin Monday, is delayed.

International

Honduran President's Brother Convicted of Drug Trafficking in New York. A federal jury in New York City found former Honduran congressman Tony Hernandez guilty of a drug trafficking conspiracy. Hernandez is the brother of Honduran President Juan Orlando Hernandez. Early in the trial, prosecutors told the court that Tony Hernandez passed on a $1 million bribe from Sinaloa Cartel head Joaquin "El Chapo" Guzman to his brother during Juan Orlando Hernandez' 2013 presidential reelection campaign.

Mexican Committees Unveil Marijuana Legalization Bill Ahead of Supreme Court Deadline. Mexican Senate committees unveiled draft marijuana legalization bills last Thursday, days ahead of a Supreme Court-imposed deadline, and said they would stay in permanent session to ensure they get legislation passed before the October 31 deadline. Votes could come this week. The bill would allow people 18 and over to possess marijuana, grow up to four plants, and purchase pot from licensed retailers. A new regulatory body, the Cannabis Institute, would handle licensing and monitoring implementation of the law, and poor people, small farmers, and indigenous people would have licensing priority.

Does This State Have the Worst Drug Policies in America? [FEATURE]

With endless miles of farmland shading into ever higher and drier terrain as one moves west, crossing the Missouri River and then on to the Badlands and the Black Hills, South Dakota has a certain austere beauty. Not so in its approach to drugs. When it comes to drug policy, it is one of the ugliest places in the country.

South Dakota's Badlands. The state is a pretty bad land for drug users, too. (Creative Commons)
The staunchly conservative state holds the dubious distinction of being the only state to twice defeat a medical marijuana initiative. (Activists are giving it another shot this year -- and a more wishful legalization initiative, too.) And it is being sued by the state ACLU over the forced drug testing of toddlers and arrestees alike.

South Dakota also boasts the nation's only law making ingestion -- not possession -- of a controlled substance a felony, which helps explains the reflex resort to drug testing arrestees: A positive drug test becomes a prosecutable offense. While 10 other states have ingestion laws on the books, none of them makes it a felony.

And now, a new report from the Prison Policy Initiative finds that "South Dakota jails more people per capita than any other state," that almost "half of all arrests are drug or alcohol related, compared to just 29 percent nationally," and that people of color -- in this case, primarily Native Americans -- are disproportionately arrested at a rate far above the national average.

According to the report, South Dakota jailed 2,888 people per 100,000, nearly twice the national average of 1,506, and narrowly edging out Mississippi, which had 2,814 per 100,000. (Other states that jailed more than one out of 50 of their residents were Georgia, Kansas, Kentucky, New Mexico, Oklahoma, and Wisconsin.)

But jail is just the gateway to the incarceration complex, and when it comes to long-term stays behind bars, South Dakota displays the same sort of worrying numbers. According to the ACLU of South Dakota, the state's prison population has increased more than five-fold since 1980, a decade after the drug war began. And despite 2013 reforms designed to reduce the prison population, it stubbornly stays near an all-time high reached in 2017.

In fact, new prison admissions spiked upward by 49 percent between 2015 and 2018. These numbers are largely attributable to drug prosecutions, with nearly one in three prisoners doing time for drugs in 2019, up from one in four in 2014.

As the ACLU noted, "This increase was driven almost entirely by a rise in the number of people whose most serious offense was unauthorized ingestion of a controlled substance."

That's right -- South Dakota is spending millions of dollars to incarcerate people not for drug dealing, not even for drug possession, but for having used drugs and still having traces of them in their system.

And it's doing so in an alarmingly racially disproportionate manner. Native Americans make up only 7 percent of the state's population but constitute nearly one-third (31 percent) of the state prison population. Similarly, the state has a tiny African American population (2 percent), but black South Dakotans made up 8 percent of the prison population. The imprisonment rate for both African Americans and Native Americans was seven times that of the state's overwhelmingly white population. For the state's Latino population, the imprisonment rate was twice that of whites.

