Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, October 18, 2018

"Could Weed Be Federally Legal in 2019?"

WashingtonDC-Capitol-MarijuanaThe question in the title of this post is the headline of this new Rolling Stone article that effectively summarizes the lengthy memo circulated yesterday by Representative Earl Blumenauer written to House Democratic Leadership outlining his plan to legalize cannabis in the next Congress.  Here are excerpts from the article:

In honor of Canada’s first day with legal adult-use marijuana, an optimistic Rep. Earl Blumenauer (D-OR) sent a letter to House Democratic leadership Wednesday outlining a plan to advance federal legalization measures with the goal of federally legalizing cannabis by the end of 2019. “Congress is out of step with the American people and the states on cannabis,” he wrote. “There is no question: cannabis prohibition will end. Democrats should lead the way.”

Blumenauer’s plan would begin as early as next January, when he says the key to advancing some of the 37 cannabis bills sitting in Congress is to have the individual issues evaluated by the distinct congressional committees. For example, the House Judiciary Committee could hold a hearing on descheduling marijuana; the House Veterans Affairs Committee could hold a hearing on veterans’ access to medical pot; the House Financial Services Committee could discuss the current barring of cannabis businesses from federally backed banks; and the House Ways and Means Committee could have a hearing on the unequal taxation of pot businesses.

Additionally, Blumenauer writes that these committees should start “marking up bills in their jurisdiction[s] that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws,” using examples like the protection of employment, protection of private property from civil asset forfeiture and the removal of barriers to marijuana research. He also includes, most importantly, the need to “address the racial injustices that resulted from the unequal application of federal marijuana laws” — or, in other words, a social-justice element that could begin to correct the racist tide of the 40-year-old War on Drugs.

By August, Blumenauer believes, the House can pass a package of marijuana laws to address these concerns, and the bills can move to the Senate. The Oregon representative hopes that, given the increasing public support for marijuana — he cites a poll that 69 percent of registered voters support legalizing pot — the public will be able to pressure the senior body of Congress into passing the bill....

On a call with reporters, Blumenauer said that he believes key members of the prohibitionist movement — including Texas Rep. Pete Sessions and House Majority Leader Paul Ryan — won’t be returning next session, and with those opponents gone, the cannabis movement will be able to advance. He has been speaking with senior members of the committees, he said, and is confident that some will be able to get these specific areas of cannabis law on the agenda next year. “The outline is ambitious,” Blumenauer admitted. “It’s aspirational, but it’s entirely within our capacity.”

October 18, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Friday, October 12, 2018

Is Trump White House really on verge of proposing federal marijuana reform?

The question in the title of this post is prompted by this new Fox Business piece headlined "White House to unveil federal cannabis reform 'very soon,' says GOP lawmaker." Here are excerpts:

The White House is planning on tackling cannabis reform after the midterm elections, according to Rep. Dana Rohrabacher, R-Calif. Rohrabacher tells FOX Business that the Trump administration has made a “solid commitment” to fix marijuana regulation.

“I have been talking to people inside the White House who know and inside the president’s entourage... I have talked to them at length. I have been reassured that the president intends on keeping his campaign promise.”...

“I would expect after the election we will sit down and we’ll start hammering out something that is specific and real,” he said.

The California congressman, who is up for re-election this November, is battling to hold onto a seat that national Democrats have identified as part of their strategy to win the House majority this midterm election. Rohrabacher faces Democrat Harley Rouda. RealClearPolitics has listed the seat that Rohrabacher has held for five years as a toss-up – and the polling average has both candidates in a dead heat – with both at 48 percent of voter support.

Recreational marijuana was just recently legalized in California this year – but reforms on the federal level have been stalled for decades. Yet, according to Rohrabacher, that will soon change: “It could be as early as spring of 2019, but definitely in the next legislative session.”

I suspect Rep. Rohrabacher is making these claims as part of an effort to make the case to Californians that he needs to be reelected to help with federal marijuana reforms.

October 12, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Saturday, October 6, 2018

"Marijuana skeptics fear 'de facto legalization' in states"

Download (22)The title of this post is the headline of this lengthy Politico article discussing the politics and practicalities surrounding the relationships between medical marijuana reform and marijuana industry developments.  I recommend the piece in full, and here are excerpts:

With nine states, and the District of Columbia, now allowing the recreational use of cannabis — and more in the pipeline — advocates on both sides of the issue say that medical cannabis programs are increasingly functioning as a Trojan horse for de facto legalization in the 40 states where the politics of legalization aren’t quite ripe yet. And that’s rapidly changing the political and policy dynamics surrounding the emerging industry....

Medicinal marijuana has, indeed, been a driving force for legalization in other states. California’s decision 20 years ago to become the first state to approve the sale of legal medicinal marijuana paved the way for the Golden State to become, as of this year, the world’s largest legal recreational cannabis market. Now, with polls showing public support for medical cannabis in the U.S. at around 90 percent, medical marijuana proponents have shifted their gaze to more conservative states like Kentucky, West Virginia, Oklahoma and Louisiana, or towards enlarging existing medical marijuana programs in places like New Jersey or Pennsylvania.

And while medicinal advocates insist their efforts are simply meant to help patients, opponents say that’s laughable. “There’s a marijuana industry making all sorts of medical claims that, if they were pharma companies, they’d probably be jailed,” said Kevin Sabet, the president and CEO of Smart Approaches to Marijuana, which opposes recreational use policies. “It’s not this bright line between medical and recreational. And there should be a bright line.”...

“This doesn’t have anything to do with cancer patients, or folks with epilepsy, this is about the expansion of the marijuana industry,” he said. “The worst kept secret about most medical marijuana programs is that they often act as de facto legalization. With the expansion of programs in New Jersey or other states, this is often tied to the marijuana industry’s interest to expand the user pool and make money.”

Marijuana proponents don’t necessarily disagree. The growing acceptance of medical cannabis has helped eliminate the stigma around recreational use, multiple sources told POLITICO. We’re far from the days of “Reefer Madness.” “When you have a situation in a state like California, where there are cannabis stores in your neighborhood; when you can see what that looks like, and how much it’s different from the unregulated criminal market; when you can see the effects of businesses moving into storefronts that generate jobs and tax revenue,” then it’s far easier to change the minds of fearful or skeptical consumers — and political leaders — about legalization, says Tom Angell, publisher of Marijuana Moment, one of the nation’s leading trackers of developments and news in the cannabis industry....

California, which legalized the sale of recreational marijuana this past Jan. 1, essentially wrote the blueprint for moving from medicinal marijuana to full-scale legalization. The state’s cannabis market is expected to reach $5.1 billion in the next year — and $25 billion by 2026. That booming business potential on both the medical and recreational side has made it an attractive investment for Canadian companies like CannaRoyalty Corporation, which this year acquired a crowd of California-based cannabis firms that include FloraCal Farms, an “ultra-premium cannabis producer,” Oakland-based Alta Supply, a medical cannabis firm; Kaya Management, a vaporizer manufacturer, as well as RVR, a “large-scale distributor” of both medical and recreational cannabis....

