Cheetos and Goldfish For Texas Too (...Someday)


The ballot title and submission clause numbered Amendment 64 to the Colorado Constitution asked:

Shall there be an amendment to the Colorado constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana;

permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana;

providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores;

 permitting local governments to regulate or prohibit such facilities;

requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana;

requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund;

and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp?

Cleverly titled The Regulate Marijuana Like Alcohol Act of 2012, the Amendment won by a ten point margin yesterday. Predictably, the politicians, in this case Colorado’s Governor John Hickenlooper, had some really clever things to say about the will of the people…

“The voters have spoken and we have to respect their will," Hickenlooper said in a statement Tuesday night. "This will be a complicated process, but we intend to follow through. That said, federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or gold fish too quickly.”

Yeah, OK. First things first. Only someone who has used marijuana, or at the very least knows it to be completely harmless, would make a “joke” like that, so take your hypocrisy and shove it in someone else’s face. The super majority of people, and even the majority of the voters, ain’t buying.

Secondly, a reminder. Tonight’s open meeting of Texas NORML is at 8 o’clock at Flamingo Cantina. Come join us for some news about the overall outstanding results that marijuana measures had nationwide. It wasn’t a clean sweep, but it’s major progress none the less. 

And find out what you can do to help us with these sorts of measures in Texas. It’s an informative meeting, but with a fun group of people. See you there.

                                             Legal Counsel for Texas NORML

                                             Aka, yours truly, Jamie Spencer


If By Whiskey Marijuana...

William Safire popularized the phrase “if by whiskey…” in his columns, and defined it in his Political Dictionary as, “Taking both sides of an issue; equivocating; a political straddle”. The term originates from a speech given by Soggy Sweat, a 1950s Mississippi legislator, master of irony, and a real character to boot:

My friends,

I had not intended to discuss this controversial subject at this particular time. However, I want you to know that I do not shun controversy. On the contrary, I will take a stand on any issue at any time, regardless of how fraught with controversy it might be. You have asked me how I feel about whiskey. All right, here is how I feel about whiskey.

A little context: Mississippians staggered to the polls and voted dry until 1966, when they finally became residents of the last state to decriminalize the sale of alcohol. The topic of banning/regulating/allowing alcohol was present for every politician in every campaign, and surprise, surprise, most made a habit of supporting whichever position the listener wanted to hear. For example, a group of teetotalling nuns would be told something like the next part of Soggy’s speech:

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She's Going Back To Cali, To Cali...

So, she made a note on today’s calendar:

California votes on Prop 19 today.

Again with the hmmmmmmmmm

Marijuana Makes The Nighttime News

To Report An Illegal Marijuana Garden: Click Here

From Illegal Utah Marijuana Gardens Dot Com:

Did you know that marijuana is being illegally grown in Utah?

It is? Gee Wally, if I stumble across some marijuana when I’m out and about, what ever should I do?

If you think you have found an illegal marijuana garden, note the location either on a map or GPS unit. We will be able to find it either by latitude and longitude, or a place name.

Avoid any contact with the suspects who may be present and leave the area, undisturbed, as soon as possible. Contact us through this website or your local law enforcement, the sooner the better.

[Hat Tip: Robert Latham through the NORML listserv]

New Drug Testing Policy At TLOOJS?

My assistant just said, in a rather loud voice, "Hey, it's 4:20 on 4/20 guys!"  And I'm 99% sure she could pass a drug test.  Hmmmmmm.

5th Anniversary: Marijuana Law For Musicians

Tonight!  8 p.m.  Free.  At the Mohawk:  If you haven't caught it the first four times, you'll definitely want to go see Charlie Roadman's Marijuana Law for Musicians.

My excuse for the late posting is not that I'm forgetful.  Not at all.  I figured you wouldn't remember if it were mentioned too soon, therefore, a last minute reminder.  Review of the 2007 edition here, and it just keeps getting better every year.

Open Records Request On Catch And Release

Here’s an open records request I just emailed and faxed. (Microsoft Word format, if you want to use it as a template.)

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Outdumbing A Dumb Law

I don’t care how stupid it is for the governmenr to criminalize marijuana, it’s stupid times moronic to post YouTube videos online called “How To Smoke” starring your teenage sons:

You never know who's watching online.

[The defendant] was arrested earlier this month after Sarpy County Sheriff's investigators connected him to about 90 "how-to-smoke-marijuana" videos on YouTube that also feature his sons.

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Both Missing And Getting The Point: The Gateway Theory

A recent comment led me to one of my first ever posts, one about the Gateway Theory of drug use. For those unaware of the fallacy, it goes like this: many/most/almost all hard drug users started with softer drugs like marijuana, therefore marijuana causes harder drug use. It is the gateway to cocaine, heroin, methamphetamines, etc.

My post concluded with:

Let’s ignore for now the refutation that a higher percentage of cocaine and heroin addicts consumed alcohol than marijuana, and we all “know” that alcohol use does not cause cocaine or heroin addiction… (since many readers, like me, are occasional alcohol consumers who have never tried cocaine or heroin)

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Can You Say "Motion To Quash"?

From a possession of dangerous drugs information:

[JAMIE’S CLIENT], the Defendant, on or about [SOME DATE], did then and there intentionally and knowingly possess, a dangerous drug , to wit: [Prescription Medication], a drug that federal law provides shall be dispensed by prescription and a drug which is required to bear the legend: Caution: federal law prohibits dispensing without the prescription,


Assistant County Attorney of
Travis County Texas

Let’s play “What’s wrong with this charging instrument?”. And I’m deliberately not linking to the Code, because it should be obvious without even referencing the statute.

Post Hoc Ergo Propter Hoc

From the San Francisco Chronicle article “Report: Pot use, arrests rising in California”:

Marijuana arrests in California are increasing faster than the nationwide rate, and African Americans are being booked for pot-related crimes much more often than whites, a new report says.

But despite the rise in arrests and in the seizure of marijuana plants, use of pot in California has increased slightly, said the report, part of a nationwide study released Thursday by a Virginia researcher.

Isn’t arresting folks for marijuana possession supposed to discourage use?

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Prosecuting Significant Marijuana Traffickers

The Department of Justice sent a memo on Monday to all its prosecutors regarding federal prosecution of marijuana cases in States that have legalized the use of medical marijuana. From the memo:

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Less Than Eight Hundred And Fifty Thousand!

Only 847,863 arrests for marijuana offenses in the U.S. last year.

Translation: slightly less than last year, or the second most ever, depending on how you want to look at it.

First Arrest, Second Arrest

Oooops. According to Uncle Mike, who was kind enough to email me about it, I have the details wrong in my first marijuana arrest ever post. He’s done a good deal more actual research on it – in the sense that I’ve not done any, and was guilty of playing telegraph – and here’s a snippet of his version:

The historic October 8th, 1937 Denver Post account stated that Caldwell had “…admitted to selling marijuana cigarets [sic] to Baca…” , thereby suggesting they were busted together while conducting business.

