Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, July 14, 2016

"10 Smoke Signals Heralding The End Of Federal Medical Marijuana Prohibition"

DownloadThe title of this post is the headline of this new Huffington Post commentary authored by Steph Sherer, who serves as the Executive Director of Americans for Safe Access. Here are excerpts from the start and end of this piece along with the author's accounting of the 10 "smoke signals" showing how the winds of change are blowing with respect to federal marijuana policies:

Putting this article together gave me an opportunity step back and observe the landscape that medical cannabis policy has created.  The work of medical cannabis advocates and brave legislators is truly saving lives. Positive outcomes from medical cannabis policies are driving more states to create and improve programs.  With more than 300 million Americans living in the 42 states, along with D.C., Guam, and Puerto Rico, where some kind of medical cannabis law has been passed, there is a strong platform for politicians to move forward on this issue.

After putting this list together, it is mind-blowing to me that Senator Grassley will not allow the Compassionate Access, Research Expansion, and Respect States (CARERS) Act (S. 683/H.R. 1538) a vote in the Senate Judiciary Committee, especially considering that 78% of people in his own state of Iowa support medical cannabis.  Maybe this is one of the reasons he is struggling with his campaign for re-election.  This important bill would remedy the state-federal conflict over medical marijuana law; allowing (not requiring) states that want to participate in medical cannabis programs to do so without breaking federal law.

Maybe Grassley just needs to see this list too…

1. CARERS has Growing Support from Mainstream Republicans, such as Senator Graham (R-NC) and Congressman Young (R-IA)...

2. National Patient Organizations Are Calling for Change in Federal Law...

3. States Keep Passing Medical Cannabis Laws...

4. States Continue to Improve Medical Cannabis Laws...

5. New CDC Guidelines Instruct Pain Doctors Not to Test for THC...

6. Largest Pharmaceutical Retailer Acknowledges Medical Benefits of Cannabis...

7. Politicians Breaking Political Boundaries for Medical Cannabis...

8. Studies Continue to Show Public Health Benefits in States with Medical Cannabis...

9. Both Presidential Candidates Support Medical Cannabis...

10. Opponents Know they are Losing this Fight

In June, a new bill, the bipartisan Medical Marijuana Research Act of 2016, was introduced.  Surprisingly, this bill was sponsored by several known medical cannabis opponents, including Representative Andy Harris (R-Md.), one of Congress’s most vocal opponent of legal marijuana.  Other sponsors included, Earl Blumenauer (D-OR), Sam Farr (D-CA), and Morgan Griffith (R-VA), and in the Senate; Brian Schatz, (D-HI), Orrin Hatch (R-UT), Chris Coons, (D-DE), and Thom Tillis (R-NC).  While it should be commended that they are making a step towards removing federal barriers to medical cannabis research, this bill does nothing to protect state programs and patients.  It is their way of saying, we are losing this fight, so we must give something in return.

Ending the conflict between state and federal medical cannabis laws is the most important goal for keeping patients safe, and for that reason, it is important to remain focused on passing the CARERS Act, which would protect existing state programs and patients.  While more research is certainly desirable, patients cannot wait for the years or decades it may take for the results of this research to drive further Federal policy changes.

And there you have it!  10 reasons that clearly show the end of Federal Medical Marijuana Prohibition is near, and that also show how out of touch Senator Grassley is on this issue.  ASA and many other advocates have worked hard to make the changes mentioned above possible.  If just a small portion of the 89% of Americans who support medical cannabis let their members of Congress know, then this may be the last year for federal prohibition of medical cannabis.

July 14, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, July 11, 2016

"What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens"

The title of this post is the title of this new paper by Carrie Lynn Rosenbaum now available via SSRN. Here is the abstract:

This paper asserts that state and local marijuana reforms that relax criminal penalties should, but will likely not, benefit Latino/a noncitizens.  Because of the intricate relationship between criminal and immigration enforcement, state and local police engagement in racial profiling will not only fail to be eliminated by state-level marijuana reforms but may be exacerbated.  As a result, in spite of marijuana law reforms intended to lessen overly punitive penalties stemming from minor marijuana conduct, noncitizen Latino/as will continue to be disproportionately criminally policed and deported.

Scholarly literature addressing the intersection of criminal and immigration law has considered ways in which racial profiling in criminal law enforcement infects the immigration removal process.  However, the literature has yet to explore the way in which sub-federal drug law reforms, and specifically, recent marijuana law reforms, will fall short for noncitizen Latino/as because of the way in which racial profiling in criminal law enforcement infects the immigration removal process.

After decades of excessive, punitive, and ineffective policies, particularly in the area of drug law enforcement, states have initiated reforms, including marijuana decriminalization.  At the same time that decriminalization measures are being implemented, in the field of immigration law, resources for apprehension, detention and deportation have skyrocketed, with a focus on “criminal aliens.”  The criminal-immigration removal system has resulted in local and state law enforcement agents playing a critical, and problematic role in the detection, apprehension, and removal of “criminal aliens.”

The plight of noncitizens deported or found inadmissible based on marijuana-related conduct highlights a deeper, systemic problem.  Not only do extremely harsh immigration consequences serve as a double-penalty for potentially minor marijuana offenses, particularly in light of criminal law reforms, but enforcement of remaining marijuana laws will likely fall disproportionately on Latina/o noncitizens.  Over ninety percent of deportations arising out of criminal law enforcement are to Central American and Mexico, yet Mexican and Central American immigrants make up less than half of the United States immigrant population.

While decriminalization of marijuana may be more than a symbolic move away from the failed “tough on crime” policies of the past, it not only fails to take into consideration the impact of marijuana laws on noncitizens but also may exacerbate the racially biased aspects of drug law enforcement on noncitizens, particularly Latinos.  This Article discusses the ways in which criminal-immigration law enforcement has impacted noncitizens, primarily Latino/as, to demonstrate why sub-federal marijuana reforms will fail to alleviate racially disparate outcomes, perpetually leaving Latino/a noncitizens in the shadows.

July 11, 2016 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Wednesday, July 6, 2016

New study suggests medical marijuana is already saving millions in Medicare costs

Medicare-and-uncle-samThis new Boston Globe article, headlined "Medical marijuana changing prescription practices, study finds," reports on fascinating new research seeming to document another financial benefit from marijuana reform. Here are the interesting details:

The arrival of medical marijuana in Massachusetts and other states is changing the way doctors prescribe conventional medications, a study published Wednesday reports.

The study, one of the first to investigate whether medical marijuana laws alter prescribing patterns, analyzed data from 17 states and Washington, D.C. It found that after medical marijuana laws were adopted, doctors wrote fewer prescriptions for Medicare patients diagnosed with anxiety, pain, nausea, depression, and other conditions thought to respond to marijuana treatment.

That translated to about $165 million less spent on prescription drugs in just one year in the Medicare program, which provides health insurance for older adults, according to the study published in the journal Health Affairs. Analysts said the findings are especially significant coming amid the nation’s opioid crisis and campaigns to reduce the prescribing of potentially addictive painkillers.