Already, the immediate challenges of transitioning from legal medical to recreational markets have resulted in a flood of legislation aimed at addressing concerns and regulations in the U.S. Angell says that his publication, Marijuana Moment, tracked a whopping 863 bills in Congress related to cannabis this year alone. And along with that legislation has come a parade of “stakeholders invested in keeping legalization in effect — and eroding prohibition on the state and federal level.” That includes lobbyists, industry representatives, attorneys and innovators. What their growing numbers show is that “it will be increasingly hard for opponents to push back on the green wave,” he said.

With tens of thousands of Americans now employed in both the medical and recreational segments of the industry, and billions of dollars being generated in tax dollars for local and state governments, it’s no wonder that “so many ambitious politicians jumping in front of this issue,’’ Angell said. They’re not going back, he predicts: “There are too many people invested in legalization now.”

October 6, 2018 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, Who decides | Permalink | Comments (0)

Thursday, October 4, 2018

Could the feds really be gearing up for a criminal crackdown on Colorado's state-compliant marijuana businesses?

Bob-troyer-dojThe question in the title of this post is the one I have been thinking about since, Bob Troyer, the US attorney for the District of Colorado, authored this Denver Post commentary under the headline "It’s high time we took a breath from marijuana commercialization." Here are some key excerpts from the piece, with a few lines emphasized:

In 2012 we were told Colorado would lead the nation on a grand experiment in commercialized marijuana. Six years later — with two major industry reports just released and the state legislature and Denver City Council about to consider more expansion measures — it’s a perfect time to pause and assess some results of that experiment.

Where has our breathless sprint into full-scale marijuana commercialization led Colorado?  Well, recent reports from the Rocky Mountain High Intensity Drug Trafficking Area, from Denver Health, from Energy Associates, from the Colorado Department of Revenue and from the City of Denver should be enough to give everyone in this race pause.

Now Colorado’s youth use marijuana at a rate 85 percent higher than the national average.  Now marijuana-related traffic fatalities are up by 151 percent.  Now 70 percent of 400 licensed pot shops surveyed recommend that pregnant women use marijuana to treat morning sickness.  Now an indoor marijuana grow consumes 17 times more power per square foot than an average residence.  Now each of the approximately one million adult marijuana plants grown by licensed growers in Colorado consumes over 2.2 liters of water — per day.  Now Colorado has issued over 40 little-publicized recalls of retail marijuana laced with pesticides and mold.

And now Colorado has a booming black market exploiting our permissive regulatory system — including Mexican cartel growers for that black market who use nerve-agent pesticides that are contaminating Colorado’s soil, waters, and wildlife....

As the U.S. attorney leading other U.S. attorneys on marijuana issues, I have traveled the country and heard what people are saying about Colorado. Do they tout Colorado’s tax revenue from commercialized marijuana? No, because there’s been no net gain: marijuana tax revenue adds less than one percent to Colorado’s coffers, which is more than washed out by the public health, public safety, and regulatory costs of commercialization.

Do they highlight commercialization’s elimination of a marijuana black market? No, because Colorado’s black market has actually exploded after commercialization: we have become a source-state, a theater of operation for sophisticated international drug trafficking and money laundering organizations from Cuba, China, Mexico, and elsewhere.

Do they promote our success in controlling production or containing marijuana within our borders? No, because last year alone the regulated industry produced 6.4 metric tons of unaccounted-for marijuana, and over 80,000 black market plants were found on Colorado’s federal lands.

Does the industry trumpet its promised decrease in alcohol use? No, because Colorado’s alcohol consumption has steadily climbed since marijuana commercialization. How about the industry’s claim that marijuana will cure opioid addiction? No, a Lancet study found that heavy marijuana users end up with more pain and are more likely to abuse opioids....

I’m not sure the 55 percent of Coloradans who voted for commercialization in 2012 thought they were voting for all this.

These impacts are why you may start seeing U.S. attorneys shift toward criminally charging licensed marijuana businesses and their investors.  After all, a U.S. attorney is responsible for public safety.

My office has always looked at marijuana solely through that lens, and that approach has not changed. But the public safety impacts of marijuana in Colorado have.  Now that federal enforcement has shot down marijuana grows on federal lands, the crosshairs may appropriately shift to the public harms caused by licensed businesses and their investors, particularly those who are not complying with state law or trying to use purported state compliance as a shield.

We should pause and catch our breath before racing off again at the industry’s urging. Let’s call it “just say know.” Let’s educate ourselves about the impacts of commercialization. Let’s reclaim our right as citizens to have a say in Colorado’s health, safety, and environment. Unfettered commercialization is not inevitable. You have a say.

I read this commentary as a warning of sorts, particularly to undercut the notion that some businesses may have that simply possessing a license from the state insulates them from federal prosecution.  In many ways, even when the Cole Memo was in place, that was not true.  But I sense from this piece that there is a growing concern about the way some in the licensed industry are operating, and this idea is made even clearer in this Westword piece with a Q&A with Mr. Troyer and this AP piece with additional quotes.

Were I involved in a Colorado marijuana business now, I would give particular attention to this statement from the AP piece: "'You can do plenty of harm to the community and still be in compliance with state law because those laws have a lot of loopholes and they're very permissive,' Troyer said." Specifically, if I was running a Colorado marijuana business, I would be spending a lot more time trying to document how my business was helping, rather than harming, the community (as well as, of course, documenting compliance with state laws).

October 4, 2018 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, September 18, 2018

Come see great panel on "Marijuana Policy in America" at "Laboratories of Democracy: Drug Policy In The United States"

The second part of the title of this post is the title of this exciting event taking place in Washington DC next week that I have had the honor of helping to plan.   The event will include a panel discussion on the opioid crisis and a panel discussion on marijuana reform, and here is the event's full description:

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event are available here and here.   I will be one of the speakers on the marijuana panel, and all the other participants are even more interesting.

September 18, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)

Monday, September 17, 2018

AG Jeff Sessions laments drug-impaired driving with special mentions of marijuana

Jeff-sessions-attorney-general-630x354Attorney General Jeff Sessions today delivered these remarks at a National Highway Traffic Safety Administration event titled "Ideas to Impact: A Dialogue to Address Drug-Impaired Driving." Here are excerpts:

It is especially important that we get the word out about this because currently there is a great deal of misinformation and misunderstanding out there. Some even seem to suggest that marijuana and other drugs do not pose accident risks.

In recent years, a number of states have repealed their prohibitions on marijuana use. As a result, too many people think that marijuana is legal and that it is even legal to drive under the influence of marijuana.

That’s wrong. Federal law has not changed and drugged driving laws have not changed. Drugged driving is illegal on every inch of American soil. People need to understand that.

There is another common myth out there, as well: that marijuana doesn’t impair driving. That’s also wrong. Marijuana use slows reaction time and inhibits motor coordination and decision-making abilities. That makes driving much more dangerous.

The bottom line is this: if you’re driving under the influence of drugs, including marijuana, then you’re risking your life — and the life of everyone else on the road.

One European study found that drivers high on marijuana were twice as likely to be responsible for a fatal crash as a sober driver.

Here in this country, the Governors Highway Safety Association put out a report back in May that says that — of those who are tested for drugs or alcohol — more drivers killed in car accidents last year tested positive for drugs than for alcohol. And by far the most common drug was marijuana, not opioids. Nearly a quarter of all drivers killed in car accidents who were tested had marijuana in their system — twice as many as tested positive for opioids.

