Thursday, August 28, 2014
Does an increase in marijuana seizures in Colorado mail mean more Coloradan's are mailing marijuana? Not necessarily.
There's a new law enforcement report out saying postal inspectors saw a big spike in marijuana seizures from Colorado mail headed to other states between 2010 and 2013.
The amount of Colorado marijuana being seized en route to other states through the U.S. mail has more than quadrupled since 2010 and was destined for more states than before, according to a new report by a federally funded drug task force.
Postal inspectors seized more than 493 pounds of pot from packages in 2013, up from 57 pounds in 2010, the year after medical marijuana dispensaries proliferated in Colorado, according to the figures released this month by the Rocky Mountain High Intensity Drug Trafficking Area.
Just 15 packages were bound for 10 states in 2010, compared to the 207 parcels destined for 33 states in 2013. Top destinations were Florida, Maryland and Illinois, the report states.
Does this news mean Coloradans are actually sending more marijuana to other states than they used to? No, not necessarily.
The increase in seizures could just as easily be the result of more vigilant enforcement as the result of more Coloradans mailing marijuana to friends. Perhaps inspectors have started to look more closely at Colorado packages in response to the state's marijuana reforms. Similarly, it is not incoceivable that legalization opponents are pushing to up enforcement to try and boost numbers to give legalization a black eye (certainly, it seems like this HIDTA report was released with that in mind.)
On this point, it is worth recalling that marijuana arrests more than doubled between 1990 and 2002. Did marijuana use double during that same period? Not at all. The numbers were the result of increased law enforcement attention to small marijuana cases (broken windows, stop and frisk style enforcement, etc.).
To be sure, the numbers could reflect a real increase in Coloradans sending marijuana out of state. (Or, it could be a mixture of both causes.)
But the only thing this data tells us is that more marijuana is being seized, not what caused the jump in seizures.
Tuesday, August 26, 2014
In my last two posts, I’ve highlighted the emerging struggle between state and local governments for control of marijuana policy. My latest article tries to provide some guidance on whether states should give local governments the option of banning marijuana sales.
This Part of the article discusses the theory of local control. It illuminates the competing considerations that help determine whether local control over marijuana (or any other issue) is normatively desirable. (I’ve eliminated the footnotes for this post, but they’ll be available once I post the completed draft on SSRN.)
A. The case for local control
Local control is supposed to promote economic efficiency. In particular, empowering local governments to tackle divisive issues is supposed to enable more people to get the policy they desire. The reason is that minorities in statewide contests sometimes comprise majorities in local communities; there are, after all, more than 3,000 counties and 15,000 municipalities sprinkled throughout the 50 states. These residents would be happier if they were allowed to pursue the policy they prefer through these local communities, rather than live under the policy the state as a whole would choose. Mobility of the population arguably enhances the efficiency of local control. The idea is that residents who are dissatisfied with the policy espoused by one local government can relocate to a community with a more appealing policy. To be sure, residents could also relocate from one state to another, but the comparatively large number of local governments increases the chances that dissatisfied residents will find more appealing matches and it also lowers the cost of relocation.
August 26, 2014 in History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Friday, August 22, 2014
The quote in the title of this post is drawn from this new Businessweek article headlined "Marijuana Law Mayhem Splits U.S. as Travelers Get Busted." Here is how the lengthy article gets started:
America is two nations when it comes to marijuana: in one it’s legal, in the other it’s not. The result is that people like B.J. Patel are going to jail. The 34-year-old Arizona man may face a decade in prison and deportation following an arrest in 2012. On a trip in a rented U-Haul to move his uncle from California to Ohio, he brought along some marijuana, which is legal for medicinal use in his home state.
Headed eastbound on I-44 through Oklahoma, Patel was stopped for failing to signal by Rogers County Deputy Quint Tucker, just outside Tulsa. He was about to get off with a warning when Tucker spotted a medical marijuana card in his open wallet. “‘I see you have this card. Where’s the marijuana?’” Patel recalled Tucker asking him. “I very politely and truthfully told him, ‘I’ll show you where it is.’” That’s where things started to go bad for Patel. He now faces trial next month on a felony charge.
Possessing pot for recreational use is legal in Washington and Colorado, and allowed for medicinal purposes in 23 states. The other half of the country, which includes Oklahoma, largely prohibits any amount for any purpose.
While challenges may land the issue before the U.S. Supreme Court, what exists now is a legal checkerboard where unwitting motorists can change from law-abiding citizens to criminals as fast as they pass a state welcome sign. The difference is especially clear in states like Idaho. Surrounded on three sides by pot-friendly Washington, Oregon, Nevada and Montana, Idaho State Police seized three times as much marijuana this year as in all of 2011.
“The manner in which a person acquires the drug is not relevant,” Teresa Baker, an Idaho police spokeswoman, said. “This is important to know for those who may purchase it legally elsewhere, believing that it will be overlooked.”
