Congress

House Minority Leader Nancy Pelosi told a bloggers' roundtable Wednesday that Democrats might be interested in making changes in federal law around medical marijuana after the November elections, Raw Story reported.

"I've been very clear on the subject of medical marijuana over time, in committee and on the floor as leader," Pelosi said. "I think that it would be really important to do that," she said.

"It would be hard for anyone to agree with the fact that someone who has HIV/AIDS or has cancer and they find relief from pain in medicinal marijuana that should be something that should be a priority to raid on the part of the Justice Department. Going along with that, we need to address some of the penalties for any nonviolent crimes that are out there."

Pelosi has previously attacked the Obama administration for the Justice Department's campaign of raids and threats against California medical marijuana providers, but this is her strongest statement yet on the topic.

Federal law and the Justice Department do not recognize medical marijuana, but there are options short of revising the Controlled Substance Act that could bring relief. The Justice Department could be persuaded to go back to the policy it adopted early in the Obama administration of not going after providers in compliance with state laws, or the administration could reschedule marijuana.

Another possibility is a ban on federal spending for raids on state-sanctioned medical marijuana facilities. But a bill that would do that was defeated in the House in May. A third alternative is for the administration to simply use its executive authority to reschedule marijuana for prescription availability under the Controlled Substances Act.

"Medical marijuana is one of those issues where if you get enough states, where when you get enough then you get it," Farr told Raw Story. "California had already started that process because of cost concerns. That didn't cause any scandals or upheavals."

Whether Pelosi's words will lead to any real change remains to be seen, but the most powerful Democrat in the House has just put the administration on notice that she's not happy with its medical marijuana policies.

The US Supreme Court ruled last Thursday that decreased crack cocaine sentences approved by Congress in 2010 also apply to people who were convicted but not yet sentenced when the law took effect. The decision could result in reduced sentences for thousands of so-called "pipeline" federal crack cocaine defendants.

Congress passed the Fair Sentencing Act and President Obama signed it into law after years of complaints about the sentencing disparities between crack and powder cocaine and the racial impact of those disparities. Under laws passed in the late 1980s, it took 100 times as much powder cocaine to generate mandatory minimum prison sentences as it did for crack cocaine. The act reduced the quantity disparity to 18:1.

The decision in two cases of men convicted on federal crack charges but sentenced after the act became law came on a narrow 5-4 vote. The two cases were consolidated in a single ruling in Dorsey v. United States.

In one case, Edward Dorsey was arrested in 2008 and pleaded guilty in July 2010 to possessing 5.5 grams of crack with the intent to distribute. He was sentenced to a mandatory minimum 10 years; under the new law, his sentence would likely have been around four years.

In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack in 2007 and sentenced to 10 years in prison; under the new law, his sentence would have been around five years.

Federal appeals court split on whether the new law should be applied retroactively, prodding the Supreme Court to take up the cases and bring clarity to the issue.

The court split in what has become almost standard for the Roberts court. All four liberal justices weighed in on the side of extending the sentencing reductions and were joined by swing justice Anthony Kennedy. The court's four staunch conservatives all dissented.

Sentencing reform advocates welcomed the ruling.

"We are thrilled with the court's decision," said Julie Stewart, executive director of Families Against Mandatory Minimums, which had filed a friend of the court brief in the case. "We considered it patently unjust to make these pipeline defendants serve longer sentences under a scheme that was completely repudiated by Congress. As the court found, doing so would have flouted the will of Congress, which called on the US Sentencing Commission to lower crack cocaine sentences 'as soon as practicable' after the Fair Sentencing Act was signed into law. Especially exciting is the fact that Justice Breyer's opinion for the majority recognized that people who were sentenced after August 3, 2010 to an old law sentence are eligible to seek relief in federal courts."

The Senate has passed House Resolution 1254, the Synthetic Drug Control Act of 2011, which would federally criminalize the possession, distribution, and manufacture of synthetic cannabinoids ("fake marijuana") and synthetic stimulants ("bath salts"). The measure has already passed the House, and President Obama is expected to quickly sign it into law.

