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Chapter 10Substance Abuse CrimesSupplement 10.1?Texas State Penalties for Conviction of Marijuana Possession.Texas Controlled Substance Act, Health and Safety Code 481.121 (2015): Offense: Possession of Marihuana(a)Except as authorized by this chapter, a person commits an offense if the person knowing or intentionally possesses a usable quantity of marihuana.(1)An offense under Subsection (a) is:(2)a class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;(3)s state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;(4)a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;(5)a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and(6)punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.Supplement 10.2?Criminal Transmission of the Human Immunodeficiency Virus.Iowa Code 709C.1 (2015)1.A person commits the criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:a.Engages in intimate contact with another person.b.Transfers, donates, or provides the person’s blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person.c.Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.Supplement 10.3?Drugs: A Sample of Definitions and Facts.Cocaine“A white crystalline narcotic alkaloid extracted from coca leaves. Used as a local anesthetic. A ‘controlled substance’ as included in narcotic laws.”Heroin“Narcotic drug which is a derivative of opium and whose technical name is diacetyl-morphine. It is classified as a Class A substance for criminal purposes and the penalty for its possession is severe.”Marijuana“An annual herb, Cannabis sativa, having angular rough stem and deeply lobed leaves. . . .Marijuana is also commonly referred to as ‘pot,’ ‘grass,’ ‘tea,’ ‘weed,’ or ‘Mary Jane’; and in cigarette form as a ‘joint’ or ‘reefer.’”Club DrugsThe so-called club drugs are described by the office of National Drug Control Policy as follows:In recent years, certain drugs have emerged and become popular among teens and young adults at dance clubs and “raves.” These drugs, collectively termed “club drugs,” include MDMA/Ecstasy (methylenedioxymethamphetamine), Rohypnol (flunitrazepam), GHB (gamma hydroxybutyrate), and ketamine (ketamine hydrochloride).MDMA is a synthetic, psychoactive drug chemically similar to the stimulant methamphetamine and the hallucinogen mescaline.The tasteless and odorless depressants Rohypnol and GHB are often used in the commission of sexual assaults due to their ability to sedate and intoxicate unsuspecting victims. Rohypnol, a sedative/tranquilizer, is legally available for prescription in over 50 countries outside the U.S. and is widely available in Mexico, Colombia, and Europe. . . . GHB, available in an odorless, colorless liquid form or as a white powder material, is taken orally, and is frequently combined with alcohol. In addition to being used to incapacitate individuals for the commission of sexual assault/rape, GHB is also sometimes used by body builders for its alleged anabolic effects. The abuse of ketamine, a tranquilizer most often used on animals, became popular in the 1980s, when it was realized that large doses cause reactions similar to those associated with the use of PCP, such as dream-like states and hallucinations.Supplement 10.4?Money Laundering and Drug Trafficking.An important problem faced by drug traffickers is concealing their illegal earnings. They do this primarily through money laundering, which is a process of concealing the existence, source, and disposition of money secured from illegal sources. The term is derived from the reference criminals make to “dirty” money that is “laundered clean” so that it can be used openly. Large amounts of cash are difficult to handle and may be easily stolen. But the money must be placed somewhere, preferably in a place that will earn even more money. Thus, large sums of money obtained by selling illegal drugs are channeled through legitimate sources to make it appear that the money has been obtained legally. The financial transaction might be as simple as sending the cash to a foreign bank account or as complex as taking over a bank. More complicated schemes may involve multiple transactions and financial institutions in several countries.Federal StatutesIn the past, not all money laundering was illegal, and even today, many financial transactions are legal if they involve money secured from legal sources or activities. The alleged acts in the federal system were formerly prosecuted under the Bank Secrecy Act, which required banks to report any domestic transaction of more than $10,000. In 1986, Congress enacted legislation making money laundering a crime. The Money Laundering Control Act of 1986 imposes criminal penalties on anyone who knowingly uses proceeds from unlawful activities to conduct a financial transaction (1) to conceal the nature or ownership of the proceeds or (2) to avoid transaction reporting requirements. Both criminal and civil penalties are provided. The statute has been amended in subsequent years.Other federal statutes have been enacted for the purpose of expanding the authority of bank regulators to combat money laundering. In April 1996, the Suspicious Activity Reporting requirements went into effect. These regulations apply to transactions above $5,000. Bank officials are required to report depositors whom they