Marijuana and Driving: A Cop’s Perspective

Do we need roadside tests for marijuana? A veteran detective argues that experienced police can easily identify motorists intoxicated by non-alcoholic substances without special equipment—and get them off the road.

Do we need roadside tests for marijuana?

The simple answer is: no.

Since California legalized and regulated the sale of marijuana for medical purposes in 1996, the nation has been obsessed with how the police enforce DUI laws for “driving while high on marijuana.”

It’s now become an even great concern as more states around the country have legalized recreational and medicinal marijuana.

See TCR’s Stephen Bitsoli on: “Do We Need Roadside MarijuanaTests?”

But let’s be realistic. Marijuana users have been smoking and driving on the nation’s roads, since the 1960s.  When you hear or read from your local sheriff that his or her deputies don’t know how to take enforcement action, since “there is no roadside test for marijuana,” and the sheriff clutches his pearls and trembles into the camera that we should therefore not legalize marijuana, I say: buffalo chips.

As a 15-year veteran of law enforcement who was honored multiple times as the #1 arrester of drunk drivers, I know this issue well.  I tested about 1,200 drivers and arrested about 400 of them.  I only had to release one: a guy who tested fuzzy, refused the roadside breath test in 1987 and only blew an 0.06% BAL (blood alcohol level) at the jail.

I arrested only three for non-alcohol DUI.  They just weren’t that common.

The fact is, until about 1985, police did not have the small, roadside PBT (portable breath tester, or breathalyzer) used to measure blood alcohol content. I arrested about 300 drivers based on bad driving, smell of alcohol and failing the subjective roadside tests (say your alphabet, etc.).   This is not rocket science.

Regarding DUI Marijuana or any non-alcoholic, intoxicating substance (such as opioids, prescription pain killers, magic mushrooms), the amount in your blood, a percentage, an arbitrary number (5 nanograms of marijuana for example) is not appropriate for enforcement.

If the citizen is in great pain and takes an Oxi 80 mg to bring the pain from a 9 to a 3, that driver is still sober and legal to drive.  If a citizen uses marijuana as an analgesic (pain killer), the same principle applies, as long as the citizen-driver don’t consume too much and become intoxicated.

Bad driving and field tests are more important than chemical field tests, which are of minimal usefulness. But concerns about this appear to have fueled a new industry. Some private companies will soon begin selling a roadside test for the presence of marijuana.  But when the test comes back negative, do we just let the driver go – despite bad driving and flunking our field tests?

Absolutely not.  It would be clear to any responsible officer when a driver is intoxicated on something and is a danger to himself and the public.  We arrest, read the rights for a chemical test, and ask for blood to be taken at the local clinic or hospital.  The driver goes to jail for eight hours and public safety is served.

Days later, the lab will tell us and the prosecutor what was in the blood.  And six months later, a jury can convict the driver, despite no established level or ‘number’ of “intoxication” for that drug.

I understand the nation’s desire to have a scientific device declare a driver to be legal or not.  Unfortunately, that is not possible with marijuana.

Harold Wooldridge

Harold Wooldridge

Americans should be aware that my colleagues and I have been at this type of enforcement for some five decades. We’ve long been trained on how to keep you safe.  If your opposition to legalizing marijuana is because the police are unable to enforce DUIM, you need to find another reason.  Your premise is based on false information.

For those who are interested, here is a 10-step primer of what a law enforcement officer looks for in assessing DUI.

Howard Wooldrige, a retired detective, is founder of Citizens Opposing Prohibition (COP), and co-founder of the Law Enforcement Action Partnership ( www.LEAP.cc). He welcomes comments from readers.

from https://thecrimereport.org

Barr: Feds Won’t Interfere With State Pot Legalization

During his Senate confirmation hearing Tuesday, A-G nominee William Barr indicated he would return to the Obama-era policy of not enforcing federal law prohibiting the possession and sale of marijuana in states that had legalized it. Meanwhile, Massachussetts pot entrepreneurs are rising to the challenge of finding catchy but legally accepted names for their product..

In what may be encouraging news to the marijuana legalization movement, Attorney General nominee William P. Barr has pledged not to interfere with the District of Columbia’s decriminalization of marijuana.

During his Senate confirmation hearing Tuesday, Barr suggested that he would return to the Obama-era policy of not enforcing federal law prohibiting the possession and sale of marijuana in states that had legalized it, reports the Washington Post.Former attorney general Jeff Sessions had reversed that guidance last year.

At the hearing, Sen. Kamala D. Harris (D-Calif.) asked Barr whether he would enforce federal marijuana laws in states that have legalized marijuana — as well as the District.

“To the extent people are complying with the state laws in distribution and production and so forth, we’re not going to go after that,” Barr replied.

In other news from the marijuana front, The Boston Globe reports on the struggle of entrepreneurs in the now-legal recreational pot industry in Massachussetts to gain leverage in an expending marketplace.  New sellers need to balance the need to stand out with catchy brand names,  while staying within state regulators’ limits on referring, directly or colloquially, to the main product.

From 2014 through November, most marijuana firms in the state were medical dispensaries that, in picking their appellations, sought to avoid stoner stereotypes and evoke professionalism and health, leading to such names as Alternative Therapies Group, New England Treatment Access, and Theory Wellness. But now that recreational sales are flowing, the market is changing. More creative names have emerged, such as The Green Lady and The Verb Is Herb

So far, lots of companies have tapped into Boston’s healthy hometown pride with names such as Baked Bean, Mayflower Medicinals, and Patriot Care — a localized version of national parent company Columbia Care. Beantown Greentown is also growing local strains called Boston Skunk, 617 Haze, and Wicked Pissa.

The local angle works because people want to support Massachusetts businesses over big marijuana companies from out of state, said Hillary King, a Boston-based consultant with 5 Point Management Group, who has worked on cannabis store branding.

Meanwhile, the first medical marijuana sales in Ohio are expected to begin Wednesday, reports Cincinnati.com. Dispensary owners prepared for large crowds on what is essentially the program’s opening day. They set up heated tents for waiting customers and planned to serve coffee and hot chocolate.

Initial prices were expected to be high and three dispensaries planned to set limits on how much dried marijuana flower – the only product available at first – could be bought to ensure there is enough to go around.

from https://thecrimereport.org

Will Marijuana Legalization Have a ‘Gateway’ Effect?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly. It may pave the way for a closer look at other now-illicit drugs that can be used for therapeutic purposes.

Marijuana’s reputation as a gateway drug—a drug whose use almost inevitably leads to the use of other, stronger, harder drugs—has been largely (though not completely) discredited.

But will the legalization of marijuana lead to the legalization of other, stronger, harder drugs? If it does, is that a good or bad thing?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly.

On Nov. 6, Michigan voters approved a ballot proposal legalizing recreational marijuana, and it has already gone into partial effect. In Michigan, it is now legal to grow up to 12 marijuana plants at home, to possess up to 10 ounces of marijuana, and to carry (though not smoke in public) 2.5 ounces if you are at least 21 years old.

The state (which is mostly opposed to marijuana legalization) has until Dec. 6, 2019 “to form regulations and make applications available for recreational marijuana businesses,” and up to another year to expand sales beyond existing medical marijuana dispensaries.

Two more states (Missouri and Utah) voted to permit medical marijuana only. That makes 32 medical marijuana states, 10 of which also permit recreational use.

More than one-fifth of the U.S. population—about 73 million people—now live in one of the 10 states (plus the District of Columbia) where recreational marijuana use is now legal to some extent.

That’s more than twice the population of Canada (35 million), where recreational marijuana became legal on Oct. 17. Canada was only the second nation in the world, after Uruguay, to enact such legislation.

Despite predictions of calamity, the major problem so far has been marijuana shortages.

The number of people in North America who can enjoy legal recreational marijuana may have doubled Oct. 31 when Mexico’s Supreme Court ruled that “the effects caused by marijuana do not justify an absolute prohibition on its consumption.”

That in effect decriminalized marijuana. (Under the country’s legal system, once the Supreme Court reaches a similar decision in five separate cases, the standard set by the rulings applies to the country’s entire court system.)

So Mexico’s 119 million citizens (the adults anyway) can now light up, vape, eat or otherwise engage in marijuana consumption. That doesn’t make it legal for you to sell it to or buy it from anyone.

A senator in Mexico has introduced legislation to officially confirm the ruling making recreational marijuana legal. According to World Politics Review, Mexico’s new President Andres Manuel Lopez Obrador favors legalization, and plans to hold a public referendum on how and whether to legalize marijuana within his first three years in office.

With the U.S. likely to formalize the laissez-faire attitude towards state legalization at the federal level—in June, President Donald Trump said he, would “probably” sign the STATES (Strengthening the Tenth Amendment Through Entrusting States) Act—North America could in effect become the first continent with legal recreational marijuana.

If marijuana becomes completely legal to the south and the north of us, the fear of missing out on those legal marijuana tax revenues may be enough to turn the tide.

On the other hand, there are still a couple of big stumbling blocks, not least of which is the U.S. Senate—which may find it politically unacceptable to make marijuana use more acceptable in any way. That also includes the regulatory agencies (the Drug Enforcement Administration, the Food and Drug Administration) which seem more interested in criminalizing kratom than legalizing cannabis.

