3rd Annual Marijuana Law for Musicians: Tonight
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Unintentionally late posting here…
Go see Charlie Roadman’s presentation tonight at the Mohawk. Click here for my previous review. More info here.
Legislator Admits Her Attempt to Criminalize Salvia Divinorum Won't Work
From the Chicago Tribune article, “States Fear Plant Could Become Next Marijuana”:
“As soon as we make one drug illegal, kids start looking around for other drugs they can buy legally. This is just the next one," said Florida state Rep. Mary Brandenburg, who has introduced a bill to make possession of Salvia divinorum a felony punishable by up to 5 years in prison.
The quote, of course, is her attempt to justify the new law. You’d think that something - anything - other than explaining the futility of the bill would make for a better selling point.
Daring to Spend Your Money
Dallas defense lawyer Robert Guest writes about how the D.A.R.E. program has been a complete waste of taxpayers’ money:
By all accounts DARE HAS BEEN A COMPLETE FAILURE. DARE has shown no efficacy in keeping kids from using drugs, alcohol, or cigarettes. Yet the government continues to waste over a billion dollars a year on DARE.
Turns out repeating variations of “Just Say No!” doesn’t decrease drug use among teenagers. And there’s plenty of things like “science” and “evidence” to back that up. (Quotations put in for the Bush administration, which doesn’t think of those as valid concepts.)
One of my goals in life has been trying to convince people that correlation does not prove causation. This fallacious reasoning is used often in the “marijuana is a gateway drug” argument on the side of “why marijuana should be criminalized”. But it’s a logical fallacy plain and simple.
However, lack of correlation does show lack of causation. Or in this context, when policeman take over 5th grade classes and give their D.A.R.E. lectures, for decades now, and drug use does not decline, then we can make a logical conclusion:
The D.A.R.E. program does not reduce drug use.
Of course, ineffective government programs and other boondoggles perpetrated on the taxpayer are hardly newsworthy. Sending cops to school to lecture kids about the dangers of drug use, and how they must must must stay away from marijuana sounds like a good idea, and so the program continues to be funded.
What campaign manager is going to tell his candidate that he should be against “Drug Abuse Resistance Education”?
Robert goes on to quote from George Bush’s recent declaration of spending more on useless stuff D.A.R.E. Day 2008, and a la Steven Colbert adds links for more thoughtful readers:
All Americans have a responsibility to encourage others to turn away from drug abuse and to make good choices in life. During National D.A.R.E Day, we renew our commitment to providing our youth the knowledge and encouragement they need to resist the pressures that can lead them to experiment with drugs and violent activities. By working together, we can help our children build lives of purpose and strengthen our communities, one heart and one soul at a time.
The first link is a fantastic C.S. Lewis’ quote:
Of all tyrannies a tyranny sincerely exercised for the good of its victim may be the most oppressive.
It may be better to live under robber barons than under omnipotent moral busybodies.
The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
What better description of the War on Drugs? A tyranny sincerely exercised for the good of its victim – the drug user.
And The Winning Argument Is...
Forget the immorality of imprisoning drug addicts. Blow off the damage done to family members by having Moms, Dads, siblings and children incarcerated for marijuana offenses.
The argument that will eventually convert the most people to a sensible drug policy is the economic one. How does it hit you in your pocketbook? (Sorry, we are selfish beings. There are better arguments for decriminalization – I’m just predicting this is the one that will work.)
From NPR’s All Things Considered today:
California's potential $16 billion budget shortfall has led state officials to an unusual source for tax revenue — medical marijuana storefronts. In a state where it's legal to buy prescription pot, those shops generate millions of dollars each year. But there's just one problem — buying and selling marijuana is still a federal crime.
Richard Lee, owner of a coffee shop and marijuana dispensary in Oakland, says he's proud of the more than $200,000 a year he pays in sales tax. His store sells marijuana buds in one-eighth ounce bags.
Let’s see. $16 billion dollar deficit this year alone. According to the story, “Medical marijuana advocates estimate that the aggregate annual sales tax revenue that's paid by the approximately 400 dispensaries in California is $100 million.”
One hundred million isn’t chump change. As for the other side of the equation.
How much could Californians save, by not incarcerating folks for non medical marijuana possession?
Sorry, my calculator only goes to ten digits.
Related Posts:
- It’s the (Prison) Economy Stupid
- Mass Incarceration in the United States: At What Cost
- The War on Drugs is the new New Deal
- How to Convince (Rather Than Argue) Drug Policy Reform
Marijuana Protest?
From the same IP address, a search for “weed protest Austin Texas” followed a few days later by the query “names of inmates in Austin”.
Was there a protest or rally or march or some sort of event recently that I didn’t know about? And did it lead to any arrests?
Anyone know?
Heartbreaking
Houston criminal defense lawyer Randall Kallinen posted the link to this story on the newly formed Texas defense lawyers listserv:
Omaha, Nebraska (KMTV) - A 10-year-old Nebraska girl is slowly losing her life to brain cancer. She has one wish will put her to ease: to see her dad. But it may not happen.
The little girl's name is Jayci Yaeger.
"The tumors are growing and hemorrhaging and right now nothing there's nothing they can do for here, just keep her comfortable," says Vonda Yaeger, Jayci's mother.
Cancerous brain tumors have taken over, and Jayci moved into a Lincoln, Nebraska hospice center this week. Her mother can only watch as her daughter slowly disappears--a girl who just six months ago was vibrant and energetic.
"She needs to be where she can be peaceful and happy and not in pain," says Vonda.
However, Jayci isn't ready to go just yet. She's got one more thing to do before she dies. Hug her daddy.
"She's very scared," says Vonda. "I think she's holding on for her father."
The thing is, Jason Yaeger is sitting in a federal minimum security prison camp in South Dakota serving five and a half years for a drug conviction. He's got one year left.
Jason and the Yaeger family have appealed many times to the warden for a 30-day supervised release. He's been denied, and they say the prison tells them the circumstances are not "extraordinary."
Jason is scheduled to be released to a local halfway house in August, but doctors and her family believe by then it will be too late. Now, they're just waiting, hoping something will change.
