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The Organization of American States (OAS) Friday released a ground-breaking report on hemispheric drug control that includes not only an assessment of the current state of affairs, but also looks at a number of alternate scenarios for future directions in drug policy, including explicit analysis of possible regulation and legalization regimes.
[image:1 align:left caption:true]The report comes even as the US military is expanding its drug war in Latin America.The military is deploying assets to Central and South America, and US military assistance in Latin America has quadrupled in the last decade -- even as the region faces no external and diminishing internal threats.
The report, The Drug Problem in the Americas, was commissioned at last year's Cartagena Summit of the Americas, where a number of Latin American leaders led by Colombian President Juan Manuel Santos criticized existing drug policies and called for a discussion of alternatives. On Friday, OAS head Jose Miguel Insulza hand-delivered the report to Santos in Bogota.
Prepared by researcher and analysts at the Inter-American Drug Abuse Control Commission (CICAD) under the supervision of the OAS, the report is divided into two discrete sections, an analytical report and a scenarios report. It is the scenarios report that addresses possible directions in drug policy, including the formal consideration of legalization and regulation regimes.
The scenarios report envisions four possible (and not necessarily mutually exclusive) policy directions and how each scenario "understands" the drug problem, what the attempted response would be under that scenario, and the opportunities and challenges involved in acting on those scenarios.
Two scenarios, "Together" and "Resilience," represent largely traditional responses to drug use and the drug trade, with calls for the strengthening of weak states and their judicial institutions or addressing underlying social problems and strengthening communities to fight violence and addiction, respectively.
It is the other two scenarios, "Pathways" and "Disruption," that represent innovations in thinking at the policy-making level. In the "Disruption" scenario, the violence and instability created by the drug trade under prohibition is so severe that authorities "cut a deal" with traffickers in a bid to achieve social peace. This might, more or less fairly, be called "the Mexican scenario," given that previous Mexican PRI governments are almost universally assumed to have made such bargains with trafficking organizations, and given widespread speculation these days that the current PRI government may be considering something similar.
[image:2 align:right caption:true]In the "Pathways" scenario, CICAD "understands" the problem as "the current regime for controlling drugs through criminal sanctions (especially arrests and incarceration of users and low-level dealers) is causing too much harm." The response is "trying out and learning from alternative legal and regulatory regimes, starting with cannabis."
The opportunities presented under the "Pathways" scenario include "development of better drug policies through experimentation, reallocation of resources from controlling drugs and drug users to preventing and treating problematic use, and shrinkage of some criminal markets and profits through regulation," while potential problems include "managing the risks of experimentation, especially with transitioning from criminal to regulated markets (including possible increases in problematic use), dealing with contraband, and new inter-governmental tensions that result from differences in regimes between jurisdictions."
The report is being welcomed as marking a true advance in the drug policy dialog at the hemispheric and international levels.
"The review explores what can be done in a post-drug war world," said Kasia Malinowska-Sempruch, director of the Open Society Global Drug Policy Program. "This report envisions a number of possibilities that will broaden the current debate on drug policy reform."
"As part of the scenarios team, we worked to make it clear that another reality is indeed possible, that our countries can move orderly toward regulated drugs markets, and that there are possibilities to achieve better results," said Lisa Sanchez, coordinator of drug policies at the Transform Drug Policy Foundation and Mexico Unido Contra la Delinquencia, who worked on the report. "It is clear that the state should no longer ignore its responsibility to guarantee the health and security of all its citizens, and to do this, it needs to regain control over the drug markets which are currently illegal."
"While leaders have talked about moving from 'criminalization' to 'public health' in drug policy, punitive, abstinence-only approaches have still predominated, even in the health sphere," said Daniel Wolfe, director of the Open Society International Harm Reduction Program. "These scenarios offer a chance for leaders to replace indiscriminate detention and rights abuses with approaches that distinguish between users and traffickers and offer the community-based health services that work best for those in need."
[image:3 align:left caption:true] "This is the beginning of an international conversation on a new approach to drugs," said David Holiday, senior regional advocacy officer for the Open Society Latin America Program. "We can hope this will move policies from those currently based in repression to strategies rooted in public health and human rights."
That international conversation on drug policy will get going next week, when the OAS report will be presented and discussed at the bi-annual CICAD meeting in Washington, DC. Two weeks after that, the report and discussions over drug policy in the Americas will be the main agenda item -- "Toward a comprehensive anti-drug policy in the Americas" -- at the annual session of the OAS General Assembly, which is attended by foreign ministers in the region. Advocates are hoping that these regional discussions will also be taken up at the 2016 United Nations General Assembly Special Session on Drugs.
"Never before has a multilateral organization engaged in such an inclusive and intellectually legitimate analysis of drug policy options," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "Indeed, it would have been inconceivable just two years ago that the OAS -- or any multilateral organization -- would publish a document that considers legalization, decriminalization and other alternatives to prohibitionist policies on an equal footing with status quo policies. Political pressures by the US and other governments would have made that impossible."
But much has changed in just the past few years, Nadelmann noted. In 2009, former presidents Fernando Henrique Cardoso (Brazil), César Gaviria (Colombia) and Ernesto Zedillo (Mexico) joined with other members of the Latin American Commission on Drugs and Democracy in saying the time had come to "break the taboo" on exploring alternatives to the failed war on drugs.
In 2011, those presidents joined with former UN Secretary General Kofi Annan, former U.S. Secretary of State George Shultz, former Federal Reserve Board chairman Paul Volcker, former Swiss President Ruth Dreifuss and other members of the Global Commission on Drug Policy in calling for fundamental reforms to national and global drug policies. Former presidents Jimmy Carter, Ricardo Lagos (Chile), Vicente Fox (Mexico) and Aleksander Kwasniewski (Poland) were among those who seconded their recommendations.
Late that year, sitting presidents began to join the calls of their predecessors. These included President Santos in Colombia, Otto Perez Molina in Guatemala, José Mujica in Uruguay and then-President Felipe Calderonof Mexico. Simultaneously, the victorious marijuana legalization ballot initiatives in Washington State and Colorado transformed a previously hypothetical debate into real political reform. Other states will almost certainly follow their lead in coming years.
"The OAS scenarios report thus represents the important next step in elevating and legitimizing a discussion that until a few years ago was effectively banned from official government circles," Nadelmann said. "It is sure to have legs in a way that few reports by multilateral institutions ever do."
special to Drug War Chronicle by investigative reporter Clarence Walker, firstname.lastname@example.org
Dispensaries providing marijuana to doctor-approved patients operate in a number of states, but they are under assault by the federal government. SWAT-style raids by the DEA and finger-wagging press conferences by grim-faced federal prosecutors may garner greater attention, but the assault on medical marijuana providers extends to other branches of the government as well, and moves by the Internal Revenue Service (IRS) to eliminate dispensaries' ability to take standard business deduction are another very painful arrow in the federal quiver.
[image:1 align:left]The IRS employs Section 280E, a 1982 addition to the tax code that was a response to a drug dealer's successful effort to claim his yacht, weapons purchases, and even illicit bribes as business expenses. Under 280E, individuals involved in the illicit sale of controlled substances -- including marijuana, even medical marijuana in states where it is legal -- cannot claim standard business expenses on their federal taxes.
"The 280E provision which requires certain businesses to pay taxes on their gross income, as opposed to their net income, is aimed at shutting down illicit drug operations, not state-legal medical marijuana dispensaries," said Kris Hermes, spokesman for the medical marijuana defense group Americans for Safe Access." Nonetheless, the Obama Administration is using Section 280E to push these local and state licensed facilities out of business."
The provision can be used to great effect. Oakland's Harborside Health Center was hit with a $2 million IRS assessment in 2011 after the tax agency employed Section 280E against. Harborside is fighting that assessment, even as it continues to try to fend off federal prosecutors' attempts to shut it down by seizing the properties it leases. Similarly, when the feds raided Richard Lee's Oaksterdam University that same year, it wasn't just DEA, but also IRS agents who stormed the premises. Lee said it was because of a 280E-related audit.
The attacks on Harborside and Oaksterdam were part of an IRS campaign of aggressive audits using 280E to deny legitimate business expenses, such as rent, payroll, and all other necessary business expenses. These denials result in astronomical back tax bills for the affected dispensaries, threatening their viability -- and patients' access to their medicine.
"Should the IRS campaign be successful; it will throw millions of patients back in to the hands of street dealers; eliminate tens of thousands of well paying jobs, destroy hundreds of millions of dollars of tax revenue; enrich the criminal underground; and endanger the safety of communities in the 17 medical cannabis states," said Harborside's Steve DeAngelo as he announced the 280E Reform Project to begin to fight back.
It's going to be an uphill battle. In the last Congress, Rep. Pete Stark (D-CA) introduced House Bill 1985, the Small Business Tax Equity Act, designed to end the 280E problem for medical marijuana businesses, but it went to the Republican-controlled House Ways and Means Committee, where it was never heard from again.
Still, something needs to happen, said Betty Aldworth, deputy director of the National Cannabis Industry Association, which this year is working with members of Congress to try to find a fix for the 280E problem.
"When Section 280E was created in the 1980s, no one imagined state-legal marijuana providers," Aldworth told the Chronicle. "Whether or not it is part of a larger effort to curtail the development of regulated models for providing marijuana, which is a model that is clearly preferable to leaving this popular and relatively safe medicine (or adult product) in the underground market, these onerous tax rates have severely hampered the development of the regulated market."
It's a brake on the overall economy, Aldworth said.
"Not only has it resulted in stymieing job development, but it also curtails other economic activity such as reinvestment in business and the rippling positive effects of that spending," she argued. "And in many cases, it has created a tax burden that is simply unbearable: many providers have had to close their doors and lay off their staffs because the tax burden was simply too great."
Because of this unintended application of 280E, medical marijuana providers are paying overall taxes at a rate two to three times those of other small businesses, Aldworth said.
"It's important to note that just as they want to apply for licenses, follow regulations, and otherwise participate in the legal business community, state-legal marijuana providers also want to pay their fair share of taxes," she pointed out. "Most small businesses pay an effective tax rate of between 13% and 27% on net income, according to the Small Business Administration. State-legal marijuana providers pay an average effective tax rate of 65-80%. An industry that can provide thousands of jobs is being held back by these crazy tax rates."
While the lobbyists look to Congress for a fix, one academic tax law expert thinks he has hit upon a novel solution, but not everyone agrees.
Benjamin Leff, a professor at American University's Washington College of Law, raised eyebrows at a Harvard University seminar this spring when he presented his report,Tax Planning For Marijuana Dealers, where he suggested that dispensaries get around 280E by registering with the IRS as tax-exempt social welfare organizations, known as 501(c)(3)s or 501(c)(4)s.
The IRS has already ruled that medical marijuana providers can be exempt under 501(c)(3) because its "public policy doctrine" does not allow charitable organizations to have purposes contrary to law, but in the paper, Leff argued that "a state-sanctioned marijuana seller could qualify as tax-exempt under 501(c)(4), since the public policy doctrine only applies to charities, and 501(c)(4) organizations are not charities."
The organization would have to be operated to improve the social and economic conditions of a neighborhood blighted by crime or poverty, by providing job training, employment opportunities, and improved business conditions for commercial development in the neighborhood, just like many existing community economic development corporations that run businesses.
"When taxes get too high, you can drive compliant dispensaries out of business," Leff told the Chronicle.
Americans for Safe Access' Hermes would agree with that, but he's not so sure about Leff's idea.
