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.
Monday, April 25, 2016
This morning's Columbus Dispatch has this helpful article headlined "Efforts to legalize marijuana in Ohio differ in who can grow, who can use," which provides a useful primer on the state of marijuana reform efforts in my home state. Here are excerpts:
Ohio appears likely to become the 25th state to approve medical marijuana, either through a new state law or a voted constitutional amendment. State lawmakers and two citizen advocacy groups are working simultaneously on proposals to bring marijuana as medicine to Ohioans with qualifying medical conditions.
But how the legislature and advocates approach the subject is very different, and the two pro-marijuana groups are proposing separate variations as well. Here are some key differences among the proposed legislation (House Bill 523), the Marijuana Policy Project amendment, and the Medicinal Cannabis and Industrial Hemp amendment.
Impact: The legislation would change only Ohio law. Both ballot proposals would amend the Ohio Constitution.
Marijuana in smokeable form: The legislation does not specifically allow it but doesn’t rule it out. Both ballot issues would allow it.
Home-grown pot: The legislation would not allow growing marijuana at home; both ballot issues would allow it in limited quantities.
Growers: The Marijuana Policy Project amendment would allow 15 large growers and unlimited small growers. Neither the legislation nor the cannabis and hemp amendment specify grower numbers.
Qualifying conditions: No specific qualifying medical conditions for medical marijuana are listed in the legislation. Both amendments cite a list of ailments, conditions and diseases that would qualify.
Doctor requirements: The legislation spells out numerous requirements for physicians, including registration and reporting marijuana prescriptions every 90 days. The amendments contain no specific requirements....
Timing: Both ballot issues aim to make marijuana as medicine available next year, while the legislature would likely take two years to implement....
Groups and individuals are weighing in on the legislation and ballot issues. The Ohio Rights Group, which at one time was planning its own marijuana ballot issue, said last week that it will support the Marijuana Policy Project initiative because it will “bring much needed therapeutic relief to the seriously ill in Ohio.”
The Ohio Farm Bureau Federation is taking a wait-and-see approach about all three proposals, said Adam Sharp, vice president of public policy. The group has not yet looked closely at the marijuana and hemp proposal, which would allow growing of hemp plants, a cousin of marijuana without its euphoric qualities, Sharp said. Hemp is used for a variety of products, including cloth, rope, oils and some edibles.
Ohioans for Medical Marijuana, the local group working with the Marijuana Policy Project, responded with a detailed 12-point memo outlining its “serious concerns” with the proposed legislation. Among them are leaving decision-making in the hands of nine “unaccountable, unelected political appointees” on a Marijuana Control Commission; imposing “considerable hardships on patients” by requiring office visits every 90 days; providing no legal protection for patients or caregivers; and denying the ability to grow marijuana at home.
While details, cost and accessibility are being discussed, timing is urgent to some, including Andrea Gunnoe, a school psychologist, business owner, wife and mother of four from Dublin who testified to the legislative panel last week. As she spoke, Gunnoe held her son, Reid, 6, who was diagnosed with epilepsy when he was 3. She wants the state to approve medical marijuana to use to control Reid’s frequent seizures. “My son’s medical bills since his onset have totaled over $4 million,” Gunnoe said. Because of the time it will take to implement the law, she said caregivers should be given a “safe haven” to get marijuana concentrates from other sources and “be protected from prosecution and allegations of child endangering.”
Sunday, April 24, 2016
This lengthy local article, headlined "Not just medicine: Marijuana may have big economic impact," takes a look into some of the key economic stories now that the Keystone state has legalize medical marijuana. Here are excerpts:
Pennsylvania Medical Cannabis Society Executive Director Patrick Nightingale called the medical marijuana law a piece of “momentous legislation.” He said it resulted from a true grassroots coalition of both recreational advocates and the parents of children suffering from ailments that can be treated with marijuana.
“They said, We are not going to settle for a bill that benefits our children only,” Nightingale said. According to Nightingale, the worst part of the legislation is the regulatory fee structure, which includes a $200,000 licensing payment for growers. Nightingale characterized this as a “one-time revenue grab for the commonwealth.”
“(The fees) are very high,” he said. “It is an expensive process.” He added that he is somewhat worried that the price of legal marijuana will greatly exceed the price of black market marijuana. This would potentially drive users underground, and destroy legitimate businesses.
Nightingale cited the price of legal marijuana in New Jersey, which is approximately $500 an ounce. He said marijuana of even higher quality, sold illegally in Pittsburgh, costs only $350 an ounce. “I don’t know where (Gov.) Chris Christie and his cronies came up with $500 an ounce,” Nightingale said....
Illinois passed a bill similar to Pennsylvania’s medical marijuana legislation in 2013. Dan Linn — executive director for the Illinois chapter of the National Organization for the Reform of Marijuana Laws, or NORML — said the movement has stimulated local economies and created approximately 1,000 jobs.
There have also been snares along the way. Linn acknowledged that high regulatory fees created “sticker shock” that prevented many would-be entrepreneurs from entering the business. And he said that local officials have made life difficult in some areas. “There were some folks who had very difficult zoning appeals in their communities,” Linn said.
