State Courts

I finally made into the Sonoma County Jail yesterday to visit medical marijuana patient Will Foster, who has been sitting there for the past 16 months first fighting off a bogus marijuana cultivation charge--since dropped by prosecutors--and now fighting off the zealous efforts of Oklahoma parole authorities to return him to the state where he was originally sentenced to a cruel and insane 93 years in prison. I don't want to recount the entire sorry tale--you can read my recent article about his case here--but in a nutshell: Thanks in part to a publicity campaign started by DRCNet, Foster was able to get that horrid original sentence reduced to 20 years, he eventually won release and was paroled to California, which released him from parole after three years of good behavior. That wasn't good enough for Oklahoma, which still wants a few more pounds of flesh. Oklahoma issued a parole violation extradition warrant a few years back, which foster successfully--and unusually--beat with a habeas corpus writ, a California judge throwing out the warrant. So Oklahoma parole officials issued another extradition warrant, this time trying to add new charges after the fact to increase Foster's potential exposure. That warrant is keeping him in jail right now. Foster and his allies are conducting a two-track effort to win his release: First, a political track attempting to get either the California governor or the Oklahoma governor to rescind the extradition warrant. You can help with this. Ed Rosenthal has a Free Will Foster blog post that will show you what actions to take. Second, Foster has prepared another habeas writ. It will have a hearing August 4, and I will attend. He could walk free that day, but he might want to walk fast--Oklahoma is vowing to immediately issue a new extradition warrant. To me, that's a sign of what vengeful, vindictive, authoritarian pricks inhabit the Oklahoma Department of Corrections. But that's just me. There may be a protest at his hearing. Details are sketchy at this point, but if you're in the neighborhood and interested, just email me for now: [email protected] After 16 months in the slammer, Foster isn't looking so good. He's got big dark circles under his eyes and his skin has that jailhouse pallor. He has long suffered from arthritis, which is what he used marijuana for, and he also suffers from injuries in a car accident a couple of months before he was arrested and jailed. The nice folks at the Sonoma jail have plied him with all sorts of pharmaceuticals, but no pot, of course. Still, Foster remains strong in spirit and firm in his resolve. This guy is a determined fighter, not just for his freedom, but for what is right. Will Foster never hurt a soul. Why years of his life have been taken away from him and his loved ones for growing a plant is beyond me. If you believe in justice, take the time to help him out. Will Foster isn't the only drug war POW, but he is fortunate in the sense that at least some one is paying attention to his plight. Today is Bastille Day. In lieu of mob action to free the prisoners, will you pay some attention to a drug war prisoner you know? Send a letter? Make a visit? Send a check to commisary? Agitate with your elected officials? Something? Let's not forget our imprisoned brothers and sisters!

South Dakota's most well-known marijuana legalization advocate, Bob Newland, was sentenced yesterday to a year in the Pennington County Jail with all but 45 days suspended for felony marijuana possession--a little less than four ounces. Once he does his time, he'll be on probation for a year. Newland can, I suppose, consider himself fortunate. According to the South Dakota Department of Corrections, there are currently six people imprisoned for possession of less than half a pound and seven for more than half but less than one pound, as well as 14 doing time for distribution of less than an ounce and another 25 doing time for distribution of less than a pound. But in another respect, Newland is not so lucky. He has basically been stripped of his First Amendment right to advocate for marijuana legalization while he is on probation. As the Associated Press reported:

A longtime South Dakota supporter of legalized marijuana has been sentenced to serve 45 days in jail for possessing the illegal drug. Authorities say Bob Newland of Hermosa was found with four bags of marijuana, a scale and $385 in cash when he was stopped for speeding in March. He pleaded guilty in May to a possession charge under a plea agreement in which prosecutors agreed to drop a more serious charge of possession with intent to distribute. Newland will be on probation for the rest of the year following his jail term. During his probation, he is barred from publicly advocating the legalization of marijuana for medicinal purposes.

Newland, understandably, is not inclined to challenge the probation condition. There's something about staring at the walls of a jail cell that does that to a guy. But that doesn't mean others shouldn't raise a stink about this arguably unconstititional sentence. I'll be looking into this and will have a Chronicle story about it on Friday.

Some good news on the forfeiture front, via TalkLeft: California's Supreme Court has found that city ordinances allowing the seizure and forfeiture of vehicles that police claim were used in the commission of minor crime's (including drug possession) are not authorized by state law, overturning a law passed by the city of Stockton. We'd rather they threw the law out because it's disproportionate and corrupting of police agencies, and because taking people's cars is theft. But we'll take it.

Maybe you've heard the story: Worker gets injured on the job. Employer, anticipating hefty workers compensation claims, administers drug test. Wouldn't you know it, injured employee tests positive for marijuana and is denied compensation due to presumed impairment.