James Siebe, a lawyer in Coeur d’Alene, put it another way: “Come on vacation, leave on probation.”
Tuesday, August 19, 2014
As promised, I’m going to dive into a new project evaluating the “local option” for marijuana: i.e., proposals to allow local governments (usually counties) to ban marijuana sales, notwithstanding state legalization of the drug.
I plan to post the project piecemeal. I'm still working on the language, ideas, and research, so I welcome feedback. I’ll start, naturally, with the Introduction (omitting footnotes) and follow with the Parts II and III to follow over the course of the next week. Here goes:
The states have largely prevailed in their struggle against the federal government for control over marijuana policy. More than 20 states have already legalized marijuana under state law and the number is sure to grow. Though the federal government has not yet repealed its own marijuana prohibition, it has largely ceded control of the issue to the states. As I wrote nearly five years ago,
[M]edical marijuana use has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, though skirmishes will undoubtedly continue, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the victors in this struggle. Supremacy, in short, has its limits.
But the states are now facing growing opposition from within. Citing concerns over marijuana’s perceived harms, many communities in marijuana legalization states are seeking to re-instate marijuana prohibition at the local level. In Colorado alone, for example, more than 150 municipalities have passed ordinances banning marijuana shops outright.
These local ordinances raise one of the most important and unresolved questions surrounding marijuana law reforms: What power, if any, should states give local governments to regulate marijuana? How the states answer this question will determine just how quickly and broadly marijuana legalization spreads. The experience with alcohol control is instructive. Although national alcohol prohibition was repealed in 1933, and although Mississippi repealed the last statewide alcohol prohibition in 1966, hundreds of local communities – governing roughly 10% of the nation’s population -- continue to ban the sale of alcohol today, more than 80 years after the ratification of the 21st Amendment.
Despite the importance of the local authority question, there has been surprisingly little attention paid to it. Most marijuana legalization states failed to address local authority in their marijuana reform legislation, sparking dozens of lawsuits challenging local ordinances. In many states, the issue of local control remains unsettled. And while many scholars have weighed in on the federalism issues surrounding marijuana law reforms, they have all but ignored the important power battles now flaring up within the states.
This Article begins to fill the gap. It aims to provide lawmakers, jurists, scholars, and other interested parties insights into the desirability of enabling local communities to ban marijuana. It approaches this task in two ways. First, it discusses the theory of local control. The theory seeks to balance the interests of individual local governments against those of our broader society. On the one hand, local governments can tailor their policies to satisfy local tastes. What’s right for Last Vegas isn’t necessarily right for Reno. On the other hand, local policies can also affect outsiders who have no say over them. What happens in Vegas doesn’t necessarily stay there. The desirability of local control over any given issue hinges on the relative strength of these competing considerations.
Second, the Article attempts to gauge the strength of these competing considerations for marijuana. Would local control advance local policy interests? Would it harm outsiders? It is, of course, far too early to gauge the impact of local marijuana regulations. But we do have more than one century worth of experience with local alcohol regulations. I argue that this experience holds some valuable lessons for debates over local marijuana control. In particular, I find our experience with local alcohol control should temper enthusiasm for giving local government similar control over marijuana. The research on local alcohol control suggests that local alcohol regulations have effects beyond the boundaries of the jurisdictions that adopt them. A wet county might thwart a neighboring dry county’s effort to curb alcohol consumption and the harms that go along with it. Likewise, a dry county might shift some of the harms of alcohol consumption onto a neighboring wet county. The sobering experience with local alcohol control suggests that the state or even national governments might be better suited to controlling that substance and, by extension, marijuana as well.
The Article proceeds as follows. Part I discusses the current controversy over local marijuana regulation. Part II discusses the theoretical framework for evaluating the desirability of local control. Part III discusses the lessons of local alcohol control. Part IV then returns to draw some tentative conclusions about the desirability of local marijuana control.
August 19, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
Monday, August 18, 2014
This local article from Florida, headlined "Ad war looms over medical marijuana: 'Compassion for sick' versus 'Devil in the details'," spotlights the developing terms of debate in the campaign for and against Florida's medical marijuana initiative being voted upon this November. Here are some of the details:
A burst of ads coming soon to TV screens in Florida will feature patients and doctors extolling the virtues of marijuana as a compassionate way to treat the sick and ease their pain. The soft-sell campaign, a laid-back variation on the usual political pitch, is designed to promote a constitutional amendment on November's ballot to legalize medical marijuana.
Countering that message will be a rival set of ads warning that approval of the amendment would lead to widespread drug use, supplied by "pot docs" and "pot shops" at every turn.
The dueling ad campaigns will compete for attention amid political appeals from candidates for governor and other offices, adding to an expected deluge of election messages though late summer and early fall.
Neither side would say when its ads will start or how much it's planning to spend. But both sides are preparing to hit the airwaves with TV and radio spots while developing networks of campaign volunteers and delivering their messages on the Internet. It's not quite politics as usual.
