Cannabis Law Prof Blog

Editor: Franklin G. Snyder
Texas A&M University
School of Law

Thursday, November 9, 2017

A conversation with a Dallas Police Department Sergeant

Lary Nichols is currently a Sergeant of the Dallas Police Department. Nichols, like his father and grandfather before him, was born and has lived his entire life in Dallas, Texas. He attended Lake Highland high school and had a part-time job selling cars at his father’s used car lot. Marijuana blog police

After high school, he headed to boot camp to join the Marine Corps. Because his goal had always been to become a Dallas police officer, Nichols joined the Marine’s military police to gain the necessary experience. After four years of service, Nichols left the Marines to pursue his dream. But unlike today’s standards—where recruits need to either have earned a minimum of 45 hours of college credit or have 3 years of military experience—DPD strictly required the minimum college credit then. Thus, Nichols took the requisite courses at El Centro, Dallas’s County Community College, before being admitted into Dallas’s police academy in 1992.

Upon graduation, Nichols worked full-time patrolling Southeast Dallas, until he was promoted to Senior Corporal in 1997. There, he worked with Dallas’s K-9 Unit for three years until he returned back to patrol. After four years, Nichols was promoted to Sergeant in 2004. As Sergeant, Nichols was placed in charge of one Dallas SWAT unit and has played a pivotal role in organizing the city’s security measures for large events such as marathons and protests. Currently, DPD is considering promoting Sergeant Nichols again, this time to Lieutenant.

Sergeant Nichols has been married since 1988, and has two children. His son recently graduated from Dallas’s police academy this year, following in his father’s footsteps; his daughter graduated from Texas A&M and is currently attending nursing school in Dallas.   

Q: What training regarding marijuana detection and how to handle situations involving marijuana have you experienced?

A: In 1992, when I was in the academy, they had a narcotics officer come in and teach various things about the drugs we should expect to confront on the street. This included street names, what to look for; they also did something called a “controlled burn,” which is where they burned DEA-grade marijuana, so we could recognize the smell and be better equipped to testify about it in court if we made a traffic stop and we smelt marijuana. But I think that practice ended because now everyone knows what it smells like; plus, your trainer will say “Hey, that’s marijuana” while on the street. This was followed by update-training every few years. I’ve had some outside narcotics training, which consisted of either eight or forty-hour courses to improve narcotic detection and intervention. But most of my experience has come from making arrests and testifying in court.

Q: Do you believe that the methods currently used to detect whether someone is high on marijuana are effective?

A: I don’t think enough. Although there’s a lot of training to detect people high on marijuana, there probably isn’t enough to be adequate.

Q: Would you be open to police departments adopting a marijuana breathalyzer that would measure a person’s current level of THC?

A: Yes, I would. I think that would be a great tool. Especially as we move towards more states legalizing marijuana, law enforcement needs an effective method, similar to a BAC breathalyzer, to detect whether someone is operating a vehicle under the influence.

Q: What problems do you personally perceive regarding people using marijuana?

A: I actually think the use of marijuana is less problematic than alcohol. People don’t smoke weed and go beat their wives, but they do that with alcohol. But some problems associated with marijuana are long-term. The health effects are probably worse for you than smoking cigarettes; obviously there are cancer concerns. Also, marijuana tends to dull people’s initiative and motivation. From my high school experience, there were those stoner friends who smoked a lot of weed; they weren’t go-getters. Especially if people smoke too much. Overall, I believe the health effects and dulling of people’s initiative and ambition are the biggest problems. Also, people think they can smoke and then drive, but they can’t. Their reaction times are slow; their judgement is impaired. So that’s another large issue.

Q: Do you believe marijuana is a “gateway drug?”

A: I do; especially for younger people. It’s a way for them to start using illegal drugs. They feel like “Oh, I can smoke marijuana and go to school and then wake up the next day and feel fine? Well, maybe I can do this cocaine and pills too.” Adults though have a little more maturity. Similar to having a drinking age of 21, once people are more mature they realize “Yeah, I can smoke weed, but I’m not going to jump to heroin.” But I do believe it is a gateway drug for the more vulnerable population and younger people to lead them to more addictive drugs.

Q: Do you believe marijuana should be legal in any form? Explain.

A: We spend a lot of resources and a lot of money in the criminal justice system and law enforcement on enforcing marijuana laws. But I think that money could be spent better elsewhere. I think alcohol is more dangerous than marijuana. So personally, I’m not opposed to legalizing it. But the problem I have is kids getting a hold of it. I know that’s a big problem in states that have already done so. Similar to getting older people to buy you beer here. I think marijuana is extremely detrimental to the young population. I’ve seen studies where it affects their mental and physical development. So, if it is legalized, it needs to be strictly controlled. I’m not opposed to it, and I think it will be legalized eventually because it doesn’t make sense all the time, effort, and money being spent putting people in jail. We are slowly reducing the penalties and enforcement of it. We should stop beating around the bush and just legalize, regulate, and tax it. We always talk about personal freedoms, well people should be free to do what they want. You can have an abortion and kill a baby, but you can’t smoke a joint in your own house. I think it’s kind of hypocritical; it’s similar to prohibition in the 1920s, which didn’t work at all.

Q: Do you believe your job would be easier if marijuana was legal for adults 21 and older?

A: There’s a catch 22 about that. Law enforcement would spend less time bringing people to jail for marijuana offenses, but there would be more people under the influence causing problems, so I don’t know if it would make our job that much easier. We would still have people driving impaired and stealing to get more marijuana. Especially initially after legalization, I believe there would be a lot more people using it, because believe it or not, there are people who refrain from smoking because it is illegal.

Q: In a given week, how many of your on-duty calls had some relation to marijuana?

A: I’m not in patrol right now, but back in the 1990s in Southeast Dallas, I would say probably 60-70% of what I did there involved some aspect of marijuana. Whether it was present, they were using it, or they were under the influence. So, it was consistently prevalent throughout my time patrolling.

Q: Do you believe marijuana enforcement has disproportionately impacted African Americans?

A: It probably does in a way, but ultimately, I believe it disproportionately impacts lower socioeconomic groups. Poorer people don’t tend to have private places to smoke, so they drive around or smoke in public place like the streets or in parks. This leaves them more vulnerable to getting caught by us. Whereas, someone with means and wealth will have a house or other place they can smoke where law enforcement won’t be able to catch them. Unfortunately, this is true for law enforcement in a lot of regards, not just marijuana.

Q: Which do you believe is more dangerous: marijuana or alcohol consumption?

A: In my experience, it’s clearly alcohol. If you look at traffic accidents, domestic violence, or other violent crimes, a lot of them involve alcohol abuse. Alcohol, especially in the short term, is worse. I don’t know if we have sufficiently studied the health effects of marijuana for the long term. I’ve heard there are things in marijuana that cause cancer, worse than in cigarettes.

Q: How do you think your job will be affected if marijuana is nationally legalized?

A: I think it will be a mixed bag. There will be some things that will be easier, some harder. Obviously, we will have more people using it, initially at least. But hopefully there will be more people using it responsibly. I think it will be a learning curve; I’m interested to learn from law enforcement in the legalized states on how they are dealing with these issues.

November 9, 2017 in Decriminalization, Drug Policy, Law Enforcement | Permalink | Comments (0)

Wednesday, November 1, 2017

'Halloweed' Candy: scare tactic or real danger?