A quick skimming of the comments section, and I only totaled 3 out of 98 comments - so far - that were of the “DO THE TIME DO THE CRIME” variety. (Sorry for all the caps, readers, but I thought it was appropriate even while paraphrasing to keep the anonymous idiot internet commenter code of always yelling.)
So, does that mean there’s roughly three percent of the population that wants to hammer your client on a drug case, and ninety seven percent that are at least capable of compassion for a non violent offense? In Texas, where we have the option of jury punishment, even for the slam dunk guilty defendants, it’s something to think about…
Did Cocaine Kill Ike?
Or was it Ike?
Robert Arthur comments on Ike Turner’s recent death, noting many headlines such as “Cocaine Killed Ike Turner”. He surmises that there may be, as Paul Harvey likes to say, “more to the story”…
The ubiquitous headlines have been “Ike Turner Died of Cocaine Overdose” and the underlying articles have focused on his past recreational drug use. As usual the government and the media have twisted their presentation of illicit drug use to create a morality lesson.
Fatal overdoses from cocaine, as with other stimulants, are extremely rare. Most deaths labeled cocaine toxicity by medical examiners are actually due to respiratory failure. Cocaine greatly increases the heart rate and, similar to roller coasters, should not be used by those with weak hearts.
Also, drugs are often incorrectly blamed for suicides. Recreational drugs are a favored exit route because they are easier and more pleasurable than shooting oneself or throwing oneself off a precipice.
Arthur notes that Turner being in the advanced stages of emphysema may have chosen to end his own life, with cocaine as the tool rather than the cause.
People often commit suicide by running a car in a garage. Do cars get blamed?
No. But ‘Cocaine killed Ike Turner’ is apparently a better headline than ‘Ike chose to end his own life with cocaine’.
Austin is Weird: Tickets for Marijuana Possession
I’ve written about “Austin Marijuana” laws before, and perhaps unwisely, I joked that Austin is Weird, but unfortunately, it is constrained by the laws of the great State of Texas and therefore no different when it comes to marijuana laws than anywhere else in the Lone Star State.
Scott Henson called me on it, in a comment:
Two caveats.
1) Austin supposedly will soon implement HB 2391 that allows tickets instead of arrest for pot at an officer's option. And
2) APD frequently now gives paraphernalia tickets instead of arrests for B misdemeanors as a way to reduce jail overcrowding and keep officers on the street. Both those are discretionary, though - the state law is still the same.
I knew that was true, but I what I didn’t know was: Austin really is weird. Austin is apparently the only place in Texas where police are utilizing this new law. From the Dallas Morning News article “Marijuana ticket law only catching on in Austin”:
Texas lawmakers thought they could help ease jail overcrowding when they passed legislation allowing police to write tickets for misdemeanor marijuana possession and a few other nonviolent crimes, instead of hauling suspects to the clink.
But the new law, which went into effect Sept. 1, 2007, is being used only in Travis County. Prosecutors in Dallas, Tarrant and Collin counties never set up a system to process the misdemeanor citations and, they say, they have no plans to do so.
The article I subtitled “Law designed to free jail space not used elsewhere in Texas as prosecutors question propriety,” and it quotes several ‘concerned’ prosecutors:
"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." …
For Greg Davis, Collin County's first assistant district attorney, one of his qualms with the new law is the perception created by ticketing for a drug offense, instead of making an arrest.
"It may... lead some people to believe that drug use is no more serious than double parking," Mr. Davis said. "We don't want to send that message to potential drug users, particularly young people."
Well, the legislature has spoken, and yes it’s true that the new provision is discretionary, but rejecting it out of hand for reasons of… well, political cowardice?
Jail overcrowding is a real problem all across Texas. And the super majority of taxpayers are more than OK with tickets for small amounts of marijuana possession – heck, decriminalizing marijuana or reducing it to a Class C level.
One quick caveat of my own: the law does not make possession of less than two ounces of marijuana a Class C traffic ticket level offense. It is still a Class B misdemeanor, jailable by up to 180 days and up to a $2000 fine. (Not a likely result, but it’s still not ‘just a ticket’.)
In other words, Mr. Davis, the offense itself is still just as serious as it was before the new law. And of course you know that. Don’t you want to save the taxpayers some money?
Update: Of course, Travis County is not the only place in Texas the new discretion to ticket for marijuana is being used. Still, Austin deserves some credit, for being the first ‘big city’ to use it so effectively.
Jail Time Instead of Probation For Possession of Marijuana
I have a specific question regarding a recent arrest in [XXX] Texas.
My boyfriend was arrested for possession of marijuana (less than two grams) during a traffic stop - he had recently had body work done on his car and the front license plate was missing.
This is his first offense and he was very compliant and was released on a PR bond (after the magistrate had made fun of him first and said he looked like a girl about a half dozen times - quite unprofessional in my opinion).
Anyways, he travels out of the country quite a bit for his job and he's worried that if he is given a long probation sentence it would cause him to lose his job.
Another friend of mine got a DUI and elected to pay a hefty fine and do a little jail time in lieu of probation so that he too could leave the country.
Would this be possible in my boyfriend's case (I know you can't predict what will happen, but I'm wondering if that is even a possibility or if probation is mandatory for a class b misdemeanor first offense)?
He is currently in the process of finding a defense attorney with experience in possession cases.
[Anonymous – via email]
Answer:
Class B Misdemeanor Possession of Marijuana is punishable by ‘up to’ 180 days in jail and ‘up to’ a $2000 fine. This means a sentence, after conviction, of as low as 1 day in jail with credit for the time he spent in jail already with a $0 fine is a possibility.
Unfortunately, it’s only possible to do this if convicted, and while I don’t practice in [XXX] Texas, I imagine that some form of deferred probation without a conviction is a very reasonable possibility.
The local probation department will want him to be employed, so traveling may have to be pre-arranged, but will not likely be prohibited. If we knew in advance that only a final conviction with jail time, or a deferred probation withou a conviction were possible, he still might need to at least consider the deferred to avoid the conviction - and to set himself up to eventually file a motion for non disclosure to seal the records.
