Wednesday, August 16, 2017
Washington Gov and state AG respond forcefully to letter from AG Sessions about marijuana reform concerns
As noted in this prior post, a few weeks ago US Attorney General Jeff Sessions sent letters to the leaders of states with recreational marijuana laws detailing troublesome data that, in the words of these letters, raised "serious questions about the efficacy of marijuana 'regulatory structures'." An example of one such letter can be found here, addressed to Washington's Governor Jay Inslee and Attorney General Bob Ferguson.
Now, as detailed in this local article, headlined "Gov. and AG to Sessions: You are blowing smoke on our marijuana law," there has now been at least one forceful official response to these letters. Here are the basics:
Allegations by Sessions, in a recent letter on Washington's marijuana policy, "are outdated, incorrect, or based on incomplete information," the two state leaders wrote to Sessions. "We have twice requested an in-person meeting with you because we believe it will lead to better understanding than exchanging letters," Inslee and Ferguson wrote to the U.S. Justice Department on Tuesday.
"If we can engage in a more direct dialogue, we might avoid this sort of miscommunication and make progress on the issues that are important to both of us. " Inslee and Ferguson called for both a sit-down with Sessions, and "further appropriate meetings" between state and Dept of Justice officials....
Sessions, in his letter, stressed a 2016 Northwest Drug Trafficking Area report asserting that Washington marijuana has been diverted to "43 other states" and cites 17 explosions at THC extraction laboratories.
Inslee and Ferguson bluntly told Sessions he was blowing smoke. "Your letter fails to clearly acknowledge that this (43 state) statistic covers several years before our recreational sales even began, and reveals nothing about whether the sources of the marijuana were legal or illegal," they wrote. "Again, your intent is for our state-regulated marijuana market to displace and destroy illegal marijuana activity. "
Sessions made charges that Washington's medical marijuana market is "considered 'grey' due to lack of regulation and oversight." Inslee and Ferguson acknowledged that medical marijuana "was not well regulated or supervised" in Washington. Shortly before the 2016 report came out, however, the Legislature passed reform legislation.
"We realigned medical marijuana to bring it within the state's far more stringent recreational system," wrote the Governor and AG. In fact, they told Sessions, a subsequent 2017 report by the feds made clear that "as of July 1, 2016, the long-standing illegally operating dispensaries were shut down or became licensed retailers; sales are now subject to taxation and medical marijuana products now must pass strict packaging and testing requirements before being sold to patients." "Your letter, relying on the old . . . report, ignores this important development."...
"We encourage you to keep in mind why we are having this conversation," Inslee and Ferguson told Sessions. "State and federal prohibition of marijuana failed to prevent its widespread use, which was generating huge profits for violent criminal organizations. "The people of Washington State chose by popular vote to try a different path. Under Washington's system, responsible adults are allowed access to a highly regulated product that returns substantial tax revenues to the government even as it displaces illegal activity."
The full letter from Gov Inslee and state AG Ferguson can be found at this link, and I like that the letter included a request to discuss additional matters with federal officials including:
Whether DOJ will support reasonable federal policies allowing financial institutions to provide service to licensed marijuana businesses, in order to avoid the public safety risks and transparency problems associated with all-cash businesses.
How state-regulated marijuana should be treated by the federal government following the President’s declaration that the opioid crisis constitutes a national emergency, and whether the federal government will support objective, independent research into the effects of marijuana law reform on opioid use and abuse.
August 16, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, August 15, 2017
The Washington Post has this notable new article reporting that "The Justice Department under Attorney General Jeff Sessions has effectively blocked the Drug Enforcement Administration from taking action on more than two dozen requests to grow marijuana to use in research." Here is more:
A year ago, the DEA began accepting applications to grow more marijuana for research, and as of this month, had 25 proposals to consider. But DEA officials said they need the Justice Department’s sign-off to move forward, and so far, the department has not been willing to provide it. “They’re sitting on it,” said one law enforcement official familiar with the matter. “They just will not act on these things.”
As a result, said one senior DEA official, “the Justice Department has effectively shut down this program to increase research registrations.’’ DEA spokesman Rusty Payne said the agency “has always been in favor of enhanced research for controlled substances such as marijuana.’’ Lauren Ehrsam, a Justice Department spokeswoman, declined to comment....
[Attorney General Jeff] Sessions frequently speaks harshly about marijuana use, and Justice Department officials have been reviewing the policy of his predecessor when it comes to enforcing federal laws on marijuana in states where the drug is legal. Sessions, too, has called medical marijuana “hyped, maybe too much,” and signaled that he is skeptical about benefits of smoking it. “Dosages can be constructed in a way that might be beneficial, I acknowledge that, but if you smoke marijuana, for example, where you have no idea how much THC you’re getting, it’s probably not a good way to administer a medicinal amount. So forgive me if I’m a bit dubious about that,” Sessions said earlier this year.
The DEA is no shrinking violet when it comes to marijuana enforcement. Last year, Rosenberg declined to lessen restrictions on its use, maintaining its classification as a Schedule 1 controlled substance — which means it has no accepted medical use and a high potential for abuse. But Rosenberg wrote at the time that the DEA would “support and promote legitimate research regarding marijuana and its constituent parts.” The DEA, he wrote, already had approved such research, registering 354 people and institutions to study marijuana and related components, including the effects of smoked marijuana on humans.
The DEA indicated at the time it was willing to see those studies expand, asking for applications from people who wanted to grow marijuana to be used for research. The only source of marijuana for researchers then was — and is — the University of Mississippi, which has permission to grow and distribute the drug for research.
One still-waiting applicant is Lyle Craker, a professor at the University of Massachusetts at Amherst. Craker has spent years seeking approval to do research into whether other parts of marijuana plants have medicinal value. “I’ve filled out the forms, but I haven’t heard back from them. I assume they don’t want to answer,’’ said Craker. “They need to think about why they are holding this up when there are products that could be used to improve people’s health . I think marijuana has some bad effects, but there can be some good and without investigation we really don’t know.’’ Craker submitted his latest application Feb. 14, and after getting additional questions from the DEA in March, supplied additional information in April.
Brad Burge, spokesman for the Multidisciplinary Association for Psychedelic Studies, said the federal government for years has prevented important research into marijuana. “That’s a sad state of affairs,’’ he said, adding, “if the DEA is now asking for permission to say yes, then the resistance is now further up the chain of command.’’
Rosenberg indicated in a call with The Washington Post that he still would support more marijuana research. “I stand by what I wrote,” he said. Tension between Rosenberg and Trump is perhaps unsurprising. Rosenberg was appointed during the Obama administration, and he had served as chief of staff and senior counselor to James B. Comey, who was the FBI director until Trump fired him earlier this year.
The Justice Department has not rejected any of the 25 people whose applications to grow marijuana the DEA is considering. Rather, the department is not taking any action at all, officials said. Before approving such applications, DEA officials have to assess each applicant and determine whether their facility is secure and whether they had previously been complying with federal law.