"The concept of medical marijuana dispensaries registering with the federal government as a 501(c)(4) in order to sidestep section 280E is novel and may be hypothetically valid," he said. "However, the IRS will refuse to grant tax-exempt status to a business that the agency believes is violating federal law. Perhaps, it would be possible for a dispensary to obtain 501(c)(4) status under false pretenses, but such status would not very likely withstand an IRS audit."
There are better ways, he said.
"A much more realistic and sensible approach -- pending a change to the federal classification of marijuana for medical use -- is to amend the tax code to exclude state-lawful medical marijuana businesses from Section 280E," Hermes recommended. "This is the kind of legislation that Congress should pass in order to allow states to implement their own medical marijuana laws, without undue interference by the federal government."
"I agree with everything he said," Leff replied. "But it's not just the Obama administration that is using 280E this way. The Supreme Court has held that there is no exception to the Controlled Substances Act for state-level legal marijuana sales, and since 280E makes references to Schedule I controlled substances, it applies to legal marijuana unless Congress changes the law. I totally agree that Congress should amend 280E to exempt marijuana selling that is legal under state law. Congress could also amend the Controlled Substances Act to remove marijuana from it, which would probably also make sense," he added.
Whether it is by act of Congress, internal policy shifts, or creative thinking by law school professors, some way has to be found to exempt state-permitted medical marijuana providers from the clutches of 280E and its punitive tax burden aimed at dope dealers, or there may not be any medical marijuana providers.
In a ruling that will leave California's patchwork approach to medical marijuana dispensary regulation in place, the state Supreme Court ruled Monday that local governments can ban dispensaries from operating within their jurisdictions. For patients, that means access to medical marijuana at dispensaries will depend on the political currents in their city or county.
[image:1 align:left]The decision likely means that cities and counties that had been holding off on banning dispensaries will now take steps to do so. It will also increase pressure on the state legislature to come up with a means of statewide medical marijuana regulation, something it is working on right now.
The case was City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., in which Inland Empire sued the city after Riverside using its zoning power to declare that dispensaries were nuisances and ordered them shut down. Inland Empire went to court to block the city from forcing it to close.
The decision was eagerly -- and anxiously -- awaited by all sides. Cases on local bans had been percolating through the state court system for several years, with state appeals courts splitting on the issue. An appeals court had earlier sided with the city of Riverside, but a trial court last summer held that Riverside County could not ban dispensaries, and an appeals court in Southern California had struck down Los Angeles County's ban on dispensaries.
The move by the city of Riverside was part of a broader counter-offensive against the proliferation of dispensaries after the Obama administration signaled in 2009 that it would take a largely hands-off approach. According to the medical marijuana defense group Americans for Safe Access, more than 200 cities or counties in the state have since moved to ban dispensaries. That move toward local bans has since slowed, in part because of uncertainty over their legality and in part because the federal offensive since the Obama administration shifted gears in the fall of 2011 has driven hundreds of dispensaries out of business.
Patient and industry advocates had argued that allowing localities to ban dispensaries ran counter to the intent of the state's voter-approved medical marijuana law. The law called for making medical marijuana accessible to people with doctors' recommendations for its use. But the state's high court sided with the localities.
"The issue in this case is whether California's medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not," wrote Justice Marvin Baxter for a unanimous court. "The CUA and the MMP [state medical marijuana laws] do not expressly or impliedly preempt Riverside's zoning provisions declaring a medical marijuana dispensary, as therein defined, to be a prohibited use, and a public nuisance, anywhere within the city limits."
"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," said Joe Elford, chief counsel with Americans for Safe Access, which filed an amicus 'friend of the court' brief in the case. "Notably, the high court deferred to the state legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."
"There is nothing surprising about this; it affirms the status quo," said Dale Gieringer, longtime head of California NORML. "I've been following the court cases and reading the state constitution, and it seems pretty clear that local governments have broad authority under California law."
"Today's decision allowing localities to ban will likely lead to reduced patient access in California unless the state finally steps up to provide regulatory oversight and guidance," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "The good news though is that this problem is fixable. It is time for the state legislature to enact state-wide medical marijuana oversight and regulation that both protects patient access and eases the burden on localities to deal with this issue on their own. Localities will stop enacting bans once the state has stepped up and assumed its responsibility to regulate."
"We're hoping that we can fix this by having some sort of state regulation system where people have access wherever they live in the state, if not by local dispensaries, then at least by some sort of delivery service," Gieringer said. "I think they're trying very hard to do something this year. Remember, last year, the Assembly passed a regulation bill and the Senate came very close, and now we have the leader of the state Senate supporting the same concept, so I think the prospects are pretty good for action."
The statewide medical marijuana regulation bills this year are Assembly Bill 473, sponsored by Assemblyman Tom Ammiano (D-San Francisco), and Senate Bill 439, sponsored by Senate President Pro Tem Darrell Steinberg (D-Sacramento). Both bills have passed their first committee votes and are supported by a broad coalition of patients, dispensaries, and law enforcement groups.
But until and unless statewide regulation is passed in Sacramento, the battle over patient access to dispensaries is now going to be fought in city council chambers and county supervisor meeting rooms in cities and counties across the state. That is going to mean differential access to medical marijuana depending on the political complexion of the localities where patients reside.
Idaho is officially not a marijuana-friendly state. Although it is bordered on most sides by medical marijuana states (Washington, Oregon, Nevada, and Montana), it so far refuses to accept the medicinal use of the herb. And even though one of those states (Washington) has legalized marijuana and two others (Nevada and Oregon) have decriminalized it, Idaho remains firmly grounded in 20th Century attitudes toward the plant. The state legislature this year took the time to approve a non-binding resolution noting its opposition to marijuana legalization.
[image:1 align:right]But that doesn't mean there aren't reformers in the Gem State. There have been sporadic local marijuana legalization efforts in past years, and this year, medical marijuana supporters are in the midst of signature-gathering campaign to put an initiative on the ballot.
That campaign is led by Compassionate Idaho, some of whose most stalwart and publicly visible members are Lindsey and Josh Rinehart and Sarah Caldwell. But with an incident that began while Caldwell and the Rineharts were away on a retreat, the trio are learning a harsh lesson in hardball pot politics. When they got back home, their kids were gone, and the police and child social services had them.
According to Boise Police, who released a statement on the matter as controversy grew, on April 23, they were contacted by a local school official about a child who had apparently eaten marijuana and fallen ill. Police "learned from witnesses" that the supposed marijuana supposedly came from the Rinehart residence, and, "concerned for the safety of children at the residence," they went there and found a baby sitter caring for the Rinehart and Caldwell children.
Police persuaded the baby sitter to let them search the residence and "found drug paraphernalia, items commonly used to smoke marijuana, and a quantity of a substance that appeared to be marijuana in locations inside the house accessible to the children." Police at the scene then contacted both narcotics investigators and the department's Special Victims Unit.
(Rinehart, a Multiple Sclerosis sufferer, said she indeed had medical marijuana at home, but that she had a small amount and a pipe on a dresser in her bedroom, a larger amount of trim locked away in a freezer, and some marijuana tincture in a bottle in a kitchen cabinet atop her refrigerator.)
"Based on the fact that illegal drugs and drug paraphernalia were located in an area that appeared to be commonly used by the children in the residence and the fact that one child had already become ill from ingesting what he assumed was marijuana, and the inability to contact the children's parents, detectives made the decision to contact Idaho Health and Welfare officials and place the children in imminent danger, meaning they were placed in the protective custody of the state until it can be determined they are in a safe environment," the statement said.
At this point, it is unclear whether whatever made the school child sick was marijuana. It is equally unclear that any marijuana came from the Rinehart residence. What is clear is that both the Rineharts and Sarah Campbell are up-front, in-your-face medical marijuana patients and activists, and that their children were being subjected to the tender mercies of the state.
Sarah Caldwell has had her kids returned to her -- it was not her child who is suspected of providing the suspected marijuana -- but the Rineharts are still fighting to get their kids returned.
"My sons were not involved," Caldwell said. "They were at the house the police searched, the police decided my kids were in 'imminent danger,' and it took three days to get them back."
While the two boys and the Rinehart kids were held at the same foster home, providing them with the small comfort of being with friends, Caldwell said her younger son was traumatized.
"My six-year-old is autistic," she explained. "I noticed when he came home, he started packing his favorite toys. I asked him why and he said, 'In case the police make me go away again.' He doesn't understand why," Caldwell said, her voice breaking.
While Caldwell has her children at home again, both she and the Rineharts are going to have to comply with the requirements of the child welfare system to ensure that their children can return to their old lives. But, Lindsey Rinehart said, Child Protective Services is moving more quickly than usual in her case.
[image:2 align:left caption:true]Normally, Child Protective Services requires parents to meet with them at the department three times, then allows them to have three visits with their children in the community, then inspects the home to ensure a safe environment is being provided, and only then considers returning the kids, most likely with the added provision that the parents must undergo parenting and drug education classes. But when the Chronicle last spoke to Rinehart Saturday, she was in the middle of a home visit with her kids -- one that ends Sunday morning.
"They seem to be expediting the process because they realize they messed up," she said. The state taking her kids wasn't doing them any favors, she added.
"My oldest son now will only talk if you ask him really specific questions, and my younger one is acting out," she said. "He is upset and argumentative; he has a hard time vocalizing things," she said of her six-year-old. "I told him I had to go to the store, and he freaked out; he didn't want me to leave him. He's reacting like I've never seen before. He was a happy kid; now he's mad and confused. He doesn't understand what's going on."
The older Rinehart son is having issues, too, she said.
"He's mad. Both of the kids have been educated about my medicine, so they know this is wrong," the multiple sclerosis sufferer explained. "They're mad that they were taken away because mommy had her medicine. I'm trying to comfort them as best as I can. They just know that somebody took them away, and now I have to explain that they have to go back to foster care tomorrow," Rinehart said, her voice trembling.
Both the Rineharts and Sarah Caldwell suspect they were set up.
"I'm the director of Compassionate Idaho. Everybody knows who I am. I'm on the news at least once a month," said Rinehart. "We had just done the Hemp Fest in Moscow and signature-gathering in five towns. The police knew what they were looking for, and they knew where to look without anyone telling them. Those kids on the playground didn't know where to look. There were kids from several other families involved in that playground incident, but we think the police got who they wanted."
"I do think they were targeting us," Caldwell agreed. "That incident at the school was just an excuse for them to try to get us."
"This has got me fired up," Caldwell said. "They took my children to try to keep me focused on getting my kids back so I wouldn't do my activism, but I'm not going to stop."
The use of children as pawns in the marijuana culture wars is shocking and distressing, but nothing new, said Keith Stroup, founder and currently counsel for the National Organization for the Reform of Marijuana Laws (NORML).
"We get calls three or four times a week from people who have lost custody of their children because they tested positive at birth or in a situation where parents are feuding over custody," Stroup said. "One will say 'My spouse smokes marijuana and is thus not a fit parent,' and once that child welfare issue is raised, it's a totally separate matter from the criminal justice system. Even if no one is proposing to arrest the parent, this is far more damaging and destructive to the family."
That's at least in part because once child welfare has its clutches on you, it doesn't want to let go, and it typically has an attitude toward marijuana use that is reminiscent of Reefer Madness, Stroup said.
"They can require that you take parenting and drug education courses right out of the 1950s," he said. "It's a worthless routine, but you have to do it, you have to pay hundreds of dollars to do it, and you can't get your kids back until you do it. It doesn't matter how nice or good a parent you are or how well-intentioned you are, once you get caught up in this, you are in for a bad time."
NORML is doing what it can to assist the Idaho activists, Stroup said, adding some words of advice for other marijuana-using parents, especially (but not only) in places where attitudes toward the herb are hide-bound and hardened.
