Regulating Medical Marijuana

Once, in a criminology course, I asked my students whether they thought there would be less criminalizing if we regulated prostitution. At first, they all thought that we would see many less people prosecuted for prostitution-related offenses: No more john schools, no more arrests of prostitutes. Then, we all thought about the need for health codes, zoning, contact with minors, labor and employment issues, and realized that people would still be prosecuted; they'd be prosecuted for technicalities. Max Weber would have a field day.

After the demise of Prop 19, the medical marijuana industry supposedly would continue its business as usual. However, it appears that things have changed. The rate of raids on dispensaries have increased, and, as reported by the Sac Bee, advocates call for state-wide regulation of the industry. The fact that a behavior is "legal" does not mean that it is "unregulated", and does not avoid the interaction with law enforcement in situations of real or imagined violations.

Currently, under California law, dispensaries providing medical marijuana must operate as nonprofit "collectives" of registered medical marijuana patients who reimburse dispensaries for the costs of providing medicinal pot.

But medical cannabis in California has boomed into an industry generating an estimated $1.3 billion in transactions and paying hundreds of millions of dollars in salaries, rent and overhead costs.

Authorities, looking for illicit profiteering, last year raided scores of dispensaries in San Jose and Chico and prosecuted medical marijuana providers in San Diego County. The district attorney in Los Angeles, Steve Cooley, branded a local boom in medical marijuana outlets as "storefronts illegally pushing pot."

Assemblyman Tom Ammiano, D-San Francisco, said he intends to introduce an "omnibus cannabis bill" to create a state oversight program to regulate medical marijuana dispensaries and all aspects of delivering marijuana to legal medicinal users.

Ammiano said the Legislature needs to clarify the rules due to the wildly divergent approaches towards dispensaries. They are embraced in some California cities and raided in others.

How much of the need for such regulation would go away if we legalized marijuana for everyone? Some of it would. The need to supervise dispensaries for medical needs of patients would disappear. However, there would be other regulatory aspects. Dosage, sources, zoning--all of those would have to be carefully defined. Rather than checking patient ID cards, drivers' licenses would need to be checked to ensure no sales to minors. Personal growing areas would have to be measured to ensure a differentiation between a personal and a commercial growing operation. In other words, there is no guarantee that the eyes of law enforcement agent would immediately be diverted elsewhere, a-la The Eye of Sauron. More rules might mean more infractions.

What statewide regulation would do, however, is clarify the extent of commercialization we allow the medical marijuana industry. That is not necessarily a bad thing; it would be an opportunity to give some thought to the question why it has been important to keep this industry on a non-profit basis. I'd be curious to hear from our readers on this: How would you envision such statewide regulations?

CCC Talk at UH Mānoa Law School

A wee announcement for our Hawai'i readers: This Tuesday I'll be giving a talk about humonetarianism (the impact of the financial crisis on criminal justice policies) at the William S. Richardson School of Law, University of Hawaiʻi at Mānoa. Here's more info about the event, including a downloadable version of the paper. I'll be happy to have you in the audience, and meeting our blog readers in person will be a treat.

While the talk will not focus solely on Hawai'i policies, I hope our audience members will have insights and thoughts about how the crisis has impacted Hawai'i. Last year, Kat Brady spoke to the Star Advertiser about the need to bring the out-of-state inmates back home from the mainland. Brady is a true humanitarian - not a humonetarian - but among the many good reasons to bring the inmates home and find solutions for mass incarceration, she mentions the cost issue.

Do Not Cure Overcrowding with More Prison Construction!

(image courtesy CDCR from a report on AB 900 projects)

About a year and a half ago, we reported on a study showing that population reduction orders may have adverse consequences: they lead to greater expenditures and the money comes from the welfare budget. Today we learn, via the Prison Law blog, that prison litigation may have other unsavory consequences.