Monday, August 14, 2017
Federal district court in Connecticut rejects preemption claims by employer sued after rescinding employment offer to medical marijuana user
I noted in this post last month the significant ruling of the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017) (available here) allowing a state-law-based civil discrimination lawsuit to proceed after an lawful medical marijuana user has been fired for a positive drug test. This past week, as detailed in this helpful opinion summary, a similar type of decision was handed down by a federal district judge in Connecticut in Noffsinger v. SSC Niantic Operating Co, LLC, No. 3:16-cv-01938 (D. Conn. Aug 8, 2017) (available here). Here are the basics:
In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut’s Palliative Use of Marijuana Act (PUMA) and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity.
Here is how the opinion in Noffsinger gets started, along with a key passage from the heart of the ruling:
Connecticut is one of a growing number of States to allow the use of marijuana for medicinal purposes. Connecticut likewise bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law. By contrast, federal law categorically prohibits the use of marijuana even for medical purposes.
This lawsuit calls upon me to decide if federal law preempts Connecticut law. In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. I conclude that the answer to that question is “no” and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason. Accordingly, I will largely deny defendant’s motion to dismiss this lawsuit....
Although most cases dealing with the CSA’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions; courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result. Indeed, one court recently held that the CSA does not preempt the anti-discrimination-in-employment provision of Rhode Island’s medical marijuana statute. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181, at *13–14 (R.I. Super. 2017).
Sunday, August 13, 2017
As of this writing in mid-August 2017, we still do not really know the marijuana reform position of the current President of the United States. But that reality has not prevented the folks at Politico from putting forth this new article about the 2020 Prez campaign headlined "Marijuana politics emerge as 2020 flash point: The debate over legalization is about to receive a full airing on the presidential campaign trail." Though I think it silly to try to discuss too seriously the 2020 Prez campaign with still 15 months to go before the mid-term election of 2018, I cannot resist highlighting some notable passages in this Politico piece:
Marijuana legalization just moved from the fringes of the last presidential campaign to center stage in 2020. Between a sweeping new package of legislation introduced last week by one of the top Democratic presidential prospects and, on the other end of the spectrum, Attorney General Jeff Sessions’ vigorous opposition to recreational use of marijuana, the debate over legalization of cannabis is about to receive a full airing on the presidential campaign trail.
While Bernie Sanders also supported medicinal use of marijuana and the decriminalization of recreational marijuana, drug policy stayed on the outskirts of the 2016 presidential debate, and growing action at the state level was barely acknowledged.
Tom Angell, chairman of Marijuana Majority, a bipartisan nonprofit advocacy group, said New Jersey Sen. Cory Booker’s introduction of “the farthest-reaching bill ever proposed” will have a catalytic effect on the politics of legalized marijuana and the myriad criminal justice issues related to it. “Booker is getting a ton of fantastic press about this,’’ he said. “And other candidates will notice that and will want to say, 'I agree — and I want to introduce a bill of my own.'”
Booker’s rollout of the Marijuana Justice Act — introduced to a wide audience via Facebook Live — was more than just a call for legalizing marijuana at the federal level. The measure also addresses withholding federal funds for the construction of jails and prisons from states whose pot laws are shown to disproportionately incarcerate minorities; expunging federal convictions for cannabis use; and mandating sentencing hearings for prisoners now serving time for pot offenses. “You see these marijuana arrests happening so much in our country, targeting certain communities — poor communities, minority communities — targeting people with an illness,” Booker, the former mayor of Newark, said.
With Republicans in control of the House and Senate, the ambitious legislation is viewed as unlikely to pass. But its attachment to a top prospective 2020 candidate — and the growing action on marijuana legalization at the state level — all but guarantees presidential contenders will need a fully formed position.
Several possible Democratic presidential candidates — including Booker and New York Sen. Kirsten Gillibrand — have already signed on to a separate bipartisan medical marijuana bill. In Massachusetts, where voters approved a ballot measure last year legalizing recreational marijuana, Sen. Elizabeth Warren has addressed the issues of creating legal and secure banking for the cannabis industry.
On the Republican side, Republican Sen. Rand Paul of Kentucky has called for a repeal on the pot prohibition — making him popular with young libertarians — and won some conservative backing with his strong stand for states’ rights on the issue....
Already, in the two governors races on the ballot in 2017 — New Jersey and Virginia — the Democratic nominees have staked out clear positions in favor of decriminalization....
After California officially became the largest legal cannabis market in the world last November with approval of Proposition 64, Nevada — a key Western swing state — followed last month to become the fifth state to legalize recreational use of the drug. States are hungrily eyeing tax revenues from the cannabis market, where revenues topped $5.8 billion in 2016 and are expected to reach at least $7 billion by 2020, experts say.
Willie Brown, the former California House speaker and San Francisco mayor who successfully carried one of the nation’s first cannabis-related reform bills to decriminalize the drug in 1973, says the political climate has shifted markedly from the days when “we couldn’t talk legalization — hell no.” But he said Booker wasn’t the first Democrat to understand how deeply the issue of legal recreational cannabis resonated, especially with millennial voters.
“Gavin Newsom was the first,” he said, saying that the California Democratic lieutenant governor stepped out in front and backed legalization of recreational pot in the nation’s most populous state nearly two years ago. Newsom’s strong endorsement and campaigning helped pass Proposition 64 — and set the stage for him to take the front-runner spot in the 2018 governor’s race, Brown noted.
In recent days, Newsom’s rival Antonio Villaraigosa, the former Los Angeles mayor, has edged toward a more liberal stance, saying at a public forum that “cannabis is going to be the new alcohol business.” State Treasurer John Chiang, another California gubernatorial candidate, has been holding statewide hearings on cannabis banking issues.
Even California Sen. Kamala Harris, a former prosecutor who has taken a more cautious stance on the issue, is on board for marijuana decriminalization. Harris, a first-term senator who is frequently mentioned as a prospective presidential candidate in 2020, told a progressive group last month: “While I don’t believe in legalizing all drugs ... we need to do the smart thing, the right thing, and finally decriminalize marijuana.”
This article's brief mention of marijuana reform in the 2017 races for Gov in New Jersey and Virginia merits, in my view, a lot more attention than the far-off 2020 Prez race. As I understand matters, I believe the Democratic candidate in New Jersey has endorsed full legalization of marijuana and the GOP candidate supports decriminalization. That reality, as well as Senator Booker's bold bill, highlights how mainstream significant marijuana reform has already become well before we get to gaming out who might be running against Prez Trump in 2020.
August 13, 2017 in Campaigns, elections and public officials concerning reforms, Who decides | Permalink | Comments (1)
Saturday, August 12, 2017
The title of this post is the headline of this recent Wall Street Journal commentary authored by Jason Riley in response to Senator Cory Booker's new federal marijuana reform bill. Here are excerpts:
Cory Booker, New Jersey’s ambitious junior senator, has gone to pot. Last week the Democrat introduced a bill that would legalize marijuana at the federal level while withholding funds from states that don’t legalize it and that disproportionately incarcerate “low-income individuals and people of color for marijuana-related offenses.”
