So it seems the Seattle Police Department has released its specific directions to its officers on how to handle medical marijuana cases.
A couple of highlights:
Seattle police are under orders to focus on community safety issues where marijuana is concerned. If you have medical marijuana authorization (properly documented), it looks like the Seattle PD will take a 1-gram sample and admit it into evidence, but leave you the rest up to your legal limit. If you exceed that legal limit, but, again, have documentation, they'll take whatever exceeds it, but leave the rest. This may include actually packaging a useable supply for you (!).
Prosecutors are apparently reluctant to go after genuinely sick people, at least if those people have made a good-faith effort to get their medical marijuana paperwork in order. Also, Seattle police have been asked to try not to arrest the seriously ill.
And again I say, we live in interesting times. I do wonder whether packaging up someone's medical marijuana supply for them and letting them keep it qualifies as some kind of federal violation, but I applaud the Seattle PD's apparent willingness to make sure that sick people get to keep the medicine state law entitles them to.
Thursday, July 28, 2011
Wednesday, March 23, 2011
Policy Discussion: Hallucinogens
A while back, I mentioned that psilocybin mushrooms are "as illegal as LSD" in our dear, drippy (at least on this side of the Cascades) Washington. One thing worth discussing here is why, exactly, LSD is so very illegal. As illicit drugs go, LSD and "magic mushrooms" would seem to be low-end offenders. They're apparently not addictive, certainly not in any physical dependency sort of way, the lethal dose seems to be ... well, if there is one, it's apparently very high, and they furthermore don't seem to shred your liver, lungs, heart, or spleen. So what's the big deal?
Well, aside from the "we don't like lotus-eaters" factor and the (probably overblown) dread of some guy blitzed out of his mind on the stuff taking a shotgun to the mall, the major concern seems to be that the stuff might just shred your pretty brain meats. Unlike claims about "reefer madness" and "dope fiends," this is an argument with some teeth: apparently, long-term users can start to show some psychological ill-effects, and then there's the possibility of people who already aren't on the best terms with their brains getting worse as a result of hallucinogens. There's some indication that people with underlying mental problems can have them "triggered" by the drug.
And that's not getting into the more immediate potential for a "bad trip," or the longer-term risk for LSD users of having a trip abruptly resurface at inconvenient moments, like in traffic.
Reason enough for outright prohibition? Maybe. Psychological damage is not fun. Then again, compare to the long-term effects of alcohol abuse.
Reason enough for possession to constitute a class C felony? ... yeah, maybe not.
Well, aside from the "we don't like lotus-eaters" factor and the (probably overblown) dread of some guy blitzed out of his mind on the stuff taking a shotgun to the mall, the major concern seems to be that the stuff might just shred your pretty brain meats. Unlike claims about "reefer madness" and "dope fiends," this is an argument with some teeth: apparently, long-term users can start to show some psychological ill-effects, and then there's the possibility of people who already aren't on the best terms with their brains getting worse as a result of hallucinogens. There's some indication that people with underlying mental problems can have them "triggered" by the drug.
And that's not getting into the more immediate potential for a "bad trip," or the longer-term risk for LSD users of having a trip abruptly resurface at inconvenient moments, like in traffic.
Reason enough for outright prohibition? Maybe. Psychological damage is not fun. Then again, compare to the long-term effects of alcohol abuse.
Reason enough for possession to constitute a class C felony? ... yeah, maybe not.
Wednesday, March 16, 2011
"Supremacy" What?
So last week, I mentioned that if WA starts selling Mary Jane out of the State liquor stores, it's likely to get smacked with a suit under the Supremacy Clause (Article VI, Paragraph 2 of the Constitution of the United States of America). A little explanation might be in order here.
The Supremacy Clause is the bit of the Constitution whereby We the People declare federal law to be superior to state law. That is, where state law and federal law conflict, federal law wins. This is why, for example, Washington State can't declare its citizens exempt from the federal income tax.
Now, marijuana, whether or not WA legalizes it, will be illegal under federal law for the foreseeable future (read: "until Congress pulls its head out of the prohibitionist sand"). That, however, does not automatically mean that each state has to use its own laws and expend its own resources to enforce that illegality. The states are free to stand back and let the federal agencies handle federal law.
California cannot stand in the way when the DEA is arresting medical marijuana providers. However, it does not (under current law) have to help the DEA. You follow? This is why, if selling pot became legal in CA, the federal government would be on shaky ground in suing to try to make CA keep marijuana illegal: CA would effectively just be withdrawing its support from the "War on Drugs," where MJ is concerned, not engaging in any action that would bring it into conflict with federal law.