In recent years, it has been getting worse. According to last year’s version of the report, the number of drivers killed in car accidents who tested positive for marijuana increased by nearly one-fifth from 2006 to 2016.

According to the Denver Post, the number of drivers killed in car accidents in Colorado who tested positive for marijuana doubled from 2013 to 2016. And so, in addition to the hundreds of thousands of Americans who have died of drug overdoses in recent years, another several thousand have died because of drug-impaired driving — either their own or that of someone else.

September 17, 2018 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (3)

Friday, September 14, 2018

Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider

A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post.  There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:

Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law.  He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary.  In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch.  However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered.  A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction.  We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.

Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:

I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification.  The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint.  At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests.  See Gonzales v. Raich, 545 U.S. 1, 29 (2005).  But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.  The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.

One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  The jury’s power to nullify has ancient roots, dating back to pre-colonial England.  See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)).  It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel.  See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994).  From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).

Cross-posted at Marijuana Law, Policy and Reform.

September 14, 2018 in Court Rulings, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Tuesday, September 11, 2018

"Medical marijuana users are being shut out of public housing"

Section8-2The title of this post is the title of this new Vice News piece telling yet another tale at the intersection of state marijuana reforms and federal prohibitions.  Here are excerpts:

Cancer patients and other people with debilitating conditions are being forced to choose between medical marijuana and federal public housing assistance. Even though some of the most conservative states are passing laws legalizing medical weed, marijuana is still a Schedule I controlled substance on a federal level, along with heroin and ecstasy, which can make users ineligible for programs like rental assistance or public housing....

“From a civil rights perspective, you’re denying a whole class of people housing that have already been denied other aspects of living their life to the fullest potential because of the federal prohibition on cannabis,” said David Mangone, director of governmental affairs and counsel for the advocacy group Americans for Safe Access. “No one should have to choose between staying off opioids and a roof over their head”

The majority of states now allow some form of medicinal marijuana. Americans overwhelmingly favor legalizing the drug for medical use. And in New York State — which hosts North America’s largest public housing population — medical marijuana is permitted to treat debilitating conditions such as cancer, chronic pain and Amyotrophic Lateral Sclerosis (ALS).

The U.S. Department of Housing and Urban Development released a memorandum in 2011 saying new admission applications revealing legal marijuana use would be denied, no matter the circumstance. However, the memorandum gave local landlords and public housing authorities the right to determine whether they should evict existing residents for medical marijuana use.

It’s not clear how many public housing authorities have sided with tenants on the local level, nor how many applicants have been rejected due to federal marijuana laws. But as more states normalize marijuana locally, it can make users ineligible for federal programs, like housing assistance.

When the 2011 memorandum was issued, 14 states had legalized medical marijuana. Now, 31 states and the District of Columbia have legalized cannabis for medicinal purposes, and the drug is becoming a viable alternative for patients that don’t want to use opioid drugs, many of whom are elderly or disabled. “There’s a much larger population now that’s affected by this guidance,” Mangone said....

A spokesman for HUD noted that their policies haven’t changed since the 2011 memorandum; they’re unable to reconsider their policy until federal laws regarding marijuana change. As long as marijuana remains a controlled substance, the rules “still apply, even where state law allows for its use,” Brian Sullivan, HUD spokesman, said in an email.

In June, Rep. Eleanor Holmes Norton, a non-voting Democrat representing the District of Columbia, introduced legislation that would allow residents in federally subsidized housing to use legal medical or recreational marijuana in their homes. “Individuals who live in states where medical and/or recreational marijuana is legal, but live in federally-assisted housing, should have the same access to treatment as their neighbors,” Norton said at the time.

September 11, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Monday, September 10, 2018

"Legitimate Medicine in the Age of Consumerism"

The title of this post is the the of this new paper recently posted to SSRN and authored by Matt Lamkin.  Here is its abstract:

From the opioid epidemic and medical marijuana to abortion restrictions and physician-assisted suicide, disputes over the proper uses of medicine loom large in American life.  Nowhere is this conflict more apparent than in federal drug control policy, which is premised on a clear distinction between legitimate “medical” uses and illicit “abuse.”  Yet the Controlled Substances Act defines neither of these foundational concepts . While it is tempting to imagine medicine’s scope is limited to treating or preventing disease – rendering nontherapeutic drug use “abuse” – in fact medical practice has always included interventions that are not aimed at healing.  This trend has only accelerated as medical practice has become increasingly consumer-oriented.  From Adderall to Xanax, patients now routinely seek prescriptions not to treat diagnosable illnesses, but to relieve stress, improve productivity, and otherwise enhance quality of life.

As physicians increasingly prescribe psychoactive drugs to help healthy people obtain desirable mental states, distinguishing legitimate drug use from recreational abuse becomes ever more difficult.  Having failed to acknowledge this challenge, the DEA, courts, and scholars have not offered a principled way to make this distinction, rendering drug control policy increasingly incoherent.  As a result, doctors face criminal prosecution without clear standards governing prescribing, potentially valuable interventions are arbitrarily barred from the market, and millions seek the benefits of drugs without professional medical guidance to mitigate their risks.

Rather than being limited to therapeutic aims, medicine is better understood as the application of a loosely-defined set of knowledge and interventions that the law entrusts to specific professionals, with accompanying duties to use these tools to benefit patients.  Medical practice includes treating and preventing illnesses, but can also include enhancing social and cognitive functioning and promoting the well-being of people whose challenges do not rise to the level of disorders.  Discarding a narrow conception of medicine does not require abandoning the enforcement of drug laws or the policing of doctors. But acknowledging the expansiveness of medicine’s domain does argue for clarifying the scope of physicians’ criminal liability and pursuing new strategies for harnessing drugs’ benefits while mitigating their risks.

September 10, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, August 29, 2018

BuzzFeed reporting Trump Administration effort to assemble "data demonstrating the most significant negative trends" and "threats" posed by marijuana reforms

Avatars-000114258398-2fkvx7-t500x500BuzzFeed News has this important scoop on an important effort by the Trump Administration to develop data and arguments against marijuana reform.   The full title of the article provides a basic summary: "Inside The Trump Administration’s Secret War On Weed: The Marijuana Policy Coordination Committee wants to counteract positive marijuana messages and identify problems with state legalization initiatives, according to documents obtained by BuzzFeed News."  The whole piece is today's must-read, and here are highlights:

The White House has secretly amassed a committee of federal agencies from across the government to combat public support for marijuana and cast state legalization measures in a negative light, while attempting to portray the drug as a national threat, according to interviews with agency staff and documents obtained by BuzzFeed News.

The Marijuana Policy Coordination Committee, as it’s named in White House memos and emails, instructed 14 federal agencies and the Drug Enforcement Administration this month to submit “data demonstrating the most significant negative trends” about marijuana and the “threats” it poses to the country.

In an ironic twist, the committee complained in one memo that the narrative around marijuana is unfairly biased in favor of the drug. But rather than seek objective information, the committee’s records show it is asking officials only to portray marijuana in a negative light, regardless of what the data show.

“The prevailing marijuana narrative in the U.S. is partial, one-sided, and inaccurate,” says a summary of a July 27 meeting of the White House and nine departments. In a follow-up memo, which provided guidance for responses from federal agencies, White House officials told department officials, “Departments should provide … the most significant data demonstrating negative trends, with a statement describing the implications of such trends.”