W. David Bradford, a health economist at the University of Georgia and the study’s senior researcher, said an ongoing review of the government’s Medicaid database, which includes a younger population more likely to use marijuana, suggests an even stronger correlation between prescribing trends and medical marijuana laws. Medicaid insures mostly younger patients who are poor and disabled. “This research says there is evidence that physicians are responding as if marijuana is medicine, and as if there is clinical benefit,” Bradford said.

The researchers analyzed millions of drugs prescribed by physicians from 2010 through 2013 in the Medicare Part D database. They focused their analysis on drugs that treat conditions for which marijuana might be an alternative treatment, including anxiety, depression, glaucoma, nausea, pain, psychosis, seizures, sleep disorders, and a muscle control disorder known as spasticity. They found that for all conditions, except glaucoma and spasticity, fewer prescriptions were written when a medical marijuana law was in effect.

To confirm the link to marijuana laws, and not other factors, the researchers compared results from the states with medical marijuana to states that had not legalized it. They did not see a similar decline in prescribing in states without marijuana laws. As a further test, the researchers selected four drugs prescribed for conditions for which there are no studies suggesting benefit from marijuana treatment. Those drugs included blood-thinners, antibiotics, antivirals to treat the flu, and a drug used in dialysis. They found no decline in prescriptions for these drugs....

Avi Dor, a health economist and professor of health policy and management at George Washington University’s Milken Institute, called the study “impressive and timely,” given concerns about prescription opioid abuse. Opioids are often prescribed for many of the conditions the researchers studied. “We can’t be sure about the causality [in the study], but the evidence is strong in favor of the marijuana laws leading to the substitution away from certain drugs,” said Dor, who was not involved in the research. “We just don’t know if, over time, the effects they find will wash out or become amplified,” Dor said. “Physicians and their patients are only beginning to experiment with the new therapeutic alternative of medical marijuana.”

The Health Affairs study estimated that if medical marijuana had been available in all states in 2013, the Medicare prescription program would have saved about $468 million because of fewer prescriptions for just that year -- an amount equal to one-half of 1 percent of Medicare prescription spending that year. But the researchers acknowledged that savings for Medicare might translate into more costs for patients who pay for medical marijuana out of their own pockets, because insurance doesn’t cover the drug.

Dr. Kevin Hill, an assistant professor of psychiatry at McLean Hospital and Harvard Medical School who studies marijuana, said the Medicare savings are important. But he noted physicians remain reluctant to recommend marijuana to their patients because they feel the evidence supporting its use is insufficient, or they are concerned about legal ramifications if they suggest a drug the federal government classifies as dangerous. “Medical marijuana may reduce prescription costs in some cases, but there is a risk that medical marijuana may be used for conditions that are not supported by evidence,” Hill said.

July 6, 2016 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)

Monday, June 27, 2016

Is Congress now really "moving in the general direction of legalization" of marijuana?

The question in the title of this post is prompted by this notable new Politico article and its full headline: "Congress mellows on pot crackdowns: Following the lead of the states, it's moving in the general direction of legalization, advocates say."  Here is how the article begins:

Don’t break out the bong just yet, but Congress is quietly chipping away at the federal ban on marijuana. It’s not happening with a sweeping national law, but through modest provisions slipped into spending bills in recent weeks.

For example: Bills funding the Veterans Affairs Department have a line that lifts a prohibition on medical marijuana. The Senate Appropriations Committee has adopted provisions barring the federal government from interfering on pot enforcement where medical marijuana is already legal. And there’s movement in both chambers to make sure banks don’t get penalized for handling money from legal pot businesses.

None of these will bring overnight change on the federal level. But each little measure shows that Congress, following the lead of the states, is moving in the general direction of legalization, advocates say. “We can kind of look at this as the end of prohibition, or at least the beginning of the end of prohibition,” said Sen. Jeff Merkley, an Oregon Democrat who backed his state’s 2014 ballot initiative to legalize recreational marijuana and is helping lead efforts to soften federal restrictions.

Attitudes around the country and on Capitol Hill have changed so quickly that even advocates of rolling back pot restrictions have been surprised.  It was only a few years ago that even the most modest reform proposals were rejected in the House and Senate, said Michael Collins, deputy director of the Drug Policy Alliance.  Now?  “We just win all the time,” he said, sounding not unlike a certain presidential candidate.

Most of the winning has taken place during the humdrum, but hugely consequential annual appropriations process, and this year is no different. A series of bipartisan provisions to loosen marijuana laws have been attached to government funding bills and are making their way through the House and Senate.  In particular, lawmakers are making it easier for doctors to prescribe medical marijuana and are nudging banks to provide services to the nascent recreational marijuana industry, a key step toward legitimizing sales of the drug and paving the way for easy access at stores where pot is legal.

Democrats have typically been the strongest backers of reforming marijuana laws, but Republicans are increasingly lending their support as opinion shifts in red states, speeding up momentum in Congress.  “The missing component was the constitutionalists and the libertarian conservatives,” said Rep. Dana Rohrabacher, a conservative Republican from California, who has rallied GOP support to loosen restrictions.

I do not think it is accurate to even suggest that many members of Congress are moving toward full legalization, but I do strongly believe that most members have now come to see that, these days, there is likely more to lose than to gain politically by being a forcefully supporter of blanket prohibition at the federal level. And this reality makes the coming 2016 initiative votes in various states on full legalization so interesting and important. If full legalization wins in most states, I think Congress will see the political writing on the wall. But if it loses in a few states, I suspect the future of major legal reforms in Congress and elsewhere will be a bit slower and less certain.

June 27, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, June 25, 2016

"Democratic Senators Push DEA to Downgrade Marijuana Classification"

The title of this post is the headline of this notable new Wall Street Journal piece.  Here are excerpts:

A group of Democratic lawmakers is renewing pressure on the Drug Enforcement Administration to remove marijuana from its current position on a list of the most dangerous drugs, a category that includes heroin and ecstasy. Marijuana’s classification as a “Schedule I” drug is “a main barrier” to research on its potential health benefits and conflicts with a decision by half of the states to approve medical marijuana laws, eight Democratic senators wrote this week in a letter to the DEA and the Department of Justice, its parent agency.

DEA spokesman Russ Baer said in an interview that the agency is in the “final stages” of its deliberation on the issue, and he said a decision on whether to reschedule marijuana is expected “sometime soon.” Mr. Baer said he did not expect an answer by June 30, however, despite previous guidance from DEA officials that they hoped to make a decision in the first half of the year.

An increasing number of states now allow marijuana to be used for medical purposes, but the drug remains strictly illegal according to U.S. law. The federal government has adopted a practice of not prosecuting those who use marijuana according to their home-state laws. The senators argued that this “dissonance” between state and federal laws has “wide-ranging implications for legitimate marijuana businesses, including access to banking services, the ability to deduct business expenses from taxes, and access for veterans.”