Of course, since marijuana remains detectable for weeks after use, it is just wrong to presume that a positive result indicates impairment at the time of the accident. Still, many companies continue to fire injured employees for marijuana, rather than compensating them for on-the-job injuries that had nothing at all to do with their off-the-job marijuana consumption. It is a morally-reprehensible and scientifically-fraudulent practice, but one which serves the financial interests of its practitioners and thus continues.

Finally, for the first time that I know of, this sickening practice has been challenged successfully in court:

The Tennessee Supreme Court has ruled that a worker whose hand was crushed by machinery at his workplace was not to blame for the accident despite his admitted marijuana use off the job.

…

The state law establishing the drug-free workplace program presumes that any injuries to an employee found to have been using drugs or alcohol were caused by the drug use. But the court noted that the law also allows employees to enter evidence to rebut that presumption.
…

The co-worker and the shop foreman both testified that McIntosh didn't appear to be impaired by marijuana use before the accident.

McIntosh, who had worked at Interstate for five years, contended the injury was caused by the actions of an inexperienced employee. [Forbes]

So often in drug policy reform, we must celebrate victories of common sense that could be taken for granted if anti-drug hysteria had not permeated every aspect of our lives. How absurd is it that McIntosh even had to prove his lack of impairment? After all, it is perfectly clear and undeniable that a positive test for marijuana doesn’t prove impairment at all. There was never any evidence of impairment at any point throughout all of this, yet it had to be decided by the state's highest court.

While the Tennessee Supreme Court has certainly made the right decision here, one shudders to think how many marijuana users have been thrown to the dogs under identical circumstances. The premise that marijuana ruins lives – almost universally false though it is – somehow becomes a justification for profiteers seeking to validate the most despicable treatment of people who've used marijuana.

These events serve to remind us that prohibition is more than police, prisons and politics. It an idea – corrupt to its core – which infects everything, entering our schools and workplaces to spread false prejudice and obscure even the most obvious truths.

According to the New Jersey Law Journal, via Law.com, the NJ Supreme Court has shifted away from a 20-year-old policy of suspending lawyers convicted of cocaine possession, instead merely censuring a Wayne-based workers compensation and personal injury attorney for it:

The court, in an order made public on Tuesday, took one step further a recommendation for lenience made by the Disciplinary Review Board, which suggested a "suspended" three-month suspension for the lawyer, Wayne, N.J., solo Anthony Filomeno, in view of his demonstrated remorse, rehabilitation and early release from a year-long pretrial intervention program.

Now maybe they'll go a little softer on the rest of the drug-using public...

Cross-posted from Flex Your Rights

We've got some more required reading for all you "4th Amendment is dead" fools who keep farting on our freedom parade. I know, there's no shortage of police, judges, and prosecutors who can't find big enough boots to trample your rights with. Believe me, I know. But the law evolves over time, as does the behavior of our public servants. This month brought a couple examples of the ability of State Courts to set a higher threshold of 4th Amendment protection for the citizens they serve.

This week, the Wyoming Supreme Court rejected the State's argument that the inadvertent discovery of marijuana in a home justified searching a lockbox found elsewhere in the residence.

The Supreme Court, in an opinion written by Justice William Hill, said the state failed to prove the search that disclosed the evidence which was the basis for the charge against Benton was reasonable under the Fourth Amendment to the U.S. Constitution and the Wyoming Constitution.

Hill's opinion quoted the amendment that protects citizens against unreasonable searches and seizures and case law "because we wish to make clear that the issue presented in a case such as this is one of the most important known to Anglo-American jurisprudence."

Meanwhile, in Vermont, the State Supreme Court has issued an impressive ruling declaring that post-arrest vehicle searches require a warrant. I've long lamented the unfortunate search-incident-to-arrest doctrine, which holds that officers may automatically search a vehicle after arresting the driver. I understand that police believe arrestees are more likely to be involved in unrelated criminal activity. Still, the "officer safety" justification that has been used to uphold these searches simply doesn't apply, since an arrested suspect has no access to their vehicle.

Vermont has now departed from U.S. Supreme Court precedent by requiring that officers obtain a warrant before performing post-arrest vehicle searches. Constitutional minimum standards require states to uphold at least the same amount of Bill of Rights protection as the federal government. Pete Guither observes hilariously that "actually, the federal Bill of Rights provides greater protections from unreasonable searches and seizures than does the federal government."

Still, the failure of the federal government to abide by their own standards does not displace the important ability of states to provide greater levels of privacy protection to their citizens. I think this pretty much says it all:

"The warrant requirement is robust, alive and well under the Vermont Constitution. It's gasping on life support under federal law," said Michael Mello, a professor at Vermont Law School in South Royalton. "It's a reaffirmation of Vermont -- we're special, we're different -- and the subtext is we're smarter and better than you, United States Supreme Court."

