Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Thursday, October 23, 2014

Oregon Senator plans to vote in favor of marijuana legalization

In another sign of the changing politics on marijuana legalization, Oregon Senator Jeff Merkley told TalkingPointsMemo.com that he plans to vote for the marijuana legalization ballot measure in Oregon.  

"I lean in support of it," the Democratic senator told TPM in an interview on Wednesday.

...

 

A vote for it would make Merkley the first U.S. senator to support making marijuana legal in his state.

 

Merkley didn't point to a time when he came around to the view that pot should be legal, saying it has not been an issue in his reelection bid. He's in good shape to win, according to recent polls.

October 23, 2014 in Current Affairs, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, October 21, 2014

How To Run A Successful Legalization Campaign

 Talk about perfect timing!  Kenneth Leon and Ronald Weitzer's article, Legalizing Recreational Marijuana:  Comparing Ballot Outcomes in Four States, is available through the Social Science Research Network.

 Here's the abstract: 

 Medical marijuana is now available in 23 states, and its growing acceptance has paved the way for the legalization of recreational marijuana. This article examines four recent campaigns to legalize recreational marijuana – two failures and two successes. Using data from newspaper sources, interviews with key players, and other sources, we examine the factors that influence whether a ballot initiative succeeds or fails. We identify similarities and differences between the four measures, the social forces shaping the debate, their claims and counterclaims, and a set of factors that appear to increase the odds that a recreational marijuana ballot measure will be successful.

The factors are based on the successful Colorado and Washington campaigns and the unsuccessful Oregon and California campaigns. I don't want to ruin the suspense created in the abstract by telling you the complete set of factors, but here's one-"age distribution of voters."

October 21, 2014 in Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Dynamic Colorado debate over suggestion of near complete ban on marijuana edibles

This new Denver Post article, headlined "Proposed Colorado marijuana edibles ban shows lingering pot discord," documents the enduring challenges and debates over the best regulatory frameworks for states which have moved away from total marijuana prohibition. Here are excerpts:

Colorado's health department proposed an industry-spinning ban on the sales of nearly all forms of edible marijuana at recreational pot shops Monday but then quickly backed away from the plan amid an industry outcry and questions over legality.

After a heated, four-hour hearing, the public policy Tilt-A-Whirl ride ended where it began: with lawmakers, regulators and stakeholders still in disagreement — now more than 10 months after the start of recreational pot sales — on the best way to manage marijuana in Colorado. "This is by far the simplest recommendation," state Rep. Jonathan Singer, D-Longmont, said of the health department's proposal. "But I don't know if it gets us to where we want to be."

The aim of the state advisory group that met Monday to consider the health department's proposal and several others is to prevent people — mostly kids — from accidentally eating marijuana-infused products. Such accidental ingestions have sent children to the hospital, caused an increase in calls to poison-control hotlines and become one of the key measures lawmakers use in discussing whether legal marijuana sales can fit harmoniously in society.

Sales of infused edibles make up about 45 percent of the legal marijuana marketplace, said Dan Anglin, the chairman of the Colorado Cannabis Chamber of Commerce.

The health department's recommendation was one of 11 proposals the group considered Monday. Most suggested the state create clearer labels for marijuana-infused products or require producers to make edible marijuana items in a unique shape or dyed a unique color.

Many of those proposals, though, quickly met with a familiar back-and-forth. One side would offer the suggestion; the other side would bat it down. Stamp a symbol onto edibles denoting the products contain marijuana? Too easily rubbed off, edibles producers said. Improve labeling and require edibles to stay with their packages? Too easily ignored to spread unmarked edibles, groups concerned about marijuana said.

Require producers to dye their products a specific color or airbrush on a symbol? "You can't force a company to use an ingredient they don't want to," said advisory group member Julie Dooley, an owner of Julie & Kate Baked Goods, an edibles producer.

In the debate, there was talk of Sour Patch Kids and marijuana-infused sodas, discussion of the cost of chocolate molds, and these words: "I think soft candy is such a broad category."

Amid this atmosphere, Colorado health department official Jeff Lawrence presented the department's proposed ban on the sales of all edibles except hard candies and tinctures. Lawrence said the disagreement over more-nuanced regulations pushed the department to propose something more sweeping. "If it couldn't be achieved," he said, "we were looking at something that could be achieved."

But the proposal — word of which spread in an Associated Press report before the meeting — quickly met a buzz saw. Industry advocates questioned whether edibles could be banned under Amendment 64, Colorado's marijuana-legalization measure. Singer worried a ban would create a "marijuana Whac-A-Mole situation" where edibles production moved into the black market. Andrew Freedman, the state's marijuana policy coordinator, said the governor's office did not support a ban.

The health department later in the day put out a news release acknowledging that the department did not consider the proposal's constitutionality or ask the governor's office to review it. Instead, the proposal was put forward to generate discussion. "Considering only the public health perspective, however, edibles pose a definite risk to children, and that's why we recommended limiting marijuana-infused products to tinctures and lozenges," Larry Wolk, the executive director of the department, said in a statement.

The discussion seemed mostly over by the end of Monday's meeting, as talk returned to more incremental forms of edibles regulation. Any final proposals from the advisory group will be presented in a report to the legislature next year. The Department of Revenue, which regulates marijuana businesses, must adopt final rules on the topic by 2016.

October 21, 2014 in Food and Drink, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, October 20, 2014

Partial victory for 7th grade boy in disturbing marijuana strip search case

A few years ago, an assistant principle at a Georgia middle school strip searched a twelve-year old boy in front of a few of his classmates, hoping to find marijuana.  The school official did not find any marijuana and, I'm guessing, he is regretting having performed this sort of disturbing search.

