The Cannabis Commission Forsakes Its Mission Statement

The Cannabis Control Commission promised in its mission statement “to encourage and enable full participation in the marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition.”

That promise was evidently not on the minds of the three (of five) commission members who voted yesterday for the categorical exclusion from the new industry of any person with a trafficking conviction for any drug other than marijuana.

Their defenses of the new ban regrettably echoed a persistent myth about the war on drugs: that the only persons prosecuted and convicted of trafficking are drug kingpins with trunks full of contraband in their Cadillacs.

Commissioner Britte McBride asserted unconvincingly that trafficking “is different than simple possession, it’s different even than distribution. This is really talking about quantity and significant quantity…”

Her fellow Commissioner Jennifer Flanagan joined in: “I think there is a very large difference between someone who had been arrested for possession and someone who has been actively trafficking in the commonwealth of Massachusetts.”

Let’s review.  First, here’s a 19-gram packet of salad dressing mix.

GoodSeasons

This is one gram more than is necessary to bring a trafficking prosecution that carries a mandatory minimum state prison sentence.

Second,  as the Chief Justice of the Supreme Judicial Court has said, in a recent year more than half of the persons convicted in Massachusetts of drug distribution offenses and three-quarters of those convicted of drug trafficking offenses that carrying a mandatory minimum term are members of racial and ethnic minorities.

So how is it that again the categorical exclusion of persons convicted of trafficking will not undermine the goals of the mission statement?  Dissenting Commissioners Steven Hoffman and Shaleen Title put up a good fight on this point, arguing that the ban would create new obstacles for ex-prisoners instead of helping their reentry.

One marginally hopeful signal from yesterday’s meeting was the comment of Commissioner Kay Doyle (who cast the deciding vote in favor of the ban) that she would be in favor of reviewing it as the industry develops.

It’s not too soon to start that review.  If you’re going to tomorrow’s Marijuana Summit, take a minute to thank Commissioner Title for her vote against the ban. And if you have time to contact the Commission before its next meetings (March 6 and 7) to correct the misconceptions displayed in yesterday’s vote, please do.  You might also suggest that the Commission invest in some copies of The New Jim Crow.

Here’s a sample text you can borrow or modify: “Please do NOT categorically exclude persons who have trafficking convictions from participating in the new marijuana industry. It is ill-informed and directly contrary to the promise in your mission statement to ensure full participation in the marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition.”

 

Are the Days of Mandatory Minimum Sentences for Drug Crimes Nearly Over?

On Tuesday the state’s Supreme Judicial Court will hear an appeal by the Middlesex District Attorney’s office challenging a trial judge’s decision to depart from the mandatory minimum sentence set by statute for a drug crime and to impose a shorter sentence instead.

The District Attorney, citing the SJC’s decision in a 1995 case, argues that where a statute imposes a mandatory minimum sentence, judges have absolutely no discretion to lower that sentence, and therefore the trial judge in this case improperly reduced the sentence imposed on the defendant, Imran Laltaprasad, from 3 1/2 years to 2 1/2 years. (Laltaprasad was convicted of possessing less than 5 grams of heroin and cocaine. He was carrying the drugs in his prosthetic leg, the result of a violent assault for which his attackers received 2-year sentences.)  Unless and until the Legislature amends current laws imposing mandatory minimum sentences, the D.A. argues, judges must adhere to those laws, which were enacted in 1980, during the earliest days of the war on drugs.

Ah yes, the war on drugs — file under “seemed like a good idea at the time.” It was the cornerstone of Governor Ed King’s plan to make Massachusetts a safer place, regardless of how much money we might need to spend building prisons.

Thirty-six years later, things look different. And what  we know now that we didn’t know (but may have suspected) back then forms the basis of many of the arguments Mr. Laltaprasad’s attorneys are making to affirm the trial judge’s decision reducing the sentence in his case.

We know that mandatory minimum sentences are applied in a racially discriminatory manner (and Mr. Laltaprasad is a member of a racial minority, who comprise three-quarters of the persons on whom mandatory minimum sentences are imposed).

We also know that in cases involving mandatory minimum sentences, it is the prosecutor rather than the judge who decides on the sentence (in this case, the D.A.’s office elected to charge Mr. Laltaprasad with a “second or subsequent” offense, for which the mandatory minimum is 3  1/2 years).