But some are far more optimistic about Pennsylvania’s program. Chris Walsh, editorial director of the Marijuana Business Daily in Denver, Colorado, said the Keystone State should be far more successful than Illinois in implementing its medical marijuana legislation. “There’s more business opportunity in Pennsylvania, for sure,” he said. “The inclusion of severe chronic pain (as a qualifying condition) is huge.”
According to Walsh, allowing those currently on opiates to switch to marijuana makes the difference between a small legal market and a massive legal market. It also means that, because there’s more demand, prices should be reasonable. “Pennsylvania is really shaping up to be one of the biggest marijuana markets, easily on the East Coast, and possibly fifth or sixth in the entire nation,” he said, predicting that the commonwealth and Maryland will dominate the industry in the Atlantic region. “There’s a lot of optimism about this market.”
Walsh, however, echoed Nightingale’s concerns about local counties and municipalities trying to push medical marijuana grows and dispensaries out of areas. He said this is true even in Colorado because some people expect seediness and an increase in crime. “That never happens,” Walsh said.
“If it’s a well-regulated industry, once it’s been up and running, people kind of forget about them. There’s not this scary, stereotypical image that people have in their head.” His prediction for Pennsylvania: $100 million in annual sales. “(But) it will take a while to get there,” he said.
Saturday, April 23, 2016
NBC News has this new extended article, the first of a two-part series, taking a close look at the considerable difficulties that flow from medical marijuana reform efforts that only legalize CBD oils. This piece is headlined "'No-Buzz' Medical Pot Laws Prove Problematic for Patients, Lawmakers," and here is how it gets started:
The idea was intoxicating to lawmakers in more than a dozen states where medical marijuana was a political nonstarter: Give patients with certain severe medical problems access to a type of pot that might provide relief without producing the "high" usually associated with the plant.
But two years after 17 Midwestern and Southern states began passing a series of what are known as "CBD-only" medical marijuana laws, many people they were intended to help are rising up in protest. The laws, they say, help few patients, exclude others who could benefit and force residents to commit criminal acts in order to get relief for themselves or their loved ones.
"There is no amount of tweaking to a CBD decriminalization law that will make it work," said Maria La France of Des Moines, Iowa, who gives her 14-year-old son, Quincy Hostager, an oil derived from marijuana to treat his Dravet syndrome, an intractable form of childhood epilepsy. "I don't want to break the law, but I have to."
The CBD-only laws allow residents with specified medical conditions to legally use marijuana-derived products that contain cannabidiol (CBD) but are low in tetrahydrocannabinol (THC), which produces marijuana's "high." (Both CBD and THC are among the scores of active chemical compounds known as cannabinoids that are present in the marijuana plant.)
For medical purposes, that usually means orally ingesting an oil derived from marijuana or hemp, though there also are numerous other products like body oils containing CBD for topical uses.
Supporters involved in passing the laws portrayed them as compassionate measures that would let patients avail themselves of the potentially therapeutic or pain-relieving properties of pot without risking the possibility of creating a new generation of drug addicts.
But political opposition — often led by some of the families the laws were intended to help — has emerged in many of the states that passed the legislation. "We're not lawbreakers and this shouldn't even be an issue," said Jennifer Conforti of Fayetteville, Georgia, who gives her 5-year-old autistic daughter, Abby, marijuana-derived oil with higher-than-allowed levels of THC to control dangerous biting episodes. "It should be a medicine that doctors go to when they need it."
Conforti and others who want to expand the state's CBD-only law to cover additional medical conditions, allow for higher levels of THC and provide for in-state cultivation and distribution of CBD products have mounted a "civil disobedience" campaign to raise public awareness about the issue.
In Utah, proponents of expanded access to whole-plant medical marijuana say they will conduct a campaign to unseat legislators who opposed a bill to expand the state's current CBD-only law.
Even some involved in crafting CBD-only laws acknowledge that lawmakers have ventured onto thin ice by intervening in matters that may best be left to patients and their doctors. "Is this what we're going to do? Are we going to vote on the next blood pressure medication or chemo treatment because of anecdotal evidence?" said Pat Bird, an executive for a Utah substance abuse prevention program who was involved in the failed effort this year to update the state's CBD-only law.
The laws also have been harshly criticized by both medical marijuana advocates and prominent members of the medical establishment, albeit for very different reasons.
UPDATE: Here is the second part of this series from NBC News under the headline "Battle Over Georgia's 'No-Buzz' Medical Marijuana Law Gets Personal." Here is how it begins:
A Georgia mom is helping to lead the charge to expand the state's limited medical marijuana law, which she says unfairly excludes many patients with severe medical conditions — including her 5-year-old autistic daughter — who could benefit from the plant's medicinal properties.
"There are some pretty tenacious parents who are fighting," said Jennifer Conforti, whose daughter, Abby, isn't covered by the current law. "... Why wouldn't you do that as a legislator? What is in it for you to make you not want to help families in the state?"
