Friday, March 7, 2014
A few weeks back, I asked whether medical and recreational marijuana can co-exist in Washington. It looks like the tensions are only growing. The New York Times has this interesting piece on the concerns of some medical marijuana advocates about the implementation of Washington's marijuana legalization law. The whole piece is worth a read, here is how it starts:
There should be, one might think, a note of triumph or at least quiet satisfaction in Muraco Kyashna-tocha’s voice. Her patient-based cooperative in north Seattle dispenses medical marijuana to treat seizures, sleeplessness and other maladies. And with the state gearing up to open its first stores selling legal marijuana for recreational use, the drug she has cultivated, provided to patients and used herself for years seems to be barreling toward the mainstream.
But her one-word summary of the outlook for medical marijuana is anything but sunny: “Disastrous,” she said, standing in her shop, Green Buddha, which she fears she will soon have to close.
The legalization of recreational marijuana for adults in Washington, approved by voters in 2012 and now being phased in, is proving an unexpectedly anxious time for the users, growers and dispensers of medical marijuana, who came before and in many ways paved the way for marijuana’s broader acceptance.
Thursday, March 6, 2014
As reported in this lengthy local article, headlined "Conservative committee opens door to medical marijuana for Florida," a notable swing/southern state now has a number of notable legislators talking in notable ways about marijuana reform. Here are excerpts:
One conservative Republican who has suffered from brain cancer talked about the deceit of the federal government in hiding the health benefits of marijuana for his cancer. Another legislator reluctantly met with a South Florida family, only to be persuaded to support legalizing the drug.
Then there was Rep. Charles Van Zant, the surly Republican from Palatka who is considered the most conservative in the House. He not only voted with his colleagues Wednesday to pass out the bill to legalize a strain of marijuana for medical purposes, he filed the amendment to raise the amount of psychoactive ingredients allowed by law — to make it more likely the drug will be effective.
The 11-1 vote by the House Subcommittee on Criminal Justice, was a historic moment for the conservatives in the GOP-dominated House. It was the first time in modern history that the Florida Legislature voted to approve any marijuana-related product. “That’s because people here in Tallahassee have realized that we can’t just have a bumper-sticker approach to marijuana where you’re either for it or against it,” said Rep. Matt Gaetz, R-Shalimar, the committee chairman and sponsor of the bill after the emotional hearing. “Not all marijuana is created equally.”
The committee embraced the proposal, HB 843, by Gaetz and Rep. Katie Edwards, D-Plantation, after hearing heart-wrenching testimony from families whose children suffer from chronic epilepsy. A similar bill is awaiting a hearing in the Senate, where Senate president Don Gaetz, a Niceville Republican and Matt’s father, has said he has heard the testimony from the families and he wants the bill to pass as a first step. “Here I am, a conservative Republican but I have to try to be humble about my dogma,” Senate President Don Gaetz told the Herald/Times....
For a committee known for its dense, often tedious scrutiny of legal text, the debate was remarkable. Rep. Dave Hood, a Republican trial lawyer from Daytona Beach who has been diagnosed with brain cancer, talked about how the federal government knew in 1975 of the health benefits of cannabis in stopping the growth of “brain cancer, of lung cancer, glaucoma and 17 diseases including Lou Gehrig’s disease” but continued to ban the substance. “Frankly, we need to be a state where guys like me, who are cancer victims, aren’t criminals in seeking treatment I’m entitled too,” Hood said.
Rep. Dane Eagle, R-Cape Coral, said he had his mind made up in opposition to the bill, then changed his mind after meeting the Hyman family of Weston. Their daughter, Rebecca, suffers from Dravet’s Syndrome. “We’ve got a plant here on God’s green earth that’s got a stigma to it — but it’s got a medical value,” Eagle said, “I don’t want to look into their eyes and say I’m sorry we can’t help you,” he said. “We need to put the politics aside today and help these families in need.”
The Florida Sheriff’s Association, which adamantly opposes a constitutional amendment to legalize marijuana for medical use in Florida, surprised many when it chose not to speak up. Its lobbyist simply announced the group was “in support.” The bi-partisan support for the bill was summed up by Rep. Dave Kerner, a Democrat and lawyer from Lake Worth. “We sit here, we put words on a piece of paper and they become law,” he said. “It’s very rare as a legislator that we have an opportunity with our words to save a life.”
The only opposing vote came from Rep. Gayle Harrell, R-Stuart, an advocate for the Florida Medical Association. Her husband is a doctor. She looked at the families in the audience and, as tears welled in her eyes, she told them: “I can’t imagine how desperate you must be and I want to solve this problem for you.” But, she said the bill had “serious problems.” It allowed for a drug to be dispensed without clinical trials and absent the kind of research that is needed to protect patients from harm. “I really think we need to address this using science,” Harrell said, suggesting legislators should launch a pilot program to study and test the effectiveness of the marijuana strain. “This bill takes a step in the right direction … but it’s not quite there.”
Cross-posted at Marijuana Law, Policy and Reform
Friday, February 21, 2014
Last week, Rob posed an interesting question: should states reform marijuana laws through ballot measure or legislation. As his post notes, recent state medical marijuana laws have come mostly in the form of legislation. Earlier reforms were mostly by ballot measure.
Of course, the ballot measure model has been a matter of political necessity to a large degree. It took a string of ballot measure victories to begin to convince politicians that supporting medical marijuana might actually be a smart political move.
If marijuana legalization is going to follow a different path, with greater reliance on legislative reform, politicians will need to be quicker to embrace the issue than they were with medical marijuana.
This brings me to a notable development, noted by Toke of the Town today. It appears that all of the Democratic candidates for governor have come out (in some form or another) for marijuana law reform. Most interesting to me, the most recent candidate to do so cited his belief that legalization may now be inevitable in explaining his position:
Maryland Attorney General Doug Gansler this week told the Baltimore Sun that he feels the legalization of cannabis is going to happen, and that as governor he would ensure laws are implemented "the right way" if such a change were to happen while he is in office.
If this idea takes hold in the political world--that marijuana legalization is inevitable--I think we may start to see marijuana legalization by legislation happen much more quickly than we did for medical marijuana.
Of course, whether that is a good thing or not--Rob's question--is a different story. All things being equal in terms of substance, I think reform by legislation is better than by ballot measure for many of the reasons Rob points out.
The catch is that reforms by the legislature may tend to be much more cautious than by ballot measure. In the case of Maryland, the AG says he wants to make sure it is implemented "the right way." If I had to guess, I would imagine the Maryland AG's thinking about "the right way" would involve a much more restrictive law than what we see in Colorado and Washington.
