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Marijuana ‘Green Rush’ Not As Sheltered From Federal Prosecution As 60 Minutes Suggests

Sunday’s 60 Minutes showcased the burgeoning success of Colorado’s medical marijuana industry, dubbed the “green rush.” Entrepreneurs have moved to the state to get in early on the potential cash cow, the state is bringing in new tax dollars, and Denver now hosts more than three times as many dispensaries as Starbucks and McDonalds combined.

But while the state’s industry is illegal under federal law and the Department of Justice is “not happy” with state laws legalizing medical marijuana, the segment suggests that federal prosecution is “not an issue,” pointing to Deputy Attorney General James Cole’s directive to U.S. attorneys “not to waste resources prosecuting patients or caregivers that are in clear compliance with state medical marijuana laws.”

Watch it:

The reality is that federal crackdowns are an issue in a number of the 17 states that have medical marijuana laws, and to some extent even in Colorado.

Prominent prosecutions of other arguably state-compliant dispensaries include a now-pending action against the country’s largest dispensary, Harborside Health Center in Oakland and San Jose, Calif. The city of Oakland itself is so supportive of the dispensary that it recently filed a lawsuit against the federal government challenging its crackdown of the facility. But that hasn’t stopped federal prosecutors from going forward with challenges intended to disable the facility.

Just last month, the Department of Justice took its crackdown to Los Angeles, filing complaints against three dispensaries and issuing warning letters to 67 others. And in Montana, a 2011 raid of 26 dispensaries has made criminals of the former owners of a Montana medical marijuana dispensary founded by the man who helped draft and secure passage of the state’s medical marijuana law, and who went into the dispensary business to provide a model for compliance with state law. He and his partners provided frequent tours of the facility to lawmakers and law enforcement officials.

These crackdowns are explained in part by the fact that Cole’s directive to U.S. attorneys is not as broad as 60 Minutes’ Scott Kroft suggests. While Cole does discourage prosecutions of state-compliant “patients and caregivers,” the word “caregivers” has, since a 2011 change in policy, been interpreted narrowly not to include “commercial operations cultivating, selling or distributing marijuana” such as those thriving in Colorado. During the segment, Cole described the DOJ’s position more generously:

Our focus is really on keeping it away from children. Our focus is keeping out of the hands of organized crime. Our focus is making sure that people aren’t through marijuana dispensaries using it as a pretext to do large-scale interstate drug dealing. These are the areas where we’re really trying to focus.

The prosecutions in Colorado have honed in on those dispensaries that they perceive as a risk to children because of their close proximity to a school. But it is not clear how some of the DOJ’s recent prosecutions and warnings in other states are tailored to Cole’s stated goals.

The dearth of prosecutions in Colorado is in part explained by the large number of dispensaries relative to limited DOJ resources. And the 60 Minutes segment does make clear that the Justice Department has used other tools to curb dispensaries, including threatening prosecution for financial institutions who do business with dispensaries. But at the local level, Boulder DA Stan Garnett tells 60 Minutes that you can’t even find a jury that will convict a marijuana defendant, given the state’s widespread support for decriminalization. Many jurors are implementing a practice known as jury nullification, meaning that they vote not to convict those charged with federal marijuana law violations even if they think they’ve committed the act, in protest of the law itself. This public support for marijuana decriminalization is also reflected in polls on the ballot initiatives to legalize even recreational marijuana in Colorado and Washington.

“This community has made it very clear that criminal enforcement of marijuana is not something they want me to spend any time on,” Garnett said.

Federal Court Halts Execution Of Mentally Ill Man Who Believes He Is The ‘Prince Of God’

Death Row Inmate John Errol Ferguson

On Saturday, a federal trial court in Florida granted an emergency stay of execution to Florida inmate John Errol Ferguson. Ferguson has paranoid schizophrenia and a history of hallucinations. He believes that he is the “Prince of God” and that the Florida prisons are preparing him for “ascension.” Ferguson was scheduled to be executed tomorrow.

The order by Judge Daniel Hurley, a Clinton appointee, provides simply that Ferguson’s execution must not take place at least until Hurley is able to hold a hearing on his petition for a more lasting relief and fully consider Ferguson’s case. Oral arguments are currently scheduled before Judge Hurley on Friday.

As ThinkProgress previously reported, the U.S. Supreme Court denied Ferguson’s request to consider his case last week. The reason why this was not the end of Ferguson’s ability to seek legal relief is because the U.S. Supremes turned aside an appeal from a Florida Supreme Court, and federal law permits inmates to file a petition for a “writ of habeas corpus” in federal trial court once all state court avenues have been exhausted, even if the U.S. Supreme Court declines to review the state judiciary’s decision.

