The nationwide movement to legalize the responsible use of marijuana is a badly needed change in public policy, because it will eventually eliminate all but a few of the 700,000 marijuana arrests that occur each year in this country (there will always be a few who insist on operating outside the limits set by legalization). That fact alone would justify ending prohibition. We are needlessly criminalizing millions of otherwise law-abiding marijuana smokers.
The Fourth Amendment Protections
But the struggle to legalize marijuana is also part of a broader movement to protect the individual from the awesome power of the state. And one of the important consequences of legalization will be to strengthen the Fourth Amendment protection we all enjoy from unreasonable searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is part of the Bill of Rights, and was adopted in response to the abuse of the writ of assistance, a general search warrant, issued arbitrarily by the British in pre-revolutionary America and not requiring any probable cause to believe a crime had been committed. The amendment was first introduced in the Congress in 1789 by James Madison, and was ratified by the necessary three-quarters of the states in 1791.
Search Protections Eroded Over Time
But the clear intent of the Fourth Amendment has been eroded over the years by legal exceptions carved-out by the courts, including exceptions for motor vehicles, evidence of a crime in plain view, exigent circumstances, and consent searches, among others.
The law enforcement establishment all across this country have for too long used the marijuana laws to justify searches that would otherwise be a violation of one’s Fourth Amendment protections. In those states in which marijuana remains illegal, the courts have consistently held that the smell of marijuana provides police with the legal right to search the passenger compartment of an automobile, without a warrant. And traffic stops (often based on illegal profiling) account for a significant segment of the marijuana arrests that occur each year in this country.
So it is wise never to smoke in your car; and if you carry any marijuana in your car, even small amounts, you should keep it in a locked container in the trunk.
And in other situations, such as when the police come to your door for any reason, and claim they smell marijuana, that alone provides the probable cause required to obtain a search warrant to search the home. As does the sight of any marijuana or smoking paraphernalia, which is why one should never leave either marijuana or evidence of marijuana smoking (pipes or papers or ashtrays with roaches) in plain sight.
Extraordinary Olfactory Claims By Police
To take advantage of this exception to the 4th Amendment, police often claim extraordinary olfactory prowess. And it is not just the smell of burning marijuana (or recently burned marijuana) that the police claim they can identify. They also claim to smell raw marijuana that has been sealed in odor-proof packaging, from a significant distance.
And far too frequently, the police are flat-out lying when they make that claim, apparently believing the end justifies the means. By using this ruse, they gain access to people and places they would otherwise be unable to go.
Good criminal defense lawyers often challenge these searches with a motion to suppress the evidence, offering testimony from the defendant that no one had been smoking marijuana in the car when it was stopped for an alleged traffic offense. But these are seldom successful, as the judge generally believes the testimony from the man in uniform, even in situations in which the defendant presents scientific evidence challenging the officer’s ability to smell the marijuana.
Some in law-enforcement acknowledge their primary opposition to legalizing marijuana is that it will reduce their ability to arrest people whom they arbitrarily believe are involved in more serious crime. This is especially a problem in minority communities, and has contributed to the distrust of police in those communities.
By legalizing marijuana, we actually help the police begin to rebuild some credibility with the communities they serve. Once they are again seen as public servants keeping our communities safe from serious crime, instead of heavy-handed bullies looking for an excuse to search and arrest otherwise law-abiding citizens who smoke marijuana, law enforcement will once again find they are supported and valued by average citizens.
The Good News
The good news is that as we gradually legalize marijuana in more and more states, we are also restoring the right of citizens in those states to be free from unreasonable searches and seizures. Once marijuana is no longer contraband, the smell of marijuana no longer provides probable cause for a search, whether in an automobile or in a home.
This fight to legalize marijuana is only incidentally about marijuana; it is really about personal freedom. And with each new legalization victory we return a measure of personal freedom to the citizens of that state.
This column first ran on Marijuana.com.
Australian lawmakers are anticipated to approve landmark legislation in the coming months allowing for the production and use of cannabis for therapeutic purposes.
The legislation, which is backed by Australia’s Prime Minister, Health Minister, and leading political parties, amends national drug laws to permit for the licensed cultivation and distribution of medicinal cannabis.