The student now has a partial victory in a civil lawsuit, winning a summary judgment motion on one claim against the assistant principle (but losing on a failure to train claim against the school district.)  

In an opinion dated September 30th (but just now appearing on my LEXIS alert), Judge Amy Totenberg (herself, coincidentally, a former school board lawyer) describes the facts in some detail.  Unfortunately, the opinion does not appear to be available online yet.

D.H. was in his Language Arts class when Ratcliff came to the classroom and told him to bring his book bag and come with her.

 

...

 

Deputy Redding, McDowell, D.V., T.D., and R.C. were present in Deputy Redding's office when D.H. arrived with Ratcliff. (D.H. Dep. at 88-89.) Deputy Redding informed D.H. that drugs had been found at the school and he and McDowell wanted to know whether he had any drugs on him. (D.H. Dep. at 90.) D.H. denied having any drugs on him. (Id.) Redding asked him "are you sure because you are going to get searched," and D.H. responded that "yes," he was sure that he was not in possession of any drugs. (Id.)

 

...

McDowell informed D.H. that "because of the severity of the situation" he was going to have to search him "just to make sure" he did not have any drugs on him. (Id. at 114-115, 119.) McDowell then told D.H. to empty his book bag. (D.H. Dep. at 91.) McDowell looked through the pencil boxes, zippers, and pouches of D.H.'s book bag. (Id. at 92.)

 

Dowell then proceeded to search D.H.'s person. (D.H. Dep. at 92.) McDowell first told D.H. to take off his shoes. (Id. at 93; see also McDowell Dep. at 119 (stating that he asked D.H. to remove his shoes and socks).) Then he asked D.H. to empty his pockets. (D.H. Dep. at 94;see also McDowell Dep. at 119.) After D.H. emptied out his pockets, McDowell told him to take off his pants. (D.H. Dep. at 94; see also McDowell Dep. at 119 (stating that he asked D.H. to pull his pants down).) D.H. dropped his pants to the floor, stepped his legs out of them, and pushed them aside with his foot. (Id. at 95.) Underneath his pants, D.H. was wearing red and navy blue Tommy Hilfiger boxers — the kind with an elastic waist but that are loose around the thigh. (Id. at 94-95, 113.)

 

At some point, McDowell asked D.H. to remove his uniform polo-style shirt, which according to D.H. was the only shirt he was wearing that day. (D.H. Dep. at 99.) D.H. testified that he was not wearing an undershirt. (Id.) McDowell next told D.H. to flip his socks at the top to see if he was hiding anything under the band of the sock. (D.H. Dep. at 100.) McDowell then told D.H. to take off his socks. (D.H. Dep. at 100-101.) Finally, McDowell pointed at D.H.'s boxers and said "take those off." (D.H. Dep. at 102; see also McDowell Dep. at 120 (stating that he asked D.H. to "pull his underwear away from his body and in a down motion just in case if [sic] he had anything in his — on his person, it would fall to — fall to the ground").) D.H. asked McDowell "do I have to do this here," to which McDowell responded yes. (D.H. Dep. at 102.) D.H. complied by turning to the left (with his back to his classmates) and pulling his underwear down to his ankles. (D.H. Dep. at 103, 105, 107.) McDowell paused, bent over and observed D.H.'s genitalia. (D.H. Dep. at 108; McDowell Dep. at 120-121.) After [19] finding nothing hidden in D.H.'s underwear, McDowell asked him to put his clothes back on. (D.H. Dep. at 108; McDowell Dep. 120.) No marijuana or other illegal contraband was found on D.H. or in his belongings. (McDowell Dep. 124; Def.'s Resp. to PSMF ¶ 10.) Prior to requiring D.H. to strip down to his underwear to search him for marijuana, McDowell did not conduct a search of his locker, gym locker, desk, wastebasket, or classroom. (McDowell Dep. at 126-129.)

The student is being represented very well represented by Adam Wolf, who scored a win before the United States Supreme Court in the 2009 student strip search case Safford v. Redding.

October 20, 2014 in Court Rulings, Federal court rulings | Permalink | Comments (0)

Following the money and the polling surrounding Oregon's legalization initiative, Measure 91

This lengthy local article from Oregon provides a detailed look at the state of political debate in Oregon just a few weeks before final votes are cast concerning Measure 91 to legalize recreational marijuana in the state. The piece is headlined "High stakes in marijuana vote: Legalization measure draws nationwide attention," and here are some excerpts that caught my eye:

The flow of campaign cash from out-of-state donors has shifted south across the Columbia River in support of Measure 91. It has fueled an advertising blitz virtually absent two years ago. Meanwhile, opponents of legal recreational pot are struggling to fill a much smaller campaign war chest.

The measure would let adults 21 years and older legally use, grow, produce and store marijuana and associated edibles and drinks at home within set limits. It would let adults provide marijuana as well as marijuana edibles and drinks within the limits to another adult, as long as no cash is exchanged. It also would direct the state to regulate the legal recreational marijuana industry, including growers, producers and retailers. And it projects the state would collect millions of dollars in pot tax revenue to be divided among schools, law enforcement and treatment programs.

The two sides of Measure 91 cite statistics that they say show Washington’s and Colorado’s laws are either failed or sound policy, to buttress their own chief arguments....

New Approach Oregon has raised nearly $3.3 million in cash and in-kind contributions, according to online campaign finance filings with the Oregon secretary of state’s office. New Approach Oregon sponsored the measure on the Nov. 4 ballot and is the main committee supporting its passage. The money has fueled a wave of statewide ads.

Out-of-state donors have put in big money. Drug Policy Action, the political arm of Drug Policy Alliance, has contributed $940,000. Billionaire investor George Soros is a major financier of the alliance, which has a stated aim of ending marijuana prohibition. New Approach PAC, a committee The Oregonian reported was formed by family members of the late billionaire insurance executive Peter Lewis, contributed $750,000. Lewis, who died in November, personally contributed $96,000....