Signers of the letters are Sens. Elizabeth Warren of Massachusetts, Barbara Mikulski of Maryland, Barbara Boxer of California, Ron Wyden and Jeff Merkley of Oregon, Kirsten Gillibrand of New York, Edward J. Markey of Massachusetts, and Cory Booker of New Jersey.

After the Food and Drug Administration determines whether a substance has a medical use, the DEA performs its own analysis and classifies a drug under one of five categories that also take into account their abuse potential. The DEA received a binding assessment from the FDA about whether marijuana should be considered to have a medical use nine to 12 months ago, Mr. Baer said.

That decision, which neither the DEA nor the FDA would discuss, is the controlling factor in whether the DEA will remove marijuana from Schedule I, said Mr. Baer. But regardless of the FDA’s decision, the DEA is required by law to do its own analysis, he said.

The full (and relatively short) letter from the Senators to the DEA is available here

June 25, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Monday, June 20, 2016

Bipartisan Medical Marijuana Research Act of 2016 gets support from most vocal opponents and supporters of reform

Capitolpot-largeAs reported in this WonkBlog posting via the Washington Post, two members of Congress known to marijuana reformers for different reasons are now teaming up to support new federal laws to advance marijuana research.  The piece is headlined "Marijuana’s biggest adversary on Capitol Hill is sponsoring a bill to research … marijuana," and here are excerpts:

Rep. Andy Harris (R-Md.) is Congress's most vocal opponent of legal marijuana, having single-handedly spearheaded a provision blocking legal pot shops in the District of Columbia in 2014. Rep. Earl Blumenauer (D-Ore.), on the other hand, was recently named Congress's "top legal pot advocate" by Rolling Stone.

The two lawmakers couldn't be farther apart on marijuana policy, but they're teaming up this week to introduce a significant overhaul of federal marijuana policy that would make it much easier for scientists to conduct research into the medical uses of marijuana.

As Harris described it in an interview, the bipartisan Medical Marijuana Research Act of 2016 would "cut through the red tape" that currently makes it exceedingly difficult for researchers to obtain and use marijuana in clinical trials. As federal law currently stands, only one facility in Mississippi is allowed to produce marijuana used for research. "Because of this monopoly, research-grade drugs that meet researchers’ specifications often take years to acquire, if they are produced at all," Brookings Institution researchers wrote last year.

Beyond those difficulties, researchers wanting to work with the drug need to have their work approved by the Drug Enforcement Administration, the Food and Drug Administration and, in some cases, the National Institutes on Health. Those hurdles, and the amount of time it takes to jump over all of them, deter many researchers from doing work on marijuana. In one typical case, it took a team of scientists seven years to get full approval to conduct research into using marijuana to treat post-traumatic stress disorder among veterans.

But the bill sponsored by Harris, Blumenauer, Rep. Sam Farr (D-Calif.) and Rep. H. Morgan Griffith (R-Va.) would allow many more growers to produce marijuana for research. It would also remove levels of federal review for marijuana research projects and specify shorter windows for federal approval of the projects.

Crucially, it would also change the criteria by which the federal government allows marijuana research to proceed. "The federal government must grant an application for [approval] unless it's not in the public interest, rather than assuming it's not," Blumenauer said in an interview. "Reversing that presumption is huge."

Marijuana is currently listed under Schedule 1 of the federal Controlled Substances Act, the most stringent category of regulation. This bill would not change the schedule status of marijuana, but it would essentially create a "carve-out" within Schedule 1 for marijuana research, according to Harris. "Marijuana's actually different from other things in Schedule 1, which are all discrete chemicals," he said in an interview. "The plant is a combination of hundreds of compounds, so it needs to be treated separately from the other drugs in Schedule 1."

In a separate action, the DEA is currently considering whether to keep marijuana in Schedule 1, move it to a lower schedule, or de-schedule it entirely. But Harris says that process doesn't affect his thinking on this bill. "I'm not going to wait for the DEA to figure out what's going on," he said.

John Hudak, who studies marijuana policy at the Brookings Institution, calls the bill "a really creative approach by Congressman Blumenauer and his colleagues to effectively reschedule marijuana without having to reschedule it." He added, "It forces the government to make it easier for qualified legitimate researchers to get access to product and conduct that research."

Marijuana advocates used to tussling with Harris over his opposition to legal weed may be surprised to see him coming out forcefully in support of improved research. But as a doctor himself, Harris says researchers tell him that they can't do their jobs on account of federal red tape. "It's a Catch-22 that the research is difficult because of the strict rules, and the rules are strict because of the lack of research," he said. His thinking on the drug hasn't changed, he says: "I think medical marijuana should be much more strictly controlled than it is now." But, he adds, "as a physician I would never want to deny a medicine to a patient that has been shown, with scientific rigor, to help them."

June 20, 2016 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)

Monday, June 6, 2016

"Tax Benefits of Government-Owned Marijuana Stores"

The title of this post is the title of this notable new article authored by Benjamin Leff and now available via SSRN. Here is the abstract:

Over a year ago (March 7, 2015), a little store called the Cannabis Corner opened up in the small town of North Bonneville, Washington, about an hour by car from Portland, Oregon.  The Cannabis Corner is the first marijuana store to be operated by a “public development authority,” an independent entity created by a state or local government.  Public development authorities are generally exempt from federal income taxes under section 115 of the Internal Revenue Code.  For a marijuana business, this exemption is especially valuable because section 280E of the Code currently prevents marijuana businesses from deducting many of the ordinary expenses other businesses regularly deduct, resulting in extremely high federal income taxes.

This Article is the first to address whether independent governmental affiliates that sell marijuana are exempt from federal income tax under section 115 of the Internal Revenue Code.  It argues that such entities should easily pass the IRS’s current interpretation of the three requirements for tax-exemption under section 115: (i) that exempt income be derived from “the exercise of any essential governmental function;” (ii) that such income “accru[e] to a State or any political subdivision thereof;” and (iii) that the income “not serve private interests[.]” In addition, this Article argues that the fact that selling marijuana is illegal under federal law is not a bar to exemption under section 115 of the Code the way it is under section 501(c)(3).

Tax exemption for public development authorities that sell marijuana is important because of the non-tax benefits of a marijuana market dominated by government sellers.  Some of these benefits exist when governments are participants in a marijuana market that is open to private sellers as well, such as is the case in North Bonneville, Washington.  This Article also explores the benefits that might accrue if a state chose to create a regulatory regime for legalizing marijuana in which all marijuana selling took place in government-owned stores. Many states have experimented for years with state control of liquor sales, but there are reasons to believe that marijuana may be significantly more suited to a state-controlled market than alcohol, at least for a transitional period.  The question of whether an independent governmental affiliate is exempt from federal income tax, including section 280E, is especially important to governments contemplating the contours of their legal marijuana markets.