This piece of history is contrary to a previous October 6th Denver Post article entitled, “U.S. Agents Arrest Man On Charge Of Selling Marijuana” and Caldwell’s federal criminal files. Evidently, Caldwell was actually convicted for attempting to sell three joints to “a man he met on the street” named Claude Morgan and possession of 4 pounds later found hidden in his Lothrop Hotel room.

When caught dealing to Morgan, Caldwell reportedly threw the three joints in a trash can, providing federal narcotic agents with evidence for his arrest.

Your Brain on Bliss: 100 Day Grade = D

A few months ago, Don Fitch started writing Your Blain on Bliss, and one of his first posts “Obama, Cigarettes and Cannabis” caught my eye:

Yet still, of all people, the President-elect is not able to summon the will to not smoke tobacco cigarettes. As much as he would like to quit, as much as Michelle and the girls want him to quit, he will presumably duck out of the White House, furtively avoiding his family and to the chagrin of his Secret Service detail, light up a cigarette.

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Apparently the Word "Weed" Isn't Politically Correct

From John Kelso’s column “Adios, ‘Weed Hill’; Maybe They’ll Like Bong Bowl Better” in the Austin American Statesman:

In a story in this newspaper's Wednesday edition, [Leander School Board president] McCall was quoted as saying that the Leander school trustees had ditched the name Tumbleweed Hill Stadium because it was possible "the kids are going to say, Tumbleweed Hill — oh, that's marijuana."

In Longhorn-land it’s pretty common to make fun of Aggies, but they had to go to College Station, of all places, to find someone with some sense:

"None of those things have anything to do with pot," said Jim Manhart, an associate professor of biology at Texas A&M. "These are people who have too much time on their hands, if they worry about stuff like that."

I quickly filed that last quote under “duh” but it got me to wondering.

My sister lives near Hemphill Park here in Austin. What kind of message does that name send to the kids?

Matter of fact there’s lots of people, places and things that could use a name change:

Did Truman, Churchill and Stalin really meet at the Potsdam Conference? (And does that make it a joint meeting?) Two presidents before Truman we have “Herb”ert Hoover… since we usually use the full name with “e-r-t” included, we could consider giving this one a pass. But we might want to have a meeting or two about it.

Spiderman’s girlfriend is Mary Jane Watson? Marketing marijuana in comic books – shameful.

Should we really be telling high schoolers that shots were heard coming from the grassy knoll?

Alcohol is legal while marijuana is not, but there’s no excuse for the fact that America’s number one selling beer is called “Bud”.

And let’s stop doctors talking about chronic diseases; they are clearly just sending not-so-subliminal messages about supporting marijuana decriminalization. (Actually, they do support it, but that’s another story altogether.)

Suggestions from readers are welcomed…

ET Go Home

Peter Hitchens explaining the difference between alcohol prohibition, universally acknowledged as an abject failure, and marijuana and drug prohibition notes:

Alcohol had been legal for centuries, part of the culture of Christian civilization. You might as well try to make breathing illegal.

But cannabis, cocaine and heroin are alien to our world, and could be driven out by firm action.

Alien to our world? Guither’s response:

Right -- it's not like they just... grow in the ground or anything. They came in spaceships.

We need to be firm and tell the space aliens to load up their cannabis, cocaine and heroin and take it all back to planet Druggie.

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By the Time Sanjay Gupta Was My Age...

...he was being considered for Surgeon General. (With my hearty apologies to the better line: “By the time Mozart was my age… he was dead.”)


Right wing nut jobs (see the above link) are going ballistic over the travesty of appointing a neurosurgeon with a healthy background in communicating with the public to a position whose duties require him to be “America's chief health educator by providing Americans the best scientific information available on how to improve their health and reduce the risk of illness and injury”.

Funny that they didn’t object when the Republican Propaganda Network’s Fox News Network’s Tony Snow was named White House Press Secretary. But enough making fun of the wackos; it’s like shooting fish in the proverbial barrel. 


My compatriots at NORML and other marijuana decriminalization supporters may be discouraged to know that Gupta is already on record saying the usual idiotic things about the current state of our marijuana laws


Actually, it’s worse than the typical stuff. He freely admits that the science shows marijuana can be good medicine for Alzeheimer’s, cancer, glaucoma and MS patients to name a few… but still wants to allow states to throw people in jail for simple possession. In fact, he’s seemingly all for it.




Well, maybe that’s appropriate for the Surgeon General. After all, it’s a job you can get fired from immediately… if you dare to tell the truth.


[Update: I forgot to include one of my first posts ever... the DEA vs. the American Medical Association on the benefits of medical marijuana.]

Police Worry That Marijuana Decriminalization May Reduce Number of Arrests

No kidding.

Last November Massachusetts’s voters approved a ballot initiative which reduced the penalty for possession of less than one ounce of marijuana from a possible maximum of six months in jail and a permanent blotch on your criminal history to a maximum of a $100 civil penalty, no jail and with nothing at all ever being reported to the state’s criminal history board.  Anyone under 18 would also be required to take a drug education program and to complete some community service.

The voters spoke loud and clear. The legislature had until a few days ago to amend or repeal the initiative, but they chose not to. These are the same folks that scream bloody murder when an actual bill to decriminalize is placed on their desks. Truly the definition of political courage there, eh? The world will come to an end if you vote to reduce marijuana punishment, but if the voters insist on it… you’ll look the other way.

At any rate, the measure becomes law, and now the police are apparently befuddled. What should they do? You know, now that this new wrinkle complicates things for them so:


Police say they have two main problems with the law.


Many complain that their current citation books lack a check-off box for marijuana possession and they have yet to receive updated ticket books, although temporary forms are available through a state website.


Seriously? No check-off box for marijuana on your standard preprinted forms? Writing in “possession of marijuana < 1 oz.” somewhere on the ticket is harder than arresting, transporting, booking, interviewing and one presumes eventually releasing a defendant from jail?


Ok, so what’s the other problem?


More fundamentally, they complain that officers have no way of determining the identity of people they stop on the street for smoking marijuana.


Before the law was changed, officers could arrest them, or threaten them with arrest to force them to show identification. Now, they say they cannot force users to show IDs, and cannot arrest them if they refuse to identify themselves.  [N.B. Texans should read Austin Criminal Law Journal’s explanation of why that ain’t so in the Lone Star State.]


Oh, so it sounds like any other civil penalty then, right? Like a parking ticket maybe? And maybe someone will – hang on to your hats for this one – not pay their $100 fine.  They might get off scot-free.


The mere thought of it sends police organizations scrambling:


John M. Collins, general counsel for the Massachusetts Chiefs of Police Association, said he had been fielding calls from dozens of members across the state.


This is to be expected since major changes in the administration of justice often cause numerous disruptions in the law enforcement community. Being told to write tickets for simple possession instead of hauling folks off to jail requires lots of planning and reorganizing priorities, etc.


