Friday, October 24, 2014
Patrick Gleason, who is the Director of State Affairs at Americans for Tax Reform, has this notable new commentary at Forbes headlined "Marijuana Taxes On The Ballot This November." Here are excerpts:
Voter approval of retail marijuana sales in Colorado and Washington State in 2012 presented lawmakers in those state capitals with a difficult task not faced before in the U.S.: how to tax and regulate legal recreational marijuana. As Joe Henchman, Vice President at the non-partisan Tax Foundation has pointed out, “Because marijuana can be purchased as a cigarette, an edible, a liquid, or vapor, all with a wide variety of concentrations, a specific excise tax is untenable.” Since then, Colorado and Washington State lawmakers have imposed onerous and excessive taxes on marijuana; but on Nov. 4, Washington State voters will have the opportunity to tell their representatives in the state legislature to reconsider.
During the 2014 session of the Washington legislature, state lawmakers passed Senate Bill 6505, which deemed the marijuana industry to be non-agricultural, thereby removing excise tax protections that apply to the state’s agriculture industry. This redefining of the industry will permit, if allowed to stand, more than $24 million in higher taxes over the next decade than would’ve otherwise been the case. On Nov. 4, Washington residents will vote on Advisory Question Number 8, a ballot measure that would urge the legislature to either maintain or repeal this reclassification of marijuana products as non-agricultural.
Washington State taxes marijuana with a 25 percent assessment on sales from producers to processors, a 25 percent tax on sales from processors to retailers, followed by another 25 percent tax on retail sales. That’s not all. Then there is the Evergreen State’s Business & Occupation gross receipts tax, a 6.5 percent state sales tax, along with local sales taxes. Altogether this brings the estimated effective tax rate on marijuana products to approximately 44 percent. In light of the onerous tax treatment of marijuana products and companies tied to that industry, it would be a positive development for Washington voters to vote repeal on Advisory Question 8 and urge lawmakers in Olympia to reverse the non-agricultural reclassification that will beget such punitive taxation.
But it’s not just at the state level where the marijuana industry faces excessive and unfair taxation. It’s a basic principle of sound tax policy that the code should not pick winners and losers or disproportionately target certain industries or groups of taxpayers. Yet unlike any other business, newly-legalized cannabis dispensaries are not allowed to deduct ordinary and necessary business expenses like equipment, rent, and wages from their federal taxable income....
Section 280E of the tax code denies ‘ordinary and necessary’ business expenses as a deduction against income derived from Schedule 1 substances. Unfortunately, tax law does not make any distinction between illegal street drug sales and state-established, legal cannabis dispensaries. These latter businesses comply fully with state law, pay all applicable taxes, and are vigorously regulated. There is no reason why the tax code should deny ordinary and necessary business expenses to legitimate businesses established under state law. The result is an arbitrary and punitive situation where legal employers face very high average effective tax rates that Congress never sought to impose on businesses.
Colorado, like Washington State and the federal government, exorbitantly taxes marijuana. Between the state’s 15 percent wholesale excise tax, a 10 percent state tax on marijuana retail sales, plus traditional state and local sales taxes, the effective rate on cannabis approaches 30 percent in the Rocky Mountain State.
It’s great to have 50 laboratories of democracy across the U.S., and the trials with legal marijuana taking place in Washington and Colorado will be instructive for other states and the federal government. Yet, when such heavy and unreasonable taxation is imposed, it blunts the positive effects of legal cannabis – such as the eradication of black markets and drug cartels – and makes it impossible to fully learn from the experience. Washington voters and members of Congress have the opportunity to help get it right, if they so choose.
Monday, October 20, 2014
As Doug blogged about previously here, last month a Colorado bankrupcty judge dsimissed a Denver marijuana business owner's bankrupcty petition. The court reasonined that allowing the petition to go forward would put the bankrupcty trustee in the untenable position of administering assets that are being used to commit federal crimes.
As the story last month noted, the debtor was appealing the decision. And, late last week, the bankruptcy judge granted the debtor's request to stay enforcement of the court's judgment pending appeal. The decision does not seem to be available yet on the Colorado bankrupcty court's site (or, at least, it is not coming up in response to my searches.) But, it is on Lexis at 2014 Bankr. LEXIS 4409.
This development will essentially put everything on hold in the case until the appeals court has weighed in.
Here are a few excerpts from the court's opinion:
The Debtors' appeal raises important questions. As illustrated by this case, the intersection between the federal marijuana prohibition and state level liberalization of marijuana laws significantly complicates bankruptcy proceedings where those issues arise. For a trustee, taking custody of and administering assets that are used in the commission of a federal crime can involve a trustee in conduct that violates the federal criminal law. Because of those complications in this case, the Court found that bankruptcy relief was impossible to grant to these Debtors.
The policy of The United States Department of Justice, with respect to state citizens who are acting in compliance with liberalized state marijuana laws, is to initiate enforcement actions under the CSA primarily where overriding federal concerns are implicated. The same Department of Justice, through the United States Trustee (the "UST"), moved to dismiss these Debtors' bankruptcy case on account of conduct which does not appear to implicate the type of federal concerns that would typically lead a United States Attorney to initiate a criminal prosecution or other enforcement action under the CSA.
The Court finds that the balance of the harms favors granting the stay. In the Court's Dismissal Order, after hearing evidence at the trial of the UST's motion to dismiss, the Court recognized that the denial of bankruptcy relief would be "devastating" to the Debtors. (Dismissal Order at p. 9). Also, in its response to the Debtors' Motion, the UST has not alleged that the creditors would suffer any harm if the Court's Dismissal Order is stayed and the UST asserted that it does not oppose the stay. Given that the UST is statutorily tasked with supervising "the administration of cases and trustees in cases under chapter 7 . . . ," 28 U.S.C. 586, and is the party that sought dismissal of the Debtors' case in the first instance, his lack of opposition to the Debtors' Motion is significant to the Court. Thus, the balance of the harms strongly favors granting a stay pending appeal.
The Court also believes that the Debtors' appeal presents novel and substantial questions of law that will benefit from appellate review. As a consequence of these factors, the Debtors have raised at least some uncertainty as to the merits of their appeal.