Weed halloween candy

Since marijuana was legalized in 2012, a running joke depicting strangers slipping marijuana-infused candy to young trick-or-treaters continues to be told. But proponents of legalization are expressing their frustration with such myths. They insist that there has been zero evidence of this ever happening and argue that opponents of legalization use this as a scare tactic to prevent legalizing marijuana. The Associated Press for Snopes reports: 

Advocates say marijuana candy has seemingly become the new “razor blades in the apples” Halloween urban myth, with police around the country sharing the message despite the lack of any known cases.

 

Sharon Lauchaire, a spokeswoman for the [New Jersey] attorney general, said there have been “several instances” in the state and elsewhere of children becoming ill after eating edible marijuana. She declined to respond to follow-up questions to cite specific cases and evidence of anyone doing this on Halloween.

Although politicians and law enforcement officials are unable to cite instances of strangers preying on innocent children, they maintain that such warnings are still necessary. Al Della Fave, a spokesman for the prosecutor’s office in Ocean County, New Jersey, admitted that the likelihood of a stranger giving a trick-or-treater marijuana-infused candy is "very slim." But he insists that the official warning to "check your kids' candy[.] If something's not in a manufacturer's wrapper...throw it out" remains warranted.

Such concerns are exacerbated by the extreme similarities between marijuana edibles and regular candy. Bill Brothers, owner of the Encanto Greens Dispensary in Arizona, admits that he probably could not tell the difference between marijuana gummy bears and regular ones if they were side by side. Brothers also believes that these 'Halloweed' fears could be relieved if the marijuana industry improved the labeling of its edibles. For example, the industry could increase the size of any marijuana-related words on the packaging and stop designing the wrapping like candy wrappers. 

Finally, anti-legalization activists cite hundreds of childhood marijuana exposures each year. German Lopez of Vox reports on why opponents of legalization insist on such warnings:

[Children being exposed to marijuana-infused candy is] an ongoing concern no matter what day of the year it is. Halloween is the unofficial candy holiday, so people should take extra precautions even if the October 31sts of the past haven’t shown up anything yet.

If parents of young trick-or-treaters are still worried about strangers using their expensive edibles to poison children, they should take solace in the fact that there has never been a confirmed case of someone dying from an overdose of marijuana. Further, the only known case of a child dying from poisoned candy occurred in 1974 when the culprit was none other than the child's own father.

 

--Zachary Ford

 

November 1, 2017 in Drug Policy, Edibles, Law Enforcement, Recreational Marijuana | Permalink | Comments (0)

Monday, October 30, 2017

Marijuana breathalyzers may soon revolutionize how law enforcement detects impaired drivers

Houndlab2Proponents for legalizing marijuana often argue that marijuana is safer than alcohol, and thus should be similarly regulated. But opponents have maintained a strong rebuttal: law enforcement is unable to detect with certainty whether people are impaired enough that they cannot safely operate a vehicle. But a company called Hound Labs is currently developing a solution to this problem: a marijuana breathalyzer. Lauren Silverman of Marketplace reports: 

The Hound device is a small, black breathalyzer that has a tube sticking out of it — you blow through it a few times, and... it’s able to analyze and detect the amount of THC in someone’s breath in minutes.

If Hound Labs is successful, this will revolutionize law enforcement's strategy for cracking down on impaired drivers, regardless of whether the state has legalized marijuana in some form. Currently, standard breathalyzers cannot detect marijuana, and urine and blood tests are not sophisticated enough to show whether someone consumed marijuana minutes or weeks ago. Further, results of such tests can take days or weeks to confirm through lab tests.

This current time delay is problematic because law enforcement officers want to prevent actually-stoned people from operating vehicles, not those who may have consumed the drug weeks ago. The Hound product solves this problem by recording the person's current level of THC within minutes. The company explains the effectiveness of this method through research showing "the level of THC in someone's breath rises right after smoking, and then trails off after a few hours."

Although police officers have shown an interest in such a marijuana breathalyzer, some are still concerned because they measure an amount, not a behavior. Sergeant Marc Vincent, a Drug Recognition Expert in Texas, voiced his concerns:

“Just because there’s marijuana [in their breath] — I need to be able to show, prove impairment that they can’t safely operate a vehicle[.]” 

While some legalized states like Colorado and Montana have determined the limit for marijuana impairment as five nanograms of THC in blood, scientists still disagree on what amount indicates someone is too impaired to safely operate a vehicle. This causes a problem for companies like Hound Labs because law enforcement departments are unlikely to purchase marijuana breathalyzers until a reliable measuring-system standard is in place. 

 --Zachary Ford

 

October 30, 2017 in Drug Policy, Law Enforcement, Recreational Marijuana | Permalink | Comments (1)

Sunday, October 8, 2017

Atlanta Unanimously Votes to Decriminalize Marijuana Possession

Atlanta pot blogAtlanta has joined a host of cities and states throughout the country which have drastically reduced the penalties for marijuana possession that the federal government established decades ago. Atlanta's unanimous decision to decriminalize marijuana possession has inspired legalization advocates nationwide due to its breaking away from both the federal government and the state its located in. Carl Willis of WSB-TV reports the impact of Atlanta's new law:

The current law allows for a penalty of up to $1,000 and up to six months in jail for anyone caught in possession of less than 1 ounce of marijuana. The new legislation would lower that to just a $75 ticket and no jail time.

Councilman Kwanza Hall proposed this legislation during his current run for Atlanta's mayor. State Senator Vincent Fort, another candidate for mayor, also supported Hall's decriminalization efforts. They have both stated their motivation behind their efforts involves how the former law unfairly punished African-Americans.

Citing studies that show whites and blacks use marijuana at virtually the same rate, they reveal that 92 percent of Atlanta's arrests for marijuana possession under an ounce are African-American. 

Stanley Atkins, an Atlanta citizen, supports the new law because a marijuana arrest as a teenager caused him to lose his employment. Atkins explains how the former law ruined lives:

"I have associates who have completely lost jobs. They've lost careers. I know students that have lost scholarships," Atkins said. "That cancels an internship, which later on cancels a potential job opening."

Opponents of the ordinance fear that removing jail time from marijuana possession offenses will be a disservice to young people because "it could encourage them to take more risks with marijuana, which some consider to be a gateway to harder drugs."

Another worry stems from increased driving fatalities. Police believe this law will "contribute to an increased possibility of folks driving under the influence of marijuana."

While this may be a big step towards Georgia pursuing similar laws statewide, the new city ordinance does not supersede state law. Thus, Georgia could withhold funding or send in state police to compel Atlanta to adhere to its state's law, if it so chooses.

Alternatively, Atlanta's Chief of Police could ignore the ordinance and continue making marijuana possession arrests. However, State Senator Hall believes this is an unlikely outcome due to police desiring stronger community relations. And when a community unanimously passes such legislation, Atlanta's police may find itself reluctant to go against the public's wishes.

 

--Zachary Ford

 

October 8, 2017 in Decriminalization, Drug Policy, Law Enforcement, Legislation, Local Regulation | Permalink | Comments (0)

Friday, September 8, 2017

Manhattan grants leniency for low-level marijuana offenders

AaaManhattan District Attorney Cyrus Vance, Jr., has announced new sentencing guidelines in low-level marijuana possession cases.  As reported in an article in PoliticoNewYork, the change  will be an encouraging step for supporters of immigrant rights and recreational marijuana use.