The legislation may help Mr. Booker burnish his image with progressives if he runs for president in 2020, but it almost certainly is going nowhere. Republicans control Congress, and Attorney General Jeff Sessions is a drug warrior, which is one reason President Trump put him in charge of the Justice Department. Nevertheless, Mr. Booker’s arguments for drug legalization are worth considering because they represent a large and growing consensus. Support for marijuana legalization has nearly doubled to 60% since 2000, according to a 2016 Gallup survey. Even 42% of Republicans support legalization.
In his Facebook posts promoting the bill, Mr. Booker cites some of the more common rationales put forward by proponents of pot legalization, including racial disparities in drug arrests and prisons teeming with “nonviolent” offenders that drain state budgets. “In the United States today, black people are almost four times more likely than their white counterparts to be arrested for marijuana use or possession,” writes the senator. “This is the right thing to do for public safety, and will help reduce our overflowing prison population.”
Mr. Booker believes drug legalization would address these racial disparities, but don’t bet on it. Violent offenses, not drug offenses, drive incarceration rates, and blacks commit violent crimes at seven to 10 times the rate whites do. Data from 2015, the most recent available, show that about 53% of people in state prisons (which house nearly 90% of the nation’s inmates) were imprisoned for violent crimes, 19% for property crimes and just 16% for drug crimes. Given that blacks are also overrepresented among those arrested for property and other nonviolent offenses, merely altering U.S. drug laws would effect little change in the racial makeup of people behind bars.
Much is made of studies that show blacks and whites use drugs at similar rates. But a large majority of drug arrests are for trafficking, not possession, so we shouldn’t expect usage rates and arrest rates to be identical. Anyway, marijuana offenders of any race occupy relatively few jail and prison cells, and the ones who do tend to be dealers. “As a percentage of our nation’s incarcerated population, those possessing small amounts of marijuana barely register,” writes James Forman, a former District of Columbia public defender, in his new book, “Locking Up Our Own.” He continues: “For every ten thousand people behind bars in America, only six are there because of marijuana possession.”...
But if the goal is more racial parity in our penal system, drug legalization seems like an odd place to start. Citizens of Washington state and Colorado voted to make recreational pot legal in 2012. A 2016 study from the Center on Criminal and Juvenile Justice found that while pot arrests overall were down in Washington, large racial discrepancies remained. In fact, blacks were still twice as likely as whites to be arrested for marijuana-related offenses. And Jeff Hunt of Colorado Christian University reports that the illegal market for weed in the Rocky Mountain State is still thriving and seems to have exacerbated racial inequities. “According to the Colorado Department of Public Safety, arrests in Colorado of black and Latino youth for [underage] marijuana possession have increased 58% and 29% respectively after legalization,” Mr. Hunt wrote in USA Today recently. “This means that Black and Latino youth are being arrested more for marijuana possession after it became legal.”
Astute observers of US criminal justice systems might well predict that we could see worsening racial disparities if and when there are fewer arrests and prosecutions for marijuana activity. Data on incarceration in US states generally show that the states with smaller prison populations actually have greater disparities within these smaller numbers. And it does create an interesting and important normative question for those especially concerned with racial equality whether they should celebrate a big decrease in marijuana arrests and prosecutions if only certain favored groups get a disproportionate benefit from such a change.
Friday, August 11, 2017
The title of this post is the headline of this extended Washington Post magazine article exploring whether marijuana reform could help address some of the woes to be found in Wast Virginia. Here are excerpts:
One of the leading proponents of loosening restrictions on marijuana in West Virginia is Democratic state Del. Mike Pushkin, who represents parts of Charleston and its surrounding areas. Pushkin is an unconventional pol — a cabdriver and folk musician who has spoken about his own struggles with addiction. He once told the Charleston Gazette-Mail how he spent 11 years living from crisis to crisis. “I’m sure there were times that my mother would have thought it more likely she would be attending my funeral than she would be attending my swearing-in at the Capitol,” he said.
It took a spiritual awakening to get his addiction under control. To stay sober, he told me, he volunteers at detox facilities and talks to addicts in area jails. This experience informs his policy positions. He’s sure West Virginia can’t arrest its way out of this drug crisis. And he has pushed his colleagues to consider marijuana in a new light. “While marijuana is described as a gateway drug, that’s not proven,” he says. “What is proven is that a lot of people who are prescribed painkillers get hooked on heroin.”...
In May 2016, Pushkin introduced a bill in the West Virginia House of Delegates to let adults grow, use and possess a limited quantity of marijuana, provided that they paid a one-time fee of $500. That month, he told the Charleston Gazette-Mail that he didn’t have high hopes for its passage. He was right: It wasn’t even debated in a committee. But it did spark media attention and prompted an eye-opening brief from the West Virginia Center on Budget and Policy, which showed that a marijuana tax could be a boon for the state, generating as much as $194 million annually if the drug were legal for adult use. That would be enough to eliminate West Virginia’s projected deficit and create a $183 million surplus, a dramatic improvement in a place that’s been slashing everything from higher education to Medicaid as it tries to stay afloat.
Indeed, Pushkin’s argument for marijuana legalization had a strong economic component. “They’re not having the types of budget issues in Colorado that we’re having here,” he told the Charleston Gazette-Mail. In Colorado, where pot is now fully legalized, the industry created 18,000 full-time jobs in 2015 alone. New Frontier Data, a financial consultancy in Washington, estimates that by 2020 the marijuana industry will create upward of a quarter of a million jobs in the United States, more than manufacturing is expected to create.
It’s hard to imagine anywhere that could use these jobs more than West Virginia. Since the 1980s, both coal and manufacturing in the Mountain State have been in a steep decline. As these industries have dried up, so have others that rely on them — such as freight rail, which has cut jobs by the thousands and begun pulling up tracks.
Thursday, August 10, 2017
I was so very pleased and excited to see this announcement from the office of the Mayor of Los Angeles, which begins this way: "Mayor Eric Garcetti has appointed Cat Packer as Executive Director of the newly-established Los Angeles Department of Cannabis Regulation." Here is more:
Packer will be the first Executive Director for the department, which was created in June after Los Angeles voters approved the local regulation and taxation of cannabis earlier this year. In her new role, Packer will launch the department and lead implementation of the new cannabis regulations being developed by the City Council, City Attorney and Department of City Planning. Her appointment is subject to City Council confirmation.
“Taxing and regulating legal cannabis in Los Angeles will be a complex process — we need someone leading the effort who understands and can navigate those nuances,” said Mayor Garcetti. “Cat’s experience makes her an excellent fit for this new role. I am confident that her work will help us implement new regulations in a way that is fair and equitable for all of our communities, respects our neighborhoods and raises valuable new revenue for City services.”
Packer has spent much of her career working on issues of cannabis reform. Prior to joining the City, she worked as a policy coordinator for the Drug Policy Alliance, where she advocated for responsible cannabis policy across California. “I look forward to serving the City of Los Angeles as we lead the development and implementation of responsible, equitable cannabis policies that will serve as a model for the rest of America,” said Packer. “I can’t wait to get started, and I’m grateful to Mayor Garcetti for this amazing, pioneering opportunity.”
