Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Friday, July 25, 2014

Rand Paul amendment to block certain federal prosecutions in medical marijuana states would raise interesting legal questions

Senator Rand Paul has filed an amendment to a jobs bill that would protect patients and physicians from federal prosecutions in states with medical marijuana laws.  Unlike the spending amendment that passed the House earlier this year (which Paul and Cory Booker also introduced in the Senate), this proposal would have a very real legal impact.  I think it would also raise some interesting legal questions, if it were to pass (which I suspect is unlikely.)

Paul's proposal provides (in relevant part):

(a) State Medical Marijuana Laws.--Notwithstanding section 708 of the Controlled Substances Act (21 U.S.C. 903) or any other provision of law (including regulations), a State may enact and implement a law that authorizes the use, distribution, possession, or cultivation of marijuana for medical use.
 
 
(b) Prohibition on Certain Prosecutions.--No prosecution may be commenced or maintained against any physician or patient for a violation of any Federal law (including regulations) that prohibits the conduct described in subsection (a) if the State in which the violation occurred has in effect a law described in subsection (a) before, on, or after the date on which the violation occurred[.]
 
At first blush, the amendment's protections seem somewhat limited.  They apply only to medical marijuana patients and physicians.  But most federal medical marijuana prosecutions have targeted providers--dispensary operators, growers, etc.  
 
When it comes to patients and physicians, however, the immunity this amendment would grant appears to be quite broad.  The law would prevent prosecutions "for a violation of any Federal law . . . that prohibits the conduct described in subsection (a)" in a medical marijuana state.  And what conduct does subsection (a) describe?  "[T]he use, distribution, possession, or cultivation of marijuana for medical use[.]"
 
As a result, I think Paul's amendment would almost certainly immunize from federal prosecution patients and physicians (but not others) who work in the medical marijuana industry.  In oher words, the federal government could not "commence[] or maintain[]" a prosecution against a patient or physician who ran a dispensary or a medical marijuana grow operation that was in compliance with state law.   
 
Now here is where I think interpreting Paul's proposal gets especially tricky: would it protect only physicians and patients who were acting in compliance with their state's law?  Or, would passage of a state medical marijuana law (even an incredibly restrictive one) trigger a broad-based protection for any and all patient and physician "use, distribution, possession, or cultivation of marijuana for medical use"?
 
Though I imagine the intent of the amendment is to make the federal protection coextensive with activity authorized under state law, I think its language is far from clear on the issue.  
 
Again, take a look back at subsection (a).  It says that "a State may enact and implement a law that authorizes the use, distribution, possession, or cultivation of marijuana for medical use."  Subsection (b), meanwhile, says the government cannot commence or maintain a prosecution "for a violation of any Federal law . . . that prohibits the conduct described in subsection (a)".
 
The only conduct that is deccribed in subsection (a) is the "use, distribution, possession, or cultivation of marijuana for medical use."  Period.  There is no express requirement that the conduct be done "in compliance with state law" in order to qualify for the protection.  On this reading, so long as a patient or physician's marijuana activity was "for medical use" and done in a state that had some sort of medical marijuana law, however narrow, the protection would kick in.  (As a result, for example, a patient in a state with a CBD-only law might claim protection from federal prosecution for selling marijuana to a veteran with PTSD.)  
 
To be sure, one could argue that Paul's provision implicitly limits the protected "conduct" to that which is "authorize[d]" by a state.  But I don't think this argument would be a slam dunk.  My inclination is that the statute is ambiguous on this point and would have to be litigated.  
 
All of the above is based on, admittedly, a very quick read and reaction to the language, so I may be off base.  (I'd love to hear any and all thoughts in the comments.)  But, at the very least, it seems to me that this amendment could be a bit clearer about exactly what conduct it protects and under what circumstances.
 
I should add that even if the language of the amendment does have some ambiguity, I suspect that it is being introduced for political effect more than anything else (both for Paul to generate media buzz for his position on the issue and in order to try to gain momentum for federal reform by raising the profile of the issue in the Senate).  Since the likelihood it will pass is slim to none, it is understandable that Paul's staff might not have committed a bunch of its time to finely tune the proposal's language.  
 
Last, details aside, Paul's amendment is another sign of the shifting politics on marijuana reform.  As Tom Angell of Marijuana Majority put it: "with five U.S. House floor votes in a row coming out favorably for cannabis policy reformers over the past few months, we expect to see more senators realizing that getting onto the winning side of this issue is a smart move."

July 25, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, July 17, 2014

Another notable House vote continues federal reform momentum

As reported in this AP piece, which is somewhat inaccurately headlined "House Votes to Allow Marijuana-Related Banking," last night brought another notable vote from the GOP-lead House of representatives concerning federal regulatory rules surrounding federal pot prohibition.  Here are the (somewhat complicated) details of the latest notable vote:

The House voted Wednesday in support of making it easier for banks to do business with legal pot shops and providers of medical marijuana. The 236-186 vote rejected a move by Rep. John Fleming, R-La., to block the Treasury Department from implementing guidance it issued in February telling banks how to report on their dealings with marijuana-related businesses without running afoul of federal money-laundering laws.