WA selling MJ out of its state-run liquor stores? That's another matter. That would have WA employees, and thus the state itself, in direct violation of federal law, and where state and federal laws conflict, the federal law wins.
You can't put a state in jail, but you (or, rather, the federal government) can sue it in federal court to get an injunction-- basically having a judge tell WA, "No, you're not allowed to do this." WA can appeal, but the appeal isn't likely to be very successful. On this score, the Supremacy Clause is pretty clear.
What happens if WA goes ahead and tries it anyway? Well, that's where you start getting terms like "crisis" popping up in the papers, and the president maybe sending in the national guard.
The Supremacy Clause is the bit of the Constitution whereby We the People declare federal law to be superior to state law. That is, where state law and federal law conflict, federal law wins. This is why, for example, Washington State can't declare its citizens exempt from the federal income tax.
Now, marijuana, whether or not WA legalizes it, will be illegal under federal law for the foreseeable future (read: "until Congress pulls its head out of the prohibitionist sand"). That, however, does not automatically mean that each state has to use its own laws and expend its own resources to enforce that illegality. The states are free to stand back and let the federal agencies handle federal law.
California cannot stand in the way when the DEA is arresting medical marijuana providers. However, it does not (under current law) have to help the DEA. You follow? This is why, if selling pot became legal in CA, the federal government would be on shaky ground in suing to try to make CA keep marijuana illegal: CA would effectively just be withdrawing its support from the "War on Drugs," where MJ is concerned, not engaging in any action that would bring it into conflict with federal law.
WA selling MJ out of its state-run liquor stores? That's another matter. That would have WA employees, and thus the state itself, in direct violation of federal law, and where state and federal laws conflict, the federal law wins.
You can't put a state in jail, but you (or, rather, the federal government) can sue it in federal court to get an injunction-- basically having a judge tell WA, "No, you're not allowed to do this." WA can appeal, but the appeal isn't likely to be very successful. On this score, the Supremacy Clause is pretty clear.
What happens if WA goes ahead and tries it anyway? Well, that's where you start getting terms like "crisis" popping up in the papers, and the president maybe sending in the national guard.
Tuesday, March 8, 2011
Well, now, this is cute.
A big thank you to Pete Guither over at DrugWarRant.com for providing a link to this.
As cynical as the argument that we shouldn't have "one more mind-altering substance" (it's here already and widely used, legal or not) out there makes me, I do see a bright spot or two here.
Well, sort of.
Kerlikowske is a former Seattle Chief of Police, and not in any "ancient history" kind of way, thus a man whose attitudes might be taken as representative of the harder-line local attitude. He opposed a ballot initiative making marijuana enforcement a "lowest priority" matter in Seattle, and he obviously opposes legalization now.
What I find interesting about him and his stance is that he, a career law-enforcement officer, is saying that the War on Drugs is over, and has been since 2009. I think a few Republican politicians, not to mention a few law enforcement officers, might disagree with him on that, but at least somebody mainstream in the other Washington is taking the idea that drug abuse is a medical condition to be treated rather than a criminal problem to be incarcerated seriously.
Then again, he's also signaled the likely federal response to state legalization. Note that while suing over simple legalization may be on shaky legal ground, it's quite likely that WA selling pot out of state liquor stores would be fit matter for a suit to force WA to comply with federal law under the Supremacy Clause.
Fun.
Monday, February 28, 2011
Interesting Times in Washington State
There's one major caveat, of course, to the efforts to legalize marijuana in WA: regardless of what happens here, marijuana remains a federal schedule I drug. As far as the feds are concerned, marijuana has no medical use and is just plain flat-out illegal, no matter who's selling it.
So, if Washington State actually does pass a bill legalizing marijuana-- and, what's more, regulating and selling it through state liquor stores-- what happens?
If pot was just legal in WA, this would be pretty simple: local law enforcement ignores (or is supposed to ignore) the drug trade, while the DEA still has the authority to enforce the federal law. How much federal agents would actually do would depend on several factors: the DEA has a limited budget and only so many agents, and would likely only go after major operators.
... Not that this would be much of a shield for any smaller ones swept up in the process.
This already happens vis-a-vis medical marijuana; the state allows the defense, the federals don't, and the question boils down to which system you're in.
What makes this fun is that the State of Washington is actually considering selling the stuff itself through state-owned liquor outlets. This looks on its face like it threatens to make the state itself a drug trafficker.
Could state liquor store employees be hauled off to the federal pen by the DEA? Would the agency or agencies responsible for regulating the trade be prosecuted for drug conspiracy? Could Christine Gregoire, if she signs the bill, be hauled in as a ... a drug kingpin?