In contrast, the No on 91 campaign has raised just $168,337, state data shows, with the Oregon State Sheriff’s Association and another statewide law enforcement association kicking in almost all the cash.

Clatsop County Sheriff Tom Bergin, past president of the sheriff’s association, acknowledged the campaign hasn’t raised a lot of money. He noted, however, the coffers for the respective campaigns would be similar if out-of-state money going to the pro-measure side were excluded. Bergin said the lack of money going into the No on 91 campaign isn’t apathy but a sign that Oregonians are still dealing with financial hardships. “We’ve got to keep mowing the yard and hope we keep the weeds out, no pun intended,” he said....

The most recent poll, conducted by Portland-based DHM Research on behalf of Oregon Public Broadcasting and a Portland television station, found 52 percent of likely voters supported Measure 91 and 41 percent opposed it, with a 4.3 percentage point margin of error.

John Horvick, DHM’s research director, said it has conducted four polls since last year either on marijuana legalization or the measure. The results have been close, with the percentage in favor running between 49 and 54 percent. He said the outcome could hinge on the youth vote, which is less likely to cast ballots during mid-term elections. “You just have to get over that hump,” he said.

Horvick said he doubts the outcomes in Colorado and Washington will influence how voters here cast their ballots. Rather, he said, the attitudes of voters and their friends and family members shaped by “real-life experiences” with marijuana will have more impact than two-year-old election results in The Highest and Evergreen states.

October 20, 2014 in Initiative reforms in states, Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Colorado marijuana bankruptcy denial put on hold pending appeal

As Doug blogged about previously here, last month a Colorado bankrupcty judge dsimissed a Denver marijuana business owner's bankrupcty petition.  The court reasonined that allowing the petition to go forward would put the bankrupcty trustee in the untenable position of administering assets that are being used to commit federal crimes.

As the story last month noted, the debtor was appealing the decision.  And, late last week, the bankruptcy judge granted the debtor's request to stay enforcement of the court's judgment pending appeal.  The decision does not seem to be available yet on the Colorado bankrupcty court's site (or, at least, it is not coming up in response to my searches.)  But, it is on Lexis at 2014 Bankr. LEXIS 4409.

This development will essentially put everything on hold in the case until the appeals court has weighed in.

Here are a few excerpts from the court's opinion: 

The Debtors' appeal raises important questions. As illustrated by this case, the intersection between the federal marijuana prohibition and state level liberalization of marijuana laws significantly complicates bankruptcy proceedings where those issues arise. For a trustee, taking custody of and administering assets that are used in the commission of a federal crime can involve a trustee in conduct that violates the federal criminal law. Because of those complications in this case, the Court found that bankruptcy relief was impossible to grant to these Debtors. 

 

The policy of The United States Department of Justice, with respect to state citizens who are acting in compliance with liberalized state marijuana laws, is to initiate enforcement actions under the CSA primarily where overriding federal concerns are implicated. The same Department of Justice, through the United States Trustee (the "UST"), moved to dismiss these Debtors' bankruptcy case on account of conduct which does not appear to implicate the type of federal concerns that would typically lead a United States Attorney to initiate a criminal prosecution or other enforcement action under the CSA.

 

...

 

The Court finds that the balance of the harms favors granting the stay. In the Court's Dismissal Order, after hearing evidence at the trial of the UST's motion to dismiss, the Court recognized that the denial of bankruptcy relief would be "devastating" to the Debtors. (Dismissal Order at p. 9). Also, in its response to the Debtors' Motion, the UST has not alleged that the creditors would suffer any harm if the Court's Dismissal Order is stayed and the UST asserted that it does not oppose the stay. Given that the UST is statutorily tasked with supervising "the administration of cases and trustees in cases under chapter 7 . . . ," 28 U.S.C. 586, and is the party that sought dismissal of the Debtors' case in the first instance, his lack of opposition to the Debtors' Motion is significant to the Court. Thus, the balance of the harms strongly favors granting a stay pending appeal.

 

...

 

The Court also believes that the Debtors' appeal presents novel and substantial questions of law that will benefit from appellate review. As a consequence of these factors, the Debtors have raised at least some uncertainty as to the merits of their appeal.

...

Even though the Court cannot assess the Debtors' likelihood of success as being great, because the balance of the harms supports granting the stay, the UST does not oppose granting such relief, and the Debtors' appeal raises important legal issues, a stay of the Court's Dismissal Order pending appeal is appropriate in this case. 

 

This appeal will certainly be worth watching closely.  

October 20, 2014 in Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Saturday, October 18, 2014

Former NM Gov and GOP Prez candidate Gary Johnson urges marijuana research to respond to Ebola

ImagesAs this local article highlights, former New Mexico Governor Gary Johnson is not completely backing off his recent (and self-serving?) suggestion that marijuana could help in the treatment of Ebola.  Here are the details:

Former Gov. Gary Johnson caught a few headlines – and at least a little flack – when he suggested on a national TV show this week that marijuana could be a cure for Ebola. Johnson, who served as New Mexico’s governor from 1995 through 2002, stood by his remarks Wednesday. But he explained he was not claiming marijuana is, in fact, a cure for the Ebola virus that has killed nearly 4,500 people, mostly in West Africa.

He said he was simply arguing more research should be done on whether certain cannabis compounds might be effective in fighting the disease. “If I were on a bed right now, and I was infected by Ebola, anything that might save my life I would take in a nanosecond,” Johnson told the [Albuquerque] Journal.

During his Monday in-studio appearance on FOX Business, Johnson went one step further, telling host Stuart Varney that “we actually believe we have efficacy with regard to treating Ebola.”

