Monthly Archives: March 2018

Interstate Cannabis

By Silvan Schuttner, first-year student at the University of Washington School of Law

Image used under the Creative Commons Zero License

The states that have legalized cannabis—as a matter of state law—have generally been allowed to operate without much federal involvement. However, transportation of state-licensed and produced cannabis to other states is beginning to change that. Cannabis remains illegal under federal law, regardless of changes in any particular state’s laws, and federal law also prohibits transporting Schedule I drugs across state lines under the Controlled Substance Act. Why is this now an issue when it hasn’t been much of a problem in the past? The answer: a confluence of rising cannabis overproduction and interstate transportation have combined with the tension between state and federal law.

A potential increase in federal attention on cannabis may result from Attorney General Jeff Sessions rescinding the Cole memo, which had been a guide for states to limit federal involvement. However, preventing cannabis from crossing state borders was one of the “particularly important” enforcement priorities for the federal government laid out in the Cole Memo. Making it crucial for states to find a way to address this issue.

Due to an overproduction of state-legal cannabis, the black-market in states that have yet to decriminalize or legalize is attracting some of the excess cannabis. As was feared from the outset, states with state-legal cannabis regimes seem to have indeed become an easy source to supply black-market demand in non-legalized states. Washington sought to limit production to only enough cannabis and derivative products to satisfy in-state legal markets. California attempted to address this problem with laws against taking cannabis out of the state. Of course once cannabis leaves a state there is little that state can do to prosecute. The fact that state legal cannabis is finding its way to other states where it is still illegal is driving federal prosecutors to focus on the issue.

Overproduction in states such as Oregon has brought up a question about the state’s ability to deal with the regulatory process alone. As US attorneys try to figure out how to proceed with this problem, a continued increase in cannabis crossing state borders could garner more attention and subsequently federal enforcement. It is difficult to predict how federal involvement would manifest, if at all, but it is all but certain if states continue to struggle controlling production and transportation out of state.

Overproduction and interstate transport is an example of the challenges around a bottom-up approach to legalization. Issues that states which have legalized cannabis face will require a careful, considered approach. It’s true that being at the vanguard of change is difficult, but hopefully this is a problem that the states can solve without too much federal directive.

Federal Budget Protections for Medical Marijuana Growers

By Sean Hyde, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

The barrier standing between state law compliant medical marijuana growers and prison is money, but not because they need a pricey attorney to fight back. The federal budget has been at the top of headlines the past several months as Congress fights to decide what programs get funded for the rest of fiscal year 2018. The resolutions that have kept the spending at the status quo, until the final deal reached on February 7th, upheld a safeguard in the Federal budget under the Rohrabacher amendment. The amendment, or rider, says that the Department of Justice (DOJ) can’t spend any funds to interfere with the medical marijuana laws of the named states (almost all of them). This sounds like very good news, but it isn’t technically as good as you might initially think.

The manufacture, distribution, and use of medical marijuana is still a federal crime, so it’s under the DOJ’s jurisdiction to enforce those laws. The rider has not prevented them from filing new charges against violators, but it has had some efficacy in the 9th Circuit in halting prosecution. A 2016 case compelled an evidentiary hearing to allow the defendant to show they were strictly compliant with state law (US v. McIntosh). Once outside of those laws, even on small technical details, the rider doesn’t apply, and the DOJ can continue to fund the prosecution. But if you are fully compliant with state law, then you’re home free, right?

Unfortunately, the lack of funding doesn’t necessarily require the DOJ to drop the charges against you. There is no indication that they will have to release any seized plants, or to reimburse you for the expense incurred while defending the charges. It could be argued that keeping case files, storage of evidence, and review of case management systems constitutes spending that interferes with the ability of the state to implement laws. But that argument has not come up so far as my research has taken me. And who knows, maybe this rider has kept people from being arrested.

Last week the 9th Circuit Court of Appeals in Seattle heard a post-conviction appeal requesting an evidentiary hearing under the McIntosh rule. The contention was that the lower court had expressly forbidden the use of Washington State law as an affirmative defense against prosecution, so evidence was not provided at trial to support compliance. Presumably, if the evidentiary hearing finds that the defendant was in strict compliance with state laws, then the prosecution was pursued when it should have been prohibited for a lack of funding. It’s not clear what remedy would be available if the evidentiary hearing found that the defendant was in strict compliance with state law. If the court ordered release of the defendant from prison, aren’t they just postponing his incarceration if and until Congress turns the tap on for the DOJ again?

The problem here is a temporal one. In a strictly technical sense, the DOJ shouldn’t have funding to prosecute before there is an evidentiary hearing to determine compliance. Because they have to spend money to find out if they have money to spend, this part of the process is unavoidable. This is why the rider is only a half-measure solution. What if you continue following the state laws and they add those acts to the previous charges, in a way “allowing” you to continue illegal behavior which they will later charge you for? As it is now, there is no answer to that question.

For now, the Rohrabacher amendment is in place until March 23rd. It remains to be seen what Congress will do for the rest of FY18 and beyond.

Vacating Misdemeanor Pot Convictions: Seattle’s Necessary But Insufficient Step Toward Restorative Justice Says Mayor Durkan

By Jevan Hutson, first-year student at the University of Washington School of Law.

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Following similar announcements in San Francisco and San Diego, Seattle became the latest major U.S. city to vacate past pot convictions. Earlier this month, the city of Seattle moved to vacate all misdemeanor pot possession convictions that were prosecuted before the legalization of recreational marijuana in 2012.

Highlighting a report from the Drug Policy Alliance, Mayor Durkan’s office said  “[m]arijuana possession arrests in Washington rose sharply . . . from 4,000 in 1986 to 11,000 in 2010, totaling 240,000 arrests . . .” and that “[i]n Washington State, African Americans were arrested at 2.9 times the rate of whites. Latinos and Native Americans were arrested at 1.6 times the rate of whites.”

As a step toward redressing the disparate impact of the war on drugs on communities of color, Mayor Jenny Durkan and City Attorney Pete Holmes estimate that between 500 and 600 criminal convictions will be erased from court records. The cases were prosecuted between 1997 and 2009, which represents the period when Seattle’s municipal court had authority to prosecute misdemeanor pot cases. Before 1997, misdemeanor marijuana prosecutions were handled in county court, where city officials have no jurisdiction.

Unlike the San Francisco District Attorney’s Office, which will be reviewing, recalling, and resentencing upwards of  4,940 felony marijuana convictions dating back 43 years, the Seattle City Attorney’s Office does not oversee felony marijuana convictions. In Seattle, felony marijuana convictions are handled by King County Prosecutor Dan Satterberg. Despite being sympathetic to the city’s initiative, Satterberg says his office does not have the resources to vacate or reduce all past convictions:

“If a case is more than three years old, we have to go to the warehouse where we hold our old files, pull them out, and figure out if the felony was a $10 sale or a 1,000-plant grow house,” Satterberg said. “If the county wanted to make this a priority and devote some resources to it, it could be done, but I don’t want to do it at the expense of the mainline criminal cases that are coming in every day.”

Despite being at the forefront of marijuana legalization, Seattle’s latest efforts follow the lead of cities like San Francisco, San Diego, and Oakland. Although Seattle’s move to vacate misdemeanor pot possession convictions is an important and necessary step forward, Mayor Durkan highlighted how it is alone insufficient to redress the historical injustices of the war on drugs on vulnerable and minority communities:

“Addressing decades of unjust convictions – and particularly the damage wrought on communities of color – won’t happen overnight. We must provide more effective alternatives to prosecution and incarceration through drug and mental health courts, restoring rights and supporting re-entry.”