Elsewhere, South Africa, Georgia (the Caucasus), China, and several other Asian nations also are considering legalization, mostly for medical marijuana. Even the United Nations’ World Health Organization is reviewing marijuana’s status as a controlled substance.

Mexico may go even further. There is a movement afoot to also legalize the medical use of opium to relieve pain and to further hurt the illegal drug traffickers who profit off opium-derived heroin.

Opium was brought to the U.S. by Chinese workers in the mid-19th century, then demonized during the anti-Chinese wave of the late 1870s-early 1880s, and made illegal by the Harrison Narcotics Act of 1914. Subsequently—in a pattern repeated following other attempts to prohibit or restrict substances—American addicts resorted to stronger opiates such as codeine, morphine, and heroin.

In a contest over the dangers of opium vs weed, opium is the clear winner. Despite marijuana’s Schedule 1 placement, it’s not a deadly drug. No one has ever died directly due to an overdose of marijuana alone. Opium itself is not as deadly as other opioids, such as heroin and fentanyl.

Then again, there’s even a movement to legalize and regulate heroin so that it will be of a known strength and purity (not laced with fentanyl) that is traced to marijuana’s legalization success. And fentanyl is legal for some conditions.

Opium isn’t the only drug receiving similar consideration. So are so-called “psychedelic”, hallucinogenic, or psychotropic drugs.

Oregon is considering a voters ballot initiative to legalize therapeutic uses of psilocybin, the ingredient in psychedelic or “magic” mushrooms. Like marijuana, it is illegal Schedule 1 drugs under the US federal Controlled Substances Act. Likewise, it and the party drug MDMA (Ecstasy) have been celebrated as “breakthrough therapy” for depression, post-traumatic stress disorder, and other psychological illnesses.

Digital tech workers and entrepreneurs in Silicon Valley have touted the benefits of microdosing LSD—small doses that produce no hallucinogenic effects—for creativity and treatment of depression although it, too, is a Schedule 1 drug. A placebo-controlled study is now underway in London.

Ibogaine and other psychedelics for the treatment—maybe cure—of addiction is similarly stymied by being confined to Schedule 1. Proponents—who have been around since the 1960s—say that one “trip” can remove addiction and the desire to use drugs again. Ibogaine is only legal in New Zealand, Brazil, and South Africa.

Meanwhile, kratom—an herbal substance related to coffee—is facing renewed criminalization by the FDA and DEA. Heretofore its status has been unclear. It is marketed as a “dietary supplement”, a class of product that “can go to market without any safety, purity, or quality testing by the FDA”.

Some users and scientists say kratom has opioid-like pain relief properties that are safer (no respiratory depression) than opioids. They want it regulated as a dietary supplement, not banned. It is is not mentioned at all by the United Nations Drug Conventions or US law, though it is controlled in several European Union and Asian nations, as well as Australia and New Zealand.

Prohibition doesn’t stop drug use. It only prevents the research evidence of their therapeutic effects that drug legalization opponents claim is lacking, as well as making the substances less safe and turning otherwise law-abiding citizens into criminals. It also can be politically motivated.

Stephen Bitsoli

Stephen Bitsoli

While many people use marijuana because they enjoy it, not for its medical benefits, that doesn’t mean it doesn’t have medical benefits, or that such enjoyment is necessarily a bad thing.

Marijuana legalization is long overdue, as is serious research into and consideration of other pharmacological solutions. If that legalization is a bellwether for more scientific and apolitical research, that is a good thing.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction treatment, politics, history, and related matters for several blogs. A lifelong avid reader, he loves learning and sharing what he’s learned. Readers’ comments are welcome.

from https://thecrimereport.org

Will Marijuana Legalization Have a ‘Gateway’ Effect?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly. This could pave the way for a closer look at other now-illicit drugs that can be used for therapeutic purposes.

Marijuana’s reputation as a gateway drug—a drug whose use almost inevitably leads to the use of other, stronger, harder drugs—has been largely (though not completely) discredited.

But will the legalization of marijuana lead to the legalization of other, stronger, harder drugs? If it does, is that a good or bad thing?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly.

On Nov. 6, Michigan voters approved a ballot proposal legalizing recreational marijuana, and it has already gone into partial effect. In Michigan, it is now legal to grow up to 12 marijuana plants at home, to possess up to 10 ounces of marijuana, and to carry (though not smoke in public) 2.5 ounces if you are at least 21 years old.

The state (which is mostly opposed to marijuana legalization) has until Dec. 6, 2019 “to form regulations and make applications available for recreational marijuana businesses,” and up to another year to expand sales beyond existing medical marijuana dispensaries.

Two more states (Missouri and Utah) voted to permit medical marijuana only. That makes 32 medical marijuana states, 10 of which also permit recreational use.

More than one-fifth of the U.S. population—about 73 million people—now live in one of the 10 states (plus the District of Columbia) where recreational marijuana use is now legal to some extent.

That’s more than twice the population of Canada (35 million), where recreational marijuana became legal on Oct. 17. Canada was only the second nation in the world, after Uruguay, to enact such legislation.

Despite predictions of calamity, the major problem so far has been marijuana shortages.

The number of people in North America who can enjoy legal recreational marijuana may have doubled Oct. 31 when Mexico’s Supreme Court ruled that “the effects caused by marijuana do not justify an absolute prohibition on its consumption.”

That in effect decriminalized marijuana. (Under the country’s legal system, once the Supreme Court reaches a similar decision in five separate cases, the standard set by the rulings applies to the country’s entire court system.)

So Mexico’s 119 million citizens (the adults anyway) can now light up, vape, eat or otherwise engage in marijuana consumption. That doesn’t make it legal for you to sell it to or buy it from anyone.

A senator in Mexico has introduced legislation to officially confirm the ruling making recreational marijuana legal. According to World Politics Review, Mexico’s new President Andres Manuel Lopez Obrador favors legalization, and plans to hold a public referendum on how and whether to legalize marijuana within his first three years in office.

With the U.S. likely to formalize the laissez-faire attitude towards state legalization at the federal level—in June, President Donald Trump said he, would “probably” sign the STATES (Strengthening the Tenth Amendment Through Entrusting States) Act—North America could in effect become the first continent with legal recreational marijuana.

If marijuana becomes completely legal to the south and the north of us, the fear of missing out on those legal marijuana tax revenues may be enough to turn the tide.

On the other hand, there are still a couple of big stumbling blocks, not least of which is the U.S. Senate—which may find it politically unacceptable to make marijuana use more acceptable in any way. That also includes the regulatory agencies (the Drug Enforcement Administration, the Food and Drug Administration) which seem more interested in criminalizing kratom than legalizing cannabis.

Elsewhere, South Africa, Georgia (the Caucasus), China, and several other Asian nations also are considering legalization, mostly for medical marijuana. Even the United Nations’ World Health Organization is reviewing marijuana’s status as a controlled substance.

Mexico may go even further. There is a movement afoot to also legalize the medical use of opium to relieve pain and to further hurt the illegal drug traffickers who profit off opium-derived heroin.

Opium was brought to the U.S. by Chinese workers in the mid-19th century, then demonized during the anti-Chinese wave of the late 1870s-early 1880s, and made illegal by the Harrison Narcotics Act of 1914. Subsequently—in a pattern repeated following other attempts to prohibit or restrict substances—American addicts resorted to stronger opiates such as codeine, morphine, and heroin.

In a contest over the dangers of opium vs weed, opium is the clear winner. Despite marijuana’s Schedule 1 placement, it’s not a deadly drug. No one has ever died directly due to an overdose of marijuana alone. Opium itself is not as deadly as other opioids, such as heroin and fentanyl.

Then again, there’s even a movement to legalize and regulate heroin so that it will be of a known strength and purity (not laced with fentanyl) that is traced to marijuana’s legalization success. And fentanyl is legal for some conditions.

Opium isn’t the only drug receiving similar consideration. So are so-called “psychedelic”, hallucinogenic, or psychotropic drugs.

Oregon is considering a voters ballot initiative to legalize therapeutic uses of psilocybin, the ingredient in psychedelic or “magic” mushrooms. Like marijuana, it is illegal Schedule 1 drugs under the US federal Controlled Substances Act. Likewise, it and the party drug MDMA (Ecstasy) have been celebrated as “breakthrough therapy” for depression, post-traumatic stress disorder, and other psychological illnesses.

Digital tech workers and entrepreneurs in Silicon Valley have touted the benefits of microdosing LSD—small doses that produce no hallucinogenic effects—for creativity and treatment of depression although it, too, is a Schedule 1 drug. A placebo-controlled study is now underway in London.

Ibogaine and other psychedelics for the treatment—maybe cure—of addiction is similarly stymied by being confined to Schedule 1. Proponents—who have been around since the 1960s—say that one “trip” can remove addiction and the desire to use drugs again. Ibogaine is only legal in New Zealand, Brazil, and South Africa.

Meanwhile, kratom—an herbal substance related to coffee—is facing renewed criminalization by the FDA and DEA. Heretofore its status has been unclear. It is marketed as a “dietary supplement”, a class of product that “can go to market without any safety, purity, or quality testing by the FDA”.

