Defense Attorney Lauren K. Johnson won a major court victory for parents who legally use marijuana for medical purposes last week in Los Angeles. In the case of Drake A. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that there was no evidence showing that the defendant, a father, is a substance abuser for simply being a legal medical marijuana patient. The court confirmed that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor’s approval, isn’t necessarily a drug abuser.
The father, “Paul M.” was placed under DCFS (Department of Children and Family Services) supervision after he testified in an October 2011 hearing that he used medical marijuana about four times a week for knee pain. During that same hearing, he also stated that he never medicates in front of his children, nor is he under the influence while they are in his care. DCFS supervision requires drug counseling, parenting classes and random drug testing. During subsequent drug screenings the father tested positive for marijuana, and negative for all other drugs. As a result, the Superior Court of Los Angeles ruled that the child was to become a “dependent of the court based on the trial court’s finding that [the] father’s usage of medical marijuana placed the child at substantial risk of serious physical harm or illness…”.
“Paul M.” appealed the former court’s ruling, which was challenged in the Second Appellate District of California. The Appellate court subsequently ruled in favor of reversing the Superior court’s judgment. The official ruling stated “[that the] DCFS failed to show that [the] father was unable to provide regular care for Drake [the minor child at issue] due to father’s substance abuse. Both DCFS and the trial court apparently confused the meanings of the terms ‘substance use’ and ‘substance abuse’.”
Johnson issued a press release noting that this is the first case to distinguish between marijuana use and abuse with regards to child protection laws. “In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the ‘mere usage of drugs,’ including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court.” She went on to say, “The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states. We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm.”
This has been a pervasive issue in California, as well as other medical marijuana states. Legal patients have lost custody of their children and been forced to turn their children over to a juvenile protection agency. The NORML Women’s Alliance has been working hard to bring this issue to the forefront. NORML Women’s Alliance Director Sabrina Fendrick issued the following statement; “This ruling is a small victory in our fight for legal marijuana patients’ parental rights. We hope that future judicial hearings, as well as child protection agencies will utilize this judgment and adopt new policies that reflect the Appellate court’s ruling.”
Our anti-prohibitionist friends at the prestigious Washington, DC think-tank The Cato Institute will feature a live debate today at 4PM (eastern) entitled The Law and Politics of Marijuana Prohibition. The main focus of the debate, in the wake of Colorado and Washington voters recently approving binding ballot initiatives legalizing and taxing cannabis, is the very important–and unknown–federal response to this next generation of state-based cannabis law reforms that run afoul of the current–and unpopular–federal prohibition on cannabis that is now seventy-five years old.
According to Gallup and PPP polling–to say nothing of the vote totals in Colorado and Washington–more than fifty percent of the population supports legalizing cannabis. Even more recent Gallup polling strongly indicates Americans want the federal government to respect states’ efforts to reform cannabis laws.
Representing the argument that the states can indeed expand personal civil liberties via reform of cannabis laws is Vanderbilt law professor Robert Mikos, and representing, well, the status quo, is former congressman and Drug Enforcement Administration head Asa Hutchinson (who argues that states can’t legalize cannabis, because that will violate federal laws…cannabis is an evil drug…blah-blah-blah).
Also of great note, in advance of today’s live debate, The Cato Institute released a new (and compelling) academic paper by Professor Mikos entitled ‘On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans’
You can watch this debate @ 4PM eastern live here.
Today, for the first time in 89 years (Washington lawmakers initially outlawed cannabis in 1923, 14 years ahead of the enactment of federal prohibition.), an adult may possess up to one ounce cannabis (and/or up to 16 ounces of marijuana-infused product in solid form, and 72 ounces of marijuana-infused product in liquid form) for their own personal use in private — and they may do so without being in violation of state law.
To be clear: This is not decriminalization — a policy change that amends criminal penalties for minor marijuana offenses, but that continues to define cannabis as illegal contraband under the law and subjects its consumers to civil penalties. Today in Washington, cannabis — when possessed in private by an adult in specific quantities — is a legal commodity. (By contrast, public consumption of cannabis is a civil violation. Existing penalties regarding home cultivation for non-patients remain unchanged. Rules regarding the regulated sale of cannabis to adults are to be codified later next year.)