Marijuana dealing is still against federal law, so banks who do business with marijuana dispensaries could be accused of helping them launder their money. Federal money laundering convictions can mean decades in prison.

The Treasury guidance was intended to give banks confidence that they can deal with marijuana businesses in states where they're legal. Many banks are still reluctant to do so. That has forced many marijuana operations to stockpile cash, a situation that shop owners say is dangerous.

"They are operating just in cash, which creates its own potential for crime, robbery, assault and battery," said Rep. Ed Perlmutter, D-Colo., whose state has legalized recreational pot use. "You cannot track the money. There is skimming and tax evasion. So the guidance by the Justice Department and the guidance by the Treasury Department is to bring this out into the open."

The vote is largely symbolic since Treasury already had gone ahead with the guidance, but it demonstrates a loosening of anti-marijuana sentiment on Capitol Hill. "Whereas the federal government once stood in the way of marijuana reform at every opportunity, the changing politics of this issue are such that more politicians are now working to accommodate popular state laws so that they can be implemented effectively," said marijuana advocate Tom Angell.

A coalition of 46 mostly GOP moderates and libertarian-tilting Republicans joined with all but seven Democrats to beat back Fleming's attempt to block the Treasury guidance.

July 17, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (2)

Tuesday, July 15, 2014

"White House Says Marijuana Policy Is States' Rights Issue"

The title of this post is the headline of this new Huffington Post piece.  Here is how it starts:

The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.

The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."

Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.

July 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)

Monday, July 14, 2014

Sixth Circuit dissenter highlights state marijuana reforms in case of marijuana defendant sentenced to 20-years

Last week, the Sixth Circuit issued a notable opinion (PDF) on whether the U.S. Supreme Court's 2013 decision in Alleyne v. US means the government must now prove drug defendants knew the type and quantity of drugs involved to trigger an applicable mandatory minimum sentence.  

I'll return to the legal issue in a moment, but of particular interest to the topic of this blog is the conclusion of Judge Merritt's dissenting opinion, in which he questions the wisdom of a 20 year marijuana sentence in light of legalization laws:

In addition, I note in passing that the defendant was sentenced to an absurdly long mandatory sentence of 20 years imprisonment for growing marijuana plants. In a legal system that has historically strongly disfavored criminal strict liability and has favored requiring mens rea or knowledge of the crime, we should not hesitate to insist that the prosecutor prove a defendant's knowledge of the scope of the conspiracy. We should take into account that a number of states have now legalized growing marijuana plants for both medicinal and recreational use. This change in attitude toward the crime should lead us to try to avoid such excessive sentences that have now filled the jails of the country with drug offenders, particularly the federal prisons. If the criminal division of the Department of Justice cannot desist from asking for such long sentences, and continues its policy of insisting on excessive drug sentences, the courts should at least follow a consistent policy of requiring knowledge of the elements of the crime.

Though Merritt's discussion of marijuana reforms is noteworthy, those who follow federal sentencing will almost certainlty be more interested in the Alleyne issue in the case.  

For the uninitiated, the issue is a tricky one to summarize, but it centers around the fact that federal mandatory minimum drug sentences are based primarily on the type and quantity of drugs involved in the offense.  For some time, courts have held that the government only needs to prove a defendant knowingly possessed drugs to get a conviction and to trigger a mandatory minimum sentence.  Whether the defendant knew the type or quantity of drugs is immaterial.  

To get a sense of how this works, imagine a drug courier who agrees to transport a car across the border.  The courtier is told the car has marijuana in an amount that would trigger a 5-year minimum sentence.  But the car actually has methamphetamine in an amount that would trigger a 10-year minimum.  If the courier is convicted, she'll receive the 10-year mandatory minimum based on the type and quantity of drugs in the car.  The fact that she thought she was transporting X amount of marijuana is irrelevant.  So long as the government can prove she knew she had a controlled substance of some kind, she'll be sentenced based on what she actually had (Y amount of methamphetamine.)

As summarized by SCOTUS Blog, Alleyne held that "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' of the crime that must be submitted to the jury."

Does this holding also mean that the government must now prove drug defendants knew the type and quantity of drugs involved to trigger a relevant minimum sentence?  The Sixth Circuit held that it does not.  Judge Merritt, in dissent, says it should.  

I'll avoid trying to summarize the competiting points and, instead, recommend that anyone who is interested in the Alleyne issue take a look at the opinion and dissent which are both well worth reading.  

