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Harm Reduction: San Antonio Police Arrest Needle Exchangers, DA Ups the Ante

Bill Day, 73, and the Bexar Area Harm Reduction Coalition have been doing unsanctioned needle exchanges in poor San Antonio neighborhoods for years, but this week, Day and two of the group's board members were arrested on drug paraphernalia possession charges as they handed out clean syringes. Now, the San Antonio Express-News reports, to add insult to injury, District Attorney Susan Reed has upped the charges from possession to distribution of paraphernalia, exposing Day and his comrades to a year in jail, as opposed to the maximum $500 fine for possession.

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popular syringe exchange logo
Day and the coalition are fighting back. They have assembled a legal team that includes high-profile criminal defense attorney Gerald Goldstein and pro bono assistance from the prestigious Akin Gump Strauss Hauer & Feld law firm.

"These are enormously decent, charitable people, and what's happening with them smacks of persecution," said Neel Lane, an attorney with Akin Gump who has filed a brief with the state attorney general's office on the group's behalf.

Last year, the Texas legislature passed a bill authorizing health officials to set up a pilot needle exchange program in Bexar County, which would be the first legal needle exchange in the Lone Star State. But DA Reed has stalled the program, declaring that the legislation authorizing it is faulty. An opinion from the state attorney general is pending.

In fact, Reed has been trying to derail the program since it was approved last summer. Last August, she told the Express-News that state drug laws trump the needle exchange legislation, a minority position even among prosecutors. She warned local health officials the law would not protect them.

"I'm telling them, and I'm telling the police chief, I don't think they have any kind of criminal immunity," Reed said. "That's the bottom line. It has nothing to do with whether they do it or don't do it -- other than if you do it you might find yourself in jail."

Reed opposed the needle exchange program, but by forcing the issue, she may have inadvertently contributed to resolving the program's legality once and for all.

A special thanks to Texas criminal justice blogger Scott Henson and his Grits for Breakfast blog for a heads-up on this one.

Marijuana: Vermont to Consider Decriminalization, But Wants to Crack Down on Hard Drugs

The Vermont legislature will this year take up a bill to decriminalize the personal possession, growing of two plants, and small-scale sales of marijuana. At the same time, the legislature will consider a proposal to lower the threshold for what constitutes "trafficking amounts" for hard drugs such as heroin and cocaine. Both proposals will be discussed at public hearing of the Senate Judiciary Committee on January 23.

The legislative moves come after months of discussion about the cost and efficacy of Vermont drug policy and sometimes heated debate over marijuana decriminalization. The decrim debate really heated up last fall when Republican Gov. James Douglas ordered that marijuana cases be taken away from the office of Windsor County prosecutor Robert Sand, who approved court diversion for a local attorney caught growing 30 pot plants. Douglas accused Sand of having a blanket diversion policy, but backed off the state control over prosecutions after Sand made it clear he had no such blanket policy, and after it was found that an Orange County prosecutor had done a similar deal for a man arrested with more than 100 plants.

Senate President Pro Tem Peter Shumlin (D-Windham) said last month that drug law reform, including marijuana decriminalization, was one of his top priorities for the current session. That moved Gov. Douglas to say that he was open to decrim discussions, although he has not endorsed the idea.

The marijuana decrim bill, S-238, was introduced last year and reintroduced this year by Sen. Jeannette White (D-Windham). Under the bill, possession of up to four ounces or two plants and sale of less than four ounces would be a civil violation with a maximum penalty of a $1,000 fine. Possession of more than four ounces or more than five plants would still be a crime punishable by up to five years in prison under the bill.

While White's decrim bill is a step in the right direction, the hard drug bill, S-250, to be offered by Sen. Richard Sears (D-Bennington), head of the Senate Judiciary Committee, is not. That bill would lower the threshold for criminal trafficking charges from 300 grams of cocaine to 150 and from seven grams of heroin to 3.5. People convicted of possessing drugs in such amounts would face up to 30 years in prison and a fine of up to one million dollars.

Sears has also signaled that he thinks the four ounce decrim limit is too high. "Four ounces of marijuana is a felony," he told the Barre-Montepelier Times Argus. "I don't think we want to go there."

