Phillip S. Smith

Federal Appeals Court Just Says No to Florida Welfare Drug Test Law

Florida Governor Rick Scott's (R) drug testing crusade hit yet another roadblock Wednesday as a federal appeals court upheld a lower court's ruling that his plan to make welfare applicants submit to mandatory, suspicionless drug tests was unconstitutional.

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Number of Imprisoned in America Dropped for 2nd Year in a Row, But There Are Still 330,000 Locked Up for Drugs

The number of people in prison in America declined last year for the second year in a row, according to a new report from the Bureau of Justice Statistics. The number of prisoners at the end of 2011 dropped to just under 1.6 million, a 0.9% decrease over the previous year.

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New Jersey Medical Marijuana Patient with Multiple Sclerosis Sent to Prison for Five Year Sentence

 A New Jersey man convicted of marijuana manufacture after he grew 17 plants in his backyard to use to treat his multiple sclerosis was ordered to prison to begin serving a five-year sentence this August even as he appeals his conviction to the state Supreme Court.

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Plan Merida Focus to Shift to Border Region

 US officials said this week in El Paso that the Merida Initiative to help Mexico strengthen its security forces and judicial system in their ongoing battle with criminal drug trafficking organizations -- the so-called cartels -- will shift its focus to Mexico's border states. Other officials defended the "Fast and Furious" Bureau of Alcohol, Tobacco & Firearms (ATF) gun-running scheme that resulted in weapons from the US being transferred to cartel members.

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NJ Governor Gives Okay to Medical Marijuana Program

 New Jersey Gov. Chris Christie (R) announced Tuesday that he will allow the Garden State's medical marijuana program to go into effect, despite vague threats by federal prosecutors that state workers involved in implementing the program could face prosecution. Christie's decision should bring an end to nearly 18 months of delayed implementation of the program, which was signed into law by his predecessor, Gov. Jon Corzine (D).

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Obama Admin Memo on Medical Marijuana Stirs Dismay and Anger

The medical marijuana movement is reeling after the Obama Justice Department released a memo last week declaring that it might prosecute large-scale medical marijuana cultivation operations and dispensaries even in states where they are operating in compliance with state laws. Advocates reacted with dismay and disappointment, even as they plotted strategies about what to do next.

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Federal Crack Prisoners Will Get Sentence Cuts

 Thousands of inmates imprisoned on federal crack cocaine charges will be able to seek sentence reductions and early release after the US Sentencing Commission voted unanimously Thursday to make changes in federal sentencing guidelines for crack offenders it had approved earlier this year retroactive. About 85% of those crack prisoners are black.

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Drug Test Protestors Send Urine Sample to Florida Governor

A new political action group formed to protest Florida Gov. Rick Scott's (R) new drug testing policy for state employees is sending a jar full of urine to Tallahassee to save state officials the bother of traveling south to the Florida Keys.

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Is This the Year America Wakes Up to Its Prison Disaster? Why Conservatives Are Finally Jumping on the Bandwagon

Struggling with chronic budget crises, lawmakers in more and more states are embracing sentencing and other reforms in a bid to hold down corrections costs. But while sentencing reform has long been the domain of "bleeding heart" liberals, now conservatives are driving those efforts in some states.

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Dutch Want to Ban Foreigners from Marijuana Coffee Shops

The newly elected rightist Dutch government said Wednesday it wants to bar foreigners from buying marijuana in the Netherlands' famous cannabis coffee shops. The move is part of a national crack down on drug use, a government spokesman said.

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Senate Throws Softball Questions in DEA Chief Confirmation Hearings at Drug Warrior Michele Leonhart

Michele Leonhart's nomination to be Drug Enforcement Administration (DEA) administrator appeared to be on track for an easy confirmation after a Wednesday hearing in the Senate Judiciary Committee.

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Major Right-Wing Think Tank Proposes Eliminating Office of the Drug Czar for Budget Savings

In an attempt to provide some specifics for Republican promises to reduce the budget deficit by cutting federal spending, the conservative Heritage Foundation has issued a backgrounder report saying Congress should eliminate the Office of National Drug Control Policy (the drug czar's office), the Safe and Drug-Free Schools and Communities state grant program, and all Justice Department grant programs, except those for the Bureau of Justice Statistics and the National Institute of Justice. That means the drug task force-funding Justice Assistance Grants (JAG, formerly known as the Byrne grant) are on the chopping block, too.The report said the federal government could cut a whopping $434 billion and the savings could come from eliminating waste, fraud, abuse, and outdated or ineffective programs;consolidating duplicative programs, targeting programs more precisely, privatization, and "empowering state and local governments" by reducing federal funding for them.