In a press release last month, the state ACLU reported that it's just as bad in the state's jails, with Native Americans making up roughly half of all jail admissions and accounting for the majority of all drug- and alcohol-related arrests in the state. The group noted that "Native Americans between ages 15 and 64 are incarcerated at 10 times the rate of white people in South Dakota."

"It's time to come to terms with the significant racial disparities that are so ingrained in our criminal legal system," said Libby Skarin, ACLU of South Dakota policy director. "This is not something that can be mitigated by solely reducing the number of arrests in South Dakota. Our elected officials need to acknowledge the realities of these racial disparities and commit to tackling them head-on."

State leaders grasp that there is a problem here. The state legislature has set up an interim study group to examine the state's approach to drug offenses, which met for the first time in August. The group includes legislators, law enforcement, court administrators, the South Dakota attorney general and the secretary of the Department of Corrections, but not public health officials or actual drug users.

The panel heard even more disturbing numbers about drug prosecutions. There were 2,104 people convicted of drug possession statewide so far this year, a more than four-fold increase from 2009, even though drug use levels have remained relatively stable over that period. That is leading panel members to wonder about the role of local prosecutors in generating such large increases in prosecutions.

"Though drug use is undoubtedly a serious issue, we can't incarcerate our way out of addiction," said the ACLU's Skarin. "The enormous amount of money South Dakota spends on jailing people for drug-related offenses is disproportionate and causes more harm than good to individuals struggling with addiction, their families and their communities."

It is for this reason that the ACLU says it is supporting initiatives such as "reclassifying ingestion as a misdemeanor."

Skarin explained, "Reclassifying ingestion as a misdemeanor and investing the resulting savings of state funds in diversion and treatment programs designed to combat addiction would go a long way in helping to solve the underlying problems leading to drug abuse."

Pennington County (Rapid City) public defender Eric Whitcher is on the same page as the state ACLU. He told the interim panel that 73 of his last 100 drug possession cases involved only trace or immeasurable amounts of drugs and that if such cases were not charged as felonies, his office could operate with significantly fewer felony prosecutors.

"We are an outlier," said Whitcher, speaking about South Dakota. "We are creating more felonies for the same conduct than our neighboring states. What impact does that have on their lives?"

Dropping ingestion from a felony to a misdemeanor would be a step in the right direction, but it's an awfully small step. South Dakota has a long, long way to go to get on the right side of drug policy, and no natural beauty can hide that.

Chronicle AM: Nation's First Cannabis Cafe Opens Doors, Dutch Supreme Court Rules Against Ayahuasca, More... (10/2/19)

Los Angeles sees the nation's first legal cannabis cafe, the Arizona legalization initiative draws industry opposition, the Justice Department says DEA didn't adequately regulate opioid manufacturing, and more.

Ayahuasca-inspired art. The Dutch Supreme Court has ruled the substance illegal. (Pinterest)
Marijuana Policy

Senators Introduce Federal Student Financial Aid Bill. US Sens. Jeff Merkley (D-OR) and Ron Wyden (D-OR) announced new bipartisan legislation Tuesday they say would allow students with a felony drug conviction access to the American Opportunity Tax Credit for higher education. The Eliminating Discrimination and Creating Corridors to Expand Student Success Act of 2019 (ED ACCESS Act) would fix this inequity by repealing the lifetime ban. The measure does not yet have a bill number.

Arizona Legalization Initiative Campaign Draws Industry Opponents. A new marijuana industry group has formed to fight the Smart and Safe Arizona Act, which itself is backed by other industry groups. The new group calls itself the Arizona Cannabis Chamber of Commerce and has its own ideas about what legalization should look like. The group complains that the initiative is tailored to the needs of existing dispensary owners, that there wouldn't be enough licenses available, and that the proposed 16% sales tax rate is too high.

