Thursday, April 28, 2016
"Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle"
The title of this post is the title of this new paper authored by Sam Kamin now available via SSRN. Here is the abstract:
This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws. I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion. I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes.
I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States. I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine. Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.
Wednesday, April 27, 2016
Maine now officially back on the list of states likely to vote on marijuana legalization this November
As reported in this new AP piece, the "referendum proposal to legalize marijuana for recreational use in Maine has met the threshold to appear on the November ballot, Secretary of State Matthew Dunlap said Wednesday." Here is more about what happens now and why this was not a certainty just a few months ago:
The announcement means the citizen initiative will be forwarded Friday to state lawmakers, who can either enact it now or put it before voters in the fall.
David Boyer from the Campaign to Regulate Marijuana Like Alcohol said he looks forward to educating Maine voters as to why ending marijuana prohibition makes sense. "We think that regulation and controlling marijuana and putting it behind the counter is a far better approach than giving drug dealers a monopoly," Boyer said.
Scott Gagnon, who opposes marijuana legalization, said the effort would make Maine "the weed basket of the East" and bring along with it a variety of societal ills. "We are confident that when Mainers see the full story of marijuana and what it would mean to have pot dispensaries in their community, they will rise up to reject the marijuana industry agenda, to protect the health of their communities and the futures of their children," he said.
The measure would legalize marijuana for recreational use for adults 21 and older, allowing them to possess up to an ounce. It also would regulate and tax marijuana. Maine already legalized marijuana for medical use in 1999....
The Campaign to Regulate Marijuana Like Alcohol originally submitted 99,229 signatures on Feb. 1, but only 51,543 of the signatures were deemed to be valid. A review was ordered after a judge set aside Dunlap's decision to reject thousands of signatures because the notary's signature didn't match the signature on file in Augusta.... Dunlap said Wednesday that seven circulators whose petitions containing 11,305 signatures were originally invalidated have sworn under oath that they signed their petitions in front of notary Stavros Mendros.
Maine will be one of several states considering marijuana legalization proposals. Colorado, Washington, Oregon, Alaska and Washington, D.C., already have made recreational use of marijuana legal for adults.
The Room for Debate section of the New York Times yesterday had an interesting quartet of pieces discussing marijuana reform focused on the "gateway drug" notion. Here is the section's introductory set up:
The drive to marijuana legalization has grown more powerful as the crisis of heroin and opioid addiction has become more troubling. Now some officials say efforts to legalize marijuana should stop because, they say, greater availability would increase use and marijuana can be a gateway to the use of other drugs.
But is marijuana a gateway drug and, for that reason, should it remain illegal?
Here are the contribututions, with links via the commentary titles and the brief summaries provided by the Times:
Robert L. DuPont, "Marijuana Has Proven to Be a Gateway Drug": Establishing it as a third legal drug, along with tobacco and alcohol, will increase drug abuse, including the expanding opioid epidemic.
Colleen L. Barry, "Overdoses Fell with Medical Marijuana Legalization": Medical marijuana might be safer for chronic pain management than opioids but more research is needed.
Ethan Nadelmann, "Fears of a Gateway Effect Vastly Exceed the Evidence": The vast majority of people who use marijuana never progress to using other illicit drugs, or even to becoming regular marijuana consumers.
Deborah Peterson Small, "Look at the Real Gateways to Addiction": Many promote myths about marijuana to justify the use of law enforcement and the testing of people for public benefits, jobs and exclusion from housing.
Monday, April 25, 2016
This morning's Columbus Dispatch has this helpful article headlined "Efforts to legalize marijuana in Ohio differ in who can grow, who can use," which provides a useful primer on the state of marijuana reform efforts in my home state. Here are excerpts:
Ohio appears likely to become the 25th state to approve medical marijuana, either through a new state law or a voted constitutional amendment. State lawmakers and two citizen advocacy groups are working simultaneously on proposals to bring marijuana as medicine to Ohioans with qualifying medical conditions.
But how the legislature and advocates approach the subject is very different, and the two pro-marijuana groups are proposing separate variations as well. Here are some key differences among the proposed legislation (House Bill 523), the Marijuana Policy Project amendment, and the Medicinal Cannabis and Industrial Hemp amendment.
Impact: The legislation would change only Ohio law. Both ballot proposals would amend the Ohio Constitution.
Marijuana in smokeable form: The legislation does not specifically allow it but doesn’t rule it out. Both ballot issues would allow it.
Home-grown pot: The legislation would not allow growing marijuana at home; both ballot issues would allow it in limited quantities.
Growers: The Marijuana Policy Project amendment would allow 15 large growers and unlimited small growers. Neither the legislation nor the cannabis and hemp amendment specify grower numbers.
Qualifying conditions: No specific qualifying medical conditions for medical marijuana are listed in the legislation. Both amendments cite a list of ailments, conditions and diseases that would qualify.
Doctor requirements: The legislation spells out numerous requirements for physicians, including registration and reporting marijuana prescriptions every 90 days. The amendments contain no specific requirements....
Timing: Both ballot issues aim to make marijuana as medicine available next year, while the legislature would likely take two years to implement....
Groups and individuals are weighing in on the legislation and ballot issues. The Ohio Rights Group, which at one time was planning its own marijuana ballot issue, said last week that it will support the Marijuana Policy Project initiative because it will “bring much needed therapeutic relief to the seriously ill in Ohio.”
The Ohio Farm Bureau Federation is taking a wait-and-see approach about all three proposals, said Adam Sharp, vice president of public policy. The group has not yet looked closely at the marijuana and hemp proposal, which would allow growing of hemp plants, a cousin of marijuana without its euphoric qualities, Sharp said. Hemp is used for a variety of products, including cloth, rope, oils and some edibles.
Ohioans for Medical Marijuana, the local group working with the Marijuana Policy Project, responded with a detailed 12-point memo outlining its “serious concerns” with the proposed legislation. Among them are leaving decision-making in the hands of nine “unaccountable, unelected political appointees” on a Marijuana Control Commission; imposing “considerable hardships on patients” by requiring office visits every 90 days; providing no legal protection for patients or caregivers; and denying the ability to grow marijuana at home.
