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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."

Supreme Court Rejects Reduced Charges for Low-Level Crack Offenders, ICC Prosecutor Seeks to Open Philippine Drug War Investigation, More... (6/14/21)

Connecticut lawmakers will meet in special session this week in a bid to get marijuana legalization done, Wyoming activists began initiative campaigns for marijuana decriminalization and medical marijuana, and more.

ICC Prosecutor Fatou Bensouda has requested authorization to open a formal investigation of Phiiippines drug war abuses. (ICC)
Marijuana Policy

Connecticut Lawmakers to Take Up Marijuana Legalization in Special Session This Week. After failing to reach agreement on marijuana legalization legislation during the regular legislative session, lawmakers are set to return to Hartford this week to take up the issue. Democrats say they have the votes to pass it, despite Republican concerns.

Wyoming Marijuana Advocates Roll Out Medical Marijuana, Decriminalization Initiative Campaigns. Marijuana advocates and Libertarian Party members held a press conference outside the state capitol in Cheyenne as they turned in two ballot initiatives, one that would legalize medical marijuana and one that would decriminalize the possession of small amounts of marijuana.

Sentencing

Supreme Court Rejects Reduced Charges for Low-Level Crack Cocaine Offenders. The Supreme Court on Monday ruled that the First Step Act does not apply to low-level crack cocaine offenders, even though supporters of the law said it was intended to do so. The court held that the language of the law meant it applied only to people convicted of possessing larger amounts of cocaine, not those arrested with only a small amount. The decision was unanimous.

International

International Criminal Court Likely to Proceed with Official Investigation of Philippine Drug War Killings. The Office of the Prosecutor of the International Criminal Court (ICC) has concluded its preliminary examination into drug war-related abuses in the Philippines and decided there is sufficient evidence to request judicial authorization to proceed with an official investigation. "The situation in the Philippines has been under preliminary examination since 8 February 2018," said Prosecutor Fatou Bensouda. "During that time, my Office has been busy analyzing a large amount of publicly available information and information provided to us under article 15 of the Statute. On the basis of that work, I have determined that there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between 1 July 2016 and 16 March 2019 in the context of the Government of Philippines 'war on drugs' campaign."

Marijuana Legalization Bill Filed in House, MD Governor Vetoes Paraphernalia Decrim, More... (5/28/21)

The proposed Biden budget retains the ban on selling and taxing marijuana in Washington, DC, marijuana consumption lounge bills are moving in California and Nevada, and more.

Maryland Gov. Larry Hogan (R) has vetoed a bill that would decriminalize the possession of drug paraphernalia. (Creative Commons
Marijuana Policy

Federal Marijuana Legalization Bill Introduced in House. House Judiciary Committee Chair Jerry Nadler (D=NY) reintroduced a marijuana legalization bill Friday morning, the Marijuana Opportunity Reinvestment & Expungement (MORE) Act. The House passed a similar version of the bill last year, only to see in die in the GOP-led Senate. This year, Senate Majority Leader Chuck Schumer (D-NY) says he will filed a legalization bill shortly.

Biden Budget Keeps Ban on DC Marijuana Sales. President Biden's first proposed budget retains congressionally imposed on selling and taxing marijuana in the nation's capital. House Democrats could ignore that that proposal and vote to undo the budget rider that blocks the District from moving forward, but that could get complicated in the evenly divided Senate.

California Assembly Approves Bill to Allow Food and Drink Sales at Marijuana Consumption Lounges. The Assembly on Thursday approved Assembly Bill 1034, which would alter the state's marijuana laws, which already allow consumption lounges, to allow those lounges to sell non-marijuana foods and drinks. The bill now heads to the Senate.

Nevada Assembly Approves Marijuana Consumption Lounge Bill. The Assembly on Thursday approved Assembly Bill 341 on a 29-12 vote. The bill would allow existing pot retailers to open a consumption lounge at one of its facilities. The bill now heads to the Senate.

