Entrapment by estoppel occurs when

(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of all the relevant historical facts, (3) affirmatively told [the defendant] the proscribed conduct was permissible, (4) that [the defendant] relied on the false information, and (5) that [the] reliance was reasonable.

Dale Schafer and Marion Fry are a husband/wife team. She is a doctor and a cancer patient. He is a lawyer. They live in Cool, California. ¹ After she was diagnosed with breast cancer and received a doctor’s recommendation that she use marijuana they began to grow marijuana. Eventually they grew more and a dispensary was formed. Throughout the period they kept local law enforcement officer informed of their activities and were assured that there actions were legal.

But they were eventually arrested on Federal charges by the DEA. Unlike California state law, Federal law does not allow for medical marijuana.

Prior to trial the District Court granted a motion made by the United State Attorney to prohibit Shafer and Fry from using an estoppel defense at trial. The Court ruled that even if the local agents could be considered Federal agents there was no evidence that Shafer and Fry relied upon their word in deciding to grow marijuana. In fact, Fry’s written recommendation that she gave to patients recommending the use of marijuana specifically warned that marijuana was not legal under Federal law. Therefore they can not be said to have relied upon the local officers’ alleged statements telling them that the grow was legal.

A second argument made by Shafer and Fry was that they are the victims of sentencing entrapment. Sentencing entrapment occurs when law enforcement agents encourage individuals to grow more marijuana or to sell more drugs in order to increase their possible sentence. But here there was no evidence that any agent or officer encouraged Fry and Shafer to grow more marijuana. Even if the local sheriffs told them that their grow was legal it does not mean that they encouraged Shafer and Fry to increase the size of the grow.

Of course one lesson to be learned from Shafer and Fry is not to be greedy. As any California medical marijuana grower knows, the Feds generally do not become involved in a case unless there are 100 plants or more. Shafer and Fry were growing over 100 plants.

California would be the first state in the Union to legalize marijuana and it would still be illegal under Federal law.

A poll last year showed that 56 per cent of Californians supported the legalization of marijuana.

The initiative if passed will allow everyone over 21 years old to possess up to an ounce of marijuana. Individuals would be allowed to cultivate and transport marijuana for personal use. They will be allowed to have a 25 square foot marijuana garden.

Cities would be authorized to regulate and tax the sale of marijuana. If they do not pass ordinances regulating the sale of marijuana possession will be legal in the community but selling it would be illegal. In all cases it will be illegal to sell to minors or to involve minors in the sale of marijuana. It will be illegal to have marijuana on school grounds and smoking it in public will be illegal.

The major arguments in favor of the initiative will be the failure of prohibition and financial. Despite marijuana being illegal and millions of dollars being spent to enforce prohibition a large number of citizens use it. Medical marijuana, which is legal in California, is available primarily to the middle class who can afford going to doctors and getting certified. The truth of the matter is that almost anyone with the money can get medical marijuana but the poor cannot afford going to the doctors who charge significant fees for the certification required under the medical marijuana laws. The poor end up buying it on the street and getting arrested. One problem with the initiative is that it will still outlaw street sales. As a result many of the sellers, who are often poor immigrants or youth will continue to be arrested.

California cities continue to suffer from the recession. The Federal government has cut back on many programs that provide money to the states and California has solved many of its budget problems by cutting back on support to local communities. As a result many communities are looking forward to being able to tax marijuana sales in order to provide services to the public. Legalization of marijuana will allow communities and the state to either cut back or make better use of money currently used to arrest, convict and incarcerate users, sellers and cultivators of marijuana.

But on the other hand many police officers and parents’ groups will continue to oppose legalization. They fear that despite the laws prohibiting possession of marijuana by those under 21 that legalization will make it easier for teenagers to obtain marijuana. Furthermore they are afraid that legalization will lead to more people driving under the influence of marijuana resulting in injuries and accidents.

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The report looks at the reasons given for incarcerating marijuana users:

a) Arresting adults and criminalizing marijuana markets is the best way to discourage
 and control  teenage marijuana use.    
b)
Marijuana’s illegality is the best way to discourage and reduce marijuana use; 
more people would use the drug if it were legal. 
c)
Marijuana arrests are not widespread and penalties are relatively mild. 
d) Smoking marijuana is not the optimal method of delivering its therapeutic
 benefits to patients. 
e)
Marijuana use is a risky activity for individuals afflicted with schizophrenia.

 

In so far as the statistics in the Marijuana Almanac are relevant the statistics do not support the reasons for incarceration. There is no correlation between greater punishment and less use of marijuana. For example, Mississippi and Nebraska have decriminalized marijuana but relatively few people used marijuana in these states. At the same time Utah and North Dakota have low arrest rates and low usage rates.

The statistics also show that while 25 per cent more African Americans use cannabis than White Americans the arrest rate for African American is three times as great as it is for white Americans.

Another statistic is that state and local governments pay 10.3 billion dollars to arrest people for possession of marijuana. Decriminalization save California taxpayers 857 million dollars in 2006.

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While the DEA, FBI, Internal Revenue Service, Los Angeles County Sheriff’s Department, Los Angeles Police Department, Torrance Police Department and Culver City Police Department all took part in the raids, the raids appear to have been directed by State authorities with the feds only helping out. The Los Angeles Police Department applied for the Search Warrant which was granted by a Superior Court judge. This would indicate that the affidavit supporting the search warrant alleges a violation of state law. But no one involved–neither the police department or the DEA are publicly admitting what violation occurred.

The task force raided Organica Collective in Culver City, and the Overland Gardens Collective in West Los Angeles . The clubs are owned by Jeffrey Joseph. His house was also raided and he was arrested. He is now out on bail. They seized 100 pounds of marijuana, 200 live plants, and $100,000 in cash. None of this necessarily indicates anything other than a dispensary which sells marijuana to patients who have the approval of their doctors to legally possess marijuana.

The Organica Collective posted a statement on opposingview,com denying any violation of state law.

The law requires that the police file the search warrant affidavit within ten days of the search and it then becomes public. Therefore it should be filed within the next week and we will know the allegations.

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One question that must be asked is who is in charge. Does Holder control the DEA or does the DEA control Holder. President Obama has yet to appoint a director for the DEA. Bush appointee Michele Leonhard is the acting director.

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Likewise the Massachusetts law would regulate and tax marijuana. The Massachusetts law, if passed would raise $100 million for the state coffers. Not only would the legalization of marijuana allow the states to collect significant taxes on it sale but it would also save the states significant money now used to enforce the marijuana laws. Both states would allow those over 21 to use marijuana. Marijuana would remain illegal, at least for the time being, under Federal law.

California has been a leader in the medical marijuana movement since the 1996 passage of Proposition 215 and currently collects 20 million dollars in sales tax on medical marijuana sales.

Prior to 1937 marijuana was legal in the United States. But shortly after the end of prohibition 1n 1933, Congress passed an act making it illegal. But despite hundreds of thousands of arrests the government has not been able to prohibit the use of marijuana and its use continues to grow.

Just as no one in the 21st century would advocate the prohibition of alcohol, the prohibition of marijuana should be abolished. Both drugs if used in excess can result in considerable harm but criminalizing the use, possession and sale of these drugs does not result in any benefit to society. In fact criminalization has only resulted in increased use. Hopefully some of the money saved from the decreased cost of prisons, lawyers, judges, police, and other related criminal justice expenses as well as some of the money collected in taxes on marijuana can be used to treat those who use it excessively.

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