Saturday, March 1, 2014
The title of this post is the reported title of a bill that, according to this Fox News report, is going to be introduced in Congress next week. Here are the details:
Republican lawmakers plan to introduce legislation next week aimed at preventing the misuse of the food stamp funds amid reports that welfare debit cards have been used to withdraw cash at ATMs at marijuana dispensaries in Colorado....
The bill would add pot dispensaries to the current list of locations where states must block welfare electronic benefits transfer (EBT) cards from being used for purchases or ATM withdrawals, Reichert’s office told the station.
KDVR.com reported last week that at least 19 different dispensaries allowed electronic benefits transfer withdrawals inside their pot shops in January. Public records obtained by the station showed 56 transactions, totaling nearly $4,000.
A separate report by National Review Online said the amounts withdrawn ranged from $20 to $400, averaging $85.55. The maximum monthly benefit for the average household receiving Temporary Assistance for Needy Families (TANF) benefits is $462.
Last year, Colorado lawmakers passed a bill prohibiting access to welfare benefits at casinos, gun shops, bars, and liquor stores. State lawmakers recently failed to pass legislation that would have prohibited such transactions at pot shops, NRO reported.
“It’s time to close this ‘pot shop loophole’ before it gets any bigger,” the lawmakers said in a letter circulated among House lawmakers and obtained by The Colorado Observer. “This bill does not comment on whether it makes sense for states to legalize the sale of pot, as Colorado and Washington have done,” the lawmakers wrote. “It simply says that, wherever pot is legally sold, welfare recipients shouldn’t be able to readily access welfare funds to pay for it.”
Tuesday, February 25, 2014
Policymakers want to ensure that the marijuana industry doesn’t engage in socially irresponsible behaviors, such as selling marijuana to minors. And many policymakers agree that the structure of the marijuana industry plays a key role in shaping its behavior. Interestingly, however, policymakers seem to disagree about whether society would be better off if the marijuana industry were concentrated (i.e., controlled by a few Big firms) or fragmented (i.e., controlled by many Small firms).
On one side, anti-legalization groups like Smart Approaches to Marijuana has raised the specter of Big Marijuana. The group doesn’t really explain why Big is necessarily bad; instead, it just conjures images of Big Tobacco to make its case. But there are reasons to be concerned about concentrated industries. All industries, of course, are driven by a profit motive and seek to expand their markets as much as possible. For this reason, industries generally oppose regulations that reduce the size of those markets, such as laws banning sales to minors, regardless of whether those laws make good sense for society as a whole. To be sure, this anti-regulation impulse can be found in both concentrated industries and fragmented ones. But all else being equal, concentrated industries are generally more successful at blocking passage of sensible regulations. In large part, this is because of the transaction costs and free-rider problems besetting fragmented industries. It is just a lot easier to coordinate the lobbying efforts of a few Big firms than it is to coordinate the lobbying efforts of many Small ones. Hence, if the marijuana industry were ever to be dominated by a few, very Big players, it might prevent governments from passing sensible restrictions on its activities, much the way Big Tobacco fought off government regulations for decades.
On the other side, government officials have raised the specter of Little Marijuana. Little Marijuana depicts the current structure of the industry. It is populated with hundreds – and in states that allow home cultivation, thousands -- of relatively small growers and distributors. While a fragmented industry wields less political clout, it is also far, far more difficult to police. It is a lot easier for government agents to monitor an industry comprised of a few Big firms than it is for them to monitor an industry comprised of many Small ones. Hence, as long as the marijuana industry remains highly fragmented, governments will likely have a difficult time enforcing sensible restrictions on its activities. Colorado’s Marijuana Enforcement Division, for example, has struggled to monitor the hundreds of medical marijuana dispensaries in the state, and state officials have complained that home cultivation exacerbates the problem.