Medical Marijuana

Colorado Bill with Stricter Rules for Medical Marijuana Wins Committee Vote. After a lengthy hearings, the House Public& Behavioral Health & Human Services Committee unanimously approved a bill, House Bill 1317, proposing stricter rules for medical marijuana patients and physicians, as well as new packaging requirements for commercial marijuana concentrate and state-funded research into the mental-health effects of potent marijuana products. The bill now goes before the House Finance Committee.

Florida Supreme Court Upholds Restrictive Medical Marijuana Rules. In a ruling Thursday, the state Supreme Court upheld the state's restrictive medical marijuana rules, rejecting a challenge from a grower who was denied a license. The grower had argued that the state's regulation did not comply with the 2016 constitutional amendment allowing medical marijuana. A 2017 law created steep barriers to entry in the industry by mandating that licensees had to operate in every aspect of the business.

Drug Policy

Federal Bill to Make Fentanyl Schedule I Filed in House. A bipartisan pair of congressmen filed the Federal Initiative to Guarantee Health by Targeting (FIGHT) Fentanyl Act on Thursday. The drug and its analogs have been temporarily placed in Schedule I, a classification that was set to expire earlier this month, but was extended to October 2022. This bill, and companion legislation already filed in the Senate, would make the move permanent.

Illinois Legislature Approves Bill Restoring Food Stamp Benefits for Drug Felons. With a vote in the Senate Thursday, the legislature has approved House Bill 88, which would provide that a conviction for a drug crime would no longer make people ineligible for Temporary Assistance for Needy Families (food stamps) benefits. The ban is federally imposed, but contains a provision allowing states to opt out from enforcing it, and nearly all states have.

Harm Reduction

Maryland Governor Vetoes Drug Paraphernalia Decriminalization Bill. Governor Larry Hogan (R) vetoed a bill that would have decriminalized the possession of drug paraphernalia on Wednesday, Senate Bill 420. He cited public safety concerns in his veto message. But bill sponsor Senator Jill Carter (D-Baltimore) has vowed to override the veto. The bill passed with a veto-proof majority in the House, but not the Senate.

Mississippi's Medical Marijuana Law Struck Down Before It Can Take Effect [FEATURE]

Mississippians want medical marijuana. They said so at the polls last November when 74% of them voted for Amendment 65, the medical marijuana initiative that had jumped through all the procedural hoops to make it onto the ballot. They also said they wanted that specific language, rejecting a watered-down Alternate Amendment 65A sponsored by the Republican-dominated state legislature in a bid to seize control over the issue.

Mississippi Supreme Court (mississippi.org)
But before the voters had spoken, long-time Republican Madison Mayor Mary Hawkins Butler filed suit to have the initiative thrown out on what can fairly be described as a technicality. And last Friday, the state Supreme Court, consisting of five justices appointed by Republican governors and four selected in nonpartisan elections, agreed, overturning the clear will of the voters because the legislature has failed to act for two decades on a constitutional housecleaning issue.

Under a provision of the state constitution added in the 1990s, Section 273, initiative campaigns are required to get one-fifth of signatures from each of five congressional districts, which seems straightforward enough. The only problem is that since congressional reapportionment after the 2000 census, the state only has four districts, making it impossible for any initiative to comply with the constitutional language.

Since 2000, the state has seen numerous initiatives, with many, including a 2011 voter ID initiative, becoming state law. None of them have been thrown out because of the conflict between the Section 273 language and reality. Until now.

In its 6-3 decision in Butler v. Watson (Watson being the secretary of state), the Supreme Court rejected the argument that the state's loss of a congressional seat renders the Section 273 language "unworkable and inoperable on its face," and instead pronounced itself bound to find Amendment 65 "insufficient" because it cannot meet the five district requirement. And it pointed a finger back at the legislature:

"Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress," the court held. "To work in today's reality, it will need amending -- something that lies beyond the power of the Supreme Court."

The decision is not going over well, and not only with medical marijuana advocates, but also in the state legislature, where this week calls arose among lawmakers for a special session to deal with medical marijuana and with the constitutional initiative problem.

"The Mississippi Supreme Court just overturned the will of the people of Mississippi," Ken Newburger, executive director for the Mississippi Medical Marijuana Association, said in a statement. "Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people's constitutional right. It's a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn't matter."