July 14, 2014 in Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds' response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy.  But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Friday, June 20, 2014

Senate to vote on medical marijuana spending amendment

A few weeks ago, the House passed an amendment to the Department of Justice's budget bill that would restrict it from using funds to prevent states from implementing their own medical marijuana laws.  As I discussed at the time, I think the vote was incredibly significant politically, though the text of the amendment itself is actually quite  narrow.  

One of the key questions has been whether the amendment would gain any traction in the Senate.  Yesterday, news came that Senator Rand Paul has introduced the amendment and Cory Booker will has signed on as a co-sponsor.  It appears the vote will be coming soon (possibly today).  It will be very interesting to see how it plays out.

June 20, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, June 18, 2014

Hillary Clinton, Rand Paul, ASA's new ad, and the shifting politics of drug policy

As the 2016 presidential election gets underway, two of the most prominent would-be contenders spoke about drug policy yesterday.   

Hillary Clinton was asked about medical and recreational marijuana laws at a CNN forum.  Clinton left herself a lot of wiggle room in her answer, particularly with respect to Colorado and Washington, saying she "wait and see what the evidence is" (or, perhaps, wait and see who her opponents and and what the polling says in the states she needs to win?  I kid, I kid.)  Still, her comments on medical marijuana are notable.  In 2008, Clinton took the "I don't think it's a good use of federal resources" approach to the issue, without saying anything that might sound like an endorsement of medical marijuana use.  Yesterday, Clinton was much more expressly supportive of medical marijuana, commenting: "I think for people who are in extreme medical conditions and who have anecdotal evidence that it works, there should be availability under appropriate circumstances."  It's far from endorsing state medical marijuana laws or changing federal drug laws.  But it is also a much stronger endorsement of medical marijuana than in her 2008 campaign (and, in my opinion, stronger than Obama's comments in 2008.)

 

Meanwhile, on the Republican side, Rand Paul criticized the drug war generally yesterday, telling the Iowa State Republican Party Convention: "If you look at the War on Drugs, three out of four people in prison are black or brown. White kids are doing it too. In fact, if you look at all the surveys, white kids do it just as much as black and brown kids -- but the prisons are full of black and brown kids because they don’t get a good attorney, they live in poverty, it’s easier to arrest them than to go to the suburbs. There’s a lot of reasons."  Rand Paul has said very similar things before, but the fact that he would include this in his remarks to an important primary state Republican audience says a lot about the new politics of drug policy.

Last but not least, Americans for Safe Access (disclosure: I serve on their board) released its latest ad targeting a medical marijuana-state Congressperson for voting against the recent medical marijuana budget amendment.

   

It's hard to believe how quickly the politics of drug policy are changing.  It wasn't that long ago that former Virginia Senator Jim Webb (who has also been mentioned as a possible 2016 presidential candidate) was lamenting the fact that "few candidates or elected officials these days even dare to mention the mind-boggling inconsistencies and the long-term problems that are inherent in [our criminal justice system]” because they believe that “to be viewed as 'soft on crime' is one of the surest career-killers in American politics.”  (The quote is from Webb's 2008 book A Time to Fight.) 

June 18, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Wednesday, June 11, 2014

"The DEA: Four Decades of Impeding And Rejecting Science"

Logo_headerThe title of this post is the title of this notable new report from the Drug Policy Alliance.  Here is an excerpt from the report's executive summary:

The Drug Enforcement Administration (DEA) is charged with enforcing federal drug laws. Under the Controlled Substances Act of 1970, its powers include the authority to schedule drugs (alongside other federal agencies) and to license facilities for the production and use of scheduled drugs in federally-approved research. Those powers are circumscribed by a statute that requires the agency to make its determinations based on scientific data.

The case studies compiled in this report illustrate a decades-long pattern of behavior that demonstrates the agency's inability to exercise its responsibilities in a fair and impartial manner or to act in accord with the scientific evidence – often as determined by its Administrative Law Judges.

The following case studies are included in this report:

  • DEA Obstructs Marijuana Rescheduling: Part One, 1973-1994
  • DEA Overrules Administrative Law Judge to Classify MDMA as Schedule I, 1985
  • DEA Obstructs Marijuana Rescheduling: Part Two, 1995-2001
  • DEA Overrules Administrative Law Judge to Protect Federal Monopoly on Marijuana for Research, 2001-2013
  • DEA Obstructs Marijuana Rescheduling: Part Three, 2002-2013

These case studies reveal a number of DEA practices that work to maintain the existing, scientifically unsupported drug scheduling system and to obstruct research that might alter current drug schedules.

June 11, 2014 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Science | Permalink | Comments (0)

Tuesday, June 10, 2014

"What’s Next for Pot in Congress?"

