Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

A Member of the Law Professor Blogs Network

Thursday, March 5, 2015

Might some 2016 presidential candidates start advocating for marijuana reforms?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some prior related posts:

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 4, 2015

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

Download

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, March 3, 2015

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

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

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

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

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

"Mitch McConnell’s Love Affair with Hemp"

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

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

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

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

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

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

Yes, Mitch McConnell said that.  About hemp.

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

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

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

Friday, February 27, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 26, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, February 13, 2015

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

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

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

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

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

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

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

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

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

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

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

Saturday, February 7, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 2, 2015

Other than Senator Rand Paul, are any GOP leaders likely to become supportive of marijuana reform?

The question in the title to this post is my first reaction to this notable Politico piece headlined "Is pot the new gay marriage for the GOP?; Republicans struggle to find their footing on an issue that resonates with younger voters." Here are excerpts:

Marijuana is shaping up to be the new gay marriage of GOP politics — most Republicans would rather not talk about it, except to punt to the states. But when it comes to the 2016 presidential race, a series of legalization ballot initiatives — and a certain outspoken Kentucky senator — could make it harder for the Republican field to avoid the conversation....

Marijuana may not stimulate the same kind of passion as the debate over same-sex marriage. Still, a majority of Americans support legalizing pot, and young people — who tend to turn out more for presidential elections than midterms — are especially keen on it.

The “leave it to the states” stance allows potential GOP candidates to stake out a relatively safe middle ground between an older conservative base that disapproves of marijuana use and a general-election electorate and libertarian wing that prefers legalization. The states’ rights approach also allows GOP candidates to express some openness to medical marijuana and criminal justice reform and argue against devoting costly resources for federal enforcement. It’s also a position many in the prospective GOP field have taken on same-sex marriage....

The pro-legalization lobby, buoyed by recent successes, is taking an aggressive state-based approach in the next two years and believes 2016 will be favorable for the ballot initiatives. Advocates don’t see anyone in the GOP field pushing back too hard. “No one’s been a problem for us,” said Michael Collins, policy manager at the Drug Policy Alliance. “Largely, major presidential candidates will do their best to avoid the issue,” added his colleague Malik Burnett.

Some advocates have downplayed the parallels between same-sex marriage and marijuana legalization. While recreational cannabis has found its success on the ballot, gay marriage has been decided mostly in state legislatures and courts. Still, both movements have successfully used state-based models, increasing pressure for federal action. The Supreme Court will decide later this year whether same-sex marriage is a constitutional right.

One Republican outspoken on marijuana is Paul, who has made major overtures to young people and minorities. The Kentucky senator, a favorite in the GOP’s libertarian wing, is the highest-profile Republican to support federal decriminalization and the party’s only potential presidential candidate to do so.

Paul has sponsored legislation aimed at preventing the federal government from cracking down on the medical marijuana industry in states where it’s legal. He’s teamed up with Sen. Cory Booker (D-N.J.) to introduce sentencing reform legislation. He recently co-sponsored a Senate bill to legalize industrial hemp — a less-potent sibling of marijuana. “I don’t want to put our kids in prison for it,” Paul said of marijuana in December. “So if your kid was caught selling marijuana or growing enough that it’s a felony conviction, they could be in jail for an extended period of time. They also lose their ability to be employable. So I want to change all of that.”

The senator’s stance could prove a vexing problem not just for fellow Republicans but also Hillary Clinton. The likely Democratic 2016 frontrunner has been relatively quiet on the issue, asking for a “wait and see” approach to the experiments in Colorado and Washington state and offering some support for medical marijuana. “He is going to force other candidates, whether it’s in the Republican primary or the general, to take positions on these issues,” Collins said.

