What has Jeff Sessions been smoking?

Why does the US government even care about marijuana? Every state in the country has its own laws regarding hippie lettuce - there is no need for the federal government to be involved.

Hasn't anyone in Washington ever heard of the 10th Amendment? Hasn't anyone learned about the concept of federalism?

Jeff Sessions is just the latest Republican officeholder to cast federalism aside when it doesn't suit his needs. His recent decision to reverse the Obama-era hands-off policy with regard to cannabis shows just how out of touch old, white wingnuts are - and just how hypocritical they are.

Voters in states across the country have decided that the existing chronic laws make little or no sense. There is a growing understanding that the happy grass is more akin to alcohol - a perfectly legal drug - than it is to cocaine and other narcotics. Many local jurisdictions have taken steps to decriminalize the possession of small amounts of weed by offering pretrial diversions or treating the offense like a traffic ticket.

As an aside, part of this change in attitude toward wacky tobacky has to do with the fact that the majority of users are white. And when upper income white folks find themselves inconvenienced in their indulgences, well, that's a problem.

Regardless of one's feelings about bud, I would hope that we could agree that there is no need for los federales to be involved in most drug prosecutions. States have laws governing the use and possession of various narcotics and illegal drugs. There is no need for the federal government to stick its nose in state criminal matters. It makes a whole lot more sense for these cases to be prosecuted in local jurisdictions.

But, as I have pointed out on countless occasions, the familiar conservative call for limited government generally only considers those circumstances when the government has issued regulations for the protection of workers or the environment. Conservatives, by and large, have been fine with the intrusion of the government into matters involving individuals.

One interesting unintended consequence of Mr. Sessions' desire to turn otherwise law-abiding citizens into criminals may be a larger push to not just decriminalize pot, but to legalize it instead. Already 29 states, comprising about 60% of the US population, have legalized marijuana in some form or another. Eight states have legalized the personal possession of grass.

There will be a backlash to Mr. Sessions' attempts to re-impose prohibition on the 420. There are plenty of Republican lawmakers at the state and national level who have come out in opposition to this new direction. Jeff Sessions is fighting a rear-guard action he can't win. He can only hope not to step in it too deeply.

See also: "Jeff Sessions helps the cause of legalizing pot," Chicago Tribune (1/10/18)

The grass is always greener

Here's an interesting piece from Sports Illustrated about Ricky Williams who walked away from the NFL. I went to the University of Texas at the same time Ricky did and remember watching him play ball at DKR. He was a stud running back (who at one point held the NCAA record for career rushing yards) but he marched to the beat of his own drummer (and still does).

Our marijuana laws make no sense. Alcohol is a much more dangerous drug but it's perfectly legal and manufacturers pay plenty in taxes to the government for the privilege of producing it. As you know, I defend people accused of drunk driving and I see the consequences of it every day. Why the federales leave marijuana as a Schedule 1 drug I will never understand - it has been clearly demonstrated that various components of marijuana have legitimate therapeutic uses.

The NFL has a strict anti-marijuana policy but looks the other way when team doctors hand out painkillers like candy so players can be rushed back onto the field quicker. They are more concerned about the league's image then they are for the people the league chews up and spits out on a regular basis.

Instead of legalizing - or at least de-criminalizing - marijuana we choose to enforce laws that make young people criminals and threaten their ability to obtain student loans for college. Yet we'll just slap 'em on the wrist for underage drinking which is a far more serious problem.

It's time we got past Reefer Madness, wouldn't you agree?

Where it's worse to smoke a joint than beat up your wife

Last week Baltimore Ravens running back Ray Rice was suspended for two games without pay for an incident in which he knocked his (now) wife out and dragged her out of an elevator unconscious. He was indicted by an Atlantic County (NJ) grand jury. Mr. Rice was then accepted into a pretrial intervention program in which after he completes a year on probation, the case will be dismissed. 

Justin Blackmon, a receiver for the Jacksonville Jaguars, is currently on an indefinite suspension for his third violation of the NFL's substance abuse policy. The first violation did not result in a suspension. The second violation earned Mr. Blackmon a four-game suspension.