June 6, 2016 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)

Monday, May 30, 2016

In tradition of George Washington and Thomas Jefferson, Libertarians nominate for Prez a cannabis businessman in Gary Johnson

926d67549938b727ed1419c8ad3fc0e3_f262For a host of reasons, I am pleased to see the Libertarian Party getting more than its usual attention this election cycle; and, as reported here, this past weekend the Libertarian Party selection Gary Johnson and William Weld to be their Prez and VP candidated for 2016.   Supporters of marijuana reform likely know the name Gary Johnson, and this recent AP article headlined "This marijuana-loving Libertarian staking claim as Trump alternative," highlights some of the reasons why. Here are excerpts:

Johnson is [going to be] relying on an intensifying schedule of media appearances to boost his name recognition in an effort to reach the necessary 15 percent threshold to qualify for the presidential debates this fall.  “We cannot go into a battleground state and compete,” said Johnson’s senior strategist Ron Nielson, citing the high cost of running a campaign in states like Florida or Ohio.  The Johnson campaign will instead focus its resources on cheaper states where libertarians have done well in the past, places like Alaska, maybe New Hampshire, he says.

Yet Trump’s Republican critics don’t necessarily need to find a candidate who can win. Many are seeking a legitimate protest candidate where they could focus their anti-Trump energy. Should that candidate earn even a few percentage points in key states this fall, it could hurt Trump’s chances. “Gary will be an outlet for millions of Americans who just can’t fathom the idea of voting for Hillary Clinton or Donald Trump,” said Ed Crane, who co-founded the libertarian-leaning Cato Institute and now runs a super PAC he says may support Johnson “down the road.”...

Johnson represents a set of policies that do not line up perfectly with Republicans or Libertarians. He embraces fiscal conservatism, but not to the lengths that some hardline anti-government libertarians would like. He considers himself a liberal on social issues, supporting same-sex marriage and abortion rights. And he supports a non-interventionalist foreign policy that focuses on America’s challenges at home.

Many know him best for his repeated calls to legalize drugs. Johnson largely focuses his energy on marijuana, but also suggests that concern over narcotics such as heroin are exaggerated compared to the impact of alcohol or even smoking cigarettes. He is a regular marijuana user, noting that he most recently took an edible form of the drug three weeks ago.

“I’m one of the 100 million Americans that do this. If that disqualifies me from being president, so be it,” he told The Associated Press, adding that he recently purchased the drug legally in Colorado but illegally transported it back to his home in New Mexico. “Sure, I’m in the tens of thousands of those that are guilty of that phenomenon,” he says.

He promises not consume marijuana if elected president, however. “I think the American people deserve to know that there will be a steady hand,” he said. “And I would hope that my history regarding this stuff would bear out the fact that I’m a pretty disciplined cat.”

Left out of this story is the fact that Johnson was not so long ago, as reported here, the CEO of Cannabis Sativa Inc.   And, as the title of this post is meant to suggest, that history creates a notable connection between Prez Candidate Johnson and our Founders.  Specifically, although there is much debate over whether and how the Framers of our Constitution used cannabis, I am pretty sure it is widely acknowledged that both George Washington and Thomas Jefferson grew hemp for sale on their Virginia farms.  Thus, like Johnson, they were both involved in cannabis commerce.

May 30, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, May 28, 2016

Calling out Leg/Reg, Ad Law scholars to start looking seriously at pros/cons of structures of state (and eventually federal) medical marijuana reforms

Download (19)As explained in this prior post, this past week the Ohio General Assembly passed a massive medical marijuana bill that creates a remarkable regulatory structure for the development and application of rules and regulations for medical marijuana in the Buckeye State.  Specifically,  the 126-page(!) Ohio medical marijuana bill (available here; detailed summary/analysis here), creates three enduring regulatory bodies in charge of various parts the state's marijuana programming: the Department of Commerce, the board of pharmacy, and the medical board.

In addition, the bill also creates for, a five-year period, a multi-member "medical marijuana advisory committee" which "may develop and submit to the department of commerce, state board of pharmacy, and the state medical board any recommendations related to the medical marijuana control program."  In my prior post, I suggested that Ohio-based lobbyists would surely love this regulatory structure; this post is my effort to encourage fellow LawProfs who follow closely the work of legislators and adminstrative regulators to love looking closely not only this Ohio legislation, but also the broader set of fascinating "leg/reg" and administrative law issues that are swiftly emerging at the local, state and federal level concerning medical marijuana reform.

For a range of understandable reasons, the traditional press and most marijuana/drug policy advocates spend a lot more time talking and thinking about recreational marijuana reforms than about (much more prevalent) medical marijuana reforms.  Serious followers of the work of state legislatures and thoughtful legal scholars should realize, however, that medical marijuana reform efforts at the local, state and federal level is where the most significant (and diverse) action is now to be found and observed.   Only five jurisdictions have enacted recreational marijuana reforms and all of those were the result of voter initiatives.  But more than two dozen states have now enacted major medical marijuana reforms, and another dozen-and-half  states have enacted limited-CBD-oil type reforms.  

Moreover, and perhaps even more importantly, state legislatures have played a significant role in all of the most recent medical marijuana reform efforts in a number of big diverse states ranging from California to Louisiana to New York to Illinois to Pennsylvania to Ohio.   In addition, even at the federal level where blanket prohibition is the law of the land, we have seen lots of notable bills proposed (and some provisions passed) that directly impacts how federal agencies and agents are to engage with state medical marijuana reforms.  And, of course, there is ever-growing discussions of whether, when and how marijuana's placement on Schedule 1 of the Controlled Substantive Act might get changed.

Snip20151020_1In addition to seeing a whole lots of legislative and regulatory action at all levels, there is an extraordinary diversity in regulatory structures being put in place and starting to operate in various ways in various states.  The Ohio legislation, for good of for bad, highlights the problematic reality that still nobody is yet sure at all what could or should be the best structure for developing sound on-going medical marijuana rules and regulations: is sound reform really about "medical/patient" issues for agencies like pharmacy/medical boards; is it really about "business/consumer" issues for agencies like a Department of Commerce or Taxation; or is medical marijuana its own special, strange, unique space that call for its own special, strange, unique regulatory body.

For the record, especially right now when blanket federal marijuana prohibition is still the basic law of the land, I consider medical marijuana reform and regulation to occupy its own special, strange, unique space calling for its own special, strange, unique regulatory body.  For that reason and others, I am encouraged that the new Ohio law has created a diverse, multi-member "medical marijuana advisory committee," and I am hopeful that this body ends up staffed with a motivated and informed group of quasi-policy-makers who will take a leadership role in the months and years ahead as Ohio moves forward with its marijuana reform efforts.  

That all said, and as this post is meant to highlight, my perspectives on these critical legislative/regulatory issues would be greatly informed and enhanced by having legal scholars who study these issues actively providing their informed perspective on the good, the bad and the ugly of sound regulatory reforms.  I know these folks know a lot about topics relating to regulatory (in)efficiency and agency capture and all sort of other important topics, and I want to start better understanding what I know that I now do not know on these next forteirs for marijuana reform.

