Patrick Nightingale

Testimony before Democratic Policy Committee on Legalization

4-29-2019:
Patrick Nightingale was in Harrisburg to testify on behalf of full legalization Monday before the Democratic Policy Committee. Below is the full text of his speech.

TESTIMONY OF PATRICK K. NIGHTINGALE, ESQ. BEFORE THE JOINT SENATE & HOUSE DEMOCRATIC POLICY COMMITTEE

Good morning Senator Boscola, Representative Sturla and all of the members of the Committee.  Thank you for inviting me to submit comment on the issue of cannabis reform in the Commonwealth of Pennsylvania.  I am submitting my testimony in my capacity as the Director of the Pittsburgh chapter of the National Organization for the Reform of Marijuana Laws.  Professionally, I am a criminal defense attorney practicing in both state and federal court and a former prosecutor from Allegheny County.

Cannabis prohibition in Pennsylvania and, indeed, the nation as a whole was based on lies, racism and a political agenda that has resulted in hundreds of thousands, if not millions, of Americans being targeted, arrested, prosecuted and convicted merely for possessing a plant.  Altoona’s own Harry Anslinger, founding commissioner of the Bureau of Narcotics joined forces with William Randolph Hearst to demonize this scary new drug being brought across the border by dark skinned immigrants.  “Hemp” and “cannabis” were jettisoned in favor of “marijuana” to frighten white America.  His sensationalist testimony before Congress ascribed all manners of violent crime to “marijuana addicts” while Hearst’s newspapers screamed that cannabis was “an assassin of youth” causing unspeakable acts of violence and depravity.

President Richard Nixon argued that Controlled Substances Act was necessary to protect the nation from the evils of drug use and addiction.  But, as with Anslinger’s fabrications, the Nixon administration had another agenda.  According to Nixon’s Chief Domestic Policy Advisor John Erlichman:

“We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities . .  could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

             One voice of reason came from former Pennsylvania Governor Raymond Shafer, a Meadville native, who was tasked by President Nixon to assess the “danger” of cannabis.  It was temporarily placed in Schedule I pending the Shafer Commission’s Report.  Much to the consternation of the President, Governor Shafer recommended regulating cannabis use in a manner similar to alcohol and to not criminalize possession.  The Commission’s report was buried and cannabis has remained Schedule I ever since.

The effect has been profound.  Even today close to 20,000 Pennsylvanians are charged with possessing cannabis every year, more than all hard drugs combined. Pennsylvanians of color are charged 4 to 5 times more frequently than their white counterparts despite similar rates of usage.  A criminal conviction for a misdemeanor “small amount” can result in loss of employment, housing, educational opportunities and even the loss of custodial rights.

It is with this background that I urge you to support cannabis reform in the Commonwealth of Pennsylvania.

As my fellow witnesses speaking on behalf of Pennsylvania’s nascent medical cannabis industry can attest, the cannabis industry in the United States is expanding rapidly, bringing tax revenue and employment.  Auditor General Eugene DePasquale has estimated that a regulated system of cultivation and distribution could generate recurring revenue of close to 600 million annually.  As of 2019 the cannabis industry has created over 200,000 jobs and is one of the fastest growing industries in the nation.

Adult use reform must also include the ability of Pennsylvanians to cultivate cannabis for personal consumption.  We are very fortunate to have an effective medical cannabis program in Pennsylvania.  For some, however, the costs can be prohibitive.  It is heartbreaking to hear a patient say they are returning to prescription opioids because Oxycontin is covered.  Home cultivation will permit patients of limited means the ability to choose a non-toxic, natural treatment alternative.  Home cultivation is also consistent with individual liberty and basic individual rights and freedoms.  We are free to grow our own vegetables, brew our own beer and make our own wine.  Cannabis legalization should be no different.

Adult use legalization must also provide for “restorative justice” that will allow those with criminal convictions for cannabis related offenses to seek expungements and to have a path to employment in the cannabis industry.  Persons of color who have suffered disproportional must have a role moving forward as too often even minor possessory convictions have been used as a hard and fast barrier to employment.

