Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Here's a story at IndyBay about a sheriff raiding the home of a 90 year old couple who were growing pot legally under California's medical marijuana laws and seizing all their money without arresting them or charging them with anything.
But most medical marijuana cases go through a harsh criminal justice process--where justice consists of intimidation, coercion, asset forfeiture, over-charging, seizure of kids and other threats where it hurts most--that brings many innocent people to their knees accepting some sort of guilt when what they did was legal--an innocent medical act.Whereas many previous bogus cases have been brought against young people who are able to sustain a court fight, such as Laura Hamburg, there is a trend toward targeting the elderly as the most vulnerable of the low-hanging fruit--the poor, the ill and the elderly.
For example, the 90-year-old couple, Lester ("Smitty") and Mary Smith--who were raided at their Philo home last week (9.24.08) with law enforcement seizing their life savings and all their plants in the process--are qualified patients with doctors' approvals and did nothing wrong.
Smitty said, "I wasn't worried a bit. I knew it was legal. I planted six plants two years in a row and this year, I planted 17 for me and Mary. That's not too many is it? My wife is very ill, confined to a wheelchair or recliner. She likes the bud tea. She has severe arthritis. It makes it easier for her to get around. She walks easier; she can walk to the bathroom even by herself."
Smitty has health issues too. "I have heart problems, blood clots, stomach cramps, emphysema, bad hips. I've had a heart attack. I sometimes get strong chest pains and can't breathe right. I take nitroglycerine. That brings me back. My doctors want me to take more x-rays here locally but that would be a big expense. Usually, I go to the Veterans Hospital and they pay for it."
Mary Smith was forced to stay in the house by herself during the 5-hour raid while additional warrants for an adjoining parcel were telephoned in and delivered, allowing sheriff's deputies to enter all the residences.
The elderly Smiths were not arrested or charged with a crime, because there was none. Sheriff's deputies were apparently more interested in robbery than arrest (excuse my french). They seized the two things that mattered most to the ill couple--their medicine, all 17 plants, leaving nothing--and their life savings, $52,000 from Mary Smith's inheritance and $29,000 in cashed in CDs.
"As soon as the bail-out hit, I cashed in my CDs and put the money in a safe in my house. I did not sell pot to get it. But turns out my money was not safe. They stormed in here and turned our world upside down. I thought I was legal."
And the craziest thing about all of this: the burden of proof is now on the victims, not the police. They have to prove that the money that was seized was earned legitimately rather than the burden of proof being on the government to prove that it was not. This is blatantly unconstitutional. And let's not forget that the author of the law that allows this and the most enthusiastic advocate of asset forfeiture laws is Joe Biden.
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A few years ago, my father was trying to convince me that legalizing drugs (especially ones like marijuana) was the only sane thing to do. I argued with him at the time, but since then I've come to realize he was absolutely right.
This is utterly insane.
On another note, could we get a link to the asset forfeiture law that Biden authored? Because I seem to have missed that and I'm disappointed to hear about it.
Posted by: Mara | October 19, 2008 9:53 AM
A few questions from outside of the US: wouldn't asset forfeiture require a conviction first? If so, what does this law have to do with a case where no charges were even made? If not, how was that law ever considered to be constitutional in the first place?
Posted by: Beowulff | October 19, 2008 10:27 AM
What most Americans fail to understand is that cannabis prohibition itself is more harmful to our society than cannabis use. Prohibition has created drug cartels, corruption, turf wars, police militancy, unjust property seizures and many other evils. This is a repeat of alcohol prohibition. The only difference is that cannabis prohibition is worse because it's lasted for 72 years. Giving drug cartels the opportunity to become ingrained in the very fabric of our sociey and economy. But, the legalization of cannabis will come. Only 11.2% of Americans believe the 'War on Drugs' is working (2008 Zogby Poll).
Posted by: Mark Entry | October 19, 2008 10:35 AM
Maybe I'm missing something here but the article seems to indicate that the bust was made by sheriffs deputies. Just what law were the authorities enforcing here? The law Biden authored is a federal law which I would assume would be enforced by DEA agents or the FBI. Is there a state statute or local ordinance pertaining to pot smoking?
Posted by: SLC | October 19, 2008 11:51 AM
That in and of itself wouldn't be so bad, if the burden of proof was on the govt to prove the assets were seizable. But under current laws the burden of proof is on the defendants to prove the assets are legitimate. Total bullshit.