Pennsylvania Bill Filed to Legalize via State-Run Model. State Rep. David Delloso (D) on Monday filed a bill that would legalize marijuana and allow adults 21 and older to possess, consume, cultivate and purchase marijuana through a state stores system run by the Liquor Control Board. Retail pot shops would be taxed at 19%, and all of that revenue would go toward the state general fund. The bill would also create a distinct regulatory scheme for industrial hemp. The bill is not yet available on the state legislative web site.

Tennessee Steps Back from Marijuana Enforcement. The Tennessee Bureau of Investigation has announced that it will no longer test amounts of marijuana less than a half ounce, making it virtually impossible for prosecutors to build a case against small-time possessors.

Nation's First Cannabis Café Opens in Los Angeles. The first-ever licensed cannabis café in the US has opened in Los Angeles. The Lowell Café opened its doors to the public in West Hollywood on Tuesday. The café is a hybrid marijuana lounge and restaurant where you can order some weed along with your meal.

Heroin and Prescription Opioids

Justice Department Says DEA Failed to Properly Regulate Opioids. In a new report from the agency's inspector general, the Justice Department found that the DEA fell short in regulating the supply of prescription opioids in the past two decades. The agency continued to raise manufacturing quotas for opioids with little regard to oversupply or misuse, the report found. The DEA "ill-equipped to effectively monitor ordering patterns for all pharmaceutical opioids, which could enable the diversion of these prescription drugs and compromise public safety." Although alarm bells were already ringing by the turn of the century, the DEA allowed manufacturing levels of oxycodone -- sold as OxyContin by Purdue Pharma -- to nearly quadruple between 2000 and 2013.

International

Dutch Supreme Court Rules Ayahuasca Illegal. The Dutch Supreme Court ruled Tuesday that ayahuasca falls under the country's hard drug laws and that its import is illegal. The ruling came in the case of a woman who had imported about 70 pounds of ayahuasca tea from Brazil for use in Santo Daime church rituals. Because the substance contains DMT, which is covered by Dutch drug laws, ayahuasca is covered as well.

Mexican Marijuana Legalization Bill Would Create State-Run System. Diputado Mario Delgado Carrillo, coordinator of the ruling MORENA Party's bench in the Chamber of Deputies, filed a bill Tuesday that would legalize marijuana through a government-run system. Under the bill, a regulatory body called Cannsalud would be in charge of the legal market, which would be the "exclusive property of the federal government, with a technical, operational and management autonomy for the realization of its primary purpose" to create a legal, regulated system. "With this, the cannabis market is not left to autonomous regulation by individuals, but the state is involved as a constant supervisor and controller of the activity of this substance within a margin of legality that guarantees a benefit for all," Delgado said. "This is a first step towards the opening of a new lawful market, and a public company is proposed as an obligatory intermediary in order to identify and contain the risks inherent in the establishment of a new market, when there are already international commercial interests that seek to maximize its utilities above the protection of people's health," he said.

Chronicle AM: CDC Warns on THC Vaping, Indianapolis to End Small Marijuana Prosecutions, More... (9/30/19)

The feds are homing in on THC products as the vaping crisis intensifies, a Virginia poll shows a rapid increase in support for marijuana legalization there, Indianapolis says bye-bye to small-time pot prosecutions, and more.

What's in your vape? The CDC warns on THC vaping. (Creative Commons)
Marijuana Policy

Feds Focus on THC Vapes as Source of Most Illnesses. The Centers for Disease Control and Prevention (CDC) has found that more than three out of four people who have been sickened by vaping in recent weeks reported using products containing THC, while only 16% reported using only nicotine products. A second CDC study focused on Illinois and Wisconsin found that 87% of patients reported using products containing THC. CDC Principal Deputy Director Anne Schuchat has now advised people to consider "refraining from the use of vaping products, particularly those containing THC" -- the first time federal officials have specifically warned against the use of such products.

