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Cops Cry Foul Over Holder Marijuana Policy Move

Organized law enforcement has some problems with Attorney General Holder's announcement last week that the Justice Department would not seek to block Colorado and Washington from implementing their marijuana legalization laws. In a joint letter last Friday, the leaders of seven major law enforcement groups expressed "extreme disappointment" with the move.

Those law enforcement groups are the International Association of Chiefs of Police, the Major County Sheriff's Association, the National Sheriff's Association, the Major Cities Chief's Association, the Association of State Criminal Investigative Agencies, the National Narcotics Officers' Associations Coalition, and the Police Executive Review Foundation.

While law enforcement has long argued that its role is to enforce the law, not set policy, the police associations clearly felt they should have had input in the Justice Department's decision-making process.

"It is unacceptable that the Department of Justice did not consult our organizations -- whose members will be directly impacted -- for meaningful input ahead of this important decision," the cops wrote. "Our organizations were given notice just thirty minutes before the official announcement was made public and were not given the adequate forum ahead of time to express our concerns with the Department's conclusion on this matter. Simply 'checking the box' by alerting law enforcement officials right before a decision is announced is not enough and certainly does not show an understanding of the value the Federal, state, local and tribal law enforcement partnerships bring to the Department of Justice and the public safety discussion."

Beyond their issues with process, the law enforcement groups made it clear that they did not agree with the policy decision. The sky would fall if people could buy and smoke pot legally, the cops warned.

"The decision by the Department ignores the connections between marijuana use and violent crime, the potential trafficking problems that could be created across state and local boundaries as a result of legalization, and the potential economic and social costs that could be incurred," they wrote. "Communities have been crippled by drug abuse and addiction, stifling economic productivity. Specifically, marijuana's harmful effects can include episodes of depression, suicidal thoughts, attention deficit issues, and marijuana has also been documented as a gateway to other drugs of abuse."

As if that were not enough, the cops also warned of "grave unintended consequences, including a reversal of the declining crime rates" of the past decades. But they didn't explain how allowing for legal marijuana sales in Colorado and Washington would cause crime to increase.

For the cops, though, the bottom line was not enforcing the law, but setting policy.

"Marijuana is illegal under Federal law and should remain that way," they wrote. "While we certainly understand that discretion plays a role in decisions to prosecute individual cases, the failure of the Department of Justice to challenge state policies that clearly contradict Federal law is both unacceptable and unprecedented. The failure of the Federal government to act in this matter is an open invitation to other states to legalize marijuana in defiance of federal law."

Maybe law enforcement should just go back to enforcing the laws, not trying to write them.

Administration Gives States Okay on Marijuana Legalization [FEATURE]

Attorney General Eric Holder told the governors of Colorado and Washington Thursday that the Justice Department would not -- at least for now -- block their states from implementing regimes to tax, regulate, and sell marijuana. The message was sent during a joint phone call early Thursday afternoon.

The Justice Department will take a "trust but verify" approach, a department official said. The department said it reserved the right to challenge the state legalization laws with a preemption lawsuit at a later date if necessary.

The go-ahead from Holder to the states was accompanied by a memorandum from Deputy US Attorney General James Cole to federal prosecutors laying out Justice Department concerns and priorities. If marijuana is going to be sold, the memo said, it must be tightly regulated.

"The Department's guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests," the memo said. "A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice."

The memo listed a number of activities that could draw federal prosecutorial attention or result in a Justice Department reassessment, including sales to minors, profits going to criminal actors, diversion to pot prohibition states, marijuana sales as a cover for other drug sales, violence and the use of firearms, drugged driving and other "adverse public health consequences," and growing marijuana on public lands.

Attorney General Eric Holder (usdoj.gov)
That leaves some wiggle room for federal prosecutors, some of whom have shown a willingness to be quite aggressive in going after medical marijuana providers. But it also gives them a clear signal that legalization will, in general, be tolerated in states where voters have approved it.

In a first response from marijuana reform activists, Tom Angell of Marijuana Majority called the Justice Department's stance "a step in the right direction", but also blasted the administration for its aggressive enforcement activities against medical marijuana providers and warned that interpreting the new directive will be up to US attorneys.

"It's nice to hear that the Obama administration doesn't at this point intend to file a lawsuit to overturn the will of the voters in states that have opted to modernize their marijuana policies, but it remains to be seen how individual US attorneys will interpret the new guidance and whether they will continue their efforts to close down marijuana businesses that are operating in accordance with state law," Angell said.

"It's significant that US attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution, but the guidelines seem to leave some leeway for the feds to continue making it hard for state-legal marijuana providers to do business," he continued.

Angell chided the administration for using cheap rhetoric about not busting pot smokers to obscure deeper issues of federal harassment of marijuana businesses.

"The administration's statement that it doesn't think busting individual users should be a priority remains meaningless, as it has never been a federal focus to go after people just for using small amounts of marijuana," he said. "The real question is whether the president will call off his federal agencies that have been on the attack and finally let legal marijuana businesses operate without harassment, or if he wants the DEA and prosecutors to keep intervening as they have throughout his presidency and thus continue forcing users to buy marijuana on the illegal market where much of the profits go to violent drug cartels and gangs."

The Marijuana Policy Project also reacted Thursday afternoon, saying it applauded the move.

"Today's announcement is a major and historic step toward ending marijuana prohibition. The Department of Justice's decision to allow implementation of the laws in Colorado and Washington is a clear signal that states are free to determine their own policies with respect to marijuana," said Dan Riffle, the group's director of federal policy.

"We applaud the Department of Justice and other federal agencies for its thoughtful approach and sensible decision," he added. "It is time for the federal government to start working with state officials to develop enforcement policies that respect state voters, as well as federal interests. The next step is for Congress to act. We need to fix our nation's broken marijuana laws and not just continue to work around them."

Washington, DC
United States

Holder Pressed on DEA Use of NSA Intelligence

A group of Democratic senators and congressmen want Attorney General Eric Holder to answer questions about a Reuters report earlier this month revealing that the National Security Agency (NSA) supplied the DEA with intelligence information aimed not at fighting foreign terrorism, but at making drug cases in the US.

Five Democratic senators and three Democratic congressmen -- all senior members of the House Judiciary Committee -- have sent a letter to Holder, obtained by Reuters, that submitted questions on the issue. Congressional aides told Reuters the matter will be discussed during a classified hearing next month.