While details, cost and accessibility are being discussed, timing is urgent to some, including Andrea Gunnoe, a school psychologist, business owner, wife and mother of four from Dublin who testified to the legislative panel last week. As she spoke, Gunnoe held her son, Reid, 6, who was diagnosed with epilepsy when he was 3. She wants the state to approve medical marijuana to use to control Reid’s frequent seizures. “My son’s medical bills since his onset have totaled over $4 million,” Gunnoe said. Because of the time it will take to implement the law, she said caregivers should be given a “safe haven” to get marijuana concentrates from other sources and “be protected from prosecution and allegations of child endangering.”
Sunday, April 24, 2016
This lengthy local article, headlined "Not just medicine: Marijuana may have big economic impact," takes a look into some of the key economic stories now that the Keystone state has legalize medical marijuana. Here are excerpts:
Pennsylvania Medical Cannabis Society Executive Director Patrick Nightingale called the medical marijuana law a piece of “momentous legislation.” He said it resulted from a true grassroots coalition of both recreational advocates and the parents of children suffering from ailments that can be treated with marijuana.
“They said, We are not going to settle for a bill that benefits our children only,” Nightingale said. According to Nightingale, the worst part of the legislation is the regulatory fee structure, which includes a $200,000 licensing payment for growers. Nightingale characterized this as a “one-time revenue grab for the commonwealth.”
“(The fees) are very high,” he said. “It is an expensive process.” He added that he is somewhat worried that the price of legal marijuana will greatly exceed the price of black market marijuana. This would potentially drive users underground, and destroy legitimate businesses.
Nightingale cited the price of legal marijuana in New Jersey, which is approximately $500 an ounce. He said marijuana of even higher quality, sold illegally in Pittsburgh, costs only $350 an ounce. “I don’t know where (Gov.) Chris Christie and his cronies came up with $500 an ounce,” Nightingale said....
Illinois passed a bill similar to Pennsylvania’s medical marijuana legislation in 2013. Dan Linn — executive director for the Illinois chapter of the National Organization for the Reform of Marijuana Laws, or NORML — said the movement has stimulated local economies and created approximately 1,000 jobs.
There have also been snares along the way. Linn acknowledged that high regulatory fees created “sticker shock” that prevented many would-be entrepreneurs from entering the business. And he said that local officials have made life difficult in some areas. “There were some folks who had very difficult zoning appeals in their communities,” Linn said.
But some are far more optimistic about Pennsylvania’s program. Chris Walsh, editorial director of the Marijuana Business Daily in Denver, Colorado, said the Keystone State should be far more successful than Illinois in implementing its medical marijuana legislation. “There’s more business opportunity in Pennsylvania, for sure,” he said. “The inclusion of severe chronic pain (as a qualifying condition) is huge.”
According to Walsh, allowing those currently on opiates to switch to marijuana makes the difference between a small legal market and a massive legal market. It also means that, because there’s more demand, prices should be reasonable. “Pennsylvania is really shaping up to be one of the biggest marijuana markets, easily on the East Coast, and possibly fifth or sixth in the entire nation,” he said, predicting that the commonwealth and Maryland will dominate the industry in the Atlantic region. “There’s a lot of optimism about this market.”
Walsh, however, echoed Nightingale’s concerns about local counties and municipalities trying to push medical marijuana grows and dispensaries out of areas. He said this is true even in Colorado because some people expect seediness and an increase in crime. “That never happens,” Walsh said.
“If it’s a well-regulated industry, once it’s been up and running, people kind of forget about them. There’s not this scary, stereotypical image that people have in their head.” His prediction for Pennsylvania: $100 million in annual sales. “(But) it will take a while to get there,” he said.
Saturday, April 23, 2016
NBC News has this new extended article, the first of a two-part series, taking a close look at the considerable difficulties that flow from medical marijuana reform efforts that only legalize CBD oils. This piece is headlined "'No-Buzz' Medical Pot Laws Prove Problematic for Patients, Lawmakers," and here is how it gets started:
The idea was intoxicating to lawmakers in more than a dozen states where medical marijuana was a political nonstarter: Give patients with certain severe medical problems access to a type of pot that might provide relief without producing the "high" usually associated with the plant.
But two years after 17 Midwestern and Southern states began passing a series of what are known as "CBD-only" medical marijuana laws, many people they were intended to help are rising up in protest. The laws, they say, help few patients, exclude others who could benefit and force residents to commit criminal acts in order to get relief for themselves or their loved ones.
"There is no amount of tweaking to a CBD decriminalization law that will make it work," said Maria La France of Des Moines, Iowa, who gives her 14-year-old son, Quincy Hostager, an oil derived from marijuana to treat his Dravet syndrome, an intractable form of childhood epilepsy. "I don't want to break the law, but I have to."
The CBD-only laws allow residents with specified medical conditions to legally use marijuana-derived products that contain cannabidiol (CBD) but are low in tetrahydrocannabinol (THC), which produces marijuana's "high." (Both CBD and THC are among the scores of active chemical compounds known as cannabinoids that are present in the marijuana plant.)
For medical purposes, that usually means orally ingesting an oil derived from marijuana or hemp, though there also are numerous other products like body oils containing CBD for topical uses.
Supporters involved in passing the laws portrayed them as compassionate measures that would let patients avail themselves of the potentially therapeutic or pain-relieving properties of pot without risking the possibility of creating a new generation of drug addicts.
But political opposition — often led by some of the families the laws were intended to help — has emerged in many of the states that passed the legislation. "We're not lawbreakers and this shouldn't even be an issue," said Jennifer Conforti of Fayetteville, Georgia, who gives her 5-year-old autistic daughter, Abby, marijuana-derived oil with higher-than-allowed levels of THC to control dangerous biting episodes. "It should be a medicine that doctors go to when they need it."