How are some police agencies dealing with the situation?


[M]any police departments across the state were essentially ignoring the voter-passed law, saying they would not even bother to ticket people they see smoking marijuana…


Andrew J. Sluckis Jr., chief of police in Auburn, said his 39 officers would not be issuing $100 citations for possession of an ounce or less of marijuana, as required under the ballot initiative known as Question 2.


"If the Legislature enacts some changes, we'll be happy to do it in the future, but as it stands now we're not going to be issuing civil citations," he said. If an officer spots someone smoking marijuana, he said, "We will confiscate it and the person will be sent on their way."


"It is frustrating," he added, "because we have to deal with a law that is almost non-enforceable at best."


Don’t give up all hope Chief Sluckis. Turns out that non-enforcement is the goal in and of itself. That ole “voter-passed” law that has you all in a dither? It doesn’t require you to give everyone a ticket…


It simply requires you to stop arresting them. So while you might think you are teaching those voters a lesson by throwing up your hands and insisting their wishes are impossible to carry out and therefore you will do nothing at all… you are actually following their instructions to a T.

The Drug Czar Who Cried Wolf

Face it - most Anti-Marijuana “education” comes down to some sort of variation of this:

Hey kids, if you ever give in to temptation and smoke marijuana, you are immediately doomed to a life of shooting up heroin and prostituting yourself for twenty dollars a pop while living under a bridge.

Take for example the ONDCP’s newest ad campaign: Become a Burrito TasterRadley Balko, Drug WarRant, and Bruce Merken have already commented on the absurdity of this particular tack by the Drug Czar. Windy Pundit, NorLa, B12 Solipsism, TBTEAB, and others have weighed in on the Agitator’s project of listing successful marijuana users.

But there’s a larger issue here as well. There’s no real need to list successful marijuana smokers. You are seriously deluded if you believe that the act itself of lecturing high schoolers (or whomever) about the disastrous consequences of marijuana will reduce comsumption.

Whether or not they read Radley’s list which disproves the Drug Czar’s assertion, I suspect they already know it’s not true. So when you preach “marijuana = death” you lose all credibility. And it wouldn’t hurt to have some credibility left when you try to educate children about the actual deleterious effects of using cocaine and heroin.

[Author’s Note: Nothing in this post shall be read as an endorsement of the over-criminalization of the “harder drugs”.]

10 Pints of Beer vs. 1 Kilo of Marijuana

You Can Beat the Ride, But You Can't Beat the Rap

I’ve represented several folks in Austin recently who have been “ticketed” for marijuana possession instead of being arrested. And I wrote about House Bill 2391 which allowed for this back in January.

I’m at home now, and I’ll make sure to run through those files and check tomorrow when I’m back at the office, but I thought some of those clients had been “cited” for possession of marijuana by officers in the Austin Police Department. (The other possibilities are the Travis County Sheriff’s Office, Department of Public Safety Troopers, and other various Travis County non-Austin municipal police forces.)


So I was somewhat surprised to see Sunday’s Austin American Statesman article titled and subtitled “Austin police to begin citing, not arresting, some offenders; Plan to be finalized by year's end, chief says.”:


Marijuana smokers with small amounts of the drug or people driving while their licenses are suspended could soon be spared a trip in the back of a jail-bound Austin police car.


“… could soon be spared…” That was the surprising part – as well as the title which at least implies that Austin police have not yet begun to “ticket” for POM. At any rate, I’ll look through the files, and perhaps post an email to the Austin Criminal Defense Lawyers Association listserv to poll people on whether APD has actually already put this into effect. Maybe the “ticket” POM cases I’ve been getting have been other agencies.


So, enough of the digression, and back to the title of my post… Several others in the local Austin blogosphere have commented on this story already. Scott Henson notes, among other things, that the Williamson County District Attorney is quoted in the article disparaging the new marijuana arrest vs. “citation” policy option:


However, critics, including Williamson County District Attorney John Bradley, said the law "sends the exact opposite signal" law enforcement officials should want to give offenders. "My thoughts are that the entire process is a very creative way to decriminalize how we prosecute drug cases in Texas," Bradley said.


Scott’s response?


I honestly have no clue what John Bradley is talking about. This change doesn't "decriminalize" anything. The offense charged is still a B misdemeanor with the full range of punishment options available upon conviction. That kind of overhyped rhetoric seems misplaced here.


Of course Scott is right. The reason I put quotation marks around the words ticket and citation in the post so far is that while House Bill 2391 allows police agencies to not take up their valuable time carting a person away to the jail for marijuana possession, the penalty remains the same. From my January post:


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"You Do Realize Possession of Marijuana is Against the Law..."

First Point: when you decide to set your criminal case for jury trial instead of entering into a negotiated plea, your next setting will be the jury docket. And you won’t be the only one on it.

In Travis County there can be anywhere from 40 to 60 cases set for jury trial on the same day. Obviously, not every case goes – only one does – and the rest are reset for later. (Well, some are renegotiated and plead; some were just set on the docket for the client to finish some requirement to get a reduction; sometimes the lawyer was just stalling to get paid, etc.)


At any rate, there’s always a long docket for a judge to call on jury day.


Second Point: Misdemeanor Possession of Marijuana is one of the least commonly tried cases, at least in Austin. For the most part, first offenses can be reduced or dismissed outright if the accused agrees to take a drug class, do some community service, and/or prove they can stay out of trouble for a certain period of time. There’s generally not a reason to try them.


DWIs on the other hand are the most frequently tried case. The political pressure on the prosecutors to convict – from MADD and others – is intense; and the defendant isn’t as demonstrably guilty of the offense as they are in many types of cases, i.e. shoplifting, drug possession, etc. Those two competing forces make DWI the most likely case to go to trial.


With that as background, here’s what I overheard in County Court Number [Deliberately Withheld, or DW] while sitting around waiting for my case to be called. Judge [DW] was calling the jury docket, and for whatever unknown reason there were a substantial number of Marijuana cases on the docket. One after another.  And another.


Well this particular judge has a penchant for addressing the pews of defendants in a down to earth manner. And has a reputation for a good sense of humor. So after calling marijuana case after marijuana case on the jury docket, the judge suddenly stops and looks into the audience of the accused and says, somewhat exasperated and possibly half jokingly:


“You do realize possession of marijuana is against the law don’t you? Even if it’s a ‘just’ a small amount?”


After the lawyers - including me - and some of the defendants stopped giggling amongst themselves, I thought to myself: “I’m pretty sure they do now, Judge. If they didn’t before, I’m pretty sure they do now…”

Joe Six-Pack vs. Joe Doobie

Noting the absence of any questions in the vice presidential debate about the United States over-incarceration problem (which is driven in large part by the so called War on Drugs), and Ms. Palin’s repeated efforts to court the vote of “Joe Six-Pack”, Paul Armentano, the deputy director of NORML, today writes:

In what was no doubt a deliberate effort to appeal to so-called “Middle-America, working-class voters,” Republican Vice Presidential candidate Sarah Palin affectionately invoked the term “Joe Six Pack” — a phrase that despite its literal connotation (The typical American is an alcoholic) is nevertheless championed in the American lexicon.