As several states have approved laws allowing adults to use and purchase cannabis, critics have contended lax attitudes will promote drug abuse, particularly among youth, and they have pressed for a federal crackdown. The White House at one point said more pot enforcement would be forthcoming, though President Donald Trump has never said he was onboard with that agenda and he announced in June that he "really" supports new bipartisan legislation in Congress that would let state marijuana legalization thrive.

However, the committee’s hardline agenda and deep bench suggest an extraordinarily far-reaching effort to reverse public attitudes and scrutinize those states. Its reports are to be used in a briefing for Trump “on marijuana threats.”

“Staff believe that if the administration is to turn the tide on increasing marijuana use there is an urgent need to message the facts about the negative impacts of marijuana use, production, and trafficking on national health, safety, and security,” says the meeting summary....

Coordinated by White House Office of National Drug Control Policy, the committee met on July 27 with many of the largest agencies in the federal government, including the departments of Justice, Homeland Security, Health and Human Services, and State. An unclassified summary of the meeting, obtained by BuzzFeed News, says the memo is “predecisional and requires a close hold.” And it says the notes were not to be distributed externally.

The White House followed up the next week by sending agencies and other departments — including the departments of Defense, Education, Transportation and Veterans Affairs, as well as the Environmental Protection Agency — instructions to submit two-page, bulleted fact sheets that identify marijuana threats and issues with the initiatives by Aug. 10....

Departments were told to “identify marijuana threats; issues created by state marijuana initiatives; and consequences of use, production, and trafficking on national health, safety, and security.” The agencies should also provide an example of a “story, relating an incident or picture, that illustrates one or more the key areas of concern related to use, production, and trafficking of marijuana,” the White House guidance says. The agencies were asked to describe how the drug poses threats to their department and the consequences of marijuana “on national health and security.”...

None of the 14 agencies BuzzFeed News contacted for this story, the DEA, or the White House denied the marijuana committee’s existence.

John Hudak, a senior fellow at the Brookings Institution, blasted the committee’s slanted approach to the facts and the “alienating effort on behalf of the president. ” “This is a terrible political move by the administration,” he told BuzzFeed, saying that the committee’s agenda betrays Trump’s pledges to protect states from federal intervention — a position with overwhelming public support.  Hudak added it would be “policy malpractice” to only collect one-sided data.  “The coordination of propaganda around an issue that the president ostensibly supported is fairly unprecedented.”

“This is a president who is not serious about states rights and regulatory reform in areas like drug policy, and is not serious about telling the truth to the American people or members of Congress from his own party," Hudak said, pointing to Colorado Sen. Cory Gardner, a Republican, who authored legislation that would protect states rights on marijuana and has praised Trump on the issue.

I share John Hudak's concerns about the one-sided approach to collecting data that is apparently afoot inside the Trump Administration. But I am more generally inclined to complain about the last three administrations for their collective failure to take seriously and consider studying all the state policy initiatives that have developed in this space.  State-authorized medical marijuana use has been going on now for more than two decades, and the array of state legal and policy developments in the marijuana space are too great to even take in completely.  The feds for years should have been trying to study and assess the import and impact of state innovations, and I suppose I am a bit pleased to see someone is finally really trying to pay attention.  I sure wish the folks inside the Beltway could pay attention without minds already made up, but I suppose there is a limit to what one can hope to get from our tax dollars at work.

August 29, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Thursday, August 23, 2018

"Harmonizing Federal Tax Law and the State Legalization of Marijuana"

The title of this post is the title of this new paper authored by Daniel Rowe now available via SSRN. Here is its abstract:

As states legalize marijuana and cannabis-derived products, both for medical and recreational use, the punitive federal tax effect of section 280E makes it economically impossible for many marijuana-related businesses to function profitably. By disallowing the deduction of otherwise legitimate business expenditures, the Internal Revenue Code places such businesses in a situation where they are potentially paying federal income tax on their gross receipts despite netting much less in actual income.  This article explores the disproportionate tax burden on marijuana sellers and the growing tension between current federal tax law and states’ legalization of marijuana.

This article recommends the amendment of section 280E to eliminate this burden.  It is structured in four parts.  Part II discusses the history and legislative intent behind section 280E. It delves into the differing tax treatment for illegal drug traffickers versus that of other illegal activities.  Part III describes the effects of section 280E, both intended and unintended, on state-legal marijuana sellers as well as on the overall marijuana industry.  It explains how the original intent of section 280E, specifically as it relates to marijuana sellers, has been undermined by the changing public attitude towards marijuana and the rise of legal medical and recreational marijuana facilities.  This part also considers the onerous tax regime placed on state-legal marijuana businesses due to the inability to deduct ordinary expenses, and how this regime could be counter-productive to overall tax policy.  Part IV describes several alternative solutions to eliminate the reach of section 280E to state-legal marijuana businesses.  It concludes with the recommendation to amend section 280E to make it inapplicable to activities that are statutorily legal in the states in which they are conducted.

August 23, 2018 in Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (1)

"Up in Smoke: Removing Marijuana From Schedule I"

The title of this post is the title of this new paper authored by David Katner now available via SSRN.  Here is its abstract:

With over 600,000 marijuana arrests nationwide, and more Americans being incarcerated than for any other crime in the nation's history, the Controlled Substances Act of 1970 should be amended to eliminate the inclusion of cannabis or marijuana from Schedule I.   Americans spent nearly $6 billion on "legal" cannabis last year alone, and the trend among states has been to legalize the use of cannabis for both medicinal purposes and recreational purposes.   The initial prohibition, the Marijuana Tax Act of 1937  was largely influenced by racially charged propaganda and a lack of any scientific studies of the substance.  By removing the substance altogether from federal regulatory control, states would be allowed to determine for themselves how to regulate the use and dissemination of the substance.  The adoption of state laws recognizing the various medical benefits of the marijuana plant will not have full force until the federal regulatory scheme has been altered.

August 23, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, August 18, 2018

Newsweek cover story spotlights "How Republicans Learned to Love Marijuana"

Jk77C_Ig_400x400The feature article in the August 24 issue of Newsweek is headlined "Legal Weed: How Republicans Learned to Love Marijuana." The lengthy piece is worth reading in full, and here are excerpts:

[At Texas's] 2018 Republican ­Party convention in San Antonio in June, nearly 10,000 conservative politicians voted to revise the ­party platform on marijuana. The changes included supporting industrial hemp, decriminalizing small amounts of marijuana possession and urging the federal government to reclassify cannabis from a Schedule 1 to a Schedule 2 drug.

These planks, while still some of the most conservative approaches to marijuana policy in the country, were a marked departure from the party’s position a few years prior. And they’re indicative of the ­transformation happening with Republican voters and officials nationwide.

The motives are mixed. Some, like Isaac, were moved by arguments about its medical uses. For others, the shift is an attempt at criminal justice reform after years of racial discrimination. Some conservative lawmakers tout marijuana ­policy changes in the name of federalism and small government, and others say it might be the only bipartisan issue left in Congress. Regardless, Republicans can’t deny that marijuana legal­ization is popular among younger, more diverse voters who could help the party survive....

Senator Cory Gardner, a Colorado Republican, vowed to block the president’s Department of Justice nominees until he received a commitment that his state’s rights would not be infringed [after AG Jeff Sessions rescinded the Cole Memo]. Gardner tells Newsweek that in a sit-down meeting with the president in April, Trump said leaving cannabis laws up to the states was “the right thing to do and that we’re not going back.”