Conforti and others who want to expand the state's CBD-only law to cover additional medical conditions, allow for higher levels of THC and provide for in-state cultivation and distribution of CBD products have mounted a "civil disobedience" campaign to raise public awareness about the issue.
In Utah, proponents of expanded access to whole-plant medical marijuana say they will conduct a campaign to unseat legislators who opposed a bill to expand the state's current CBD-only law.
Even some involved in crafting CBD-only laws acknowledge that lawmakers have ventured onto thin ice by intervening in matters that may best be left to patients and their doctors. "Is this what we're going to do? Are we going to vote on the next blood pressure medication or chemo treatment because of anecdotal evidence?" said Pat Bird, an executive for a Utah substance abuse prevention program who was involved in the failed effort this year to update the state's CBD-only law.
The laws also have been harshly criticized by both medical marijuana advocates and prominent members of the medical establishment, albeit for very different reasons.
UPDATE: Here is the second part of this series from NBC News under the headline "Battle Over Georgia's 'No-Buzz' Medical Marijuana Law Gets Personal." Here is how it begins:
A Georgia mom is helping to lead the charge to expand the state's limited medical marijuana law, which she says unfairly excludes many patients with severe medical conditions — including her 5-year-old autistic daughter — who could benefit from the plant's medicinal properties.
"There are some pretty tenacious parents who are fighting," said Jennifer Conforti, whose daughter, Abby, isn't covered by the current law. "... Why wouldn't you do that as a legislator? What is in it for you to make you not want to help families in the state?"
Friday, April 22, 2016
The title of this post is the title of this recent lengthy American Lawyer article which in part explains why I think my novel marijuana law and policy law-school class may not be all that novel in the coming years. Here is how the piece gets started:
On April 20, which each year marks the unofficial “420” holiday for marijuana enthusiasts worldwide, lawyers at big firms across the country spoke with The Am Law Daily about their work in the burgeoning field of semi-legal weed.
Though still not allowed under federal law, rapidly changing state regulations have created a relatively new industry worth roughly $5.7 billion. Clients looking to get involved in funding, growing or selling cannabis are calling upon lawyers to handle venture capital, finance, intellectual property, real estate, employment and regulatory work.
Am Law 200 firms have approached this industry with varying degrees of discretion. T hompson Coburn has a blog, Tracking Cannabis, Seyfarth Shaw has one too in The Blunt Truth and Dykema Gossett will also have one soon. Fox Rothschild managing partner Mark Silow praised the cannabis work of the four-partner group his firm hired in Chicago from Nixon Peabody when the team was brought on last year.
“I don’t think the firm’s ever been shy to put it out there that we’re entrepreneurial,” said Fox Rothschild partner Joshua Horn. The co-chair of his firm’s securities industry practice, Philadelphia-based Horn is also a member of the National Cannabis Bar Association, which was formed last year. On Sunday, Pennsylvania became the 24th U.S. state to legalize medicinal marijuana, so, as opposed to his partners in Illinois, Horn said he hasn’t put in much cannabis work near home. The Pennsylvania Bar Association has yet to officially authorize an ethics rule change that would protect lawyers working in this industry, as noted this week by sibling publication The Legal Intelligencer. But Horn said he is increasingly helping clients in other states raise capital to finance their cannabis ventures.
Baker & Hostetler corporate partner Randolf Katz is also doing marijuana finance work in California, where voters could approve the recreational use of marijuana in November. Katz said his clients are increasingly drawn to pot startups. “One fund was pretty heavily in it,” he said, referring to a client. “Another fund, in the past year, has sent over probably six to eight different potential investments for us to take a look at that are marijuana-related companies.”
Wednesday, April 20, 2016
The Huffington Post has this piece explaining why today's date is considered special in the minds of many marijuana fans. For me, what is special today is how many interesting marijuana policy and reform stories can be found in major (and not so major) media outlets. Here is just a sample:
From ABC News here, "Man's Jail Death Adds New Face to Debate on Marijuana Laws"
From the Canadian Broadcasting Corporation here, "Federal marijuana legislation to be introduced in spring 2017, Philpott says: Health minister in New York for UN talks to review global drug treaties"
From CBS News here, "Marijuana use and support for legal marijuana continue to climb"
From the Daily Caller here, "Support For Marijuana Legalization Soars To 56 Percent Nationally"
From a FOX affiliate in Denver here, "Marijuana money might have saved small Colorado town from 'abyss of nothingness'"
From the International Business Times here, "After Years Of Petitions And Protests, Marijuana Group DCMJ Says It's Meeting With Obama Staffers At The White House"
From the New York Times here, "Marijuana Legalization in New England Is Stalled by Opiate Crisis"
From Quartz here, "America's weed industry is going to be massive. Is Big Marijuana a good thing?"
From Rolling Stone here, "What Will Rescheduling Marijuana Mean for the Pot Industry?"
From the Sacramento Bee here, "On 4/20, marijuana legalization headed for California ballot"
From the Wall Street Journal here, "Mexican President Backs Legalizing Marijuana for Medical Use"
From Wired here, "A New Crop of Marijuana Geneticists Sets Out to Build Better Weed"
Exploring how to impact the hearts and minds of bellwether Buckeye voters concerning marijuana reform
Perhaps fittingly, the final student presentation planned for my Ohio State College of Law marijuana reform seminar is focused on "efforts to change the hearts and minds of Ohio voters when it comes to marijuana reform." Here is how the students have described their project and the materials they have assembled to this end:
Our project is focused on connecting with the average Ohioan who does not and has not used marijuana, in order to dispel any myths or prejudices that he or she might hold. The goal is to inform the populace about the virtues of marijuana reform before they vote on another bill/initiative so that they are primed to vote yes on the merits. The articles include what the polls say about Ohio's desire for legal marijuana, a Vice video about moms returning to marijuana consumption after years rebuking it, and some materials concerning compelling organizational tactics for reformers including strategies used for legalization initiatives:
Summer 2014 Prospectus by The Strategy Network describing ResponsibleOhio's plans for "2015 Ohio Marijuana Legalization and Regulation"
April 20, 2016 in Assembled readings on specific topics, Initiative reforms in states, Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, April 19, 2016
I am sad to report that this week marks the final week of my OSU marijuana reform seminar and thus the final set of student presentations. One of these presentations will be focused on labor and employment law issues, and here are student-assembled materials on this topic:
Monday, April 18, 2016
This new Denver Post piece, headlined "Fewer Coloradans seek treatment for pot use, but heavier use seen," reports on this notable new official state government report from Colorado (which I believe was just released today, but bears a cover date of March 2016). Here is a basic summary via the Denver Post piece:
Colorado's treatment centers have seen a trend toward heavier marijuana use among patients in the years after the state legalized the drug, according to a new report from the Colorado Department of Public Safety. The 143-page report released Monday is the state's first comprehensive attempt at measuring and tracking the consequences of legalization.