I understand that my friends and colleagues in law enforcement have legitimate concerns about adult use reform.  They are right to express their concerns.  Fortunately, we have the ability to look at data from other states when weighing these concerns.

The Colorado Division of Criminal Justice published a report on the impact of adult use legalization in October, 2018.[1]  Relative to DUI it found:

  • DUI fatalities with active THC declined from 2016 to 2017 by close to 50%;
  • Cannabis only DUI remained steady at 7% of all DUI

While DUI fatalities with a detectable THC metabolite increased from 55 in 2013 to 139 in 2017 this is attributable to the fact that Colorado began testing for THC and THC metabolites in all DUI investigations.  Metabolites only cannot measure impairment and Carboxy THC can remain in the blood for days or weeks after consumption.  In fact, the Arizona Supreme Court found “metabolite only” DUI prosecutions to be a denial of equal protection for medical patients.

Relative to teen cannabis use, the Colorado report found:

  • The youth marijuana rate was at its lowest (9.1%) since 2007;
  • High school students reporting cannabis use was unchanged from 2005 – 2016;
  • Use by students 13 and under declined from 2015 – 2017

The “gateway drug” fallacy has often been cited and, indeed, embraced by those opposed to legalization as an accepted and well established fact.  It is anything but.  Correlation is not causation.  According to addictions professionals most who use and abuse controlled substances started with alcohol and tobacco use, but no one suggests that these substances act as a “gateway”.  Cannabis is the most widely used “illicit” drug in the world.  Were there any substance to the “gateway drug” myth we would expect to see a corresponding increase in hard drug use.  However, according to a 2014 report from the National Survey on Drug Use and Health the vast majority of cannabis consumers do not move on to other harder drugs.[2]

It is time to put the ruinous and racist era of cannabis prohibition behind us.  It is time to admit that prohibition was a deeply flawed policy that has caused incalculable harm, especially to persons and communities of color.  I urge you to give your full support to both decriminalization, which will shield 20,000 Pennsylvanians annually from the criminal justice system, and full adult use legalization which will usher in a new era of prosperity and liberty for all

Thank you for this opportunity to be heard.

Sincerely,
Patrick K. Nightingale, Esquire

 

 

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New Year, New Challenges

Cannabis legalization is front and center on many states agendas in 2019. Governor Tom Wolf is taking a serious look at the process but he certainly has a bit of a mountain to climb.

Pennsylvania is basically two states: Philadelphia and Pittsburgh on the ends and “Pennsyltucky” in the middle.

But even with that disparity, the tide is slowly turning, with over 60% of citizens in favor of some sort of legalization. It’s merely a matter of time until the republicans in Pennsylvania government recognize this is no longer a topic which can be ignored.

The state is in desperate need of revenue and cannabis can fill that void.

States like Colorado are seeing vast sums of money flowing in to balance budgets and expand things like education. It’s only a matter of time before Pennsylvania politicians get the message.

We will continue working to bring about the needed change to finally bring legalization to Pennsylvania citizens.

Count on it.

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The Future Is Green: Cannabis Reform in 2019

The future is indeed green as we head in to 2019.

Canada has legalized adult use and is regulating distribution. Canadian “pot stocks” are hot. Michigan has become the 10th state in the United States to fully legalize and Massachusetts’ system of retail distribution is now operational. California continues to prepare for its full adult use marketplace, and New Jersey could legalize at the beginning of the year.

Thirty-three states have legalized for medical use and over 200 million Americans live in a state with some type of medical cannabis program.

On the federal level the results of the mid-term elections bode well for legislation currently
stalled in the House of Representatives. Outgoing Rules Committee Chair Pete Sessions used
his position to block any and all cannabis reform bills. With the Democratic Party set to take
control of the House reform activists are optimistic that bills addressing banking reform,
research, state’s rights and de-scheduling will move through Committee and to a full floor vote.
While the Senate retains a GOP majority, reform allies such as Sen. Cory Gardner and Sen. Rand
Paul could be key in moving legislation through the Senate.