Now just imagine for a moment that instead of proactively reaching out to “Joe Six Pack,” Governor Palin instead invoked the phrase “Joe Doobie” in a similarly veiled attempt to court those millions of Americans who use cannabis responsibly (a voting block that arguably dwarfs the number of Americans who put away a six pack of beer each evening).


Paul’s point is obvious. It is literally unimaginable.


Unfortunately, the easiest job in America is being the campaign manager for the guy running against the politician who even attempts to inject some sensible suggestions about drug policy reform into their platform. Imagine this scenario:


First from our courageous hypothetical politician “Mr. Smith”: “America has 4% of the world’s population and almost 25% of its prison population. Mandatory minimum sentences are morally questionable at best and currently bankrupting us. We can spend 10% of what we waste on the War on Drugs on treatment and eliminate prison sentences for drug addicts entirely and we will significantly reduce violent crime as a side effect.”


This would be immediately followed by the campaign for “the other guy” – whoever that was – releasing a commercial effectively saying “Senator/Representative Smith wants your baby to smoke crack!”


Yet “Joe Six-Pack” is a vote worth courting. Ever wonder about alcohol vs. marijuana and which is harmful? Know anything about the two substances and the relative safety of marijuana?

20 Million Marijuana Arrests and Counting...

Admitting You Smoked Marijuana and Immigration; A Question for Our Candidates

In February I went to an Obama Town Hall Meeting here in Austin and asked readers to send me their suggestions should I be picked to ask him a question. (I wasn’t – but thanks to those who commented and/or emailed.)

Now Windy Pundit has thrown down the gauntlet in a comment to my post about Ms. Palin’s attempts to criminalize possession of small amounts of marijuana in Alaska – despite admitting that she enjoyed it herself in the past. WP wants to ask Ms. Palin:


U.S. Customs and Border Protection has refused entry to people who admitted smoking pot, even if they were never convicted of a crime. If you were president, is it alright if other countries don't let you visit for the same reason?


Good question. And indeed he’s correct.


Under the Immigration and Naturalization Act: Section 212 “General Classes of Aliens ineligible to receive Visas and ineligible for Admission” subsection (a)(2)(A) non-citizens are ineligible to be admitted to the United States on certain criminal related grounds. For example:


2) Criminal and related grounds.-


(A) Conviction of Certain Crimes


(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-


(I)                 a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II)              a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.


There are exceptions for crimes of moral turpitude - such as shoplifting, misdemeanor assault - if the person seeking entry was under 18 at the time of the offense, or didn't receive a sentence of more than 6 months and the offense carried a amximum penalty of a year - but I don't see one for the controlled substance provision.


And the important to remember here is the phrase:


any alien… who admits having committed…a violation of… any law… relating to a controlled substance


That’s right folks. This is for admitting you smoked marijuana at any time in the past whether you were ever charged for it or not. Makes you ineligible for admission to the United States.


So, Ms. Palin… turnabout is fair play right? You’re OK with other countries refusing to let you visit because you told the local newspaper in 2006 that you had smoked marijuana at some point in your past?

Hypocrisy and Marijuana Policy

From Reason Online where Jacob Sullum asks, “Why should other Alaskans be arrested for something Sarah Palin once did with impunity?”

When it comes to questions about youthful marijuana use, Sarah Palin is no Slick Willie. "I can't claim a Bill Clinton and say that I never inhaled," the Republican vice presidential candidate told the Anchorage Daily News in 2006, before she was elected governor of Alaska…


[S]moking marijuana in the privacy of one's home is just as legal in Alaska today as it was when Palin did it. Evidently she regrets this situation.


As mayor of Wasilla in 2000, Palin championed a city council resolution opposing a ballot initiative that would have legalized marijuana for adults. Last March her administration asked the Alaska Supreme Court to reverse its 1975 decision shielding private marijuana use, arguing that the drug is more dangerous than it used to be.


In other words, Palin got to smoke pot without worrying about legal consequences and now wants to deny that assurance to fellow Alaskans doing exactly the same thing. "Palin doesn't support legalizing marijuana," the Anchorage Daily News reported in 2006, because she worries about "the message it would send to her four kids."

One Search (Logically) Leads to Another

Sometimes I like to look at my stats package which lets me know among other things how folks stumbled across my blog. So from a few minutes ago…

The first search:

where to buy weed in Austin, Tx

Then a few minutes later – and this is what caught my eye - from the same IP address:

marijuana lawyer average cost

I can’t say most of my potential clients ever give the second query that much thought, at least if we’re talking about before an arrest.

P.S. The answer to #1 is: I don’t know. Seriously. This is pretty much proof that Google doesn’t always give you the best result – although to be fair to them I don’t know that the internet is necessarily the best place to get the answer to that question.

The answer to #2 is: It depends. How much? Misdemeanor? Felony? Priors? But if you’re serious about #1, #2 isn’t a bad thing to ponder…

Marijuana at the Airport (Ooooops!)

Most of the time the War on Drugs is actually a pretty sad thing, but every once in a while, something amusing comes out of it:

An unwitting passenger arriving at Japan's Narita airport has received 142g of cannabis after a customs test went awry, officials say.

A customs officer hid a package of the banned substance in a side pocket of a randomly chosen suitcase in order to test airport security.

Sniffer dogs failed to detect the cannabis and the officer could not remember which bag he had put it in.

Who said there’s no such thing as unwitting possession?

3rd Annual Marijuana Law for Musicians: Tonight

marijuana lawyer austin tx

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:


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?


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]


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.

[UPDATE:  Oooops.  Maybe this is the second arrest.]

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 site is coming to an end.

Keri, my friendly contact at the ONDCP has informed me that the 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 pre-trial diversion program as well too. More Texas counties need to follow suit.

Denial of Student Aid For Possession of Controlled Substances (Including Marijuana)

20 U.S.C. § 1091 entitled “Student Eligibility” contains a laundry list of federal regulations and requirements for receiving federal student aid for college. 

Subsection (r) was enacted in 1998 as part of the “Higher Education Amendments” (no pun intended, apparently). In 2006 the statute was rewritten (or clarified) to show that it is intended only to apply to students who are currently receiving federal financial aid.  Marijuana is classified as a controlled substance for purposes of this law.

