Quick Hits (page 5)
Same Farms ... New Owners
By: Don Thompson (AP)
Mexican cartels have taken over much of California's marijuana farming, boosting both the potency of the drug and the propensity for violence from armed guards protecting the crop, the nation's drug czar has said.
They're planting huge marijuana plots on public lands, creating a growing danger to hikers and hunters stumbling into the line of fire, said John Walters, director of National Drug Control Policy.
California's Bureau of Narcotics Enforcement estimated that 84% of plants seized this year were controlled by Mexican gangs, in what the bureau called "a major strategic and organizational shift" from recent decades.
"Many people think of marijuana growing as just run by a bunch of guys who are Cheech and Chong in the movies, kind of fun-loving guys," Walters said in an interview with The Associated Press.
"These are violent organizations. They're using violence without hesitation -- it's part of doing business to them."
In central San Joaquin Valley counties, more than 93% of the plants seized were tied to Mexican cartels: Fresno County, 14,497 plants with 10,821 tied to cartels; Madera County, 13,689 plants with 5,897 tied to cartels; Mariposa County, 5,688 plants with 5,393 tied to cartels; Merced County, all 309 plants tied to cartels; and in Tulare County, all 141,239 plants were tied to cartels. No numbers were available for Kings County.
The multibillion-dollar Mexican cartels have discovered it's safer and more profitable to grow marijuana in the United States than to try to smuggle it across the border, he said. Instead, they're often importing guards and handing them firearms with orders to shoot at anyone coming by.
They're also branching into methamphetamine production, often using what authorities have dubbed "super labs."
And this summer, authorities for the first time discovered 40,000 opium poppies growing in a remote area of the Sierra National Forest bordering Yosemite National Park. The poppy plants originated in Mexico, Drug Enforcement Administration spokesman Richard Meyer said.
"The public lands have become a preferred area of operation for these organizations that are increasingly violent and sophisticated," Walters said. "People think they're hiking in a remote wilderness area, and they come across these plots or these labs and they're run by armed and violent criminals."
Three-fourths of the marijuana gardens discovered by California authorities this year were on public lands such as state and national parks and forests. As recently as 2001, the majority of plants were seized from private land.
California's recent harvest season was one of the most violent in years.
In just one week in September, law enforcement officials in Northern California fatally shot four armed guards protecting marijuana plantations; San Luis Obispo County sheriff's deputies were shot at as they entered a garden; a hunter walking near a grove in Los Padres National Forest was shot at by three men armed with automatic weapons; and guards tending a Ventura County garden shot at a hunter.
Walters addressed federal, state and local officials from California's Campaign Against Marijuana Planting but also said he also wants to hear more from them about the trends they're discovering, which appear to be spreading to other states.
Federal, state and local drug agents are working up models that can better predict where the drugs will be grown or made, Walters said. In addition, the U.S. Forest Service, Park Service and Bureau of Land Management are making drug enforcement a bigger priority, which he said should make next year a record year for fighting drug activity on public lands.
Improved intelligence is the greatest need, he said. The Mexican government under President Vicente Fox is targeting drug cartels that pose that nation's greatest risk of domestic terrorism and corruption.
"We've had a greater cooperation in the last several years than we'd had the last 20," Walters said. "These groups have been using the border as a shield. We're increasingly taking away that shield."
State and federal agents said growers are using a higher grade sinsemilla marijuana with much more of the active component tetrahydrocannabinol, or THC.
Marijuana that had a 1% concentration of THC in the 1980s and perhaps 4% in the 1990s now has a national average of 7% to 9%. The potency can reach 13% to 15% in marijuana grown outdoors, and near 30% indoors, Walters said.
Growin' Our Own (page 5)
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.
Pipeline (page 5)
Feds to Overhaul Employee Drug Tests
By: Adam Geller (AP)
The federal government is planning to overhaul its employee drug testing program to include scrutiny of workers' hair, saliva and sweat, a shift that could spur more businesses to revise screening for millions of their own workers.
The planned changes, long awaited by the testing industry, reflect government efforts to be more precise in its drug screening and to outmaneuver a small but growing subset of workers who try to cheat on urine-based tests.
