Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Saturday, March 28, 2015

Colorado files SCOTUS brief responding to neighbors' lawsuit (and other states provide amicus support)

As reported in this Denver Post piece, headlined "Colorado officials defend marijuana legalization at U.S. Supreme Court," Colorado state lawyers have now officially responded, four months after the initial complaint, to the lawsuit filed by Oklahoma and Nebraska about marijuana reform in the Mile High State. Here are the basics:

Arguing that two neighboring states are dangerously meddling with Colorado's marijuana laws, state Attorney General Cynthia Coffman on Friday urged the U.S. Supreme Court to reject a landmark lawsuit filed by Nebraska and Oklahoma over marijuana legalization. In a brief submitted in response to the lawsuit, Coffman wrote that Nebraska and Oklahoma "filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree."

The two states' lawsuit seeks to strike down Colorado's licensing of recreational marijuana stores. Nebraska and Oklahoma officials argue that the stores have caused a flood of marijuana into their states, stretching their law enforcement agencies thin and threatening their sovereignty.

But Coffman argued the lawsuit, if successful, would only worsen problems involving black-market marijuana in all three states. Colorado's regulations for marijuana stores "are designed to channel demand away from this black market and into a licensed and closely monitored retail system," she wrote. If the stores are closed, Colorado would be left with laws that legalize marijuana use but do not regulate its supply. "This is a recipe for more cross-border trafficking, not less," Coffman wrote.

Friday's brief is the first time Colorado officials have had to make a full-throated argument in favor of the state's marijuana legalization laws. In doing so, the brief spends several pages noting states' lengthy history of trying to regulate marijuana, "a product whose use is staggeringly widespread." Nearly half of all states now have laws legalizing recreational or medical use of marijuana, the brief states....

Nebraska and Oklahoma filed their lawsuit directly with the Supreme Court because it involves a dispute between states. Before the lawsuit gets a hearing, the nation's highest court must first decide whether to take up the case. There is no timeline for the decision.

The lawsuit does not challenge Colorado's laws for medical marijuana use or sales, nor does it seek to strike down laws legalizing recreational marijuana use and possession. Instead, Nebraska and Oklahoma argue in the lawsuit that Colorado's licensing of marijuana stores "has created a dangerous gap in the federal drug control system."...

In a statement Friday, Coffman — a Republican who opposed marijuana legalization — said she shares Nebraska and Oklahoma's concerns about illegal marijuana trafficking. Coffman's brief, though, pins the blame for that trafficking not on Colorado's marijuana stores but on "third parties who illegally divert marijuana across state lines." The brief points to the recent indictments of 32 people accused in a massive marijuana-smuggling ring as evidence that Colorado authorities are continuing to bust traffickers.

Colorado's laws received support Friday from Coffman's counterparts in Washington state and Oregon — where recreational marijuana is also legal. In a friend-of-the-court brief filed Friday in support of Colorado's laws, Washington and Oregon attorneys general argue that Colorado's laws don't hurt Nebraska and Oklahoma's abilities to enforce their own laws.

"Nebraska and Oklahoma retain the constitutional powers of every other sovereign State in the nation," the brief argues. "They can investigate and prosecute persons who violate their laws; neither is powerless to address marijuana within their borders."

The full 35-page brief filed by Colorado is available at this link.

I tentatively predict that the Supreme Court will refuse to hear this case, but I confidently predict that most everything about modern marijuana law and policy is pretty darn unpredictable.

Some prior related posts:

March 28, 2015 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, March 24, 2015

"2016 Will Be the Marijuana Election"

The title of this post is the headline of this lengthy Newsweek commentary authored by John Hudak of The Brookings Institute.  Here are excerpts:

In some ways marijuana policy is the perfect issue for a presidential campaign. It has far reaching consequences that both parties have reason to engage. Not to mention, it’s an edgy topic that media just can’t resist....

The Clinton, Bush and Obama administrations have responded to state marijuana policies in a variety of ways—from legal challenges to laissez-faire enforcement—but regardless, marijuana has garnered presidential attention. The issue will only become more pressing as more states decide to loosen their laws through decriminalization, medical expansion or outright legalization. Because marijuana is an issue that no president will be able to ignore, it is an issue no presidential candidate will be able to avoid....

Views diverge among Republicans. Some candidates, like Rand Paul, have come closer to embracing legalization—at least those efforts at the state level—in an effort to connect to younger and libertarian voters. Others have been far more open-minded about medical marijuana, either endorsing such systems or appearing comfortable with a hands off approach. Still others, like Jeb Bush and Marco Rubio, have taken a more hardline, war-on-drugs approach to the topic.

This diversity is a magnificent thing for Republicans and Republican voters. Among (prospective) candidates who, at times, seem to be policy clones, marijuana offers voters the ability to distinguish positions. As a result, candidates must have positions on the topic....

Marijuana policy will likely play a noticeable role in the general election, too. The issue has implications for states that truly matter in presidential campaigns. Recreational legalization is a reality in swing states like Colorado. Other marijuana measures may appear on ballots in which presidential candidates frequently look for votes (Florida, Maine) or campaign money (California).

In addition, medical marijuana policy — now the law in many places — means that swing state voters will be interested in what their next president will have to say on the topic. The issue engages a variety of issues that reach beyond marijuana itself, posing serious leadership questions for any prospective chief executive. It involves issues of law and regulatory enforcement, federal research policy, medical and pharmaceutical policy, state-federal relations, criminal justice, privacy, agriculture, commerce, small business policy and banking and financial regulations.

March 24, 2015 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Calling out political hypocrisy in discussion of marijuana reform

This recent commentary about marijuana reform from The National Memo, which is headlined "Half A Heart On Marijuana Better Than No Heart At All," makes a powerful point about what some politicians say about modern marijuana reform in light of their own admitted history with this drug. Here are excerpts from the piece which caught my attention:

Jeb Bush admits to having smoked pot in high school.  Actually, Bush’s dorm room at Phillips Academy Andover reportedly served as stoner central, where students would smoke hash to the strains of Steppenwolf’s “Magic Carpet Ride.”

Kids from modest backgrounds were being jailed at that time for doing far less.  Today, even a minor drug conviction bars one from many jobs, including joining the military. Yet Florida’s former Republican governor evidently doesn’t think his illegal behavior should disqualify him from serving as commander in chief.  Why would he?  The current holder of that job, President Barack Obama, also admitted to smoking pot, as did his predecessor, Jeb’s brother George W. Bush.

If Jeb owned up to the rank injustice and fully supported ending the war on marijuana, that might lighten the hypocrisy factor.  But Bush piously insists that he’s against legalizing marijuana.  If states want to do it, that’s OK, he says.  But that leaves the vast majority of Americans subject to arrest for smoking a joint after dinner.

Here’s an idea.  Why doesn’t Bush volunteer to do the time behind bars that youths from less powerful families were being sentenced to in the 1960s?  He could share a cell with Patrick Kennedy, the former liberal congressman from Rhode Island.

