Friday, September 8, 2017
Manhattan 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
Thursday, September 7, 2017
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.At a Wednesday morning closed-door briefing of House Republicans, California Rep. Dana Rohrabacher (R) implored his GOP colleagues to press House leaders to allow a vote on his amendment.
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.
Wednesday, January 6, 2016
Despite 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.”
. . .
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.
Monday, January 4, 2016
No, 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.
Monday, June 8, 2015
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.
Thursday, April 23, 2015
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.
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.
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.
Tuesday, April 21, 2015
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?
Wednesday, April 15, 2015
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.
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."
"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.
Tuesday, March 24, 2015
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
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.
- 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)
- 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)
- 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)
- 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)
- 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.
Friday, March 6, 2015
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.
Tuesday, March 3, 2015
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.
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.
Wednesday, February 11, 2015
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.
Tuesday, February 10, 2015
The first Indian nation to embrace medical marijuana growing seems to have backed off, or at least slowed down. A week or two ago came news that the Pinoleville Pomo Nation was poised to begin growing MMJ on tribal lands. But a reader sends us this update on that story, which I hadn't seen:
The Pinoleville Pomo Nation's proposed medical marijuana growing endeavor appears to be off for the time-being after a meeting with Mendocino County Sheriff Tom Allman Thursday.
Allman acknowledged Friday morning that he had a 'lengthy' meeting with involved individuals he would only identify as a "couple representatives," who he said visited the Sheriff's Office for an hour-and-a half about the proposed 2.5 acre medical marijuana growing facility.
Construction of the project was reportedly scheduled to proceed this month on Pinoleville's land just north of Ukiah involving two other out-of-state investors, FoxBarry Cos. LLC out of Kan., and United Cannabis Corp. in Denver, Colo.
Allman also acknowledged all parties present during the discussion were cooperative with his concerns.
"I think we all agreed there is no need to proceed on the project," Allman said. "As far as I know there are no laws that allow this. What we did discuss is there certainly needs to be more research on the project that is being proposed."
Allman said the specific topics of discussion were public safety and quality of life concerns for Mendocino County residents, followed by the subject of the environment, including water, and the legality of the concepts being proposed.
Mendocino County District Attorney Spokesman Mike Geniella said as of Thursday afternoon District Attorney David Eyster still hasn't received a response to his written request for detailed project information. Geniella said last week that Eyster had sent out a multiple page request for information by certified mail to FoxBarry, United Cannabis and the Pinoleville tribe.
"He's (Eyster) giving them the appropriate amount of time," Geniella said. "Supposedly FoxBarry is saying they're going to be meeting with local officials, but we haven't heard from them, nor have they scheduled anything. "Eyster will not meet with them unless they provide answers to his detailed questions."
An editorial in the Ukiah Daily Journal confirms that Sheriff Allman has nixed the proposal. The sheriff relies explicitly under his authority to enforce federal law under P.L. 280.
Here's the paper's take on the issue:
We are glad to hear that Sheriff Tom Allman has politely but firmly put his foot down over local tribes starting up marijuana growing businesses.
Allman has made it clear to the marijuana entrepreneurs from Kansas and Colorado who want to partner with the Pinoleville tribe in Ukiah to open a 2.5-acre marijuana farm, that there are no laws that allow them to do that.
It appears that a new sort of “urban myth” has grown around a memo sent out by the U.S. Department of Justice about its priorities for prosecuting marijuana growing in states that have legalized it to some extent. The memo, known as the “Cole Memo” which dates back to early 2014, does not mention Indian lands among the eight priorities for prosecution. Those priorities include keeping pot away from minors, keeping criminal enterprises out of the marijuana business, preventing marijuana grown legally in some states from traveling to other states where it remains illegal, on so on.
Another DOJ memo released in late 2014 discussed requests from tribes in states where marijuana has been legalized for guidance about what they can do on tribal lands. That memo referred back to the Cole memo but added that nothing in the Cole memo means that federal marijuana laws are no longer going to be enforced on tribal lands.
Nonetheless, enthusiastic marijuana proponents interpreted the memo as permission for tribes to get started and spread the word.
Beyond the DOJ’s clear assertion that no laws have changed, Allman points out that in California the federal government has transferred its criminal law enforcement on tribal lands to the state (PL-280), which means the sheriff has that responsibility.
As Allman says, there are no laws that allow tribes to simply go into the marijuana business in California. We appreciate his making his point explicitly before any such project got started.
Friday, February 6, 2015
It's been a crazy week, and I'm behind on noting a lot of stuff. First, links to some good posts from Doug Berman at Marijuana Law, Policy & Reform, together with my thoughts:
US Surgeon General essentially states marijuana should not be a Schedule I drug. This is long overdue. Maybe the new attorney general, though she doesn't think pot should be legalized, could think about using her authority at least to move marijuana into the same category as, say, heroin.
Was Jeb Bush a significant marijuana dealer in high school? I'm not sure I agree that the fact that Bush "sold" some stuff to a classmate who asked him for it means much. At least when I was that age, the number of people -- even good friends -- who would give you stuff for free was pretty limited. Maybe it was different at Andover.
Other than Senator Rand Paul, are any GOP leaders likely to become supportive of marijuana reform? I doubt it, not because there's not a good economic libertarian/states rights case, but because the issue is still way down the list of stuff that's important to voters, especially those in the center and right. After all, we haven't seen Hillary Clinton spending much time talking about it. If she does, the GOP will respond. If Secretary Clinton, President Obama, and General Holder haven't felt any need to start pushing legalization to appeal to younger voters, I doubt any Republican candidates will do much about it.