Arizona Legalization Initiative Gets Updated, Begins Signature Gathering. The Smart and Safe Arizona Act legalization initiative has been amended to allow more people to expunge past marijuana convictions and to allow for 26 retail licenses to be issued to "individuals from communities disproportionately impacted" by prohibition. Now, signature gathering gets underway. Organizers have one year to come up with some 237,000 valid voter signatures to qualify for the November 2020 ballot.

Virginia Poll Shows Strong Majority for Legalization. A new poll from the University of Mary Washington has support for marijuana legalization in Virginia at 61%, up sharply from the 39% support reported in the same poll in 2017. "The latest Mary Washington survey demonstrates -- to quote Bob Dylan, 'the times they are a-changin'' -- here in the Old Dominion," said Stephen J. Farnsworth, professor of political science at the University of Mary Washington and director of its Center for Leadership and Media Studies. The poll found majority support for legalization among all demographic groups except Republicans and people over 65.

Indianapolis Will No Longer Prosecute Marijuana Possession Cases. The Marion County (Indianapolis) Prosecutor's Office announced Monday it will no longer prosecute small-time pot possession cases. "Too often, an arrest for marijuana possession puts individuals into the system who otherwise would not be. That is not a win for our community," Prosecutor Ryan Mears said. "The enforcement of marijuana policy has disproportionately impacted people of color, and this is a first step to addressing that." Indiana Attorney General Curtis Hill (R) responded that he was "concerned" that the move would "attract to Indianapolis people with a particular interest in communities where drug enforcement is lax."

Court Finds Prosecutorial Misconduct Led to a Drug Conspiracy Conviction, But Lets 30-Year Sentence Stand Anyway [FEATURE]

This article is part 11 of Drug War Chronicle's occasional series on prosecutorial misconduct in drug cases written by investigative journalist Clarence Walker.

The federal prison in Gilmer, WV. Oscar Sosa's home for the next quarter-century, unless he wins on appeal. (BOP)
On October 7, 2016, a jury in Brownsville, Texas, convicted Oscar Sosa, then 32, of conspiracy to possess and possession with intent to distribute three kilos of methamphetamine. On April 24, 2017, Southern Texas Federal District Judge Andrew Hanen hammered Sosa with 30 years in federal prison followed by five years of supervised release.

Sosa appealed, claiming prosecutors committed three errors in the case, rendering the trial unfair. Sosa's appeal alleged the government erred when prosecutors improperly introduced drug profiling evidence by a DEA agent to connect their client into the conspiracy. Sosa also alleged that the prosecutor unfairly bolstered witnesses' purported credibility by indicating Sosa was part of the conspiracy, even though there were no tape-recorded conversations or written documents to prove with certainty that Sosa participated in the trafficking of illegal drugs, nor was he ever caught with any drugs.

With no drugs and no surveillance or documentary evidence, Sosa was in essence convicted by the testimony of cooperating witnesses who faced the possibility of life in prison on drug charges if they didn't help the prosecution. All three cooperating witnesses received prison sentences ranging from six to seven years each for their role in the dope deal.

When the US 5th Circuit Court of Appeals took up his case, it found that prosecutorial misconduct had indeed occurred, but rejected his bid for a new trial because his federal defender had failed to object during his original trial.

"Today's outcome is the same as many of our prior decisions addressing drug profiling testimony and bolstering of witnesses' testimony," the court held in its July 25, 2018, ruling. "We find the government engaged in misconduct but nonetheless the court concludes the defendant cannot meet the heavy burden of obtaining reversal for error that he did not object to during trial."

And the court implicitly chided prosecutors more interested in winning than in justice. "If the ultimate end of prosecution is securing convictions it may not be surprising this trend has not deterred improper trial tactics," the court noted.

"It leaves a bad taste to know Oscar Sosa will spend the next 30 years in prison because his defense attorney failed to object to the prosecutorial misconduct," said attorney John T. Floyd, a Harris County Texas federal and state law criminal defense attorney.

