In New York City, marijuana is the most common reason for arrest, even though only possession of marijuana in public view is a crime. A dramatic spike in these arrests has accompanied the rise of the New York Police Department’s controversial stop and frisk tactic, and an equally controversial reported tactic of considering the marijuana in “public view” once a suspect is ordered by police to take it out of a pocket. Almost all of these cases end in plea deals, and most who are not charged with anything else plead guilty to a non-criminal violation such as disorderly conduct, even where the evidence would have shown that suspects did nothing wrong at all. Even these plea deals come only after arrestees have been detained, often for 8 hours or overnight in jail, and sacrificed an additional day to return to court.

But those who dare to actually defend the charge in court – particularly in the Bronx — find that there is no place in the legal system for misdemeanor due process. After a two-plus-year trek through the legal system with 54 clients who challenged their marijuana arrests in the Bronx, nonprofit Bronx Defenders found that prosecutors use chronic delay and mandatory court appearances to effectively kill every marijuana possession defense attempt. Rather than accept a plea deal, these defendants pled innocent. They showed up to court. And then they showed up again, waiting full days in court behind hundreds of other defendants before being told that the prosecutor was “not ready.” Since Bronx Defenders began this process in July 2011, not one of the 54 marijuana defendants had a suppression hearing – the initial hearing at which the prosecutors are tasked with producing physical evidence of the alleged crime. Courts so clogged with delayed cases that they have become little more than “plea bargaining mills,” as the New York Times puts it, treat misdemeanors as a particular afterthought, with threats of overly punishing sentences lorded over clients to extract a guilty plea and plow through overwhelming caseloads. As a result, a study released Wednesday concludes, it was “virtually impossible … to effectively litigate the constitutionality of street-level police behavior.” Take the story of 17-year-old Angel Cardona, whose name has been changed:

In the waning days of summer 2011, Angel Cardona … chatted with three friends—two female and one male—while waiting for a bus that would take him home for the night. Before the bus arrived, however, a marked police car pulled up to the bus stop. The officer in the passenger seat beckoned the teenagers over to the car and began to question the two young men in the group. A moment later the officers were standing on the sidewalk and Angel and his friends were lined up along a nearby railing and forced to assume the search position. One of the officers frisked Angel and then went through his pockets. The officer found a partially smoked marijuana cigarette in a small plastic box in Angel’s right front pants pocket. Angel was arrested and spent approximately 8 hours in police custody before being issued a desk appearance ticket.

Three months later, Angel and his mother, a home health aide who had taken the day off to accompany her son to court, arrived in Bronx Criminal Court for Angel’s arraignment. There they discovered that the police officer who had arrested Angel claimed, falsely, that he had seen Angel smoking marijuana on the sidewalk, resulting in a misdemeanor charge (simply carrying marijuana in one’s pocket is a non-criminal violation). […]

Almost 10 months later … Angel and his mother sat on a bench in the lower level of the Bronx Hall of Justice dejected, frustrated, and resigned to the realities of the criminal justice system. The prosecutor had not been ready for hearings or trial on either of the past two trial dates and had indicated that she would state “not ready” for a third consecutive time. At Angel’s first post-arraignment court appearance, the presiding judge had openly questioned Angel’s decision to request a trial and pressured him to accept the prosecutor’s offer. Angel stood his ground, and he and his mother made 3 more court appearances, missing school and work, respectively, on every court date. Each time, they waited for an opportunity to confront the officer who had unconstitutionally stopped, frisked, and searched Angel. But their patience (and Angel’s mother’s vacation days) had run out.

Rather than endure another 2-month adjournment on the potentially empty promise of a hearing, Angel accepted the prosecutor’s offer and pled guilty to disorderly conduct—392 days after his initial arrest. He promptly paid the $120 mandatory court surcharge and moved on with his life, but not before confessing a newfound disillusionment with the criminal justice system.

The New Jersey legislature reached a deal with Gov. Chris Christie (R) today on a bill aimed at ending preventable deaths because those who witness drug overdoses are afraid to call the police. The new bill passed overwhelmingly by the state legislature for the second time, after a partial veto by Christie, will provide some legal protection to those who witness a drug overdose and call for help. It will also expand immunity for those who administer the overdose antidote, naloxone.