But Sears is open to discussion, he said. "I thought it was important to let the public weigh in before we started taking a close look at the proposals," he said. "This is a change in state law regarding drugs, and the public probably has some thoughts about this."

Marijuana: Bill to Increase Penalties for Sales to Minors Moving in South Dakota

Under current South Dakota law, any adult distributing any amount of marijuana to a minor faces up to 10 years in prison, but a bill backed by Republican state Attorney General Larry Long would stiffen those already harsh penalties in most cases. That bill unanimously passed the House Judiciary Committee Tuesday, and could be voted on by the House as early as today.

The bill, HB1061, actually reduces the maximum sentence from 10 years to five years for distribution of less than an ounce to a minor, but keeps it at 10 years for distribution of between an ounce and a half-pound, increases it to 15 years for a half-pound to a pound, and jacks it up to a jaw-dropping 25 years for more than one pound. Like all other marijuana felonies in South Dakota, a 30-day mandatory minimum jail sentence for a first offense is included.

Attorney General Long told reporters he drafted the bill after a judge told him that some marijuana distribution offenses to adults had tougher sentences than the 10 years for giving it to a minor.

There are currently 10 men and one woman serving prison sentences for distribution of marijuana to a minor in South Dakota. According to the state Department of Corrections, they join another 72 marijuana prisoners, including 10 doing hard time for selling less than ounce and seven for possessing less than a half-pound. Those pot prisoners are among the 661 drug prisoners that constitute one-fifth of the state's rapidly growing prison population.

Marijuana: Vermont Governor Open to Discussing Decriminalization, He Says

In an apparent change of attitude, Vermont Republican Gov. Jim Douglas said last week that he was open to discussing marijuana decriminalization. That stance is a shift from positions he took just a couple of months ago, when he had the state take temporary control of marijuana cases from Windsor County after the local prosecutor, Bobby Sands, was accused of having a policy of diverting marijuana cases because he thought it should be legalized.

But Sands, who claimed he had no blanket policy of diversion, is not alone in supporting decrim. Democratic Senate President Peter Shumlin has now floated a proposal to consider decriminalization. The cut-off level for diversion instead of court proceedings should be a half-ounce of weed, Shumlin suggested.

Responding to Shumlin's proposal at a January 3 press conference in Montpelier, Gov. Douglas said he was open to discussing the matter, but that he wasn't sure about a specific amount. He added that the state needs to maintain enforcement efforts against harder drugs and the misuse of prescription drugs.

Vermont arrested some 1,800 people for small-time marijuana possession last year, according to the state Department of Public Safety.

Psychedelics: Nebraska Moves to Ban Salvia Divinorum

If state Attorney General Jon Bruning has his way, Nebraska will soon join the short list of states that have criminalized the sale and possession of salvia divinorum. In a Monday press release setting his key legislative priorities, Bruning announced that banning salvia was one of his top three. (The other two were eliminating intoxication as a defense in considering the mental state of a defendant and moving against certain types of scam artists.)

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salvia leaves (photo courtesy Erowid.org)
The obscure plant, a member of the mint family native to southern Mexico, is a potent, fast-acting hallucinogen and has achieved a certain measure of popularity among recreational drug users in recent years. But because of its powerful disorienting effects, it is not one most people use repeatedly.

The DEA has had the drug under consideration for several years, but has yet to announce any plans to move it under the rubric of the Controlled Substances Act. Several states, most recently Illinois, and a handful of local municipalities, have banned it.

It is time that Nebraska joined that group, Bruning said. "Salvia is a powerful hallucinogen that can be purchased legally. This legislation will make it illegal and put it on par with other powerful drugs like peyote, psychedelic mushrooms and LSD," said Attorney General Bruning. "Several other states have already made salvia illegal. It's time to add Nebraska to the list."

In the measure he describes as "protecting Nebraska kids," Bruning would submit them -- and Nebraska adults -- to up to five years in prison for possessing the plant, and to 20 years for selling it.

"Videos of teens using this common plant to get high have become an internet sensation," said Sen. Vickie McDonald of St. Paul, who will sponsor the legislation. "Nebraska needs to classify salvia divinorum and its active ingredient, salvinorin A, as a controlled substance in order to protect our children from a drug being portrayed as harmless when it's not."