"So when a lawyer fails to object it's likely harmless error because over the years the US Supreme Court has watered down all of the amendments in favor of the government," said criminal law veteran Cheryl Irvin, who has tried numerous drug cases including drug related murders.

Although concessions that prosecutorial misconduct unfairly influenced the jury should have resulted in the appeals court granting Sosa a new trial, the appellate jurists -- Justices James Yue-Ho, Gregg Costa and Jennifer Walker Elrod -- made it clear why Sosa's conviction wasn't overturned: "Troubled as we are by the continued use of these improper tactics we do not find that Sosa has met his burden of showing that the errors substantially affected the outcome of the trial," they wrote.

In other words, while prosecutors' conduct in the case was wrong, it wasn't wrong enough to win him a new trial.

Conspiracy dope cases in the federal courts under the statute (21 U.S.C. 846) are inherently dangerous for an individual accused of complicity with other defendants, especially when the evidence is considerably circumstantial and undeniably weak.

To prove a federal drug conspiracy charge the prosecutor must prove:

  • Two or more people conspired to commit an illegal act.
  • A person(s) intentionally or knowingly participated in the conspiracy.
  • A person(s) acted beyond the initial agreement in furtherance of carrying out the crime.

Thus, someone can be prosecuted and convicted in a drug conspiracy case even if he is never caught with drugs in his possession. This is known as a "dry conspiracy."

Dry conspiracies usually start off with one or more individuals who got caught with drugs by police. They then decide to cooperate with the feds, giving up the names of others allegedly involved in the conspiracy in return for much lighter sentences. They will also provide inside information on drug offenses committed, such as how money was laundered, how much drug weight was trafficked, and how much money was paid to couriers, among other things.

Oscar Sosa went down in a dry conspiracy. No drugs, no hard evidence, just the word of cooperating witnesses was enough to put him away -- that and prosecutorial misconduct and a pinch of public defender neglect. After Sosa got slammed with 30 years, his new court-appointed attorney filed an appeal alleging that Assistant US Attorneys Karen Betancourt and Jody Young, committed serious misconduct that should be grounds for the conviction to be reversed.

Going After Sosa

https://stopthedrugwar.org/files/oscar-sosa.jpg
Oscar Sosa (Facebook)
The case against Sosa unfolded after DEA agents and sheriff's deputies arrested two drug couriers, Juan Sarmiento and Jose Galvan, while carrying three kilos of meth at a bus station in Harlingen, Texas. When confronted by agents acting on a tip, the pair consented to be searched, and the lawmen found six bundles of meth sewn into Sarmiento's jacket lining and four more in Galvan's pockets.

DEA agents received a tip about the men headed to a gas station which also served as a bus stop. When law enforcement officers confronted Sarmiento and Galvan they panicked and gave officers consent to search them and their luggage, whereupon the lawmen discovered six bundles of crystal meth sewn into Sarmiento's jacket lining. Four more bundles were found in Galvan's pockets.

During questioning the men gave agents conflicting statements about the origin of the drugs. Eventually, though, the men admitted they'd planned to take the meth to a man named 'Oscar' in Plant City, Florida. The men also identified two women "Betty and Patti" as the owner or managers of the narcotics they were carrying.

DEA later identified the women as Mexican nationals Patricia Sosa and Bertha Sosa. Patricia allegedly was either Oscar's aunt or mother and Bertha was an aunt or cousin. Also implicated and charged in the scheme was Genaro Luera, who was also identified as a possible in-law relative connected to Patricia and Bertha.

On appeal, Sosa's attorney identified three examples of prosecutorial misconduct, arguing that the cumulative effect of the errors should cause the conviction to be overturned. While the 5th Circuit jurists agreed that the prosecution erred, it refused to annul the verdict.

