Top 10 Drug Law Blog Stories of 2008

April 11, 2014 by Arkady Bukh

Here are the Top 10 Drug Law Blog stories of 2008. Keep in mind that my stories reflect the focus of this blog — i.e. on changing areas of criminal drug law, with emphasis on California — and so do not add up to the same list that might be compiled by a lawyer who works on pharmaceutical law, or even a criminal defense lawyer in another state. Prior years’ lists are here: 2007, 2006.

10. Salvia divinorum becomes a YouTube celebrity. California passes AB259 to try to crack down on a drug that is not associated with any health problems.

2008 was the year that an obscure, hallucinogenic plant, salvia divinorum, made it onto the radar of many state legislatures not because it was actually causing problems anywhere but because there are lots and lots of YouTube videos of people smoking it and acting silly. You can get a sense of how this typically played out in the clip below: legislator proposes law, local news pulls a bunch of clips off of YouTube, and bingo, you’ve got a story with some impressive video. Reason enough to start arresting people and putting them in prison? Several state legislatures thought so, including California, which passed a law called AB259 criminalizing the sale of salvia to minors.

9. For the second time in two years, Mexico proposes decriminalization of personal use of drugs. Just like the last time, this proposal goes nowhere fast. Meanwhile, Mexico spirals further into extreme, prohibition-related violence.

Back in 2006, the then-president of Mexico, Vicente Fox, briefly suggested that he intended to approve a law to decriminalize personal use of small amounts of drugs. That proposal seemingly evaporated, reportedly after pressure from the U.S. This year, President Calderon proposed something very similar. More intriguing still, Office of National Drug Control Policy head John Walters said that he was actually in favor of the proposal.

However, the result of this year’s proposal was the same as the result in 2006: absolutely nothing happened. Meanwhile, Mexico was absolutely savaged in 2008 by violence related to an attempt to crack down on drug trafficking. The AP reported in December that more than 5,000 people had been killed in these battles this year. Once-vibrant Places like Tijuana are basically ghost-towns now because of the threat of violence, underscoring the truly terrible human costs created by aggressive prohibition policies.

8. California’s substantive law on medical marijuana evolves: The battle in People v. Kelly is won, but nobody seems to notice, Arnie vetoes a bill for medical marijuana patients’ workplace rights, and the Attorney General releases some confusing guidelines around medical marijuana.

There were several important California medical marijuana cases in 2008: Ross v. RagingWire, in which we learned that there is not much workplace protection for medical marijuana users, People v. Mentch, in which we learned that you can’t be a “primary caregiver” to a medical marijuana patient simply by providing marijuana to that person, and People v. Kelly, in which we learned that the quantity limits imposed on medical marijuana defenses by the California legislature may be unconstitutional. Also, the United States Supreme Court denied cert in Kha (Garden Grove), the case about return of seized medical marijuana to an individual who has raised a successful medical defense at trial. Some California advocates suggested that this cert denial was a really momentous victory for the prinicple of states’ rights. I think that interpretation is, well, incorrect and misleading. But it’s still nice that people can get back their medicine.

People v. Kelly is still on review to the California Supreme Court, but as I noted back in October, the Attorney General has already conceded the argument in that case. That means that strict quantity limits on medical marijuana defenses brought under California’s Compassionate Use Act are almost certainly going to be struck down by the Cal Supremes. Seems like a big deal to me, but nobody has picked up on this story.

In August, the Attorney General also released a set of guidelines around medical marijuana. I find them confusing, odd, and of uncertain value for defendants, but some people in the medical marijuana world consider them to be a victory.

Finally, the California legislature passed a bill authored by Mark Leno, AB2279, that would have given workplace protections to medical marijuana users (in response to the defeat in RagingWire, noted above). However, California Gov. Arnold Schwarzenegger vetoed the measure.

7. Federalism follies: San Diego and San Bernardino Counties continue losing their protracted, mean-spirited attempt to overturn California medical marijuana law.

My birthplace of San Diego continued to embarrass itself in 2008 by relentlessly pursuing a case called County of San Diego v. San Diego NORML, which is basically an attempt to argue that California state law can not be modified to allow people to use medical marijuana without prosecution because the federal law of the United States preempts any action in that area. Got that? Federal preemption is so potent a force, according to San Diego County (and San Bernardino County, which is also pursuing this case), that California is literally obliged to continue arresting medical marijuana patients under state law and prosecuting them in state court.

It’s a terrible argument, which presumably is why it lost at the trial level and then lost in the court of appeal, and why the California Supreme Court denied review. Nevertheless, San Diego has vowed to seek certiorari in the United States Supreme Court, wasting still of more San Diego County’s tax dollars, all in an attempt to argue that local governments should have less power, less flexibility, and should be obliged to spend more money on more prosecutions. If anyone ever wondered whether marijuana can drive people crazy, here is your answer: it’s driven the leaders of two California counties completely loco.

6. Massachusetts voters pass an initiative making personal possession of marijuana an infraction.

This is not a California story, but it’s pretty darn remarkable and could well point the way toward reforms in other states. In the November 2008 election, voters in Massachusetts passed an initiative that makes possession of less than an ounce of marijuana for personal use an “infraction” — in other words, an offense comparable to a speeding ticket.

Law enforcement in Masschusetts is already moaning that the administration of this law will be a real “headache” for them. Apparently it would be a lot easier –for them, that is — just to go on arresting and prosecuting people for a nonviolent act that harms nobody.

(On a related point, as Pete of Drug WarRant noted, Arizona’s Attorney General stated right at the end of 2008 that he might be willing to consider marijuana decriminalization if a way could be found to administer the process. With any luck, Massachusetts will show the rest of the nation that this is really not that big of a deal.)

