Articles Posted in Maryland Legislature

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weed4-300x194Lawmakers celebrated the end of the state’s annual legislative session with balloons and confetti falling from the ceiling, but despite hundreds of passed bills not all elected officials left Annapolis feeling a sense of accomplishment. There were a few criminal law bills that passed the General Assembly including a measure that will classify human trafficking involving a minor as a sex offense, which will require a defendant to register upon conviction. In addition, lawmakers passed several bills taking aim at the heroin epidemic, a battle that the governor has greatly emphasized. But as has been the case for the last five years, marijuana once again dominated the criminal law headlines, and arguably stole the show for the entire legislative session. The irony in all of this is that medical marijuana is already state law, and has been for a few years now. Despite the lack of groundbreaking news on the topic it just keeps sparking intense debate, and this year the debate may continue even after the official end of the 2017 session.

Several lawmakers have called for a special legislative session to take place in the next few weeks to shore up contentious issues that could further delay the launch of Maryland’s medical cannabis program. Although registration for the program has already opened, with some 1,200 patients registering last week and more than 250 doctors signing on, medical cannabis is unlikely to be available by the September target date. There remain two disgruntled growers with pending litigation against the state after their applications were approved and then curiously dropped by the committee. In addition, democratic lawmakers are still pushing hard for the state to add five more licensed growers to the list of fifteen, which would include those with minority ownership. These House lawmakers tried until midnight on the last day of the session to convince their colleagues in the Senate to add more growers, and some even agreed to license the two growers that are suing, but time ran out before an agreement was reached.

Despite zeros on the clock, some lawmakers feel they still have a shot to increase the number of growers by calling a special legislative session. A special session may be called by the governor or a majority of lawmakers, and would likely last just one day. But before a special session could take place there would likely have to be some sort of agreement on whether to include the two disgruntled growers in the additional licenses. Right now though the House Speaker does not believe the legislature should take measures to help two specific private companies, and in direct contrast the Senate President believes that helping these two companies is crucial to launching the medical marijuana program within a reasonable amount of time. As the Blog has stated in prior posts, a simple way to avoid the contentious debate and imminent delay would be to eliminate the cap on the number of grower licenses. All qualified applicants should be allowed to profit off of the medical cannabis program, and the increased tax revenue and licensing fees would afford the state the additional resources to regulate all of the growers. There is no logical reason for an arbitrary cap, but as we all know there is little logic in politics.

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handgun-231699_640-300x169Marijuana grabbed many of the criminal law headlines over the last few state legislative sessions, but this year it has taken a back seat to other pressing issues such as prescription narcotics, heroin and firearms. We recently posted about proposed bills targeting heroin dealers and there has been heated debate about potential laws designed to limit the amount of prescription pain killers a patient may receive. While the fate of these bills remains to be seen, there are also multiple guns bills that have recently appeared on the House and Senate floors in Annapolis.

The first bill is an attempt to alter a strict state law prohibiting the possession of firearms on public college campuses. As it stands now any person arrested for possessing a handgun at a state university or public school faces a felony charge with a 3-year maximum jail sentence. Possession of a knife or other deadly weapon on school property is a misdemeanor, albeit with the same maximum punishment. The new bill would alter the statute by eliminating the possibility of a felony charge for a person caught possessing a handgun on a college campus. Rather, this offense would become a civil infraction only punishable by a fine of up to $1,000 come this October year if the bill passes. The changes would not apply to gun possession at a public elementary, middle or high school.

A civil citation for possession of a handgun on a public college campus would be handled in the same manner as a citation for offenses such as possession of alcohol by a minor, or using a fake ID. The defendant would be summoned to appear in court, and failure to appear could result in the issuance of a warrant. Failure to pay any fine imposed could result in the defendant being held in criminal contempt of court. Despite these possible sanctions, which can include jail time, this type of citation is not criminal and may not be considered a criminal conviction if the defendant is found guilty. On the other hand, if these citations are not expunged they will be accessible to the public and negative collateral consequences could follow. This is in contrast to the marijuana civil citation statute, which does not permit public access on casesearch and at the courthouse. Defendants would be entitled to have an attorney present at court hearings for these citations, and the prosecutor could elect to place the case on STET or enter a nolle prosequi pursuant to an agreement.