Finally, with no prior arrests of any sort, a good defense lawyer will possibly be able to get your boyfriend a reduction to a Class C (traffic ticket level) offense, or perhaps even a dismissal, with counseling and/or community service done up front. Obviously, either of these outcomes are within the range of best case scenario, and I appreciate your realizing up front I can’t predict a particular result.
However, to answer the question directly, there is no mandatory probation for possession of marijuana in Texas – as is there is, for example, for 3rd offense enhanced Class B public intoxication.
Government Admits Marijuana Use Does Not Cause Violence
So someone googled “marijuana is associated with other crimes” and this blog came up on the eighth page of the results. I’m tempted to say the searcher had a hard time finding good solid scientific support for his thesis, if Google couldn’t legitimize the theory in the first few pages.
Anyway, I clicked the search button to see what links came up first. Lo and behold, it’s from the Department of Justice’s website, a paper written by the National Drug Intelligence Center called the Connecticut Drug Threat Assessment from July of 2002.
It’s full of the regular propaganda we have come to know, as well as the other usual suspects: faulty logic, scare tactics and inconsistency. The paper is broken down into sections about Abuse, Availability, Violence, Production, Transportation and Distribution.
Here’s what caught my eye. Check out the entire section on ‘Violence’:
Although marijuana abusers generally do not commit violent crimes, the distribution of marijuana occasionally is associated with violent crime in Connecticut.
Most violent crime associated with marijuana distribution in the state occurs between rival criminal groups and gangs.
Some marijuana distributors commit violent crimes to protect or expand their markets.
Law enforcement officials arrested two males in Connecticut in 1998 for killing a female Jamaican flight attendant and stealing 29 pounds of marijuana that she had stored in her home.
So, let’s see… DOJ admits marijuana use does not even correlate well with violence, and certainly doesn’t cause it, but that the criminalization of marijuana does. Absolutely 100% correct.
I assume the writer felt compelled to throw in that last sentence as a scare tactic, but doesn’t the whole thing, including the ‘example’ actually reinforce the obvious conclusion that marijuana use should be legal?
Retroactivity for Crack Cocaine Offenders: NBC News
Brian Williams had a scare piece on NBC Nightly News last night about the current ‘debate’ at the U.S. Sentencing Commission regarding making the new Federal Sentencing Guidelines for crack cocaine retroactive. (Apologies: the only link I could find to the piece forces you to watch a 15 to 30 second commercial first.)
Williams starts off with:
We learned today that thousands of serious drug offenders who are right now in federal prisons could soon be returned to the streets despite serious objections by the U.S. Justice Department.
Sounds bad – downright scary doesn’t it? But maybe they are serious drug offenders because they received outrageously long sentences along the lines of the 100 to 1 ratio for crack vs. powder cocaine in the first place. The report acknowledged that the Sentencing Commission saw this as
…a way to reduce the wide disparity that produces harsher sentences for crack offenders, over 80% of whom are black, than for powder cocaine offenders…
NBC mentions that there is a ‘disparity’ but doesn’t mention the actual ratio. Time for some more scare tactics:
…but so many would be out in such a short period of time that the Justice Department warns it could drive up violent crime.
Who can NBC find to back this claim? Let’s try Deborah Rhodes, U.S. Attorney for the Southern District of Alabama, whose previous claim to fame was being touted by Kyle Sampson as a possible replacement for Carol Lam, one of the U.S. Attorneys targeted by Karl Rove/Alberto Gonzales/Harriet Myers.
What is Ms. Rhodes take on the subject?
“Crack defendants as a whole generally have a higher criminal history and a greater use of guns and violence in the manner that they distribute their cocaine.”
Than whom? Than powder cocaine defendants? Got any stats to back that up? And why not just convict and sentence them for their violent acts?
Certainly not a higher level of violence than, say, murderers. Or anyone convicted of a violent crime (who presumable have a 100% use of violence associated with their offense).
…supporters of the plan, including many federal judges, say it would simply make retroactive a change the commission made two weeks ago for sentencing future federal drug offenders.
NBC puts on Marc Mauer, executive director of the Sentencing Project, and we finally get a dose of common sense:
“It’s difficult to explain to anyone why somebody convicted a month ago should have a stiffer sentence than somebody convicted today of exactly the same offense.”
I don’t know that it’s difficult to explain. But then again, absurdity, arbitrariness and capriciousness are accurate but not good explanations.
The piece mentions that ‘many of those getting out will have served ten to fifteen years’ and that they will be getting an average reduction of 27 months from their sentence. How about some talk about the economics of the situation?
An extremely low estimate, of $25,000 per year per federal inmate, would result in a cost savings to the public of over a billion dollars. That would have been worth throwing in the report.
And how about comparing their 10-15 year sentences with the average federal sentence for murder? (19 years.) Think more folks dragged down by the law of parties and the law of ‘conspiracy’ were ‘on average’ more violent than all those murderers? Seems unlikely.
Also see:
Meth Gun and 'Good Enough for Probable Cause'
Kiran Chetry interviewed a Sheriff’s Deputy on CNN’s American Morning news program about the new methamphetamine detection ‘gun’ being tested in Arizona and Missouri.
First citing the National Association of Counties survey that found meth the ‘number one drug problem,’ Chetry defines the device as “[helping] police detect trace amounts of meth on any surface including skin,” and asks her guest about any legal issues that might be raised.
His response:
I hear the Fourth Amendment issues come up on several occasions and, you know, we’re here to protect or defend that constitutional right and so we’re here to use this device to determine if something is methamphetamine or not.
So, the right to be secure in your person (house, papers or effects) from unreasonable search and seizure is basically, well, the same as the ‘right’ of the police to determine if you have trace amounts of methamphetamine on you?
And what about trace amounts? Any way you could get trace amounts of methamphetamine on you and not be a dealer/user? Chetry continued:
…one of the other concerns… because this can test for a microgram of meth, how do you insure that innocent people wouldn’t get in trouble for inadvertently touching something that someone else touched, or hugging a person who had traces of meth?