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Weird Drug Politics in the Kentucky Senate Campaign

Drug policy has become a hot-button issue in the Kentucky US Senate race, albeit in a weird and tangential way. The race pits insurgent tea party/libertarian Republican Rand Paul, the son of anti-prohibitionist US Rep. Ron Paul (R-TX), against Democrat Jack Conway, the Kentucky attorney general.

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Major Poll Gives California Marijuana Initiative Ten Point Lead

Support for Proposition 19, California's Tax and Regulate Cannabis marijuana legalization initiative is at 50% in the latest Survey USA poll, which was released last week. The figure is unchanged from last month's Survey USA poll.

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California Endures Another Summer of Pointless Marijuana Raids


For nearly 30 years, the Campaign Against Planting has waged a quixotic battle to eradicate California's outdoor marijuana industry. It's at it again this year.

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Medical Marijuana Madness in Montana

With the number of medical marijuana patients expanding dramatically in the Big Sky State, with storefront operations springing up around the state, and with at least one group of medical marijuana advocates/entrepreneurs touring the state in a medical marijuana caravan complete with pot smoke-filled vans and doctors issuing instant recommendations via web cam, opposition to the way Montana's medical marijuana law is playing out is on the increase.

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Coca Colla Goes on Sale in Bolivia

A coca-based soft drink went on sale in Bolivia this week. Coca Colla, made from the coca leaf and named after Bolivia's indigenous Colla people, is the latest manifestation of President Evo Morales' quest to expand legal markets for coca products.

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Senate Judiciary Committee Passes Bill to Reduce Crack/Powder Cocaine Sentencing Disparity

The US Senate Judiciary Committee Thursday unanimously approved a bill that would reduce -- but not eliminate -- the disparity in sentencing for federal crack and powder cocaine offenses. Under the bill introduced by Sen. Richard Durbin (D-IL), SB 1789, the disparity would have been completely eliminated, but the committee instead approved an amended version that reduces the ratio between crack and powder cocaine quantities from 100:1 to 20:1.

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The First City in America to Criminalize Marijuana Passes Resolution Criticizing Drug War

A year ago, dismayed at the violence rocking its sister city of Ciudad Juárez just across the Rio Grande River, the city council in the remote Texas border city of El Paso unanimously passed a resolution calling for serious consideration of ending drug prohibition, only to see it vetoed by Mayor John Cook. Then, after heavy-handed warnings from US Rep. Silvestre Reyes (D-TX) and the city's delegation in the state legislature that such a resolution could threaten the city's funding, the city council backed down, failing to override Cook's veto.

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Obama Wants More Money for the Failed Drug War?

The Obama administration released its Fiscal Year 2011 budget proposal this week, including the federal drug control budget. On the drug budget, the Obama administration is generally following the same course as the Bush administration and appears to be flying on autopilot.

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South Dakota Advocates Set to Push Again for Medical Marijuana

In 2006, voters in South Dakota become the first -- and the only -- in the nation to reject a state initiative legalizing medical marijuana, defeating it by a margin of 52% to 48%. This year, they will have a chance to reconsider. The South Dakota Coalition for Compassion announced this week it has gathered enough signatures to put its medical marijuana initiative on the November ballot.

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Busted for Handing Out Clean Needles? Courageous Activists Pushed for Safe Access Despite Jail Time Risks

Hit hard by a double whammy of drought and economic slowdown, California's Central Valley has become a hotbed of methamphetamine and other injection drug use. Now, the dusty town of Modesto, in Stanislaus County, has become a focal point in the statewide and nationwide battle over how to help injection drug users. Last week, two volunteers at an unsanctioned needle exchange were in court in Modesto hoping to reach a plea bargain after they were arrested in April for handing out syringes. Now known as the Mono Park 2, they're looking at serious jail time for trying to save lives.

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Unprecedented Civil Disobedience For Hemp Legalization

Fresh from the Hemp Industries Association (HIA) annual convention last weekend in Washington, DC, a pair of real life farmers who want to be hemp farmers joined with hemp industry figures and spokesmen to travel across the Potomac River to DEA headquarters in Arlington, Virginia, where, in an act of civil disobedience, they took shovels to the lawn and planted hemp seeds. Within a few minutes, they were arrested and charged with trespassing.