In the wee hours of May 4, 2006, Rep. Kennedy crashed his car into a barricade on Capitol Hill while under the influence of who knows how many controlled substances. He served in Congress for four more years, leaving at a time of his choosing.  Kennedy is now a staunch foe of legalizing marijuana, but, like Bush, has not offered to do his time. Given Kennedy’s decades of addiction, that would be no small piece of change.

Many argue that marijuana at high potency and in great quantity can be harmful.  That may be so, but the same is true of many things we can legally consume.  If states’ rights is the excuse for easing up on the ludicrous drug war, so be it. Any change that makes life less miserable for good people — and saves the taxpayers huge sums — is to be cheered. But oh, the waste!

March 24, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, March 17, 2015

Prez Obama talking about pot policies and politics again

As detailed in this new NPR story, headlined "Obama, 2016 Contenders Deal With Changing Attitudes On Marijuana," President Obama had occasion to talk about marijuana reform again in a new interview with Vice News. Here are the basics:

The divide between Republicans and Democrats on pot politics is narrowing, President Barack Obama said in an interview Monday.  "What I'm encouraged by is you're starting to see not just liberal Democrats but also some very conservative Republicans recognize this doesn't make sense including sort-of the libertarian wing of the Republican Party," the president said in an interview with Vice News.

During the wide-ranging interview, Obama noted that the American criminal justice system is "so heavily skewed toward cracking down on nonviolent drug offenders" and has has had a disproportionate impact on communities of color, as well as taking a huge financial toll on states.  But, Obama added, Republicans are beginning to see that cost.

"So we may be able to make some progress on the decriminalization side," Obama said. "At a certain point if enough states end up decriminalizing, then Congress may then reschedule marijuana."

Reclassifying marijuana as what's called a Schedule 2 drug, rather than a Schedule 1 drug is part of a bill being pushed by Kentucky Sen. Rand Paul, a Republican weighing a potential White House bid, as well as Democrats Cory Booker of New Jersey and Kirsten Gillibrand of New York.

The unlikely trio of lawmakers unveiled their bill, which would also remove federal prohibitions on medical marijuana in the more than a quarter of states where it's already legal, last week.  "We, as a society, are changing our opinions on restricting people's choices as far as medical treatments," Paul, who has been a vocal critic of the so-called war on drugs, said last week.  "There is every reason to try and give more ease to people in the states who want this — more freedom for states and individuals," Paul added.

Paul's emphasis on states' rights is in line with the Republican belief that the federal government should keep its hands out of local affairs.  But this is also a political sweet spot as a majority of Americans back more liberal marijuana laws....

"Members of Congress tend to be between five to 10 years behind the public on this issue," Dan Riffle, the director of federal policies for the Marijuana Policy Project, said in an interview.  "Medical marijuana is more popular in this country than baseball and apple pie, and it's certainly more popular than Congress.  What this bill means, and what it shows, is Congress is finally catching up to the public on this issue and recognizes that this is a slam dunk."

March 17, 2015 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Thursday, March 12, 2015

Will Patrick Kennedy and SAM come out in support of the CARERS Act?

Rotator-kennedy-updAs noted in prior posts here and here, the biggest news this week in the marijuana reform arena has been the introduction of a bipartisan federal medical marijuana reform bill by  Senators Rand Paul, Cory Booker and Kirsten Gillibrand, the CARERS Act.   The preamble to this bill expressly provides that its purposes are to "extend the principle of federalism to State drug policy, provide access to medical marijuana, and enable research into the medicinal properties of marijuana."

Notably, this statement of purposes and the overall structure of the CARERS Act would seem to be in harmony with the stated goals of the leading figure and group opposing significant marijuana reform, namely Patrick Kennedy and Smart Approaches to Marijuana.  Notably, on this page under a picture of Patrick Kennedy, SAM proclaims it is "acting in the best interests of public health and safety." In addition, Kennedy in this recent commentary piece stated that he favors "reforming our drug laws and emphasizing public health" and that we "should indeed reform broken laws that disproportionately harm ethnic and racial minorities and the poor."  

Similarly, this About page on the SAM website states that the organization is comprised of "medical doctors, lawmakers, treatment providers, preventionists, teachers, law enforcement officers and others who seek a middle road between incarceration and legalization [to provide a] commonsense, third-way approach to marijuana policy is based on reputable science and sound principles of public health and safety" (emphasis added).  In addition, this SAM information page about cannabis-based medicines states that SAM advocates for "rapid expansion of research into the components of the marijuana plant for delivery via non-smoked forms" and a special FDA reform that "allows seriously ill patients to obtain non-smoked components of marijuana."

Based on these various stated commitments by Patrick Kennedy and SAM, I certainty think it would be quite consistent with their advocacy or them to support expressly and vocally the CARERS Act. As I read the CARERS Act, it seeks to cautiously reform federal marijuana laws that are obviously "broken" because they fully preclude state lawmakers and administrators, researchers and doctors from being seriously involved and invested in reforms to state marijuana laws "based on reputable science and sound principles of public health and safety."   In addition, something like the CARERS Act is absolutely essential for rapid expansion of medical research in this arena.  Indeed, the powerful press conference introducing the CARERS Act had lawmakers, parents and patients all powerfully explaining why federal medical marijuana reform is essential to ensuring more needed medical research, and in order to fully ensure a serious and enduring commitment in both federal and state laws to marijuana policy "based on reputable science and sound principles of public health and safety."

Notably, there is not yet any mention of the CARERS Act on the SAM website, and I am inclined to guess that Patrick Kennedy and other SAM leaders are working on a formal response.  For the reasons outlined above, I sincerely hope that Patrick Kennedy and other SAM leaders soon become vocal proponents of the CARERS Act.  Historically, a problematic mix of politics and fear, not reputable science and sound principles of public health and safety, has dominated federal federal drug laws.  I hope that SAM will, through support of the CARERS Act, help ensure public that we start turning the corner and head on a sounder scientific and public health path in the months and years to come.

Prior related posts:

March 12, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, March 11, 2015

NY Times praises "A Sensible Bill on Medical Marijuana"

Because the New York Times editorial board has already called for the full legalization of marijuana, it is no big surprised that today brings this editorial in support of the bipartisan federal CARERS Act introduced yesterday by three senators (basics here). Here are excerpts from the editorial:

The bill makes a number of important changes to federal marijuana policies — and it deserves to be passed by Congress and enacted into law. Though this legislation would not repeal the broad and destructive federal ban on marijuana, it is a big step in the right direction....

The bill, sponsored by Cory Booker of New Jersey and Kirsten Gillibrand of New York, both Democrats, and Rand Paul, a Republican of Kentucky, would not legalize medical marijuana in all 50 states. But it would amend federal law to allow states to set their own medical marijuana policies and prevent federal law enforcement agencies from prosecuting patients, doctors and caregivers in those states. Currently 35 states and the District of Columbia permit some form of medical marijuana use. States would remain free to ban medical marijuana if they wished.