CannabisHill_FB.4aabffc9fb3c5e7bfef73acc5067e886The question in the title of this post is the headline of this notable new article at CQ Roll Call.  Here are excerpts:

Activists cheered a House vote last month to bar the federal government from interfering with state medical marijuana laws.  It was a watershed moment for pro-marijuana advocates — and lawmakers on both sides of the aisle — who have been waiting for years for Congress to take an affirmative up-or-down vote on any related issue.

But in the afterglow of this long-sought legislative victory, it’s not clear just what comes next.  Will bipartisan support for the measure, adopted as an amendment to the House’s fiscal 2015 Commerce-Justice-Science appropriations bill, inspire future action in the chamber?  Will the Senate, poised in the weeks ahead to consider its own C-J-S bill, follow the House’s lead?...

Rep. Earl Blumenauer, one of the biggest stalwarts of legalizing marijuana, doesn’t agree that this will be the last word on the subject before the end of the 113th Congress.  The Oregon Democrat, who co-sponsored the House amendment, told CQ Roll Call he has had “several conversations” with senators who might champion a medical marijuana amendment in consideration of the C-J-S bill.  Plus, senators marked up their version of the spending measure in the Appropriations Committee last week, and adopted language blocking the Justice Department from using funds to deter research on industrial hemp.

Blumenauer also thinks two stand-alone measures he’s introduced could pass.  A bill that would allow legal marijuana businesses to benefit from tax deductions could become an amendment to a tax extenders package.  Another measure, which would permit such businesses to hold bank accounts, could hitch a ride on financial services legislation.   “There are number of things I think can happen between now and the end of this congressional session,” Blumenauer said. “I’m not at all discouraged.”...

A week after the dust settled, the “Vote Medical Marijuana” campaign housed within the advocacy group Americans for Safe Access demonstrated what else it could do with [House voting]  information.   On June 5, the organization announced it would air 30-second TV spots on MSNBC in Maryland and South Florida to target two members who voted “no” on the C-J-S amendment — Republican Andy Harris and Democrat Debbie Wasserman Schultz.

Americans for Safe Access spokesman Kris Hermes said the group hopes to run ads against other members leading up to the Nov. 4 midterm elections.   “I’m not going to say people shouldn’t vote for Wasserman Schultz or Harris, but I think it should weigh heavily on their decision on who to vote for, and our goal is to have a federal legislature, a Congress, that is voting consistently with the interests of its constituents,” Hermes explained.

Wasserman Schultz and Harris responded to the ads by defending their positions in written statements.   “I do not believe, regardless of the issue, that it is appropriate to limit the Executive Branch’s ability to enforce current federal law at their discretion,” said Schultz, who is also the Democratic National Committee chairwoman.  “As a cancer survivor, mother and lawmaker, I am acutely empathetic to the suffering of people with terminal illnesses and chronic pain.”

Harris, who was an anesthesiologist before coming to Congress in 2011, had a more technical gripe.   “The term ‘medical marijuana’ implies that marijuana is like any other medication that a physician, like myself, would prescribe,” Harris said. “It’s not.”

Whatever happens, there are members who support expanding access to marijuana who refuse to be daunted by political realities in the face of an exciting time to be working on the issue.   Count Colorado Democrat Jared Polis, another co-sponsor of the medical marijuana amendment, among them.   “History was made by politicians from both sides of the aisle, as we now have a majority of Congress on the record saying that states have the prerogative to regulate marijuana as they see fit,” Polis, whose state recently legalized marijuana for all purposes, said in an emailed statement. “I don’t know where this bill is going, but it sends a message.”

June 10, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, June 9, 2014

Massachusetts doctors, the DEA and the Conant case

As Doug noted on Friday, the DEA has apparently issued warning letters to a handful of Massachusetts doctors in connection with the implementation of the state's medical marijuana law.  Specifically, the DEA threatened to revoke the registrations of some physicians who are involved with medical marijuana-related companies in the state.  Doing so would leave them unable to prescribe other controlled substances, like Ambian or Xanax.  

As some readers may recall, this is not the first time the federal government has threatened doctors in this way.  Not long after Californians approved the first modern medical marijuana law in 1996, then-director of the ONDCP Barry McCaffrey announced that the DEA would seek to revoke the DEA registrations of physicians who recommended medical marijuana to their patients. 

A group of California patients and doctors filed suit to enjoin the DEA from going through with its registration revocation plan.  The case made its way to the Ninth Circuit, which held that the DEA’s plan was an unconstitutional infringement on physicians’ first amendment rights in Conant v. Walters, 309 F.3d 629 (2002).   The Ninth Circuit reasoned that “[b]eing a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment Rights.”  It held that preventing physicians from recommending medical marijuana to their patients would “strike at the core of First Amendment interests of doctors and patients.  An integral component of the practice of medicine is the communication between a doctor and a patient.  Physicians must be able to speak frankly and openly to patients.”

Are the DEA's threats to Massachusetts doctors at odds with Conant?  There are two key differences.