Josh Gordon, a receiver for the woeful Cleveland Browns, was hit with a one-year suspension after he was arrested for driving while intoxicated after already having failed at least one random drug test. Mr. Gordon was stopped for speeding and, after being arrested on suspicion of DWI, blew a .09 on a breath test.

And I guess I would be remiss if I didn't remind y'all that Ben Roethlisberger, the quarterback for the Pittsburgh Steelers, was suspended for six games back in 2010 after he was arrested, but not charged with sexually assaulting a 20-year-old college student in Georgia.

NFL Commissioner Roger Goodell and his lackeys have been making the sports-yak circuit trying to justify a policy that makes little or no sense. One NFL official, Adolpho Birch, appeared on ESPN Radio Monday morning and made a complete ass out of himself trying to justify Mr. Rice's two-game suspension.

What does it say about the NFL - and our society - that the penalty for smoking marijuana is more severe than the penalty for knocking your girlfriend unconscious? The fact that so many folks in authority still seem to buy into the propaganda film Reefer Madness so many years after it was made (and discredited) is one of those things that makes no sense.

And how can we even compare Mr. Gordon's misstep with what Mr. Rice did to his then-girlfriend in that elevator? 

If the point in the NFL's player conduct policy is to protect the corporate image of the league, why is Mr. Goodell more concerned about players smoking marijuana and driving while intoxicated? Shouldn't domestic assault be an area of more serious concern? It never ceases to amaze me how our puritanical views on pleasure and recreation lead us to such absurd results.

Now if you think that Mr. Blackmon and Mr. Gordon received the right punishment for their actions - I will respect that opinion. But, if their suspensions were justified, then Mr. Rice should be joining them on the outside looking in for the 2014 season.

The times they are a-changing

I could start off with a rant about why taxpayers in Texas are being asked to pay for a security detail for Gov. Rick Perry while he rubs shoulders with the rich and powerful and the World Economic Forum in Davos, Switzerland. But I'm in a good mood so I won't sweat the Guv hanging out at the uber-wealthy's version of Woodstock.

And, speaking of Woodstock, Gov. Goodhair sprung an interesting surprise on reporters when asked about his views on the legalization of marijuana. While emphasizing his opposition to legalizing the weed, Gov. Perry did express his support for decriminalizing grass.

The Fair-Haired One has embraced the use of specialty drug courts as opposed to regular courts. Now I have made my opposition to drug courts well known and I'll repeat it here -- courts are for resolving legal issues, not for doling out medical treatment. Addiction is a public health issue, not a criminal issue; and until we treat it as such, we will continue to tread water.

Aside from his support of drug courts, for once I'm on board with Gov. Perry. There are far too many folks arrested and dragged into court for possession of small amounts of marijuana. Even worse are the far-ranging consequences for a conviction -- public housing residents can be evicted and college students will be deemed ineligible for federally-backed student loans.

Currently possession of less than 2 ounces of marijuana is a Class B misdemeanor carrying a maximum punishment of six months in jail. If Gov. Perry is serious about decriminalizing marijuana then we need to knock possession of less than 2 ounces to a Class C misdemeanor (the equivalent of a traffic ticket) which is a fine-only offense that doesn't appear on one's criminal record. Then we need to knock down each level of offense one step. In fact, we should seriously consider doing that on every drug possession offense right now.

Gov. Perry understands the economic cost of carrying out a draconian drug war. He sees that county jails are filling up with non-violent minor drug offenders. Now it's time to see if the rest of Perry's Republican posse is willing to fall in line and amend the drug laws in the next legislative session.

Now contrast Gov. Perry's position with that of Devon Anderson, the unelected Harris County District Attorney whose blowhard response to President Obama's comments about marijuana sounds a lot like the nonsense in Reefer Madness.

"Marijuana is creating deadly situations right here in Harris County. I welcome the President to come to Houston to review the same capital murder cases I did just last week that were the result of marijuana drug deals. Maybe then he will see that the most effective way to keep our law-abiding citizens safe is to obey all laws that our legislators put on the books at our state capitol. 