No problem replies the Sheriff. In Arizona, the possession of controlled substance statute requires that a person have a ‘usable amount’ of meth. Well, there’s no such requirement in Texas. For marijuana, yes; for all other controlled substances, no (which is a separate problem in and of itself).
The Sheriff continued:
…if we determine that there’s a trace amount, we’re going to [go on] to determine
- How did you get that?
- Why do you have a trace amount on your clothes or person?
Well, let’s see here. Everyone will say “I have no idea”. Since we know that drug dealers/drug users will deny knowing where it comes from, that won’t be a very good excuse now will it? If you actually have no idea where it came from, better not get caught using the same excuse as all those junkies.
I found the part of the segment interesting. Chetry interrupts and rephrases the Sheriff’s last response to say that it’s ‘good enough then for probable cause’. But he actually says:
It wouldn’t be probable cause in itself… until the courts determine that the science and technology behind it is good quality science.
An admission from police that the gizmo isn’t ‘enough for probable cause,’ and that we don’t know the quality of the science… but, of course, they’re using it anyway.
Also see, from Jonathan Turley:
The concern is not meth users but the creation of a fishbowl society where the government constantly scans and surveils its citizens. It presents a world not contemplated when the fourth amendment was written and a world quite different in terms of the feeling of freedom in public. Notably, as surveillance cameras increase and scanning devices proliferate, there is little discussion of the shrinking zone of personal privacy.
Marijuana: Criminal or Funny?
Do news anchors giggle when they read stories about Theft, Murder, Burglary, Rape, Assault, Kidnapping, etc.? Obviously not.
How do we explain the behavior of the anchors (all of them) in the above clip then?
Simple. They know their audience thinks that possession of marijuana is not serious criminal activity. Probably shouldn’t be criminalized at all. And they aren’t afraid to show it.
Why then must State and Federal legislators continue the charade?
The First U.S. Marijuana Arrest (Ever)
The federal Marihuana Tax Stamp Act was passed on October 2, 1937, seventy years ago today. It was the first law criminalizing marijuana sale and possession in the United States.
That very day, the FBI arrested Samuel Caldwell for selling two joints to Moses Baca who was also arrested. Caldwell was sentenced to four years in Leavenworth; Baca 18 months. Neither was paroled. The maximum was five years.
Technically speaking Caldwell’s crime was not buying the $1 stamp that was a tax levied on the purchase and sale of marijuana. Apparently it was no legal defense that the stamp wasn’t available; after all, he was arrested the day the law was enacted – the stamps didn’t exist yet.
From the NORML website, the judge in his case sounds like he may have had a part in ghost writing Reefer Madness:
Caldwell's wares, two marijuana cigarettes, deeply offended Judge Foster Symes, who said:
"I consider marijuana the worst of all narcotics, far worse than the use of morphine or cocaine. Under its influence men become beasts. Marijuana destroys life itself. I have no sympathy with those who sell this weed. The government is going to enforce this new law to the letter."
Some thirty two years later, the United States Supreme Court struck down the Tax Stamp Act as unconstitutionally violating a defendant’s Fifth Amendment right against self-incrimination. Leary v. United States, 395 U.S. 6 (1969). Yes, that Timothy Leary. But I digress.
Of course, the case didn’t do Mr. Caldwell any good, because he had already served his four years, day for day, and in fact got no satisfaction at all since he died about a year after being released.
And all 50 states as well as the Federal Government have simply moved on to directly criminalizing marijuana sale and possession. And the prison industry thanks them for it.
Other bloggers/Same Subject: DrugWarRant, Friendly Fire.
Marijuana Laws in Austin Texas
I get a lot of hits** from people who Google “Marijuana Laws Austin Texas,” or some other variation of that phrase.
I know that in Austin, we pride ourselves on being weird, but, unfortunately the marijuana laws are the same here as they are all across Texas. Perhaps people are thinking that the laws on this vary from county to county, but they don’t.
For more info on Texas Marijuana Laws, you can try my Topics pages on Marijuana and Controlled Substances and/or the War on Drugs.
[** No pun intended.The folks at LexBlog, who designed the look of this page and host my blog include in their services a stat tracking package called Mint. It’s great. It lets me see what phrases people typed into Google when they reach my page. I recommend it highly.]
Caffeine vs. Marijuana
Drug War propaganda has infiltrated our lives to such an extreme that we no longer notice ridiculous logical fallacies applied to everyday situations.
Today I picked up a copy of AustinFit Magazine and leafed through it while my wife was shopping. In the Diet section they ask:
Is there a Caffeine Catch?
We all have those moments when we find ourselves in need. Whether seeking a pick-me-up, a buzz, warmth or companionship, turning to caffeine is a habit many of us have embraced. Are we getting off scot-free, or is this stimulant actually bringing us down?
OK. Looks interesting. It’s an article that attempts to address whether or not caffeine is addictive.
The long line at Starbucks seems to support this theory; coffee drinkers themselves even perpetuate the idea that the magical ingredient in that morning cup of Jo exerts some kind of mind control.
I’m one of those coffee drinkers. Just this morning I was standing in line at the elevator at the Travis County Courthouse, joking with a fellow defense attorney that I would whine about the heat outside, but perhaps I forfeited the right to complain because I was holding a cup of hot coffee in my hand. I’ve wondered myself, in those situations, whether caffeine is addictive. The article continues:
Scientists say otherwise, however. The World Health Organization as well as the Diagnostic and Statistical Manual for Mental Disorders both scoff at the notion that caffeine should be grouped in the same category as illicit drugs, pointing out the modern tendency to overuse the word “addiction.”
Here’s where the rabbit trail begins. Illicit drugs aren’t all addictive (think marijuana), and some of the most lethal drugs are addictive and legal (think, most obviously, tobacco and alcohol).
A mug of coffee cuts through the morning fog and gives us something to chat over before trudging off to our cubicles, but the habit is more social and psychological than it is physical. Cutting caffeine out of your diet may throw you a little off kilter, but it won’t inspire you to lie, cheat or steal.