The original Reuters report showed that a DEA intelligence unit passes on NSA-gathered intelligence to field agents and instructs them not to reveal the source of the intelligence -- even in court. Those tips involve drugs, organized crime, and money laundering -- not terrorism, which is the raison d'etre for the NSA surveillance program.

"These allegations raise serious concerns that gaps in the policy and law are allowing overreach by the federal government's intelligence gathering apparatus," said the letter written by Sens. Tammy Baldwin (D-WI), Richard Blumenthal (D-CT), Sherrod Brown (D-OH), Tom Udall (D-NM), and Ron Wyden (D-OR).

Three congressmen -- ranking Judiciary Committee Democrat John Conyers of Michigan, Jerrold Nadler (D-NY), and Bobby Scott (D-VA) -- sent a similar letter after the original Reuters report earlier this month.

"If this report is accurate, then it describes an unacceptable breakdown in the barrier between foreign intelligence surveillance and criminal process," the congressmen wrote.

It's not just Democrats. House Judiciary Committee chairman Bob Goodlatte (R-VA) told CBS's Face the Nation August 18 that the NSA's passing of intelligence to the DEA for non-terrorist criminal investigations is of concern.

"I think we need to have a very careful examination of this. I think that the trust of the American people in their government is what's at stake here," he said.

Washington, DC
United States

Senator Leahy Calls Judiciary Hearing on Federal Marijuana Policy [FEATURE]

US Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, announced Monday that he would hold a hearing next month on the Justice Department's response to marijuana legalization in Colorado and Washington and legal medical marijuana in 20 states and the District of Columbia. The hearing is set for September 10.

Patrick Leahy (senate.gov)
Leahy has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify before the committee and help clarify the conflicts between state and federal law, as well as the federal response. Cole is the author of the 2011 Cole memo giving federal prosecutors the green light to go after medical marijuana providers in states where it is not tightly regulated.

"It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal," Leahy said in a statement Monday. "I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government."

After Colorado and Washington legalized marijuana last November, Leahy sent a letter to the White House Office on National Drug Control Policy asking that the Obama administration make public its position on the matter. Although Holder said in February that a Justice Department response would be coming "relatively soon," it still hasn't appeared.

State officials in Colorado and Washington said last week that they thought the Justice Department had given them "tacit approval" to move forward with their plans to implement marijuana regulation, taxation, and legalization. Leahy, who has said he supports the efforts in those two states, would like to get something more definitive from the Justice Department.

In the meantime, while the feds are silent on how they will deal with legalization, federal prosecutors and the DEA have kept up the pressure on medical marijuana producers and distributors. Since the Cole memo came out two years ago, hundreds of dispensaries have been raided and hundreds more subjected to federal "threat letters." While actual prosecutions have been more rare, the result has been a reduction in access to medical marijuana for patients in areas where dispensaries have been forced out of business.

Leahy isn't the only one in Congress who is interested in federal marijuana policy. At least seven bills have been filed, most with bipartisan sponsorship, addressing federal marijuana policy. They range from bills to legalize hemp and marijuana to bills that would prevent the use of the IRS to crack down on medical marijuana dispensaries.

Holder won kudos from many drug reformers earlier this month when he announced his support for further sentencing reforms, but medical marijuana and marijuana legalization advocates were disappointed that he did not address the tension and contradictions between state and federal marijuana policies. Now, it appears that Leahy is going to force the issue, and marijuana reform advocates couldn't be more pleased.

"This is an important development for all sorts of reasons -- not least because the Senate has been so remarkably passive on marijuana issues even as twenty states have legalized medical marijuana and two have legalized it more broadly. I am delighted that Senator Leahy now seems ready to provide much needed leadership on this issue," said Ethan Nadelmann, executive director of the Drug Policy Alliance.

"The ballot initiatives in Washington and Colorado made history not so much because they legalized possession of small amounts of marijuana but because they mandated that state governments regulate and tax what had previously been illicit markets," Nadelmann continued. "Ending marijuana prohibition not just in the states but also nationally is going to require the sort of leadership that Senator Leahy is now providing. Now is the time for his colleagues to stand up as well in defense of responsible state regulation of marijuana."

"Two states have made marijuana legal for adult use and are establishing regulated systems of production and distribution. Twenty states plus our nation's capital have made it legal for medical use. By failing to recognize the decisions of voters and legislators in those states, current federal law is undermining their ability to implement and enforce those laws," said Dan Riffle, director of federal policies for the Marijuana Policy Project.

"Marijuana prohibition's days are numbered, and everyone in Washington knows that," Riffle continued. "It's time for Congress to stop ignoring the issue and develop a policy that allows states to adopt the most efficient and effective marijuana laws possible. We need to put the 'reefer madness' policies of the 1930s behind us and adopt an evidence-based approach for the 21st Century."

"We're still waiting for the administration to announce its response to the marijuana legalization laws in Colorado and Washington, a policy that the attorney general has been saying is coming 'relatively soon' since December," said Tom Angell, head of Marijuana Majority. "If the administration is serious about using law enforcement resources in a smarter way, it should be a no-brainer to strongly direct federal prosecutors to respect the majority of voters by allowing these groundbreaking state laws to be implemented without interference."

It ought to be an interesting, and perhaps, historic hearing. It's two weeks away.

Washington, DC
United States

Mexican Cartels Not in "Over 1,000 US Cities," Washington Post Report Finds

The refrain that Mexican drug cartels "now maintain a presence in over 1,000 cities" has been widely heard ever since the claim was first made in a 2011 report by the now defunct National Drug Intelligence Center (NDIC). But the Washington Post reported Sunday that it isn't true.

The US-Mexico border. The cartels are mainly on the other side of the fence. (wikimedia.org)
The figure is "misleading at best," law enforcement sources and drug policy analysts told the Post. The number was arrived by asking law enforcement agencies to self-report and not based on documented criminal cases involving Mexico's drug trafficking organizations, the so-called cartels.

DEA and Justice Department officials speaking off the record told the Post they didn't believe the numbers.

"It's not a DEA number," said a DEA official who requested anonymity. "We don't want to be attached to this number at all."

"I heard that they just cold-called people in different towns, as many as they could, and said, 'Do you have any Mexicans involved in drugs? And they would say, 'Yeah, sure,' " a Justice Department official told the Post, also anonymously.