Chris Christie said much the same thing about medical marijuana in New Jersey, for example. The result is a medical marijuana law that, at least some advocates say, doesn't seem to be really serving its purpose:
Patients in need of medical marijuana in more than half the state have a tough time getting the drug because the program is too bureaucratic, too expensive and few doctors are willing to participate, patient advocates and a dispensary owner told a state legislative committee today.
To be sure, it could be that some legislatures would enact reforms that are as good or better (in terms of substance) than what we would get from a ballot measure. And the flexibility that reform via the legislature provides is a big plus, as Rob discusses.
But, there is the possibility that (at least in some states) the question facing advocates going forward may be whether it is better to have very modest reform by legislation or more robust reform by ballot measure.
Wednesday, February 19, 2014
For some time, we have put mind-altering substances into one of three boxes: (1) acceptable for recreation (e.g., alcohol and tobacco), (2) acceptable for use as a medicine but for no other use (e.g., substances in Schedules II through V of the CSA) or (3) not acceptable for any use (e.g., all Schedule I substances.) Kimani Paul-Emile wrote an interesting article (PDF) discussing this, and advancing an alternative framework for thinking about drug control, a few years back.
There isn't a lot of modern precedent for a substance regulated under the law for both medicine and recreation. (Of course, there was medicinal alcohol during prohibition. But after repeal, interest in alcohol as a medicine faded pretty fast.)
With evidence of marijuana's value as a medicine only mounting as time goes on, it doesn't seem likely that interest in the medical use of marijuana will vanish anytime soon. And so, as marijuana legalization takes hold, regulating the medicinal and recreational uses of marijuana may pose difficult legal and policy challenges.
In Colorado, legalization left medical marijuana largely untouched (at least in terms of legal regulation). Recreational pot stores have one "menu" and set of prices for registered medical patients and a different "menu" for recreational buyers (with medical marijuana subject to less tax and, as a result, cheaper). Colorado already had a robust set of medical marijuana regulations, which may have helped the state implement this system. So far, Colorado medical marijuana patients seem to be OK with how things are going.
Washington is a different story. There, the State's pre-legalization medical marijuana law was much more open-ended. And, as a result, regulators and lawmakers have been struggling over what to do about medical marijuana now that they are implementing legalization.
Earlier this week, Washington state legislators passed a measure that would bring medical users into the recreational system. And so far, medical marijuana patients do not seem happy about the development.
Jacob Sullum has the story at Forbes:
Last night the Washington House of Representatives approved a bill that would abolish medical marijuana dispensaries, a.k.a. “collective gardens,” and impose new restrictions on patients who use cannabis for symptom relief. H.B. 2149, which passed by a vote of 67 to 29, would thereby eliminate some of the unregulated competition for the state-licensed pot stores that are expected to start opening this summer under I-502, the legalization initiative that Washington voters approved in November 2012. Supporters of the bill, which was introduced by Rep. Eileen Cody (D-West Seattle), hope that banning dispensaries will help maximize tax revenue and mollify the feds.
The bill requires patients to buy their cannabis from the same stores that serve recreational customers, which would be the only legal sellers of medical marijuana as of May 1, 2015, when the provision allowing collective gardens would be repealed. Patients could continue to grow marijuana for their own use, but the maximum number of plants would be reduced from 15 to six (three of them flowering). The ceiling on possession by patients would be cut from 24 ounces to three. The bill instructs the state Department of Health, together with the Washington State Liquor Control Board (which is charged with regulating marijuana growers, processors, and retailers), to produce a report by November 15, 2019, on the question of whether it is appropriate to continue allowing home cultivation.
Tuesday, February 18, 2014
As I noted Friday, the Treasury Department just issued new guidance designed to make it easier for banks to serve state-authorized marijuana businesses. In a less-noticed move, the DOJ also issued new guidance urging federal prosecutors not to pursue financial crimes charges against marijuana businesses outside of the circumstances outlined in its August 2013 memo regarding drug crimes. The Treasury guidance and new DOJ memo can be found here.
Banks have long refused to serve the marijuana industry, citing, among other reasons, federal statutes that criminalize financial transactions involving proceeds of illegal activity, including marijuana sales. Sam Kamin and Joel Warner discuss the banking issue here.
Now, I doubt this new guidance will convince many banks to serve the marijuana industry. Among other things, and as I explained in a paper critical of the DOJ’s first marijuana enforcement guidelines (the 2009 Ogden memorandum), such guidance does not shield banks from all of the relevant federal sanctions that serving marijuana businesses might trigger.
But if banks DO end up serving marijuana businesses, it might give a boost to state and federal efforts to police the marijuana industry. In particular, banks could help government officials determine whether the marijuana industry is violating state law and / or engaging in behavior that would justify federal legal action under those 2013 DOJ enforcement guidelines (e.g., selling to minors).
Here’s how. Federal law requires banks to monitor and report on the financial transactions of their clients. Under federal law, for example, banks are required to file “Suspicious Activity Reports” anytime they know, suspect, or have reason to suspect a client is engaging in a financial transaction involving proceeds of illegal activity. The government then uses these SARs to investigate and prosecute federal crimes committed by the clients.
Importantly, the bulk of the new Treasury guidance is actually devoted to reaffirming and clarifying the duty of banks to file SARs on clients engaged in the marijuana industry. It makes abundantly clear that a “financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) . . . if, consistent with FinCEN regulations, the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution . . . involves funds derived from illegal activity.” (emphasis added)
To be sure, the reporting requirement could simply overwhelm government agents, since every transaction involving a marijuana business might trigger a new report. Indeed, federal agents are already deluged with SARs; in 2009, for example, banks submitted more than 700,000 SARs (banks in Colorado and Washington submitted more than 17,000 SARs), far too many for the government to investigate them all.
But the new Treasury guidance instructs banks to distinguish between good and bad marijuana businesses. Namely, if a bank believes a marijuana business is abiding state law and avoiding activities the federal government considers objectionable (e.g., selling across state lines), the bank may file an abbreviated SAR, simply by writing “MARIJUANA LIMITED” in the notations section of the report. But if the bank believes the business is flouting state law or engaging in one of those objectionable activities, it is supposed to file more detailed SAR, writing “MARIJUANA PRIORITY” in the notations section and explaining why the bank believes the business deserves closer scrutiny.