We also know that drug addition is a chronic, relapsing brain disease for which incarceration is an inappropriate and ineffective remedy.

Together, these arguments raise important federal and state constitutional questions concerning equal protection, cruel and unusual punishment, and the separation of powers, as the briefs filed Mr. Laltaprasad’s attorneys as well as by friends of the court argue.

The Middlesex D.A.’s office responded to these arguments not by rebutting them, but by moving to strike those parts of the record supplying their evidentiary support. In opposing the D.A.’s motion to strike, Mr. Laltaprasad’s attorneys cited a rather well-known U.S. Supreme Court decision:  it “is regrettable that the Commonwealth’s only response to this data is to ask that it be ignored…Perhaps at some point in the history of American jurisprudence it was common for courts to overlook data showing the crippling effects of unconstitutional laws.  But that time has long passed.  See Brown v. Board of Education of Topeka, 347 U.S. 483, 493-95 & n.11 (1954).”

Oof.

The Laltaprasad case is the fourth on Tuesday’s docket, which means it will be heard around 10:30.  You can watch the argument here.

 

How the House Republicans Win Backroom Deals While Decrying Them

The editorial boards of both the Herald and the Globe are calling on the Legislature to repeal a misguided 1989 law that revokes the driver’s license of anyone who is convicted of a drug offense and imposes a $500 fee to reinstate a license after the suspension time (one to five years) has been served.  The law was conceived in the fond hope that it would deter drug use. Thirty years later, we know that it doesn’t, and what’s worse, it steers those with drug convictions back toward recidivism by adding to the re-entry obstacles they face.   

Last September the Senate passed a bill to repeal the law, and in January the House approved part of that bill. Both editorial boards greatly prefer the Senate version. The Senate repealed the license suspension law in its entirely.  The House, on the other hand, kept the license suspension law for some drug trafficking crimes — it adopted an amendment to that effect that had been filed by a group of seven Republican representatives. One of those Republican representatives, State Rep. James Lyons of Andover, told the Globe that license suspensions should continue to be imposed on “thugs who are selling drugs to our family members.”  The Herald, often a Lyons fan, parted ways with him on this issue and urged the House to agree to a complete repeal.    

For those not familiar with Rep. Lyons, he’s the Massachusetts chairman of the Cruz for President Committee and his legislative priorities include reducing the state income and sales taxes.  A member of the minority party, he’s also a frequent critic of the practice of lawmaking by backroom deal outside of public view.

You may be curious how Rep Lyons and his colleagues succeeded in keeping a portion of the license suspension law in place. It has something to do with lawmaking by backroom deal outside of public view.

The morning of January 6, Speaker DeLeo expressed support for the proposed repeal at a press briefing. The House took up the bill around 3 o’clock that day.  Four amendments were pending, all of them filed by Republican Representatives. One of the amendments was defeated on a voice vote without debate. Then the House stood in recess.

Legislative action in the House is punctuated by recesses, some brief and some lengthy. During the lengthier recesses, House members often return to their offices to tend to other business. When the House returns from a recess, often the first order of business is a roll call vote to ensure that a quorum is present.  Often, but not always, and not in this case.

After a half hour or so of a recess of indefinite length, the presiding officer (Rep. Paul Donato of Medford) called the House to order, but he didn’t ask for a quorum call. Instead he announced that an amendment was pending and called on the Clerk to read it.  As the Clerk was beginning to read the amendment, Donato instructed him to dispense with the reading of the remainder of the amendment, then called for a voice vote, pronounced that the yeas had prevailed over the nays and that the amendment had been adopted. It all took about a minute. No one spoke in favor of the amendment or in opposition to it. After the vote, a House member requested a quorum call and  Rep. Donato instructed the court officers to summon the members.

The tape.

 

 

 

Thus, the GOP amendment to keep the license suspension law in place for some crimes was adopted (after some very minor tweaking — and definitely outside of public view). The Republican minority got its way merely by threatening to debate the policy merits (if any) of its position. The Democratic majority was spared both a roll call vote and the need to bestir itself to counter whatever the GOP might have had to say.

Sometimes this kind of opacity peeves Rep. Lyons. But less often than you might think — and certainly not in this case.