The move by Parliament follows recent efforts by several Australian territories to provide patients participating in clinical trials with access to the plant.
“This government understands that there are some Australians suffering from severe conditions for which cannabis may have applications,” Health Minister Sussan Ley told Parliament this week. “[W]e want to enable access to the most effective medical treatments available.”
She added, “Allowing controlled cultivation locally will provide the critical missing piece for a sustainable legal supply of safe medicinal cannabis products for Australian patients in the future.”
To date, only Canada, Israel, and the Netherlands federally license private growers to provide medical marijuana to qualified patients. Colombia, Jamaica, and Puerto Rico are also expected to begin licensing medical marijuana manufacturing in the near future.
In 2013, Uruguay officials approved legislation authorizing the retail production and sale of cannabis to those age 18 and older. Consumers in that country are anticipated to be able to begin purchasing cannabis at state-licensed pharmacies by mid-2016.
Cannabinoids are safe and effective in the treatment of chronic pain conditions, according to a review of recent clinical trials published online ahead of print in the Canadian Journal of Anesthesia.
Investigators at the University of Montreal, Department of Anesthesiology evaluated the results of 26 clinical trials “of good or excellent quality” involving 1,364 subjects. Trials assessed the use of various types of cannabinoid preparations, including herbal cannabis, liquid and oral cannabis extracts, and synthetic cannabinoid agents in pain treatment.
Authors reported that cannabinoids were efficacious in alleviating various types of pain, including pain due to neuropathy, musculoskeletal disorders, fibromyalgia, HIV, and other chronic pain conditions.
They concluded, “Overall, the recent literature supports the idea that currently available cannabinoids are modestly effective analgesics that provide a safe, reasonable therapeutic option for managing chronic non-cancer-related pain and possibly cancer-related pain.”
Their conclusion mimics that of a 2015 systematic review published in the Journal of Neuroimmune Pharmacology that reported, “[C]annabinoids are safe, demonstrate a modest analgesic effect, and provide a reasonable treatment option for treatment of chronic non-cancer pain.”
An abstract of the study, “Medical cannabis: considerations for the anesthesiologist and pain physician,” appears online here.
I am periodically amused when we receive an email or phone call at NORML from an enthusiastic, usually young, supporter, advising us he/she has found the missing link to marijuana legalization: come up with a new name for our favorite herb.
That’s right. Some who are new to the issue, when they first discover the racist under-pinning’s of both marijuana prohibition, and the word “marijuana” itself, naively think if we could just stop using the word “marijuana,” and instead use “cannabis” or some other synonym, our opposition would suddenly disappear, and we would have a clear path to legalization.
I wish it were that simple. But it is not the name we use that makes it difficult to legalize marijuana; it is the misinformation left from decades of government anti-marijuana propaganda. We are having to re-educate millions of Americans about marijuana, including especially those in the media and our elected officials.
At NORML we do not follow some stylebook, and we use all kinds of words to describe marijuana at different times. I’m an old-timer so I generally stick with “marijuana,” and I do not consider it a negative term. It’s the name most Americans use to identify the plant. But others at NORML prefer “cannabis”, and our political alerts, press releases and media interviews also frequently include the use of “pot” or “weed” or other popular slang terms for marijuana.
As an aside, it is a little strange that one would write NORML, the National Organization for the Reform of Marijuana Laws, to suggest that we stop using the word “marijuana.” We are proud of the acronym NORML, a double entendre, which is also our registered service mark. We wanted to normalize marijuana smoking when we started the organization in 1970, and NORML seemed like the perfect acronym.
But more importantly, those who feel the term we choose to use in our advocacy is a primary obstacle holding the country back from legalizing marijuana, misunderstand the nature of our opponents.
Those who oppose marijuana legalization, and support prohibition, either have an exaggerated view of the potential dangers from marijuana smoking; or they have decided to oppose legalization for political reasons (e.g., they still identify marijuana smoking with radical, lefty politics).
In either case, using another word in place of marijuana will have absolutely no impact. Those who ignore the science, and believe that marijuana is “the devil’s weed,” will not assume a more rational position, regardless of what we call it. And those who consider marijuana smoking to be anti-establishment behavior will continue to think of marijuana smokers as cultural rebels, even if we call ourselves “cannabis users.” The name is inconsequential.
