Nebraska Supreme Court Strikes Medical Marijaua Initiative From Fall Election Ballot
This summer, 123,000 people signed the petition, so there may be fierce support among Nebraskans favoring legalized medical marijuana use. Still, no one will get to vote on the issue this November.
On Thursday, the Nebraska Supreme Court issued a 5-2 split decision that removed this fall’s ballot issue.
Lancaster County Sheriff Terry Wagner, a long-time marijuana opponent, challenged the ballot question before the Nebraska Supreme Court. He’s pleased with the court’s ruling.
“Medicinal marijuana always seems to be the first step in reaching for legalized recreational marijuana, and so this effort was no different than Colorado or any other state that’s done that.”
The merits of medical marijuana were not the issue before the appellate court. Wagner’s attorneys argued last week how proponents presented the question to voters was so flawed as to require it be removed from consideration by voters.
According to the language on the ballot, approved by Secretary of State Robert Evnen, a yes vote would add a Constitutional amendment giving Nebraskans the right to use, purchase and produce cannabis for serious medical conditions if recommended by a doctor.
The opinion released Thursday determined the result would mean several state law changes, including possession, use in public, being under the influence at work, and insurance coverage. According to the court, each represented separate issues that could not be rolled in a single ballot question.
“If voters are to intelligently adopt a State policy with regard to medicinal cannabis use,” the justices wrote, “they must first be allowed to decide that issue alone, unencumbered by other subjects.”
Two of the justices, Judges Jonathan Papik and Lindsey Miller-Lerman, dissented in the opinion, something rare for the Nebraska Supreme Court. The dissenters argued the topics were closely enough related to warrant being grouped in a single ballot question.
The unfavorable ruling represents the latest failure for medical cannabis supporters in the courts and the Nebraska State Legislature.
One of the petition drive leaders, State Senator Anna Wishart, told NET News, “I’m very sad.”
Her voice noticeably emotional, she said she had “put a lot of her heart into this effort” and spoke of others who worked on the petition drive “who are really struggling with serious medical conditions.
“Just the thought of them having to wait longer is very sad.”
Marijuana use is legal in 33 states.
Five other states, Arizona, Mississippi, Montana, New Jersey, and South Dakota, will have the opportunity to vote on legalization this election year.
The Perils of ‘Zoom Justice’
As COVID caused massive shutdowns of traditional in-person institutions, courts were faced with a dilemma. Facing severe backlogs if the courthouse doors were closed, courts quickly shifted to Zoom-based proceedings.
Today, you can watch hundreds of livestream court events—many on YouTube—ranging from felony arraignments to traffic ticket hearings to family court proceedings. For the defendant or witness, this is a welcome change. Going to court no longer requires a person to find childcare, take time off work, or risk exposure to COVID.
However, they must now contend with their name and image broadcast across the internet.
Streaming court proceedings uses the same logic as the decision to release court documents on the Internet in the late 1990s and early 2000s. Rooted in virtues of transparency and accountability, the argument is that anything you might witness or access in person by visiting court should be similarly available on the Internet.
These are laudable goals. However, the turn to digital access had the unintended consequence of creating digital punishment: a phenomenon where the collection and release of digital criminal justice information creates permanent online stigmatization for millions of people arrested or processed through U.S. courts each year.
Due to a blend of permissive public records laws that allows the release of pre-conviction and in-process case information—as well as a private market built on re-sharing and selling this information across extortion sites and background check services—millions of people have a tarnished digital reputation simply because they were processed through the court system.
As I document in my recent book, the harms of digital punishment are far reaching.
My research has shown that people who must continually confront their addiction or mistakes posted online often begin to “opt out” of institutional and social contexts that might trigger a Google search. Rather than engage in their communities, schools, or churches, people avoid situations where new people might want to learn more about them—only to discover their name on a website that has reported a court docket or a mugshot.
There are material harms as people avoid employment, educational, and housing systems that rely on increasingly automated background checks that may report incorrect, misleading or outdated information that is nearly impossible for the applicant to remedy.
There are also social harms. Dampening social and institutional participation can also decrease democratic participation, especially if digital punishment leads people toward legal estrangement, lessens procedural justice by assigning public guilt before due process, and increases mistrust in government through what people experience as state-sanctioned privacy violations.
If a victim, witness, or defendant is terrified to testify or afraid to tell the truth because they know their face and voice will be broadcast on YouTube, justice will not be served.
Another overlooked problem with digital access to courts is that we don’t learn nearly as much about judicial decision-making as we do about the individual people whose lives are broadcast across the internet during their hearings.