Friday, April 22, 2016
The title of this post is the title of this recent lengthy American Lawyer article which in part explains why I think my novel marijuana law and policy law-school class may not be all that novel in the coming years. Here is how the piece gets started:
On April 20, which each year marks the unofficial “420” holiday for marijuana enthusiasts worldwide, lawyers at big firms across the country spoke with The Am Law Daily about their work in the burgeoning field of semi-legal weed.
Though still not allowed under federal law, rapidly changing state regulations have created a relatively new industry worth roughly $5.7 billion. Clients looking to get involved in funding, growing or selling cannabis are calling upon lawyers to handle venture capital, finance, intellectual property, real estate, employment and regulatory work.
Am Law 200 firms have approached this industry with varying degrees of discretion. T hompson Coburn has a blog, Tracking Cannabis, Seyfarth Shaw has one too in The Blunt Truth and Dykema Gossett will also have one soon. Fox Rothschild managing partner Mark Silow praised the cannabis work of the four-partner group his firm hired in Chicago from Nixon Peabody when the team was brought on last year.
“I don’t think the firm’s ever been shy to put it out there that we’re entrepreneurial,” said Fox Rothschild partner Joshua Horn. The co-chair of his firm’s securities industry practice, Philadelphia-based Horn is also a member of the National Cannabis Bar Association, which was formed last year. On Sunday, Pennsylvania became the 24th U.S. state to legalize medicinal marijuana, so, as opposed to his partners in Illinois, Horn said he hasn’t put in much cannabis work near home. The Pennsylvania Bar Association has yet to officially authorize an ethics rule change that would protect lawyers working in this industry, as noted this week by sibling publication The Legal Intelligencer. But Horn said he is increasingly helping clients in other states raise capital to finance their cannabis ventures.
Baker & Hostetler corporate partner Randolf Katz is also doing marijuana finance work in California, where voters could approve the recreational use of marijuana in November. Katz said his clients are increasingly drawn to pot startups. “One fund was pretty heavily in it,” he said, referring to a client. “Another fund, in the past year, has sent over probably six to eight different potential investments for us to take a look at that are marijuana-related companies.”
Wednesday, April 20, 2016
The Huffington Post has this piece explaining why today's date is considered special in the minds of many marijuana fans. For me, what is special today is how many interesting marijuana policy and reform stories can be found in major (and not so major) media outlets. Here is just a sample:
From ABC News here, "Man's Jail Death Adds New Face to Debate on Marijuana Laws"
From the Canadian Broadcasting Corporation here, "Federal marijuana legislation to be introduced in spring 2017, Philpott says: Health minister in New York for UN talks to review global drug treaties"
From CBS News here, "Marijuana use and support for legal marijuana continue to climb"
From the Daily Caller here, "Support For Marijuana Legalization Soars To 56 Percent Nationally"
From a FOX affiliate in Denver here, "Marijuana money might have saved small Colorado town from 'abyss of nothingness'"
From the International Business Times here, "After Years Of Petitions And Protests, Marijuana Group DCMJ Says It's Meeting With Obama Staffers At The White House"
From the New York Times here, "Marijuana Legalization in New England Is Stalled by Opiate Crisis"
From Quartz here, "America's weed industry is going to be massive. Is Big Marijuana a good thing?"
From Rolling Stone here, "What Will Rescheduling Marijuana Mean for the Pot Industry?"
From the Sacramento Bee here, "On 4/20, marijuana legalization headed for California ballot"
From the Wall Street Journal here, "Mexican President Backs Legalizing Marijuana for Medical Use"
From Wired here, "A New Crop of Marijuana Geneticists Sets Out to Build Better Weed"
Monday, April 18, 2016
As noted in this prior post, we here have the pleasure and honor of having Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, provide reports and thoughts on-site from the The Cannabis Science and Policy Summit now going on in NYC. Here is his dispatch after the end of the summit's first day:
Some recurring themes today:
* It's easier to heavily regulate marijuana at the outset and then loosen the rules over time than to do the reverse. Loose regulations become entitlements and entrenched interests will fight like hell to keep them form disappearing. Andrew Freedman made the great point that once you have marijuana businesses complying with regulation, they'll be your allies when others want them weakened (because they benefit under the extant rules).
* Taxation should start relatively low (to kill the black market) and then ratchet up (or titrate, one of the words of the day) as legal marijuana is able to compete on price with the black market.
* Big marijuana is on everyone's mind and is the official boogeyman of the festivities. The 80/20 rule and its variants was invoked over and over. How to fix it? Government monopoly (at least on distribution), non-profit models, advertising bans, etc.
* A marijuana regulatory system should provide the amount of marijuana for which there is current demand; it shouldn't create new demand.
* We don't know much about interactions — with alcohol, with opiates, with tobacco — as we legalize marijuana. But those effects will be important if, as most people expect, legalization will lead to more marijuana usage. If it leads to less usage of other drugs, the harms are lessened; if other usage goes up or stays flat, increased marijuana usage is much more problematic.
* There is lots of concern about increased potency and I'm not sure it's warranted. High potency is not bad in itself; it means less smoking and that's a boon for health rather than a threat. Also, if we're talking about marijuana concentrates, the production process is incredibly dangerous if done at home, and if there's demand for concentrates, it probably makes sense to service that demand through a regulated market.