Locally here in Pennsylvania 2019 will welcome both decriminalization bills and a full “adult
use” bill. Representatives Ed Gainey and Barry Jozwiak both introduced decriminalization bills
in 2017, but Rep. Jozwiak’s bill is the one most likely to advance to the House Floor. It would
reduce the offense grading from a misdemeanor to a summary offense for the first two
convictions, but would escalate to a misdemeanor upon the third. Rep. Jake Wheatley will
reintroduce his full adult use bill which would legalize possession, cultivation of 6 plants,
provide for expungement of cannabis related convictions and would create a regulated system
of retail distribution. Auditor General Eugene DePasquale estimates that Pennsylvania could
generate close to $600 million in recurring revenue.

Pennsylvania’s medical cannabis program continues to expand. Over 100,000 patients and
caregivers have been registered and over 900 physicians have registered. The Medical
Marijuana Advisory Board has been meeting quarterly and will be promulgating a framework
for adding qualifying medical conditions. Approximately one-third of the licensed
grower/processors are operational and producing products. Of the potential 150 dispensaries
approximately 40 are selling products to patients.

But many issues confront Pennsylvania patients – Pennsylvania remains “zero tolerance” for
DUI meaning that any amount of THC, active or metabolite, is sufficient for a conviction. Prices
remain out of reach for patients of limited means and the patient fund has yet to be
established. Law enforcement and the Courts have received no guidance or training leading to
inconsistencies and disparate treatment from County to County. Registered patients are faced
with significant Second Amendment restrictions. While PA’s medical marijuana law prohibits
discrimination, employee rights have yet to be tested in practice.

Last but certainly not least is the rapid expansion of domestic hemp production and cultivation.
The Farm Bill permits states to develop hemp cultivation programs with an eye towards commercial application.

The “CBD” industry continues to expand despite being Schedule I in the eyes of the DEA. The United States Senate recently passed hemp legalization legislation, but its future in the House is uncertain.
The future is most certainly green, but a lot of work remains to be done before the nightmare
of “Reefer Madness” is finally and permanently behind us.

Patrick K. Nightingale, Esq.
Partner, Cannabis Legal Solutions
Patrick@cannabislegalsolutions.net

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“Play That Funky Music, White Boy” — Censorship, Art, and the Law

Art becomes entangled with the law through censorship, resulting in unintended consequences and a perversion of justice.
This clip from the past is an example of censorship utterly destroying a work of art and even worse, altering the facts to obscure an inconvenient truth.
And still worse, the censorship of the past has spread to the justice system itself.
Today.
The back story of this song, as well as the infamous chorus line, are absolutely true. It really happened.
It is significant to note “Play That Funky Music” is the most licensed song in history. That’s how much it resonates with people, and it crosses all barriers– race, religion, politics– all become irrelevant when this song comes on.
 
This is, to me, proof that as human beings, we all have some core traits that ultimately unite us. Music and art are most often examples– expressions– of our shared humanity.
Music and art also define us as a society. History museums prove this out.
Photographs, statues, paintings, poetry, symphonies and folk songs and crude markings on cave walls– these are most often the representatives of societies throughout history.
 
Unfortunately, there are many people who can ignore this inconvenient truth, and worse, try to bury it under their own prejudice, ignoring their own humanity in the process.
 
So we can fairly say those who endorse censorship will ultimately lie and hide the truth in order to impose their morality on others.
 
The real import of this is the underlying attempt at altering history itself, in order to fit a narrative based on motivated self-interest, regardless of the stated intent.
 
This struck me as being interesting in the current climate of restricting and controlling, “The Fourth Estate” and freedom of speech itself.
 