"If you're in a place like Idaho and you're a young parent, never smoke in front of your kids, so if that issue ever arises, you can make sure nobody can say you were smoking marijuana and kids were playing in the same room," he counseled. "You have to be able to demonstrate convincingly that you are providing a safe and secure place for your kids. In places like Idaho, you could lose custody over your kids for something many of us in many parts of the country take for granted."
Getting the kids back is only part of the problem for the Rineharts. Idaho treats even small-time pot possession seriously -- it's one of those place where people still actually do get jail time for it -- and the couple is facing possible felony charges for possessing more than an ounce of trim.
[image:3 align:right caption:true]"I'm living in an ongoing panic attack," said Lindsey Rinehart. "They update their warrants every five hours, so I check in frequently, and first thing in the morning. Because of my illness, I can't handle physical pressure very well, and I'm afraid they could hurt me when arresting me, so my lawyer has asked that if they do charge me, they just cite me."
All the stress isn't helping, and now, Rinehart can't have her medicine, either.
"I have prescribed meds to suppress my immune system, but those make me really sick. With cannabis, I only had to take it every other day," she explained. "Now, I have to take it every day, and it's so dangerous we have to regularly check my heart, liver, kidney, and eye function. And if I have pain, I'll have to go back to hydrocodone. I'll be going back on those meds I had been able to taper down from with cannabis."
But despite the trials and tribulations, neither the Rineharts nor Sarah Caldwell have been cowed, and their travails have energized supporters as well.
"People are really mad about this and are getting involved," said Rinehart. "We even have people reaching out to help fund Compassionate Idaho.
"People are coming out of the woodwork after hearing our kids got taken because of our activism," said Caldwell. "People are saying they want to help. Education is key here -- a lot of people here believe the Reefer Madness, but this is a non-toxic plant; it can't hurt you."
"The bigger picture is that we don't want this to happen to more families," said Rinehart.
"We're getting more calls than we ever did about child custody," Stroup reiterated. "There are still people being seriously damaged from what's left of marijuana prohibition. Few go to jail for marijuana anymore, but many lose custody of their kids. These repercussions may be more subtle, but they are not insignificant."
The Rineharts and Sarah Caldwell still have to deal with Child Protective Services, and the Rineharts are still waiting to see if they will face criminal marijuana and child endangerment charges. But in the meantime, there are 55,000 signatures to be gathered to get medical marijuana on the ballot and start changing Idaho's reactionary response to marijuana.
In the wake of the marijuana legalization victories in Colorado and Washington last November, and buoyed by a series of national public opinion polls showing support for pot legalization going over the tipping point, marijuana reform legislation is being introduced at state houses across the land at levels never seen before.
[image:1 align:left caption:true]While the mere fact that a bill has been introduced is no guarantee it's going to pass, that such bills are being introduced in record numbers speaks to how far the marijuana reform movement has come. According to a legislative activity web page maintained by the Marijuana Policy Project, decriminalization bills have been introduced in 10 states and the dependency of the Northern Mariana Islands this year, while outright legalization bills have been introduced in 11 states and the dependency of Puerto Rico.
(This article does not review current medical marijuana legislation, which will be the subject of an additional report. In the meanwhile, our Medical Marijuana Update each week provides extensive info on legislation and other developments in the issue.)
Some of the legalization and decrim bills are dead already (see below), but others remain alive. While passage of a legalization bill this year remains a long shot, decriminalization bills in some states may fare better.
NORML founder, erstwhile executive director and current legal counsel Keith Stroup has been fighting for marijuana law reform for more than 40 years. It's never looked better, he said.
"I wasn't sure I'd live long enough to see this happening, even though the demographics are on our side," he said. "A lot of these legislatures, though, are still playing around with medical marijuana, when the truth is voters are ready to go much further, probably for decriminalization and maybe for legalization. But after we won Colorado and Washington, you can see the increased confidence a number of legislators have demonstrated, and there's only going to be more of that."
Karen O'Keefe is director of state policies for MPP. She hasn't been at it as long as Stroup, but she has a solid decade of reform efforts under her belt, and she, too, said things were definitely looking up.
"When I first started at MPP, I don't think a single state had a tax and regulate bill, and now we have 11 states, and probably Ohio coming on board, too, with tax and regulate. People are realizing it's a serious issue with majority support, and legislatures are starting to catch up," said O'Keefe.
"We first saw majority support in the Gallup poll a couple of years ago, but there wasn't nearly as much activity as this year," she said. "Having two states approve marijuana legalization with solid majorities made it seem real. Colorado and Washington were initiative states, and the first medical marijuana states were initiative states, too. Once the people have led the way, legislators begin to realize it's a popular issue that makes sense and they start to act on it."
Here's what's going on in the state legislatures (excerpted with edits from the aforementioned MPP web page), with further discussion following:
Marijuana Legalization Bills
Alabama -- House Bill 550, sponsored by Rep. Patricia Todd, would allow adults 21 and older to possess or grow limited amounts of marijuana. It would also allow a regulated and taxed marijuana industry, in addition to setting up a medical marijuana program. The bill was referred to the House Public Safety and Homeland Security Committee.
Hawaii -- Speaker Joe Souki introduced House Bill 150 and House Bill 699, which would have allowed the taxed and regulated sale of marijuana to adults 21 and older. Both bills would also have allowed adults to cultivate marijuana in a locked, secure facility. On February 12, the House Judiciary Committee deferred action on HB 699, killing the bill for the year. Because of legislative deadlines, the other tax-and-regulate bill also will not be able to advance in 2013, which is the first year of Hawaii's biennial legislative session.
Maine -- Rep. Diane Russell’s LD 1229 would allow adults 21 and older to possess and cultivate limited amounts of marijuana. It would also set up a system to license and regulate growers, infused product makers, retail stores, and labs. LD 1229 would impose a $50 per ounce tax on marijuana at the wholesale level. It was referred to the Committee on Criminal Justice and Public Safety on March 26.
Maryland -- House Bill 1453, sponsored by Del. Curt Anderson, would have provided for a taxed and regulated marijuana industry. It would have also allowed adults 21 years of age and older to possess and cultivate limited amounts of marijuana. HB 1453 was referred to the House Judiciary Committee, which heard testimony on the bill on March 19. The bill did not advance out of committee before the deadline to pass the House.
Massachusetts -- Rep. Ellen Story has sponsored House Bill 1632, which would allow adults 21 and older to possess and cultivate marijuana. It would allow a regulated, taxed marijuana industry once it is legal under federal law. HB 1632 was referred to the Joint Committee on Judiciary.
Nevada -- Assembly Bill 402, sponsored by Assemblyman Joe Hogan, would allow adults 21 and older to possess and cultivate limited amounts of marijuana. It would also create a taxed and regulated legal marijuana industry. AB 402 was referred to the Committee on Judiciary, but it did not advance before the deadline.
New Hampshire -- Rep. Steve Vaillancourt proposed House Bill 492, which would tax and regulate marijuana for adults’ use. It would also allow adults 21 and older to cultivate up to six plants. The Criminal Justice and Public Safety Committee retained HB 492, meaning it will study the issue this fall. In addition, Rep. Mark Warden introduced House Bill 337, which would have made marijuana legal without imposing regulations. HB 337 received 112 votes on March 13, including from 52 Republicans, but 239 representatives voted against the bill, so it is dead for the year.
New Mexico -- Sen. Gerald Ortiz y Pino introduced Senate Joint Memorial 31, which would have directed the state's Economic Development Department to study the budgetary implications of a legal marijuana industry. The legislative session ended without SJM 31 receiving a floor vote.
Oregon -- The House Committee on Revenue introduced House Bill 3371, which would allow persons 21 and older to grow and possess marijuana. It would also set up a system of taxation and regulation for the commercial production and sale of marijuana, similar to alcohol. The bill was referred to the House Committee on Judiciary, which approved the bill on April 2. The bill is now pending in the House Committee on Revenue.
Pennsylvania -- Senate Bill 528, sponsored by Sen. Daylin Leach, would regulate marijuana similarly to alcohol. It would allow adults 21 years of age or older to purchase, cultivate, and possess limited amounts of marijuana. On April 3, the bill was referred to the Senate Law and Justice Committee.
Puerto Rico -- Sen. Miguel Pereira has introduced a bill, Senate Bill 517, which would make it legal for adults 21 and older to possess marijuana but would not provide for regulated distribution or cultivation.
Rhode Island -- On February 6, Rep. Edith Ajello introduced House Bill 5274, the Marijuana Regulation, Control, and Taxation Act, which was referred to the House Judiciary Committee. The bill would tax and regulate marijuana sales for adults' use and would allow adults to cultivate up to three mature marijuana plants. Sen. Donna Nesselbush sponsors the Senate companion bill, Senate Bill 334. The bills are pending in the House and Senate judiciary committees.
Vermont -- Rep. Susan Davis’ House Bill 499 would have allowed adults 21 and older to possess up to two ounces of marijuana and to grow up to three plants. It would have required the Department of Liquor Control to regulate marijuana wholesalers, retailers, and labs and impose a $50 per ounce tax at the wholesale level. The bill did not advance before the crossover deadline. In addition, Sen. Jeanette White's Senate Bill 160 would create a Study Committee on the Regulation and Taxation of Marijuana, which would be a legislative committee that would study a process for licensing marijuana businesses along with a taxation and regulatory structure.
Decriminalization Bills (generally speaking, see the notes)
Hawaii -- Sen. Kalani English sponsored Senate Bill 472, which would punish possession of up to an ounce of marijuana with a civil fine, while Sen. Donovan De la Cruz sponsored Senate Bill 739, which would impose a civil fine of up to $100 for no more than an ounce of marijuana. The Senate unanimously approved SB 472 on March 5. Both bills are dead for the year, but they will carry over to the second year of the state's two-year session.
Illinois -- House Bill 2332 would have imposed a civil fine on possession of a tiny amount of marijuana -- 0.1 gram. It did not advance before the deadline.
Indiana -- Senate Bill 580, sponsored by Sen. Karen Tallian, would have made possession of less than two ounces of marijuana a class C infraction punishable by a fine only with no possibility of jail time. The bill, which was referred to the Senate Committee on Corrections and Criminal Law, would also have made other reforms to Indiana's marijuana laws, including allowing hemp. The bill did not advance before the crossover deadline.
Maryland -- Senate Bill 297, sponsored by Sen. Robert Zirkin, would have reduced the maximum penalty for possession up to 10 grams of marijuana to a $100 civil fine. The Senate approved the bill in a 30-16 vote on March 19, but it did not get a vote in the House Judiciary Committee before the legislature adjourned on April 8. Another bill sponsored by Sen. Zirkin -- Senate Bill 394 -- would have made the maximum fine for marijuana possession a $100 civil fine. That bill was withdrawn.
Michigan -- House Bill 4623, sponsored by Rep. Jeff Irwin, would replace possible jail time and criminal penalties with civil fines of $25, $50, or $100, depending on the number of prior convictions the person has for marijuana possession. The bill was introduced on April 24 and was referred to the House Committee on Judiciary.
Missouri -- Rep. Rory Ellinger has introduced House Bill 512, which would reduce the penalty for possession of less than 35 grams of marijuana from up to a year in prison to a fine of no more than $250 and a suspended sentence.
New Mexico -- House Bill 465, sponsored by Rep. Emily Kane, would have reduced the penalty for first offense possession of up to an ounce of marijuana to a $50 civil fine. A second offense would have been a petty misdemeanor carrying a $100 fine. It would have also imposed fines for up to eight ounces of marijuana. The bill passed the House, but the session ended before the Senate could vote on it.