For all of its vices, Big Tobacco helps demonstrate the upside of a highly concentrated industry structure. For example, as I discuss in more detail in this paper, there is relatively little evasion of cigarette taxes in this country, even though the taxes imposed on cigarettes can be quite high (e.g., 45% in federal and state excise taxes alone in California). For example, several studies estimated that only about 7-12% of cigarette taxes go unpaid on average. (Not surprisingly, the number is higher in high-tax jurisdictions.) In large part, the successful enforcement of cigarette taxes can be traced to the highly concentrated structure of the tobacco industry: three firms now manufacture roughly 85% of all cigarettes consumed in this country (and they do so at just 15 factories). I think it safe to say that monitoring this industry to ensure that taxes are paid (and other regulations followed) is far easier than it would be if thousands of firms were now manufacturing cigarettes.
Ultimately, perhaps the lesson is that Big Marijuana and Small Marijuana both pose challenges for policymakers, albeit challenges of a different nature. In the short term, Small Marijuana is clearly a bigger concern. But in the long term, policymakers long for the day when the industry wielded little political clout.
Following on Doug's post about the recent Ohio poll, Denver is one of the finalists for the 2016 Republican National Convention. One of the politicians leading the bid thinks Colorado's legalization law may help attract the gathering, since leaders from other states may want to learn more about how the policy is playing out.
"There's an easy political case to be made," former Rep. Bob Beauprez, a Republican and the chair of the bid committee, said.
Beauprez argued that even the state's recent legalization of recreational marijuana could be a plus because it shows how Colorado is on the political cutting edge. "Other governors and mayors will want to come here and see how it's working out," he said, noting that ballot measures to legalize the drug are anticipated in several other states.
Whether or not the RNC comes to Denver in 2016, Colorado's swing state status will make the presidential politics of marijuana legalization especially interesting to watch. If Denver does manage to get the convention, it will only add to the dyamic.
Friday, February 21, 2014
The Colorado Bankers Association, an organization counting many prominent national and local banks as members, is very skeptical (to put it mildly) of the banking guidance issued by the DOJ and Treasury Valentine’s Day. My earlier posts on the guidance can be found here and here.
In a nutshell, the CBA suggests the guidance does nothing to ease bank fears over dealing with the state’s marijuana industry and that only a change to federal laws could really accomplish that. A statement issued from the CBA’s President, Don Childears, can be found here. Here’s a snippet:
“The guidance issued today by the Department of Justice and the U.S. Treasury only reinforces and reiterates that banks can be prosecuted for providing accounts to marijuana related businesses.
“In fact, it is even stronger than original guidance issued by the Department of Justice and the Treasury . . . After a series of red lights, we expected this guidance to be a yellow one. This isn’t close to that. At best, this amounts to ‘serve these customers at your own risk’ and it emphasizes all of the risks. This light is red.”
“Bankers had expected the guidance to relieve them of the threat of prosecution should the open accounts for marijuana businesses, but the guidance does not do that. Instead, it reiterates reasons for prosecution and is simply a modified reporting system for banks to use. It imposes a heavy burden on them to know and control their customers’ activities, and those of their customers. No bank can comply.”
“An act of Congress is the only way to solve this problem. . . ”
I agree. Earlier DOJ guidance suggesting it wouldn’t crack down on marijuana distribution was probably sufficient to get people to distribute the drug in Colorado (in reality, it probably wasn’t even necessary to achieve that). But guidance suggesting the DOJ might not crack down on money laundering offenses falls well short of what highly regulated banks are going to need before they start dealing with this industry.
Tuesday, February 18, 2014
As I noted Friday, the Treasury Department just issued new guidance designed to make it easier for banks to serve state-authorized marijuana businesses. In a less-noticed move, the DOJ also issued new guidance urging federal prosecutors not to pursue financial crimes charges against marijuana businesses outside of the circumstances outlined in its August 2013 memo regarding drug crimes. The Treasury guidance and new DOJ memo can be found here.
Banks have long refused to serve the marijuana industry, citing, among other reasons, federal statutes that criminalize financial transactions involving proceeds of illegal activity, including marijuana sales. Sam Kamin and Joel Warner discuss the banking issue here.
