LegalMatch: Criminal Law

Ninth Circuit Says No to New Guns for MMJ Card Holders

In the current battle between medical marijuana users and the federal government over the use of marijuana, it appears that the Feds have managed to score a recent victory. This victory was granted by the United States Court of Appeals for the Ninth Circuit, which is known as the most liberal of the federal appellate courts.

The Ninth Circuit recently held that a gun store in Nevada did not violate a medical marijuana cardholder’s Second Amendment right by refusing to sell the person a gun on the grounds that she is a user of a controlled substance. Even though the state of Nevada has permitted marijuana to be used for medicinal purposes since 2000, marijuana is still a Schedule I drug under the Controlled Substances Act. This means that it is illegal to grow, sell, buy, or use marijuana, even as a medicine, under federal law.

Firearm merchants are prohibited from selling guns to users of controlled substances, including users of marijuana, by the Gun Control Act. The Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a regulation barring anyone who has a medical marijuana card from purchasing a firearm based on the assumption that the cardholder is most likely a medical marijuana user.

When S. Rowena Wilson went to go buy a firearm a week after the regulation was issued, the gun store informed her that she was prohibited from buying a gun because she was a medical marijuana card holder. Ms. Wilson sued the ATF, claiming that the regulation violated her Second Amendment right to possess a firearm.

Rowena Wilson’s lawsuit against the ATF is based on the notion that people should not be barred from buying firearms just based on their possession of a medical marijuana card, without actual proven use of medical marijuana. Unlike most medical marijuana cardholders, Ms. Wilson claims that she does not actually use medical marijuana and, thus, is not a user of marijuana as a controlled substance. Thus, the assumption that the regulation is based on is not one that is necessarily true about Ms. Wilson and should not have prevented her from obtaining a firearm.

However, the Ninth Circuit found that the regulation did not violate Ms. Wilson’s 2^nd Amendment right to possess a gun severely enough so as to require the regulation to be invalidated. The court stated that Ms. Wilson could have easily purchased firearms prior to acquiring her medical marijuana card. The regulation does not prohibit possessors of medical marijuana cards from owning or using guns, meaning that they are not violating the regulation by holding onto firearms that they acquired before getting medical marijuana cards. Thus, anyone who possessed a medical marijuana card but did not actually use medical marijuana, such as Ms. Wilson, could still use a firearm to defend themselves in the manner guaranteed by the Second Amendment.

Although Ms. Wilson intends to appeal the 9^th Circuit’s decision, for now the court’s ruling broadens the prohibition on who can actually purchase a firearm under the Gun Control Act. Now, people who are merely assumed to be using drugs by simply having a medical marijuana card are also unable to buy a gun, even if they have never actually used or have any intention of using marijuana. Unless the decision is overturned, medical marijuana card possessors residing in California, Nevada, Alaska, Hawaii, Montana, Washington, Oregon, and Arizona are now prohibited by law from buying any new firearms.

If you have questions about the regulation or are concerned that the court ruling may negatively impact you, contact a criminal defense lawyer.

Authored by Kristen Johnson, LegalMatch Legal Writer

Prescription Opioids, Heroin, and the Failings of the War on Drugs

In the first decade of the 21st century, one of the weakest links in US drug policy was the availability of easily prescribed opioid drugs. Pharmaceutical companies, in particular Perdue Pharmaceuticals which began producing OxyContin in 1995, benefitted greatly from the over-prescription of these drugs (to the tune of $3.1 billion in 2010). These companies lobbied heavily to make it as easy as possible for the public to access their product. “Pill mills” popped up to take advantage of a bourgeoning market of addicts, diagnosing pain and writing additional prescriptions for drugs like oxycodone and fentanyl. In several US states, this resulted in more than 150 painkiller prescriptions for every 100 adult residents.