The Post also interviewed police chiefs in towns with supposed cartel presence who said they were surprised to be included in the list of cities penetrated by the cartels. "That's news to me," Middleton, NH police chief Randy Sobel told the Post. Corinth, MS, police chief David Lancaster told the Post. "I have no knowledge of that."

Drug policy and drug trafficking analysts also scoffed at the number.

"They say there are Mexicans operating here and they must be part of a Mexican drug organization," said Peter Reuter, a University of Maryland professor and former co-director of the Rand Corporation's Drug Policy Research Center. "These numbers are mythical, and they keep getting reinforced by the echo chamber."

"Washington loves mythical numbers," former longtime Office of National Drug Control Policy (ONDCP) official John Carnevale told the Post. "Once the number is out there and it comes from a source perceived to be credible, it becomes hard to disprove, almost impossible, even when it's wrong."

The analysts said the claim was part of pattern in the drug war of promoting questionable statistics to justify drug enforcement budgets.

"At a time when agency budgets are being cut, you want to demonstrate that you are protecting the public from a menace," said Eric Sterling, president of the Criminal Justice Policy Foundation, a drug- and policing-policy reform group. "If you say there are Mexican henchmen in 1,000 cities, you don't want to cut their budget."

The unjustifiably high number also resulted from definitional problems with the NDIC's effort.

"These definitions are interchangeable and indistinguishable," said Peter Andreas, a Brown University professor whose book "Smuggler Nation" was recently reviewed here. "This is a particularly egregious example of a pattern that unfortunately has not gotten a lot of scrutiny."

The "1,000 cities" canard isn't the only cartel myth widely circulating. For years, law enforcement in the Western US has claimed that Mexican cartels are behind large-scale marijuana grows in national forests and other public lands.Then, in January of this year, ONDCP was forced to admit there was no evidence of cartel involvement in such marijuana grows.

"Based on our intelligence, which includes thousands of cell phone numbers and wiretaps, we haven't been able to connect anyone to a major cartel," Tommy Lanier, head of ONDCP's National Marijuana Initiative, admitted to the Los Angeles Times in January.

He said law enforcement had long mislabeled marijuana grown on public land as "cartel grows" because Mexican nationals had been arrested in some cases and because raising the cartel threat was good for getting federal funding.

But Lanier's admission hasn't stopped local law enforcement from trying to play the cartel card. At least three have done so just this month: Police in San Luis Obispo, California said a marijuana grow there was "associated with Mexican drug cartels" even though no one has been arrested. Police in Grass Valley, California, warned of an "illegal Mexican cartel grow." And, police in Cedar City, Utah, said that marijuana grows on public lands were "big business for the Mexican drug cartels that operate them."

Medical Marijuana Update

Medical marijuana wars continue in California, a Michigan town gets intrusive, Nevada prepares to rake in the dough from dispensaries, and Washington patients organize in the face of legalization. Let's get to it:

California

Last Thursday, a state task force charged with setting policy on dealing with pollution generated by marijuana growers met for the first time. The task force is the outgrowth of a Butte County request that state water regulators take part in dealing with the problem. Its members include county officials, state legislators, a representative from the governor's office, and the Department of Fish and Wildlife. Water regulators had told local officials they were reluctant to send their employees to grow areas, and the parties involved agreed to create a task force aimed at producing a policy that could be applied statewide on how to attack the water pollution threat.

Also last Thursday, police raided and shut down the first dispensary to open in Los Angeles County. The historic IMCC Wellness Center in Inglewood, which opened in 1999, was raided by numerous officers, who said the three other dispensaries in the city would also be shut down. The owner, Paul Scott, suspects local authorities have been emboldened by the recent state Supreme Court decision holding that localities can ban dispensaries.

Also last Thursday, the Clear Lake city council made moves to retool a draft medical marijuana cultivation ordinance that had failed to pass in the spring. The council ordered administrators to make several changes to the draft ordinance, which is modeled on the cultivation ordinance adopted by the Lake County Board of Supervisors last summer. The ordinance would limit the number of plants according to parcel size, but got hung up earlier over whether to include daycare centers in the definition of schools, from which grows must be at least 600 feet distant. The council now wants to define daycare centers as a separate category, but maintain the 600-foot requirement, although it would have a grandfather provision.

On Monday, a letter from the Contra County DA to Richmond officials saying dispensaries are illegal was made public. Contra Costa District Attorney Mark Peterson sent a letter dated July 25th to the City Council of Richmond advising them that the medical marijuana dispensaries they approved are illegal and are in violation of state and federal laws. Peterson also warned those who facilitate these actions may be liable as well. He copied the letter to city governments throughout the county.

Also on Monday, Doc Holliday's Collective in Mentone closed under protest, with demonstrators marking its last day of operation. The dispensary shut down after reaching an agreement with San Bernardino County authorities over thousands of dollars in fines it had racked up for continuing to operate despite a county ban on dispensaries.

Also on Monday, a Coronado family filed a lawsuit charging officials took their children for a year because the father was a medical marijuana patient. Michael Lewis, Lauren Taylor and their children Cameran and Bailey Lewis sued San Diego County and seven of its officers, the City of Coronado and two of its police officers for civil rights violations, battery, false imprisonment and negligence, in Superior Court. The suit alleges the children were taken without any actual evidence of abuse or neglect, solely because of the father's medical marijuana use, and that police and child welfare workers lied about the nature of the case. It took 364 days and an appellate court ruling for the parents to get their kids returned.

On Tuesday, there was strong public support for a restrictive cultivation ordinance in Merced County. Advocates of a crackdown on grows supported a proposed ordinance that would limit the number of plants to 12, no matter what the size of the parcel. The county sheriff's office showed slides of massive marijuana grows, and deputies linked them to various crimes, as well as fires and environmental pollution. Several residents also spoke about the violence they witnessed in their own neighborhoods, where pot plants are growing. No one spoke in opposition to the ordinance, but two speakers asked for exceptions for caregivers and others stressed the difference between "cartel operations" and legitimate grows for patients. A second hearing will take place on September 10, and the board of supervisors will vote on the ordinance then. If approved, it will go into effect a month later.

Michigan

On Tuesday, the Jackson city council approved an intrusive cultivation ordinance that would limit patients to using no more than 20% of their homes to grow or consume their medicine. The ordinance also bans dispensaries. The ordinance had stalled in June over the 20% requirement and two others -- that tenants must provide a statement from landlords approving the use of medical marijuana, and that "combustible materials" were to be prohibited in homes where marijuana was grown. Those latter two provisions have now been removed, but even the 20% provision stuck in the throats of some council members. The measure passed 4-3, and will go into effect September 12 after a final vote. Protestors outside the council meeting said they will sue the city if it attempts to enforce the new ordinance.