The new approach is expected to help some immigrants avoid penalties that could lead to deportation and comes amid backlash from municipalities and states over President Donald Trump's immigration policies — specifically the use of courts to identify and deport undocumented immigrants. Vance announced that his office is also working on a policy, to be implemented in the spring, to end prosecutions for low-level drug possession.

 

The sentencing guidelines for marijuana possession in the Manhattan DA's office previously offered a 12-month "adjournment in contemplation of dismissal" — or ACD — on the first offense, where the case is adjourned for 12 months and then dismissed and sealed if the defendant isn’t arrested again.

 

On a second offense, the previous guidelines allowed for the defendant to plea to either a marijuana violation or a disorderly conduct violation.

 

Now the Manhattan DA will offer an ACD for three months for the first offense and an ACD for six months for the second offense.

 

Vance explained the decision in a statement saying that a year is too long to have an open criminal case for a low-level, non-violent offense because it is publicly searchable online and can interfere with applications for college financial aid, housing or a job.

The city expects that some 4,100 individuals a year will be affected by the change. The program is set to being in the Spring of 2018.  Proponents expect that it will mean fewer deportations for low-level possession.

 -- Clarissa Dauphin

September 8, 2017 in Decriminalization, Drug Policy, Law Enforcement, Local Regulation, News, Recreational Marijuana, State Regulation | Permalink | Comments (0)

Thursday, September 7, 2017

House Rules Committee nixes medical marijuana spending amendment

 

Without legislation, states would lose protection they have enjoyed for the past four years, and Attorney General Jeff Sessions could begin his long-sought crackdown on the rapid expansion of legalized pot.  

 

 

Fellow Californian Rep. Duncan Hunter told The Hill that after Rohrabacher “talked about it this morning in conference,” GOP leaders said “it splits the conference too much so we’re not going to have a vote on it.”

 

Rohrabacher had pled with his colleagues in a Tuesday night floor speech to allow the vote.

 

“The status quo for four years has been the federal government will not interfere because the Department of Justice is not permitted to use its resources to supercede a state that has legalized the medical use of marijuana,” Rohrabacher said.

 

He said that without his amendment, “we’re changing the status quo in a way that undermines the rights of the states and the people … to make their policy.”

Rohrabacher’s amendment, co-sponsored with Democratic Rep. Earl Blumenauer (Ore.), was included in the previous four Commerce-Justice-Science funding measures, when President Obama was in the White House. It was also included in an omnibus funding bill signed by President Trump earlier this year that expires at the end of the month.

 

This doesn't mean that the Amendment is dead, however.  Its language was previously included in the Senate version of the bill, and given the fairly strong support it's had in the past few years, it may well find itself in the final conference bill despite yesterday's action.

 

 

September 7, 2017 in Drug Policy, Federal Regulation, Law Enforcement, Legislation, Medical Marijuana, News, Politics | Permalink | Comments (0)

Wednesday, January 6, 2016

Colorado Cops Still Running Marijuana Sting Operations

ADespite the legal market, Colorado law enforcement is still keeping busy arresting marijuana offenders.  CBS-TV Channel 4 in Denver reports that police are using social media advertisements for illegal weed in sting operations targeting buyers:

    The Internet social media websites have become a high-tech marketplace for drugs. On Instagram one post reads, “Place your order today, gets shipped out before 8 a.m.”

    It was Facebook where Denver police say 26-year-old Sean Edelson responded to a picture placed by them in a well-planned sting. It was a photo of a marijuana grow with the words, “Getting close to peak!! Taking orders now!!”

    The reply, police claim, from Edelson was, ‘I’m the type of person that will take everything, every time.”

    A meeting was then arranged at a Denver restaurant. Court documents allege $64,000 in cash was shown by Edelson to an officer as payment for 36 pounds of pot. Edelson was promptly arrested.

    . . .

    He now faces charges in a case which highlights how law enforcement is using social media to crack down on e-commerce in drugs.

    Gordon Coombes is a former Larimer County Sheriff’s Office drug investigator who would go undercover on the Internet to bust drug dealers.

    “If they wanted to know who I was they could search social media that would confirm my character,” Coombes told CBS4.

    On Craigslist CBS4 has shown there are plenty of ads for marijuana sales on the black market. But what those responding to the ads now don’t know is if they have been placed by police.

The defendants will likely argue entrapment, but that's going to be a hard sell given current law. 

The story is a good reminder that legalizing marijuana does not mean that law enforcement won't be arresting people for marijuana.  It just means the arrests will be for cheating the state of out marijuana taxes instead of for merely possessing it.

 

January 6, 2016 in Law Enforcement, News | Permalink | Comments (0)

Monday, January 4, 2016

DOJ Still Prosecuting Over Medical Marijuana

Jacob SullumNo, the federal government did not legalize medical marijuana in recent omnibus budget bill.  The bill reiterated language from last year's omnibus bill, known as the Rohrabacher-Farr Amendment, which prohibits using federal funds to prevent a state from "implementing" its medical marijuana laws.  But while various news sites trumpeted this as effectively ending the federal ban on medical marijuana, Reason's Jacob Sullum, in a piece titled The Federal Ban on Medical Marijuana Was Not Lifted, argues that the ambiguous language in the Amendment isn't stopping the Justice Department from prosecutions.

The problem with the Amendment is its language.  The Justice Department interprets it to mean that it cannot use federal funds to prosecute state employees who are involved in medical marijuana licensing, taxation, and regulation -- that is, those who are actually implementing the state program.  There seems to be a difference between implementing a law (for example, being a state employee who sets or enforces speed limits) and merely obeying a law (a driver who follows the speed limit).  If Congress had wanted to ban individual prosecutions, the most natural way to do so would have been to bar DOJ from prosecuting individuals and businesses who are licensed by state medical marijuana offices and who are in compliance with those regulations.  While it's true that the authors of the Amendment hoped it would ban individual prosecutions (and while one federal judge has said it does) the DOJ argument is, from a pure statutory construction perspective, perfectly reasonable.

Sullum concludes that even if the Amendment did bar DOJ from individual prosecutions, its effects are still very limited:

The rider has no impact in the 27 states that do not have medical marijuana laws, and it applies only to the Justice Department, so it has no effect on actions by the IRS or the Treasury Department that make it difficult for medical marijuana suppliers to pay their taxes and obtain banking services.

More fundamentally, the amendment, which has to be renewed every fiscal year, does not change the Controlled Substances Act (CSA), which continues to classify marijuana as a Schedule I substance with no legal uses. Because marijuana is still prohibited by federal law, people who grow and sell it, no matter the purpose and regardless of their status under state law, commit multiple felonies every day. If no one is trying to put them in prison right now, that is only thanks to prosecutorial forbearance that may prove temporary.

Anyone who provides services to marijuana businesses is implicated in their lawbreaking. Last week a Colorado credit union that wants to specialize in serving state-licensed marijuana businesses tried to persuade a federal judge that it is legally entitled to participate in the Federal Reserve's payment system, without which it cannot operate. The judge did not seem inclined to agree, saying, "I would be forcing the reserve bank to give a master account to a credit union that serves illegal businesses." The U.S. Postal Service announced last month that periodicals containing marijuana ads are "nonmailable," citing a CSA provision that makes it a felony to place ads promoting the purchase of illegal drugs. An accounting firm and a bonding company hired by a Colorado marijuana merchant recently paid $70,000 to settle a federal racketeering suit filed against them by a hotel whose owners were upset about plans to open a pot shop near their business.

