Get Informed

Regular updates, analysis and context straight to your email

Congress should leave marijuana to the states

Congress should leave marijuana to the states


While candidate Donald Trump promised to protect medical marijuana on the campaign trail, President Trump’s Justice Department wants to be more aggressive against state-legal marijuana under the Controlled Substances Act (CSA). Attorney General Jeff Sessions personally asked Congress for funds to prosecute medical marijuana cases in states where it is legal. The legal sale of recreational marijuana remains limited to a handful of states, but 29 states plus the District of Columbia allow the prescription and distribution of medical marijuana. National polling shows that more than half of Americans favor marijuana legalization, but an even larger majority want the federal government to leave marijuana alone in states where it is legal. This represents a glaring violation of federalism — the notion that states should generally set their own policies free from federal oversight or interference — and the Republican-controlled Congress should have no part of it.

Since 2014, Congress has prevented the Department of Justice from using funds to prosecute state-legal medical marijuana transactions. What was then called the Rohrabacher-Farr Amendment (now known as the Rohrabacher-Blumenauer Amendment) is a rider to the Omnibus Appropriations Bill that defunds prosecutions for state-legal medical marijuana offences. Congress has the constitutional authority, colloquially known as “the power of the purse,” to prohibit government agencies from using tax dollars for particular activities, such as prosecuting federal marijuana violations in states that have chosen to legalize it.

Because the Senate included the no-prosecution amendment in its version of this year’s budget while the House did not, it will be up to a conference committee to decide whether the amendment stands or falls. If it does fall, hundreds of businesses will be threatened and countless chronic pain sufferers and other patients will face uncertainty in their quality of life. Moreover, studies suggest that some patients deprived of medical cannabis turn to opioids to ease their pain, putting them in greater risk of dependency or addiction in the so-called opioid epidemic. Attorney General Sessions’s attempts to link medical marijuana to the opioid crisis fly in the face of evidence from the National Institute on Drug Abuse that show places with access to medical marijuana experience fewer opioid overdoses than those without access. A RAND study also found that prescriptions of opioids and reported opioid abuse decline where state-legal marijuana dispensaries operate.

Despite its perceived association with the political left, medical marijuana is not just a blue-state issue. Ten of the 29 states with legal medical marijuana — and 115 electoral votes — went for Donald Trump in the 2016 election. More than 200 million American residents, roughly 62 percent of the population, live in states where medical marijuana is legal. Nationwide, according to a 2017 CBS poll, 71 percent of Americans — including 63 percent of Republicans — oppose federal interference with state-legal marijuana. Perhaps most telling, a 2017 Quinnipiac poll found that 94 percent of American voters approve of adult medical marijuana use if prescribed by a doctor.

Congress doesn’t just decide whether federal tax dollars can be used to enforce particular drugs laws — it also has the power to determine which substances should be under federal control in the first place. All drugs regulated and banned under federal law are “scheduled” — that is, ranked by factors like rates of abuse, potential for chemical dependence, and potential medical uses. Schedule I, which includes heroin, marijuana, and LSD, is the most restrictive and recognizes no legitimate uses, and the scales descends from there to Schedule V, which includes various analgesics and other medicines with lower potential for abuse. As the evidence continues to mount, an increasing number of doctors, patients, and policymakers reject the federal government’s assertion that marijuana has no accepted medical use and must therefore remain a Schedule I drug — particularly when opium and cocaine are classified as less restrictive Schedule II drugs on the premise that they have legitimate medical applications.

The medicinal benefits to individuals have swayed enough doctors, patients, state legislatures, and public opinion that Schedule I designation ceases to make any sense. At least one Republican Congressman has proposed legislation to de-schedule marijuana entirely.

In fact, Rep. Tom Garrett, a Republican former prosecutor from Virginia, introduced H.R. 1227, the Ending Federal Marijuana Prohibition Act of 2017. The bill would remove marijuana from the list of federal controlled substances while still prohibiting its sale across state lines. This would enable states to decide for themselves whether to legalize marijuana for medicinal or recreational purposes. Marijuana would then be subject to the state and local laws like those that apply to tobacco and alcohol.

While legal marijuana may not be for every state or locale, it is clearly popular enough that the federal government should end its attempt to prohibit it where it is state legal, particularly for medicinal purposes. Millions of Americans and their doctors have determined that cannabis has medical benefits, and almost 2/3rds of the states have recognized that. Congress may not take the lead on this issue, but it should at least recognize the political realities and get out of the way.


The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Former clerk in Pennsylvania district attorney’s office has ties to alt-right

Former clerk in Pennsylvania district attorney’s office has ties to alt-right


A Pennsylvania district attorney has promised to do a better job of vetting potential staff after his office hired a clerk who is active in the alt-right movement.

David Freed, the district attorney in Cumberland County said he didn’t personally know Evan McLaren when he worked in the office as an unpaid clerk in 2016 and 2017.