Recently, I watched a child custody proceeding unfold over five hours in a Texas courtroom. Through his own live streamed testimony, I learned about the father’s alcoholism and suicide attempt and watched as his lawyer screen-shared dozens of emotional text messages between the two parents.
The judge was mostly silent as the proceedings shifted to the mother, tired and in hospital scrubs, whose lawyer showed dozens of photos of the interior of her home, including of her children’s bedrooms.
In New Jersey’s Essex County, I watched an elderly man in prison garb and a face mask silently weep on video for ten minutes at his arraignment. His public defender made a case for his release based on his health and risk of death through COVID exposure. The judge rapidly read through his rights and conditions of a pretrial release. The man asked if she could call his employer to explain why he missed a week of work. The livestream ended.
Live court on YouTube has the potential to expand digital punishment in unexpected ways. We don’t know yet if and how court live streams have been recorded and replicated for extralegal purposes.
We don’t know who is watching.
Transparency is central to having an accountable judiciary. But the pace and disorganization of local courts means viewers get very little sense of how the criminal justice system really operates. Aggregate, complete data about the criminal legal system is still incredibly difficult for journalists and researchers to access. Photos of children’s bedrooms in suburban Austin do not fulfill the intent of public access for watchdogging government officials.
The solution? Courts have a simple opportunity here to instill a bit of practical obscurity, which has long been the shield for protecting individual privacy while encouraging open government. Courts can easily have users register for a password-protected Zoom proceeding.
In the digital context, this means a small, verification hurdle to encourage interested journalists, researchers and members of the public to access governmental data for accountability reasons. In some ways, password protected live streams better mirror the traditional forms of access that underlie transparency laws, where the requester has an active interest in a document, rather than a passive opportunity to make a copy.
And even as our lives have become more isolated and based in technology, we shouldn’t forget that policy decisions are a human-powered process.
The expansion of digital punishment into unexpected, pandemic-responsive domains is not the inevitable outcome of digital life. Technological advances like Zoom and YouTube do not determine their own fate; people and organizations use technologies and share data for specific ends.
We can choose a better way to ensure the judiciary is serving the public while also protecting that same public.
Sarah Esther Lageson is an assistant professor at Rutgers University-Newark School of Criminal Justice, and a grant recipient of the National Institute of Justice Early Career Award. She welcomes comments from readers.
Shortly before the Nineteenth Amendment became a reality, in October 1917, Fannie Lou Hamer (nee Townsend) was born into a Mississippi sharecropper family. The youngest of 20, she was picking cotton at six and left school at 12 p.m. each day to work. In the early 1940s, she met and married Perry (Pap) Hamer, and they continued plantation work. Her ability to read and write allowed her to serve as recordkeeper.
In 1961, Hamer, like many of her contemporaries, was the victim of forced sterilization without her consent when a white doctor was performing other surgery. This attempt to control the black population was one factor precipitating her activism. She attended a Student Non-Violent Coordinating Committee (SNCC) meeting. “They talked about how it was our rights as human beings to register to vote. I never knew we could vote before. Nobody ever told us.” She became an organizer and in the summer of 1962, led 17 neighbors to the Indianola, Mississippi, courthouse to register to vote. They were unsuccessful. Upon return, her employer, objecting to her trying to register to vote, fired her.
In 1963, traveling home from a workshop, she and other organizers sat at the whites-only lunch counter and were arrested. In jail, she was so severely beaten, effects to her eyes, legs, and kidneys lasted the rest of her life.
Hamer cofounded the Mississippi Freedom Democratic Party (MFDP) in 1964 in response to the Democratic Party’s attempts to block the participation of black folks. She spoke at the Democratic National Convention and addressed the Credentials Committee, demanding mandatory integrated state delegations. Hamer and the MFDP were noticed, nationally, although the request was denied. Her work was an integral part of the Freedom Summer that brought hundreds of students south to fight for civil rights. Despite objections, Hamer supported the white students, encouraging an integrated movement. She said, “If we’re trying to break down this barrier of segregation, we can’t segregate ourselves.”
Hamer identified economic security as the key to achieving civil rights. She did relief work, started the Freedom Farm Cooperative (buying land that black people could own and farm collectively), and secured 200 units of low-income housing.
Even after the Voting Rights Act of 1965, Hamer’s work was not done. In 1968, she was a member of Mississippi’s first integrated delegation, and three years later helped found the National Women’s Political Caucus. Her injuries from the jail beating and breast cancer slowed her down by the mid-1970s. She died in 1977.