New Hampshire -- Rep. Kyle Tasker proposed House Bill 621, which would impose a fine on simple possession of marijuana. On March 21, the House of Representatives amended the bill to apply only to a quarter of an ounce of marijuana and to impose a fine of up to $200. It then approved the bill in a 214-115 vote, sending it to the Senate. On April 16, the bill received a negative recommendation in the Senate Judiciary Committee.
New Jersey -- Senate Bill 1977, sponsored by Sen. Nicholas Scutari, would impose a $50 fine on up to 50 grams of marijuana (nearly two ounces). Assembly Bill 1465, sponsored by Assemblyman Reed Gusciora, was introduced in 2012 and passed the Assembly. The bill would impose civil fines starting at $150 on possession of up to 15 grams of marijuana. Both bills are pending in the Senate Judiciary Committee.
New York -- Senate Bill 3315 would eliminate the "public use" exception to the state's decriminalization law, a reform supported by Gov. Andrew Cuomo. [Note: Although New York decriminalized in the 1970s, New York City police have continued to arrest tens of thousands of people each year under the "public use" exception.]
North Carolina -- Rep. Rep. Kelly Alexander sponsors House Bill 637, which would downgrade the penalty for possession of a small amount of marijuana from a misdemeanor that does not carry jail time to a civil infraction. [Note: This is a depenalization, not a decriminalization, bill.]
Northern Mariana Islands -- House Bill 18-42, sponsored by Rep. Christopher Leon Guerrero, would impose a $50 fine on marijuana possession in the U.S. territory.
Texas -- Rep. Harold Dutton, Jr. sponsors House Bill 184, which would make up to one ounce of marijuana a class C misdemeanor, punishable by a $500 fine. It was referred to the House Criminal Jurisprudence Committee, which approved an amended version of the bill on April 23. The bill would now only apply to persons under 21 for their first offense.
Vermont -- Senate Bill 48, sponsored by Sen. Joe Benning, and House Bill 200, sponsored by Rep. Chris Pearson, would impose a civil fine on possession of up to an ounce of marijuana. Under H. 200, a person under 21 who is found in possession of up to an ounce of marijuana would have to undergo substance abuse screening and possible treatment. On April 16, the House of Representatives approved H. 200 in a 92-49 vote, sending the bill to the Senate. Gov. Peter Shumlin has been a strong proponent of replacing criminal penalties with a civil fine.
[image:2 align:right caption:true]As the lists demonstrate, some bills have died already, but others still breathe, and some could even pass this year.
"We're most involved in Vermont, and we're very hopeful the decriminalization bill there will pass before the legislature adjourns," said MPP's O'Keefe. "The bill is in the Senate, and the governor is supportive. That's probably the best chance for removing criminal penalties this year."
Passing a legalization bill could take a little longer, she said.
"Tax and regulate could end up taking a couple of years," said O'Keefe, "but the bills in Maine and Oregon are getting serious consideration, and Rhode Island legislators seem very reasonable. But we don't think it's likely to pass in Rhode Island this year, although we are hopeful in will in the next couple of years be one of the first states to pass it."
That it should take a year or two or three to get marijuana legalization passed in any given state legislature is no surprise, O'Keefe said.
"We've had a lot of bills that got a vote one year, but legislators needed more time to think and be educated," she pointed out. "In Illinois, the House twice voted down medical marijuana before passing it, and in New Hampshire tax and regulate has slowly been gaining more and more support. This isn't something legislators are used to, and in most cases it takes them awhile to get used to it."
For Stroup, using the initiative process in states that allow for it is the best bet, but he cautioned that the movement is going to have to be able to win victories at the statehouse, too.
"Any time we have the choice of going to the people, it's always in our interest to do so," he said. "We know increasingly from the public opinion surveys that if the people decide, we win. Elected officials remain more timid about this than the public -- they're really worried about getting reelected and less worried about reform legislation -- but realistically, we have to be able to win in the states that don't have initiatives."
When it comes to passing bills, though, Stroup drew a parallel with the first burst of decriminalization efforts in the 1970s. Oregon and Maine went for decriminalization early in the decade, but the other handful of states that decriminalized in that era only came in at the end of the decade.
"When we won those first couple of states in the 1970s, we thought we were off and running, but the other states were all waiting to see what would happen, so we didn't win anything for a couple of years," he recalled. "I think we're in the same phase now when it comes to legalization. I have no doubt we will eventually win full legalization everywhere, but for the next couple of years, people in Colorado and Washington are going to have to be especially careful that they are demonstrating responsible use."
Cannabis culture celebrations like 4/20 have their place, said Stroup, but the rest of the time, it should be about responsible use.
"That's not the tactic we need the rest of the year," he said. "We want to demonstrate to the average person that nothing really changes when you legalize marijuana except you quit arresting responsible marijuana smokers and raise some revenue. What we don't want is a bunch of out-of-control pot smokers driving crazy -- that will scare neighboring states and cause a political backlash," the veteran activist warned.
"A backlash because of bad behavior won't stop us -- the demographics are on our side -- but whether it takes five years or 15 depends to some degree on how well we behave ourselves. We may see decriminalization pass somewhere, but I don't think we'll win legalization this year. I think before that passes in state legislatures, those lawmakers need to see that what Colorado and Washington did was a good thing."
The process of turning legalization victories at the voting booth into actual taxed, regulated, and legal commerce in Colorado and Washington is a process in progress in both states right now. By next year, those two states should be living experiments in marijuana legalization. Doing it right there will make it easier to get it done elsewhere. If not this year, next year. Or 2016.
Access to medical marijuana continues to expand as more and more states embrace the healing power of the herb. At the same time, hundreds of thousands of veterans of America's decade of wars are returning home burdened with Post Traumatic Stress Disorder (PTSD), a condition as old as war itself, but that in years past went either unrecognized or was seen as a soldier's personal failure, his "shell shock" or "battle fatigue." Could medical marijuana help?
Scott Murphy Iraq deployment photo Scott Murphy of Newton, Massachusetts, is an Iraq combat veteran who uses medical marijuana for chronic pain. "I use medical cannabis for chronic pain from a motorcycle accident that was aggravated by my military service," Murphy said. "I had a severe accident when I was 18, I have a rod in my femur and four plates in my hip. The pain is to the point where it is affecting my walk."
But Murphy also wants to ensure that his state's new medical marijuana law provides for access to the plant for PTSD. A man Murphy described as his "best friend," a fellow veteran, committed suicide at age 22 after being kicked out of the Army for misconduct related to his mental issues rather than being given a medical discharge as promised.
"He had been showing signs of PTSD," Murphy recalled. "He was a good soldier, but when he got back from his second deployment he was having problems. When they kicked him out of the Army, he went home and killed himself."
Amid increasing evidence that medical marijuana can have a beneficial impact in helping people cope with PTSD, the push is on to expand access to the healing herb. Murphy spent Monday morning testifying at a public hearing on draft regulations for the Massachusetts medical marijuana program. Although voters voted for the initiative that listed specific qualifying conditions -- not including PTSD -- as well as "and other" conditions, state regulators are considering changing that to "and other debilitating" conditions, a change that Murphy and others fear could limit access to medical marijuana for PTSD patients.
In some medical marijuana states, adding PTSD requires going through a medical marijuana regulatory commission; in others, it is being pushed through the legislature. In Oregon, for example, Senate Bill 281, which would add PTSD to the list of treatable conditions, was approved by the state Senate last Thursday, and now moves to the House. In Michigan, by contrast, hearings on PTSD and medical marijuana were held recently by Michigan's Advisory Committee on Medical Marijuana (ACMM).
State legislatures are proving to be an easier path than unelected medical marijuana overseers, said activists. "There have been a number of states that have tried to petition to get it added to the list that have so far failed," said Kris Hermes, media liaison for Americans for Safe Access.
Air Force veteran Michael Krawitz of Veterans for Medical Cannabis Access (VCMA) and a plaintiff in Americans for Safe Access v. Drug Enforcement Agency, a case which seeks to see marijuana moved out of the Controlled Substance Act's Schedule I, agreed. "That Oregon effort is moving in the legislature because the state oversight panel was so intractable," said Krawitz, who was deeply involved in the effort there. "Any time we've had to go through the process provided by the state to address expanding access to medical marijuana, we've had trouble. Michigan is another example. There, there was a petition to add PTSD, but there was no actual process to do so. They were essentially keeping the process from moving forward until [vaunted Michigan marijuana attorney] Matt Abel sued them. Now, we have hearings before the advisory committee."
The need to do something for veterans is a major impetus behind the push, but PTSD effects lots of people who aren't veterans as well. "It isn't just veterans who suffer from PTSD," Krawitz said. "At that hearing, there were many veterans, but also other people who had suffered trauma -- child abuse survivors, rape survivors, emergency response workers."
[image:2 align:right caption:true]Still, veterans mustering out after more than a decade of US wars in Iraq and Afghanistan are coming home with PTSD in record numbers. A 2004 study in the New England Journal of Medicine estimated that 18% of returning Iraq combat veterans had PTSD. And a 2008 RAND Corporation report estimated that up to 225,000 veterans will return from the wars with PTSD.
The trauma of war is reflected not only in the number of vets suffering from PTSD, but even more ominously, in sky-high suicide rates. US military veterans are committing suicide at a rate of 22 per day, up 20% from just five years ago. And according to a Veterans Administration study released in February, that number almost certainly undercounts the number of veteran suicides because of data limitations.
The military and public health workers are keenly aware of the problem, and are attempting to address it through means both conventional and unconventional. The military and the Veterans Administration have been open to therapeutic interventions including yoga, meditation, and the use of companion dogs; they have also armed themselves with the arsenal of psychotherapeutic drugs -- anti-depressants, anti-psychotics, tranquilizers -- available in the standard pharmacopeia. But those drugs can have some nasty side effects, and their utility in treating PTSD is questionable; noting reports of negative consequences, the Army has warned against over reliance on them.
In the search for succor, more and more vets and other victims of PTSD are turning to medical marijuana. But there is a problem. Not only do a majority of states not recognize medical marijuana, even in those states that do, many of them do not allow its use for PTSD. Despite mounting evidence that medical marijuana can help with PTSD, only a handful of medical marijuana states have approved its used. According to Americans for Safe Access, only California, Connecticut, Delaware, New Mexico and Massachusetts would allow for its use for PTSD, and as we have seen above, it's still up in the air in the Bay State.
"As we find more and more people, especially veterans, benefiting from its use, we see the unfortunate absence of availability for patients across the country," said ASA's Hermes, "It's only approved in five states; that means well below half the medical marijuana states recognize the need for patients to use it for PTSD."
Americans for Safe Access supports expanded access to medical marijuana for PTSD, according to Hermes. "We wholeheartedly support the efforts to petition where patients can do so to get PTSD added to the list of conditions, and we're also pushing for recognition inside the Veterans Administration, but that's an uphill slog," he said.
And it isn't only PTSD treatment that's at stake for veterans. "I'm not only pushing for chronic pain and PTSD, but other stress-related combat issues, and that language is one of the things I asked [the Massachusetts Department of Public Health] to clarify today," Murphy said in an interview following the hearing. "Does their definition of 'debilitating' include PTSD? If they're going to use a broad definition of 'debilitating' so that it covers the full spectrum of vets' injuries, that would be one thing. But it's unclear if PTSD or other mental conditions will be covered. I think we should leave the wording with "and other" -- that's what the voters voted on. I don't think we should have to wait until someone's PTSD is so bad it's life-limiting to be able to get access."
Massachusetts regulators were supposed to have their draft regulations ready by May 5, but in the wake of the Boston bombings, that is now up in the air.
