Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, February 15, 2018

Senator Gardner apparently stopping much of his DOJ blockade in response to rescinded Cole Memo

According to this new AP article, "Colorado’s Republican U.S. senator will stop blocking nominees for some Justice Department jobs over concerns about the marijuana industry, saying Thursday that federal officials have shown good faith in recent conversations on the department’s pot policy."  Here is more:

Cory Gardner used his power as a senator last month to freeze nominations for posts at the agency after U.S. Attorney General Jeff Sessions rescinded Obama-era protections for states like Colorado that have broadly legalized recreational marijuana.  It was a dramatic move by a Republican senator against his own party’s attorney general and came after Gardner said Sessions had promised him there wouldn’t be a crackdown.  Gardner said he was placing holds on nominees until Sessions changed his approach.

The holds have created friction both with Sessions, who has complained that critical posts are going unfilled, and some of Gardner’s fellow GOP senators who want key law enforcement officials in their states confirmed.

In an interview with The Associated Press, Gardner said Thursday that he’s discussed the issue with Deputy Attorney General Rod Rosenstein and has been pleased with progress so far. Department leaders have “shown in good faith their willingness to provide what I think will be hopefully the protections we sought, and as sort of a good faith gesture on my behalf I’ll be releasing a limited number of nominees,” Gardner said.  He will release his holds on nominees for U.S. attorneys in a dozen federal districts, U.S. marshals in every district and on John Demers, who was nominated to head Justice’s national security division.... 

Gardner will continue to hold the nominations of seven top Department of Justice nominees. He’s also working with a bipartisan group of members of congress to pursue legislation protecting states that have legalized marijuana.

A few prior related posts:

February 15, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Wednesday, February 14, 2018

Mixed messages from US District Judge hearing legal challenge to federal marijuana prohibition

In this post earlier this week, I noted today's scheduled hearing in federal court concerning a lawsuit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act and asked "Could a high-profile lawsuit help end federal marijuana prohibition?". This Bloomberg article, headlined "Trump Administration Battles Sick Kids on Access to Legal Pot," suggests that the judge hearing the case is sympathetic to the plaintiffs' complaints but still seemingly unlikely to run in their favor:

In a New York courtroom packed with cannabis supporters, the Trump administration urged a federal judge to throw out a lawsuit that aims to pave the way for legal marijuana across the country.

The case was brought on behalf of two sick children, a former National Football League player who says athletes deserve a better way to treat head trauma than addictive opioids and the Cannabis Cultural Association. The suit, filed in July 2017, seeks a ruling that marijuana was unconstitutionally labeled alongside heroin and LSD as a so-called Schedule I drug -- the harshest of five government ratings -- when Congress passed the Controlled Substance Act in 1970.

In court on Wednesday, Justice Department attorney Samuel Hilliard Dolinger said the plaintiffs didn’t follow legal requirements before suing, beginning with a petition to the Drug Enforcement Agency. "The right thing is to defer to the agency," said U.S. District Judge Alvin Hellerstein, an 84-year-old who was nominated by former President Bill Clinton, who famously admitted to experimenting with pot while claiming he "didn’t inhale."...

Hellerstein said he would issue a ruling later, and it was far from clear which way he was leaning. The judge, who had the courtroom erupting in laughter on more than a few occasions during the hearing, was skeptical of the government’s claim that there’s no medical benefit to marijuana. "Your clients are living proof of the medical effectiveness of marijuana," Hellerstein said to the plaintiffs’ lawyer, Michael Hiller....

Cannabis was criminalized "not to control the spread of a dangerous drug, but rather to suppress the rights and interests of those whom the Nixon Administration wrongly regarded as hostile to the interests of the U.S. -- African Americans and protesters of the Vietnam War," the suit says.

At the hearing, Hellerstein said that argument wasn’t going to work with him. The decision "will not depend on what may have been in the mind of Richard Nixon at the time," Hellerstein said.

Prior related posts:

February 14, 2018 in Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, February 13, 2018

Could a high-profile lawsuit help end federal marijuana prohibition?

The question in the title of this post is prompted by this New York Times article headlined "Lawsuit Takes Aim at Trump Administration Marijuana Policy." As detailed below, this lawsuit was covered on this blog when first filed, and this press article is prompted by an upcoming hearing.  Here is part of the report (followed by a bit of commentary at the end):

On Wednesday, yet another courtroom battle promises to pull the White House into the legal spotlight as crucial arguments are heard in New York in a sweeping lawsuit that is challenging the administration’s marijuana policy by seeking to legalize pot under federal law.

When the suit was filed in Federal District Court in Manhattan in July, it appeared to be an intriguing, if limited, effort to help its five named plaintiffs — among them, a former professional football player with a business selling pot-based pain relievers and a 12-year-old girl who treats her chronic epilepsy with medical marijuana.  But the case was thrust into national relevance last month when Attorney General Jeff Sessions issued an order encouraging prosecutors to aggressively enforce the federal marijuana law, endangering the viability of the multibillion-dollar weed industry in states where it is legal.

In its 98-page complaint, the suit presents its case for legalization not only through a host of constitutional arguments, but also by way of a world-historical tour of marijuana use — from its first purported role 10,000 years ago in the production of Taiwanese pottery to the smoking habits of President Barack Obama in his younger days. It points out that the ancient Egyptians used the drug to treat eye sores and hemorrhoids, and Thomas Jefferson puffed it for his migraines. James Madison credited “sweet hemp” for giving him “insight to create a new and democratic nation,” the suit notes.

The suit also includes archival material quoting John Ehrlichman, an adviser to President Richard Nixon, saying that the early efforts to criminalize pot were a way to disrupt the hippies and the black community after the 1960s. The contention is bolstered by an affidavit from Roger J. Stone, Jr., a pro-pot Nixon-era operative and adviser to Mr. Trump....

The current legal action is a somewhat rare attempt to use civil claims to legalize weed and has offered some novel arguments as to why its classification has violated the constitutional rights of those who filed the suit.