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football-1503586_1280-1-214x300There are two illegal recreational activities that a large majority of the adult population feels should be allowed, and if and when this happens the state stands to rake in millions of dollars in new tax revenue. The first is recreational marijuana use, which is now supported by over 60 percent of the Maryland population according to the latest polls. The actual percentage of those in favor of legalizing pot is probably closer to 70 percent as many young adults do not participate in these polls. We previously posted an article about legislation to legalize recreational marijuana use, and will continue to follow its progress. The second illegal recreational activity currently being debated is sports gambling. You don’t need a poll to tell you the majority of adults support sports gambling- all you need is common sense. Every law office or other workplace with more than a few employees has a Super Bowl or March Madness gambling pool, and most have fantasy sports leagues that play for pride and more importantly money. Americans wagered an estimated five billion dollars on the Super Bowl this year, and since Vegas has the only legal sports books, over 95 percent of these bets were illegal. Bottom line is that the people want to bet on sports, and are doing it regardless of whether it is legal.

March Madness brackets and Super Bowl box pools are generally reserved for casual fans, some of which would not otherwise follow the games. This type of betting is safe and is of little or no concern to law enforcement. But regular betting on the outcome of games is a different animal. Bettors are required to use bookies or use offshore betting websites in order to place illegal bets, and there is no security or regulation within this industry. Bookmakers often take bets on credit and charge exorbitant interest or juice when their money is not paid on time. Offshore betting websites can disappear or be shut down at anytime, and bettors could lose their profits without any legal recourse. On top of all of this, the state is making absolutely no tax revenue on this activity, and to the contrary is forced to use justice system resources to attempt to police these illegal operations. The simple alternative is to legalize, tax and regulate sports gambling, and thankfully the Maryland legislature is about to take a big step in this direction.

House Bill 989 is set to hit the floor in Annapolis on March 1st, and if approved would establish a task force to study the federal climate on sports gaming and then make recommendations for how to implement it. The task force would be made up of members of the State Senate, the House of Delegates and members of the State Lottery and Horse Racing groups. The members would reports their findings and recommendations to the Governor on December 1st of each year. Fantasy sports gambling and betting on horse racing is already legal in Maryland, and the lottery advertises like crazy to get us to buy Powerball tickets and scratch offs. The lotto has even installed automated machines in many convenience stores to make it extra easy to take our money. There is simply no logical argument to be made against legalizing sports gambling, and thus there are obvious parallels to legalizing recreational marijuana. Let us just hope that within a reasonable time frame both become legal, taxed and regulated.

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Lawmakers are set to debate at least two new bills in the coming weeks aimed at combating skyrocketing narcotic overdose numbers. The first bill, which was introduced by delegates from Harford County and Anne Arundel County, would add a separate crime to the books targeting distributors of heroin and fentanyl. If House Bill 612 becomes law it would punish those found guilty of supplying the heroin or fentanyl that results in a deadly overdose. As it stands now the law would carry a 30-year maximum prison sentence, which could be imposed in addition to a sentence for drug distribution. There is an immunity clause within the statute that would apply to anyone who provides assistance for a person who is experiencing a medical emergency after using these two dangerous drugs. Any information given to medical providers by a person that supplied the heroin or fentanyl would be inadmissible, which in theory would serve to dissuade those from failing to render aid to an overdose victim out of fear of prosecution.