Paul has been so outspoken that at least one GOP strategist believed he supports legalization. But he doesn’t, and he often speaks negatively about cannabis use, which irks some legalization advocates who otherwise have a favorable impression of the senator (the Marijuana Policy Project donated $2,500 to Paul’s PAC in the 2014 cycle). When asked about Paul’s efforts on marijuana, spokesman Brian Darling immediately noted: “He’s been pretty clear that marijuana is bad for people, but they should not have their lives ruined for smoking it.”

Strategists argue that Paul’s reluctance to embrace full legalization and insistence on warning about the dangers of marijuana use indicate he doesn’t want to anger a key segment of the GOP base. “Part of the reason why Paul finds himself in this conundrum is the amount of older voters we have in the Republican primary,” said GOP strategist Ford O’Connell, noting that Paul’s libertarian-leaning foreign policy stances already have Republican voters over 50 eying him warily.

I strongly believe that a GOP message concerning marijuana reform that was based not only on states rights, but also on small government, free markets and personal freedom and family values could and should resonate with all segments of the GOP base if pitched correctly. Whether and how GOP leaders other than Senator Paul come to see this possibility is one of the most interesting political stories to watch closely over the next couple of years.

February 2, 2015 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Polling data and results, Who decides | Permalink | Comments (0)

Thursday, January 29, 2015

AG nominee Loretta Lynch says she does not support marijuana legalization

This NPR report provides details on the brief discussion of federal marijuana law and policy during her first day of confirmation hearings for Attorney General nominee Loretta Lynch:

[S]he was asked about marijuana, and whether she supports legalizing it. "Senator, I do not," Lynch told Sen. Jeff Sessions, R-Ala., when he asked if she supported making pot legal.

The moment stood in contrast to other exchanges between Lynch and members of the Senate Judiciary Committee, as she defended Obama's right to take executive action on immigration rules and aligned herself with the president's view on U.S. interrogation programs, saying, "Waterboarding is torture."

Sessions asked Lynch about marijuana during the afternoon portion of her hearing. And he noted that the head of the Drug Enforcement Agency also disagrees with the idea of legalizing marijuana.

The senator then read aloud a quote from President Obama from last January, in which he told The New Yorker, "I smoked pot as a kid, and I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life.  I don't think it is more dangerous than alcohol."

When Sessions asked Lynch if she agreed with that assessment, she said, "Well senator, I certainly don't hold that view, and don't agree with that view of marijuana as a substance.  I certainly think that the president was speaking from his personal experience and personal opinion – neither of which I am able to share."

She added, "Not only do I not support legalization of marijuana – it is not the position of the Department of Justice currently, to support the legalization, nor would it be the position should I become confirmed as attorney general."

January 29, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Monday, January 26, 2015

"The Impact of Marijuana Policies on Youth: Clinical, Research, and Legal Update"

DownloadThe title of this post is the title of this notable new report coming from the American Academy of Pediatrics. Here is its abstract:

This technical report updates the 2004 American Academy of Pediatrics abstract technical report on the legalization of marijuana. Current epidemiology of marijuana use is presented, as are definitions and biology of marijuana compounds, side effects of marijuana use, and effects of use on adolescent brain development. Issues concerning medical marijuana specifically are also addressed. Concerning legalization of marijuana, 4 different approaches in the United States are discussed: legalization of marijuana solely for medical purposes, decriminalization of recreational use of marijuana, legalization of recreational use of marijuana, and criminal prosecution of recreational (and medical) use of marijuana. These approaches are compared, and the latest available data are presented to aid in forming public policy.  The effects on youth of criminal penalties for marijuana use and possession are also addressed, as are the effects or potential effects of the other 3 policy approaches on adolescent marijuana use.  Recommendations are included in the accompanying policy statement.

The AAP's updated policy statement referenced at the end of this abstract is available at this link, and here are three of the most notable of the ten recommendations appearing at the end of the policy statement:

The AAP opposes “medical marijuana” outside the regulatory process of the US Food and Drug Administration. Notwithstanding this opposition to use, the AAP recognizes that marijuana may currently be an option for cannabinoid administration for children with life-limiting or severely debilitating conditions and for whom current therapies are inadequate. 