Marijuana use doesn’t ‘inspire’ lying cheating or stealing either, but see how easy it is for the writer to automatically assume we should categorize all illegal controlled substances as ‘bad’, while ignoring legal drugs that actually are ‘bad’ for us?
Talk about jumping to unreasonable conclusions. Or perhaps it’s just begging the question. But I find this line of ‘thought’ annoying for its lack of intellectual rigor.
There’s no relationship between the drugs we criminalize and addiction; and there’s certainly no logical argument that addiction can be defined by what the legislature decides to send folks to jail or prison for.
ONDCP Blog Not Allowing Comments
Via Robert Guest:
My quest to comment on the Pushingback.com site is coming to an end.
Keri, my friendly contact at the ONDCP has informed me that the Pushingback.com does not allow for any reader input. Comments are not posted and no one can register to post on the site.
Drug warriors are such cowards. Only a government blog could actually stifle free speech. My tax dollars are being wasted on this nonsense. Why does our government fear debate? What do they have to lose from the free flow of ideas?
I’ve actually wasted my time trying to respond to the anti-common sense propaganda on that site as well.
And here I thought they were just rejecting my well reasoned observations about the uselessness of the Drug War, but it turns out…they already know in advance: people that take enough time to sit down and write out a blog comment have thought the issue through and don’t agree with their position.
So, just turn comments off all together. (Of course, to keep up the farce, they have a “Send Comments” link.)
Who Thinks Al Gore III Should Go To Prison?
No one in their right mind, I would argue. From CNN:
The deputy found a small amount of marijuana and prescription pills -- including Adderall, Vicodin, Xanax and Valium -- all without a prescription.
Gore is charged with two felony counts of possession of a controlled substance, two misdemeanor counts of possessing a controlled substance without a prescription, one misdemeanor count of possession of marijuana and a traffic infraction.
If convicted on all charges, he faces a maximum sentence of three years and eight months in prison, but he could be eligible for a drug diversion program, the District Attorney's Office said.
The kicker here is that of course Gore won’t go to prison. But plenty of people in his situation do. Especially if, as in his case, they have prior drug and alcohol related arrests and police contacts.
Drug War crusaders love to insist that it’s only drug dealers that face serious prison time. Oh really? Al Gore III’s ‘small amount of marijuana and prescription pills” makes him a drug dealer? Or perhaps, a hardened criminal?
The point is that this shouldn’t even be punishable by almost 4 years in prison in the first place.
Definition of "Possession" for MIP (or Marijuana or Controlled Substances)
Question: My daughter was in a car that was pulled over and one of the passengers had been drinking. When the car was pulled over, it was searched and there were several unopened beers present.
My daughter was being driven to a restaurant from school and did not know alcohol was present in the vehicle when she entered. All of the passengers were charged with MIP. 3 of them have already pleaded guilty.
Is she automatically guilty of MIP if she is in proximity of alcohol?
Answer: Absolutely Not. And I don’t just mean that in the ‘gut instinct’ criminal defense lawyer ‘no-one-is-automatically-guilty’ of anything way. There’s more to it than that.
To prove any charge involving possession, whether it’s for a minor and alcohol, or an adult and marijuana, cocaine, etc., the State needs to prove that the defendant knowingly or intentionally possessed the contraband.
If a jury, or a judge in a bench trial, believes that the accused did not knowing possess the substance they are charged with possessing, they will be duty bound to acquit.
On a charge that is ‘only a Class C misdemeanor,’ it is sometimes easier, and undoubtedly less expensive, to sign up for a deferred disposition, than it is to hire a lawyer to go to trial.
But on cases like Class B misdemeanor Possession of Marijuana (or higher felony possession charges), where you need a defense lawyer, unknowing possession is always a valid defense.
See also: Jury Selection and the Unwitting Possession Defense and Definition of Possession in the Texas Penal Code
Bong Hits 4 Jesus - Try Your Luck
Now that the Supreme Court has ruled that "Bong Hits 4 Jesus" is improper student speech. Via Students for Sensible Drug Policy, try your hand at guessing which of these statements you can and can't say now...
Jury Selection and the Unwitting Possession Defense
For a jury to convict a defendant of possession of marijuana or any controlled substance, the State must prove more than the defendant’s mere presence near the contraband.
As a criminal defense attorney, however, you can’t just take this concept for granted. After all, he wouldn’t be your client in the first place, if he hadn’t been…
- driving the car where the marijuana was found
- in the house where the cocaine was found
- carrying the computer with the porn files…(for example)
- etc., etc.
What this cries out for, is a good common sense example that every venire member can understand immediately. And here’s one I learned a long time ago (I don’t remember from whom, or I’d give them credit).
Pick a potential juror and tell him a story. Start with the example of someone who is guilty. Then tweak the facts until you come up with a not guilty.
Attorney: Mr. Juror, let’s say that your neighbor decides to take some marijuana over to a friend’s house. He puts a baggie of marijuana on the passenger seat of the car, and drives to his friend’s house. On the way, he gets stopped for a traffic violation, and admits to the officer that the marijuana is his.
Now, even though he was never seen in physical possession of the marijuana, you would agree that if the State proved everything I just said to you, that would probably end up with a guilty verdict?
Juror: Yes, I suppose so.
Attorney: OK, good, we agree. Now let’s say his friend lives in another State, and he decides to mail him the marijuana. Same facts, but this time he places the marijuana in a plain unmarked package, and takes it to FedEx to mail it. He gets caught before he gets there, and once again the State brings you good solid evidence of everything I just told you. Still guilty, right?
Juror: Yes, still guilty.
Attorney: OK. Let’s say this time he actually mails the marijuana. The FedEx employee takes the box from the delivery van to the front door of his friend. The police swarm in (for whatever reason) and stop the FedEx carrier before he can get to the door. The FedEx driver was actually in physical possession of the dope. Why is he not guilty?
Juror: Well, he didn’t have any way of knowing what was in the box…
Obviously, I can’t predict the actual answers here, and if the guy you picked out doesn’t come up with it, move down the row until someone does (they always do).