"The Supreme Court's decision effectively told the people of Mississippi: 'You have no voice, no vehicle for voter initiative, y'all's power is over,'" said Diesoul Blankenship of Mississippians for Medical Marijuana. "It's nothing short of erroneous and illegal."

"228,000 Mississippians signed petitions to put medical marijuana on the ballot last year, and an overwhelming majority of the state voted to approve it in November," said Angie Calhoun, Board Member of the Mississippi Medical Marijuana Association. "In addition to silencing the votes of three-fourths of the state, today the Supreme Court squashed the hope of thousands of patients like my son, who will now not be able to find relief through medical marijuana. As a mother of a patient, I am heartbroken and outraged that this was allowed to happen."

National supporters of Amendment 65 chimed in, too.

In a statement last Friday, Marijuana Policy Project deputy director Matthew Schweich called it a "cruel and tragic day" for Mississippi patients and described the court decision as "deeply flawed."

"As a result, tens of thousands of Mississippians with debilitating health conditions will be denied safe, legal access to something that can alleviate their pain and improve their quality of life. Instead, they will once again be treated as criminals under the law, Schweich said. "To add insult to injury, this decision not only nullifies the will of hundreds of thousands of voters, it also effectively eliminates Mississippians' right to bring forward ballot initiatives to amend their state's constitution. The legislature must take action to fix the ballot initiative requirements and honor the will of their constituents by enacting Amendment 65 into law through the legislative process."

"Our hearts are broken for the patients in Mississippi who need access to medical cannabis, as well as their families who will continue to watch their loved ones needlessly suffer. We stand with them. The fight for a compassionate medical cannabis law in Mississippi will continue."

There are growing bipartisan calls for a special session to rectify the situation.

Republican House Speaker Phillip Gunn said Monday he is open to the special session. "If the legislature does not act on an issue that the people of Mississippi want, then the people need a mechanism to change the law. I support the governor calling us into a special session to protect this important right of the people," the Republican representative said in a statement.

Democratic state Rep. John Hines told said Tuesday the court's decision against the electorate was shocking and Reeves needed to act. "The governor's in the driver's seat when we're out of session," he said. "It's his prerogative to call a session or not call a session."

A poll released Tuesday could add to the mounting pressure on the governor. It found 60% of respondents disapproved of the Supreme Court ruling and wanted Reeves to call a special session.

Reeves, though, is so far noncommittal. In remarks Tuesday, he said: "The people have spoken. They made their voice heard and voted overwhelmingly to have a (medical marijuana) program and Mississippi should have that."

But when asked directly about calling a special session, his response was: "We are a long way from being able to make that decision."

And the people of Mississippi wait, thwarted.

MO House Approves Needle Exchange Programs, NE MedMJ Bill Gets Hearing This Week, More... (5/11/21)

A Rhode Island superior court judge throws out a traffic stop and search based on the odor of marijuana, the Missouri House passes a needle exchange bill, and more.

Needle exchange programs like this one could be legalized under a bill that just passed the Missouri House. (Creative Commons)
Marijuana Policy

Rhode Island Judge Throws Out Traffic Stop Search and Arrest Based on Odor of Marijuana. A Superior Court judge on Monday threw out evidence in two cases after determining that state troopers violated suspects' rights by unconstitutionally converting routine traffic stops into drug investigations and warrantless searches. Both cases involved out-of-state drivers of color and in both cases troopers argued that the apparent nervousness of drivers gave them reasonable suspicion to prolong the traffic stops and search the vehicles. In one of the cases, troopers also argued that the faint odor of marijuana could justify a warrantless search. Marijuana is decriminalized in the state. The trooper in this case initiated the stop because of a seatbelt violation, but as the judge noted in his ruling: "Based on the facts present in this case, it is clear that [the trooper] departed from his seatbelt violation mission and pursued a narcotics investigation when he removed [the driver] from the vehicle." The judge noted that the state Supreme Court had yet to rule on how decriminalization affected reasonable suspicion or probable cause determinations, but noted that neighboring Massachusetts and Vermont high courts had ruled that the odor of marijuana alone is not sufficient for a search.