The information provided on these SARs could greatly enhance the efforts of federal and state enforcement agencies to police the marijuana industry. Banks won’t necessarily have perfect information about their clients, but they will often possess information that government agencies cannot realistically gather on their own. Indeed, as I’ve discussed at length elsewhere, governments commonly use private parties to gather information they need to enforce their regulations; e.g., without the W-2s filed by employers, the IRS would struggle (mightily) to collect individual income taxes. And requiring banks to further distinguish between law-abiding and law-shirking marijuana business greatly enhances the utility of this information for government agencies.
Knowing that banks will share information with the federal government could have a powerful deterrent effect on marijuana businesses. These businesses need bank services – try operating any business without a checking account, for example. But if they misbehave, banks will shun them, or worse yet, report their misbehavior to the feds. To be sure, some misbehaving businesses will simply avoid the banks altogether. But those businesses will be put at a serious competitive disadvantage vis a vis their more law abiding rivals.
In sum, if the guidance works (a big if), marijuana businesses will get access to banking services; banks will expand their market; and government agencies will get a new watchdog to help police the marijuana industry. Looks like a win win win.
February 18, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
A helpful colleague alerted me to this interesting article discussing why one Colorado doctor has become a vocal opponent of modern marijuana reforms:
A Libertarian pot advocate turned opponent, Dr. Christian Thurstone, is at ground zero in the marijuana legalization battle. The medical director of a large Colorado youth drug treatment clinic; an associate professor of psychiatry at the University of Colorado, Denver; and one of a small number of doctors board certified in general, child and adolescent and addictions psychiatry, he has unique insight into the marijuana momentum sweeping the nation.
Thurstone believes that marijuana legalization is a disaster in the making. He is not shy about saying so. His experience with Colorado toe-in-the-water legalization of marijuana for medical purposes was his epiphany.
He noticed back in 2009, when Colorado began providing "medical" marijuana for its residents, that his clinic's clientele tripled: 95% of his patients came for marijuana addiction. He learned from his teenage clients that "medical" marijuana was easy to score on the streets. But the potency was increasing from medical grade. Soon his young clients would tell him how marijuana was their preferred medicine for relieving stress and anxiety.
Eventually, these young addicts came in with "medical" marijuana licenses. It was at this point Thurstone felt he needed to act. He wrote a piece for the Denver Post criticizing medical marijuana laws in January 2010 titled "Smoke and Mirrors: Colorado Teenagers and Marijuana." Thurstone made some fighting points. "What Colorado has created is a backdoor way to legalize marijuana, and it has done so in a manner that makes a mockery of responsible medicine," he wrote....
Five years later Thurstone continues his crusade. During an interview on Denver's KUSA television station in January, Thurstone was quoted as saying, "We're seeing a lot more patients, a lot more youth coming to treatment for marijuana addiction....If somebody tries marijuana before the age of 18, one in six develops an addiction to the drug. If someone waits until after 18, the number is more like one in nine."
"We have good reason to believe from both animal and human studies that exposure to marijuana during this important time of brain development can permanently change the way the brain develops," he added. "We have good evidence showing that marijuana exposure in adolescents confers up to an eight-point drop in IQ from age 13 to 38. We know that youth who use marijuana are two times more likely to develop psychosis as young adults."
Predictably, the pro-pot people have skewered him. They have questioned his knowledge, his competence and just about everything else. But Thurstone's critics do make some salient points when they refer to studies by the CDC in 2012 and another by economists at the University of Colorado, Denver and Montana State University in 2011 that indicate marijuana use among teens declined in Colorado after the passage of the comprehensive medical marijuana laws.
Thurstone criticized the studies. Still they are strong evidence in opposition to him. The debate will continue to rage on, and Thurstone will continue his campaign. He is, after all, a convert who went from being in favor of legalizing pot to opposing it.
I find this article and Dr. Thurstone's perspective quite interesting for a number of reasons, especially because it highlights how one's distinct type of involvement with marijuana use and abuse can (unduly?) influence one's views on the benefits and costs of legal reform. I do not doubt Dr. Thurstone's representation that he has a lot more teenage clients seeking help for marijuana addiction, but I do wonder if that reality is evidence of greater teen use of marijuana or just greater willingness of teens (and their parents) to seek treatment for marijuana problems now that involvement with marijuana is not longer treated as a serious criminal justice concern by the state.
Relatedly, though I am not surprised to hear a doctor express concern about hearing teens say that marijuana has become a "preferred medicine for relieving stress and anxiety," I still wonder if there is obviously a better "medicine" for this purpose. Most adults use alcohol to relieve stress and anxiety, but I doubt society wants most kids to instead try that form of self-medication. In addition, big Pharma makes big money marketing to doctors and patients a bunch of prescription drugs to deal with stress and anxiety, but I am not aware of any strong evidence that the solutions to stress and anxiety peddled by big Pharma are ideal for teens, either.
I make these points not to assert that Dr. Thurstone is misguided to be concerns about teenage marijuana use, but rather just to encourage broader reflection on whether the problems and concerns he identifies have been made worse by marijuana reform or rather have just become more visible to him.
Tuesday, February 11, 2014
Though I think we may be nearing the point of inevitability when it comes to marijuana legalization, we aren't there yet. There's a chance that as things move forward, we will see a backlash that reverses the current trend.
If I had to pick issues that could potentially cause such a backlash, the risks of marijuana candies would be near the top of the list. And for good reason. Marijuana candies pose serious policy concerns.
Products that are packaged like and taste like candy can be easily mistaken as regular candy. And we all know who loves candy--kids. Perhaps just as important, many marijuana candies contain so much marijuana that the suggested serving size may be 1/4 or 1/10 of the candy. This is particularly odd when one considers that some of these candies come in the form of a single gummy bear or bon-bon style sweet. When most people see a single gummy bear or bon bon, they assume they should eat the whole thing. But if you were to eat an entire marijuana gummy in one serving, you could end up high out of your mind.
Two new New York Times pieces discuss this problem. In one, a mother recounts how her son had to go to the emergency room after eating a roommate's marijuana candy bar. In the other, the writer begins: "This is not what I thought marijuana looked like."
Those of us who favor marijuana legalization would be wise to take these concerns very seriously. There are real public health and safety risks that come from people--particularly children-- accidentally ingesting super-strong marijuana candies (or ingesting on purpose, but without realizing that one gummy is meant to be consumed in four servings.)