Even though the Court cannot assess the Debtors' likelihood of success as being great, because the balance of the harms supports granting the stay, the UST does not oppose granting such relief, and the Debtors' appeal raises important legal issues, a stay of the Court's Dismissal Order pending appeal is appropriate in this case.
This appeal will certainly be worth watching closely.
Friday, October 17, 2014
Regular readers already know that The Brookings Institution has been committed to doing throughtful and cutting-edge research and reports on the legal, political and social realities surrounding modern marijuana reform. Today Brookings released its latest significant report resulting from this work, titled "Marijuana Legalization is an Opportunity to Modernize International Drug Treaties" and authored by Wells C. Bennett and John Walsh. The full 27-page report is available at this link, and here is how it is summarized via this Brookings webpage:
Two U.S. states have legalized recreational marijuana, and more may follow; the Obama administration has conditionally accepted these experiments. Such actions are in obvious tension with three international treaties that together commit the United States to punish and even criminalize activity related to recreational marijuana.
In essence, the administration asserts that its policy complies with the treaties because they leave room for flexibility and prosecutorial discretion. That argument makes sense on a short-term, wait-and-see basis, but it will rapidly become implausible and unsustainable if legalization spreads and succeeds.
To avoid a damaging collision between international law and changing domestic and international consensus on marijuana policy, the United States should seriously consider narrowly crafted treaty changes. It and other drug treaty partners should begin now to discuss options for substantive alterations that create space within international law for conditional legalization and for other policy experimentation that seeks to further the treaties’ ultimate aims of promoting human health and welfare.
Making narrowly crafted treaty reforms, although certainly challenging, is not only possible but also offers an opportunity to demonstrate flexibility that international law — in more areas than just drug policy — will need in a changing global landscape. By contrast, asserting compliance while letting treaties fall into desuetude could set a risky precedent, one that — if domestic legalization proceeds — could damage international law and come back to bite the United States.
Thursday, October 16, 2014
The title of this post is the headline of this notable and lengthy new CNN article. Here are excerpts:
When Hillary Clinton graduated from Wellesley College in 1969 -- where the future first lady and Secretary of State says she did not try marijuana -- only 12% of Americans wanted to legalize the drug. In 45 years, however, the tide has changed for legalization: 58% of Americans now want to make consumption legal, two states (Colorado and Washington) already have and two more states (Oregon and Alaska) could join them by the end of the year.
Despite their growth in approval, many activists see 2014 as a smaller, but important, step to their end goal. It is 2016, when voters will also have to decide who they want in the White House, that marijuana activists feel could be the real tipping point for their movement.
"There will certainly be even more on the ballot in 2016," said Tamar Todd, director of marijuana law and policy and the Drug Policy Alliance. "More voters coming to the polls means more support for marijuana reform and in presidential election years, more voters turn out."
Demographics and money are also an important consideration. Big donors who are ready to fund pro-legalization efforts are more loose with their money in presidential years, according to activists, while Democrats and young people are more likely to turn out. This means legalization activists will be better funded to reach the nearly 70% of 18 to 29 year old Americans who support legalization.
On paper, activists feel their plan will work. But it is one yet to be decided factor -- who Democrats will nominate for president in 2016 -- that could throw a wrench into their push. Clinton is the prohibitive favorite for the Democrats' nomination, but to many in the marijuana legalization community, she is not the best messenger for their cause.
"She is so politically pragmatic," said Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws. "If she has to find herself running against a conservative Republican in 2016, I am fearful, from my own view here, that she is going to tack more to the middle. And the middle in this issue tends to tack more to the conservative side."...
Clinton has moved towards pro-legalization, though. Earlier this year, during a town hall with CNN, she told Christiane Amanpour that she wants to "wait and see" how legalization goes in the states before making a national decision. At the same event, she cast some doubt on medical marijuana by questioning the amount of research done into the issue.
Later in the year, Clinton labeled marijuana a "gateway drug" where there "can't be a total absence of law enforcement."
"I'm a big believer in acquiring evidence, and I think we should see what kind of results we get, both from medical marijuana and from recreational marijuana before we make any far-reaching conclusions," Clinton told KPCC in July. "We need more studies. We need more evidence. And then we can proceed."
This is more open, however, than in 2008 when Clinton was outright against decriminalization, a step that is less aggressive than legalization. Despite warming on the issue, Clinton's position is concerning to activists like St. Pierre because he feels they are far from solid. "If reforms keep picking up... the winds in our sails are clear," he said. "But if we lose one of more or all of those elections this year, cautious people around her could make the argument that this thing has peaked and you now have to get on the other side of it."
Thursday, October 9, 2014
Yesterday, the Second Circuit upheld a Board of Immigration decision finding a woman subject to removal from the US based on a since-vacated 1997 conviction for attempted possession of marijuana for sale. Though the decision does not break new legal ground, it is a reminder of the serious collateral consequences marijuana convictions can carry (and of the fact that under our immigration laws longtime residents can be forced back to countries they may now barely know based on relatively minor convictions.)
The court itself lamented the outcome, writing in its conclusion:
The sad truth of this case is that petitioner’s removability only came to light after she applied for citizenship. For almost seventeen years, she has owned and operated a business and by all accounts was a productive member of our society. Now, she will be returned to Jamaica and her community here will be the poorer for it. The Attorney General may, of course, review this matter in the exercise of his discretion in immigration matters. The petition for review is DISMISSED and any outstanding motions are DENIED as moot.
Monday, September 29, 2014
As reported in this interesting local piece, headlined "U.S. senators join request for medical marijuana waiver: Schumer, Gillibrand back N.Y. in Justice Dept. effort," New York officials are making a concerted effort to aid in marijuana importation. Here are the details:
U.S. Sens. Charles E. Schumer and Kirsten E. Gillibrand on Monday joined New York State’s effort to obtain a waiver from the U.S. Department of Justice allowing the state to import medicinal marijuana to treat children who suffer from rare and deadly seizure disorders.
The letter by the two Democratic senators from New York to Attorney General Eric H. Holder Jr. comes three days after the state Health Department submitted a new waiver request to Washington permitting the emergency importation of the drug while New York prepares to enact a broader medical marijuana program in the beginning of 2016.