"We're not in a partisan scrum. We're not in an attack-and-response mode," said Ben Pollara, campaign manager of United for Care, which is spearheading the marijuana amendment. "We're just going to go out there and have people share their stories about how medical marijuana has affected them, or could have affected them, and their loved ones." The testimonials, he said, will come from patients, doctors and nurses.
He said 10,000 volunteers have signed up to help convey the message through phone calls, in-person talks and social media. They will be pitching constitutional Amendment 2, which "allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician."...
Early polls indicate overwhelming public support for medical marijuana — by 88 percent in a statewide Quinnipiac University poll — but analysts expect a close vote on Amendment 2, which requires 60 percent approval to become law.
Opponents, including law-enforcement groups and Republican leaders, say the amendment is full of loopholes that could allow unscrupulous "pot docs" to recommend the drug for recreational users. "The thing I would be concerned about is the ruse of medicinal marijuana for purposes of allowing people basically to buy a joint and smoke it," U.S. Sen. Marco Rubio, R-Fla., told Florida reporters this month.
Nonprofit groups that oppose the measure have banded together under the Don't Let Florida Go to Pot coalition, which provides speakers at public forums. A separate group known as Vote No on 2 will lead the ad campaign.
A sample ad already has popped up on the Internet. The video shows scenes of children walking past marijuana stores in California, big piles of pot and derelicts puffing on pipes. "They say they just want to help the sick, but that's not the whole story," a narrator intones. These scenes are interspersed with commentary from experts, such as lawyers and cops, who support the theme "The Devil is in the Details."
"A vote for Amendment 2 is a vote for legalization of marijuana forever in the state of Florida," Grady Judd, president of the Florida Sheriffs Association, tells viewers.
The coming air war will bring the debate into Floridians' living rooms. "There's certainly going to be enough spending to make it a salient issue, with both sides ramping up their ad buys," said Daniel Smith, political science professor at the University of Florida. He said this issue, highlighted by the ads, will prompt some voters to cast ballots who otherwise might not bother with a non-presidential election.
The Boston Globe has this intriguing new article discussing in the problems that face medical marijuana patients in university settings. The piece is headlined "In halls of academia, medical marijuana an unwelcome guest: Colleges, mindful of federal rules, draw ire by keeping stiff bans." Here are excerpts:
Thomas Burke Jr., a 25-year-old US combat veteran and Yale University grad student, has a physician’s permission to use medical marijuana in Connecticut to treat PTSD symptoms. Although medical marijuana has been legal in Massachusetts for nearly two years, many local colleges are putting out the message to students as the fall semester nears: You still can’t use it on campus, even if a doctor says it’s medicinal.
College administrators have reaffirmed policies banning the drug in all forms, and that includes for students who have a doctor’s recommendation. They say their hands are tied by federal regulations, which still classify marijuana as an illegal drug, and they worry that allowing cannabis use of any kind could lead to the loss of federal funding, including student financial aid....
But other medical marijuana patients and advocates say colleges are being overly cautious. Forbidding the use of a state-recognized, doctor-authorized medicine is unfair, unethical, and a detriment to students, faculty, and others who use the drug to treat ailments, they say. “We would like to see schools recognize, as many states and millions and millions of individuals and doctors have done, that marijuana is in fact valid medicine for the patients that are using it, and treating it differently than other medications is harmful to students and faculty who have chosen to use medical marijuana,” said Betty Aldworth, director of Students for Sensile Drug Policy, a national student network pushing for an overhaul of drug laws....
Some schools — including Boston University, Tufts University, and Amherst, Curry, Emerson, Hampshire, and Wheelock colleges — that ban medical marijuana on campus try to help students with certifications to find alternatives. One way is to allow the students to opt out of on-campus housing contracts and requirements so they can pursue treatment off-campus....
The Justice Department said in a memorandum last year that it focuses enforcement on the most serious marijuana-related violations, and it is “not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers.”
However, in 2011, the White House Office of National Drug Control Policy and the Education Department wrote a letter warning campuses that deviating from federal rules could put their federal funding at risk. “The administration’s stance hasn’t changed since then,” drug control policy office spokeswoman Cameron Hardesty told the Globe last week.
Advocates, however, say it is unrealistic to believe the US government would cut off funding to colleges over the issue. “I understand not wanting to risk millions of dollars in federal funding, but no college has ever lost federal funding for changing their drug or alcohol policies,”said Connor McKay, a 22-year-old Northeastern University senior and president of the campus chapter of Students for Sensible Drug Policy. “Colleges could and should at least accommodate students who need to use it.”
Saturday, August 16, 2014
The Miami Herald has this interesting new article discussing comments by former Florida Gov Jeb Bush concerning marijuana law and policy and the competing tensions created by state reforms and federal prohibition. The full headline of the piece provide a summary of its themes: "Jeb Bush conflicted over feds role in medical-marijuana enforcement; Former Gov. Jeb Bush is conflicted over the federal government’s role in medical-marijuana states and refrains from criticizing President Barack Obama over the issue." Here are excerpts:
Former Gov. Jeb Bush opposes Florida’s medical-marijuana initiative, but the potential GOP presidential candidate said he’s not sure if the federal government should enforce federal cannabis laws if the Sunshine State proposal passes.