In terms of the politics, I think the "this is not what I thought marijuana looked like" sentiment is particularly noteworthy. I suspect that many voters who supported legalization in Colorado and Washington had no idea that it might result in the sale of sophisticated candies (or even that such candies were even possible.) And if enough of the folks in this group don't like what they see when they learn about marijuana candy, it is entirely possible they might sour on legalization generally.
To be sure, I don't think we are anywhere near seeing a political backlash because of this issue. But marijuana advocates would be foolish to ignore the possibility of one developing.
February 11, 2014 in Current Affairs, Food and Drink, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, February 10, 2014
With so many medical marijuana state laws and a wave of new proposals, it can be difficult to follow them all. Luckily, last week saw the release of two guides to help you keep track.
The Marijuana Policy Project has released an update to its state-by-state guide to marijuana laws.
And, for the reforms on the horizon, John Ross of Reason.com has posted "a 50-state guide to legislation and ballot measures that are in the works thus far this year."
Sunday, February 9, 2014
This new AP article, headlined "Medical marijuana gets traction in the Deep South," highlights that marijuana reform discussions are not confined only to northern and western regions of the United States. Here is how the piece starts:
Medical marijuana has been a non-starter in recent years in the Deep South, where many Republican lawmakers feared it could lead to widespread drug use and social ills. That now appears to be changing, with proposals to allow a form of medical marijuana gaining momentum in a handful of Southern states.
Twenty states and the District of Columbia have legalized medical marijuana, and this year powerful GOP lawmakers in Georgia and Alabama are putting their weight behind bills that would allow for the limited use of cannabis oil by those with specific medical conditions. Other Southern states are also weighing the issue with varying levels of support.
The key to swaying the hearts of conservative lawmakers has been the stories of children suffering up to 100 seizures a day whose parents say they could benefit from access to cannabidiol, which would be administered orally in a liquid form. And proponents argue the cannabis oil is low in tetrahydrocannabinol, or THC, the psychoactive compound in marijuana that makes users feel high.
"I'm an unlikely champion for this cause," said Georgia Rep. Allen Peake, a businessman from Macon who attended the evangelical Dallas Theological Seminary. "Once people realize it's not a 6-year-old smoking a joint, most folks realize this is the compassionate thing to do."
Peake's bill has already earned the backing of more than 80 state lawmakers, including several members of the House Republican leadership, who signed on as co-sponsors and the state's largest professional association of doctors. The bill would revive a long-dormant research program allowing academic institutions to distribute the medical cannabis and would be "limited in scope, tightly restricted, well regulated and managed by doctors," Peake said.
Alabama Rep. Mike Ball, a retired hostage negotiator for the State Patrol, is behind a bill that would allow people to possess the cannabis oil if they have certain medical conditions. It passed a key committee vote on Wednesday. "The public is starting to understand what this is," said Ball, who chairs a powerful House committee and is a prominent voice on law enforcement issues. "The political fear is shifting from what will happen if we pass it, to might what happen if we don't," Ball said.
The bills in Georgia and Alabama still have more vetting, and their ultimate prospects are not certain. But what is happening offers a strong signal of what's to come in other states.
In Louisiana, although a bill has yet to be introduced, a recent committee hearing at the Capitol on legalizing medical marijuana drew a standing-room-only crowd, and Gov. Bobby Jindal made comments last month indicating he was willing to consider it. "When it comes to medical marijuana ... if there is a legitimate medical need, I'd certainly be open to making it available under very strict supervision for patients that would benefit from that," Jindal said, according to a report in The Advocate.
Technically, both Georgia and Louisiana have laws on the books from the 1980s and 1990s that allow for the use of medical marijuana, but those programs essentially ended before they could start. Georgia's law established the academic research program for those diagnosed with glaucoma and cancer patients undergoing chemotherapy and radiation, but the program stalled when the federal government stopped delivery of legal cannabis. Louisiana's law allowed for glaucoma and cancer patients and those suffering from spastic quadriplegia to receive marijuana for therapeutic use but regulations to govern the program were never developed.
In Mississippi, Republican state Sen. Josh Harkins of Brandon is sponsoring a cannabis oil bill similar to the ones in Alabama and Georgia. Harkins said one of his constituents has a 20-month-old daughter with Dravet syndrome, a form of pediatric epilepsy, and the oil can help reduce the number of seizures.
Elsewhere, both Kentucky and Tennessee have medical marijuana bills under consideration although they have yet to gain traction. Kentucky Senate President Rover Stivers, R-Manchester, has said he's not convinced marijuana has legitimate medical purposes and called it an area ripe for abuse.
In Florida, it's likely to become a campaign issue in the fall given that Gov. Rick Scott is up for re-election and a proposed constitutional amendment will be on the ballot that would allow for the medical use of marijuana as determined by a licensed physician. Former Republican Gov. Charlie Christ, now a Democrat seeking to challenge Scott, has called it "an issue of compassion, trusting doctors and trusting the people of Florida."
Friday, January 31, 2014
I'm late in joining the exchange between Doug and Rob on local control of marijuana policy. A couple of years ago, I chaired a City of San Diego task force on local regulation of medical marijuana. In California, there is very little state-wide regulation of medical marijuana (approaching zero.) And, in the absence of state control, it has been up to localities to fill the void.
The San Diego City Council established the task force on which I served in 2009 and we gave the City our recommendations in 2010. Although the City Council passed an ordinance based in large part on our recommendations, it was rescinded after a backlash from dispensary owners (who used a quirky signature gathering procedure that we have to force Council's hand on the issue). Today, San Diego has no medical marijuana ordinance and dispensaries operate in a gray area here (to the extent they are able to operate at all.)
My experience on the task force convinced me more than ever of the value in state-wide regulation when it comes to marijuana policy. There are many aspects of marijuana policy that cities and counties are really not equipped to handle. And plenty of others that can be addressed locally but are much more efficiently handled at the state level.
That said, I do think there is real value in local control on some points. I lean towards Doug's view that cities and counties should be permitted to ban retail sale of marijuana in Colorado and Washington, for example. I think this sort of local control would be likely to help reform efforts overall, since residents in deeply prohibitionist counties and cities might be less concerned about statewide legalization if they can prevent "pot shops" from operating where they live. (My position is much different when it comes medical marijuana, where I've found that the sickest patients with the greatest need are the ones who suffer most when they don't have access to local dispensaries.)
