Saturday, December 20, 2014
The provocative question in the title of this post is prompted by this press report, headlined "Cigarette smoking costs weigh heavily on the healthcare system," on some notable new research about the health care costs attributed to tobacco use. Here are excerpts:
Of every $10 spent on healthcare in the U.S., almost 90 cents is due to smoking, a new analysis says. Using recent health and medical spending surveys, researchers calculated that 8.7 percent of all healthcare spending, or $170 billion a year, is for illness caused by tobacco smoke, and public programs like Medicare and Medicaid paid for most of these costs.
“Fifty years after the first Surgeon General’s report, tobacco use remains the nation’s leading preventable cause of death and disease, despite declines in adult cigarette smoking prevalence,” said Xin Xu from the Centers for Disease Control and Prevention (CDC), who led the study.
Over 18 percent of U.S. adults smoke cigarettes and about one in five deaths are caused by smoking, according to the CDC. Xu and colleagues linked data on healthcare use and costs from the 2006-2010 Medical Expenditure Panel Survey to the 2004-2009 National Health Interview Survey for a nationally-representative picture of smoking behavior and costs....
In [their] analysis, 9.6 percent of Medicare spending, 15.2 percent of Medicaid spending and 32.8 percent of other government healthcare spending by sources such as the Veterans Affairs department, Tricare and the Indian Health Service, were attributable to smoking.
Of the $170 billion spent on smoking-related healthcare, more than 60 percent was paid by government sources, they wrote in the American Journal of Preventive Medicine. Smoking-related healthcare costs affect most types of medical care, said Kenneth Warner at the University of Michigan School of Public Health. “Smoking infiltrates the entire body, through the blood stream, and causes disease in many of the body's organs,” he told Reuters Health in an email. Along with lung and heart problems, smoking can cause eye disease, skin problems and many cancers including pancreatic and bladder cancer, noted Warner, who was not involved in the new analysis.
“This study shows that, in addition to the human misery it inflicts, (smoking) imposes a substantial burden on the nation's health care institutions, especially those funded by the public's tax dollars,” he said.
The true cost of tobacco use may be even higher, Xu said. His study didn't include medical costs linked to other tobacco products like cigars and chewing tobacco.... “Smoking kills about 480,000 Americans each year and remains the leading cause of preventable death and disease in the United States. No matter what age, it is never too late to quit,” Xu said.
Of course, there are sure to be health risks and costs that will emerge if (and when) a lot more folks start smoking marijuana (especially if they become heavy users). But this research suggests that if a decent number of new marijuana smokers come from the ranks of tobacco users and that use of marijuana decreases tobacco use, there could be real health benefits and perhaps significant public health cost savings.
Friday, December 19, 2014
Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?
As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution." I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma. And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court.
This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug. Here are passages from the filing to that end:
Congress has classified marijuana as a Schedule I drug. 21 U.S.C. § 812(c). Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....
Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”
There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.
Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.
I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.
Recent related post:
Thursday, December 18, 2014
As Doug blogged, the states of Nebraska and Oklahoma just filed a suit in the United States Supreme Court (under its original jurisdiction) against Colorado. In a nutshell, they are seeking a declaration that Colorado’s Amendment 64 is preempted by federal law.
Not surprisingly, I think the suit lacks merit. As I’ve explained before, Congress can’t force states to criminalize marijuana. It follows that Congress also can’t stop states from legalizing marijuana; after all, legalization is just repeal of criminalization. It would be odd to say Congress can’t force a state to criminalize marijuana in the first instance, but it could force a state to keep a criminal prohibition on its books if it had already passed one. There are, of course, limits to this anti-commandeering principle. For example, Colorado probably couldn't open a state-run marijuana store. But nothing in the lawsuit remotely suggests that Colorado has yet exceeded those limits and done something that is preemptable.
To be sure, I sympathize somewhat with the plight of Nebraska and Oklahoma. They suspect that marijuana produced by private Colorado residents is finding its way into their states, and they want Colorado to do more to stop the flow. But under current constitutional doctrine, they cannot simply force Colorado join their fight (and neither can Congress).