Medical Marijuana

Nebraska Medical Marijuana Bill Gets Floor Debate This Week. The state's unicameral legislature will debate a medical marijuana bill, LB 474, on Wednesday. Sponsored by Sen. Anna Wishart (D-Lincoln), the bill would allow patients with specified qualifying conditions to buy and possess up to 2 ½ ounces, but not smoke it.

South Carolina Medical Marijuana Bill's Time is Running Out. A medical marijuana bill, Senate Bill 150House Bill 3361, is on the calendar for debate in the House this week, but it is unclear whether it will be taken up before the session ends on Friday. The bill would allow patients with specified medical conditions access to medical marijuana and would set up a strictly regulated cultivation and distribution system.

Harm Reduction

Missouri House Votes to Approve Needle Exchanges. The House on Monday passed a bill to legalize needle exchange programs, House Bill 1467. There are already needle exchanges in the state, but harm reduction workers currently face the prospect of a misdemeanor charge of providing needles for drug use. Under the bill, needle exchange programs could get legal by registering with the state. The bill now heads to the Senate.

WA Supreme Court Throws Out Felony Drug Possession Law, Clock Ticking on VA Marijuana Legalization, More... (2/26/21)

Asset forfeiture reform is moving in Arizona, the Connecticut governor's marijuana legalization bill gets a hearing, the Nevada legislature looks at ending the federal ban on food stamps for drug offenders, and more.

Marijuana Policy

Connecticut Marijuana Legalization Bill Gets Hearing, Police Chiefs Oppose. The Judiciary Committee is holding a hearing on a marijuana legalization bill supported by Gov. Ned Lamont (D), SB 888. At the same time, the Connecticut Police Chiefs Association is formally opposing the bill, saying it is worried legalization would make the highways less safe and invoking the opioid crisis.

Montana Lawmakers Consider Tightening Limits on Legal Marijuana. The House Business and Labor Committee on Wednesday heard testimony of HB 568, which would impose numerical and distance restrictions on legal marijuana businesses. The bill would cap the number of adult sales stores to one per 10,000 residents, with only one shop in counties with fewer than 10,000 residents. The bill would also require pot shops to be 1,000 feet away from places of worship, schools, preschools, day care facilities, parks, recreational facilities and playgrounds. The committee took no action on Wednesday.

South Dakota Lawmakers Advance Marijuana Banking Bill. The Senate Commerce and Energy Committee voted Thursday to approve HB 1203, which would let state-chartered banks do business with legal marijuana and industrial hemp businesses. The bill has already passed the House and now heads for a Senate floor vote.

Virginia House, Senate Seek Compromise on Marijuana Legalization as Saturday Deadline Looms. Legislators have about 24 hours to come to agreement on competing marijuana legalization bills passed by the House and Senate before a Saturday deadline. It looks like lawmakers will go with the House on timing, agreeing to defer legalization until January 1, 2024, while the Senate bill called for legalization on July 1. The two chambers remain split, though, on whether five current medical marijuana operators will be allowed to sell recreational weed. The House opposes such vertical integration, but the Senate would allow it if the operators pay $1 million into a Cannabis Equity Business Fund. The clock is ticking.

Medical Marijuana

South Dakota House Approves Bill Delaying Implementation of Medical Marijuana Legalization. The House voted to approve a bill delaying implementation of voter-approved medical marijuana, HB 1100. The bill was the brainchild of Gov. Kristi Noem (R), who sought a one-year delay, but the bill was amended in the House to create only a six-month delay "in the spirit of compromise."

Asset Forfeiture

Arizona House Passes Bill to End Civil Asset Forfeiture. The House on Wednesday approved a bill to end civil asset forfeiture in the state, HB 2810, which would require that the state actually convict somebody of a crime before seizing their property. The bill now heads to the Senate.