Gardner then went on to create the Strengthening the 10th Amendment Through Entrusting States (STATES) Act, along with Massachusetts Democratic Senator Elizabeth Warren. The bill would eliminate any federal prosecution of marijuana users or sellers in states that had legally ­authorized such actions. “We’re looking at it. But I probably will end up supporting that, yes,” Trump told reporters in June, striking a big blow to Sessions.

In a polarized era, the bill is impressively bipar­tisan. Five conservatives and four liberals co-­sponsored the legislation in the Senate, including names you would never expect to be on the same side — like Jeff Flake and Cory Booker. It has significant “cross-cut appeal,” Gardner says. He hopes the bill will gain momentum after the midterm elections.

But for Republicans, the effort to ensure states’ rights when it comes to marijuana policy is more important than a bipartisan collaboration. “It’s a federalism experiment,” Gardner says. “Republicans who have long been champions of states’ rights can choose this as a moment to prove it.”...

Already, politicians are beginning to see the benefits of supporting the cannabis industry through campaign fundraising. Rohrabacher, who is facing his toughest re-election campaign in three decades and is seen as one of the most vulnerable Republicans in the House, has been rewarded for his pro-weed stance. The congressman has gained $5,000 checks from companies and organizations including Weedmaps, Scotts Miracle-Gro and the National Cannabis Industry Association. Since 2016, Rohrabacher has received more than $80,000 in marijuana industry money.

In the long run, Republican lawmakers may support marijuana decriminalization for the simple fact that it may help them get elected as they play a catch-up game with young, nonwhite voters. An estimated 24 million people ages 18 to 29 cast votes in the 2016 election. In that demographic, Donald Trump lost to Hillary Clinton by an 18-point margin. Millennials are about to inherit the kingdom as the largest voting block in the country, and, according to one poll, over 80 percent believe the drug is safer than alcohol.

August 18, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, July 30, 2018

"Wanna Beat Trump’s Supreme Court Nominee? Focus on Marijuana"

Brett-kavanaughThe title of this post is the headline of this intriguing new Daily Beast commentary authored by Jeff Hauser.  I recommend the whole piece, and here are extended excerpts:

What if I were to tell you that there is a political issue that galvanizes young voters?  An issue that unites libertarians, independents, and African-Americans?  An issue with bipartisan power, that works not only in cities, but has demonstrated strength in red states like Kentucky and West Virginia? 

It’s an issue likely to generate cases to be heard by the Supreme Court in the next decade and one on which the Trump administration’s leading law enforcement official — Attorney General Jeff Sessions — is already on the losing side politically.

Given all that, you would think this issue would be a central part of the Democratic Party’s campaign against Brett Kavanaugh’s nomination for the Supreme Court.  You would think wavering Democrats and shaky Republican senators would be targeted on the basis of the threat Kavanaugh poses on this issue.  But because the progressive movement sometimes makes political basics look liking trying to solve Fermat's Last Theorem, you would be wrong.

The issue I speak of is marijuana.  And it is likely to be a source of many complicated legal disputes in the coming decade, disputes that will be of increasing salience to American voters and, by turn, the Supreme Court.

In fact, the Supreme Court has already had to deal with some marijuana-related matters.  Just a few years ago, it was asked to weigh in on Colorado’s decision to legalize marijuana. Nebraska and Oklahoma argued Colorado’s law was preempted by the federal Controlled Substances Act, and that the court should enjoin Colorado from implementing its law.  Nebraska and Oklahoma complained that Colorado’s decision to legalize marijuana “undermin[ed] their own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”

On presumably technical grounds, six members of the Court declined to hear the lawsuit, but without prejudice (meaning there was no implication those Justices disagreed on the merits and the states could pursue their theory in the lower courts). Justice Clarence Thomas, joined by Justice Samuel Alito, dissented from the decision to not hear the case not only on technical grounds, but also by noting that Nebraska and Oklahoma have alleged “significant harms to their sovereign interests caused by another State.”  They stated that those allegations were significant enough to warrant the Court’s attention.

That decision was back in 2016. How will Justice Neil Gorsuch (typically an ally of Thomas and Alito) feel when this question comes back to the Court now, as it likely will?  How would a Justice Kavanaugh, who most well-informed observers believe is essentially Gorsuch 2.0, feel about it?  Would Chief Justice John Roberts feel differently about it with a social-issues moderate like Justice Anthony Kennedy no longer on the Court?

These are important questions, affecting a massive and growing industry that a growing portion of the population supports.  And yet, they’ve been completely unasked during this current debate about the future composition of the Court....

It’s impossible, of course, to say for sure whether other questions surrounding marijuana legalization will come to the Court, or in what form.  But it appears likely.  Even the intersection of banking law and drug policy is a messy thicket right now.  America’s slow burning experiment with marijuana reform raises many as yet unclarified legal issues.

And that’s why those who are interested in marijuana legalization should also want to know what Judge Brett Kavanaugh thinks about the host of legal questions that might ultimately decide its future.

As a political matter, there are few better cards for the Democratic Party to play.  According to Gallup, support for legalization has "risen from 12 percent in 1969 to 31 percent in 2000 to 64 percent in 2017."  Several other surveys reveal similar increases.  An April 2018 Quinnipiac poll shows support for marijuana legalization not only strong among Democrats (75 percent) but Independents as well (67 percent), and even 41 percent of Republicans.

Support remains strongest among millennials — a group that commentators have noted is crucial to Democrats’ performance in this November’s midterm elections — but it has also risen rapidly among all age groups and places.  This past June, Oklahoma — Oklahoma! — voted to legalize marijuana.

In an environment in which marijuana is salient to the Supreme Court and many voters, the fact that marijuana is not part of the effort to secure red and purple state Senate votes against Kavanaugh is a little perplexing.

Not least because it has already proven to be a topic that can compel lawmakers to act.  Senators with “the federalist position” on-marijuana includes progressives like Senators Cory Booker and Kirsten Gillibrand but also Republicans “Rand Paul, Lisa Murkowski, and Mike Lee.”

But no Senator better reflects the potential of the marijuana issue as a wedge than Colorado’s Cory Gardner.  Just last month, Gardner and Sen. Elizabeth Warren (D-MA) released a marijuana legislation reform bill to “give states the right to determine the best approach to marijuana within their borders.”  And for three months this winter, Gardner held up all Justice Department nominees in an effort to force Attorney General Sessions to agree to leave Colorado’s marijuana industry alone.

That display of spine was about as much as any Republican Senator has shown in attempting to restrain the Trump Administration to date.  But it also made sense.  Being viewed as a fighter for Colorado's right to legalize marijuana is likely pivotal to Gardner's political survival.  In 2014, Gardner won his seat in a GOP wave by a mere 2 points. In 2020, he will be facing an uphill battle since he holds the single most pro-Hillary Clinton seat of any Republican in the U.S. Senate....

Marijuana is not a staple of Supreme Court fights. The issue advocacy groups that focus on marijuana do not typically focus on the Supreme Court. And Cory Gardner is not a typical target for Democrats. But “typical” isn’t good enough. It is sadly clear that if progressive groups and Democrats rely exclusively on raising the same issues they raised in the Gorsuch “fight” in 2017, Kavanaugh will be confirmed easily.

