Quick Hits (page 3)
Valley Tops State's Pot Busts
By: Marc Benjamin (The Fresno Bee)
Three Central Valley counties were among California's top 10 in marijuana plants removed as the central Sierra usurped Northern California as the place marijuana is most likely to be found, according to statistics released by the state Department of Justice.
Tulare County ranked No. 1 among California's 58 counties with 141,239 marijuana plants seized this year. Even without the discovery of a massive 73,000-plant garden -- which authorities describe as the largest in 10 years statewide -- Tulare County still would have been the state's leader. Fresno County ranked seventh and Madera County ninth in plants eradicated.
"The bad news is that it's not a good thing to know there is this much activity going on and that growers have become that sophisticated and the gardens are so large," said Tulare County Sheriff's Lt. Donna Perry. "But we are pleased we were able to eradicate a majority of what was grown this year."
Law enforcement from eight Central California counties, including Mariposa and Tuolumne, were responsible for nearly 52% of all pot plants removed with help from the state's Campaign Against Marijuana Planting, or CAMP. There were 466,000 plants removed statewide this year, 31.6% more than last year. This year's eradicated crop had an estimated wholesale value of $1.9 billion, the state Department of Justice reported.
"When it comes to the remoteness and the water sources that are up there, it's perfect," Val Jimenez, statewide CAMP commander, said referring to Central California's forests.
The key is getting the plants at the right time, he said, usually between mid-August and October, when marijuana is nearly ready to be picked and it's too late for growers to move to another site and grow a new crop.
But as the season wears on, authorities run the risk of being greeted by heavily armed opposition protecting an investment.
"By waiting until the end, there is a potential for violence because they have a lot invested in there," Jimenez said. "Come September, it becomes a race because they know we are out there and we are coming around."
Six people were killed in California's marijuana groves, four in officer-involved shootings this year. In Fresno County, one man was killed and a second man shot in the leg in grove incidents. Neither involved law enforcement.
Another concern is that marijuana is being grown at the height of the summer tourist season in mountain areas that families may visit.
"You have people growing crops where people like to hike, so if they stumble upon drip lines, the word is out in the community, don't venture in, get out," said Erica Stuart, Madera County Sheriff's spokeswoman. "There is a substantial fear on law enforcement's part for the locals. You want to make sure these places are places families can visit and they shouldn't have to fear for their lives."
In Madera County, a marijuana grove was discovered within a few hundred yards of homes where children live, Stuart said.
Marijuana crops are no longer some kind of teenage prank, officials say.
"These are drug-trafficking organizations," said Dave Dresson, senior special agent in charge with the Bureau of Narcotic Enforcement in Fresno. "These are not mom and pops who grow, say, 20 plants. These are large polydrug organizations, and they grow 20, 30, 40 or 70,000 plants. These are marijuana factories."
Dresson said he estimates that authorities are probably eliminating about 50% of all marijuana plants being grown.
State officials say 84% of plants seized this year are connected to large Mexican drug-trafficking organizations. Several of the organizations are producing methamphetamine, growing marijuana and transporting cocaine, Dresson said.
"We have found that they were producing meth in the off-grow season to finance their marijuana grows," he said.
Fresno County sheriff's Lt. Robert Hagler said CAMP assisted deputies in removing more than 14,000 Fresno County plants, but that Fresno County detectives also removed an additional 10,000 plants on their own.
The quality of marijuana being grown has made Central California highly profitable.
Mexican marijuana may sell for $350 to $400 a pound compared with $3,500 a pound for varieties grown in the Sierra or $4,500 per pound in Northern California.
"You can see why it's so lucrative," Hagler said. "Our investigations show a lot of it goes back east, to the Bay Area and L.A. by the larger organizations. Similar to meth, we are an export county."
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Mary Jane'z Novelties
Growin' Our Own (page 3)
Comparing Two Cases
By: David Michael, Attorney at Law
I have reviewed all 80 pages of the 23 December 2003 decision by the Canadian Supreme Court in R. v. Malmo-Levine and R. v. Caine, dealing with the issue of whether or not criminal penalties for the simple possession of marijuana violates Canadian constitutional principles. I have also considered this foreign decision as it might relate to the recent medical marijuana victory of my clients, Angel Raich and Diane Monson, in the Ninth Circuit in Raich and Monson v. Ashcroft and Tandy, also decided this month on 16 December 2003.