The City’s Department of Cannabis Regulation was established as the result of several voter-approved initiatives over the last year, here in Los Angeles and statewide. Last November, California voters approved Prop. 64, which paved the way for the legalization of recreational cannabis across the state. In March, L.A. voters approved Prop. M — which approved local regulation, taxation and enforcement of cannabis policy. The Department of Cannabis Regulation will be governed by a five-member Cannabis Regulation Commission.
I find this news so very pleasing and exciting because Director Packer is a 2015 graduate of The Ohio State University Moritz College of Law, and she was a student in my marijuana seminar in Spring 2015. Especially in the early years of my seminar, I made a habit of telling students that they could likely become leaders in the field of marijuana law and policy relatively quickly because there were relatively few senior lawyers with knowledge and experience in this space. As I gear up to teach my marijuana seminar again this coming fall, I will be sure to spotlights Cat's impressive early achievement in this arena. (With all my students, I take no credit for their any of their achievements, but I take comfort when learning my instruction did not harmfully lead them astray.)
August 10, 2017 in Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, August 9, 2017
Cross-posted at Marijuana Law, Policy, and Authority
I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here . Consistent with recent reports, all the panelists agreed the Trump Administration is unlikely to crack down on state-licensed marijuana suppliers anytime soon. (John and I have both previously written about the Trump Administration’s approach to marijuana policy, e.g., here and here.)
Nonetheless, given Jeff Sessions’ stated opposition to legalizing marijuana, I think it’s worthwhile to consider what (if anything) the states could do to blunt a federal crackdown, if the Trump Administration did decide to attempt one. Let me offer two possibilities state lawmakers might consider:
1. Create an indemnification fund to help pay the legal expenses of any state-licensed marijuana supplier who faces federal legal sanctions. This would include a supplier who faces a federal criminal prosecution, a civil forfeiture action, or even a civil RICO lawsuit brought by another private citizen.
Why would states ever do this? Individual defendants sometimes lack the ability and / or incentive to optimally (from the state’s perspective) defend themselves against federal claims. For one thing, defendants don't always have the money needed to pursue every viable defense vigorously, especially if their assets have been frozen by the government. In addition, individual defendants capture only a small part of the benefit (to the state) of successfully asserting certain types of defenses. After all, those defenses -- once established -- can be invoked by other, similarly situated defendants.
To illustrate the problem, suppose a Massachusetts-licensed medical marijuana supplier is being prosecuted by the DOJ for distributing marijuana. Her attorneys tell her she could spend $25,000 trying to convince a federal court that her prosecution is barred by the Rohrabacher-Farr amendment (discussed on pages 353-358 of my book), but there’s no guarantee she’ll win – say, because the First Circuit might not follow United States v. McIntoshand the Ninth Circuit’s interpretation of Rohrabacher-Farr. In this case, the supplier might not pursue the defense vigorously (even if she could afford to); she might instead prefer to cut her losses and cut a plea deal, say, by agreeing to shut down her shop if the DOJ drops all of its charges against her. But that may not be the best outcome for the state – it might prefer that the defendant spend $25,000 for even the chance that all state law-abiding medical marijuana suppliers would be declared immune from federal prosecution. Thus, to ensure that defendants vigorously pursue legal defenses that benefit others in the state, the state might help cover individual defendants’ legal expenses (say, using a portion of marijuana tax revenues).
I develop this first proposal in more detail in a symposium article for the Montana Law Review here. It’s loosely modeled on personal liberty laws adopted by northern states in response to the federal Fugitive Slave Act.
2. Adopt poison pill legislation that would make it costly for Congress to preempt certain state marijuana reforms. Some state laws are vulnerable to preemption challenge because they (arguably) undermine one of Congress's goals, like deterring drug use. Citing such reasoning, for example, a few state courts have held that state laws purporting to protect medical marijuana patients from employment discrimination are preempted by the federal CSA (the issue is discussed on pages 672-681 of the book). To defuse the threat that a court would find such measures preempted, a state could pass a second law – one that Congress clearly favors – and then tie the two laws (favored and disfavored) together – i.e., make them inseverable.
To illustrate, suppose Massachusetts was interested in preserving its recently recognized employment protections (discussed here) from a preemption challenge. To do so, the state could pass a law limiting the quantity of marijuana that non-residents are allowed to buy at state licensed shops, similar to the way Colorado once limited non-residents to buying one-quarter ounce of marijuana at its shops (discussed at pages 283-287 of the book). It could then make the new quantity restriction inseverable from the employment protections. While Congress (in theory) might not want states to protect marijuana users from employment sanctions, it might tolerate those protections if the states limit non-resident access to marijuana.
I develop this second proposal in more detail in a new article for the George Washington Law Review here. It’s very loosely modeled on the poison pill tactic in corporate law.
Part of the appeal of both options is that their success does not depend on the DOJ’s willingness to heed past enforcement guidelines or Congress’s willingness to restrict the agency’s spending.
August 9, 2017 in Court Rulings, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
The book website includes:
- more information about the book, including two sample chapters
- updates on big post-publication developments in the field, like the 10th Circuit Civil RICO decision and Cory Booker’s Marijuana Justice Act (the latter of which I cross-posted here last week)
- teaching resources, including syllabi to help in designing and teaching a marijuana law cla
- in the coming weeks I’ll also be adding materials (cases, articles, etc.) that I couldn’t fit in the book but which might be of interest to readers
I’ll continue to cross-post here on some of the biggest developments in the field (thanks to Doug for the ongoing hospitality!), and I’ll continue to follow this blog with enthusiasm – it’s a terrific resource for anyone interested in the field!
Monday, August 7, 2017
This new National Review commentary authored by Max Bloom, headlined "How Much Should Society Stigmatize Marijuana?," makes the case for society distinguishing different levels of marijuana use and stigmatizing heavy use. Here are excerpts:
A new study ... [suggests] legalizing marijuana has about the same negative effect on academic performance as that of legalizing access to alcohol. This is not necessarily an argument against the movement to legalize marijuana, which has been gaining steam in the United States. We legalize alcohol, after all. Giving people the choice to make bad decisions is very often the right thing to do, and it is shameful to lock people up for behavior that most Americans do not even consider morally wrong.
But let’s not pretend legalization would exact no costs. What this study shows is that it would probably hurt low-performing and unmotivated students and encourage more people to smoke for the first time. It may also keep more workers out of the labor force — particularly male ones — as previous studies have observed.
If we accept that marijuana is not a moral issue and should be legalized, the question then becomes what the optimal social attitude toward it should be. Given the above evidence of its negative effects, we should adopt a position of stigmatizing anything more than light usage.
Consider that most people would not judge it immoral to smoke habitually or to eat poorly and shun exercise, yet there is still some measure of social censure for both. These behaviors are harmful to society, we reason, and ought to be discouraged. Obesity rates are slowing now and cigarette consumption has dropped dramatically over the last several decades. There are probably many reasons for both trends, but social censure almost certainly plays some role.