The former football player, Marvin Washington, for instance, is contending that the Controlled Substances Act has impeded his ability to transact business in states where pot is legal in contravention of the Constitution’s commerce clause.  The girl with epilepsy, Alexis Bortell, has argued that the law illegally restricts her right to travel with her medicine in states where pot is not allowed or to places controlled by the federal government — including on airplanes. A third plaintiff, the Cannabis Cultural Association, a nonprofit group created to assist minorities in the marijuana industry, has alleged the law has been used for years to discriminate against them.

“It’s the first time a young child who needs lifesaving medicine has stood up to the government to be able to use it,” said Joseph A. Bondy, one of the lawyers who brought the suit. “It’s the first time that a group of young millennials of color has stood up to the government and said the marijuana law is wrong and has destroyed their communities.”

The suit has made another claim based on what amounts to government hypocrisy: It asks why the government has classified pot as a pernicious substance, when in 2003 the Department of Health and Human Services obtained a patent on compounds in the drug to protect against brain damage and then in 2015 the surgeon general under President Obama declared in public that pot has medical benefits.

Against these claims, lawyers for the government have argued that Congress decided nearly 50 years ago that pot should be a Schedule 1 drug, and if the plaintiffs don’t agree, they should try to change the law.  Their suit, the lawyers wrote in one of their filings, “is the latest in a long list of cases asserting constitutional challenges to marijuana regulation under the C.S.A. Those challenges have been uniformly rejected by the federal courts.”

No matter how the lawsuit ends, the judge who is considering the case, Alvin K. Hellerstein, is clearly taking it seriously.  At a hearing in September, Judge Hellerstein said he would give the matter his “prioritized attention,” setting it ahead of all of his other cases.

The hearing on Wednesday, scheduled to entertain arguments to dismiss the case, is likely to be marked by a whiff of drama as marijuana activists from across the country are expected to descend on the courtroom.  Mr. Bondy said he is also trying to arrange a live-stream of the proceeding so that young Alexis, unable to travel to New York, can watch it from her home in Colorado.

I am pleased to see the New York Times giving significant attention to this litigation, but I find it troublesome how the headline of the article wrongly suggests that the lawsuit goes after the "Trump Administration Marijuana Policy" when in fact the suit is assailing Congress's failure to move marijuana off Schedule I of the Controlled Substances Act.  (Notably, the lawsuit discussed here was filed when the Trump Administration policies on marijuana were unchanged from Obama Administration policies.)

Similarly, this article is off base when asserting that AG Jeff Sessions "issued an order encouraging prosecutors to aggressively enforce the federal marijuana law."  The AG did issue an order rescinding the Cole Memo last month, but that merely took away novel limits on federal prosecutors and did not come with any orders for "aggressive" enforcement of federal prohibition.  (If AG Sessions had ordered federal prosecutors to aggressively enforce federal marijuana law, there would be hundred of indictments being filed in dozens of state with operational recreational and medical marijuana marketplaces.)

The full complaint as originally filed in Washington, et.al v. Sessions, et.al, be found here.

Prior related posts:

February 13, 2018 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Saturday, February 10, 2018

Latest spending stopgap extends limit on DOJ funding for medical marijuana prosecutions though March 23, 2018

As reported here under the headline "Federal medical cannabis protection extended again," the stop-gap federal funding approach to stopping possible federal prosecution of state-compliant medical marijuana providers:

The only federal law formally preventing the U.S. Department of Justice from prosecuting medical marijuana businesses has once more been given a new lease on life.  This time, the Rohrabacher-Blumenauer Amendment – formerly known as Rohrabacher-Farr – has been extended until March 23 under the budget deal passed by Congress and signed Friday morning by President Donald Trump....

Rohrabacher-Blumenauer prohibits the DOJ from using federal funds to interfere with state-legal MMJ laws and companies.  The measure does not protect recreational marijuana businesses....

It’s possible the amendment will be included in a larger spending package that is expected to be approved by March 23.  But there’s no guarantee at this point, given a change in procedural rules in the House of Representatives last year that has prevented amendments like Rohrabacher-Blumenauer from being added to the budget.

February 10, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, February 7, 2018

Justice Department seemingly impacted more by rescission of Cole Memo than marijuana industry

Gardner-sessionsThis new Denver Post piece, headlined "Cory Gardner’s siege of the Justice Department over marijuana enters second month," provides an interested accounting of the current impact and import of the decision last month by Attorney General Jeff Sessions to rescind Obama-era marijuana enforcement guidance.  Here are excerpts:

It’s been a month since the pot blockade began, and U.S. Sen. Cory Gardner is standing firm in his vow to jam all appointments to the Department of Justice until Attorney General Jeff Sessions softens his stance on marijuana.

So far, his siege to protect both Colorado’s cannabis industry and the state’s sovereignty has prevented as many as 11 nominees from getting a Senate floor vote — the last major step before they can start work — and there is little indication that Gardner, R-Colo., and Sessions are any closer to finding common ground. “It may never resolve itself,” said U.S. Sen. Chuck Grassley, R-Iowa, who chairs the committee in charge of getting these nominees to the floor.

If that happens, the consequences would extend far beyond the 11 nominees that Gardner has put on ice. More than 20 other candidates are in the congressional pipeline for Justice-related jobs, including U.S. marshals and U.S. attorneys assigned to states across the country. One even hails from Colorado: David Weaver, a former Douglas County sheriff in line to become the state’s next U.S. marshal....

“Senator Gardner does a real disservice to the nation as a whole and we urgently ask him to reconsider his rash and ill-advised obstructionism,” said Chuck Canterbury, president of the National Fraternal Order of Police. “Policy differences should be worked out by a dialogue and not turn into hostage situations.”