It’s the level of public support that determines when and where we legalize marijuana. Public attitudes, in a country as large as the US, change slowly, and gradually, over a period of time. Because of the government’s “reefer madness” campaign of the 1930s, 40s and 50s, most older Americans were effectively “brain-washed” (another term from the 50s) into believing that marijuana was dangerous and evil, and would lead to depravity. Thus it is no surprise that when NORML was founded in late 1970, only 12% of the public favored legalizing the drug. It was only by advancing a more rational understanding of marijuana and marijuana smokers over several decades that we eventually began to see higher levels of support for legalization, bringing us to where we are today, with 58% of the country nationwide now favoring an end to prohibition and the establishment of a legally regulated market.
We are finally winning this long struggle, not because we came up with a new term for marijuana; but because we took the time and made the effort to re-educate Americans about the relative safety of marijuana, as well as the important medical uses of the drug. We have finally won the hearts and minds of a majority of the country, who now understand that marijuana prohibition causes far more problems than the use of the drug itself, regardless of what name one prefers to use for marijuana.
This week we have an array of legislative updates ranging from more bills being introduced, other bills stalling, and everything in between. We have news out of Arizona, California, Florida, Hawaii, Illinois, Kansas, Maine, Maryland, New Jersey, Rhode Island, Virginia, Utah and Washington D.C.! Keep reading below to get the latest in marijuana law reform this week.
The Marijuana Advertising in Legal States (MAILS) Act was introduced this week by Senators Ron Wyden and Jeff Merkley and Representatives Earl Blumenauer and Suzanne Bonamici. This legislation would “reverse the outdated declaration by the U.S. Postal Service in December 2015 that prohibited the mailing of newspapers with ads offering to buy or sell marijuana, even if the marijuana-related ad complies with state law.” Senator Wyden says, “Our bill updates the federal approach to marijuana, ending the threat to news publications that choose to accept advertising from legal marijuana businesses in Oregon and other states where voters also have freely decided to legalize marijuana.”
Democrat Presidential candidate Hillary Clinton made comments this week in response to a question at a town hall meeting from a medical marijuana patient who asked what she would do to decriminalize the drug. Clinton responded boldly saying, “She would do a lot.” She reiterated her support for states to decide the issue and reaffirmed that, if elected President, she would reschedule marijuana from a Schedule I drug in the Controlled Substances Act to a Schedule II substance. She stated, “I have no doubt there are very real benefits to people.”
Democrat Presidential candidate Bernie Sanders also made comments this week related to marijuana policy when he addressed the question, “If elected, how would your administration address the current tension between state and federal marijuana laws?” Sanders responded, “As President, I would direct HHS and DOJ to immediately review if marijuana should be rescheduled or descheduled under the Controlled Substances Act, and I would instruct DOJ not to interfere with states who have legalized or decriminalized marijuana.”
Arizona: House Bill 2007, was introduced to defelonize minor marijuana possession offenses.Under present law, marijuana possession is classified as a felony, punishable by up to two years in jail. House Bill 2007 reclassifies minor marijuana possession offenses from a felony to a civil offense, punishable by a fine only — no arrest, no criminal prosecution, and no criminal record. #TakeAction
California: Governor Jerry Brown signed legislation that seeks to dissuade California cities and counties from enacting municipal restrictions on the cultivation and dispensing of medical marijuana by amending a drafting error in the The Medical Marijuana Regulation and Safety Act. It also removes objectionable language authorizing local governments to prohibit patients from cultivating, storing, donating, or processing marijuana for their own personal use, and by doing so, reaffirms that qualified patients have the right under state law to engage in personal cultivation absent a city or state license.