Now, I doubt this new guidance will convince many banks to serve the marijuana industry. Among other things, and as I explained in a paper critical of the DOJ’s first marijuana enforcement guidelines (the 2009 Ogden memorandum), such guidance does not shield banks from all of the relevant federal sanctions that serving marijuana businesses might trigger.
But if banks DO end up serving marijuana businesses, it might give a boost to state and federal efforts to police the marijuana industry. In particular, banks could help government officials determine whether the marijuana industry is violating state law and / or engaging in behavior that would justify federal legal action under those 2013 DOJ enforcement guidelines (e.g., selling to minors).
Here’s how. Federal law requires banks to monitor and report on the financial transactions of their clients. Under federal law, for example, banks are required to file “Suspicious Activity Reports” anytime they know, suspect, or have reason to suspect a client is engaging in a financial transaction involving proceeds of illegal activity. The government then uses these SARs to investigate and prosecute federal crimes committed by the clients.
Importantly, the bulk of the new Treasury guidance is actually devoted to reaffirming and clarifying the duty of banks to file SARs on clients engaged in the marijuana industry. It makes abundantly clear that a “financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) . . . if, consistent with FinCEN regulations, the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution . . . involves funds derived from illegal activity.” (emphasis added)
To be sure, the reporting requirement could simply overwhelm government agents, since every transaction involving a marijuana business might trigger a new report. Indeed, federal agents are already deluged with SARs; in 2009, for example, banks submitted more than 700,000 SARs (banks in Colorado and Washington submitted more than 17,000 SARs), far too many for the government to investigate them all.
But the new Treasury guidance instructs banks to distinguish between good and bad marijuana businesses. Namely, if a bank believes a marijuana business is abiding state law and avoiding activities the federal government considers objectionable (e.g., selling across state lines), the bank may file an abbreviated SAR, simply by writing “MARIJUANA LIMITED” in the notations section of the report. But if the bank believes the business is flouting state law or engaging in one of those objectionable activities, it is supposed to file more detailed SAR, writing “MARIJUANA PRIORITY” in the notations section and explaining why the bank believes the business deserves closer scrutiny.
The information provided on these SARs could greatly enhance the efforts of federal and state enforcement agencies to police the marijuana industry. Banks won’t necessarily have perfect information about their clients, but they will often possess information that government agencies cannot realistically gather on their own. Indeed, as I’ve discussed at length elsewhere, governments commonly use private parties to gather information they need to enforce their regulations; e.g., without the W-2s filed by employers, the IRS would struggle (mightily) to collect individual income taxes. And requiring banks to further distinguish between law-abiding and law-shirking marijuana business greatly enhances the utility of this information for government agencies.
Knowing that banks will share information with the federal government could have a powerful deterrent effect on marijuana businesses. These businesses need bank services – try operating any business without a checking account, for example. But if they misbehave, banks will shun them, or worse yet, report their misbehavior to the feds. To be sure, some misbehaving businesses will simply avoid the banks altogether. But those businesses will be put at a serious competitive disadvantage vis a vis their more law abiding rivals.
In sum, if the guidance works (a big if), marijuana businesses will get access to banking services; banks will expand their market; and government agencies will get a new watchdog to help police the marijuana industry. Looks like a win win win.
February 18, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
The Los Angeles Times reports this morning that the most prominent of the proposed California legalization ballot measures--backed by the Drug Policy Alliance--will not be going forward this year. As a result, it looks like Californians will have to wait until 2016 to vote again on marijuana legalization. Given the cost of running a ballot measure in California and the difficulty in getting younger voters out in mid-term elections, this decision is not surprising.
From the LA Times:
A coalition of investors and strategists, which played a key role in passing most of the legislation to reform drug laws nationwide since 1996, has decided not to put a pot initiative on the ballot in California this year but will wait to push for legalization until 2016.
Signature-gathering efforts for at least two additional pot measures are circulating, but they do not appear to have the high-profile financial backing needed. So the coalition's decision makes it less likely that marijuana will be legalized in California in the near future.
The group was instrumental in legalizing recreational pot in Washington and Colorado and medical marijuana in Massachusetts in 2012, and it is supporting efforts in November to pass a recreational pot measure in Oregon and a medical cannabis measure in Florida.