As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution." Here is more on the latest fascinating development in the world of marijuana reform law and policy:
At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."
Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.
Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...
He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.
Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.
During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."
Via the Denver Post, the 83-page SCOTUS filing can be found at this link.
December 18, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
The National Law Journal has this lengthy new article headlined "Law Schools Firing Up Marijuana Law Classes." I was pleased to have been interviewed by the author of the piece, and here are excerpts discussing some of the activity going on in this space:
Who has legal authority to establish marijuana law and regulations — the federal, state or local government? How should the law treat motorists who drive while high? Should employers test workers for marijuana use in jurisdictions where the drug is legal?
Those are a few of the questions Vanderbilt University Law School students will tackle in professor Robert Mikos' marijuana law and policy seminar next semester — one of a growing number of law school classes focused on marijuana. "For most students, this is an inherently interesting topic," Mikos said. "They read about it in the media all the time, and so many are curious about it. As more states confront this issue, the interest will only grow."...
Besides Vanderbilt's program, at least two additional marijuana-specific classes will debut next spring. At University of Denver Sturm College of Law, professor Sam Kamin will teach "Representing the Marijuana Client." David Ball, a professor at Santa Clara University School of Law, will preside over a "mini think tank" about the legal matters California will face if the state legalizes marijuana for recreational use. Students in Ball's class will research topics including whether and how the state might restrict marijuana advertising and how the drug could be taxed. They will share their research with an American Civil Liberties Union panel investigating the implications of marijuana legalization. Ball sits on the panel, which is led by California Lt. Gov. Gavin Newsom. A ballot initiative to legalize could come as early as 2016, according to the ACLU.
"When I was appointed to the panel, I thought, 'This is a good opportunity for my students to write on something that will be of immediate interest to people in California,' " Ball said. His class will maintain a blog to publish students' research and marijuana law news. Ball hopes his course will help students adapt in an ever-changing legal landscape.
Kamin believes his course is the first designed specifically to prepare students to represent marijuana clients — whether growers and retailers or government regulators. "Almost every lawyer in the state needs to know something about this," Kamin said. "There are people in Denver and Colorado who practice marijuana law, but there are many others in real estate law, administrative law and other areas who deal with it as well. I've had people asking me to teach this class for a while. They're hungry for this knowledge."...
The subject is ideal because it touches so many different areas of law, said Franklin Snyder, a professor at Texas A&M University School of Law who in September founded the Cannabis Law Prof Blog. For example, he said, the large amount of energy required to produce marijuana raises environmental and agricultural law questions, and it remains unclear what kinds of corporate and bankruptcy protections marijuana businesses enjoy.
"Too often in law school, we teach in silos — we teach contract law, tax law and corporations law," Snyder said. "In the real world, clients don't have 'tax problems.' They have problems that are all interconnected. Marijuana law allows you to bring it all together and demonstrate how every decision you make impacts all these other things."
Hilary Bricken, an attorney in the cannabis practice of Seattle boutique firm Harris Moure, expressed surprise that law schools are starting to discuss marijuana given that they typically don’t teach courses on alcohol law or the adult entertainment industry, for example. Still, she said, local and state marijuana regulations could make for an interesting law course. "I would love to see a clinic where students could interact with clients," Bricken said. "I think it would really send home the reality of the difficulty of practicing in this era of prohibition."...
Mikos is scheduled to publish a marijuana law textbook in 2016. "I think we're going to see more law schools offer these classes," he said. "There's a big focus right now on teaching students about the types of cases they might actually handle after graduation. This is very practical."
Wednesday, December 17, 2014
Students for Sensible Drug Policy has created a soon to be up and running job board to match students with cannabusiness employers and advocacy groups. You can read more about this program in this Marijuana Business Daily interview with SSDP's Executive Director Betty Aldworth. What better gift for that favorite law student than sharing the job board link and helping them find a job!