Nevada

On Tuesday, the state Board of Examiners approved initial funding for the Tax Department to implement tax collection efforts on medical marijuana sales next year. A dispensary law passed the legislature this year, and sales will begin next year. The Board approved a $529,000 funding request from the department, most of which is the cost to start the collection process involves one-time changes to its tax system at a cost of $496,000. The agency also is seeking ongoing funding of about $52,000 a year to hire a new tax examiner, he said. The state will collect a 2% excise tax on medical marijuana growers and sellers, and purchasers will pay a sales tax as well.

Washington

On Tuesday, medical marijuana advocates launched a "Health Before Happy Hour" campaign to ensure that the effort to implement marijuana legalization in the state does not result in negative impacts on patients or the dismantling of the state's Medical Use of Cannabis Act. Assisted by Americans for Safe Access, the campaign seeks to educate lawmakers about the distinct needs of patients and avoid seeing the medical marijuana program folded into the recreational system, a possibility that is being raised by some observers.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

As Pressure Mounts, Holder Acts on Sentencing Reform [FEATURE]

US Attorney General Eric Holder announced Monday a comprehensive federal sentencing reform package with a strong emphasis on drug sentencing. He said he will direct US Attorneys that low-level, nonviolent drug offenders not tied to gangs or major trafficking organizations should not be charged in ways that trigger lengthy mandatory minimum sentences.

Attorney General Eric Holder (usjoj.gov)
Holder's announcement is only the latest indicator that -- after decades of "tough on crime" politics in Washington -- pressure is mounting to do something about the huge number of people in federal prisons. The Chronicle will be reporting on the rising calls for reform in both the executive branch and the Congress later this week.

In a major speech to the American Bar Association in San Francisco Monday morning, Holder laid out Obama administration sentencing reform plans, some of which can be implemented by executive action, but some of which will require action in the Congress. The comprehensive sentencing reform package is designed to reduce the federal prison population not only through sentencing reforms, but also through alternatives to incarceration in the first place.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder said. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it. Too many Americans go to too many prisons for far too long and for no good law enforcement reason. We cannot simply prosecute or incarcerate our way to becoming a safer nation."

On drug sentencing, Holder said he would direct US attorneys across the country to develop specific guidelines about when to file federal charges in drug offenses. The heaviest charges should be reserved for serious, high-level, or violent offenders, the attorney general said.

There are currently more than 100,000 people incarcerated in federal prisons for drug offenses, or nearly half (47%) of all federal prisoners. The federal prison population has expanded an incredible eight-fold since President Ronald Reagan and a compliant Congress put the drug war in overdrive three decades ago, although recent federal prison population increases have been driven as much by immigration prosecutions as by drug offenses.

"It's time -- in fact, it's well past time -- to address persistent needs and unwarranted disparities by considering a fundamentally new approach," Holder told the assembled attorneys. "While I have the utmost faith in -- and dedication to -- America's legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time -- and our duty -- to identify those areas we can improve in order to better advance the cause of justice for all Americans."

One of those areas, Holder said, is mandatory minimum sentencing.

"We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences -- regardless of the individual conduct at issue in a particular case -- reduce the discretion available to prosecutors, judges, and juries," said the former federal prosecutor. "Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. When applied indiscriminately, they do not serve public safety. They -- and some of the enforcement priorities we have set -- have had a destabilizing effect on particular communities, largely poor and of color. And, applied inappropriately, they are ultimately counterproductive."

In addition to reducing the resort to mandatory minimum sentencing and directing prosecutors to use their discretion in charging decisions, Holder will also order the Justice Department to expand the federal prison compassionate release program to include "elderly inmates who did not commit violent crimes and who have served significant portions of their sentences."

Beside the executive branch actions, Holder also committed the Obama administration to supporting sentencing reform legislation currently pending before Congress, specifically the Justice Safety Valve Act (Senate Bill 619), which would give federal judges the ability to sentence below mandatory minimums when circumstances warrant, and the the Smart Sentencing Act (Senate Bill 1410), which would reduce mandatory minimums for drug crimes, slightly expand the existing drug sentencing safety valve, and apply retroactively the Fair Sentencing Act of 2010's reduction in the crack-powder cocaine sentencing disparity.

"Such legislation will ultimately save our country billions of dollars," Holder said. "Although incarceration has a role to play in our justice system, widespread incarceration at the federal, state and local levels is both ineffective and unsustainable."

Sentencing and drug reform advocates welcomed Holder's speech and the Obama administration's embrace of the need for criminal justice reforms, but also scolded the administration and lawmakers for taking so long to address the issue and for timidity in the changes proposed.

"For the past 40 years, the Department of Justice, under both political parties, has promoted mandatory minimum sentencing like a one-way ratchet. Federal prison sentences got longer and longer and no one stopped to consider the costs and benefits," said Julie Stewart, founder and head of Families Against Mandatory Minimums (FAMM). "Today, at long last, the politics of criminal sentencing have caught up to the evidence. The changes proposed by the Attorney General are modest but they will make us safer and save taxpayers billions of dollars in the process."

"There's no good reason, of course, why the Obama administration couldn't have done something like this during his first term -- and tens, perhaps hundreds, of thousands of Americans have suffered unjustly as a result of their delay," said Drug Policy Alliance executive director Ethan Nadelmann in a message to supporters. "But that said, President Obama and Attorney General Holder deserve credit for stepping out now, and for doing so in a fairly decisive way."

[See our related story this issue, "Is There a Perfect Storm for Federal Sentencing Reform?"]

San Francisco, CA
United States

Serial Offender: Miami Fed. Prosecutor Called on Misconduct in Drug Cases [FEATURE]

special to Drug War Chronicle by Houston-based investigative journalist Clarence Walker, [email protected]

Part 6 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

There is something rotten in Miami. A federal prosecutor there, Assistant US Attorney Andrea Hoffman, seems to have problems staying within the bounds of the law as she attempts to prosecute major drug cases. As a result, cases are coming undone, and some Colombians are going home, some who likely were innocent. And Hoffman's pattern of prosecutorial misconduct has so far come without serious professional consequences.