First, Conant was a Ninth Circuit case and Massachusetts is in the First Circuit.  For non-lawyer readers, this means that Conant is not binding on federal courts in the state.  So, even if the DEA's threats were in clear conflict with Conant's holding, the courts there would be free to disagree with the Contant decision.     (To be honest, I've always been a little bit surprised that the DEA did not continue to press the registration issue outside of the Ninth Circuit after Conant, particularly since a District Court in DC sided with the government on the issue.)    

Second, the Massachusetts doctors appear to be doing more than just recommending marijuana to patients.  According to this Boston Globe article, the doctors targeted by the DEA "are top administrators in companies approved by state regulators for preliminary medical marijuana dispensary licenses[.]"  As a result, courts may not see this as a free speech issue.  The Ninth Circuit's recent decision upholding a California law that bans gay conversion therapy comes to mind here.  In that case, the court distinguished Conant in part by drawing a line between speech and conduct.  

This is not to say that the DEA is on firm legal footing.  A court may very well find these threats to be legally flawed, just like the Ninth Circuit did in Conant.  But it is certainly not a slam dunk, even if federal courts in Massachusetts were bound by Conant (which they're not.)

While it's hard to say how a potential legal challenge to the DEA's threats would turn out, it seems clear to me that thia is a monumentally bad decision from a policy and political standpoint. 

In terms of policy, if we're going to have medical marijuana, I can't imagine why we would want to make it harder for physicians to be involved in the system.  In fact, we should be encouraging companies to hire on physicians as advisors and active participants. 

Politically, as Charles Pierce at Esquire put it: "The DEA Is Really Starting To Look Ridiculous."  Threats like this make the DEA look more and more out of touch--not just with public opinion but with the DOJ's official policy.  It makes no sense to allow recreational marijuana stores to do big business in Colorado and then turn around and threaten doctors who (by all appearances) are trying to make medical marijuana in Massachusetts function as legitimately as possible.

And, of course, the timing of this news could not be worse for the DEA.  If I were the DEA, I would be doing everything I could to lay low after the recent House vote to block DOJ funds from being used to interfere with state medical marijuana laws.  Granted, it sounds like the DEA's made these threats before the House vote.  But the news is being released just as the DEA needs to lobby the Senate to block the House amendment from actually becoming law.

The politics alone make me think that the DEA may quietly dial back these threats.  But, if they don't, we may have an interesting lawsuit testing the persuasiveness and limits of Contant to look forward to.

June 9, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Saturday, May 31, 2014

"Why Republicans are slowly embracing marijuana"

The title of this post is the headline of this recent Los Angeles Times article, which includes these excerpts:

Marijuana is a political conundrum for the GOP, traditionally the stridently anti-drug, law and order party. More than half the voters in the country now live in states where medical marijuana is legal, in many cases as a result of ballot measures. The most recent poll by the Pew Research Center found most Americans think pot should be legal, a major shift from just a decade ago when voters opposed legalization by a 2-to-1 margin.

Most GOP stalwarts, of course, continue to rail against liberalization of the laws. Rep. Andy Harris of Maryland, a physician, declared during floor debate that medical marijuana is a sham. Real medicine, he said, “is not two joints a day, not a brownie here, a biscuit there. That is not modern medicine.”

But in a sign of how the times are changing, he found himself challenged by a colleague from his own caucus who is also a doctor. Rep. Paul Broun (R-Ga.) spoke passionately in favor of the bill. “It has very valid medical uses under direction of a doctor,” he said. “It is actually less dangerous than some narcotics prescribed by doctors all over the country.” Georgia is among the many states experimenting with medical marijuana. A state program there allows its limited use to treat children with severe epileptic seizures.

The rise of the tea party, meanwhile, has given an unforeseen boost to the legalization movement. Some of its more prominent members see the marijuana component of the War on Drugs as an overreach by the federal government, and a violation of the rights of more than two dozen states that have legalized cannabis or specific components of it for medical use.

Pro-marijuana groups have lately taken to boosting the campaigns of such Republicans, even those running against Democrats. A notable case is in the Sacramento region, where the Marijuana Policy Project recently announced it was endorsing Igor Birman, a tea partier seeking to knock out Democrat Ami Berra in a swing congressional district.

May 31, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, May 30, 2014

House votes to block the DOJ from spending money on medical marijuana investigations

Between grading exams and traveling last weekend, I haven't had the chance to post since last week.  Though I'm still playing catch-up on some items at work, I could not resist writing something up on last night's big marijuana law news: the House of Representatives passed an appropriations amendment that would ban the DOJ from spending money to interfere with state medical marijuana laws.

The vote is a true political game changer.  A majority of House members are now on record in opposition to federal interference with state medical marijuana laws.  As Tom Angell of Marijuana Majority put it in the HuffPo article linked above: "This historic vote shows just how quickly marijuana reform has become a mainstream issue."