Part of the problem with winning acceptance of using medical marijuana for treatment of PTSD is the relative paucity of clinical studies on its safety and efficacy. When the state of Arizona considered adding PTSD to its list of qualifying conditions, researchers hired by the Department of Human Services found very little of use in their review of the literature.
But studies do exist. Krawitz and Veterans for Medical Cannabis Access compiled an impressive set of studies suggesting marijuana is safe and effective in treating PTSD and anxiety for Michigan regulators. (They are downloadable as submitted at the following links: Packet 1, part 1 of 3, Packet 1, part 2 of 3, Packet 1, part 3 of 3, Packet 2, Packet 3). That same packet also went out to New Mexico, where an effort to remove PTSD from the list of treatable ailments was foiled, and to Oregon, where the PTSD bill moved forward this week.
"While we don't have a lot of studies titled 'PTSD Response to Cannabis Therapy,' we do have a preponderance of evidence that shows cannabis works in various ways, including for symptoms of PTSD," said Krawitz.
[image:3 align:left caption:true]One important reason the hard science officials would like to see on the efficacy and safety of marijuana for PTSD is federal government obstructionism. The Multidisciplinary Association for Psychedelic Studies (MAPS), for instance, has been attempting for years to win approval for its study of PTSD and medical marijuana. But it's still waiting and still patiently trying to satisfy the endless niggling of the National Institute on Drug Abuse and the Department of Health and Human Services. The DEA and the courts haven't helped either -- the agency in 2011 denied a request by UMass scientist Dr. Lyle Craker to grow marijuana for research purposes, disregarding its own administrative law judge's recommendation to approve it, and a court last week sided with DEA.
Nevertheless, anecdotal evidence on marijuana treatment for PTSD is helping to move the issue forward. The site ProCon.org, which features a major section devoted to medical marijuana, has posted several readers' comments on the subject:"I had severe reservations about 'smoking pot.' It is illegal and I am a health care professional," one anonymous commenter wrote. "Still, I wanted to feel better, to be myself again, and to be the person I was before the PTSD. I smoked the pot. Immediately I felt relaxed and calm. I smiled and laughed. I finally felt at peace for the first time in two years. I slept my first night in three years without the sleep medication. The next day I felt refreshed and renewed. I had hope again. My son told me that he was so happy to see the old me again."
"I was shot thru the right sub and supra orbital sections of the right side of my head exiting over my right ear. They rebuilt 1/4 of my skull," wrote another commenter. "Epilepsy, PTSD, and other issues such as severe anxiety, constant pain and depression... I am still alive because I smoke [marijuana] every day. Empirical evidence has proven to me that failure to utilize generally causes a seizure and at minimum I get really aggressive... I will not live on narcotics. Ibuprofen or aspirin all have side effects worse than any temporary pain. Replacement liver from the damage of man-made drugs? No thanks."
In the meanwhile, veterans and others continue to suffer from PTSD and continue to use marijuana for relief. In states that do not have medical marijuana laws, that makes them criminals. In states that do have medical marijuana laws, but don't allow it to be used for PTSD, they are criminals, too -- unless they hide what they're actually using it for.
"These state medical marijuana control boards are willing to allow vets to have it for pain, but not PTSD, so in states like Arizona, vets suffering from PTSD are using a pain diagnosis to be legal under state law, and that's problematic. We're trying to get people suffering from PTSD to actually come in and get help, and it's difficult because there's a lot of stigma around it. What are we telling our soldiers when we tell them 'tell the doc you have pain, don't say you have PTSD'"? Krawitz asked. "What are we saying about the validity of their condition?"
That leads to other problems, too Krawitz said.
"When we can't recommend medical marijuana for PTSD, we're pushing people to use chronic pain as a qualifying condition, and that leads to police and prosecutors seeing all those pain recommendations and saying there must be fraud in the system," he said. "There are a lot of patients who would otherwise have had recommendations for PTSD."
PTSD sufferers are not waiting for peer-reviewed, clinically-controlled studies to tell them what works. PTSD is a real and growing problem, and medical marijuana appears to do some good. The scientific studies that would satisfy legislators and state review boards need to be done, and that is happening, albeit too slowly, but in the meanwhile, people are suffering because the government they served at risk to life and limb is now obstructing the research that would legitimize their treatment.
At the Multidisciplinary Association for Psychedelic Studies (MAPS) Psychedelic Science 2013 conference in Oakland this weekend there were mind-boggling displays of psychedelic art; tables full of books on LSD, MDMA, peyote, ayahuasca, and other, stranger hallucinogens; weird musical interludes; holotropic breathwork workshops, and indigenous shamans.
[image:1 align:left caption:true]There was also some heavy duty science. Stretching over five days of workshops and conference presentations, the MAPS conference is perhaps the premier confab of psychedelic researchers worldwide. A look at just some of the topics covered in the remarkably broad-ranging affair makes that case.
Researchers from around the country and the world presented findings on three "tracks": clinical ("LSD-Assisted Psychotherapy in the Treatment of Anxiety Secondary to Life Threatening Illness," "The Neurobiology of Psychedelics: Implications for Mood Disorders"), interdisciplinary ("Psilocybin in the Treatment of Smoking Addiction: Psychological Mechanisms and Participant Account," "Ethical Considerations in the Medicinal Use of Psychedelics"), and a special track on the South American hallucinogenic tea, ayahuasca ("Ayahuasca Admixture Plants: An Uninvestigated Folk Pharmacopeia," "Ayahuasca, the Scientific Paradigm, and Shamanic Healing").
One series of research reports of urgent and immediate relevance centered on the use of MDMA ("ecstasy") in the treatment of Post-Traumatic Stress Disorder (PTSD). Although PTSD can be caused by any number of traumas, veterans mustering out after more than a decade of US wars in Iraq and Afghanistan are coming home with PTSD in record numbers. A 2004 study in the New England Journal of Medicine estimated that 18% of returning Iraq combat veterans had PTSD. And a 2008 RAND Corporation report estimated that up to 225,000 veterans will return from the wars with PTSD.
[image:2 align:right caption:true]The trauma of war is reflected not only in the number of vets suffering from PTSD, but even more ominously, in sky-high suicide rates. US military veterans are committing suicide at a rate of 22 per day, up 20% from just five years ago.
The military and public health workers are keenly aware of the problem, and are attempting to address it through means both conventional and unconventional. The military and the Veterans Administration have been opened to therapeutic interventions including yoga, meditation, and the use of companion dogs; they have also armed themselves with the arsenal of psychotherapeutic drugs -- anti-depressants, anti-psychotics, tranquilizers -- available in the standard pharmacopeia. But those drugs can have some nasty side effects, and their utility in treating PTSD is questionable, and, noting reports of negative consequences, the Army has warned against over reliance on them.
In a Saturday clinical track devoted to MDMA and PTSD, researchers reported on success in Phase II clinical trials (after Phase I studies had proven safety), as well as efforts to get more studies up and running, and the hoops they have to jump through to do so. Canadian researcher Andrew Feldmar perhaps best summed up professional exasperation with the complexities of doing research on drugs governments view with skepticism and suspicion.
"Give me a break!" snorted Feldmar after relating how it took 2 ½ years and three visits from bureaucrats in Ottawa to inspect his pharmacy safe before it was approved before the safe and the study were approved. "This is not science, its politics. Those people from Ottawa were doing what power does -- cover its ass and make people doing what it doesn't want squirm. We are not discovering anything with these studies; we are just proving something we already know. This is all politics."
[image:3 align:left caption:true]While Feldmar was at least able to report that his study had been approved, researchers in Australia and England could report no such luck.
Australian researcher Martin Williams reported that a randomized, double-blind Phase II study there had been stopped in its tracks by a Human Research Ethics Committee.
"The proposal was rejected by the committee with no correspondence," Williams sighed. "We submitted a comprehensive letter of appeal, and it was quickly rejected. Like MAPS in 2000, we're a bit ahead of our time for Australia, where we face war on drugs rhetoric, the psychotherapy community has more a psychopharmacology focus, and we're facing funding and regulatory hurdles."
"For the past eight years, I've been slowly trying to persuade the medical establishment this is worth doing," said British researcher Ben Sessa, who is trying to get a Phase II study off the ground there. "We have lots of war casualties because like the USA, we have a peculiar obsession with imposing democracy around the world."
[image:4 align:right caption:true]But his government grant was denied, with regulators saying there was insufficient proof of concept, the trial would be underpowered (because it was small), and the inclusion of patients with recreational drug histories was problematic.
"Those reasons are all rubbish," snorted Sessa, who said he was revising his protocol in hopes of it being accepted. "We went for the Rolls Royce and didn't get it; maybe we'll get the Skoda," he said.
Researchers at the University of Colorado in Boulder have gotten approval for a Phase II study of MDMA with people with chronic, treatment-resistant PTSD, but it wasn't easy. Sometimes the regulatory niggling borders on the absurd, they said.
"We started two years and were waiting on approval from the DEA," said researcher Marcela Ot'alora, who is doing the study with Jim Grigsby. "We thought they read the protocol and would let us know if we were doing something inappropriate, but that wasn't the case. We had to get a 500-pound safe and we put it in the therapists' office, but no, it had to be in the treatment room. Then, we get a second inspection by the DEA, and they said we had to install alarms. We did so, and thought we were good to go. The next day, the DEA and the city zoning department came together. The zoning department said we had to have a half bath instead of a full bath, and no kitchen."
[image:5 align:left caption:true]Ot'alora showed slides of workers obediently demolishing the bath tub, but their travails weren't finished just yet.
"The zoning department said we had to find a place zoned for addiction and recovery, and my office met that criteria, so we moved the safe and alarms for a third time, then had a third DEA inspection," she related. "The local DEA said yes, but it also needed approval from headquarters. We had a congressman write a letter to the DEA to speed up the process, and now we have final approval and are screening our first participants. We hope to enroll the first one by the beginning of May."
That would appear to be a good thing, because other researchers reported that when they actually got studies up and completed, they were seeing good results. Israeli researcher Keren Tzarfatyl and Swiss researcher Peter Oohen both reported promising preliminary results from their studies.
But it was US researchers Michael and Annie Mithoefer who reported the most impressive results. They reported on a 2004 Phase II clinical trial with veterans, firefighters, and police officers. The research subjects were given MDMA (or a placebo) and psychotherapy sessions. MDMA-assisted therapy resulted in "statistically significant" declines in PTSD as measured by standard scales, the Mithoefers reported.
"We're doing Phase II studies, giving the substance to people who are diagnosed with PTSD and measuring the treatment effects. The results continue to be extremely impressive," said Michael Mithoefer. "These tools have so much promise for healing and growth. There are lots of reasons to think these will be useful and promising tools."
Existing treatments for PTSD -- cognitive-behavioral therapies, psychodynamic psychotherapies, pharmacological interventions -- too often just don't work for large numbers of sufferers, Mithoefer said. He cited estimates of 25% to 50% who don't respond favorably to existing treatments.
[image:6 align:right caption:true]"We have looming problems with veterans coming back from Iraq and Afghanistan, and most of them are not getting the treatment they need," said Mihoefer. "The Veterans Administration is overwhelmed, but also many vets just don't show up for treatment or stay in it. People with PTSD have a lot of trouble with trust, making it hard to form a therapeutic alliance. They can also either be overwhelmed by emotion and then drop out, or they are in avoidance, emotionally numb, and then the therapy doesn't work. If MDMA can increase trust and decrease fear and defensiveness, maybe it can help overcome these obstacles to successful treatment."
But even so, the research effort is starved for funds.