This summer, Johnson, who lives in Taos and was the Libertarian nominee for president in 2012, was named CEO and president of Cannabis Sativa Inc., a company that plans on selling medical and recreational marijuana products.

While Johnson insisted his suggestion about marijuana and Ebola was not about money, FOX Business host Varney questioned that claim, at one point saying, “Of course it is.” Varney also said Johnson’s argument in favor of easing government drug-testing regulations would lead to “snake oil salesmen” attempting to profit off the Ebola outbreak.

“I am not a snake oil salesman. I’m not. You know, I’m the former governor of New Mexico,” Johnson told KRQE-TV in response to Varney’s comments.

A state Health Department spokesman said Wednesday that the agency is “not aware of any studies suggesting that medical cannabis is a cure or treatment for Ebola.”

October 18, 2014 in Medical community perspectives, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Can economists provide unassailable (and bias-free) marijuana reform cost-benefit analysis?

The question in the title of this post is prompted by this notable AP piece from Oregon headlined "Economist: Benefits of legal pot outweigh societal costs."  Here are excerpts:

University of Oregon economist said Thursday the best-case estimates for Colorado's legal marijuana tax revenue were overstated because of a faulty model.  Economist Ben Hansen said at the Oregon Economic Forum that misjudgments in Colorado's revenue estimates stemmed from a term familiar to students in Econ 101: Elasticity of demand.

Previous estimates of demand for recreational marijuana only looked at the potential shift from the black market to the legal market.  But with the medical market suctioning off some new consumers, revenue forecasts changed.  With various substitutes available, from synthetic marijuana to medical and black-market pot, Hansen said, guessing at the potential revenue impact in Oregon remains difficult....

Colorado has decided to spend pot taxes in arrears, meaning taxes aren't projected but spent only once collected.  The unusual budgeting maneuver was adopted because the pot market is expected to be highly volatile for the first several years.

Legalizing marijuana increases its supply and drops its price, Hansen said.  That price drop makes additional taxes harder for consumers to notice.  That's important when the tax rate people pay in Colorado and Washington for legal pot is north of 40 percent. In Oregon, the same rate is anticipated to be about 15 percent.

While police agencies will no longer arrest or fine people caught with marijuana if it's legalized, Hansen says taxes function as a kind of fine for marijuana consumption. "With legalization, we can kind of double-dip," Hansen said. "We're no longer paying to arrest and incarcerate people, and we're getting tax revenue from it."

Hansen also says he doesn't anticipate a dramatic impact on the alcohol market, though he says studies have shown heavy drinking and beer sales decline in markets where medical marijuana is approved.

Harvard University economist Jeffrey Miron said Thursday that Colorado's medical marijuana market was already commercialized when marijuana was legalized.  "The medicinal market was so commercial, so visible, that for all practical purposes, it was legal," said Miron.  "Economists consider all that matters are the fundamentals: Can you get access to it, are there barriers to it.

"I just don't think you (in Oregon) will see any kind of dramatic change. You're a long way toward a commercial market already."

October 18, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, October 17, 2014

New Brookings paper explores marijuana reform and international drug treaties

Regular readers already know that The Brookings Institution has been committed to doing throughtful and cutting-edge research and reports on the legal, political and social realities surrounding modern marijuana reform.   Today Brookings released its latest significant report resulting from this work, titled "Marijuana Legalization is an Opportunity to Modernize International Drug Treaties" and authored by Wells C. Bennett and John Walsh.  The full 27-page report is available at this link, and here is how it is summarized via this Brookings webpage:

Two U.S. states have legalized recreational marijuana, and more may follow; the Obama administration has conditionally accepted these experiments.  Such actions are in obvious tension with three international treaties that together commit the United States to punish and even criminalize activity related to recreational marijuana.

In essence, the administration asserts that its policy complies with the treaties because they leave room for flexibility and prosecutorial discretion.  That argument makes sense on a short-term, wait-and-see basis, but it will rapidly become implausible and unsustainable if legalization spreads and succeeds.

To avoid a damaging collision between international law and changing domestic and international consensus on marijuana policy, the United States should seriously consider narrowly crafted treaty changes.  It and other drug treaty partners should begin now to discuss options for substantive alterations that create space within international law for conditional legalization and for other policy experimentation that seeks to further the treaties’ ultimate aims of promoting human health and welfare.

Making narrowly crafted treaty reforms, although certainly challenging, is not only possible but also offers an opportunity to demonstrate flexibility that international law — in more areas than just drug policy — will need in a changing global landscape. By contrast, asserting compliance while letting treaties fall into desuetude could set a risky precedent, one that — if domestic legalization proceeds — could damage international law and come back to bite the United States.

October 17, 2014 in Federal Marijuana Laws, Policies and Practices, International Marijuana Laws and Policies, Who decides | Permalink | Comments (0)

Thursday, October 16, 2014

"Is Hillary Clinton ready for marijuana's 2016 push?"

The title of this post is the headline of this notable and lengthy new CNN article.  Here are excerpts:

When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug.  In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.

Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal.  It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.

"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance.  "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."

Demographics and money are also an important consideration.  Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.

On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.

"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws.  "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...

Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.

Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."

"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."

This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."

October 16, 2014 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Monday, October 13, 2014

Does mixing capitalism and marijuana reform turn off swing voters?

The question title of this post is my reaction to this interesting report from Florida headlined "How Florida's Medical Marijuana Amendment Managed to Plunge South."  The report by Nancy Smith suggests that the marijuana reform ballot initiative going before Florida voters in three weeks is now on the political ropes. Here is her account for why:

In April, Amendment 2 looked indestructible.  Poll after poll gave it upward of 80 percent in voter approval. Then all of a sudden the cracks began to show.  Numbers dipped slightly.  And by May, anybody who says he couldn't see the medical marijuana amendment's steep slide coming wasn't looking very hard....