Marijuana reform is one of the most important new political issues of this era and it’s about time Democrats and progressives take it seriously.

I do not think questions about marijuana will lead to "beating" Supreme Court nominee Brett Kavanaugh, but I do think it quite sound to urge Senators to ask Judge Kavanaugh about the range of federalism and personal freedom issues that surround modern marijuana reform.  In this post upon Justice Anthony Kennedy announcing his retirement, I asked "With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?".   Asking questions about Raich could be one of a number of ways to probe Judge Kavanaugh's views on these important topics.

July 30, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, July 25, 2018

Disconcerting disconnect between Trumpian rhetoric and health care realities for veterans when medical marijuana involved

Cover.vetsandmarijuana3.12-22Prez Donald Trump yesterday gave a big speech to the VFW, Veterans of Foreign Wars, and he extolled his commitment to ensuring veterans receive first-rate health care: "We’re also committed to ensuring that when our warriors return home as veterans, they receive the best care anywhere on Earth." Unfortunately, as this new New York Times highlights, this rhetoric does not meet reality in at least one notable setting. The lengthy article is headlined "V.A. Shuns Medical Marijuana, Leaving Vets to Improvise," and here are excerpts:

Some of the local growers along the [California] coast here see it as an act of medical compassion: Donating part of their crop of high-potency medical marijuana to ailing veterans, who line up by the dozens each month in the echoing auditorium of the city’s old veterans’ hall to get a ticket they can exchange for a free bag.

One Vietnam veteran in the line said he was using marijuana-infused oil to treat pancreatic cancer. Another said that smoking cannabis eased the pain from a recent hip replacement better than prescription pills did. Several said that a few puffs temper the anxiety and nightmares of post-traumatic stress disorder. “I never touched the stuff in Vietnam,” said William Horne, 76, a retired firefighter. “It was only a few years ago I realized how useful it could be.”

The monthly giveaway bags often contain marijuana lotions, pills, candies and hemp oils, as well as potent strains of smokable flower with names like Combat Cookies and Kosher Kush.  But the veterans do not get any medical guidance on which product might help with which ailment, how much to use, or how marijuana might interact with other medications.

Ordinarily, their first stop for advice like that would be the Department of Veterans Affairs health system, with its thousands of doctors and hundreds of hospitals and clinics across the country dedicated to caring for veterans.  But the department has largely said no to medical marijuana, citing federal law.  It won’t recommend cannabis products for patients, and for the most part it has declined even to study their potential benefits. That puts the department out of step with most of the country, where at least 30 states now have laws that allow the use of medical marijuana in some form.

A department survey suggests that nearly a million veterans may be using medical marijuana anyway. But doctors in the veterans’ health system say the department’s lack of research has left them without much good advice to give veterans.  “We have a disconnect in care,” said Marcel Bonn-Miller, a psychologist who worked for years at the veterans’ hospital in Palo Alto, Calif., and now teaches at the University of Pennsylvania medical school.  “The V.A. has funded lots of marijuana studies, but not of therapeutic potential. All the work has been related to problems of use.”...

A bipartisan bill introduced in the House of Representatives this spring would order the department to study the safety and efficacy of marijuana for treating chronic pain and PTSD. If the bill passes, the department could not only develop expertise about a drug that many veterans have turned to on their own — it may also start down the road toward eventually allowing its doctors and clinics to prescribe cannabis.

“I talk to so many vets who claim they get benefits, but we need research,” said Representative Tim Walz, Democrat of Minnesota, who introduced the bill along with Phil Roe, Republican of Tennessee, who is a physician. “You may be a big advocate of medical marijuana, you may feel it has no value,” Mr. Walz said. “Either way, you should want the evidence to prove it, and there is no better system to do that research than the V.A.”

A spokesman for the Department of Veterans Affairs said Congress would need to do more than pass the current House bill. The spokesman, Curt Cashour, said that because cannabis is classified as a Schedule 1 drug under federal law, researchers would need to secure approval from five separate agencies to conduct studies. “The opportunities for V.A. to conduct marijuana research are limited because of the restrictions imposed by federal law,” Mr. Cashour said. “If Congress wants to facilitate more federal research into Schedule 1 controlled substances such as marijuana, it can always choose to eliminate these restrictions.”

The department does have two small studies in their early stages. One, in San Diego, looks at whether cannabidiol, a nonintoxicating component of cannabis, can help patients during PTSD therapy; it is scheduled to continue through 2023. The other, planned for South Carolina, would examine the palliative effects of cannabis in hospice patients. “In a system as big as ours, that’s not much, certainly not enough,” said Dr. David J. Shulkin, who was President Trump’s first secretary of veterans affairs before being fired in March.

During his tenure as secretary, Dr. Shulkin eased some rules, allowing the department’s doctors to start talking to veterans about medical marijuana. But many veterans faulted him for not going further. Dr. Shulkin said that the tangle of red tape surrounding Schedule 1 drug studies should no longer be an excuse not to conduct them. “We have an opioid crisis, a mental health crisis, and we have limited options with how to address them, so we should be looking at everything possible,” he said.

The push for more research and for access to medical marijuana in the veterans’ health system is not coming just from liberal areas of California. The generally conservative American Legion and Veterans of Foreign Wars both favor expanded research. And some of the most vocal advocates are products of the nation’s strict military academies. “Cannabis is the safe, responsible choice,” said Nick Etten, an Annapolis graduate and former Navy SEAL who runs an advocacy group called the Veterans Cannabis Project. “It helps with the Big Three we struggle with after combat — pain, sleep and anxiety — and it is safer than many medications.”

Lots of recent prior related posts:

July 25, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, July 24, 2018

Hooray for the proposed new "Marijuana Data Collection Act" ... but ...

Images (2)Tom Angell reports here at Forbes on the introduction of a new piece of federal legislation that I consider long overdue.   Here are the details:

The Marijuana Data Collection Act, introduced on Tuesday by Rep. Tulsi Gabbard (D-HI) and a bipartisan group of cosponsors, would direct the Department of Health and Human Services to partner with other federal and state government agencies to study "the effects of State legalized marijuana programs on the economy, public health, criminal justice and employment."...

If the legislation is enacted, the National Academy of Sciences would carry out the research and publish initial findings within 18 months, with follow-up reports to be issued every two years after that.

So far, the bill's backers seem to consist solely of those who support marijuana law reform, a situation that legalization advocates decried.  “This is not a marijuana bill, it is an information bill," Justin Strekal, political director for NORML, said in an interview.  "No member of Congress can intellectually justify opposition to this legislation. Our public policy needs to be based on sound data and science, not gut feelings or fear-mongering.  Approving the Marijuana Data Collection Act would provide legislators with reliable and fact-based information to help them decide what direction is most beneficial to society when it comes to marijuana policy.”...

Gabbard held a Tuesday morning press conference with other supporters, including lead GOP cosponsor Rep. Carlos Curbelo (R-FL) and former U.S. Attorneys Barry Grissom of Kansas and Bill Nettles of South Carolina. Other original cosponsors of the bill include Reps. Don Young (R-AK), Darren Soto (D-FL), Beto O’Rourke (D-TX), Earl Blumenauer (D-OR), Dana Rohrabacher (R-CA), Matt Gaetz (R-FL), Peter DeFazio (D-OR), Eleanor Holmes Norton (D-DC), Dina Titus (D-NV), Charlie Crist (D-FL), Tom Garrett (R-VA), Lou Correa (D-CA), Barbara Lee (D-CA), Mark Pocan (D-WI) and Salud Carbajal (D-CA).