When local control goes beyond land use and retail stores, however, then Rob's concern about the complexity of a dis-uniform regime becomes much more persuasive to me. It is one thing for a city or country to be able to ban retail marijuana sales (or regulate hours of operation, zoning, outdoor signage, etc.) It's quite another if cities can regulate, for example, the THC content in products that are sold. Or, even more problematic, if a locality had the power to ban transportation of marijuana or to re-criminalize personal possession by adults. For a state-wide regulatory scheme to function well, a marijuana manufacturer in one part of Washington needs to be be able to transport marijuana across the state without being subjected to a patchwork system of transportation regulations and outright transportation bans.
In California, an appeals court recently held that localities can ban all medical marijuana cultivation--even a single plant. The ruling, if adopted by other appeals courts (or the California Supreme Court), could leave patients in many parts of the state without any legal way to access marijuana. I think that is a serious problem and at-odds with the intent of California's Proposition 215.
All this is to say, when it comes to localism, I think the devil is in the details. On some points, like banning the retail sale of recreational marijuana, the benefits of local control may justify the costs. But on other items, like THC content or product labeling, I think state-wide uniformity is critical.
January 31, 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 (3)
As reported in this AP piece, a "proposed constitutional amendment to allow the medical use of marijuana will go before Florida voters in November after the state Supreme Court narrowly approved the ballot language Monday." That fact alone makes Florida a state to watch very closely in the months ahead for both proponents and opponents of modern marijuana reforms.
But, as noted in this article headlined "Could medical marijuana turn Florida blue in 2014?", the intersection of this issue with the governor's race Florida is also an extra notable facet of this year's election cycle in the Sunshine State. Moreover, as this Sun Sentinel editorial highlights, there are lots of other distinctive and distinctively important factors at play in Florida:
Legalizing medical marijuana in Florida will be decided by voters in November, thanks to a favorable state Supreme Court decision delivered this week. To make it from pipe dream to reality, however, proponents still must meet a steep requirement: Convincing 60 percent of voters statewide to punch "yes" on the ballot.
But no matter what happens in the election nine months from now, Florida lawmakers should act to legalize a new form of pot that offers no drug-induced high, but plenty of relief for seriously ill children. The time for medical marijuana, in one form or another, has come for Florida.
This is not about legalizing recreational pot. Period. This is not about Florida becoming the first state in the South to legalize medical marijuana. And this is not about offering a backdoor for sprouting crops of pot dispensaries. Nobody wants the California-cation of Florida, where anyone with a — wink, wink — allergy or other mild condition can apply and win a right-to-use medical card. Nobody wants to see rows of retail pot dispensaries lining our beachfronts or strip malls.
This is about taking advantage of best medical practices to provide real, in-reach relief for suffering patients. And in Florida, this issue is about something called Charlotte's Web. The strain of light weed is a miracle come true for families of truly ill children; it can help stop kids' seizures....
In Florida, pot medicine has a tough battle before it. The Supreme Court decision was great news for proponents. The justices approved the ballot language 4-3, after deciding it was clear and met legal requirements.
The losers include Gov. Rick Scott, House Speaker Will Weatherford, Attorney General Pam Bondi and others who have lined up against medical marijuana. Bondi argued before the court that the ballot language was misleading and allows too much leeway for doctors to approve medical usage.
Winners include John Morgan, the Orlando attorney who spent $4 million on a marijuana petition drive. And whose law firm employs Charlie Crist. Other winners include gubernatorial candidates Crist and Nan Rich, who back medical marijuana. Political experts expect the ballot measure to draw large numbers of Democrats and others sympathetic with the cause. Some believe those voters could cost Scott his re-election.
But the political calculus is cold, considering the stakes and impacts are much bigger here. Imagine your child's best chances at relieving pain that deprives them of comfort, peace and much-need rest was in medical marijuana.
It's tough to get 60 percent of voters to agree on anything. The fate of Charlotte's Web — and buzz-free medical marijuana — shouldn't be tied to what happens in the next election. Rep. Edwards is leading the way. Her fellow lawmakers should jump on the wagon and legalize low-grade medical pot for children.
Monday, January 27, 2014
I’ve heard it said that if you like federalism, you’ll love localism. The idea is that some of the key benefits of devolving policy onto the states, such as the ability to tailor policies to fit geographic preferences, can be realized to an even greater degree by devolving policy onto localities. If control of marijuana policy is handed to the states, for example, then the people of Mississippi can ban the drug while the people of Colorado legalize it. More people are happy with this outcome than the same policy were foisted on both states. But if local communities within both states were allowed to opt out of the choice made by their respective state majorities, even more people would be happy with the outcome. What is more, since most of the costs and benefits of marijuana likely fall upon people who live near users and distributors (e.g., the cost of drugged driving accidents), such devolution would not present a collective action problem. Perhaps this is why Doug welcomes the idea of legalization states like Colorado giving local governments the ability to ban marijuana in their borders. Let the voters of each locality decide what to do because they’ll ultimately bear the costs and benefits of their choices.
I can see the upside of granting local control. But I think giving local governments a say over whether marijuana is legal has some overlooked costs, and these costs could outweigh the benefits of localism.
First, there is a cost to adding one more decision-maker into the mix. If localities are empowered to ban (or legalize) marijuana, policy advocates will now have to lobby three (or even more) different layers of government to secure their preferred policy outcome. The time and resources spent trying to persuade Congress, the Executive branch, 50 state legislatures (and electorates), 50 state governors, and literally thousands (if not tens of thousands) of localities about how best to regulate marijuana represents a significant cost. Perhaps it’s the price of democracy. But I suspect the arguments that would be made before local city councils would be (and are) largely a rehash of well-worn arguments already being heard on national and state stages: Is marijuana safe? Is prohibition effective? Is this mic on? and so on. I doubt the gains from granting every local government the ability to opt out of legalization (or prohibition) outweigh the costs of having to make the same basic decision again and again and again.
A second related cost stems from the complexity inherent in such a dis-uniform localist regime. This cost will be greater the more leeway local governments have in dealing with marijuana. Indeed, there could be endless variation in terms of how local governments choose to regulate the drug. And such variation wouldn’t necessarily reflect the unique and deep seated preferences of local voters, as opposed to what the different officials assigned to translate mandates into legal text had for lunch. But the variation would increase the costs of compliance, as businesses will have to spend more to understand differences in regulations across the jurisdictions in which they operate.
Third, the variation in local laws makes it more difficult to learn from the experiments now underway. Variation is, of course, inherent in any experiment. Indeed, other states could potentially learn a great deal from the novel policies now being crafted by Colorado and Washington: how much tax revenue can be raised, how much usage will rise, etc., in the wake of legalization. But it’s much tougher for other states to learn when the experiment is not carefully controlled. If the 64 counties comprising Colorado all adopt different marijuana regulations, we may never know whether state reforms have impacted usage rates, driving fatalities, crime rates, etc., especially since some data are simply available only on a state-wide level.
