Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Wednesday, August 20, 2014

WA Attorney General files brief in case raising federal preemption

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.

August 20, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, August 18, 2014

College students facing distinct challenges in using marijuana as medicine

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.”

August 18, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (1)

Saturday, August 16, 2014

Former Florida Gov Jeb Bush conflicted about states' rights and federal pot prohibition

JebThe 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.

August 16, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, August 10, 2014

"Medical Marijuana Research Hits Wall of U.S. Law"

Shutterstock_93947695The 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

Another potent statistical take-down of bad science used to prop up pot prohibition

Mj-erIn 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.

August 3, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Data and Research, Science | Permalink | Comments (0)

Thursday, July 31, 2014

Digging seriously in to "What Science Says About Marijuana"

WonkThe 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

Colorado and Washington Senators press White House for clearer marijuana policy guidance

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.

July 29, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, July 25, 2014

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

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

Paul's proposal provides (in relevant part):

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

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

Thursday, July 17, 2014

Another notable House vote continues federal reform momentum

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

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

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

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

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

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

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

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

Tuesday, July 15, 2014

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

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

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

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

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

July 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (1)

Monday, July 14, 2014

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

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

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

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

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

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

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

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

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

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

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

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 20, 2014

Senate to vote on medical marijuana spending amendment

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

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

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

Wednesday, June 18, 2014

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

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

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

 

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

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

   

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

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

Wednesday, June 11, 2014

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

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

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

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

The following case studies are included in this report:

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

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

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

Tuesday, June 10, 2014

"What’s Next for Pot in Congress?"

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

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

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

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

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

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

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

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

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

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

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

Monday, June 9, 2014

Massachusetts doctors, the DEA and the Conant case

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 31, 2014

"Why Republicans are slowly embracing marijuana"

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

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

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

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

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

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

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

Friday, May 30, 2014

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

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

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

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

If that happens, what exactly would the amendment do? 

The full text is here:

Offered By: Mr. Rohrabacher

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

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

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

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

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

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

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

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

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

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

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

 

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