2011 press conference in Bogota announcing the 56 indictments (presidencia.gov.co)
On September 2, 2011, US Attorney for the Southern District of Florida in Miami Wilfredo Ferrer announced the arrest of 56 Colombians in a trio of separate foreign investigations -- Operation Seven Trumpets, Operation Under the Sea, and Operation BACRIM (Bandas Criminales). In what was one of America's biggest drug busts, authorities also seized 21 airplanes, 12 submarines, millions of dollars in cash, and more than 20 tons of cocaine and heroin.

"Together with our law enforcement partners in Colombia, we have developed a proactive strategy to combat the rise of narco-trafficking operations to eliminate the threat they pose to the security of the international community," Ferrer crowed at a press conference with Colombia President Santos and Prosecutor General Viviane Morales in Bogota that day.

But what appeared to a slam-dunk case validating America's never-ending war on drugs soon went sideways, and Hoffman was there. Two Colombian nationals arrested in the case, John Winer and Jose Buitrago, who were looking at life in prison without parole, are now free men after federal District Court Judge Marcia Cooke ruled earlier this year that Hoffman deliberately withheld key evidence from the defense, undermining the defendants' rights to a fair trial.

And that's just for starters.

Winer and Buitrago

On May 21, a jury had already been seated to hear the case against Winer, represented by attorney Jose Quinon, and Buitrago when the latter's defense attorneys, Kashap Patel and Helen Batoff, got DEA agents and a Colombian narcotics officer to acknowledge they knew the DEA was making monthly payments to "vetted units" of the Colombian narcotics police -- and that prosecutor Hoffman also knew about those payments.

"Vetted units" are elite anti-drug squads whose members have passed muster as not being corrupt, and are often used by the DEA and other agencies in their overseas investigations. These units are required to file monthly reports on their activities in order to justify incurred expenses paid for by the DEA as part of US foreign assistance to Colombia to wage the drug war.

Hoffman denied any previous knowledge of the payments to the vetted units.

But on the stand that day, Colombian police officer Pacheco blew up Hoffman's denials about the DEA payments. Pacheco said the matter about the money was discussed between him, Hoffman, and DEA agent Guillermo Turke upon arriving in Miami from Bogota on Sunday, May 14th.

Attorneys Patel and Batoff had already been tipped-off about the use of the vetted units in the case against their clients, and prosecutors acknowledged as much, but refused to disclose information about their role in the case unless the defense attorneys could prove they were entitled to it.

Under the Brady rule, the government is required to turn over exculpatory evidence or material information in the government's possession that could be favorable to a defendant.

"The defense sent a written request to get the documents from Hoffman and her co-counsel, Cynthia Wood, on April 3, 2013," Patel told Judge Cooke. Receiving no reply from Hoffman,  defense attorneys re-sent the letter and, on May 1, received a reply from Hoffman's office acknowledging that the payment information existed, but demanding that the defense explain how it was entitled to that information.

"Tell me why it's Brady material, or under what theory you are entitled to it," prosecutor Christina Maxwell responded.

"The DEA payments to Colombian officers were disclosable to the defense without them having to file a Brady motion to get them," harrumphed Washington, DC, criminal defense attorney Stephan Leckar in an interview with the Chronicle.

US District Court Judge Marcia Cooke didn't let Hoffman get away with misconduct. (stu.edu)
Judge Cooke suspended the trial to hold a hearing on the matter, and things only got worse for Hoffman. Cook and the defense attorneys grilled a bevy of DEA agents, and they testified that Hoffman had known about the payments at an earlier date.

Bogota DEA Special Agent Guillermo Turke reiterated Pacheco's testimony that the "payments were specifically discussed with Hoffman on May 19th".

Miami DEA Corrine Martin told the frustrated judge "after all of the court motions, we spoke with DEA Special Agent Ed Reed about the payments and we also let Ms. Hoffman know."

Replying to a question from Judge Cook, Miami DEA Special Agent Mike Torbert concurred.

"I discovered there was a $200 operational expense given to SIU (special investigation units)," he told the court. "I passed the information to Ms. Hoffman."

Although her office had responded to defense letters about the payments on May 1, acknowledging they had occurred, Hoffman insisted to Judge Cooke that she had first found out about them on May 20, on the eve of the trial. But when Cooke pressed, Hoffman revised.

"Your honor, I found out about the payments at noon on May 21," she then replied.

But after hearing the defense evidence that Hoffman in fact knew about the money paid to the Colombian sources before the trial started, Judge Cooke accused Hoffman of prosecutorial misconduct, or intentionally engaging in inappropriate or illegal behavior by withholding evidence or knowing permitting false testimony and tampering with witnesses. Hoffman had violated the Brady rule by not automatically turning over materially important evidence to the defense prior to trial and when the trial started.

Had defense attorneys been given the information by Hoffman about the DEA payoffs, the wiretaps in the Winer-Buitrago case could have been challenged and used to impeach witnesses, the attorneys argued.  "The scope of the defense would've been different," Patel explained to the judge.

Hoffman apologized to the court, blaming her misconduct on miscommunications due to language barriers, but Judge Cooke wasn't buying it.

"I think the US government was aware of Colombian police officers receiving payments and did not disclose it to the defense," an angry Cooke replied. "The prosecutor was ethically and legally bound to turn the information over. This does not make sense to me. This is all you do. Answer this:  Why does the government get a pass?"

Defense attorneys moved to have the case dismissed because of Hoffman's misbehavior.

"The government's conduct deprived the defendants of their constitutional rights to due process," the attorneys wrote. "Such flagrant disregard for the rule of law and brazen dishonesty to the court and to opposing counsel should 'shock' the court's conscience."

Judge Cooke denied the motion to dismiss but a deal was struck. Winer and Buitrago both pleaded guilty to a lesser charge of conspiracy to transport cocaine and were sentenced to 36 months, with credit for the two years they had already been behind bars pending trial. Both men were subsequently released from custody.

Winer and Buitrago and the Practice of Information Buying and Selling

The little matter of the Brady rule violation in the area of the vetted units wasn't Hoffman's only problem in the Winer-Buitrago case. Defense attorneys also accused her of failing to disclose a letter indicating that another Colombian, Daniel Bustos, who was facing years in prison on a cocaine conspiracy charge, had paid money to another drug defendant, Fabian Cruz, so that Cruz would use his informant connection with prosecutors or outsiders to obtain "inside information" about evidence in the Winer-Buitrago case and feed it to Bustos. Then, Bustos and other defendants could use that information to testify falsely for the prosecution against the Operation Seven defendants in exchange for leniency.