At the root of the fight is a decision last month by Sessions to rescind an Obama-era policy that generally left alone states such as Colorado that have legalized marijuana, which remains illegal on a federal level. While the change hasn’t led to federal raids on pot dispensaries — and business largely has continued as usual — the move still sent shock waves through the fledgling cannabis industry.

Gardner wasn’t able to convince Sessions to reconsider when the two Republicans met last month, though aides to the Colorado lawmaker said the two sides haven’t given up on negotiations. “Our staff and DOJ staff continue to talk and meet to discuss a path forward which recognizes Colorado’s state’s rights and ensures law enforcement has the authority and tools needed to protect our communities,” said Casey Contres, a Gardner spokesman, in a statement. “These discussions continue to be necessary and we appreciate their willingness to have them.”...

[Debate over congressional spending bills mean] it could be another month or more before there’s a chance to resolve the issue — and another month in which Gardner is expected to keep up the pot blockade. “He opposed the legalization of marijuana in 2012 but is not going to sit back and let Colorado’s rights be trampled on by the federal government,” Contres said.

Under Senate rules and tradition, lawmakers are allowed to put a hold on nominees put forward by the White House — a tactic that’s often used to extract concessions from the executive branch. These holds can be overridden, but doing so requires party leaders to chew up valuable time on the Senate floor.

For the time being, Gardner’s hardball approach hasn’t caused much public strife among his Senate Republican colleagues. “I can understand why he did it,” said Grassley, who nonetheless disagreed with Gardner’s argument for states’ rights. “I’m an advocate for federal law under the Supremacy Clause of the constitution that federal law overrides state law.”

Senate Majority Leader Mitch McConnell of Kentucky also is awaiting a floor vote for a U.S. marshal candidate in his state. Aides to McConnell did not respond with comment, though Grassley said it’s up to him to broker a solution and end the siege. Said Grassley of the nomination process: If McConnell “isn’t willing to intervene then you know it all stops.”

February 7, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Friday, February 2, 2018

US Attorney for Oregon, apparently serving now as chief state regulator, conducts marijuana summit

As reported in this post three weeks ago, Billy J. Williams, the United States Attorney for the District of Oregon, penned a commentary to express a "significant concerns about the state's current regulatory framework and the resources allocated to policing marijuana in Oregon." That commentary also spoke of his plans to convene a summit to discuss his concerns.

This new local article, headlined "US Attorney for Oregon says state has 'formidable' problem with black market marijuana," reports on the summit which took place today. Here are some details:

The top federal prosecutor in Oregon on Friday pressed for data and details about the scope of the state's role as a source of black market marijuana. U.S. Attorney Billy Williams told a large gathering that included Gov. Kate Brown, law enforcement officials and representatives of the cannabis industry that Oregon has an "identifiable and formidable overproduction and diversion problem."

"That is the fact," he told the crowd at the U.S. District courthouse. "And my responsibility is to work with our state partners to do something about it."

Added Williams: "Make no mistake. We are going to do something about it but that requires an effort to do this together. It requires transparency. The facts are what they are. The numbers are what they are."

Williams didn't detail how his office will carry out a new federal directive stripping legal protections for marijuana businesses. He said his office needs more information so it can accurately assess the scope of the problem and come up with a response. Williams didn't say what data he's looking for, but he previously he has said he wants more information from the state about black market trafficking. In a recent opinion piece published in The Oregonian/OregonLive, Williams said he is awaiting a final version of a Oregon State Police report on the issue.

He convened a daylong "marijuana summit" where public health and law enforcement officials gave presentations, along with land owners and industry representatives. He said Oregonians are worried about the implications of legal marijuana on their property rights, their water rights and the environment. Public health, particularly teen access and use, is a priority, he said.

"I am not an alarmist," he said. "Please don't have that perception of me. I just believe in looking at things head on. Take the blinders off, here are the realities."

The press was shut out of those presentations and was allowed only to report on statements offered by Williams and Brown....

Brown also spoke briefly Friday, telling those gathered that Williams has assured her staff that "lawful Oregon businesses" are "not targets of law enforcement." She didn't offer details on how the state will address Oregon's role as an illicit source of cannabis, saying only that she is committed to keeping cannabis in the state.

Prior related post:

US Attorney for Oregon, expressing "significant concerns about the state's current regulatory framework," plans summit in response to new AG enforcement policy

February 2, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, January 31, 2018

Two notably rosy new account of the state of marijuana reform circa 2018

180130115042-medical-marijuana-map-780x439Today I have seen two notable new articles making much of where marijuana reform stands as of January 2018.  CNN Money has this new article headlined "The U.S. legal marijuana industry is booming."  It starts this way:

It's 2018 and marijuana remains illegal in the United States.  But continued federal prohibition hasn't stopped the marijuana industry from growing like a very profitable weed.

Despite what could be considered an unfriendly administration in Washington D.C., nine states and the District of Columbia now allow for recreational marijuana use and 30 allow for medical use.  And more states are lining up to join the legalization wave.  Pot has become big business in the U.S.

The emerging industry took in nearly $9 billion in sales in 2017, according to Tom Adams, managing director of BDS Analytics, which tracks the cannabis industry.  Sales are equivalent to the entire snack bar industry, or to annual revenue from Pampers diapers.

That was before California opened its massive retail market in January.  The addition of the Golden State is huge for the industry and Adams estimates that national marijuana sales will rise to $11 billion in 2018, and to $21 billion in 2021.

The industry has also been creating jobs and opportunities.  There are 9,397 active licenses for marijuana businesses in the U.S., according to Ed Keating, chief data officer for Cannabiz Media, which tracks marijuana licenses.  This includes cultivators, manufacturers, retailers, dispensaries, distributors, deliverers and test labs.

More than 100,000 people are working around the cannabis plant and that number's going to grow, according to BDS Analytics.  The industry employed 121,000 people in 2017.  If marijuana continues its growth trajectory, the number of workers in that field could reach 292,000 by 2021, according to BDS Analytics.