Long story short:  I am putting you on notice Chris Walker, and I am eager to see some comments!

Some prior related posts about Ohio's recent legislative and regulatory medical marijuana activity:

May 28, 2016 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 24, 2016

GOP Congressman Dana Rohrabacher admits currently using topical marijuana to treat his arthritis pain

RohrabacherThe Huffington Post has this notable new article headlined "GOP Congressman Says He Uses Medical Marijuana To Ease Arthritis Pain: The plant helps relieve pain so severe it was waking him up at night." Here are the details:

Rep. Dana Rohrabacher (R-Calif.), a leading voice for the reform of marijuana laws in the United States, became the first sitting member of Congress in recent history to admit to medical marijuana use.

Rohrabacher, speaking to a group of cannabis activists on Tuesday on Capital Hill, said he has been an avid surfer for about three decades but had not been able to enjoy the sport for about a year and a half due to arthritis pain he’s developed in his shoulder. The pain became so severe that it has disrupted his sleep, the lawmaker said. That is, until he tried medical marijuana.

“I went to one of these hempfests or something like that they had in San Bernardino,” Rohrabacher said, as first reported by Russ Belville at Cannabis Radio.

At the hemp festival, he met a vendor who introduced him to a cannabis-infused topical rub. “This guy was showing me the medical things and all that, and he says, ‘You should try this.’ And it’s a candle and you light the candle, and the wax is in there and it melts down, and then you rub it on whatever you’ve got problems with,” the Republican congressman said.

He finally tried the product a couple of weeks ago, and that was “the first time in a year and a half that I had a decent night’s sleep because the arthritis pain is gone.” The attendees cheered his comments.

Rohrabacher, a vocal supporter for reform of the nation’s marijuana laws, is one of the main sponsors of a measure that blocked the Department of Justice from using funds to target and prosecute medical marijuana patients or businesses who are operating legal in their state. The amendment has been reauthorized for the past two fiscal years.

“Now don’t tell anybody I broke the law, they’ll bust down my door and take whatever’s inside and use it as evidence against me, whatever it is,” Rohrabacher said. “The bottom line is, there’s definitely cannabis in there and it makes sure that I can sleep now.”

This was the first time Rohrabacher has spoken publicly about using medical cannabis, his press secretary Ken Grubbs told The Huffington Post. It was also the first time in recent history that a sitting congressman admitted to using medical marijuana, said Marijuana Majority founder Tom Angell.

“Putting a face on the people who use marijuana will help immensely in the battle to end criminalization and other forms of harmful discrimination,” Angell added. “It’s now going to be much harder for members of Congress, particularly those in the GOP caucus, to vote against medical marijuana, since they now know that one of their friends and colleagues is directly benefiting from it.”

May 24, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Friday, May 20, 2016

John Hudak pens terrific "memo to Hillary Clinton and Donald Trump on marijuana policy"

Regular readers are likely used to seeing me in this space praise the work being done by Brookings in general, and John Hudak in particular, in the arena of responsible and thoughtful discussion of marijuana law, policy and reform.   This latest Brookings piece by Hudak, styled "A memo to Hillary Clinton and Donald Trump on marijuana policy," further demostrates why my praise is justified. I recommend the lengthy piece is full, and here are excerpts from how it starts and ends and the headings in between: 

Eight months from today one of you will be inaugurated the 45th President of the United States. There is much to think about between now and then, but one issue with a penchant for falling between the cracks is marijuana policy.  Marijuana policy is no longer just a punchline, reserved for the attention of activists. Marijuana policy will be a serious part of the next administration’s domestic policy, and it is critical that you create a strategy accordingly.

Both of you have suggested you are open to reforms or, at a minimum, to let states operate as they wish. However, a laissez-faire approach to cannabis is a dangerous stance that creates a bevy of policy problems at the federal, state and local levels. There is tremendous complexity involved in creating a uniform and consistent policy strategy.  Marijuana will impact almost every corner of your administration — some obvious, some less so. To get it right — that is to make sure that your administration advances your policy goals — there are seven key steps to take.

1. When vetting possible appointees, ask them about cannabis....

2. Talk to Congress about marijuana....

3. Talk to states that passed marijuana reform....

4. Talk to cannabis businesses, patients, consumers, and activists....

5. Talk to marijuana reform opponents....

6. Talk to scientists studying (or trying to study) cannabis....

7. Think about your marijuana legacy....

The nation is changing its views on cannabis, and reform is not a flash in the pan, but a certainty in the future of American public policy.  Your administration has the opportunity to initiate a sensible, safe, effective, and robust reform that reflects the policy changes in the states and a federal government ready to facilitate a working system.  You can help mold the future of this policy, or you can be a bystander to history, remembered more for being a roadblock than a transformational policy champion.  Ten years ago it would have been toxic to engage marijuana policy in this way, but as America changes its mind on cannabis, it may be even more toxic to stand by and do nothing about it.

May 20, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, May 19, 2016

"US House Votes to Give Medical Marijuana to Veterans"

Untitled-2-2The title of this post is the headline of this notable report authored by Tom Angell explaining a notable vote today in Congress. Here are the notable details: 

The U.S. House took action to increase military veterans’ access to medical marijuana on Thursday.

By a vote of 233-189, representatives approved an amendment preventing the Department of Veterans Affairs (V.A.) from spending money to enforce a current policy that prohibits its government doctors from filling out medical marijuana recommendation forms in states where the drug is legal. The language is now attached to a bill funding the V.A. and military construction efforts through next year.

The U.S. Senate is expected to vote on its version of the legislation later on Thursday. Medical cannabis protections for veterans were added to that bill last month in bipartisan vote of 20-10 in the Senate Appropriations Committee. It is not expected that any senators will offer floor amendments to strike the marijuana provision before passage.

“One of the great concerns we have is how the two million young Americans who were sent to Iraq and Afghanistan reintegrate back into society,” Rep. Earl Blumenauer (D-OR), the House amendment’s sponsor, said in a floor debate early Thursday morning. “What I hear from veterans that I talk to is that an overwhelming number of them say that medical marijuana has helped them deal with PTSD, pain and other conditions, particularly as an alternative to opioids.”

Under current V.A. policy, military veterans have to go to separate private doctors to get medical marijuana recommendations, which can be costly and time-consuming. “Those patients who want to pursue medical marijuana have to go ahead and hire a physician out of their own pocket,” said Blumenauer. “Not dealing with the medical professional of their choice, their V.A. doctor, who knows them the best.”

But there was some reluctant disagreement on the House floor. “I understand that the country is evolving on this issue as many states, including my own, have moved forward on medical marijuana,” said Rep. Charles Dent (R-PA), whose home state just became the 24th in the U.S. with a comprehensive medical marijuana law. “As a member of this House, I’m a bit uncomfortable, however, in trying to dictate policy on marijuana without guidance from Food and Drug Administration, National Institutes of Health and other medical professionals.”