The coalition includes the Drug Policy Alliance, which has been involved in drug reform for nearly two decades and is supported by billionaire financier George Soros. It also is allied with the late philanthropist Peter Lewis, who spent $65 million over the last 15 years to change pot laws. Lewis died in November.
The decision not to go forward in 2014 was "very close" and "one that came down to the wire," said Graham Boyd, counsel to Lewis and a leader in working to legalize marijuana in California. "We see this as a trial run or a dress rehearsal for 2016."
Wednesday, February 12, 2014
The title of this post is the headline of this interesting new report on the latest notable legal frontier concerning marijuana law and reforms. Here are the basics:
The publisher of marijuana magazine High Times has sued the state of Colorado in federal court over the state’s rules preventing recreational cannabis businesses from advertising in most publications. High Times, along with local weekly magazine Westword, filed the lawsuit on Monday. It marks the first time anyone has challenged the restrictions in court.
The rules allow recreational marijuana businesses to advertise only in publications that are adult-oriented. According to the state’s rules, recreational marijuana stores can advertise only in a publication that “has reliable evidence that no more than 30 percent of the publication’s readership is reasonably expected to be under the age of 21.” There is no such restriction on medical marijuana businesses.
The lawsuit argues the rules, which also restrict television, radio and outdoor advertising, are an unconstitutional restriction of free speech. The magazines are “chilled from soliciting advertisements from prospective clients and prevented from making revenue from clients who wish to engage in advertising concerning marijuana-related products and services,” the lawsuit’s complaint states....
It is also unclear how the suit’s filing in federal court will impact the judge’s assessment of its claim that the ads concern “lawful activity,” since marijuana is illegal federally. But publications have previously had success in federal court in overturning another Colorado marijuana law — one that required marijuana-themed publications to be kept behind the counter at stores.
Tuesday, February 11, 2014
Though I think we may be nearing the point of inevitability when it comes to marijuana legalization, we aren't there yet. There's a chance that as things move forward, we will see a backlash that reverses the current trend.
If I had to pick issues that could potentially cause such a backlash, the risks of marijuana candies would be near the top of the list. And for good reason. Marijuana candies pose serious policy concerns.
Products that are packaged like and taste like candy can be easily mistaken as regular candy. And we all know who loves candy--kids. Perhaps just as important, many marijuana candies contain so much marijuana that the suggested serving size may be 1/4 or 1/10 of the candy. This is particularly odd when one considers that some of these candies come in the form of a single gummy bear or bon-bon style sweet. When most people see a single gummy bear or bon bon, they assume they should eat the whole thing. But if you were to eat an entire marijuana gummy in one serving, you could end up high out of your mind.
Two new New York Times pieces discuss this problem. In one, a mother recounts how her son had to go to the emergency room after eating a roommate's marijuana candy bar. In the other, the writer begins: "This is not what I thought marijuana looked like."
Those of us who favor marijuana legalization would be wise to take these concerns very seriously. There are real public health and safety risks that come from people--particularly children-- accidentally ingesting super-strong marijuana candies (or ingesting on purpose, but without realizing that one gummy is meant to be consumed in four servings.)
In terms of the politics, I think the "this is not what I thought marijuana looked like" sentiment is particularly noteworthy. I suspect that many voters who supported legalization in Colorado and Washington had no idea that it might result in the sale of sophisticated candies (or even that such candies were even possible.) And if enough of the folks in this group don't like what they see when they learn about marijuana candy, it is entirely possible they might sour on legalization generally.
To be sure, I don't think we are anywhere near seeing a political backlash because of this issue. But marijuana advocates would be foolish to ignore the possibility of one developing.
February 11, 2014 in Current Affairs, Food and Drink, 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)
Monday, February 10, 2014
With so many medical marijuana state laws and a wave of new proposals, it can be difficult to follow them all. Luckily, last week saw the release of two guides to help you keep track.
The Marijuana Policy Project has released an update to its state-by-state guide to marijuana laws.