Since it is likely that the United States government will soon seek a rehearing and en banc review in the Ninth Circuit and, if denied there, will petition the U.S. Supreme Court for certiorari review, it is important that we have some idea of how the Canadian decision might impact our case.
First, it is important to know exactly what the court decided in our Ninth Circuit case. In upholding our requests for a preliminary injunction against the government during the pendency of our lawsuit in federal District Court in San Francisco, the Ninth Circuit held that we had made a strong showing of the likelihood of success on the merits of our action. The court held that we will most likely prevail on our claim that, as applied to my clients Angel Raich and Diane Monson and all like-situated people, the Controlled Substances Act is an unconstitutional exercise of Congress' Commerce Clause authority. The class of activity which the Ninth Circuit defined as protected and beyond the reach of Congress to control was the "intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes, as prescribed by patients' physician pursuant to valid California state law."
In the Canadian Supreme Court decision in R. v. Malmo-Levine and R. v. Caine, the court majority, at a number of places in the 6-3 decision, clearly identified the issue before it as the evil or injurious or undesirable effects only as related to the NON-MEDICAL USE OF MARIJUANA (pg. 27) and whether or not there is a constitutional right to smoke "pot" for RECREATIONAL PURPOSES ( pg. 29). Nowhere in the decision is the medical use of marijuana dealt with. In fact, the case addresses only harmful effects of marijuana use, not beneficial or medicinal effects, and resolves the Constitutional issues within the context of that "harm". Therefore, to that extent, the Canadian Supreme Court decision is irrelevant to our case.
Nonetheless, the Canadian court at least advanced itself beyond the previous court decision by an Edmonton magistrate named Emily Murphy, who, in 1922 "warned that persons under the influence of marihuana lose all sense of moral responsibility, are immune to pain, becoming raving maniacs, liable to kill using the most savage methods of cruelty". So, we are grateful for that advancement.
The bottom line is that the majority decision by the Canadian Supreme Court found that, because marijuana "alters mental functions", it raises issues of public health and safety and is therefore a proper subject for the exercise of the criminal law power of the Canadian federal government. Therefore, not only is this decision irrelevant to the primary issue decided in our Ninth Circuit case, Raich and Monson v. Ashcroft and Tandy, it deals with marijuana use from the opposite end of the spectrum, i.e., the claim that altered mental functions create a danger to others (with driving, flying, or the use of complex machinery) and the claim that chronic users may suffer serious health problems. On the other hand, our Ninth Circuit case was decided on the issue of whether or not the intrastate personal possession, cultivation and use of marijuana by an individual for the relief of pain and suffering pursuant to the recommendation of that person's physician pursuant to valid State law is conduct that is constitutionally beyond the power of Congress' Commerce Clause authority. The Ninth Circuit held that there is a strong likelihood that it was.
Also, because the primary issue dealt with by the Canadian Supreme Court majority had to do with the porous and vague concept of "fundamental justice" and the equally porous and vague concept of "harm to society", the decision itself, in my opinion, was as porous and vague as the concepts discussed. Consequently, I found the majority decision full of the kind of pompous reasoning common to ignorant men who enjoy tripping over legal constructs while ignoring the stark realities of human life. The Canadian decision is written so broadly that I believe it could be used by the Canadian government, or Parliament, to forbid just about any conduct whatsoever no matter how minimal or speculative the harm from that conduct may be. In other words, I believe the decision virtually allows the Canadian government unfettered power in enacting the criminal laws of that country. Such a strained gasbag kind of reasoning is laughable when you consider that the Court is groping to find some possible harm in the recreational use of marijuana to allow its criminalization, while hundreds of thousands of Canadians are filling hospital wards and dying each year from their lawful use of tobacco and alcohol, which the government refuses to condemn or forbid.
In regards to the other issue of whether or not the treaty obligations of the United States related to drug trafficking would trump the various courts' interpretation and application of U.S. constitutional law, that issue was not addressed in our case, but I appreciate all the dialog that has gone on about that subject and encourage more of the same because the issue still remains at large. I am reprinting here what the Canadian Supreme Court mentioned on that subject in their decision but I believe that, in context, that analysis was merely dictum in the case. In other words, it was not an issue that the Court needed to decide. Nonetheless, it is instructive and helpful to us and consistent with the position I had taken on the subject previously. No doubt, we could use some more discussion of that open issue, first raised by Professor Buford C. Terrell of South Texas College of Law.