Then reinforce that answer by saying, “Not only did he not have any way of knowing, but the State didn’t bring any evidence to show that he knew what was in the package”.
Won’t necessarily do you much good when your client has it on his person, but can be great material to get potential jurors talking when your client was arrested in a vehicle, or even in his own home.
From Wine Tastings to Cannasseurship
Texas has no medical exception for possession of marijuana…but California does.
And living in the “California of Texas” – Austin – we have Whole Foods, Central Market, and of course, the “Keep Austin Weird” movement that was even featured on 60 minutes.
So I had to laugh when I read the San Francisco Gate article “Connoisseurs of Cannabis”. Subtitled appropriately “Like fine wine, growing medicinal weed has become so specialized as to inspire tastings and a new vocabulary”:
And if there is a center in the United States for this breed of maven, it is California, particularly the Bay Area.
In a region of wine and food buffs, where there is a constant quest for the best bread, cheese or olive oil, it's no wonder that marijuana, in its semi-legal status, has become a new frontier for expertise.
There are medicinal consumers who covet designer strains and varietals -- such as the one grown and harvested only by women in a remote northern county -- or who want organic products and say they can taste what soil or fertilizer was used and want to know the lineage of what they consume, as well as the expected effects.
Of course, the Federal Government is still spending your tax dollars on literally useless prosecutions.
[Hat Tip: Drug Law Blog]
Fighting the Denial of Student Aid for Drug Convictions
I’ve posted before about 20 U.S.C. § 1091 entitled “Student Eligibility” and its restrictions on Federal Student Aid based on marijuana and drug convictions.
The ACLU has recently taken up the cause, filing an appeal recently of a Federal District Court's denial to have that section declared unconstitutional. From the press release:
“The law’s purpose is to impose a second criminal punishment on students who have already served their sentences, which makes it unconstitutional,” said Adam Wolf, an attorney with the ACLU Drug Law Reform Project. “Judges must assess, not ignore, lawmakers’ intentions. All we ask is that the court consider the evidence.”
The legal basis for the challenge is that the intent of the Act is punitive in nature – and therefore violates the Double Jeopardy clause of the U.S. Constitution. The brief does an excellent job of quoting from the Congressional Record to back the assertion that the legislative intent was indeed punitive:
“[T]oday’s bill is intended to impose some accountability on those who use controlled substances.”
Users of controlled substances “get off scot-free…[W]e can begin to send the message to illegal drug users that they are no longer immune…”
“A couple of years ago we passed a user-accountability law…Unfortunately, we wound up with provisions that allowed judges to make a decision on a case-by-case basis…”
Goodness! Judges allowed to make case by case decisions on whether a marijuana conviction should be denied student aid? How about trying to imagine what America would look like right now, if we took college degrees away from everyone that had ever experimented with marijuana. (see, e.g., the 2002 Time/CNN Poll showing 47% of Americans have used marijuana, on page 3 of this article)
The legal hurdle for the Government’s lawyers, of course, is that they must argue that the denial of student aid is not intended to be punitive, or they risk that part of the law being struck down as an unconstitutional double punishment.
Common sense tells us that it is. And kudos to the ACLU for the good work in proving it. It will be interesting to see where this leads.
Marijuana Law for Musicians: Austin, Texas
Everybody with any interest in a criminal defense attorney’s perspective on marijuana defense in Austin should go see Charlie Roadman give his second annual Marijuana for Musicians presentation at The Mohawk on Red River at 8:00.
Quoting my own review from last year’s talk:
Charlie’s PowerPoint presentation was both humorous and informative, especially for the lay public. He started with the narrative from the infamous Matthew McConaughey naked bongo arrest, taken right from the original Police Report in that case.
He went on to explain the process that defense lawyers go through when defending someone arrested for Possession of Marijuana. Throughout the presentation were excerpts from Police Reports and other tidbits from actual clients of his, along with tips I’d call “How to make your lawyer’s job easier if you want him to get you the best possible deal”.
I hear Charlie has upped the ante this year, and added even more to the talk. And you don’t need to be a musician to be curious about what your rights are…
A Government Agency Tells the Truth About Marijuana
The government is extremely multifaceted, so which agency am I referring to? The University of Texas at Austin’s University Health Services.
Instead of promoting fear and paranoia, or subsidizing the private prison industry lobby, their mission is to “support academic pursuits by fostering physical and psychological wellness and by promoting healthy lifestyles among UT students”. Perhaps this frees them up from the usual propaganda requirements.
At any rate, check out the UHS page on Marijuana. Some selected portions:
Q: Smoking marijuana causes laziness and saps motivation.
A: Undetermined, but it appears to be more false than true. The lack of motivation that some heavy users experience often can be attributed to other factors such as the use of alcohol or other drugs, depression, or other underlying personality characteristics.
Q: Marijuana is a "gateway drug." (That is, smoking pot leads to using harder drugs.)
A: This is most likely false. Most drug users don't begin with marijuana, but start with tobacco and alcohol at a fairly young age. People who go on to use harder drugs tend to be experimenters. Pot is just one of several or many drugs that experimenters may try.
Q: Use of marijuana promotes aggression and crime.
A: This is generally false. Marijuana usually has a calming effect. Most criminals who use marijuana began committing crimes before they started smoking pot. On the other hand, a couple of studies have shown a correlation between heavy marijuana use in teenagers and aggressive behavior, disruptive behavior, and crime. It's important to note that correlations do not necessarily show cause and effect.
Wow. The three major themes about marijuana on the Drug Czar’s blog contradicted with science and syllogistic logic.
I have saved the webpage in its current format, in case these crazy doctor folks ever get pressured into replacing the current marijuana information page with more standard government fare. Here’s hoping that this little bit of truth, however, is allowed to stay online.
Truckload of Marijuana Abandoned
From CNN:
A truck with three tons (2.7 metric tons) of marijuana was found abandoned on a freeway ramp with its engine still warm, authorities said.
A California Highway Patrol officer saw the rented truck partially blocking the ramp Wednesday night and stopped to offer help before smelling marijuana, CHP Sgt. Telfinues Preszler Jr. said.