Some users and scientists say kratom has opioid-like pain relief properties that are safer (no respiratory depression) than opioids. They want it regulated as a dietary supplement, not banned. It is is not mentioned at all by the United Nations Drug Conventions or US law, though it is controlled in several European Union and Asian nations, as well as Australia and New Zealand.

Prohibition doesn’t stop drug use. It only prevents the research evidence of their therapeutic effects that drug legalization opponents claim is lacking, as well as making the substances less safe and turning otherwise law-abiding citizens into criminals. It also can be politically motivated.

Stephen Bitsoli

Stephen Bitsoli

While many people use marijuana because they enjoy it, not for its medical benefits, that doesn’t mean it doesn’t have medical benefits, or that such enjoyment is necessarily a bad thing.

Marijuana legalization is long overdue, as is serious research into and consideration of other pharmacological solutions. If that legalization is a bellwether for more scientific and apolitical research, that is a good thing.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction treatment, politics, history, and related matters for several blogs. A lifelong avid reader, he loves learning and sharing what he’s learned. Readers’ comments are welcome.

from https://thecrimereport.org

Do We Need Roadside Marijuana Tests?

As the number of states allowing recreational or medical use of marijuana grows, law enforcement is gearing up for the challenge of detecting drivers who may be a danger to themselves or others. But it’s impossible to set an accepted standard for measuring impairment, argues a TCR’ columnist.

As more states approve recreational marijuana (Michigan) and medical marijuana (Missouri, Utah), how will law enforcement meet the challenge of marijuana-impaired driving?

That includes both the consequences—such as accidents, sometimes fatal—and the detection of drivers who may be impaired..

There are no reliable or accepted means of testing for driving under the influence of marijuana. One study found biases that distorted the results of the three studies most often cited by law enforcement to validate existing tests.

The problem: marijuana is not like alcohol.

While alcohol in the blood is a good measure of intoxication, THC in the blood is not. Because THC is stored in the fat, traces of it in the body long outlast their euphoric or impairing effects. Depending on which test is used and how often the driver uses marijuana, all you may be able to determine is if the driver used marijuana in the past few hours, days or even weeks.

Even so, law enforcement is exploring multiple alternative tests:

  • Marijuana breathalyzers. At least two are under development from Cannabix and Hound Labs.
  • Roadside saliva tests. Again there are two competing products in the works: the Draeger DrugTest 5000 and the Alere DDS2.
  • Lab analysis of blood, urine, and mouth swabs, such as used for DNA tests, at the police station.
  • The DRUID (DRiving Under the Influence of Drugs) app. Using a tablet, the driver performs simple tasks to measure reaction time, hand-eye coordination and balance.
  • Drug Recognition Experts (DREs). Police officers are trained in a 12-step method to determine intoxication.
  • Standard Field Sobriety Tests (SFSTs). Basically the same type of drunk test given for alcohol intoxication, measuring things such as eye movements, pupil dilation and the ability (or lack thereof) to walk a straight line.

The problem with all of the chemical tests for how much THC is in the body—breath, blood, saliva, urine—is that they are not accurate measures of the driver’s impairment.

The problem with DREs and SFSTs is that they are subjective. At least six states—including California where the test originated—don’t allow DREs to testify as experts in court.

In contrast, some police departments—including in Georgia’s Cobb County— trust the results of their DREs above scientific evidence. Even if there is no trace of marijuana in the bodily fluids—and these can last for days or weeks after last use—they still believe their DRE’s evaluation. (Polygraph proponents have a similar confidence in their methods, but many courts don’t accept them as evidence either.)

Another reason not to trust marijuana tests is false (or at least misleading) positives.

Cannabidiol (CBD) is a non-euphoric component of marijuana that is believed by many to have medical uses—maybe most or all of the benefits associated with medical marijuana—such as reducing chronic pain, anxiety, and preventing epileptic fits in children.

The last led to Food and Drug Administration approval for the CBD drug Epidiolex.

CBD cannot get you high, but its legal status, aside from Epidiolex, is hazy. Some states that haven’t approved medical marijuana have nonetheless approved CBD. According to some sources, CBD is legal under federal law as well and under UN Conventions.

Sometimes it isn’t considered a drug at all, only an herbal remedy like many sold in health food stores and unregulated. It is sometimes found in other places, too, such as gas stations and marijuana dispensaries.

The CBD sold in marijuana dispensaries likely has better quality control. You’re more likely to get what you’re asking for. In less regulated settings, it could contain more THC than claimed or even synthetic marijuana, also known as Spice or K2.

Caveat emptor.

The problem with CBD and drug testing is that since CBD does contain at least a trace amount of THC—though no more than 0.3 percent—a test for marijuana may detect that tiny, tiny amount.

It’s not clear how necessary it is to test for marijuana, however. While some reports from states that have legalized recreational marijuana claim there is a large increase in the number of accidents, fatal and otherwise, since legalization, and of drivers with THC detected at the time of their accidents or impairment, they do not control for all variables and are not always accepted as legitimate.

The National Highway Traffic Safety Administration (NHTSA) did try to control all variables for a “crash-risk” study—“the first large-scale study in the United States to include drugs other than alcohol”—included in its July 2017 Marijuana-Impaired Driving: A Report to Congress.

The study—for which “research teams responded to crashes 24 hours a day, seven days a week over a 20-month period” in Virginia Beach, Virginia—controlled for the presence of alcohol and other drugs, “the demographic variable of age, gender, and race/ethnicity,” plus location and time of day.

Its conclusion: “There was no increased risk of crash involvement found over alcohol or drug-free drivers.”

Much more common was the risk of crash involvement when the driver tested positive for a combination of prescription drugs or alcohol and marijuana.

The NHTSA study isn’t perfect. Virginia is not a state that allows recreational cannabis use. It’s possible that where it is allowed, greater use results in greater problems. So far it doesn’t seem to be a major problem in California, however; nor is marijuana dependency a strain on the state’s top-rated addiction treatment centers.

An alarmist news story warning of possibly increasing cannabis-related auto accidents in the Bay area admitted that there have been no deaths there due to traffic collisions involving a “cannabis-only DUI arrest.”

Los Angeles County in California did have two convictions for fatal wrecks in which marijuana was the only substance detected since 2016, but deaths from alcohol-only DUIs are far higher.

Marijuana impairment tends to have the opposite effect of alcohol. Drivers tend to be more cautious, go slower, keep more distance between the car ahead of them, and don’t try to overtake them. Even at higher speeds, though lane control is poorer than with sober drivers, they still recognize road signs and can change lanes and respond to road hazards. In fact, according to one analysis, “low concentrations of THC do not increase the rate of accidents, and may even decrease them”.

However, high concentrations of THC or, when it is used in conjunction with alcohol, result “in impairment even at doses that would be insignificant were they of either drug alone.”

Another study—Driving While Stoned: Issues and Policy Options, from De Gruyter’s Journal of Drug Policy Analysis—concluded that “The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone”.

The authors recommend “criminalizing only combination use”—that is, when marijuana is combined with prescription pills, alcohol, or other intoxicants—“while treating driving under the influence of cannabis… as a traffic offense, like speeding”.

Stephen Bitsoli

Stephen Bitsoli

No one suggests law enforcement should look the other way when a stoned driver crosses their path, and let’s hope a reliable and accurate test is developed, but that’s no reason to oppose marijuana legalization.

So far it looks like it is less of a concern than those opponents would like us to believe.

Stephen Bitsoli writes on drug policy, addiction, and related subjects for several websites. A former journalist and a lifelong reader, Stephen loves learning and sharing what he’s learned. He welcomes readers’ comments.

from https://thecrimereport.org

Why the Marijuana Wars Now Include Hemp

If Colorado voters next week approve a technical change in the definition of “industrial hemp,” they may set in motion a nationwide effort to regulate a substance that has long occupied a quasi-legal gray area in America’s drug wars.

Next week, on Nov. 6, voters in seven states will weigh in on marijuana-related initiatives on the ballot. But one of those seven states—Colorado—has already legalized medical and recreational marijuana.

So what’s left to decide?

In a word: hemp.

hemp

Hemp plant. Photo by Vitaly via Flickr

Hemp is a specific kind of cannabis sativa. You could call it a “close sister” of marijuana, and it has occupied a quasi-legal gray area ever since the drug war began.

In Colorado, the proposed “Amendment X” to the state constitution is actually a follow-up to the original law passed in 2012 after voters approved marijuana legalization. Voters will be asked to support a re-definition of “industrial hemp” which, in the constitution, is currently defined as a “plant with a delta-9 tetrahydrocannabinol (THC) concentration that does not exceed three-tenths percent on a dry weight basis.”

The amendment proposes changing that definition to read that hemp “has the same meaning as it is defined in federal law or as the term is defined in Colorado statute.”

Why bother? According to Colorado Sen. Steve Fenberg, a co-sponsor of the measure, it would give farmers and the emerging cannabis industry in the state the necessary flexibility to stay competitive if federal laws regarding hemp change by increasing the percentage of THC.

But the focus on economic motives shouldn’t detract from the more interesting point about hemp’s place in the marijuana wars.