Bush’s struggle with the state-federal split over medical marijuana reflects a broader struggle in the national Republican Party, where anti-drug hardliners are at odds with states-rights conservatives and libertarians over the issue.
Though a top Republican and frequent critic of President Obama, Bush refrained from repudiating the current White House’s position to de-emphasize enforcement of certain marijuana laws in the 20 states that have legalized medical cannabis, plus Washington D.C., and the two states that have completely legalized adult personal use of the drug, Colorado and Washington.
Asked Friday about the federal government’s role in prosecuting pot laws in medical-marijuana states, Bush said he’d have to give it more thought. “In medical marijuana states? I don’t know. I’d have to sort that out,” Bush said. “I think that states ought to have a right to decide these things. I think the federal government’s role in our lives is way too-overreaching.”
“But having said that,” he continued, “if you’re in Colorado and you can purchase marijuana openly, should people in Wyoming not be concerned about that? And I think there, maybe, the federal law needs to be looked at — interstate commerce.”
Bush made his comments in response to a reporter’s questions during a Homestead campaign stop for Gov. Rick Scott’s reelection. The day before, Bush issued a written statement urging Floridians to vote against the proposed constitutional amendment for medical marijuana. The amendment would allow physicians to recommend medical marijuana to people with “debilitating” medical conditions. Opponents say the measure is too broad; supporters say it’s designed to ensure that sick people get the care they need.
As a likely frontrunner for his party’s presidential nomination in 2016, Bush’s thoughts about marijuana have an added layer of significance because, if elected, his administration would have to decide whether it should continue the Obama policy in marijuana-decriminalization states.
“I think Jeb Bush is thinking about 2016 politics,” said Ben Pollara, director for the United for Care group that fought to get the medical-marijuana initiative, a proposed constitutional amendment, on the Florida ballot in November. Pollara pointed out that many of the big names who might run for president have nuanced views on medical marijuana.
“Rand Paul is more libertarian. Rick Perry has come out in favor of decriminalization. Chris Christie administers a medical-marijuana system in New Jersey,” Pollara said. “This is part of the more-libertarian strain. Jeb has presidential considerations to worry about.”...
Another potential GOP candidate, Florida Sen. Marco Rubio, also opposes the proposed constitutional amendment but said he supported low-THC medical marijuana therapy, which was called for in a bill that the Legislature passed this year and that Scott signed unexpectedly. The Legislature only took up that measure this year when the United for Care amendment was bound for the Florida ballot, where its chances of passage are good....
The medical marijuana constitutional amendment looks incredibly popular right now. Polls indicate that about 70 percent of voters back the proposed ballot language. It takes 60 percent voter approval to pass a constitutional amendment in Florida.
Support spans all demographic and partisan lines, but support is strongest among Democrats, including fundraiser and trial lawyer John Morgan, who employs Democratic gubernatorial frontrunner Charlie Crist and helped spearhead the United for Care initiative.
Wednesday, August 13, 2014
I haven’t blogged for a while, but I’ve been enjoying Doug’s and Alex’s and Rebecca’s posts over the summer.
After starting up several new projects over the summer, I’m finally able to begin blogging again. In my first few posts, I’m actually going to focus on one of the projects that consumed my summer time -- a symposium paper I’m writing tentatively called The Local Option for Marijuana. The paper asks whether states should allow local governments to ban marijuana sales, notwithstanding state legalization of the drug. Doug, Alex, and I have debated the merits of the local option before – see posts and comments here, here, and here. I think we identified most of the major arguments both for and against local control. But it also became clear to me that many of our arguments depended on contested assumptions about the effects of local control. For example, local control looks a lot less appealing if it simply displaces – rather than reduces – the harms associated with marijuana distribution (DUIs, etc.). But it’ll probably be decades before we can know with any certainty what happens when local communities ban vs. allow marijuana distribution. And that will simply be too late for most states, which must decide now whether to grant local governments the option of banning marijuana sales.
Fortunately, we do have decades of experience with local control of alcohol that could prove instructive. Since the mid-to-late 1800s, states have delegated power to local governments to control – even ban -- the distribution of alcohol. Indeed, hundreds of counties inhabited by roughly 10% of the nation’s population remain “dry” today. Social scientists have exploited county-by -county variations to test the effects of various local controls on alcohol consumption, cirrhosis, traffic fatalities, etc. In this article, I’m poring through that research for lessons about local control over marijuana. I have a few tentatively formed conclusions that I’ll share in the coming days. As always, I’m open to comments, critiques, and suggestions – sources, avenues of inquiry, etc.