It seems absurd, but if there's a reason they couldn't (aside from the sheer public spectacle and probable outrage), I can't think of it. It may be that the state is ultimately shielded only by the practicalities of the situation. The simplest approach would probably be for the federal government to sue to prevent the state from putting any marijuana-distribution system into place.
And then there's the Obama aspect: as chief executive, he has a great deal of influence over what the DEA and Justice Department do, or don't do.
History is a messy business, it seems.
So, if Washington State actually does pass a bill legalizing marijuana-- and, what's more, regulating and selling it through state liquor stores-- what happens?
If pot was just legal in WA, this would be pretty simple: local law enforcement ignores (or is supposed to ignore) the drug trade, while the DEA still has the authority to enforce the federal law. How much federal agents would actually do would depend on several factors: the DEA has a limited budget and only so many agents, and would likely only go after major operators.
... Not that this would be much of a shield for any smaller ones swept up in the process.
This already happens vis-a-vis medical marijuana; the state allows the defense, the federals don't, and the question boils down to which system you're in.
What makes this fun is that the State of Washington is actually considering selling the stuff itself through state-owned liquor outlets. This looks on its face like it threatens to make the state itself a drug trafficker.
Could state liquor store employees be hauled off to the federal pen by the DEA? Would the agency or agencies responsible for regulating the trade be prosecuted for drug conspiracy? Could Christine Gregoire, if she signs the bill, be hauled in as a ... a drug kingpin?
It seems absurd, but if there's a reason they couldn't (aside from the sheer public spectacle and probable outrage), I can't think of it. It may be that the state is ultimately shielded only by the practicalities of the situation. The simplest approach would probably be for the federal government to sue to prevent the state from putting any marijuana-distribution system into place.
And then there's the Obama aspect: as chief executive, he has a great deal of influence over what the DEA and Justice Department do, or don't do.
History is a messy business, it seems.
Saturday, February 19, 2011
Friday, February 18, 2011
Watch Your Back....
So a few years back, a couple of truck drivers along the border with our northern neighbor got picked up by the border patrol when shipments (and yes, considerably more than 40 grams) of marijuana were discovered in their cargo. In the one case, the marijuana was in an empty space in front of 18 pallets of beer. In the other, the marijuana was hidden inside a modified propane cannister.
Despite the large quantities, the prosecutors ultimately couldn't prove to the jury's satisfaction (despite the large quantities involved) that the two had been carrying the MJ intending to turn it over to someone else at the other end-- most likely because they couldn't show that the truck drivers had any idea what they were carrying.
Did these two walk free? No. Why? They were convicted of possession of a controlled substance-- more than 40 grams of marijuana, a class C felony.
Now, wait a minute: if the jury wasn't sufficiently convinced that they knew what they were carrying to say they were carrying it with intent to deliver, how the hell did they get themselves convicted of possession?
Simple answer: our two unfortunate drivers couldn't prove that they didn't know. The case is State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004), and it appears to stand as good law.
Simple possession in this state is "almost" a strict liability offense-- a category of usually-minor offenses that you don't have to have any kind of criminal mental state to commit. To give you an idea of how it works, here's a rough sketch.
Most crimes require an "evil-doing hand" (actus reus) and an "evil-thinking mind" (mens rea). Murder, for instance: you can commit it by killing somebody on purpose ("DIE!"); as a known, but not intended, side-effect of another action ("Look, pal, it's you or my favorite pen, and I like my favorite pen way better!"); or by acting with amazingly reckless disregard for human life ("You know what's really fun? Driving the wrong way down I-5. You should see the looks on people's faces!"). There are all sorts of permutations and stages and categories, like manslaughter and vehicular homicide, but they all have this much in common: if you kill somebody without having your head on wrong in some way (being a drunk driver counts as having your head on wrong), it's called an accident, and they don't generally lock you up for that.
On the other hand, if you drive through a light while it's red, what you are thinking at the time isn't worth much, unless it's to convince the judge to show mercy. That's a strict liability offense; most traffic infractions are.
So how is drug possession "almost" strict liability? Well, you get a chance to duck it: if you can prove to the jury by a preponderance of the evidence (51% or more) that you really, truly had no idea that you had that package of [fill in illicit substance here], you're off the hook.
That's you, the hypothetical defendant, trying to prove a negative, so it's a mercy that you only have to get the jury as far as "probably didn't know."
It's easy to see the policy behind this one: we don't want every drug mule who gets arrested to get off easily on the "Hey, wait a minute, man, I had no idea that was there!" defense. Doesn't everybody try to use that one?