The senators, acting after families of ill children sought their intervention with Justice, wrote to Holder that children with severe epileptic disorders “urgently need medicinal marijuana to ease the symptoms of this horrible disease, and these children obviously do not hold any imminent criminal threat.”
The senators are asking that the federal government help pave the way for Charlotte’s Web, a strain of marijuana grown in Colorado that is not smokable, to be permitted to cross state lines for distribution in New York. Parents of children with the condition say the drug offers no real attraction to the black market because the strain of marijuana they seek does not get users high....
There are an estimated 60,000 New Yorkers who suffer from a form of epilepsy that cannot be controlled by over-the-counter medicines, Schumer and Gillibrand said. How many of those are children with the rare seizure disorders who might qualify for the medical marijuana is uncertain, state officials say.
The specific request by Schumer and Gillibrand seeks assurances from Justice that individuals would not be prosecuted for shipping medical marijuana into New York under a state-created emergency program while the broader marijuana program is being developed.
At least three children have died in New York from the seizure disorders, including 9-year-old Anna Conte of Orchard Park, since the medical marijuana measure was signed by Cuomo in July. Before and after the law’s enactment, families urged the state to carve out an emergency exception for their children to get access to cannabidiol, or cannabis oil, which can be taken in pill, oil or other form other than smoking with no psychotropic effects....
In July, the state legalized medical marijuana, but the program is not set to begin before January 2016. Advocates were upset with Cuomo in June, when the medical marijuana deal was struck, because he insisted on killing a legislative provision to permit the state to participate in an emergency-type program for the seizure treatments by allowing marijuana to be transported across state lines into New York.
Now, advocates say that even if the federal government approves the waiver requests, the legislation Cuomo insisted upon and signed in July would have to be amended. That, they say, would require a special session of the State Legislature if patients don’t want to have to wait until January to gain access to the drug.
Emily Pierce, a Justice Department spokeswoman, said the two letters by the state Health Department have been received and are being reviewed. She said the department does not believe that it has ever granted a waiver like the one being requested by New York.
Assemblyman Richard N. Gottfried, D-Manhattan, sponsor of the medical marijuana law in the Assembly, recalled how the governor at the last moment during negotiations insisted that New York not be permitted to import the drug on an emergency basis and that any marijuana dispensed in the state must be grown in the state. “Even if the state licensed a registered organization tomorrow, it would not be allowed to dispense a product that was produced in Colorado or Vermont,” Gottfried said, suggesting that Cuomo call a special session of the Legislature to deal with the matter.
September 29, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Political perspective on reforms | Permalink | Comments (0)
Thursday, September 25, 2014
This new Denver Post article, headlined "Judge denies bankruptcy protection to Denver marijuana business," highlights another notable business problem created by the conflict between state and federal marijuana laws. Here are the basics:
A U.S. bankruptcy judge has dismissed the case of a Denver marijuana business owner, saying that although his activities are legal under Colorado law, he is violating the federal Controlled Substances Act. In dismissing the case, filed in U.S. Bankruptcy Court in Denver by Frank Anthony Arenas, Judge Howard Tallman said he realizes the "result is devastating for the debtor."
The Arenas case is at least the second such one involving a marijuana business tossed out of bankruptcy court in Colorado. At least two others have been dismissed in California. Tallman made a similar decision in a 2012 case involving Rent-Rite Super Kegs West Ltd, a company that operated a warehouse partially rented to a tenant cultivating marijuana.
"Violations of federal law create significant impediments to the debtors' ability to seek relief from their debts under federal bankruptcy laws in a federal bankruptcy court," Tallman wrote in the Arenas decision last month.
Arenas, who couldn't be reached for comment, has appealed the decision to the U.S. 10th Circuit Court of Appeals in Denver. According to his bankruptcy petition, Arenas owes more than $556,000 to unsecured creditors. He has assets of $595,925, personal property worth $47,191 and monthly income of $4,315.16. He has testified that he owns about 25 marijuana plants valued at $250 each, according to Tallman's decision.
Arenas, a wholesale producer and distributer of weed, filed for Chapter 7 protection, in which a debtor turns over assets to a trustee to liquidate and give the proceeds to creditors.
In the decision, Tallman alludes to the contradictions that dueling marijuana laws pose to liquidating assets and distributing the proceeds among creditors. The trustee can't take control of assets or liquidate the inventory without running afoul of federal law, he said. Nor can the debtors convert the case to Chapter 13, which would allow them to pay off debts over time because the plan would be funded "from profits of an ongoing criminal activity under federal law" and involve the trustee in distribution of funds derived from violation of the law.
Those who own and operate marijuana businesses are caught in a legal limbo with federal law restricting access to banking services and creating obstacles that other legitimate — at least by state law — businesses don't, said Sam Kamin, a professor at University of Denver's Sturm College of Law. "As long as it is illegal under federal law, we are going to have weird anomalies like that," Kamin said.
Tuesday, September 23, 2014
The title of this post is the title of this new paper by Julie Andersen Hill now available via SSRN. Here is the abstract:
Although marijuana is illegal under federal law, twenty-three states have legalized some marijuana use. The state-legal marijuana industry is flourishing, but marijuana-related businesses report difficulty accessing banking services. Because financial institutions won’t allow marijuana-related businesses to open accounts, the marijuana industry largely operates on a cash only basis — a situation that attracts thieves and tax cheats.
This article explores the root of the marijuana banking problem as well as possible solutions. It explains that although the United States has a dual banking system comprised of both federal- and state-chartered institutions, when it comes to marijuana banking, federal regulation is pervasive and controlling. Marijuana banking access cannot be solved by the states acting alone for two reasons. First, marijuana is illegal under federal law. Second, federal law enforcement and federal financial regulators have significant power to punish institutions that do not comply with federal law. Unless Congress acts to remove one or both of these barriers, most financial institutions will not provide services to the marijuana industry. But marijuana banking requires more than just Congressional action. It requires that federal financial regulators set clear and achievable due diligence requirements for institutions with marijuana business customers. As long as financial institutions risk federal punishment for any marijuana business customer’s misstep, institutions will not provide marijuana banking.