Problems like these cannot be solved without changing marijuana's status under federal law. The Rohrbacher-Farr amendment does not do that, no matter how many hopeful headlines it generates.

January 4, 2016 in Decriminalization, Drug Policy, Federal Regulation, Law Enforcement, Legislation, Medical Marijuana, Politics | Permalink | Comments (0)

Monday, June 8, 2015

Texas MMJ Physicians Probably Won't Go to Jail

The Dallas Observer has an article with the scary title, Texas' New Medical Marijuana Law Could Send Doctors to Jail.

The story under the headline doesn't really match the scare, though.  The fact is that any physician anywhere in the country who is involved in helping a patient get marijuana -- a Schedule I controlled substance -- could be thrown in jail at any time, regardless of what any state law says.  The problem with the new Texas law -- as I wrote in an op-ed in the Dallas Morning News before the bill passed -- is that its wording misses a chance to decrease the risk that physicians will lose their rights to prescribe controlled substances if they prescribe cannabis for patients.

It's extremely unlikely that a Texas physician who complies with the new state law will go to jail.  As my colleague Chris Lindsey wrote:

The question as posed is "could it?" and the answer is yes, it could. If the question were "would it?" the answer depends not on the law as it was written, but on prosecutorial discretion. Clearly it is illegal for doctors to prescribe a Schedule 1 substance, as both the federal courts and the DEA have explained in response to the first medical marijuana law passed. For all the several states that have used the term "prescribe," none of them have functioned, so we don't actually know what federal prosecutors would do - likely because doctors are not inclined to take the risk.

The problem is that "very unlikely" isn't "no chance at all," and physicians who have spend their lives building up a substantial practice treating epilepsy may not want to run even the slightest risk of jeopardizing their practices.

On the other hand, my talks with various folks here in Texas suggest that there are, in fact, some physicians who are already planning to start prescribing the low-THC product when the system is up and running.  That's good news.

June 8, 2015 in Federal Regulation, Law Enforcement, Legislation, Medical Marijuana, State Regulation | Permalink | Comments (0)

Thursday, April 23, 2015

Senate Confirms Lynch as Attorney General

Well, it's official.  New York prosecutor Loretta Lynch is our new U.S. Attorney General.  What does that mean for marijuana legalization advocates?

Here's what she said in her confirmation hearings, when she was asked about President Obama's comment that marijuana is no more harmful than alcohol:

    "Well, senator, I certainly don't hold that view, and don't agree with that view of marijuana as a substance. I certainly think that the president was speaking from his personal experience and personal opinion — neither of which I am able to share."

    She added, "Not only do I not support legalization of marijuana — it is not the position of the Department of Justice currently, to support the legalization, nor would it be the position should I become confirmed as attorney general."

The Justice Department doesn't look like it's going to start being friendlier.  But maybe she was just blowing smoke for Republican senators.  We'll see.

April 23, 2015 in Law Enforcement, News | Permalink | Comments (0)

Rohrabacher Reintroduces Bill to Require DOJ to Recognize State Marijuana Regimes

Rep. Daha Rohrabacher and ten of his colleagues have reintroduced a bill that would prevent the federal government from prosecuting people who are acting in compliance with state marijuana legalization laws.  The bill is a response to the Obama Administration's position that its operatives are not, in fact, bound by language passed in last year's appropriations bill and signed by the President, which prohibits use of federal funds to pursue those who are in compliance with state marijuana regulations.   From Matt Ferner at HuffPo:

    “The American people, through the 35 states that have liberalized laws banning either medical marijuana, marijuana in general, or cannabinoid oils, have made it clear that federal enforcers should stay out of their personal lives," Rohrabacher said in a statement Wednesday. "It’s time for restraint of the federal government’s over-aggressive weed warriors.”

        . . .

    And while a federal spending bill signed by President Barack Obama in December prohibits the Department of Justice from using funds to interfere in state-legal medical marijuana programs, the DOJ has said that it doesn't believe the congressional measure prohibits them from prosecuting individuals or businesses in violation of federal law.

    The House bill introduced by Rohrabacher would go further than those previous measures by amending the Controlled Substances Act so it would make an exception to federal law for states that have developed their own marijuana policies.

    Under the Obama administration, the Drug Enforcement Administration and several U.S. attorneys have raided hundreds of marijuana dispensaries and sent people to prison, even though they complied with state laws. According to a 2013 report from advocacy group Americans for Safe Access, the Obama administration has spent nearly $80 million each year targeting medical marijuana.

    The federal government has ignored the congressional action, also introduced by Rohrabacher, in ongoing federal asset forfeiture actions against multiple dispensaries in the San Francisco Bay Area. The congressman sent a letter to Holder slamming the DOJ's interpretation of his amendment, calling the department's interpretation "emphatically wrong."

Co-sponsoring the bill, H.R. 1940, are Reps. Justin Amash (R-Mich.), Earl Blumenauer (D-Ore.), Steve Cohen (D-Tenn.) Duncan Hunter (R-Calif.), Tom McClintock (R-Calif.), Thomas Massie (R-Ky.), Jared Polis (D-Colo.), Jan Schakowsky (D-Ill.), Dina Titus (D-Nev.), Mark Pocan (D. Wisc.), and Don Young (R-Alaska). 

The bill has been referred to the Committee on the Judiciary (where Rep. Cohen the ranking minority member of the Subcommittee on the Constitution and Civil Justice), and the Committee on Energy and Commerce (where Ms. Schakowsky is ranking minority member of the Subcommittee on Commerce, Manufacturing and Trade).

What's also interesting is the diversity of the sponsors.  Mr. Rohrabacher is a former Reagan speechwriter and a strong free-market proponent, while Mr. Amash is the head of the House Liberty Caucus and is usually regarded as a Tea Party favorite.  On the other hand, Ms. Schakowsky, Mr. Cohen, and Mr. Pocan are all active in the Congressional Progressive Caucus and are among the House's most liberal members.

That diversity, and the fact that a majority of Congress supported the restrictions that the Administration is now ignoring, means that the bill might have a much better  chance now than it did when last introduced in 2013.

 It will be interesting to see if President Obama, in light of his recent remarks, will make any effort to put Administration's support behind the bill.

April 23, 2015 in Drug Policy, Federal Regulation, Law Enforcement, Legislation, News, Politics | Permalink | Comments (0)

"Marijuana Activists Cheer Michele Leonhart's Exit from the DEA"

That title of an article from BloombergPolitics from about sums up the general reaction among legalization advocates about Ms. Leonhart's ouster after fallout from sex-and-corruption scandals in the agency. 

Like most in the community, I hope that her replacement will be less of a hard-liner, but I don't see any evidence he or she is likely to be.  After all, President Obama knew exactly what she was about when he reappointed her five years ago, and he made no apparent attempts to restrain her even as armed DEA task forces descended like locusts on medical marijuana establishments.  Neither he nor Attorney General Eric Holder put a stop to that -- it took (weirdly enough) the  Republican-dominated House of Representatives to do that via an appropriations bill.

