State & Local Legislatures

New Jersey Gov. Jon Corzine (D), all 21 county prosecutors, and the state sentencing commission all agree that the Garden State's drug-free zone law is ineffective, racially unbalanced and should be amended, but some New Jersey law enforcement officials disagree. While Corzine and his allies want to cut back on the drug-free zones, these police officials are pushing for even stiffer penalties.

Under current New Jersey law, anyone caught selling drugs within 1,000 feet of a school or 500 feet of a park, public building, or public housing is subject to increased penalties, including mandatory minimum sentences. Under the proposal presented by the state and embodied in a pending bill, A2877, the drug-free zones would be cut back to 200 feet, sentences would be increased for sales within the zones, but the mandatory minimum sentences would be dropped.

Drug-free zones became popular as a law enforcement tool designed to protect kids from drug dealers, but as the New Jersey Commission to Review Criminal Sentencing pointed out in a 2005 report and again in a supplemental report this year, the zones cover huge swathes of urban New Jersey, effectively submitting black and brown city dwellers to much more severe penalties than those faced by their white suburban or rural counterparts. According to the commission, 96% of people jailed under the law are black or Hispanic.

The drug-free zone laws had another pernicious effect as well: Although they did not stop drug dealing within the zones, they did result in stiff mandatory minimum sentences for those convicted. Selling a bag of weed in the zone got you a year in prison, while selling a rock of crack got you three years. As a result, more defendants fought their cases, clogging the courts with low-level drug dealers.

In addition to clogging the courts, prosecutors also complained that the mandatory minimums meant there was little wiggle room for plea deals, leaving them without cooperating witnesses to make further drug cases. As a result, prosecutors have effectively ditched the mandatory minimums for anyone who would accept a plea bargain. Now, only those who contest their charges in court and lose are hit with the mandatory minimums.

But while the governor, the prosecutors, and the sentencing commission want to further reform the drug-free zone law, some police want to go in the opposite direction. "Leave it at 1,000 feet," said Rahway Police Chief John Rodger. "And increase the penalty in the 200-foot zone," he told the Home News Tribune this week.

Still, Rodger conceded that he could not recall any drug deals taking place in or near schoolyards, a sentiment shared by veteran Middlesex County Prosecutor Caroline Meuly. The drug-free zone law has "a laudable goal," she said, "but I can't think of any (criminal case) file where people have sold to children or targeted them."

Reforming New Jersey's drug-free zone law as Corzine and crew suggest would be an improvement, but it would still be aimed primarily at low-level urban minority drug dealers. Better to limit it to cases of actual sales of drugs to youths, or repeal it outright.

Ronnie Naulls never saw it coming. The church-going businessman, husband, and father of three young girls knew he was taking a risk when he opened a medical marijuana dispensary in Corona, a suburban community in the high desert of Riverside County east of Los Angeles.

Although he had played by the rules, obeyed all state laws, and successfully battled the city in court to stay open, Naulls knew there was a chance of trouble with law enforcement. He knew there was a chance of the federal DEA coming down on him, as it has done with at least 40 other dispensaries this year alone.

Naulls family (courtesy green-aid.com)

But that wasn't enough for the DEA. The raiders also called Child Protective Services (CPS). With Naulls already hustled off to jail, his wife sitting handcuffed in a police car, and his home in a shambles after being tossed by the DEA, CPS social workers said his three children were endangered and seized them. Naulls and his wife were also charged with felony child endangerment.

The three girls -- ages 1, 3, and 5 -- were held in protective foster care, with Naulls and his wife only able to see them during a one-hour supervised visit a week. "My oldest girl thought she was being punished for doing something wrong," he said. "When we went to visit her, she said, 'Daddy, we're ready to come home now, we promise to be good.'"

But the Naulls couldn't tell their children the only thing that would comfort them -- that they would be coming home soon. That would violate CPS regulations because it might not be true. In fact, it took five weeks of hearings and heartache before a family court judge decided the children would indeed be safe with their parents. But the child endangerment charges still stand.

"I was numb, totally flabbergasted, outraged, and left speechless," said Naulls. "They told my wife we were endangering the kids because of the medicine we had in the house, but we only had some in a refrigerator in the garage that has an alarmed door and my own medicine in a locked container in my office -- the DEA broke that lock. Would they treat us that way if it had been prescription Xanax?"

The DEA was not apologetic about its handiwork. A DEA spokesman confirmed that its people had called CPS. "Any time we do an operation where children are present, we have a responsibility to call CPS," said Special Agent Jose Martinez. "But we don't make the decision about whether the children are endangered."