We are currently preparing a Supreme Court case involving a Rap song which was deemed a terrorist threat to police officers, so I’m very aware of how censorship can take on a life of it’s own and work it’s way into the justice system itself.
Censorship is a cancer that spreads throughout the body politic and eventually, the legal system itself.
.Censorship is not justice.
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Medicinal Marijuana in Pennsylvania FAQ

marijuana law reformWith the long awaited announcement of the recipients of Medicinal Cannabis Licenses, the Commonwealth of Pennsylvania moves ever closer to bringing Act 16 to life, joining a majority of states recognizing the medicinal value of cannabis.

There are many questions about Pennsylvania’s Medicinal Marijuana legislation (Act 16), so we thought we’d address some of the most frequently asked questions here.

Keep in mind, Pennsylvania is treating medicinal cannabis as medicine, subject to the same restrictions and quality control standards for any other medicine available to the public– prescription or otherwise. Because of marijuana’s status as a recreational drug, there are some additional regulations in place to ensure the law is not abused by those simply looking to get high.

 

1. What are the qualifying medical conditions covered under Act 16?
A serious medical condition is any one of the following listed under the statute:

Amyotrophic Lateral Sclerosis
Autism
Cancer
Crohn’s Disease
Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
Epilepsy
Glaucoma
HIV (Human Immunodeficiency Virus) / AIDS (Acquired Immune Deficiency Syndrome)
Huntington’s Disease
Inflammatory Bowel Syndrome
Intractable Seizures
Multiple Sclerosis
Neuropathies
Parkinson’s Disease
Post-traumatic Stress Disorder
Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective
Sickle Cell Anemia

2. Will I be able to possess and smoke marijuana legally if I have a qualifying condition?

Smoking cannabis is strictly prohibited under the Act.  No patient with a recommendation may smoke cannabis.  Additionally, dry flower or dry herb is NOT an approved medical marijuana product under Act 16.  The DOH can considering dry flower as a “medical marijuana product” but ingestion would be restricted to vaporization and not smoking.

3. Can my current physician recommend medicinal cannabis for me if I have a qualifying condition?

Your physician must be qualified to treat your condition, and you must be under the physician’s “continuing care.”  The physician must complete a 4 hour training course approved by the DOH and the physician must register with the DOH.  The registration is reviewed annually.  (There is a link on DOH website for info to provide your physician)

4. Can I get ‘pre-certified’ for medical cannabis treatment?

The short answer is, No. Check out my recent blog on this topic for more information.

5. What qualifies as an approved medical cannabis delivery method, ie: medicine,  under Act 16?

Vaporization, nebulization, oral ingestion of oil or pill, topical.  IF a physician recommends a patient MAY incorporate their medical marijuana product in to an “edible” but edibles are otherwise prohibited.

6. Will I be allowed to grow marijuana for personal use to treat a qualifying medical condition?

Absolutely not.  PA does not permit “home grow” in any form whatsoever.  A single plant is a felony “manufacturing marijuana” offense.

7. Am I allowed to drive if I am a legal medicinal cannabis patient?

Act 16 places a 10 ng/ml limi of active THC.  Unfortunately, a patient may find him or herself over this limit merely by using their medicine.  A MMJ patient in PA runs a very real risk of a DUI even if using pursuant to their recommendation.

8. Can being a medicinal cannabis patient affect my employment status?

There is no single answer for this question. There are many factors involved, but it basically comes down to issues involving safety, security and insurance coverage.  Drug testing is often part of employment contracts. Even if an employer recognizes medicinal marijuana, their insurance provider(s) may not.
Legally speaking, employers have a right to know if an employee is using prescription drugs with deleterious effects, especially jobs involving heavy machinery, driving, law enforcement, EMS personnel, etc.

9. Will medicinal cannabis treatment be covered by my health insurance?

There is no medical insurance coverage for MMJ.  Act 16 specifically sets forth that insurance carriers are NOT required to provide coverage.
This doesn’t mean they won’t, but providers have thus far been silent regarding inclusion of  MM in their coverage. We suggest contacting your provider for more information.