The synthetic cannabinoids are marketed as "herbal incense" and sold under brand names such as K2 and Spice, while the synthetic stimulants are marketed as "bath salts" and sold under a variety of names, including Ivory Wave and Vanilla Sky. Poison control centers and emergency rooms around the country have reported a sharp increase in synthetic drug incidents in the past two years, with Spice users reporting adverse effects similar to those sometimes reported with marijuana, while bath salts users have suffered more serious adverse effects, including hallucinations, psychotic breaks, and death.

Fake pot or bath salts or both are already banned in a number of states, and more states are considering criminalizing them. Both types of drugs have already been subject to emergency bans by the DEA while its legislatively mandated process for evaluating new drugs proceeds.

A widely publicized incident over the weekend in which a man chewed off parts of another man's face before being shot and killed by police has heightened concerns about the new synthetics, generating headlines like "Miami cannibal zombie-like attack linked to powerful 'bath salts' drug," but at this point, such claims are pure speculation. Police in the case have also posited "a new form of LSD" and "cocaine psychosis" to explain the attack, but any real information will have to await a toxicologist's report.

Sen. Rand Paul (R-KY) had single-handedly blocked passage of the bill for months by placing a senatorial hold on it. Paul objected to harsh mandatory minimum sentences in the bill, as well as to further broadening of the federal war on drugs.

But bill supporters, led by Sen. Charles Schumer (D-NY), resorted to a parliamentary maneuver to get it passed. They quietly attached it to an FDA regulatory bill, which the Senate passed last Wednesday.

Still, Sen. Paul was able to insert language into the bill specifying that the Controlled Substance Act's mandatory minimum 20-year sentence for anyone supplying a drug that causes severe bodily harm or death to a user does not apply to the newly banned synthetics. That's because in order to get the FDA bill approved by Memorial Day, Sen. Rob Portman (R-OH), who actually sponsored the amendment adding the synthetics to the FDA bill, had to win unanimous consent for his amendment. Paul agreed not to object after Portman inserted the language about the mandatory minimums.

The bill still contains draconian sentencing provisions, including sentences of up to 20 years for a first sale or manufacturing offense and up to 30 years for a subsequent offense.

The bill's sponsors said after the vote that its passage would strike a strong blow against the new synthetics, but industry advocates and the Congressional Budget Office (CBO) disagree.

"Let this be a warning to those who make a profit manufacturing and selling killer chemical components to our teens and children: the jig is up," Schumer said in a statement. "This bill closes loopholes that have allowed manufacturers to circumvent local and state bans and ensures that you cannot simply cross state lines to find these deadly synthetic drugs."

"These new designer drugs can kill, and if we don't take action, they are going to become more and more prevalent and put more and more people at risk," Sen. Amy Klobuchar (D-MN), another sponsor of the bill said in a statement. "Today's action is good news for this critical legislation to give law enforcement the tools they need to crack down on synthetic drugs before they put more lives in danger, and I will continue to work to ensure these provisions are signed into law."

But the Retail Compliance Association (RCA), which represents smoke shop and convenience store operators and which opposed the bill, pointed out that the bill only bans five chemical families and only names 15 synthetic cannabinoids. Many of those compounds are already off the market, the RCA said, adding that the bill does not include hundreds of additional compounds unrelated to the chemical families banned under it.

"This bill will be touted as banning what law enforcement has deemed 'fake pot,' but it does no such thing; it actually only bans a few of the potential ingredients of these products, by no means the products themselves," said RCA spokesman Dan Francis. "The bill's range of enforcement may well be limited to the specifically named compounds because labs cannot test for chemical families, nor can the police or retailers. The products are tested by many different levels of this industry, and no lab I have spoken with has a test to determine the chemical family," Francis added.

The CBO, for its part, published a cost analysis of the bill in November that found its impact would be minimal.

"Based on information from industry and law enforcement experts, CBO expects that, by the date of the legislation's enactment, most vendors will have largely replaced the banned substances with new products because many states have already passed legislation banning some or all of the compounds listed in the bill and because the DEA has already issued emergency rules temporarily banning five cannabimimetic agents and three synthetic stimulants," the analysis found.