In general, users develop tolerance to painkillers, and frequently increase their dose. Thus, overdoses and deaths related to prescription opioids became more commonplace. State and national agencies tried to find solutions to the problem. The Drug Enforcement Administration finally cracked down in 2014, recognizing the toll these substances were taking on lives and in emergency rooms throughout the US. Now, all opioid painkillers (including hydrocodone combination drugs) must be re-prescribed every three months and their use is more heavily scrutinized. Drugs may be rationed by the DEA in some pharmacies where they have previously been overprescribed.

The Rise of a New Heroin Market

One of the basic tenets of economics is that prices rise and fall based on supply and demand. When opioid painkillers became scarce due to state and federal interventions, their price went up. Unfortunately, this did not eliminate the need for painkillers amid thousands of addicts. Opioids change the brain and body chemistry of individuals who use them. Withdrawal may cause cravings, diarrhea, abdominal pain, body aches, chills, vomiting, agitation, and other very unpleasant symptoms. Ideally, the process should be medically monitored. Drug relapses are also common.

Cheap heroin from Afghanistan and other opium-producing countries has also been pouring into the US market. Heroin has many chemical similarities to other narcotics, and fulfills the needs of those who can no longer afford prescription painkillers on the black market. Heroin is now estimated to be available at around one-tenth the price per gram of oxycodone and other similar drugs. Thus, many people who would never have been considered likely heroin users are now turning to the drug to shore up habits that began legally at their own doctors’ offices. While prescription overdose deaths are beginning to at least level off, the annual human toll of heroin has quadrupled from 2002 to 2013.

It should also be noted that there were and are many patients who legitimately require prescription drugs to deal with pain. Under the new system, they can no longer easily refill prescriptions that they need to cope with the massive pain they experience in daily life. Thus, the profit strategy of making painkillers so widely accessible has also hurt those who need them most such as recent accident victims and those living with certain chronic illnesses.

Accountability and Harm Reduction

Policy makers in the United States should be humbled by the current crisis. By humoring the pharmaceutical industry for so long, they ignored the rise of a new type of drug dependency. Under the “war on drugs” logic, one man could be prosecuted for possession from a small amount of marijuana while another could legally carry large amounts of a heroin-like substance. This led to a growing division between more affluent, often white, “legal” drug addicts and their criminalized, often poor and minority, counterparts. Now that heroin is involved instead, the hypocrisy of this policy stance is much clearer.

Many who work in the drug addiction field advocate a harm reduction approach to dealing with addiction. Unlike the war on drugs, which sees addicts as criminals, this approach sees addicts as people in need of medical and psychological attention. It also recognizes that society is more harmed by addicts who are given no shelter and no resources to cope with their problems.

Harm reduction is catching on. To prevent further deaths, some areas have instituted “good Samaritan” laws for those reporting drug overdoses. People may now call for emergency services for friends or relatives without fearing arrest. The use of naxolone hydrochloride (branded Narcan), an emergency room drug that can stave off the effects of a narcotic overdose, is also becoming more common. Many communities are also turning towards alternative approaches to deliver drug treatment programs. In the end, this national tragedy may be the catalyst towards a new drug policy in the United States.

Authored by Alexis Watts, LegalMatch Legal Writer

New Federal Drug Sentencing Guidelines Help Some Inmates Gain Freedom

Last year, the U.S. Sentencing Commission made major decisions in felony drug sentencing. In April 2014, the Commission lowered many sentences for non-violent drug crimes. Months later, it made the decision retroactive, affecting some convicted felons already in prison. At the beginning of November 2015, the first group of 6,000 inmates was released from custody based on this new policy. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016.

How Does the New Sentencing Law Work?

The new sentencing policy is often referred to as “Drugs Minus Two.” The Sentencing Commission has long used a “drug quantity table” to find guideline sentences for drug possession based on weight. Often, these guideline sentences were much higher than the mandatory minimums for the same crimes. Now, the Commission will downwardly adjust all sentences by two levels on the table. The Commission estimates that the average sentence reduction will be approximately 25 months for qualifying drug crimes.