Here is the abstract of Heather Schonfeld's Mass Incarceration and the Paradox of Prison Conditions Litigation:

In this article I examine how prison conditions litigation in the 1970s, as an outgrowth of the civil rights movement, inadvertently contributed to the rise of mass incarceration in the United States. Using Florida as a case study, I detail how prison conditions litigation that aimed to reduce incarceration was translated in the political arena as a court order to build prisons. Drawing on insights from historical institutionalist scholarship, I argue that this paradox can be explained by considering the different historical and political contexts of the initial legal framing and the final compliance with the court order. In addition, I demonstrate how the choices made by policy makers around court compliance created policy feedback effects that further expanded the coercive capacity of the state and transformed political calculations around crime control. The findings suggest how “successful” court challenges for institutional change can have long-term outcomes that are contrary to social justice goals. The paradox of prison litigation is especially compelling because inmates' lawyers were specifically concerned about racial injustice, yet mass incarceration is arguably the greatest obstacle to racial equality in the twenty-first century.

As our readers will recall, this unhealthy dynamic played out perfectly in the oral arguments of Plata/Coleman. More than ever, and as I explained here and here, I am convinced that the inmate advocates should not have conceded that the three-jduge panel would consider new construction a suitable solution to the overcrowding problem. While her emphasis is on racial justice litigation and its discontents, Schonfeld's findings also strongly confirm what anyone with common sense and some knowledge of prison history should know by now: If you build it, they will come. Any attempt to solve overcrowding through construction is an expensive short-term solution that will yield more overcrowding in the future. If we're not humanitarian, let's at least be humonetarian, and solve our prison crisis with early releases and a parole program that offers real hope and an escape from recidivism and the revolving door.

Smart on Crime Group Release Report to Congress

Today, a diverse coalition of organizations, including the Innocence Project, the Campaign for the Fair Sentencing of Youth, the Constitution Project, the National Association of Criminal Defense Lawyers, the Brennan Center for Justice at New York University, and Families Against Mandatory Minimums, has released a comprehensive report titled Smart on Crime: Recommendations for the Administration and Congress.

We will read and assess the recommendations, but for now, here are some tidbits from the press release:

In its review of virtually every major criminal justice issue—from overcriminalization to forensic science—from juvenile justice to the death penalty—and from indigent defense to executive clemency— the report serves as both a source of information and a spur to action for the Administration and Congress.

Just two days before the release of the Smart on Crime report, Senator Jim Webb (D-VA) reintroduced the National Criminal Justice Commission Act which would “create a blue-ribbon, bipartisan commission of experts charged with undertaking an 18-month top-to-bottom review” of the nation’s criminal justice system and offering concrete recommendations for reform. The establishment of such a commission is among the major recommendations of the report.

Virginia Sloan, President of The Constitution Project, said about Smart on Crime, “The criminal justice system is supposed to be about justice—for victims, for those rightly and wrongly accused and convicted of crimes, and for all of us. But a system that costs too much and makes so many mistakes provides justice for no one. Smart on Crime contains an ever-increasing and bipartisan consensus on how to fix the problems that have for too long plagued the system.”

In addition to its recommendation that a National Criminal Justice Commission be formed, the report—developed and published by the Smart on Crime Coalition, a group of more than 40 bipartisan organizations and individuals—offers nearly 100 detailed policy recommendations across 16 criminal justice areas. While contributors do not necessarily have positions on each issue addressed, there was universal agreement that the current system—with its rampant cost, inefficiency, and injustices—is in urgent need of reform.

“Overcriminalization of federal law threatens every American’s liberty and drains the public coffers with pointless prosecutions and unnecessary incarcerations,” said Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers. “We urge every elected official to end the madness that has produced over 4,450 federal criminal statutes, and countless tens of thousands more arising from the unchecked power of regulatory authorities.”

A Smart on Crime Web site was also created to provide policy-makers, media and the public with quick and easy access to the report. In addition, visitors to besmartoncrime.org can hear report contributors share their insights on criminal justice system problems and solutions in videotaped interviews.

It is interesting that the report comes out, with references to Jim Webb, just as Webb announced that he will not run for another term.

"Art from Within": SF Inmates' Art Show

Coming up on Weds the 16th from 5:30-7:30 at the SF Public Library at 100 Larkin, the 2nd annual "Art from Within" show of art by SF inmates in the Five Keys Programs:

Juvies: The Film, The Photography

Ara Oshagan's "Juvies" from Shawn Nee / discarted on Vimeo.