Nevertheless, Ferguson’s fate is far from certain. Even if he convinces Judge Hurley to declare him unfit to be executed, his decision will appeal to the notoriously conservative Eleventh Circuit, and Ferguson’s case could ultimately land in the Supreme Court.

NEWS FLASH

Texas Prosecutor Turned Judge Allegedly Withheld Evidence From Wrongfully Convicted Man | Michael Morton served 25 years in prison for a crime he did not commit, the murder of his wife. Meanwhile, Ken Anderson, the former prosecutor who convicted Morton, had a successful career as a district attorney and now as a judge. Judge Anderson now faces disbarment, however, due to allegations that he intentionally withheld evidence from Morton that could have prevented the innocent man from spending most of his adult life behind bars.

Why Don’t Cheerleaders With Religious Banners Have To Follow The Same Law As Cheerleaders Who Allege Rape?

Last week, a Texas judge held that cheerleaders at a Texas high school could continue to display banners emblazoned with Bible verses and other religious messages during high school football games, at least for the time being:

A judge stopped an East Texas school district on Thursday from barring cheerleaders from quoting Bible verses on banners at high school football games, saying the policy appears to violate their free-speech rights.

District Judge Steve Thomas granted an injunction requested by the Kountze High School cheerleaders allowing them to continue displaying religious-themed banners pending the outcome of a lawsuit set to go to trial next June 24, Texas Attorney General Greg Abbott said. Thomas previously granted a temporary restraining order allowing the practice to continue.

As a matter of law, this is almost certainly wrong. As the Supreme Court explained in Santa Fe Independent School Dist. v. Doe, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” and Santa Fe also establishes that student-led prayers can nonetheless be an unconstitutional endorsement of religion. The cheerleaders’ banners were displayed at official school events by students speaking on behalf of the school while wearing official school cheerleading uniforms. While there are some subtle differences between the facts in Santa Fe and the cheerleaders’ banners, it’s hard to imagine that anyone seeing a school’s cheerleaders display a religious message at an official school event would not take that to mean that the school is endorsing religion.

And there, is another, even more distressing problem with these cheerleaders’ case. In 2010, another Texas cheerleader was sanctioned by the United States Court of Appeals for the Fifth Circuit because she sued after her school required her to cheer for a man who allegedly raped her. The core of the Fifth Circuit’s decision was that, in the alleged rape victim’s “capacity as cheerleader, [she] served as a mouthpiece through which [her] could disseminate speech namely, support for its athletic teams.” So cheerleaders are speaking on their school’s behalf while they are cheering, not on their own behalf, and thus can be required to convey the message the school wants.

To be fair, the Fifth Circuit is a federal court, while Judge Thomas is a state judge, so these cases took place in different court systems. Nevertheless, it is difficult to square one decision with the other. At the very least, alleged victims of rape should be able benefit from the exact same laws as everyone else.

UK Commission Calls For Decriminalization of Drug Possession, Marijuana Cultivation

A United Kingdom commission made up of leading scientists, academics, law enforcement officers and other experts is recommending decriminalization of drug possession in small quantities and of cultivation of marijuana.

The recommendations are the result of a six-year study by the UK Drug Policy Commission, whose members include the former head of the British Medical Research Council and the former chief inspector of constabulary. The commission points to the success of countries like Portugal, Switzerland and the Czech Republic in decriminalizing possession, and to evidence that the relative harms of alcohol and tobacco make different policy treatment for drugs “difficult to justify.” In addition to recommending moves toward decriminalization, the commission suggests review of the penalties for supply and distribution of drugs, and of the process for classifying drugs.

Taking drugs does not always cause problems, but this is rarely acknowledged by policy makers. In fact most users do not experience significant problems, and there is some evidence that drug use can have benefits in some circumstances. […]

With some 42,000 people in England & Wales sentenced annually for drug possession offences and about 160,000 given cannabis warnings, this amounts to a lot of time and money for police, prosecution and courts. On top of this comes the cost to the individual in terms of damage to employment prospects. Some people who do develop drug problems may also be put off from seeking help earlier because they are doing something illegal.

To address these costs, there is evidence to suggest that the law on the possession of small amounts of controlled drugs, for personal use only, could be changed so that it is no longer a criminal offence.