For current prisoners, release is not automatic. Prisoners must apply for relief and a judge must determine that the prisoner is eligible for resentencing. The judge must then decide on a case-by-case basis whether or not a prisoner merits a reduction.  

Several types of prisoners will not qualify for resentencing. For example, those who have been found guilty of drug crimes that resulted in death or serious bodily injury cannot be resentenced. Inmates whose sentences were based on a career offender status or another higher guideline (based on aggravating factors) also do not qualify. 

What Will Become of the People Getting Released?

Most of the people released will first go to halfway houses or home confinement before being reintegrated into society. This step is intended to ensure a more successful transition out of prison. However, about 1,700 of the individuals are undocumented immigrants who may face immediate deportation to their country of origin upon release. 

Has the Federal Government Now Done Enough for Non-Violent Drug Offenders?

Many sentencing reform activists say that this policy, while a step in the right direction, does not go far enough to make sure that drug offenders face reasonable and humane federal sentences. There are many things that still contribute to overly punitive sentences, including the guideline sentencing grid and mandatory minimums. One former Assistant U.S. Attorney, who later became a sentencing reform advocate, calls the process overly mechanical and says that it is therefore like “stacking bodies up” regardless of the facts of the individual crime. There are still roughly 90,000 individuals serving federal time for drug crimes.

Activists point to several factors in harsh sentencing:

• The law does not distinguish between small-time dealers and couriers and major players like cartel leaders, so people are often sentenced for the quantity of drugs involved in a much larger scheme rather for the quantity they actually handled.
• The government still uses the weight of drug-containing compounds to determine sentencing. For example, for possession of Lortab, a pill containing 95% aspirin and around 5% hydrocodone, courts consider the entire weight of the pill.  For LSD-laced sugar cubes, courts consider the weight of the sugar cube.  
• Due to harsh potential sentences, defendants are often convinced to plea bargain rather than go to trial. Human Rights Watch says that federal drug defendants who go to trial receive sentences three times as long as those who plead and avoid time-consuming trials.
• “Three strikes” and other repeat offender laws are still in effect.  For a drug addict who has not yet received proper counseling and treatment, a few drug possession felonies could lead to a sentence of multiple decades or even life in prison.

Moving Towards Rehabilitation

Our society may begin to consider less incarceration-oriented sentencing for nonviolent crimes, including drug crimes. Trying to genuinely rehabilitate rather than “warehouse” drug offenders would be both cost-effective and compassionate. In 2013, the average yearly cost of housing a single federal inmate was $29,291.25.  Ironically, this would be enough money for a young adult to pay tuition at an inexpensive college. Many inmates are only in their late teens or early twenties and may never be able to show that they have given up the drug lifestyle and can be responsible, productive adults.

Further sentencing reforms should allow courts to consider background and individual facts of each case. They should also give more defendants a meaningful opportunity to have a second (or third, or fourth) chance. “Drugs minus two” may be the first step in a long road ahead.

Authored by Alexis Watts, LegalMatch Legal Writer

Medical Marijuana: A New Niche for Lawyers

Medical marijuana has become increasingly popular among many demographics of the population. From the eighteen year old with claimed “anxiety”, to an actual patient receiving chemo, medical marijuana is the go-to medication to help with illnesses.

Strolling down Venice Beach, CA, you will find numerous dispensaries at your disposal. Receiving a medical marijuana card, depending on the dispensary, can be as easy as saying you have insomnia. No doctor’s note needed.

Unfortunately for some consumers, they still may be charged, tried, and imprisoned for medical marijuana use due to violations of federal marijuana laws. More often than not, medical marijuana cards are used for false illnesses, and the consumers take advantage of this power. Dispensaries that allow the flexible disposal of cards are subject to charges from the US Department of Justice and Drug Enforcement Administration.