While it would not discuss particulars of the Naulls case, the Children's Services Division of the Riverside County Department of Public Social Services, of which CPS is a part, denies that medical marijuana use or presence is a reason for removal of children on the filing of endangerment charges.

"Drugs alone does not constitute a reason for removal," said Susan Lowe, director of the division. "More relevantly, the issue of medical marijuana does not constitute a reason for us to remove children. There have to be other issues present that indicate neglect or abuse."

That claim brought a sharp response from Oakland-based attorney James Anthony, who represented Naulls on land use issues related to his dispensary. While he supported Lowe's statement of the Riverside County CPS policy, he said it didn’t reflect reality in the county.

"As a medical cannabis activist attorney and friend of the Naulls family, I would say that is very good news and seems to reflect a change of position -- or a position held at the top that has not filtered down yet to the working staff of CPS," said Anthony. "Riverside County CPS has an alarming reputation as quick to take children out of medical cannabis households and to press endangerment charges," he said. "The position the director laid out is exactly as it should be: medical cannabis is no more relevant to the best interests of children than any prescription drug -- the California Supreme Court said as much when it said that medical cannabis is as legal as any prescription drug," Anthony pointed out.

"In the Naulls case," Anthony continued, "what does the agency allege is the 'neglect or abuse'? Two loving parents? A nice middle-class home? Parents who care enough to avail themselves of legal, harmless, medicine to keep themselves well? The only abuse I'm aware of at the Naulls home was the abuse done by federal law enforcement when they invaded that home without warning and heavily armed -- terrorizing those poor children for no reason at all. The DEA could have called me and I would have advised my client to turn himself in -- it's not like he was hiding. If CPS wants to charge someone with child abuse, they should start with the DEA. Under their own standards as described here, there is no basis to prosecute Anisha Naulls for anything."

If there is any child abuse involved, it is coming from the state, agreed Richard Wexler, executive director of the National Coalition for Child Protection Reform, a group concerned with abuses of the child protection system.

"What has been done to these children is government-sanctioned child abuse," Wexler said. "Whether one believes what Mr. Naulls did is legal or not, there is not a shred of evidence that running a medical marijuana co-op harms children -- and overwhelming evidence that foster care does children enormous harm," he said.

"The act of removal from everyone loving and familiar can traumatize a child for life, and the younger the child, the greater the likelihood for such harm," Wexler continued. "For a young enough child it's an experience akin to a kidnapping. Children often believe that they have done something terribly wrong and now they are being punished. That's reflected in one child telling her father 'Daddy, we're ready to come home now; we promise to be good.' All that harm occurs even when the foster home is a good one. The majority are. But several studies suggest that at least one in three foster children is abused in foster care. So these children have gone from a situation where they clearly were not abused, into foster care, where the odds are at least one in three that they will be abused," Wexler said.

"I warn all my dispensary clients that the federal government will try to capture and imprison you, but it hadn't occurred to me that the government will also kidnap your children," said Anthony. "It's just unbelievable, barbaric."

Anthony also works with Green Aid, a group originally set up to support Ed Rosenthal's legal battles with the feds in Northern California. Green Aid has set up a Naulls Family Defense Fund to aid the now impoverished family in its effort to stay together and out of prison.

Sadly, the Naulls are not alone. Veteran activists say child removals by CPS or the loss of custody battles in California family courts because of medical marijuana are not uncommon and becoming more frequent.

"Medical cannabis patients and providers getting their kids taken away is, unfortunately not new," said Angel McLary Raich, who won the first medical cannabis custody case in California in the wake of Proposition 215. Despite a variety of debilitating and life-threatening conditions, Raich and her patient outreach group Angel Wings, have since become a resource for other medical cannabis community members facing either the child protection bureaucracy or the vicissitudes of family court in child custody cases.

Raich, who is probably best known as the plaintiff in the Supreme Court's medical marijuana case, Raich v. Ashcroft, said involvement with medical cannabis as a factor in either child custody or abuse or endangerment cases is a recurring problem. "I know of many cases where the kids have been taken away permanently, others where they have to have supervised visitation."

"We think this kind of thing is horrible," said Noah Mamber, legal coordinator for Americans for Safe Access (ASA), the medical marijuana defense group. "Even as we are making progress on the criminal front, with the cops becoming better educated, as well as other areas like employment and housing, as the legal intake person for ASA I find myself taking many, many calls where medical cannabis is an issue for CPS or in family court. I've probably had 30 or 40 in the last couple of years, and those are just the people who call us."

That means there is work to do, activists said. Some are undertaking an educational process with the family courts and CPS, while others are looking to the legislature for relief.

