Tuesday, April 15, 2014
From the Huffington Post today, Attorney General Eric Holder makes some noteworthy commenst on marijuana legalization. Holder said he was "cautiously optimistic" about the implementation of legalization in Colorado and Washington so far. But, he noted, "we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."
Another interesting note, the article describes Holder's decision not to reschedule marijuana as a "political" one and quotes Holder as saying:
"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."
Though Holder's comments aren't much different from what the administration has said already, HuffPo's description of rescheduling as a "political" decision brings to mind the flexibility of the CSA. The CSA purports to provide scientific criteria for classifying and regulating mind-altering substances. But, as I've written about elsewhere, the criteria are so open-ended that they don't do much to constrain administrative decision-making.
Though I doubt Congress will take Holder up on the offer to work with the on rescheduling marijuana, if this issue does start to gain momentum in Washington, I hope that legislators will use the opportunity to rethink the CSA's classification scheme at a more fundamental level. In its current incarnation, it is too malleable and incoherent to effectively guide administrators.
Tuesday, April 1, 2014
Doug blogged over at SL&P last Friday about a notable district court opinion on federal drug sentencing. In the lengthy opinion, Judge James Browning makes an argument in defense of the federal drug sentencing guidelines (responding in large part to an opinion by Judge Gleeson taking the other side.)
Though the case involves methamphetamine, Judge Browning makes an interesting comment about marijuana legalization in a footnote (footnote 23):
This observation seems particularly true in light of the DOJ’s recent policy announcement not to spend its resources going after the marijuana dealers and growers who are acting consistent with Colorado’s new marijuana laws. This decision not to prosecute wealthy large-scale Anglo distributors in Colorado--on New Mexico’s northern border--calls into question whether the Court should mete out large sentences to poor backpackers from Mexico--on New Mexico’s southern border--bussing over bundles of marijuana.
The bservation reminds me of concerns raised by Michelle Alexander last month about legalizaiton and racial disparity, arguing that white men are getting rich while black men stay in prison. And, of course, it also echoes the concerns some Latin American leaders have also expressed about fighting a war to keep marijuana out of the United States when it is now legal to use and sell the substance in Colorado and Washington.
Wednesday, March 19, 2014
Yesterday, the National Journal published an article asking how Maryland Governor Martin O'Malley's marijuana prohibitionist outlook might impact his possible 2016 bid for the Democratic presidential nomination. The piece ran with this subheadling: "Would Democrats support an antimarijuana candidate for president? O'Malley may be about to find out."
The story is another sign of how quickly the conventional political wisdom is changing when it comes to marijuana. And it raises an interesting question. Is it possible that marijuana reform could become a litmus test for Democratic candidates in the coming years?
Though marijuana reform and marriage equality are often compared (perhaps too often), I can't help but think back to the reaction when Gavin Newsom began marrying same sex couples. I think a lot of people have forgotten that, at the time, Democrats couldn't run away from him fast enough. Even more striking: just a year earlier, in the 2004 Presidential race, many people argued Howard Dean was unelectable because he had signed a civil union bill in Vermont (as it turned out, yelling into a bad sound system is what made him unelectable).
Fast forward ten years. Today, opposition to marriage equality would be a deal breaker in a statewide Democratic primary in many (perhaps most) parts of the country. Some might remember a period of media focus last year on the Democratic Senators who still opposed same sex marriage to the point where it became sort of a count down.
I'm not sure we can say whether marijuana will ever reach that same tipping point. There are reasons to think it may not. Unlike same sex marriage, which directly relates to equality under the law (a core Democratic value), marijuana reform's relationship to civil rights principles is arguably much less direct.
Either way, the prospect of marijuana as a Democratic litmus test is certainly interesting to consider. The National Journal article notes, for example, that O'Malley will soon have to take action on a marijuana decriminalization bill and asks: "Can O'Malley possibly veto this sort of bill and go on to be taken seriously as a national Democratic contender for president?"
This will be something to watch very closely in 2016. If the Democratic presidential candidates (assuming there is more than one) feel the need to voice support for marijuana reform (even limited support like for decriminalization), it could have a huge ripple effect.
(Hat tip to Eric Sterling for sending the article my way.)
Tuesday, March 18, 2014
Via Nicole Flatow at ThinkProgress, researchers are one step closer to studying the use of medical marijuana to treat PTSD.