On its recommendation that the UK decriminalize marijuana cultivation, at least for personal use, the commission explains:

[T]here is an argument that amending the law relating to the growing of it, at least for personal use, might go some way to undermining the commercialisation of production, with associated involvement of organised crime and the development of stronger strains of cannabis (‘skunk’), that we have seen in the UK and other countries in recent years. Perhaps the most expedient course to take here would be to re-examine sentence levels and sentencing practice to ensure that those growing below a certain low volume of plants face no – or only minimal – sanctions.

In the U.S., 750,000 people charged with marijuana offenses were arrested for possession only in 2010, according to the Drug Policy Alliance. Fourteen states have decriminalized possession, which typically means individuals do not get prison time or a criminal record for first-time possession of small amounts. But law enforcement officials in other states are increasingly endorsing full-scale decriminalization of marijuana, citing many of the reasons provided in the commission’s report.

In the meantime, vigorous federal crackdowns on medical marijuana dispensaries in states that consider them legal, harsh mandatory minimum sentences and racially discriminatory sentencing disparities are just some of the most egregious manifestations of the continuing U.S. war on drugs.

Romney Stars in Ad For Candidate Who Says Medicare And Social Security Are Unconstitutional

For the first time this election, Mitt Romney is starring in a campaign ad on behalf of another Republican candidate. Romney’s candidate of choice is none other than Richard Mourdock, the Tea Party favorite in a tight race for a Senate seat, who says things like Medicare and Social Security are unconstitutional.

Romney has stumped for Mourdock before, saying “This is a man that I want to see in Washington” to “actually have the votes to get things changed.” He doubles down on his endorsement with the latest ad:

“This fall I’m supporting Richard Mourdock for Senate. As state treasurer, Richard worked with Gov. Daniels to balance the budget and make government more accountable. As senator, Richard will be the 51st vote to repeal and replace government-run healthcare. Richard will help stop the liberal Reid-Pelosi agenda. There’s so much at stake. I hope you’ll join me in supporting Richard Mourdock for U.S. Senate.”

Watch it:




What Romney does not mention here is Mourdock’s opposition to the very idea of a social safety net for seniors. Video of Mourdock shows the candidate mocking these programs, saying, “I challenge you to find words that talk about “Medicare” or “Medicaid” or, yes, even “Social Security.” Mourdock’s other statements include allowing businesses to deny insurance to Americans with pre-existing positions and abolishing Senate elections.

Mourdock is not the only extreme candidate Romney has embraced. Rep. Steve King (R-IA), with his anti-immigrant, birther, pro-dog-fighting record, earned a coveted endorsement when Romney said “I want him as my partner in Washington, D.C.”

Voter Intimidation Billboards Will Be Pulled Down In Cleveland

Earlier this month, dozens of billboards suddenly appeared in predominantly African-American and Latino neighborhoods in Cleveland referring to stiff jail sentences facing the rare individuals who commit voter fraud:

In the wake of complaints that the billboards’ true purpose was to intimidate minority voters from casting fully legal votes, the billboards are now being pulled down. Clear Channel Outdoor, which rented the billboard space to an unnamed family foundation, explained that they decided to remove the billboards because they “violate our policy of not accepting anonymous political ads.” Clear Channel also agreed to donate 10 billboards that will display a counter-message clarifying that voting is a right and not a crime:

Pennsylvania Newspaper Owned By Top Right-Wing Funder Falsely Claims ID Is Required To Vote

The Mount Pleasant Journal is one of several newspapers run by Trib Total Media, a media conglomerate owned by billionaire Richard Mellon Scaife. Scaife’s foundation donated hundreds of millions of dollars to conservative organizations ranging from the American Enterprise Institution to the Federalist Society, and he currently serves as vice-chairman of the right-wing Heritage Foundation’s board of trustees.

Last Thursday, at least one of Scaife’s newspapers printed an inaccurate story headlined “Photo ID required for November election,” when, in reality, a court order suspended the requirement that Pennsylvania voters show an ID or lose their right to vote. The following piece appeared in Scaife’s Mount Pleasant Journal:

Again, the claim that voters will need to show ID in order to vote, as well as the claim that voters who do not show ID will be forced to cast a provisional ballot and then show ID later, are entirely false. The state of Pennsylvania is currently bound by a court order which permits voters without ID to cast normal ballots, not provisional ballots, and to have those ballots counted just like any other. Voters will still be asked to show ID at the polls, but may not be turned away or given a provisional ballot because they do not show it.

Justiceline: October 22, 2012

James Bopp Jr.

James Bopp Jr.

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

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