The Alaska Dispatch News has this new and notable article about a local legislative hearing that took place earlier this week. The extended article is headlined "Assembly kills proposal to ban marijuana sales in Anchorage," and here are excerpts:
An ordinance that would have banned commercial marijuana in Anchorage failed after four hours of public testimony and debate in Assembly chambers Tuesday night. The Assembly voted 9-2 just after 10 p.m. to kill the measure. Only members Amy Demboski and Paul Honeman supported the measure.
Demboski introduced the proposal last month, hoping the city would take a “wait and see approach" as state lawmakers craft marijuana regulations. But several Assembly members expressed concern that a ban would disconnect them from conversations regarding marijuana regulations at the state level.
“I’m fearful the message on ‘opt out’ will send key legislators in Anchorage to the sidelines,” said Assemblyman Bill Starr. “That will make my work harder.”
Demboski said her goal in bringing the legislation forward was not to stifle pot in Anchorage, but to begin to move the conversation forward on big topics dealing with the substance, including potential issues at the federal level. She noted it will especially be important to engage with Alaska’s congressional delegation on how to mitigate potential federal impacts. “It’s bringing the conversation forward,” Demboski said.
Bruce Schulte, with the Coalition for Responsible Cannabis Legislation, said he was surprised to see the Assembly kill the measure, noting that co-sponsor Dick Traini ultimately voted against it. Still, he said, it was good to get the public talking about potential impacts of marijuana legalization. “The most resounding message is that we still have a lot of work ahead,” Schulte said.
In hours of testimony in the Assembly chambers at Z.J. Loussac Public Library, most people spoke in opposition to the ordinance. Medical marijuana cardholders wept at the struggle of trying to get their medicine illegally. Many worried about city finances and said the Assembly should not shy away from new revenue in the form of taxable marijuana sales. Some mentioned distrust of officials for considering circumventing Alaska voters' wishes....
In November, Alaskans by a margin of 53 to 47 percent voted to approve Ballot Measure 2, an initiative legalizing recreational marijuana in the state. Just weeks after the measure passed, Assembly member and mayoral candidate Demboski introduced the ordinance that would allow Anchorage to take advantage of the “opt out” provision of the measure, which allows communities to ban commercial marijuana. Assembly members Traini and Paul Honeman also backed the measure....
Deborah Williams, who served as a spokesperson for the campaign opposing Ballot Measure 2, said in testimony Tuesday that she sensed hypocrisy in proponents of the measure, who emphasized the local option for communities but seemed to back away from it during the ordinance debate. “There were lots of promises during the campaign,” she said, noting rhetoric about regulation of things like marijuana advertising, edibles and butane hash oil. “This gives you bargaining power for the Legislature,” she said of the proposed city ban.
Jeff Jessee, who also worked on the campaign, worried that there’s so much unknown with regulations that it makes sense to stop marijuana before it gets going. “We need to temper expectations that it will be open season for this industry in Anchorage,” Jessee testified.
But June Pittman-Unsworth, one of several medical marijuana patients who ended up in tears while testifying, said she has no legal way to get it and has no ability to grow it herself. “The state failed me -- don’t let the city fail me,” Pittman-Unsworth said. “This ordinance is premature and open-ended. There’s no date on when to comply. I want you to think about that.”
Rev. Michael Burke of Common Sense on Marijuana in Alaska, a group of business and faith leaders looking to have a voice in the regulatory process, asked the city to hold off on the ordinance, saying it did not pass the “red face” test and said he worries voters will be cynical of leaders because the ordinance is coming so soon after the initiative was passed. Burke said his group and others would work to make sure that responsible regulation is enacted, including addressing issues with treatment, safety and keeping businesses small. “There is a lot at stake here in getting the regulations right,” Burke said.
Tuesday, December 16, 2014
The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws. Here are the basics:
Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.
"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.
After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.
Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.
Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.
Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."
Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....
Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....
"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."