While there are certainly crazed hemp advocates out there who want to wear marijuana clothing, hemp is non-psychoactive. You could smoke it forever and never get high, but no one is advocating smoking hemp.

Hemp is useful as a fiber. It has been used for rope, among other things. George Washington grew hemp.

The main difference between the hemp variety of c. sativa and marijuana is that hemp contains almost no THC. But that “almost” has made marijuana foes oppose hemp cultivation.

One of the reasons that so many people want to cultivate hemp is that, while it contains negligible amounts of THC, it has large amounts of CBD—cannabidiol – a useful chemical that is also found in marijuana. Proponents believe it has numerous benefits including pain relief. The benefits of medical marijuana are derived from CBD, which can be extracted from hemp.

In fact, it is. That’s where the quasi-legal gray area comes in.

CBD is non-psychoactive. It is not considered or treated as a drug. It’s regulated—or more accurately not regulated—like many of the herbal supplements found in natural food and vitamin stores, where it is derived exclusively from hemp. It also is sold in medical marijuana dispensaries and shops, usually derived from marijuana.

A Drug Enforcement Agency (DEA) spokesperson actually said, “Hemp is a made-up word,” perhaps meaning as a legal concept, since the word has a long etymology—certainly older than the 1971 Controlled Substances Act. (I recall a pirate poem where a buccaneer bragged that “the hemp that will hang me hasn’t been grown.”)

On the other hand, a May 2018 internal directive from DEA suggests that hemp-derived CBD might be legal.

Why bother making CBD from marijuana? Because medical marijuana advocates believe that CBD has better effects when it contains a little bit of THC. They cite evidence of an “entourage effect,” where the two chemicals interact and produce better results. In the same way, some advocates believe whole marijuana rather than just CBD works better.

CBD and THC are only two of the dozens, maybe hundreds, of cannabinoids in marijuana.

CBD’s legality, even without THC, is as murky as hemp if not more so. If you read some websites (often those that sell CBD products), they claim it is 100 percent legal. Others say it is exactly as illegal as marijuana at the federal level (although several states that don’t allow even medical marijuana have approved CBD).

Under the provisions of the federal 2014 Farm Bill, hemp may be legally grown only as part of a pilot program for research purposes in a few states (though the upcoming and overdue new farm bill may expand it). Since CBD can only be extracted from marijuana or hemp, and since those plants can’t be legally cultivated under federal law, CDB can’t be legally sold or marketed or even mailed.

Marijuana is still a Schedule I drug under the Controlled Substances Act—meaning among other things, that it has no recognized medical benefits or safe usages. Until recently, CBD as a component of marijuana was considered likewise worthless and dangerous, with opponents citing the DEA and Food and Drug Administration (FDA) lack of findings as evidence: Since they hadn’t found that there are medical or safe usages, there aren’t any.

Now the FDA has changed the game by approving Epidiolex, a childhood epilepsy drug containing CBD.

The DEA quietly went along with the FDA decision and moved Epidiolex to Schedule V, the least restrictive schedule of the CSA (while leaving CBD itself on Schedule I). That was just a recognition of what the National Institute on Drug Abuse (NIDA) concluded in 2015: “CBD appears to be a safe drug with no addictive effects, and the preliminary data suggest that it may have therapeutic value for a number of medical conditions.”

The United Nations World Health Organization (WHO) made a similar finding last year, writing that “In humans, CBD exhibits no effects indicative of any abuse or dependence potential.”

Not only is there no evidence that CBD is addictive, but it may even provide opiate addiction help by offering an alternative to highly addictive painkillers, including opiates such as heroin and morphine or synthetic opioids such as oxycodone, hydrocodone, and fentanyl. That’s the finding of three recent studies.

The U.S. government actually has a patent on CBD based on the National Institutes of Health’s expectations for or potential of CBD, including for the treatment of Alzheimer’s, Parkinson’s and HIV-caused dementia, stroke, glaucoma, and seizures.

The lack of regulation means you can’t be sure what you are getting when you purchase so-called CBD products, however. According to a Consumer Reports study, less than a third of CBD products purchased online contained the stated amounts of CBD. “Some didn’t contain any CBD, while others were found to also have THC”.

Regardless of its efficacy or legality, the laws regarding usage and sales of CBD are rarely enforced, but there are exceptions.

In 2017, marijuana dispensaries in Alaska were selling CBD products while waiting for legalization to go into effect. On Feb. 9, law enforcement officers seized all of them in a multi-city bust for violating state “testing and packaging requirements,” without the paperwork that would have allowed the owners to possibly recover their property later.

No arrests were made, and other stores where the products were likewise sold—natural food and health stores—were left alone. That suggests it was more of a harassing action than a legal one.

In Ohio, following the initiation of its new medical marijuana program, CBD sales—which had been allowed for years—have become restricted to licensed marijuana dispensaries. To be fair, CBD products found at dispensaries are more likely to be what they say they are.

The lack of regulation and quality control is troublesome, but the solution is to legalize and regulate CBD—as 17 states have done—not semi-regulate or selectively enforce.

In June, President Donald Trump indicated he would “probably” sign a bill allowing each state to set its own marijuana policy without interference from the federal government—formalizing the Obama administration’s policy and Trump’s own campaign promise.

But that’s not quite legalization, and technically might not include CBD.

One thing that might improve CBD and marijuana’s odds is revenue. If they are legal, U.S. companies can monetize them, and the federal government can collect more taxes.

Stephen Bitsoli

Stephen Bitsoli

Canada just legalized marijuana and therefore can monetize it. Already our northern neighbor had been shipping cannabis around the world, supplying Germany’s pilot medical marijuana program for one.

Now Canada is eyeing the CBD market. Coca-Cola is considering a line of “functional wellness beverages” with CBD, too.

Stephen Bitsoli is a frequent commentator for The Crime Report and other websites on drug policy, addiction and related subjects. A former journalist and a lifelong reader, Stephen loves learning and sharing what he’s learned. Readers’ comments are welcome.

from https://thecrimereport.org

A Pre-Election Primer: Criminal Justice and the Midterms

Victims’ rights, gun violence  and—no surprise— marijuana legalization are among the criminal justice issues appearing on state ballots in next month’s midterm elections. Here’s why you should pay attention to the outcomes.

Victims’ rights, firearms restrictions, civil rights for returning citizens, mandatory mental health training for police—and, once again, marijuana legalization— are all on state ballots for next month’s midterm elections.

While the list of criminal justice issues represents a lower number than in previous election cycles—they make up only a small percentage of the 157 initiatives presented to voters in 37 states this November—the outcomes could have a major impact on justice systems in some key states, such as Washington and Florida.

And some observers believe they could have national resonance in the political landscape shaping up for the presidential race in 2020.

“I can’t say [criminal justice] is playing a bigger role than previous elections,” said Robin Olsen, a senior policy associate who works on criminal justice reform at the Urban Institute. But, she adds, justice issues will continue to play a “big role” in many congressional and gubernatorial races as well as ballot initiatives across the U.S.

Unlike the 2016 federal election, when tough-on-crime rhetoric and warnings of a surging national crime wave stoked partisan battles, the pre-election debates on justice are more narrowly focused on issues of local concern—even as they reflect the same deep ideological divisions affecting the country over the past two years.

That underscores what is likely to be one key takeaway of the midterm vote.

While criminal justice remains fundamentally a state and local issue in the U.S., the midterm vote will shape and influence the bipartisan coalition for federal justice reform in the next Congress, according to Holly Harris, executive director of the Justice Action Network, a bipartisan national lobby group for federal and local justice reform.

Noting that widespread popular support has fueled justice reform initiatives in some 30 states over the past decade, Harris said “criminal justice reform issues poll very well,” with voters especially concerned with the rising number of opioid overdose deaths and mass incarceration.

“If I’m an incumbent in this election cycle, I would be concerned with not supporting criminal justice reform,” Harris told The Crime Report. “The American people are frustrated with Washington’s inability to move forward (on federal legislation), even as states have passed criminal justice bills.”

Here’s a snapshot of some of the most significant initiatives on state ballots next month, and why they matter.

Gun Control at the Grassroots

Probably the foremost example of the interplay between national justice concerns and local issues is gun violence, which some commentators have called the defining issue in many congressional races.

According to a poll conducted by Global Strategy Group for Giffords PAC, a group that backs stricter gun laws, Democrats’ advantage over Republicans in competitive swing House districts increases from a three-point lead to a 10-point lead when they focus on gun violence prevention.

guns

Shooter at a gun club. Photo by Peretz Partensky via Flickr

That’s one reason why former New York Mayor Michael Bloomberg’s gun control advocacy group, Everytown for Gun Safety, is investing $5 million in a digital ad campaign targeting 15 “Red to Blue” House races. And, fueled by the widespread emotional sympathy for the student survivors of the Parkland, Fl., school shooting, who have crisscrossed the country lobbying for greater restrictions on firearms, the issue continued to pick up traction this fall.

A bellwether battle is shaping up over Initiative 1639 in Washington State, which would ban people under 21 from buying semi-automatic assault rifles and increase background checks for those types of weapons. Background checks would include a local law enforcement check of the most up-to-date local court, criminal and mental health records, and the completion of a firearm safety training course.