Here are the specific data points the bill directs federal officials to track:

REVENUES AND STATE ALLOCATIONS

The monetary amounts generated through revenues, taxes, and any other financial benefits. The purposes and relative amounts for which these funds were used. The total impact on the State and its budget.

MEDICINAL USE OF MARIJUANA

The rates of medicinal use among different population groups, including children, the elderly, veterans, and individuals with disabilities. The purpose of such use. Which medical conditions medical marijuana is most frequently purchased and used for.

SUBSTANCE USE

The rates of overdoses with opioids and other painkillers. The rates of admission in health care facilities, emergency rooms, and volunteer treatment facilities related to overdoses with opioids and other painkillers. The rates of opioid-related and other painkiller-related crimes to one’s self and to the community. The rates of opioid prescriptions and other pain killers.

IMPACTS ON CRIMINAL JUSTICE

The rates of marijuana-related arrests for possession, cultivation, and distribution, and of these arrests, the percentages that involved a secondary charge unrelated to marijuana possession, cultivation, or distribution, including the rates of such arrests on the Federal level, including the number of Federal prisoners so arrested, disaggregated by sex, age, race, and ethnicity of the prisoners; and the rates of such arrests on the State level, including the number of State prisoners so arrested, disaggregated by sex, age, race, and ethnicity. The rates of arrests and citations on the Federal and State levels related to teenage use of marijuana. The rates of arrests on the Federal and State levels for unlawful driving under the influence of a substance, and the rates of such arrests involving marijuana. The rates of marijuana-related prosecutions, court filings, and imprisonments. The total monetary amounts expended for marijuana-related enforcement, arrests, court filings and proceedings, and imprisonment before and after legalization, including Federal expenditures disaggregated according to whether the laws being enforced were Federal or State. The total number and rate of defendants in Federal criminal prosecutions asserting as a defense that their conduct was in compliance with applicable State law legalizing marijuana usage, and the effects of such assertions.

EMPLOYMENT

The amount of jobs created in each State, differentiating between direct and indirect employment. The amount of jobs expected to be created in the next 5 years, and in the next 10 years, as a result of the State’s marijuana industry.

Because I cannot yet find the full text of the bill on-line, I cannot yet provide a full informed opinion on its particulars.  I can say that I think a big, data-focused federal study of the impact of state marijuana reform is looooooooong overdue.  I was hopeful, but not optimistic, that Prez Obama might see the wisdom and political value of pushing for this kind of study effort after the issuance of the 2013 Cole Memo and after the 2014 election brought more states and DC into the recreational marijuana column.  But, sadly, we have been left largely with national number crunching by partisan advocates rather than government bean-counters for now two decades of ever-more-robust state-level reforms.

Based on Tom's description of the "Marijuana Data Collection Act," I am a bit concerned that there are not provisions likely to encourage pot prohibitionists to be supportive of this particular study effort.   The folks at SAM are often eager to stress data on black markets, increased use of marijuana by workers, increased hospital visits, increased homelessness, increased drugged driving, increased use by youths and young adults, environmental impacts,  and all sorts of other concerns (see, e.g., this SAM "lessons learned" report from March 2018).  It is unclear if these kinds of potentially negative data are fundamental parts of the inquiry imagined by Marijuana Data Collection Act.  If not, I doubt opponents of marijuana reform will want to sign on to this bill.

That said, even if the current version of the "Marijuana Data Collection Act" is in someway incomplete or one-sided, I hope a lot of folks on all sides of the marijuana reform debate will be inclined to try to make the bill better and get it passed.  I sincerely hope nobody disagrees with the notion that sound data and science is needed in this arena, and I sense both sides of the debate sincerely believe that the data, if fairly collected, will be on their side.  So maybe all can come together to really work toward trying to have all the data fairly collected (though I am not holding my breath).

July 24, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (0)

Monday, July 23, 2018

Prominent US Representative for Ohio now advocating that "marijuana should be legal in all 50 states"

220px-Rep._Tim_Ryan_Congressional_Head_Shot_2010CNN recently published this recent commentary advocating federal marijuana reform that is particularly notable because of its author: Tim Ryan, a Democrat representing Ohio's 13th congressional district who is co-chair of the House Addiction, Treatment, and Recovery Caucus (and who at least once had aspirations to be a party leader in the House). Here are excerpts from the commentary:

The year Donald Trump was elected President, more Americans were arrested for marijuana possession than for all violent crimes combined.  Moreover, the ACLU found that even though African-Americans use marijuana at similar rates to white Americans, they are almost four times more likely to be arrested for marijuana possession....

As co-chair of the House Addiction, Treatment, and Recovery Caucus, I've been hesitant to support legalizing marijuana in the past.  But after meeting with countless Ohio families and youth whose lives have been irreparably harmed by a marijuana arrest, I find the social and economic injustices of our marijuana policy too big to ignore.  I firmly believe no person should be sentenced to a lifetime of hardship because of a marijuana arrest. It is morally wrong and economically nonsensical.  That is why I am calling for an end to marijuana being used as an excuse to lock up our fellow Americans.

Marijuana should be legal in all 50 states. Across the country, nine states and the District of Columbia have passed laws legalizing marijuana.  Voters in Michigan and Oklahoma will be voting on marijuana initiatives this November, and efforts are underway in Missouri, Arizona, Nebraska and Utah to get legalization initiatives on the ballot. While I support these states for leading by example, this is an issue that affects every corner of our nation.  You should not be able to legally buy a product in one state, just to be arrested for the very same act in another.

Studies have shown that marijuana legalization could save $7.7 billion in averted enforcement costs and add $6 billion in additional tax revenue -- a $13.7 billion net savings.  Not to mention the reported 782,000 jobs it could create on day one.  Think of what our country could do with that money: rebuild our highways, bridges, and railroads; provide our communities with the resources they need to respond effectively to substance abuse and the opioid epidemic; and create jobs....

Congress can change this by passing the Marijuana Justice Act.  This legislation would remove marijuana's designation as a Schedule I drug -- those classified as having no accepted medical use and a high potential for abuse.  It would also eliminate all criminal penalties for an individual who imports, exports, manufacturers, distributes, or processes with intent to distribute marijuana.  To create economic opportunity in communities devastated by mass incarceration, the bill creates a $500 million community reinvestment fund to provide job training for the nascent legal cannabis industry.

The War on Drugs failed the American people. It is time for us to take the necessary steps to right our nation's wrongs.  We cannot afford to leave people behind and money on the table. If we are truly a nation that believes in second chances, our federal marijuana laws must change.  America is speaking. Congress must act.