“I am acutely aware of the high price society pays for the misuse of alcohol. This is not a debate about whether alcohol or marijuana is more dangerous. The President’s comments notwithstanding, marijuana is illegal under the Texas penal code, and we vigorously prosecute drug possession and alcohol-related offenses in Harris County.”

But what else should we expect from Ms. Anderson? The budget for her office depends on the number of cases being filed. She has no time to worry about the consequences of prosecuting folks for possession of minor amounts of marijuana while she's out trying to convince folks to vote for her this fall.

After all, it's much easier to demagogue than make well-reasoned arguments.

Is the GOP dazed and confused?

Who thought we'd see the day when Republicans in Washington would fight for the legalization of marijuana? Oh, the ghost of the Gipper must be spinning in his grave as GOP representatives introduced a bill into Congress that would require the federal government to respect the marijuana laws passed by the states.

The latest Republican to jump aboard the pot train is Texas' own Steve Stockman, a certified wingnut from East Texas.

The question is what gives with the GOP bedding down with the stoners? Is it the libertarian wing of the party stepping out into the limelight and acknowledging that Uncle Sam doesn't need to have his hands in everything? Or is it the traditionalists who look at the decades-long War on Drugs as enormous drain on resources and tax dollars? Or is the the strict constructionists who believe that drug policy is the province of the states and not the federal government?

But how will this play with the true believers in the party - the social conservatives who have declared war on everything from drugs to sex to abortion?

And how is the Republican party going to keep these divergent interests together under their tent? Are we entering a period in which our two traditional parties will be shaken to the core and a new politics will emerge?

And, even more importantly, what will be the impact of this national debate on drug policy in Texas? Can the social conservatives maintain their power and influence in the face of changing demographics in the Lone Star State? Will the libertarians in the party start to move into positions of power?

However this plays out it's time we all took a look at the aftermath of the War on Drugs in Texas. Our jails are overcrowded with non-violent offenders convicted of possessing small amounts of a variety of drugs. It certainly makes more sense to use our jails to house violent offenders and those who have shown a lack of ability to be part of society. Our money could be much better spent by funding community programs aimed to helping folks address their addictions. The collateral consequences of minor drug possession convictions are far too severe for the crimes.

If the legislature doesn't want to take the extreme step of legalizing the possession of some drugs - then maybe they should take the baby step of decriminalizing it. Or, at a minimum, reducing the level of offense.

Meanwhile, here's a peak at what Mr. Stockman might have on his iPod.

Texas DPS sued over roadside cavity search

On a sultry July evening in Dallas Angel and Ashley Dobbs were cruising around when one of them tossed a cigarette out of the car. The state trooper behind them, David Farrell, flipped on his lights and pulled the women over. But she didn't just give them a ticket for littering.

Claiming that he smelled the odor of marijuana in the car, the trooper asked the ladies if they had anything illegal in the car. The ladies said no. End of story? Not quite.

The trooper then called a female officer, Kelley Helleson, who put on a pair of blue latex gloves and conducted cavity searches on the two women on the side of the road - in full view of passing traffic. According to the women, Trooper Helleson's search was painful and humiliating. She didn't even bother changing gloves between searches.



And guess what Trooper Helleson found?

Absolutely nothing. The driver, Angel Dobbs, then had the nerve to pass the roadside coordination exercises the trooper asked her to perform.

And when it was all said and done, the troopers didn't even apologize to Angel and her niece.

Now the women are striking back. In a lawsuit filed against the Texas Department of Public Safety, the ladies allege they were molested by Trooper Helleson and that the DPS had a long-standing pattern of illegal strip and cavity searches.

To think that this entire nightmare came about because a police officer claimed he smelled marijuana. How many cases have we seen in which a car is tossed based upon an officer supposedly smelling marijuana? So many violations of our rights come about because one officer claims to have seen, heard or smelt something that led him to believe the something illegal was going on.

It's just an excuse. The police pull someone over. They suspect he's got something in the car he shouldn't. They get him out of the car and toss it. Then, lo and behold, they find the Holy Grail. A dime bag in the center console. Throw in that part about the smell of marijuana and BAM! it's a good bust.