This new law could be effective provided that the law enforcement and state and local health officials get the word out about its existence. It may cause some drug dealers to think twice about selling heroin or fentanyl, which would be a win for lawmakers. As a practical matter though, the law probably would not have much of an effect in the courtroom. A person who is arrested for supplying illegal drugs that result in a deadly overdose already faces a 20-year maximum penalty for distribution of narcotics. And a judge would certainly take into account the fact that someone died as a result of the defendant’s conduct, making a lengthy prison sentence likely even without the new law. In addition, a state’s attorney could elect to charge the dealer with manslaughter and or reckless endangerment, which is a general crime that is defined as engaging in conduct that causes a substantial risk of death or serious injury to another. Manslaughter carries a 10-year maximum penalty while reckless endangerment carries 5 years, and these sentences could be consecutive to any sentence for drug distribution. Some jurisdictions such as Worcester County have already tried and convicted drug dealers for manslaughter, but House Bill 612 would achieve the same purpose while presenting less of a challenge to prosecutors.

In the coming weeks we may also see a law hit the State House floor in Annapolis that would limit narcotics prescriptions to a seven-day supply. There would definitely be exceptions for patients experiencing severe symptoms from certain terminal and long-term illnesses, and there may be other exceptions as well. This proposal, which came from the governor’s office, aims to limit the excess amount of prescription narcotics on the streets. Patients suffering from chronic pain are able to easily secure prescriptions for hundreds of narcotic pills per month, and many illegally sell some of their supply in order to fund their addiction. Others simply have a hard time keeping track of their medications and become victims to thefts by burglars, home workers, houseguests and even family members. Maryland would not be the first state to pass a law restricting opioid prescriptions, as at least seven other states already have strict laws on their books. The Blog will continue to follow the progress of these two proposals, and we may post a follow up article in the coming weeks, so stay tuned.

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cannabis-1418339__340-300x290Medical marijuana has made frequent appearances in the local news headlines over the last few years as the program has been wrought with controversy over long delays and alleged unfair awarding of grower licenses. Litigation further threatens a successful launch of the program within the next year, but there is a sleeping giant lurking that could render all the back and fourth of the last three years moot. Legalizing marijuana would instantly make an afterthought out of the medical marijuana program, which would essentially become the minor leagues. While marijuana has numerous legitimate medical uses and can work wonders for patients, a large portion of the medical card holders will inevitably be made up of recreational users who obtained a card to be able to legally do something they enjoy.

There is no way hundreds of investors would put up millions of dollars to chase massive profits if their customer base was limited to those with an actual medical need for pot. The second marijuana is legalized most users will have no use for the medical program, save for the few diehards that would keep or obtain their cards to have access to a wider range of products at a cheaper price like in other states. It now seems as if Maryland is finally about to take the first step toward making legalization a reality.

This week lawmakers from both the Senate and the House of Delegates are expected to introduce legislation aimed at regulating and taxing the legal sale of recreational marijuana in Maryland. It’s a step that should have been taken years ago had lawmakers not been preoccupied with righting the sinking medical marijuana ship. The bills are currently in the process of being drafted, but they will likely consist of regulations similar to those currently in place with respect to the sale and consumption of alcohol. The age to legally use pot would be 21 and it would be illegal to consume it while driving. Adults could possibly be allowed to grow their own plants but there would be a likely cap of 6 plants with 3 being mature, and prior convictions for possession over 10 grams would be eligible for expungement. A separate law will likely be dedicated to taxing pot sales, with the State Comptroller’s Officer being tabbed with that responsibility. As much as half the profits from tax revenue could go toward public school funding, with other portions going to drug treatment and DUI prevention and education. The tax rate could be similar to the 9 percent rate currently in place for alcohol.