Still, Congress can pat itself on the back for "doing something" about the new synthetic drugs -- whether or not it actually does anything good.

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

In the wake of the US Supreme Court's January decision in United States v. Jones, in which the high court forbade the warrantless use of GPS tracking devices to surveil people's movements, law enforcement and the Obama administration are scrambling -- not to find ways to comply with the spirit of the ruling, but to find ways around it.

Police in many states have switched tactics by obtaining mobile data to zero in on someone's prior movement and by tracking them through their cell phones, usually without a warrant. Whenever a cell phone is used, it "pings" an electronic signal to the nearest cell phone tower, allowing law enforcement to use the cell phone to find or track people. And cell phones containing GPS devices, which are increasingly common, "ping" constantly.

In April, the  American Civil Liberties Union (ACLU) released an extensive study of state, federal, and local law enforcement's surveillance practices that illustrate how police track citizens through their cell phones. The findings were staggering. Warrantless cell phone tracking "has become a powerful and widely used surveillance tool for police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight," the report found.

After poring over 5,500 pages of records in responses from over 200 local law enforcement agencies, the ACLU researchers reported that "only a tiny minority" -- 10 agencies total -- had obtained a warrant before tracking someone through his or her cell phone.

"What we have learned is disturbing," said ACLU staff attorney Catherine Crump, who helped file public information requests with some 385 law enforcement agencies. "The government should have to get a warrant before tracking a cell phone. Instead, what we found was that the cops track people with no supervision, or in some cases, mostly drug cases, the cop will go to court and only show that it would be relevant to an investigation, which is a lower standard."

The ACLU is calling for law enforcement agencies to desist from using cell phone tracking without a warrant, and is calling on state and federal lawmakers to pass legislation requiring a warrant before police use location tracking in non-emergency situations.

A bill to address the problem is pending in Congress. Senate Bill 1212, the Geolocation Privacy and Surveillance (GPS) Act, is sponsored in the Senate by Senators Ron Wyden (D-OR) and Mark Kirk (R-IL). Companion legislation in the House, House Resolution 2168, is sponsored by Reps. Jason Chaffetz (R-UT), Peter Welch (D-VT) and Jim Sensenbrenner (R-WI.). The bills would require law enforcement agents to obtain a warrant in order to access location information.

Another Senate effort, Judiciary Committee chair Senator Patrick Leahy's (D-VT) Electronic Communications Privacy Act Amendments Act, Senate Bill 2011, offers a partial repair of the problem. It includes a warrant requirement for real-time tracking, but not for historical location information.

The Obama administration disagrees that any action is needed. At a State of the Mobile Net conference held in May, Justice Department Deputy Assistant Attorney Jason Weinstein argued, "[t]he need for such warrantless cell phone tracking is important so it won't cripple the government and law enforcement."

The administration's lawyers insist that when a person turns on a cell phone, the information from the phone is transmitted through a third-party, such as the wireless carrier, and the user thus has no "expectation of privacy."

Warrantless cell phone tracking "should be illegal," said Washington, DC, appellate attorney Stephan Leckar, who successfully represented DC nightclub owner Antoine Jones in the case cited above.

In that case, the Supreme Court reversed Jones' conviction and sentence of life without parole in a cocaine trafficking case after they found substantial evidence that the FBI placed a GPS device on Jones vehicle for 28 days without a search warrant. When police monitored Jones vehicle without a warrant, the court said, "This violated his Fourth Amendment right against unreasonable search and seizure."

According to Leckar, the "third-party" doctrine is a means for law enforcement to get around the Fourth Amendment. "As the law reads," he said, the 'third-party' doctrine doesn't violate the Fourth Amendment. To change this, people will have to petition Congress to change that doctrine."

While privacy advocates like the ACLU's Crump argue that cell phone users should get the same protections against warrantless tracking as people subjected to GPS devices being surreptitiously placed on their vehicles, the Justice Department disagrees.

"There is no trespass or physical intrusion on a citizen's cell phone when the government obtains historical cell-site records from a provider," Justice Department attorneys argued in a brief in an appeals court case in February, adding that cell phone data are not as precise as GPS tracking data.