In 2014, more than a third of patients in treatment reported near-daily use of marijuana, according to the report. In 2007, less than a quarter of patients reported such frequency of use. Overall, though, the number of people seeking treatment for marijuana has dropped since Colorado voters made it legal to use and possess small amounts of marijuana. The decrease is likely due to fewer people being court ordered to undergo treatment as part of a conviction for a marijuana-related crime.
The finding is among a growing body of evidence that marijuana legalization has led to a shift in use patterns for at least some marijuana consumers. And that is just one insight from the new report, which looks at everything from tax revenue to impacts on public health to effects on youth. Among its findings is a steady increase in marijuana use in Colorado since 2006, well before the late-2000s boom in medical marijuana dispensaries. The report documents a sharp rise in emergency room visits related to marijuana. It notes a dramatic decline in arrests or citations for marijuana-related crimes, though there remains a racial disparity in arrest rates.
But the report, which was written by statistical analyst Jack Reed, also isn't meant as a final statement on legalization's impact. Because Colorado's data-tracking efforts have been so haphazard in the past, the report is more of a starting point. "[I]t is too early to draw any conclusions about the potential effects of marijuana legalization or commercialization on public safety, public health, or youth outcomes," Reed writes, "and this may always be difficult due to the lack of historical data."
It's not just the lack of data from past years that complicates the report. Reed also notes that legalization may have changed people's willingness to admit to marijuana use — leading to what appear to be jumps in use or hospital visits that are really just increases in truth-telling. State and local agencies are also still struggling to standardize their marijuana data-collection systems. For instance, Reed's original report noted an explosive increase in marijuana arrests and citations in Denver, up 404 percent from 2012 to 2014. That increase, however, was due to inconsistent data reporting by Denver in the official numbers given to the state.
Intriguingly, though this lengthy report comes from the Colorado Department of Public Safety, not very much of the report discusses general crimes rates at much length. But what is reported in this report is generally encouraging:
Colorado’s property crime rate decreased 3%, from 2,580 (per 100,000 population) in 2009 to 2,503 in 2014.
Colorado’s violent crime rate decreased 6%, from 327 (per 100,000 population) in 2009 to 306 in 2014.
April 18, 2016 in History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Data and Research, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)
As noted in this prior post, we here have the pleasure and honor of having Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, provide reports and thoughts on-site from the The Cannabis Science and Policy Summit now going on in NYC. Here is his dispatch after the end of the summit's first day:
Some recurring themes today:
* It's easier to heavily regulate marijuana at the outset and then loosen the rules over time than to do the reverse. Loose regulations become entitlements and entrenched interests will fight like hell to keep them form disappearing. Andrew Freedman made the great point that once you have marijuana businesses complying with regulation, they'll be your allies when others want them weakened (because they benefit under the extant rules).
* Taxation should start relatively low (to kill the black market) and then ratchet up (or titrate, one of the words of the day) as legal marijuana is able to compete on price with the black market.
* Big marijuana is on everyone's mind and is the official boogeyman of the festivities. The 80/20 rule and its variants was invoked over and over. How to fix it? Government monopoly (at least on distribution), non-profit models, advertising bans, etc.
* A marijuana regulatory system should provide the amount of marijuana for which there is current demand; it shouldn't create new demand.
* We don't know much about interactions — with alcohol, with opiates, with tobacco — as we legalize marijuana. But those effects will be important if, as most people expect, legalization will lead to more marijuana usage. If it leads to less usage of other drugs, the harms are lessened; if other usage goes up or stays flat, increased marijuana usage is much more problematic.
* There is lots of concern about increased potency and I'm not sure it's warranted. High potency is not bad in itself; it means less smoking and that's a boon for health rather than a threat. Also, if we're talking about marijuana concentrates, the production process is incredibly dangerous if done at home, and if there's demand for concentrates, it probably makes sense to service that demand through a regulated market.
Sunday, April 17, 2016
Cannabis Science and Policy Summit: on-site reporting from the Vicente Sederberg Professor of Marijuana Law and Policy
I invited Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, to provide some reports or thoughts about his experiences today and tomorrow as he is participating in NYC at the The Cannabis Science and Policy Summit. Here is the first of what I hope might be a few on-site report from a very informed participant in this event:
The morning started with a cautionary tone. Jonathan Caulkins gave a plenary talk on the dangers of a profit-driven marijuana market. His thesis was that 25 years from now, policy makers will look back on this period and wonder what on earth we were thinking.
* He showed that half of marijuana is consumed by those who use daily and that, as with any industry, there will be a push from industry to grow that group.
* He argued that Americans spend 40 billion hours per year stoned and that we could easily expect that to double post-legalization.
* He called marijuana a performance-degrading drug. There's a reason we don't test chess players for pot to be sure they're not cheating.
In the questions and discussions in the hallway afterward, talk focused on possible alternatives to a market-driven legal market. The most concrete was David Courtwright's invocation of Sweden's Gothenburg public house regulatory system (limited number of licenses, a limit on maximum profits, etc.) as a model for marijuana regulation that minimizes social harm.