Monday, December 15, 2014
The state and fate of marijuana reform in Washington DC (as well as elsewhere) was frequently a topic of debate and discussion in Congress as it worked through its recent funding/budget deal. Helpfully, Jacob Sullum has this array new pieces up at Reason convering some of this action, as well as discussing some other notable recent marijuana reform discussions and developments:
Friday, December 12, 2014
The title of this post is the title of this notable paper authored by Luke Scheuer that I just noticed via SSRN. Here is the abstract:
In recent years many states have legalized the use and sale of marijuana for medical or even recreational purposes. This has led to the booming growth of a “legal” marijuana industry. Businesses openly growing and selling marijuana products to the consuming public are faced with some unusual legal hurdles. Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law.
This article explores the conflict between state and federal marijuana laws from a business entity law perspective. For example, managers owe a fiduciary duty of good faith to their businesses and equity holders. One of the ways in which managers can violate this duty is by causing their business to intentionally violate the law. This is a problem for the marijuana industry because its managers constantly and intentionally violate federal law and therefore violate their fiduciary duties by growing and selling marijuana.
This article concludes that the industry’s ability to attract professional stakeholders is harmed by marijuana business stakeholders’ inability to take advantage of key business law protections, such as limited liability. This article proposes a state law exception that allows for marijuana businesses to operate normally under state business entity law, with normal business entity law protections, despite their continuing violation of federal law.
Tuesday, December 9, 2014
The Huffington Post has this notable new report on recent Capitol Hill activity to deal with the District of Columbia's recently-passed marijuana legalization initiative. The piece is headlined "Congress Looking To Block D.C.'s Marijuana Legalization Initiative," and here are excerpts:
Congress is looking to stifle the District of Columbia's marijuana legalization initiative, multiple sources have told The Huffington Post.
According to those sources, congressional negotiators have struck a deal to interfere with D.C.'s marijuana legalization measure. That's after nearly 70 percent of voters in the nation's capital approved Initiative 71, which was set to legalize possession of small amounts of marijuana for personal use while still banning sales. The deal would allow the District to continue its marijuana decriminalization policy enacted by the D.C. Council, but would ban the city from using funds to enact legalization.
One congressional source said the deal would actually allow the initiative to take effect, while preventing the D.C. Council from passing any new laws to set up a scheme for regulating retail sales of marijuana -- something D.C. Mayor-elect Muriel Bowser (D) has said she wanted the council to do before legalization takes effect. Democrats are rumored to be cutting a deal with Republicans "where they can save face by claiming that they protected D.C.'s marijuana decriminalization law from elimination, even if they failed to protect legalization," according to Drug Policy Alliance.
"Democrats had the opportunity to protect the will of the voters in D.C. and they have decided to cut a deal in an effort to protect decriminalization. However, 70 percent of voters support this [initiative]. It's incredibly problematic," Dr. Malik Burnett, policy manager at the Drug Policy Alliance and vice chairman of the D.C. Cannabis Campaign, told The Huffington Post. "And in light of recent events in Ferguson and New York, it is particularly disturbing that Congress would choose to overturn the will of the voters in a majority black city. D.C. voters chose to reform their marijuana laws, which have a direct impact on how communities of color interact with police. Congress is poised to undermine that."...
In November, D.C. voters approved Initiative 71, which would legalize adult marijuana use, possession of up to 2 ounces and home cultivation of up to six marijuana plants for personal use. Under the measure, the sale of marijuana would remain illegal, but the D.C. Council is considering a separate bill that would allow for the regulation and taxation of marijuana sales, similar to laws on the books in Colorado and Washington state.
The ballot measure built on several recent moves to remove restrictions on marijuana in Washington. The District legalized medical marijuana in 2010, and its first medical marijuana dispensary opened last year. Earlier this year, the D.C. Council decriminalized the possession of an ounce or less of marijuana.
While supporters praised the measure as a step toward resolving the racial disparity in the District's marijuana arrest rates, some Republicans had been working toward blocking the measure for months. Rep. Andy Harris (R-Md.) has vowed to put a stop to the progression of the bill in Congress....