The AAP opposes legalization of marijuana because of the potential harms to children and adolescents. The AAP supports studying the effects of recent laws legalizing the use of marijuana to better understand the impact and define best policies to reduce adolescent marijuana use.

 The AAP strongly supports research and development of pharmaceutical cannabinoids and supports a review of policies promoting research on the medical use of these compounds. The AAP recommends changing marijuana from a Drug Enforcement Administration schedule I to a schedule II drug to facilitate this research.

January 26, 2015 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

Friday, January 23, 2015

Are the marijuana industry's banking difficulties starting to work themselves out?

The question in the title of this post is prompted by this notable recent Denver Post article sent my way by one of my terrific students.   The article is headlined "Oregon bank opens doors to Colorado marijuana businesses," and here are excerpts:

An Oregon bank is openly offering service to the marijuana industry in Colorado at a time when banks here are lurking mostly in the shadows. MBank, based outside Portland, is part of a growing number of financial institutions, mostly Washington-based credit unions, that are banking openly with marijuana businesses.

But it is the first to venture across state lines and the only bank to announce publicly that it is serving Colorado marijuana businesses. The bank said it also is taking marijuana-related deposits in Washington, the other state where recreational pot is legal and has been serving Oregon-based medical marijuana dispensaries since September.

While some industry analysts see its announcement as somewhat brazen, considering pressure from regulators to keep any participation with the marijuana sector quiet, MBank officials say they're confident it's a good idea. "It's a bold maneuver and not one for a lot of folks to take on," MBank president and CEO Jef Baker said Tuesday. "We looked to regulators, both state and federal, to help us come to the conclusion that we can do banking in this sector."

The $165 million bank, in business since 1995, is putting trust in what it said is "tacit approval" — bank-speak for acceptance that isn't in writing — from the Federal Deposit Insurance Corporation. "We had to vet the program and expose ourselves to additional audits," Baker said. "But to be sure, we've put together something that meets without objection, though not necessarily specific approval."

An FDIC spokesman said the agency does not comment on bank operations.

MBank partnered with Guardian Data Systems to hook marijuana businesses. Already about five in Colorado have established accounts, Baker said, with about 30 other applications pending. "Finding access to traditional banking services has been one of the most daunting challenges faced by owners and operators in our industry" said Lance Ott, principal at GDS, which is handling the preliminary screening of account applicants.

"To date, there has not been a permanent (federally) compliant solution to the cannabis industry. With this partnership, cannabis industry operators no longer must shield the nature of their business from banking institutions," he said....

Federal regulators have offered guidance to bankers willing to work with the industry, mostly by requiring a restrictive set of rules and filing reports about account-holder transactions. Bankers balked at opening their doors to the industry, at least publicly. Some business owners offered anecdotes of account closures if even a hint of their participation became known to others. As a result, banks willing to work with the industry have remained a trade secret that businesses protect.

A number of business solutions — such as point-of-sale ATMs and credit-card processing machines — regularly are offered to marijuana shops, but all require the participation of a bank and the vendors aren't willing to identify their partner.

For that reason, Colorado bankers doubt that MBank's openness will work. "I wonder if this bank will suffer the fate as those in Colorado that tried to work openly, only to be told to close accounts," said Jenifer Waller, vice president of the Colorado Bankers Association. "I'm not sure Colorado banks will step out again after this since each test trial has met with the same result: closed accounts."

Colorado Springs State Bank was the last to openly work with the marijuana industry here. In October 2011, it closed about 300 industry accounts amid concerns about working with companies that violate federal law.

Marijuana remains on the government's list of illegal drugs, and no bank has stepped into the light since. That has not happened in the Pacific Northwest, where others willing to openly bank the pot industry have crept forward, including Washington credit unions in Olympia, Spokane and Seattle.