So while I hope that the new DEA head will be open to doing something the Administration has refused to do for six years -- move toward rescheduling and thus allowing research -- I fear that weed advocates may be in for a letdown.  This reaction, for example, is from the article linked above:

    [Marijuana Majority founder Tom] Angell said that advocates were disappointed and shocked that Obama reappointed Leonhart—a holdover from the Bush administration—to the job in 2010. Since then she's taken a very firm anti-marijuana stance that has alienated supporters of less strict drug laws. In 2011 she was criticized for saying that increased drug war violence in Mexico, including the deaths of over a 1,000 children, was “a sign of success in the fight against drugs.” During a 2012 House Judiciary subcommittee hearing, Leonhart refused to say whether marijuana is safer than crack. 

    Days after Obama, in January of 2014, told The New Yorker that marijuana is safer than alcohol, Leonhart reportedly criticized his comments and said that the lowest day of her 33 years in law enforcement was when a hemp flag flew over the nation’s capital. “Obviously we shouldn’t judge her based on her one comment, but it’s a very telling comment,” said [Marijuana Policy Project's Mason] Tvert.  Tvert accused Leonhart of being “an anti-marijuana zealot” and said the next DEA chair “must be willing and able to recognize the fact that marijuana is relatively less harmful than alcohol and other illegal drugs.” 

I very much respect Messrs. Angell and Tvert, but I'm afraid they may be giving too much credit to what President Obama says in an interview, and too little to what he does in office.  If he really believes what he's now saying about marijuana -- rather than just pandering to what he thinks millennials what to hear -- you'd think he would have done something about it at some point in the past six years.

I mean, seriously, after spending two and a half terms killing children in Mexico, throwing vast numbers of minority users into jail, smashing doors and burning property, did he wake up April 19 and suddenly think, "Oh, hey, I didn't know there was all this science stuff out there?  Maybe marijuana isn't so bad!"

That doesn't mean, of course, that he won't appoint someone who's less of a hard-liner, merely that he's shown considerable ability to say things in the media that do not reflect what he's actually doing.  So I agree with Mr. Angell that what he does now will give us a good idea of what his Administration really thinks about the issue:

    Angell noted that Obama now was a chance to prove his commitment to science over ideology. “The president always talks about how science should dictate public policy,” he said. “Well, now he has a chance to actually appoint someone who’s going to carry that through.” 

I certainly hope I'm being too pessimistic.

April 23, 2015 in Drug Policy, Law Enforcement, News, Politics | Permalink | Comments (0)

Tuesday, April 21, 2015

The (Strange) Case of Shona Banda

You've probably already seen the story:  A Kansas woman may lose custody rights to her 11-year-old son affected by her arrest on charges of possession of marijuana with intent to distribute and endangering the welfare of a child

The Shona Banda story is becoming a kind of cause célèbre in the medical marijuana community.  The pro-MMJ crowd is certainly putting it in the best possible light.  Ms. Banda is described as "the Kansas medical marijuana advocate who lost custody of her son after he spoke up in class in support of the treatment benefits of weed." CBS News' title for its latest story is Kansas mom loses custody of son, 11, after he gives marijuana speech.  The spin seems to be that the boy said positive things about marijuana in class, so the state is taking away his mother's custody rights.

The case is plainly an example of the problems caused by harsh drug laws, but I'm not sure it's really wise to jump on the Innocent Victim bandwagon.  According to reports, she wasn't just found with a couple of ounces for medicinal use stored carefully away from her son.  Rather, as the Wichita Eagle reported, police armed with search warrants "found about 1 1/4 pounds of marijuana and a lab for manufacturing cannabis oil on the kitchen table and counters, drug paraphernalia and other related items. . . .  Authorities said the items were within easy reach of the child."  At about $350 an ounce (an estimate of the illegal street price in Kansas in late 2014). we're talking about a substantial amount of weed.  The boy apparently told investigators that "there was a lot of drug use occurring in his residence."

Which is presumably why she's facing potential felony charges.  The stories seem to make it pretty clear that she was distributing marijuana, whether or not she charged for it.

Possessing some medical marijuana is one thing; operating a distribution business out of the house where you live with your 11-year-old son is something different.  I can sympathize with someone who has a personal supply of illegal prescription painkillers in the house; I have less sympathy for somebody who's a drug distributor.  Cannabis oil processing is, after all, not a risk-free operation, and doing on the kitchen table while the kid is making a sandwich strikes me as something that clearly ought to be considered in deciding a custody dispute.

If we change the gender, and assume that a divorced dad was found to be operating a cannabis business out of the home on the weekends he had custody, don't you think mom would have some legitimate cause for concern?

April 21, 2015 in Law Enforcement, News | Permalink | Comments (1)

Wednesday, April 15, 2015

I'd Buy That for a Dollar

On the game show The Price is Right, contestants have to guess the price of whatever consumer item is placed before them. The person who gets closest to the actual price wins, but if he or she goes over, that contestant automatically loses. There is often some crafty contestant who guesses the lowest possible price (usually $1.00), so that if everyone else is over, he  or she wins.

That is how I see this play by New Jersey Gov. Chris Christie - claiming that if he were elected president, he would clamp down on the various forms of legalization (despite what the majority of Americans support). Sure, America has moved on and wants a new policy. But just in case all these other candidates are overplaying the marijuana card, he wants to be the guy that wins if everyone else loses.
 
From the Huffington Post story:

When asked by Hewitt if he would enforce federal drug laws in those states that have legalized and regulated cannabis, Christie responded unequivocally.

"Absolutely," Christie said. "I will crack down and not permit it."

Citing an "enormous addiction problem" in the U.S., Christie, who has not yet announced a presidential run but has launched a political action committee, said that a very clear message needs to be sent "from the White House on down through federal law enforcement."

"States should not be permitted to sell it and profit" from legalizing marijuana, he said.

Never mind that New Jersey is a medical marijuana state, or that this is a federalist system in which states get to make that decision. I'm sure both Nancy Reagan and Drew Carey would be proud of the strategy. Yeah, it's Drew now. Bob Barker retired. 

April 15, 2015 in Drug Policy, Law Enforcement, Medical Marijuana, Politics, Recreational Marijuana, State Regulation | Permalink | Comments (0)

Tuesday, March 24, 2015

Same anti-legalization arguments, new state

As Douglas Berman pointed out, Derek Siegle, executive director of the federally funded Ohio High Intensity Drug Trafficking Area  Program, presented a guest column piece today at cleveland.com, in which he included nearly every argument he could imagine in opposition to ending marijuana prohibition. His article presents a wonderful (if stream-of-consciousness) summary of all the main talking points currently used by HIDTA officials around the country. This seems like a great opportunity to dispel some of the dire warnings we often hear. I’m cherry picking here, since there are so many arguments, a full response rather longish. But here are some of the more commonly used, and abused, arguments I see out there.

Not that many people are arrested for marijuana possession, so the impact on the criminal justice system isn't that great.

I never really understood this argument. It seems to be saying "we could be jailing everyone, but we really aren't doing it all that much - so that's good, right?" If it is so rarely invoked, then why allow for jail time at all? It seems to suggest that even the system recognizes that jail is not an appropriate sanction. 