Marijuana dispensaries are likely to continue encountering resistance from the federal government. Marijuana use is still a taboo in America, even with Colorado and Washington declaring the use of it legal. Vendors of legalized marijuana must understand that they may suffer from the following:

• Raids from the US Department of Justice and Drug Enforcement Administration.
• The IRS barring marijuana dispensaries’ tax deductions.
• Prosecutions for driving under the influence of “medical” marijuana.
• Criminalization of marijuana under the Controlled Substance Act (CSA).

Federal prosecutors sending cease and desist letters or eviction notices to dispensaries as well as their landlords.

Since state laws vary and often conflict with federal laws, rights of medical marijuana consumers have been a new phenomenon to attorneys. Medical marijuana use has become a niche for many lawyers who provide legal advice in business, criminal, and tax law to marijuana dispensaries. Lawyers fluent in marijuana laws will become highly in demand as the market for medical marijuana continues to expand. 

Authored by Danielle Brown, LegaMatch Legal Writer

The Harshness of Three-Strikes Is Evident by Life Sentences for Non-Violent Marijuana Offenses

The recent story of Jeff Mizanskey has been making headline news. Mizanskey was sentenced to life in prison under Missouri’s “prior and persistent drug offender” law. Similar to other states three-strike laws, a judge in Missouri is permitted to hand down life sentences for third-time felons, regardless of whether to crime was violent in nature.

Mizanskey has now spent 21 years in prison, with 3 failed parole attempts and a clemency request not yet granted. His crime? He was present in a hotel room while an acquaintance bought 7 pounds of marijuana from police informants. This was Mizanskey’s third drug offense, with two prior convictions for possession of 35 grams of marijuana.

In fact, Mizanskey is not alone. LifeforPot.org lists 25 other people serving life sentences for non-violent marijuana related offenses (and many others for other non-violent offenses.) However, half of the states, including Missouri, now allow for medical marijuana and 2 states allow for recreational use. The latest polls show that the majority of Americans favor legalization of marijuana.

So the question stands, should people like Mizanskey be spending the rest of their life in prison for crimes that would carry a few years of incarnation, if any, today? Unfortunately, a majority of the states still have some version of the three strikes law.

Previously, California was thought to have the most severe three strikes law in the nation. Until recently, a person convicted of nonviolent felonies, such as drug possession could, and often did, receive a prison term of 25-years to life for a third felony. However, in 2000, California began to relax the penalties when voters passed Proposition 36. Instead of drug possession carrying a possible 25 years to life, Proposition 36 allowed for the possibility of drug treatment.

More recently in 2012, a new version of the law mandates that a life sentence can only be imposed if the 3^rd felony is serious or violent. Fortunately, the law is retroactive and allows for possible re-sentencing for those previously convicted of a non-serious or non-violent crime on their 3^rd strike. This has resulted in California releasing many of these prisoners, relieving the huge problem of over-population in the state.

States implement three strike laws to ensure that repeat offenders are constantly imprisoned. The logic is that while a criminal is in prison he or she can’t be out in public hurting anyone. However, how do these laws apply to people like Mizanskey, who has never been charged with a violent offense? The answer is that they don’t. Unlike California, Missouri is not letting out people like Mizanskey. It appears likely, that despite his declining health and the 20 years he has already served, he will remain in prison until he dies.

Many laws have been challenged as an unconstitutional violation of the Eight Amendment, which protects a person from cruel and unusual punishment.  However the high courts have upheld the laws, even when applied to minor felonies, such as marijuana possession. Therefore, at this time, the states are free to continue passing versions of the three-strike law and, despite public outcry, they have unlimited discretion as to the severity of the law. Unfortunately, this means that people like Mizanskey are not legally entitled to relief.

Three strikes laws will continued to be challenged, often times beginning with a single defendant’s appeal of their conviction. LegalMatch.com connects experienced criminal law attorneys with clients. Also check out the thousands of legal articles and blogs on their site, as they provide up-to-date information on criminal law trends, as well as many other areas of law. 