I still think asset forfeiture is important tool to keep criminals from profiting from their crimes. Otherwise you could embezzle a million dollars, do your 12 months at Club Fed, and still keep the money when you get out. But the way the current laws are written - and the way they've been used in the drug war - are absolutely broken.
Local law enforcement can (and arguably are required to) enforce Federal laws as well as state/local laws. However, any criminal charges would have to be filed in Federal court.Posted by: WScott | October 19, 2008 12:10 PM
One other thought: Federal asset forfeiture law (don't have the site handy) at least states that all proceeds go into the general tax coffers. Many state asset forfeiture laws allow the seizing department/agency to keep the assets for their own (official) use. Conflict of interest much?
Posted by: WScott | October 19, 2008 12:15 PM
WScott: thanks for your answer. But even as a civil measure, wouldn't asset forfeiture not at least require a (civil) court ruling? Or is it even more broken than that?
I agree that asset forfeiture in and of itself is not a bad idea, under the quite reasonable principle that people shouldn't benefit from their crimes. But if this is how that principle really is implemented, this law starts to sound more like something from a George Orwell novel than something that was passed as constitutional.
Posted by: Beowulff | October 19, 2008 12:34 PM
This is an interesting twist on Denzel's role in Training Day.
He [Denzel's character] then illegally searches Sandman's home and steals thousands of dollars in the presence of Sandman's wife (Macy Gray) and nephew.
I've seen the movie a couple of times not realizing it was a documentary.
Posted by: jimmiraybob | October 19, 2008 12:35 PM
Beowulff: No, it's more broken than that. I believe (?) the police need a judge's order, but no actual court hearing. If the individual wants to contest the seizure, it's up to him/her to initiate court proceedings.
jimmiraybob: The difference, of course, is that what Denzel did was illegal. This, unfortunately, is legal.
Posted by: WScott | October 19, 2008 1:38 PM
This incident of a local law enforcement agency acting on the basis of federal law, where the action was legal under state law, is just another example of someone in authority getting a hair up their ass over something that just doesn't concern them. It reminds me of the high school vice principals getting all worked up over somebody wearing loose pants.
I'm a homebrewer, which is perfectly legal. Nevertheless, I have heard of ignorant cops beating down doors and seizing wort chillers claiming that they were condensers for stills.
Posted by: BaldApe | October 19, 2008 1:58 PM
As for Biden's role in asset forfeiture, see The Civil Asset Forfeiture Reform Act of 2000 (HR 1658).
He was also the principal author and sponsor of the legislation that created the ONDCP and the office of the 'Drug Czar'.
Posted by: Burrow Owl | October 19, 2008 2:10 PM
For more info on asset forfeiture:
http://www.fear.org/
Posted by: Burrow Owl | October 19, 2008 2:13 PM
RE: Biden
Also see The Crime Control Act of 1993
Posted by: Burrow Owl | October 19, 2008 2:24 PM
I agree with SLC. If these are local cops and if state law allows medical pot usage, then I don't think that the cops have much of a leg to stand on.
Posted by: Reed A. Cartwright | October 19, 2008 3:04 PM
WScott,
Asset forfeiture laws are not necessary to deal with the case that you mention, of an embezzler serving his time but getting to keep the money that he embezzled. First, even before asset forfeiture laws existed, judges had the power to order restitution to the victim as part of the sentence. That isn't what asset forfeiture is about. Asset forfeiture is about seizing the profits from a criminal activity that may not have taken anything away from anyone. Second, with asset forfeiture, the government does not have to prove that the assets seized were the result of criminal activity. It seizes them first, then puts the burden on the owner to prove that they were innocently acquired. In contrast, the embezzler can only be ordered to pay back the money he embezzled if he is convicted of embezzlement.
Posted by: Bill Poser | October 19, 2008 3:10 PM
But even if you're right and restitution is the answer, that still only applies primarily to crimes where there's a clear theft. Say Joe Slime gets rich selling kiddie porn. He hasn't actually stolen anything, and his customers obviously aren't coming forward to ask for their money back. So he (or his family) gets to keep his dirty money.
Once again, I'm not defending the way these laws or written, or the way they've been perverted under the name of the drug war. I agree with the second half of your post completely. But the basic concept of preventing criminals from keeping the profits of their illegal activities is still a valid one IMO.