"This would not be happening if not for these remarkable non-profits supporting research," said Mithoefer, referring to groups like MAPS and the Beckley Foundation, which co-hosted the conference. "The government is not funding this, Big Pharma isn't funding this; the community is funding it. We are trying to build bridges, not be a counterculture, and we hope the government will get involved."
What they've found so far is definitely worth pursuing, Mithoefer said.
"We've established that for this kind of controlled use with well-screened people, there is a favorable risk-benefit ratio and no indication of neurotoxicity," he explained, although a small numbers of participants reported unhappy side effects, such as anxiety (21%), fatigue (16%), nausea (8%), and low mood (2%).
With a follow-up three years later, the Mithoefers found that the benefits of MDMA-assisted therapy remained largely intact.
"For most people, the benefits in terms of PTSD symptoms were maintained," Mithoefer reported. "With people who completed the assessment, 88% showed a sustained benefit, and assuming that those who didn't relapsed, that's still a 74% sustained benefit."
The Midhoefers are now in the midst of another Phase II study and are finding similar results. They are finding reductions in PTSD symptoms as measured by standard measures. They are also finding lots of interest among PTSD sufferers.
"More than 400 vets have called us from around the country," said Mithoefer. "The need is so great. It's heartbreaking that we can't accommodate them all."
Anna Mithoefer read to the audience some of the responses from their research subjects.
"It's like PTSD changed my brain, and MDMA turned it back," reported a 26-year-old Iraq veteran.
"Being in Iraq was bad, but what was worse was having my body back here and part of my mind still in Iraq," said a 27-year-old who had served as a turret gunner in Iraq. "This helped me come home."
"MDMA helped me in so many ways, it feels like it is gradually rewiring my brain," said a female military sex trauma survivor. "The MDMA sessions were the crack in the ice because the trauma was so solid before that. It was incredibly intense around the MDMA sessions -- a lot like popping a big bubble from the unconscious."
The Phase II studies underway or completed strongly suggest that MDMA is useful in the treatment of PTSD. The Phase II studies trying to win approval around the world could strengthen that case -- if they can overcome the political and regulatory obstacles before them. In the meantime, another 22 veterans are killing themselves each day.
special to Drug War Chronicle by veteran investigative crime journalist Clarence Walker, email@example.com
When the tech world news web site CNET published excerpts of a leaked DEA memo explaining how, during an investigation, the agency was unable to access the messages of drug dealers using the Apple iMessage system built into a Verizon cell phone, it ignited a media frenzy. "It is impossible to intercept iMessages between two Apple devices," even with a court order approved by a judge, DEA complained.
[image:1 align:right]The DEA's warning, marked "law enforcement sensitive," was the most detailed example yet of the technological obstacles law enforcement faces when attempting to conduct court-authorized surveillance on non-traditional forms of communication. Federal law enforcers have coined the catchy phrase "Going Dark" to illustrate the problem.
News stories and tech blogs nationwide highlighted the effectiveness of Apple's encryption protection from privacy invaders, particularly law enforcement. (See, for example, stories here and here.) Amidst the frenzy, what went little noted was that no one's private messages held by Apple's iMessage or any other cell phone service are actually immune from federal government snooping. Under the Stored Communications Act (SCA), if the DEA wants access to someone's messaging communications, all it has to do is get a warrant to review those messages.
Why most media accounts neglected to mention this basic fact is uncertain, but the failure to do so not only misled readers into believing their iMessage communications were secure from government spying, it also fed into and reinforced a narrative being constructed by federal law enforcement agencies -- that rapid advances in telecommunications technologies are leaving the government in danger of "Going Dark" when it comes to its ability to surveil its citizens, and something needs to be done to fix the "problem."
"Apple iMessage users should be aware that regardless of what they heard last week, their messages can be easily obtained by law enforcement pursuant to a warrant under the Electronic Communication Act [ECPA]," said Alan Butler, an in-house attorney with the Electronic Privacy Information Center (EPIC). "The ECPA provides in Title 111, commonly referred to as the Stored Communication Act, that a government entity may require the disclosure of electronic communications held by a provider electronic storage," Butler told the Chronicle by email. Even though the messages are encrypted by the phone company as they are sent by iMessage, Apple can decrypt messages and hand them over to law enforcement with a warrant!"
[image:2 align:left]"Nothing about the DEA memo says anything about trying to crack iMessage," Cato Institute analyst Julian Sanchez told the Chronicle in an email. "All it really says is that an ordinary wiretap on a cellphone's text messages isn't going to pick up iMessages, which is a no brainer because iMessages go over the Internet and not over a cell carrier."
The case that inspired the DEA memo centers around a drug investigation in Texas back in February where it was unable to intercept iMessages even though a federal judge had issued a court order approving the DEA's interception of the suspects' discussions about drug deals. Although the Federal Wiretap Act allows real-time surveillance of a device or computer, the DEA discovered in the February case that most records obtained from Verizon -- the carrier of the suspect's device -- were incomplete.
Cell phone surveillance is a key tool for law enforcement in monitoring criminal activity. The New York Times reported last June that federal, state, and local officials nationwide had requested assorted cell phone data 1.3 million times in the previous year. But iMessages can be sent through iPhones, iPads, and even Macs running the OS platform with the capability to bypass the text messaging services of a cell phone carrier. Apple revealed in January that it sees over 2 billion messages sent each day from a half-billion iOS and Mac devices that uses the iMessage to keep private conversations and text messages secure from snooping.
When iMessage was launched in 2011, company executives boasted about its "secure end-to-end" encryption, and some critics say the leaking of the DEA memo is a clever scheme by the feds to help convince lawmakers to mandate that all communication systems, including social media and internet messaging systems have a back-door mechanism to allow government access to the data.
Cato's Sanchez explained why he was leery of the DEA memo and the motives for its leaking.
EPIC attorney Alan Butler "If this leak came from law enforcement, and that's mostly who would have access to this memo, I wonder why someone would leak it," he said. "One reason might be to support the larger 'Going Dark' campaign by the Department of Justice. Another reason might be the hope that drug dealers will mistakenly assume iMessages are safe and get lazy. Those are two possibilities worth thinking about."
The DEA also complained "that iMessages between two Apple devices are considered encrypted communication and cannot be intercepted regardless of the cell phone service provider," even though in the same memo, it conceded that "sometimes the messages can be intercepted depending where the intercept is placed."
Was the DEA memo leak part of an ongoing campaign to revamp the federal laws governing surveillance of electronic communications? That's hard to prove, but showing that there is such a campaign is less difficult.
In February testimony to the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security, FBI General Counsel Valerie Caproni coined the term "Going Dark" to describe what she called federal law enforcement's rapidly diminishing ability to monitor high-tech communications products as technologies advanced over the past 10 to 15 years. Caproni singled out "social-networking sites, web-based email and peer-to-peer communications."
Other federal officials have been making similar noises.
"The FBI simply can't keep up with criminals taking advantage of online communication to hide evidence of their actions," FBI lawyer Andrew Weissman said last month during a meeting with American Bar Association.
The FBI and other federal law enforcers claim there is a growing gap between the legal authority of federal and other law enforcement agencies to intercept electronic communications pursuant to court order or direct warrant under the Communications Assistance Law Enforcement Act (CALEA) and their ability to actually do so. And they want new legislation to fix that.
Passed in 1994, CALEA law initially ordered phone companies to create a mechanism to have their systems conform to a wiretap in real-time surveillance. The Federal Communications Commission (FCC) extended CALEA in 2005 to apply to broadband providers, such as universities and Internet service providers, but messaging and social media services, such as Google Talk, Skype, Myspace, Yahoo and Facebook, as well as encrypted devices like Blackberry and Apple communications are not covered.
The FBI argues that "Going Dark" is a real and threatening possibility, with increased risk to national security and public safety. And the FCC has joined forces with the FBI by considering updating CALEA to require that digital products equipped with video or voice chats over the Internet, including Skype and Google Box Live, to rejigger their systems to allow the feds to monitor criminal activity as it happens in real time.
"We have noticed a massive upstick in the amount of FCC-CALEA inquiries within the last year, most of which are intended to address 'Going Dark' issues," said Chris Canter, a lead compliance counsel at Marashlian & Donahue , a law firm specializing in CALEA law. "This generally means that the FCC is laying the groundwork for regulatory action," he told the Chronicle.
"If we applied the FBI's logic to the cell phone carriers, it would state that every individual phone should be designed with built-in bugs," the Electronic Frontier Foundation said in a statement on CALEA. "Consumers would simply have to trust law enforcement or the phone companies not to activate those bugs without just cause."
EFF filed a Freedom of Information Act (FOIA) request with the FBI and other federal law enforcement agencies showing how the feds might try to justify forcing high-tech services to rewire their systems for expanded wiretapping purposes. The FOIA requested "information concerning the difficulties that the FBI and DOJ has encountered in conducting authorized electronic surveillance."
But so far, the Department of Justice has withheld the bulk of relevant information on the topic, provoking San Francisco US District Court Judge Richard Seeborg to order the feds to turn over the records. No court date scheduled for the feds to comply.
While law enforcement is calling for legislative changes to aid its work, critics insist that even if Congress refuses to pass laws to tackle the "Going Dark" problem, investigators can still obtain a special warrant allowing them to sneak into private residences and businesses to install a keystroke-logging system onto a computer or other devices to record passwords to unlock data they need to make a case.
The DEA adopted this same technique in the Texas case and another case where suspected drug dealers used PGP and the encrypted Web-email service identified in court records as Hushmail.com. Investigators can also send a malware to gain control of a targeted cell phone to extract the text messages, or as a last resort, obtain a warrant to seize the physical device and perform a traditional forensic analysis.
"New technologies frequently create uncertainty and the law is slow to adapt while leaving us to fight over how much surveillance we can tolerate in a free society," noted EPIC attorney Butler. "No one has quite figured out how to strike that balance in every case. However, the Fourth Amendment requires that our persons, houses, papers, and effects be protected from unreasonable search and seizures."
The battle between the imperatives of law enforcement and the privacy rights of Americans is never definitively won. Instead, it is better viewed as a never-ending series of skirmishes. And the contested terrain of this particular skirmish is your iPad.
A bi-partisan group of US representatives led by Rep. Dana Rohrabacher (R-CA) Friday introduced legislation that would end the enforcement of federal marijuana laws in states that have either legalized it or adopted medical marijuana laws. That would bring 18 medical marijuana states and two legalization states -- Colorado and Washington -- out from under the shadow of the Controlled Substances Act when it comes to marijuana law reform.
[image:1 align:left caption:true]The bill is House Bill 1523, the Respect State Marijuana Laws Act. It was not yet available online as of press time.
"This bipartisan bill represents a common-sense approach that establishes federal government respect for all states' marijuana laws," said Rohrabacher. "It does so by keeping the federal government out of the business of criminalizing marijuana activities in states that don't want it to be criminal."
Joining Rohrabacher as cosponsors of the bill were Reps. Justin Amash (R-MI), Earl Blumenauer (D-OR), Steve Cohen (D-TN), Jared Polis (D-CO), and Don Young (R-AK).
That brings to at least five the number of marijuana reform bills introduced in the 113th Congress, six if you count an industrial hemp bill. Three of those bills deal with medical marijuana, one with the ability of states to tax marijuana commerce, and one would end federal marijuana prohibition.
Reps. Polis, Blumenauer, Rohrabacher, and others also introduced that latter bill, House Bill 499, the Ending Federal Marijuana Prohibition Act, H.R. 499, which would set up a federal regulatory process -- similar to the one for alcohol -- for states that decide to legalize. Senate Judiciary Chairman Patrick Leahy (D-VT) has said he will hold hearings to examine Colorado and Washington’s new marijuana laws and explore potential federal reforms.