Nevertheless, the immediate statutory changes effective today provide unprecedented legal protections for adult cannabis consumers. Rather than presuming cannabis to be illicit, and that those who possess it are engaged in illegal activity, the enactment of I-502 mandates law enforcement and prosecutors to presume that cannabis is in fact legal, and that those who possess it in personal use quantities are engaged in legal activity, unless the state can show that there are extenuating circumstances proving otherwise. Moreover, since up to one ounce of cannabis will no longer be classified as an illicit commodity under state law, police will have no legal authority to seize it from lawful adults. Finally, police will arguably no longer be permitted to legally engage in ‘fishing expeditions’ when they encounter cannabis in ‘plain view’ –- such as in someone’s home or in their car. Since marijuana is no longer defined as contraband, state police will no longer have sufficient cause to engage in a further search of the area because, legally, no criminal activity has taken place.
Yes indeed, the dominoes are falling and more will fall imminently. (Colorado’s legalization measure will take effect in early January.) And there is very little that the federal government — which on the eve of legalization said only that it is ‘reviewing’ the new law — can do to stop it. States are not mandated to criminalize marijuana or arrest adult cannabis consumers and the Federal government cannot compel prosecutors in Colorado or Washington to do otherwise.
Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s ‘Nobel Experiment’ with alcohol prohibition come to an end? When a sufficient number of states enacted legislation repealing the state’s alcohol laws prohibition effectively discontinued. With state police and prosecutors no longer enforcing the Federal government’s unpopular law, politicians eventually had no choice but to abandon the policy altogether.
History now repeats itself.
The scent of reform and rational marijuana policies must be drifting across the Rockies into distant areas of the country, as today the Indiana State Police Chief stated that he would tax and regulate marijuana.
Speaking during a budget committee hearing, Indiana State Police Superintendent Paul Whitesell was asked about marijuana, his answer was quite frank:
“It’s here, it’s going to stay, there’s an awful lot of victimization that goes with it. If it were up to me, I do believe I would legalize it and tax it, particularly in sight of the fact that several other states have now come to that part of their legal system as well.”
When officials holding upper echelon positions in state law enforcement start calling for the end of prohibition and the implementation of sensible reforms, a nationwide awakening can’t be too far off.
Read more here.
Arresting and prosecuting low level marijuana offenders in New York City has little or no impact on law enforcement efforts to reduce violent crime, according to a study released today by Human Rights Watch, an international advocacy organization that focuses on human rights violations worldwide.
The study’s authors reviewed data from the New York Department of Criminal Justice Services to track the criminal records of nearly 30,000 people who had no prior convictions when they were arrested for marijuana possession in public view [NY State Penal Law 221.10] in 2003 and 2004. Researchers assessed whether those arrested for minor marijuana violations engaged in additional, more serious criminal activity in the years following their arrest.
They reported: “[W]e found that 3.1 percent of [marijuana arrestees] were subsequently convicted of one violent felony offense during the six-and-a-half to eight-and-a-half years that our research covers; 0.4 percent had two or more violent felony convictions. That is, 1,022 persons out of the nearly 30,000 we tracked had subsequent violent felony convictions. Ninety percent (26,315) had no subsequent felony convictions of any kind.”
New York City police arrest more people for possessing small amounts of marijuana in public view than for any other offense, the study found. Between 1996 and 2011, police made more than half-a-million (586,320) arrests for this misdemeanor, including a total of around 100,000 in just the 2 years of 2010 and 2011. Of those arrested, the overwhelming majority are either Black or Latino and under 25 years of age.
Investigators concluded: “[T]he rate of felony and violent felony conviction among this group of first-time marijuana arrestees appears to be lower than the rate of felony conviction for the national population, taking into account age, gender, and race. … Neither our findings nor those of other researchers indicate the arrests are an efficient or fair means for identifying future dangerous felons.”
Under New York state law, the private possession of up to 25 grams of marijuana is a non-criminal civil citation, punishable by a $100 fine. By contrast, the possession of any amount of cannabis in public view is a criminal misdemeanor.
In June, Democrat Gov. Andrew Cuomo urged lawmakers to close the ‘public view’ loophole. That effort was ultimately quashed by, Senate majority leader, Republican Dean Skelos, who argued, “Being able to just walk around with ten joints in each ear, and it only be a violation, I think that’s wrong.”
In October, Gov. Cuomo reiterated his support for amending the state’s marijuana laws. Speaking a the New York State Trooper Class of 2012 graduation ceremony, Cuomo said that he “would not consider” convening a special legislative session unless lawmakers were willing to consider reforms to reduce New York City’s skyrocketing marijuana arrest rates.