Sunday, April 17, 2016
Cannabis Science and Policy Summit: on-site reporting from the Vicente Sederberg Professor of Marijuana Law and Policy
I invited Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, to provide some reports or thoughts about his experiences today and tomorrow as he is participating in NYC at the The Cannabis Science and Policy Summit. Here is the first of what I hope might be a few on-site report from a very informed participant in this event:
The morning started with a cautionary tone. Jonathan Caulkins gave a plenary talk on the dangers of a profit-driven marijuana market. His thesis was that 25 years from now, policy makers will look back on this period and wonder what on earth we were thinking.
* He showed that half of marijuana is consumed by those who use daily and that, as with any industry, there will be a push from industry to grow that group.
* He argued that Americans spend 40 billion hours per year stoned and that we could easily expect that to double post-legalization.
* He called marijuana a performance-degrading drug. There's a reason we don't test chess players for pot to be sure they're not cheating.
In the questions and discussions in the hallway afterward, talk focused on possible alternatives to a market-driven legal market. The most concrete was David Courtwright's invocation of Sweden's Gothenburg public house regulatory system (limited number of licenses, a limit on maximum profits, etc.) as a model for marijuana regulation that minimizes social harm.
A fascinating (to me) issue is whether there is room for legalization's opponents (groups like SAM and policy wonks like Caulkins) and the cannabis true believers who started all this (DPA, MPP, NORML, etc.) to join forces against Big Marijuana. Talking to Dan Riffle, I compared this to the Never Trump movement. No one (except the eventual winners, whoever they will be) wants corporate marijuana, which looks like the front-runner at the moment. The question will be whether various opponents, coming at that place from different directions, can find sufficient common ground to organize against the juggernaut and whether they can do so before things become inevitable.
For the record and to be a bit of an iconoclast, I consider myself something of a supporter of "corporate marijuana" at least in the short term for a couple of reasons. First and foremost, in the arena of medical marijuana, I think we will only get lots and lots of needed dynamic and aggressive research on the potential of the cannabis plant if there is a significant profit motive driving the research. Second and not to be overlooked, I think there can and should be more external benefits (like job growth and tax revenue) flowing from a commercial marijuana marketplace if (and this is a big if) government if focused mostly on aggressively regulating the marijuana industry rather than excessively seeking to control/hamper its innovative tendencies.
Friday, April 15, 2016
New group, Doctors for Cannabis Regulation, with prominent physicians pushing to end pot prohibition
This notable new article from the Washington Post, headlined "More and more doctors want to make marijuana legal," reports on a notable new group starting to advocate for the ending of federal marijuana prohibition. Here are the details and context:
A group of more than 50 physicians, including a former surgeon general and faculty members at some of the nation's leading medical schools, has formed the first national organization of doctors to call on states and the federal government to legalize and regulate the use of marijuana in the interest of public health.
The group — which is announcing its formation Monday, under the name Doctors for Cannabis Regulation (DFCR) — is endorsing the legalization of marijuana for adult recreational use, a break from the position of the American Medical Association, the largest organization of doctors in the country. DFCR argues that the prohibition and criminalization of marijuana use does more harm to the public than good. Citing hundreds of thousands of annual marijuana arrests, racial and economic disparities in marijuana enforcement, and the role of prohibition in keeping marijuana prices high and lucrative to violent drug dealers, the physicians say that creating a legal and regulated marijuana market is the best way to ensure public safety, combat the illicit drug trade and roll back the negative consequences of strict enforcement policies on disadvantaged communities.
The emergence of the group comes at a crucial moment in the national debate over marijuana legalization. More than 60 percent of the public now says that it supports marijuana legalization. Support for allowing medical use of marijuana with doctors' supervision is closer to 90 percent. Over 35 million Americans use marijuana recreationally each year, according to the latest federal statistics. Research organizations, medical groups and even many national lawmakers have called on federal authorities to revisit policies toward marijuana that have remained essentially unchanged for nearly 50 years.
"You don't have to be pro-marijuana to be opposed to its prohibition," DFCR founder and board president David L. Nathan said in an interview. Nathan is an associate professor at Robert Wood Johnson Medical School at Rutgers University and a distinguished fellow of the American Psychiatric Association. He's quick to point out that his group does not advocate for the use of marijuana: While researchers generally agree that marijuana use is less harmful to individuals and society than the use of other common drugs, like alcohol and tobacco, about 9 percent of people who begin using as adults become dependent on the drug, and heavy use can be especially harmful to the developing brains of adolescents.
Rather, Nathan says, the best way to manage those risks is to bring use of the drug, as well as the associated commerce in it, out into the open via regulation. "Doctors should affirmatively support this," he said. "If you’re going to make something against the law, the health consequences of that use have to be so bad to make it worth creating criminal consequences. That was never true of marijuana. It was banned in 1937 over the objections of the American Medical Association (AMA)."
Indeed, in 1937, the AMA objected to the overly strict regulation of marijuana, as it was then used as a treatment for a number of medical conditions. The Association was worried that prohibition of marijuana would "deprive the public of the benefits of a drug that on further research may prove to be of substantial value."