suspect of depositing money from illegal activities or money that does not appear to be from a lawful purpose or legitimate business or when the bank officials do not know of any reasonable explanation for the transaction. These provisions are vague, leaving the possibility that bankers may either overlook illegal transactions and risk being fined or report transactions that are legal and risk losing business.Prosecution for money laundering is also brought under the Money Laundering Prosecution Improvement Act of 1988, which enables financial institutions to require additional information from persons who purchase checks, traveler’s checks, or money orders for $3,000 or more. It authorizes the Secretary of the Treasury to target some types of institutions or geographic areas for additional reporting requirements.The money laundering statute is complicated and has been challenged. In 1994, the U.S. Supreme Court held that the willfulness requirement of the statute requires the government to prove that the defendant “acted with the knowledge that the structuring he or she undertook was unlawful, not simply that the defendant’s purpose was to circumvent a bank’s reporting obligation.”Since the 9/11 terrorist attacks, money laundering statutes have been strengthened. The USA Patriot Act tightens the Bank Secrecy Act and the Money Laundering Act and requires banks to develop new programs and guidelines for getting to know their customers well. It imposes significant new requirements, especially on money that may have been used to finance terrorist acts against the United States. The U.S. Treasury Department has the authority to interpret the USA Patriot Act, which applies to “all financial institutions” and which may include many programs and fund managers not previously covered. The USA Patriot Act requires bankers and other professionals to monitor monies that may be laundered and used for terrorist acts. State StatutesMany states also have money laundering statutes. The Texas statute is an example:(a)A person commits an offense [of money laundering] if the person knowingly:(1)acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity;(2)conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; (3)invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity; or(4)finances or invests or intends to finance or invest funds that the person believes are intended to further the commission of criminal activity.A Tennessee statute specifies that the intent requirement for money laundering does not mean that the individual must know that the laundered money came from a specific criminal activity “so long as the defendant knew that the property or proceeds were derived from some form of criminal activity.”Supplement 10.5?Costs of Substance Abuse.At the end of 2015, the National Institute on Drug Abuse released the following estimates of the cost of substance abuse in the United States, estimating a total of over $700 billion, divided as follows:DrugHealth CareOverallTobacco $130 billion$295 billionAlcohol 25 billion 224 billionIllicit Drugs 11 billion 193 billion(, accessed 30 December 2015)Supplement 10.6?Ecstasy, the Club Drug.On 24 March 2011, Gil Kerlikowske, Director of the National Drug Control Policy, issued a press release emphasizing that there had been a significant increase in recent years in the number of people admitted to U.S. emergency rooms after using the illegal drug Ecstasy.Ecstasy (also referred to as MDMA) is a synthetic drug that was used by some doctors to facilitate psychotherapy; however, in 1988, the U.S. Congress designated the drug as a Schedule I (see Focus 10.1 in the text) substance under the federal substance control laws. Ecstasy, also referred to as a club drug, has been used at all-night dance parties (called raves), in private homes, shopping malls, high schools, and college dorms. The drug, which is usually taken orally in pill form, produces a psychedelic effect that can last for several hours. The drug is also a stimulant.Ecstasy may produce psychological effects such as confusion, depression, anxiety, sleeplessness, drug craving, and paranoia. The drugs may also produce physical reactions, such as muscle tension, involuntary teeth clenching, nausea, blurred vision, faintness, tremors, rapid eye movement, and sweating or chills. Persons who use Ecstasy at raves are at a higher risk of the side effects that may occur when the drug is used in hot, crowded situations, combined with the long hours of dancing users have the capability of doing. Possible side effects are dehydration, hyperthermia, and heart and kidney failure. The drug may cause damage to the parts of the brain that are associated with thought and memory. Death may also occur.The effects of using Ecstasy may linger for a long time. Repeated use of the drug may cause long-term neuropsychiatric problems and major physical health problems. Some of the side effects of the drug, such as problems with sleep or mood, anxiety disturbances, and even memory deterioration, “may persist for up to two years after the user ceases taking the drug.”Men who use the drug in combination with Viagra to enhance their sexual abilities may face a greater risk of stroke and heart attack. This combined use is also associated with a higher risk of contracting diseases, such as HIV.The Ecstasy Anti-Proliferation