And, for the reforms on the horizon, John Ross of Reason.com has posted "a 50-state guide to legislation and ballot measures that are in the works thus far this year."
Wednesday, February 5, 2014
The Super Bowl may be behind us, but the question of marijuana use by NFL players is not. The latest, Jets Player Antonio Cromartie says he thinks it is time for the NFL to let the issue go:
Cromartie said in an interview with Thisis50.com, a website launched by rapper 50 Cent, that he thinks the NFL should take marijuana off the banned substances list.
“They need to just let it go,” Cromartie said, via Brian Costello of the New York Post. “We’re just going to do it anyway. They just need to let it go. They need to go ahead and say, ‘Y’all go ahead, smoke it, do what you need to do.’ “
Cromartie may be a free agent this off-season. It will be interesting to see if this impacts interest in him among NFL teams (and, in the nearer team, whether his agent or some Jets media rep will encourage Cromartie to retract or "clarify" his comments.)
Sunday, February 2, 2014
As is now common, this past week brought a lot of interesting new stories and commentary in the traditional and new media about new marijuana laws and practices throughout the United States. But, with the biggest annual US sporting event now only a few hours away, I figured I should focus my regular round-up of interesting marijuana news and commentary on matters related to the Super Bowl:
From the AP here, "THC-Hawks? Pot Puns Pack This Super Bowl"
From the Baltimore Sun here, "Ayanbadejo says teammates on one of his Super Bowl teams used marijuana week of game"
From BuzzFeed here, "17 Marijuana Snacks To Eat During The Stoner Bowl, AKA the Bud Bowl, aka Super Bowl XLVIII."
From the Denver Business Journal here, "Pot, Super Bowl don’t mix for most people, poll finds"
From Forbes here, "Dueling Pot Billboards At The Stoner Bowl: Marijuana Is Safer Vs. Marijuana Will Ruin Your Life"
- From a local Seattle Fox station here, "From marijuana to sushi, businesses are riding the Super Bowl frenzy"
From Rolling Stone here, "Which Super Bowl Team's State Is Better for Weed? Comparing the legal marijuana laws for Broncos and Seahawks fans"
- From the Seattle Times here, "Seahawks’ Marshawn Lynch inspires Beast Mode pot"
From Time here , "Pot Will See Sales Spike For Super Bowl, Just Like Pizza
From the Washington Post here, "The Super Bowl is the latest front in the fight over legalizing marijuana"
Some recent related posts:
- NFL Commissioner open to medical marijuana as the 2014 pot playoffs continue
- "Denver, Seattle rooting for Marijuana Bowl?"
- More on Marijuana and the NFL
- "Super Bowl Attracts a Marijuana Message"
- "Football, Pain and Marijuana"
- NFL not yet actively considering marijuana policy change
Friday, January 31, 2014
In the lead-up to the Super Bowl, the medical use of marijuana in the NFL has been getting a lot of attention. A couple of weeks ago, league commissioner Roger Goodell said the NFL was open to the possibility of permitting its players to use marijuana for medical purposes (such as pain relief). Today, ProFootballTalk reports that while the league is open to the idea, Goodell has clarified it is "not actively considering" changing its marijuana policy.
Seahawks fullback Michael Robinson is also a supporter [of medical marijuana in the NFL], a view which may be informed by his experiences this season. Robinson suffered from kidney and liver failure due to a bad reaction to a prescription anti-inflammatory, missed much of the season while recovering and thinks that looking into alternative treatment options is a must for the league and the players.
“I think anything that can make our job a little easier without sacrificing our health at the same time is good for the league, it’s good for players,” Robinson said. “I’m all for alternative forms of recovery and all those types of things – hyperbaric chambers, o-zoning, whatever it may be. So, I’m all for it. Whatever can help the player, I’m for.”
The title of this post is the headline of this notable new New York Times editorial. Here are excerpts:
In the lead-up to the Super Bowl, in which it so happens both teams hail from states that recently legalized marijuana for recreational purposes, pressure is mounting on the [NFL] to reconsider its ban. A group called the Marijuana Policy Project has even bought space on five billboards in New Jersey, where the game will take place on Sunday, asking why the league disallows a substance that, the group says, is less harmful than alcohol.