On Friday, the federal government took a potentially momentous step back from this position, granting researchers who have for years borne the brunt of this policy access to a legal supply of marijuana. The decision means a psychiatry professor at the University of Arizona who specializes in treating veterans may for the first time be able to perform a triple-blind study on marijuana and post-traumatic stress disorder.
The Multidisciplinary Association for Psychedelic Studies (MAPS) was granted permission to purchase marijuana fro the National Institute on Drug Abuse. The DEA still needs to sign off but it seems likely that it will given this development.
As I discuss in more detail in this law review article, I find the Controlled Substances Act's research restrictions for Schedule I substances especially hard to defend (or, really, to make any sense of at all).
The CSA places substances into Schedule I if they have no currently accepted medical use. Importantly, this category includes both (1) substances we are fairly certain have no medical value and (2) substances that we think may have promise as medicines even if we aren't yet sure either way. (Marijuana is, of course, the most high profile of the latter sort of substance.)
It seems to me that the two categories should be treated very differently as far as research goes. If we know a substance has no medicinal value, then we arguably lose very little by making it hard to study the substance. But if preliminary studies indicate the substance has medicinal value--as, for example, with marijuana--then I'd think we'd want to encourage further study, not make it more difficult.
The CSA, however, puts up the same roadblocks for studying all Schedule I substances, including those that we think hold medical promise. The only conceivable reasons for doing this are leakage concerns (ie, that substances approved for research will leak into the black market) or that the substance is so very dangerous that we need to be extra cautious when studying its medical value.
Certainly neither of these are legitimate concerns when it comes to marijuana. The only people in the United States who have any trouble getting their hands on marijuana are researchers. And the health risks of marijuana are certainly no worse than many FDA approved drugs.
All this is to say this while the news that the federal government may be easing up when it comes to studying marijuana is worth cheering, the core of the problem remains: a regulatory scheme that makes the study of Schedule I substances difficult, even for substances that have shown promise as medicines.
In some parts of the country people are proudly announcing plans to get rich selling marijuana legally. But in Missouri, a man who ran a sophisticated illegal marijuana business was just sentenced to 30 years.
Not long ago, these sorts of stories were reported as big drug war wins. But the Riverfront Times ends its report on the case with this observation:
Incarcerating Henderson will cost taxpayers more than $800,000 at an average of about $27,000 per year.
Meanwhile, in Colorado, the state collected about $3.5 million in taxes from recreational marijuana sales in the month of January alone.
Seeing this story also brought to mind an article from April Short at Salon last Friday, which is well worth a read: "Legal Weed's Race Problem: White Men Get Rich, Black Men Stay in Prison."
Tuesday, March 4, 2014
The title of this post is the title of this new post by Jordan Cunnings at the blog crImmigration.com. The full post is worth a read, and here is how it starts:
In a recent New Yorker interview, President Obama described marijuana use as a “bad habit and a vice, not very different from. . . cigarettes,” and not more dangerous than drinking. The President expressed concern with the disproportionate rates of criminal punishment for marijuana use in poor and minority communities, and spoke favorably of recent efforts to legalize small amounts of the drug in the states of Colorado and Washington.
While Obama’s comments may be a good sign for marijuana legalization advocates, his personal viewpoint is glaringly inconsistent with his administration’s consistently harsh enforcement efforts in the area of marijuana use and immigration. While marijuana use is legal in one form or another in twenty states and the District of Columbia, and banks now have the green light from the Treasury Department to finance legally operating marijuana dispensaries, noncitizens remain at risk for incredibly harsh and disproportionate immigration consequences when using small amounts of marijuana. Low-level marijuana charges often funnel noncitizens into the immigration law system, prevent otherwise-eligible noncitizens from obtaining lawful immigration status, and subject lawfully present noncitizens to deportation. Worse yet, marijuana laws are disproportionately enforced in poor and minority communities—as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do”—meaning that marijuana citations and arrests may disproportionately impact the people of color who make up the bulk of today’s immigrant groups.
Though recent prosecutorial discretion memos by the former head of the Immigration and Customs Enforcement (ICE) agency John Morton purport to refocus enforcement priorities away from individuals who have only minor criminal histories, immigration law enforcement statistics from the past two years show that this policy is not being followed. Marijuana laws are disproportionately enforced in poor and minority communities – as Obama himself noted, “[m]iddle class kids don’t get locked up for smoking pot, and poor kids do” — meaning that marijuana citations and arrests often serve as entry point into the criminal justice system and then the deportation system. A Transactional Records Access Clearinghouse (TRAC) review of ICE documents from fiscal years 2012 and 2013 found that marijuana possession was one of the top five most common offenses for which ICE issued immigration detainers against individuals. This means that thousands of noncitizens are funneled into ICE custody after being charged with low-level marijuana possession offenses.