Fourth, the policy choices made by local governments can impose indirect externalities on other parts of the state. For example, if one county were to ban the sale of marijuana, its residents might flock to neighboring counties to buy the drug. To be sure, there’s an upside to this: counties that allow distribution would enjoy a tax windfall from marijuana tourism. But those counties might prefer not to be deluged with the added car traffic and its attendant costs. The problem is, there may be no legal or practical way for them to exclude non-residents from their borders.
Of course, similar problems arise when state governments break from federal policy, but the costs are likely to be much lower given the larger size and relatively small number of state governments. At bottom, I doubt there is a strong normative justification for allowing local governments to opt-out of marijuana prohibition or legalization. I suspect granting them this choice may simply reflect a political compromise, designed to lessen opposition to state legalization in more conservative parts of the states.
January 27, 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 (6)
Thursday, January 23, 2014
In an earlier post, I explained why courts won’t enforce some contracts between marijuana dealers and their investors, landlords, suppliers, etc.
Without the state’s help in enforcing their bargains, the state-legalized marijuana industry will face higher costs of doing business compared to other industries. After all, contracting parties are more likely to engage in opportunistic behavior (e.g., refusing to repay a loan) when their partners have no legal recourse.
But the unavailability of legal remedies isn’t the “final nail in the coffin” of the marijuana industry because there are viable, albeit second-best alternatives to contract law. Indeed, black markets can flourish without lawful contracts (think Silk Road), and even lawful businesses sometimes prefer cheaper non-legal solutions to expensive legal ones.
Here I briefly tease out some non-legal strategies the marijuana industry and its partners might pursue in the wake of an Arizona court ruling holding their contracts unenforceable. (Note I purposely avoid illegal strategies, like, well, this.)
One, obvious solution is to limit the universe of contracting partners, namely, to persons who are known and can be trusted. Indeed, reputation plays a pivotal role in some industries (think Amazon, EBay, and their illicit cousin Silk Road). A good reputation is a valuable asset, one that vendors won’t sacrifice too readily (particularly when they hope to remain in the industry). For example, if a marijuana dealer like the one in my prior post thought it might need future financing, it would be less likely to walk away from $500,000 in obligations to its current lenders. Firms can even take this idea to the next level and integrate. Indeed, Colorado has required vertical integration of marijuana growers and sellers. Such integration creates its own problems, but a dealer which grows its own stock now at least doesn’t have to worry about enforcing deals with third-party suppliers.
A second strategy involves taking various forms of self-protection against breach. Think of a security deposit paid to a landlord. The deposit reduces the risk to the landlord that the tenant will just walk away from the lease. The payment of such a deposit should help marijuana dealers secure leases. And as long as tenants remain in possession of the property under lease, they have their own ways of protecting themselves against breach by landlords.
In short, there are alternative, albeit second best alternatives to contract law. Readers, I would be curious to know how people are now handling deals in the marijuana industry.
Tuesday, January 21, 2014
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.
January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Thursday, January 16, 2014
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
January 16, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)
Wednesday, January 15, 2014
Businesses are built on contracts. Consider a mom and pop grocer. It will have a lease agreement with its landlord, purchase agreements with the firms that supply its food, and loan agreements with the investors who provide financing for equipment, inventory, etc. We take it for granted that such contracts are enforceable. For example, if the grocer fails to make timely loan payments, we know its lenders can sue for breach. And if the court adjudicates in their favor, the state will use its coercive power to help the lenders recoup their principal and unpaid interest against the delinquent borrower.
But what if those contracts are not enforceable? That’s a very real possibility now confronting parties doing business with the marijuana industry in Colorado and elsewhere. In at least one recent decision, a state court has refused to enforce loan agreements between two investors and a retail medical marijuana shop operating in Colorado. Under the agreements, the investors provided $500,000 to finance the shop’s sale and distribution of marijuana in Colorado, for which the shop promised to pay 12% interest annually. When the shop failed to make those payments on time, the investors sued to recoup their principal and unpaid interest in an Arizona state court. But the court balked. Noting that the sale of marijuana remains illegal under federal law, and reflexively citing a contract doctrine that discourages enforcement of contracts against public policy, the court dismissed the investors’ lawsuit. It essentially allowed the marijuana shop to walk away with $500,000 of the investor’s money. Ouch. (The opinion and some analysis of the case can be found here.)
I’m no contracts scholar, but I have some doubts about the court’s rather superficial and cursory analysis of contracts doctrine (the opinion runs all of three pages). The late Allan Farnsworth’s venerable Contracts treatise suggests that contracts against public policy are not per se void, and that a court needs to engage in a more nuanced balancing of interests before refusing to enforce one. In particular, Farnsworth instructs courts to consider the strength of the public policy involved and the justified expectations of the parties. And on the basis of such factors, the Arizona court’s decision appears unsound. For one thing, it’s not clear the agreement is against a relevant public policy. After all, both Arizona and Colorado have legalized medical marijuana, and it’s not obvious to me why their policy interests should be passed over in favor of Congress’s, at least as a matter of contract law. What’s more, it seems likely all parties expected their agreement would be enforced. The only factor that suggests otherwise is the rather high rate of interest involved, which might have reflected awareness that the agreement entailed unusual risks, including perhaps the risk of non-enforcement. But at the very least, the court should have done a better job justifying its decision to let the shop walk away with someone else’s $500,000.
Even if the court erred as a matter of contract law, however, there might be a sounder basis on which to bar enforcement of these agreements: preemption. The investors in this case were asking the state to help them violate federal law. Whether or not this offends contracts principles, it likely offends the Supremacy Clause. As I mentioned in my post Monday, Congress has the constitutional authority to block all state interference with the private market, including, in a case like this, a state’s intervention in a contract dispute between two private parties. To be sure, as I’ve explained in more detail elsewhere, Congress might not want to preempt enforcement of all contracts involving the marijuana industry. But its unlikely to tolerate enforcement of at least some types of contracts. Suppose, for example, that the shop had sued its landlord for wrongful eviction. If the court ordered the landlord to reinstate the shop to its premises, it would force the landlord to violate a provision of federal law making it a crime to rent property to drug dealers.
In sum, caveat contractor.
In my next post, I’ll discuss what parties can do to adapt to this legal predicament.