Robert Capecchi, deputy director of state policies for the Marijuana Policy Project, a pro-legalization advocacy group, said it wasn't clear exactly how Congress would go about thwarting the legalization initiative. Federal lawmakers oversee how the District spends money, but the initiative isn't expected to have a cost. "The way I read I71 the District doesn't have to spend any money in order to implement it," Capecchi said.
As is true with all legislative issues and is especially true with marijuana reform, a lot of the devil here will be in the details. Especially because the DC Initiative did not directly call for the establishment of a full-scale regulated commercial marijuana industry, it would not be obviously disrespectful for Congress to merely put some limits on whether and how DC can set up a full-scale legal marijuana marketplace. But it would be troublesome if Congress were to somehow require local DC police to persist in making arrests and bringing prosecutions for small-scale marijuana cultivation, possession and use.
Project SAM and Heritage event to separate "scientific facts from popular fiction" concerning marijuana reform
Today in Washington DC, Project SAM and the Heritage Foundation are co-hosting a notable event titled "Marijuana Policy: Separating Scientific Facts from Popular Fiction." The event is to include keynote remarks by two Republican members of Congress who are both doctors (and I believe ardent opponents of any prohibition reform): Andy Harris (R-MD) and John Fleming (R-LA).
Via this webpage at Heritage, I believe the full event will be webcast starting at 11am EST. (I am hoping the event will be archived there, too, for later viewing.) Here is the description of the event appearing on the Heritage page:
Today, 17 states and the District of Columbia have decriminalized marijuana, four states have legalized the drug, and 23 states have passed so-called “medical marijuana” laws – despite the fact – that it is properly listed as a Schedule I controlled dangerous substance and the FDA does not recognize marijuana as a drug. Big marijuana is big business and has added Libertarians and some small government conservatives to its traditional liberal base. Public support for legalization has skyrocketed over the decades, from 12% in the 1970s to 51% today, down seven points from last year.
But just as public support has grown, so has the scientific understanding of the real dangers of marijuana. Scores of peer-reviewed studies published in the last two decades show how marijuana affects the brain, heart, lungs and mental health; how marijuana has become more potent and addictive; and how it is nothing like alcohol. Join us as our distinguished experts discuss the pot business, the science behind today’s marijuana, and why Americans should oppose legalization.
UPDATE at 12noon: I am in the midst of watching the Heritage event, and it is terrifically interesting. I will have some follow-up posts once the event is over with some generally commentary. But while the event is on-going, I feel compelled to note and lament that it appears that there is not a single person of color speaking among the eight scheduled speakers. I have been persistently concerned that much of the current debate and discussion of marijuana reform has not included diverse voices and perspectives, and this Heritage event (while otherwise first-rate in lots of respects) is aggravating this concern.
Monday, December 8, 2014
"Stigma Dilution, Over-Criminalization, and Some Additional Reasons to Decriminalize Marijuana Possession and Consumption Offenses"
The title of this post is the title of this notable new paper by Murat Mungan now available via SSRN. Here is the abstract:
Criminalizing an act that provides weak signals about a person's productivity and character can dilute the stigma attached to having a criminal record. This reduces the deterrence of serious crimes that do provide strong signals regarding the offender's character. Over-criminalization occurs when the costs associated with reduced deterrence due to stigma dilution off-set potential benefits associated with criminalizing the less harmful act.
Identifying and analyzing the factors that affect the likelihood of over-criminalization reveal that the penalization of marijuana possession and consumption most likely constitutes over-criminalization. The normative desirability of various practices in criminal law (e.g. the felony murder rule, conspiracy liabilities, scienters, mens rea requirements, expungements) are also discussed vis-à-vis their impacts on stigma dilution.