A fascinating (to me) issue is whether there is room for legalization's opponents (groups like SAM and policy wonks like Caulkins) and the cannabis true believers who started all this (DPA, MPP, NORML, etc.) to join forces against Big Marijuana. Talking to Dan Riffle, I compared this to the Never Trump movement. No one (except the eventual winners, whoever they will be) wants corporate marijuana, which looks like the front-runner at the moment. The question will be whether various opponents, coming at that place from different directions, can find sufficient common ground to organize against the juggernaut and whether they can do so before things become inevitable.
For the record and to be a bit of an iconoclast, I consider myself something of a supporter of "corporate marijuana" at least in the short term for a couple of reasons. First and foremost, in the arena of medical marijuana, I think we will only get lots and lots of needed dynamic and aggressive research on the potential of the cannabis plant if there is a significant profit motive driving the research. Second and not to be overlooked, I think there can and should be more external benefits (like job growth and tax revenue) flowing from a commercial marijuana marketplace if (and this is a big if) government if focused mostly on aggressively regulating the marijuana industry rather than excessively seeking to control/hamper its innovative tendencies.
Friday, April 15, 2016
New group, Doctors for Cannabis Regulation, with prominent physicians pushing to end pot prohibition
This notable new article from the Washington Post, headlined "More and more doctors want to make marijuana legal," reports on a notable new group starting to advocate for the ending of federal marijuana prohibition. Here are the details and context:
A group of more than 50 physicians, including a former surgeon general and faculty members at some of the nation's leading medical schools, has formed the first national organization of doctors to call on states and the federal government to legalize and regulate the use of marijuana in the interest of public health.
The group — which is announcing its formation Monday, under the name Doctors for Cannabis Regulation (DFCR) — is endorsing the legalization of marijuana for adult recreational use, a break from the position of the American Medical Association, the largest organization of doctors in the country. DFCR argues that the prohibition and criminalization of marijuana use does more harm to the public than good. Citing hundreds of thousands of annual marijuana arrests, racial and economic disparities in marijuana enforcement, and the role of prohibition in keeping marijuana prices high and lucrative to violent drug dealers, the physicians say that creating a legal and regulated marijuana market is the best way to ensure public safety, combat the illicit drug trade and roll back the negative consequences of strict enforcement policies on disadvantaged communities.
The emergence of the group comes at a crucial moment in the national debate over marijuana legalization. More than 60 percent of the public now says that it supports marijuana legalization. Support for allowing medical use of marijuana with doctors' supervision is closer to 90 percent. Over 35 million Americans use marijuana recreationally each year, according to the latest federal statistics. Research organizations, medical groups and even many national lawmakers have called on federal authorities to revisit policies toward marijuana that have remained essentially unchanged for nearly 50 years.
"You don't have to be pro-marijuana to be opposed to its prohibition," DFCR founder and board president David L. Nathan said in an interview. Nathan is an associate professor at Robert Wood Johnson Medical School at Rutgers University and a distinguished fellow of the American Psychiatric Association. He's quick to point out that his group does not advocate for the use of marijuana: While researchers generally agree that marijuana use is less harmful to individuals and society than the use of other common drugs, like alcohol and tobacco, about 9 percent of people who begin using as adults become dependent on the drug, and heavy use can be especially harmful to the developing brains of adolescents.
Rather, Nathan says, the best way to manage those risks is to bring use of the drug, as well as the associated commerce in it, out into the open via regulation. "Doctors should affirmatively support this," he said. "If you’re going to make something against the law, the health consequences of that use have to be so bad to make it worth creating criminal consequences. That was never true of marijuana. It was banned in 1937 over the objections of the American Medical Association (AMA)."
Indeed, in 1937, the AMA objected to the overly strict regulation of marijuana, as it was then used as a treatment for a number of medical conditions. The Association was worried that prohibition of marijuana would "deprive the public of the benefits of a drug that on further research may prove to be of substantial value."
After the passage of the "Marihuana Tax Act," marijuana "just wasn't that well-known among doctors," Nathan said. Many doctors were unaware that the drug essentially outlawed by the Marihuana Tax Act was the same substance they knew as "cannabis," which they used to treat a variety of ailments from corns to poor appetite. In subsequent years, physicians were just as susceptible to lurid media reports about the supposed dangers of marijuana use and the "Reefer Madness" era as anyone else.
Like most mainstream medical groups, the AMA is now opposed to the outright legalization of marijuana, calling it a "dangerous drug" and "a public health concern." But the group's stance has evolved in recent years. It recently added language to its position statements calling for "the modification of state and federal laws to emphasize public health based strategies," rather than punitive, incarceration-based measures. The group now encourages research into the drug, and has called on federal authorities to make it easier to do so....
Not all medical professionals are happy about relaxing attitudes toward what they see as a dangerous, addictive drug. The notion of doctors advocating for marijuana legalization is "totally idiotic," said Robert DuPont, who served as the first director of the National Institute on Drug Abuse and as the second White House drug czar, in an interview. "The idea that we cannot manage the health problems related to marijuana because it's illegal, that doctors are somehow inhibited from dealing with marijuana use and marijuana problems, is completely wrong."
"The idea that legalizing is going to stop the illegal market is equally stupid," he added. DuPont thinks that the current legal status of marijuana is sufficient to address the risks associated with marijuana use, and that punitive measures for drug sellers and users can be a powerful tool for helping at-risk people get treatment. "The criminal justice system is a wonderful vehicle for getting people into treatment and recovery," he said....
Much of the discussion around marijuana legalization, among doctors and the general public alike, hinges on different assessments of the same data showing the risks and benefits of changing marijuana laws. Groups like the AMA are concerned that legalization would lead to more widespread use of the drug, which would invariably mean greater prevalence of the negative health consequences associated with its use, like dependency and some mental illnesses that may be exacerbated by the drug's use.