Other important provisions would allow banks and credit unions to provide financial services to marijuana­-related businesses that operate in accord with state law and protect them from federal prosecution or investigation. That is a crucial improvement over the current situation where marijuana business that is legal under state law is conducted in cash because financial institutions fear to step in.

The bill would also allow doctors in the Department of Veterans Affairs to prescribe medical marijuana to veterans, which they are currently prohibited from doing. And it would ease the overly strict procedures for obtaining marijuana for medical research and require the Food and Drug Administration to more readily allow the manufacture of marijuana for research....

Polls show a majority of Americans in favor of legalization of medical marijuana. It is long past time for Congress to recognize the need to change course.

The full text of the CARERS Act is available here.

March 11, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, March 10, 2015

Proposed federal CARERS Act includes rescheduling marijuana under CSA

I am watching the press conference (streamed here) with presentations by Senators Rand Paul, Cory Booker and Kirsten Gillibrand introducing their new federal medical marijuana reform bill, the CARERS Act.  Fascinating stuff.

Senator Booker started by noting veterans' interest in using medical marijuana, Senator Paul spoke of the need for more research and banking problems for state-legal marijuana business, and Senator Gillibrand was the closer by stressing the need for families to have access to high-CBC medicines for children suffering from seizure disorders.

Adding to the power of the press conference is a set of testimonials from a mom eager to have CBC treatments for her daughter (who had a small seizure during the press conference!), and an older woman with MS eager to have access to marijuana to help her sleep.  Senator Paul followed up by introducing a father of one of his staffers with MS, who testified from a wheelchair.   Senator Booker then introduced a 35-year-old veteran who complained about been deemed a criminal for his medical marijuana use by a country he fought for over six years.   Notably, after all the white users/patients advocated for reform, Senator Booker introduced an African-American business owner talking about the problems with having to run a medical marijuana business without access to banking services.

This Drug Policy Alliance press release summarizes what is in the CARERS Act: 

The Compassionate Access, Research Expansion and Respect States - CARERS - Act is the first-ever bill in the U.S. Senate to legalize marijuana for medical use and the most comprehensive medical marijuana bill ever introduced in Congress. The CARERS Act will do the following:

  • Allow states to legalize marijuana for medical use without federal interference

  • Permit interstate commerce in cannabidiol (CBD) oils

  • Reschedule marijuana to schedule II

  • Allow banks to provide checking accounts and other financial services to marijuana dispensaries

  • Allow Veterans Administration physicians to recommend medical marijuana to veterans

  • Eliminate barriers to medical marijuana research.

March 10, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, March 9, 2015

Bipartisan federal medical marijuana bill to be introduced Tuesday

As reported in this new Washington Post entry, headlined "In a first, senators plan to introduce federal medical marijuana bill," a trio of notable Senators have interesting plans for mid-day Tuesday:

In what advocates describe as an historic first, a trio of senators plan to unveil a federal medical marijuana bill Tuesday. The bill, to be introduced by Senators Rand Paul (R-Ky.), Cory Booker (D-N.J.), and Kirsten Gillibrand (D-N.Y.), would end the federal ban on medical marijuana.

The Compassionate Access, Research Expansion and Respect States (CARERS) Act would “allow patients, doctors and businesses in states that have already passed medical marijuana laws to participate in those programs without fear of federal prosecution,” according to a joint statement from the senators’ offices. The bill will also “make overdue reforms to ensure patients – including veterans receiving care from VA facilities in states with medical marijuana programs – access the care they need.” The proposal will be unveiled at a 12:30 p.m. press conference on Tuesday, which will be streamed live here. Patients, their families and advocates will join the senators at the press conference.

The announcement was met with praise by advocates. “This is a significant step forward when it comes to reforming marijuana laws at the federal level,” Dan Riffle, director of federal policies for the Marijuana Policy Project, said in a statement. “It’s long past time to end the federal ban,” said Michael Collins, policy manager for the Drug Policy Alliance, said in a statement. Both describe the introduction of the bill as a first for the Senate....

In December, Congress for the first time in roughly a decade of trying approved an amendment that bars the Justice Department from using its funds to prevent states from implementing their medical marijuana laws — a significant victory for proponents of the practice.

Potential Republican presidential candidates Rand, Sen. Ted Cruz (R-Texas) and former Florida Gov. Jeb Bush (R) have all said they support states’ rights to legalize pot, though they themselves disagree with the policy.

March 9, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, March 6, 2015

Spotlighting political realities for GOP leaders looking to 2016

Pew-marijuana-chartRegular readers have likely already figured out that I am already obsessed with how marijuana reform politics are going to play out in the run-up to the big 2016 election.  Consequently, I found notable and blogworthy this effective new Forbes commentary by Jacob Sullum on this topic, headlined "Ted Cruz's Cannabis Conversion Reflects The Political Prudence of Marijuana Federalism." Here are excerpts:

At the Conservative Political Action Conference (CPAC) last week, Ted Cruz responded to a question about marijuana legalization in Colorado by endorsing a federalist approach to the issue. “I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called ‘the laboratories of democracy,’” the Texas senator said. “If the citizens of Colorado decide they want to go down that road, that’s their prerogative. I personally don’t agree with it, but that’s their right.”

Those remarks seemed to contradict the position Cruz had taken a year before, when he criticized the Obama administration for failing to aggressively enforce the federal ban on marijuana in states that have legalized the drug for medical or recreational use. Speaking at a Texas Public Policy Foundation conference in January 2014, he described the Justice Department’s prosecutorial restraint, which is designed to respect state policy choices, as an abuse of executive power.

Cruz’s apparent turnaround reflects a political reality that he and other candidates for the Republican presidential nomination will have to confront. Although most members of their party still support pot prohibition, most Americans don’t, and even within the GOP the staunchest drug warriors are dying off, while Republicans in their 20s and 30s strongly favor legalization. As with gay marriage, Republican politicians face a generational shift that will leave them struggling to placate social conservatives without alienating younger, more tolerant voters. Cruz’s calibration—I don’t personally favor legalization, but as a conservative constitutionalist I think the issue should be left to the states—is the easiest way to strike that balance....

After Colorado and Washington voters approved marijuana legalization in 2012, a CBS News survey found that only 27 percent of Republicans agreed with that policy. Yet 65 percent of Republicans thought “laws regarding whether the use of marijuana is legal or not should be…left to each individual state government to decide.”

Marijuana federalism also appeals to Republicans who support legalization, and there are more of those than there used to be, although they still represent a minority. According to surveys conducted last year, roughly a third of Republicans think pot should be legal. But the proportion is dramatically higher among young Republicans. A Pew Research Center survey conducted in February 2014 found that 63 percent of Republicans born between 1981 and 1996 favored legalization.