5. California’s Prop. 5 (the Nonviolent Offender Rehabilitation Act) is defeated in California after a massive infusion of cash from the state prison guards’ union.

California voters had a chance in the 2008 election to enact really significant drug law reform via an initiative called the Nonviolent Offender Rehabilitation Act. Unfortunately, the initiative was extremely long and technical and very easily distorted by its opponents, including most of the usual suspects in state law enforcement. California’s prison guards (the highest paid correctional officers in the nation) threw their weight into the anti-prop. 5 effort, and a chance to reduce the vast prison population of the state was unfortunately lost as a result.

4. The slow-motion crackdown on California dispensaries continues

Though we finally moved toward what we fervently hope will be a more reasonable federal drug policy (see #3, below), 2008 saw a relentless and depressing parade of federal raids on California medical marijuana dispensaries and prosecutions and convictions of people who have simply tried to operate within the law as passed by California voters and the California legislature. It’s as if the Bush administration was determined to waste as much taxpayer money as possible on these crackdowns while it was still holding onto the reigns of the Department of Justice.

One of the most discouraging cases in 2008 was the conviction in federal court of Charles Lynch, the Morro Bay dispensary operator whose story is told in the clips below. When the history of this movement is written, it is folks like Lynch who need to get the credit for bravely putting their own liberty on the line.

3. Barack Obama is elected after having promised to end federal raids on medical marijuana patients. Early indications of Obama’s stance on drug policy, however, are not particularly encouraging.

Well, Obama got elected and that felt sort of warm and fuzzy, and it’s at least possible that it will mean a more progressive federal stance on medical marijuana. Obama stated during his campaign that “I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” If he stays true to his word, it will be a dramatic thing, and may well be the change that ushers in medical marijuana on a nationwide basis.

On the other hand, Obama has never seemed to be interested in taking a very progressive stance on drug policy. His nominee for Attorney General, Eric Holder, is a former prosecutor who “proposed legislation to stiffen penalties for the possession of marijuana” while with the Justice Department, according to NORML. Obama is also reportedly considering Jim Ramstad as Drug Czar, despite the fact that Ramstad is reportedly an opponent of both medical marijuana and needle exchange.

All of which means … well, it’s pretty hard to know what it means. But maybe that’s the way Obama likes it.

2. Prescription drugs outstrip street drugs as the drug of choice.

Despite the fact that the policing priorities of the federal government and most other jurisdictions are still heavily skewed toward traditional “street” drugs like marijuana, 2008 was the year when it became entirely obvious that “street” drugs are no longer the growth industry in recreational drug use: that dubious honor belongs, instead, to diverted pharmaceutical drugs, which are now the “drug of choice” for people all over America.

As the Office of National Drug Control Policy noted in its 2008 National Drug Control Strategy Document (see page 17 of the report (pdf)), more 12 and 13-year-olds now use prescription drugs recreationally than use marijuana. The numbers are sufficiently worrisome that some guy named Joe Biden held Senate hearings in March all about what it called “Generation Rx” — i.e., a generation that has turned away from the drugs that we’re sending people to prison for and turning instead to the drugs that are already in the medicine cabinet and being used by mom and dad.

1. The chickens come home to roost, as the United States is documented to have the highest drug consumption in the world, the highest incarceration rates in the word, and appalling levels of racial discrimination in drug policing.

Everybody who has a decent head on their shoulders knows that the drug war is a policy that has some shortcomings. 2008, however, was the year in which the statistical evidence of those shortcomings began to pile up to a degree that was totally absurd on every level.

Problems with extreme overincarceration? Check. 2008 saw the release of the Pew Center’s report One in 100: Behind Bars in America, officially marking the fact that 1 percent of the entire adult population of the United States is now locked up in jail or prison. As I never tire of repeating, the U.S. is the highest per-capita and overall incarcerator in the world, vastly oustripping every other country, no matter how authoritarian.

Problems with unfair and racist policing patterns around drug use? Check, check and check. 2008 saw the release of not one but three reports documenting in exhaustive detail how extremely skewed drug policing is in terms of the way it targets minorities. (Actually, one of the reports was released in December 2007, but whatever.) The reports are Human Rights Watch: Targeting Blacks: Drug Law Enforcment and Race in the United States (May 2008), The Sentencing Project:Disparity by Geography: The War on Drugs in America’s Cities(May 2008), and the Justice Policy Institute: The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties (December 2007). These three reports all document one basic reality, which is that all people use drugs, no matter whether they are rich or poor, no matter what color their skin might be, and no matter what part of town they live in. Drug policing, drug arrests and drug prosecutions, however, focus overwhelmingly on street-level interdiction in poor, minority neighborhoods, where it takes the least work for cops to make busts. The result is nothing more and nothing less than what can be seen any day of the week by walking into a California Superior Court and checking out who is on trial: it’s overwhelmingly poor people and minorities. It’s overwhelmingly the hapless and the helpless, people who are just being ground through the mill of of a dysfunctional system and don’t have any way to break free.

Problems accomplishing the goals of prohibition? Check. A study released in the summer of 2008 showed that the United States actually leads the world in per capita consumption of marijuana, cocaine and alcohol. Meanwhile, the Office of National Drug Control Policy continued in 2008 to pat itself on the back by referring to the idea that drug use in America is “down by half” — neglecting to mention one little detail, which is that the decline they are discussing happened more than 15 years ago. So not only are we locking up people like crazy, and not only are we making a mockery of racial justice in the process, we’re also failing to accomplish the ostensible goal of our policy. It’s absolutely nuts, and it’s long past time for the kinds of changes we’re finally starting to see in places like Massachusetts.