The officer found plastic-wrapped bundles of marijuana in the back, with an estimated street value of $20 million.
And a quote from the officer further in the article:
"Somebody's going be in some major trouble for walking away and leaving that quantity sitting on the side of the freeway," Preszler said. "I'm glad I'm not him."
Now I’m sure it was unintended, but it struck me as amusing that the officer’s words imply that the suspect was in much more trouble for intentionally abandoning a truck on a freeway, possibly causing a traffic jam, than he would be for the possession of marijuana.
Read it again – that’s technically what he said. And in fact, there’s more harm done to society from blocking traffic than there is from marijuana. Perhaps we should adjust the penalties accordingly…
Texas Medical Marijuana 2007 Bill Filed
District 49 (which includes parts of Austin, Texas) State Representative Elliot Naishtat filed a bill yesterday “relating to the use of medical marijuana”. The bill would add an affirmative defense to possession of marijuana charges: proof of a licensed doctor’s prescription:
SECTION 1. Section 481.121, Health and Safety Code, is amended by adding Subsections (c) and (d) to read as follows:
(c) It is an affirmative defense to prosecution under Subsection (a) for the possession of marihuana that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.
Further, it gives civil and criminal protections to doctors who discuss the potential benefits of marijuana with patients:
(d) An agency, including a law enforcement agency, of this state or a political subdivision of this state may not initiate an administrative, civil, or criminal investigation into a physician licensed to practice medicine in this state on the ground that the physician discussed marihuana as a treatment option with a patient of the physician or made a written or oral statement that, in the physician's opinion, the potential benefits of marihuana would likely outweigh the health risks for a particular patient.
Finally it adds similar protections for medical doctors in the Occupations Code.
It will be interesting to see how far along this bill gets…
Cannabis used in appetite suppressant drug trial
British pharmaceutical company GW announced it planned to start human trials on a fat-fighting marijuana drug today. From the CNN article “Drugmaker to test fat-fighting marijuana drug”:
"The cannabis plant has 70 different cannabinoids in it, and each has a different affect on the body," GW Managing Director Justin Gover told Reuters.
"Some can stimulate your appetite, and some in the same plant can suppress your appetite. It is amazing both scientifically and commercially," he said in a telephone interview.
Unfortunately, the United States government, of course, refuses to see any medical potential in marijuana whatsoever. Meanwhile, Americans keep getting fatter and fatter…
Congressional Bribes = No Big Fat Pension, Cocaine = Never Vote Again
So the United States Senate, shamed by the Duke Cunningham case, voted to deny pensions for former congressman and senators convicted of:
- Bribery of public officials and witnesses (Section 201 of Title 18);
- Conspiracy to commit offense or to defraud the United States (Section 371 of Title 18);
- Perjury committed under the statues of the United States or the District of Columbia in falsely denying the commission of bribery or conspiracy; and
- Subordination of perjury committed in connection with the false denial or false testimony of another individual.
Of course, if a senator is convicted of cocaine possession, he still gets his retirement.
How does that comport with our felon disenfranchisement laws? (See Spencer Overton or Renee Crawford for more on that subject.)
Making Possession of Marijuana a Class C Offense in Texas
From a comment left on the post of the Texas Possession of Marijuana statute: “What about HB 254, which amended this statute?”
House Bill 254 from the 79th legislative session, originally introduced by Harold Dutton, would have reclassified possession of up to one ounce of marijuana as a Class C misdemeanor. Currently, any usable amount up to two ounces is a Class B, and HB 254 would have left possession of one to two ounces at that level (same level as first time DWI). This would have allowed police officers to confiscate the marijuana, and write someone a ticket for it, rather than arresting them and further clogging the jails.
Unfortunately, despite sailing through the Texas House Criminal Jurisprudence committee unanimously, it was never scheduled for a floor vote, and thus died almost unnoticed.
Back to the question asked, actually the answer is that the Texas marijuana statute was not amended, and therefore, remains in its current form. But I will be happy to amend the statute in the blog, as soon as the Texas legislature does…
(See Grits for Breakfast’s usual outstanding coverage on this topic here)
Starbucks: good... Marijuana: bad
Howard Schultz is widely revered in business circles for taking a tiny coffee shop and turning it into Starbucks (2005 revenue – over $6 billion U.S. dollars). Print and TV magazines crawl all over themselves trying to get an interview with him.
The vast majority of Americans are not in favor of jailing anyone for possession of small amounts of marijuana (stay with me here, I’ll get back to Starbucks in a bit). In fact, based on the reactions I see when I explain the potential draconian consequences of a drug conviction to first time marijuana offender clients here in Austin, I’d venture to guess that most folks would be appalled to find out what could happen, even if it usually doesn’t. (Fortunately, there are usually creative ways to avoid convictions on first time offenses – but my point is about the penalty range, and the collateral consequences.)
Yet despite the public’s generally negative reaction to incarcerating marijuana users, I’ve also found a substantial number of people who say they are for decriminalization “for simple possession”, or “for users but not for dealers”. (Here’s where we get back to Starbucks.)
Why is it that when the business man sells coffee, and makes an obscene profit off of it at that, we applaud and wish we had his idea first?
But when we read today’s story that three folks were arrested for possession of thirty pounds of marijuana in Hays County, we react very differently…(they are facing ten years in prison)
If you believe that it’s “OK” for a guy to sit on his couch, not bother anyone, and smoke a few grams of marijuana in a joint, then you can’t be offended when you find out the guy down the street who sold it to him has a pound. Or that the guy who sold it to the guy down the street has thirty pounds or even more. That’s how a business supply chain works after all.
We live in a supply and demand country, and 99% of the time, we deify the entrepreneur who profits greatly. It’s about time we drop the hypocrisy and eliminate the ridiculous penalties when it comes to marijuana and controlled substance businessmen.