Marijuana: Despite Law Allowing Ticketing for Pot Possession, Most Texas Counties Still Arrest

Thanks to a new state law that went into effect on September 1, law enforcement agencies in Texas now have the option of simply ticketing misdemeanor marijuana possession offenders instead of arresting them. The law, which also applies to a handful of other misdemeanor offenses, was designed to alleviate chronic overcrowding in Texas jails and make better use of police resources. However, almost no one in Texas is taking advantage of it.

According to a report this week in the Dallas Morning News, only the Travis County (Austin) Sheriff's Department is ticketing instead of arresting misdemeanor marijuana offenders. Officials in Dallas, Tarrant (Fort Worth), and Collin (suburban Dallas) counties gave varying reasons for failing to implement the cost-saving measure, ranging from "system inadequacies" to the belief it will "send the wrong message" about marijuana use.

"It may... lead some people to believe that drug use is no more serious than double parking," Collin County prosecutor Greg Davis told the Morning News.

"I think the legislature was very sensitive to the fact that there are so many jails that are overcrowded," said Terri Moore, Dallas County's first assistant district attorney. "This was a great idea, but it raises a lot more questions that we are not ready to answer."

"These are not just tickets. These are crimes that need to be appropriately dealt with," said Ron Stretcher, Dallas County's director of criminal justice. "We want to make sure we get them back to court to stand trial. It's not about emptying the jail. It's about making sure that we have room in the jail for the people who need to be there," he said.

But the Travis County Sheriff's Department said merely ticketing marijuana offenders was smart policy. "There are folks that think we are being soft on crime because we are just giving tickets. We are still hard on crime," said spokesman Roger Wade. "We believe if we can save resources and have the same effect on crime, then we should take advantage of this."

Prosecutors in north Texas counties also cited the lack of a system for dealing with misdemeanor tickets. But that seems pretty feeble.

Harm Reduction: DC Quick to Move After Congress Lifts Needle Exchange Funding Ban

Officials from the District of Columbia announced Wednesday that the District government will invest $650,000 in needle exchange programs. The move comes less than two weeks after Congress passed an appropriations bill relaxing a decade-old ban on the District using even its money to fund such programs.

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PreventionWorks at work (screen shot from recent nytimes.com '''slide show,'' June '07)
Mayor Adrian Fenty and several city council members made the announcement at a press conference at the headquarters of PreventionWorks!, a DC needle exchange program that had heretofore existed on only private funding. Now, it will get $300,000 in city funds. Public funding for needle exchange would help reduce the number of new HIV infections in the city, they said.

"This program goes to best practices to combat one of our greatest health problems," Fenty said at the news conference. Given the high prevalence of HIV in the District, "everyone should be concerned," he said. "HIV and AIDS are such well-known public health problems in the District of Columbia that people understand we have to have programs and services in the neighborhoods," the mayor said.

The rest of the $650,000 will go to fund additional needle exchange programs throughout the city, he said.

It is money well spent, said DC Councilmember David Catania (I-At Large), chairman of the Committee on Health. "The cost of infection is immeasurably higher in terms of dollars and lives," he said.

Prisons: Facing Budget Crisis, California Governor Ponders Early Release of 22,000 Nonviolent Offenders

Faced with a $14 billion budget deficit next year, California Gov. Arnold Schwarzenegger is considering a proposal to slash ballooning prison spending by granting early release to some 22,000 nonviolent, non-sex offender inmates. The proposal would also cut the state's prison population by another 6,000 by changing the way parole violations are handled. But Schwarzenegger has not approved the proposal, and it is already generating political opposition.

With some 172,000 inmates, California's prison system is second only to the federal system in size, and its budget has ballooned by 79% in the last five years to nearly $8 billion. Still, the system is vastly overcrowded and faces two federal class-action suits seeking to cap inmate populations because overcrowding is resulting in the state not delivering constitutionally adequate medical and mental health care.

According to the California Department of Corrections' latest prisoner census, more than 35,000, or 20.6%, of those prisoners are doing time for drug offenses. Drug offenders, property offenders, and "other" nonviolent offenders together account for half the state prison population.