It’s a fair question. Marijuana isn’t a performance-enhancing drug, for starters, and more than 20 states have legalized it for medical purposes. The league would merely be catching up to contemporary practice by creating a medical exception.
At a news conference on Jan. 7, the league commissioner, Roger Goodell, did not rule out a change in policy. “I don’t know what’s going to develop as far as the next opportunity for medicine to evolve and to help either deal with pain or help deal with injuries,” he said, “but we will continue to support the evolution of medicine.” On Jan. 23, he said the league would “follow medicine and if they determine this could be a proper usage in any context, we will consider that.” There is, in fact, a body of evidence indicating a “proper usage”: one of particular relevance to a hard-hitting, injury-riddled sport.
“Cannabinoids,” the Institute of Medicine reported in 1999, “can have a substantial analgesic effect.” N.F.L. medical experts obviously aren’t convinced, but N.F.L. players seem to be. HBO’s “Real Sports With Bryant Gumbel” estimated in January that 50 to 60 percent of players smoked marijuana, many to manage pain.
Players, of course, have access to other painkillers, including prescription drugs. Yet as former Surgeon General Joycelyn Elders has argued, “marijuana is less toxic than many of the drugs that physicians prescribe every day.” As public opinion and state laws move away from strict prohibition, it’s reasonable for the N.F.L. to do the same and let its players deal with their injuries as they — and their private doctors — see fit.
Wednesday, January 29, 2014
The title of this post is the headline of this new New York Times piece, which includes these passages:
The Marijuana Policy Project, one of the main groups behind the push to legalize marijuana possession in Colorado, posted advertisements on billboards near Mile High Stadium before the first game of the Broncos’ season on Sept. 5.
Now the group has spent $5,000 to rent several 60-foot-wide billboards in New Jersey, within easy driving distance of MetLife Stadium, where the Broncos will play the Seattle Seahawks in Super Bowl XLVIII on Sunday....
The message is directed at the National Football League, just as it was in Denver, and is repeated in a petition the marijuana group plans to deliver to the N.F.L. on Wednesday. “Why are players punished for making the safer choice to use marijuana instead of alcohol?” asked Mason Tvert, a spokesman for the group. “In Colorado and Washington State, this is now a legal product, and the N.F.L. has no legitimate reason to be policing marijuana use by players.”...
N.F.L. commissioner, Roger Goodell, indicated last week that the league might reconsider its policy on marijuana for medicinal purposes, if research showed that it was a viable treatment for concussions.
There is also a lighter side to the discussion of marijuana and the Super Bowl. There have been many jokes about how Super Bowl XLVIII will be the “stoner bowl” because the Broncos and the Seahawks are from the two states that have moved to legalize marijuana. Bryan Weinman said that was the instigation for the website www.stonerbowl.org.
“It got hatched over a table of beers before the playoff games,” said Mr. Weinman, who has been a nightclub D.J. in Denver. He added that he and several friends “got to joking about what happens if Denver and Seattle ended up in the S.B., how many endless puns would be made by the average individual.”
“We got the easy ones out of the way,” he continued, “and it evolved into somebody saying, ‘What would happen if we put some of this on a T-shirt?' ” And no, he said, they are not marijuana users themselves.
Some recent related posts:
- NFL Commissioner open to medical marijuana as the 2014 pot playoffs continue
- "Denver, Seattle rooting for Marijuana Bowl?"