After the passage of the "Marihuana Tax Act," marijuana "just wasn't that well-known among doctors," Nathan said. Many doctors were unaware that the drug essentially outlawed by the Marihuana Tax Act was the same substance they knew as "cannabis," which they used to treat a variety of ailments from corns to poor appetite. In subsequent years, physicians were just as susceptible to lurid media reports about the supposed dangers of marijuana use and the "Reefer Madness" era as anyone else.
Like most mainstream medical groups, the AMA is now opposed to the outright legalization of marijuana, calling it a "dangerous drug" and "a public health concern." But the group's stance has evolved in recent years. It recently added language to its position statements calling for "the modification of state and federal laws to emphasize public health based strategies," rather than punitive, incarceration-based measures. The group now encourages research into the drug, and has called on federal authorities to make it easier to do so....
Not all medical professionals are happy about relaxing attitudes toward what they see as a dangerous, addictive drug. The notion of doctors advocating for marijuana legalization is "totally idiotic," said Robert DuPont, who served as the first director of the National Institute on Drug Abuse and as the second White House drug czar, in an interview. "The idea that we cannot manage the health problems related to marijuana because it's illegal, that doctors are somehow inhibited from dealing with marijuana use and marijuana problems, is completely wrong."
"The idea that legalizing is going to stop the illegal market is equally stupid," he added. DuPont thinks that the current legal status of marijuana is sufficient to address the risks associated with marijuana use, and that punitive measures for drug sellers and users can be a powerful tool for helping at-risk people get treatment. "The criminal justice system is a wonderful vehicle for getting people into treatment and recovery," he said....
Much of the discussion around marijuana legalization, among doctors and the general public alike, hinges on different assessments of the same data showing the risks and benefits of changing marijuana laws. Groups like the AMA are concerned that legalization would lead to more widespread use of the drug, which would invariably mean greater prevalence of the negative health consequences associated with its use, like dependency and some mental illnesses that may be exacerbated by the drug's use.
But groups who favor legalization, like DFCR, point out that negative outcomes arise from the current system of prohibition, too. They say that the presence of a large black market, the stigmatization of individual users, and the potentially life-ruining effects of a marijuana conviction, are steep prices to pay for the nominal reduction in overall use that comes with prohibition.
In 2011, the California Medical Association, which represents 40,000 doctors in the state, became the first doctors' group to call for the full legalization of marijuana. They recently went a step further, explicitly endorsing a measure to appear on the ballot this November that would legalize marijuana and create a commercial market for it in the state. "Medical marijuana should be strictly regulated like medicine to ensure safe and appropriate use by patients with legitimate health conditions and adult-use marijuana should be regulated like alcohol," the group's president said in a February statement.
DFCR hopes to make a similar case among doctors at the national level, and to win over skeptics like DuPont and Friedmann. "We want to build a group of physicians who are going to be out in the public making the case for marijuana legalization to physicians, medical associations and the public at large," Nathan said.
The website for the DFCR is already in operation and has some interesting content. I especially liked this interesting page discussing the personal history and work of William Creighton Woodward, which includes this introduction:
In the 1937 hearings for the Marihuana Tax Act, Dr. Woodward defended the AMA’s position that cannabis should be regulated but not prohibited. In his lengthy testimony, he refuted the hyperbolic claims put forward by the proponents of marijuana prohibition, offering a prescient view of how our society should handle drug addiction in general, and marijuana in particular. There is much we can learn from this early, learned proponent of an evidence-based national cannabis policy, and extracts of his testimony are included below.
"Marijuana Could Soon Be Rescheduled As A Less Dangerous Drug By The DEA, So Why Aren’t Cannabis Proponents Excited?"
The 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
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.
Wednesday, April 6, 2016
The question in the title of this post is the query to be explored by an LL.M. student in my seminar this week. Here are the suggested background readings and materials she provided to set up this important topic:
Is the legalization of marijuana a better solution than a war on drugs?
My presentation focuses on the impact that the legalization of marijuana in the US is having in Mexico which is the biggest supplier of marijuana. Also, if the legalization of marijuana is a better solution that the drug war and how the US is supporting Mexico on this drug war. These are the articles I recommend my classmates to read:
April 6, 2016 in History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
The question in the title of this post is posed by a student in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform as a preview to his in-class presentation/discussion on Fouth Amendment doctrines. The student has authored this preview blurb to go along with links to assembled background reading:
Warrantless searches are per se unreasonable subject only to a few specifically established and well-delineated exceptions. Over the last several decades, many of these exceptions to the protections of the Fourth Amendment have either revolved around or are tied to the presence of marijuana. The “Plain Smell” or marijuana from an officer is firmly supported among circuit courts as sufficient for granting probable cause for a search. The Supreme Court has upheld the use of drug detection dogs during traffic stops to generate probable cause to search a vehicle. When there is marijuana in a location where marijuana is illegal, police officers have a justification for a warrantless search.