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elections-1527438_1280-300x300The 2017 Maryland legislative session began this week, and one former delegate probably wishes he took part in the opening day festivities. But instead of shaking hands and schmoozing in Annapolis, a former lawmaker from Prince George’s County spent the first part of his New Year inside a Greenbelt courtroom. This week federal prosecutors announced a recently unsealed guilty plea by a former state and local politician who served 10 years as a PG county councilman before being elected to his most recent position as a state delegate in 2014. His stint as a state lawmaker didn’t last long after he unexpectedly resigned just one year after taking office, and now there is a good explanation for the sudden resignation. It turns out that the feds had been investigating the 42-year old Hyattsville man for a few years, and their investigation culminated in the recent guilty plea to conspiracy and bribery. Federal prosecutors revealed that the man had accepted an estimated $40,000 in return for political favors, most of which had to do with his power over the allocation of public funds earmarked for his district. The illegal activity was not confined to one or even a couple transactions, but rather a course of conduct that was anything but isolated. The multi year public corruption probe that uncovered the former delegate’s misdoings also implicated two members of the county’s liquor board and two local businessmen. Undercover FBI agents made numerous deals with the politicians that included cash payments for the promise of favorable treatment.

Each of the dirty politicians and their private citizen cohorts are being prosecuted federally by the United States Attorney’s Office for the District of Maryland. While the Blog has recently published a few articles about this office pursuing relatively small time gun and drug cases, public corruption and other white collar crimes are the U.S. Attorney’s bread and butter. State law enforcement and prosecution offices simply do not have the resources and perhaps the patience to execute multiyear public corruption investigations. On top of that it may be near impossible for local law enforcement agencies to keep these kinds of complex investigations under wraps, especially when they involve politicians holding office in their own jurisdictions. After all, state’s attorneys and even police chiefs are politicians too. But these cases are right in the FBI’s wheelhouse, and the federal prosecutors who eventually take over their cases have a great deal of pride in exposing crooked state and local politicians. We only wish the two could collaborate with as much success against federal politicians, who are rarely exposed.

The Blog will continue to follow this public corruption case and other similar cases that develop in the future. It seems as if this particular defendant cooperated with federal authorities and as a result will likely receive a more lenient sentence. Authorities have not stated exactly how the defendant cooperated or whether his cooperation directly led to the charging of the liquor board members, but we will post if this information comes to light. The former delegate faces up to 15 years in prison when he goes before a federal judge at his April sentencing hearing, and he has already agreed to pay $340,000 in criminal restitution.

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thirteen-bags-of-marijuana-found-in-taxi-cabAs states move toward placing marijuana policy in the hands of voters and for the most part legalizing it, Maryland is still stuck in the dark ages where pot ties up court resources, and has lawmakers and lawyers up in arms. Medical marijuana has already invaded the civil courts, as multiple lawsuits over the grower licensing system are pending. And while we are seeing a significantly lower amount of marijuana cases prosecuted since possession under 10 grams became decriminalized, pot is still a common cause of litigation in criminal courts. Not only are there still numerous new cases filed each year for criminal possession, manufacturing and distribution of marijuana, but there are also a host of new legal issues involving law enforcement search and seizures.

When the legislature decriminalized simple possession it immediately created a grey area for probable cause searches under the Fourth Amendment. Normally a police officer is justified to search a person and his or her automobile if the officer gathers information that objectively leads to the conclusion that that a crime has likely occurred. This, save for a few minor twists, is probable cause in a nutshell. The Maryland decriminalization law left a major ambiguity in whether the discovery of a non-criminal amount of marijuana would justify a broader search of the suspect and his or her car. These broader searches usually turn up other evidence such as narcotics and firearms, which is why the issue is far reaching. We’re not just dealing with pot cases here. In fact, the Court of Appeals in Annapolis recently heard oral arguments on three cases where officers conducted Fourth Amendment searches based solely on the odor of marijuana. The trial courts and the Special Court of Appeals all ruled in favor of the prosecution that the searches were valid, and now the highest court will issue their opinion in the next few weeks.