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Pot Crusader Marc Emery Jailed in Canada Pending Extradition to US

Canadian "Prince of Pot" Marc Emery turned himself in to Canadian authorities Monday and is in custody in Vancouver pending extradition to the United States. The Canadian Justice Minister is expected to sign extradition papers within a matter of weeks, and then Emery will be driven to the border, handed over to US authorities, shackled, and sent to a federal detention center in the Seattle area. Shortly after that, Emery is set to plead guilty to a single count of marijuana distribution, with an expected sentence of five years in a US federal prison.

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British Prisons Install Methadone Vending Machines

In a bid to promote opiate maintenance therapy behind bars, the British government has begun installing methadone vending machines in the country's prisons. Justice Minister Phil Hope told parliament last week that 57 vending machines have been installed so far.

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How a White Powder from the Bolivian Andes Became a Global Phenomenon

Reviewed: "Andean Cocaine: The Making of a Global Drug," by Paul Gootenberg (2008, University of North Carolina Press, 442 pp, $24.95 PB)

Regardless of what you may think about cocaine -- party favor or demon drug -- one thing is clear: Cocaine is big business. These days, the illicit cocaine industry generates dozens of billions of dollars in profits annually and, in addition to the millions of peasant families earning a living growing coca, employs hundreds of thousands of people in its Andean homeland and across Latin America, and hundreds of thousands more in trafficking and distribution networks across the globe.

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Drug Tests for Unemployment Checks? Just Cheap Political Theater

With states across the country feeling the effects of the economic crisis gripping the land, some legislators are engaging in the cheap politics of resentment as a supposed budget-cutting move. In at least six states, bills have been filed that would require people seeking public assistance and/or unemployment benefits to submit to random drug testing, with their benefits at stake.

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Mexican Drug War Violence Is Going off the Charts

President-elect Barack Obama met Monday with Mexican President Felipe Calderón to discuss bilateral issues of major importance for the two countries. In addition to NAFTA and immigration policy, Mexico's ongoing plague of prohibition-related violence was high on the agenda.

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Enouraging Signs That the Government Is Rethinking Sending Drug Offenders Straight to Prison

The US Sentencing Commission, the panel that sets sentencing guidelines for federal courts, has signaled that it intends to focus next year on developing alternatives to imprisonment, a move that is welcomed by reform advocates, but opposed by conservatives and, likely, the Justice Department. The commission's intentions were mentioned in a recent filing in the Federal Register and come as a September 8 deadline for public comment has just passed.

Created in 1984, the Sentencing Commission consists of seven presidential appointees who are then confirmed by the Senate Judiciary Committee. The panel is charged with making sentencing recommendations which automatically take effect unless Congress proactively votes to reject them.

While Congress has repeatedly enacted tough new sentences in bouts of anti-crime or anti-drug hysteria, the Sentencing Commission is less prone to political passions and more likely to act as a restraining influence on congressional incarceration mania. The commission, for example, has for more than a decade urged reforms of the crack/powder cocaine sentencing disparities that have seen thousands of African-Americans imprisoned for years for crack while mostly whites holding similar amounts of powder cocaine do far less time. Last year, the commission enacted changes in the federal sentencing guidelines to reduce sentences for crack offenders.

Despite objections from the Justice Department, the commission then went a step further, making the reductions retroactive so that some of the thousands of long-serving crack offenders could get out of prison a few months early.

But with some 2.3 million people behind bars in the US, including more than 200,000 in the federal system -- more than half of them drug offenders -- the commission signaled earlier this year that it wants to see more efforts to reduce those numbers. This summer, it hosted a two-day symposium on alternatives to incarceration, and now, with the Federal Register announcement, it appears the commission will continue down that path.

"The summer symposium was a really good coming together of criminal justice experts," said Kara Gotsch, director of advocacy for the Sentencing Project, a Washington, DC-based think tank. "There were judges, probation and parole people, law enforcement, academics, and advocates there to talk about what the states are doing in relation to alternatives to incarceration. They discussed successful programs that are diverting people from prison. The commission has demonstrated its interest in this issue and has said it would distribute materials from the symposium, so we are hoping the commission will look to apply some of this to alternatives to incarceration at the federal level, including expanding the sentencing grid to include alternatives."