Drug Policy

Nevada Lawmakers Take Up Bill to End Food Stamp Ban for Drug Offenders. The Assembly is considering a bill that would let the state opt out of a federal 1996 "welfare reform" that banned people convicted of drug offenses from being able to receive assistance such as food stamps. AB 138, which was heard Wednesday, removes the prohibition. The bill would have originally required persons to show they were not "currently possessing, using or distributing controlled substance," but Assemblywoman Susie Martinez (D-Las Vegas), the primary sponsor for the legislation, eliminated that section. No vote was taken.

Washington Supreme Court Strikes Down Strikes Down State's Drug Possession Law. The state Supreme Court on Thursday throw out the state's felony drug possession law because it did not mandate that prosecutors prove that someone knowingly or intentionally possessed drugs. The ruling came in the case of a Spokane woman who was given a pair of jeans that had a small bag of meth in one pocket. "Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature's powers, Chief Justice Sheryl Gordon McCloud wrote for the majority.

Biden IRS Doesn't Support Pot Shop's Tax Fight, Myanmar Opium Down But Meth Is Up, More... (2/15/21)

South Dakota's Republican attorney general won't defend the state's voter-approved marijuana legalization amendment any further, a Michigan court rules people on probation can use medical marijuana, and more.

Meth is making big bucks for Asian crime syndicates, the UN Office on Drugs and Crime reports. (DEA)
Marijuana Policy

Biden Administration Opposes Marijuana Dispensary's Tax Fight for Supreme Court Review. In one of the first actions regarding marijuana in the Biden administration, the IRS has argued against a Denver-based dispensary, Standing Akimbo LLC, having its case heard in the US Supreme Court. The dispensary is seeking to challenge an IRS rule that business tax deductions cannot be taken by marijuana businesses because marijuana remains illegal under federal law.

Delaware Marijuana Legalization Bill Coming Soon. State Rep Ed Osienski (D-Newark) says he plans to submit a marijuana legalization bill by the time lawmakers return from their February break on March 9 and that he is optimistic about its prospects. "It's close, it's close," he said. "We're talking one or two votes" away from approval in the House." Gov. John Carney (D) has consistently opposed legalization, but Osienski is suggesting Carney could let the bill become law without signing it.

South Dakota Attorney General Will Not Join Appeal of Ruling That Marijuana Legalization Amendment Is Unconstitutional. Although the attorney general's office generally defends state laws when they are challenged in court, SD Attorney General Jason Ravnsborg's (R) office will not help appeal a state judge's ruling that the marijuana legalization amendment passed by voters last November is unconstitutional. Ravnsborg's boss, Gov. Kristi Noem (R) opposes marijuana legalization. A deputy attorney general defended the amendment in lower court, and Ravnsborg's office says that satisfies the state law's requirements. An appeal to the state Supreme Court by attorneys associated with the campaign is ongoing.

(The South Dakota code states that ""... the attorney general shall... appear for the state and prosecute and defend all actions and proceedings, civil or criminal, in the Supreme Court, in which the state shall be interested as a party.")

Medical Marijuana

Michigan Appeals Court Upholds Right of People on Probation to Use Medical Marijuana. The state Court of Appeals has ruled that judges cannot prevent people from using medical marijuana as a condition of probation. The ruling came after a Traverse County district court judge barred Michael Thue from using medical marijuana while on probation, saying it was a policy of circuit court judges in the county. But the appeals court ruled that anyone who has a state-issued medical marijuana card is immune to such penalties.

Criminal Justice

Key Senate Judiciary Subcommittee Gets Booker, Cotton as Chair, Ranking Member. The Senate Judiciary Committee announced Sunday that the Subcommittee on Criminal Justice and Counterterrorism, where issues extremely relevant to drug and sentencing policy are the focus, will be chaired Senator Cory Booker (D-NJ), with Senator Tom Cotton (R-AR) named ranking member. Booker is a criminal justice and drug law reform stalwart; Cotton is one of the most regressive members of the Senate on criminal justice.