Posted by: WScott | October 19, 2008 4:22 PM
WScott:
To the best of my knowledge, asset forfeiture laws aren't necessary in the child porn case - It was probably well established judicial principle (via common law if nothing else) that criminals are not allowed to profit from crime, and thus upon conviction it would be possible to force forfeiture to the state (as a crime against the public, the worth of which being determined by how much profit he made in accordance with economic theory) or the family an amount equal to or greater than (punitive costs, interest, inflation..) the profit made. (I could be wrong - IANAL and all that)
Posted by: dreikin | October 19, 2008 8:13 PM
WScott,
It seems to me that the cases in which restitution to the actual victims is not possible and in which you therefore argue for asset forfeiture consist exactly of the sorts of activity, pornography, gambling, drugs, the criminalization of which only makes things worse and leads to violations of civil liberties. If that is the case, I think I'd rather say lets rid of these "crimes" and dispense with asset forfeiture.
Posted by: Bill Poser | October 19, 2008 11:14 PM
I know I've taken heat here for not being for legalization of pot but legal or not, this is just plain wrong.
I'm to a point (daughter independent, pay a few hundred more than I need each month) where I plan to save a lot of money between now and my few remaining years to retirement to have a little bit of a nest egg anyway. One has to wonder if there's any point in being thrifty and doing so instead of living high off the hog until I'm on that fixed income if the government can just come in and legally mug without having to show just cause.
And, yeah, I know, thus far, it's for something I don't do but, hell, if they get away with it for this, when can they drum up something to take mine. Between this and being able to employ emminent domain and take peoples homes for rich developers instead of needed roads and such, what's the point of being sensible?
Besides, given the bailouts, seems we currently live in a society wherein you are punished for being sensible and rewarded for being an irresponsible jerk.
Posted by: T's Grammy | October 20, 2008 8:18 AM
@BIll Poser--
I'm not a big fan of the way asset forfeiture laws are currently written or enforced either, but in the case of child porn you can't seriously say it should be decriminalized. Unlike adult porn, child porn involved people who aren't able to sign contracts or give consent. Inthat case, restitution to the victims may or may not be possible, but I certainly would have no problem with seizing the profits post-conviction.
These issues aren't so black and white, you know. There is a difference between the effects of drugs such as marijuana and nicotine and heroin, just like there is a difference between aspirin and the drugs used in general anesthesia, and as such they should be treated differently. There is a difference between two guys betting in a bar their $10 on the World Series and someone who has 100 bets going on. So many things that are criminalized I think might be placed in the category of stuff that should be in civil proceedings, like parking tickets. Or there just needs to be a push for reform so drug laws can be more flexible, with an emphasis on harm reduction.
@drelkin -- nobody uses economic theory to calculate the worth of assets in a criminal case. It tends to be all-or-nothing. Like, when the Anguilo family head got convicted, he lost a chunk of assets (largely due to legal costs) but the stuff that was seized was directly related to the crime (this was back in the 80s) and there was otehr stuff that we all knew was paid for by extortion and such but couldn't be touched because it was in someone else's name or there was a good job of money laundering done.
That's part of the reason asset forfeiture laws were passed in the first place -- to stop people from legitimizing assets gained by criminal activity. (Somewhat similar to laws prohibiting profit from criminal activity, like when a guy writes a book. I have bigger issues with that, actually, but they are different issues). It has since been co-opted by the drug warriors.
Posted by: Jesse | October 20, 2008 9:21 AM
dreikin: IANAL either, but to the best of my knowledge (having studied the issue a fair amount) the only way to "force forfeiture to the state" is through asset forfeiture. And real lawyers want to comment?
BIll Poser, I tend to agree with you about "victimless" crimes in general. (Tho Jesse is right that kiddie porn is far from victimless.) But there are still plenty of illegal ways to make a buck besides up-front theft.
Posted by: WScott | October 20, 2008 9:45 AM
I find it a bit ironic that I'm not voting this year based on the presidential candidates, but rather their running mates.
I can't decide who scares me more: Sarah "End Days", dinosaurs-walked-the-Earth-4000-years-ago Palin, or Joe "Drug Czar", everyone-had-a-television-during-the-Depression Biden.
Posted by: Rickshaw | October 20, 2008 12:13 PM
@Jesse,
Yes, I am seriously in favor of the legalization of child porn. I know that sounds outrageous. First, let me be clear as to what I propose: I propose the repeal of all laws outlawing the possession and distribution of child porn, and the repeal of laws outlawing the making of child porn, insofar as the making does not not violate other statutes. I do not propose the repeal of laws outlawing the sexual abuse of children. (In fact, I disagree with the Supreme Court on child rape. I favor the death penalty for child rape.) Making child porn by filming actual abuse of children would remain illegal.