Whether the amendment will take effect remains to be seen.  The Senate needs to pass its own criminal justice appropriations bill and then the two will need to be reconciled. 

If that happens, what exactly would the amendment do? 

The full text is here:

Offered By: Mr. Rohrabacher

    Amendment No. 25: At the end of the bill (before the short title), insert the following:

    Sec. __. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Legally, I'm not sure how much (if any) protection the amendment would actually provide.  Putting aside the question of how to ensure compliance with the restriction, the measure only stops the DOJ from using funds to "prevent" states from "implementing their own" medical marijuana laws.  It's far from clear that medical marijuana raids and prosecutions would be covered by this language.  After all, prosecuting a medical marijuana dispensary operator in San Diego doesn't mean that California has been directly prevented from implementing any of its state laws.  

But, in this case, I think getting lost in the legal language would be to miss the true impact of this development.  The amendment is not meant to change federal drug laws.  It is a signal (and a strong one) to the DEA and DOJ that Congress is unhappy about federal interference with state medical marijuana laws.  

As this recent article about corporate regulation discusses, "in a divided government where few bills are signed into law, the real action is the tug of war between Congress and the agencies that write rules and implement laws."  That observation doesn't exactly track this situation.  But I think the broader point applies. 

If this amendment survives the Senate and takes effect, federal prosecutors and DEA operatives will need to think long and hard before they bring another medical marijuana defendant into court or conduct another raid. 

Regardless of the technical language, I suspect the forces in Congress behind the amendment will not be very happy if the DOJ violates its spirit  And that means risking funding for the next year, getting yelled at in a Congressional hearing, etc.  Perhaps most of all, ignoring this signal would risk elevating the dispute to the point where Congress decides a spending restriction isn't enough and begins to more seriously explore the possibility of changing federal drug laws.  (Not to mention that the vote provides a great deal political cover--to the extent the Obama administration thinks it needs cover--for taking a hands-off approach when it comes to state medical marijuana laws.)

All this is to say that while the amendment might not necessarily provide a lot of legal protection if a medical marijuana defendant does end up in federal court, I think it would provide a great deal of practical insurance against that sort of thing continuing to happen. 

And, even if the amendment dies in the Senate, the fact that it passed the House is significant in its own right--both politically and as a warning signal to the DOJ.

Two other notes: First, this wasn't the only marijuana reform amendment to pass the House.  They also approved two amendments to restrict the use of funds to interfere with state Hemp research programs.

Last but not leas, I can't keep myself from congratulating the staff at Americans for Safe Access (on whose Board I serve) for all of their work to help make this happen.  To be sure, something like this doesn't happen without a number of different groups involved.  But ASA is the one organization dedicated to medical marijuana issues exclusively--groups like the Marijuana Policy Project focus on marijuana issues more broadly--and the vote is a huge win for ASA's constituency and its staff.  ASA's fantastic Executive Director, Steph Sherer, had this piece on HuffPo on the need for the amendment Wednesday.  Though the amendment has now passed, her article is still very much worth a read.

 

May 30, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (1)

Monday, May 26, 2014

"Legalization Conflicts and Reliance Defenses"

The title of this post is the title of this notable new and timely paper by Mary Fan now available via SSRN.  Here is the abstract:

This article addresses an open question of pressing practical import – whether people and businesses operating in the shadow of a legalization conflict have a reliance defense.  A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime.  For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes and financial affairs around legalization laws and decrees.  If people take actions now in reliance, will they face sanctions later?  The question is of great import for many people and businesses, as well as the lawyers who advise them.

The article argues that reliance defenses should be available when governmental actors in charge of enforcing the criminal regime expressly acquiesce in the competing legalization.  In such cases, reliance is reasonable and estoppel is required lest people or businesses be lulled by the statements of actors charged with administering the law into a snare of sanctions.  Potential objections regarding privileging governmental lawlessness and the danger of giving people a normative choice of law that enables strategic gamesmanship are addressed.

May 26, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, May 20, 2014

No Federal Water in Colorado and Washington for Marijuana Cultivation

Just when I/you thought progress was being made, "Feds won't allow water for pot growers" is the headline of the  story just released by McClatchy DC.

The US Bureau of Reclamation "delivers water to more than 31 million people and one out of every five Western farmers."  The agency announced today that Washington and Colorado marijuana growers cannot use its water for cultivation of marijuana  because of the agency's responsibility to be "consistent with the Controlled Substances Act."  The story states that "the decision could hit particularly hard in Washington state" because the US Bureau " controls the water supply for two-thirds of Washington state's irrigated land."  The US DOJ will decide how to handle violators.

As Tom Angell of Marijuana Majority.  stated in an earlier Huff Post story on the water ban, "this water issue highlights the urgent need to actually change federal law."  