March 4, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, International Marijuana Laws and Policies | Permalink | Comments (1)
Saturday, March 1, 2014
The title of this post is the reported title of a bill that, according to this Fox News report, is going to be introduced in Congress next week. Here are the details:
Republican lawmakers plan to introduce legislation next week aimed at preventing the misuse of the food stamp funds amid reports that welfare debit cards have been used to withdraw cash at ATMs at marijuana dispensaries in Colorado....
The bill would add pot dispensaries to the current list of locations where states must block welfare electronic benefits transfer (EBT) cards from being used for purchases or ATM withdrawals, Reichert’s office told the station.
KDVR.com reported last week that at least 19 different dispensaries allowed electronic benefits transfer withdrawals inside their pot shops in January. Public records obtained by the station showed 56 transactions, totaling nearly $4,000.
A separate report by National Review Online said the amounts withdrawn ranged from $20 to $400, averaging $85.55. The maximum monthly benefit for the average household receiving Temporary Assistance for Needy Families (TANF) benefits is $462.
Last year, Colorado lawmakers passed a bill prohibiting access to welfare benefits at casinos, gun shops, bars, and liquor stores. State lawmakers recently failed to pass legislation that would have prohibited such transactions at pot shops, NRO reported.
“It’s time to close this ‘pot shop loophole’ before it gets any bigger,” the lawmakers said in a letter circulated among House lawmakers and obtained by The Colorado Observer. “This bill does not comment on whether it makes sense for states to legalize the sale of pot, as Colorado and Washington have done,” the lawmakers wrote. “It simply says that, wherever pot is legally sold, welfare recipients shouldn’t be able to readily access welfare funds to pay for it.”
Friday, February 28, 2014
The title of this post is drawn from the title of this recent published scholarly article that, on the surface and even in substance, seems be about a lot of topics other than marijuana law, policy and reform. But the title caught my eye, and I think all would-be marijuana reform advocates ought to check out the article, because I strongly believe the marijuana tax stories and regulations that that emerge in state and federal law and policies in the months and years ahead will be the most important predictor of whether pot prohibition eventually gets fully repealed or lives on and on in the United States.
The article is authored by Susannah Camic Tahk, it is published at 50 Harvard Journal of Legislation 67 (2013), and it is available here via SSRN. Here is its abstract:
In contrast to major legislative reform packages in the 20th century, the Affordable Care Act of 2010 took the form of a tax bill. Although this legislation is the first massive social and regulatory overhaul completed through the tax code, in the past twenty-five years the U.S. Congress and Presidential administrations have substantially increased their use of tax law for non-revenue-raising purposes. Growing reliance on the tax code represents a structural transformation of how Congress and Presidential administrations have come to approach lawmaking goals. This transformation defies the near-consensus of previous tax scholarship, which, following Stanley Surrey, disapproves of embedding programs in the tax code. However, that dominant view rests on assumptions that have become outdated. This Article analyzes the ongoing structural transformation by observing and explaining the advantages that accrue from pursuing social and regulatory objectives through the tax code. In particular, this Article identifies a number of legislative and normative advantages that tax-embedded policies offer.
Friday, February 21, 2014
The Colorado Bankers Association, an organization counting many prominent national and local banks as members, is very skeptical (to put it mildly) of the banking guidance issued by the DOJ and Treasury Valentine’s Day. My earlier posts on the guidance can be found here and here.
In a nutshell, the CBA suggests the guidance does nothing to ease bank fears over dealing with the state’s marijuana industry and that only a change to federal laws could really accomplish that. A statement issued from the CBA’s President, Don Childears, can be found here. Here’s a snippet:
“The guidance issued today by the Department of Justice and the U.S. Treasury only reinforces and reiterates that banks can be prosecuted for providing accounts to marijuana related businesses.
“In fact, it is even stronger than original guidance issued by the Department of Justice and the Treasury . . . After a series of red lights, we expected this guidance to be a yellow one. This isn’t close to that. At best, this amounts to ‘serve these customers at your own risk’ and it emphasizes all of the risks. This light is red.”
“Bankers had expected the guidance to relieve them of the threat of prosecution should the open accounts for marijuana businesses, but the guidance does not do that. Instead, it reiterates reasons for prosecution and is simply a modified reporting system for banks to use. It imposes a heavy burden on them to know and control their customers’ activities, and those of their customers. No bank can comply.”