But Assistant US Attorney Hoffman rejected a defense request to obtain the whistleblower letter exposing the dealings between Bustos and Cruz. In the courtroom, Hoffman confirmed that the letter existed, and Judge Cooke gruffly ordered her to produce it for the defense, again citing the Brady rule. At the time, Bustos and Cruz were already on the prosecutors' witness list.

This underground scheme is called "buying and selling" evidence (fake or real) for a defendant to get on the bus with the Feds and ride all the way home to freedom. In a December 2012 story in USA Today, reporter Brad Heath exposed the inner workings of the practice, illustrating how prisoners game the system by buying and selling evidence against other defendants with pending drug cases, then using that bought information to testify for the prosecution in exchange for sentence cuts and early freedom.

That report found that "one out of eight" federal drug convicts had their sentences reduced for helping prosecutors. Similarly, the Houston Chronicle reported that federal judges last year "resentenced 1,738 inmates nationwide after they provided substantial assistance" to investigators and prosecutors.

The corrupt scheme works like this: An inmate with outside connections (or already an informant) will have relatives and friends collect information on the street about a drug dealer's operation, or have operatives to dig up additional information about a dealer awaiting trial. Then the inmate will sell the collected information to prisoners who have money but are short on facts or criminal contacts to cooperate with the government on their own.

Daniel Bustos was hoping to lessen his sentence by paying Cruz to get information on Winer and Buitrago and then using that information to testify against them. And Hoffman was prepared to let him until defense attorneys blew the whistle.

Hoffman has not been officially sanctioned by the court for her misconduct in the Winer-Buitrago case. A court worker told the Chronicle recently that while the matter was under consideration, no ruling had been issued, and Hoffman was still assigned to Cooke's courtroom.

A Miami public affairs spokesman for US Attorney's Office for Florida Southern District declined to comment.

That's not the end of the trouble in Miami. Operation Seven Trumpets and its prosecutors have taken more hits, with other Colombians who had been indicted in the operation and extradited to the US being released and sent home after the charges turned out to have been unfounded.

Carlos Ortega Bonilla

Carlos Ortega Bonilla hugs his son as he is released. (seitleslaw.com)
Carlos Ortega Bonilla and William "Willy" Gil-Perenguez, both Colombian nationals, were arrested and extradited to the US as part of operations Seven Trumpets and BANCRIM. Both were thrown into the Miami Federal Detention Center to await trial on cocaine charges, and both faced up to life in prison if convicted.

Ortega Bonilla, the former head of Colombia's Flight Security (the equivalent to the Federal Aviation Administration), was enjoying his retirement in Bogota when agents armed with paramilitary-style weapons swarmed his home and arrested him.

"You have been indicted for supplying airplanes to traffickers to ship tons of cocaine to other Latin countries and the US," one of the drug agents told him. The agent explained that Ortega Bonilla's voice had been heard on wiretaps selling planes to drug dealers, in particular one Alvaro Suarez, a veteran trafficker who had once worked as a pilot for legendary Medellin Cartel capo Pablo Escobar.

Protesting his innocence all the while, Ortega Bonilla was imprisoned in Bogota while he unsuccessfully fought extradition to the US. He was eventually transferred to Miami, where he languished in jail as he sought to prove his innocence, but that was an extremely hard sell for Assistant US Attorney Hoffman.

"I never worked harder in my life," Miami criminal defense attorney Mark Seitles told the Daily Business Review about his attempts to convince Hoffman to drop the charges.

Seitles immediately hired Ed Kacerosky as an investigator. Kacerosky is a highly decorated former US Customs Agent credited with helping the Feds dismantle the infamous Cali Cartel. Ironically as an agent, Kacerosky had worked closely on previous major drug cases with Hoffman.

Authorities targeted Ortega Bonilla, tapping his phone, but failed to provide evidence that any airplanes he sold were linked to drug trafficking. The key to his freedom would lie in the wiretaps.

"Kacerosky realized after hearing the wiretaps that there was a gross misidentification, and they indicted my client Ortega for acts of another guy named Carlos," Seitles explained.

At an August 14, 2012, hearing in the courtroom of Judge Cooke, Seitles explained that his client had been wrongfully indicted on drug crimes and that his own investigation discovered irrefutable evidence the feds had misidentified his client's voice on the wiretaps.

As a plane broker, Ortega Bonilla sold or leased aircraft, and someone had convinced the feds that he was dirty. But they were wrong.

"Ortega Bonilla's voice was on the wiretaps in one plane deal where he determined that the men who sought the aircraft were drug dealers," Seitles explained. "And he refused to do the deal. No plane was ever sold and emails sent by Ortega Bonilla to the men showed he refused to do business with drug traffickers. There are even recorded calls with Ortega Bonilla attempting to contact the FBI to tell them about this. And the affidavit in support of extraditing Mr. Ortega Bonilla mentioned seven planes and no mention of that airplane, which was an E-90."

The seven planes in question actually belonged to another Carlos, Honduran drug dealer Carlos Litona, Seitles explained.

But Hoffman was having none of it. She argued to Judge Cooke that she had a witness, a co-defendant willing to testify that Carlos Ortega Bonilla was the right guy. Seitles countered in a separate hearing, putting Kacerosky on the stand with the wiretap tapes to explain how he had uncovered evidence that the feds had fingered the wrong man.

"The real guy is Carlos Litona," Kacerosky told the judge.

Without calling her secret witness, Hoffman dropped the charges on August 31.

When Ortega's family arrived at the airport in the Colombian capitol, hundreds of supporters surrounded them, hugging him with teary eyes and wishing him well. But his problems aren't over.

"Ortega Bonilla's US visa has been revoked, and he's having a hard time accepting that he was in custody for a crime he did not commit," Seitles told the Chronicle.

Ortega Bonilla has hired a Colombian attorney to file a lawsuit there and is currently searching for legal representation in the US to file a lawsuit here.

William "Willy" Gil-Perenguez

In June 2006, DEA and Colombian National Police jointly investigated a widespread conspiracy among multiple defendants importing cocaine and heroin on cargo planes traveling from Colombia and landing at Miami International Airport. DEA picked up the name of a cargo worker named "Willy" who supposedly was part of the conspiracy. An informant even identified "Willy" 's voice on wiretaps.