The chart below (included in the statute itself) describes the time periods that students are ineligible for, if convicted of possession of a controlled substance:

20 U.S.C. § 1091 (r) Suspension of eligibility for drug-related offenses

(1) In general

A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance under this subchapter and part C of subchapter I of chapter 34 of title 42 during the period beginning on the date of such conviction and ending after the interval specified in the following table:

If convicted of an offense involving:


The possession of a controlled substance:

Ineligibility period is:

First offense

1 year

Second offense

2 years

Third offense



The sale of a controlled substance:

Ineligibility period is:

First offense

2 years

Second offense


(2) Rehabilitation

A student whose eligibility has been suspended under paragraph (1) may resume eligibility before the end of the ineligibility period determined under such paragraph if—

    (A) the student satisfactorily completes a drug rehabilitation program that—

        (i) complies with such criteria as the Secretary shall prescribe in regulations for purposes of this paragraph; and

        (ii) includes two unannounced drug tests; or

        (B) the conviction is reversed, set aside, or otherwise rendered nugatory.

The Department of Education has also released a Student Aid Eligibilty Worksheet for folks to use to see whether or not they are eligible for Federal Aid based on their criminal history.

I tell all of my Travis County clients attending one of the many universities and colleges in Austin about these provisions, and why it is even more imperative that we find a creative way (such as pre-trial diversion) to try to get their case dismissed, if at all possible.  Fortunately, I've generally found the prosecutors in Austin to be at least willing to listen to my equitable arguments as to why my client should not be convicted of a simple possession case (yes, even if they may in fact be guilty).

Supreme Court Turns Down Mandatory Minimum Case

The U.S. Supreme Court denied cert in Angelos v. U.S. today, effectively affirming this defendant’s 55 year sentence for being set up by the government to sell marijuana, and, according to the snitch who was deal-making for his own liberty, carried a gun in an ankle holster.

Three controlled buys of 8 ounces of marijuana, and some not-so-reliable testimony about whether you carried a weapon (but did not use or exhibit it) equals fifty five years in prison on this particular occasion.

Originally offered sixteen years in the federal penitentiary if he plead guilty to the offense, Angelos turned the deal down because he insisted that he had not carried the weapon. (That’s why the snitch testimony is an important factor here – there’s good reason to disbelieve any paid testimony of a Government witness.)

By exercising his constitutional right to dispute this aggravating factor, Angelos rolled the dice and lost in a big way. I’m sure this was in part because the original 16 year prison offer was ridiculously high, even if he were guilty exactly as accused.

A defendant indicted on a state charge in Austin, Texas under the same set of facts, would likely be facing a State Jail Felony charge, where his maximum punishment would be five years (day-for-day, no parole) in a state jail facility. I’m guessing, obviously, but the offer would probably be for probation. (There is some chance a Travis County prosecutor might try to enhance it to a Third Degree Felony, based on the weapon, which would double the maximum to ten years, but then leave open a possibility of paroling from TDCJ. Again, I think probation would be a likely outcome.)

And the stark contrast with the punishment range under Texas rather than Federal law is even more surprising, given that Texas has notoriously high punishment ranges for marijuana and controlled substance offenses. In most states, a defendant in Angelos’ situation would be facing substantially less time than here in Texas.

For readers that have gotten this far, but are still reacting to this story with a “do the crime – do the time – and to heck with him” mentality?... Please read this Progressive article humanizing Weldon Angelos, then get back to me.

You have to know something is very wrong, when the sentencing judge decries the penalty he must give a defendant, and goes so far as to list much lower maximum sentences available in other types of federal cases:

Hijacking an airplane: 25 years

Second-degree murder: 14 years

Kidnapping: 13 years

Rape of a 10-year-old: 11 years

Remember, we are talking about 24 ounces of marijuana here…

Texas Medical Marijuana Patients Should Be So Lucky

Mark Katz posts about a recent successful medical marijuana defense case, based on these provisions in Maryland’s marijuana statute:

(i) In a prosecution for the use or possession of marijuana, the defendant may introduce and the court shall consider as a mitigating factor any evidence of medical necessity.

(ii) Notwithstanding paragraph (2) of this subsection, if the court finds that the person used or possessed marijuana because of medical necessity, on conviction of a violation of this section, the maximum penalty that the court may impose on the person is a fine not exceeding $100." Md. Code, Crim. Law art. § 5-601(c)(3).

In Texas, there is no equivalent protection for legitimate marijuana patients. Having written recently about whether drug policy reformers should press for complete victory, or possibly accept incremental change in our laws, I am sensitive to the need for fighting the drug warriors on multiple fronts.

The last Texas legislature declined to reduce the criminalization of less than an ounce of marijuana to a Class C offense (the equivalent of a speeding ticket). I do somewhat fear that if Texas passed a medical marijuana affirmative defense, as Maryland has, that it might slow down the total-decriminalization process.

Also, Katz’ post points out the financial cost to the patient in mounting such a defense:

Mounting the best medical marijuana defense will ordinarily be costly, calling for the testimony or written opinion of the defendant's treating physician (or an evaluating physician if the defendant had no personal physician), and sometimes the testimony or written opinion of a medical marijuana expert if the treating physician lacks sufficient knowledge about marijuana's medicinal relevance to the defendant, or refuses to provide a medical marijuana opinion.

So, would an affirmative defense for medical marijuana patients in Texas be a step in the right direction?

Is a $500 Fine Too High For Crime?

Well, yes, it is, when it is imposed automatically before conviction.

Matt Hanley of the Beacon News asks “Is a $500 fine too high for crime?

A lawsuit has been filed by an Aurora resident challenging the city's seizure policy.

The suit hopes to change the city's policy, which allows police to seize the vehicles of people charged with certain weapons, drugs or prostitution offenses.

Aurora resident Edward Hermesdorf, 19, filed suit this month, after being stopped by police in September for a seat-belt violation. He was charged with having no valid driver's license and no insurance, but police found that his passenger was in possession of marijuana.

So, what did they do with Edward’s car? You know, the guy whose passenger was apparently charged with a minor marijuana offense?

Following city ordinance, Hermesdorf's car was seized by police. He had to pay a $500 city fine, plus towing costs.

Lots of folks out there don’t know about our onerous civil forfeiture laws, which basically allow confiscation of your property when you are charged with a drug offense. Yes, that’s “charged with”, not “convicted of”.

In Austin, it can take several months for a misdemeanor marijuana charge to be resolved, even in a case like this one where a dismissal is likely? (Why do I say it’s likely? Based on the limited facts presented, it sounds like it will be difficult for the state to prove that the driver was in possession of the dope.)

Anyone out there think they’d be forced to go pay the $500 plus towing immediately to get their car back? Bear in mind, as you bicycle around town, those overnight fees at the storage yard are going to add up if you wait for your case to be resolved.

So, you answer the writer’s question…is $500 (plus towing) too high a price to pay for crime?

Updating the Crack/Powder Cocaine Sentencing Review

The Sentencing Project updates last week’s Sentencing Commission hearings on reforming the harsh penalties created by the disparity in Federal law for crack vs. powder cocaine. Although United States Attorney R. Alexander Acosta testified that the differences were reasonable…

A number of Commissioners also expressed concern that the current crack cocaine law was ineffective in targeting the upper echelon of drug distributors. According to Acosta’s own testimony, the highest level cocaine trafficking takes place almost exclusively in the powder form.