Saturday, September 20, 2014
The title of this post is the headline of this recent lengthy and informative Forbes article by Jacob Sullum. Here is how it gets started:
During a visit to the Dixie Elixirs & Edibles plant in Denver last summer, I saw the machines the company uses to produce cannabis concentrates, the kitchen where it makes marijuana-infused chocolates, and the bottling line for its THC-spiked sodas. Toward the end of the tour, I had a semi-serious question for the company’s CEO, Tripp Keber: “Where do you keep your piles of money?”
Keber laughed but quickly turned serious. “We actually have strong banking relationships,” he said. “We don’t talk about them. Asking someone about their banking is like asking them what they wear to bed at night. It’s an intensely personal question, even within the industry.” You can begin to understand why banking is such a touchy subject for the newly legal cannabusinesses in Colorado and Washington (as well as growers and dispensaries in the 21 states that allow medical but not recreational use of marijuana) if you consider the federal laws a financial institution violates when it does business with a state-licensed company like Keber’s.
“By providing [a] loan and placing the proceeds in [a] checking account, the institution would be conspiring to distribute marijuana,” writes University of Alabama law professor Julie Andersen Hill in a paper she presented at a conference on marijuana and federalism last week. “By facilitating customers’ credit card payments, the institution would be aiding and abetting the distribution of marijuana. And by knowingly accepting deposits consisting of revenue from the sale of marijuana, the institution may be acting as an accessory after the fact.”
That is not the end of the possible charges. “A financial institution that knowingly processes transactions for marijuana-related businesses commits the crime of money laundering,” Hill notes. Failure to meet the detailed monitoring and reporting requirements of the humorously named Bank Secrecy Act (BSA), which requires financial institutions to keep an eye out for suspicious activity, also can be treated as a felony.
Bank employees, officers, and directors can be prosecuted for these crimes, some of which may, depending on the amount of marijuana involved, trigger five- or 10-year mandatory minimum sentences. BSA violations are punishable by up to 10 years in prison when combined with other federal offenses. Money laundering can get you up to 20 years, and life is the maximum for participating in a marijuana conspiracy. In addition to the daunting threat of criminal penalties, financial institutions that deal with cannabusinesses have to worry about offending federal regulators with the power to impose millions of dollars in fines or sentence a bank to death by revoking its deposit insurance.
It is little wonder, then, that financial institutions are wary of cannabusinesses, or that the growers, manufacturers, and retailers who are lucky enough to obtain banking services do not want to talk about how they managed to do that. The lack of banking services, which Aaron Smith, executive director of the National Cannabis Industry Association, calls “the most urgent issue facing the legal cannabis industry today,” makes it difficult for marijuana entrepreneurs to raise capital and forces most of them to deal exclusively in cash, which creates administrative, logistical, and security headaches.
Friday, September 19, 2014
From Marijuana Business Daily, a new poll shows 65% of registered voters in support of Washington D.C.'s Initiative 71, a quasi-legalization measure on the ballot this November.
Initiative 71 is a bit different from previous marijuana ballot measures. Though the campaign appears to be promoting the measure as a vote for legalization, it would really enact something that is much closer to decriminalization. Legalization really refers to some sort of legal and regulated marketplace. All I-71 would make legal is possession, home cultivation (of up to 6 plants) and transfer without payment between adults. Removing criminal penalties for use is usually referred to as decriminalization, not legalization. And I think permitting home cultivation and non=profit transfers also fit best in the same category since the reforms are really targeted at removing criminal penalties for users (who grow for themselves or share with friends).
My sense has always been that "decriminalization" polls better than "legalization," so it is curious that I-71 is using the legalization language. Since it seems to be comfortably ahead, perhaps the backers are confident of the outcome and want to be able to promote it as a win for "legalization" and so are using that language in the campaign.
Opponents of the initiative launched their campaign this week, so it will be interesting to see if the current numbers hold.
Friday, September 12, 2014
As Rob noted yesterday, Case Western Law is hosting a conference today on Marijuana, Federal Power, and the States. The first panel has just begun and Rob's presentation will be beginning soon. Doug and I will both be speaking on a panel this afternoon. There is a fantastic lineup top-to-bottom today (myself excluded). Best of all, if you'd like to watch, you don't have to buy a last minute ticket to Cleveland. The event is being webcast--the webcast link and the conference agenda are both here. The conference's organizer, Jonathan Adler, has a post with some additional background on the conference here.
Thursday, September 4, 2014
The title of this post is the headline of this notable new USA Today article, which gets started this way:
Every time he goes to work, Harvard-trained lawyer Andrew Freedman faces federal prosecution thanks to the source of his paycheck: Colorado's burgeoning marijuana industry.
Freedman, the governor's chief marijuana adviser, faces prison time if federal prosecutors decide to step in. That's because federal law still considers marijuana as dangerous as heroin or cocaine, and prosecutors could easily bring drug-trafficking charges if they choose. Freedman's salary is paid by the taxes collected on legal marijuana sales. "I'm in murky territory every day," Freedman said.
He's not alone. Tens of thousands of marijuana growers, bud tenders, edibles makers, store owners and couriers working in Colorado and Washington and any of the other 21 states and the District of Columbia that have legalized recreational or medical marijuana face the same penalties.
The risk is even greater for dozens of former cops and soldiers working as armed guards in the marijuana industry because federal drug-trafficking laws prescribe far stiffer penalties for anyone using a firearm while handling drugs and money. Several of the guards interviewed by USA TODAY say they chose to work for Blue Line acknowledged the legal risks they're taking, but said it was safer than being shot at by insurgents or dealing with violent criminals daily.
So far federal prosecutors have held off bringing charges against security firms protecting and servicing the marijuana industry, even though they're aware of the flagrant violations. USA TODAY in July published numerous photos of a Colorado-based security-firm workers carrying pot, cash and weapons -- photos federal agents and prosecutors confirm they saw.
The situation highlights the tenuous balance federal prosecutors strike as they monitor the sale of legalized marijuana. Marijuana remains illegal at the federal level, even though voters in Colorado and Washington have allowed adults to possess and consume it for fun. Federal officials say they're trying to balance state law while keeping pot out of the hands of kids and profits away from drug cartels.