The problems with outlawing "child porn", where "child porn" means "those depictions of children that might serve the fantasies of adults interested in sex with children", are manifold. For one thing, the class of images thus defined includes images that are quite innocent for everyone else. A picture of a naked toddler at the beach may be fantasy material for a small percentage of whackos but is a bit of family history for everybody else. Some whackos are going to get off on the pictures of little girls in bathing suits and underwear in the Sears catalog or of naked kids in a village in the Amazon in the National Geographic. If child porn is defined broadly, as it is, you have to outlaw all sorts of innocent images. Recognizing that many of them are innocent doesn't work because it gives prosecutors and police too much discretion, which they can and will abuse.
Second, outlawing child porn leads to massive violation of civil liberties. The only way to control pornography is to engage in massive surveillance of communications. It means pawing through people's laptops when they enter the country and inspecting the data packets as they move over the internet.
Third, the making of most "child porn" does not involve the abuse of children. Most child porn does not depict sexual abuse. Taking pictures of naked or scantily clad kids is not inherently abusive. The creation of purely artificial depictions (painting, drawing, animation, etc.) clearly involves no abuse since no actual children are involved.
Fourth, the claim that providing material for the fantasies of people with a fixation on children leads them to take action in real life is extremely dubious. At best, there is no real evidence for it. Indeed, it is very likely that the opposite is true, that, statistically, feeding the fantasy via images makes it less likely that people so inclined will act out their fantasies in real life.
The only argument that makes any sense at all is that if child porn is legal that will increase the market and thereby provide greater encouragement to its makers. Under some circumstances, this might be true, but in practice it is questionable. First, since it is so difficult to control child porn, it isn't clear that legalization would result in a significant increase in demand. Second, even if demand is lowered by illegality, illegality significantly increases the price per unit, so making child porn is probably more profitable when illegal than it would be if illegal, and it is the profit to be made, not demand per se, that motivates producers. Third, if child porn were legal producers who wanted to avoid criminal penalties could produce synthetic porn, which involves no abuse of children. As it stands, they don't gain much from going the synthetic route.
So, what we've got is a situation in which the law makes illegal a large class of images many of which are quite innocent, and thereby justifies massive violations of civil liberties and puts innocent people at risk of prosecution. The creation of most of the images in question, even those that are not innocent, causes no harm to children. The creation of the small class of images that involve actual abuse is illegal without child porn laws because the abuse is itself illegal. There's no evidence that the circulation of child porn increases the rate of actual child sexual abuse: it may actually decrease it. The large amounts of time and money that go into child porn investigation could be better spent on investigation and prevention of actual child abuse and more generally, on child welfare services. On balance, therefore, society would be better off without child porn laws.
Posted by: Bill Poser | October 20, 2008 1:40 PM
@BIll Poser--
You realize that the courts have already ruled that child porn that doesn't involve real kids is legal -- so your hentai collection is safe. (Otherwise every Japanese language manga outlet would get raided).
That said, yes, some people get hit up for taking nude pictures of their kids. But the reality is that most prosecutions never get that far. In most places the law is pretty specific. (In Britain in particular it isn't, though there is some precent for parsing between what was for sexual use and what wasn't).
The law doesn't say that you can get arrested for getting off. The law says that if you make images depicting kids in sexual situations that's a crime.
The reason people draw the connection between child porn and abuse is that if you are actually abusing children, and you sell more of the stuff (or make more) then by definition you abuse more children in the production process. Just like with regular porn -- if I sell 10,000 Girls Gone Wild videos I'm going to go produce more, involving more women. The difference is that adult women can consent to this kind of thing. Kids can't. it has less to do with whether child pornography causes abuse in the hands of the user. It has to do with the production.
I'm not saying the current legal structure is perfect. But you have to have something that chokes at least a little of the demand, or people would simply go to other jurisdictions -- as they do in Costa Rica and Thailand. By going after the demand side, at least to some extent, you increase the costs of doing it and make it so that you have to violate the law more obviously.
One example is section 2257. You see this disclaimer a lot -- it just means that if you make porn you must keep records of people's ages with real contact info. If you have the records, you're off the hook. But you also have to make sure you have access to similar information from sites you link to and people you buy from. That way you self-reinforce the production end. Getting around it would require a lot of work that most porn producers (who are in it for the money) aren't willing to do when keeping the IDs on file is simpler.
Like I said, the situation isn't perfect. But you have to attack both sides of the problem. Most of the investigations that get started are aimed at tracking down the producers and distributors, not just the users, and going after them when and where possible.
Posted by: Jesse | October 20, 2008 4:00 PM