And there are a host of other activities that have little to do with morality and are clearly permissible in moderation but represent at the same time dangerous temptations. There is evidence that video games are responsible in part for the declining labor-force participation of young men. Internet pornography may be discouraging marriage. It is probably possible to become addicted to both. These problems, like marijuana dependence, will almost certainly be concentrated in communities that are already under enormous strain from the collapse of traditional social institutions, as Charles Murray exhaustively documents in his book Coming Apart. It won’t be upper-middle-class liberals who will be hurt by widespread access to marijuana or increasingly addictive video games or forms of pornography. Rather, it will be young men, and to a lesser extent young women, who grow up in families without the resources, both economic and cultural, to ensure that they finish college, enter the job market, and get married.
Yet there is little appetite in affluent communities for enforcing the sort of stigmas that could help establish norms of healthy behavior. Many will quietly agree that it’s pathetic to play video games, watch porn, or smoke pot all day, but the live-and-let-live attitude tends to triumph over such judgments in public spaces. At times, it even morphs into outright endorsement of these activities. This is a mistake, particularly if we are going to go down the uncertain road of legalizing marijuana. At the very least, we should take up a policy of cautious neutrality toward moderate, responsible use and an attitude of stern condemnation toward anything further. Such behaviors are not okay, we should say; they do not reflect a worthwhile variant of the good life; they are not an acceptable model for how one ought to live. We court disaster otherwise.
Sunday, August 6, 2017
The title of this post is the headline of this lengthy Rolling Stone article. Here are excerpts:
It's no longer political suicide, or so it seems, to embrace legalizing marijuana. At least among the younger generation of prominent Democrats, though there seems to be cracks in the dam amongst Republicans too.
The latest evolution on the issue was on display this week as New Jersey Democratic Sen. Cory Booker – a former mayor of Newark who is a young, affable guy rumored to be considering a presidential bid in 2020 – unveiled the most sweeping proposal yet to the nation's marijuana policy. The bill, dubbed the Marijuana Justice Act, would end the federal prohibition on weed by removing the plant from the list of controlled, as in banned, substances where it currently sits next to drugs like heroine and LSD....
During his failed presidential bid, Vermont Sen. Bernie Sanders released a bill to simply legalize marijuana federally, but it didn't go nearly as far as this new one. Besides ending the federal prohibition on pot, Booker's legislation incentivize states to decrease their prison populations by withholding federal funds if they have disproportionate numbers of minorities and poor people locked up for cannabis violations. His proposal also calls on the courts to expunge the records of people behind bars for marijuana violations, while investing money in job training programs.
A sweeping proposal like this would have been seen as the political third rail a few years ago, but voters in red and blue states alike have far outpaced the nation's stodgy political class and lawmakers are now slowly catching up with voters. Now it's becoming more en vogue for politicians to challenge some of the key underpinnings of the nation's decades-long war on drugs....
While Democrats, especially this younger generation of lawmakers, are coming around more quickly to the will of citizens across the political spectrum – who have voted in recreational marijuana in eight states and the nation's capital, as well as in the dozens of states that allow medical marijuana – GOP leaders (including Attorney General Jeff "Just Say No" Sessions) are still proving a roadblock to the reform effort.
Before leaving town for August, Speaker Paul Ryan's top lieutenants in the House beat back a broadly supported, bipartisan effort to allow doctors at VA hospitals to prescribe marijuana to veterans suffering from everything from PTSD to losing a limb, which often comes with astronomically large and recurring opioid prescriptions.
Still other Republicans brush aside any talk of marijuana legalization. That's in part because the GOP base doesn't seem to be as vocal on the issue, which former presidential candidate Lindsey Graham says never really came up as he traversed Iowa and other states that vote early. "No – didn't hang around with the right crowd I guess," Sen. Graham tells Rolling Stone....
Some Republicans are learning marijuana is no longer the political third rail it once was. There are other efforts afoot in the Capitol to make it easier for universities and research hospitals to study marijuana, while also protecting medicinal marijuana business owners and patients. While the progressive Booker supports those efforts, so do two Tea Party darlings, Sens. Mike Lee of Utah and Rand Paul of Kentucky....
While slow moving, the change is palpable, especially for the lawmakers in those purple, blue and even red states alike who represent voters who approved medical or recreational weed. "The country is changing, as did Massachusetts, and as each state moves further than it creates a national culture," Democratic Sen. Ed Markey tells Rolling Stone. "It's like gay marriage: in Massachusetts it starts and then another state and another state and before long it's something that people understand is a part of the modern political culture."
August 6, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Friday, August 4, 2017
As reported in a new AP article, which the Washington Times gives the headline "Sessions task force on marijuana not producing ammo to bolster federal war on weed," it appears that the DOJ task force looking at federal marijuana policies is not advocating any major changes for now. Here are the basic details:
The betting was that law-and-order Attorney General Jeff Sessions would come out against the legalized marijuana industry with guns blazing. But the task force Sessions assembled to find the best legal strategy is giving him no ammunition, according to documents obtained by The Associated Press.
The Task Force on Crime Reduction and Public Safety, a group of prosecutors and federal law enforcement officials, has come up with no new policy recommendations to advance the attorney general’s aggressively anti-marijuana views. The group’s report largely reiterates the current Justice Department policy on marijuana.
It encourages officials to keep studying whether to change or rescind the Obama administration’s hands-off approach to enforcement — a stance that has allowed the nation’s experiment with legal pot to flourish. The report was not slated to be released publicly, but portions were obtained by the AP.
Sessions has been promising to reconsider that policy since he took office six months ago. He has assailed marijuana as comparable to heroin and blamed it for spikes in violence. His statements have sparked support and worry across the political spectrum as a growing number of states have worked to legalize the drug....
[T]he tepid nature of the recommendations signals just how difficult it would be to change course on pot. Some in law enforcement support a tougher approach, but a bipartisan group of senators in March urged Sessions to uphold existing marijuana policy. Others in Congress are seeking ways to protect and promote pot businesses.
The vague recommendations may be intentional, reflecting an understanding that shutting down the entire industry is neither palatable nor possible, said John Hudak, a senior fellow at the Brookings Institution who studies marijuana law and was interviewed by members of the task force....
The task force suggestions are not final, and Sessions is in no way bound by them. The government still has plenty of ways it can punish weed-tolerant states, including raiding pot businesses and suing states where the drug is legal, a rare but quick path to compliance. The only one who could override a drastic move by Sessions is President Donald Trump, whose personal views on marijuana remain mostly unknown.
Rather than urging federal agents to shut down dispensaries and make mass arrests, the task force puts forth a more familiar approach. Its report says officials should continue to oppose rules that block the Justice Department from interfering with medical marijuana programs in states where it is allowed. Sessions wrote to members of Congress in May asking them — successfully so far — to undo those protections. The Obama administration also unsuccessfully opposed those rules.
The report suggests teaming the Justice Department with Treasury officials to offer guidance to financial institutions, telling them to implement robust anti-money laundering programs and report suspicious transactions involving businesses in states where pot is legal. That is already required by federal law.