The fight for the unfettered right to ballot access continues today. If you’re “sick and tired of being sick and tired,” you are in good company. When Fannie Lou Hamer said that, she didn’t let it stop her. And it can’t stop us.
This story originally appeared in High Country News in 2016
Paul Lumley, like many Yakama Nation citizens, grew up fishing on the Columbia River, through which salmon flowed like blood. Though Lumley’s family lived north of the Columbia, in Washington’s Yakima Valley, his family migrated to the river each fall to set gillnets for valuable chinook. Lumley slept in the truck bed for months at a time, steeped in eau de salmon, at Underwood, a small, decrepit fishing camp set aside for American Indian use by the federal government. “It was really rough living,” Lumley recalls.
Today, 31 such fishing camps line the river, and hundreds of tribal members flock to them during fishing season. Up to 160 families also inhabit the camps year-round. Lumley now serves as director of the Columbia River Inter-Tribal Fish Commission, a tribal management agency that conducts fisheries research, enforces regulations, and operates hatcheries. Despite its fishy focus, Lumley’s agency is also worried about the Columbia’s camps — among the quietest housing crises in modern-day Indian Country.
The housing dilemma, like many Northwest tribal fisheries conflicts, has its origins in 1855, when treaties pushed tribes onto reservations far from the Columbia. Though the treaties guaranteed American Indians access to traditional fishing sites, the reservations were anathema to those whose sustenance and culture flowed from the Columbia’s waters. White soldiers fought them and settlers murdered them, yet some tribal members remained rooted to the riverbanks, growing gradually distant from their reservation kin. According to the historian Andrew Fisher, “River Indians” today “constitute a shadow tribe, part of and yet separate from the tribal bodies whose fortunes they share.”
In 1937, the U.S. Army Corps of Engineers completed Bonneville Dam, flooding numerous fishing sites and villages. But the treaties gave the tribes leverage, compelling the Corps to relocate some families while promising to purchase land and build new homes for others. Similar vows accompanied the subsequent construction of the Dalles and John Day dams. Yet it took the agency nearly 20 years after the completion of Bonneville to set aside five meager parcels for Native American use. The Corps did briefly put some tribal members in World War II-era barracks, but the buildings turned out to be ridden with asbestos.
The situation improved somewhat in the 1990s, when the Corps began construction on 26 new seasonal fishing sites. But the sites still lacked housing. Most resemble bare-bones campsites, endowed with little more than a bathroom, a fish-cleaning station and a boat ramp; many lack running water and electricity. Tribal fishermen drag in generators or bootleg power from the grid.
Although the housing crunch has simmered for decades, in the last several years it has erupted into a full-blown crisis. Record-setting salmon runs have lured more fishermen from the reservation to the river, crowding the sites in summer and fall and straining their deplorable infrastructure. In turn, the tribes have recruited congressional allies to make their case to the Corps, which has acknowledged its responsibility to build new housing. But bureaucracies move slowly, and dispensing reparations for historical injustices has never been America’s strong suit. Says Yakama fisherman Randy Settler: “It’s not a popular issue to build replacement homes for something that happened 70 years ago.”
Poor living conditions are common in Indian Country — more than 5 percent of homes on Native American land lack plumbing, 10 times the national average. Still, Lone Pine, Oregon, a tribal fishing camp 85 miles east of Portland, is a particularly run-down aggregation of trailers and shacks sided with corrugated tin and tree bark. Hubcaps and piles of clothes litter the packed-dirt track; derelict vans and motorboats perch on cinderblocks. A single bathroom serves the 40 permanent residents, whose numbers swell during fishing season. Drug abuse, including meth and heroin, is rampant.
Lone Pine sits on basalt bluffs across the river from the Dalles Dam, which generates power for a nearby $1.2 billion Google data center, among other infrastructure. “How do you think people at Lone Pine feel looking at this huge dam every day, making all those other people rich?” says Lumley, a rangy, cordial man whose voice grows softer the angrier he gets. “When I ask this community if they want a free house, they look at me like I’m crazy. They want water that works, they want someone to come pick up the -garbage.”