The initiative, modeled in part after Connecticut’s strict gun laws, also proposes creating standards for holding gun owners accountable if children or other prohibited people injure themselves or others with an insecurely stored firearm.

The National Rifle Association (NRA), the country’s leading anti-gun control lobby group, has so far spent one-tenth of what it had spent during the 2014 midterms, according to the most recent filings with the Federal Election Commission,  but it has thrown its heavyweight support behind opponents of 1639.

The initiative is a “fraud being perpetrated on the good people of Washington State,” the Washington Arms Collectors, a member of the coalition fighting 1639 wrote in a statement provided to The Crime Report by the group’s director of operations, Wayne Rankin.

“They will tell you it’s about public safety, but it will do nothing to stop a single crime,” Rankin added. “This initiative has nothing to do with assault weapons and is directed only at our good citizens who already pass multiple background checks before owning a firearm.”

According to a mid-October poll, some 59 percent of registered voters now support the initiative.

Curbing Police Misconduct

Washington state is also the stage for another ballot battle fueled by concerns over police use of force. Initiative 940, which bears the ungainly title of “Police Training and Criminal Liability in Cases of Deadly Force,” would require law enforcement officers to obtain violence deescalation and mental health training to help officers resolve conflicts without using physical or deadly force.

The measure, if passed, would create a good faith test to determine when the use of deadly force by police is justifiable, and it would remove the requirement currently on the state books that prosecutors show that a law enforcement officer acted “with malice” to be convicted in a deadly force incident.

police

Photo by Carl Wycoff via Flickr

The so-called “Deescalate Washington” initiative has divided many former allies in the cause of police reform. Some community groups prefer to wait for what they hope will be more effective legislation under consideration by state lawmakers—effectively putting them in the same camp as police groups who oppose the initiative.

Although deescalation training is now widely accepted by national police organizations like the Police Executive Research Forum (PERF) and the International Association of Chiefs of Police, and is already part of the training for major city police agencies like the New York Police Department,  some police see such mandates as another step in efforts to handcuff  law enforcement.

“They purport that 940 is about training, which is nonsense,” Seattle Officer Mike Solan, president of the Council of Metropolitan Police and Sheriffs and the campaign manager for the Coalition for a Safer Washington, told local media.

“Its true intent is to make political prosecution of police officers.”

A poll in February showed more than two-thirds of Washington voters were in favor of an earlier version of I-940.

Supporters place it in the wider context of the national movement to hold police accountable and tackle implicit bias in law enforcement.

“We have heard so many stories of loss and violence over the years, particularly in communities of color and with people with disabilities, Tim Reynon and Kim Mosolf, members of the Deescalate Washington group, wrote in the Seattle Times.

“In Washington, African Americans and Latinos are killed by police at vastly disproportionate rates; Native Americans at a rate higher than any other group.”

Immigration Opponents Target Sanctuary Laws

Immigration is one of the most emotional issues of the midterm elections in the wake of President Donald Trump’s hardline stance on immigration and the separation of families at the borders. Almost 13,000 migrant children are detained in federally contracted shelters, reaching a record high, The New York Times reported last month.

Many states and cities have established themselves as “sanctuaries” where local enforcement refuses to assist federal immigration authorities in identifying and detaining undocumented immigrants. In response, Washington has threatened to cut off federal law enforcement funding to jurisdictions that don’t go along with its get-tough policies.

immigration protest

Los Angeles march for immigrant rights, 2013. Photo by Molly Adams via Flickr

A major challenge to the sanctuary concept is now playing out in Oregon, where a proposed Measure 105 would axe a 31-year-old law passed with bipartisan support barring state and local police agencies from assisting in federal immigration enforcement.

“If Oregon’s sanctuary law gets repealed, it could become an even larger part of the Republican Party’s agenda as the GOP looks to the 2020 presidential race and beyond,” said Oregon media commentator Conrad Wilson.

Both supporters and opponents also see the measure, in effect, as a referendum on President Trump’s immigration policies, and commentators say the results could have national implications, according to governing.com.

“We need to win this campaign—and win it big—so we don’t see similar measures like it popping up [across] the country,” Peter Zuckerman, a spokesman for the “No on 105” campaign from Oregonians Against Profiling was quoted as saying. “By voting no, we can show that Oregon wants no part in the immigration policies of [U.S. Attorney General] Jeff Sessions and Donald Trump.”

A recent poll of likely Oregon voters from the Hoffman Research Group of Portland found that just 31 percent support repealing the sanctuary law, while 50 percent oppose repeal.

One group fighting against the proposal is Causa, an immigrant rights organization.

“Immigrants or people perceived to be immigrants would be especially harmed by [the proposal], but [it] would make us all less safe,” Andrea Williams said, Causa’s executive director.

“Trust is the foundation of good policing. But when police play the role of federal immigration agents, many immigrants will be too afraid to call them, cooperate with them or show up to testify.”

Oregonians for Immigration Reform—the organization that worked to get Measure 105 on the ballot—has been identified by The Southern Poverty Law Center as a hate group.

But Jim Ludwick, the organization’s communications director, rejects the designation.

“We support environmentally sustainable legal immigration,” Ludwick said. “We want to control crime and congestion in an already congested nation, but [opponents of the proposal] want open borders, and they call anybody who supports the rule of law as a hate group.”

Battling the Opioid Crisis

 Each day, more than 115 people across the nation die after overdosing on opioids, according to the National Institute on Drug Abuse, and a  recent analysis by the Wall Street Journal found that ads mentioning the opioid crisis have aired more than 50,000 times in congressional and gubernatorial races across 25 states, compared to 70 times just four years ago.

There has been an increased push to treat instead of punish those battling opioid addiction, as more Americans view prescription drug addiction as a disease.

opioids

Photo courtesy US Department of Agriculture via Flickr

In Ohio, which is among the top five states with the highest rates of opioid-related overdose deaths, a proposed amendment to the state’s constitution, placed on the ballot as State Issue 1, will provide a test case of whether such ideas have traction with voters.

State Issue 1 mandates that criminal offenses of obtaining, possessing, or using any drug such as fentanyl, heroin, methamphetamine, cocaine, LSD, and other controlled substances be classified as a misdemeanor rather than a felony.

The proposal also calls for reduced sentences for incarcerated individuals—except for those imprisoned for murder, rape, or child molestation—by up to 25 percent if they participate in rehabilitative, work, or educational programming.

A recent poll showed that a near majority of voters support the amendment. However, some of the measures most power opponents, including the chief justice on the state’s supreme court, warn that it could backfire.

“I believe as a result of this amendment, should it pass, people will die,” said Chief Justice Maureen O’Connor.

Supporters, however, say it’s long overdue.

“There is so much investment in punishing people and locking them up in prison cells and so little investment in the healing that people need to transform their lives,” said Stephen Johnsongrove of the Ohio Justice & Policy Center.

Marijuana, Again

Turning to other drug-related issues, the movement for marijuana legalization continues to gain traction. This fall, voters in Michigan and North Dakota will decide whether to legalize recreational weed, and Missouri and Utah voters will weigh in on medical marijuana use. If all four measures pass, it bring to 43 the number of states where some form of marijuana use is legal (32 medical marijuana and 11 recreational).

marijuana protest

Photo by Chris Yarzab via Flickr

Missouri actually has three separate propositions related to medical marijuana on its November ballot, offering voters a menu of policy choices. The proposed constitutional Amendment 2 would allow state-licensed physicians to recommend medical cannabis to patients with qualifying condition, and exact a 4 percent tax (the revenue would be used for providing healthcare to veterans).

Amendment 3 would also legalize medical cannabis, but would carry a 15 percent sales tax on sales of the drug. Proposition C, not a constitutional amendment, would  legalize marijuana prescriptions to patients with qualifying conditions, with a tax of 2 percent.

The Utah medical marijuana initiative, spearheaded by the Utah Patients Coalition, has run into opposition from the Utah Medical Association, which warns it would become a gateway to recreational use.

“Foremost, citizen initiatives are a terrible way to decide what is and is not medicine,” Mark Fotheringham, the association’s vice president of communications, told The Crime Report.

The Rights of the Formerly Incarcerated

Since the last presidential election, a movement to champion the civil rights of returning citizens has expanded steadily from “ban the box” measures aimed at striking questions about former convictions from employment applications to ending employment and housing restrictions and restoring the right to vote.

Florida

Photo by Joelk75 via Flickr

One of the last holdouts to that movement has been Florida. Amendment 4 on the state’s ballot is an effort to rectify that.

But surprisingly it is running into opposition from both sides of the ideological divide.

The amendment would automatically restore the right to vote for people with prior felony convictions upon completion of their sentences—excluding those convicted of murder or a felony sexual offense.

The exclusions are one reason why some prisoner rights advocates are pushing back against it.

“We oppose these divide-and-conquer type tactics that single people out based on offense category,” said Paul Wright, editor of Prison Legal News and director of the Human Rights Defense Center, who was convicted of murder in 1987 and spent nearly 20 years in prison.

“If you look at other movements—like the LGBT Movement—they didn’t leave anybody behind. Right now, you can be a gay serial killer on death row and still be able to marry the person of your choice.”

Given that Florida’s vote in the national elections has historically been decided by a narrow margin of voters, the expected number of new voters—some 1.5 million people—has focused the attention of both parties.