But Blumenauer took exception to that characterization. “This amendment does not dictate treatment options. It’s not interfering. It’s not superimposing anybody’s judgement about the merits of marijuana. It simply enables V.A. doctors and patients to interact with state-legal marijuana systems,” he said. “We should not be limiting the treatment options available to our veterans.”

Last year the Senate approved the Fiscal Year 2016 version of the V.A. spending bill, with similar medical cannabis protections for veterans attached, but the House narrowly defeated a move to add the amendment to its version of the legislation by a vote of 213-210. As a result, the provision was not included in the final omnibus appropriations package signed into law by President Obama in December.

Since then, momentum on medical cannabis and broader marijuana law reform issues has continued to increase. Last month, for example, Pennsylvania became the 24th state in the U.S with a comprehensive medical marijuana program. This month, both chambers of the Louisiana State Legislature and the Ohio House of Representatives approved medical cannabis bills.

The U.S. House measure also would have passed last year if two medical marijuana supporters hadn’t voted against it. Rep. John Garamendi (D-CA), admitted at the time that he misread the amendment and voted the wrong way. Another supporter, Rep. Morgan Griffith (R-VA) said he voted no because the measure didn’t go far enough in his view. With those two votes flipped, the result would have been 212-211.

The V.A. policy disallowing its doctors from recommending medical marijuana in states where it is legal actually expired on January 31 but, under the department’s procedures, the ban technically remains in effect until a new policy is enacted.

Advocates expect a new policy soon, but aren’t sure what it will say. In February 2015, a top V.A. official testified before a House committee that the department is undertaking “active discussions” about how to address the growing number of veterans who are seeking cannabis treatments.

Separately, a trio of Democratic senators submitted an additional amendment this week intended to spur medical cannabis research by the V.A. The V.A., in partnership with the National Center for Posttraumatic Stress Disorder may “conduct clinical research on the potential benefits of therapeutic use of the cannabis plant by veterans,” reads the amendment offered by Sens. Kirsten Gillibrand (NY), Cory Booker (NJ) and Barbara Boxer (CA).

The senators want the government to look into the use of cannabis “as a treatment to achieve and maintain abstinence from opioids and heroin.” The proposal directs the secretary of veterans affairs to submit a report on efforts to expand such research within 180 days. It is not yet clear if the amendment will receive a vote on the Senate floor.

Last week medical marijuana opponents succeeded in getting the House Rules Committee to kill two amendments aimed at increasing government research on medical marijuana’s possible impact on opioid abuse.

May 19, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, May 13, 2016

New podcast from the National Constitution Center on "Marijuana and the Constitution"

Cover170x170Earlier this week, I had the great honor and pleasure of talking with Jeffrey Rosen and Randy Barnett as part of the National Constitution Center's "We the People" series concerning various constitutional issues related to the regulation and legalization of marijuana. The podcast is available at this link, and here is how it is introduced via that webpage:

Marijuana was first outlawed nationally by the Marijuana Tax Act in 1937. Since 1970, it has been classified an illegal Schedule 1 drug under the Controlled Substances Act, listed alongside LSD, heroin, and other narcotics.

But in 1996, California became the first state to allow the use of marijuana for medical purposes, starting a cascade of changes at the state level. As of May 2016, 24 states and D.C. have legalized medical marijuana; four states — Colorado, Washington, Oregon, Alaska—and D.C. have also legalized recreational marijuana. In November 2016, more states, including Nevada and Maine, are slated to vote on the issue.

Join[] We the People to explore the constitutional issues at stake....

May 13, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, May 2, 2016

Terrific series of commentary on marijuana policy, politics and practicalities

Last week, the Washington Post's In Theory section focused on federal drug scheduling laws, with a particular focus on marijuana.  The terrific collection of commentaries from a diverse array of experts was set up via this into piece headlined "Is it time to revise our federal drug laws?", which started this way:

In a letter this month to inquiring lawmakers, the Drug Enforcement Administration quietly announced that it will decide whether to change the federal status of marijuana “in the first half of 2016.”  The move excited legalization advocates and reminded everyone else of how convoluted our drug regulatory process can be.

Under the Controlled Substances Act, enacted in 1970 while facing backlash against the recreational drug use of the 1960s, the federal government categorizes drugs based on their medical value and potential for abuse.  If substances have no potential for abuse, they aren’t controlled at all.  If they do, they’re classified in one of five schedules of decreasing severity.

Drugs in Schedule I are deemed as having “no current accepted medical use” and a high potential for abuse — the category where marijuana resides, alongside heroin, LSD, ecstasy and others. These drugs are regulated with extreme stringency in terms of access, research and supply.  Schedule II drugs — such as morphine, fentanyl and methadone — are seen as having a high potential for abuse but some medical value.  Schedules III-V contain drugs of medical value and decreasing potential for abuse. Each schedule is regulated with correspondingly less strictness.

Critics of the system (or at least of certain drugs’ positions on the schedule) point out that this creates a circular problem.  Drugs are placed in Schedule I under the presumption that they have no accepted medical use. Yet the strict regulations of that schedule make it difficult to conduct the scientific and medical research that could uncover such drugs’ medical potential, making it all but impossible to move them to a different schedule.  Cannabis, for instance, has shown potential therapeutic value for ailments including chronic pain and epilepsy, but only one place in the United States (a University of Mississippi farm) is allowed to grow marijuana under federal regulations.  A number of Schedule I psychedelic compounds have similarly shown promise in treating mental health conditions such as depression and post-traumatic stress disorder, but it’s difficult to set up the sort of large-scale studies needed to meet the government’s standards for use.

In addition, many schedule placements seem arbitrary at best and deliberately skewed at worst. Alcohol and tobacco aren’t in any schedule at all, despite their proven susceptibility for abuse.  Schedule I serves as a catchall for drugs of barely comparable levels of danger and potential benefit, many of which have been stigmatized through racist or classist propaganda.  Meanwhile, other mostly recreational drugs like cocaine are in placed in more lax schedules on the basis of quite limited medical use.

Here are the commentaries that followed in the series, all of which are valuable reads:

May 2, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, April 28, 2016

"Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle"

The title of this post is the title of this new paper authored by Sam Kamin now available via SSRN. Here is the abstract:

This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws.  I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion.  I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes.

I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States.  I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine.  Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.

April 28, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, April 15, 2016

"Marijuana Could Soon Be Rescheduled As A Less Dangerous Drug By The DEA, So Why Aren’t Cannabis Proponents Excited?"

DEA_rescheduling2The title of this post is the headline of this astute new International Business Times article, and here are exerpts:

After decades of intransigence on the issue, the Drug Enforcement Administration may finally recommend removing marijuana from the list of the country’s most dangerous drugs. That list was created as part of the Controlled Substances Act (CSA) of 1970, which consolidated all federal drug laws into a single comprehensive measure and defined marijuana as a Schedule I controlled substance, alongside heroin, LSD and other drugs that the government says have no medical value and the highest potential for abuse. That meant marijuana was saddled with the strictest possible restrictions and penalties.