Let's hope other states continue to outsmart the U.S. Supreme Court. When it comes to the 4th Amendment, it really isn't that hard.

At the end of a Michigan murder case in which the victim was a marijuana dealer gunned down during a home invasion robbery, the judge railed against the "urban myth" that marijuana is harmless. Here is some of what Muskegon County 14th Circuit Judge Timothy Hicks had to say (read the article about the trial's conclusion here):

Before sentencing Weissert [the convicted murderer], Hicks addressed what he called a series of "urban myths." "Urban myth number one" is that "drug use is a victimless crime," Hicks said from the bench. "Here we have orphaned children, devastated families." Myth number two: " 'It's only marijuana,' " Hicks said. "Marijuana is as evil as the rest of this stuff. ... Marijuana indirectly caused all the carnage." The third myth is that drugs are only a "downtown" problem. "It's a problem everywhere -- in the suburbs, in rural areas," the judge said. And fourth: "The urban myth that you can stay in control of this." Although Sibson never intended it, his drug dealing "exposed his family to danger," Hicks said.

Let's take these one by one. Judge Hicks claims that this murder disproves the notion that "drug use is a victimless crime." Of course, it does nothing of the sort. The murder had nothing to do with drug use, but was the result of an attempted armed robbery, plain and simple. The robbers went after the marijuana dealer because there were valuable items they could take. Would the judge have railed against alcohol if someone had been murdered in a liquor store robbery? Next, Judge Hicks derides the notion that marijuana is a soft drug, not as dangerous as other drugs like cocaine, speed, or heroin. Marijuana is "as evil" as those other drugs and "indirectly caused all that carnage." Sorry, judge, pot is not "evil," nor are other drugs. Evilness does not inhere to plants or chemical compounds, but to human behavior. What is evil is breaking into someone's home and killing them because they have something valuable you want. I wonder if the judge would call cold, hard cash "evil" because someone robbed an armored car to steal some. Next, Judge Hicks decries the myth that drugs are only a "downtown" (read: black) problem, saying that "it's a problem everywhere." Well, yes, drug use knows no geographic boundaries, and the problems associated with drug use don't, either. But I suspect that the judge is thinking about the crime and violence associated with drug use and sales under prohibition, like, for instance, the murder case in front of him. To blame that killing on drugs in general and marijuana in particular is just plain stupid. The judge might want to get his head out of his ass and look around at what drug prohibition—not drugs—has wrought. He doubtless sees it every day in his courtroom. Finally, Judge Hicks attacks the victim. The dead man "exposed his family to danger" because he dealt in valuable marijuana. If I'm out riding in my new Cadillac with my family and we get carjacked by some envious punk, does that mean I exposed my family to danger by having something valuable that some criminal wants? It was not the murder victim but the prohibition laws routinely applied by Judge Hicks and his criminal justice system colleagues that created the situation where a bunch of dead plant material is assigned so much value that people are willing to rob and kill for it. It must be nice for armed robbers to know their victims are unlikely to seek protection from the police. Justice may be blind, but judges shouldn't be. Judge Hicks has clearly shown that he has an extreme case of tunnel vision. This guy doesn’t deserve to sit on the bench.

Call Florida Governor Jeb Bush and urge him to pardon Richard Paey.

The number is 850-488-7146.

Paey just lost his appeal, which means he'll have to complete his 25-year sentence unless the Governor intervenes.

I just spoke with a nice lady at the Governor's office and informed her that Richard Paey is a paraplegic whose substantial need for pain medication resulted in a misguided conviction for drug dealing. I asked her to inform the Governor that I support the Florida Court of Appeals recommendation that he pardon Mr. Paey.

It only takes a minute and together we might be able to help make life a little more bearable for this most unfortunate man.

For a quick refresher on the case before you call, check out Maia Salavitz at The Huffington Post and Radley Balko's article in National Review Online.

Now put down your laptop and make the call. We'll still be here when you're done.

Thanks!

Medical marijuana activist Dustin Costa was convicted in federal court last week and could now spend the rest of his life in prison. Costa’s was the first federal trial of a medical marijuana patient in three years, demonstrating that the feds remain willing to pervert justice and lie to jurors in order to undermine California’s medical marijuana law.

The defense was prohibited from informing jurors that Costa is president of the Merced Patients Group and that his 908 plants were unquestionably intended for medical use.

Meanwhile, further north, the Washington State Supreme Court recently upheld the conviction of medical marijuana patient Sharon Lee Tracy.

During the research I did for Friday's feature article on the prisoners doing "Katrina time", two of the of the people I talked to implored to look into the plight of another set of victims of the Louisiana criminal justice system: the "heroin lifers."