Act of 2000 instructed the U.S. Sentencing Commission to recommend increased penalties for trafficking in MDMA. The new penalties, which became effective 1 November 2001, increased by 300 percent the penalty for trafficking 800 MDMA pills from 15 months to 5 years. The penalty for selling 8,000 MDMA pills was increased nearly 20 percent, from 41 months to 10 years.Supplement 10.7?State Actions Regarding the Use of Club Drugs.Vermont’s statute covering the club drug Ecstasy is divided into two categories of drug offenses: (1) possession and (2) selling or dispensing. Each of these categories is subdivided, with penalties increasing as the amount of the involved drug increases and going as high as 20 years in prison and a $500,000 fine or both.Other actions, such as educational efforts, have been taken by some states to decrease the use of club drugs. For example, Arizona enacted a statute providing that instruction on the harmful effects of club drugs on the human system, along with instruction on the laws concerning these drugs, may be offered in elementary and high schools, emphasizing grades 4 through 9. Instruction on the effects of the enumerated drugs on the human fetus may be included in grades 6 through 12. Guidelines are established, and the statute provides that the instruction may be included in existing courses. School districts may request technical assistance from the department of education.Supplement 10.8?Substance Abuse Problems Impact Law Enforcement.Arrests for substance abuse may have a negative impact on law enforcement officials, who face a serious problem: fighting illegal drugs with inadequate resources while drug offenders tempt them with cash and other items of monetary value. More than 20 years ago, it was alleged that the escalation of drug trafficking and drug abuse had resulted in corruption, violence, enormous expense, and a crushing blow to all elements of criminal justice systems. Drug offenders had created a “new underworld” within prisons, resulting in the use of drugs to corrupt correctional officers.In 1997, in Chicago, 124 narcotics cases were dismissed because the primary witness for the prosecution in each case was one of the police officers apprehended the previous year for extorting and robbing undercover officers who were posing as drug dealers.In 2010, San Francisco prosecutors dropped approximately 1,000 drug cases because of a scandal in that city’s police crime lab. Deborah Madden, a longtime employee, was accused of stealing cocaine evidence for personal use. Madden, a civilian, admitted using cocaine. She retired after 29 years in the police lab. In June 2011, Madden entered a guilty plea to felony cocaine possession under a plea bargain that provided no jail time unless she had another drug conviction within 18 months. She was fined $5,000 and required to perform 300 hours of community service. The maximum jail sentence for her offense was one year. Madden was studying to become a drug abuse counselor.More recently, a Massachusetts chemist, Annie Dookhan, was indicted in 2013 on 27 counts for alleged misconduct in the Hinton Laboratory in Jamaica Plain. As a result, the lab was closed, and it was estimated that up to 40,000 cases might be affected by Dookhan’s acts. Dookhan entered pleas to all of the counts and was sentenced to between three and five years in prison plus two years of probation. Special courts were established and the House set aside $30 million from the state’s “rainy day” fund to handle the cases that required reexamination as a result of these actions. Dookhan’s false testimonies could cost the state millions of dollars before all cases are settled, and many cases could be dismissed. Some inmates whose drug convictions were involved were released from prison. One of those, Donta Hood, 22, was alleged to have committed a homicide after his release. In May 2015, the Massachusetts Supreme Judicial Court ruled unanimously that persons convicted on the basis of evidence that may have been tainted by Dookhan’s actions could petition for a new trial.Some other types of corrupt acts by law enforcement officers are:Selling information about upcoming police raids, agents, and police informationAccepting bribes to tamper with evidence or committing perjury in order to protect an illegal drug dealerStealing drugs from police property rooms or laboratories for personal use or saleStealing drugs or money for personal use from sellers and users without arresting themExtorting money or property from drug dealers in exchange for failure to arrest them or seize their drugsSupplement 10.9?Earlier Social Science Reactions to the War on Drugs.An internationally acclaimed drug policy expert, Arnold S. Trebach, stated in 1988 that, although drug policies victimize millions, they bring little benefit to anyone. According to Trebach, “We do not now have, and never had, the capability to manage a successful war on any drug.”Social scientists have also been critical of the war on drugs. Three sociologists traced what they described as its failure back to the efforts of Harry Anslinger, director of the Federal Bureau of Narcotics from 1930 until his retirement (which, they alleged, was forced) in 1962. During that period, according to these scholars, Anslinger used measures to discredit, humiliate, and harass Alfred