And it tells officials to develop “centralized guidance, tools and data related to marijuana enforcement,” two years after the Government Accountability Office told the Justice Department it needs to better document how it’s tracking the effect of marijuana legalization in the states.
Most critically, and without offering direction, it says officials “should evaluate whether to maintain, revise or rescind” a set of Obama-era memos that allowed states to legalize marijuana on the condition that officials act to keep marijuana from migrating to places where it is still outlawed and out of the hands of criminal cartels and children, among other stipulations. Any changes to the policy could impact the way pot-legal states operate, but the task force offers no further guidance on how to do that.
It remains unclear how much weight Sessions might give the recommendations. He said he has been relying on them to enact policy in other areas. Apart from pot, the task force is studying a list of criminal justice issues and the overall report’s executive summary says its work continues and its recommendations “do not comprehensively address every effort that the Department is planning or currently undertaking to reduce violent crime.”
Senator Cory Booker (D NJ) has introduced a proposal to repeal the federal marijuana ban. In a nutshell, Booker’s Marijuana Justice Act (MJA) would exempt marijuana from the Controlled Substances Act.
I believe Booker’s proposal is incomplete (and therefore, both unwise and politically unpalatable) because it fails to offer any replacement for prohibition. I develop this argument in a new op-ed at Fortune: http://fortune.com/2017/08/04/senator-cory-booker-marijuana-bill-justice-act-legalization/. Check it out.
The MJA does one additional thing that is worth noting but which I did not have space to address in Fortune: It pressures states to repeal their own marijuana bans. It does so by withholding a portion of federal law enforcement grants from prohibition states (and only prohibition states) if “the percentage of minority individuals arrested [or incarcerated] for a marijuana related offense in a [prohibition] State is higher than the percentage of the non-minority individual population of the State.” (The measure has similar language regarding treatment of low-income populations, but to simplify I’ll focus on racial minorities.)
The wording of the condition is somewhat opaque (raising its own set of problems), but let me illustrate how I think the condition would work in a hypothetical state with a 30% minority population. If minorities comprised more than 70% of those persons arrested or incarcerated on marijuana charges in that state, the state would lose some federal grant money going forward. If minorities comprised 70% or less of those arrested or incarcerated, the state would retain full eligibility for federal grants. The fact that this provision is aimed only at prohibition states (what the MJA calls “Covered States”) is why I say it pressures states to legalize marijuana: if a state does so, its federal grants are safe, even if it enforces any remaining prohibitions--say, on possession by minors--disproportionately against minorities. (This has happened in some legalization states, as in discuss in my book on pages 249 and 521).
I think this is an interesting and novel proposal to address race (and class) disparities in the enforcement of criminal law, and it deserves further consideration. But I think it also raises a handful of serious constitutional concerns (not to mention practical and political ones). Let me briefly flag just two of those legal concerns here.
One problem is that the MJA arguably fails to give states adequate notice of the new conditions it imposes on the receipt of federal grants. The problem arises from tying federal grant funds to the composition of the presently incarcerated population. The problem is that disparities in the racial composition of the incarcerated population undoubtedly stem from actions taken by the states in the past– i.e., before they were aware of the new condition. After all, many of those who are now serving time in state prison on marijuana charges would have been arrested and prosecuted years ago. Even though Congress can condition federal funds on states doing (or not doing) X, Y, and Z, it has to give them clear notice of those conditions in advance. E.g., Arlington v. Murphy, 548 U.S. 291 (2006). I’m not sure whether a condition that seemingly requires states to remedy past discrimination (e.g., by releasing inmates) would pass muster under this test.
A second concern is that the measure arguably amounts to reverse discrimination (or pressures states to engage in the same) in violation of the Equal Protection Clause. Return to my hypothetical state above, with a minority population of 30%. Suppose, fancifully, that this state arrested and incarcerated on marijuana charges only whites. Under the MJA, there would be no consequences for this state. In other words, the MJA only punishes a state if it discriminates against minorities. And the MJA would appear to pressure states to engage in reverse discrimination – for example, to keep its federal grant dollars, a state might have to release only minorities currently serving prison time on marijuana charges, or selectively target whites for marijuana arrests (so as to balance the ledger). Again, this approach might survive constitutional scrutiny, but it raises some doubts.
The simpler solution might be to preempt state marijuana bans. As I’ve argued elsewhere, that’s a permissible approach for Congress to take and would avoid the clear notice and Equal Protection concerns raised by the MJA.
Thursday, August 3, 2017
Effective review of back-and-forth between AG Sessions and legalization states over marijuana policies
At HuffPost, Matt Ferner has this lengthy new article discussing the various ways in which marijuana legalization states have made their case to the Trump Administration about their reformed marijuana laws. The article is headlined "Legal-Weed States Tell Jeff Sessions Their Programs Are Working. He Might Crack Down Anyway." It merits a full read, along with some of the notable documents linked within, and here are excerpts:
Marijuana legalization is going smoothly in Colorado and Oregon, state officials recently told the Justice Department as it prepares for a shift in federal law enforcement priorities that could include changes to marijuana policy.
But Attorney General Jeff Sessions, a staunch drug opponent, nevertheless is considering reversing the Obama administration’s relaxed approach to state legalization, and may resume strictly enforcing federal laws, which still regard all marijuana use as illegal....
Colorado and Oregon ― among eight legal-weed states that know the issues best ― produced detailed reports on their experiences, officials said.
A 140-page report from Colorado Gov. John Hickenlooper’s (D) office contains data and analysis from six state agencies, showing that the state’s 2014 marijuana legalization didn’t significantly increase youth drug abuse, school dropouts or juvenile arrests.
Statistics do show a rise in car crashes and fatalities involving motorists testing positive for cannabinoids. But Colorado’s report notes the statistics may not prove more drivers are intoxicated, because inactive marijuana compounds can be detected for more than a month in some individuals. Marijuana DUIs have declined 21 percent in the first six months of 2017 from the same period a year earlier. ...
A 19-page report prepared by Oregon Gov. Kate Brown’s (D) office gives a positive view of legalization that safeguards public safety, and describes the state’s robust system tracking weed from seed to sale. The document was first made public in June following a records request by Oregonian reporter Noelle Crombie.
Oregon’s report acknowledges the continued existence of a marijuana black market. It also notes legalization’s hiccups, including “overproduction” and new laws it needed to place limits on growers and to increase penalties for marijuana-related crimes....
Washington state, which also legalized recreational marijuana in 2014, has sent Sessions’ office three letters defending the state’s legalization scheme under current federal policy, and requested a meeting with Sessions, a representative from Gov. Jay Inslee’s (D) office told HuffPost.
Inslee’s office received a reply from Sessions on Wednesday expressing skepticism of the state’s marijuana legalization. Sessions’ letter cites a 2016 law enforcement report that he says “raises serious questions about the efficacy of marijuana ‘regulatory structures’ in your state.”