The blog Boy With Grenade features an interview with photographer Ara Oshagan, who worked with filmmaker Leslie Neale on the documentary Juvies. It's an interesting interview, the film (which I have not seen yet) seems very promising, and it is a good time to reflect on the juvenile justice system.

Judge Fogel Visits San Quentin

Judge Jeremy Fogel, who ordered executions in San Quentin halted five years ago, toured the renovated San Quentin facilities to assess whether executions can proceed. ABC News report:



The L.A. Times adds:

Whether his concerns have been alleviated by rewriting of the legal protocols guiding the execution process and the physical changes made to the prison venue where death sentences are carried out was not immediately apparent.

The judge asked corrections officials questions about lighting, drug handling, conditions for witnesses and for the inmate's last hours but gave no indication whether the answers allayed his earlier concerns.

Fogel, leading an entourage of lawyers for the state, Morales and other prisoners facing execution if the practice resumes, went room to room in the clinic-like facility, inspecting the hand-lettered drug vials arrayed on two trays in the infusion room, where the execution drugs are to be mixed and delivered via intravenous tubes threaded through the wall of the adjacent death chamber.

Fogel said he hoped to have a decision about whether executions can proceed "as soon as possible" but set out a schedule for further hearings that will run at least through spring. California has 718 prisoners on death row, though only seven who have exhausted all appeals.

Death Investigations: Incompetence, Negligence, Tragic Mistakes

This excellent and disturbing Frontline documentary exposes the deplorable state of death investigations around the United States. Incompetent, inattentive pathologists, whose performance is never scrutinized, work for medical examiner offices whose accuracy and adherence to professional standards is never reviewed or accredited. People with no medical education or skills are employed as medical examiners. While numerous medical examiner offices are portrayed, considerable attention is given to terrible mistakes in Sonoma County and elsewhere in California.

This relates to the focus of this blog in two ways: First, one of the distressing implications of incompetent death investigations is the potential for wrongful convictions. And second, considering the high incidence of inmate deaths, the concern is that deaths resulting from negligence (or worse) of correctional personnel will go undetected.

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Props to Crystal Ratliff for the link.

Humonetarianism Transcends Politics: Conservatives Support Prison Reform

This week's L.A. Times features a piece by Richard Fausset on conservative politicians who transcend the "tough/soft on crime" traditional divide to support prison reform -- for humonetarian reasons.

Now, with most states suffering from nightmare budget crises, many conservatives have acknowledged that hard-line strategies, while partially contributing to a drop in crime, have also added to fiscal havoc.

Corrections is now the second-fastest growing spending category for states, behind Medicaid, costing $50 billion annually and accounting for 1 of every 14 discretionary dollars, according to the Pew Center on the States.

That crisis affects both parties, and state Democratic leaders have also been looking for ways to reduce prison populations. But it is conservatives who have been working most conspicuously to square their new strategies with their philosophical beliefs — and sell them to followers long accustomed to a lock-'em-up message.

Much of that work is being done by a new advocacy group called Right on Crime, which has been endorsed by conservative luminaries such as former House Speaker Newt Gingrich, former Education Secretary William J. Bennett, and Grover Norquist of Americans for Tax Reform.

. . .

The right's embrace of ideas long espoused by nonpartisan and liberal reform groups has its own distinct flavor, focusing on prudent government spending more than social justice, and emphasizing the continuing need to punish serious criminals.

Even so, the old-school prison reform activists are happy to have them on board.

"Well, when the left and the right agree, I like to think that you're on to something," said Tracy Velazquez, executive director of the Justice Policy Institute, a Washington think tank dedicated to "ending society's reliance on incarceration."

Julie Stewart, founder of Families Against Mandatory Minimums, even believes that Republicans, with their tough-on-crime credentials, may have a Nixon-in-China cover to push reform further than Democrats.

"There is a safety conservatives have," she said. "And for better or worse, Democrats don't always have that luxury."