Will vigorous opponents of marijuana reform back vigorous efforts to raise the legal age for tobacco? I don't see much of a connection. If you're mature enough to join the Army and maybe get killed, or agree to borrow $150,000 in nondischargeable student loans you'll be paying on for 20 years, or to get death by lethal injection for killing somebody, I don't see why you're not mature enough to decide if you should buy a pack of cigarettes. Age 21 for marijuana is there because we already have age 21 for alcohol. There's at least some justification for a higher age for booze and pot, because (unlike cigarettes) these things mess with your mind and can lead to very hazardous behaviors like drunk/stoned driving.
"Medical or Recreational Marijuana and Drugged Driving. I'll second the recommendation for the article previewed, by Paul Larkin of the Heritage Foundation. Mr. Larkin points out something I hadn't fully appreciated -- the potential unreliability of current blood-alcohol standards when those who are drinking are also using marijuana. Check it out.
"DeWine: Marijuana legalization a 'stupid idea'" The Ohio attorney general doesn't think much of the legalization proposal being pushed in the Buckeye State. While I disagree with him on legalization, I do agree that Ohio's proposal -- a state-granted monopoly to the rich and politically connected, with all the potential for crony capitalism that entails -- is a bad way to do it. I understand that other groups on the ground in Ohio are working on a better alternative, although the monopoly measure is the one that probably will have most of the money behind it.
Thursday, January 29, 2015
Marijuana legalization proponents aren't likely to get much support from President Obama's nominee for Attorney General, Loretta Lynch. Ms. Lynch told Senators at her confirmation hearing that she doesn't support legalization and disagrees with the President's views on the relative harmlessness of pot. Matt Ferner at HuffPo has a summary. Here are the highlights:
Loretta Lynch, the nominee for attorney general, said Wednesday during her confirmation hearing that she does not support the legalization of marijuana, and that she disagrees with President Barack Obama's remarks about the drug being no more dangerous than alcohol.
During her hearing before the Senate Judiciary Committee, Sen. Jeff Sessions (R-Ala.) asked, "Do you support the legalization of marijuana?"
"Senator, I do not," Lynch replied.
Sessions then went on to quote a 2014 New Yorker profile of Obama in which the president discussed his marijuana use as a young person. In that article, Obama called pot a "bad habit and a vice" and said he views it as more or less similar to the cigarettes he also used to smoke. "I don’t think it is more dangerous than alcohol," Obama said of the drug.
When Sessions asked Lynch if she agreed with Obama's remarks about his marijuana use, she appeared to take a harder line than the president.
"I certainly don't hold that view and don't agree with that view of marijuana as a substance," Lynch said. "I think the president was speaking from his personal experience and personal opinion, neither of which I'm able to share. But I can tell you that not only do I not support legalization of marijuana, it is not the position of the Department of Justice currently to support legalization, nor would it be the position if I were confirmed as attorney general."
. . .
Under federal law . . . marijuana remains entirely illegal. States that have proceeded with legalization have been able to do so because of Department of Justice guidance that urges federal prosecutors to refrain from targeting state-legal marijuana operations.
Earlier in the afternoon, Sen. Lindsey Graham (R-S.C.) asked Lynch if she considered the DOJ's guidance "good policy."
Lynch didn't directly answer, but said that the DOJ's guidance still allows federal prosecutors to go after marijuana cases that involve at-risk children, driving under the influence of the drug or marijuana crossing state lines -- especially when it's going from a state where marijuana is legal into a state where it isn't. She also said the DOJ is looking at the availability of edible products "and the risk of those products falling into the hands of children and causing great harm there."
When asked what advice she might give to officials in a state that's considering the legalization of marijuana, Lynch simply said she'd refer them to current DOJ policy on narcotics, and that she'd tell them federal laws would be enforced.
Assuming she's telling the truth and not just trying to tell Senate Republicans what she thinks they want to hear, this is discouraging. Not unexpected, but discouraging.
Thursday, January 22, 2015
When the Washington Post reported last week that Attorney General Holder had "barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred," I was stunned. It was like one of those bolts from the blue that surprise and delight you. A law enforcement agency renouncing a powerful tool just because of the injustice it often wreaks on the innocent? It was almost enough to restore my faith in General Holder's office.
Turns out that there's more flash than substance in the announcement. Reason's Jacob Sullum looked at the numbers:
Holder's order applies only to "adoption," which happens when a state or local agency seizes property on its own and then asks the Justice Department to pursue forfeiture under federal law. "Over the last six years," the DOJ says in the press release announcing Holder's new policy, "adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program." By comparison, the program's reports to Congress indicate that "equitable sharing" payments to state and local agencies accounted for about 22 percent of total deposits during those six years. That means adoptions, which the DOJ says represented about 3 percent of deposits, accounted for less than 14 percent of equitable sharing. In other words, something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder's new policy.
That is not the impression left by The Washington Post, which broke this story on Friday. "Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges," the Post reported, saying the new policy "would eliminate virtually all cash and vehicle seizures made by local and state police from the [equitable sharing] program." The Post did note, deep in the story, that Holder said equitable sharing would continue in cases "where local and federal authorities are collaborating." But it said "most of the money and property taken under Equitable Sharing since 2008...was not seized in collaboration with federal authorities."
That contradicts the Justice Department's numbers, which indicate that the vast majority of equitable sharing comes not from adoption but from "collaboration" of some sort, even if it is limited to federal support for multijurisdictional task forces. A 2012 report from the Government Accountability Office reinforces that point, noting that "adoptions made up about 17 percent of all equitable sharing payments" in 2010.
Maybe I'm cynical, but it seems to me that the net effect of the new policy is to drive state and local police to "collaborate" with the feds more to ensure their funding streams.