Of course, lots of people (particularly African Americans) are arrested for possession, so this argument might not be as compelling for those lucky contestants who win a free police escort to their local jail. But more to the point, the criminal justice system is far more than incarceration. Jailable offenses mean court appointed attorneys or private counsel, courtroom time, and the time law enforcement spends processing cases. On the back end, it can mean the loss of personal property and money in asset forfeiture proceedings, along with probation. Even technical violations of probation rules can lead to (re)arrest and incarceration, which would not show up in the claim that possession doesn't often lead to jail time. And then there is a criminal drug conviction that could show up in background checks for jobs, school, and housing for a lifetime. 

Heavy consumers may find that the accumulation of THC in their system can affect them in a variety of ways, both physically and mentally.

If this is true, it is a compelling reason to not over-consume, but there is no reason to believe that criminalizing behavior changes people’s practices. Research has shown that teen use does not go up when penalties go down. Nebraska and Mississippi removed the possibility of jail in the 1970s, and teen use is lower in those states than in neighboring Texas, which treats possession as a crime. Studies also generally show that raising penalties for use does not deter behavior, and lowering penalties does not encourage behavior. The bottom line is that while marijuana over-consumption could possibly be a health concern, making it a crime does not deter consumption nor deal with the actual concern mentioned here - health.

Marijuana is more potent than it used to be.

There is some evidence that marijuana is more potent that it was several decades ago, but unlike both narcotic medications and alcohol — which take the lives of tens of thousands of Americans every year — there are no known incidents of overdose deaths attributable to marijuana at any time.  Despite its increased potency, it is still a safer alternative than substances we already regulate and control.

Potential tax revenue will only cover about 15 percent of the collateral costs to our community: increased drug treatment, emergency room visits, crime, traffic accidents and school "dropouts."

While it is not clear where HIDTA's statistics come from, the Congressional Research Service did an analysis of the revenue potential of a federally taxed adult marijuana market, published in November 2014, which is directly on point. It found these costs manageable with a modest tax:

Economic theory suggests the efficient level of taxation is equal to marijuana’s external cost to society. Studies conducted in the United Kingdom (UK) and Canada suggest that the costs of individual marijuana consumption to society are between 12% and 28% of the costs of an individual alcohol user, and total social costs are even lower after accounting for the smaller number of marijuana users in society. Based on an economic estimate of $30 billion of net external costs for alcohol, the result is an external cost of $0.5 billion to $1.6 billion annually for marijuana. These calculations imply that an upper limit to the economically efficient tax rate could be $0.30 per marijuana cigarette (containing an average of one half of a gram of marijuana) or $16.80 per ounce. An increased number of users in a legal market would raise total costs, but not necessarily costs per unit.

We do not know what the wholesale or retail sales rate would be under the better-known legalization effort in Ohio, or if they are comparable to prices in other parts of the country for similar products. If they were, a tax rate of 15% would be considerably higher than $16.80 per ounce. 

States that do not tax medical marijuana find that their adult consumers cheat and sign up as medical marijuana patients. And most medical marijuana patients are under 40.

First of all, the “most are under 40 argument” is simply false. According to state marijuana program statistics, the average age of patients in Colorado is 42.  The average in Montana is 47, and the average in Arizona is between 40 and 50.

Secondly, in states that have both medical marijuana and adult use, whether or not people are gaming the system is a question for regulators, not an argument in favor of maintaining the criminality of marijuana use. It is worth noting that according to research by the Toronto-based Center for Addictions and Mental Health and the Canadian Centre for Substance Abuse, there are somewhere between 400,000 and 1 million self-reported medical cannabis users in Canada, or approximately 4% of the adult population, while only around 1/10 that number are registered patients. It is hard to speculate how many adult consumers would qualify as patients. But at the end of the day, it took a medical professional - not a law enforcement officer - to recommend medical use of marijuana in the first place.   

Legalization will lead to greater use by our youth.

This statement is directly contradicted by peer-reviewed studies, which show that teen use either remained constant, or more often than not, dropped in medical marijuana states. (One interesting question is whether or not teen use of alcohol went up or down after alcohol Prohibition ended. Incidents of reported alcoholism actually did drop based on medical records from the time, but I have never seen this issue researched with respect to teen use.)

Marijuana is a gateway drug.

No anti-marijuana opinion piece is complete without the gateway drug myth, which has been repeatedly debunked by those who have actually studied it, most notably in a White House-commissioned study by the Institute of Medicine in 1999. That study found that marijuana "does not appear to be a gateway drug to the extent that it is the cause or even that it is the most significant predictor of serious drug abuse.” The gateway myth confuses causation and correlation. As recently explained by Susan Weiss, a psychologist with the National Institute on Drug Abuse, “[p]eople tend to use marijuana before they use other illicit drugs, but that’s probably because it’s much more available, and it’s the drug that people are more likely to come in contact with.” Just like alcohol does not cause people to use marijuana, marijuana does not cause use of harder drugs.

I would also point out that California has allowed practically unregulated medical marijuana since 1996 without any perceptible increase in hard drug use. 22 other states and D.C. followed. Where are all the new cocaine and heroin users ushered in by these laws? But hey, it sure sounds scary. 

Accidents and fatalities on the highway will increase if marijuana is more available as it has in Colorado.

The Colorado Department of Transportation has called out HITDA for misusing state statistics in the law enforcement agencies' repeated efforts to advance this argument. In reality, very recent research by federal government’s own National Highway Traffic Safety Administration (NHTSA) found THC-positive drivers possess no elevated risk of motor vehicle accident, after adjusting for drivers’ age and gender. NHTSA acknowledges that this is the largest US-based crash risk assessment ever performed. They also note that their findings are ‘in line’ with other well-controlled studies also finding little to no increased risk.

If marijuana is medicine why isn't it prescribed?

This is one of my personal favorites. Here’s why not:

  • The Food and Drug Administration (FDA) studies and approves or rejects drugs for prescription use.
  • It doesn't study a substance for medical benefit if the drug is already scheduled as having no medical benefits - it needs to be rescheduled first as something with at least theoretical medical benefit.
  • The DEA has the authority to reschedule marijuana, thus enabling the FDA to begin study in earnest, but refuses to do so until there are studies on its medical benefit.
  • Any studies on medical benefit (or any other use) must use marijuana provided by the National Institute of Drug Abuse (NIDA).
  • NIDA has an institutional policy, imposed by Congress, to only make marijuana available for research if that research examines its harmful effects.

The lack of study is based on the federal government’s general policy to refuse to make it available for studies on its benefits – not because marijuana actually does lack medical benefit.

Crime went up in Colorado after legalization.

No, it did not. Well, some types of crime did go up, while other categories dropped. The claim that crime increased selectively reports the data in order to fit the theory, ignoring the crime rates that dramatically fell. In fact, it's probably too early to really know what has happened to crime rates, although street cops in Denver don't seem to think it made much difference.

As I mentioned in the comments section following Doug’s post, the real problem with these sorts of arguments is that they lack any solution except "maintain the status quo – or else!" All they really do is present the possible harm to society/kids/budgets/crime rates if things change. But in reality they have been changing for decades and the sky is still, well, in the sky.  If there really were horror stories to tell based on what states have been doing since reducing criminal laws since the 70’s, or adopting medical marijuana laws since the 90’s, or legalizing marijuana since 2013, we would not be arguing about hypotheticals. 