Willy Gil-Perenguez was living the good life at the time in Cali. He had a beloved girlfriend and a decent job, working for the Girag cargo air freight company. But in June 2007, his good life came to a screeching halt, when Colombian drug agents arrested him, believing he was the "Willy" overheard on the drug investigation wiretaps.

He was taken to a DEA office in Colombia, where agents threatened him, telling him to cooperate with them or they could make a phone call and have him sent to prison for 30 years. Gil-Perenguez maintained his innocence, saying he had no idea what they were talking about. In September 2008, he was extradited to Miami to face assorted drug charges that potentially carried a maximum penalty of life in prison.

Facing the wrath and the resources of the US government, Gil-Perenguez caught a lucky break while sitting at the Miami Federal Detention Center awaiting trial. He encountered another detainee, Neixi Garcia Lamela, a major target of Operation Seven Trumpets, who had agreed to cooperate with the feds. But he had bombshell news for Gil-Perenguez.

"DEA agents and Hoffman tried to pressure me to implicate you but I refused, because I knew I would be fabricating testimony to implicate an innocent person," Garcia Lamela told Gil-Perenguez, according to a lawsuit he later filed.

Gil-Perenguez immediately contacted his attorney, Luis Guerra. Guerra relayed to Hoffman the information about Garcia Lamela's admission that his client was innocent.

"I went to Hoffman and said, 'You have the wrong guy. My guy is innocent,'" Guerra told Law.com. "She said she had other witnesses. Turns out the witnesses never existed," Guerra recounted.

After serving 19 months behind bars, which included one year in Colombia's Combita lockup, a place described by human rights activists as one of the most oppressive and notorious prisons in the world, US District Judge Donald Graham freed Gil-Perenguez in February 2009, finding that his voice had been wrongfully identified on the wiretaps.

Gil-Perenguez returned to Colombia wearing a "bad jacket." His fellow countrymen think he snitched on others to be released so early. He filed a $10 million wrongful arrest lawsuit against the US government, charging that he had been left jobless and in pain and suffering. But the US 11th Circuit Court of Appeals threw out the lawsuit, ruling that the US lacked jurisdiction and that it couldn't be sanctioned for "any claims arising in a foreign country."

"Our country is not supposed to be making these kinds of mistakes," Florida attorney Richard Diaz, who represented Gil-Perenguez  in the civil suit, told Law.com.

Hoffman and her colleagues have managed to win some convictions in these high-profile drug conspiracy cases, and given her hardball attitude and willingness to skirt -- if not cross over completely -- the bounds of prosecutorial misconduct, that comes as no surprise. But other Colombian defendants continue to be exonerated, with two more of them, Luis Alfonso Rubiano Ramos and Jose Norberto Mejia Cortez having their cases dismissed and going home in June.

Dr. Ali Shaygan

Dr. Ali Shaygan has nothing to do with Colombian drug trafficking conspiracies, but his case is yet another example of Hoffman's prosecutorial overreach. As previously reported in the Chronicle, Shaygan was charged with overprescribing narcotics as part of the federal government's campaign against prescription drug abuse, but later acquitted.

After his acquittal, Shaygan won a $600,000 judgment against Hoffman and another federal prosecutor, with the judge in the case finding their conduct in attempting to influence witnesses and deny potentially exculpatory evidence to the defense so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute."

That judgment was overturned by the 11th US Circuit Court of Appeals. Shaygan and his supporters sought review at the US Supreme Court, but were turned down. In the meantime, Hoffman is still on the job in Miami and, if her work on the big drug investigations is any indication, still bumping up against the rules without serious professional consequence. Prosecutorial misconduct still seems to be a bridge too far for the American criminal justice system to address.

Miami, FL
United States

Chronicle Book Review: Too High to Fail

Doug Fine, Too High to Fail: Cannabis and the New Green Economic Revolution (2012, Gotham Books, 319 pp., $28.00 HB)

[Ed: This review was based on the hardcover edition of "Too High to Fail." The paperback edition of Too High Fail has now been published as well. According to the author it includes a a postscript that reflects "more unbelievable happenings in Mendocino County and worldwide through the beginning of this year."]

https://stopthedrugwar.org/files/toohightofail-200px.jpg
Marijuana and marijuana policy are big news these days -- they are exciting times, indeed! -- and that's reflected in what has now become a deluge of books on the topic. We've probably reviewed a dozen or more pot books in the last year alone, and here's another one. While, given the torrent of titles, it becomes increasingly difficult to stand out in the crowd, New York Times bestselling author Doug Fine's Too High to Fail is exceptional.

Fine writes with verve and passion, making it clear from the outset that he views marijuana prohibition as not only useless, but harmful -- not only to any sense of justice and morality, not only to the millions of people arrested and punished in myriad ways for the crime of possessing or trading in a hugely useful and versatile plant, but also to the country's efforts to claw its way back from the precipice of the Great Recession.

With that out of the way, in early 2011, Fine heads off for Mendocino County, California, ground zero in the new marijuana economy. A couple of hours north of San Francisco on US 101, Mendocino is part of the state's famous marijuana-growing Emerald Triangle, and is, to a mind-blogging extent, dependent on the pot economy. In fact, if not for pot, Mendocino would probably wither up and blow away. The logging industry is history, and the legal agricultural economy is a fraction of the size of the pot economy. (The county's largest legitimate ag crop, wine grapes, pulled in about $75 million in one recent year, at the same time the pot harvest was estimated at $8.1 billion, or about a hundred times as much).

The pot economy is normalized in Mendocino County. Marijuana dollars pay for everything from the new pickup trucks flying off dealers' lots every fall to the capital necessary to open boutique businesses that dot one-horse towns like Willits and Ukiah to the salaries of Mendocino County sheriff's deputies (at least for a couple of years; see below). County officials know what the local economy runs on, and so does the sheriff, which is why the county instituted its zip-tie program for growers willing to register as medical marijuana providers. Farmers paid thousands of dollars into county coffers for those zip-ties, which would let state and local law enforcement know that these were legal grows, not outlaw ones.

If California, where medical marijuana is legal is Fine's "bubble," Mendocino County, with its casual acceptance of the pot economy is the bubble squared, and growers operating within the guidelines of the zip-tie program, complete with inspections by law enforcement are inside the bubble cubed. This is where Fine situates himself, as he uses the journey of a single plant from cloning to delivery to a patient as the hook for his narrative of his hazy Mendo days.