August 13, 2014 in Current Affairs, History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
Thursday, August 7, 2014
Oregon, for now, decides to preclude medical marijuana patients from working at child care facilities
This local article from Oregon, headlined "State: Child care providers can't use medical marijuana," provides one example of a workplace restriction on licensed medical marijuana users. Here are the details:
A handful of child care providers who use medical marijuana will have to choose between their business and their medication following a unanimous vote Wednesday by the Early Learning Council. "Caring for children is not an entitlement; not when it's other people's children," said Duke Shepard, a policy adviser for Gov. John Kitzhaber.
At the governor's request, the council imposed temporary changes to its registry rules, revoking permission to hold child care licenses from individuals who use, grow or distribute medical marijuana.
"You don't make these kinds of requirements for people who are using Vicodin," said Anthony Taylor, who runs a medical marijuana patient advocacy group called Compassionate Oregon. His sentiments of being singled out by the council were echoed by a steady stream of public commentators who asked the council to reject the new rules or delay a vote.
Oregon has 4,340 licensed child care providers. A preliminary review by the Child Care Office estimated that fewer than 10 of those facilities employed a medical marijuana cardholder. "This is a small, small fraction of people," Shepard said.
The rules passed Wednesday are set to expire in six months. The council plans to consider writing permanent rules in January. Permanent rule making requires a longer process that includes time for public comment, and Oregonians will vote in November on an initiative to legalize recreational marijuana.
In-home child care providers are allowed to keep alcohol on site so long as they follow certain safety precautions. The council could eventually land on similar regulations for marijuana. "I don't know what's a possibility for permanent rules," council chairwoman Pam Curtis said.
It was also unclear whether some council members would support a permanent prohibition on medical marijuana. "Whether we've got it right in this document remains to be seen," council member Norm Smith said. "This is the starting place. That's why I will support it today, but I don't know where I will be in six months."
The temporary rules prohibit providers from having cannabis on their premises — effectively prohibiting family members or roommates who reside at in-home facilities from using medical marijuana. This was a point of concern for some council members who hoped to discuss the issue further when the permanent rule making process begins.
Monday, July 28, 2014
As detailed via this report from the folks at Quinnipiac University, the latest polling numbers suggest Florida voters are keenly in support of marijuana reform. Here are the basics concerning a state seemingly poised to bring marijuana reform movement into the south:
Florida voters support legalized marijuana for medical use 88 - 10 percent, with support ranging from 83 - 14 percent among voters over 65 years old to 95 - 5 percent among voters 18 to 29 years old, according to a Quinnipiac University poll released today. The lowest level of support is 80 - 19 percent among Republicans, the independent Quinnipiac University poll finds.
Sunshine State voters also support 55 - 41 percent "allowing adults in Florida to legally possess small amounts of marijuana for personal use," or so-called "recreational marijuana." There is a wide gender gap and an even wider age gap: Men back recreational marijuana 61 - 36 percent while women back it by a narrow 49 - 45 percent. Voters 18 to 29 years old are ready to roll 72 - 25, while voters over 65 years old are opposed 59 - 36 percent. Support is 64 - 32 percent among Democrats and 55 - 40 percent among independent voters, with Republicans opposed 56 - 41 percent.
"Forget the stereotypes of stodgy old folks living out their golden years playing canasta and golf," said Peter Brown, assistant director of the Quinnipiac University poll. "Almost nine- in-ten Floridians favor legalizing medical marijuana and a small majority says adults should be able to possess small amounts of the drug for recreational purposes.
"Even though a proposal to legalize medical marijuana, on the ballot this November, must meet a 60 percent threshold, these numbers make a strong bet the referendum is likely to pass," said Peter Brown, assistant director of the Quinnipiac University poll....
If medical marijuana is legalized in Florida, voters say 71 - 26 percent they would support having a marijuana dispensary in the town or city where they live. Support ranges from 57 - 37 percent among voters over 65 years old to 79 - 21 percent among voters 18 to 29 years old.
July 28, 2014 in Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Friday, July 25, 2014
Rand Paul amendment to block certain federal prosecutions in medical marijuana states would raise interesting legal questions
Senator Rand Paul has filed an amendment to a jobs bill that would protect patients and physicians from federal prosecutions in states with medical marijuana laws. Unlike the spending amendment that passed the House earlier this year (which Paul and Cory Booker also introduced in the Senate), this proposal would have a very real legal impact. I think it would also raise some interesting legal questions, if it were to pass (which I suspect is unlikely.)
Paul's proposal provides (in relevant part):
(a) State Medical Marijuana Laws.--Notwithstanding section 708 of the Controlled Substances Act (21 U.S.C. 903) or any other provision of law (including regulations), a State may enact and implement a law that authorizes the use, distribution, possession, or cultivation of marijuana for medical use.(b) Prohibition on Certain Prosecutions.--No prosecution may be commenced or maintained against any physician or patient for a violation of any Federal law (including regulations) that prohibits the conduct described in subsection (a) if the State in which the violation occurred has in effect a law described in subsection (a) before, on, or after the date on which the violation occurred[.]