Defense lawyers and civil rights advocates have argued that smelling burnt or raw pot, or finding less than 10 grams of it without more does not rise to the level of evidence that a crime has occurred, and would not justify a broader search. Rather, an officer who smells or recovers a non-criminal amount of pot must issue a civil citation, confiscate the weed and move on.  The government has argued that no amount of marijuana is legal in Maryland, and therefore police are authorized to search for and seize anything unlawful. The government has emphasized that a civil offense is still an offense, and the fine for simple possession is used to punish unlawful behavior. An assistant attorney general also argued that presence of the drug is enough evidence to provide officers with probable cause that more will be found, an argument does not seem to have any sort of factual basis.

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weed4Medical marijuana has had a tough time catching on in Maryland as roadblocks have sprung up each step of the way. First the legislature failed to craft a legitimate medical cannabis program, and a year later when a real program arrived they failed to adequately fund a commission to draft its rules. Then the underfunded and inexperienced commission drastically miscalculated the number of expected grower and distributor applications, which lead to massive delays in the awarding of licenses. When the licenses were finally awarded three potential growers sued for unjust denial of their applications, and their cases are pending in court. Many of these roadblocks were predictable, and could have been avoided with greater cooperation among politicians and more resources dedicated to the launching the program. However the latest roadblock was not expected and could end up disrupting the medical marijuana program if and when it finally gets rolling.

A public records request revealed that only 172 Maryland doctors have signed up to potentially prescribe medical marijuana, which translates to about 1 percent of the 16,000 docs practicing medicine in the state. State officials are concerned that the lack of prescribing doctors could cause a serious bottleneck in the process of getting medical pot to the patient. We will certainly have enough growers, distributors and buyers, but the chain is not complete without the doctors writing the scripts. Potential patients could be forced to wait weeks or even months to see a doctor, and the huge numbers game could cause these doctors to fly through screenings at a pace similar to the pill mills that lawmakers and medical boards are trying to eliminate. Officials at MedChi fear that the end result will be the medical marijuana program becoming a façade for recreational use, as doctors with long lines of patients will be ill prepared to distinguish those with a medical need from those who simply want to enjoy high quality pot.

Once the program gets going there will likely be more doctors jumping on board. The free market will work itself out and doctors will eventually see the positives in running a lucrative and legitimate business that does not involve being on call at all hours of the night. An influx of new doctors who are more open to alternative types of medicine will also be more likely to stand behind the benefits of marijuana and less hesitant to prescribe it. A lack of doctors is not likely to be the downfall of the state’s already troubled medical marijuana program, as legalization will eventually be the kill shot for medical pot. Patients who benefit from ingesting cannabis may have to jump through hoops and wait in long lines for a year or two in order to legally obtain relief, but the day is coming when a trip to the dispensary and a valid ID is all it will take for access to all forms of cannabis. The federal government may be slow to change its designation of marijuana as a schedule 1 controlled substance, but the new administration will let the states decide their own pot policies. The people have spoken in influential states such as California and Massachusetts and it’s only a matter of time before the issue goes to a vote in Maryland.

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packs-163497_1280Despite years of scrutiny and two legislative task force inquiries the Maryland cash bail system has remained untouched. Thousands of defendants sit in jails statewide for months on end awaiting trial simply because they cannot afford to post bail. Many end up being released after their cases are dismissed, and others remain until accepting a guilty plea to time served or probation. In some cases the bails set by court commissioners or judges are exorbitantly high and in other cases the defendants simply cannot scrape together any amount of cash or collateral for a bail bondsman. The bail bond industry has been raking in profits for decades by preying off the desperate desire of defendants to get out of jail, and the industry’s hefty contributions to lawmakers have largely shielded it from reproach. But within the last month two influential members of the state’s legal community have spoken out against the current cash bail system, and their words have already translated to real change in the district and circuit criminal courts.