“An act of Congress is the only way to solve this problem. . . ”
I agree. Earlier DOJ guidance suggesting it wouldn’t crack down on marijuana distribution was probably sufficient to get people to distribute the drug in Colorado (in reality, it probably wasn’t even necessary to achieve that). But guidance suggesting the DOJ might not crack down on money laundering offenses falls well short of what highly regulated banks are going to need before they start dealing with this industry.
Tuesday, February 18, 2014
As I noted Friday, the Treasury Department just issued new guidance designed to make it easier for banks to serve state-authorized marijuana businesses. In a less-noticed move, the DOJ also issued new guidance urging federal prosecutors not to pursue financial crimes charges against marijuana businesses outside of the circumstances outlined in its August 2013 memo regarding drug crimes. The Treasury guidance and new DOJ memo can be found here.
Banks have long refused to serve the marijuana industry, citing, among other reasons, federal statutes that criminalize financial transactions involving proceeds of illegal activity, including marijuana sales. Sam Kamin and Joel Warner discuss the banking issue here.
Now, I doubt this new guidance will convince many banks to serve the marijuana industry. Among other things, and as I explained in a paper critical of the DOJ’s first marijuana enforcement guidelines (the 2009 Ogden memorandum), such guidance does not shield banks from all of the relevant federal sanctions that serving marijuana businesses might trigger.
But if banks DO end up serving marijuana businesses, it might give a boost to state and federal efforts to police the marijuana industry. In particular, banks could help government officials determine whether the marijuana industry is violating state law and / or engaging in behavior that would justify federal legal action under those 2013 DOJ enforcement guidelines (e.g., selling to minors).
Here’s how. Federal law requires banks to monitor and report on the financial transactions of their clients. Under federal law, for example, banks are required to file “Suspicious Activity Reports” anytime they know, suspect, or have reason to suspect a client is engaging in a financial transaction involving proceeds of illegal activity. The government then uses these SARs to investigate and prosecute federal crimes committed by the clients.
Importantly, the bulk of the new Treasury guidance is actually devoted to reaffirming and clarifying the duty of banks to file SARs on clients engaged in the marijuana industry. It makes abundantly clear that a “financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) . . . if, consistent with FinCEN regulations, the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution . . . involves funds derived from illegal activity.” (emphasis added)
To be sure, the reporting requirement could simply overwhelm government agents, since every transaction involving a marijuana business might trigger a new report. Indeed, federal agents are already deluged with SARs; in 2009, for example, banks submitted more than 700,000 SARs (banks in Colorado and Washington submitted more than 17,000 SARs), far too many for the government to investigate them all.
But the new Treasury guidance instructs banks to distinguish between good and bad marijuana businesses. Namely, if a bank believes a marijuana business is abiding state law and avoiding activities the federal government considers objectionable (e.g., selling across state lines), the bank may file an abbreviated SAR, simply by writing “MARIJUANA LIMITED” in the notations section of the report. But if the bank believes the business is flouting state law or engaging in one of those objectionable activities, it is supposed to file more detailed SAR, writing “MARIJUANA PRIORITY” in the notations section and explaining why the bank believes the business deserves closer scrutiny.
The information provided on these SARs could greatly enhance the efforts of federal and state enforcement agencies to police the marijuana industry. Banks won’t necessarily have perfect information about their clients, but they will often possess information that government agencies cannot realistically gather on their own. Indeed, as I’ve discussed at length elsewhere, governments commonly use private parties to gather information they need to enforce their regulations; e.g., without the W-2s filed by employers, the IRS would struggle (mightily) to collect individual income taxes. And requiring banks to further distinguish between law-abiding and law-shirking marijuana business greatly enhances the utility of this information for government agencies.
Knowing that banks will share information with the federal government could have a powerful deterrent effect on marijuana businesses. These businesses need bank services – try operating any business without a checking account, for example. But if they misbehave, banks will shun them, or worse yet, report their misbehavior to the feds. To be sure, some misbehaving businesses will simply avoid the banks altogether. But those businesses will be put at a serious competitive disadvantage vis a vis their more law abiding rivals.
In sum, if the guidance works (a big if), marijuana businesses will get access to banking services; banks will expand their market; and government agencies will get a new watchdog to help police the marijuana industry. Looks like a win win win.