Last year, Christie vetoed a similar “Good Samaritan” bill intended to incentivize individuals to report overdoses and administer life-saving drugs, but Christie came around to a compromise after lobbying from parents whose children had died from an overdose. The latest version passed again by both houses will provide legal immunity for anyone who calls 911, except those who have violated a restraining order. Christie also narrowed a provision to permit non-health professionals to administer the overdose antidote, allowing immunity to those who administer the antidote drug during an emergency, if the person believed in good faith that the victim was experiencing an opioid overdose. New Jersey On-Line reports:

In 2009, the last year for which statistics are available, there were 752 drug overdose deaths in New Jersey, many of them due to prescription overdose or a combination of prescription and illegal drugs.

The scope of the problem is staggering, said Diane Conforti of Rumson, whose 26-year-old son, Michael D. Garfole, died from an overdose. “Nurses have told me they go out and check the bushes around hospitals because kids bodies get dumped there,” said Conforti, a licensed clinical social worker.

Nationally, rates of overdose have more than tripled since 1990 and led to more than 38,000 U.S. deaths since 2010, according to David Sheff, the author of a book on addiction. Most lethal overdoses come from street drugs like heroin as well as prescription pain medications like Oxycontin.

Eleven states have enacted Good Samaritan laws for drug overdoses, and ten have laws that provide some immunity for administering naloxone, according to the Drug Policy Alliance. The measure is the latest move toward a new approach on drug reform that emphasizes public health over criminalization of drug use.

Smoking marijuana in Colorado won’t land you in jail, but it might cost you your job. A Colorado appeals court held Thursday that employers can fire individuals who test positive for marijuana  – the latest of several courts to uphold firings even when the marijuana is used to treat severe medical conditions. The ruling upholds the termination of Brandon Coats, who had been using medical marijuana to treat symptoms from a car crash that paralyzed him. Courts in Washington and Colorado have also found that individuals can be fired if they test positive for marijuana, the Associated Press reports. And a federal court last year upheld Wal-Mart’s firing of a Michigan man who was using medical marijuana to treat an inoperable brain tumor.

The 2-1 ruling hinged on the fact that marijuana remains federally illegal, although the dissenting judge questioned whether federal law was relevant to the state ruling. Lawyers for Coats say they will appeal to the state Supreme Court. The decision highlights one of the many collateral consequences surrounding marijuana use even in states where it is legal. Because marijuana remains in users’ systems for long periods of time, a positive test does not necessarily mean the user is under the influence at work. Several bills in Congress that seek to exempt those states with marijuana laws from the federal Controlled Substances Act could resolve this issue.

Gil Kerlikowske

Timed to the release of the White House’s new “21st Century drug policy,” U.S. Drug Czar Gil Kerlikowske admitted Wednesday that he has misunderstood drug abuse during his 37-plus year law enforcement career. Now, he said according to ABC News, he finally views drug abuse as a public health issue:

I’ve spent my entire career in law enforcement. For most of those 37 years, like most people, I believed that a person addicted to drugs had a moral problem — a failing, a lack of will.

I was wrong. Addiction is not a moral failing.

Kerlikowski’s statement accompanies a White House “National Drug Control Strategy,” dubbed a “science-driven plan” that treats “our Nation’s drug problem as a public health issue, not just a criminal justice issue.” On the subject of tackling addiction, the plan announces several important developments, including that insurance plans will be required to cover treatment of people with substance abuse disorders, the federal government will fund some vouchers for individuals who cannot afford treatment programs, and that the President requested a $1.4 billion increase in funding for drug abuse treatment.

On criminal justice, the report’s introduction makes an equally significant statement: “This policy underscores what we all know to be true: we cannot arrest or incarcerate our way out of the drug problem.” But the substance of the report only partially matches its rhetoric, with a focus on alternative drug courts and prisoner re-entry, but not on reforming laws or decreasing arrests for minor nonviolent offenses.

While drug courts, which dole out sentences tailored to defendants with drug abuse problems, are an improvement over typical prison sentences, they presuppose arrest, criminal charges, and conviction or guilty plea for these defendants. As the Drug Policy Alliance notes, drug courts are “where punishment is often the response to addiction-related behaviors such as positive urine screens or missed appointments.” “Until the Drug Czar says it is time to stop arresting people for drug use, he is not treating drug use as a health issue no matter what he says,” said DPA Policy Director Bill Piper. “I know of no other health issue in which people are thrown in jail if they don’t get better.”

The paper also expresses a commitment to “eradicate marijuana production” through law enforcement, without a concurrent recognition that this production is legal under some state medical and recreational marijuana laws. On sentencing, substantive reform proposals are particularly absent. The 96-page report includes a one-paragraph section on sentencing that notes only that the Fair Sentencing Act reduced the disparity between cocaine and crack sentences from 100 to 1. It does not note, however, that the disparity is still 18 to 1, or that other draconian drug laws and sentencing schemes persist.