Not everyone was so excited. In a weekend story in the Wall Street Journal, the Justice Department seemed decidedly unimpressed. Spokeswoman Laura Sweeney said that while the department is interested about the use of expanded monitoring technologies, "we do not believe the use of alternatives should be expanded without further rigorous research showing their effectiveness in promoting public safety."

Similarly, Michael Rushford of the conservative, victims' rights-oriented Criminal Justice Legal Foundation warned that resorting to less mass incarceration could result in rising crime and violence. "I'm old enough to remember the 1960s and the sky-high crime and murder rates we had then," he said. "While there may be a role for diversion for young offenders, serious felony offenders need to be behind bars."

While it is unclear exactly what the commission might recommend, the summer symposium heard lots of talk about drug courts, residential and community corrections, and other alternatives to incarceration. It does seem clear that the commission wants to reduce the flow of new inmates before they get to the prison gates.

"We're going to be looking at what might fit at the starting point, before somebody is sent to prison," District Court Judge Ricardo Hinojosa, chairman of the commission, told the Wall Street Journal. But the commission will move cautiously, he said.

"The commission's priorities for next year are not yet finalized," said Gotsch, who is hoping it will also consider further reforms of crack sentencing and the mandatory minimum sentencing structure. "But we are encouraged by the symposium and this announcement. Advocates like us and Families Against Mandatory Minimums (FAMM) will continue to push for modifications of the sentencing grid to make including alternatives to incarceration a priority. The issue is clearly on their radar, and that's a good thing," she said.

The Sentencing Commission can -- and should -- have an impact on Congress, Gotsch said. "If we can get them on board for alternatives to incarceration, that will be huge. When the commission speaks on a sentencing issue, Congress should listen."

North Dakota Man Facing Years in Prison After Buying Salvia Divinorum on eBay

In what is likely the first arrest for possession of salvia divinorum anywhere in the nation -- and definitely a first in North Dakota -- a Bismarck man now faces years in prison after he bought a few ounces of leaves on eBay. Kenneth Rau, a bottling plant worker with an interest in herbalism, altered states, and religion and spirituality, was arrested by Bismarck police on April 9 when they searched his home looking for his adult son, who was on probation for drug charges.

Police found a marijuana pipe, eight ounces of salvia leaf, a quantity of amanita muscaria mushrooms, and a number of other herbal products. Rau now faces multiple charges, said Burleigh County States Attorney Cynthia Feland.

"He is being charged with possession of salvia with intent to deliver, as well as possession of psilocybin with intent, and possession of marijuana," she said. Although Rau told the Chronicle he thought he would be charged with a school zone violation as well, which would have made his intent offenses Class A felonies punishable by up to 20 years in prison, that is not the case, said Feland. "He is not being charged with a school zone violation," she affirmed.

(The psilocybin charges could go up in smoke. The amanita muscaria mushrooms that he possessed are not controlled substances under federal law and, while hallucinogenic, do not contain psilocybin. The active ingredient in amanita muscaria mushrooms is muscimole.)

Rau was being charged with possession with intent because of the weight of the leaves, she said. "We look at the typical use quantity," she said, "and it is similar to marijuana, with a typical use dose of .25 grams to .5 grams, and he had significantly more than that," she said.

Salvia divinorum, a member of the Mexican mint family, has been used by Mazatec shamans for hundreds of years. Smoking or chewing the leaves, or more commonly, concentrated extracts, can produce intense, albeit short-lived hallucinogenic experiences. While the plant has become notorious through YouTube videos of young people smoking it and behaving strangely, it is also of interest to "psychonauts," or people attempting to explore consciousness through herbal means.

Researchers say that while salvia's effects on consciousness may be disquieting, the plant has not been shown to be toxic to humans, its effects are so potent it is unlikely to be used repeatedly, and its active property, salvinorin A, could assist in the development of medicines for mood disorders.

There are hazards to messing with hallucinogens, one expert was quick to point out. "It's an hallucinogen, and while its hallucinogenic actions are different from those induced by LSD and other hallucinogens, it has the liabilities that hallucinogens do," Bryan Roth, a professor of pharmacology at University of North Carolina's School of Medicine, the man who isolated salvinorin A, told Drug War Chronicle last month. "When people take it, they are disoriented. If you don't know where you are and you're driving a car, that would be a bad experience."