With the current legalization of marijuana in many jurisdictions, these established exceptions and practices are being turned on their heads. However, the movements away from these established practices are inconsistent and uncoordinated. When dealing with drug detection dogs, some agencies are retiring established dogs and training new ones while some agencies are attempting to retrain their established dogs. But the proper course of action is legally and procedurally uncertain. To retire and retrain is expensive while it is unknown whether a drug detection dogs will remain effective upon retraining or if they can even be retrained. Is it impossible to teach an old dog new tricks?
Two articles on what is happening to drug dogs in jurisdictions where marijuana has been legalized:
An article which further examines marijuana legalization on drug dogs and wades into the discussion of automobiles searchs on the basis of marijuana:How medical marijuana legalization has affected the probable cause generating effect of marijuana odor in Arizona:
April 6, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, March 31, 2016
The question in the title of this post is posed by one of my seminar students who will be presenting on this topic to the rest of the class this afternoon. Here is introduction for his colleagues and others interested in this engaging query:
Many players are pushing towards open marijuana policies because of the potential health benefits of marijuana use. Players argue that they can be taking marijuana instead of other synthetic pain killers to keep them on the field or court. The players arguments generally fall on deaf ears, the league doesn't want to have any of it.
Here’s why; The league is concerned about its image. In the code of every sports league is the phrase, “integrity of the game.” In other words, the league has the responsibility to uphold the integrity of the game. This applies to players conduct both on and off the field.
For conduct on the field, the league is concerned that marijuana use will effect players ability to play the game. The players abilities may become diminished by the use of marijuana which in turn would diminish the competitive integrity of the game. What if marijuana use improved players ability to play the game – would the league ban it similar to steroids or would the league embrace it because it makes the game more exciting? (Marijuana does not have the negative consequences typically associated with steroids, an argument for allowing its use.)
For conduct off the field, the league is concerned about its image. Every league has “body image issues.”
- NFL – Ray Rice, Adrian Peterson, Josh Gordon
- NBA – Donald Sterling…
- Olympics – Michael Phelps
The list goes on and on. The leagues want to keep a sterling image and the concern is that allowing marijuana use will taint their image. They are unlikely to move until marijuana use is more accepted. Its just good to keep things how they are for business purposes. They don't want to alienate fans.
On the other hand, leagues have incredible ability to shape policy. The leagues may even pave the way for legalization and normalization of marijuana use to treat pain if they would embrace the players requests. The more medical discovery regarding concussions and other ailments and its treatment of marijuana the more likely the leagues will become a factor in this arena.
Maybe even some leagues will fund a study?
Other interesting articles:
- "High Time For Hockey"
March 31, 2016 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Sports | Permalink | Comments (0)
Wednesday, March 30, 2016
The title of this post is the notable headline of this notable Vanity Fair article, which serves as a very fitting follow-up to my students' recent class presentation on Women & Weed: Blazing A Trail Toward Nationwide Legalization. Here are the details:
Whoopi Goldberg has had it with cramps and had it with stoner jokes, and now she’s doing something about both. Goldberg announced Wednesday that she’s launching a medical-marijuana company with Maya Elisabeth, one of the leading “canna-businesswomen” in the field, with a line of products designed to provide relief from menstrual cramps.
The company, Maya & Whoopi, will offer cannabis edibles, tinctures, topical rubs, and a THC-infused bath soak that it describes as “profoundly relaxing.” Frankly that last one, even though your humble reporter is a man, sounds incredible.
In an interview with Vanity Fair, The View co-host said she wanted to create a product for women that was discreet, provided relief, and wouldn’t leave you glued to your couch. “For me, I feel like if you don’t want to get high high, this is a product specifically just to get rid of discomfort,” she says. “Smoking a joint is fine, but most people can’t smoke a joint and go to work.”
“This, you can put it in your purse,” Goldberg continues. “You can put the rub on your lower stomach and lower back at work, and then when you get home you can get in the tub for a soak or make tea, and it allows you to continue to work throughout the day.”
Goldberg has been outspoken about her medical-marijuana use in the past. In 2014, she wrote in The Cannabist about her love of her kush-filled vape pen, which she says gives her relief from glaucoma-related headaches without resorting to eating handfuls of Advil every day . “I started using the vape pen because I stopped smoking cigarettes about four years ago and discovered I couldn’t smoke a joint anymore,” she says. “The relief that I got with the vape pen was kind of different from what I got with smoking. I could control it much better.”
If it worked so well for headaches, surely it could be applied to other aches, so Goldberg got in touch with a couple of industry experts to see if there was already anything on the medical-marijuana market for cramps. They told her no, because it was seen as a niche. At this point in the interview, Goldberg stops to give an exasperated chuckle. “Hey, this niche is half the population on the earth,” she says. “This seems to be people flippantly blowing you off, which is what you get whenever you start talking about cramps. They weren’t thinking how do you target this? I have grown granddaughters who have severe cramps, so I said this is what I want to work on.”
Goldberg then got in touch with Elisabeth, the owner of the female-run medical-marijuana cannabis company Om Edibles in northern California, and the two were off to the races.... Goldberg stands by her product for the same reason she favors it over painkillers for headaches. She says you’ll be able to look at the ingredients on any Whoopi & Maya package and know exactly what’s in it. (Queen Victoria, by the way, supposedly used a marijuana tincture to relieve menstrual cramps, so it basically has the seal of approval from the British royalty.)