March 24, 2015 in Decriminalization, Drug Policy, Federal Regulation, Law Enforcement, Legislation, Local Regulation, Medical Marijuana, News, Politics, Recreational Marijuana, Research, State Regulation, Taxation | Permalink | Comments (0)

Monday, March 9, 2015

Why Most CBD Laws Fail

2014 was the year conservative state legislators discovered cannabidiol, or CBD, and rushed to pass nearly a dozen laws intended to allow access. 2015 will likely see the passage of at least a few more. Unfortunately, with the exception of one state, these laws are proving to be utterly dysfunctional and end up betraying the hopes of the seriously ill patients whom they are intended to help. 

CBD is one of many active ingredients in marijuana that shows tremendous promise for its medical applications. Most notably, for some people it seems to contribute to a huge reduction in the number and severity of seizures when traditional medicines fall short. As a result, CBD has become very popular in some circles — particularly among parents — as something of a miracle cure. 

It also became a miracle cure for conservative legislators, who are under increasing pressure to pass medical marijuana laws. While there is more and more evidence that marijuana really does have practical medical applications, conservative states really can’t get over the fact that marijuana is used recreationally too. This rankles. Add to that the association with damned dirty hippies, and conservative legislators in Tennessee, Alabama, Kentucky, Mississippi, the Carolinas, Utah, Iowa, and other red or dark purple states find the whole medical marijuana thing too icky to seriously contemplate. 

Enter CBD, which doesn’t lead to euphoric effects. Helping sick kids without opening a back door to the subculture getting access to legal pot is a win-win as far as these states are concerned. It seems to provide a simple solution to a complicated problem. One state passed a CBD law in 2013, with 10 more additions in 2014. Our first 2015 addition to the club is Virginia.   

These laws go by different names, including “high CBD,” “low THC,” “hemp oil,” “cannabis oil,” and others. The only real naming convention is that they rarely use the word “marijuana.” But like a lot of simple solutions to complicated problems, there’s a catch: almost none of them work. 

There are several reasons for this, and it is important for those who advocate for these laws to know and take measures against their nearly perfect record of dysfunction. Here is my top ten list, which I pared down to five because ten is actually a lot. 

  1. CBD cannot be prescribed by a doctor. Like the plant from which it comes, CBD is a schedule 1 substance and a prescription from a doctor for it is illegal. Language which requires it to be prescribed (de facto or otherwise) renders the law moot because of federal law. And of course doctors can’t distribute it either. (Alabama, Florida, Kentucky, Wisconsin)
  2. Colleges won’t grow marijuana. Some of these laws require post secondary schools to cultivate marijuana plants used to produce CBD. But since colleges and universities are heavily dependent on federal government dollars for research and student aid, they won’t go there. While technically the DEA could authorize it, they have only ever allowed one university to do it: the University of Mississippi. (Tennessee, Utah)
  3. Patients cannot legally transport CBD across state lines. Some of these laws do not allow in-state cultivation or distribution, and either imply or advise patients to go somewhere else and bring it back home. The federal government has a catchy phrase for this, called “interstate trafficking of a controlled substance.” It is frowned upon.  (Iowa, North Carolina, maybe South Carolina, Wisconsin)
  4. States cannot violate federal law. CBD laws that require the state to be in the business of cultivation or distribution are moot because it requires a state to break federal law. It’s one thing to regulate (probably not a direct conflict), it’s another to grow marijuana and distribute it. (Nearly Missouri until amended at the last second, Utah)
  5. Affirmative defense bills suck. Sometimes we see bills that say that if a person gets in trouble, they can get out of it if they meet certain criteria. But first there is an arrest, one or more criminal charges, possible jail, press coverage, lawyers, lost jobs, and no infrastructure to actually get CBD other than breaking a series of laws. They are no solution at all. (Alabama, Mississippi, Virginia)

The one state that got it right was Missouri. How did they do it? Well, they listened to the organizations that have been passing workable medical marijuana laws for a long time now. Then they calibrated the regulatory structure to allow only a minimal amount of THC. Smart. Kansas is now considering a similar approach. Texas? Not so much. They want doctors to prescribe it and the bill sponsor is now refusing to consider any amendment. <Sigh.>    

While there is some entertainment value in tittering behind our collective hands at legislators who think they know better and don’t, there are significant problems. First, they distract from comprehensive bills that actually do work – not only for the seizure patients, but for the other 98% of the patients in the state who could benefit from larger amounts of THC. Second, they are likely to gum up the legislative process for at least a second session while legislators try and figure out what to do to fix these broken laws before they consider anything broader. And finally, they leave those who urgently need CBD out in the cold while legislators proclaim victory and return to finding ways to make it harder for Democrats to vote. 

Most of the national groups continue to push for comprehensive medical marijuana laws, but for those states in which they are not politically possible, I hope they can learn the lesson from their peers and then look to Missouri. Because where CBD laws are concerned, Missouri actually does turn out to be the Show Me State. 

March 9, 2015 in Drug Policy, Federal Regulation, Law Enforcement, Legislation, Medical Marijuana, Really Stupid, State Regulation | Permalink | Comments (0)

Friday, March 6, 2015

Colorado Sheriffs: Which Constitution Should We Follow?

Chris Lindsey noted yesterday a lawsuit by sheriffs in three states asking a federal court in Denver to declare Colorado's legalized cannabis regime unconstitutional.   The claims by sheriffs from Kansas and Nebraska make much the same claims as those made in the pending Nebraska v. Oklahoma lawsuit pending in the U.S. Supreme Court, that their jobs are made more difficult by the flow of quasi-legal weed from the Centennial State.

The claim by the Colorado sheriffs, however, is different, and in some respects more interesting.  They claim that they have taken oaths of offices to protect and defend the constitutions both of the United States and of Colorado -- and Colorado's refusal to follow federal law forces them to violate their obligation to enforce the law of the land.

Whether there is a cause of action here or not is outside my areas of expertise.  It is very definitely within the expertise of Doug Berman at MLP&R, so here's his take:

I fully understand why various law enforcement officials, who seemingly enjoy and benefit from waging a drug war without many limitations or uncertainties, are struggling to deal with the new legal regimes in place in Colorado and other marijuana reform jurisdictions. Indeed, I am especially sympathetic to those sheriffs in non-reform jurisdictions which border reform regions because they have to deal with unique spill-over challenges. But this is a problem that has been long endured by localities with lots of other potential dangerous but legal products like alcohol and guns, and I find a bit troublesome that in this context law enforcement officials are so quick to turn to make novel claims in courts to vent their frustrations with what is really just a small pull-back in the modern drug war.

I don't disagree with this, although I suspect I'm more sympathetic to the Colorado sheriffs.  Most of them genuinely believe that marijuana is bad and the War on Drugs is necessary.  And I suspect they've seen a whole lot more of the actual harm marijuana can cause than most of us.  I believe they're wrong because they tend to underestimate drastically the harm caused by the War on Drugs itself, but that's an honest disagreement.

And I sense the discomfort with being told not to enforce a federal law when they see it violated before their eyes.  I'm a lawyer, so I'm obliged by my own oath to support the Constitution and to respect federal law.  When I'm asked to help a business violate federal law, my own ethical sensors kick in, although I have decided that it's appropriate to do so given the current situation.

Nevertheless, it's a bad situation when law enforcement officers are forced to ignore violations of the law and lawyers have to decide whether to cooperate in illegal activities.  Necessary, given the current situation.  But still bad.