The outlook for Republican prohibitionists seems even bleaker when you look at survey data for the general population. Several recent surveys, including Pew’s, the Gallup Poll and the General Social Survey, indicate that most Americans favor legalization. Last year’s General Social Survey put support for legalization at 52 percent, 10 points higher than in 2012. It seems likely that the upward trend will continue, since support is inversely associated with age. According to Gallup’s 2013 results, Americans 65 and older were the only age group in which a majority still opposed legalization....

Since marijuana legalization will be on state ballots next year and will continue to be a source of friction with the federal government, the candidates who have not taken a position yet probably will be pressed to do so as the 2016 presidential campaign heats up. If they are smart, they will parrot Cruz, Perry, Bush, and Paul. Marijuana federalism is a rare opportunity for politicians to be prudent, principled, and popular.

Some prior related posts:

March 6, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Political perspective on reforms, Polling data and results | Permalink | Comments (0)

Thursday, March 5, 2015

Might some 2016 presidential candidates start advocating for marijuana reforms?

Images (1)The question in the title of this post is prompted by this notable new article emerging from inside the Beltway headlined "Marijuana gets lift as 2016 presidential race takes shape." Here are excerpts:

Early signs indicate that marijuana entrepreneurs may have little to worry about as the 2016 presidential campaign takes shape, with some top-rung hopefuls warming to the idea of letting states decide whether to legalize recreational pot.

On the Republican side, those potential candidates include former Florida Gov. Jeb Bush and Texas Sen. Ted Cruz, both of whom have admitted to using the drug during their younger years, and Kentucky Sen. Rand Paul, who has said he was no “choir boy” in college. On the Democratic side, former Secretary of State Hillary Clinton says she never experimented with marijuana but appears open to the idea of allowing states to legalize it.

It’s all good news for Tim Thompson, who commits a felony under federal law every time he sells marijuana to his customers at Altitude, the retail pot shop he opened last July in Prosser, Wash. With Thompson’s store legal under Washington state law, he said it would be a mistake for anyone running for president in 2016 to try to shut down his operation. “They’d be alienating themselves from a large majority of people who are for legalization if they took a hard line against it,” Thompson said.

While the push for legalization has gained great momentum in the past two years, the next president will have to decide whether to enforce the federal law that bans marijuana or follow the Obama administration’s lead in allowing states to tax and regulate it, as long as they do a good job policing themselves.

Legalization emerged as a big winner at last week’s Conservative Political Action Conference in Maryland, where nearly two-thirds of the 3,000 activists who voted in a straw poll said it should be legal for either recreational or medical purposes. Nationally, the most most recent Gallup poll, conducted in October, found 51 percent of Americans backing legalization. But less than a third of conservatives said it should be legal.

The growing popularity of legalization was not lost on the parade of politicians at CPAC. “Well, I was told Colorado provided the brownies here today,” Cruz told his audience, a reference to the first state that allowed recreational pot sales in January of last year.

At the gathering, Paul, Bush and Cruz all said that legalization should be left up to the states, responding to questions from talk show host Sean Hannity of the Fox News Channel. Clinton disclosed her views in June on CNN.

Tom Angell, chairman of the pro-legalization group Marijuana Majority, based in Washington, D.C., said it’s obvious that presidential candidates are paying attention to polls. “Letting states set their own marijuana laws without federal interference is quickly becoming the default position among ambitious politicians in both parties. . . . When voters lead, politicians have to follow or get left behind,” he said.

To be sure, not all of the likely contenders in the top tier are jumping on the bandwagon. Wisconsin Republican Gov. Scott Walker, a crowd-pleaser at CPAC who’s scoring high in early polls, is among those who have consistently opposed legalization. And others say it’s far too early to draw any conclusions on how the issue would fare in 2016.

Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana, said that with the general election still 20 months away, it’s hardly a surprise that candidates are using what he called “the states’ rights card” as often as possible. But he noted that even George W. Bush, as a Republican presidential candidate in 1999, said states should have the right to decide whether to legalize medical marijuana. As president, Bush backed the federal law outlawing marijuana. “I doubt that any of these candidates will want to run as the pro-marijuana candidate,” Sabet said. “Even Rand Paul stopped short of endorsing legalization, and he is the most libertarian of the bunch.”

Paul, who won the straw poll Saturday at CPAC for the third consecutive year, had plenty of backing from pro-marijuana activists at the conference. Many of his supporters said they believe Paul would move to legalize marijuana if he won the presidency. “He’s more receptive to it than any other candidate,” said Dave Hargitt of Fayetteville, N.C., president of the North Carolina chapter of Republicans Against Marijuana Prohibition, a group that had a booth at the exhibit hall at CPAC. “God gave us all free will, and that’s free will to make good decisions or bad decisions – it’s not the government’s place to tell me what I can and cannot do.”

Paul, who backs reduced penalties for drug offenses, appears ready to make marijuana a campaign issue. Last week at the political conference, he accused Bush of hypocrisy for opposing medical marijuana as governor even though he had smoked pot as a prep student.

John Baucum, president of the Houston Young Republicans, said that’s a message that resonates with the large group of voters under 40. “First of all, I think he’s somebody who can win,” Baucum said of Paul. “We don’t see a lot of the candidates reaching out for that demographic, except for Rand.”...

Thompson, co-owner of the Washington state pot store, said it would be a relief to not have to worry about the federal law prohibiting marijuana after Obama leaves office in January 2017. “Having it controlled by the state is a good idea,” he said. “In this area – and it’s a conservative area – most people like it when the federal government has less control of what we do in our day-to-day lives, especially something like this. It’s basically adults just trying to enjoy themselves.”

Some prior related posts:

March 5, 2015 in Current Affairs, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Sherriffs now suing in an effort to shut down Colorado's recreational marijuana regime

This USA Today report, headlined "Sheriffs sue Colorado over legal marijuana," highlights that yet more notable folks continue to press in court lawsuits seeking to end state experimentation with marijuana reforms. Here are the details:

Sheriffs from Colorado and neighboring states Kansas and Nebraska say in a lawsuit to be filed Thursday that Colorado's marijuana law creates a "crisis of conscience" by pitting the state law against the Constitution and puts an economic burden on other states.

The lawsuit asks a federal court in Denver to strike down Colorado's Amendment 64 that legalized the sale of recreational marijuana and to close the state's more than 330 licensed marijuana stores.

Lead plaintiff, Larimer County, Colo., Sheriff Justin Smith, calls the case a "constitutional showdown." Each day, he says, he must decide whether to violate the Colorado Constitution or the U.S. Constitution. Colorado legalized recreational marijuana sales Jan. 1, 2014, but marijuana remains illegal at the federal level. Colorado is "asking every peace officer to violate their oath," Smith said. "What we're being forced to do ... makes me ineligible for office. Which constitution are we supposed to uphold?"