"No one seems to understand medical marijuana in this context," said Mamber. "There seems to be an unfortunate bias in CPS workers and family court judges. There are cases where there are no other issues except medical marijuana, and they will force them to quit taking their medicine if they want their kids. It is absolutely true that there are cases where patient parents are being treated unfairly by CPS and the family court system."

"An educational process for the courts and agencies is definitely needed," said Anthony. "They can act with the best of intentions, yet wield an incredibly devastating impact on families because of their lack of knowledge."

Raich pioneered such educational work in Alameda County. The work continues, she said. "I'm working on training law enforcement and dealing with CPS and family court," she said. "That's my real passion. I cannot tolerate watching other people lose their kids over this stuff. It is just so wrong."

If anyone is having problems with CPS or family court over medical marijuana issues, call her, Raich said. Her number is in the Oakland phone book and contact information is on her web site.

ASA is working to even the playing field for patients through legislative action, Mamber said. "As it is now, family courts and CPS don't seem to be aware of Prop. 215 and Senate Bill 420, so we need legislation to guide them. We have drafted a bill that would amend the child protection law so that the medical marijuana status of a parent cannot be the sole basis for removal of a child," he explained. "They need to quit forcing patients to stop taking their medicine. This measure won't stop CPS from doing its job, but it will stop it from persecuting medical marijuana patients."

All that is going to take time. In the meantime, said Raich, medical marijuana patients or providers with children need to play it extremely safe. "Make sure you're being a good parent," she said. "Make sure your cannabis is out of reach of the children, make sure your house is clean, there are no hazards, always plenty of milk and formula on hand. Don't grow in the house, don't dry in the house, don't have more pot than food in the refrigerator. Take a parenting class. Know what you need to do. And if the cops come to the door, don't let them in without a warrant."

As for Ronald Naulls, he's still a bit shell-shocked. "I'm a businessman and a network engineer. I don't have a criminal record and I don't want to go to jail. I don't want to have to fight the state to keep my daughters. I'm praying for God's love, and I ask everyone to pray for me. But this is more than just about me, this is a fight for the patients and for my family."

The Ohio Senate marched resolutely backward Tuesday as it passed a measure, Senate Bill 73 that would eliminate the disparity in sentencing between crack and powder cocaine -- by raising sentences for powder cocaine to make them as harsh as those for crack. The measure now heads for the Ohio House.

In a reflection of federal laws that treat crack cocaine much more harshly than powder cocaine, Ohio state law makes possession of only 25 grams of crack a first-degree felony, while it takes 500 grams -- or 20 times as much -- powder cocaine to trigger the same charge. Ohio law makes any cocaine sales offense an offense "for which there is a presumption of a prison term" and calls for mandatory minimum prison sentences for any cocaine sale of five grams or more of crack or 10 grams of powder cocaine.

While black lawmakers in the Buckeye State have been calling for years for a measure to redress the disparity in sentencing, this is probably not what they had in mind. But the sponsor of the bill, State Sen. Ray Miller (D-Columbus), said upping the penalties for powder offenses was key to winning passage.

"We've got a growing problem in our rural areas of the state, and many of these members are well aware of the problem," Miller told the Cleveland Plain Dealer after the vote. That "broader understanding" that Ohio drug problems were not limited to inner city street corners swayed legislators, he said. "Fundamentally, equalizing the penalties at a higher level as opposed to bringing them down was key to passage," Miller said.

Some legislators who supported the bill did so despite concerns it could cost money. According to a nonpartisan fiscal analysis of the measure, it will cost $25 million a year or more in increased prison costs.

"That's real money," said State Sen. Bill Seitz (R-Cincinnati), who voted for the bill anyway. "And that's what happens when we equalize penalties at a higher rate."

Miller retorted that the cost argument "doesn't hold much water" because ending the distinction will cause judges to opt for treatment over prison for cocaine offenders. "In the long term, I think it will help to reduce the prison population because there is a race factor involved, there is an economic factor involved. Now some of the judges are going to have to look at things a little differently," Miller said.

But Miller's retort doesn't hold much water given that the law mandates prison sentences for most cocaine sales offenses.

The Ohio Senate's move to stiffen powder cocaine penalties comes as the US Sentencing Commission, the US Supreme Court, and the Congress are all contemplating ways to undo the federal powder-crack cocaine sentencing disparity. None of those institutions are contemplating doing so by raising the penalties for powder cocaine offenses to the level of crack cocaine.

Ten years ago Tuesday, Wisconsin medical marijuana patient Jacki Rickert led a 210-mile trek of wheelchair-bound patients to the state capitol in Madison in a "Journey for Justice" seeking legal access to the medicine they said made their lives bearable. This Tuesday, Rickert commemorated that anniversary with a press conference at the capitol, where she was joined by two state representatives who announced they would introduce a medical marijuana bill this session. They are calling it the "Jacki Rickert Medical Marijuana Act."