Lindesmith, a sociologist and researcher who argued for approximately four decades that drug addicts should be treated, not punished. One of Anslinger’s methods was to discredit a Canadian film, Drug Addict, that was developed for the training of police and drug counselors. The film embraced the following themes, also supported by Lindesmith:1.that addicts and traffickers are recruited from all races and classes;2.that high-level drug traffickers are white;3.that law enforcement only targets low-level dealers;4.that addiction is a sickness;5.that addiction to legal and illegal drugs are essentially the same;6.that cocaine is not necessarily addictive; and7.that law enforcement control of drugs is in the final analysis impossible.The sociologists concluded that “in hindsight [the film] appeared to be the last and best chance to create a rational and humane policy on narcotics.” Anslinger and his colleagues at the Federal Bureau of Narcotics, however, persuaded Congress “to stiffen drug penalties and thus set the nation on a course that has led to its current failed policy.”Supplement 10.10?The U.S. Supreme Court and Discriminatory Treatment in Drug Prosecutions.Chapter 11 in the text discusses sentencing and notes the changes that have been made in laws regarding punishments for convictions of crack versus white powder cocaine. The following case is important, however, as it shows how the Court might rule in any case in which minorities argue that laws discriminate against them.United States v. Armstrong517 U. S. 456 (1996)Rehnquist, C.J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Souter and Ginsburg, JJ., filed concurring opinions. Breyer, J., concurred in part and concurred in the opinion. Stevens, J., dissented.“In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.In April 1992, respondents were indicted . . . on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions during this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales. The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and found more crack and a loaded gun. The agents later arrested the other respondents as part of the ring.In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a “Paralegal Specialist,” employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the . . . cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a “study” listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case. . . . [The Court discussed the legal history of the case, including the procedural issues and the lower courts’ decisions. The procedural rules are not included here; this selection focuses on the reasoning of the U.S. Supreme Court with regard to how one proves a charge of racial discrimination.]A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one . . . . A selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. The Attorney General and United States Attorneys retain “broad discretion” to enforce the Nation’s criminal laws. They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”Of course, a prosecutor’s discretion is “subject to constitutional constraints.” One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive” that the system of prosecution amounts to a “practical denial” of equal protection of the law.In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” . . . “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”The requirements for a selective-prosecution claim draw on “ordinary equal protection standards.” The claimant must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” . . .In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California, were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold—a credible showing of different treatment of similarly situated person—adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.In the case before us, respondents’ “study” did not constitute “some evidence tending to show the existence of the essential elements of” a selective-prosecution claim. The study failed to identify individuals who were not black, could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respondents’ evidence in opposition to the Government’s motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. Respondents’ affidavits, which recounted one attorney’s conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based n anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered.”______________________________________________________Supplement 10.11?The Bush Administration and Drug Control Policies.The text discusses the most recent White House approaches to drug control. This supplement states briefly what occurred immediately prior to those of President Obama’s two terms.In January 2001, George W. Bush became president of the United States. In May of that year President Bush nominated John P. Walters as drug czar. In February 2002, President Bush announced his long-term goal of cutting drug abuse by 25 percent in five years through prevention, treatment, and law enforcement efforts. Describing drug abuse as an individual tragedy and a national crisis, Bush called for families, religious groups, and communities to do their part to achieve the goal of reducing drug abuse, stating, “Drugs rob men and women and children of their dignity and their character. Illegal drugs are the enemies of ambition and hope.”Also in February 2002, President Bush