And here's what I think happened.  I think the smooth-sailing pro-constitutional amendment campaign did such a good job of promoting its early popularity, it became a victim of its own success.

Strong Amendment 2 polling numbers plus an end to the struggle in the Florida Legislature to pass the landmark Charlotte's Web bill launched an entrepreneurial feeding frenzy across the state.  It was like a gold rush.  But it was also a turn-off for conservative voters who felt overwhelmed, who wanted medical marijuana, but not the greed they now identified as an accompaniment.

Sold-out, cannabis-themed business expos and training conventions -- particularly the ones in Miami and Orlando -- got big media publicity, lit up Twitter and attracted medical marijuana "experts" from other parts of the country.  Law practices and lobbyists carving out a specialty in medical marijuana consulting were even buying billboard ads along South Florida highways.

The first eye-opening event I remember -- well-publicized before and after -- was staged in mid-April at the Sheraton Hotel in Miami.  Bob Calkin, Los Angeles cannabis hustler, charged wannabe entrepreneurs $299 a pop for a 10-hour crash course on how to make a fortune "dispensing medicine."  His company, Cannabis Career Institute, headquartered in Calkin's van, raked in $45,000 for a day's work.

As I said, none of this escaped the notice of increasingly jittery likely voters.  All told, it's left a sour taste.  Floridians now are asking, is this amendment more about who can profit from it than it is about who it might be able to help?

"What am I supposed to think?" asks Mandy Stokes, 54.  "I want sick people who can be helped by medical marijuana to have what they need no matter what.  But all these people swarming into the state looking to get rich quick ...  I don't want Florida to be Colorado and end up with recreational marijuana."...

Retired Tamarac doctor Garrett R. Richardson, a family practitioner, told Sunshine State News, "If I were still practicing, I would have nothing to do with cannabis therapy until the feds decriminalize the plant.  I wouldn't want lawyers and patients in my face constantly to recommend something I may not think is the best therapy.  No lawyer would be getting rich at my expense, I can tell you that."

Add to mounting fear the increasing presence of well-financed Vote No on 2. Its slick television ads are all over the state's larger markets.  And John Morgan's profanity-laced video hasn't helped: Morgan, the father of Amendment 2, cocktail in his hand, standing before a group of cheering young people, urging them to vote for marijuana. Negative publicity, to say the least -- and didn't the Vote No on 2 people jump all over it....

All of a sudden, United for Care went from "we're in!" to "do we still have a chance?" And it's beginning to lose the battle for money.  A successful TV ad campaign can cost $1 million a week....

This constitutional amendment needs 60 percent approval to pass and become law on Jan. 6. Yet, of the eight polls released since Sept. 1, the average percentage of support is 57.6....

If you're wondering, the top contributors for the "pro" team, People United for Medical Marijuana, are 1) The John Morgan law firm, $3,535,896; 2) prominent Democratic fundraiser Barbara Stiefel, $605,000; and 3) John Morgan personally, $250,000.

Top contributors for the "con" team, Vote No on 2, are 1) casino magnate Sheldon Adelson, $4 million in two combined chunks; 2) the Carol Jenkins Barnett Family Trust, $540,000; and 3) Republican donor and millionaire Mel Sembler, $100,000....

[T]he same Floridians whose initial motives for embracing medical marijuana were pure and true, are now repulsed by what they see as mob greed -- would-be business people flocking to launch ventures in an industry built on disease and suffering. I'm not sure how you overcome that.

October 13, 2014 in Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Polling data and results | Permalink | Comments (1)

Thursday, October 9, 2014

Woman faces deportation for 1997 conviction for attempted possession for sale of marijuana

Yesterday, the Second Circuit upheld a Board of Immigration decision finding a woman subject to removal from the US based on a since-vacated 1997 conviction for attempted possession of marijuana for sale.  Though the decision does not break new legal ground, it is a reminder of the serious collateral consequences marijuana convictions can carry (and of the fact that under our immigration laws longtime residents can be forced back to countries they may now barely know based on relatively minor convictions.)  

The court itself lamented the outcome, writing in its conclusion:

The sad truth of this case is that petitioner’s removability only came to light after she applied for citizenship. For almost seventeen years, she has owned and operated a business and by all accounts was a productive member of our society. Now, she will be returned to Jamaica and her community here will be the poorer for it. The Attorney General may, of course, review this matter in the exercise of his discretion in immigration matters. The petition for review is DISMISSED and any outstanding motions are DENIED as moot. 

October 9, 2014 in Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Call for papers from Richmond Journal of Law & the Public Interest

I am pleased and honored to have been asked to announce this call for paper from the Richmond Journal of Law and the Public Interest:

The Richmond Journal of Law & the Public Interest is seeking submissions for the Spring Issue of our 2014-2015 volume . We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.

We currently have four total openings for articles for our Spring Issue.   As a Journal that centers in large part on the Public Interest, we are seeking at least one article that touches upon current Marijuana Law issue(s) and the effects that the issue(s) may have on the National Public Interest.  For a sense of what we are seeking for our general issues, please feel free to visit this link.

If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors - Rich Forzani and Hillary Wallace.  They can be reached, respectively, at rich.forzani AT richmond.edu and hillary.wallace AT richmond.edu.