That said, Doug says the claim is "novel," which I take it means that it's not likely to go anywhere.

March 6, 2015 in Drug Policy, Federal Regulation, Law Enforcement, State Regulation | Permalink | Comments (0)

Tuesday, March 3, 2015

Top Cop in D.C. Weighs in on New Marijuana Law

In journalism, the phrase “man bites dog” refers to the notion that the unusual is more likely to receive coverage than the ordinary. Today’s man bites dog story comes from the District of Columbia, where the chief of police voiced her support for the district’s new law that that allows adults to be in possession of up to two ounces of marijuana, give one of those ounces to another adult, and grow up to six plants at home. The law went into effect February 26. Today, quotes attributed to Police Chief Cathy Lanier include such zingers as “It’s a small change,” “We’ve embraced it,” and “No big deal.”  

But of course it is a very big deal. The nation’s capital - the seat of the federal government - now allows individuals to possess, grow and distribute (free of charge at least) a substance that is illegal under federal law. And we don’t often hear law enforcement take that sort of thing in stride. 

I say we don’t often hear it, because in jurisdictions such as Colorado and Washington, law enforcement has generally found that significantly changing marijuana laws has not produced the swarm of locusts or rivers of blood we were promised. 

Now that gay marriage is a reality in many parts of the country, stories on gay marriage just won’t be news much longer. It is heartening to think that as more jurisdictions move away from failed marijuana policies, and law enforcement finally gives a collective shrug over the end of prohibition, these types of stories won’t be news either. 

March 3, 2015 in Decriminalization, Drug Policy, Federal Regulation, Law Enforcement, Local Regulation, News, Recreational Marijuana | Permalink | Comments (0)

Thoughts on the First Tribal Marijuana Conference

The event was a huge success.  The more than 300 guests nearly overflowed the Orca Ballroom at the beautiful Tulalip Resort, so much so that the fire marshal ordered that no more tables be brought in.  There was a mix of lawyers, advocates, policy experts, business people, and (most important) a large number of tribal leaders from around the country.

Doug Berman over at MLP&R did some live blogging during the morning after his opening panel ended.  I echo everything he says about the quality of the program.  I'm a professor, so I've sat through a lot of conferences in my time, and I've rarely been to one where the quotient of good information per hour of time was higher.

Perhaps the best thing about the event was its practical focus.  Marijuana-related events sometimes have a tendency to drop into rah-rah mode, and my sense was that the crowd in the room (based on where the applause came) was generally pro-legalization.  But the speakers themselves emphasized over and over that the devil is in the details.

At the lunch session, two veteran marijuana observers, Mark Kleiman of UCLA and Jacob Sullum of Reason magazine, emphasized some basic economic realities: in a legalized world the price of weed won't be anywhere near the current market price, and thus the vision of making several thousand dollars per plant is likely unsustainable.  Yes, there's potential profit there, but as in any commodity business it's likely to go to those who are the most efficient producers.

Perhaps the day's most informative panel -- at least for me -- was the one that featured two city attorneys who have been intimately involved in the hard work of making legalization systems work, Thomas Carr of Boulder and Pete Holmes of Seattle.  The sheer number of moving parts involved in the process is enough to make tribes wary.  Their advice:  Plan ahead.  Then plan some more.

In my view, the tribes considering marijuana sales face a conundrum.  Those who move first into sales will likely make a lot of money, given the current artificially high prices.  But they are also the most likely to run into the problems that come from hasty action and are most liable to any shifts in the political winds.  Those who take their time and plan carefully will avoid the problems, but by the time they act, increasing competition will have driven much air out of the price, and potential profits will be lower.

One possibility, though, is that in non-PL 280 states, tribes might be able to sell weed without complying with state regulate-and-tax schemes, and thus will continue to have a huge price advantage over potential competitors.  Professor Kleiman suggested that this would be "catastrophic," since tribes could thus upend carefully crafted state policies.  As I've said before, I don't view it as a bad thing -- it would be nice to see a capitalist industry grow up so that we can examine it in detail before we decide how best to regulate it.

I want to add that I was extremely impressed by the three lawyer-organizers of the event who served on the panels.  I'd never met Robert Odawi Porter, but after hearing him there's a reason he's regarded as one of the best in the country at tribal law.  And the two young lawyers from Harris Moure who covered business issues in the day's final panel -- Hilary Bricken and Robert McVay -- matched their knowledge of the issues with some thoughtful advice.  It's good to see this kind of capable representation growing up in the nascent business.

March 3, 2015 in Business, Decriminalization, Drug Policy, Law Enforcement, Local Regulation, Medical Marijuana, Recreational Marijuana | Permalink | Comments (0)

Wednesday, February 11, 2015

Study: Marijuana Use Has Little Effect on Car Crashes

This actually seems like a pretty good study on the subject:  Marijuana Doesn’t Pose Significant Risk in Car Crashes, NHTSA Says:

    According to a new study commissioned by the National Highway Traffic Safety Administration, people who smoke marijuana have a minimally higher risk of crashing than those who stay sober. During a 20-month study of 10,858 drivers in Virginia Beach, researchers working 24/7 compared drug and alcohol readings from people involved in crashes against similar people (at the same time of day and location) who kept their cars intact. The main takeaway: When factoring age, sex, and race, there was no “significant increased risk of crash involvement” due to marijuana use.

    Excluding those demographics, NHTSA said stoners had a 25-percent higher risk of crashing but at the same time attributed that increase to a greater representation of younger, predominantly male drivers who already top actuarial spreadsheets for loss and damages. Weird as it seems, the actual measured risk of THC-registered drivers, at five percent higher than sober drivers, dropped to zero when those drivers had also consumed alcohol. (You may have heard some uproar in 2013 about random police checkpoints asking drivers for anonymous blood, saliva, and breath samples. That was part of a separate survey, and right now, the marijuana study is the only one of its kind to correlate marijuana impairment and vehicle accidents in such an exacting way.)

    When it came to just alcohol, the outlook predictably got worse. At a blood-alcohol content of 0.05—interestingly, the lower limit suggested by the NTSB and which we support—drivers were twice as likely to have an accident than someone who hadn’t touched any booze. At the legal 0.08 nationwide limit, that risk climbed to fourfold; at 0.12, it was nearly eight times higher.

    There are several caveats that NHTSA fully admits. Unlike alcohol, THC concentrations in the blood don’t necessarily equate to intoxication at that moment (the mind-altering substance can be detected for days, if not weeks, afterward). Tolerance, metabolism, and various other degrees to which marijuana affects different people are also difficult to establish in studies like these. The 2682 car crashes the study investigated, 15 of which involved fatalities, were “less severe” and meant to mimic the majority of accidents that occur each day and week across the U.S. Had the researchers focused only on more severe and deadly crashes, marijuana (and other prescription and illegal drugs tested) might pose a higher risk. There’s also the little issue of the lack of any uniform test or scientific determination of a driver’s true impairment. No one, not even authorities in states like Colorado, has come up with a simple solution. NHTSA says it simply doesn’t know as much about pot as it does about alcohol.

This obviously doesn't settle the discussion -- we just don't know enough about how pot affects the brain (yes, due in great part to the federal government's recalcitrance in allowing studies) -- but it's very encouraging.

February 11, 2015 in Drug Policy, Law Enforcement | Permalink | Comments (0)