released a national strategy that called for treatment as well as punishment for drug offenders. Bush stated his desire to “provide addicts with effective and compassionate drug treatment . . . and [to] be compassionate to those addicted to drugs.” Bush expressed his belief that drug prevention begins at home and that we should target “people like pregnant moms, the homeless, people with HIV/AIDS, and teenagers.”In February 2005, President Bush declared that his strategy had exceeded its goal of a 10 percent reduction in youth drug use during two years. Citing data from the Monitoring the Future study, Bush emphasized that drug use had fallen by 11 percent during the first two years of his plan and by 17 percent in three years.On 11 December 2008, the White House released information claiming “significant success reducing drug availability and use.” Citing the most recent data from the Monitoring the Future study, President Bush and his drug czar, John Walters, emphasized that the overall drug use among the students sampled (8th, 10th, and 12th graders nationwide) had declined 25 percent since 2001 and that in 2008 there were 1 million fewer drug users in the sample than in 2001. In particular, the press release stated the following declines between 2001 and 2008:25% reduction in marijuana use;50% reduction in methamphetamine use;50% reduction in Ecstasy use; and33% reduction in steroid use.Supplement 10.12?Suggested Components for a Model Drug Court Program.Incorporating drug testing into case processingCreating a non-adversarial relationship between the defendant and the courtIdentifying defendants in need of treatment and referring them to treatment as soon as possible after arrestProviding access to a continuum of treatment and rehabilitation servicesMonitoring abstinence through frequent, mandatory drug testingEstablishing a coordinated strategy to govern drug court responses to participants’ complianceMaintaining judicial interaction with each drug court participantMonitoring and evaluating program goals and gauging their effectivenessContinuing interdisciplinary education to promote effective drug court planning, implementation, and operationsForging partnerships among drug courts, public agencies, and community-based organizations to generate local support and enhance drug court effectivenessSupplement 10.13?Medical of Marijuana: Federal Versus State Laws.In this the following case, the U.S. Supreme Court held that a state’s decriminalization of the use of marijuana for medicinal purposes does not remove the federal government’s constitutional powers to criminalize such use.Gonzales v. Raich545 U.S. 1 (2005)Stevens, J., delivered the court’s opinion, in which Kennedy, Souter, Ginsburg, and Breyer, JJ, joined. Scalia, J., filed a concurring opinion. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C.J., and Thomas, J., joined in part. Thomas, J., filed a dissenting opinion.“The question presented in this case is whether the power vested in Congress by Article I, Section 8, of the Constitution “to make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. . . .Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors’ recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does,” to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption.On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity. The District Court denied respondents’ motion for a preliminary injunction. . . . A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction. . . . The obvious importance of the case prompted our grant of certiorari.The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals [and hold that Congress has the power to prohibit the local cultivation and use of marijuana for medical purposes].Shortly after taking office in 1969, President Nixon declared a national “war on drugs.” As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs. That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970.This was not, however, Congress’ first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce. Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government’s primary enforcer. For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914. The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions. Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana’s addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act. Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands. Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements. Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law. Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade.Then in 1970, after declaration of the national “war on drugs,” federal drug policy underwent a significant transformation. A number of noteworthy events precipitated this policy shift. . . .In enacting the CSA, Congress classified marijuana as a Schedule I drug. . . . By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. . . .Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. . . . [Respondents] are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. . . .[A] primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. . . . Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would [like precedent cases] affect price and market conditions. . . .Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just “plausible,” . . . it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor’s permission to recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with “any other illness for which marijuana provides relief,” is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic. . . .The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients’ medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious. . . .Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial. . . . [The Court explained that Congress is free to change the CSA and permit the medical use of marijuana but it has not done so and thus the Court must follow the law.]”O’Connor, J., with whom Rehnquist, C.J., and Thomas, J., join in Part III, dissenting.“. . . This case exemplifies the role of States as laboratories. The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause—nestling questionable assertions of its authority into comprehensive regulatory schemes—rather than with precision. . . .Even if intrastate cultivation and possession of marijuana for one’s own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme.The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court’s opinion—the shift in focus from the activity at issue in this case to the entirety of what the CSA regulates, the Court’s definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach. . . .The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. . . . [A precedent case] makes clear that possession is not itself commercial activity. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. . . .There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market—or otherwise to threaten the CSA regime. . . . Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.Thomas, J., dissentingRespondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers. . . .In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress’ goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. . . .This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce—not to mention a host of local activities, like mere drug possession, that are not commercial.One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “‘the Constitution created a Federal Government of limited powers.’” . . .The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. . . . Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.”______________________________________________________Supplement 10.14?Colorado’s “Lawful Activity” Statute Versus the State’s Medical Marijuana Amendment.Coats v. Dish Network, LLC350 P.3d 849 (Colo. 2015), statutes and cases omitted“This case requires us to determine whether the use of medical marijuana in compliance with Colorado’s Medical Marijuana Amendment, but in violation of federal law, is a “lawful activity” under [state law], Colorado’s “lawful activities statute.” This statute generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” outside-of-work activities.Here, petitioner Brandon Coats claims respondent Dish Network, LLC (“Dish”) violated [the “lawful activity” state statute] by discharging him due to his state-licensed use of medical marijuana at home during nonworking hours. He argues that the Medical Marijuana Amendment makes such use “lawful” [under the state statute] notwithstanding any federal laws prohibiting medical marijuana use. . . .Brandon Coats is a quadriplegic and has been confined to a wheelchair since he was a teenager. In 2009, he registered for and obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home, after work, and in accordance with his license and Colorado state law.Between 2007 and 2010, Coats worked for respondent Dish as a telephone customer service representative. In May 2010, Coats tested positive for tetrahydrocannabinol (“THC”), a component of medical marijuana, during a random drug test. Coats informed Dish that he was a registered medical marijuana patient and planned to continue using medical marijuana. On June 7, 2010, Dish fired Coats for violating the company’s drug policy. . . .[The court recounted the lower court’s decisions and affirmed that of the court of appeals, with the following comments:]The term “lawful” as it is used in [the “lawful activities” statute] is not restricted in any way, and we decline to engraft a state law limitation onto the term. Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under [the state law]. . . .By its terms the statute protects only “lawful” activities. However, the statute does not define the term “lawful.” Coats contends that the term should be read as limited to activities lawful under state law. We disagree. . . . [The court reviews precedent cases.]We therefore agree with the court of appeals that the commonly accepted meaning of the term “lawful” is “that which is ‘permitted by law’” or, conversely, that which is “not contrary to, or forbidden by law.”We still must determine, however, whether medical marijuana use that is licensed by the State of Colorado but prohibited under federal law is “lawful” for purposes of [the “lawful activities” statute]. Coats contends that the General Assembly intended the term “lawful” here to mean “lawful under Colorado state law,” which, he asserts, recognizes medical marijuana use as “lawful.” We do not read the term “lawful” to be so restrictive. Nothing in the language of the statute limits the term “lawful” to state law. Instead, the term is used in its general, unrestricted