- More on Marijuana and the NFL
Saturday, January 25, 2014
I am grateful for all the great commentary being added by the guest bloggers of late, especially because the traditional media continue now to do be doing a pretty good job of covering some of the major modern marijuana reform news. Still, with another weekend bringing many new marijuana worthy of attention, I am going to once again set forth headlines and links those pieces that struck me as especially noteworthy:
- From the Christian Science Monitor here, "US marijuana policy edges toward acceptance"
From Forbes here, Until 100% Legal, Banks to Turn Away Marijuana Money Forbes"
From FoxNews here "Marijuana export could pay off Hawaii’s debts, lawmaker says"
- From the Newark Star-Ledger here, "Legalize marijuana in NJ? One lawmaker says yes"
From the Tamba Bay Times here, "Medical marijuana advocates meet Florida ballot goal"
From USA Today here, "Texas Gov. Perry shocks some with comments on marijuana"
Friday, January 24, 2014
This morning I appeared on Nevada public radio to talk about recent developments on medical marijuana in the state. One of the other guests was Joe Brezny, a former Nevada state director for Mitt Romney and current head of the Nevada Cannabis Industry Association.
Brezny had an interesting take about recent statements from President Obama and Senate Majority Leader Harry Reid about marijuana. He said he thought Obama and Reid (in part) may have been trying to bait Republican politicians into coming out strongly on the other side. Although Republican voters are much more prohibitionist than Democratic voters overall, a good chunk of the party's base favors legalization and--perhaps more importantly--a much larger percentage is skeptical of federal interference with state laws.
I don't know if Brezny's theory is true. But if it is, Republicans didn't take the bait this week. In fact, the past few days have seen a number of prominent Republican politicians express support for easing marijuana laws. Like Obama and Reid's statements, the comments have been tepid. But it is a very interesting dynamic nonetheless.
Indeed, this reaction might tell us more about the political state of marijuana policy than what Obama and Reid said themselves. There was a time when any statement in support of marijuana law reform, however mild, would have generated a swift and certain backlash from political opponents (especially if the support was coming from a Democratic politician.)
But this week, instead of a backlash, we saw this:
Texas Gov. Rick Perry (R) said Thursday that he's open to marijuana decriminalization in the Lone Star state.
“As governor, I have begun to implement policies that start us toward a decriminalization," Perry said at a World Economic Forum panel on drug legalization in Davos, Switzerland, according to the San Antonio Express-News. He was referring to "drug courts" in the state that provide treatment and softer penalties for minor offenses.
A Perry spokeswoman confirmed to the Express-News that while Perry is opposed to legalization of the drug because of medical issues, the governor supports policies that lower punishments for marijuana use in order to keep smokers out of jail.
Gov. Bobby Jindal said Wednesday (Jan. 22) he would be open to the idea of medical marijuana use becoming legal in Louisiana, as long as patients were under the close supervision of a doctor and the drug's distribution was tightly controlled.
Governor Chris Christie today took the oath of office for a second term and delivered his inaugural address at the War Memorial in Trenton. During his inaugural address he called for an end to the drug war and compassion for those suffering from drug addiction.
“We will end the failed war on drugs that believes that incarceration is the cure of every ill caused by drug abuse. We will make drug treatment available to as many of our non-violent offenders as we can and we will partner with our citizens to create a society that understands this simple truth: every life has value and no life is disposable,” Christie said during his inaugural speech this morning.
By my count, that's three Republicans rumored to be considering 2016 presidential bids expressing support for easing drug laws. Thinking about the politics of these issues 10, 5 or even 1 or 2 years ago, this trend is something to behold.
Following this week's excellent HBO Real Sport's piece on the use of medical marijuana by NFL players (if you haven't seen it and have access to HBO On Demand, I definitely recommend it), NFL Commissioner Roger Goodell was asked again about the league's marijuana policy.
ProFootballTalk provides the details:
At a press conference to announce the first winners of the “Head Health Challenge” aimed at finding innovative techniques for treating and/or preventing brain injuries, Commissioner Roger Goodell acknowledged that, if marijuana can be proven to help players recover from concussions, the league could change its position.
“I’m not a medical expert. We will obviously follow signs. We will follow medicine and if they determine this could be a proper usage in any context, we will consider that,” Goodell said, via USA Today. “Our medical experts are not saying that right now.”
In a recent interview with HBO’s Real Sports with Bryant Gumbel, NFL senior V.P. of labor law and policy Adolpho Birch told Andrea Kremer that the league would look at anything that could help its players. An Isreali doctor has found via research on mice that marijuana can help in the recovery from traumatic brain injuries.