Marijuana-industry workers acknowledge the risks they're taking, but say they're assuming federal prosecutors will leave them alone as long as they keep to the strictest interpretation of the state law. "If you touch the product, then you're at risk for federal prosecution," said Michael Jerome, a spokesman for Blue Line Protection Group, which provides armed guards to transport marijuana and cash for pot-shop owners. "That's why we're trying to make it safe and legitimate and responsible, so we can respect the wishes of the voters of the state of Colorado and keep the federal government out of it."
September 4, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, August 20, 2014
Although the Obama administration decided not to pursue a preemption challenge to Colorado and Washington's legalization laws, private parties and/or local officials can also raise the federal preemption issue in the right case. In Washington, a local ban on marijuana stores has prompted a lawsuit that looks likely to do just that.
The Seattle Times provides a summary of the dispute:
In July, the city of Fife approved an outright ban on marijuana businesses. A prospective pot store is suing the city in Pierce County Superior Court and hopes to overturn the ban.
The case could cement Washington’s pot law or unravel it, depending on the success of arguments from the State Attorney General’s office and the ACLU, who have both intervened in the lawsuit.
There are two key issues in the case: whether Fife and other municipalities are allowed to ban marijuana businesses under Initiative 502, the state law that legalized pot, and whether federal law banning pot trumps state law on the issue.
Yesterday, the Washington AG filed a brief in the case (PDF), which appears to be at the summary judgment stage. In it, the AG argues that Fife's ban on marijuana businesses is not preempted by the state's legalization law. If the court agrees with the AG on that point, then it won't need to reach the question of federal preemption. If it disagrees, however, then it will have to decide whether or not federal law preempts the state's law.
Here is the beginning of the AG's argument on federal preemption:
Because Congress made clear that it only intended to preempt state laws that create a “positive conflict” with the CSA, id., Congress did not “occupy the field” of regulating controlled substances. Field preemption is thus inapplicable under the CSA. Express preemption also effectively becomes irrelevant because it overlaps completely with conflict preemption here, i.e., the statute expressly preempts only state laws that create a “positive conflict.” See, e.g., County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 476 (Cal. Ct. App. 2008) (“numerous courts have concluded that . . . 21 U.S.C. § 903 demonstrates Congress intended to reject express and field preemption of state laws concerning controlled substances”) (copy attached). Moreover, as to conflict preemption, because the statute limits preemption to state laws where “there is a positive conflict between . . . [the CSA] and that State law so that the two cannot consistently stand together,” 21 U.S.C. § 903, many courts have held that obstacle preemption is irrelevant under the CSA, because the only form of conflict the CSA is concerned with “is a positive conflict,” id. See, e.g., San Diego NORML, 81 Cal. Rptr. 3d at 481; People v. Crouse, ___ P.3d ___, 2013 WL 6673708, at *4 (Colo. Ct. App. Dec. 19, 2013) (same) (copy attached). Indeed, other federal statutes specify that both impossibility and obstacle preemption apply, demonstrating that Congress knows how to write such a clause if that is its intent. See, e.g., 21 U.S.C. § 350e(e).
I think the federal preemption argument is a weak one (I suspect that's a big part of why the federal government has never once brought a preemption lawsuit against a state medical marijuana law, even under Bush when there was no doubt about the DOJ's opposition to these laws.) But, this will certainly be a case to watch closely. The ACLU's page monitoring the case is here.
Monday, August 18, 2014
The Boston Globe has this intriguing new article discussing in the problems that face medical marijuana patients in university settings. The piece is headlined "In halls of academia, medical marijuana an unwelcome guest: Colleges, mindful of federal rules, draw ire by keeping stiff bans." Here are excerpts:
Thomas Burke Jr., a 25-year-old US combat veteran and Yale University grad student, has a physician’s permission to use medical marijuana in Connecticut to treat PTSD symptoms. Although medical marijuana has been legal in Massachusetts for nearly two years, many local colleges are putting out the message to students as the fall semester nears: You still can’t use it on campus, even if a doctor says it’s medicinal.
College administrators have reaffirmed policies banning the drug in all forms, and that includes for students who have a doctor’s recommendation. They say their hands are tied by federal regulations, which still classify marijuana as an illegal drug, and they worry that allowing cannabis use of any kind could lead to the loss of federal funding, including student financial aid....
But other medical marijuana patients and advocates say colleges are being overly cautious. Forbidding the use of a state-recognized, doctor-authorized medicine is unfair, unethical, and a detriment to students, faculty, and others who use the drug to treat ailments, they say. “We would like to see schools recognize, as many states and millions and millions of individuals and doctors have done, that marijuana is in fact valid medicine for the patients that are using it, and treating it differently than other medications is harmful to students and faculty who have chosen to use medical marijuana,” said Betty Aldworth, director of Students for Sensile Drug Policy, a national student network pushing for an overhaul of drug laws....
Some schools — including Boston University, Tufts University, and Amherst, Curry, Emerson, Hampshire, and Wheelock colleges — that ban medical marijuana on campus try to help students with certifications to find alternatives. One way is to allow the students to opt out of on-campus housing contracts and requirements so they can pursue treatment off-campus....
The Justice Department said in a memorandum last year that it focuses enforcement on the most serious marijuana-related violations, and it is “not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers.”
However, in 2011, the White House Office of National Drug Control Policy and the Education Department wrote a letter warning campuses that deviating from federal rules could put their federal funding at risk. “The administration’s stance hasn’t changed since then,” drug control policy office spokeswoman Cameron Hardesty told the Globe last week.
Advocates, however, say it is unrealistic to believe the US government would cut off funding to colleges over the issue. “I understand not wanting to risk millions of dollars in federal funding, but no college has ever lost federal funding for changing their drug or alcohol policies,”said Connor McKay, a 22-year-old Northeastern University senior and president of the campus chapter of Students for Sensible Drug Policy. “Colleges could and should at least accommodate students who need to use it.”