February 18, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, February 10, 2014
Taking up Mark Kleiman's argument that marijuana rescheduling would be meaningless, Jacob Sullum has this excellent piece on Forbes.com, in which he notes:
From the perspective of people who believe marijuana should be legalized for medical or general use, the advantages of [rescheduling] are not as substantial as you might think. But neither are they, as UCLA drug policy expert Mark Kleiman claims, “identically zero.” Moving marijuana to a less restrictive legal category would have some significant practical effects, perhaps the most important of which would be to advance a more honest discussion of marijuana’s hazards and benefits.
The whole thing is well worth reading.
Wednesday, February 5, 2014
A few days ago, Mark Kleimen weighed in, saying that marijuana rescheduling is essentially beside the point. Since marijuana still would not have FDA approval, Kleiman argued, growing marijuana "would still be the illegal manufacture of a Schedule II controlled substance." Although overstated (and full of odd and off-base personal attacks against Jacob Sullum), Kleiman's basic point is valid and often overlooked: rescheduling marijuana would not solve the conflict between state medical marijuana laws and the federal Controlled Substances Act. (Unlike Kleiman, I do not think rescheduling would have "zero" practical effect--it would have a significant political impact and could provide space for litigation on the legality of distributing marijuana without FDA approval, for example as an herbal supplement.)
Putting the question of what impact rescheduling might have aside, however, I just saw an update to Kleiman's post that struck me as misguided. In the update, Kleiman claims that marijuana could not be moved below Schedule II because "more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time."
Kleiman's position stems from the federal Controlled Substances Act's three scheduling criteria, one of which is a substance's relative "potential for abuse." The law provides that substances in Schedules I and II are those with a high potential for abuse. Schedule III substances have a potential for abuse less than those in Schedules I and II and so on.
The trouble is, the CSA does not define the term "potential for abuse." (In fact, the only term in the CSA's scheduling criteria that is expressly defined, is "United States.") The result--as anyone with a basic familiarity with administrative law can guess--is that the DEA has enjoyed incredibly broad discretion to interpret and define "potential for abuse" and other scheduling criteria.
And here's where Kleiman's position is not as air-tight as he seems to think it is. Currently, the DEA defines "potential for abuse" in a way that equates, roughly, to overall use rates. And if we apply this definition (as the DEA does), Kleiamn is right: marijuana's abuse potential would place it in Schedules I or II.
But there are plenty of other reasonable ways to define "potential for abuse." And the only thing stopping the DEA from adopting a different definition of "potential for abuse" is, well, the DEA. Instead of focusing on the total number of users, for example, we might define "potential for abuse" based on the percentage of users who become addicted to a substance or based on the ancillary harms that come from regular use. (Indeed, many people seem to think idea that marijuana's abuse potential is the same as heroin's is pretty ridiculous. Presumably, folks in this category think that there are other measures of abuse potential than Kleiman's/the DEAs.)
This is not to say that marijuana would necessarily end up with a lower abuse potential rating if the DEA decided to revise its definition of the term. My point is only that it could and that there are certainly reasonable definitions of "potential for abuse" in which it almost surely would. Kleiman's position that marijuana's abuse potential means it must remain in Schedule I or II misunderstands the way administrative law works and the DEA's power to interpret "potential for abuse."
I examined the DEA's definition of "potential for abuse" in some detail in this article for the Albany Government Law Review last year.
Friday, January 31, 2014
As Doug has been following at Sentencing Law and Policy, earlier this week Deputy Attorney General James Cole called on attorneys to help bring more drug clemency applicaitons before the administration.
The comments seem targeted primarily at federal inmates serving mandatory minimum drug sentences--particularly crack offenders sentenced before the 2010 Fair Sentencing Act. But another area immediately comes to mind: federal medical marijuana inmates.
Americans for Safe Access (on whose board I serve) has an online petition up urging the President to grant clemency to federal medical marijuana offenders--medical marijuana caregivers who were acting in compliance with their state's law but were subjected to federal prosecutions. Hopefully the administration will give serious consideration to this group as it considers drug clemency applications.
Tuesday, January 21, 2014
Following up on Rob's post, I think Obama's comments to the New Yorker about marijuana policy may be one of the most politically significant statements on the topic in the past few years (or even decades.)
On one level, his remarks weren't all that exceptional. As far as substance, he doesn't say anything we didn't know already. He acknowledges marijuana is no more dangerous than alcohol ("I don’t think it is more dangerous than alcohol.”); expresses concern about racial disparities i enforcement ("Middle-class kids don’t get locked up for smoking pot, and poor kids do."); and expresses support for the DOJ's memo advising prosecutors not to use resources to interefere with Colorado and Washington's legalization laws (saying of the laws, "it’s important for it to go forward[.]")