Tuesday, August 1, 2017
I have been on the road the last few weeks with limited internet and limited blogging time, and thus I have been barely able to keep up with all the summer state marijuana reform news of late. Here are links to some news headlines/stories that provide just a sample of some notable late dog-days of summer state stories:
From Massachusetts here, "Massachusetts' Marijuana Law Passed by Voters, Rewritten by Lawmakers"
From Michigan here, "Marijuana is 9% of all Michigan arrests, and other facts on marijuana arrests"
From Nevada here, "Tourists Buying Marijuana In Las Vegas Have Nowhere To Smoke It In Las Vegas"
From Utah here, "Over 75 percent of Utahns support medical marijuana ballot initiative, a new poll says"
From Washington here, "Washington Marijuana Legalization: No Stoned Mayhem on the Freeways"
And, this important story covering lots of states comes from USA Today under the headline "Marijuana's legalization fuels black market in other states." It starts this way:
Marijuana smugglers are growing and shipping vast quantities of illicit cannabis across the USA. They’re mailing it, driving it and, in at least one case, flying it around in skydiving planes. They’re hiding it in truck beds and trunks and vacuum-sealing it to hide the smell as they pass police officers patrolling the interstates.
Many are starting in states where growing marijuana is legal, such as Colorado, and sending the drug elsewhere. In June, Colorado prosecutors said they busted a 74-person operation producing 100 pounds of marijuana per month — enough to generate $200,000 monthly, tax free, for more than four years.
Police seized two tons of cannabis from dozens of homes and warehouses in the Denver metro area. Tangled up in the scheme were fathers and sons and several former professional football players. “Those of us in law enforcement kept saying, '(Legalization) will not stop crime. You’re just making it easier for people who want to make money. What we’ve done is give them cover,' ” Colorado Attorney General Cynthia Coffman said.
For decades, the black market was the only source of recreational marijuana in America. But in 2012, Colorado voters approved a ballot initiative to legalize the drug. Seven states followed in 2014 and 2016. Now, nearly 65 million Americans live in states where adults can legally consume marijuana for any reason.
Legalization advocates have long argued that regulating marijuana forces the industry out of the shadows and into the public eye, where the drug can be taxed and the black market effectively eliminated. But because marijuana remains illegal in so many states, smugglers can take advantage of the patchwork of laws. A pound of marijuana might sell for about $2,000 in Colorado but could fetch three times as much in a large East Coast city. Less marijuana is crossing the U.S. border, according to the U.S. Border Patrol. The agency's marijuana seizures dropped by almost half between 2011 and 2016, falling from 2.5 million pounds to 1.3 million pounds.
Thursday, July 27, 2017
Senate committee preserves spending limit precluding DOJ interference with medical marijuana regimes
As this new piece from The Hill reports, the "Senate Appropriations Committee approved an amendment to a budget bill on Thursday to protect medical marijuana programs from federal interference in states that have legalized the drug for medical use." Here is more:
The amendment to the 2018 Commerce, Justice and Science appropriations bill passed by a voice vote and prohibits the Justice Department from using funds to prevent states from "implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana."
"The federal government can't investigate everything and shouldn't, and I don't want them pursuing medical marijuana patients who are following state law," said Sen. Patrick Leahy (D-Vt.), who offered the amendment. Leahy argued that the Department of Justice (DOJ) should be focusing its limited resources on more legitimate threats.
"We have more important things for the Department of Justice to do than tracking down doctors or epileptics using medical marijuana legally in their state," he said. Sen. Richard Shelby (R-Ala.), however, argued that while civil liberties and states' rights are important, telling DOJ not to enforce federal laws goes against legal principles. "If Congress wants to tell the Department of Justice to stop enforcing the medical marijuana laws, then it should change the authorization within the Judiciary Committee, not through an appropriations provision," he said.
The amendment passed despite a letter Attorney General Jeff Sessions sent in May asking House and Senate leadership not to block DOJ from using funds to enforce federal marijuana laws. "I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime," Session wrote in the letter first obtained by Massroots.com and later confirmed by The Washington Post. "The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives."
Rep. Dana Rohrabacher (R-Calif.) told The Hill on Thursday that he plans to once again offer the amendment to the House Commerce, Justice and Science Appropriations bill, which passed the appropriations committee earlier this month. When asked if he's expecting a fight on the floor, where he'll be forced to offer the amendment, Rohrabacher said he hopes there isn't one "but if there is, clearly we will win."
July 27, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
The title of this post is the headline of this new CNBC commentary authored by Kevin Sabet, president of Smart Approaches to Marijuana. Here are excerpts:
Today, a growing class of well-heeled lobbyists intent on commercializing marijuana are doing everything they can to sell legal weed as a panacea for every contemporary challenge we face in America. Over the past several years we've been barraged by claims that legal pot can cure the opioid crisis, cure cancer, eliminate international drug cartels, and even solve climate change.
One seemingly compelling case made by special interest groups is that legal marijuana can boost our economy too: after all, marijuana businesses create jobs and bring in millions of dollars in much-needed tax revenue.
Yet, a closer look at the facts reveals a starkly different reality. The truth is, a commercial market for marijuana not only harms public health and safety, it also places a significant strain on local economies and weakens the ability of the American workforce to compete in an increasingly global marketplace.
We already know that drug use costs our economy hundreds of millions of dollars a year in public health and safety costs. The last comprehensive study to look at costs of drugs in society found that drug use cost taxpayers more than $193 billion – due to lost work productivity, health care costs, and higher crime.
A new study out of Canada found that marijuana-impaired driving alone costs more than $1 billion. Laws commercializing marijuana only make this problem worse and hamper local communities' ability to deal with the health and safety fallout of increased drug use....
Over the past several months, the Trump Administration has signaled it is considering a crackdown on marijuana in states where it is legal. We don't yet know what this policy change may look like, but one thing we know for sure is that incarcerating low-level, nonviolent offenders in federal prisons is not the answer. Individual users need incentives to encourage them to make healthy decisions, not handcuffs.
But we do need to enforce federal law. Indeed, by reasserting federal control over the exploding marijuana industry, we know we can make a positive difference in preventing the commercialization of a drug that will put profits over public health and fight every regulation proposed to control its sale and use. Marijuana addiction is real, and simply ignoring this health condition will only cost us down the road. We should assess marijuana users for drug use disorders as well as mental health problems, and assist those into recovery. This can't happen in a climate that promotes use.
Tuesday, July 25, 2017
Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
As reported in this Newsweek article, former New York Jets defensive end Marvin Washington "is one of five plaintiffs in a federal lawsuit against Sessions, the Department of Justice and the Drug Enforcement Agency" that attacks federal marijuana prohibition on various grounds. Here is a bit more about the lawsuit via the press report:
The Manhattan lawsuit targets the 1970 Controlled Substances Act, which established federal drug policy and delineated narcotics into different schedules. Under the legislation, marijuana is considered a Schedule I controlled substance—along with other drugs such as heroin and ecstasy—and is subjected to the tightest restrictions.... “Classifying cannabis as a ‘Schedule I drug’ is so irrational that it violates the U.S. Constitution,” the lawsuit said.