And German Lopez at Vox has this new piece headlined "January was the biggest month yet for marijuana legalization, despite Trump’s new war on pot."  Here is how it starts:

January 2018 was the most important month yet for marijuana legalization.

Things looked rocky a few days into the month, when President Donald Trump’s Department of Justice, led by Attorney General Jeff Sessions, rescinded an Obama-era memo that protected states that had legalized marijuana from federal interference.  Because cannabis remains illegal at the federal level, the federal government can still crack down on pot even in states where it’s legal under state law for recreational purposes.

But the announcement came and went with little sign that the Justice Department will actually do much in its new war on marijuana.  The agency was unclear when reporters asked if the move will actually lead to more anti-marijuana prosecutions.  And in the aftermath, federal prosecutors across the country released statements that were either vague or indicated that they won’t lead to a new wave of anti-marijuana crackdowns in places where pot is legal under state law.

Meanwhile, California at the beginning of the month opened the world’s biggest legal market for recreational marijuana — following voters’ decision in 2016 to legalize pot for recreational purposes and allow sales of the drug.

Then, after Sessions announced his new marijuana policy, Vermont legislators, with the support of Republican Gov. Phil Scott, legalized marijuana for recreational use. The law won’t allow sales — only possession and growing.  But it’s a big move because Vermont is now the first state to have legalized marijuana through its legislature.

All of this adds up to a huge month for marijuana legalization.  If even a federal threat over marijuana legalization didn’t stop Vermont’s legalization momentum or slow down California’s massive new legal pot market, what, if anything, will stop more states from going down the same path?

January 31, 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 | Permalink | Comments (0)

Saturday, January 27, 2018

Imagining a productive tax break for marijuana businesses to provide drug education

Images-22Last week I spotlighted this article published at the Cannabis Law Report titled "An Introduction To The Internal Revenue Code For Cannabis Businesses." The piece was authored by Chris Nani, a student in my Marijuana Law & Policy seminar last semester, and now available here via the Cannabis Law Report is another part of his taxing treatment.  The piece is titled simply "Part II: My Proposed Tax Break," and here is an excerpt:

While there is still federal prohibition, Congress should incentivize current marijuana businesses to perform desirable social policy goals in exchange for tax deductions. Because taxes are so astronomically high for marijuana businesses such as dispensaries, by adding an amendment to § 280E Congress could specifically tailor it to marijuana businesses or include all scheduled I and II drugs. I elected to make it about all scheduled I and II drugs.

Under § 280E, the proposed amendment would read:

“Any scheduled I or II drug business that pays federal income taxes, regardless of its legality, is applicable to deduct from its expenses any activities that meet the following: (i) educational programs that demonstrate health risks and safety procedures for the drug(s) the business is involved with (ii) informational programs that display the short and long-term risks of the drug(s) the business is involved with and (iii) informational programs that educate on how to identify the signs of an overdose and how to properly treat it for the drug(s) the business is involved with.”

Just like any statute, my proposed § 280E amendment is vulnerable to abuse, but hopefully the legislative history would be able to give guidance to the IRS and courts if litigation arose. The social goal aimed at this amendment is public health. By increasing awareness and knowledge of a drug, the user will be able to make better judgment calls and more accurately understand the consequences of their actions.

Now, to fully dissect the language of my proposed amendment.  The first sentence applies to any scheduled I or II drug regardless of its legality. This includes drugs such as heroin, LSD, and marijuana along with prescribed drugs such as Adderall, Fentanyl, and OxyContin.  All of the drugs listed have side effects and can damage the human body. By educating the public on the health risks and safety procedures for the drug, heroin dealers and marijuana dispensaries both could reduce their federal income taxes. I believe it’s better for a heroin addict to understand the deadliness of the drug and how to properly use it beforehand to help minimize the chance of death. Similarly, for marijuana, dispensaries could receive a deduction while showing consumers how to properly use a bong or smoke a blunt while discussing the health consequences of smoking. It would allow dispensaries to showcase their products and demonstrate any new innovative ways to use marijuana while additionally educating the public on how to properly use a device.

Prior related Post:

"An Introduction To The Internal Revenue Code For Cannabis Businesses"

 

January 27, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)

Friday, January 26, 2018

Dreaming of what Prez Trump could say (but surely won't) in State of the Union about marijuana policy

The ever-astute John Hudak of the Brookings Institute has this lengthy new commentary about federal marijuana policy headlined "Trump’s 1st State of the Union: His chance to be a states’ rights president." The piece merits are full read, and here are excerpts:

When President Trump delivers his State of the Union address next week, there will be plenty of issues to cover. One likely to be overlooked, but in need of presidential clarity, is marijuana policy.  It is not the most high-profile issue, but a few sentences would help reconcile the president’s campaign promises with the actions of his administration....

If Mr. Trump truly believes in the promises he made during the campaign, his speech next week is an opportunity to scold Attorney General Jeff Sessions for rescinding the Cole Memo that offered protections to states that have legalized recreational marijuana (and companies within those states who are playing by the state rules).  He can publicly oppose Mr. Sessions’ explicit request to Congress to rescind the Rohrabacher-Blumenauer amendment that restricts the Justice Department from spending funds to enforce against state-legal medical marijuana operations.  He can ask Congress to rescind the Harris Amendment that prevents the District of Columbia from implementing its recreational legalization initiative — a congressional decision that has left D.C. with a legal homegrow system but no power to construct a regulatory system for commercial sales.

Mr. Trump can go further and signal to Treasury Secretary Steve Mnuchin — who will likely be sitting a few yards in front of him — that the Treasury Department should strengthen protections for banks working to keep the marijuana industry accountable and transparent, and he can ask Congress to put those protections into law.  Mr. Trump knows better than any president in history how important access to financial services are for an individual starting and building a business.