Under the plan, presented to the governor's office by his departmental budget managers, low-risk offenders with fewer than 20 months left in their sentences would be released early. That would save the state about $250 million in the coming fiscal year and more than $780 million through June 2010, according to the Sacramento Bee, which first broke the story last week. It would also involve cutting some 4,000 prison jobs, mostly for the state's highly paid prison guards, whose base salary is nearly $60,000 a year.

The proposal also calls for a "summary" parole system, where released offenders would remain under supervised release, but would not be returned to prison for technical parole violations, such as dirty drug tests or missing an appointment, but only if they are convicted of a new crime. Moving to a summary system would cut the average parole population by 18,500 in the next fiscal year and reduce the prison population by another 6,250, according to the proposal. It would also cost about 1,660 parole jobs. Altogether, changes in the parole system would save the state $329 million through June 2010.

While such a proposal would be groundbreaking if enacted, the odds appear long. Queried by the press after the Bee broke the story, Schwarzenegger spokesman Bill Maile said the governor had not decided if he liked the idea or not. "The governor asked his department heads to work with their budget managers to find ways to cut the budget by 10% because of the budget crisis we are facing, and this idea was one of many that was floated in reaction to that request," Maile said. "It's not a proposal yet, just an idea."

Early reaction from the political class has not been good. Rep. Jose Solorio (D-Santa Ana), head of the Assembly Public Safety Committee, said Democratic reaction would range from skepticism to outright opposition. "Many of us are going to have some very strong concerns about whether it's the direction we want to begin taking," Solorio told the Bee in a followup story. Early releases are "DOA" with Assembly Republicans, he added.

Republican Assemblyman Todd Spitzer (R-Orange), one of his party's criminal justice leaders, said early releases would undermine recently enacted Assembly Bill 900, a $7.9 billion measure that will add 53,000 jail and prison beds, but also establish rehabilitation as the philosophical underpinning of the state's prison system.

"By letting people out 20 months early, which is supposed to be when they get their reentry skills, they're not going to get them at all, so recidivism is going to get worse," Spitzer said. "This budget plan is a forfeiture of AB 900 principles, which was supposed to change how we treat criminality in California."

Republican political consultant Ray McNally was even more dramatic. "It's pretty clear, the governor has decided not to run for US Senate or other political office," said McNally, whose clients include the California Correctional Peace Officers Association. "You can't release 22,000 people from prison and expect to ever get elected to another office again. I think he's made his decision to retire from politics."

If Schwarzenegger braves the firestorm and adopts the proposal, he will probably include it in budget filings next month. If the proposal makes it to the final appropriations bill, that bill must pass with a two-thirds vote. There is a long way to go, but this proposal at least acknowledges that there might be a better path than just building more prisons.

Sentencing: New Jersey Moves to Shrink "Drug-Free Zones," Cops Protest

New Jersey Gov. Jon Corzine (D), all 21 county prosecutors, and the state sentencing commission all agree that the Garden State's drug-free zone law is ineffective, racially unbalanced and should be amended, but some New Jersey law enforcement officials disagree. While Corzine and his allies want to cut back on the drug-free zones, these police officials are pushing for even stiffer penalties.

Under current New Jersey law, anyone caught selling drugs within 1,000 feet of a school or 500 feet of a park, public building, or public housing is subject to increased penalties, including mandatory minimum sentences. Under the proposal presented by the state and embodied in a pending bill, A2877, the drug-free zones would be cut back to 200 feet, sentences would be increased for sales within the zones, but the mandatory minimum sentences would be dropped.

Drug-free zones became popular as a law enforcement tool designed to protect kids from drug dealers, but as the New Jersey Commission to Review Criminal Sentencing pointed out in a 2005 report and again in a supplemental report this year, the zones cover huge swathes of urban New Jersey, effectively submitting black and brown city dwellers to much more severe penalties than those faced by their white suburban or rural counterparts. According to the commission, 96% of people jailed under the law are black or Hispanic.

The drug-free zone laws had another pernicious effect as well: Although they did not stop drug dealing within the zones, they did result in stiff mandatory minimum sentences for those convicted. Selling a bag of weed in the zone got you a year in prison, while selling a rock of crack got you three years. As a result, more defendants fought their cases, clogging the courts with low-level drug dealers.