October 9, 2014 in Current Affairs | Permalink | Comments (0)

Wednesday, October 8, 2014

Always follow the money as "Entrepreneurs eye emerging marijuana markets"

Th (1)I never tire of the phrase "follow the money," and I generally do not use it as a pejorative complaint about modern politics as much as a useful reminder that capitalism (and capital) explains the realities of American law, policy and reform as much as any other force. With these realities in mind, I found especially interesting this informative lengthy USA Today article headlined "Entrepreneurs eye emerging marijuana markets." Here are some extended excerpts:

When James Howler created his marijuana-infused taffy in 2009, the Colorado entrepreneur had trouble finding an accountant willing to keep the books of a company making legally fuzzy medical marijuana candy. Now, five years later, venture capitalists from New York City want to shower him with money for a stake in his Cheeba Chews and a foothold in a $2.6 billion marijuana industry now operating in nearly half the country.

With medical marijuana legal in 23 states and Washington, D.C., and recreational marijuana legal in Colorado and Washington state, the market for weed is rife with potential, and the people in pinstripes have taken note. As the marijuana companies grow more sophisticated — and profitable — they are attracting the attention of investors and corporations.

Tapping into the green revolution, however, brings unique challenges for entrepreneurs and corporate honchos alike. States may have bucked federal law, which considers marijuana illegal for any purpose, but they have imposed their own complicated, lengthy lists of regulations meant to keep cannabis tightly under control and, in some cases, keep the corporate behemoths out.

But with so much money at stake, industry experts say, it's only a matter of time before corporate giants, already eyeing the market, grab their share, too. "If leaders of these companies are not looking at the cannabis space, then they are not doing their jobs," says Chris Walsh, editor of Marijuana Business Daily, a trade publication based in Denver. "Billions of dollars are here, and no seasoned business executive is going to overlook a billion-dollar industry that they might be positioned to tap."...

If the crowd of 200 executives who jammed the marijuana panel at the Wine & Spirits Summit on June 5 in Denver is any indication, the alcohol industry is paying attention. "Some see it as a threat, and some are interested in being part of the industry," says Emily Pennington, editor of Wine & Spirits Daily, an online trade publication that hosted the summit. "Either way, they are watching it very closely."...

Most major tobacco companies, which explored the possibilities of marijuana in the 1970s, when federal legalization seemed possible, now deny any interest. "Marijuana remains illegal under federal law, and Altria's companies have no plans to sell marijuana-based products," says Brian May, spokesman for Altria, the company that owns tobacco company Philip Morris America....

R.J. Reynolds Tobacco also says it isn't interested in marijuana. "We have no intention to have any involvement when it comes to marijuana," spokesman David Howard says. "We have no interest in that industry."

But tobacco giant Japan Tobacco International entered into a deal in December 2011 with Ploom, the San Francisco-based manufacturer of a pocket-sized smoking device that heats tobacco, vaporizing nicotine and flavor without producing smoke, to commercialize the product outside the United States. Although the company maintains its device is solely for tobacco, the latest version, called Pax, is popular among marijuana users.

At least two pharmaceutical firms, AbbVie and GW Pharmaceuticals, already produce medicines that contain active ingredients from cannabis. GW says it is a traditional pharmaceutical company that won't be dabbling in what it calls the "artisanal" medical marijuana business.The company manufactures Sativex, a cannabinoid medicine for the treatment of spasticity due to multiple sclerosis....

Some states don't allow non-residents to open or have equity investments in marijuana businesses. Colorado, which has more than 1,300 licensed marijuana businesses, requires marijuana investors to have lived in the state for at least two years. The owner, operator and employees must all be residents of the state. Non-state residents can lend money but can't have an equity interest, says Colorado Department of Revenue spokeswoman Natriece Bryant. The state enacted those regulations specifically to keep the giant multinationals out, Bryant says....

Most federally insured banks have opted to stay away from the industry because of legal uncertainty about whether transactions for marijuana businesses could be considered money laundering. That means marijuana businesses have little access to small business loans or even payroll accounts. With banks out of the picture for now, most of the financial backing for growth in the marijuana industry has come from venture capital, angel investors and private loans.

"We've had bankers from New York City asking for a tour of the facilities and wanting to know how they can invest," said Ralph Morgan, chief operating officer of O.penVAPE, which specializes in extraction of purified cannabis oil from marijuana and produces a vape pen that vaporizes the oil to be inhaled. O.penVAPE products are sold in Colorado, California, Washington, Oregon and Arizona. "There are tons of people dumping tons of money into the industry," says Cheeba Chews' Howler. "There is money to be made, and that's why that big money is coming in."...

Ultimately, once corporate America thinks the industry is safe, well-established marijuana companies will be targets for acquisition, says Steve Berg, chief financial officer of O.penVAPE. "By virtue of the success we've had and the powerful brand we've developed, we constantly get inquiries from individuals and companies looking to partner," Berg says. None have come from Big Pharma, Big Tobacco or Big Alcohol, "but we feel like we can feel them out there," he says.

"How could it be otherwise? This is a new industry that is growing very, very rapidly," Berg says. "Any business-development division that has any similarity has to have their eye on this ball."

O.penVAPE's chief operating officer, Ralph Morgan, who worked in medical device sales before he and his wife, intrigued by the medical side of cannabis, decided to open a dispensary in Colorado, says there's nothing mysterious about the marijuana industry. "All the regular business rules apply to the marijuana industry — taxation, regulation, human resources," Morgan says. "It's just a different widget."

Morgan says recreational marijuana businesses are a natural fit for the alcohol industry, which is already accustomed to state-by-state regulation. Marijuana products "could be made and distributed in a similar fashion," Morgan says. "The alcohol industry has done a good job of creating brands."

Trip Keber, who four years ago founded Dixie Elixirs to make marijuana-infused drinks, chocolates and lotions, says he, too, has had inquiries from investment bankers, hedge funds and venture capitalists. And at conferences, he has fielded questions from alcohol industry executives. "Four years ago, I couldn't get anyone to return my calls," Keber says. "Now the tables have turned. We are too big to ignore."