The problem is this: supposing you're a regular cross-border commuter. Nefarious Canadian drug smuggler A knows of your schedule and home address, and decides that you're the perfect mule. Rather than bring you in on his schemes, risk exposure, and and have to pay you a cut, however, he just duct-tapes a kilo of powder cocaine behind your left-rear fender, gives your address, the make and model of your car, and the location of the package to his buddy, B, in the States, and off you go with your package-- none the wiser. B will pay you(r car) a quiet visit at about 3 AM the following morning.
Wash, rinse, repeat.
When the border guards eventually (inevitably?) pick you up, exactly how are you going to convince the jury that you probably didn't know that package was there? Especially if they haven't caught A or B? There are ways, yes, but sure ways? Even if you can bring in loads of friends to say what an upstanding person you've always been, how can you ever be sure the jury won't look at the bridge of your nose, the way your ears stick out, or the way your tie hangs and think, "Yeah, I suspect that's the face of a hypocrite"?
You can't.
If the prosecutor doesn't have to prove beyond a reasonable doubt that you knew what you were carrying, the jury is no longer bound to weigh a "can't be sure" in your favor. In short, it's a recipe for convicting the innocent alongside the guilty.
As a note, we are apparently one of only two states that handles things this way; the other is North Dakota.
So watch yourselves, out there.
Despite the large quantities, the prosecutors ultimately couldn't prove to the jury's satisfaction (despite the large quantities involved) that the two had been carrying the MJ intending to turn it over to someone else at the other end-- most likely because they couldn't show that the truck drivers had any idea what they were carrying.
Did these two walk free? No. Why? They were convicted of possession of a controlled substance-- more than 40 grams of marijuana, a class C felony.
Now, wait a minute: if the jury wasn't sufficiently convinced that they knew what they were carrying to say they were carrying it with intent to deliver, how the hell did they get themselves convicted of possession?
Simple answer: our two unfortunate drivers couldn't prove that they didn't know. The case is State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004), and it appears to stand as good law.
Simple possession in this state is "almost" a strict liability offense-- a category of usually-minor offenses that you don't have to have any kind of criminal mental state to commit. To give you an idea of how it works, here's a rough sketch.
Most crimes require an "evil-doing hand" (actus reus) and an "evil-thinking mind" (mens rea). Murder, for instance: you can commit it by killing somebody on purpose ("DIE!"); as a known, but not intended, side-effect of another action ("Look, pal, it's you or my favorite pen, and I like my favorite pen way better!"); or by acting with amazingly reckless disregard for human life ("You know what's really fun? Driving the wrong way down I-5. You should see the looks on people's faces!"). There are all sorts of permutations and stages and categories, like manslaughter and vehicular homicide, but they all have this much in common: if you kill somebody without having your head on wrong in some way (being a drunk driver counts as having your head on wrong), it's called an accident, and they don't generally lock you up for that.
On the other hand, if you drive through a light while it's red, what you are thinking at the time isn't worth much, unless it's to convince the judge to show mercy. That's a strict liability offense; most traffic infractions are.
So how is drug possession "almost" strict liability? Well, you get a chance to duck it: if you can prove to the jury by a preponderance of the evidence (51% or more) that you really, truly had no idea that you had that package of [fill in illicit substance here], you're off the hook.
That's you, the hypothetical defendant, trying to prove a negative, so it's a mercy that you only have to get the jury as far as "probably didn't know."
It's easy to see the policy behind this one: we don't want every drug mule who gets arrested to get off easily on the "Hey, wait a minute, man, I had no idea that was there!" defense. Doesn't everybody try to use that one?
The problem is this: supposing you're a regular cross-border commuter. Nefarious Canadian drug smuggler A knows of your schedule and home address, and decides that you're the perfect mule. Rather than bring you in on his schemes, risk exposure, and and have to pay you a cut, however, he just duct-tapes a kilo of powder cocaine behind your left-rear fender, gives your address, the make and model of your car, and the location of the package to his buddy, B, in the States, and off you go with your package-- none the wiser. B will pay you(r car) a quiet visit at about 3 AM the following morning.
Wash, rinse, repeat.
When the border guards eventually (inevitably?) pick you up, exactly how are you going to convince the jury that you probably didn't know that package was there? Especially if they haven't caught A or B? There are ways, yes, but sure ways? Even if you can bring in loads of friends to say what an upstanding person you've always been, how can you ever be sure the jury won't look at the bridge of your nose, the way your ears stick out, or the way your tie hangs and think, "Yeah, I suspect that's the face of a hypocrite"?
You can't.
If the prosecutor doesn't have to prove beyond a reasonable doubt that you knew what you were carrying, the jury is no longer bound to weigh a "can't be sure" in your favor. In short, it's a recipe for convicting the innocent alongside the guilty.
As a note, we are apparently one of only two states that handles things this way; the other is North Dakota.
So watch yourselves, out there.
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