But groups who favor legalization, like DFCR, point out that negative outcomes arise from the current system of prohibition, too. They say that the presence of a large black market, the stigmatization of individual users, and the potentially life-ruining effects of a marijuana conviction, are steep prices to pay for the nominal reduction in overall use that comes with prohibition.
In 2011, the California Medical Association, which represents 40,000 doctors in the state, became the first doctors' group to call for the full legalization of marijuana. They recently went a step further, explicitly endorsing a measure to appear on the ballot this November that would legalize marijuana and create a commercial market for it in the state. "Medical marijuana should be strictly regulated like medicine to ensure safe and appropriate use by patients with legitimate health conditions and adult-use marijuana should be regulated like alcohol," the group's president said in a February statement.
DFCR hopes to make a similar case among doctors at the national level, and to win over skeptics like DuPont and Friedmann. "We want to build a group of physicians who are going to be out in the public making the case for marijuana legalization to physicians, medical associations and the public at large," Nathan said.
The website for the DFCR is already in operation and has some interesting content. I especially liked this interesting page discussing the personal history and work of William Creighton Woodward, which includes this introduction:
In the 1937 hearings for the Marihuana Tax Act, Dr. Woodward defended the AMA’s position that cannabis should be regulated but not prohibited. In his lengthy testimony, he refuted the hyperbolic claims put forward by the proponents of marijuana prohibition, offering a prescient view of how our society should handle drug addiction in general, and marijuana in particular. There is much we can learn from this early, learned proponent of an evidence-based national cannabis policy, and extracts of his testimony are included below.
As noted in this prior post, Ohio legislators have now gone from generally talking about marijuana reform to having a specific bill that it plans to move to consider quickly. This new local article, headlined "Ohio medical marijuana hearings begin Tuesday," provides an overview of the bill and the big debate it is sure to engender in the state in the coming weeks:
State lawmakers will begin hearings on a new medical marijuana bill on Tuesday. The House Select Committee on Medical Marijuana plans to meet three times a week to vet and revise House Bill 523. The bill would establish a program allowing patients to buy and use marijuana to treat medical conditions with the recommendation of a licensed Ohio physician.
Rep. Kirk Schuring, a Canton Republican who led the House medicinal marijuana task force, will also chair the committee. Lawmakers hope to have the bill to Gov. John Kasich by June....
People will not be allowed to grow marijuana at home. Dispensaries and growing, testing, and processing facilities could not be located within 500 feet of a school, church, public library, public playground or public park.
Marijuana would be tracked from seed to sale, with patient and physician information entered into a database similar to other controlled substances.
Only Ohio-licensed doctors who have registered with the state to recommend marijuana could do so, and only after examining the patient and his or her medical history. Doctor recommendations would specify an amount and type of marijuana to patients. The doctor's recommendation would expire after 90 days, and patients would have to visit their doctors to renew the recommendations.
Businesses could still enforce drug-free workplace policies, and financial institutions that serve marijuana businesses would not face state penalties. Lawmakers would later determine an appropriate tax on medical marijuana. Marijuana businesses would have to pay all other business taxes. The program must be operational no later than two years after the bill becomes law.
The bill leaves many of the regulations up to a nine-member commission appointed by the governor, House, and Senate....
Meanwhile, two groups are collecting signatures to legalize medical marijuana at the ballot box. Don Wirtshafter, of Grassroots Ohioans, called the bill a "timid first step." Grassroots Ohioans' amendment would allow people to use marijuana to treat medical conditions, but would not require a physician's recommendation or prescription. The amendment would allow farmers to grow industrial hemp. "Our initiative is necessary because it will force the legislature to look at this more realistically in view of the modern science on this subject," Wirtshafter said Thursday.
Ohioans for Medical Marijuana, backed by national group Marijuana Policy Project, is proposing a regulated system in its constitutional amendment. Mason Tvert, spokesman for Marijuana Policy Project, said the House bill's reporting requirements would have a chilling effect on physicians and help few patients. "That's not something we require of physicians for many other medications and medical marijuana is objectively far less harmful and has far less potential for abuse than prescription drugs," Tvert said.
The full text of HB523 is available at this link, and at the very, very end of the document is a paragraph that is of special importance to me given my robust research interests in this topic:
The General Assembly hereby declares that it intends to establish a program to provide incentives or otherwise encourage institutions of higher education and medical facilities within this state to conduct academic and medical research regarding medical marijuana.
But as the title of this post is meant to signal, I am not sure if this provision shoud be my least or most favorite part of the bill. When I testified before the Ohio House Medical Marijuana Task Force last month, I noted that the Buckeye State is ideally positioned to emerge as a national and international leader in cannabis research, and I urged the General Assembly to create a dedicated Center for Ohio Cannabis Research (which I called "OhioCan Research"). I like this final paragraph of HB523 because it declares the General Assembly's intent establish a program to support medical marijuana research. But I dislike this paragraph because it does not do more than declare a legislative intent.
Specifically, I noticed that HB523 not only creates a "medical marijuana control commission" (MMCC), but also tasks the MMCC with figuring out each year how much of the tax/fee revenues raised by the medical marijuana program should be allocated each year to "marijuana drug abuse prevention programs." I think that provision of the bill should be expanding to also task the MMCC with figuring out how much of the revenue raised should also be allocated each years to "academic and medical research regarding medical marijuana."
"Marijuana Could Soon Be Rescheduled As A Less Dangerous Drug By The DEA, So Why Aren’t Cannabis Proponents Excited?"
The title of this post is the headline of this astute new International Business Times article, and here are exerpts:
After decades of intransigence on the issue, the Drug Enforcement Administration may finally recommend removing marijuana from the list of the country’s most dangerous drugs. That list was created as part of the Controlled Substances Act (CSA) of 1970, which consolidated all federal drug laws into a single comprehensive measure and defined marijuana as a Schedule I controlled substance, alongside heroin, LSD and other drugs that the government says have no medical value and the highest potential for abuse. That meant marijuana was saddled with the strictest possible restrictions and penalties.