"The first error is when the government introduced impermissible profiling testimony by having a DEA expert witness not only describe typical aspects and behavior of a drug trafficking organization, but, also tell the jury where Sosa fit into that structure," the court noted, citing U.S. vs Gonzalez-Rodriguez (621 F. 3d 354), to explain the problem with the profiling testimony.

Here's the exchange between the prosecutor and the DEA agent that unfairly used profiling to bolster the case that Sosa was a drug dealer:

Prosecutor: "When you're looking at (Sosa's records) and you're not finding any assets in Mr. Sosa's name, is that somehow strange he doesn't have any assets in his name, that tells me what?

DEA Agent Jason Bradford: "Yes, we consider that conduct common of drug traffickers.

Prosecutor: "And why is that?"

DEA Agent Bradford: "Because they don't want to leave a trail for their assets."

The appeals court found that the prosecutor erred by eliciting that testimony from the DEA agent. While Sosa had no property or assets in his name, that didn't make him a drug dealer, and it was up to the jury -- not the prosecutor and the DEA agent -- to make that determination.

"When stated in general terms, such testimony may help the jury understand the significance and implications of certain conduct," the court held. "But the ultimate responsibility of linking a defendant's conduct with the characteristics of drug trafficking must be left to the jury."

Sosa's second ground for appeal was that prosecutors committed error by stating in open court that the witnesses' testimony had already been determined to be true, or, worse yet, that they falsely alleged that the judge in the case has concluded the witnesses' testimony was truthful.

The appeals court agreed with that claim, too: "Sosa's claim the government improperly bolstered the credibility of the cooperating witnesses (Sarmiento and Galvan) has merits," it held, citing US vs Gracia (522 F. 3d 597).

In that case, the appellate judges reversed Gracia's conviction for possession of 50 kilos of cocaine based on the prosecutor's bolstering of the witness's testimony. The appeals court pointed out how the prosecutor told the jury that the agents in the case were "very, very credible witnesses" and went far as to ask the jury if they thought an agent, a man with a family, would lie under oath to convict Gracia.

"A personal assertion by a prosecutor of government witnesses' credibility is impermissible," the 5th Circuit explained. "Improper bolstering occurred" in Sosa's case, the judges agreed, when the prosecutor claimed the judge's stamp of approval of the witnesses' credibility.

Credibility of a witness's testimony must always be determined by the jury, and it is not the prosecutor's position that the judge declared such testimony by the cooperating witnesses to be true.

Despite these grave errors, Sosa's attorney, Raquel Munoz, failed to object and have the errors corrected and preserved for appeal.

5th Circuit Court of Appeals Judge Jennifer Walker Elrod dissented, arguing prosecutorial misconduct must be punished.
Sosa's third appellate issue argued that a confrontation clause violation occurred when DEA agent Jason Bradford mentioned a tip implicating Patricia Sosa, Sosa's mother or aunt. Prosecutor asked Bradford how DEA determined Patricia Sosa was involved in dealing drugs from Mexico.

Bradford explained how he received an Automated Alert about other agents that were investigating the woman. Bradford further said a Houston undercover agent confirmed Patricia Sosa had sought to find couriers to transport drugs from Mexico into the Houston area. The 5th Circuit ruled against Sosa on this point by stating the tip about Patricia Sosa was something the jury already knew about. "As a result, there was no clear confrontation violation," the justices concluded.

The appeals court found two clear instances of prosecutorial misconduct in Sosa's case, but found that because his defense attorney failed to object in a timely fashion, his conviction should stand, in effect condoning the behavior.

5th Circuit Justice Jennifer Walker disagreed. "I do not condone prosecutorial misconduct here," she wrote in her dissent. "And as the Supreme Court suggested, we should continue to discourage it."

The next step for Oscar Sosa to possibly get a crack at a new trial is to petition for one at the US Supreme Court. Meanwhile, he remains behind bars at FCI Gilmer Unit in West Virginia with more than 25 years to go.

Reach Investigative Criminal Justice Journalist Clarence Walker at [email protected]

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