The substandard facilities aren’t merely eyesores, they’re also hazardous to health and safety — as demonstrated by Lumley’s uncle, a wizened, good-humored 86-year-old named Johnny Jackson. Jackson, a chief of the Cascade Tribe, one of the groups that comprise the Yakama Nation, has lived at the Underwood site since the 1960s, when he resisted the Corps’ attempts to oust him and turn the landing over to white sport fishermen. “My sisters used to come and help me have a salmon-bake right here,” he recalls, standing in the shade of a fish-cleaning station. In September 2014, Jackson’s hand-built house caught fire when a faulty fuel line caused his propane tanks to hurtle through the air like bottle rockets. When firefighters arrived, they found that the nearby yellow fire hydrant wasn’t connected to any water source. Jackson’s home was reduced to charcoal. Now he lives in a trailer.
Lone Pine and Underwood are not unique in their dilapidation — the bathroom in a 3-acre site called Cooks Landing doesn’t even have a door, and most of the other 31 sites suffer from similar conditions. But even supplying these spartan services is draining the Corps’ coffers: According to Laurie Jordan, a policy analyst for the Inter-Tribal Fish Commission, it costs more than $40,000 per year just to pump the septic tank at Cooks Landing.
The abysmal quarters contrast painfully with nearby North Bonneville. When that town had to be moved in the 1970s to make way for a new dam powerhouse, its mostly white residents secured $35 million for relocation. Today, the community is a Pleasantville-esque complex of churches, tennis courts and ball fields. “I’m happy for them,” says Lumley as we drive through the hamlet. “But we have people who are owed basic amenities.”
After more than 70 years of neglect, new housing may finally be on the horizon. In 2013, a Corps-commissioned report acknowledged that many displaced families had never received relocation assistance, and that the facilities were inadequate. The 2016 iteration of the Water Resources Development Act, biennial legislation that authorizes Corps water projects, includes language about granting relocation assistance to displaced families. In July, congressional delegations from Oregon and Washington also introduced legislation in the House and Senate that would direct the Bureau of Indian Affairs, which owns the sites, to improve sanitation and electrical infrastructure. “These are items that shouldn’t wait for longer-term legislative action,” says Rep. Earl Blumenauer, D-Ore., one of the bill’s authors. “It’s extraordinarily frustrating that we’ve allowed these conditions to -persist.”
Although passing the legislation will be a tall order in an election year, the housing momentum is gathering. If and when funding arrives, the tribes will face a difficult decision: Who will build and manage the infrastructure? Though the Bureau of Indian Affairs was once responsible for operations, maintenance and law enforcement at the sites, everyone agrees the agency bungled the job — a posted emergency phone number, for instance, sometimes routed calls to an office in Wyoming. These days, those responsibilities are handled by the Inter-Tribal Fish Commission, but it’s an awkward fit. “Fish is our middle name,” says Lumley. “Housing isn’t.” Lumley hopes the tribes will create a housing authority to steward the sites. “There’s the potential to address the long-term economic development that these people need,” he says. “But it needs to come directly from the communities themselves.”
More than 150 years after the U.S. Army attempted to dislodge the Columbia River Indians, the river tribes remain in the shadows. Many year-round river dwellers, says Jordan, don’t avail themselves of services like welfare, food benefits and energy assistance, which are widely used by reservation residents. According to Wilbur Slockish, a bearish 71-year-old Klickitat chief, off-reservation Indians remain out of sight and out of mind when the salmon aren’t running. “The tribe’s mentality is the reservation, and it’s always been that way,” he says. “We’re on our own.”
Few river dwellers know that better than David Sohappy Jr., a Yakama fish technician whom I meet on a warm sickle-moon evening at Drano Lake — a Columbia River pool formed when Bonneville Dam inundated a historic fishing village in the 1930s. In 1982, when hostilities between the River Indians and the government were near their apex, -Sohappy and his father were arrested at Cooks Landing for illegally selling fish to undercover federal agents. Though they pled entrapment, both men received five-year sentences. “I remember him lying awake on his bunk in prison, banging his fist against the wall,” Sohappy says.
That Sohappy, once jailed as a poacher, now works as a tribal fisheries manager is a sign of how far the Northwest has come. Salmon runs, though still just a vestige of their pre-dam glory, are stronger than they’ve been in decades, and fishing has reassumed its prominence in Native life. Fifty years ago, when many runs stood on extinction’s doorstep and officers tear-gassed Yakama fishermen for “trespassing,” it would have been almost impossible to imagine the Columbia River teeming with Native-owned boats.
Some injustices, however, can never be rectified. Sohappy’s own great-grandmother grew up alongside the Columbia, but was forced to move away when her village was drowned by Drano Lake.
"She wanted to live near the river,” Sohappy says. “She died waiting for the house the government promised her they’d build.”
Ben Goldfarb is a correspondent for High Country News, covering wildlife science, fisheries management and Northwestern resource politics.