July 23, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (3)

Friday, July 13, 2018

"Behind Schedule — Reconciling Federal and State Marijuana Policy"

Nejmp1804408_f1The title of this post is the title of this new Perspectives piece appearing in the The New England Journal of Medicine and authored by Rebecca Haffajee, Robert MacCoun and Michelle Mello. I recommend the piece highly in part because of its terrific graphic under the heading "U.S. Marijuana Policy Milestones, 1970–2018." Here is part of its text:

The present state of conflicting laws seems unstable and suboptimal for rational drug control. Federal regulation that accommodates and reinforces state medical marijuana regulatory regimes would result in a safer, more reliable, more accessible supply of marijuana products. Congress, because it answers to the people and represents the states, appears the most likely branch to move on marijuana policy; it could even be encouraged to act by Canada’s recent legalization of recreational marijuana.  Federal courts are increasingly hearing challenges to marijuana’s Schedule I status but have so far been unwilling to deem Congress’s scheduling determination irrational and therefore unconstitutional.

In Congress, rescheduling marijuana by amending the CSA is one attractive option.  The executive branch, too, can reschedule CSA substances, but the mechanisms are time consuming and unlikely to attract interest within the current administration.  Because considerable evidence now supports marijuana’s therapeutic benefits in reducing chronic pain, nausea, and vomiting in patients with cancer, as well as multiple sclerosis–related muscle spasms, there is a compelling argument that marijuana is more appropriately designated as a Schedule II or Schedule III drug.  Rescheduling would facilitate further study of products for FDA approval, but would not automatically change the severity of penalties for marijuana crimes or alter international treaty obligations, enshrined in the CSA, to ensure that all psychoactive substances are used only for legitimate medical and scientific purposes.

Congress could also remove marijuana from the CSA schedules altogether. This dramatic action could be coupled with legislation authorizing FDA oversight of marijuana products. Whether marijuana’s psychoactive effects preclude this move away from regulation as a controlled substance would provoke considerable debate. Subjecting marijuana products to FDA approval would hinder access initially but ultimately foster a robust system for regulation and research. FDA oversight of marketing would also improve product safety and consistent promotion across states.

The [proposed] legislation [sponsored by Senators Gardner and Warren] represents a third option designed to respect states’ rights — codifying the approach articulated in the Cole Memorandum by amending the CSA to exempt marijuana activities that are lawful in the jurisdiction where they occur. This solution would be more permanent than attorney-general guidance or agreements between states and the attorney general regarding enforcement, which shift with the political winds, and would therefore promote stability for medical users and suppliers. But it would not facilitate research into marijuana harms and benefits, bring products within the FDA’s purview to ensure safety and efficacy, alleviate interstate health risks, or address potential conflicts with international treaty obligations.

We think this third option, which addresses some pressing conflict-of-law concerns such as unpredictable criminal enforcement, is preferable to the current blurred vision of the future of marijuana policy.  Ultimately, a more comprehensive federal regime that perhaps resembles Canada’s recent legalization of recreational marijuana could affirmatively promote health and safety through research and regulation.

July 13, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

Wednesday, July 11, 2018

"Guns N’ Ganja: How Federalism Criminalizes the Lawful Use of Marijuana"

Guns-and-mmjThe title of this post is the title of this notable new article authored by Ira Robbins now available via SSRN.  Here is its abstract:

Federalism is a vital tenet of our Republic.  Although federal law is the supreme law of the land, our Constitution recognizes the integral role that state law plays in the national scheme.  Like any pharmaceutical drug that withstands rounds of clinical testing, state law functions as a laboratory in which Congress can evaluate and potentially adopt novel policies on a nation-wide basis.  Most of the time, federal and state law exist harmoniously, complementing one another; other times, however, the two systems clash, striking a dissonant chord.

In the United States, state marijuana laws are currently on a crash course with federal marijuana law, exemplifying the discordant consequences our dual-system of laws sometimes generates.  Eight states and the District of Columbia have legalized recreational marijuana use, yet under the Controlled Substances Act (“CSA”) marijuana remains illegal in the eyes of federal law. Mere confusion concerning the legality of marijuana is not the only consequence, however.  One notable casualty ensuing from the battle of the mutually exclusive federal and state marijuana laws is the deprivation of rights belonging to the unsuspecting, average citizen.

The CSA establishes a schedule of drugs, and various federal regimes — such as entitlement programs and welfare benefits — impose compliance with the CSA as a necessary antecedent for conferral of those benefits.  For example, although possessing a firearm is a fundamental right under the Second Amendment, citizens who wish to lawfully smoke marijuana can no longer avail themselves of this fundamental right. Section 922(g)(3) of the Gun Control Act prevents users of Schedule I drugs pursuant to the CSA — irrespective of state law — from possessing or owning a firearm. Marijuana, despite its lack of potential for addiction, plethora of medical benefits, and disconnect from violence, has always been a Schedule I drug — essentially deemed more addictive and dangerous than methamphetamine, a Schedule II drug. Unknowing, ordinary citizens are consequently caught in this legal black hole, contemplating how conduct can be both lawful and unlawful.

This Article proposes a simple solution to a complex problem: deschedule marijuana.  The Article first surveys the past, observing that the Nixon Administration’s placement of marijuana in Schedule I rang of racial undertones, and then examines the present, noting the majority of states that have legalized medicinal marijuana and the numerous anecdotal reports of its alleviating properties.  Further, enforcing § 922(g)(3) against individuals who consume marijuana lawfully pursuant to state law simultaneously overreaches and under-reaches, failing to target the violent criminals that Congress initially sought to apprehend.  Thus, the federal government’s insistence on maintaining marijuana in Schedule I undermines principles of federalism and prevents law-abiding citizens from fully exercising their constitutional right to own a firearm.

July 11, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Saturday, July 7, 2018

"Defying Congress, Jeff Sessions Keeps Blocking Medical Marijuana Research"

The title of this post is the headline of this recent Reason piece by Mike Riggs, which gets started this way:

It's been almost two years since the Drug Enforcement Administration (DEA) began accepting applications for new growers of research cannabis, and two dozen applicants are still in regulatory limbo.

Since the DEA announced in August 2016 that it would end the federal monopoly on producing cannabis for scientific research in the United States, growers, investors, researchers, applicants, and even members of Congress have sought to understand why a relatively simple licensing review process has stretched on for nearly two years. The answer is pretty straightforward: Attorney General Jeff Sessions, for reasons he has not publicly disclosed, decided to intervene in a process that has historically not involved the attorney general in order to stop the DEA from issuing licenses to growers.

While the Controlled Substances Act gives the attorney general regulatory authority over scheduled drugs, that authority has historically been delegated to the DEA, which is part of the Justice Department. The DEA has a whole division, in fact, dedicated to "investigat[ing] the diversion of controlled pharmaceuticals and listed chemicals from legitimate sources while ensuring an adequate and uninterrupted supply for legitimate medical, commercial, and scientific needs."

Members of Congress are not happy with Sessions' obstruction of the licensing process.  In April, Sens. Orrin Hatch (R–Utah) and Kamala Harris (D–Calif.) sent the attorney general a letter in which they asked him to provide the Senate with a timeline for processing applications from potential manufacturers of research marijuana. They also asked the DOJ to update applicants on the review process.  Both actions, Hatch and Harris suggested, should be completed by May 15, 2018.  Not only did the DOJ miss that deadline, but it doesn't seem interested in playing catch-up.

Four license applicants I interviewed in late June told me they've received no official updates from either the DEA or the DOJ in months.  Applicants who have spoken to congressional offices working on this issue say their contacts are equally frustrated by Sessions' obstruction of the DEA's licensing process.

July 7, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)