The report’s messaging emphasizes “science” and notes federal support for ongoing studies on abuse and best enforcement practices. But the report makes no mention of federal suppression of scientific research on the medical benefits of cannabis or other now-illegal drugs, in spite of considerable evidence that those benefits are both significant and unique.

The U.S. Supreme Court held Tuesday that an immigrant should not have been automatically deported for a minor marijuana conviction. In a 7-2 decision, Justice Sonia Sotomayor said a state charge of possession with intent to distribute for possession of an amount equivalent to two or three marijuana joints was not an “aggravated felony.”

Under U.S. law, immigrants facing deportation typically have an opportunity to contest it. However, if the immigrant has been convicted of crimes categorized as “aggravated felonies” in the Immigration and Nationality Act, deportation is automatic, and not even claims that the individual is seeking asylum can stop that person’s removal from the country. The “aggravated felonies” category includes illicit drug trafficking offenses, but it does not include mere drug possession. Under federal drug law, Jamaican national Adrian Moncrieffe would not have been charged with possession with intent distribute for mere possession of the 1.3 grams found in his car during a traffic stop, with no evidence that money changed hands. But Georgia law defines crimes differently, and immigration agents determined that his guilty plea to the state crime of the same name qualified him for automatic deportation.

Justice Sotomayor rejected immigration agents’ equivocation of Moncrieffe with a commercial drug dealer:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms. Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’” Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

This decision was a case of a state crime misapplied to a federal immigration law. But it also highlights another area of the law in which drug use is harshly over-punished. While Moncrieffe, who has lived in the United States since he was three years old, rightly escaped automatic deportation, those immigrants who are found guilty of a distribution-related crime under the federal Controlled Substances Act will not fare as well.

A bill that passed the North Carolina Senate Monday night would impose mandatory drug testing on all welfare applicants, in spite of federal court rulings blocking similar state provisions as likely unconstitutional. North Carolina’s proposal goes even farther than Florida’s court-invalidated provision, requiring all applicants to a program for the indigent to pay for the mandatory test out of their own pockets. Only if they pass the test will they later be reimbursed by the state for the tests, which average $100. The Senate measure passed along party lines – without a proposed amendment to also subject lawmakers to the invasive tests. Raw Story explains:

At the same time, senators rejected an amendment offered by Democratic state Sen. Gladys Robinson that would have drug tested lawmakers, the governor and cabinet secretaries.

“We receive state funds, we represent the law, we institute policy,” Robinson told senators on Monday night. “So, it should not be above any of us to submit to drug screening.”

Republican State Sen. Jim Davis said that he did not mind being tested, but insisted that he would vote against the amendment because it had no mechanism to provide him with a reimbursement for the $100 test.
Instead of voting on Robinson’s amendment, state Senator Tom Apodaca (R) used a substitute amendment as a parliamentary maneuver to kill the proposal.

“The substitute amendment is offered to have the effect of killing the other amendment,” Democratic state Sen. Martin Nesbitt explained in a floor speech. “You need to know that before you vote because you’ll be killing the one that requires a drug test of the leaders of this state since we want to require it for the followers of this state.”

“And we seem to be getting into a situation where where we’re kind above the people,” he added.

At least eight other states have laws that test public benefit recipients or applicants, and at least 29 introduced new proposals this year, following on the ALEC and Big Pharma-backed movement to pass drug-testing provisions. But like the Florida law struck down by a federal appeals court in February, North Carolina’s law is particularly onerous and constitutionally suspect, because it contains a blanket provision requiring all applicants to be drug-tested. A drug test is considered a search under the Fourth Amendment, and “there is nothing inherent to the condition of being impoverished that supports the conclusion that there is a ‘concrete danger’ that impoverished individuals are prone to drug use” to justify the warrantless search, that court held.

In addition to imposing a potentially unconstitutional requirement on applicants, North Carolina’s bill imposes what would for many constitute an impassable barrier to entry. Those indigent enough to qualify for Temporary Assistance For Need Families likely do not have $100 to pay for a drug test up front – whether or not they are later reimbursed.