Ever since then, marijuana activists have been fighting to remove cannabis from that category. In 1972, the National Organization for the Reform of Marijuana Laws (NORML) petitioned the DEA to instead place marijuana in Schedule II of the CSA, alongside cocaine, meth and other drugs considered dangerous but with medical potential. Twenty-two years and multiple courtroom battles later, the DEA had a final decision: Marijuana would remain a Schedule I substance.

The DEA has rejected two other marijuana rescheduling petitions since then, but now there’s a glimmer of hope among activists that change could finally be in the works. As first reported last week by the Huffington Post, in a recent letter to a group of Democratic senators, the DEA referenced a 2011 petition to reschedule cannabis to Schedule II, noting, “DEA understands the widespread interest in the prompt resolution to these petitions and hopes to release its determination in the first half of 2016.” While there’s a good chance this determination will be no different than in the past, the country’s rapidly shifting cannabis landscape — with 23 states plus Washington, D.C., having legalized medical marijuana (and Pennsylvania poised to do so) — makes some people think the DEA could be ready to concede that cannabis has medicinal value.

But instead of being cause for celebration, the news has met with largely subdued reaction from marijuana activists and business owners. “Symbolically, one could say that would be a victory because you’d have for the first time the federal government acknowledging that cannabis does in fact have some therapeutic utility,” said NORML deputy director Paul Armentano. “But that by and large would be the extent of it. By moving marijuana from Schedule I to II, the federal government would still be putting forward the intellectual dishonesty that cannabis has a high potential for abuse and needs to be regulated accordingly.”

Such responses suggest it’s not just the DEA that’s shifting its position on federal marijuana laws. Marijuana proponents’ stance on federal cannabis rules are evolving, too. As the movement racks up one legal victory after another with little federal acknowledgement, there’s a growing belief that the cannabis crusade doesn’t have to settle for marijuana's move to Schedule II, for which it has long lobbied. Some even worry that such a rescheduling could in fact limit or derail a thriving industry.

A handful of drugs have been rescheduled like this before. Marinol, a synthetic version of marijuana’s psychoactive components, was moved from Schedule I to Schedule II, and then to Schedule III in the 1980s and '90s. But rescheduling is rare. According to John Hudak, deputy director of the Brookings Institution’s Center for Effective Public Management, the DEA has rescheduled substances 39 times since the CSA was ratified 46 years ago, and only five of those instances involved moving a drug from Schedule I to II. Many drug policy experts aren’t optimistic that marijuana will soon be the sixth instance of this happening. After all, the DEA bases such decisions on existing marijuana research — research that has long been severely limited thanks in part to restrictions related to marijuana’s Schedule I status. Even if the DEA recommends rescheduling marijuana in the next few months, the change wouldn’t happen overnight; it would instead trigger a lengthy rulemaking process. “Even if the DEA comes out in July and says, ‘We are moving from I to II,’ it would still take about a year for that to happen,” said Hudak.

But if rescheduling does occur, some marijuana activists say there would be major repercussions. By acknowledging marijuana has medical use and placing it in the same category not just as cocaine but also Vicodin and Ritalin, the government would be signaling that times have changed. “This stands to be a legacy-defining move for Obama if his administration makes the right decision here,” said Tom Angell, founder of the cannabis advocacy group Marijuana Majority. “It would send a strong message to states that do not yet have medical marijuana laws on the books and a strong message to governments around the world that the U.S. government is now on board [with marijuana policy reform].”

The move wouldn’t just be symbolic. Moving marijuana to Schedule II would remove some of the logistical hurdles and academic taboos limiting cannabis research. It would also eliminate several of the bureaucratic hassles plaguing marijuana markets around the country because of the drug’s Schedule I status, such as confusion over whether publications with marijuana ads can be sent through the mail.

But as many marijuana supporters point out, shifting cannabis to Schedule II would not solve the biggest problems facing the nascent marijuana industry. Many unique barriers for marijuana research would still remain, such as the fact that all cannabis for such studies has to be obtained, via a lengthy and complicated approval process, from a single marijuana grow at the University of Mississippi that’s administered by the National Institute on Drug Abuse (NIDA). “The big issue is Ole Miss’ marijuana monopoly, and this wouldn’t fix that at all,” said drug-policy expert Mark Kleiman, a professor of public policy at the New York University Marron Institute of Urban Management.

Then there’s the fact that the biggest headaches afflicting marijuana businesses, such as a lack of banking services and sky-high tax rates thanks to IRS section 280E, which prohibits drug dealers from deducting the costs of selling illicit substances, are due to laws that cover drugs in both Schedules I and II of the CSA. “Moving it to Schedule II really doesn’t accomplish a lot, and frankly it is not scientifically supportable,” said Taylor West, deputy director of the National Cannabis Industry Association. “From a business perspective, it is unclear [if] it would have any impact on the banking situation, and it is specifically clear it would not have any impact on the 280E situation.”

Some marijuana advocates go further, worrying moving marijuana to Schedule II could actually make things worse. Could rescheduling open the door to Big Pharma moving in and taking over the industry? Or could it force all marijuana to be sold by prescription in pharmacies, doing away with the dispensary and recreational marijuana shop markets spreading across the country? “I think a risk that this creates is that it enables DEA to become more directly involved in the control of the current medical cannabis industry,” said Eric Sterling, executive director of the Criminal Justice Policy Foundation. “And that many of the features of the current medical cannabis industry that the public appreciates and values could be lost or destroyed. The DEA would be able to write regulations of the production and processing and distribution of medical cannabis, and they could be quite onerous.”

Others believe such fears are unfounded. “I think if Big Pharma really wanted marijuana to be a huge part of its product line, you would have seen it push the government long ago to consider rescheduling,” said Hudak at the Brookings Institution. Hudak also doesn’t expect to see the federal government dismantling the current marijuana industry: “The state systems are so large, economically and in terms of the people who are served, and they have become entrenched. And frankly, it would be a tremendous enforcement action by the U.S. government to shut them all down, and it would likely be beyond the enforcement resources of the U.S. government right now.”

April 15, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

Thursday, April 7, 2016

"3 Reasons to Doubt the DEA Will Agree to Reclassify Marijuana This Year"

The title of this post is the headline of this valuable new piece by Jacob Sullum at Reason which provides some needed context (and justified pessimism) in light of some press headlines suggesting DEA may be on the verge of reclassifying marijuana.   Here is how the piece starts and ends and its main insights in between (with links from the original):

In a memo it sent to members of Congress on Monday, the Drug Enforcement Administration (DEA) says it hopes to announce by the end of June whether it has decided that marijuana no longer belongs in Schedule I of the Controlled Substances Act (CSA), the law's most restrictive category. The memo, first noted yesterday by Washington Post drug policy blogger Christopher Ingraham, has generated headlines such as "The DEA Will Soon Decide Whether it Will Reschedule Marijuana" and "DEA May Downgrade Marijuana From Schedule 1 Drug." Here are three reasons I think those headlines are misleading:

1. The DEA has a history of foot dragging in response to rescheduling petitions. This is the fourth time the DEA has responded to a petition asking it to reclassify marijuana.  It rejected the first three petitions from six to 16 years after they were filed.  The fourth petition, filed in 2009 by New Mexico medical marijuana activist Bryan Krumm, and the fifth petition, filed in 2011 by Christine Gregoire, then the governor of Washington, and Lincoln Chafee, then the governor of Rhode Island, are still pending....