That’s why, although Amendment 4 was originally backed by Republicans as well as Democrats, there are now signs of blowback from some GOP strategists who, thinking ahead to the presidential election in 2022, worry that it will put into play a large number of voters who are likely to vote Democratic.

A September survey shows that the ‘yes’ votes have a strong edge.

Politics and Crime

Taking a different tack entirely, a proposed amendment to the Louisiana constitution would prohibit convicted felons from seeking or holding public office until five years after the completion of their sentences, unless pardoned.

That would effectively tweak a 2016 court ruling in 2016 which allowed convicted felons unlimited rights to seek and hold a public office in Louisiana.

Supporters of the measure say it is intended to restore trust in the political system.

“I think there is a certain amount of integrity that is necessary in the political world to develop trust of the people,” said Republican state Sen. Conrad Appel, who sponsored the legislation that put the proposal on the ballot.

Some commentators say the prime motivating factor behind the amendment is to counter Louisiana’s notorious record for political corruption

“We as elected officials want the voters’ faith and trust,” Appel said. “We have to earn that trust, and if we violate it, we should not be in a position to throw it back in your face.”

The earlier court ruling in fact overturned a long-term precedent which required convicted felons to wait at least 15 years before seeking public office.

Ending Jim Crow Juries

But another Louisiana amendment is aimed at bringing the state’s court system in line with the rest of America. The proposed Constitutional Amendment 2 in Louisiana calls for jurors to reach a unanimous verdict, rather than just a majority 10 of 12 jurors, to convict people charged with felonies.

jury

Photo by Patrick Feller, via Flickr

The current system represents a last holdout of Jim Crow-era laws that were passed across the south in response to the post-Civil War movements to enshrine full citizenship and voting rights for African Americans.

Critics say the “split jury” system continues to be a source of shame for the state, and a monument to white supremacy.

According to a review of nearly 1,000 Louisiana felony trials from 2011 to 2016, by the Advocate newspaper, about 40 percent of convictions by 12-member juries had one or two holdout jurors. Black defendants were about 30 percent more likely to be convicted in non-unanimous verdicts than white defendants, the newspaper found.

If the Louisiana measure passes, Oregon will be the only other state that doesn’t require a unanimous verdict for conviction.

Victims’ Rights

Florida, Georgia, North Carolina, Oklahoma, Kentucky, and Nevada are proposing to expand the rights of crime victims to their state constitutions in separate amendments. Some proposals would enshrine the right of crime victims to receive to receive timely notification of changes to the offender’s custodial status; others call for the right to be heard at plea or sentencing proceedings or any process that may result in the offender’s release; and the right to restitution.

The effort is aimed at expanding the reach of a 2008 California statute called Marsy’s Law, formally known as the Victims Bill of Rights Act, and it worries the American Civil Liberties Union, which argues that such statutes would undermine due process.

Marsy's Law

Photo courtesy Wikipedia

Marsy’s Law is named for Marsalee (Marsy) Nicholas, a University of California-Santa Barbara student killed by her ex-boyfriend in 1983. California legislators were moved to act after her mother, Marcella Leach, encountered the accused killer in a grocery store. Supporters said Leach should have been warned that he was released on bail.

Her story “is typical of the pain and suffering the family members of murder victims have endured,” says the website put up by supporters of the original California measure.

“She was not informed because the courts and law enforcement, though well-meaning, had no obligation to keep her informed.

“While criminals have more than 20 individuals rights spelled out in the U.S. Constitution, the surviving family members of murder victims have none.”

The ACLU says the law is well-intentioned, but ultimately unconstitutional.

“Marsy’s Law is premised on the notion that victims should have ‘equal rights’ to defendants,” the ACLU says on its website. “This…is a seductive appeal to one’s sense of fairness. However, the notion that victims’ rights can be equated to the rights of the accused is a fallacy.

Gabriel Ware

J. Gabriel Ware

“It ignores the very different purposes these two sets of rights serve.”

Some victims’ rights advocates have argued that victims would be better served by more funding for victims’ services, such as programs that help victims of sexual violence.

J. Gabriel Ware is a TCR news intern. He welcomes comments from readers.

from https://thecrimereport.org

Five Ex-NYC Commissioners Call for End to Pot Testing of Probationers

Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped—even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday in testimony to the New York State Assembly.

Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday.

The five former commissioners—Martin F. Horn, Michael Jacobson, James Payne, Raul Russi and Vincent N. Schiraldi—said research showed that revocations of parole as a result of failed marijuana tests were a major driver of high incarceration rates and disproportionately affected African-American and Hispanic individuals.

“What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens,” the ex-commissioners said in a written statement presented to the New York State Assembly’s Standing Committees on Codes, Health, Governmental Operations, and Alcoholism and Drug Abuse.

“As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.”

Vincent Schiraldi

Former NYC Probation Chief Vincent Schiraldi

The statement, read by Schiraldi, called specifically for New York legislators to “codify” the ban on marijuana testing as New York prepares to draft a bill to legalize all forms of marijuana use, including recreational.

If the bill passes, New York would be the 10th state—and the second most populous state after California—to legalize recreational pot.

Marijuana for medical use is already legal in New York State.

The commissioners said the possibility of full marijuana legalization in New York only makes it more imperative to end a practice that has effectively undermined the state’s success in reducing prison populations.

Despite the closure of 13 New York prisons and a 39 per cent reduction in the inmate population between 1999 and 2017, prison admissions for parole violations increased by 21 percent between 2015 and 2016 alone, the commissioners said.

They noted that the vast majority of those sent back to prison were found guilty of technical violations, and in many cases, those violations were related to either failures in drug tests or absconding from probation and parole because of fear they would fail a drug test.

“Anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test,” the statement said. “Thus fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.”

Below is an edited version of the written statement, presented by Vincent Schiraldi.

Good morning:

Today we hope to provide evidence about how those on probation and parole should be treated if marijuana is taxed, regulated and legally consumed. Our professional lives have helped us reach the conclusion that testing for marijuana as a blanket condition of supervision serves little public safety purpose, even absent legalization. If marijuana consumption ceases to be a criminal act, we urge you to codify protections for those under supervision to prevent needless incarceration for actions that would be legal for anyone else.

We begin with a quote from New York Federal Judge Jack Weinstein from July. Rather than revoking community supervision for marijuana use for an otherwise compliant defendant, Judge Weinstein decided to end his supervision, explaining that he would no longer revoke people for marijuana consumption, writing:

Like many federal trial judges, I have been terminating supervision for “violations” by individuals with long-term marijuana habits who are otherwise rehabilitated. No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.

We argue that the same reasoning Judge Weinstein used in Brooklyn Federal Court should apply to those on probation and parole in New York.

The Growth in Scope and Burden of Community Supervision

First, [here is some] background on the growth of probation and parole in the United States, and on the burden that conditions of community supervision can pose to those required to abide by them.

Both probation and parole were created in the 1800s as an up-front diversion from incarceration in the case of probation, or as a back-end reward for good behavior in the case of parole. Both have since mushroomed right alongside prisons and jails, suggesting that they have become add-ons, rather than alternatives to, incarceration.

There are over four and a half million adults under supervision in America—more than double the number incarcerated. This is more than a three-fold expansion since 1980 and is more people than live in half of all U.S. states.

Former NYC Probation Commissioner Martin Horn

The nature of community corrections has changed, as well. Like the entire criminal justice system, probation and parole have become more focused on punishment, deterrence, and surveillance, than rehabilitation. The number of rules that individuals under community supervision must abide by have ballooned.

Recent reviews of supervision conditions have found that most jurisdictions have around 15 “standard” conditions, with the possibility of additional “special” conditions; thus creating a rule structure that can be nearly impossible to abide by, 100 percent of the time.

This has led the leading probation and parole organizations and 35 leading probation officials to sign on to a Statement on the Future of Community Corrections stating “community corrections has become a significant contributor to mass incarceration… [and] we recommend that the number of people on probation and parole supervision in America be significantly reduced.”

Thus, community supervision has become not only a deprivation of liberty in its own right, but also a substantial contributor to mass incarceration. Setting conditions, which in many cases cannot be met, contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between community supervision and incarceration without improving public safety.

Trends of Mass Incarceration and Mass Supervision in New York State

Turning to New York, over the past two decades, our state has been a leader in reducing incarceration and closing prisons, driven by a reduction in prison commitments from New York City. There was a 31 percent reduction in the number of people in New York’s prisons between 1999 and 2017, allowing us to close 13 prisons and save over $160 million annually.

However, while the prison and community supervision populations have been shrinking, the number of people incarcerated on parole violations in state prisons and in city and county jails has been growing. Between 2015 and 2016 alone, our prison admissions for parole violations increased by 21 percent .

Michael Jacobson

Former NYC Probation Commissioner Michael Jacobson. photo by dan@danzphoto.net

In fact, for every ten people who successfully completed their parole in New York in 2016, nine ended parole by being incarcerated, ranking us seventh nationally in parole failure. That year, nearly half of all New York parole exits were to incarceration, compared to only 27 percent nationally.