McLaren is now the executive director of the National Policy Institute, which was founded by white supremacist Richard Spencer.

The Southern Poverty Law Center has called the National Policy Institute “one of the country’s leading white nationalist organizations” and classified it as a hate group.

The Patriot News, the largest newspaper in Harrisburg, quoted McLaren talking about his beliefs last month after the violent protests in Charlottesville over the removal of a Confederate statue. McLaren was one of the people that marched in Charlottesville in opposition to the removal of the Robert E. Lee statue.

In the article, McLaren, a 2017 graduate of the Dickinson School of Law, said he believed white people who trace their ancestors back to Europe like himself were in danger of becoming a minority in America.

“We’re dedicated to the preservation of white heritage and identity,” McLaren said. “We’re talking about European culture and identity.”

McLaren also said Jews did not fit his definition of “white.”

Spencer has said the races shouldn’t mix and has advocated for different races living in different nations.

McLaren’s white nationalism has caused previous co-workers to backpedal from him as quickly as possible. McLaren was briefly the treasurer of the Cumberland County Young Republicans, and Republican leaders in the county said they barely knew him and weren’t aware of his extremist views.

Freed, a Republican, has promised to expand the vetting process to make sure someone like McLaren isn’t hired again. He also said all the cases McLaren worked on are being looked at to make sure nothing improper happened.

“The volunteer clerks prior to McLaren were only vetted to determine whether they are in good standing with the law school that they attend. Now we will at least look at social media and online histories,” Freed said.

Freed is one of several elected prosecutors who has hired employees that have publicly said hateful and racist things.

Last year former Orlando State Attorney Jeff Ashton fired Assistant State Attorney Ken Lewis after he did a Facebook post hours after the Pulse nightclub shooting.

In that post Lewis said all Orlando clubs are “zoos” and said downtown Orlando was a “melting pot of third world miscreants and ghetto thugs.”

Ashton said Lewis violated the office social media policy with the post. He also showed poor judgment and animus towards Orlando citizens.

Washington County District Attorney Bob Herrman also put Deputy District Attorney Zoe Smith on limited duty and ordered a personnel review of her after Smith wrote a Facebook post that appeared to support racial profiling. Smith was later suspended for a week without pay before being allowed to resume her normal duties.

More in Explainers

Don’t Just Vote for a Legacy.

Vote in a Brooklyn District Attorney that Represents Your Values for the Future of Criminal Justice.

Don’t Just Vote for a Legacy.

Vote in a Brooklyn District Attorney that Represents Your Values for the Future of Criminal Justice.


Next Tuesday, September 12th, Brooklyn votes for its next District Attorney. Technically it’s a primary election, but in a city as blue as New York, whoever wins next week will surely be the new District Attorney.

The Brooklyn race is hotly contested and deserves the attention of voters, especially those who want to see an end to mass incarceration. But no one seems to know about these races. And I can’t fault folks for not knowing: even the NYC voter guide left out any mention of the election.

As a public defender at Brooklyn Defender Services, a public defense firm representing about half of all arrested in Brooklyn, my colleagues and I bear witness to the impact of thousands of decisions every day by the Brooklyn DA and the hundreds of prosecutors beneath him. They have the power to help, but all too often they use that power to hurt my clients. We see the impact of prosecutorial decision-making on the lives of our clients, their families, and communities — mostly the poor and people of color. We understand what needs to happen to make a DA’s office run the way it was intended and be an agent for fairness and justice, not just convictions, on a large scale.

But most voters don’t see the same things we see. The role of District Attorneys and prosecutors in driving mass incarceration has long been a mystery to most, overshadowed by a focus on policing and prisons. On Tuesday, voters will choose a candidate largely based on the opinions of media outlets like the New York Times, rather than the experiences of practitioners like me. That’s why it’s critical that the New York Times gets it right.

This year the Times got it extraordinarily wrong — although they did not necessarily endorse the wrong candidate. Rather, it was how the Times framed their endorsement that was the problem. The Times focused on which candidate they believed would be best positioned to continue the legacy of the former Brooklyn District Attorney, Kenneth Thompson, who died tragically from cancer last year. Thompson’s former Deputy and now candidate for Brooklyn DA, Eric Gonzalez, took his place as Acting DA.

This week, the Times urged readers that it is “critical” that the post of District Attorney be occupied by someone like Thompson, stating: “This race is really about who will most effectively continue the Thompson era.”

The problem is that Ken Thompson was no reformer. Although he had good intentions, his policies made the criminal justice system even harsher than it had been under the previous administration.

The Times hailed Thompson as “someone with a deep awareness of the injustices and inequalities that are baked into the criminal justice system.” He may have been “aware,” but his actions on nearly every justice issue unfortunately only reinforced inequality.

But you don’t have to take my word for it. The New York Times and other local and national outlets reported extensively on the broken promises of the Thompson era throughout his tenure.