Ever since then, marijuana activists have been fighting to remove cannabis from that category. In 1972, the National Organization for the Reform of Marijuana Laws (NORML) petitioned the DEA to instead place marijuana in Schedule II of the CSA, alongside cocaine, meth and other drugs considered dangerous but with medical potential. Twenty-two years and multiple courtroom battles later, the DEA had a final decision: Marijuana would remain a Schedule I substance.
The DEA has rejected two other marijuana rescheduling petitions since then, but now there’s a glimmer of hope among activists that change could finally be in the works. As first reported last week by the Huffington Post, in a recent letter to a group of Democratic senators, the DEA referenced a 2011 petition to reschedule cannabis to Schedule II, noting, “DEA understands the widespread interest in the prompt resolution to these petitions and hopes to release its determination in the first half of 2016.” While there’s a good chance this determination will be no different than in the past, the country’s rapidly shifting cannabis landscape — with 23 states plus Washington, D.C., having legalized medical marijuana (and Pennsylvania poised to do so) — makes some people think the DEA could be ready to concede that cannabis has medicinal value.
But instead of being cause for celebration, the news has met with largely subdued reaction from marijuana activists and business owners. “Symbolically, one could say that would be a victory because you’d have for the first time the federal government acknowledging that cannabis does in fact have some therapeutic utility,” said NORML deputy director Paul Armentano. “But that by and large would be the extent of it. By moving marijuana from Schedule I to II, the federal government would still be putting forward the intellectual dishonesty that cannabis has a high potential for abuse and needs to be regulated accordingly.”
Such responses suggest it’s not just the DEA that’s shifting its position on federal marijuana laws. Marijuana proponents’ stance on federal cannabis rules are evolving, too. As the movement racks up one legal victory after another with little federal acknowledgement, there’s a growing belief that the cannabis crusade doesn’t have to settle for marijuana's move to Schedule II, for which it has long lobbied. Some even worry that such a rescheduling could in fact limit or derail a thriving industry.
A handful of drugs have been rescheduled like this before. Marinol, a synthetic version of marijuana’s psychoactive components, was moved from Schedule I to Schedule II, and then to Schedule III in the 1980s and '90s. But rescheduling is rare. According to John Hudak, deputy director of the Brookings Institution’s Center for Effective Public Management, the DEA has rescheduled substances 39 times since the CSA was ratified 46 years ago, and only five of those instances involved moving a drug from Schedule I to II. Many drug policy experts aren’t optimistic that marijuana will soon be the sixth instance of this happening. After all, the DEA bases such decisions on existing marijuana research — research that has long been severely limited thanks in part to restrictions related to marijuana’s Schedule I status. Even if the DEA recommends rescheduling marijuana in the next few months, the change wouldn’t happen overnight; it would instead trigger a lengthy rulemaking process. “Even if the DEA comes out in July and says, ‘We are moving from I to II,’ it would still take about a year for that to happen,” said Hudak.
But if rescheduling does occur, some marijuana activists say there would be major repercussions. By acknowledging marijuana has medical use and placing it in the same category not just as cocaine but also Vicodin and Ritalin, the government would be signaling that times have changed. “This stands to be a legacy-defining move for Obama if his administration makes the right decision here,” said Tom Angell, founder of the cannabis advocacy group Marijuana Majority. “It would send a strong message to states that do not yet have medical marijuana laws on the books and a strong message to governments around the world that the U.S. government is now on board [with marijuana policy reform].”
The move wouldn’t just be symbolic. Moving marijuana to Schedule II would remove some of the logistical hurdles and academic taboos limiting cannabis research. It would also eliminate several of the bureaucratic hassles plaguing marijuana markets around the country because of the drug’s Schedule I status, such as confusion over whether publications with marijuana ads can be sent through the mail.
But as many marijuana supporters point out, shifting cannabis to Schedule II would not solve the biggest problems facing the nascent marijuana industry. Many unique barriers for marijuana research would still remain, such as the fact that all cannabis for such studies has to be obtained, via a lengthy and complicated approval process, from a single marijuana grow at the University of Mississippi that’s administered by the National Institute on Drug Abuse (NIDA). “The big issue is Ole Miss’ marijuana monopoly, and this wouldn’t fix that at all,” said drug-policy expert Mark Kleiman, a professor of public policy at the New York University Marron Institute of Urban Management.
Then there’s the fact that the biggest headaches afflicting marijuana businesses, such as a lack of banking services and sky-high tax rates thanks to IRS section 280E, which prohibits drug dealers from deducting the costs of selling illicit substances, are due to laws that cover drugs in both Schedules I and II of the CSA. “Moving it to Schedule II really doesn’t accomplish a lot, and frankly it is not scientifically supportable,” said Taylor West, deputy director of the National Cannabis Industry Association. “From a business perspective, it is unclear [if] it would have any impact on the banking situation, and it is specifically clear it would not have any impact on the 280E situation.”
Some marijuana advocates go further, worrying moving marijuana to Schedule II could actually make things worse. Could rescheduling open the door to Big Pharma moving in and taking over the industry? Or could it force all marijuana to be sold by prescription in pharmacies, doing away with the dispensary and recreational marijuana shop markets spreading across the country? “I think a risk that this creates is that it enables DEA to become more directly involved in the control of the current medical cannabis industry,” said Eric Sterling, executive director of the Criminal Justice Policy Foundation. “And that many of the features of the current medical cannabis industry that the public appreciates and values could be lost or destroyed. The DEA would be able to write regulations of the production and processing and distribution of medical cannabis, and they could be quite onerous.”
Others believe such fears are unfounded. “I think if Big Pharma really wanted marijuana to be a huge part of its product line, you would have seen it push the government long ago to consider rescheduling,” said Hudak at the Brookings Institution. Hudak also doesn’t expect to see the federal government dismantling the current marijuana industry: “The state systems are so large, economically and in terms of the people who are served, and they have become entrenched. And frankly, it would be a tremendous enforcement action by the U.S. government to shut them all down, and it would likely be beyond the enforcement resources of the U.S. government right now.”