Sunday, January 5, 2014
The title of this post is prompted the fact that today's New York Times has this lengthy lead story on its front page above the fold under the headline "New York State Is Set to Loosen Marijuana Laws." Here are excerpts:
Joining a growing group of states that have loosened restrictions on marijuana, Gov. Andrew M. Cuomo of New York plans this week to announce an executive action that would allow limited use of the drug by those with serious illnesses, state officials say.
The shift by Mr. Cuomo, a Democrat who had long resisted legalizing medical marijuana, comes as other states are taking increasingly liberal positions on it — most notably Colorado, where thousands have flocked to buy the drug for recreational use since it became legal on Jan. 1.
Mr. Cuomo’s plan will be far more restrictive than the laws in Colorado or California, where medical marijuana is available to people with conditions as mild as backaches. It will allow just 20 hospitals across the state to prescribe marijuana to patients with cancer, glaucoma or other diseases that meet standards to be set by the New York State Department of Health.
While Mr. Cuomo’s measure falls well short of full legalization, it nonetheless moves New York, long one of the nation’s most punitive states for those caught using or dealing drugs, a significant step closer to policies being embraced by marijuana advocates and lawmakers elsewhere. New York hopes to have the infrastructure in place this year to begin dispensing medical marijuana, although it is too soon to say when it will actually be available to patients.
Mr. Cuomo’s shift comes at an interesting political juncture. In neighboring New Jersey, led by Gov. Chris Christie, a Republican whose presidential prospects are talked about even more often than Mr. Cuomo’s, medical marijuana was approved by his predecessor, Jon S. Corzine, a Democrat, but was put into effect only after Mr. Christie set rules limiting its strength, banning home delivery, and requiring patients to show they have exhausted conventional treatments. The first of six planned dispensaries has already opened. Meanwhile, New York City’s new mayor, Bill de Blasio, had quickly seemed to overshadow Mr. Cuomo as the state’s leading progressive politician.
For Mr. Cuomo, who has often found common ground with Republicans on fiscal issues, the sudden shift on marijuana — which he is expected to announce on Wednesday in his annual State of the State address — was the latest of several instances in which he has embarked on a major social policy effort sure to bolster his popularity with a large portion of his political base....
The governor’s action also comes as advocates for changing drug laws have stepped up criticism of New York City’s stringent enforcement of marijuana laws, which resulted in nearly 450,000 misdemeanor charges from 2002 to 2012, according to the Drug Policy Alliance, which advocates more liberal drug laws. During that period, medical marijuana became increasingly widespread outside New York, with some 20 states and the District of Columbia now allowing its use....
[Mr. Cuomo's] shift, according to a person briefed on the governor’s views but not authorized to speak on the record, was rooted in his belief that the program he has drawn up can help those in need, while limiting the potential for abuse. Mr. Cuomo is also up for election this year, and polls have shown overwhelming support for medical marijuana in New York: 82 percent of New York voters approved of the idea in a survey by Siena College last May.
Still, Mr. Cuomo’s plan is sure to turn heads in Albany, the state’s capital. Medical marijuana bills have passed the State Assembly four times — most recently in 2013 — only to stall in the Senate, where a group of breakaway Democrats shares leadership with Republicans, who have traditionally been lukewarm on the issue.
Mr. Cuomo has decided to bypass the Legislature altogether. In taking the matter into his own hands, the governor is relying on a provision in the public health law known as the Antonio G. Olivieri Controlled Substance Therapeutic Research Program. It allows for the use of controlled substances for “cancer patients, glaucoma patients, and patients afflicted with other diseases as such diseases are approved by the commissioner.”
Mr. Olivieri was a New York City councilman and state assemblyman who died in 1980 at age 39. Suffering from a brain tumor, he used marijuana to overcome some of the discomfort of chemotherapy, and until his death lobbied for state legislation to legalize its medical use. The provision, while unfamiliar to most people, had been hiding in plain sight since 1980. But with Mr. Cuomo still publicly opposed to medical marijuana, state lawmakers had been pressing ahead with new legislation that would go beyond the Olivieri statute.
Richard N. Gottfried, a Manhattan Democrat who leads the assembly’s health committee, has held two public hearings on medical marijuana in recent weeks, hoping to build support for a bill under which health care professionals licensed to prescribe controlled substances could certify patient need. Mr. Gottfried said the state’s historical recalcitrance on marijuana was surprising. “New York is progressive on a great many issues, but not everything,” he said.
Mr. Gottfried said he wanted a tightly regulated and licensed market, with eligible patients limited to those with “severe, life-threatening or debilitating conditions,” not the broader range of ailments — backaches and anxiety, for instance — that pass muster in places like California, which legalized medical marijuana in 1996. “What we are looking at bears no resemblance to the California system,” Mr. Gottfried said....
Ethan Nadelmann, the executive director of the Drug Policy Alliance, praised Mr. Cuomo’s decision as “a bold and innovative way of breaking the logjam” in Albany, though it may not be the final word on medical marijuana. Mr. Cuomo “remains committed to developing the best medical marijuana law in the country,” Mr. Nadelmann said. “And that’s going to require legislative action.”
For a host of (mostly economic and practical) reasons, legal reforms and policy developments in New York often can and usually will get more than its fair share of national political and media attention from elites up and down the east coast and even around the nation. Indeed, the very fact this story in not due to break "officially" until later this week, but is still now front-page news in the first Sunday New York Times in 2014 shows how some New York stories often are treated like national and nationally-important stories from the get-go.
Especially interesting in this coverage and in the development of this issue in 2014, it seems that Gov. Cuomo has decided he needs to make a (bold?) move toward marijuana reform for political reasons. I am not surprised that recent developments in Colorado and elsewhere may change political calculations by lots of politicians on these matters over time, but I did not expect to see things moving so fast in important places like New York and involving important established state officials with national political aspirations.
Friday, December 6, 2013
Today's New York Times has this very interesting new article headlined "Families See Colorado as New Frontier on Medical Marijuana." Here are excerpts:
As their children cooed from wheelchairs and rocked softly in their arms, the marijuana migrants of Colorado clasped hands, bowed their heads and said a prayer of cautious thanks.
They thanked God for the dinner of roast turkey and mashed potatoes, for their children and for the marijuana-based serum that has drawn 100 families to Colorado on a desperate pilgrimage to quell the squalls of seizures inside their children’s heads. They have come from Florida and Virginia, South Carolina and New York, lining up to treat their children with a promising but largely untested oil that is considered legal medicine in this cannabis-friendly state.