There aren't any cameras. There aren't any witnesses. Besides, they found the dope in the car. He's guilty. Who cares if the cops conducted an illegal search?

But this time there was a video. This time there was a witness. And, most importantly, this time there wasn't anything in the car.

All it takes is one stop like that to shed a little light on what really goes down in the middle of the night. A perfect storm of elements and the cops are caught with their pants around their ankles.

It's bad enough that the police get away with lying about their conduct on the street. It's even worse that most judges will take the word of a police officer over a defendant without giving it a second thought. Judges like to tell you that the defendant has a motive to lie - but, berobed one, so does the officer.

There was no excuse for what happened on the side of the highway in Dallas this past July. There is no excuse for what goes on in airports across this nation, either.

There was no probable cause for the search. Trooper Farrell knew that. Trooper Helleson sexually assaulted Angel and Ashley Dobbs. There is no excuse for her conduct. Instead of being on the receiving end of a lawsuit seeking damages, Trooper Helleson should be in criminal court trying to stay out of prison and contemplating how humiliating it would be to have to register as a sex offender.

And, in the end, Trooper Helleson did what she did because she could do it.

New per se limit in Washington is problematic

On November 6, 2012, the State of Washington legalized the recreational use of marijuana. On December 6, 2012, the State of Washington is changing its drunk driving statutes in response.

As things now stand, if a driver is suspected of driving under the influence of marijuana the prosecutor must prove that the driver had lost the normal use of his mental or physical faculties due to the use of marijuana. The decision is then left in the hands of the jury to determine whether or not the state proved up its case.

On December 6 that will change. Instead of relying on a drug recognition evaluator to give his opinion on whether or not Johnny is hopped up on too much weed, the state can look to the results of a blood test.

Should a driver show a concentration of THC greater than 5 nanograms, he or she will be considered per se under the influence - in much the same manner as a driver with an alcohol concentration of greater than .08 grams per 210 liters of breath. While there are scientific studies that purport to demonstrate that THC concentrations over a certain level correlate to impairment, the studies don't take into account the shortness of the "high" and the way in which the body stores THC.

The buzz one gets from marijuana comes and goes quickly. The THC, however, is stored in the body's fat cells for up to 30 days. This means that a fair amount of THC in the body may be inactive. In other words, a reading of 5 nanograms doesn't necessarily mean that a motorist is impaired. 

While I understand those who wanted to create a per se limit for THC, I must fault their rush to create a number without taking into account the problems inherent in such an approach. For one, the battery of roadside exercises police use to make their arrest decisions in DWI cases have never been tested on people who have smoked marijuana.

Without the "rigorous" testing NHTSA conducted on their exercise protocol, we have no way of knowing what levels of THC concentration correlate to what levels of performance. Without that correlation, any per se limit is just a number grabbed out of a hat.

Such a set-up will only serve to deprive those accused of driving under the influence of marijuana of a defense to the charge, as the court will presume that a driver with a THC concentration of 5 nanograms or higher is under the influence. That presumption will be made with or without signs of impairment.

While the referendum in Washington is a good sign that folks are starting to think hard about the failures of the war on drugs and the futility of treating drug use as a criminal matter and not a public health issue, the creation of a new per se limit is a troubling reminder that junk science lives on.

The joint that broke the camel's back

So, Eric Holder, what's the big deal about Colorado and Washington voting to legalize marijuana? Why should it matter that two states decided the benefits of the war on drugs wasn't worth the cost? Maybe you're worried that some other states will come to the conclusion that it doesn't make sense to waste public resources arresting, jailing and trying cases involving an ounce or two of the chronic.

The bigger question, however, is why the federal government is involved in the prosecution of marijuana cases at all. Up until last week, all 50 states had laws on their books making it a crime to possess marijuana. Why were los federales even involved in pot cases? It would seem that the states had it under control.

As I've stated many times before, the only federal crime specified in the Constitution is treason. According to the 10th Amendment, everything else was left up to the states.That's what the conservatives have been screaming for years.

Then how come no one questions why the federal government prosecutes drug cases?