Mr. Trump can talk about marijuana research. He can disavow his VA Secretary’s recent statements about medical research. Secretary Shulkin first said — incorrectly — that his department was restricted from studying marijuana’s medical efficacy.  He subsequently and messily “cleaned up” his statement by saying that studying marijuana was too bureaucratically difficult for his department to pursue.  As a vocal supporter of our troops and someone committed to helping our injured veterans, President Trump can demand that the VA Secretary change his tune.

And he can do much more.  He can tell the HHS Secretary to review and remove the barriers that hinder our nation’s most talented medical and scientific researchers from studying marijuana’s efficacy, dosing, and side effects. He can demand that Attorney General Sessions stop stalling with the approval of new licenses for regulated, research-grade facilities to grow marijuana for use in federally approved research — breaking the monopoly currently held by the University of Mississippi’s marijuana farm.  He can tell Congress that because most of their constituents live in states with medical marijuana programs, they should increase funding for such research, including promising research into whether medical marijuana can be used to combat the opioid crisis.

This is, of course, a lot to ask of a president on an issue that does not command top-tier attention.  What’s more, because his administration seems to have no interest in this policy area — and several appointees explicitly oppose marijuana—there does not seem to be an agency head or cabinet member who will lobby the White House to include language on marijuana policy in the speech.  Without having a high-level ally on the issue, marijuana is unlikely to be addressed.

Prez Obama was an (in)famous marijuana user in high school and yet never thought marijuana policy could justify any real attention in any of his speeches, let along the State of the Union. Consequently, I would by shocked if Prez Trump used his first State of the Union speech to speak really for the first time on this divisive issue. But, of course, Prez Trump sometimes seems to like to be shocking, so I will still be listening closely.

January 26, 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 (0)

Thursday, January 25, 2018

Keeping up with the latest notable news with the help of Marijuana Moment

Regular readers are used to me regularly referencing Tom Angell great marijuana newsletter titled Marijuana Moment and his similarly titled news portal available here.  Because I have been busy on many other fronts this week, I have not been able to keep up with some notable news, and so I will link to Tom's particular recent postings that struck me as especially worth highlighting:

The last of these listed items discusses a notable new Ninth Circuit ruling that I am hoping to blog more about before too long.

January 25, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, January 16, 2018

"Attorney General’s Memorandum on Federal Marijuana Enforcement: Possible Impacts"

The title of this post is the title of this "Legal Sidebar" publication authored by Todd Garvey and Brian Yeh with the Congressional Research Service.  The piece serves as a useful short primer on federal marijuana laws and policies right now, and it concludes this way:

[T]he impact of the Sessions Memorandum will likely depend on how it is interpreted and implemented by individual U.S. Attorneys, especially with regard to state policies on recreational marijuana that are not protected by the appropriations rider.  The U.S. Attorney for the District of Massachusetts, for example, has stated that he “cannot []provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution.”  But regardless of its implementation, the memorandum has highlighted the general uncertainty associated with the marijuana legalization movement, and the ease and speed with which a change in executive branch policy can unsettle the system.  This point was made somewhat presciently in 2016 by the Ninth Circuit in McIntosh, which noted that a new president would soon be elected whose “administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”  Even in the absence of immediate federal enforcement efforts, the apparent increase in risk faced by marijuana businesses as a result of the rescission of the safe harbors established by Obama-era guidance may have a chilling effect on the industry.  The mere possibility of federal marijuana enforcement has already negatively impacted marijuana stocks, and could also reverse the recent uptick in financial institutions willing to offer services to the fledgling industry. 

Prior related posts:

January 16, 2018 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

A critical look at what the VA Secretary is saying about medical marijuana research

Images (6)John Hudak of the Brookings Institute has this lengthy review and criticism of recent comments by VA Secretary David Shulkin about medical marijuana research.  The report merits a full read, and here is the start and end of the piece providing a flavor of its themes and contents:

In October, the Democratic members of the House Veterans Affairs Committee wrote a letter asking VA Secretary David Shulkin why his department is not conducting research into medical marijuana.  In the letter, Ranking Member Tim Walz (Minn.) and the other nine Democratic committee members note that in many states that have medical marijuana programs, cannabis is recommended for PTSD and/or chronic pain—conditions that afflict many of our wounded warriors.  The members do not ask Mr. Shulkin to start dispensing medical marijuana from VA facilities. Instead, they ask the secretary why the department is not conducting rigorous research....

[T]he response from Secretary Shulkin ... is an unfortunate combination of false information, incomplete analysis, and incomprehensible logic.  Rather than engaging in an honest, comprehensive discussion of the merits of the VA’s position, the secretary appears to wave off committee members’ concerns about an issue that affects the lives of millions of soldiers and veterans across the United States.

There are seven major problems with Secretary Shulkin’s response to the Democratic members of the House Veterans Affairs Committee. Those problems range from a mischaracterization of federal law to a faulty analysis of current medical research to a failure to put medical findings in context and more.  The shortcomings in the secretary’s response should alarm Democrats and Republicans; House members and Senators; soldiers, veterans, and civilians alike....

Secretary Shulkin has an obligation to do better.  He should recommit that his own department examine the questions posed by the House Veterans Affairs Committee more carefully and rigorously than it has previously as outlined in his letter.  He should have a frank conversation in-house that distinguishes between conducting research on the medical efficacy of marijuana and endorsing the legalization of marijuana.  Conducting basic medical research is important for the advancement of therapies for our veterans and the VA has unique opportunities to advance such efforts.  Instead, old-fashioned biases, incomplete evaluations of existing literature, and a mischaracterization of policy has, to this point, won the day at VA.

The irony in the secretary’s response to Mr. Walz’s query is that the department’s position and behaviors do not advance health care for our veterans.  Instead, it adds further risk that frustrated veterans with a variety of conditions will self-medicate, procure medicine through illegal means and/or fail to be forthcoming with their VA doctors.  Veterans deserve better than an administration that produces letters like the one sent to the Congress on December 21.

January 16, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Sunday, January 14, 2018

"Is Today's Cannabis Business Plan Yesterday's Marijuana Conspiracy?"