Fine's sympathetic portraits of the folks involved, from Sheriff Tom Allman, who told him he wouldn't get "up off my ass" to arrest a guy with a pound of pot in the sheriff's parking lot and who created the zip-tie program, to Deputy Randy Johnson, who performed the unique job of zip-tie program compliance sergeant, to novice Mendo outdoor (but experienced East Bay indoor) grower Tom Balogh, who grew the clone Fine tracked, to Northstone Organics head Matt Cohen, who was determined to run a farmer-to-patient collective in scrupulous compliance with state laws, help put a human face on Mendocino's marijuana culture and some of its intricacies.

Fine also shines at explicating the various currents and tensions that run through the community, whether it's the veteran "Redneck Hippies" unhappy with the new generation of young, bling-slinging profiteers or county commissioners not exactly happy with Mendo's free-wheeling grow scene, but who recognize that it can't be wished away and should instead be regulated for the benefit of the county and its citizens. Or the travails of newcomer Balogh, who must contend with skeptical neighbors and prove to the community that he's not just another hit-and-run wannabe "sensimillionaire."

But while Fine spent a season deep inside the bubble, he also found that it could be punctured. He details his own experience being pulled over by sheriff's deputies in neighboring Sonoma County to the south who profiled him for his facial hair and muddied, big-tired pick-up, as well as the misadventures of two Northstone Organics deliverymen also pulled over and busted by Sonoma narcs and, gallingly, prosecuted by Sonoma County district attorneys. The drive from Mendo south through Sonoma and on to the Bay Area was called "running the gauntlet," as law enforcers on the hunt for busts and assets to seize preyed on the US 101 traffic less like highway patrolmen than highwaymen.

(As a resident of medical marijuana-friendly Sonoma County, such behavior by my elected officials and their minions offends my sensibilities. I'll be attending a Summer Solstice event this coming week to celebrate the formation of a political action committee whose goal is help enlighten our public servants, or replace them if they appear too thick-headed to get it.)

But Fine, Northstone Organics, and the entire Mendocino County effort to craft a tightly-regulated, county-benefiting medical marijuana program encountered an even more dramatic bursting of the bubble when federal prosecutors renewed their war on medical marijuana in the fall of 2011. Mendonesians had largely ignored the raids on dispensaries going on elsewhere in the state as the war ramped up, but they couldn't ignore the crew of DEA agents who rousted Cohen at gunpoint and chopped down Northstone's 99 plants, depriving more than 1,700 patients of their medicine, and effectively putting an end to the innovative zip-tie program.

With Too High to Fail, Fine show us how marijuana can be regulated and integrated into the community. And he dares to dream of a future where the cannabis plant, with all its manifold uses, can be integrated into, and indeed, become a boon for, the American economy. He also shows us the obstacles in the way.

The story of Mendocino's (and America's) marijuana adventure didn't stop in the fall of 2011. Since then, even as the first two states legalized marijuana outright at the ballot box, the federal offensive against medical marijuana in California has continued. Mendocino County had to fend off an overreaching federal subpoena of all records related to its medical marijuana program, Northstone has been knocked out of business, and an innovative program that served the interests of the community and the local economy has been stopped in its tracks.

In the new paperback edition, Fine returns to Mendocino and adds a 6,000 postscript on all the exciting developments since 2011, including legalization in Colorado and Washington, the seismic shifts in public opinion in favor of legalization, and the continuing trials, tribulations, and triumphs of the county's growers and the public officials attempting to come to grips with it all.

Although Fine looks bravely and boldly toward a cannabized future, we aren't there yet. But Too High to Fail chronicles what it could look like based on the Mendo experience, and provides a valuable and entertaining read along the way.

Blacks Targeted in Wasteful War on Marijuana, ACLU Finds

Black Americans are nearly four times more likely to get busted for marijuana possession than white ones, even though both groups smoke pot at roughly comparable rates, the ACLU said in a report released Tuesday. The report, "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests," is based on the annual FBI Uniform Crime Report and US Census Bureau Data.

Blacks are 3.7 times more likely to get busted for marijuana possession than whites. (aclu.org/marijuana)
The disparity in arrest rates is startlingly consistent, the report found. In more than 96% of the counties covered in the report, blacks were arrested at higher rates than whites. Racial disparities in pot busts came in large counties and small, urban and rural, wealthy and poor, with large black populations and with small ones.

In some counties, the disparity rose to 15 times more likely, and in the Upper Midwest states of Illinois, Iowa, and Minnesota, blacks were eight times more likely to be arrested for pot possession than whites. Nationwide, blacks were 3.73 times more likely to get arrested for marijuana than whites.

And it's getting worse, not better. The report found that even though the racial disparities in marijuana arrests existed 10 years ago, they have increased in 38 states and the District of Columbia.

"The war on marijuana has disproportionately been a war on people of color," said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project and one of the primary authors of the report. "State and local governments have aggressively enforced marijuana laws selectively against black people and communities, needlessly ensnaring hundreds of thousands of people in the criminal justice system at tremendous human and financial cost."

In budgetary terms, that cost to the states was $3.61 billion in 2010 alone, the report found. During the decade the report studied, despite aggressive enforcement and rising marijuana arrest rates, all those arrests failed to stop or even diminish the use of marijuana, and support for its legalization only increased.

"The aggressive policing of marijuana is time-consuming, costly, racially biased, and doesn't work," said Edwards. "These arrests have a significant detrimental impact on people's lives, as well as on the communities in which they live. When people are arrested for possessing even tiny amounts of marijuana, they can be disqualified from public housing or student financial aid, lose or find it more difficult to obtain employment, lose custody of their child, or be deported."

The report recommends legalizing, taxing, and regulating marijuana, which it said would eliminate racially-targeted selective enforcement of marijuana laws, save the billions of dollars spent on enforcing pot prohibition, and raise badly needed revenues by taxation. If legalization is not doable, then decriminalization, and if not decriminalization, then lowest prioritization.

The ACLU also calls in the report for reforms in policing practices, including not only ending racial profiling, but also constitutionally-suspect stop-and-frisk searches, such as those embraced with such gusto by the NYPD in New York City. It also crucially recommends reforming federal law enforcement funding streams, such as the Edward Byrne Justice Assistance Grant Program, that encourage police to make low-level drug busts by using performance measures that reward such arrests at the expense of other measures.

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