International

UNODC Reports That Myanmar Opium Production Drops While Meth Surges. A UN Office on Drugs and Crime (UNODC) report released last Thursday finds that opium production has dropped in Myanmar, the world's second-larges poppy producer after Afghanistan has dropped to around 405 metric tons, about half the amount recorded in 2013. Instead, the Golden Triangle drug trade is now dominated by methamphetamine production. "Opium production is down 11 to 12% on the previous year," said Jeremy Douglas, UNODC Southeast Asia and the Pacific Regional representative. "This decline is intimately linked to the surge of synthetic drugs."

SD Judge Throws Out Marijuana Legalization Init, IL Drug Defelonization Bill Coming, More... (2/10/21)

A South Dakota court throws out the voter-approved marijuana legalization amendment, Idaho medical marijuana campaigners can begin signature-gathering for 2022, and more.

A bill to requiring reporting on COVID in federal prisons is about to be filed. (Creative Commons)
Marijuana Policy

New National Poll Has Three-Fifths Saying Marijuana Legalization is a "Good Idea." A new national survey from Emerson College Polling has 61% of respondents saying marijuana legalization is a "good idea." The poll asked about various issues -- new pathways for citizenship, raising the minimum wage, for example -- but none had as much support as marijuana legalization.

Connecticut Bill Would Require "Labor Peace" for Marijuana Businesses. A bill now before the Labor and Public Employees Committee, HB 6377, would require that marijuana businesses enter into labor peace agreements with a union before being granted licenses. The bill would require an agreement "between a cannabis establishment and a bona fide labor organization that protects the state's interests by, at minimum, prohibiting the labor organization from engaging in picketing, work stoppages or boycotts against the cannabis establishment." Under the bill, marijuana employers would give up some rights, including the right to speak to employees about union organizing efforts.

South Dakota Judge Rejects Amendment Legalizing Marijuana. A circuit court judge in Pierre appointed by marijuana legalization opponent Gov. Kristi Noem (R) has thrown out the constitutional amendment legalizing marijuana that was approved by 54% of the voters in November. The judge held that the measure violated the state's requirement that constitutional amendments deal with just one subject and would have created broad changes to state government. Amendment sponsors led by former US Attorney Brendan Johnson said they would appeal the ruling to the state Supreme Court.

Medical Marijuana

Idaho Campaigners Cleared to Begin Signature Gathering for 2022 Medical Marijuana Initiative. Kind Idaho, the group leading the campaign for a 2022 medical marijuana initiative, has been cleared to begin signature gathering. A 2020 signature-gathering campaign was disrupted by the coronavirus and ultimately failed to back the ballot. This move comes as a medical marijuana bill has just been introduced in the legislature and as the legislature also considers legislation that would prevent the state from legalizing any currently illicit drugs.

South Dakota Governor Seeks Delay in Implementing Medical Marijuana Initiative. Gov. Kristi Noem (R) said Wednesday that while she will not stand in the way of implementing a voter-approved medical marijuana initiative, the state will need more time to get the program up and running. "We are working diligently to get IM 26 implemented safely and correctly," Noem said. "The feasibility of getting this program up and running well will take additional time." Under state law, voter-approved ballot measures are supposed to take effect the following July 1, but Noem and the state's Republican legislative leadership say they will delay implementation until July 1, 2022.

Incarceration

Progressive Lawmakers Will Reintroduce COVID-19 in Corrections Data Transparency Act. United States Senators Elizabeth Warren (D-MA), Senators Patty Murray (D-WA) and Cory Booker (D-NJ), along with Congresswoman Ayanna Pressley (D-MA) and Congresswoman Sylvia Garcia (D-TX) will reintroduce of the COVID-19 in Corrections Data Transparency Act, bicameral legislation that would require the Federal Bureau of Prisons (BOP), the United States Marshals Service (USMS), and state governments to collect and publicly report detailed data about COVID-19 cases, hospitalizations, deaths, and vaccinations in federal, state, and local correctional facilities. "As a result of their confinement, incarcerated people are at increased risk of contracting COVID-19, and reports show that COVID-19 has spread like wildfire in correctional facilities across the country. This bill takes a necessary step towards containing the pandemic and supporting the health and safety of incarcerated individuals, correctional staff, and the general public by strengthening data collection, reporting, and transparency," Senator Warren said.