For those who don’t have much experience in the field, Whoopi & Maya will also include products with only cannabidiol (CBD), which lacks the euphoric effects commonly associated with marijuana. The whole line is scheduled to be available in April. For now, thanks to the patchwork of state medical-marijuana laws and the continuing federal ban on the substance, it will only be available in California.
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)
Tuesday, March 29, 2016
Regular readers are accustomed to hearing me sing the praises of the work being done by the The Brookings Institution on the legal, political and social realities surrounding modern marijuana reform. The latest terrific Brookings publication in this arena is this long piece authored by John Hudak and titled "The Medical Marijuana Mess: A prescription for fixing a broken policy." The lengthy piece merits the time to read in full, and here are just a few snippets:
Takoma Wellness may be less than three years old, and its business an exotic novelty in the District of Columbia, but Rabbi Kahn is part of a long line of healers — some of them religious leaders like himself — who have been treating the sick with cannabis for millennia. During earlier eras, marijuana was much more commonly recommended for medical purposes than it is now. Five thousand years ago the Chinese, for example, were using cannabis as an appetite stimulant, pain reliever, and anesthetic. British physicians used cannabis for a variety of illnesses and disorders, even administering it to Her Majesty Queen Victoria for pain. As recently as the early 20th century, doctors in the United States, too, found medical applications for marijuana, using it as an anti‐convulsive drug, a pain reliever, and an anti‐inflammatory....
Under federal law, there are no conditions that allow a doctor to prescribe marijuana, a pharmacy to dispense it, or a patient to buy or use it. Marijuana is illegal. Period.
The reason for this is that according to federal law — the Controlled Substances Act — marijuana is classified as a “Schedule I” substance. As explained on the DEA’s website, federal law reserves the Schedule I classification for the “most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence” and with “no currently accepted medical use.” In addition to marijuana this category also includes drugs like heroin, LSD, and ecstasy.
The decision about what drugs should appear in each of the five “Schedules,” which range from the most dangerous and addictive to the least, with only Schedule I drugs ranked as having no medical value, was not made by anyone in the medical community, but by Congress. In 1970, Congress passed the Controlled Substances Act — a politically motivated law enacted at a time of national hysteria over drug abuse, and President Richard Nixon signed it into law. With the exception of a few relatively minor changes in the years since, the drug schedules included in the Controlled Substances Act have remained the same, including the Schedule I designation for marijuana.
The fact that marijuana’s therapeutic effects are real — as evidenced by what science says about its effects on the human body, and supported by hundreds, indeed thousands of years of effective treatments in places around the globe — has not sufficed to get it removed from that list. This is unfortunate, because the Schedule I designation has consequences that extend beyond the legal restrictions. It has created negative cultural norms — biases — that permeate much of society. Patients wanting to be treated with marijuana are often embarrassed and scared — even after a doctor has recommended that they use it, and they’ve gotten the approval of state authorities to do so. For some first‐time medical marijuana patients, a trip to the dispensary is not like a stroll to the pharmacy with a prescription for a drug like amphetamines, or oxycodone, or morphine, or compounds that include cocaine, all of them Schedule II drugs; it’s more like a teenager’s trip to the corner store for condoms.
That social stigma likely keeps many sick people from even considering marijuana as an option. For them, there will never be an opportunity for responsible dispensary owners like Rabbi Kahn to have the chance to calm their nerves and show them that purchasing pot is not shameful — and that using it can be helpful.
Monday, March 21, 2016
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Sunday, March 20, 2016
As regular readers of my Sentencing Law and Policy blog should know, careful and responsible researchers and advocates should be careful and cautious about making any bold assertion about which kinds of laws and legal reforms may or may not impact crime rates. Just about every pundit who ever asserts boldly that this reform or that reform certainly will (or certainly won't) reduce or increase crime is proven wrong at some point in some way. For that reason, I am generally disinclined to put too much stock in any assertions that marijuana reform definitely will or definitely won't lead to a change in serious crime rates in a jurisdiction.
That all said, I think it is very important to keep an eye on any notable corrections between reported crime rates is jurisdictions that have reformed its marijuana laws. And, I just came across a few recent postings by Sierra Rayne at the American Thinker website that present data showing significant crime spikes in key marijuana reform jurisdictions. Going through the author's posting archive, I found this array of posts that ought to be of interest to everyone following the impact of marijuana reforms:
As these post headlines perhaps reveal, the author of all these pieces seems quite interested in making the case that there is a causal link between marijuana reform and increases in crime. But even if these posts involve an effort to spin crime data to serve a particular agenda, the data assembled in these posts are disconcerting (and perhaps help explain why we are not hearing from marijuana reform advocates the claim that reform contributes to a decrease in crime).
Critically, lots of crime rates were up in lots of urban and suburban US regions throughout the end of 2014 and through all of 2015; spikes in crime rates in marijuana reform cities might ultimately reflect some broader national trends that have no direct link to marijuana laws and related practicalities. In addition, especially because marijuana reformers reasonably assert that legalization enables law enforcement to refocus energies on more serious crimes, I wonder if any crime spikes in reform cities might reflect, at least in part, the ability for cops on the beat to discover a greater percentage of serious crimes that we already happening but were going unreported before marijuana reform.