“Thank you for bringing us together,” said Aaron Lightle, whose wife and 9-year-old daughter, Madeleine, moved here after the girl’s neurologists suggested removing part of her brain to stop her relentless seizures. “In crazy ways, maybe. But hey, we’re here.” Amen, they said.
Their migration is one of myriad ways that a once-illicit drug is reshaping life here in Colorado, which now stands at the forefront of the national debate over legalizing drugs. While these families are seeking treatment through a medical marijuana system that has existed for years, they are arriving at a time when the drug is becoming a mainstream part of public life, made legal for recreational use in a historic vote last year....
The new arrivals call themselves marijuana refugees. Many have left jobs and family members behind in states where marijuana remains outlawed, or cannot be used to treat children. While some have moved their entire families, others are splintered, paying rent and raising children in two states. During the holidays, they join family gatherings through video chats and swap iPhone pictures of Christmas trees.
But as more arrive to register their children as medical-marijuana patients, they have knitted together a random family here, across the suburbs and foothills of Colorado’s Front Range. They are Muslims and conservative Christians, liberal Democrats and conservative Republicans. Now, they cook dinners and babysit for one another. They meet to compare progress and seizure diaries. They discuss the best ways to feed the oil to their children. They wait, and hope for results that mirror the astonishing successes they have seen in television reports and online videos....
The families have hung their hopes on a marijuana oil called Charlotte’s Web, which is made by a medical marijuana dispensary in Colorado Springs. The business, called Indispensary, also sells a variety of highly potent marijuana and edibles. Buyers of the medical marijuana must present certifications from two practicing Colorado doctors.
Charlotte’s Web is a rich amber and as thick as cold honey. It smells like marijuana and tastes like raw plants. Joel Stanley, one of five brothers who run the dispensary, says the oil is low in THC, which gets users high, but contains a wealth of a cannabidiol, or CBD, a chemical that provides no buzz, but that marijuana advocates and medical researchers say has a variety of medical uses.
A month’s supply of the oil can cost $150 to $250, and some families say they receive financial help from a nonprofit group related to the dispensary called the Realm of Caring Foundation. In a YouTube video produced by Realm of Caring, two mothers describe how their children were transformed after taking the oil for a few months. In one section, Paige Figi recalls how seizures had jolted her daughter Charlotte every 15 minutes, leaving the girl unable to walk or talk. In the next shot, the girl dances in a pink leotard and shouts, “Ballerina!”
The other mother featured in the video, Heather Jackson, was so convinced by the potential of CBD that she is now the executive director of the Realm of Caring Foundation. Ms. Jackson said her son, Zaki, who once had 200 seizures a day, still faces a host of developmental disabilities, and will probably need help for the rest of his life. But she said he had gone 14 months without a seizure. A pretreatment recording of electrical activity in his brain showed a heaving chaos of huge spikes and deep troughs. A readout taken several months in showed smoother rises and falls. “It’s really incredible,” Ms. Jackson said in an interview. “For whatever reason, this has put his syndrome into remission.”
There is only scattered medical research to substantiate the claims, in large part because marijuana’s outlaw status has kept it off limits for many scientists in the United States. Studies as far back as 1975 have suggested that cannabidiol can prevent spasms in lab animals, and a few researchers in the United States have conducted limited studies on people.
Dr. Margaret Gedde, a Colorado physician who has recommended medical marijuana to dozens of families with severely epileptic children, recently conducted a small survey that offered promising results. Of 11 families who treated their children with high-CBD oil, eight reported that their children’s seizures had fallen by 98 to 100 percent. The other families reported smaller but noticeable declines. Dr. Gedde and her co-researcher, Dr. Edward H. Maa, an assistant professor of neurology at the University of Colorado School of Medicine, will present their research to the American Epilepsy Society at a meeting next week.
But the clinical trials matter little to parents who have watched their children sustain cracked skulls and broken arms during seizures, who have spent holidays in the emergency room, whose toddlers are taking barbiturates. After years of watching their children slowly vanish behind a firestorm of seizures, or the debilitating side effects of powerful prescription drugs, they said marijuana seemed worth a try.
Monday, November 25, 2013
New report (by reform advocacy group) praises state regulation of medical marijuana in wake of DOJ enforcement memo
As reported in this press release,"[m]edical marijuana advocates Americans for Safe Access (ASA) issued a report today that analyzes the Obama Administration's latest enforcement guidelines for federal prosecutors in states that regulate medical marijuana distribution." Here are basics concerning the 88-page report (which is available in full here):
The report, "Third Time the Charm? State Laws on Medical Cannabis Distribution and Department of Justice Guidance on Enforcement," shows that states have already enacted regulations that meet federal concerns, and some would have stronger regulations if it were not for federal threats that disrupted the legislative process. The report concludes with recommendations for how federal and state legislators can protect patients and harmonize state and federal policies.
Medical marijuana patients greeted the Department of Justice (DOJ) memo issued August 31st by U.S. Deputy Attorney General James Cole with cautious optimism. The memo is the third from the Obama Administration that attempts to rein in federal prosecutors in states that allow for regulated distribution of marijuana. The first memo, issued in October 2009 by Cole's predecessor, then-Deputy Attorney General David Ogden, did not stop various federal prosecutors from attempting to thwart the implementation of several state medical marijuana laws. A report issued by ASA earlier this year put the cost of federal interference with state medical marijuana programs at more than $300 million.
“We hope the latest federal policy on marijuana will compel the Obama Administration to make good on its promises to stop wasting taxpayer money on undermining duly enacted state laws,” said ASA Executive Director Steph Sherer. “With almost 40 percent of Americans living in states that permit medical marijuana, it's time for the federal government to resolve the conflict between its outdated policies and the growing number of compassionate state laws.”...
The ASA report recommends that state legislators use the 2013 Cole memo as a guide when developing production and distribution regulations, while avoiding unnecessarily restrictive policies that fail to meet the needs of patients. The report also urges lawmakers to recognize that all three DOJ directives maintain that cultivation by individual patients is not a federal enforcement concern, giving the green light for state legislators to preserve or adopt patient cultivation rules.
The report also recommends that Congress make short and long-term policy changes to ensure respect for state laws and protection for patients and their providers. The report urges federal legislators to restrict how DOJ funds are spent on enforcement in medical marijuana states until the DOJ can determine what "metrics" to use in evaluating compliance with their enforcement priorities. As a long-term solution, the report asks Congress to adopt HR 689, which would reclassify marijuana for medical use.
Friday, November 8, 2013
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?