The out-of-state sheriffs say the flow of Colorado's legal marijuana across the border has increased drug arrests, overburdened police and courts and cost them money in overtime. Felony drug arrests in the town of Chappell in Deuel County, Neb., 7 miles north of the Colorado border, jumped 400% over three years, a USA TODAY report tracking the flow of marijuana from Colorado into small towns across Nebraska found. Deuel County Sheriff Adam Hayward is one of the plaintiffs.

Police officers monitoring the flow of marijuana outside Colorado say volumes have risen annually. The Colorado-based Rocky Mountain High Intensity Drug Trafficking Area task force is still compiling 2014 numbers but expects to see the trend continue, director Tom Gorman said. He said non-residents often strike backdoor deals with legal growers to buy more than they are allowed, then illegally drive, fly or mail the marijuana across state lines. The lawsuit invokes the federal government's right to regulate drugs and interstate commerce and argues that Colorado's decision to legalize marijuana hurt communities on the other side of the state lines. Attorneys general of Nebraska and Oklahoma filed a similar lawsuit late last year....

Supporters of legalization criticize such lawsuits as last-ditch attempts by conservative politicians to derail states' movement toward marijuana legalization. Speaking about the Nebraska-Oklahoma lawsuit in December, Mason Tvert of the Marijuana Policy Project said police should focus their attention on serious crimes and leave alone people who choose to use marijuana. "These guys are on the wrong side of history," Tvert said.

I fully understand why various law enforcement officials, who seemingly enjoy and benefit from waging a drug war without many limitations or uncertainties, are struggling to deal with the new legal regimes in place in Colorado and other marijuana reform jurisdictions. Indeed, I am especially sympathetic to those sheriffs in non-reform jurisdictions which border reform regions because they have to deal with unique spill-over challenges. But this is a problem that has been long endured by localities with lots of other potential dangerous but legal products like alcohol and guns, and I find a bit troublesome that in this context law enforcement officials are so quick to turn to make novel claims in courts to vent their frustrations with what is really just a small pull-back in the modern drug war.

March 5, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, March 4, 2015

Is there any solid data on impact of 2009 Ogden medical marijuana memo?

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This week in my marijuana seminar we will be watching and discussing the terrific (though already dated) documentary "Code of the West" about medical marijuana reforms in Montana.  Among the many stories effectively documented by this movie is the important reality that, while Montana enacted via voter initiative medical marijuana reforms in 2004, the medical marijuana industry in the state only became active and prominent after the issuance of the 2009 Ogden Memo. This memo from the Obama Administration's Justice Department stated that the federal government would not prosecute "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

In addition to the coverage of this story in Montana in this great documentary, I have seen a number of anecdotal reports about how the medical marijuana industry kicked into high gear in many western states as a result of the 2009 Ogden Memo, especially states like California, Colorado and Washington. But, to my knowledge, nobody has yet done any systematic research on the impact of the Ogden Memo, in individual states or nationwide, on the number of state-compliant medical marijuana dispensaries or the number of persons working in and around the medical marijuana industry or the number of persons registered for or regularly obtaining marijuana in conjunction with a doctor's recommendation.

I am busy trying to finish an article complaining about the lack of rigorous social science research surrounding the real impact of state-level marijuana reforms, and I am especially intrigued and troubled by how little systematic data I can find concerning the medical marijuana industry and users. If anyone knows of any significant recent data collections or other research on these fronts, please let me know.

March 4, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington

This AP story reports on the notable mixed verdict in a high-profile federal prosecution of a group of defendants in Washington state who claimed they were growing marijuana only for medical purposes.  Here are the details:

Three people were found guilty Tuesday of growing marijuana, but they also were exonerated of more serious charges in a widely-watched federal drug case in a state where medical and recreational marijuana is legal.

The three remaining defendants of the so-called Kettle Falls Five were all found guilty of growing marijuana. But a jury found them not guilty of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.

U.S. District Court Judge Thomas Rice set sentencing for June 10.

The defendants were Rhonda Firestack-Harvey, her son Rolland Gregg and his wife, Michelle Gregg. Firestack-Harvey wiped away tears as she declared victory in the case. "The truth comes out," she said, noting that the defendants were growing marijuana for medical purposes and had cards permitting that use. "We would have loved to be exonerated of all charges."

However, there was no doubt that federal drug agents found marijuana plants growing on their property near Kettle Falls, she said.

Federal prosecutors did not speak with reporters after the verdict, which followed a full day of deliberations by the jury. Prosecutors asked that the three be taken into custody until sentencing, but Rice declined.

"It's a victory, but it's bittersweet," said Jeff Niesen, an attorney for Firestack-Harvey. "They've been convicted of a federal crime." But while the tougher charges carried sentences of a decade in prison, growing marijuana should bring a much lower sentence, Niesen said.

On Monday, attorneys for the defendants asked jurors to throw out what he described as an overzealous and overreaching case. Attorney Phil Tefleyan criticized the government's prosecution of the three, who contend they were growing medical marijuana for personal use in a case that has drawn wide attention over the government's willingness to prosecute marijuana growers. "They roped in this innocent family," Tefleyan told jurors.

Assistant U.S. Attorney Earl Hicks told jurors Monday that Washington state's stance on marijuana doesn't matter. He says the question for the jury is, "Is it legal under federal law?"

The defendants contend they didn't distribute the marijuana. But they were barred from telling jurors their claim that they grew the marijuana only for personal medical use. That issue can be raised during sentencing. Tefleyan said the government could not point to a single sale of the drug by the family. He said the evidence seized by drug enforcement agents during a raid in August 2012 — 4 pounds of marijuana and about $700 in cash — didn't support the conclusion the family was dealing.

The government has argued the family grew the plants in violation of federal law. "I don't believe there's any question in this case that we're talking about the manufacture of marijuana," Hicks told the jury.

Tefleyan placed blame for those plants on Jason Zucker, a former defendant who cut a plea deal last week, just before the trial started. Zucker, 39, testified Friday that he fronted $10,000 in costs to get the operation up and running. Zucker's plea deal called for a 16-month sentence....

Larry Harvey, 71, was recently dismissed from the case after being diagnosed with terminal pancreatic cancer in December.

I believe that these defendants' acquittal on gun charges means that that they are not subject to any mandatory minimum sentencing terms, and the judge's decision to allow them to be free awaiting sentencing suggests to me that they will likely not receive significant (or perhaps any) prison time for these offenses. In addition, these defendants might have various grounds for appealing to the Ninth Circuit (although they many not want to bother if they get relatively lenient sentencing terms).

Prior related posts:

March 4, 2015 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Tuesday, March 3, 2015

"Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"

The title of this post is the title of this notable new UCLA Law Review comment by Jordan Cunnings. Here is its abstract:

Marijuana is being decriminalized in many states and localities throughout the United States. While recreational use of marijuana is legal in only a handful of states, in many other areas it has become a type of pseudo-violation with such low criminal penalties that defendants may be issued just a citation or ticket and are often not entitled to the assistance of a public defender. While low-level marijuana offenses have fewer meaningful consequences within the criminal justice system in these jurisdictions, these offenses continue to create serious immigration consequences for noncitizen offenders. The Immigration and Nationality Act defines “conviction” in such a way that even civil infractions with very low penalties count as drug convictions that make lawful permanent residents deportable.