Five months ago, two states passed ballot initiatives to legalize small amounts of marijuana and regulate it like alcohol. Since then, public opinion and momentum have continued to build away from criminalization. New awareness about the failed War on Drugs, the violence that accompanies illicit marijuana sales, and overly harsh sentences have sparked a movement that saw its culmination this weekend, as legalization advocates around the country celebrated victories and vied for reform on 4/20, in spite of one unfortunate violent incident in Denver. The following are some of the developments that have occurred since the November 6 election:

• Washington and Colorado stopped arresting people for minor possession of marijuana, dropped hundreds of pending criminal charges, and reallocated their scarce resources. While implementation of the regulatory and licensing schemes for recreational marijuana will likely take more than a year, the two new state laws have already removed penalties for private, recreational use of the substance, with little documented negative consequence thus far.
• Members of Congress introduced several bills to square state and federal marijuana law. Last week, three Democrats joined three Republicans in the latest bipartisan bill that would exempt individuals complying with state marijuana laws from federal prosecution under the Controlled Substances Act. Other bills in Congress would regulate and tax marijuana in states where it is legal, and legalize hemp.
• Eleven more states introduced bills to legalize and regulate marijuana, five of which are still pending, according to the Marijuana Policy Project. Several other states are ramping up campaigns for ballot measures in the coming years, with Alaska already clearing the initial hurdles to get a measure on the ballot in 2014.
• 18 more states introduced medical marijuana bills, and a Maryland bill for modest legislation that would allow distribution through academic research centers is awaiting Gov. Martin O’Malley’s (D) signature. An Illinois measure that passed that state’s House Friday is supported by more than 250 of the state’s doctors.
• At least nine more states introduced bills to decriminalize possession of marijuana, and some have already cleared key legislative hurdles. Even an Alabama legislator has introduced a bill to legalize personal use of recreational and medical marijuana, and regulate hemp.
• Several new polls have found for the first time that a majority of Americans support legalization. Previous polls had shown overwhelming consensus that the United States is losing the War on Drugs, and that states should be allowed to decide whether marijuana is legal.

In spite of all these markers of progress, it is still unclear how federal officials will respond to state legalization measures. But their approach to state medical marijuana laws may be some indication. Just this week, the Drug Enforcement Administration raided several more Los Angeles marijuana dispensaries. Federal prosecutors have already shuttered dozens of city businesses that obtained local permits.

In the months after the passage of Washington’s ballot initiative to legalize and regulate marijuana, the state was on track to implement its licensing scheme for distributors and suppliers by the end of this year. But the Liquor Control Board said Wednesday that it has pushed back its timeline, meaning legal marijuana likely won’t be available until Spring 2014, according to the Associated Press. The Board said it would aim to issue licenses to both growers and distributors in December 1, rather than issuing growers’ licenses over the summer so that they could produce a product for suppliers by the end of the year.

Although Colorado and Washington’s recreational marijuana laws have already lifted penalties for possession of less than an ounce of pot, production and distribution will not be legal until the states set up rules and regulations for licensing. Proponents of the state laws view the states as laboratories in which new alternatives to the failed War on Drugs can be explored. But the expected benefits, including revenue generation and a decrease in the violent illicit drug trade, will not begin to accrue until there are mechanisms for a legal distribution system.

During a congressional oversight hearing Thursday, Attorney General Eric Holder once again dodged questions about how the Department of Justice will respond to the new state laws. He did say, however, that the Department of Justice is “certainly going to enforce federal law” and that the DOJ will consider laws’ the impacts on children as well as gang violence.

Gov. Sam Brownback signed a bill into law Tuesday to drug-test recipients of both welfare and unemployment benefits, making Kansas the first state in 2013 to implement the ALEC and Big Pharma-backed legislation. The law passed with a Democrat-added provision to test legislators as well, although that provision is substantially weaker. The Wichita Eagle reports:

The drug testing bill lets the Department for Children and Families require urine tests of any welfare recipient suspected of using illegal drugs. That could be triggered by a person’s demeanor, missed appointments or police records.

Opponents of the bill said that may leave the decision open to people’s biases. But the bill was swiftly approved by the House 106-16 and backed by the Senate on a 29-9 vote. […]

Senate Bill 149, effective July 1, also bans anyone convicted of a drug-related felony from getting welfare for five years. Those convicted a second time lose benefits for life.

The testing program for unemployment recipients is similar, although Department of Labor officials will require employers who usually drug test job applicants to submit a list of people who applied and didn’t get a job because they failed a pre-employment drug screen. […]

The state estimates it will need to hire four more employees to deal with drug testing and treatment management under the bill. The drug testing program and treatment is estimated to cost about $1 million the first year, after any savings from people losing benefits.