2. Agreeing to reschedule marijuana would require a major change in how the DEA interprets the CSA. Schedule I is supposedly reserved for drugs with a high abuse potential that have "no currently accepted medical use" and cannot be used safely, even under a doctor's supervision. It is doubtful that marijuana meets any of those criteria, let alone all three. But the DEA has always insisted that marijuana cannot be moved until its medical usefulness has been confirmed by the kind of expensive, large-scale clinical studies that the Food and Drug Administration demands before approving a new medicine. While such studies have been conducted with marijuana's main active ingredient (which is how Marinol, a capsule containing synthetic THC, was approved by the FDA in 1985), they have not been conducted with the whole plant....

3. The Obama administration says marijuana will be reclassified only if Congress decides to do so. "What is and isn't a Schedule I narcotic is a job for Congress," President Obama told CNN's Jake Tapper in 2014. "It's not something by ourselves that we start changing." Last January, White House Press Secretary Josh Earnest reiterated that Obama had no interest in administratively rescheduling marijuana:  "There are some in the Democratic Party who have urged the president to take this kind of action.  The president's response was, 'If you feel so strongly about it, and you believe there is so much public support for what it is that you're advocating, then why don't you pass legislation about it, and we'll see what happens.'"

Eric Holder, Obama's attorney general until last year — and therefore the official directly charged with deciding how controlled substances should be classified, a task that he, like his predecessors, delegated to the DEA — took the same line. Even when Holder said, 10 months after leaving the Justice Department, that marijuana "ought to be rescheduled," he added that "Congress needs to do that."

Although Gary Johnson is optimistic that the administration will change course this year, I see no reason to think the DEA's answer to the two most recent rescheduling petitions will be any different from its answer to the first three.

April 7, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, April 4, 2016

Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms

This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.)  Here are the basic details on what is prompting this hearing:

Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”

In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.

But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.

What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.

April 4, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, March 30, 2016

Examining the modern intersection of the drug war and deportations (with a special focus on marijuana)

This week's presentation in my marijuana reform seminar is focused on immigration law and the "war on drugs."  My student will be presenting, I believe, some original empirical research; as background reading he suggested this 2014 Huffington Post piece headlined "The Drug War = Mass Deportation: 250,000 Deported for Drug Offenses in Last 6 Years."  Here is how this piece gets started (with links from the original):

The drug war has increasingly become a war against migrant communities. It fuels racial profiling, border militarization, violence against immigrants, intrusive government surveillance and, especially, widespread detentions and deportations.

Media and politicians have tried to convince us that everyone who gets deported is a violent criminal, a terrorist or a drug kingpin.  But a newly released, first-of-its-kind report shatters that notion, showing instead that the majority (some two-thirds) of those deported last year were guilty of minor, nonviolent offenses — including thousands deported for nothing more than possessing small quantities of drugs, typically marijuana.

The report, an analysis of federal immigration data conducted by the Transactional Records Access Clearinghouse at Syracuse University, details how roughly 40,000 people have been deported for drug law violations every year since 2008. That means that nearly 250,000 — one-quarter of a million — people were deported for nonviolent drug offenses in just the past six years.  A nonviolent drug offense was the cause of deportation for more than one in ten (11 percent of) people deported in 2013 for any reason — and nearly one in five (19 percent) of those who were deported because of a criminal conviction.

Much as the drug war drives mass incarceration, it also appears to be a major driver of mass deportation.  Indeed, the report reveals that simple marijuana possession was the fourth most common cause of deportation for any crime, and the most common cause of deportation for crimes involving drugs.  On average, more than 6,600 people were deported in each of the last two years just for personal marijuana possession, and overall, nearly 20,000 people were deported last year for simple possession of any drug or drug paraphernalia.

By contrast, relatively few of those deported were drug traffickers, let alone violent ones. “Convictions for drug trafficking accounted for only one percent of deportees recorded as convicted of a crime,” the report’s authors note, “while marijuana possession was more than three times that level.”

March 30, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)

Libertarian Prez candidate Gary Johnson predicting Prez Obama will deschedule marijuana

This new Washington Times article, headlined "Gary Johnson predicts Obama will reclassify marijuana on way out of office," reports on some interesting comments by one candidate aspiring to be in the Oval Office about what its current occupant will do before he leaves. Here are the details:nbsp;

Former New Mexico Gov. and 2016 Libertarian White House hopeful Gary Johnson says he thinks President Obama is going to remove marijuana from the government’s “Schedule I” list of narcotics considered particularly harmful and addictive on his way out of office.

“It’s going to be just like alcohol,” Mr. Johnson told The Washington Times Tuesday. “I’m going to predict that Obama, when he leaves office, is going to deschedule marijuana as a Class I narcotic. I wish he would have done that to this point, but I think he’s going to do that going out the door. That’s a positive.”...

Democratic presidential front-runner Hillary Clinton, among others, has suggested reclassifying the drug under Schedule or Class II. Those drugs include cocaine, but also certain painkillers like oxycodone that are available with a medical prescription.

Mr. Johnson’s campaign followed up by saying that the former governor would prefer that the president remove marijuana from the controlled substances list entirely, allowing states to legalize and regulate as they and their voters choose. But the campaign said most discussion and a more likely near-term step has centered around reclassifying it to Schedule II, which would remove a barrier to prescribed medical uses, though they said that either move would be a step in the right direction.

Mr. Obama has said that Congress can move on such a reclassification. “What is and isn’t a Schedule I narcotic is a job for Congress,” Mr. Obama said in a 2014 interview with CNN. “It’s not something by ourselves that we start changing … no, there are laws undergirding those determinations.”

Tom Angell, chairman of the advocacy group Marijuana Majority, said the attorney general and the secretary of Health and Human Services can move to get rescheduling done without further legislation under the Controlled Substances Act. “It’s tough to predict what the president will do on this issue before he leaves office, but if he’s willing to uphold his pledge to set policy based on science, and he listens to the majority of Americans who support marijuana reform, he will exercise his administrative authority for rescheduling,” Mr. Angell said.

Mr. Johnson pointed out that there are still some “dry counties” in the country with respect to alcohol and predicted marijuana would eventually be in that same category. “I think every municipality has to realize that all the planes to Denver every single weekend are filled up, and that they’re missing out, and Colorado is absolutely vibrant,” he said. “Is it due to marijuana? I think it’s a contributing factor.”

March 30, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)