Saturday, August 16, 2014
The Miami Herald has this interesting new article discussing comments by former Florida Gov Jeb Bush concerning marijuana law and policy and the competing tensions created by state reforms and federal prohibition. The full headline of the piece provide a summary of its themes: "Jeb Bush conflicted over feds role in medical-marijuana enforcement; Former Gov. Jeb Bush is conflicted over the federal government’s role in medical-marijuana states and refrains from criticizing President Barack Obama over the issue." Here are excerpts:
Former Gov. Jeb Bush opposes Florida’s medical-marijuana initiative, but the potential GOP presidential candidate said he’s not sure if the federal government should enforce federal cannabis laws if the Sunshine State proposal passes.
Bush’s struggle with the state-federal split over medical marijuana reflects a broader struggle in the national Republican Party, where anti-drug hardliners are at odds with states-rights conservatives and libertarians over the issue.
Though a top Republican and frequent critic of President Obama, Bush refrained from repudiating the current White House’s position to de-emphasize enforcement of certain marijuana laws in the 20 states that have legalized medical cannabis, plus Washington D.C., and the two states that have completely legalized adult personal use of the drug, Colorado and Washington.
Asked Friday about the federal government’s role in prosecuting pot laws in medical-marijuana states, Bush said he’d have to give it more thought. “In medical marijuana states? I don’t know. I’d have to sort that out,” Bush said. “I think that states ought to have a right to decide these things. I think the federal government’s role in our lives is way too-overreaching.”
“But having said that,” he continued, “if you’re in Colorado and you can purchase marijuana openly, should people in Wyoming not be concerned about that? And I think there, maybe, the federal law needs to be looked at — interstate commerce.”
Bush made his comments in response to a reporter’s questions during a Homestead campaign stop for Gov. Rick Scott’s reelection. The day before, Bush issued a written statement urging Floridians to vote against the proposed constitutional amendment for medical marijuana. The amendment would allow physicians to recommend medical marijuana to people with “debilitating” medical conditions. Opponents say the measure is too broad; supporters say it’s designed to ensure that sick people get the care they need.
As a likely frontrunner for his party’s presidential nomination in 2016, Bush’s thoughts about marijuana have an added layer of significance because, if elected, his administration would have to decide whether it should continue the Obama policy in marijuana-decriminalization states.
“I think Jeb Bush is thinking about 2016 politics,” said Ben Pollara, director for the United for Care group that fought to get the medical-marijuana initiative, a proposed constitutional amendment, on the Florida ballot in November. Pollara pointed out that many of the big names who might run for president have nuanced views on medical marijuana.
“Rand Paul is more libertarian. Rick Perry has come out in favor of decriminalization. Chris Christie administers a medical-marijuana system in New Jersey,” Pollara said. “This is part of the more-libertarian strain. Jeb has presidential considerations to worry about.”...
Another potential GOP candidate, Florida Sen. Marco Rubio, also opposes the proposed constitutional amendment but said he supported low-THC medical marijuana therapy, which was called for in a bill that the Legislature passed this year and that Scott signed unexpectedly. The Legislature only took up that measure this year when the United for Care amendment was bound for the Florida ballot, where its chances of passage are good....
The medical marijuana constitutional amendment looks incredibly popular right now. Polls indicate that about 70 percent of voters back the proposed ballot language. It takes 60 percent voter approval to pass a constitutional amendment in Florida.
Support spans all demographic and partisan lines, but support is strongest among Democrats, including fundraiser and trial lawyer John Morgan, who employs Democratic gubernatorial frontrunner Charlie Crist and helped spearhead the United for Care initiative.
Sunday, August 10, 2014
The title of this post is the headline of this front-page New York Times article. Here are excerpts:
Nearly four years ago, Dr. Sue Sisley, a psychiatrist at the University of Arizona, sought federal approval to study marijuana’s effectiveness in treating military veterans with post-traumatic stress disorder. She had no idea how difficult it would be.
The proposal, which has the support of veterans groups, was hung up at several regulatory stages, requiring the research’s private sponsor to resubmit multiple times. After the proposed study received final approval in March from federal health officials, the lone federal supplier of research marijuana said it did not have the strains the study needed and would have to grow more — potentially delaying the project until at least early next year.
Then, in June, the university fired Dr. Sisley, later citing funding and reorganization issues. But Dr. Sisley is convinced the real reason was her outspoken support for marijuana research. “They could never get comfortable with the idea of this controversial, high-profile research happening on campus,” she said.
Dr. Sisley’s case is an extreme example of the obstacles and frustrations scientists face in trying to study the medical uses of marijuana. Dating back to 1999, the Department of Health and Human Services has indicated it does not see much potential for developing marijuana in smoked form into an approved prescription drug....
Scientists say this position has had a chilling effect on marijuana research. Though more than one million people are thought to use the drug to treat ailments ranging from cancer to seizures to hepatitis C and chronic pain, there are few rigorous studies showing whether the drug is a fruitful treatment for those or any other conditions. A major reason is this: The federal government categorizes marijuana as a Schedule 1 drug, the most restrictive of five groups established by the Controlled Substances Act of 1970. Drugs in this category — including heroin, LSD, peyote and Ecstasy — are considered to have no accepted medical use in the United States and a high potential for abuse, and are subject to tight restrictions on scientific study.
In the case of marijuana, those restrictions are even greater than for other controlled substances.... To obtain the drug legally, researchers like Dr. Sisley must apply to the Food and Drug Administration, the Drug Enforcement Administration and the National Institute on Drug Abuse — which, citing a 1961 treaty obligation, administers the only legal source of the drug for federally sanctioned research, at the University of Mississippi. Dr. Sisley’s proposed study also had to undergo an additional layer of review from the Public Health Service that is not required for other controlled substances in such research.
The process is so cumbersome that a growing number of elected state officials, medical experts and members of Congress have started calling for loosening the restrictions. In June, a letter signed by 30 members of Congress, including four Republicans, called the extra scrutiny of marijuana projects “unnecessary,” saying that research “has often been hampered by federal barriers.”
“It defies logic in this day and age that marijuana is still in Schedule 1 alongside heroin and LSD when there is so much testimony to what relief medical marijuana can bring,” Gov. Lincoln Chafee of Rhode Island said in an interview. In late 2011, he and the governor of Washington at the time, Christine O. Gregoire, filed a petition asking the federal government to place the drug in a lower category. The petition is still pending with the D.E.A.