The combination of lowered criminal penalties for marijuana offenses and severe resulting immigration consequences causes significant problems for noncitizens. First, as the penalties for marijuana offenses are lowered at the state and local levels, a defendant is less likely to have a right to appointment of a public defender when charged with possession of a small amount of marijuana. This situation implicates potential violations of the Sixth Amendment right to effective assistance of counsel in criminal proceedings, which has been held to cover affirmative advice on the immigration consequences of a criminal charge. Additionally, even with the assistance of a public defender, individuals may still be unable to avoid the harsh immigration consequences that often result from marijuana offenses. These harsh consequences violate our society’s understanding of proportionality of punishment in criminal law. Even though immigration law is traditionally insulated from proportionality considerations because of the plenary power doctrine, deportation for low-level marijuana offenses provides one example of why this doctrine should be reconsidered.

March 3, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)

"Mitch McConnell’s Love Affair with Hemp"

The title of this post is the headline of this lengthy new Politico article, which carries this sub-headline: "How the Kentucky senator picked a fight with the DEA and became one of Washington’s top drug policy reformers." Here is how the story gets started:

Last May, a shipment of 250 pounds of hemp seeds left Italy destined for Kentucky as part of a pilot project made legal by the 2014 federal farm bill.  Kentucky farmers had long hoped for a crop that could fill the void left by the decline of tobacco, and many thought that industrial hemp, which is used in a vast array of products, could be that crop.

The hemp seeds cleared customs in Chicago, but when the cargo landed at the UPS wing of Louisville International Airport, the Drug Enforcement Administration seized it, arguing that importing hemp seeds required an import permit, which could take six months to process.  If farmers couldn’t get those seeds into the ground by June 1, the entire first year of the hemp pilot program would be dashed.

The DEA would have succeeded in blocking the seeds from reaching Kentucky farmers and university researchers but for the efforts of the state’s agricultural commissioner, who sued the agency and, most improbably, Mitch McConnell.

McConnell — then the Senate’s minority leader — worked furiously to free the seeds from the DEA’s clutches and continued the pro-hemp drumbeat throughout 2014, as he campaigned for reelection.  This year, as Senate majority leader, he’s taken a further step by co-sponsoring the Industrial Hemp Farming Act of 2015.  While the farm bill carved out an exception to allow hemp cultivation in Kentucky, the 2015 bill would remove hemp entirely from the list of drugs strictly regulated by the Controlled Substances Act.  It would, in essence, legalize hemp production in the United States.

“We are laying the groundwork for a new commodity market for Kentucky farmers,” McConnell told me.  “And by exploring innovative ways to use industrial hemp to benefit a variety of Kentucky industries, the pilot programs could help boost our state’s economy and lead to future jobs. … I look forward to seeing industrial hemp prosper in the Commonwealth.”

Yes, Mitch McConnell said that.  About hemp.

To grasp how McConnell — the quintessential establishment Republican — came to champion industrial hemp, you must first understand the economics and internal politics of Kentucky, as well as McConnell’s relationship to Kentucky’s junior senator, Rand Paul.  It’s also helpful to know that close to $500 million worth of hemp products produced by Canada and other countries is already sold in the United States through such stores as Whole Foods.  McConnell’s move also has potential ramifications beyond the marketplace, providing a credible threat to the Controlled Substances Act since it was signed into law by President Richard Nixon in 1970.

“The fact that Majority Leader McConnell is a co-sponsor of a hemp bill shows how fast the politics are changing on this issue,” said Bill Piper of the Drug Policy Alliance, a nonprofit group that favors reform.

March 3, 2015 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Friday, February 27, 2015

Learning so much already even in first few hours of first Tribal Marijuana Conference

ImagesI feel extraordinarily fortunate to have been invited to participate the nation’s first ever Tribal Marijuana Conference taking place as I write this post from a huge ballroom at the Tulalip Resort Casino, just North of Seattle.   This post from Canna Law Blog discusses the basics, and this agenda highlights all the informed speakers in the mix who are already making this an amazing event in which I am learning so much.  

For example, right now on the podium now are Thomas Carr, the Boulder City Attorney, and Pete Holmes, Seattle City Attorney, are providing an extraordinary set of insights about local enforcement of local laws in the first two recreational marijuana states. Carr also reported that, because Dunkin' Donuts does not have a store in Boulder, it is easier to get marijuana (and munchies) in Boulder than Dunkin' Donuts (and Munchkins) in some parts of Colorado. Of course, that should not worry public health advocates too much, given that there is good reason to believe Munchkins are perhaps much more addictive and harmful than marijuana.

1403002903506This local article, headlined "Indian tribes looks to marijuana as new moneymaker," highlights some reasons why there are hundreds of persons at this event:

After making hundreds of billions of dollars running casinos, American Indian tribes are getting a good whiff of another potential moneymaker: marijuana.

The first Tribal Marijuana Conference is set for Friday on the Tulalip Indian Reservation in Washington state as Indian Country gets ready to capitalize on the nation’s expanding pot industry. Organizers said representatives from more than 50 tribes in at least 20 states have registered, with total attendance expected to surpass 300....

Robert Odawi Porter, one of the conference organizers and the former president of the Seneca Nation of Indians in New York, said tribes have “a tremendous economic diversification opportunity to consider” with marijuana commerce. He said the event would bring together “trailblazers” in the industry who will help tribal leaders understand the complex issues involved.

While it’s unknown how many tribes ultimately will seek to take advantage of the change, one analyst warned that any tribe expecting to hit the jackpot might be in for a surprise, particularly as the supply of legal pot in the U.S. increases. “People keep forgetting it’s a competitive market,” said Mark Kleiman, a professor of public policy at the University of California, Los Angeles, who served as Washington state’s top pot consultant. “And it’s cheap to grow.”

In Washington state, where retail pot stores opened in July, Kleiman said pot growers who sold their product for $21 a gram only a few months ago are now getting $4 a gram. “The price of marijuana is the price of illegality,” he said.

But the issue is generating plenty of buzz among tribal leaders. On Monday, tribal officials at the National Congress of American Indians winter meeting in Washington, D.C., attended a closed breakout session with two U.S. attorneys to discuss the implications of legalized marijuana....

Even though the talks are in the early stages, many tribal officials are pleased that the Obama administration is giving them the power to proceed. “The position of the administration is a strong indication of their commitment and acknowledgment of tribes’ sovereignty, jurisdiction and governmental authority,” said W. Ron Allen, chairman and CEO of the Jamestown S’Klallam Tribe in Washington state.