The question in the title of this post is posed at the start of this blog post authored by Beth Curtis at her Life for Pot blog.  Here is how it starts and ends:

On the first day of market trading for the New Year, CNBC interspersed programing with positive stories of the new California cannabis businesses.  They covered a broad range of the issues startups would face, but the common theme was prosperity and hope.  Sam Masucci talked about the new marijuana ETF, Marcus Lemonis explored the marijuana business in Humbolt County for The Profit.

I was ushering in the New Year trying to give hope to people serving life in prison for selling marijuana while Jane Wells, Kate Rogers and Aditi Roy were convincing listeners that California’s cannabis commerce would bring promised affluence.  As the day wore on, the juxtaposition was as incredible as my conclusion – today’s cannabis business plan is yesterday’s marijuana conspiracy. Life without parole is death by imprisonment.  The people I advocate for, nonviolent marijuana lifers will die in prison while a “new industry” in cannabis takes root.

We hoped that this category of nonviolent prisoner would all receive commutations at the end of the last administration, but they did not.  They are aging in Federal Prisons around the country while they watch the product they are incarcerated for become a main stream commodity and a source of profit for individuals as well as local and state governments....

The marijuana prisoners I advocate for are serving life because they were charged with “conspiracy” and became accountable for drugs sold by others, even people they had never met or known.  Conspiracy charges hold them responsible for acts that occurred over a period of years and involve many people.  Another common thread is they didn’t plead guilty and chose to exercise their right to a trial. Legal experts call it the trial penalty.  Key witnesses are usually co-defendants who accept a plea and receive less prison time, government agents, and even witnesses that are testifying for a fee.

These marijuana prisoners all have names and life stories.  They have mothers and fathers, wives, husbands, siblings and children who all have suffered and wonder why there is no mercy.  Their family time is spent traveling to a Federal Prison, being searched and processed, sometimes drug tested, then sitting in a large visiting room with only two hugs allowed and lunch from a vending machine.  We are paying dearly for this in federal treasure and human dignity.  I would like to tell them that they will have a chance to be home with their family before they die. They have been entrapped in a gigantic failed social experiment and their release would bring it all to a harmonious conclusion.

These sentences are not fiscally responsible and are not compatible with our sense that we are a nation of compassion, mercy and justice.  These nonviolent marijuana offenders with life need sentencing relief either through executive clemency or retroactive legislation.  

January 14, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Friday, January 12, 2018

US Attorney for Oregon, expressing "significant concerns about the state's current regulatory framework," plans summit in response to new AG enforcement policy

BillBilly J. Williams, the United States Attorney for the District of Oregon, has this fascinating new newspaper commentary under the headlined "U.S. Attorney: A call for transparency and action on marijuana." Here is most of what it says:

Earlier this month, Attorney General Jeff Sessions issued a memorandum rescinding existing Justice Department guidance on marijuana enforcement. The move gives U.S. Attorneys wide latitude to develop district-specific strategies and deploy department resources without Washington, D.C. artificially declaring some cases off limits. Before developing a strategy for Oregon, however, we need more information from the state.

Here's what we know right now. Oregon has a massive marijuana overproduction problem. In 2017 alone, postal agents in Oregon seized 2,644 pounds of marijuana in outbound parcels and over $1.2 million in cash. For comparison, postal agents in Colorado seized just 984 pounds of marijuana during a four-year period beginning in 2013.

Overproduction creates a powerful profit incentive, driving product from both state-licensed and unlicensed marijuana producers into black and gray markets across the country. This lucrative supply attracts cartels and other criminal networks into Oregon and in turn brings money laundering, violence, and environmental degradation.

A survey of recent federal cases in Oregon illustrates alarming trends: in the last six months, federal agents and port police have seized over $1 million in cash linked to marijuana transactions passing through Portland International Airport; law enforcement partners from 16 states have reported marijuana seizures from Oregon. In the first half of 2017, in-state production of butane hash oil resulted in six separate lab explosions. And police and sheriff deputies regularly encounter vehicles with hundreds of pounds of marijuana on highways heading out of state.

We also know that even recreational marijuana permitted under state law carries ill-effects on public health and safety, as Colorado's experience shows. Since 2013, marijuana-related traffic deaths have doubled in Colorado. Marijuana-related emergency and hospital admissions have increased 35 percent. And youth marijuana use is up 12 percent, 55 percent higher than the national average. We must do everything in our power to avoid similar trends here in Oregon.

As U.S. Attorney, I have traveled throughout the state to meet with community leaders and citizens to discuss distinctive issues facing rural Oregonians.  Many of these conversations quickly turn to marijuana.  Landowners throughout central and southwestern Oregon have legitimate concerns that marijuana cultivation has had a detrimental effect on water rights, public lands and livability.

Rural communities simply do not have the resources to fund the additional police and sheriff deputies needed to address these issues. While state officials have allocated a portion of marijuana tax revenues to public safety organizations including the Oregon State Police, the net effect on enforcement remains an open question. Moreover, can 20 Oregon Liquor Control Commission marijuana enforcement specialists adequately police thousands of recreational licensees?

We don't know the answer to these questions, in part, because the state has yet to release a final version of its report evaluating out-of-state diversion, distribution to minors, cultivation on public land and violent crime associated with marijuana in Oregon.  We need this information to move forward smartly, effectively, and transparently.

In sum, I have significant concerns about the state's current regulatory framework and the resources allocated to policing marijuana in Oregon.

Congress's judgment on marijuana activity is reflected in the Controlled Substances Act.  Before charting a path forward for the enforcement of marijuana in Oregon, we must see how the state mitigates the public safety and health issues raised here.  The time for informed action is now.

In the coming days, I will send invitations to federal, state, local and tribal law enforcement, public health organizations, Oregon marijuana interests and concerned citizen groups to attend a summit to address and remedy these and other concerns.