One of the biggest signs that the industry has matured is the influx of top-notch professionals — lawyers, accountants, advertising execs — willing to take jobs at the marijuana companies, Berg says. Full legalization in Colorado and Washington was a watershed event for many business professionals, who could then feel it was safe to join the industry, Berg says. "One of the major themes or trends in the legal cannabis industry is the professionalization of the industry," Berg says. "Professionals are crossing over from the more conventional industries because they see a lot of opportunity and a lot of challenge."...

Changes in societal attitudes toward marijuana caught attorney Barry Peek's attention a few years ago. Peek, a labor and employment lawyer at the 65-lawyer New York firm Meyer, Suozzi, English and Klein, did some reading, attended a few conferences and then gathered a group of three or four attorneys in his firm to study the issues around medical marijuana. He concluded that medical marijuana would turn out to be big business. And if it's a new business, Peek says, people will need legal advice.

When New York Gov. Andrew Cuomo signed the state's medical marijuana law on July 5, Peek's firm was ready. "We are advising clients on how to maneuver through those regulations," Peek says. "We have a full-service law firm, so if there is a company that needs to get into the business, we can handle corporate issues, tax issues, land-use issues, whatever they need."

Interest in New York is widespread, from farmers in Upstate New York who have idle land that could grow marijuana to doctors who want to dispense it, Peek says. "It will be a growing sector in the legal community," Peek says. "And once the smaller companies get a foothold and become profitable, they will get bought out by larger companies."

October 8, 2014 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Tuesday, October 7, 2014

In debate, Colorado Gov. Hickenlooper call his state's legalization of marijuana "reckless"

As reported in this local article from Colorado, headlined "Candidates: Marijuana legalization ‘reckless’: Both oppose cannabis; differ on corrections, education," the current Governor of Colorado continues to criticize a law that a significant majority of his state voters supported back in 2012. Here are the basics:

Gov. John Hickenlooper said Monday during a gubernatorial debate with Republican challenger Bob Beauprez that Colorado voters were “reckless” to legalize recreational marijuana in 2012. The Democratic governor’s opposition to marijuana legalization has hardly been a secret. But the statement is his clearest admonishment for 55 percent of the electorate that backed the initiative.

“To a certain extent you could say it was reckless. I’m not saying it was reckless because I get quoted everywhere. But if it was up to me, I wouldn’t have done it. I opposed it from the very beginning. What the hell. I’ll say it was reckless,” Hickenlooper said....

Some thought Hickenlooper might be warming to the cannabis industry after attending a fundraiser in August hosted by some of the biggest marijuana businesses in Colorado. But he made it clear on Monday that he remains committed to presenting a tough hand. “We’re not only the first state to do this, we’re the first country,” Hickenlooper said. “There are serious challenges when you build something from scratch.”

There are few differences between Hickenlooper and Beauprez on the subject of marijuana. Beauprez also strongly opposed legalization. “We have to regulate as tight as the law allows,” Beauprez said.

Also notable were these two comments to the article by readers appearing right after the piece:

Art Jaquez: "This is what is wrong with the two party system, no one represents the people."

Jordan Maynard: "Funny that a Republican is touting the 'tightest allowable regulation' regarding something the people voted in, but when they run for office they proclaim less regulation is best. The Hypocrisy of Politicians never ceases. They hate the laws the people vote for, and suddenly it's good to have heavy handed regulation. If we could have government without politicians things might actually work."

October 7, 2014 in Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

New article provides meta-review of latest health research concerning recreational marijuana use

This new monograph, which has just been published via the peer-reviewed journal Addiction, has a title that perfectly describes the piece's research and discussion, "What has research over the past two decades revealed about the adverse health effects of recreational cannabis use?".  Here are all the parts of the piece's abstract:

Aims:  To examine changes in the evidence on the adverse health effects of cannabis since 1993.

Methods:  A comparison of the evidence in 1993 with the evidence and interpretation of the same health outcomes in 2013.

Results:  Research in the past 20 years has shown that driving while cannabis-impaired approximately doubles car crash risk and that around one in 10 regular cannabis users develop dependence.  Regular cannabis use in adolescence approximately doubles the risks of early school-leaving and of cognitive impairment and psychoses in adulthood.  Regular cannabis use in adolescence is also associated strongly with the use of other illicit drugs.  These associations persist after controlling for plausible confounding variables in longitudinal studies.  This suggests that cannabis use is a contributory cause of these outcomes but some researchers still argue that these relationships are explained by shared causes or risk factors.  Cannabis smoking probably increases cardiovascular disease risk in middle-aged adults but its effects on respiratory function and respiratory cancer remain unclear, because most cannabis smokers have smoked or still smoke tobacco.

Conclusions:  The epidemiological literature in the past 20 years shows that cannabis use increases the risk of accidents and can produce dependence, and that there are consistent associations between regular cannabis use and poor psychosocial outcomes and mental health in adulthood.

October 7, 2014 in Medical community perspectives, Medical Marijuana Data and Research | Permalink | Comments (0)

Monday, October 6, 2014

"Study Links Marijuana Use to Lower Mortality Rate among Patients With Traumatic Brain Injuries"

The title of this post is the headline of this notable media report on a notable new study suggesting marijuana use can have a positive impact on those who suffer brain injuries.  Here are the details:

Researchers found that patients with traumatic brain injuries using marijuana were more likely to survive. The study, led by researchers at Los Angeles Biomedical Research Institute, surveyed emergency patients for levels of tetrahydrocannabinol (THC), an active ingredient present in marijuana. They found that those tested positive for THC had a lower mortality compared to people who tested negative for the illicit substance.

According to the researchers THC plays a key role in protecting the brain in case of a traumatic brain injury. The researchers looked at 446 patients with a traumatic brain injury. Urine samples were collected to test the presence of THC in their body. It was observed that 82 of the total patients had THC in their system and out of these 2.4 percent patients had died compared to 11.5 percent deaths of patients who had tested negative for the illicit substance.