Florida: House legislation, House Bill 271, redefines industrial hemp as an agricultural crop and establishes licensing regulations to allow for the plant’s cultivation. A committee substitute version of the bill was unanimously approved by members of the House Agriculture and Natural Resources Subcommittee on Tuesday, February 2nd. We’ll keep you updated as this legislation moves forward. #TakeAction
Hawaii: Objectionable legislation is pending in the House to eliminate patients’ longstanding rights to cultivate medical marijuana. House Bill 1680 repeals patients’ legal authority to cultivate personal use quantities of cannabis. Criminalizing the personal cultivation of cannabis is an arbitrary prohibition that has absolutely no basis in public safety. For sixteen years, thousands of Hawaii patients have possessed the ability to cultivate personal use qualities of medicinal marijuana. There exists no evidence that this law has led to any sort of widespread abuse or public safety threat.. #TakeAction
Illinois: Legislation is pending in the Senate to expand Illinois’ hemp law to promote hemp-related commerce. The act seeks to establish regulations for the Department of Agriculture to license persons “desiring to grow, process, cultivate, harvest, process, possess, sell, or purchase industrial hemp or industrial hemp related products.” #TakeAction
In separate news, Illinois Governor Bruce Rauner this week rejected a recommendation from the Medical Cannabis Advisory Board to expand the state’s medical marijuana program by adding eight additional qualifying conditions. For more information on organizing patients’ efforts in Illinois, please contact Illinois NORML.
Kansas: Members of the Senate voted 38 to 1 on Wednesday, February 3, in favor of a Committee substitute version of HB 2049 to reduce criminal penalties for first-time marijuana possession offenses from a Class A misdemeanor (punishable by up to one year incarceration and a $2,500 fine) to a Class B misdemeanor (punishable by no more than six months in jail and a $1,000 fine). Second convictions will no longer be classified as a felony offense. The amended language now returns to the House for a concurrence vote. #TakeAction
Maine: Marijuana legalization advocates turned in more than 100,000 signatures to the Secretary of State’s office this week in hopes of meeting the 60,000 requirement to qualify for the 2016 ballot. Read more about this campaign here.
Maryland: House Bill 443 is pending in the General Assembly to permit the Department of Agriculture to authorize institutions of higher education to cultivate industrial hemp for academic research purposes.This legislation is scheduled to be heard Wednesday, February 10th by members of the Environment and Transportation Committee at 1:00PM. #TakeAction
Separate legislation, House Bill 665, seeks to place a constitutional amendment on the November 2016 ballot to regulate adult marijuana use. If approved by lawmakers, the bill would allow voters to decide if they wish to regulate the commercial cultivation, processing, and retail of marijuana to adults over the age of 21. You can read the full text of this proposal here. #TakeAction
New Jersey: Assembly Bill 2050, legislation to decriminalize minor marijuana possession offenses in New Jersey, is pending in the General Assembly. If approved, the legislation would remove criminal penalties for those who possess 15 grams of marijuana or less. New Jersey’s 24,765 arrests for possession of small amounts of marijuana in 2013 was the state’s highest number in 20 years. #TakeAction
Rhode Island: Governor Gina Raimondo has proposed that a new tax be imposed upon state qualified patients who choose to cultivate their own cannabis. The proposed taxes range from $150 per plant for an individual patient up to $350 per plant for growers with cultivator licenses. The proposed tax is rightfully drawing fire, from patients and other concerned citizens. For more information on efforts to oppose this change, please visit the Rhode Island Patient Advocacy Coalition.
Utah: On Thursday, February 4th, members of the Senate Judiciary, Law Enforcement, and Criminal Justice Committee moved SB 73, the Medical Cannabis Act, to the Senate floor. The legislation seeks to amend state law to permit for the state-licensed cultivation of cannabis, including strains with higher THC content, for the manufacturing of medicinal products and/or herbal preparations. We’ll keep you updated as this measure continues to move forward. #TakeAction
Virginia: House and Senate lawmakers set aside legislation that sought to eliminate criminal penalties for marijuana possession offenses. On February 3rd, Senate Bill 104, was passed by indefinitely by the Courts of Justice Committee in an 11-4 vote. This action stalls any legislative progress for now, but allows for the committee to reconsider legislation at a later meeting. It is apparent by these actions that Virginia lawmakers need to hear from constituents that marijuana law reform ought to be a legislative priority. #TakeActionWashington D.C.: A bill aimed at permanently banning private marijuana clubs in the District was pulled on Tuesday and instead Council members passed an amendment to create a seven member taskforce to look into the issue more closely. The taskforce will be made up of two members from the D.C. Council, one from the Office of the D.C. Attorney General and five from city agencies, including the Metropolitan Police Department and the D.C. Health Department, who will be appointed by Mayor Muriel Bowser.