Marijuana is a divisive issue among tribes, with many tribal officials worried about high rates of drug addiction among American Indians. Last year, the Yakama Nation decided to ban marijuana from its reservation in south central Washington state. The Tulalip Tribe, located just north of Seattle, voted to work with the Bureau of Indian Affairs and the Department of Justice to try to legalize medical marijuana.

Legalization opponents fear that more tribes will want to begin selling marijuana without understanding the risks. “I worry about this being a big expansion and I worry that the potential consequences – health, safety and legal – have not been properly communicated to them,” said Kevin Sabet, president of Smart Approaches to Marijuana, an anti-legalization group.

Regardless of what tribes decide to do, he warned that the situation could change with the election of a new president in 2016. “I don’t see this ending well for anyone, especially if a new administration decides to enforce federal law,” Sabet said. “The thing people should remember is that marijuana is still illegal – on tribal lands and otherwise – even if the law isn’t being equally enforced.”

Seattle City Attorney Pete Holmes, another of the planned speakers at Friday’s conference, said allowing tribes to legalize marijuana will move pot sales “into the light of day.” And he predicted there would be little change in the amount of pot sold on reservations. “Here’s the worst-case scenario: that a tribe just decides they want to be the epicenter of marijuana production, they want to undercut the state system, they want to be a mecca, if you will,” Holmes said. “I’ve heard no tribe say that. . . . We seem to be able to co-exist quite nicely.”

Kleiman said the tax issue would be one of the toughest to sort out as tribes ponder whether to join the industry. “It’s a big deal for people who are trying to make sense of marijuana policy, because if the tribes are exempt from state law, then the states can’t actually tax and regulate,” Kleiman said. “That would be catastrophic. It’s not a big deal for the tribes because there’s no money in it.”

February 27, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, February 26, 2015

Fascinating (federal? federalism?) fracas unfolding over DC marijuana reform inside the Beltway

Images (4)As reported in this local article, headlined "Washington DC Law Legalizing Marijuana Goes Into Effect," an interesting fight is developing among politicians over marijuana reform law and practices in the District of Columbia.  Here are the basics:

Washington Mayor Muriel Bowser defied congressional Republicans and implemented D.C.’s new local law allowing its residents to smoke marijuana. In implementing the new pot laws Thursday, Bowser has rebuffed two influential House Republicans who’d warned her that she’d be breaking federal law — and risking retribution.

“We would encourage the Congress to not be so concerned with overturning what 7-in-10 voters said should be the law in the District of Columbia,” Bowser said at a news conference Wednesday afternoon.

Bowser and Washington police implemented a measure approved by D.C. voters in November allowing Washington residents to possess up to two ounces of pot. The allowance applies only to those over 21. In addition, D.C. residents can grow up to six pot plants in their own yards. Buying and selling pot are still illegal, as is smoking in public places. But people can transfer up to one ounce to another person — just not for money.

House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah, and Rep. Mark Meadows, R-North Carolina, said in a letter Tuesday that the city would be violating a spate of federal laws if it went forward with Bowser’s plan to implement the new pro-pot measure.

“We strongly suggest you reconsider your position,” the two wrote to Bowser — while, in a thinly veiled suggestion that there would be consequences for ignoring them, pointing to House rules that give Chaffetz’s panel broad investigative authority.

Bowser, though, brushed Chaffetz and Meadows back on Wednesday, saying they should worry about bigger problems — like funding the Department of Homeland Security, which is set to shut down at week’s end if Congress doesn’t act.

And she took a shot at Republicans who have suggested she could wind up in jail for breaking federal law — even though Congress has no powers to prosecute her. “A lot of reasonable people have a different view of this issue,” she said. “I have a lot of things to do here in the District of Columbia, and me being in jail wouldn’t be a good thing.”

It’s the latest example of the strain between a heavily Democratic city that is ultimately controlled by a Republican-dominated Congress — which couldn’t stop similar marijuana legalization pushes in Colorado and Washington state, but is trying to use its power of the purse to do so this time.

Chaffetz and Meadows pointed to a provision included in a massive spending bill approved by Congress in December that prohibited Washington from legalizing marijuana, or cutting any drug possession penalties.

Bowser has insisted that the district’s measure was enacted before that December vote. But the two Republicans noted that any bill in Washington can’t become local law until it’s been through a 30-day layover period before Congress. Until that happens, they said, the measure can’t be considered enacted — which in this case means it “was not enacted prior to the language in the continuing resolution preventing it from moving forward.”

“If you decide to move forward tomorrow with the legalization of marijuana in the District, you will be doing so in knowing and willful violation of the law,” Chaffetz and Meadows wrote.

February 26, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, February 13, 2015

Is a federal judge about to declare unconstitutional federal marijuana law? And then what?

The questions in the title of this post are prompted by this Reuters report about an on-going federal criminal trial in California. Here is why:

A federal judge hearing the case of nine men accused of illegally growing marijuana in California said Wednesday she was taking very seriously arguments by their attorneys that the federal government has improperly classified the drug as among the most dangerous, and should throw the charges out.

Judge Kimberly J. Mueller said she would rule within 30 days on the request, which comes amid looser enforcement of U.S. marijuana laws, including moves to legalize its recreational use in Washington state, Colorado, Oregon and Alaska.

"If I were persuaded by the defense's argument, if I bought their argument, what would you lose here?" she asked prosecutors during closing arguments on the motion to dismiss the cases against the men.

The men were charged in 2011 with growing marijuana on private and federal land in the Shasta-Trinity National Forest in Northern California near the city of Redding. If convicted, they face up to life imprisonment and a $10 million fine, plus forfeiture of property and weapons.

In their case before Mueller in U.S. District Court in Sacramento, defense lawyers have argued that U.S. law classifying pot as a Schedule One drug, which means it has no medical use and is among the most dangerous, is unconstitutional, given that 23 states have legalized the drug for medical use.

Lawyer Zenia Gilg, who represented defense attorneys for all of the men during closing arguments, pointed to Congress' recent decision to ban the Department of Justice from interfering in states' implementation of their medical marijuana laws as evidence of her contention that the drug's classification as Schedule One should be overturned. "It's impossible to say that there is no accepted medical use," said Gilg, who has argued that her client was growing pot for medical use.

But Assistant U.S. Attorney Gregory Broderick said that it was up to Congress to change the law, not the court. He said that too few doctors believed that marijuana had medical uses for the drug's definition to change under the law. "We're not saying that this is the most dangerous drug in the world," Broderick said. "All we're saying is that the evidence is such that reasonable people could disagree."

Notably, this new Bloomberg article, headlined "Grower’s Case Rivets Investors Seeking Pot of Gold," suggests that those interested in investing in the marijuana industry think that merely "the fact that the judge has agreed to consider the issue is an enormously significant event.” Obviously, this event becomes even more significant if (when?) a federal judge declares unconstitutional the placement of marijuana on Schedule I under the Controlled Substances Act.