Still, said Roth, while it may make you freak out, it isn't going to kill you. "There is no evidence of any overt toxicity, there are no reports in the medical literature that anyone has died from it. The caveat is that there have been no formal studies done on humans, but the animal data suggests that it doesn't kill animals given massive doses, and that's usually -- but not always -- predictive for human pharmacology."

The DEA considers salvia a drug of interest, but has yet to move to place it under the Controlled Substances Act. A DEA spokesman told the Chronicle recently that the plant is being reviewed to see if it meets the criteria for inclusion on the list of controlled substances.

But driven by little more than the YouTube videos and the story of one Delaware youth whose parents blamed his suicide on salvia, state legislators have not waited for the DEA's measured considerations to act. Since Delaware became the first state to ban salvia, a handful of others, including North Dakota, followed suit. Moves are currently afoot in a number of other states to join the club.

Salvia became illegal in North Dakota on August 1, after a bill sponsored by three Republican lawmakers, state Sens. Dave Oelke and Randel Christmann and state Rep. Brenda Heller sailed through the legislature earlier this year. None of the three legislators responded to Chronicle requests for comment this week.

After Rau was arrested earlier this month, Bismarck police warned that it could be only the beginning in the fight against the member of the mint family. "It sure looks like there could be a market, based on the amount he had", Lt. Bob Hass told reporters. "This is the first we've seen of it." Hass did not return Chronicle calls for comment this week.

While salvia information web sites like Salvia.Net do place a single dose of salvia leaf at between .25 gram and one gram, similar to County Attorney Feland's estimate, intent to deliver still seems a stretch. "I bought eight ounces of leaf on eBay by bidding $32 for it," said Rau. "Now they're charging me with possession with intent. That's silly. Nobody wants leaves. Everyone is buying those 10X and 20X and 30X extracts." [Ed: Not to mention that on eBay one buys what is being offered a sale, not half or a tenth or twentieth of it.]

Rau was also not impressed by the prosecutor's dosage estimates. "This is a clear ploy to exaggerate the number of saleable units," he complained. "These drug warriors have long used this ploy to make dealers out of everyone. Accepting those figures, an ounce of Salvia Divinorum would give 120 doses and make anyone holding an ounce of it a dealer. This is ridiculous since an ounce is clearly the standard saleable unit for leaf. Applying the prosecutor's standard marijuana dosage and saleable quantity would be the amount that would fit in the end of a pinch hitter. This standard would make anyone holding even an eighth ounce of marijuana a dealer."

Rau also scoffed at the notion that anyone is going to be buying fractions of an ounce of salvia leaf. "You can buy an ounce online for as little as $10," he pointed out. "Who is going to split that up into smaller quantities? Hell, you would probably end up spending more on baggies that you did on the leaf," he said.

"This is ridiculous legislative overreaching," said Rau of the new law. "They only based it on those wacky YouTube videos, and even on those, you see people trying to abuse the stuff as much as possible and ham it up, and it still doesn't hurt them. And why jump from selling it in stores to making it a felony," he asked, "don't they do misdemeanors anymore? I didn't even know it was illegal here, and with their first prosecution they go for the max."

The local TV station's web site has inadvertently supported Rau's point. At the time of this writing, an online version of the news report about Rau's arrest was still pulling up salvia ads by Google. Rau emailed the link to Drug War Chronicle, proving that the salvia ads are showing up on computers in North Dakota.

A mild-mannered 46-year-old, Rau's interest in salvia derived from a broader interest in herbalism, religion and spirituality, as well as efforts to deal with his own inner demons. "I read that salvia facilitates lucid dreaming, so I tried chewing some leaves before bed time, and it was interesting because I would see faces and remember names I had long forgotten."

He also tried salvia as a cure for depression. "I have some childhood issues to deal with. They had me on Paxil," he said. "They want you to take their pharmaceuticals, but if you want to take an herbal remedy, they want to throw you in prison. Are they going to save me from myself by throwing me in prison for years?"

Now, Rau is fighting for his freedom, but there aren't many resources in North Dakota, and he doesn't even have a lawyer yet. "The ACLU doesn't even list anyone in the state," he said. "I've emailed the ACLU Drug Law Reform Project, but I haven't heard back from them yet."

Still, he said, his arrest has motivated him. "Maybe this is an opportunity for me to join the fight," he said. "I've never been a drug user, never been arrested. I started experimenting with this stuff because I thought it was legal. I didn't want to get into trouble, but now they're treating me just like some meth dealer."

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