Although Colorado awaits the opening of the world's first pot credit union, that won't happen until federal regulators approve a master account for the Fourth Corner Credit Union to operate....

MBank first took on Oregon-based medical marijuana businesses in September after clearing its plan with state and federal regulators, but at the time it remained focused on dispensaries in that state alone. That changed as the bank saw opportunity in "an underserved sector," Baker said.

MBank won't have a physical office or employees in Colorado. Cash deposits are to be picked up by contracted armored-car services and brought to a Federal Reserve System bank, such as the one located in downtown Denver. Deposits are then credited to MBank's account and further credited to the account of the marijuana business. "It's all electronic and never physically crosses state lines," Baker said. MBank has established a limit of 35 new accounts for marijuana businesses each month for the first year, which works out to be a convenient number: 420.

I had lately been thinking that Section 538 of the cromnibus act passed by Congress last month, which forbids the use of money by the Department of Justice for interfering with State laws implementing medical marijuana programs, might embolden more banks to openly move into the marijuana business sector.  I am not sure if Section 538 fully explains MBank's moves now, but I am sure more and more financial institutions will move into this space if and when it becomes clear that the feds will not go after those who provide responsible banking services to state-approved marijuana businesses.

January 23, 2015 in Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Monday, January 12, 2015

Federalism issues and tensions with modern MJ reform becoming even harder for Congress and Prez to avoid in 2015

Download (2)This lengthy new Politico piece, headlined "The new clash over cannabis: Rising tensions between states over pot put pressure on Obama to act," spotlights just some of the new challenges facing federal officials and policymakers as marijuana reform continues to heat up in the new year. Here are excerpts:

The Obama administration and many congressional Republicans have been loath to go anywhere near the experiment with marijuana legalization in Colorado and other states. But pressure is mounting on Washington to take a stand on pot, and perhaps soon.

In a lawsuit filed last month with the U.S. Supreme Court, attorneys general of Nebraska and Oklahoma argue that Colorado’s marijuana initiative is spilling over into their neighboring, more conservative states. Marijuana arrests and prosecutions are up over the past year, they say, straining law enforcement budgets as more overtime is paid to handle the uptick in activity. And drugged driving is a growing problem, they contend.

But the neighbor states are also taking aim at a federal government that seems highly reluctant to tackle the issue. And with several more states considering legalizing recreational marijuana, the Justice Department and Congress may be forced to clarify what’s OK or not when it comes to marijuana, experts say....

The issue is emerging as a major test for attorney general nominee Loretta Lynch, who will have to decide whether to embrace the hands-off approach to marijuana in the states that the Justice Department has adopted under Eric Holder — or take more decisive action to regulate it.

Experts and advocates floated a range of options if Congress or DOJ were to act, some more far-reaching or politically feasible than others. Anti-legalization advocates want an about-face from the administration: Enforce the existing federal marijuana ban and crack down on legalization regimes in Colorado and elsewhere. That’s a pipe dream for the current White House but not inconceivable if a Republican is elected president in 2016.

Pro-legalization advocates want Congress or the Obama administration to reclassify marijuana under sentencing laws so that it would carry lesser or no criminal penalties. Marijuana is currently considered a “Schedule I” drug, a category that includes heroin and LSD. Even cocaine is deemed less dangerous than pot under federal law.

Other experts say Congress should pass legislation that would deem marijuana federally legal in states that enact legal cannabis laws, thus removing ambiguity in those states. And still others want the administration to establish a standardized regulatory framework throughout the states, as the federal government does with other “vice industries.”

The urgency is expected to grow as five states are preparing recreational pot initiatives for the 2016 ballot: Arizona, California, Maine, Massachusetts and Nevada. A trio of other states — Missouri, Montana and Florida — are considering similar ballot measures. Currently, recreational pot is legal in Colorado, Washington state, Alaska and Oregon; an initiative approved by Washington, D.C., voters in November is currently being challenged by some Republicans in Congress....