Marijuana law reform efforts in the Congress are being propelled not only by the continuing spread of medical marijuana laws and the impressive victories in Colorado and Washington -- each state saw 55% of voters approve legalization -- but also by ever-mounting evidence that public opinion nationwide is swinging in favor of legalization, and against federal interference in states undertaking marijuana law reforms.
A Pew poll released earlier this month had support for marijuana legalization at 52%, the highest ever for a Pew poll and the first time a Pew poll showed majority support for legalization. Five other recent opinion polls have shown support for legalization hovering at the tipping point, with two of them just under 50%, one at 50%, one at 54%, and one at 57%.
That same Pew poll also found considerable skepticism about enforcing the marijuana laws, with 72% agreeing that "government efforts to enforce marijuana laws cost more than they are worth" and 60% saying that the federal government should not try to enforce marijuana laws in states where it is legal.
"The people have spoken and members of Congress are taking action," said Bill Piper, director of national affairs for the Drug Policy Alliance. "This bill takes conservative principles and applies them to marijuana policy; in terms of the national debate it’s potentially a game-changer."
"This bill is a win for federalism and a win for public safety," said Neill Franklin, a former Maryland narcotics detective and now executive director of Law Enforcement Against Prohibition. "In a time of bitter partisanship, it is quite telling that both Republicans and Democrats are calling for respect for the reform of marijuana laws. Polls show this is a winning issue for politicians, and change is inevitable. We applaud those legislators who, rather than trying to impede this progress, stand with the vast majority of Americans who believe these laws should be respected."
"Marijuana prohibition is on its last legs because most Americans no longer support it," said Steve Fox, national political director for the Marijuana Policy Project. "This legislation presents a perfect opportunity for members to embrace the notion that states should be able to devise systems for regulating marijuana without their citizens having to worry about breaking federal law. If a state chooses to take marijuana sales away from cartels and the criminal market and put them in the hands of legitimate, tax-paying businesses, it should be able to do so without federal interference."
"We've reached a tipping point," said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance, "and it is time Congress acknowledge what voters, law enforcement, and state officials have been telling us for years: the feds should stop wasting money interfering when the states are more than capable of regulating marijuana effectively."
Even though this and the other federal marijuana reform bills have been introduced with bipartisan support, their future in the Republican-dominated House this session is murky at best. Some key committee chairs, such as Rep. Bob Goodlatte (R-VA), head of the House Judiciary Committee, are very hostile to any reform efforts. But the pressure is mounting.
A coalition of more than 175 artists, actors, athletes, elected officials, and civil rights and civil liberties advocates Tuesday sent an open letter to President Obama urging him to redouble his efforts to shift from a punitive, repressive federal criminal justice policy to one emphasizing prevention and rehabilitation.
[image:1 align:left caption:true]The US is the world's leading incarcerator, with more than 2.3 million people behind bars. The US leads the world both in absolute numbers of prisoners and in prisoners per capita, with 715 per capita, comfortably leading the nearest per capita contenders, Russia (584) and Belarus (554).
Of those 2.3 million people behind bars, more than 500,000 are charged with drug offenses. While the number of prisoners being held by the states and the number of drug offenders held by the states have begun to decline slightly in recent years as state-level policy makers grapple with economic problems, the federal prison population continues to grow, driven in part by drug offenders. According to the Bureau of Justice Statistics, there were some 95,000 federal drug war prisoners at the end of 2011, nearly half the federal prison population. That's up from only 70,000 a decade ago.
"It is critical that we change both the way we think about drug laws in this country and how we generate positive solutions that leave a lasting impact on rebuilding our communities," said hip-hop mogul Russell Simmons, who helped organize the star-studded effort. "We need to break the school to prison pipeline, support and educate our younger generations and provide them with a path that doesn’t leave them disenfranchised with limited options."
In the letter, the coalition praised Obama for criminal justice reforms he had undertaken, such as the Fair Sentencing Act, which reduced (but did not eliminate) the crack-powder cocaine sentencing disparity, but urged him to do more. "Mr. President, it is evident that you have demonstrated a commitment to pursue alternatives to the enforcement-only "War on Drugs" approach and address the increased incarceration rates for non-violent crimes," the letter said. "We believe the time is right to further the work you have done around revising our national policies on the criminal justice system and continue moving from a suppression-based model to one that focuses on intervention and rehabilitation."
The coalition called for specific reforms.
"Some of the initial policies we recommend is, under the Fair Sentencing Act, extend to all inmates who were subject to 100-to-1 crack-to-powder disparity a chance to have their sentences reduced to those that are more consistent with the magnitude of the offense," the letter said. "We ask your support for the principles of the Justice Safety Valve Act of 2013 (Senate Bill 619), which allows judges to set aside mandatory minimum sentences when they deem appropriate."
The letter also implicitly chided the Obama administration for its failure to make much use of his power to pardon and commute sentences. In fact, Obama has pardoned prisoners or commuted sentences at a much lower rate than any of his recent predecessors. He has granted only 39 pardons and one commutation (of a terminally ill cancer patient) in five years in office, while failing to act on such deserving and well-publicized cases as that of Clarence Aaron, who is now 20 years into a triple life sentence for a cocaine deal in which he was neither the buyer, seller, or supplier of the drugs.
"We ask that you form a panel to review requests for clemency that come to the Office of the Pardon Attorney," the letter said. "Well-publicized errors and omissions by this office have caused untold misery to thousands of people."
The letter also applauded Obama's "staunch commitment" to reentry programs for prisoners who have finished their sentences and urged him to expand those transition programs, and it urged him to support the Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support, and Education (Youth PROMISE) Act (House Bill 1318), "a bill that brings much needed focus on violence and gang intervention and prevention work."
The coalition also asked for a meeting with the president.
"We request the opportunity to meet with you to discuss these ideas further and empower our coalition to help you achieve your goals of reducing crime, lowering drug use, preventing juvenile incarceration and lowering recidivism rates," the letter said.
From the Hollywood community, signatories to the letter included: Roseanne Barr, Russell Brand, Jim Carrey, Cedric The Entertainer, Margaret Cho, Cameron Diaz, Mike Epps, Jamie Foxx, Jon Hamm, Woody Harrelson, Ron Howard, Eugene Jarecki, Scarlett Johannson, the Kardashians, LL Cool J, Eva Longoria, Demi Moore, Michael Moore, Tim Robbins, Chris Rock, Susan Sarandon, Sarah Silverman, Jada Pinkett Smith, Will Smith, and Mark Wahlberg.
From the music community, signatories included: Big Boi of Outkast, Sean "Diddy" Combs, Chuck D, DJ Envy, DJ Pauly D, Ani Difranco, Missy Elliot, Ghostface Killah, Ginuwine, Jennifer Hudson, Ice-T, Talib Kweli, John Legend, Ludacris, Lil Wayne, Natalie Maines, Nicky Minaj, Busta Rhymes, Rick Ross, RZA, and Angela Yee.
From the civil rights and civil liberties community, signatories included: Harry Belafonte, Julian Bond, Dr. Benjamin Chavis, Law Enforcement Against Prohibition leader Neill Franklin, Rev. Jesse Jackson, NAACP head Benjamin Todd Jealous, National Urban League leader Marc Morial, Drug Policy Alliance head Ethan Nadelmann, Rev. Al Sharpton, ACLU head Anthony Romero, Families Against Mandatory Minimums head Julie Stewart, and Dr. Boyce Watkins.
From the faith community, signatories included: Bishop James Clark, Bishop Noel Jones, Bishop Clarence Laney, Bishop Edgar Vann, Dr. Iva Carruthers, Deepak Chopra, Father Michael Pfleger, Rabbi Robyn Fryer Bodzin, Rabbi Menachem Creditor, Rabbi Nina Mandel, Rev. Jamal Bryant, Rev. Delman Coates, Rev. Leah D. Daughtry, Rev. Dr. Fredrick Haynes, Rev. Michael McBride, Rev. Dr. W Franklyn Richardson, and Rev. Barbara Skinner Williams.
Media and academic figures who signed on include: CNN's TJ Holmes, Radio One's Cathy Hughes and Alfred Liggins, former MSNBC host (and now hydroponic farmer!) Dylan Ratigan, "The New Jim Crow" author Michelle Alexander, Michael Eric Dyson, Naomi Klein, Julianne Malveaux, and Spelman College's Dr. Beverly Daniel Tatum.
Also signing were businessmen Virgin Airlines magnate Sir Richard Branson, US Black Chamber of Commerce head Ron Busby, and St. Louis Rams owner Chip Rosenbloom, elected officials Congressman Tony Cardenas (D-CA), Congressman Keith Ellison (D-MN), Congresswoman Marcia Fudge (D-OH), Congresswoman Barbara Lee (D-CA), Congressman Bobby Rush (D-IL), and Congressman Bobby Scott (D-VA), and professional athletes Brendon Ayanbadejo, Lamar Odom, Isaiah Thomas, and MikeTyson, among others.
"The letter is intended to be a respectful appeal to the Obama administration asking that we develop productive pathways to supporting families that have been harmed by the War on Drugs," said Dr. Boyce Watkins, author, entrepreneur, and current scholar in residence in entrepreneurship and innovation at Syracuse University. "Countless numbers of children have been waiting decades for their parents to come home, and America is made safer if we break the cycle of mass incarceration. Time is of the essence, for with each passing year that we allow injustice to prevail, our nation loses another piece of its soul. We must carefully examine the impact of the War on Drugs and the millions of living, breathing Americans who've been affected. It is, quite simply, the right thing to do."
"So called 'tough on crime' policies have failed our nation and its families, while 'smart on crime' policies work," said NAACP head Benjamin Todd Jealous. "When we know that drug treatment is seven times more effective than incarceration for drug addicts, basic human decency demands our nation makes the switch. The fate of hundreds of people and the children who need them home and sober hang in the balance. Great progress is being made in states from New York to Georgia with strong bipartisan support. The time has come for all of us to do all that we can. The future of our families, states, and nation demand it."
Will President Obama respond to this clarion call for action? Stay tuned.
special to Drug War Chronicle by independent investigative journalist Clarence Walker, firstname.lastname@example.org
Blocked by a Supreme Court decision from using GPS tracking devices without a warrant, federal investigators and other law enforcement agencies are turning to a new, more powerful and more threatening technology in their bid to spy more freely on those they suspect of drug crimes. That's leading civil libertarians, electronic privacy advocates, and even some federal judges to raise the alarm about a new surveillance technology whose use has yet to be taken up definitively by the federal courts.
[image:1 align:right caption:true]The new surveillance technology is the StingRay (also marketed as Triggerfish, IMSI Catcher, Cell-site Simulator or Digital Analyzer), a sophisticated, portable spy device able to track cell phone signals inside vehicles, homes and insulated buildings. StingRay trackers act as fake cell towers, allowing police investigators to pinpoint location of a targeted wireless mobile by sucking up phone data such as text messages, emails and cell-site information.
When a suspect makes a phone call, the StingRay tricks the cell into sending its signal back to the police, thus preventing the signal from traveling back to the suspect's wireless carrier. But not only does StingRay track the targeted cell phone, it also extracts data off potentially thousands of other cell phone users in the area.
Although manufactured by a Germany and Britain-based firm, the StingRay devices are sold in the US by the Harris Corporation, an international telecommunications equipment company. It gets between $60,000 and $175,000 for each Stingray it sells to US law enforcement agencies.
[While the US courts are only beginning to grapple with StingRay, the high tech cat-and-mouse game between cops and criminals continues afoot. Foreign hackers reportedly sell an underground IMSI tracker to counter the Stingray to anyone who asks for $1000. And in December 2011, noted German security expert Karsten Nohl released "Catcher Catcher," powerful software that monitors a network's traffic to seek out the StingRay in use.]