Travis County Probationers Face Lengthy Wait For Treatment
Steven Kreytak writes an excellent piece in today’s Statesman highlighting a major flaw in the Travis County probation system. I’m sure there are similar issues all over the state, but I am personally familiar with the situation based on representing defendants arrested for possession of controlled substances in Austin. From Kreytak’s article:
Statistics show that hundreds of newly sentenced probationers in Travis County are waiting to get into court-ordered substance abuse treatment.
Judges send some offenders to county jails to wait for a treatment slot to open up, exacerbating the county's ongoing jail crowding problem. Others are released into the community to fight their addiction on their own.
The wait for treatment is usually several months, department officials said.
The waiting lists in Travis County are among the longest in the state and could hinder the probation department's ambitious overhaul of its practices.
Naturally, when a defendant is sentenced to probation for a drug offense, “treatment and counseling as recommended” is a condition of their supervision. This is so common in Austin that prosecutors simply write the acronym “TCAR” on their files as a part of their plea bargain recommendations.
However, for felony charges, this often means that the defendant must “wait in jail until a bed opens up” in whatever treatment facility is “recommended”. The practical effect of this is to add long periods of incarceration to a defendant’s sentence, because not enough counseling options are available.
It’s a problem that only adequate funding can address, because, as the article points out, offenders released from jail immediately into community supervision (probation) often do not have their treatment needs met immediately, and re-offend prior to receiving counseling. This leads to an immediate filing of a Motion to Revoke Probation, with the defendant back in court.
The defense lawyer is then left to argue to the judge that the original sentence of prison should not be imposed, because the client is still in need of treatment. Of course, at this point, the judge is even more likely to leave the defendant in jail waiting treatment, which compounds our local jail overcrowding problems.
25 Year Sentence for Prescription Painkillers Not Cruel and Unusual Punishment
60 Minutes documented the story of Richard Paey (“How One Man's Quest For Pain Relief Landed Him In Jail”) earlier this year. The case itself is filled with legal and non-legal issues:
- Does possession of a certain amount of a substance establish “intent to deliver” or “trafficking” with no evidence of actual sale or delivery?
- Did the prosecutor’s pre-trial offer of probation with no jail imply that the State believed the evidence of trafficking was weak at best?
- Should possession of prescription medication without a valid prescription be punished as harshly (or more so) than possession of wholly illegal substances such as cocaine and heroin?
- Should it be a felony, or criminalized at all?
On Wednesday, Florida’s Second District Court of Appeals affirmed his sentence, rejecting his primary appellate issue that the ridiculously lengthy sentence violated the Eight Amendment’s prohibition against Cruel and unusual punishment.
The majority opinion contains a fairly accurate (if unfortunate) review of Eight Amendment caselaw, and correctly states the proposition that “Historically, the Eight Amendment has protected individuals with respect to the method of punishment, not the length of a period of incarceration.” [Emphasis Mine] The court basically concludes that it is the legislature’s job to determine the length of sentences for various drug offenses, and from the legal perspective, they are probably correct.
This emphasizes the need, then, that we who oppose these punishments ask our elected representatives to reform these laws. After all, don’t forget that you are paying for his incarceration.
The dissent is a better read than the majority, arguing we could use a dose of common sense mixed in with precedent:
I suggest that it is cruel for a man with an undisputed medical need for a substantial amount of daily medication management to go to prison for twenty-five years for using self-help means to obtain and amply supply himself with the medicine he needed.
I suggest it is cruel for government to treat a man whose motivation to offend sprang from urgent medical problems the same as it would treat a drug smuggler motivated to obtain personal wealth and power at the expense of the misery his enterprise brings to others.
I suggest that it is unusual, illogical, and unjust that Mr. Paey could conceivably go to prison for a longer stretch for peacefully but unlawfully purchasing 100 oxycodone pills from a pharmacist than had he robbed the pharmacist at knife point, stolen fifty oxycodone pills which he intended to sell to children waiting outside, and then stabbed the pharmacist.
Well said. Florida needs to elect that man to the legislature, so he can start rewriting the laws.
(Hat Tip: Windy Pundit for quoting the dissent)
Collateral Consequences of Possession of Marijuana Case in Texas
I was involved in an email exchange today with someone who asked me what the collateral consequences of accepting a plea bargain that would result in a regular conviction probation with no jail time for possession of marijuana in Texas. (He was considering accepting an offer from a prosecutor in a county where he was allowed to represent himself pro se – a topic for another post, another day.)
I emailed him back three possible collateral consequences of his plea bargain that I could come up with off the top of my head (there are others, and sometimes they are case by case or fact-specific):
Driver’s license suspension for 180 days – turns out the prosecutor had told him about this one. This is standard in the criminal court, because most Texas County Court judges know this, they will actually include this in the sentencing paperwork. No one will probably help the defendant seek an occupational license though, which would keep him “street legal” for all the places he needs to go (not for all of the fun places, of course, but still, unless you want to become Amish, you need some sort of a drivers license to be able to go about your daily business nowadays).
Denial of Student Aid for Certain Periods of Time – the prosecutor hadn’t mentioned this one. I think it’s very likely that the prosecutor didn’t know or didn’t care about this, but anyrate, under current Texas law, no one is required to tell a defendant about this. Not even the judge in admonishing an unrepresented defendant. I previously posted about the statute and the relevant ineligibility for federal aid time periods.
Non U.S. citizens subject to deportation - (if charging instrument alleges possession of more than 30 grams) – this also didn’t apply to the fellow who emailed me, but it’s really one of my pet peeves about the current state of marijuana laws in Texas. Texas criminalizes possession of any usable amount less than two ounces (approximately 56 grams) of marijuana as a Class B misdemeanor. The charging instrument is an information (not an indictment) for this level of offense. Even if a foreign national possessed merely 1 gram of usable marijuana, if he pleads to the offense as charged, he subjects himself to being deported, based on the accusation of “less than two ounces”, because that amount could be more than 30 grams, which triggers the federal deportation element.
I’ll end by adding that these are just some of the possible draconian consequences of conviction of marijuana offenses in Texas. Fortunately, in Austin, the prosecutors often accept pre-trial diversion applications for first time marijuana offenders. Williamson County has set up a pr