Thompson helped drive up the Rikers population with bail requested in almost all cases, including some of the most minor misdemeanor cases.

Thompson fueled the fire of broken windows policing. When it came to quality of life crimes, Thompson implemented and continued harsh policies that prosecuted rather than helped addicts, the mentally ill, and the homeless. Even when the other borough DAs were no longer enforcing an outdated and extremely harsh policy of vilifying people charged with misdemeanors, Thompson continued to enforce “Operation Spotlight,”requiring his prosecutors to request a one-year sentence on Riker’s Island for matters as innocuous as jumping the turnstile, possession of a crack pipe, misdemeanor trespass, and shoplifting.

In my office’s experience, under Thompson, it became harder than ever before to get the DA’s office to agree to alternatives to incarceration. People who previously would have easily received treatment, which would have saved their lives and made Brooklyn safer, were routinely forced to accept jail or prison sentences, a throwback to a time two decades earlier.

Thompson’s office was heartless when it came to mothers in the criminal justice system, asking for bail, and then demanding orders of protection separating kids from their families. And talk to any public defender and they’ll tell you, Thompson was significantly worse than his predecessor on withholding evidence, restricting the evidence that was turned over to the defense, despite his promises to provide open-file discovery.

While Thompson recommended probation for the officer who was convicted of shooting Akai Gurley, a move so disturbing that it compelled the assigned prosecutor (now a candidate for Brooklyn District Attorney himself) to resign in protest, he forcefully pushed for a 19-year sentence for a young black teen who set fire to a mattress, resulting in the tragic, yet clearly accidental death of an officer.

Despite the Times’ claim that Thompson had a deep “commitment to reform the win-at-all-costs mind-set of too many prosecutors,” the Assistant District Attorneys that worked for him by and large did not reduce their hard-core desire to seek convictions, including withholding evidence until the last minute to gain a strategic advantage.

Instead of a reasoned approach to gun violence, Thompson supported reactionary “gun courts,” which continue today to shun mercy and any concept of individualization in favor of locking up largely young black men for simple possession, no matter the justification, whether or not they even touched or owned the gun.

And while the Times claimed that Thompson stopped prosecuting low-level marijuana offenses, he actually kept prosecuting the vast majority of them, and that policy continues today. In a story aired today on WNYC, Beth Fertig reported that despite Thompson’s 2014 promise to stop prosecuting the majority of low-level marijuana cases to combat the gross racial disparities in arrest rates, in 2016, his office still prosecuted 82% of marijuana arrests, 86% of which were black or Latino. And when Thompson did decline to prosecute, he did so one-third of the time for whites, compared to only 14% for blacks.

Of all the things that Thompson received praise for doing, the creation of a “conviction integrity unit” is at the top of the list. Yet, despite the Times crediting Thompson with the creation of the unit, his predecessor, DA Hynes, actually did. Without doubt, Thompson’s office deserves credit for righting many wrongful convictions and exonerating and releasing many innocent people. Yet ironically, while his office worked to investigate wrongful convictions based on prosecutorial errors decades after the fact, the policies and practices of his office in dealing with then-pending cases increased the likelihood of a whole new slate of wrongful convictions in real time all over again.

As but one example, on the eve of a suppression hearing in the case of a 53-year-old client of mine who had consistently told me that he never possessed the gun he was charged with, Thompson’s office finally disclosed that judges had previously found one of the officers in the case “incredible” in another nearly-identical gun case. This means the judge thought the officer had lied on the witness stand. Rather than disclose this immediately, which the DA is legally required to do, they waited until the last minute, presumably hoping that the client would plead guilty and they would not have to present this officer as a witness.

After digging deeper, it turned out that the team of arresting officers had been found incredible numerous times by different judges, using a fantasy version of near-identical gun arrests for many cases. It was only after the New York Times reported on the case and these officers that DA Thompson finally agreed to review and ultimately dismiss the charges. He promised to investigate the officers. But he apparently never followed through on that promise.

One year later, a fellow public defender called me. Apparently Thompson’s office was still relying on those same officers in her case and were refusing to drop the case or turn over any information. In a cover story, the Village Voice reported that it appeared Thompson never did really investigate those officers after all.

Ultimately, no one should be elected because of what someone else stood for. The next District Attorney will be functioning in the future, not the past. Voters are not voting for a legacy. Voters are choosing who will have decision-making power over close to 400,000 lives in the next four years. They are choosing who they want making thousands of choices at thousands of discretion points that will make or break lives. There are so many critical decisions — whether and what to charge, whether to ask for bail, whether to offer rehabilitation or demand incarceration, whether to keep families together or destroy communities, whether to listen to defense attorneys when we try to bring claims of innocence to their attention, and infinite more. Voters will choose who gets to make those decisions.

There are six candidates. Whoever you feel would make the best District Attorney for the future, not the past, should get your vote. Make an informed choice next Tuesday. Don’t rely on the Times for this one.


The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

More in Podcasts