Originally intended for terrorism investigations, the feds and local law enforcement agencies are now using the James Bond-type surveillance to track cell phones in drug war cases across the nation without a warrant. Federal officials say that is fine -- responding to a Freedom of Information Act (FOIA) request filed by the Electronic Freedom Foundation (EFF) and the First Amendment Coalition, the Justice Department argued that no warrant was needed to use StingRay technology.
"If a device is not capturing the contents of a particular dialogue call, the device does not require a warrant, but only a court order under the Pen Register Statute showing the material obtained is relevant to an ongoing investigation," the department wrote.
The FBI claims that it is adhering to lawful standards in using StingRay. "The bureau advises field officers to work closely with the US Attorney's Office in their districts to comply with legal requirements," FBI spokesman Chris Allen told the Washington Post last week, but the agency has refused to fully disclose whether or not its agents obtain probable cause warrants to track phones using the controversial device.
And the federal government's response to the EFF's FOIA about Stingray wasn't exactly responsive. While the FOIA request generated over 20,000 records related to StingRay, the Justice Department released only a pair of court orders and a handful of heavily redacted documents that didn't explain when and how the technology was used.
The LA Weekly reported in January that the StingRay "intended to fight terrorism was used in far more routine Los Angeles Police criminal investigations," apparently without the courts' knowledge that it probes the lives of non-suspects living in the same neighborhood with a suspect.
Critics say the technology wrongfully invades technology and that its uncontrolled use by law enforcement raised constitutional questions. "It is the biggest threat to cell phone privacy you don't know about," EFF said in a statement.
ACLU privacy researcher Christopher Soghoian told a Yale Law School Location Tracking and Biometrics Conference panel last month that "the government uses the device either when a target is routinely and quickly changing phones to thwart a wiretap or when police don't have sufficient cause for a warrant."
"The government is hiding information about new surveillance technology not only from the public, but even from the courts," ACLU staff attorney Linda Lye wrote in a legal brief in the first pending federal StingRay case (see below). "By keeping courts in the dark about new technologies, the government is essentially seeking to write its own search warrants, and that's not how the Constitution works."
Lye further expressed concern over the StingRay's ability to interfere with cell phone signals in violation of Federal Communication Act. "We haven't seen documents suggesting the LAPD or any other agency have sought or obtained FCC authorization," she wrote.
[image:2 align:left caption:true]"If the government shows up in your neighborhood, essentially every phone is going to check in with the government," said the ACLU's Soghoian. "The government is sending signals through people's walls and clothes and capturing information about innocent people. That's not much different than using invasive technology to search every house on a block," Soghoian said during interviews with reporters covering the StingRay story.
Advocates also raised alarms over another troubling issue: Using the StingRay allows investigators to bypass the routine process of obtaining fee-based location data from cell service providers like Sprint, AT&T, Verizon, T-Mobile and Comcast. Unlike buying location data fro service providers, using StingRay leaves no paper trail for defense attorneys.
Crack defense attorney Stephen Leckar who scored a victory in a landmark Supreme Court decision over the feds' warrantless use of a GPS tracker in US v. Jones, a cocaine trafficking case where the government tracked Jones' vehicle for weeks without a warrant, also has concerns.
"Anytime the government refuses to disclose the ambit of its investigatory device, one has to wonder, what's really happening," he told the Chronicle. "If without a warrant the feds use this sophisticated device for entry into people's homes, accessing private information, they may run afoul of a concurring opinion by Justice Alito, who ruled in US v Jones whether people would view unwarranted monitoring of their home or property as Constitutionally repugnant."
Leckar cited Supreme Court precedent in Katz v. US (privacy) and US v. Kyllo (thermal imaging), where the Supreme Court prohibited searches conducted by police from outside the home to obtain information behind closed doors. Similar legal thinking marked February's Supreme Court decision in a case where it prohibited the warrantless use of drug dogs to sniff a residence, Florida v. Jardines.
The EFF FOIA lawsuit shed light on how the US government sold StingRay devices to state and local law enforcement agencies for use specifically in drug cases. The Los Angeles and Fort Worth police departments have publicly acknowledged buying the devices, and records show that they are using them for drug investigations.
"Out of 155 cell phone investigations conducted by LAPD between June and September 2012, none of these cases involved terrorism, but primarily involved drugs and other felonies," said Peter Scheer, director of the First Amendment Center.
The StingRay technology is so new and so powerful that it not only raises Fourth Amendment concerns, it also raises questions about whether police and federal agents are withholding information about it from judges to win approval to monitor suspects without meeting the probable cause standard required by the Fourth. At least one federal judge thinks they are. Magistrate Judge Brian Owsley of the Southern District of Texas in Corpus Christi told the Yale conference federal prosecutors are using clever techniques to fool judges into allowing use of StingRay. They will draft surveillance requests to appear as Pen Register applications, which don't need to meet the probable cause standards.
"After receiving a second StingRay request," Owsley told the panel, "I emailed every magistrate judge in the country telling them about the device. And hardly anyone understood them."
In a earlier decision related to a Cell-site Simulator, Judge Owsley denied a DEA request to obtain data information to identify where the cell phone belonging to a drug trafficker was located. DEA wanted to use the suspect's E911 emergency tracking system that is operated by the wireless carrier. E911 trackers reads signals sent to satellites from a cell phone's GPS chip or by triangulation of radio transmitted signal. Owsley told the panel that federal agents and US attorneys often apply for a court order to show that any information obtained with a StingRay falls under the Stored Communication Act and the Pen Register statute.
DEA later petitioned Judge Owsley to issue an order allowing the agent to track a known drug dealer with the StingRay. DEA emphasized to Owsley how urgently they needed approval because the dealer had repeatedly changed cell phones while they spied on him. Owsley flatly denied the request, indicating the StingRay was not covered under federal statute and that DEA and prosecutors had failed to disclose what they expected to obtain through the use of the stored data inside the drug dealer's phone, protected by the Fourth Amendment.
"There was no affidavit attached to demonstrate probable cause as required by law under rule 41 of federal criminal procedures," Owsley pointed out. The swiping of data off wireless phones is "cell tower dumps on steroids," Owsley concluded.
But judges in other districts have ruled favorably for the government. A federal magistrate judge in Houston approved DEA request for cell tower data without probable cause. More recently, New York Southern District Federal Magistrate Judge Gabriel Gorenstein approved warrantless cell-site data.
"The government did not install the tracking device -- and the cell user chose to carry the phone that permitted transmission of its information to a carrier," Gorenstein held in that opinion. "Therefore no warrant is needed."
In a related case, US District Court Judge Liam O'Grady of the Northern District of Virginia ruled that the government could obtain data from Twitter accounts of three Wikileakers without a warrant. Because they had turned over their IP addresses when they opened their Twitter accounts, they had no expectation of privacy, he ruled.
A federal judge in Arizona is now set to render a decision in the nation's first StingRay case. After a hearing last week, the court in US v. Rigmaiden is expected to issue a ruling that could set privacy limits on how law enforcement uses the new technology. Just as the issue of GPS tracking technology eventually ended up before the Supreme Court, this latest iteration of the ongoing balancing act between enabling law enforcement to do its job and protecting the privacy and Fourth Amendment rights of citizens could well be headed there, too.
Rocky Mountain National Park, Colorado
When Colorado voters last November gave the thumbs up to marijuana legalization, the celebrations came quickly, with overjoyed pot smokers triumphantly lighting up, even though the pot laws had yet to officially change. Indeed, in following the will of the voters, Gov. John Hickenlooper (D) within weeks announced that marijuana was no longer illegal in Colorado.
But that was only the beginning. Amendment 64, the marijuana legalization initiative approved by the voters, didn't just legalize marijuana -- it also called on the state to come up with a regulatory regime for legal marijuana commerce. That process is now well underway, with the state legislature currently considering implementation legislation.
The legislature is working on a framework crafted by a Hickenlooper-appointed Amendment 64 Implementation Task Force, which in mid-March released its Final Report with 58 discrete recommendations for the legislature to consider. The highlights included:
- The adult-use marijuana industry should be required to have common ownership from seed to sale. This vertical integration regulatory model means that cultivation, processing and manufacturing, and retail sales must be under common ownership.
- During the first year of licensing, only entities with valid medical marijuana licenses should be able to obtain licenses to grow, process and sell adult-use cannabis.
- A new Marijuana Enforcement Division in the Department of Revenue would be funded by General Fund revenue for the next five years and would provide the necessary regulatory oversight of all marijuana industries in Colorado.
- Refer a ballot initiative to voters this November for a 15% excise tax, with the first $40 million of excise tax proceeds going to the state’s school construction fund as outlined in Amendment 64, and a "marijuana sales tax" to create funding sources to cover the costs of regulating the industry, implementing consumer safeguards and establishing youth prevention and treatment programs.
- Only Colorado residents should be allowed to hold licenses to grow, process and sell adult-use cannabis. But sales to both residents and visitors to the state should be permitted, with stricter quantity limits for visitors.
- All types of marijuana sold from adult use cannabis retail facilities should be in child-proof packaging and have warning labels that detail tetrahydrocannabinol (THC) potency and list all pesticides, herbicides, fungicides and solvents used in cultivation or processing.
Other recommendations included not allowing pot smoking in bars or other facilities impacted by the state's anti-smoking laws, barring "open containers" of marijuana in vehicles, and requiring people with children at home to keep their marijuana gardens secure.
"This is a very comprehensive report, developed in a rapid timeframe, that lays the groundwork for the establishment of a robust regulatory framework, with adequate funding for marijuana industry oversight and enforcement, consumer protection and prevention and treatment programs for young people," said Task Force co-chair and governor's legal counsel Jack Finlaw. "The Task Force recommendations will now need to be perfected through the legislative process and rulemakings by various state agencies."
While there is some quibbling over the various recommendations and some concerns about what the legislature might do, Amendment 64 proponent (and now Marijuana Policy Project communications director) Mason Tvert said things were going pretty much as expected.
"The goal is to establish regulated retail stores that provide marijuana to adults, and we are steadily moving toward that," he said. "There are obviously lots of details to be worked out, and lots of different opinions on those details, but overall, we're moving in the direction of accomplishing our goal. There is debate over vertical integration, whether sales should be restricted to non-residents, the levels of sales tax -- these are all important issues, but overall things are going well, and we're well on our way to having a system of regulated marijuana cultivation and sales in Colorado."
Now, the Task Force recommendations are before a joint legislative committee charged with turning them into regulatory legislation. The committee had hoped to be done by the end of March, but progress has been slow, and the new deadline date is next week. If the committee meets that deadline, that will give the legislature as a whole exactly one month to craft and pass enabling legislation before the session ends.
The politicians are doing what they are supposed to do, said Tvert. There have been no real attempts to sabotage the will of the voters, and legislators are trying with good faith to implement Amendment 64.
"Generally, elected officials have been responsive," he said. "There have been some proposals for restrictions, but overall, they are moving forward to pass this. There is really nothing else they can do. For most Coloradans, this is going exactly as planned. For people in the industry, for advocates, for elected officials, there are lots of details being debated and it can feel like there's a lot of drama, but overall, everything's happening as it's supposed to."
The clock is ticking in Colorado. The voters have already voted to legalize marijuana. Either the legislature passes regulations to implement it -- and quite possibly puts anticipated taxes on the ballot, as required by state law for any new taxes -- and Colorado has legal, taxed and regulated marijuana commerce, or it simply has legal marijuana possession with no taxes and no regulations. The threat of the latter should be enough to ensure the success of the former.