And, as Rob very effectively explains, Obama's power to unilaterally change federal marijuana policy is very limited.
But, in terms of the politics, I think Obama's statements are incredibly important.
First, they paint the DOJ's 2013 memo on Colorado and Washington's laws in a much different light that the DOJ's 2009 memo on medical marijuana. Up until now, President Obama's comments on state marijuana policy has focused on the need to prioritize federal law enforcement resources. The DOJ's 2009 memo turned out to have very little impact, in part because US Attorneys could tell local media that it was never really intended to do much more than advise on the use of resources. What Obama told the New Yorker about Colorado and Washington is very different. Instead of saying only that going after people in compliance with state law isn't a good use of resources, Obama said he thinks it is "important" for Colorado and Washington's laws "to go forward." I think this may distinguish the 2013 memo--both politically and in terms of how prosecutors and DEA agents on the ground see it--from the DOJ's ineffective 2009 medical marijuana memo. Obama's statement doesn't leave a lot of wiggle room for federal prosecutors and DEA operatives to go after people in compliance with Colorado and Washington's laws the way they did with medical marijuana. Legally, there there is no difference. But, politically, I think Obama's remarks will make it a lot more difficult for federal officials to go after people in compliance with state laws.
Second, I think Obama's comments indicate that he and his advisors may believe the issue is nearing a tipping point. When Obama was asked about marijuana in 2009, he couldn't even be bothered to give a serious and substantive answer, treating the question as a joke. To the New Yorker, Obama echoed support two key talking points from marijuana legalization advocates: that marijuana is no more dangerous than alcohol and that marijuana prohibition has racially disproportionate impacts. Though he was also careful to express concerns about legalization, his comments seem like the first real indication (to me) that he may be on the political road to "evolving" on this issue.
Finally, and closely related to point two, I think Obama's comments will go a long way toward establishing marijuana legalization as a serious political issue. In 2009, Obama treated it as a joke. In 2012, Mitt Romney wouldn't even answer questions about the topic, saying it wasn't an issue of real significance. This is in keeping with the tendency of mainstream media and politicans to treat marijuana legalization as a joke. Obama's treatment of the issue in the New Yorker is, I think, a preview of what is ahead in the 2016 campaign. Politicians are going to find that they can't just laugh off marijuana legalization. Voters are going to expect real answers on the topic.
Of course, these trends were already underway. And, the bar is low when it comes to significant comments about marijuana from politicians. All that said, it is hard for me to think of many statements on marijuana policy in the past years or decades that I think are more politically important than Obama's.
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.
January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, January 20, 2014
In this post a few months ago on the 50th Anniversary of Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech, I asked this question: Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?." Now, as a way to honor the special day in which we honor the legacy of Dr. King's work, I provide this abridged and tweaked version of famed "I Have A Dream" speech:
One score and four years ago, Congress enacted the Controlled Substances Act. This momentous decree came as a great prohibition to millions Americans who had been enjoying the flames of a plant. It came as a notable break to end the long American history of freedom to grow and use marijuana. Forty four years later, the American pot user still is not free. Forty four years later, the life of the American pot user is still sadly crippled by the manacles of marijuana prohibition and the chains of incarceration. Forty four years later, the American pot user lives on a peculiar island of marijuana prohibition in the midst of a vast ocean of alcohol and tobacco and prescription drug use and abuse. Forty four years later, the American pot user still languishes in the corners of American black markets and finds himself in exile in his own land....
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.
This note was a promise that all men, yes, men who like marijuana as well as men who like alcohol, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness....
It would be fatal for the nation to overlook the urgency of the moment. This exciting winter of legitimate marijuana sales will not pass until there is an invigorating autumn of freedom and equality. Twenty Fourteen is not an end, but a beginning. Those who hope that the American pot user needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the American pot user is granted his liberty and rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges....
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident; that all men are created equal."
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood with marijuana as well as with alcohol.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the intoxicant they responsibly enjoy but by the content of their character....
I have a dream that one day every valley shall be exhalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I will go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood.
With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with new meaning, "My country 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrims' pride, from every mountainside, let freedom ring."
And if America is to be a great nation, this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.
Let freedom ring from the snow-capped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that; let freedom ring from the Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee.
Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.
And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! Free at last! Thank God Almighty, we are free at last!"