Despite the mounting push, there is little evidence that either Congress or the Obama administration will change marijuana’s status soon. In public statements, D.E.A. officials have made their displeasure known about states’ legalizing medical and recreational marijuana.
August 10, 2014 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research | Permalink | Comments (0)
Sunday, August 3, 2014
In this recent post, I highlighted to potent work done by folks at the Washington Post concerning marijuana research and data in this detailed Wonkblog piece highlighting all the problems with all the science claims by the federal government to justify marijuana prohibition. I now just saw this notable follow-up piece by Christopher Ingraham at Wonkblog headlined "The federal government’s own statistics show that marijuana is safer than alcohol." Here are excerpts:
Opponents of marijuana legalization return to one particular number over and over in their arguments: the number of emergency room visits involving marijuana. [An] ONDCP fact sheet breathlessly reports that "mentions of marijuana use in emergency room visits have risen 176 percent since 1994, surpassing those of heroin." The Drug Enforcement Administration's "Dangers and Consequences of Marijuana Abuse," a 41-page tour-de-force of decontextualized factoids, reports that marijuana was involved in nearly half a million E.R. visits in 2011, second only to cocaine.
The problem, of course, is that these numbers are meaningless without knowing how many people are using those drugs to start with. When you consider that there are approximately 70 times more marijuana users than heroin users in the United States, it makes sense that more of the former are going to the hospital than the latter.
Since the government doesn't provide these comparisons in a meaningful way, I've done it myself....
For 2010, the latest year for which complete alcohol data are available, I grabbed the number of regular users from the National Survey on Drug Use and Health. "Regular," in this case, means people who report using a given substance in the past month. I then grabbed 2010 E.R. visits involving these substances from the Drug Abuse Warning Network. This is a hospital reporting system that collects detailed data on all E.R. admissions involving a given drug. These E.R. visits can involve the use of multiple substances, so the numbers for each drug involve all visits for which that drug was listed as a contributing factor....
The figures clearly show that on a per-user basis, marijuana is considerably less likely to send you to the E.R. than heroin, cocaine or meth. Marijuana users are also 75 percent less likely to face an E.R. visit than prescription drug abusers.
But most surprisingly, marijuana is significantly safer to use than alcohol. For every thousand regular alcohol drinkers there are eight more trips to the E.R. than for every thousand marijuana users. Or in other words, alcohol is about 30 percent more likely to send you to the E.R. than marijuana.
These are all the federal government's own numbers, and they show that marijuana is considerably less harmful to users than alcohol. At the risk of sounding like a broken record, this comports with just about every other credible study of the drug.
Thursday, July 31, 2014
The title of this post is drawn in part from the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here). Here is an excerpt from this editorial:
As with other recreational substances, marijuana’s health effects depend on the frequency of use, the potency and amount of marijuana consumed, and the age of the consumer. Casual use by adults poses little or no risk for healthy people. Its effects are mostly euphoric and mild, whereas alcohol turns some drinkers into barroom brawlers, domestic abusers or maniacs behind the wheel.
An independent scientific committee in Britain compared 20 drugs in 2010 for the harms they caused to individual users and to society as a whole through crime, family breakdown, absenteeism, and other social ills. Adding up all the damage, the panel estimated that alcohol was the most harmful drug, followed by heroin and crack cocaine. Marijuana ranked eighth, having slightly more than one-fourth the harm of alcohol.
Federal scientists say that the damage caused by alcohol and tobacco is higher because they are legally available; if marijuana were legally and easily obtainable, they say, the number of people suffering harm would rise. However, a 1995 study for the World Health Organization concluded that even if usage of marijuana increased to the levels of alcohol and tobacco, it would be unlikely to produce public health effects approaching those of alcohol and tobacco in Western societies.
Most of the risks of marijuana use are “small to moderate in size,” the study said. “In aggregate, they are unlikely to produce public health problems comparable in scale to those currently produced by alcohol and tobacco.”
While tobacco causes cancer, and alcohol abuse can lead to cirrhosis, no clear causal connection between marijuana and a deadly disease has been made. Experts at the National Institute on Drug Abuse, the scientific arm of the federal anti-drug campaign, published a review of the adverse health effects of marijuana in June that pointed to a few disease risks but was remarkably frank in acknowledging widespread uncertainties. Though the authors believed that legalization would expose more people to health hazards, they said the link to lung cancer is “unclear,” and that it is lower than the risk of smoking tobacco....
The American Society of Addiction Medicine, the largest association of physicians specializing in addiction, issued a white paper in 2012 opposing legalization because “marijuana is not a safe and harmless substance” and marijuana addiction “is a significant health problem.”
Nonetheless, that health problem is far less significant than for other substances, legal and illegal. The Institute of Medicine, the health arm of the National Academy of Sciences, said in a 1999 study that 32 percent of tobacco users become dependent, as do 23 percent of heroin users, 17 percent of cocaine users, and 15 percent of alcohol drinkers. But only 9 percent of marijuana users develop a dependence. “Although few marijuana users develop dependence, some do,” according to the study. “But they appear to be less likely to do so than users of other drugs (including alcohol and nicotine), and marijuana dependence appears to be less severe than dependence on other drugs.”
There’s no need to ban a substance that has less than a third of the addictive potential of cigarettes, but state governments can discourage heavy use through taxes and education campaigns and help provide treatment for those who wish to quit.
One of the favorite arguments of legalization opponents is that marijuana is the pathway to more dangerous drugs. But a wide variety of researchers have found no causal factor pushing users up the ladder of harm. While 111 million Americans have tried marijuana, only a third of that number have tried cocaine, and only 4 percent heroin. People who try marijuana are more likely than the general population to try other drugs, but that doesn’t mean marijuana prompted them to do so.
Marijuana “does not appear to be a gateway drug to the extent that it is the cause or even that it is the most significant predictor of serious drug abuse,” the Institute of Medicine study said. The real gateway drugs are tobacco and alcohol, which young people turn to first before trying marijuana.