10. Will medicinal cannabis products be available at my local pharmacy?

No – medical marijuana products will ONLY be available via a licensed dispensary.  A patient’s purchases will be tracked preventing a patient from “double dipping”.  Medical marijuana products MUST be kept in their original packaging.  A patient may only possess up to a 30 day supply.

 

 

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Patrick NightingaleMedicinal Marijuana in Pennsylvania FAQ
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Ignorance or lies? Either way Jeff Sessions simply does not understand federal drug prosecution and federal drug sentencing

This morning I awoke to an op-ed published in the Washington Post authored by none other than Jefferson Beauregard Sessions, Attorney General of the United States of America.  Attorney General Sessions opines that the Department of Justice must “get tough” on drug offenders and the only path forward in increased incarceration.

 

What strikes me is Attorney General Sessions stunning ignorance of the effect of the United States Sentencing Guidelines, sentencing enhancements such as “Career Offender” or “Armed Career Criminal” and the potentially devastating effect of a Rule 851 Notice of a prior drug felony conviction.  Combined these sentencing provisions can put a young person (most often a person of color according to Bureau of Prisons statistics) in prison for twenty years to life for “conspiring” to sell an amount that triggers a mandatory.  And, remember, the mandatory provisions apply to Conspiracy to Distribute A Controlled Substance – meaning the feds can add up all of the weight allegedly distributed by ALL members of the Conspiracy when determining the applicable sentencing guidelines range for the street level dealer.

 

While the Department of Justice and federal law enforcement has the resources to tackle large drug distribution conspiracies, the fact remains that MOST drug investigations and prosecutions are at the state level.  While taking out a “drug trafficking organization” may feel satisfying to the investigating agents, it has zero effect on reducing DEMAND from drug users.  In other words, doubling down on arrests and prosecutions are, quite literally, meaningless when it comes to addressing the root causes of addiction, drug use and drug abuse.

 

Attorney General Sessions gives cursory treatment to the upsurge in heroin use and abuse in this country.  Completely absent from his statement is the very real role that the pharmaceutical industry has played in dumping enormous amounts of highly addictive prescription opioids on the streets of every American city and town and reaping stunning profits.  Individual states recognize this, and that is why states like Ohio and NJ have sued.  The fact that the United States Attorney General simply ignores this is inexplicable and inexcusable.

 

Further, either Attorney General Sessions is truly ignorant of federal charging policy under the Cole memo or he is deliberately lying about its provisions.  Federal prosecutors were 100% permitted to bring whatever indictments they believed were appropriate.  The Cole memo instructed prosecutors to consider whether or not to subject the addict husting to support their addiction to the full fury of federal prosecution.  Here in the Western District of PA opposing counsel assure me that they always weigh whether not to indict (and then always manage to justify indicting the “mule.”)  In practice, the Cole memo makes it more difficult for me to go to the prosecutor and ask him or her to review the indictment as they will have already done a Cole memo analysis before bring charges.

 

If the federal prison population declines I would submit this is a good thing, not an indication that we need to incarcerate more offenders.  If federal prison sentences are shorter I would submit this is a good thing as Courts are afforded more sentencing discretion to assess the individual defendant as was ALWAYS intended under federal sentencing law.  Seeking enhanced  mandatory minimum sentencing substitutes the sentencing discretion of the Court for the unreviewable discretion of a prosecutor, who is likely not motivated to consider the individual characteristics of the defendant.

 

Attorney General Sessions has hijacked criminal justice reform and veered dangerously towards policies that have been proven an utter failure.  It is up to all of us, conservative and liberal alike, to demand that the Attorney General not destroy bi-partisan sentencing reform efforts as we continue to struggle with our approach to this nation’s drug abuse issues.

 

Patrick K. Nightingale, Esq.

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Patrick NightingaleIgnorance or lies? Either way Jeff Sessions simply does not understand federal drug prosecution and federal drug sentencing
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The Real Marijuana Problem: The Law. Part 1, “Tom”

The US Stance on Medical Marijuana is Confusing at BestThe legal status of Marijuana does far more harm to citizens than using it ever could.