USA Today has these two notable new stories about how (legal/illegal?) marijuana money is coming and going in Colorado:
The title of this post is drawn from the headline of this notable new US News piece authored by Ben Cohen (from Ben & Jerry fame). Its full headline is "Who's Really Fighting Legal Weed: The fight against legal marijuana is about big money, not public health," and here are excerpts:
On TV and billboards, the fight against legalizing marijuana is about health, safe communities and our children’s future. But for Big Pharma and Big Tobacco – who fund these anti-marijuana efforts – it’s really about the bottom line. For years, large corporations and well-heeled lobbyists have blocked the legalization of marijuana for medical use or recreational use in order to protect their own profits.
Florida’s failed constitutional amendment to legalize marijuana for medical use illustrates how money, and not morals, motivates this issue. This year, the anti-amendment group, Drug Free Florida, spent millions on ads to get Floridians to believe medical marijuana was harmful even if it has repeatedly been proven to have many health benefits. It is ironic that the group ran ads implying children would be unsafe if Florida’s initiative passed when the group’s founder set up a drug rehab program shuttered after several allegations of false imprisonment, abuse and torture of children.
Like other law enforcement agencies throughout the country, the Florida Sheriffs Association also lent a hand in preventing the amendment from passing. Most police departments make a lot of extra revenue from auctioning off seized property during a pot bust. In fact, the sheriff heading the Florida association has cited “seizures from marijuana grow houses as a key revenue source for his department.”
The crusaders against weed constitute a long list of suspiciously self-interested folks. Lobbyists work hard to secure for police departments millions of dollars in federal grants towards eradicating weed. Pharmaceutical companies compensate leading anti-marijuana researchers in order to keep their customers on painkillers over cannabis, which is cheaper. The prison-industrial complex would like to keep making money on building more prisons to fill with non-violent grass-smokers.
The alcohol and beer industries have also lobbied for years to keep marijuana illegal because they fear the competition that legalized weed would bring. Howard Wooldridge, an anti-drug war activist and retired cop told the online publication Republic Report: “Marijuana and alcohol compete right today as a product to take the edge off the day at six o’clock.”...
The federal government can gain billions in taxing weed and also spend less taxpayer dollars on incarcerating harmless stoners. But too many of our representatives continue to tout primitive anti-drug talking points to please the big businesses who write them campaign checks....
When the status quo is not working for us, and our political system doesn’t reflect the people they govern, it’s up to us to fight back. Voters took a stand against wealthy groups and showed up to the polls to liberate marijuana use in their states. Big money can’t defeat people power – and eventually, the public will rout big money out of the nation's capital. As with the legalization of marijuana, it’s just a matter of time.
Wednesday, December 3, 2014
The title of this post is the headline of this intriguing new AP article. Here is how it gets started:
Acclaimed chef Chris Lanter is talking a crowd of eager foodies through a demo on cooking with marijuana. As he prepares steak au poivre, he describes how to deglaze the pan with pot-infused brandy. How to pair marijuana with fine foods. How to make marijuana's skunky tang work for a dish, not ruin it. One catch — there's no actual weed at his demonstration.
Marijuana aficionados paid $250 for a weekend-long celebration of marijuana and food, yet state and city regulations prohibit any "open and public" use of the drug, even at licensed businesses holding private events.
It's a strange dichotomy. The nascent marijuana industry in Colorado is moving well beyond just pot brownies. Dispensaries are doing a booming trade in cookbooks, savory pot foods and frozen takeout dishes that incorporate the drug. But for now, halting attempts at creating a marijuana dining scene have had mixed results.
Colorado may have legalized marijuana, but it still prohibits "on-site consumption," a caveat aimed at preventing Amsterdam-style coffee shops where pot can be purchased and consumed in the same place. Recreational or medical marijuana is now legal in 23 states and Washington, DC. ? though each state prohibits on-site consumption and pot sales in bars or restaurants.
As Colorado's recreational industry nears its first anniversary, authorities increasingly are cracking down on attempts to push the pot-dining envelope. The city of Denver, where the marijuana industry is concentrated, wrote 668 tickets for "open and public consumption" through September, up from 117 the year before, when marijuana was legal, but sales were not. And the county that includes Colorado Springs is trying to crack down on so-called "smoke-easys," or private clubs that allow marijuana use, sometimes paired with refreshments.