This NY Times piece is a potent and effective review about what we really know about marijuana's health and societal impact. Even more powerful on the same front, though, is this remarkable new Wonkblog piece from the Washington Post that highlights all the problems with all the science claims by the federal government to justify marijuana prohibition. The title of this piece, with is a must-read for anyone who really care about both the science and advocacy realities surrounding marijuana reform, is "The federal government’s incredibly poor, misleading argument for marijuana prohibition." Here is how it gets started:
The New York Times editorial board is making news with a week-long series advocating for the full legalization of marijuana in the United States. In response, the White House's Office of National Drug Control Policy (ONDCP) published a blog post Monday purporting to lay out the federal government's case against marijuana reform.
That case, as it turns out, it surprisingly weak. It's built on half-truths and radically decontextualized facts, curated from social science research that is otherwise quite solid. I've gone through the ONDCP's arguments, and the research behind them, below.
The irony here is that with the coming wave of deregulation and legalization, we really do need a sane national discussion of the costs and benefits of widespread marijuana use. But the ONDCP's ideological insistence on prohibition prevents them from taking part in that conversation.
July 31, 2014 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Recreational Marijuana Data and Research, Science | Permalink | Comments (0)
Wednesday, July 30, 2014
Interesting history as New York Times highlights its "the Editorial Board's changing view of marijuana over six decades"
As part of its new editorial series in support of repealing marijuana prohibition (basics here), the New York Times has this fascinating page titled "Evolving on Marijuana," which provides key quotes from key editorials about marijuana law and policy over the last 50 years. Here are some of the highlights of this interesting history:
1966: Experience has tragically demonstrated that marijuana is not "harmless."... For a considerable number of young people who try it, it is the first step down the fateful road to heroin.
1969: The law should surely make a distinction between soft and hard drugs.... For the nation to lapse merely into a simplistic crack-down in reaction to the terribly complicated drug problem would only be, in its own way, to freak out."
1969: Simple possession of LSD ... calls for a maximum sentence of only one year, as against ten for marijuana.... The discrepancy is as glaring as it is absurd. How will anyone know what the restriction on marijuana should be until there is the kind of objective, authoritative report that has been called for by Senator Moss of Utah and Representative Koch of New York?
1970: The nation deserves better answers to the questions about pot. Is it really harmful? Should the law continue to treat it in the same manner as heroin? ... Few substances have been so flatly banned and yet so widely used as marijuana, so much discussed and yet so little researched.
1971: Marijuana is not a “narcotic”... At the same time, it is a dangerous drug.... if marijuana is dangerous, the law must reflect this fact. The subcommittee’s report wisely suggests that both use and sale should remain criminal offenses, although punishable by reduced penalties, especially in the case of first-time offenders and experimenters.
1972: ... the dangers inherent in smoking marijuana appear to be less than previously assumed. ... What is immediately called for is a sharp scaling down of marijuana penalties, elimination of criminal sanctions for its use or possession and reduction of penalties for its small-quantity sales. A failure of legislatures to base legal sanctions on the best medical evidence available can only undermine respect for the law.
1978: Marijuana shows great, but not fully proven, potential as a therapeutic agent. ... Marijuana boosters want it legalized immediately for widespread medical use. That would be premature. The need now is for accelerated research to define its medical value. Yet progress has been greatly slowed by the drug's lingering notoriety.
1982: The sweet-acrid scent of marijuana is everywhere these days... According to the National Institute of Drug Abuse, roughly 30 million Americans smoke it regularly. ... Like it or not, marijuana is here to stay. Some day, some way, a prohibition so unenforceable and so widely flouted must give way to reality.
1996: It is difficult to dismiss the testimony from many seriously ill patients ... that marijuana can ease pain... ... It ought to be possible to regulate marijuana as a prescription drug if it is found to be of legitimate benefit for sick people.
2012: Millions of people have been arrested under the policy for minor violations, like possession of small amounts of marijuana. And one thing is beyond dispute: this arrest-first policy has filled the courts to bursting with first-time, minor offenders who do not belong there and wreaked havoc with people's lives.
2013: On marijuana policy, there’s a rift between the federal government and the states. … The Justice Department has taken a step toward figuring out this peculiar dance between the federal government and the states. If it wants its “trust but verify” approach to work, it will have to start filling in the details.
2013: Assuming the argument that alcohol and marijuana are “substitutes” bears out, that could be good news, especially for road safety. Of the two substances, alcohol is far more hazardous. For the most part, marijuana-intoxicated drivers show only modest impairments on road tests. Several studies have suggested that drivers under the influence of marijuana actually overestimate their impairment.
2014: On New Year’s Day, government-licensed recreational marijuana shops opened in Colorado ... Later in 2014, marijuana retailers will open in Washington State. As public opinion shifts away from prohibition, these two states will serve as test cases for full-on legalization.
July 30, 2014 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Tuesday, July 29, 2014
As detailed in this official press release, titled "WA, CO Senators push Obama Administration to set clear, consistent policies so states can implement marijuana laws," the four Senators representing the two states which have legalized recreational marijuana have sent a letter to the White House Chief of Staff and Attorney General Eric Holder urging more federal guidance about state marijuana activities. The full letter is available at this link, and here is how it starts:
We write to request that the Administration provide guidance to departments and agencies ensuring a consistent and uniform application of federal laws that could affect licensed marijuana businesses, dispensaries, and growers in Washington state and Colorado.
As you know, our states are implementing regulatory and licensing schemes to ensure any production and sale of marijuana is in accord with state law, and is conducted in a manner that preserves public health and safety. In working toward this goal, in some instances, our states will have to react to new information and evolving circumstances as this process moves forward. We believe the federal government should support Colorado and Washington state’s effort to establish a successful regulatory framework in a way that achieves greater certainty for local officials, citizens, and business owners as they tackle this complicated and important task. At times, however, certain federal agencies have taken different approaches that seem to be at odds with one another and may undermine our states’ ability to regulate the industry adequately.
In order to provide more regulatory clarity, we believe that the Administration should provide consistent and uniform guidance to departments and agencies regarding the interpretation and application of the Controlled Substances Act (“CSA”) and other federal laws that could impact the marijuana industries in our states. Without such guidance, our states’ citizens face uncertainty and risk the inconsistent application of federal law in Colorado and Washington state, including the potential for selective enforcement actions and prosecution.