In addition to clogging the courts, prosecutors also complained that the mandatory minimums meant there was little wiggle room for plea deals, leaving them without cooperating witnesses to make further drug cases. As a result, prosecutors have effectively ditched the mandatory minimums for anyone who would accept a plea bargain. Now, only those who contest their charges in court and lose are hit with the mandatory minimums.

But while the governor, the prosecutors, and the sentencing commission want to further reform the drug-free zone law, some police want to go in the opposite direction. "Leave it at 1,000 feet," said Rahway Police Chief John Rodger. "And increase the penalty in the 200-foot zone," he told the Home News Tribune this week.

Still, Rodger conceded that he could not recall any drug deals taking place in or near schoolyards, a sentiment shared by veteran Middlesex County Prosecutor Caroline Meuly. The drug-free zone law has "a laudable goal," she said, "but I can't think of any (criminal case) file where people have sold to children or targeted them."

Reforming New Jersey's drug-free zone law as Corzine and crew suggest would be an improvement, but it would still be aimed primarily at low-level urban minority drug dealers. Better to limit it to cases of actual sales of drugs to youths, or repeal it outright.

Press Release: Medical Marijuana Law Needs Fixing

[Courtesy of Iowans for Medical Marijuana]

FOR IMMEDIATE RELEASE: December 8, 2007

CONTACT: Carl Olsen Iowans for Medical Marijuana (515) 288-5798

Dear Governor Richardson,

In your press release dated August 17, 2007, you vowed to fight the federal intimidation efforts, and use every state resource to fully implement the state law making medical marijuana legal for the most seriously ill patients. We think it is inconsistent that New Mexico state law continues to classify marijuana as a schedule I controlled substance, N.M. Stat. Ann. § 30-31-5(A)(2) (2007), with no accepted medical use in treatment in the United States.

Although federal law currently classifies marijuana as a schedule I controlled substance with no accepted medical use in treatment in the United States, the actual determination of whether marijuana has accepted medical use is specifically reserved to the states under the federal Controlled Substances Act of 1970 (CSA) (21 U.S.C. §§ 801 et seq.). This is clear from the recent decision by the United States Supreme Court in Gonzales v. Oregon, 546 U.S. 243 (2006).

Gonzales v. Oregon, 546 U.S. 243, 250 (2006) (referring to 21 U.S.C. § 903):

"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together." § 903.

Gonzales v. Oregon, 546 U.S. 243, 269-270 (2006):

In deciding whether the CSA can be read as prohibiting physician-assisted suicide, we look to the statute's text and design. The statute and our case law amply support the conclusion that Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. The silence is understandable given the structure and limitations of federalism, which allow the States "great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." (Citations omitted).

United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 492 (2001):

The Attorney General can include a drug in schedule I only if the drug "has no currently accepted medical use in treatment in the United States," "has a high potential for abuse," and has "a lack of accepted safety for use . . . under medical supervision." §§ 812(b)(1)(A)-(C). Under the statute, the Attorney General could not put marijuana into schedule I if marijuana had any accepted medical use.

Although New Mexico Senate Bill 523, effective July 1, 2007, now includes marijuana in both schedule I and schedule II of New Mexico's state version of the Uniform Controlled Substances Act, the question that we have for New Mexico is why New Mexico's version of the Uniform Controlled Substances Act continues to list marijuana as a schedule I controlled substance, N.M. Stat. Ann. § 30-31-6 (2007), which has "no accepted medical use in treatment in the United States", N.M. Stat. Ann. § 30-31-5 (2007). Under both New Mexico and federal law, the criteria for placing a substance in schedule I is "no accepted medical use in treatment in the United States".

We fear that this inconsistency is going to cause problems for patients in New Mexico who are attempting to comply with the Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. § 30-31C-1 (2007), as amended by New Mexico Senate Bill 523, effective July 1, 2007.

Carl Olsen, George McMahon, Barbara Douglass

Directors of Iowans for Medical Marijuana (http://www.iowamedicalmarijuana.org/)

Members of the Board for Patients Out of Time (http://www.medicalcannabis.com/)

Petitioners in The Federal Marijuana Rescheduling Petition (http://www.drugscience.org/)

Location: 
NM
United States

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