Tuesday, July 22, 2014
"Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination"
The title of this post is the title of this notable new student Note by Elizabeth Rodd now available via SSRN. Here is the abstract:
Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use — either recreational or medicinal — remains illegal under the Federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana.
To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state-sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.
Thursday, July 17, 2014
This Salon interview with Evan Nison of the New York Cannabis Alliance about the process of finally passing a law permitting the use of medical marijuana in New York state reminded me of that old saying about laws and sausage
Here's an excerpt to support that conclusion :
In terms of the negotiation and lobbying process, who in Albany did you work with, primarily — was it the Senate or the governor’s office or both?
Almost the entire time — the five-plus years I was working on the bill — was focused on the Senate. That’s because, for the majority of the time, it was run by the Republicans and then eventually the “independent” Democrats. The assembly was great throughout the whole process and passed the bill multiple times just this past year. The governor’s office was fairly silent on it, maybe even more of a hazard than anything throughout most of the process until the very tail end. Something else that was interesting to note was that we had the votes in the Senate for maybe a year and a half or two years before the vote was brought to the floor. And we had the votes in the Senate to pass the broader version before Cuomo amended it. It was really just a matter of the Senate leadership not bringing the vote to the floor, but the support was there in the legislature to pass this years ago.
When asked if New York could be characterized as a national leader, Nison stated that " New York is following rather than leading, at this point in time" but prefers a comparison to Prohibition rather than sausagemaking:
New York was a leader in repealing alcohol prohibition and I think, hopefully, we can do that again. But … we’re the 23rd state [to do this] and although we’re a landmark state, we’ve certainly haven’t been a leader on this issue yet.
NYers-cross your fingers...
[Note-To comply with the US Supreme Court's fair use ruling in Harper & Row v Nation Enterprises, I am omitting the juicy discussion of Governor Cuomo's role in enacting the New York law].
Tuesday, July 15, 2014
The title of this post is the headline of this new Huffington Post piece. Here is how it starts:
The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.
The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."
Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.
July 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (1)
Friday, July 11, 2014
Mixed results for defendant in WA medical marijuana appeal involving recommendations on "non tamper resistant" paper
Though recreational marijuana stores opened in Washington this week, its medical marijuana laws are likely to be kicking around the courts for at least a little while longer. And a recent Washington appeals court decision (PDF) indicates that defendants who did not very carefully abide by the relevant legal requirements may be out of luck.
The case involves a college student providing medical marijuana to a series of patients by having each one temporarily designate him as their medical marijuana provider. Consistent with an earlier ruling, the appeals court held that this practice was permitted by the law. As a result, it overturned two of the defendant's convictions. It upheld three other convictions, however, where the defendant sold marijuana to an informant with a fake recommendation that was not on tamper resistent paper.
From the court's opinion:
The delivery charges relate to the sales to the confidential informant. Markwart does not dispute that the authorization the informant showed was not on tamper resistant paper. To establish the affirmative defense, a person must meet the criteria for status as a designated provider and present his "valid documentation" to any law enforcement official who questions him. Former RCW 69.51A.040 (LAWS OF 2007, ch. 371, § 5). Valid documentation required a statement signed by a health care professional "on tamper-resistant paper." Former RCW 69.51A.OI0(7)(a).
Tyler Markwart argues the trial court should have permitted him the opportunity to argue to the jury that providers may reasonably rely on documentation presented by a patient. We find no case that implies the medical marijuana provider 'may rely on the patient to present the obligatory documentation. We find no case that waives the requirement that a medical marijuana provider insure that the authorization be on special paper. Further, Markwart's argument conflicts with the statute. MUMA expresses an intent that the provider ascertain the qualifications of the patient. The citizens of Washington, when adopting MUMA, and the state legislature, when enacting amendments, necessarily considered tamper resistant paper critical in the delivery of medical marijuana. The citizens and legislators understood the ease by which authorizations could otherwise be forged. If Tyler Markwart did not know what constituted tamper resistant paper or was unable to detect the special form of paper, he should not have been in the business of selling medical marijuana. He should have educated himself, before making any sales.
Tuesday, July 8, 2014
Yesterday, Americans for Safe Access released this detailed new report (PDF) on state medical marijuana laws. Among its many helpful features is a chart with a comprehensive state-by-state comparison of the conditions for which a patient can obtain medical marijuana (on page 6.) It is sure to be helpful for legal researchers and medical marijuana patients alike.
From the report's introduction:
Until recently, counting medical cannabis states boiled down to a ”yes or no” analysis – either a state had some kind of medical cannabis law, or it did not. That simple analysis is no longer enough to understand the evolving landscape for medical cannabis in the United States. The laws are simply too different, and not all function as intended. At Americans for Safe Access (ASA), the nation’s leading medical cannabis patients’ advoca- cy organization, we have more than a dozen years of experience in state policy devel- opment and implementation. Our experience shows that not all medical cannabis laws are working equally for the patients they were designed to serve. We need a new way to talk about and evaluate state medical cannabis laws.