This was affirmed by Joseph Rannazzisi of the Drug Enforcement Administration, who noted that crack cocaine sellers are at the lowest end of the powder cocaine distribution chain, and that it is his experience, that crack is primarily produced and sold in very small quantities.

Read the whole update here.

"Decriminalize" not "Legalize"

Pete Guither blogging from the Students for Sensible Drug Policy Conference quotes Eric Sterling’s presentation:

Many reformers have a problem with the word "decriminalization." However, from his perspective, the definition of decriminalization has potentially undergone some change.

Original: Decriminalization means a minor sanction, users won't be punished by we'll still go after the traffickers. That doesn't make sense.

However, new thought:

Using the word "legalization" puts the burden on the legalizer to define how that will be accomplished.

But new version of "decriminalization" puts burden of proof on the status quo to answer: Why should the state punish drug use? What in the conduct of drug users merits punishment?

I’ve tried to make the same point myself several times, most recently, in the last paragraph of this post. Every day at work in Austin, as a practicing criminal defense lawyer I know that the language we use makes a big difference when we are trying to persuade…

The Crack / Powder Cocaine Sentencing Disparity and a Creative Solution...

Sentencing Law and Policy links to the submitted testimony of several witnesses at next week’s congressional hearing on the disparity between crack and powder cocaine sentencing. Berman also points us to the statement of Chuck Canterbury, National President of the Fraternal Order of Police, the largest law enforcement labor organization in the United States, who argues that he knows how to fix the problem.

I read Canterbury’s entire statement, and urge you to do so as well (I can’t reprint the whole thing here, of course, but welcome readers to make sure that my use of ellipses – “…” – aren’t an attempt by me to distort what he is saying).

Most of it is fairly shocking on its face, but I can’t resist the urge to comment:

Measures like the Anti-Drug Abuse Acts of 1986 and 1988 put stiffer penalties into place for those who would bring the poison of drugs and violence into our neighborhoods and communities. In the experience of the FOP, tougher penalties work. They worked in the 1980s and 1990s and were a very significant factor in the ability of law enforcement to counter the “crack” explosion…

OK, so part of his thesis is the tired refrain, “What we’ve been doing in the 80’s and 90’s has been working so well…” Let’s see if he can manage to stick to that story.

Mandatory minimum sentences… mean longer sentences for the worst offenders.

Um, in the sense that mandatory minimum sentences mean longer sentences for all offenders, I suppose he is technically correct. Of course, those longer minimum mandatory sentences come down on the “least of the offenders” as well, so his statement, while arguably true, is misleading at best.

The Commission’s findings in the 1997 report also stated that crack cocaine is… particularly accessible to the most vulnerable members of our society… As a result, Federal sentencing policy must reflect the greater dangers associated with crack and impose correspondingly greater punishments.

If this isn’t shocking on its face, please reread this last quote again. Outloud. Then read it to a friend and ask them their reaction to it.

The Fraternal Order of Police would support increasing the penalties for offenses involving powder cocaine through a reduction in the quantity of powder necessary to trigger the 5- and 10-year mandatory minimum sentences, thereby decreasing the gap between the two similar offenses and addressing the concerns of those who question the current ratio without depriving law enforcement with the tools they need to control the possession, use, and sale of powder cocaine.

The 5-year mandatory minimum sentence can be triggered by 5 grams of crack cocaine. How much is 5 grams of something? 5 Sweet-and-Low packets worth of cocaine is 5 grams. So his solution to the disparity problem…increase the penalties for powder, rather than decreasing them for crack! So the disparity is a problem, one best solved by even more prison building.

This year alone, more than 5.5 million Americans will use cocaine, and 872,000 will try it for the first time. Similarly, 1.4 million Americans will use crack cocaine and 230,000 will try it for the first time. These are very disturbing numbers. And despite indications that cocaine production has stabilized since 2002, U.S. law enforcement authorities seized 196 metric tons of cocaine in 2005—a five year high.

But wait a minute… didn’t you start off by telling us that what we’ve been doing for thirty years plus has been such a rousing success? Now you’re telling us that cocaine use has either stabilized or increased. So when you want to brag about the great job you’re doing, then “things are getting better”. But when it comes time for the scare tactics and the pleas for more funding, then “things are staying the same or getting worse”.

The Safety of Marijuana

As usual, Pete Guither at DrugWarrant digs up the facts about marijuana and its comparative lack of dangers to other substances, both legal and controlled.

Noting that the Drug Czar’s blog trumpets the need to redouble its efforts (and no doubt its funding) to go after “the non medical use of prescription drugs”, Pete decided to find the actual numbers behind the recent Florida Autopsy report that the Drug Czar was reporting on. Reproducing his table in part:

Drug Tracked

Cause of Death









Ethyl Alcohol






Other Benzodiazepine




















The highlights? Cocaine, 349 deaths; Alcohol, 160 deaths, Heroin, 29 deaths…

Marijuana (cannibinoids): Zero Deaths Caused.

With Xanax (Alprazolam) coming in at number three, shouldn’t we start considering prison for folks with panic attacks and anxiety disorders?   And look at Soma (Carisoprodol/Meprobamate) coming in ahead of Heroin and Ecstasy combined. Sounds to me like the Drug Czar may advise us soon to start saving up tax dollars to build more prisons.

Legalizing Nature

Jordan Smith’s Austin Chronicle column this week, recently renamed from “Weed Watch” to “Reefer Madness”, reports on Bertha Madras’ recent press conference in Austin, Texas. (Madras is the deputy director for demand reduction at the ONDCP.)

Madras misquoted a study by Mount Sinai School of Medicine professor Yasmin Hurd, published in July in the journal Neuropsychopharmacology, as proof of the gateway theory for saying rats exposed to marijuana were twice as likely to use heroin later as adults. In fact, Smith points out, they become addicted at the same rate, although the ones exposed to THC at an earlier time did use somewhat larger amounts.

I looked for the study itself, and in doing so ran across this interesting tidbit about the researcher:

Hurd feels that softening the law against marijuana at this point would be "ridiculous", given the number of unknowns about its effects. She adds that two other drugs that also stimulate opioid cells, and could therefore also feasibly cause a gateway effect, are nicotine and alcohol. "If we turned back the clock with the knowledge we have now, these two drugs would never have been legalized," Hurd says. [Emphasis Mine]

Apparently Hurd remembers back fondly on the time when everything was illegal, and we had to ask our government to “legalize” bread and water and other items for us to use. 

On perhaps a more serious note, I will end with my frequent plea that we use the term “decriminalize” not “legalize” when talking about drug policy reform. This shows just one more reason: it properly focuses the debate on the fact that the criminalization movement is really the new kid in town.