Thursday, January 16, 2014
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
January 16, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)
Wednesday, January 15, 2014
Businesses are built on contracts. Consider a mom and pop grocer. It will have a lease agreement with its landlord, purchase agreements with the firms that supply its food, and loan agreements with the investors who provide financing for equipment, inventory, etc. We take it for granted that such contracts are enforceable. For example, if the grocer fails to make timely loan payments, we know its lenders can sue for breach. And if the court adjudicates in their favor, the state will use its coercive power to help the lenders recoup their principal and unpaid interest against the delinquent borrower.
But what if those contracts are not enforceable? That’s a very real possibility now confronting parties doing business with the marijuana industry in Colorado and elsewhere. In at least one recent decision, a state court has refused to enforce loan agreements between two investors and a retail medical marijuana shop operating in Colorado. Under the agreements, the investors provided $500,000 to finance the shop’s sale and distribution of marijuana in Colorado, for which the shop promised to pay 12% interest annually. When the shop failed to make those payments on time, the investors sued to recoup their principal and unpaid interest in an Arizona state court. But the court balked. Noting that the sale of marijuana remains illegal under federal law, and reflexively citing a contract doctrine that discourages enforcement of contracts against public policy, the court dismissed the investors’ lawsuit. It essentially allowed the marijuana shop to walk away with $500,000 of the investor’s money. Ouch. (The opinion and some analysis of the case can be found here.)
I’m no contracts scholar, but I have some doubts about the court’s rather superficial and cursory analysis of contracts doctrine (the opinion runs all of three pages). The late Allan Farnsworth’s venerable Contracts treatise suggests that contracts against public policy are not per se void, and that a court needs to engage in a more nuanced balancing of interests before refusing to enforce one. In particular, Farnsworth instructs courts to consider the strength of the public policy involved and the justified expectations of the parties. And on the basis of such factors, the Arizona court’s decision appears unsound. For one thing, it’s not clear the agreement is against a relevant public policy. After all, both Arizona and Colorado have legalized medical marijuana, and it’s not obvious to me why their policy interests should be passed over in favor of Congress’s, at least as a matter of contract law. What’s more, it seems likely all parties expected their agreement would be enforced. The only factor that suggests otherwise is the rather high rate of interest involved, which might have reflected awareness that the agreement entailed unusual risks, including perhaps the risk of non-enforcement. But at the very least, the court should have done a better job justifying its decision to let the shop walk away with someone else’s $500,000.
Even if the court erred as a matter of contract law, however, there might be a sounder basis on which to bar enforcement of these agreements: preemption. The investors in this case were asking the state to help them violate federal law. Whether or not this offends contracts principles, it likely offends the Supremacy Clause. As I mentioned in my post Monday, Congress has the constitutional authority to block all state interference with the private market, including, in a case like this, a state’s intervention in a contract dispute between two private parties. To be sure, as I’ve explained in more detail elsewhere, Congress might not want to preempt enforcement of all contracts involving the marijuana industry. But its unlikely to tolerate enforcement of at least some types of contracts. Suppose, for example, that the shop had sued its landlord for wrongful eviction. If the court ordered the landlord to reinstate the shop to its premises, it would force the landlord to violate a provision of federal law making it a crime to rent property to drug dealers.
In sum, caveat contractor.
In my next post, I’ll discuss what parties can do to adapt to this legal predicament.
Monday, January 13, 2014
Thanks for inviting me! I really appreciate the opportunity to post here. In my first few posts, I’ll be discussing federal preemption of state marijuana reforms, a topic on which I’ve written extensively.
To my mind, federal preemption constitutes a very potent threat to some state marijuana reforms, notwithstanding the Department of Justice’s assurances that it has no plans to challenge state marijuana reforms. While I believe the DOJ, it isn’t the only entity that can challenge state law on preemption grounds, and there is no shortage of persons interested in doing so. Indeed, over the past decade, local officials and private firms have filed dozens of lawsuits asking courts to block state marijuana reforms as preempted.
To be sure, I think most of the suits that have been brought to date lack merit. Many of them have failed to acknowledge that federal supremacy has some limits. Chief among these is a constitutional doctrine called the anti-commandeering rule. In a nutshell, this rule says Congress may not force a state to regulate marijuana or to help the federal government enforce its own brand of marijuana regulations. In other words, states may always adopt a laissez faire approach toward marijuana, regardless of how Congress treats it.