The report also gives each state a "grade," calculated by looking at a wide range of factors--from the extent to which the law protects patients from arrest to whether the state ensures consumer safety by requiring testing and labeling of medical marijuana. From the report:
After hosting scores of community forums across the U.S. to obtain input from patients on what issues are most important to them, ASA created a matrix to deconstruct med- ical cannabis laws in order to evaluate and grade each component based on patient needs.
So, which state has the best medical marijuana law (in ASA's estimation)? Maine comes out on top with a "B" (and a point score of 339). The only other state to get a "B" grade was Rhode Island, though California and Washington each get a "B-".
Disclosure: I currently serve on ASA's Board of Directors, though I was not involved in the writing of ASA's new report.
Tuesday, July 1, 2014
The question in the title of this post is prompted by this Denver Post article headlined "Lawmakers in 11 states approve low-THC medical marijuana bills." Here are excerpts:
Spurred by the stories of epileptic children being treated in Colorado with cannabis oil, lawmakers across the country this year have made a dramatic change in how they talk about marijuana.
Thus far, nine states have passed laws legalizing either the use of non-psychoactive marijuana extracts for medical treatment or the study of such products. The slate of states — Alabama, Florida, Iowa, Kentucky, Mississippi, South Carolina, Tennessee, Utah and Wisconsin — reads in part like a list of states previously most resistant to changes in marijuana laws. In another two states, Missouri and North Carolina, the legislatures have passed bills that need only a signature from the states' respective governor.
Advocates both for and against changes to marijuana policies continue to debate whether the laws will have any practical impact. But the new laws represent an ongoing rebellion of states from the federal government's current position that marijuana has no accepted medical use.
"I think it validates this as medicine," said Paige Figi, one of the founders of the Realm of Caring, which gained fame in a pair of CNN documentaries for producing non-psychoactive marijuana oil. Figi's daughter, Charlotte, suffers from severe epilepsy, but she has received relief by using an extract made from marijuana plants that is high in a chemical called CBD and low in the psychoactive component of marijuana, THC. The most famous variety of marijuana from which the oil is made, Charlotte's Web, is named after Charlotte Figi. "It's very important, these little baby steps with CBD bills," said Paige Figi, who has testified in support of several of the bills.
Conclusive research on the efficacy of CBD to treat epilepsy or other conditions is still in the works, but its potential has generated tremendous interest among parents whose children's seizures are not controlled by current medicines. Hundreds of families have moved to Colorado for the oil, which is currently available only through the state's medical marijuana system.
While all of the new laws across the country embrace the possible therapeutic use of CBD, they vary widely in the details. Laws in Florida and the pending bill in Missouri would allow CBD-rich marijuana to be grown in those states. Others legalize possession of CBD but don't specify a source. Some require universities to produce or supply CBD, while others — such as Alabama's — allow only research programs.
Those limitations mean traditional marijuana reformists have kept the laws at arm's length, worried about forestalling bigger changes while simultaneously supporting the sentiment behind the laws. "The bills are so limited and drafted in a way as to likely be practically and legally impossible to implement and therefore will be symbolic only," Tamar Todd, a senior staff attorney with the Drug Policy Alliance, wrote in an e-mail. Figi, who said she supports broader medical marijuana legalization, said the laws could be a "stepping-stone" to laws that would allow treatment for more conditions.
Those opposed to medical marijuana legalization have likewise approached the bills with ambivalence. Kevin Sabet, who works with the national group Smart Approaches to Marijuana, said no one wants to keep parents from accessing treatment that may help their children. But, he said, the new laws may offer false hope to patients and said the safer solution is for federal regulators to allow more controlled trials of marijuana-derived pharmaceuticals.
One such trial has about 300 patients across the country. A preliminary study of a handful of those patients suggested a CBD medicine could be effective in treating seizures — similar to other surveys that have found many, but not all, patients using CBD-rich marijuana like Charlotte's Web have seen a benefit. "Simply saying we can solve the issue by passing legislation allowing one to go to Colorado, buy CBD from who knows where, and come back to your home state is not a sustainable solution," Sabet wrote in an e-mail....
Figi said the need for high-CBD treatment is urgent, citing the more than 9,000 names on a wait list for Charlotte's Web. The Realm of Caring plans to produce more oil this year under the Colorado Department of Agriculture's hemp program. That's possible because the program defines hemp — the taxonomic twin of marijuana — only as low in THC.
I share Paige Figi's perspective that the CBD bills being passed in many states are an important first step toward broader reform. Moreover, given the significant (and potentially problematic) variation in CBD bills in all these states, I think marijuana reform advocacy groups would be wise to consider drafting and promoting a "best practices" low-THC reform bill that could be embraced by these states and others. Especially if one goal of reformers is to get the feds to take marijuana off Schedule 1 of the DEA's list of prohibited drugs, then getting more states to enact CBD bills ought to be an important means to that eventual end.