In mid October the newly elected Attorney General sent a memo to five state lawmakers declaring that judges and court commissioners must consider the defendant’s finances when determining an appropriate bail. The memo goes on to say that if bail is too high for the defendant the Court of Appeals in Annapolis would likely find it unlawful, and further states that an amount too high for the defendant to post would be excessive and a violation of Eighth Amendment of the United States Constitution. While the Attorney General’s memo was advisory and did not establish any type of rule of law, the Chief Judge of the District Court of Maryland took notice and sent a memo of his own. This memo instructs other District Court judges to treat monetary bail as a means to insure the defendant’s return to court, and not as a means to assure the public safety. Defense attorneys have been making this argument for years to court commissioners and judges across the state with little success. Too often our state judges use high bail amounts as a means to keep a defendant in custody pending his or her trial. These excessive bails are punitive and unconstitutional, but have become status quo in Maryland courts.

Excessive bails are set by judges and court commissioners all over the state, but this epidemic is particularly out of control in Baltimore City and to a lesser extent Baltimore County. Defendants arrested on drug charges such as possession with intent to distribute are often held on six-figure bail amounts, and end up paying thousands to bail bondsmen who lure customers with 1% down payment plans. It is not only drug charges that result in outrageous bail amounts, but also gun charges and alleged violent offenses where there is little objective evidence of guilt. The roots of the problem are the judges and commissioners that have been approaching bail hearings entirely wrong for years; they read the charges and set a bail amount solely on the alleged facts in the statement of probable cause. It becomes lost that defendants are to be presumed innocent at every step of the judicial process, including at a bail hearing.  But this finally appears to be changing as the Chief Judge’s memorandum is starting to show its influence in court. Defendants that do not pose a threat to the community and are not a legitimate flight risk are being released on their own recognizance. This falls in line with the least onerous means to assure the return of the defendant to court. Some defendants who are determined to be serious dangers to the community are being held in custody, but the judges are now putting their findings on the record, as instructed by the Chief Judge.

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marijuana-1281540_1280Just shy of ten years ago the Maryland legislature voted to legalize statewide casino gambling. The governor signed the gambling bill into law shortly thereafter, and three years later the first casino opened its doors for business in Cecil County. The five operational casinos in Maryland have generated over a billion dollars in revenue since 2010, and come December this number will increase dramatically with the opening of the massive MGM National Harbor Casino in Prince George’s County. Most would consider the casino program a success as thousands of jobs have been created to go along with the millions in tax revenue. While it took decades to pass legalized gambling, the process of turning a signed bill into an open casino progressed relatively smoothly, and was night and day compared to the state medical marijuana program’s progression from bill to pot shop.

The Blog has been extremely critical of the state medical marijuana commission moving at a snail’s pace to award licenses to grow and sell medical pot, but some of the blame should also fall on lawmakers. In 2007 when gambling became legal the legislature added four full-time members to the Maryland Lottery Commission to oversee the process of awarding casino licenses. The members were given a 2.3 million dollar budget, and were able to use this money to hire industry experts to help hammer out the licensing process. In contrast, the medical marijuana commission consisted of volunteer members and a $125,000 yearly budget. The committee members were not experts, and had no firsthand knowledge of how to create a medical marijuana program. There were doctors, lawyers and police officers but nobody even resembling a marijuana producer or distributor. Their paltry budget made it nearly impossible to hire experts from the private sector or from other states with existing programs, and the result is a medical pot program that has taken longer to get off the ground than the 25 other programs in the country.

The failure of lawmakers to appropriately equip the current commission stems from their creation of the bust that was the 2013 medical marijuana law. Lawmakers created the commission to oversee the original 2013 medical pot law, which only permitted the program to function through public and private academic institutions. The 2013 law focused on studying the effects of medical marijuana through the legal treatment of patients with cannabis, and relied on universities risking loss of their federal funding to research a theory that has already been proven (medical marijuana works). There were predictably no takers and a year later lawmakers created a legitimate program that would be run by private businesses, thus shifting the focus of the program from research to profit. The problem was that existing medical marijuana commission did not receive the complete overhaul it needed to account for this 180-degree change. Regulating numerous businesses that stand to make millions is an entire different animal than regulating a few universities that aren’t in it for the money.