Sentencing Policy

Illinois Drug Defelonization Bill Coming. Criminal justice reform advocates were thwarted in getting a drug defelonization bill passed in 2019, and now they are preparing to try again. The proposed bill would not only defelonize drug possession, it would also seek to divert drug users from the criminal justice system.

Federal Appeals Court Rules Planned Philadelphia Safer Injection Site Violates Drug Law [FEATURE]

With a decision Tuesday, the 3rd US Circuit Court of Appeals has brought to a screeching -- if hopefully temporary -- halt for efforts to establish a groundbreaking permitted safer injection facility in the city of Philadelphia. In the case of US v. Safehouse, the nonprofit group set to run the site, the court held that allowing the supervised onsite consumption of illegal drugs "will break the law" because it conflicts with a 35-year-old amendment to the Controlled Substances Act aimed at crack houses.

The Vancouver safer injection site. We still can't have those in America. Yet. (vcha.ca)
Never mind that the city is in the midst of an opioid overdose epidemic and needs to try something new after decades of failed prohibitionist drug policies. The sanctity of the drugs laws must be maintained, the court held: "Though the opioid crisis may call for innovative solutions, local innovations may not break federal law," it opined.

This is just the latest twist in the years-long effort to address an opioid overdose outbreak in the city that began about a decade ago, with overdose deaths nearly doubling between 2009 and 2018 and numbering more than a thousand a year every year since 2016. The crisis led to the formation of a Mayor's Task Force to Combat the Opioid Epidemic in Philadelphia, which issued a final report and recommendations in 2017 calling on the city to consider rolling out overdose prevention services, including safe injection sites, or, as Safehouse refers to them, overdose prevention sites.

Safehouse was formed to make that possibility a reality. Led by Jose A. Benitez, the executive director of the harm reduction group Prevention Point Philadelphia, Safehouse picked up a powerful ally in board member Ed Rendell, the former governor of the state and mayor and district attorney of Philadelphia. With Rendell's clout, the organization had overcome local obstacles and was preparing to open the first legal safe injection site in the country when Attorney General William Barr's Justice Department struck.

The US Attorney for the Eastern District of Pennsylvania filed a civil lawsuit in February 2019 asking a federal judge to find safe injection sites illegal under the Controlled Substance Act's "crack house" statute, throwing plans to open up into limbo. Eight months later, the court held that "the ultimate goal of Safehouse's proposed operation is to reduce drug use, not facilitate it, and accordingly, [the "crack house" statute] does not prohibit Safehouse's proposed conduct."

A February 2020 ruling from the same court reiterated the legality of safe injection sites in the Eastern District, but that summer, the judge ordered Safehouse to pause amidst the coronavirus pandemic and the police violence protests. Meanwhile, the US Attorney appealed the ruling that the proposed safe injection site was legal, with oral arguments held in November, and the 3rd Circuit's decision issued this week.

The Justice Department pronounced itself pleased.

"The Court's decision reaffirms that 'safe' injection sites are a violation of federal law," said Acting Attorney General Jeffrey A. Rosen in a statement. "The Department supports efforts to curb the opioid crisis ravaging this country, but injection sites are not the solution. There are more productive ways to address drug abuse, and today's ruling by the Third Circuit has confirmed that these sites are illegal and therefore not the answer."

"The rule of law is still alive and well in Philadelphia -- having been re-affirmed by the U.S. Court of Appeals for the Third Circuit, which held that it is a federal crime to open a heroin injection site or 'consumption room' for illegal drug use," added US Attorney for the Eastern District of Pennsylvania William M. McSwain. "The 3rd Circuit's opinion is a faithful reading of the statute's plain language and is consistent with Congress's intent to protect American neighborhoods from the scourge of concentrated drug use."

Reform advocates saw it quite differently.

"As the COVID-19 pandemic is exacerbating the already devastating overdose crisis, the Third Circuit's reversal of the earlier court's decision -- which held that safe consumption sites do not violate federal law -- will inevitably result in the unnecessary loss of countless lives," Lindsay LaSalle, managing director of policy for the Drug Policy Alliance (DPA), said in a statement. "The 3rd Circuit's decision is misguided -- it is abundantly clear that Congress never intended to criminalize legitimate public health interventions through [the 'crack house' statute]."