Friday, June 27, 2014
Oregon joins Alaska and Florida as states for marijuana reformers to watch extra closely in campaign 2014
As reported in this Christian Science Monitor article, headlined "Marijuana: Oregon and Alaska could be next to legalize recreational use," a submission of petition signatures yesterday in the Beaver State now seems to make likely that at least three states will have significant marijuana reform initiatives before voters in November 2014:
While the fight is heating up in Florida over a ballot measure to legalize medical marijuana, voters in Oregon and Alaska will decide whether to join Colorado and Washington in legalizing recreational use.
If marijuana advocates have their way, the number of states where recreational pot is legal could double this year. On the November ballot in Oregon and Alaska are measures allowing the sale of recreational marijuana to adults. If those initiatives pass, the two states would join Colorado and Washington in legalizing cannabis.
Meanwhile, Florida voters will decide on a constitutional amendment legalizing the use of marijuana for medical purposes. That would make it the 24th state, plus the District of Columbia, to legalize medical marijuana.
In Oregon Thursday, supporters of marijuana legalization turned in 145,000 signatures – far more than the 87,213 valid signatures of registered voters necessary to qualify as a ballot initiative. “The Control, Regulation and Taxation of Marijuana and Industrial Hemp Act strictly regulates marijuana sales and possession,” according to New Approach Oregon, the advocacy group that submitted signatures to the Oregon secretary of state. “It legalizes the use of marijuana by adults only and taxes marijuana and its products to generate money for education, public safety, drug treatment, and drug prevention.”
Initiative Petition 53, as the measure is also known, would allow adults to possess up to eight ounces of marijuana and up to four plants. Sales would be subject to a flat tax of $35 per ounce for marijuana flowers, $10 per ounce of marijuana leaves, and $5 per immature cannabis plant....
In Alaska, a November ballot measure would legalize the adult possession of up to one ounce of cannabis as well as the cultivation of up to six plants (three flowering) for personal consumption, according to “The Daily Chronic,” a newspaper produced by marijuana reform activists. It would also allow for the establishment of licensed, commercial cannabis production and retail sales of marijuana and marijuana-infused products to those over the age of 21....
Polls show a majority of Floridians support medical marijuana legalization, but constitutional amendments need a 60 percent majority in order to pass. Still, a Quinnipiac University poll last month showed 88 percent support for allowing adults to legally use marijuana for medical purposes, if a doctor prescribes it. By a smaller 53-42 percent majority, Florida voters support allowing adults to legally possess small amounts of marijuana for personal use, according to this poll.
While proponents of the referendum got a head start in fundraising, deep-pocketed Republicans have since jumped into the battle. The Drug Free Florida campaign, which opposes the amendment, has raised $2.7 million, including a $2.5 million contribution from Las Vegas casino magnate Sheldon Adelson, a major Republican donor. Earlier this month, the nonpartisan Florida Sheriffs Association began a separate “educational campaign” against the amendment....
The Florida amendment is also enmeshed in the hot race for governor. Republican Gov. Rick Scott opposes it, while former GOP Gov. Charlie Crist, who is seeking to return to the office as a Democrat, supports it.
Friday, June 20, 2014
As reported in this New York Times article, "Gov. Andrew M. Cuomo and legislative leaders announced an agreement on Thursday for a pilot program to provide access to marijuana to sick New Yorkers, making the state one of the largest to embrace the drug’s use as medicine." Here is more:
The announcement came after days of intense negotiations between the Legislature and Mr. Cuomo, a Democrat, who had proffered a more restrictive system earlier this year that was roundly criticized as unworkable for thousands of potential patients.
The new agreement included a major demand of the Cuomo administration: that no smoking of the drug would be permitted, though a variety of other options — including edibles and tinctures — would be. Patients would also be allowed to inhale if the drug was vaporized, similar to e-cigarettes.
“There are certainly significant medical benefits that can be garnered; at the same time, it’s a difficult issue because there are also risks that have to be averted,” Mr. Cuomo said, mentioning safety and law enforcement concerns. “We believe this bill strikes the right balance.”
The State Health Department would oversee the program, which would contain a provision to “pull the plug” on it at any time, Mr. Cuomo said. He called that necessary to protect public health and public safety, adding that it “increases my comfort level a great deal.”
A small number of diseases would qualify patients for medical use, including AIDS, cancer, epilepsy and several serious degenerative conditions.
A few weeks ago, the House passed an amendment to the Department of Justice's budget bill that would restrict it from using funds to prevent states from implementing their own medical marijuana laws. As I discussed at the time, I think the vote was incredibly significant politically, though the text of the amendment itself is actually quite narrow.
One of the key questions has been whether the amendment would gain any traction in the Senate. Yesterday, news came that Senator Rand Paul has introduced the amendment and Cory Booker will has signed on as a co-sponsor. It appears the vote will be coming soon (possibly today). It will be very interesting to see how it plays out.