New Yorkers released on parole are five times more likely to return to incarceration not for new convictions, but for violating parole. Within three years of their release, more than half of those released from our state’s prisons in 2012 had been reincarcerated. Of those, an overwhelming 84 percent were reincarcerated for a technical violation, while only 16 percent had returned because of a new crime.

This also impacts the city’s jail. State and city leaders generally agree that Rikers Island should be closed, and all other pretrial and sentenced populations have declined by double-digits at Rikers over the past four years. During that time, only one population in the jail has increased, also by double digits: people held for state parole violations.

These sanctions fall more heavily on African-Americans than whites. African-Americans on parole are more than 12 times as likely to be detained for a parole violation than a white person on parole in New York City.

The Disconnect between Marijuana, Testing, Violations and Public Safety

So, probation and parole have become much larger than originally intended, with burdensome conditions that serve as tripwires to incarceration rather than as alternatives. In New York, parole revocations are still exerting upward pressure on incarceration especially for people of color.

 Now, let’s look specifically at revocations for marijuana use.

In short, there is no compelling evidence to suggest that marijuana use threatens public safety. As NYPD Commissioner James O’Neill wrote in a New York Daily News op ed recently “[t]he NYPD sees zero value in arresting people for marijuana offenses when those arrests have no direct impact on public safety.”

Likewise, there is no public safety justification for routine testing for marijuana as a condition of probation or parole. What research does exist suggests that drug testing as a component of community supervision increases the likelihood of incarceration for violations, but does not reduce criminal behavior.

However, there is an established link between drug testing and absconding from probation or parole. This is confirmed by our experience as Commissioners – anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test. Thus, fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.

Furthermore, as the New York State Health Department’s report on marijuana legalization indicates, studies of some states that have legalized medical or recreational marijuana use have seen reductions in both opioid deaths and opioid prescribing. Heroin use ameliorates some of the same pain as marijuana, but also disappears from the bloodstream more quickly.

Testing for marijuana thus creates a perverse incentive – the riskier drug, heroin, is the one less likely to be detected. Once marijuana use is legal, we should make sure that those under community supervision don’t feel compelled to make this risky gamble.

Apart from these pragmatic reasons to avoid testing for a legalized substance, there are also legitimate fairness and racial justice concerns at hand. African Americans and Latinos are arrested for marijuana at eight and five times the rate of white people in New York City despite equal marijuana usage rates.

Since African Americans are eight times more likely to be arrested for marijuana use, and twelve times more likely to be detained for a parole violation, their chances of a violation for marijuana are much greater than for a white person.

As the (New York City) Health Department’s report stated, “Subject matter experts noted one of the biggest drivers of racial disparities in criminalization and incarceration rates is marijuana, and the best way to address it is to legalize marijuana.”

Recommendations

For all of these reasons, we recommend that, once marijuana is taxed, regulated and legally consumed, prohibition of marijuana use should not be imposed as a condition of probation or parole except in rare and specific circumstances. It follows then that people on probation and parole shouldn’t be routinely tested for it. We recommend that you codify these protections, but we also encourage state and local parole and probation to implement them now, prior to legalization.

In limited cases, we suggest that prohibition of marijuana use might be added as a special condition. However, in the interest of due process and to limit potential abuse, that condition should only be added by a judge, if an adversarial hearing finds that marijuana was connected to an individual’s criminal behavior, and in which the defendant has had a right to be heard.

Raul Russi

Former NYC Probation Commissioner Raul Russi

If a supervising officer suspects that a client’s marijuana use is hurting their ability to meet the other conditions of supervision, we suggest that, with supervisor approval, a single test for marijuana could be conducted. Data on testing for marijuana use, whether it be by supervisor approval or court order, should be reported to the Department of Criminal Justice Services so it can be monitored by this body and state officials.

In either of these special circumstances, we feel strongly that the outcome of testing for marijuana should never be used as the basis to revoke a person’s probation or parole. Instead, a positive test can be used for intervention, such as targeted treatment to aid successful completion. If these interventions fail, then only other problematic behavior, not marijuana use, should be the basis for revocation.

What we want is that people under supervision lead law abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine. This is similar to the practice in Oregon and Washington, where marijuana is legally consumed.

This has been done successfully in New York City.

When I was Probation Commissioner, we administratively stopped testing for marijuana. Revocations fell by 45 percent, our relationships between staff and clients improved, and only 4 percent of our clients were re-convicted for a felony in the year following their completion of probation.

If that’s already possible, why not leave it to the discretion of community corrections administrators?

Well, (former) Commissioner Horn was my immediate predecessor, and had also ceased testing for marijuana, experiencing the biggest drop in probationer arrests in the state. Yet, in just the few months that separated us, testing for marijuana crept back into the daily practice of the department. Protections of this sort need to be codified so they’re not left to the vicissitudes of changing bureaucracies.

There is little evidence that blanket policies of testing for marijuana serve any public safety purpose. [These policies] can actually work against a department’s efforts to rehabilitate its clients, and threaten to exacerbate already-stark racial disparities in our criminal justice system.

As Judge Weinstein wrote, “Many people from all walks of life now use marijuana without fear of adverse legal consequences…[But the criminal-justice system] can trap some defendants, particularly substance abusers, in a cycle where they oscillate between supervised release and prison.”

We urge you to codify protections against routine testing for marijuana and to prohibit revocations to incarceration for marijuana use. These protections do not endanger public safety, but do serve the liberty and rehabilitative interests of the individuals on probation and parole. Revocations for marijuana use made little sense before, and will make no sense once marijuana use is legal for the adult population.

The full statement, with all citations, is available here.

The five ex-commissioners who signed the Oct. 16 statement, and their current positions, are:

  •  Martin F. Horn, Distinguished Lecturer in Corrections at the John Jay College of Criminal Justice, City University of New York; former Commissioner the New York City Departments of Correction and Probation; former executive director of the New York State Division of Parole; and former Pennsylvania Secretary of Corrections.
  • Michael Jacobson, Director, Institute for State and Local Government, City University of New York (CUNY), Professor, Sociology Department CUNY Graduate Center; and former Commissioner of New York City Departments of Correction and Probation.
  • James Payne, criminal/juvenile justice consultant; former Commissioner of New York City Probation; former Manhattan Assistant District Attorney; and former Chief of the Juvenile Division of New York City Corporation Counsel.
  • Raul Russi, Chief Executive Officer, Acacia Network; former Commissioner of New York City Probation; former chairman of the New State Parole Board; and former Chief Executive Officer of the New York State Division of Parole.
  • Vincent N. Schiraldi, Co-Director, Columbia University Justice Lab; Senior Research Scientist, Columbia School of Social Work; former Commissioner, New York City Department of Probation; former Senior Advisor, New York City Mayor’s Office of Criminal Justice; former Director, Washington, DC’s Department of Youth Rehabilitation Services. 

Readers’ comments are welcome.

from https://thecrimereport.org

Legal Pot: Good for Public Safety, But Not for Mental Health?

Two new studies of the impact of state legalization of marijuana offer a mixed verdict. One uncovered an association between legal pot and increased crime clearance, while the other detected a correlation between legalization and the frequency of serious mental illnesses.

While the sale and possession of marijuana remain federal offenses, the state-level impact of legalization on public health and safety has been hotly debated.

Two new studies demonstrate that legalization can be a mixed bag: one finds a correlation between legalization and the frequency of serious mental illnesses, while the other uncovers an association between legalization and increased crime clearance.

Advocates have long asserted that police effectiveness would increase if marijuana were legal, because officers would have more time and resources to devote to other offenses.

In “Marijuana Legalization and Crime Clearance Rates: Testing Proponent Assertions in Colorado and Washington State,” researchers find that this claim holds up under scrutiny.

The paper, published this month in Police Quarterly, notes significant increases in the clearance rate—the ratio between the number of crimes solved and the total number of crimes recorded by the police—for violent crime in both Colorado and Washington state, the first two states to legalize recreational cannabis, following legalization.

The data did not allow the study’s authors to attribute the increased clearance rate to legalization or to posit why the observed trend occurred. But the timing and the lack of other probable explanations lead them to hypothesize that legalization did indeed enable officers to focus on other crimes.

Notably, national trends remained relatively flat during the time period examined, and there were no kinds of crime in either state for which legalization negatively impacted clearance rates.

The authors of the paper, all from Washington State University, were David A. Makin, Dale W. Willits, Guangzhen Wu, Kathryn O. DuBois, Ruibin Lu, Mary K. Stohr, Wendy Koslicki, Duane Stanton, Craig Hemmens, John Snyder and Nicholas P. Lovrich.

But if legalization boosts public safety, it appears to strike a small but not insignificant blow to mental health.

Medical Cannabis Legalization and State-Level Prevalence of Serious Mental Illness in the National Survey on Drug Use and Health 2008-2015,” published this month in the International Review of Psychiatry, finds that legalization is positively associated with instances of serious mental illness in states with “liberal” laws, i.e. laws permitting cannabis use for a broad range of medical conditions.

The prevalence of serious mental illnesses was 0.3 percent higher in states with liberal laws compared with other states once cannabis use was taken into account.

Previous research has linked high levels of cannabis consumption with psychotic disorders. Citing such studies, researchers hypothesize that legalization leads to increased use among state residents, which increases users’ likelihood of developing psychosis.