Some businesses have already adopted alternative testing, despite criticism by privacy advocates. But others have held back, partly awaiting government standards.
Alternative testing methods would give employers more certainty about the timing and scope of drug usage than is now possible solely with urine sampling, said Robert Stephenson II, an official with the federal Substance Abuse and Mental Health Services Administration.
That could be particularly valuable in situations like investigations of on-the-job accidents, to determine not just whether an employee uses drugs but if usage occurred recently enough to be a cause.
Alternative testing will "really ramp up our ability to increase the deterrent value of our program, which is basically the whole bottom line," said Stephenson, director of the agency's Division of Workplace Programs.
Stephenson said it would likely be a year until the new policies take effect for the nation's 1.6 million federal workers. The agency, known as SAMHSA, sets guidelines and administers the testing.
All federal workers are eligible to be tested. SAMHSA, a division of the Department of Health and Human Services, tests fewer than 200,000 workers a year. The decision about who is tested often depends on the sensitivity of their job.
But because its standards are followed by regulatory agencies who conduct testing in industries they oversee, SAMHSA is responsible for about 6.5 million of the 40 million workplace drug tests done each year by U.S. employers.
The agency's testing standards are also widely followed by thousands of other employers, public and private.
The proposed changes are due out "literally any day," Stephenson said. He would not discuss details of the proposals before their release.
Changes would not likely go into effect until early next year, after the agency solicits public comment, finalize guidelines and prepare for the transition. Once that happens, many other employers could follow suit, government and industry officials say.
"There's no doubt about it that SAMHSA's guidelines become the standard for the industry whether you're a regulated employer or not, and so what SAMHSA does will have wide-ranging impact," said Kenneth Kunsman, a marketing executive with OraSure Technologies Inc., which makes a saliva testing kit.
More employers are already using alternative testing. But many have held back because of the lack of standards, said Laura Shelton, executive director of the Drug and Alcohol Testing Industry Association, which represents test manufacturers and labs.
Alternative tests hold appeal because their accuracy cannot be foiled with products sold to mask drug residue in urine, say company and government officials, noting that the tests are extremely accurate.
But privacy advocates express doubts, pointing to cases of police officers and others who allege false positives because their hair absorbed drugs around them, as well as research suggesting dark hair soaks up more drug byproducts than light hair.
"There's a lot that would need to be done before these types of tests, in our minds, would be sufficient to used for workplace testing," said Jeremy Gruber, legal director for the National Workrights Institute, an employee advocacy group.
The screening industry has worked in recent years to promote alternative tests.
Casino operators and local police departments were among the first to use hair testing for pre-employment screening because it allows detection of drug use over much longer periods than urine. It is also now used by employers including Kraft Foods Inc. and brewer Anheuser-Busch Cos.
"Urine tests were fallible in a variety of ways," said Alan Feldman, a spokesman for MGM Mirage, which adopted pre-employment hair testing for all its 42,000 workers in 1993. "We want our people to be sharp."
Psychemedics Corp., the largest hair testing company, has about 2,600 corporate clients and last year did about 400,000 tests, vice president Bill Thistle said.
Saliva testing has only been marketed for workplace drug testing for a few years. Companies including paper manufacturer Georgia-Pacific Corp. have adopted it.
Kunsman said the labs affiliated with his firm this year expect to process 60,000 to 70,000 workplace drug tests a month.
Government officials and testing industry executives say the new tests are less a replacement for urine screening than as additional tools in employers' arsenal.
"In different cases, one specimen may be better than the other," said Dr. Donna Bush, drug testing team leader at SAMHSA's Center for Substance Abuse Prevention.
Saliva testing, done using a swab that looks much like a toothbrush but with a pad instead of bristles, is best at detecting drug use within the past one or two days.
Hair testing, in which a sample about the thickness of a shoelace is clipped at the root from the back of the head, allows detection of many drugs used as far back as 3 months.
Sweat testing, in which workers are fitted with a patch that is worn for two weeks, is used to screen people who have returned to work after drug treatment.
Medical marijuana convictions appeals assistance in California. Recorded medical conditions only, with or without a doctor's recommendation. For details contact William McPike.
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