April 15, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)
Wednesday, April 13, 2016
As reported in this local article, headlined simply "Medical marijuana to be legal in Pa," there is big marijuana reform news from a big state this afternoon. Here are the basic details:
Pennsylvania is a pen stroke away from legalizing medical marijuana. The House of Representatives on Wednesday gave the last legislative sign-off to a legalization bill, bringing to an end a years-long battle by advocates - many of them families with sick children - to allow them access to what they and others say is a safe and effective way to treat chronic and painful ailments.
Gov. Wolf said he will sign the bill into law on Sunday in the Capitol Rotunda, making Pennsylvania the 24th state to legalize medical cannabis. "This will benefit many hundreds of thousands of people who urgently need medical marijuana," said Rep. Mark Cohen (D., Philadelphia), a longtime supporter of the legislation.
The bill would allow people suffering from cancer, epilepsy, multiple sclerosis, intractable seizures, and other conditions to access medical marijuana in pill, oil, or ointment form at dispensaries statewide. It would not be able to be smoked. Because the legislation calls for creating a complex regulatory process for what essentially would become a new industry in Pennsylvania, medical cannabis may not be available to patients for a year or longer.
Under the bill, patients would be issued identification cards that would allow them to access medical marijuana from one of 150 dispensaries across the state. Those cards would have to be renewed annually. Doctors prescribing the treatment will have to register as practitioners.
Dispensaries, as well as those who grow and process medical cannabis, would have to be licensed by the state and would pay hefty registration and renewal fees. A 5-percent tax would also be imposed on the gross receipts from the sale of medical marijuana by a grower to a dispensary.
House Majority Leader Dave Reed (R., Indiana) hailed the bipartisan effort that helped the bill overcome years of obstacles. "At one time, I was opposed to the idea of allowing doctors to prescribe medical marijuana," Reed said. "But after researching the issue, reviewing the laws in other states and reading about the struggles of families the drug would help, I came to realize that it is wrong to withhold something that could benefit so many."
Restrictive medical marijuana reforms proposed by Ohio legislature in shadow of broader initiative effort
As a bellwether state with a long history of picking White House winners, I often feel very lucky to be in Ohio in big election years to observe how local, state and national politics surrounding various criminal justice issues play out in the Buckeye State. But this year, given my particular interest in marijuana reform, law and policy and the coming (brokered?) GOP convention in Cleveland, my Buckeye political and policy cup is already running over.
I bring all this up today because, as detailed in this new local article, "Ohio state lawmakers release plan to legalize medical marijuana," local GOP legislative leaders in Ohio are now actively peddling an important (but restrictive) medical marijuana reform proposal at the same time the national Marijuana Policy Project is gathering signatures and building a campaign for (much broader) medical marijuana reform in the form of a November 2016 voter initiative to amend the Ohio Constitution. Here are the basics and latest in these dynamic ongoing Buckeye marijuana reform developments:
Ohio state lawmakers released plans today to legalize marijuana for medical use. The bill being considered would allow doctors to write notes for marijuana for medical use. It would still allow for drugfree workplaces.
People who use medical marijuana, could still be fired from their job, according to the bill. The bill will not allow for home growing of marijuana.
Doctors would be required to periodically report to the state why they are prescribing marijuana instead of other drugs. Anyone taking medical marijuana under the age of 18 would require parental consent.
Ohio lawmakers are also asking the federal government to change marijuana from a Schedule 1 drug to a Schedule 2 drug. Hearing will start soon on the legislation and there could be as many as two hearings a week. No word yet on where Gov. John Kasich stands on the legislation.
The move comes as groups start collecting signatures to put an issue on the ballot before voters in November.... [and] polls show that legalizing marijuana just for medical use is popular across the state....
Ohioans for Medical Marijuana, which is backed by a national group, expects to spend $900,000 collecting 306,000 valid voter signatures to qualify for the November ballot.
April 13, 2016 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Medical community perspectives, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Who decides | Permalink | Comments (0)
Tuesday, April 12, 2016
Looking critically at the disproportionate impact that drug trafficking laws have on women (with emphasis on race, motherhood, and socioeconomic class)
The impact of the drug war on particular individuals and communities is a focal point for a student presentation this week in my semester-long OSU Moritz College of Law seminar on marijuana reform. My student provided this summary blurb to go along with the following links to background reading:
Between 1980 and 2010, the number of women in prison increased by 646 percent. And of those women, approximately 65 percent incarcerated in state prisons have a minor child; in comparison 55 percent of males in prison report having a minor child. My presentation will focus on the disproportionate impact that drug trafficking and conspiracy laws have on women, with emphasis on race, motherhood, and socioeconomic class. The discussion will be centered around the history of the war on drugs, incarceration trends of women, drug laws, and the familial consequences of incarceration.
Please read the following articles:
Monday, April 11, 2016
A student in my semester-long OSU Moritz College of Law seminar on marijuana reform is presenting this week on how the NCAA approaches marijuana issues involving student athlete. The student has authored this preview blurb to go along with links to assembled background reading:
One of the “hotter” topics in college sports today revolves around the personal activities of high profile student-athletes. When allegations surface that a student-athlete has used marijuana, the focus immediately goes to potential consequences. However, these consequences vary among the leagues, conferences, and schools that student-athletes attend. While the NCAA has (somewhat) consistent procedure for dealing with drug violations, the potential consequences aren’t always clear. Additionally, the potential consequences and treatment of marijuana violations are not always consistent across the board.
These material and articles provide background and highlight some main points for discussion:
AP: “Schools Was Athlete Penalties for Marijuana” - Eric Olson, Dec. 2015
The Wall Street Journal: “The NCAA’s Drug Problem” - Sharon Terlep, March 2015
NCAA: "Marijuana and the interocollegiate student-athlete: Implications for Prevention” - Jason Kilmer, Ph.D., University of Washington; Karalyn Holten, University of Washington