Most, but not all, recent state and federal court decisions in major drug cases have upheld the right of police to either track cell phones or search them for evidence in an investigation. In March, the US 7th Circuit Court of Appeals upheld a warrantless search of a cell phone by Indiana police, a phone belonging to a  meth dealer identified as Abel Flores Lopez. Flores was given ten years in federal prison. His co-defendant Alberto Santana Cabrera received the toughest punishment. Santana got 75 years after failing to assist the government with valuable information on other drug dealers.

But federal judicial opinion isn't unanimous. Last year, in a blistering one-page ruling, US District Court Judge Lynn Hughes of the Southern District of Texas in Houston declared "that the law allowing the government to obtain cell phone records without a warrant is unconstitutional."

In that case, federal prosecutors had subpoenaed MetroPCS and T-Mobile to hand over sixty days of cell phone location data belonging to drug suspects. "The records would show the date, time, called number, and location of the telephone when the call was made," Hughes noted.

As the law now stands, cell phone customers who value their privacy are at the mercy of law enforcement and their wireless service providers. And the wireless service providers are all too happy to work with law enforcement voluntarily, and turn a tidy profit doing it.

Our favorite carriers, including AT&T, Verizon, T-Mobile and Sprint, are in on the action by selling information to police about a person's whereabouts, including the sale of private text messages and cell tower data, which pinpoint the location where someone is using a cell, the New York Times reported in March. Some companies are marketing surveillance fees to law enforcement to spy on targets even though wireless carriers declare that they don't sell their customers' information to police.

The Times found that T-Mobile charges law enforcement $150 per-hour for cell phone data that shows the approximate location of the tower that a cell phone "pings" off of when the user makes a call. It found that Alltel provides a faxed listing of an electronic "Tower Dump" for specific times and dates. The listing is "no charge," but the company charges a flat rate of $500 for those searches.

Verizon Wireless, on the other hand, charges  $30-$60 for 15 minutes' worth of tower data, while AT&T charges $75 hourly (a minimum of two to four hours per tower) for a Cell Tower Dump or Cell Site Usage Report. Cell Site Usage also includes subscriber information for the location, date and time when a phone was used.

The Times also found that Sprint once billed the Raleigh, North Carolina, Police Department at a "reduced rate" of $50 for an historic tower search and added $30 more for a search of "L-Site GPS pings," while the ACLU reported that Sprint had billed the Phoenix Police Department $460 for the GPS "pings" over a two-day period in 2009.

"The bottom line is that our mobile phone companies should be working for us, their customers, not the police, says Nicole Ozer, an ACLU staff attorney.

Not only are the wireless providers profiting from your privacy by working with the police, they are lobbying to be able to continue to do so. Even as the debate rages over warrantless cell phone tracking, cell carriers are geared up to oppose legislation that would force the companies to publicly report the number of times their employees provide cell phone location information to police and federal agents.

One important proposal is California Senate Bill 1434, introduced by Sen. Mark Leno (D-San Francisco), which would prohibit carriers from revealing data to police without a warrant. Wireless providers are joining together to fight it.

"These reporting mandates would unduly prevent us from insuring the public's safety and saving lives," AT&T, Sprint, and T-Mobile said in a joint statement.

The battle continues. Motivated by the ACLU research and news reports on the controversy surrounding  warrantless cell phone tracking, US Senator Al Franken (D-Minnesota) recently convened a Senate Judiciary Committee hearing to gather support for the GPS Act. At the hearing, Franken unveiled a letter he had written to Attorney General Holder seeking information on Justice Department cell phone tracking activity, what the department's stance on the standard for requests for historical location data (cell sites, GPS data), and whether the department had changed its practices in the light of the Jones decision.

He is still awaiting a response from Justice.

On the legal front, with state and federal courts split in their decisions on whether warrantless phone tracking violates the Fourth Amendment, the tens of millions of Americans who use cell phones and smart phones will have to wait for the Supreme Court to be the final arbiter. In the meantime, they could just be tracking you -- warrant or not.