This summit and the state's response will inform our federal enforcement strategy.  How we move forward will depend in large measure on how the state responds to the gaps we have identified.  Until then it would be an inappropriate abdication of my duties to issue any blanket proclamations on our marijuana enforcement strategy in light of federal law.

This commentary and its coming echoes confirms what has been one of my thoughts since Attorney General Sessions' recent decision to rescind the Cole Memo (basics here and here): each US Attorney in each US district is now able to be (and perhaps inevitably will become) the chief regulatory officer for marijuana reform in that jurisdiction.  This commentary is a clear statement that this US Attorney is concerned that Oregon's state reforms and regulations are not working, and he is going to have a quasi-regulatory hearing with interested parties, and then (perhaps) he will issue some "regulations" in the form of some explanation of the types of federal marijuana crimes and criminals he will be eager to prosecute in the near future.

January 12, 2018 in Business laws and regulatory issues, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, January 11, 2018

CityLab and Harvard Law Review critically examine Marijuana Justice Act

This notable new CityLab article, headlined "What Does Marijuana Justice Actually Look Like?," unpacks some part of the the Marijuana Justice Act proposed by Senator Cory Booker and it also links to this new Harvard Law Review piece also looking at the MJA. I recommend both pieces, and here is how the HLR piece concludes:

Unlike most legalization efforts advanced thus far that do little to address the legacy of marijuana prohibition, Senator Booker’s Marijuana Justice Act represents an important moment in the conversation surrounding marijuana legalization.  Still, the victims of America’s long and vicious war on drugs deserve more.  Future legislation committed to dealing with the harm exacted by prohibition will have to seriously consider providing a regulatory framework that addresses the racially disparate distribution of the wealth generated by the market for legal marijuana.  A failure to do so represents a missed opportunity.  Absent these regulatory provisions, marijuana legalization threatens to entrench the inequalities exacerbated by the history of prohibition, and reparatory legalization efforts like the Marijuana Justice Act will leave behind a key tool in accounting for the harms they set out to repair.

January 11, 2018 in Federal Marijuana Laws, Policies and Practices, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, January 9, 2018

Unsurprisingly, Colorado congressional contingent contesting AG Sessions' decision to rescind Cole Memo

Images (5)Two new article from the Denver Post detail the various steps being taken by various members of Congress from Colorado in response to Attorney General Sessions' recent decision to rescind the Cole Memo (basics here and here).  Here are links to the stories and their leads:

"Colorado Congress members send letter to Sessions, urging reinstatement of Cole Memo: Democratic representatives Jared Polis, Diana DeGette and Ed Perlmutter, and Republican Rep. Mike Coffman signed the letter"

Colorado congressional legislators fired off a letter Tuesday to U.S. Attorney General Jeff Sessions, asking that he reconsider last week’s rescission of the Cole Memo and related marijuana guidance. Democratic representatives Jared Polis, Diana DeGette and Ed Perlmutter, and Republican Rep. Mike Coffman signed the letter to Sessions.  In it, they “strongly urge” the Department of Justice to reinstate the Cole Memo in order to ensure the Justice Department “is acting to uphold the will of Colorado voters and the rights of the states to regulate intrastate commerce.” 

"Colorado Rep. DeGette convenes delegation to respond to Sessions, discuss federal marijuana protections"

Colorado’s congressional delegation convened an emergency meeting Tuesday in Washington, D.C., to shore up protections for state-legal marijuana operations and, in turn, states’ rights. In the meeting, members advanced plans for federal marijuana protections and honed near- and long-term strategies to counter U.S. Attorney General Jeff Sessions’ rescission of the 2013 Cole Memo.

"Cory Gardner to meet with Jeff Sessions after doubling down on threats over marijuana enforcement change: Wednesday’s meeting follows threats Gardner made last week"

U.S. Sen. Cory Gardner said he plans to press Attorney General Jeff Sessions on federal marijuana policy when the two Republicans meet Wednesday.

In an interview, the Republican from Colorado emphasized that he is prepared, if he doesn’t get his way, to block all nominees related to the Department of Justice, including U.S. marshals and U.S. attorneys from other states.  The comments build on threats that Gardner made last week after a decision by Sessions to rescind an Obama-era policy that left alone Colorado and other states that legalized marijuana in spite of federal laws against it.

“It’s my job to protect those states’ rights and states’ decisions,” Gardner said. “I would anticipate it being (Justice) officials.  I would anticipate it being U.S. marshals (and) U.S. attorneys.  But the bottom line is (that) this can be solved by the Department of Justice.”

I will be very interested to see and hear what becomes of Senator Gardner's meeting with AG Sessions.  I am certain the Trump Administration and AG Sessions in particular would not like to see all DOJ nominations blocked as the Senator has been threatening.  But I am also certain AG Sessions in particular would not be too keen on affording Senator Gardner a kind of "heckler's veto" over federal prosecutorial policies. Stay tuned.

Prior related posts:

January 9, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Louisiana Gov writes directly to Prez Trump urging him to urge Congress to preserve medical marijuana spending limit

I have been lately wondering if, when and how President Donald Trump might have something to say about federal marijuana policy in the wake of Attorney General Sessions' recent decision to rescinding the Cole Memo (basics here and here).   Though we have still not heard from the Prez on this matter, today I see that Louisiana Gov John Bel Edwards has written directly to Prez Trump to discuss medical marijuana in the Bayou State and to seemingly ask Prez Trump to push Congress to preserve the soon-to-expire spending limitation that prohibits the Justice Department from using government funds to go after state medical marijuana programs.

The short but still interesting letter from Gov Edwards to Prez Trump is available at this link.  The letter's concluding substantive paragraph reads:

Mr. President, for many people in my state, access to this treatment means a person could return to the workforce, return to school or simply lead a normal life.  Simply put, we would be failing the people we represent if we allow any funding bill to move through Congress without the Rohrabacher-Blumenauer language included.  This issue is critically important in Louisiana, and I hope we can partner together to ensure the safe distribution of this life-changing form of treatment.