The study’s authors were Lauren M. Dutra, William J. Parish, Camille K. Gourdet , and Jennie L. Wiley, all of RTI International; and Sarah A. Wylie of the Oregon Health Authority.

Nearly half of Americans currently live in states where marijuana use is legal in some form. Authors from both studies stressed the need for further research to verify their claims and to determine what the effects of legalization truly are.

Elena Schwartz is a TCR news intern. Readers’ comments are welcome.

from https://thecrimereport.org

Pot Opponents, Legalization and Democracy

On Tuesday, marijuana officially became legal in Canada─adding momentum to a pro-pot campaign that now seems assured of success across the US. But last-ditch blocking efforts in states still wrestling with the issue only divert politicians from the need to develop regulations addressing safety and health concerns, writes an addiction expert.

In an essay in The Atlantic arguing that America is not a democracy─that is, that “public policy does not reflect the preferences of the majority of Americans”─the first example given is that, if it were, “Marijuana would be legal.”

If you disregard the fact that federal law still considers marijuana to be a dangerously addictive substance with no safe uses or medical benefits, medicinal cannabis is legal in more than half the nation: 29 states plus the District of Columbia.

Recreational use is legal in nine of those (plus DC), soon to be 10 when Vermont’s first-in-the-nation legislatively passed recreational cannabis law goes into effect on July 1.

Most of the marijuana legalization laws were passed by ballot initiative, a type of direct democracy that state legislatures and governors seem to hate. Even when they agree with the proposal, they’d rather do it themselves, lest the populace should think and act on its own.

When Marijuana Became Illegal

Marijuana was truly and completely banned with the adoption of the United Nations Single Convention on Narcotic Drugs of 1961, the Controlled Substances Act of 1970 (CSA), and the UN’s Convention on Psychotropic Substances of 1971, but the process began decade earlier.

Although marijuana was used in medicines in the US from the late 19th century through 1942, local laws in 29 states had already outlawed it by 1931. The Marihuana Tax Act of 1937 practically banned cannabis by making it too expensive, while the Boggs Act of 1952 and the Narcotics Control Act of 1956 established mandatory sentences for marijuana and other drug use.

The CSA established five “schedules” for controlled substances, with Schedule I representing the most irredeemable─”a high potential for abuse,” “no currently accepted medical use,” and no “accepted safety for use,” even “under medical supervision” ─and Schedule V the most benign.

(Alcohol and tobacco, two deadlier and more addictive substances, aren’t included in the CSA, though alcohol rehab and smoking cessation programs are much more needed than marijuana rehab.)

Marijuana is on Schedule I, along with heroin and LSD, while many of the most destructive and addictive drugs─including some contributing to the opioid epidemic─are on Schedule II (cocaine, the super-opioid fentanyl) or III (oxycodone, hydrocodone).

Why Marijuana Became Illegal

Marijuana─which has never caused a single overdose death, may not be physically addictive, and arguably has many potential medical benefits ─likely wound up on Schedule I due to politics. Journalist Dan Baum claims that in 1994 John Ehrlichman, President Richard Nixon’s Chief Domestic Advisor, said that marijuana was included to “disrupt” the leftist antiwar hippies.

The reason behind the criminalization of marijuana in the early 20th century may have been, in part at least, because of Mexican immigrants, some of whom smoked marijuana recreationally, and about what the drug might cause them to do. The name “marijuana” (cannabis had been used before) may have been chosen in an attempt to emphasize that otherness.

How Marijuana is Becoming Legal

Because the US government is a signatory to the UN treaties outlawing marijuana─largely at the behest of the US government─and other drugs, it is difficult for the feds to change marijuana’s status legally or politically, but the states don’t have that problem.

*A generation of casual users─who, by and large, haven’t suffered the kinds of infirmities warned of in films such as Marihuana: Weed with Roots in Hell (1936) and Reefer Madness (1938)─wants marijuana legalized.

Apart from knowing people’s lives are ruined for nonviolent marijuana-related offenses, these casual users also may realize how much money could be saved by not arresting, prosecuting and imprisoning them.

The legislatures and executives the People elected still resist the idea, so the People are going around their representatives through voter initiatives. Since the most gung-ho law enforcement politicians also tend to favor limiting federal control in favor of states’ rights, they are in a tough position.

In 1996, California became the first state post-CSA to legalize the medical use of marijuana. Sixteen years later the number had grown to 18 states (plus the District of Columbia), two of which also legalized recreational marijuana. By 2015, it was 23 states, plus four recreational (plus the District of Columbia).

The Tipping Point?

In 2016, along with the red wave that elected a businessman/TV star/outsider to the White House, voters in seven states passed marijuana legalization initiatives. The number of states allowing medical marijuana jumped past the 50 percent mark─28─and the number allowing recreational marijuana doubled to eight.

It seemed like a tipping point─or what a neoliberal think tank calls the Tide Effect─especially since on Tuesday, Canada under Prime Minister Justin Trudeau has now made marijuana fully legal.

Legalization has momentum.

This year, at least another four states seem certain to have marijuana legalization proposals on the ballot, with another three possible. Fear of direct democracy has led some opponents to try to disrupt the process. It seems to have been in vain. The people will decide.

Legislative Initiatives

Even though conservative lawmakers and governors might not like the idea of legalizing marijuana it can still be in their interest to pass a law themselves rather than wait for the people to speak. One reason is that marijuana legalization initiatives appeal more to liberal voters, who often stay home in a non-presidential election year.

In Michigan, the squabbles over enacting its medical marijuana laws may have given the pro-legalization forces the stimulus they need. The legislature, which doesn’t approve of marijuana─medicinal or recreational─dragged its feet and in general, tried to delay or prevent the establishment of regulated marijuana dispensaries.

Many dispensaries opened anyway, determined not to be thwarted by reactionary politicians who don’t agree with the will of the people. Then the legislature tried to make them close in order to qualify for a state license. Pro-cannabis supporters then gathered enough signatures to place a recreational marijuana initiative on the ballot.

The members of the state legislature hatched a plan. If they passed the proposal before the election, they could make it amend it, change it, put in place more restrictions. Perhaps they could do like Vermont─the only state so far to legislatively pass a recreational marijuana bill─and prevent the commercial development of a marijuana industry, only allowing possession and cultivation for personal use. Or ban smoking marijuana.

That would have been an end run around the will of the people─nothing new for this bicameral entity─but in the end, they couldn’t reach a consensus on what amendments to add. Now they’re just hoping the Michigan people don’t pass the initiative.

Missouri state officials also tried to settle the matter legislatively and also failed. Now they might face four separate medical marijuana initiatives on the ballot. At least one seems likely to pass, but more than one could pass, creating further headaches.

Petition Rescission

Cannabis opponents in Utah got even more creative. Again, enough signatures were gathered to put the bill on the ballot, but Utah─along with Florida─allows petition signature revocation or rescission. That is, if someone who has signed a petition for a statewide ballot initiative changes their mind, they may withdraw their signature.

Since the signatures also must come from almost all of the districts in the state─26 out of 29─if the margin of victory is slim enough (in a few districts the pro-marijuana petitions only had a few hundred votes to spare), this maneuver can knock a petition off the ballot. Professional canvassers were hired to go door-to-door and persuade enough of these signers to change their minds.

Unfortunately for the anti-marijuana supporters, in at least one case (caught on video), the persuasion included outright falsehoods. Purportedly a member of the Utah Medical Association (UMA), a prominent foe of the legislation, the canvasser said untrue, nonsensical and logically contradictory things in an effort to get a signature withdrawn.

UMA denies she worked for them (its main argument─that medical marijuana may lead to recreational legalization─wasn’t among her talking points), but the underhandedness of the attempt, freelance or hired, led even the Republican governor to conclude it was better to let the people decide.

Oklahoma’s governor came up with another method of minimizing the electoral damage of motivated liberals at the polls. Once he realized a medical marijuana initiative was likely to pass, he put the proposal on the June 26 primary election ballot instead of November’s.

Other States

Three more states that may have marijuana initiatives on the ballot in November, if they gather enough signatures in time:

  • Arizona narrowly failed to pass a recreational use initiative in 2016. This year it may have as many as three on the ballot if the petitions are completed by July 5. Gov. Doug Ducey is opposed to any change in the law, which is probably why a legislative proposal never passed.
  • North Dakota also may have a recreational use proposal on the ballot, coupled with creating “a process to automatically expunge the record of an individual who has a drug conviction for a controlled substance that has been legalized“.
  • Nebraskans may get to vote on a decriminalization and/or a full legalization initiatives.

Meanwhile, despite appointing an attorney general who is extremely antagonistic towards marijuana, President Trump seems to have resigned himself to eventual marijuana legalization. The World Health Organization, despite a strongly worded letter “warning” nations and states not to legalize marijuana, seems to be thinking likewise and may revise its cannabis rules over the next couple of years.

Stephen Bitsoli

Stephen Bitsoli

The worst thing about the current laws is that they don’t allow for proper regulation, safety testing, and health concerns. They can’t complain that there is no research when you are the one preventing research.

By abrogating their responsibilities, the world’s governments─the UN and the US especially─have forced the People’s hands.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.

from https://thecrimereport.org