With a history of failed medical marijuana bills in the state and a legislature with one house controlled by Republicans, proponents are not predicting certain victory this session, but they do say they will give it their best shot.

Jacki Rickert and Gary Storck, with Jim and the late Cheryl Miller, outside former Rep. Bob Barr's office (immly.org)

If Reps. Frank Boyle (D-Superior) and Mark Pocan (D-Madison) have their way, Wisconsin will be in the thick of the race. "We want to make sure that this is the year Wisconsin gets it," Boyle said at the Tuesday press conference. "Twelve states have now legalized medical marijuana, and I'm sick and tired of the state of Wisconsin dying a most regressive death in what used to be progressive tradition."

While the measure is still in the drafting stage, according to a cosponsoring memo being circulated by Boyle and Pocan, the Jacki Rickert Medical Marijuana Act's key provisions include the following:

• Provide a medical necessity defense to marijuana-related prosecutions and property seizure actions. A person may evoke this defense if they are undergoing a debilitating medical condition or treatment and have written consent from their physician or obtained a valid registry ID card from the Department of Health and Family Services (DHFS). Conditions include cancer, glaucoma, AIDS or HIV, diseases that cause wasting away, severe pain or nausea, seizures or severe and persistent muscle spasms, and any other medical condition or treatment in rules promulgated by DHFS.
• Create a maximum authorized amount of marijuana a patient may have, thus establishing clear limits for both patients and law enforcement officials.
• Prohibit the arrest of a physician who provides a written certification in good faith. Also, the primary caregiver is protected by the same exceptions under the law.
• The defense may not be applicable if the patient performs an illegal act while using marijuana. This includes driving or operating a motor vehicle, operating heavy machinery, smoking near a school, park or youth center, at a person's employment, etc.
• Require DHFS to establish a registry for medical users of marijuana and an ID card to a qualifying patient.
• This bill only changes state law regarding marijuana. Federal law on marijuana does not change. However, 99% of marijuana arrests are made by state and local officials, not federal officials.

"If someone has the written consent of their physician or has obtained a valid registry card from DHFS, they would be allowed to have the possession or be able to grow a certain amount of medicinal marijuana," Pocan explained.

"Please, we have to make this legal," Rickert told the press conference. "I beg all of you. We know it works. We know it's not going to kill us," Rickert said. "I have never had an allergic reaction to a God-given herb."

Rickert wasn't the only patient speaking Tuesday. A 21-year-old, who called herself only Lynn, said she had been diagnosed with multiple sclerosis two years earlier, and lost her sight, mobility and independence from the disease. Lynn told the crowd smoking medical marijuana worked on her symptoms when nothing else did, eventually allowing her to be well enough to live on her own.

"If you had a 19-year-old daughter who was in pain every day, what would you do to help?" Lynn asked. "You could be put on five different drugs three times a day every day, like I was. Or you can take pot, and now I'm on two drugs a day."

Another patient, J.F. Oschwald of Colorado, addressed the press conference from his wheelchair. "Medicine is medicine and if they can regulate morphine then they can regulate marijuana," he said.

"This was a nice start," said medical marijuana patient Gary Storck, who, along with Rickert, is a cofounder of the Wisconsin medical marijuana advocacy group Is My Medicine Legal Yet?. "We had a number of patients speak, as well as Boyle and Pocan, and we got some good media coverage," he told the Chronicle.

Responses at the capitol have grown less frosty than a decade ago, Storck said. "When I go up there lobbying with patients, I'm seeing changed attitudes. We're being well-received, and you can see that some of the staffers are really affected. It looks like this is finally gaining some legs," he said.

Part of the change in attitude is due to the educational efforts of medical marijuana activists and proponents, said Storck. "Patients are more willing to come out and let their stories be told, and that only helps," he said. "The fact that other states are passing it or coming close to passing it helps, too. We're ringed by states where they're already a little closer."

But with Republicans controlling the state Assembly, it will be a difficult battle this two-year session, he said. "We've got an agreement from one senator to hold an informational hearing in November, but I'm afraid this will just be caught up in politics as usual this session. I'm hoping the Democrats will take back the Assembly next year -- that would really improve our chances. Gov. Doyle has already said he will sign a medical marijuana bill," Storck added.

Still, Storck, Rickert, IMMLY and other medical marijuana supporters aren't waiting for next year. "There's always the hope the legislature will come to its senses," he said. "Legislators have until October 4 to sign on as cosponsors, and we're hoping a senator or two will sign on so it can move. While we think we'll have better luck with a Democrat-controlled legislature, we will continue to push now."