Even private events at restaurants aren't safe. Denver authorities are using permit codes and alcohol laws to fine and even press charges against people trying to throw private events at which pot foods are served.
The result has been that chefs interested in infusing foods with pot, or pairing regular dishes with certain strains thought to accent a particular flavor, are unable to try it outside catered events at private homes. Even chefs who will talk publicly about doing "medicated" catered house parties, like Lanter, are skittish about sharing details.
Sunday, November 30, 2014
Ever since the election triumphs in Oregon, Alaska and DC, interested parties have been asking where marijuana legalization will strike next. Phil Smith editor and writer of the Drug War Chronicle has just published The March Toward Marijuana Legalization: 2016 And Beyond" an excellent overview of state wide legalization efforts which I recommend for readers like me who are trying to keep current.
Beginning with California, which he describes as the "big prize", Smith discusses legalization campaigns in Massachusetts, Maine and Missouri and the looking to the future work being done in Michigan. Smith, who has been reporting on drug policy since 2000, seems optimistic but he ends the article with two cautions. First, as Ethan Nadelmann of the Drug Policy Alliance points out, there are dangers in a" sense of overconfidence, a feeling that marijuana will legalize itself" and "entrepreneurs trying to push the envelope[who]could push too far." Second, Smith's warning-"don’t forget federal pot prohibition." As he puts it, "if repealing federal pot prohibition is the Holy Grail, reformers still have a ways to go." When does Smith think federal change will happen? "Maybe when we have 24 legal marijuana states, not just four of them. "
Saturday, November 29, 2014
The question in the title of this post is prompted by this interesting new piece up at The Crime Report headlined "The RX Alliance That Drugs Our Kids." Here is how the piece starts:
Olivia Hernandez always trusted the doctors who scribbled out prescription after prescription for the heavy-duty psychiatric drugs that clouded her teenage years in foster care. Now, she feels “betrayed.”
Three of her former doctors are among a chosen group of California foster care prescribers who received gifts and payments for meals, travel, speaking and industry-sponsored research from the world’s biggest pharmaceutical companies.
A three-part investigation by the San Jose Mercury News has found that drugmakers, anxious to expand the market for some of their most profitable products, spent more than $14 million from 2010 to 2013 to woo the California doctors who treat this captive and fragile audience of patients at taxpayers’ expense.
Drugmakers distribute their cash to all manner of doctors, but the investigation found that they paid the state’s foster care prescribers on average more than double what they gave to the typical California physician. The connection raises concerns that Hernandez and many other unsuspecting youth have been caught in the middle of a big-money alliance that could be helping to drive the rampant use of psychiatric medications in the state’s foster care system.
I am sympathetic to those advocates concerned that a legalized marijuana industry will end up being eager to market pot products to young users. But, as this article highlights, Big Pharma not only markets drug products to kids, but it has a huge group of licensed drug dealers (doctors) helping them peddle drug products.
Friday, November 28, 2014
The question in the title of this post is prompted by this recent Reason commentary by Jacob Sullum, which is headlined "A Cannabis Crackdown Contracts: After rising dramatically, marijuana arrests are falling and the trend seems likely to continue." Here are some data and context from the piece:
In 1992, when Americans elected a president who said he had smoked pot without inhaling, the number of marijuana arrests in the United States began a steep climb. It peaked in 2007, during the administration of a president who refused to say whether he had smoked pot because he worried about setting a bad example for the youth of America. Since 2009, when a president who "inhaled frequently" because "that was the point" took office, the number of marijuana arrests has fallen steadily — a trend that continued last year, according to FBI numbers released this month.