At least eight other states have laws that test public benefit recipients or applicants, and at least 29 introduced new proposals this year. A federal law passed last year explicitly authorized drug tests for unemployment beneficiaries. These state bills have proliferated in spite of several recent court rulings blocking state drug-testing laws as likely unconstitutional, and early indications show that the laws actually cost states more money. Just this past February, a federal appeals court blocking Florida’s law said, “The simple fact of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy.” The court also noted that there is “nothing inherent to the condition of being impoverished that supports the conclusion that there is a ‘concrete danger’ that impoverished individuals are prone to drug use or that should drug use occur.”

The Kansas law does not go quite as far as Florida’s mandated testing requirement. Rather than requiring every applicant to complete a drug test, it requires “reasonable suspicion” to perform drug tests of already enrolled beneficiaries. Those who fail the first test may have their results retested at their own expense, and will be reimbursed by the state if a subsequent test is negative for drug use. If they test positive for drugs, they are required to complete drug treatment and job skills programs before they are tested again and reconsidered.

In signing the bill, Gov. Brownback called drug addiction a “scourge on Kansas,” but the drug-testing regime is imprecise at best in addressing addiction. Drug tests are much more successful at detecting marijuana, which stays in the body longer, than they are at detecting more potent drugs like cocaine and methamphetamine. And while those testing positive for drugs are mandated to attend a drug abuse program, the test does not require any assessment of whether the person suffers from addiction. Instead, it leaves an already-indigent person without a source of income for six weeks while they complete a mandatory program. What’s more, the provision that removes those convicted of any drug-related felony from the rolls for five years will ensnare low-level offenders. In Kansas, a second conviction for possession of any amount of marijuana is a felony.

While the law is not as constitutionally abhorrent as Florida’s blanket testing provision, there is reason to believe it is also unconstitutional.

Cameron and Michael Douglas

This week, a federal appeals court upheld a particularly harsh drug sentence for Cameron Douglas, son of actor Michael Douglas. When Douglas was initially sentenced, he received an unusually light punishment of 60 months in prison for conspiring to distribute methamphetamine and cocaine, in large part because he agreed to testify against his suppliers and presented evidence about his struggle with addiction to heroin. But when it was discovered that Douglas had repeatedly smuggled drugs into both prison and house arrest, Douglas was convicted for new crimes, and punished for his “deceitful conduct,” with a sentence for the second crime that was well above the federal guidelines.

A three-judge panel upheld the sentence, holding that while the punishment was “extraordinary,” so, too, are the facts. Even with the second harsh sentence, they reasoned, Douglas still received less than the ten-year mandatory minimum sentence he would have received for his original crime had he not negotiated a particularly favorable plea deal. But while heeding the law and the facts of this case, the judges lamented that the problem of addiction is treated as a criminal and not a medical one.

“It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based ‘war on drugs,’” wrote Judge Gerard E. Lynch for the majority. Concurring in the opinion was Judge Guido Calabresi, a prominent intellectual heavyweight appointed by President Clinton, but also a founder of the conservative law and economics movement. Calabresi, like the rest of the panel, acknowledged the constraints of existing law, but not without a compelling statement on the perversity of Congress’ choice to favor imprisonment for drug crimes:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time.

Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

I underscore what is suggested in the last paragraphs of the majority opinion, that Congress’s choice to make the use of drugs, and that use in prison, crimes, is highly problematical. No one has made the argument that this is an unconstitutional penalty imposed upon Douglas because of his status as an addict, and I believe no such argument can convincingly be made. As a result, our Court has no authority to stand in the way of the operation of this law, even though our experience with such cases may lead us to think it is counterproductive. And so we must affirm the district court and enforce that law. We can, however, make observations based on our experience. This law and laws like it require district courts to confront a vexing question every day: how to treat addicts who have suffered a relapse. We are not permitted to treat this question as a medical one, although, in some sense, it is. We dismiss Douglas’s argument that he should be treated as a victim of his drug abuse, rather than as a criminal, both because that is not a legal argument, and because it seems to ask us to treat him differently from the thousands of other addicts we see every year. But it remains true that these defendants are all victims. The multiple costs of our imprisonment approach – including the expense of filling our prisons with drug addicts, to mention just a base economic cost – impel me to express the hope that Congress may some day seek out a different way of dealing with this problem.

Calabresi, who was hired as Yale Law School’s youngest ever professor before becoming the school’s dean, is particularly well-positioned to speak out. In addition to garnering respect from both the left and the right for his academic accomplishments, he has almost 20 years of experience as a federal judge reviewing cases like Douglas’. Like a group of doctors who launched a campaign around Douglas’ case to treat addiction as a medical problem, Calabresi seized on the prominent sentencing as an opportunity to express exasperation at a broken and misdirected drug policy. Several of his fellow judges have lamented the absurd sentencing laws for federal drug crimes.