NOTE: Could someone let me know the legal  authority for the Bureau's decision? Thanks!

May 20, 2014 in Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Saturday, May 17, 2014

"Could This Be the Year for a House Reversal on Medical Marijuana?"

Congress and cannabisThe title of this post is the headline of this intriguing article from Roll Call.  Here are excerpts:

The last time Rep. Dana Rohrabacher offered an amendment on the House floor to protect states rights when it came to legalization of medical marijuana, it was defeated 163–262. Since that vote in 2012, four states — Illinois, Massachusetts, New Hampshire and Maryland — passed laws or regulations allowing for the use of medical marijuana, bringing the total to 21 states and the District of Columbia.

Now, supporters of medical marijuana anticipate the strongest vote yet on a states-rights amendment when the fiscal 2015 Commerce-Justice-Science appropriations measure (HR 4660) comes to the House floor in a few weeks, while lawmakers are weighing offering additional marijuana provisions on appropriations measures. Most, but not all, of the proposals lawmakers are considering bringing up are aimed at protecting state laws and programs on medical marijuana use.

The chief provision, which will be offered as an amendment to the appropriations bill funding the Commerce and Justice departments, would prohibit the federal government from prosecuting medical marijuana users and providers who are abiding by their state’s law. The House has voted on similar proposals six times since 2003, with about 150 to 160 members supporting it each time. But advocates expect that more lawmakers than ever will support the bipartisan proposal this year, which will likely be introduced by two California lawmakers, Rohrabacher, who is a Republican, and Democrat Sam Farr. Boosters expect to win new backers this year because of the increasingly high poll numbers supporting legalization....

That increasing support may lead lawmakers to hold additional marijuana policy votes on other appropriations bills. Rep. Ed Perlmutter, D-Colo., may consider offering an amendment to the Financial Services appropriations measure that would help marijuana businesses get access to banking by updating federal rules, according to his office. An aide for Colorado Democrat Jared Polis said he also may offer marijuana policy amendments, although he has not made a decision yet....

The backers of the Rohrabacher amendment are an unusual group of social liberals and conservatives who see legalization as a states’ rights issue. Lawmakers including Blumenauer, Michigan Republican Justin Amash and Texas Republican Steve Stockman have voted for it in the past.

Georgia Republican Paul Broun, a physician who supports the amendment, said in a statement that the provision makes sense “from both a medical perspective and a Constitutional perspective.” He added, “This amendment would ensure that medical marijuana patients adhering to their state’s laws would not be punished by an overreaching federal government.”

May 17, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, May 15, 2014

New Congressional effort underway to make it easier to research medical marijuana

Via Mike Liszewski at Americans for Safe Access (disclosure: I currently serve on ASA's Board) comes word of a new Congressional effort to remove a barrier to marijuana research.  In addition to all of the standard research restrictions restrictions for Schedule I substances, marijuana is subject to an additional Public Health Service review that has stalled some medical marijuana research efforts.  A group of Representatives is calling for the PHS review to be eliminated.  

Here's the story from ASA:

A bipartisan group of Members of Congress have drafted a letter seeking that the Secretary of Health and Human Services (HHS) remove a federal barrier to medical marijuana research that no other Schedule I substance is subjected to.

 

Representatives Earl Blumenauer (D-OR), Morgan Griffith (R-VA), Jan Schakowsky (D-IL), and Dana Rohrabacher, (R-CA) are currently seeking additional cosigners to the letter, which seeks to lift the current Public Health Service (PHS) review process that has preventing potentially groundbreaking medical marijuana research from taking place in the United States.

 

Established in May 1999, the PHS review process was the federal government's response to the 1998 Institute of Medicine report that called for more in depth scientific research to understand the medical value of marijuana. While the plain language of the PHS review protocol says that it is, "intended to facilitate the research needed to evaluate these pending public health questions by making research-grade marijuana available for well-designed studies," the review process has largely served to thwart research rather than facilitate it.

May 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research | Permalink | Comments (0)

Wednesday, May 7, 2014

DEA proposes an increase to the 2014 marijuana manufacturing quota

Pursuant to the Controlled Substances Act, the DEA sets a quota for the legal manufacture of marijuana every year.  As a Schedule I substance, this means the DEA sets the amount of marijuana that can be manufactured for research.  Earlier this week, the DEA proposaed an increase to that limit for 2014 to meet demand from approved studies:

The National Institute on Drug Abuse (NIDA) is a component of the National Institutes of Health and the U.S. Department of Health and Human Services, and it oversees the cultivation, production and distribution of research-grade marijuana on behalf of the United States Government, pursuant to the Single Convention on Narcotic Drugs (March 30, 1961, 18 UST 1407). NIDA recently notified the DEA that it required additional supplies of marijuana to be manufactured in 2014 to provide for current and anticipated research efforts involving marijuana. Specifically, NIDA stated that 600 kilograms is necessary to be manufactured in 2014.