It's not clear exactly why pot busts exploded during the last decade of the 20th century and the first decade of the 21st century, when the annual total rose from fewer than 288,000 to almost 873,000 — a 200 percent increase. There does not seem to be any consistent relationship between the level of marijuana consumption and the number of arrests, the vast majority of which (nearly nine out of 10 last year) involved simple possession rather than cultivation or distribution. Judging from survey data on marijuana use, arrests did not rise in response to increased consumption; nor did the cannabis crackdown have a noticeable deterrent effect. The risk of arrest for any given pot smoker rose substantially between 1991 and 2007 but remained small.
In 1991, according to the National Household Survey on Drug Abuse (NHSDA), about 15 million Americans smoked pot. That year there were about 288,000 marijuana arrests, one for every 52 cannabis consumers. In 2007, according to the National Survey on Drug Use and Health (successor to the NHSDA), about 25 million Americans smoked pot. That year there were about 873,000 marijuana arrests, one for every 29 cannabis consumers.
Although the overall risk of arrest is small, it is decidedly higher for blacks and Latinos. In 2010, according to a report from the American Civil Liberties Union, blacks were nearly four times as likely to be arrested for marijuana possession as whites, even though survey data indicated they were no more likely to smoke pot. In some jurisdictions the black-to-white risk ratio was even higher. It was 8 to 1 in the District of Columbia, which helps explain the dramatic turnaround in black Washingtonians' opinions about marijuana legalization.
The good news is that the downward trend in marijuana arrests since 2009 seems likely to continue, helped along by the spread of decriminalization and legalization. In recent years California, Colorado, Maine, Massachusetts, and Washington have changed their marijuana laws so that people caught with small amounts are no longer arrested. That change has eliminated tens of thousands of marijuana arrests each year — more than 50,000 in California alone. Under ballot initiatives approved this month, Alaska and Washington, D.C., will eliminate all penalties for possessing small amounts of marijuana. (Possessing up to an ounce was already a citable offense in Oregon, where voters also approved marijuana legalization this month.)...
Even in New York City, where the cannabis crackdown has been especially noticeable, police are arresting fewer pot smokers, a trend that is likely to accelerate as a result of a policy change that took effect last week. Low-level marijuana possession arrests by the New York Police Department (NYPD) skyrocketed from about 3,000 in 1994, when Rudolph Giuliani took office as mayor, to more than 51,000 six years later. The crackdown continued during Michael Bloomberg's administration, when the NYPD arrested an average of nearly 39,000 pot smokers each year, compared to 24,487 under Giuliani, 982 under David Dinkins, and 2,259 under Ed Koch, according to data gathered by Queens College sociologist Harry Levine.
As the question in the title of this post highlights, I am eager to attach some kind of benefit (and perhaps cost) metric to these data about reduced arrest. In the context of incarceration changes, we know each prison year served costs the government about $30,000 taxpayer dollars (while also potentially preventing some criminal activity which is much harder to quantify). I am inclined to speculate that there must be $100 in administrative costs associated with formal arrests, which would mean that every 10,000 fewer marijuana arrests benefits taxpayers with about $1,000,000 in savings.
Tuesday, November 25, 2014
I am pleased and intrigued to see that the ABA Journal's annnual Blawg 100 given some love to this blog. All the details of the ABA's latest Blawg 100 can be found here, and MLP&R appears under the Profs category with this description:
With all due respect to the revered Sentencing Law and Policy blog, this year we wanted to showcase Ohio State law professor Douglas Berman's latest. Now that marijuana is legal for recreational purposes in Alaska, Colorado, Oregon, Washington state and Washington, D.C, new legal issues are sprouting up. Berman points readers to news coverage and podcasts discussing the mainstreaming of marijuana and its legal ramifications.
It is, of course, an honor just to be nominated. I am especially hopeful that the ABA Journal's recognition serves as yet another marker of the importance and legitimacy of serious discussion of the many law and policy issues surrounding modern marijuana reform movements. Also, my occasional co-bloggers Professor Alex Kreit and Professor Rob Mikos deserve credit and thanks for helping to elevate the substance and style of MLP&R.