The following story is true. The names have been changed to protect the innocent.

“Tom” goes boating with friends over the holiday weekend on the river in Middleofnowhere County.  He was excited because he had saved up his money and bought a new boat, which he was taking on it’s maiden voyage.

Pennsylvania Fish and Game officers show up and pull him over — we’re still not clear on what their initial reason was– but they end up searching “Tom” and find a whopping gram of weed and a small pipe.

Fish and Game officers policing marijuana instead of protecting Bambi and Thumper is a mystery to me, but instead of just issuing a citation on what should be a simple matter, they arrest “Tom” and the floodgates of potential life-long repercussions open wide.

Just getting arrested, let alone convicted of a crime, has immediate negative ramifications. Family, friends, and more problematic, employers, are all suddenly sources of stress.

Hiring legal representation, missing time for court dates, which are often rescheduled, further dragging out the process and the emotional stress for the accused and their loved ones.

Employers in particular are not likely to ignore an arrest, especially if there are security and safety issues at play.

A marijuana possession conviction automatically results in suspension of driving privileges and can carry substantial fines, as well as a period of probation. Worst of all, it stays on your record.  This can adversely affect employment options and even restrict one’s ability to travel abroad.

Suddenly “Tom” goes from enjoying a holiday on his new boat to facing a complete disruption of his life. All over a gram of weed.

All because of the law.

Does that sound like Justice to you?

In Part 2, we’ll talk about a young lady who could — with the help of the police– graduate from marijuana to heroin in a most unexpected way.

 

 

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Flag on the Play: Illegal Procedure

The legal system– justice– is built on the twin pillars of precedent and procedure.

This is why attorneys look to ‘preserve the record’ by filing various motions, even when they know they will likely be ruled against in the current trial. They are preserving points on the record that may in fact be incredibly important in any appeals that may be filed.

Procedure and Precedent.

The procedure part can often be frustrating for everyone involved, but the truth is, what you say in court proceedings is only as relevant as how–and when– you say it.

Court scheduling can often be a source of frustration for client and attorney alike. The courts in various counties throughout the Commonwealth of Pennsylvania do not all operate on the same schedule, and the procedures can vary from county to county.

Courts schedule hearings without reference to each other, or attorney schedules, and they certainly don’t recognize the convenience of the accused. This is why there are often delays, motions for a continuance, etc.

This can be very frustrating for someone with a court date hanging over their heads. We hear it again and again: “I just want to get it over with.”

The wheels of justice often turn slow, but that is far better than hastily running over the innocent in the name of efficiency.

Of course there are always extenuating circumstances that the court will recognize– a death in the family, severe illness, scheduling conflicts for the defense or prosecution– and the courts are usually pretty accommodating with a reasonable excuse.

Recently, I was scheduled to appear in court at 9:00 am and later that day in a different court at 1:30 pm. Normally, that would not be an issue, but on this day, morning court was running way behind schedule, and it became obvious I would not be able to make my 1:30 appearance. This is where good relations with various courts can be a big help. The Judge in my early case had his clerk contact the Judge in the afternoon case to resolve the issue successfully (much appreciated, btw).

However, this left my client in the second hearing in the unhappy position of having to appear on a later date.

At times like that, I feel awful knowing my client is frustrated, but it was truly a situation completely out of my control.  The courts reign supreme when it comes to scheduling. In this instance, the early case was time sensitive. Our backs were against the wall, therefor the afternoon case would have been delayed regardless.

Procedure.

“The Cop Didn’t Show”.

Television shows have absolutely no bearing on the reality of the legal process. On TV, if the arresting officer doesn’t show up for court, the accused goes free. Not so in real life. (The same is true of, “They didn’t read me my rights”.)