In many regards, Oklahoma and Nebraska’s lawsuit demonstrates a last-resort tactic for states that don’t see a willing partner in the federal government, but want to try to blunt the rising tide of legal marijuana in the U.S. But analysts are far from confident that a gridlocked Congress will summon the will to find common ground on such a divisive issue. Though some Republicans and much of the GOP base oppose legalization and would like to see the federal government step up its enforcement, others say more federal action would run counter to the party’s support of states’ rights....

Congress sent something of a mixed signal on marijuana in the $1.1 trillion spending bill passed last month. Anti-legalization hardliners, led by GOP Rep. Andy Harris of Maryland, earned a potential victory by including language that might invalidate D.C.’s Initiative 71. But the bill also included language to prohibit federal agents from raiding medical marijuana facilities in states where pot is legal, codifying the Obama administration’s de facto policy.

Without action from Congress or further clarification from DOJ, friction between the states will only increase, experts say. “[I]t is a useful reminder that the Constitution recognizes that having states go their own ways is not necessarily an unalloyed good,” said Brannon Denning, a law professor at Samford University. “In some cases, we want there to be a single, national rule governing conduct in all 50 states.”

January 12, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, January 8, 2015

Brookings highlights "Eight Big Things to Watch" concerning marijuana policy in 2015

Via e-mail, I was alerted to this Brookings FixGov blog post by Brookings Fellow John Hudak titled "Marijuana Policy in 2015: Eight Big Things to Watch." The e-mail provided this helpful summary of various points made in the longer posting:

1)    Oregon, Alaska Plan & Prepare for Legal Marijuana: How well each of these state legislatures and alcohol regulatory bodies work together will determine the success or failure of marijuana policy in these states. As it borders Washington, Oregon’s commercial and regulatory choices will be particularly crucial in understanding to what extent states may strive for market advantages vis-à-vis bordering states.

2)    Identifying the Next States to Legalize: 2015 will show which states are serious about ballot initiatives in 2016.  It’s widely expected that California will advance an initiative and Florida might take another swing at approving medical marijuana, after falling just short of approval in 2014.

3)    Cannabis Policy & State Legislative Action: In some states, the battleground for enacting items like the legalization of recreational or medical marijuana is not the ballot box, but the state legislature.

4)    Cannabis & the Courts: Multiple high-profile lawsuits surrounding marijuana policy may play out in 2015.  For instance, Coats v. Dish Network may settle the issue of employer-sponsored marijuana testing and a Supreme Court case involving Nebraska and Oklahoma’s suing of Colorado over legalizing marijuana will indicate the willingness of federal courts to engage in this policy area.

5)    Answers to Questions About D.C.’s Marijuana Policy:  Clarity about the future of marijuana policy in Washington, D.C. will almost surely be left to the federal courts, particularly if there is congressional inaction on Initiative 71.

6)    Colorado & Washington (& Uruguay) Continue Legalization: InColorado, edibles, product testing, and homegrows will be on the agenda.  The policy challenge Washington faces is that legal weed could be too costly to lure consumers from the black market.  On the international front, Uruguay works hard to ready a bureaucracy and a consumer base for the experiment.

7)    Data, Data, Data: One key takeaway for policy advocates, both supporters and opponents, will be to patiently wait to draw conclusions as the data are currently incomplete and imperfect.  2015 will offer steady flows of data from Colorado and Washington, and eventually other states.

8)    Presidential Candidates & Cannabis: Marijuana policy will definitely be part of the 2016 conversation in a way that it has not in previous presidential campaigns. And the issue will be particularly interesting to watch as it does not fall neatly along party lines.

I think points 7 and 8 are the most interesting, dynamic and unpredictable stories to watch from among this list. I would also add to the list...