"Previous studies conducted by other researchers had found certain compounds in marijuana helped protect the brain in animals after a trauma," said David Plurad, MD, an LA BioMed researcher and the study's lead author. "This study was one of the first in a clinical setting to specifically associate THC use as an independent predictor of survival after traumatic brain injury."...

Other researchers conducted have highlighted how THC helps boosts appetite, lowers ocular pressure, reduces muscle spasms, relieves pain and alleviates symptoms linked with irritable bowel disease. However, this new study has certain significant limitations. "While most - but not all - the deaths in the study can be attributed to the traumatic brain injury itself, it appears that both groups were similarly injured," Dr. Plurad said. "The similarities in the injuries between the two groups led to the conclusion that testing positive for THC in the system is associated with a decreased mortality in adult patients who have sustained traumatic brain injuries."

The finding is published in the edition of The American Surgeon.

October 6, 2014 in Medical Marijuana Data and Research | Permalink | Comments (0)

New York Times advocates for passage of all 3 marijuana legalization initiative on 2014 ballot

The New York Times has this new editorial headlined "Yes to Marijuana Ballot Measures: Alaska, Oregon and the District of Columbia Should Legalize Pot."  Here is how it begins:

The decision by California voters in 1996 to legalize medical marijuana produced a wave of similar initiatives around the country.  Less than two decades later, over half the states allow at least limited medical use.  Now it looks as though recreational use of the drug may follow the same path.

In 2012, Washington State and Colorado legalized recreational marijuana.  This November, voters in Alaska, Oregon and the District of Columbia will decide whether to do the same — effectively disregarding the misguided federal ban on a drug that is far less dangerous than alcohol.  Decades of arresting people for buying, selling and using marijuana have hurt more than helped society, and minority communities have been disproportionately affected by the harsh criminal penalties of prohibition.

Since Alaska, Oregon and the District of Columbia already allow medical marijuana, taking the next step makes good sense.  There are some differences in their proposed initiatives, but they are all worthy of passage.

October 6, 2014 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, October 5, 2014

"Harmonizing Marijuana Legalization with Environmental, Land Use, and Other Regulations"

Banner640The title of this post is the title of this notable symposium planned for later this month. The event takes place at the University of California Irvine School of Law, and is presented by the Center for Land, Environment, and Natural Resources (CLEANR) and Brown Rudnick LLP, and here is how the event is pitched at this website:

Despite stringent regulation at the federal level, an increasing number of U.S. states have adopted laws legalizing the use of marijuana for medical or recreational purposes.  Marijuana production activities are being openly conducted without prosecution, but a suite of land use and environmental laws may nonetheless regulate such conduct, including environmental impacts of farming, consumer product safety, pesticide use, the siting and location of farms and dispensaries, and use of public lands.

Attorneys also face uncertainty as to their ability to advise clients in the marijuana industry about these activities.  This symposium explores these many issues, guided by leading practitioners and policymakers deeply involved at the interface of federal and state marijuana use and control.

Alejandro E. Camacho, Professor of Law, Director, Center for Land, Environment, and Natural Resources at UC Irvine School of Law, and Geoffrey K. Willis, Partner, Brown Rudnick LLP, will serve as moderators.

October 5, 2014 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, October 2, 2014

Intriguing new research on criminal justice impact of distinct marijuana reforms

Marijuana_comparison_Max.286.0The Center on Juvenile and Criminal Justice has produced this interesting new research report titled "Reforming Marijuana Laws: Which Approach Best Reduces The Harms Of Criminalization? A Five-State Analysis." Here is what the report's Introduction:

The War on Marijuana is losing steam. Policymakers, researchers, and law enforcement are beginning to recognize that arresting and incarcerating people for marijuana possession wastes billions of dollars, does not reduce the abuse of marijuana or other drugs, and results in grossly disproportionate harms to communities of color.  Marijuana reforms are now gaining traction across the nation, generating debates over which strategies best reduce the harms of prohibition.

Should marijuana be decriminalized or legalized? Should it be restricted to people 21 and older?  Advocates of the latter strategy often argue their efforts are intended to protect youth.  However, if the consequences of arrest for marijuana possession — including fines, jail time, community service, a criminal record, loss of student loans, and court costs — are more harmful than use of the drug (Marijuana Arrest Research Project, 2012), it is difficult to see how continued criminalization of marijuana use by persons under 21 protects the young.  Currently, people under 21 make up less than one-third of marijuana users, yet half of all marijuana possession arrests (ACLU, 2013; Males, 2009).

This analysis compares five states that implemented major marijuana reforms over the last five years, evaluating their effectiveness in reducing marijuana arrests and their impact on various health and safety outcomes.  Two types of reforms are evaluated: all-ages decriminalization (California, Connecticut, and Massachusetts), and 21-and-older legalization (Colorado and Washington).  The chief conclusions are:

• All five states experienced substantial declines in marijuana possession arrests.  The four states with available data also showed unexpected drops in marijuana felony arrests.

• All-ages decriminalization more effectively reduced marijuana arrests and associated harms for people of all ages, particularly for young people.

• Marijuana decriminalization in California has not resulted in harmful consequences for teenagers, such as increased crime, drug overdose, driving under the influence, or school dropout.  In fact, California teenagers showed improvements in all risk areas after reform.

• Staggering racial disparities remain— and in some cases are exacerbated — following marijuana reforms.  African Americans are still more likely to be arrested for marijuana offenses after reform than all other races and ethnicities were before reform.

• Further reforms are needed in all five states to move toward full legalization and to address racial disparities

October 2, 2014 in Criminal justice developments and reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)