Drug Convictions and Student Aid

Julie Ross writes a piece in the SMU Daily Campus paper today entitled “Smoke Pot, Get Caught, Lose College Funding”:

This ban unjustly continues to penalize students with drug convictions. Under this ban even a single, minor drug charge or violation (including possession of drug paraphernalia) will prevent a student from receiving financial aid for college. In other words, that funky Phish bong you picked up at Pipe Dream could cost you more than just retail.

She quotes Brandon Conaway writing for the student newspaper for the University of Northern Iowa’s reaction to this:

It may seem justified that breaking the law can result in a loss of federal aid. However, the law only applies to drug convictions. This means that a convicted murderer or rapist can still get financial aid, while someone convicted of misdemeanor possession of marijuana cannot. There is also no conclusive proof that the provision deters drug use – the major reason the provision was implemented in the first place.

They are both right, of course, to protest this onerous “collateral consequence” of what might otherwise be a “minor” drug conviction. This is just one of the reasons I try to steer my University of Texas at Austin clients arrested for marijuana offenses into the Travis County Pre-Trial Diversion program, which when successfully completed leads to a dismissal and eligibility for an expunction.

Even misdemeanor drug offenses needed to be handled carefully. The consequences often go well beyond whatever conditions the judge orders, even if it’s “just probation”.

More on Marijuana Prohibition

John Tierney’s New York Times opinion column today (available, unfortunately, only to Times-Select subscribers) addresses some of the political problems that the Drug War crusaders have had with libertarian voters and others. 

Basically there’s a fundamental problem with being both anti-Big Government, and supporting our current drug policy. Also, it’s hard to shout “leave it up to local control”, when local support is overwhelmingly in favor of issues like medical marijuana, but Washington pols want to override state laws.

Focusing on marijuana prohibition (“the chief priority of the current drug czar”), Tierney also addresses some of the fear mongering that Drug War supporters continually engage in, by providing us with some basic facts:

When Californians approved one of the first medical marijuana laws, in 1996, drug warriors were so convinced it would lead to a catastrophic spike in illegal use by teenagers that they sponsored a study to document the damage. But there was no catastrophe: after the law, marijuana use by teenagers actually declined in California.

In the decade since, as the Marijuana Policy Project documented in a recent study, popular support for legalized medical marijuana has increased in California and in virtually every other state with a similar law. Last year it was favored by 78 percent of respondents in a Gallup poll.

There’s no need for those of us who are ashamed of, embarrassed by, and angry with our current moronic policy of wasting tax dollars imprisoning marijuana users to remain quiet. We are in the majority. Shout it from the rooftops if you have to: Decriminalize Marijuana!

Drug Czar: "Users Need Treatment" (Not Jail?)

If someone admits to committing a murder last year, or even 30 years ago, we don’t just get them “treatment”…the government indicts them and tries to imprison them. That makes complete sense, of course, because not only is there no statute of limitations for murder, there’s no excuse for it either. (My hypothetical here assumes murder, not a lesser included like manslaughter, and assumes the absence of self defense, etc.)

I’ve always found it odd then, that we have a dual system of imprisoning some drug users, while seeking treatment for others. Doesn’t the government frequently argue (in court) that the behavior of using the illegal drugs is worth punishing?

Which brings me to today’s quote from the Drug Czar’s blog. It comes from ONDCP’s Deputy Director for Demand Reduction, Dr. Bertha Madras, who was asked:

Why can't drug addicts just go straight to a local treatment center for help?

Dr. Madras: Only a small minority of addicts willingly seek treatment on their own.  The vast majority do not seek treatment because they don't think they have a problem.  They are unaware, in denial or ambivalent about seeking help. 

She’s talking about this in the context of the procedures by which doctors can now bill Medicaid for drug and alcohol screening and intervention, even if that was not why the patient came to see them. But isn’t her statement at least implicitly a rejection of the notion that drug users should be jailed in the first place?

I guess it’s OK to use marijuana, cocaine or what have you, as long as you run into a doctor before you run into a cop…

Sanjay Gupta Forced To Smoke Marijuana?

Sanjay Gupta writes an article in Time this week entitled “Why I Would Vote No On Pot”. After stating his thesis that marijuana isn’t very good for you, he goes on:

True, there are health benefits for some patients. Several recent studies, including a new one from the Scripps Research Institute, show that THC, the chemical in marijuana responsible for the high, can help slow the progress of Alzheimer's disease. (In fact, it seems to block the formation of disease-causing plaques better than several mainstream drugs.)

Other studies have shown THC to be a very effective antinausea treatment for people--cancer patients undergoing chemotherapy, for example--for whom conventional medications aren't working. And medical cannabis has shown promise relieving pain in patients with multiple sclerosis and reducing intraocular pressure in glaucoma patients.

Wow. That’s actually quite a list of accomplishments from the medical perspective. Alzeheimer’s, cancer, glaucoma and MS patients could benefit from it, but the good doctor still wants to vote “no” because the Colorado and Nevada initiatives “would legalize marijuana irrespective of any medical condition”.

Drug Policy Reformers, please note: we need to always use the word “decriminalize” instead of “legalize” when talking about the subject. Dr. Gupta has caught a classic case of “missing the point”.

Voting “No on Pot”, as Dr. Gupta calls it, means more tax dollars spent incarcerating casual marijuana users. That’s it, end of story. Neither initiative will force Dr. Gupta or anyone else to use marijuana.

And as far as ignoring the reality of imprisoning doctors and their patients for choosing to prescribe and use marijuana for legitimate medical reasons, perhaps Dr. Gupta needs to read this post about the AMA’s position on medical marijuana. Jailing and imprisoning those truly in medical need goes beyond deliberately ignoring what the decriminalization movement is about: it is simply cruel and capricious.  

Should Defense Lawyers Encourage Drug Court Participation?

Following up on my last post regarding Steven Erickson’s critique of Drug Courts, let’s look at another part of his paper “The Drug Court Fraud” and his objections:

By their very design, drug courts diminish the zealous advocacy role of defense counsel by encouraging a “treatment team” approach to drug offenders. Thus, rather than defending clients, defense attorneys are supposed to assist the court into coercing defendants into participation and reporting to the “team” whether the client has made progress on their sobriety. Besides the obvious dismissal of the attorney-client privilege, such approaches effectively eliminate the role of defense counsel as traditionally understood for centuries in American jurisprudence.

Wow. I know this is harsh, but I’ve rarely seen such hogwash from a self proclaimed expert.

First, participation in Drug Courts is 100% voluntary. Folks arrested for controlled substance violations are always free to defend themselves in criminal court. That the government threatens addicts with incarceration if they don’t enter treatment might properly be labeled coercive, but then again, that comes from the prosecutor not the defense lawyer.

Second, there is no abrogation of the attorney client privilege that I have ever seen involved in Drug Court programs. My experience is limited to the Travis County SHORT program, but I’d like to know exactly what Erickson thinks he is talking about here.