9) Political Party leaders and Pot Policy:  Key leaders of both parties inside and outside the Beltway have, to date, said relatively little about marijuana reform. Cautious "establishment" politicians --- ranging from Prez Obama to Hillary Clinton to Jerry Brown on the D side and from Mitch McConnell to John Boehner to Mitt Romney on the GOP side --- will only be able to dodge the new terms of the modern policy debate for so long.

January 8, 2015 in Current Affairs, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, December 24, 2014

"Who Shares In Marijuana Taxes? The Surprising Answer"

The title of this post is the headline of this notable new Forbes piece by Robert Wood.  Here are excerpts:

Taxes on marijuana are big, and it’s easy to see why. A discussion about legalizing marijuana often segues into one about tax revenues. Marijuana for medical use is legal in 23 states and the District of Columbia. Recreational marijuana is legal in DC and in four states, Colorado, Washington, Oregon and Alaska. More states will be coming.

In the meantime, cannabis — even for medical use — remains illegal under federal law. That leads to numerous legal woes for operations that are legal under state law. One sweet spot among legislators is tax revenue. It is a boon for the states. It could be a boon for the feds too.

The proposed Marijuana Tax Equity Act (H.R. 501), if passed, would end the federal prohibition on marijuana and allow it to be taxed. Growers, sellers and users would not to fear violating federal law. But dealing with taxes would be another story. The bill would impose an excise tax of 50% on cannabis sales and an annual occupational tax on workers in the field of legal marijuana.

Even if passed, one wonders if such high taxes could be collected. In the meantime, Colorado has trumpeted its tax revenues, though perhaps prematurely. It turned out that the $33.5 million Colorado projected to collect in the first six months of 2014 was too optimistic. When the smoke cleared, Colorado was missing $21.5 million in pot taxes! Yet the math isn’t difficult.

There’s a 2.9% sales tax and a 10% marijuana sales tax. Plus, there is a 15% excise tax on the average market rate of retail marijuana. If you add them up, it’s 27.9%. But much of the volume goes to black market buys where sales taxes aren’t paid. But that could change.

In fact, Colorado is making some marijuana businesses happy with its rebate program. Sales tax applies to marijuana sales and vendors are required to collect and remit the tax to the state. However, Colorado rewards all businesses with a rebate for the prompt payment of taxes, letting businesses keep a percentage each month. Calling it a ‘vendor fee,’ Colorado allows businesses to keep 3.3 percent of the 2.9 percent state sales tax.

According to estimates by the Denver Post, Colorado’s medical and recreational marijuana stores have collected — and kept — over $447,000 in sales taxes in the 10 months ended October 31, 2013. That could mean more than 400 marijuana stores in the state will end up clearing approximately $575,000 for all their trouble. It is what has allowed pot shops to keep more than $500K in sales tax.

That’s not bad, and at least it is something for their trouble. The idea that retailers should get a little sweetener for collecting sales tax is nothing new. But in the marijuana context, it can be especially attractive precisely because it would otherwise be hard to collect.

Already, with typically higher taxes for recreational than medical use, there is a clear incentive to resort to the illegal market. The Marijuana Policy Group suggested that only 60% of purchases in Colorado may be made through legal channels. One reason is price, another is taxes....

The 2.9% medical marijuana tax compared with 27% on the recreational variety is a big spread. Some patients could be reselling their 2.9% medical stock to the public. But the sales tax rebate may be one of the few places marijuana businesses feel fairly treated.

December 24, 2014 in Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (0)

Friday, December 19, 2014

Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?

As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."  I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma.  And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court. 

This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug.  Here are passages from the filing to that end:

Congress has classified marijuana as a Schedule I drug.  21 U.S.C. § 812(c).  Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....

Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”

There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.

Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.

I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.

Recent related post:

December 19, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (3)

Thursday, December 18, 2014

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution."  Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Via the Denver Postthe 83-page SCOTUS filing can be found at this link.

December 18, 2014 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)