sense, indicating that a “lawful” activity is that which complies with applicable “law,” including state and federal law. We therefore decline Coats’s invitation to engraft a state law limitation onto the statutory language.”Supplement 10.15?Retroactivity and the Colorado Provision for Decriminalizing the Possession of Less Than One Ounce of Marijuana.Colorado v. Russell2014 Colo. App. LEXIS 437 (Colo. Ct. App. 2014), modified and rehearing denied, 2014 Colo. App. LEXIS 790 (Colo. Ct. App. 2014), cases and citations omitted“Defendant, Brandi Jessica Russell, appeals the judgment of conviction entered upon a jury verdict for possession of methamphetamine, possession of marijuana concentrate, and possession of less than an ounce of marijuana. We affirm in part, reverse in part, and remand with directions.In Part II, we hold, as a matter of first impression, that Colorado Constitution article XVIII, section 16 (popularly known as Amendment 64), which decriminalized possession of one ounce or less of marijuana for personal use, applies retroactively to defendants whose convictions under those provisions were subject to appeal or postconviction motion on the effective date of the amendment. . . .[The court articulated another legal issue, which is not of concern here. The court then discussed the facts of the case, which stemmed from a hospital visit in which Russell and her husband took their son to the hospital with an injury. The father said he rolled over on the infant; the medical personnel did not believe the story; a social worker interviewed Russell, also did not believe the story, and concluded that she was under the influence of a controlled substance. Russell tested positive for amphetamine, marijuana, and methamphetamine. A search of her residence revealed drug paraphernalia and drugs. She was charged with child abuse (for which she was acquitted), but she was found guilty on the drug charges and sentenced to] 2 concurrent 4-year terms of supervised probation, 192 hours of community service, and a suspended sentence of 90 days in jail. Defendant contends that Amendment 64 should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated. We agree. . . .[The court discussed the law regarding interpreting a constitutional provision and continued:]Our primary task is to give effect to the will of the people in construing a constitutional provision, and the intent of the General Assembly in construing a statute. In doing so, we first look to the language of the constitutional provision or statute. If the language is ambiguous we look to the constitutional or statutory provision’s legislative history, the consequences of a given construction, and the overall goal of the constitutional or statutory scheme to determine the proper interpretation.In November 2012, Amendment 64 was adopted by the vote of the people. It provides, in pertinent part: In the interest of the efficient use of law enforcement resources, enhancing revenue for public purposes, and individual freedom, the people of the state of Colorado find and declare that the use of marijuana should be legal for persons twenty-one years of age or older and taxes in a manner similar to alcohol.As relevant here, the amendment further provides:[T]he following acts are not unlawful and shall not be an offense under Colorado law . . . for persons twenty-one year [sic] of age or older:(a)Possessing . . . one ounce or less of marijuana.Amendment 65 defines “marijuana” to include all parts of the cannabis plant, as well as marijuana concentrate.[T]he amendment provides, “[u]nless otherwise provided by this section, all provisions of this section shall become effective upon official declaration of the vote hereon by proclamation of the governor (emphasis added). The governor made the proclamation on December 10, 2012. The question before us is whether [the section defining marijuana] applies to defendant’s conduct, which occurred twenty months before Amendment 64’s effective date.In general, when construing a constitutional amendment, unless its terms clearly show intent that the amendment be retroactively applied, “we presume the amendment has prospective application only.” . . .Here, the language of Amendment 64 does not clearly express an intent for retroactive application . . . The general presumption of prospective application, however, is subject to a doctrine established by our General Assembly and supreme court enabling a defendant to benefit retroactively from a significant change in the law. . . . [After discussing precedent, the court concluded:]Because defendant’s convictions were pending appeal when Amendment 64 became effective . . . her convictions for possession of marijuana concentrate and less than one ounce of marijuana must be reversed and vacated.[The court discussed an issue regarding expert testimony on the use of methamphetamine, which it resolved against the defendant.]The judgment of conviction on the methamphetamine conviction is affirmed, the other convictions are reversed and the case is remanded with directions for the trial court to vacate defendant’s convictions and sentences for possession of marijuana concentrate and less than one ounce of marijuana.______________________________________________________Notes ................
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