"The general approach in international law is that a state may not invoke its internal law as justification for its failure to perform a treaty (Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, Art. 27; Zingre v. The Queen, [1981] 2 S.C.R. 392, at p. 410). However, the treaty obligations Canada has undertaken in the war on drugs are subject to, inter alia, Canada's "constitutional limitations" (Single Convention on Narcotic Drugs, 1961, Can. T. S. 1964 No. 30, Art. 36), and Canada's "constitutional principles and the basic concepts of its legal system" (United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Can. T.S. 1990 No. 42, Art. 3(2)). The express subordination of these treaties to the requirements of domestic constitutional law suggests that they would not significantly assist an attempt to justify the s. 7 violation in s. 1."
I hope all of this provides some foundation for further discussion of all the above issues and the future course of medical cannabis litigation in this country. Historically, Raich and Monson v. Ashcroft and Tandy is of great significance. It represents the first time that any federal court has limited the breadth and vast sweeping power of the Controlled Substances Act and its punitive effect on so many good people.
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Pipeline (page 3)
Rush and Drugs -- the Conservative Dilemma
By: Steve Dasbach
Conservative icon Rush Limbaugh has confirmed the rumors - he's addicted to prescription pain medication. It's obvious that he has broken our nation's drug laws. Which poses an interesting dilemma for his fellow conservatives.
According to Rush and other conservative drug warriors, "drug users ought to be convicted and sent up" as Rush himself put it. Sent up, as in sent to prison.
So here's the conservative dilemma. Should Rush, a self-admitted "drug user" be "convicted and sent up?"
If they say yes, they're advocating silencing the most powerful and influential conservative voice in America -- imprisoning a man they admire and respect. If they say no, they're contradicting everything they've claimed for years about the need to fight the War on Drugs with stiff criminal penalties, including jail time, for drug users.
Do conservatives think that society will be better off if their friend and idol Rush serves a long stretch behind bars as "punishment" for his drug use? Or that a long prison term will somehow "rehabilitate" him? If not, then why would they advocate such treatment for the sons and daughters and friends of ordinary Americans?
Conservatives argue that stiff criminal penalties, including jail time, are necessary to deter drug use. But such penalties failed to deter Rush, a strong willed individual who preaches self-reliance, responsibility, and the importance of the rule of law for three hours every day. If draconian drug laws and mandatory minimum sentences didn't deter him, how likely are they to deter lesser mortals?
One presumes that conservatives embrace the ideals expressed in the Pledge of Allegiance, including "justice for all". That means the same laws are supposed to apply to everyone, whether it's a wealthy celebrity like Rush or a faceless inner-city man mired in poverty. In fact, Rush himself has advocated jail time for athletes and Hollywood celebrities who use drugs.
So if conservatives still believe that drug users should be sent to prison, doesn't that mean that Rush should be imprisoned too?
Some conservatives seem to be having problems coming to grips with this dilemma. When the bombastic Ann Coulter was repeatedly asked if she thought Rush should be sent to prison, the best she could come up with a lame comment that if her mother committed murder, she wouldn't want her sent to prison. Sorry, but that really isn't an answer.
Another prominent conservative focused on the fact that Rush got hooked on legal drugs, conveniently ignoring the fact that he bought them illegally, and that the drug laws conservatives support make no such distinctions. As far as the law is concerned, Rush is no different than the person who buys marijuana, cocaine, or heroin.
So how will conservatives resolve this dilemma? Some will probably decide to sacrifice Rush on the altar of principle. Others will demonstrate by their actions that they are simply hypocrites. They'll support Rush in his time of need while continuing to advocate prison for other drug users.
But perhaps, just perhaps, Rush's addiction will be the catalyst that prompts fair-minded conservatives to reevaluate their unquestioning support for the War on Drugs. Perhaps they'll decide that if it makes sense to let Rush decide for himself how to deal with his drug problem, perhaps it makes sense to let other drug users make their own decisions as well.
This isn't an abstract issue for me. As the father of four nearly grown children, I've had to face the challenges posed by tobacco, alcohol, and drug availability that all parents must confront. Of all the fears associated with confronting these issues, my greatest fear has always been the one Rush's friends are confronting now - the possibility that someone I care for will make a bad choice and have their lives destroyed by the criminal justice system that is supposed to protect us.
Nothing will be gained by sending Rush to prison. Nothing is gained by imprisoning other less-famous drug users either. If Rush's fellow conservatives resolve their dilemma with compassion, perhaps we can all agree to stop treating drug use as a crime and stop wasting lives. And we can continue to enjoy "Excellence in Broadcasting" for many years to come.
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