Judges are extremely reluctant to rule against police officers in general, and an officer who calls in sick on court day is hardly thwarting justice. The presumption of the court is the officer is too ill to come to work. Period. They are extremely unlikely to throw out the charges, at least on the first occurrence. A subsequent failure to appear is a different matter. The Judge has a responsibility to maintain a fair process for the accused, and a second incident undermines the authority of the court to do that.

This is one of those times when a good attorney makes ‘procedure’ work in their client’s favor, citing for example an individual’s right to a speedy trial and moving to dismiss the charges.

Asset seizure and forfeiture is probably the single most frustrating part of a criminal investigation for everyone involved.

Authorities have the right to seize assets even without a guilty verdict. In cases involving illegal gambling, drug dealing, etc., the authorities will freeze bank accounts and seize property that they deem was either used in the commission of a crime, or was purchased or obtained as a result of criminal activity. Cars, boats, computers and of course cash can be seized with little or no recourse for the accused.

Even in the event of a Not Guilty verdict, the procedures for getting property back are extremely limited in scope and are often not worth the effort and cost. For example, a seized car was stored by the authorities for a year, and they charge storage fees that are often so high, it’s cheaper to just buy a new car.

This is an area that needs some reform. The authorities should bear the cost of storing a vehicle when the verdict is Not Guilty. An innocent person should not be penalized any more than the trauma of facing criminal charges and the costs of defending themselves.

These are just some instances of the preceedural part of the court system and are examples of why an experienced attorney who maintains good relations with the court system can be invaluable to someone facing criminal charges.

PKN Law pride ourselves on our knowledge of the court system from both sides of the aisle, as well as our good working relationships with court staff from counties across the Commonwealth.

 

 

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Patrick NightingaleFlag on the Play: Illegal Procedure
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Marijuana: Flying in the Face of “Equal Protection Under the Law”.

marijuana law reformWARNING: The following story might make you angry.

An epileptic woman from Michigan visits a relative in Pennsylvania.  She had moved to Michigan from Pennsylvania because medicinal cannabis was the only medicine that was working to alleviate her seizures.  Her husband is her caregiver, and he uprooted his whole life to move his wife to a state where she could legally take medicine for a documented medical condition.  That’s how much he believes in the efficacy of medicinal marijuana, based entirely on his own experience caring for an epileptic.

She has a medical card from her state of residency.  She has a medical condition that qualifies for treatment under Pennsylvania’s Act 16.  For her, in her mind, this is simply medicine.  It’s no different– in her mind– than carrying a vial of prescription medication in her purse.

Unfortunately, her original arrest happened before Act 16 became a reality, in a county where they are not prone to cutting breaks for marijuana possession.

In Pittsburgh, a small amount possession charge is a ticket. No cuffs, no jail, no court appearance. A ticket. Pay the fine and it’s done.

In many of the rural counties surrounding Pittsburgh, a marijuana charge can be catastrophic.  It can affect a person’s ability to get certain jobs. It can impact things like insurance rates and school loans. It often results in the loss of driving privileges. For a young person, it can ruin their life before it gets started.

In this instance, it’s penalizing someone for legally treating her legitimate medical condition, all because she’s in a different state in the same “One nation, under God”.

As was mentioned earlier, this was the original charge, but it gets worse.

Because the county elected to pursue this through the court system, as opposed to just reducing it to a disorderly conduct with a fine, they released her, but an appearance in court before a judge was required.  This meant the woman had to travel from Michigan back to Pennsylvania, all over a simple possession charge.

Unfortunately this woman never received her court papers. She thought they had taken mercy and dropped the charges, and so she never appeared in court. It was an honest mistake resulting from either a clerical error or simply, a lost piece of mail.

Missing a court date is never good, and even in what began as a minor offense becomes magnified and can make an otherwise routine situation much worse. It opens a person up to additional charges, and will result in the issuance of a “Bench Warrant”.