The 3rd Circuit's decision is precedential, meaning it holds throughout the district, which includes Delaware, New Jersey, Pennsylvania, and the US Virgin Islands. But other jurisdictions, such as San Francisco and New York City, where similar efforts are underway, are not bound by it, and DPA is encouraging groups pursuing such efforts to "continue to work toward authorization and implementation of supervised consumption sites to address the overdose crisis in their cities and states."

There may be help coming in the new Congress and Biden administration as well. Advocates say they will seek action in Congress to clarify that safer injection facilities should be permitted, and from the Biden Justice Department to provide guidance to US Attorneys to lay off on them.

DC Decriminalizes Drug Paraphernalia; Pot Possession, Cultivation Now Legal in MT, More... (1/4/21)

Illinois has expunged nearly half a million marijuana arrests years ahead of schedule, a New Mexico court rules that people under correctional control can use medical marijuana, and more.

Drug parapernalia is now decriminalized in the District of Columbia. (Creeative Commons)
Marijuana Policy

Illinois Expunges Nearly Half a Million Marijuana Arrest Records Four Years Ahead of Schedule. State officials announced last Thursday that state police had expunged some 492,129 marijuana possession arrest records, four years ahead of a deadline set by the Cannabis Regulation and Tax Act, which legalized marijuana in the state. Governor J.B. Pritzker also announce another 9,219 pardons for marijuana possession, bringing the total number of pot pardon's he has issued to 20,000. "Statewide, Illinoisans hold hundreds of thousands low-level cannabis-related records, a burden disproportionately shouldered by communities of color," Pritzker said. "We will never be able to fully remedy the depth of that damage. But we can govern with the courage to admit the mistakes of our past—and the decency to set a better path forward."

Montana Marijuana Legalization Now in Effect. As of New Year's Day, the marijuana-legalizing Initiative 190 has gone into effect. It is now legal for adults 21 and over to use and possess up to an ounce of marijuana and grow up to four plants for personal use. The state is now working on setting up a system of licensed, taxed, and regulated marijuana commerce.

Medical Marijuana

New Mexico Court Rules Inmates Can Have Access to Medical Marijuana. A district court judge in Albuquerque ruled last week that inmates at the Bernalillo County Metropolitan Detention Center who are qualifying medical marijuana patients can use the substance while under correctional control. It is unclear whether other state and local jails would voluntarily comply with the ruling, but it has set a precedent for other state courts. The ruling came in the case of man serving a 90-day house arrest sentence.

Asset Forfeiture

Institute for Justice Issues New Edition of Asset Forfeiture Report. The libertarian-leaning Institute for Justice has released the third edition of its report on asset forfeiture laws in the states, "Policing for Profit." The report details each state's laws around civil asset forfeiture. The Institute handed out only one "A" grade in this edition. That went to New Mexico, which banned civil asset forfeiture in 2015.

Paraphernalia

Washington, DC, Decriminalizes the Possession of Drug Paraphernalia. Mayor Muriel Bowser (D) has signed into law B54, the Opioid Overdose Prevention Act of 2019. The bill decriminalizes the possession of drug paraphernalia and will also allow harm reduction and community groups to distribute harm reduction supplies that were previously criminalized under DC law.

International

Colombia Says It Manually Eradicated the Most Coca in a Decade. Defense Minister Carlos Holmes Trujillo announced last week that Colombia had eradicated 325,000 acres of coca crops, the highest figure in a decade. Eradicators had uprooted about 240,000 acres in 2019 and 150,000 acres in 2018. "These 130,000 hectares eradicated translate into an affectation of about US$301 million to drug trafficking organizations, if the average price of a hectare of coca is taken as a reference, and represents about 115,440 kilos of cocaine that were no longer produced," Trujillo said as he watched an eradication operation in the company of US Ambassador Phillip Goldberg. The Trump administration has pressed Colombia to do more to reduce coca cultivation and cocaine production.

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