I am hopeful (though not all that optimistic) that over time we will see more and more careful analyses of patterns of crime in the wake of local, state and national marijuana reforms. In the meantime, though, I want to complement Sierra Rayne for keeping an eye on this important issue, and I robustly encourage everyone else interested in marijuana reform to look closely at all the emerging data in this space.
March 20, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Thursday, March 17, 2016
The title of this post is the headline of this terrific new BuzzFeed News piece authored by Amanda Chicago Lewis spotlighting how the marijuana industry has a notable look to it that ought to trouble progressives eager to see such an industry develop. Here are a few extended exceprts from the must-read (and lengthy) article:
When Colorado’s first medical marijuana dispensaries opened in 2009, Unique Henderson was psyched. He’d been smoking weed since he was 15, and he’d even learned how to grow, from his ex-girlfriend’s father. He spent $750 on classes about how to run a cannabis business, and then he and a friend both applied to work at a Denver pot shop.
Then only his friend was hired. Henderson was more than qualified, so why didn’t he get the gig? His friend asked the managers and came back with infuriating news: Henderson was not allowed to work in the legal cannabis industry because he had been caught twice with a joint’s worth of pot as a teenager back in Oklahoma, and as a result he has two drug possession felonies on his record.
For most jobs, experience will help you get ahead. In the marijuana industry, it’s not that simple. Yes, investors and state governments are eager to hire and license people with expertise in how to cultivate, cure, trim, and process cannabis. But it can’t be someone who got caught. Which for the most part means it can’t be someone who is black.
Even though research shows people of all races are about equally likely to have broken the law by growing, smoking, or selling marijuana, black people are much more likely to have been arrested for it. Black people are much more likely to have ended up with a criminal record because of it. And every state that has legalized medical or recreational marijuana bans people with drug felonies from working at, owning, investing in, or sitting on the board of a cannabis business. After having borne the brunt of the “war on drugs,” black Americans are now largely missing out on the economic opportunities created by legalization.
Nobody keeps official statistics on race and cannabis business ownership. But based on more than 150 interviews with dispensary owners, industry insiders, and salespeople who interact with a lot of pot shops, it appears that fewer than three dozen of the 3,200 to 3,600 storefront marijuana dispensaries in the United States are owned by black people — about 1%.
At this rare and decisive moment in American history, state governments are literally handing control of a multibillion-dollar industry to a chosen few, creating wealth overnight. The pot trade has long been open to anyone with some seeds and some hustle, so there are more than enough cannabis experts out there to form a truly diverse industry — if only the laws weren’t systematically preventing thousands of qualified black people from participating....
Legalizing marijuana sounds revolutionary, but with every day that passes, the same class of rich white men that control all other industries are tightening their grip on this one, snatching up licenses and real estate and preparing for a windfall. First-mover advantage, they call it. That means that anyone who doesn’t make the risky leap to violate federal law and get involved now will miss out, forever. In a few years, when the land grab is over, the cannabis industry may become just another example in America’s never-ending cycle of racially motivated economic injustices....
Last year, Oregon made it easier to get past cannabis convictions expunged from people’s criminal records, partly with the goal of helping more people of color become eligible to participate in the recreational industry there. But attempts at giving anyone a leg up in the licensing process to account for past disparities have largely been unsuccessful. In Illinois, where people with drug felonies are not even allowed to be medical marijuana patients, the state gave a tiny boost to the licensing applications of minorities and women. But officials declined to say whether any of the applications that received the boost resulted in a license, as the records are not subject to disclosure laws. The Legislative Black Caucus of Maryland fought for a much more significant boost, but the state attorney general struck it from the law, saying it could be justified only in an existing industry with documented disparities.
The most promising legal attempts to acknowledge the disproportionate effects of marijuana prohibition are written into the 2016 recreational-use ballot initiatives in Massachusetts and California, which allow all cannabis felons to participate in the industry. In a groundbreaking turn, both initiatives also offer the closest thing possible to reparations for the war on drugs: earmarking tax dollars from the industry for job training and other programs in the communities that have been most affected by past narcotics policies — language designed to avoid the legal complications of explicitly mentioning race.
But even if California’s recreational-use initiative passes in November, the medical market there will still exclude most drug felons, a situation that frustrates California NAACP President Alice Huffman. “There are not many jobs out there for black folks,” she said. “There is an underground market for marijuana and a large part of our community participates in it. A lot of people in the inner city live on those drugs, and we don’t like to admit that.” Legalization, she said, “might be an opportunity for economic development for everyone in the community with a business mind.”
And yet many of the black people “with a business mind” who have tried to get involved in marijuana have already encountered the same racism and disproportionate policing as before pot became legal. BuzzFeed News spoke with over two dozen black cannabis entrepreneurs across the country and heard the same frustrations again and again: the secret decision-making that drives local politics, the unsavory euphemisms and selective application of existing law, and the maddening inability to distinguish bias from circumstance.
March 17, 2016 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)