A Bench Warrant does not offer any specifics as to what the person was charged with, so a police officer who discovers a warrant will treat any such situation as potentially life threatening.  In this instance, the discovery of the warrant occurred in Ohio, where the woman had been pulled over in a traffic stop and she was once again found to possess marijuana. Ohio recently decriminalized marijuana, but because of the warrant, instead of getting a ticket and being sent on her way, she was arrested, taken to jail and held for over a week until she could be extradited back to Pennsylvania.

All because she had a small possession charge, even though she had a state issued medical card for treating epilepsy, which is recognized in Act 16 as a legitimate qualifying condition.

Fortunately the authorities have since realized this is a classic mountain out of a mole hill scenario and have released the woman to the care of her husband. But the story isn’t over. She still has to come back to Pennsylvania for another court date, retain an attorney, and spend even more money than she’s already spent.

What should have been a simple fine turned into a nightmare for this woman and her family that cost a lot of money for them and for the tax payers of Ohio and Pennsylvania.

All because of a minor marijuana possession charge.

Does this sound like justice to you?

 

 

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Patrick NightingaleMarijuana: Flying in the Face of “Equal Protection Under the Law”.
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Jeff Sessions Thumbs His Nose at Judge, Jury and Justice

Attorney General Jeff Sessions has taken a giant leap backwards in time by issuing a memo instructing Federal prosecutors to “charge and pursue the most serious, readily provable offense” in drug related crimes, reversing the policies of his predecessor, Eric Holder.

Holder took a more progressive and humane approach, especially concerning non-violent and low-level offenders. It was also a more pragmatic and fiscally responsible approach aimed at correcting over 40 years of damage done by the harsh policies of the past and the failed War on Drugs.

If Mr. Sessions wants to address the spike in opiate use, he needs to look at the alarming statistics showing the rise in heroin addiction is increasingly the result of using legally obtained prescription drugs like Oxycontin, and other synthetic pharmaceutical products designed to mimic the effects of morphine, heroin, methamphetamine and cocaine.

Maybe it’s time the Justice Department investigates Big Pharma.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. — Article III, Section II, United States Constitution

Most people get their knowledge of the judicial system from TV shows like “Law and Order”, which bear little resemblance to real life. The ‘justice’ part is much easier to see when it’s laid out for you in a snazzy hour long drama. It’s a much more involved process for a jury in real life to reach a verdict. And it’s expensive. A jury trial can set the taxpayers back quite a bit, and the time involved can really back up an already overloaded justice system.

The ability of prosecutors to hold incredibly harsh sentences over the heads of the accused goes a long way to alleviating the expense of jury trials. It is a threat, not unlike holding a gun to someone’s head: Plead or else.

The above cited Section of the Constitution is a sham. An estimated ninety-seven percent of people in Federal prisons never had a trial by a jury of their peers.

This has increasingly reduced the role of a Criminal Defense Attorney from defender seeking justice and arguing his client’s case before a jury, to negotiator in a hostage crisis, trying to get the best deal possible for their client. We are literally forced to make our case to the Prosecution without ever going before a Judge and Jury. The deck is already stacked in favor of the Prosecution, and what Sessions is doing will simply make it worse and more likely to trigger mandatory minimum sentences–  rules that limit a Judge’s discretion.

And therein lies another slap in the face for justice: Intentionally limiting the role of Judges in the judicial process.

Having had the privilege of appearing before many Judges over the years, I can tell you they are completely competent to render a just decision without handcuffing them to arbitrary rules, doled out and overseen by a small group of people in Washington, DC., who are completely removed from, and literally oblivious to, the facts and circumstances of any individual case.

Mandatory Minimums essentially say the Federal Government has no faith in the ability of Judges to render just decisions. But that’s what Mr. Sessions wants.

Everyone in the Justice System should be concerned that Mr. Sessions is taking us backwards by instituting policies and guidelines that have proven to be a failure, going back to Prohibition.

Add the reality of a corporate controlled, for-profit prison system, and we have a recipe for disaster.

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Patrick NightingaleJeff Sessions Thumbs His Nose at Judge, Jury and Justice
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