While there’s no Doctor-Patient privilege in criminal cases in Texas, the rule reads (in part):


(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

Anything my client says in Drug Court regarding prior drug use is specifically made inadmissible by statute under Texas law, and I’d bet there is a similar rule in most other states. Public policy demands that users be allowed to seek treatment, without worrying that what they say will be used against them. Perhaps Erickson is unaware of this rule, despite the J.D. after his name.

Finally, yes, my role as counselor-at-law sometimes becomes just counselor when I am helping those accused of possessing various illegal substances. But I can assure you, almost all of my Austin clients are thrilled to know that there is at least the potential there to keep them out of felony court all together. After all, we can always do it the old fashioned way: go fight the case in district court.

(Also read Kim Hunt's post at Corrections Sentencing for more analysis of Erickson's paper.)

Faulty Analysis Labels Drug Courts As Fraudulent

Crime and Consequences has a guest post written by Steven K. Erickson entitled “The Drug Court Fraud”. Erickson correctly criticizes the methodology used to boost statistics about the efficacy of drug courts. Some of the valid points he makes in his paper are that studies often leave out the initial drop out rate when publishing success statistics, that entry into drug courts is non-random, and that short follow up periods leave us without vitally important long term efficacy rates for these programs.

As I said, these are all valid points, when we are talking about whether or not there is a scientifically proven cause and effect between drug courts and long term sobriety.  But Erickson continues:

Completion rates for many drug court studies range form 25 to 66 percent. Thus, up to 2/3 of the initial participants do not complete treatment. If this is success, I’d hate to see what failure is.

We already know what failure is, Dr. Erickson. It’s currently our only alternative to drug courts in most places: long term expensive incarceration of addicts.

So while you make admittedly valid criticisms of methodology, don’t forget that most of modern medicine is based on epidemiological studies, which as a whole suffer from many of the same flaws. Epidemiology never proves causation. And yet, in some cases it is the only available method of study.

And even if drug courts only keep 10% of controlled substance offenders out of our prison system, they are a massive success. At 33% we ought to be dancing in the streets. You don’t have to read too many stories about Drug Court successes to know they are well worth it.

Travis County Drug Court (S.H.O.R.T.)

For those charged in Austin with a Felony level offense possession of a controlled substance, there is often the opportunity to stay out of district court, and to have the case dismissed, if you qualify for and complete the Travis County Drug Diversion / S.H.O.R.T. program. (S.H.O.R.T. stands for System of Healthy Options for Release and Transition.)

For those seeking to learn about this program, let me tell you this: the SHORT program is no cakewalk. I often tell prospective clients that the one year they will spend completing the SHORT program is much tougher than one year of felony probation. Of course, the catch is this:

(1) you don’t get just one year of probation for a felony offense in Texas, because the minimum is two years, and many folks get somewhere between five and ten years of probation for felony drug offenses. And…

(2) probation stays on your record. If it’s deferred probation, you may be eligible for a motion for non-disclosure, but never an expunction. If you successfully complete SHORT, you can apply for an expunction, which completely wipes the arrest off of your record.

So while it may be true that SHORT is more difficult to complete than even a probation; but it’s still well worth it. When I hear clients tell me that some lawyer told them not to bother with the program, I always think that lawyer is trying to get himself a client, rather than help the person the best way they know how.

The Admission criteria for SHORT are listed here.

Marijuana vs. Alcohol: Which is Harmful?

Mason Tvert, campaign director for Safer Alternative For Enjoyable Recreation (SAFER), lists several reasons to support drug policy reform in this editorial in the Rocky Mountain News:

Alcohol is deadly; marijuana is not. According to the U.S. Centers for Disease Control and Prevention, approximately 20,000 Americans die every year as the direct result of alcohol consumption. The number for marijuana is zero. In addition, alcohol overdose deaths are not just possible, but an all-too-frequent occurrence…

Iowa Guy weighs in with a similar theme (also in relation to Colorado’s Amendment 44):

Studies have repeatedly shown that marijuana is less harmful than alcohol. Thousands of people every year are killed, directly or indirectly, by alcohol abuse. Alcohol overdose kills hundreds. Spousal abuse is almost always linked to alcohol. Drunken driving is a huge problem.

On the other hand, there has never been a single death from marijuana overdose. Users do not become violent. Marijuana is not addictive.

Juliet Samuel writes a thoughtful op-ed in the Harvard Crimson on the inequities that come from punishing marijuana use by University students depending on the current political climate. Her piece prompts a letter to the editor by Robert Sharpe:

Unlike alcohol, marijuana has never been shown to have caused an overdose death, nor does it share the addictive properties of tobacco. The short-term health effects of marijuana are inconsequential compared to the long-term effects of criminal records.

It’s just as true in Austin (where the University of Texas got its number one party school ranking by coming in first for hard liquor use and third for beer consumption) as it is everywhere else: much more trouble is caused by the use of alcohol than the use of marijuana. The trouble that marijuana “causes” in Travis County is entirely due to its criminalization, rather than to its actual consumption.

Update: Marijuana vs. Alcohol Deaths

The Meaning of Decriminalization: Don't Imprison Addicts

I’m always wary about commenting on other people’s personal tragedies, but the confused logic of a recent editorial in the Denver Post cries out for critical thought.  Jim Spencer (no relation) talks of his brother’s untimely demise at the hands of alcoholism and heroin use, and starts his piece with this quote: 

We buried my brother earlier this year on his 56th birthday, roughly 41 years after I watched him take his first drink.  I don't recall seeing my brother smoke pot on his way to chronic alcoholism, heroin addiction and a compulsion for painkillers that once led him to steal a prescription pad from our family doctor.  Though he probably smoked some dope, addiction helped kill my brother, not any single kind of drug.  

The Op-Ed piece goes on to outline the writer’s opposition to Colorado’s Amendment 44, which would decriminalize small amounts of marijuana possession for adults 21 and over.


But, let’s take a closer look at that initial statement of facts.  Doesn’t it argue against the “gateway theory” that we hear espoused (on our dime) by the Drug Czar every day?


Addiction comes in many forms, and is often either physically or psychologically lethal.  But the real question is this: should we solve that problem by incarcerating the addict?  That's what our current drug policy mandates.

Local, State and National Marijuana News

The Las Vegas Review-Journal editorializes on the impropriety of the Drug Czar’s use of taxpayer money to campaign against Nevada’s upcoming marijuana decriminalization initiative.

The hypocrisy of politicians who claim to be against big government and federal intervention on matters of local interest often arises when they support the so called War on Drugs. The Dallas Morning News reprints Ryan Sager’s column which mentions the locally popular medical marijuana movement as an example of this.

Lianne Hart of the Los Angeles Times writes an article about a small Arkansas town’s efforts to decriminalize marijuana.

Kanrei blogs about the Canadian military stumbling upon ten foot marijuana plants in Afghanistan.

And finally, while I suppose I wouldn’t mind being known as Austin’s “Marijuana Lawyer”, this news item prompts me to say I can only take payment in the form of cash, check or credit card.

Most Blogged Marijuana Story of the Week