February 13, 2015 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

Saturday, February 7, 2015

Are hundreds of tribal communities going to enter the marijuana business?

Images (1)The question in the title of this post is prompted by this recent Huffington Post piece headlined "More Than 100 Native American Tribes Consider Growing Marijuana." Here are excerpts:

More than 100 Native American tribes have reached out to FoxBarry Farms, a management firm building the nation's first marijuana facility on tribal land, over the past month to express interest in the cannabis industry.

FoxBarry CEO Barry Brautman, whose company also works with tribes to build and operate casinos, told The Huffington Post there has been a surge of interest since the Department of Justice's announcement late last year that tribes are free to grow and sell marijuana on their lands as long as they adhere to specific guidelines. "I really underestimated," Brautman said. "So many tribes are wanting to do this right now."

Brautman, along with the Denver-based United Cannabis Corp., recently inked a contract to build a giant medical marijuana growing operation on the Pinoleville Pomo Nation's ranch in Northern California. The $10 million, 2.5-acre facility will include spaces for cultivating, processing and selling products under the United Cannabis brand. Brautman said the operation plans to hire 50 to 100 employees, with preference to tribe members.

As more states legalize marijuana for both medical and recreational purposes, the burgeoning industry may provide an economic boon for tribes across the country, Brautman explained. He's currently in talks with three other California-based tribes, as well as groups in seven other states. He said he hopes to finalize new deals every few weeks in the coming months.

"Tribes want what any government wants for its people, and that's financial independence," Brautman said. "They want to earn their own money, provide education, health care and housing. This new industry allows them to be more economically independent."

A U.S. Department of Justice memo issued in December states that Native Americans are free to grow and sell marijuana as long as they adhere to the same federal guidelines that govern state-legal operations. While marijuana remains illegal under federal law, 23 states have legalized cannabis for medicinal purposes, and four states and the District of Columbia have laws that permit recreational use....

Following the Justice Department memo, some speculated that tribes would be reluctant to pursue marijuana-related business ventures. "Henceforward, Indian nations are exempt from the federal government’s rules on marijuana," reads a Daily Beast article from December titled, "Tribes to U.S. Government: Take Your Weed and Shove It" It continues: "But the feds missed an important point when they failed to consult with the 568 recognized tribes in America: they didn’t want to be."

Tribes that express hesitance argue that the federal memo's vague wording may leave them vulnerable to prosecution. "It’s like the medical marijuana clinics here in California," Ron Andrade, director of the Los Angeles City/County Native American Indian Commission, told LA Weekly, referring to the hundreds of medical marijuana operations that have been targeted by federal prosecutors throughout the state. “Yeah, you can have one, but we’ll still arrest you.”

FoxBarry, however, isn't the only company being contacted by tribes eager to pursue opportunities in marijuana. Chad Ruby, the CEO of United Cannabis, told HuffPost that "dozens" of tribes have reached out to him as well. "This is just the start of our business model," he said. "It is absolutely our plan to team up with tribes all over the country."

Brautman said that for now, he will only enter cannabis-related projects with tribes whose land lies within states that already permit medical or recreational use, even though tribes from non-marijuana states have contacted him. "If an individual visits a reservation, purchases a product, then leaves, they're now in possession of a controlled substance," he said. "Although [tribes] still have the ability to do this legally, I don't think it makes sense from a business perspective."...

Troy Dayton, the CEO of marijuana research firm ArcView, told HuffPost that the Pomo Nation operation likely marks a much bigger trend. "It makes a lot of sense," he said. "It's the right move that Native American lands have been opened up to the same freedoms that states have -- my hunch is that this is the beginning of something larger."

February 7, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Stressing home rule, federal drug czar expresses support for DC marijuana legalization

As reported in this Huffington Post piece, headlined "Drug Czar Michael Botticelli Supports DC's Ability To Legalize Marijuana," the top drug official in the Obama Administration this week had some notable things to say about Washington DC's marijuana legalization efforts. Here are the details:

U.S. drug czar Michael Botticelli, though banned from supporting marijuana legalization due to federal law, says that the nation's capital should be able to implement its own laws using its own funds, even if that does indeed mean legalizing marijuana.

“As a resident of the District, I might not agree about legalization, but I do agree with our own ability to spend our own money the way that we want to do that," said Botticelli, acting director of the White House Office of National Drug Control Policy (ONDCP), during an event at the Center for Strategic and International Studies on Friday. Botticelli was speaking in response to a question from Dan Riffle, federal policies director at the Marijuana Policy Project.

Botticelli, who did not endorse the legalization of medical or recreational marijuana at the event, added that President Barack Obama also supports D.C.'s ability to govern itself. “The president, as it relates to the District, was very clear that the District should stick to its home rule,” Botticelli said Friday....

In November, D.C. voters approved an initiative that legalized up to 2 ounces of recreational marijuana for personal use and up to six marijuana plants for home cultivation. While marijuana sales remain banned under the measure, there has been some discussion of implementing further legislation that would allow for sales and taxation of cannabis.

However, tucked into the federal spending bill Congress passed in December was a provision introduced by Rep. Andy Harris (R-Md.) that challenged D.C.'s ability to enact marijuana laws and aimed to block the city from spending funds to legalize or regulate the sale of marijuana.

There has been some debate over whether D.C. can implement its recently passed law. While Harris argues that his provision already effectively blocks the marijuana law from being enacted, multiple congressional Democrats, including House Minority Leader Nancy Pelosi (D-Calif.), are in favor of allowing the law to move forward. D.C. Council Chairman Phil Mendelson (D) submitted the marijuana legalization initiative to Congress in January, ignoring the GOP's effort to block the measure.

And just this week, it was reported that Obama had made a minor language change in his budget proposal that could thwart congressional Republicans trying to block marijuana legalization in the district further, and would allow the city government to move ahead with local laws regulating and taxing recreational pot.

If Congress doesn't overturn D.C.'s current pot measure and Obama's wording remains in the final version of his budget, marijuana legalization in the city could go into effect as early as March. Further plans to regulate pot sales in the District could begin with legal retail marijuana stores, similar to those already open in Colorado and Washington state, arriving in D.C. by the end of the year.

Still, D.C. marijuana legalization faces some obstacles before it can become law. Congress has a mandatory 30 days to review the D.C. Council legislation, which is currently ongoing. Without congressional action, the measure will automatically become law. But that still leaves Obama's proposed budget -- and his plan will require approval by the Republican-controlled House and Senate.

"Even if he personally disagrees with ending prohibition, it's great to see the head of this office in particular saying that he thinks the federal government shouldn't stand in the way of the huge majority of D.C. voters who want a new direction for marijuana policy," said Tom Angell, chairman of the drug policy reform group Marijuana Majority, to The Huffington Post. "Now I just hope he thinks voters in the states should be afforded that same respect he wants to give Washington, D.C. residents."

February 7, 2015 in Federal Marijuana Laws, Policies and Practices, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)