Many players already believe that marijuana helps manage pain, and they smoke it even though the league says they can’t. For players not already in the substance-abuse program, there’s no chance of testing positive after the annual test to which every player is subjected during the offseason, in a window that opens (coincidentally) on 4/20.
If the federal government ever changes its position regarding marijuana, the NFL may have no choice but to revise its position. The policy as written prohibits the “illegal use” of marijuana; if it’s ever fully legal in jurisdictions like Washington and Colorado, the league won’t have any way to take action against players who live or work there.
Thursday, January 23, 2014
The title of this post is the headline of this notable new article appearing in The Atlantic. I am pleased that my law school seminar, Marijuana Law, Policy and Reform, is discussed in the piece, and I am even more pleased to learn from the article that at least one other law school is now innovating in this interesting new legal space:
Professors who found an intersection between the cannabis issue and their own area of study are not the only ones pushing to introduce cannabis to higher education. Rehman Bhalesha, a South Texas College of Law student, approached the dean about wanting to establish a drug policy institute at the law school that concentrated on the legalization of cannabis. Instead, the school started a collaboration with Rice University's Baker Institute, which already focused on drug policy. The first class at South Texas College of Law, which covered cannabis legislation, was taught last spring semester. It is offered again this semester.
“Internally, the administration is really thrilled about it because it’s something innovative. And the students are excited because they get to feel like they’re putting their legal knowledge to use and to do something that might have a lasting impact in the real world. They’re not just taking exams and doing make-believe projects. We’re taking what they draft and turning it over to people who have been approached by state legislators asking for ideas,” said Dru Stevenson, the professor who teaches the legislation course.
Students in the legislation class have a range of personal feelings about cannabis. Some feel all drugs should be legalized, others think cannabis should be legalized for medical purposes only, while a few others think all drugs are bad. But Stevenson said even those who think no one should ever consume cannabis recognize the trend toward relaxing cannabis laws from a historical perspective.
“I teach a lot of courses, but I’ve never had one where people were emailing me months in advance wanting to make sure that I’m going to be offering the course and wishing they could reserve a seat ahead of time,” Stevenson said.
Tuesday, January 21, 2014
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.
January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, January 20, 2014
In this post a few months ago on the 50th Anniversary of Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech, I asked this question: Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?." Now, as a way to honor the special day in which we honor the legacy of Dr. King's work, I provide this abridged and tweaked version of famed "I Have A Dream" speech:
One score and four years ago, Congress enacted the Controlled Substances Act. This momentous decree came as a great prohibition to millions Americans who had been enjoying the flames of a plant. It came as a notable break to end the long American history of freedom to grow and use marijuana. Forty four years later, the American pot user still is not free. Forty four years later, the life of the American pot user is still sadly crippled by the manacles of marijuana prohibition and the chains of incarceration. Forty four years later, the American pot user lives on a peculiar island of marijuana prohibition in the midst of a vast ocean of alcohol and tobacco and prescription drug use and abuse. Forty four years later, the American pot user still languishes in the corners of American black markets and finds himself in exile in his own land....
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.
This note was a promise that all men, yes, men who like marijuana as well as men who like alcohol, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness....
It would be fatal for the nation to overlook the urgency of the moment. This exciting winter of legitimate marijuana sales will not pass until there is an invigorating autumn of freedom and equality. Twenty Fourteen is not an end, but a beginning. Those who hope that the American pot user needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the American pot user is granted his liberty and rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges....
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident; that all men are created equal."
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood with marijuana as well as with alcohol.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the intoxicant they responsibly enjoy but by the content of their character....
I have a dream that one day every valley shall be exhalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I will go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood.
With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with new meaning, "My country 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrims' pride, from every mountainside, let freedom ring."
And if America is to be a great nation, this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.
Let freedom ring from the snow-capped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that; let freedom ring from the Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee.
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! Free at last! Thank God Almighty, we are free at last!"