But most states don’t want to simply legalize marijuana, they want to regulate the drug. Think licensing requirements for distributors, labeling requirements for marijuana products, and employment protections for some users. And herein lies the problem. Any state regulation of the private marijuana market can be preempted by Congress. Of course, Congress doesn’t want to preempt all state regulation. After all, many state regulations short of prohibition will still further federal objectives. Requiring vendors to obtain a state license, for example, should help limit access to marijuana, and Congress probably prefers some state controls to none at all.
But there are some types of state regulation that arguably impede federal objectives and are thus vulnerable under classic conflict preemption principles. These include state redistribution of marijuana (per the Cuomo New York plan, as Sam discussed last week) and perhaps even state enforcement of marijuana contracts. I’ll be writing about these issues in greater detail in the coming days and weeks. In the meantime, thanks again for having me!
Wednesday, November 27, 2013
The question in the title of this post is prompted by this recent report from The Denver Post, headlined "Feds arrest one, seize guns and ammo in Colorado marijuana raids" about recent federal raids of medical marijuana facilities in a state now only a month away from having recreational marijuana stores. Here are the details of the latest federal intervention:
When federal agents swooped into a swanky Cherry Hills Village home last week as part of widespread raids tied to medical-marijuana businesses, they found a person inside holding a loaded gun, according to a court document unsealed Monday. By the time they were done searching the $1.3 million home Thursday, agents had collected five assault-style rifles, five handguns, a shotgun and a "large cache of ammunition," according to the document. It did not identify the person with the gun.
One person was detained and later arrested on suspicion of weapons violations, authorities announced Monday. As part of their investigation, agents had obtained an e-mailed photograph that appears to show that man, 49-year-old Hector Diaz, holding two semi-automatic rifles while wearing a Drug Enforcement Administration ball cap.
The details on the raids — disclosed for the first time Monday — come from an affidavit in the criminal case against Diaz and provide new context for the largest federal operation against medical-marijuana businesses ever in Colorado. Agents executed "approximately 15" search warrants during the raids, the affidavit states. Sources have told The Denver Post that the raids — which a search warrant shows targeted 10 men — were part of an investigation into a single enterprise that detectives believe may have ties to Colombian drug cartels.
Diaz, a Colombian national, was charged with a single count of possessing a firearm after having been admitted to the United States under a non-immigrant visa. He could face up to 10 years in prison if convicted. Appearing in court Monday afternoon, Diaz was advised of the charge against him and ordered held until at least Wednesday, when a hearing will determine whether he should be released and at which time more information about the raids will likely be disclosed.
The raids focused especially on stores, cultivation warehouses and individuals connected to the VIP Cannabis dispensary in Denver. On Sunday, an attorney for one of the owners of the dispensary sent a letter to Colorado U.S. Attorney John Walsh proclaiming his client's innocence. Attorney Sean McAllister wrote that his client, Gerardo Uribe, did nothing wrong under state law and "will be vindicated by a full review of this matter."...
The raids are not the first time, however, the people associated with VIP Cannabis have been accused publicly of marijuana misdeeds. A lawsuit filed last month in Denver claims Gerardo Uribe and two other men named in the search warrant, Luis Uribe and Felix Perez, have not made good on hundreds of thousands of dollars owed to three men for the purchases of a dispensary on East Colfax Avenue and a grow warehouse on Elizabeth Street. The suit also alleges that the Uribes and Perez were suspected of hiding profits and product from their marijuana businesses and selling marijuana out of state.
"Marijuana product is unaccounted for, proceeds from the dispensary are unaccounted for and Plaintiffs assume that the Defendants have stolen product and money from them," the lawsuit states. Another section of the suit alleges: "Plaintiffs believe that the Defendants may be transacting business with people in other states and do not want to reveal what the businesses are really making or who they are conducting business with."...
Other lawsuits also provide a glimpse into the high-dollar business of marijuana in which the raid targets were involved. A lawsuit filed this year in Jefferson County accuses businesses controlled by Luis Uribe and another person named as a target in the search warrant, Carlos Solano, of not paying up on the purchase of a cultivation facility. In a settlement reached in September, Uribe and Solano agreed to pay $90,000 to the plaintiffs.
As the title of this post hints, I think advocates for legalizing and regulating marijuana ought generally be pleased when the feds go after the most shady operators of marijuana facilities. I suspect businesses that follow the law in any industry can and do generally hope that those competitors cutting corners will get in trouble for regulatory failings. And, with respect to state-legalized marijuana industries, even advocate for a regulatory scheme instead of prohibition may still find it useful and beneficial for there to be the ever-present threat of the feds bringing a severe criminal justice hammer down on those businesses getting the most out of line.