Is Medical Marijuana Legal in Your State? Don’t Bet Your Job on It

Several states have passed laws (many of them passed through voter initiatives) which legalize medical marijuana. The exact scope of these laws differs, but, generally, patients are allowed to cultivate and possess limited amounts of marijuana if the have the recommendation of a licensed physician in the state.

These laws typically allow doctors to recommend the use of marijuana for a list of diseases and medical conditions. Marijuana’s main active ingredient, THC, appears to have some extremely powerful anti-nausea effects. This makes it very useful for alleviating the side effects of cancer and HIV/AIDS treatment. Many such patients report that use of medical marijuana improves their quality of life greatly.

For some such patients, it’s apparently effective enough for them to return to work. Based on a new ruling (reported here and here) from the Oregon Supreme Court, this could present a problem. The Court ruled that employers can fire employees for “illegal” use of marijuana, even if such use is permitted under state law. The case involved an employee who used medical marijuana in accordance with Oregon law. His employer became aware of this, and fired him. He sued, arguing that this violated Oregon’s equivalent of the Americans with Disabilities Act, which bars employment discrimination against otherwise qualified employees on the basis of disabilities which can be overcome with reasonable accommodation.

However, the Oregon anti-discrimination law has a provision saying that courts should construe it in a manner consistent with the federal Americans with Disabilities Act, whenever possible. Because marijuana is illegal under federal law, the ADA would never require an employer to allow an employee to use marijuana (obviously, being required to break the law isn’t a “reasonable accommodation”).

This is one of many examples of how state and federal law can come into conflict, especially with respect to medical marijuana. Under federal law, it is illegal to posses, cultivate, or sell marijuana. There are no exceptions for medicinal use.

As a result, there is a bizarre dynamic for enforcement of anti-marijuana laws, and the debate surrounding medical marijuana.

As to enforcement, medical marijuana is currently allowed, to varying extents, in 17 states, with several others considering legalizing it. However, even if all 50 states decided to legalize marijuana for medical (or, for that matter, recreational) use, it would still, barring an act of Congress, be illegal under federal law. And the federal government would be able to enforce that law within the borders of the U.S.

Under the U.S. Constitution, federal law preempts state law whenever there is a conflict between the two. And in 2005, the U.S. Supreme Court ruled that the federal government, under the interstate commerce clause of the U.S. Constitution, has the power to regulate the cultivation of marijuana, even if it never crosses state lines.

Under the Bush Administration, the federal government took a fairly aggressive stance in enforcing marijuana laws, seemingly making a point to arrest the operators of dispensaries that were legal under state law, to make a point and demonstrate “who’s boss.” This has changed somewhat since President Obama took office – he has issued instructions to the Department of Justice not to go after growers and distributors of marijuana if they are operating within the laws of their states, but this doesn’t change the fact that the federal government is still free to go after these people, if the current president, or a future president, decide to change this policy.

This has also caused the debate about medical marijuana to be framed in a somewhat bizarre way, with its supporters (who tend to be fairly liberal) arguing, in part, on the basis of “States’ Rights,” a traditionally-conservative rallying cry.

The opponents of medical marijuana, who tend to be more conservative, argue that the supremacy of federal law overrides any contradictory state laws.

This has turned the traditional dynamic of political discourse on its head, and made for some strange bedfellows, as well. For example, in the case that reaffirmed the federal government’s power to prohibit marijuana use, the 3 dissenting justices were all from the Court’s conservative wing, mostly on the grounds that the ruling represented yet another expansion of federal power under the commerce clause.

The liberal wing, on the other hand, probably recognized that ruling against the federal government could have established a precedent leading to the rollback of many federal programs that have become entrenched in American society since the New Deal.

The debate over medical marijuana is clearly about much more than whether or not a drug should be legalized for medical purposes. The debate is about where federal power ends and state sovereignty begins.

By: Rusty Shackleford