January 9, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, January 8, 2018

US Attorney for Massachusetts refuses to provide more guidance on federal prohibition prosecution plans

As reported in this AP article, the "top federal prosecutor in Massachusetts offered no guarantees on Monday that he would take a hands-off approach to legalized pot, injecting a new layer of uncertainty and confusion into the commercial marijuana industry as it looked to gain a foothold in the state." Here is more:

U.S. Attorney Andrew Lelling said in a statement that while he understood the desire for guidance on the federal approach to the state’s voter-approved recreational marijuana law, he "cannot provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution." Such determinations would be made on a "case-by-case basis," he added.

The Yes on 4 Coalition, which spearheaded the 2016 ballot campaign, had publicly called for Lelling to provide "clear, unambiguous answers" to several questions, including whether his office would prosecute businesses that are granted licenses by state cannabis regulators to grow, produce, test or sell marijuana legally in Massachusetts....

Lelling took office in December after being nominated by President Donald Trump and confirmed by the U.S. Senate.  His comments on Monday expanded on an earlier statement last week that promised enforcement of serious federal crimes but did not directly address the recreational marijuana issue....

Jim Borghesani, a Massachusetts spokesman for the Marijuana Policy Project, called the prosecutor’s comments "ominous."  Pro-marijuana groups fear the change in tone from the Justice Department and federal prosecutors will send a chill through the nascent cannabis industry, discouraging those looking to start or invest in those businesses. "I don’t think any business would ever want to open its door and have fears on the first day that the FBI is going to be standing on their doorsteps," said Borghesani....

The Cannabis Control Commission, a five-member panel created to regulate marijuana in Massachusetts, has pledged to move forward with a process that foresees the first commercial pot shops opening in July. Republican Gov. Charlie Baker, who said last week that rescinding the Cole Memorandum was the "wrong decision," continued to support the commission’s work and would provide adequate funding for it, a spokeswoman said Monday.

The "Statement By U.S. Attorney Andrew E. Lelling Regarding Federal Marijuana Enforcement" is available at this link.  I understand fully why officials and reform advocates in Massachusetts would like to get some more clear and definitive enforcement guidance as the state moves forward with developing and implementing rules for voter-enacted marijuana reform.  But both the tone and seeming intent of the decision by Attorney General Session to rescind the Cole Memo suggests that the Department of Justice is eager to avoid giving clear guidance to state actors and the marijuana industry concerning enforcement plans and priorities in this arena.

January 8, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, January 6, 2018

"Did Jeff Sessions Just Increase the Odds Congress Will Make Marijuana Legal?"

The question in the title of this post is the headline of this notable new Politico piece with the headline:  "The attorney general has created intolerable uncertainty for a growing industry that is now demanding legal protections from Congress. And lawmakers are listening."  The piece winds down with this remarkable political reality: "As of late Friday, POLITICO Magazine could not find a single member of Congress who had issued a statement in support of Sessions’ actions."  Here is more from thie article:

Capitol Hill screamed just as loudly. And it wasn’t just the Democratic members of the Congressional Cannabis Caucus.  It was Republican senators, too. Cory Gardner of Colorado took the Senate floor to issue an ultimatum to Sessions: “I will be putting a hold on every single nomination from the Department of Justice until Attorney General Jeff Sessions lives up to the commitment he made to me in my pre-confirmation meeting with him. The conversation we had that was specifically about this issue of states’ rights in Colorado.  Until he lives up to that commitment, I’ll be holding up all nominations of the Department of Justice,” Gardner said.  “The people of Colorado deserve answers. The people of Colorado deserve to be respected.” Gardner is no fringe Republican; he’s the chair of the NRSC....

Sessions’ antipathy for a drug that has lost much of its stigma among a wide cross section of Americans has only galvanized disparate factions in Congress to protect an industry that is expected to generate $2.3 billion in state tax revenue by 2020.

Senator Pat Leahy of Vermont, who just a few weeks ago declined to comment to POLITICO Magazine about whether he would work to maintain protections for medical marijuana in the 2018 omnibus spending package, tweeted on Thursday, “I'm now fighting to include my amdt in the final omnibus Approps bill so we can protect patients and law-abiding businesses.”

The fact that marijuana has now risen to the height of top-tier budget negotiations is a sign that the pro-marijuana coalition is no longer merely a menagerie of loud-mouth hippies, stoners, and felons, as the pro-pot crowd has been characterized in the past. The community of Americans who now rely on legal medical marijuana, estimated to be 2.6 million people in 2016, includes a variety of mainstream constituency groups like veterans, senior citizens, cancer survivors, and parents of epileptic children. The American Legion, a conservative veterans organization by any measure, has voted twice in favor of resolutions to expand research and safe access for its members.

“The American Legion has been a leading advocate for the removal of cannabis from Schedule I of the Controlled Substances Act to enable greater research into the medical efficacy of the drug to treat ailments that impact veterans such as PTSD and chronic pain,” Joe Plenzler, Director of Media Relations for The American Legion, told POLITICO Magazine — which means Jeff Sessions just crossed the nation’s largest wartime veterans service organization.

By the end of the day on Thursday, in a conference call of five members of the Congressional Cannabis Caucus, lawmakers from four of the eight states that have approved recreational marijuana railed about Sessions’ unconstitutional assault on the rights of their states to decide their own affairs. On that call, California Republican Dana Rohrabacher said that the move by Sessions to strike a blow against marijuana has had the inverse effect of raising the attention from what had previously been a states’ issue but has now become a national priority. “It’s a big plus for our efforts that the federal government is now aware that our constituents have been alerted,” Rohrabacher said. "We can be confident we can win this fight, because this is a freedom issue.”

Prior related posts:

January 6, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, January 5, 2018

More astute commentary from astute commentators on new DOJ marijuana enforcement policy