Washington has joined the lawsuit because the current legislation prevents him from obtaining federal grants to start a business aimed at professional football players who want to use medical marijuana to manage pain.... Other plaintiffs include an 11-year-old boy, Alexis Bortell, who requires medical marijuana to control his epilepsy, and a disabled military veteran, Jose Belen, who uses it to control post traumatic stress syndrome....
Washington, whose playing career ended in 1999, has been a vocal advocate for the use of medical marijuana in football. He has lobbied the NFL to promote medical marijuana as an effective means of pain relief. Washington played eight seasons with the Jets, while also playing for the San Francisco 49ers and the Denver Broncos in a 11-year career. He won the Super Bowl XXXIII in 1999 with the Broncos.
Keith Stroup, legal counsel for the advocacy group NORML, has a lot more of the legal particulars in this new posting which also includes a link to the 89-page complaint in this case. Here are parts of his post:
Washington, et.al v. Sessions, et.al, was recently filed in US District Court in the Southern District of New York by lead attorney Michael Hiller, with NORML Legal Committee (NLC) attorneys David Holland and Joseph Bondy serving as co-counsel. The full complaint can be found here.
Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.
Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution.
Named as defendants in the case are Attorney General Jeff Beauregard Sessions, Acting Administrator of the DEA Chuck Rosenberg, the Justice Department, the DEA and the Federal Government.
In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution.
Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.
July 25, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Sunday, July 23, 2017
The title of this post is the headline of this notable Los Angeles Times article. Here is how it starts:
The Trump administration’s attack on legal marijuana, already stymied by large states determined not to roll back the clock, is increasingly confronting an even more politically potent adversary: military veterans.
Frustrated by federal laws restricting their access to a drug many already rely on to help treat post-traumatic stress disorder, chronic pain and opioid addiction, veterans have become an influential lobbying force in the marijuana debate after sitting on the sidelines for years.
The 2-million-member American Legion this spring got involved in a big way by launching a campaign to reduce marijuana restrictions, which it says hurt veterans and may aggravate a suicide epidemic. The move reflects the changing politics of marijuana, and of a conservative, century-old veterans service organization facing new challenges as its membership grows with those who served in Iraq and Afghanistan.
“We were hearing these compelling stories from veterans about how cannabis has made their lives better,” said Joseph Plenzler, a spokesman for the American Legion. “That they were able to use it to get off a whole cocktail of drugs prescribed by VA doctors, that it is helping with night terrors, or giving them relief from chronic pain.”
At the same time, some patients complained that Veterans Affairs doctors refused to offer any advice for using medical marijuana yet also made a record of who was using it, raising fears that such information might be used to punish former service members or strip their benefits. The legion’s call to reclassify marijuana federally from a drug that has no medical benefit and is more dangerous than cocaine to one that is in the same category as legal prescription painkillers has caught the attention of lawmakers.
A measure the legion now supports, that would permit VA doctors to give their patients the sign-off they need to access medical marijuana in states where it is legal, was approved by a key Senate budget committee earlier this month on a 24-7 vote, with nine Republicans voting in favor. The measure is among the veterans-related marijuana legislation getting new traction at an otherwise challenging time in Washington for pot advocates.
Thursday, July 20, 2017
As reported in this US News & World Report article, headlined "Feds Tour Colorado in DOJ Pot Review: Recommendations are due next week on whether to crush state-legal weed," there is some new activity in the arena of federal review of state marijuana reform. But what the new activity will lead to remains unclear. Here are excerpts:
Federal officials asked seemingly mundane questions during a Tuesday meeting in Colorado with state officials, at least some of whom were unaware that the discussion was part of a shadowy review of federal marijuana policy. The meeting provides the best glimpse yet into the issues authorities are considering as they prepare to make recommendations next week on what to do about state-legal recreational marijuana, with options ranging from a crackdown to keeping the status quo.
The guest list on Tuesday included Justice Department attorney Michael Murray, who is leading the department's marijuana policy review, and a State Department official with expertise in treaty obligations, according to Mark Bolton, deputy legal counsel to Colorado Gov. John Hickenlooper, a Democrat. John Zadrozny, a domestic policy adviser at the White House, was in the room, as were two representatives of the White House Office of National Drug Control Policy, says Bolton, who also attended.
A person with knowledge of the meeting's purpose says the gathering and another meeting Wednesday with officials from the city of Colorado Springs are directly related to the ongoing federal pot policy review. The source asked not to be identified. Bolton says he was unaware that the meeting – which featured about 20 state agency representatives -- was directly related to the policy review....
The only question that Bolton recalls Murray asking dealt with whether 2014 guidance from the Treasury Department's Financial Crimes Enforcement Network (FinCen) remains "up to date," he says. That guidance outlined how banks can work with pot businesses, but many financial institutions remain reluctant to take on the compliance burden or perceived risk involved in handling cash for cannabis firms operating in violation of federal law. "I don't remember him asking other questions, but it may be they weren't questions that resonated with me," Bolton says.
The State Department official asked if there had been significant problems with diversion of Colorado marijuana to other countries, Bolton says. A representative of the Colorado Department of Public Safety said that is not a significant problem....
The ONDCP representatives at the meeting asked about educational efforts and about continued black- and gray-market sales, Bolton says. He can't recall Zadrozny asking any questions....
Bolton says state officials shared how Colorado uses marijuana tax revenue – estimated to exceed $500 million since recreational sales began in 2014 – to educate the public about the risks of the drug and about responsible use, and that officials pointed out teen use has not increased. He says participants did not directly address the possible consequences of repealing the Justice Department's 2013 Cole Memo, which allowed recreational pot stores to open....
Hickenlooper was not present at the meeting. But Bolton believes invitations extended by the governor during an April meeting with Attorney General Jeff Sessions, as well as an invitation by Colorado Attorney General Cynthia Coffman, a Republican, inspired the visit. It's unclear if federal officials are touring other states as part of their policy review....
After meeting with state officials, a group of feds met Wednesday with legalization foes in Colorado Springs. No supporters of regulating recreational sales attended, KKTV reported after staking out the meeting and later interviewing Mayor John Suthers, a former U.S. attorney and state attorney general who opposes marijuana legalization. "A lot of [the meeting dealt with] sensitive case investigations. That's another reason why it couldn't be public," Suthers told the station. "Probably most of the discussion centered around the huge black market that exists for marijuana in Colorado." Suthers said the city's police department created the guest list, which included a local doctor and a school district director of discipline. The mayor and the police chief were unable to provide immediate comment....
KKTV reported a member of Vice President Mike Pence's staff and at least one member of the DEA also attended the Colorado Springs meeting. Pence's office did not immediately respond to a request for comment, and the national DEA headquarters referred questions to the local office, which did not immediately respond.
Although the Justice Department could launch a devastating legal assault on state-regulated recreational marijuana, medical marijuana currently is protected from federal prosecutors and anti-drug agents by a budget restriction passed in Congress. And in Colorado, state legislators approved legislation earlier this year allowing businesses to reclassify recreational pot as medical marijuana if the need arises.
July 20, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)