 

The DEA was unaware of NIDA's additional need at the time the initial aggregate production quota for marijuana was established in September 2013.

 

The aggregate production quota for marijuana should be increased in order to provide a continuous and uninterrupted supply of marijuana in support of DEA-registered researchers who are approved by the Federal Government to utilize marijuana in their research protocols.

This action does not represent any real change in DEA policy--it doesn't make it any easier for researchers to get the necessary approvals to study marijuana, for example.  But the need to increase the quota is a reflection of the fact that researchers have been facing comparably fewer hurdles in studying marijuana over the past few years.  (Of course, it is still far more difficult to study than it should be.  Marijuana is a relatively benign substance that almost everyone acknowledges at least demonstrates the potential for medical value--even if some believe we don't yet have enough evidence to say for sure.  It's hard to think of good reasons to make a substance like this any harder to study than a non-scheduled plant or chemical that shows promise as a medicine.  But, of course, the CSA does exactly that as part of marijuana's Scheule I status.)  

The Huffington Post has this article dicussing the proposal.  

 

May 7, 2014 in Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Wednesday, April 30, 2014

Congress rejects proposal to let VA doctors recommend medical marijuana

Tom Angell of marijuana majority alerted me to the news that Congress today rejected an amendment that would have let VA doctors recommend medical marijuana to patients in medical marijuana states.  The vote was 222 against, 195 in favor, with 14 not-voting.  

A few of the no votes caught my eye: Democrats Ann Kirkpatrick of Arizona (a medical marijuana state), Rick Larson of Washington (a legalization state), Sandy Levin of Michigan (a medical marijuana state) and last but not least DNC Chair Debbie Wasserman Schultz of Florida (a soon-to-be-medical marijuana state.)  

I imagine all four took votes that were both very much at odds with their districts generally and their core supporters in particular.  Of course, the Democratic party has quite a history of abandoning its base (usually to its own detriment in my opinion) in recent years, so I can't say I'm surprised to see there are still some tone-deaf Democrats in Congress on this issue.  

In fact, in many ways the vote is notworthy for coming as close as it did.  I believe the last House vote on a marijuana reform proposal was 163 to 262 in 2012 (though there may be a more recent vote I'm forgetting), so support for changing marijuana laws seems like it may be picking up.  

 

April 30, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, April 15, 2014

Holder is "cautiously optimistic" about legalization in Colorado and Washington

From the Huffington Post today, Attorney General Eric Holder makes some noteworthy commenst on marijuana legalization.  Holder said he was "cautiously optimistic" about the implementation of legalization in Colorado and Washington so far.  But, he noted, "we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."

Another interesting note, the article describes Holder's decision not to reschedule marijuana as a "political" one and quotes Holder as saying:

"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."

Though Holder's comments aren't much different from what the administration has said already, HuffPo's description of rescheduling as a "political" decision brings to mind the flexibility of the CSA.  The CSA purports to provide scientific criteria for classifying and regulating mind-altering substances.  But, as I've written  about elsewhere, the criteria are so open-ended that they don't do much to constrain administrative decision-making.  

Though I doubt Congress will take Holder up on the offer to work with the on rescheduling marijuana, if this issue does start to gain momentum in Washington, I hope that legislators will use the opportunity to rethink the CSA's classification scheme at a more fundamental level.  In its current incarnation, it is too malleable and incoherent to effectively guide administrators.    

April 15, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Tuesday, April 1, 2014

Interesting comment on marijuana legalization in notable new federal sentencing opinion

Doug blogged over at SL&P last Friday about a notable district court opinion on federal drug sentencing.  In the lengthy opinion, Judge James Browning makes an argument in defense of the federal drug sentencing guidelines (responding in large part to an opinion by Judge Gleeson taking the other side.)

Though the case involves methamphetamine, Judge Browning makes an interesting comment about marijuana legalization in a footnote (footnote 23):  

This observation seems particularly true in light of the DOJ’s recent policy announcement not to spend its resources going after the marijuana dealers and growers who are acting consistent with Colorado’s new marijuana laws.  This decision not to prosecute wealthy large-scale Anglo distributors in Colorado--on New Mexico’s northern border--calls into question whether the Court should mete out large sentences to poor backpackers from Mexico--on New Mexico’s southern border--bussing over bundles of marijuana. 

The bservation reminds me of concerns raised by Michelle Alexander last month about legalizaiton and racial disparity, arguing that white men are getting rich while black men stay in prison.   And, of course, it also echoes the concerns some Latin American leaders have also expressed about fighting a war to keep marijuana out of the United States when it is now legal to use and sell the substance in Colorado and Washington.  

 

April 1, 2014 in Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (2)