If two states are tired of the time and money spent on pot prosecutions, so be it. I thought the beauty of federalism is that there are 50 little laboratories out there that can test various ideas and programs. Why not let a couple of states try out decriminalizing marijuana? Why not step back and see what happens?

The worst case scenario is more people start passing the bong around the room. Well, Mr. Holder, I've got news for you. Kids are still smoking pot in high school and college and it's been illegal for generations. Anyone who wants to buy any weed can easily find a seller.

The best case scenario is Colorado and Washington save money that would have been spent arresting, jailing and trying folks who were dumb enough to get caught with marijuana (and here's my tip for the day -- smoke the chronic at home and don't carry it in your car, trust me on this). Maybe the states realize some additional tax revenue as a result. Maybe you'd even see a drop off in some violent crime since the distribution of marijuana would be regulated.

And, if these benefits are realized, maybe other states would take a look and begin to question their own laws regarding marijuana. For some states, legalizing it might be the way to go while, for others, reducing possession of small amounts of marijuana to the level of a traffic ticket might work.

Maybe Mr. Holder's real fear is that the actions in Colorado and Washington might lead folks to question why there are so many federal crimes that duplicate the laws on the books in the 50 states. Maybe he's afraid there might be some movement to pare down the list of federal crimes. Or maybe it's because those in power are unwilling to cede any of the authority they've grabbed over the years.

So, Eric, which is it?

Creative thinking in public education?

Possession means actual care, custody, control of management. 

-- Texas Controlled Substances Act Sec. 481.002(38)

Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.

Huh?

I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Firing up a fatty has little effect on driving

Researchers from Hartford (CT) Hospital and the University of Iowa Carver College of Medicine conducted a double-blind study on the effects of marijuana on driving and found that the drug had little effect by itself. Eighty-five test subjects (50 male and 35 female) who smoked marijuana on a regular basis took part in three driving simulations.




The first test simulated an "uneventful" drive. The second test had the subjects answering math problems while driving. The third test introduced cars coming out of intersections, a changing traffic light and a dog running into the road. Researchers found "no significant difference" between the subjects who smoked marijuana and those who smoked a placebo in the collision avoidance simulation. Researchers noted that those who smoked marijuana drove at a slower speed that those who didn't during the distracted driving simulation.

It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose...It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. -- NHTSA Fact Sheet

Researchers were quick to point out that they did not believe driving while high was safe because drivers who smoked marijuana may also have consumed alcohol and would be distracted by the radio and cell phones. Of course most of us are distracted while we drive because we are listening to the radio or to music or talking or texting on cell phones or interacting with the people in our cars.

The question, as always, is whether or not the driver lost the normal use of his mental or physical faculties because he was smoking marijuana -- and that is something that looks increasingly hard to prove.

See also:
NHTSA Drugs and Human Performance Fact Sheets: Marijuana

Happy marijuana freedom day!

If you didn't already know it, today is Marijuana Freedom Day (4/20, get it?). The folks over at NORML are planning events around the country both to protest the laws making marijuana illegal as well as to celebrate the herb, hippie lettuce, happy grass, pot - whatever you wish to call it. Houston's even in on the act.

As you may know, the Harris County Jail is packed to the gills -- due largely in part to people arrested and convicted of minor possession charges. The inmate processing center was clogged over the weekend that the Harris County Sheriff's Office announced that it would stop accepting people brought in by HPD for low-level traffic offenses. Of course that may have been because a plan for expanding the inmate processing center is scheduled to go before county commissioners.

How would I reduce overcrowding in the county jail? People arrested for what amounts to "personal use" quantities of marijuana (or as those brilliant scholars in the state legislature spell it - marihuana) should either be charged with a Class C misdemeanor for possession of paraphenalia or should be issued a citation with an order to appear in county court under the state's "Catch and Release" initiative.

Update:

According to Alan Bernstein, the Public Affairs Director of the Harris County Sheriff's Office, the sheriff's office never stopped accepting anyone brought to the jail by HPD. He said that it was HPD's decision to  stop making arrests for low-level traffic offenses.

Of course, what's really the difference between threatening not to accept arrestees and turning them away at the door?