The Right on Crime website features Reagan's decarceration efforts and welcomes influential figures, such as Broken Windows theorist George Kelling.

This group embodies the spirit of humonetarianism. The message is all about retreating from mass incarceration based on considerations of fiscal prudence. One of the more promising aspects of humonetarianism is the potential for rethinking deeper aspects of incarceration policies after questioning them based on the fiscal consideration, and indeed, the group embraces traditionally "lefty" concepts such as restorative justice, a libertarian take on overcriminalization, eliminating mandatory minimums, and support for geriatric parole. The website has a wealth of information, abundant links to research, and much conservative knighthood clout.

The question, of course, is the extent to which this new and wise move among conservatives will find a good home among the New Right tea party-ers.

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Props to Colin Wood for the L.A. Times link.

Report Back: Donald Specter and Paul Wright

Golden Gate University Law Professor Mort Cohen moderated a discussion between Prison Law Office Director Donald Specter and Prison Legal News Founder/Editor Paul Wright. Donald Specter told a series of fascinating war stories about litigation and advocacy he's engaged in. He described pointing out to prison administrators that hearing-impaired inmates told to "Get down or we'll shoot!" were in mortal peril. He said that last month he toured a CA prison and pointed out to wardens that overflowing toilets meant that prisoners in wheelchairs were getting sewage on their wheels and thus their hands. "Aren't they supposed to be given gloves for that?" "No one told us."

Next, he walked us through the genesis of the Plata/Coleman proceedings. In 1991, 7 years after Prison Law Office opened, 3 prisoners in Vacaville on psychotropic medication died from heatstroke because they were in overheated cells and insufficiently hydrated. Specter started the case because they had just won a San Quentin mental health and medical care case resulting in an injunction from Judge Marilyn Patel. Since implementing the injunction was too expensive, they moved those prisoners to Vacaville. PLO won a consent decree against Vacaville requiring adequate care and staffing for mentally ill inmates. In response, the Department of Corrections engaged in "bus therapy," meaning scattering them around the state without regard to whether there were mental health workers at the prisons they went to. For example, many went to Pelican Bay State Prison, where there were only one psychologist and no psychiatrists. Having been burned twice, by San Quentin and Vacaville, PLO sued the whole prison system. They were only able to afford it with help from several SF law firms. They tried the case in 1993, and after a 3-month trial, an injunction issued in 1995. 6 months later PLO tried the Pelican Bay case, and Judge Henderson issued a similar order in 1995. In 1999 Specter started negotiating with the Attorney General's office, and finally filed in 2001 because the AG said there were not enough doctors. Prisoners were at risk to receive bad care because they were being treated by doctors of the wrong specialties. The parties settled in 2002. In 2005 a receiver was appointed by Judge Henderson, but they still couldn't fix the problems because prisons were at 200% of design capacity. Specter tried the present litigation before Judges Carlton, Henderson, & Reinhardt, against 51 interveners besides the State of CA, and is now finally waiting for a decision from the Supreme Court.

New (to me): Twice as many California prisoners kill themselves compared to the national average.

Specter said he finds most disappointing the degree to which the Legislature has come to depend upon the Judiciary for its decision-making. The Legislature has virtually abdicated its initiative in this policy area, relying on the courts to decide for them what to do with the prisons.

When asked how to fix the prison system, Specter said we need: (1) fewer prisoners, (2) less pay for prison guards / less concessions to CCPOA, (3) more programs in prisons to reduce recidivism rates and repeat crimes. Paul Wright said we need equality: in southern California celebrities can discharge their sentences in "pay-to-stay" state-run facilities where they get to keep their cell phones and laptops in their cells.

One of the best questions of the evening: "Does California have an emergency disaster plan in case of an earthquake on a scale comparable to Hurricane Katrina in New Orleans?" Specter cited the major fire that nearly destroyed a prison a few years ago, as evidence that even though there is such a plan here its implementation is suspect.

On another question, Paul Wright surprised many attendees by reminding us that a major obstacle to prison reform is the private prison industry that spends millions of dollars lobbying state governments to keep/put more people in prison.