Marijuana Law, Policy & Reform

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Moritz College of Law

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Wednesday, April 9, 2014

In Colorado, legalization of recreational marijuana sees an increase in sales of medical marijuana

Pat Oglesby reports on a surprising piece of data in Colorado.  Not only is medical marijuana outselling recreational marijuana, medical marijuana sales have (so far) increased under legalization:

In Colorado, recreational marijuana is making the news, but medical marijuana is dominating the market.  The state officially reports that in February, medical marijuana outsold newly legal recreational marijuana better than two to one.  And medical sales are growing more than twice as fast.

 

Taxes may explain the popularity of medical marijuana.  Medical marijuana bears only a 2.9 percent sales tax.  Recreational marijuana bears, along with that 2.9 percent sales tax, another 10-percent retail tax.  

 

...

 

Not only are sales of medical marijuana outpacing recreational sales, they are growing faster. Medical marijuana sales taxes in January were just $$31,500,655. February’s $35,247,448 in medical marijuana sales represents a 11.9 percent increase. Recreational sales grew by only 5.2 percent.  So the share of medical sales are growing faster than recreational sales — about 2.29 times as fast.

Given the different tax rates, it makes sense that Coloradans who had medical marijuana cards before legalization would continue to buy medical marijuana after legalization.  But why would legalizing recreational marijuana increase medical marijuana purchases?

After all, since getting a medical marijuana card in Colorado isn't all that difficult, we might imagine that most regular users (who account for the bulk of marijuana that is used) would have already had medical cards before legalization.  

My own guess (and it is entirely a guess) is that the increase in medical sales is likely being driven by the segment of regular users who had never gotten a card because it seemed like more trouble than it was worth (and/or they were worried that getting a card would put them on some sort of list that could become public.)  The sort of person I'm envisioning would have had a regular black market dealer and figured "why bother getting a card."  

After legalization, however, these folks started wandering into the newly established recreational stores for their purchases.  And when they did, they found two counters: the recreational counter and the medical counter, where the same products were much cheaper becuase of the tax difference.  Once they realized how much money they could save, getting a medical marijuana card suddenly seemed well worth the investment.  

Of course, my guess may be completely off-base.  It might turn out, for example, that the increase in medical marijuana sales is being driven primarily by existing medical marijuana consumers who've increased their consumption (e.g., a medical marijuana user who bought X grams/month before legalization, increasing their purchases to 2X grams/month after legalization.)  

In any event, if this trend continues, it is something that will be well worth studying closely.  

April 9, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, April 4, 2014

If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?

The question in the title of this post is my sincere inquiry, directed particularly to those most concerned about modern marijuana reform movements, as a follow-up to this extended (data-focused) commentary by Jacob Sollum at Forbes headlined "More Pot, Safer Roads: Marijuana Legalization Could Bring Unexpected Benefits." Here are excerpts (with key research links retained):

The anti-pot group Project SAM claims drug test data show that marijuana legalization in Washington, approved by voters in that state at the end of 2012, already has made the roads more dangerous. The group notes with alarm that the percentage of people arrested for driving under the influence of a drug (DUID) who tested positive for marijuana rose by a third between 2012 and 2013. “Even before the first marijuana store opens in Washington, normalization and acceptance [have] set in,” says Project SAM Chairman Patrick J. Kennedy. “This is a wakeup call for officials and the public about the dangerousness of this drug, especially when driving.”

In truth, these numbers do not tell us anything about the dangerousness of marijuana. They do not even necessarily mean that more people are driving while high. Furthermore, other evidence suggests that legalizing marijuana could make the roads safer, reducing traffic fatalities by encouraging the substitution of marijuana for alcohol....

According to State Toxicologist Fiona Couper, the share of DUID arrestees in Washington whose blood tested positive for THC, marijuana’s main psychoactive ingredient, rose from 18.6 percent in 2012 to 24.9 percent in 2013.  That’s an increase of more than 33 percent, as Project SAM emphasizes with a scary-looking bar graph. At the same time, the total number of DUID arrests in Washington rose by just 3 percent, about the same as the increases seen in the previous three years, while DUID arrests by state troopers (see table below) fell 16 percent.

These numbers do not suggest that Washington’s highways are awash with dangerously stoned drivers. So why the substantial increase in positive marijuana tests?  Lt. Rob Sharpe, commander of the Washington State Patrol’s Impaired Driving Section, notes that additional officers were trained to recognize drugged drivers in anticipation of marijuana legalization. So even if the number of stoned drivers remained the same, police may have pulled over more of them as a result of that training....

As Columbia University researchers Guohua Li and Joanne E. Brady pointed out a few months ago in the American Journal of Epidemiology, [a recent] increase in marijuana consumption has been accompanied by an increase in the percentage of drivers killed in car crashes who test positive for cannabinol, a marijuana metabolite.

But as with the increase in DUID arrestees who test positive for THC, this trend does not necessarily mean marijuana is causing more crashes.  A test for cannabinol, which is not psychoactive and can be detected in blood for up to a week after use, does not show the driver was under the influence of marijuana at the time of the crash, let alone that he was responsible for it. “Thus,” Li and Brady write, “the prevalence of nonalcohol drugs reported in this study should be interpreted as an indicator of drug use, not necessarily a measurement of drug impairment.”

Another reason to doubt the premise that more pot smoking means more deadly crashes: Total traffic fatalities have fallen as marijuana consumption has risen; there were about 20 percent fewer in 2012 than in 2002.  Perhaps fatalities would have fallen faster if it weren’t for all those new pot smokers.  But there is reason to believe the opposite may be true, that there would have been more fatalities if marijuana consumption had remained level or declined.

While marijuana can impair driving ability, it has a less dramatic impact than alcohol does. A 1993 report from the National Highway Traffic Safety Administration, for example, concluded: “The impairment [from marijuana] manifests itself mainly in the ability to maintain a lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol.  Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort.  As a consequence, THC’s adverse effects on driving performance appear relatively small.”  Similarly, a 2000 report commissioned by the British government found that “the severe effects of alcohol on the higher cognitive processes of driving are likely to make this more of a hazard, particularly at higher blood alcohol levels.”

Given these differences, it stands to reason that if more pot smoking is accompanied by less drinking, the upshot could be fewer traffic fatalities. Consistent with that hypothesis, a study published last year in the Journal of Law and Economics found that legalization of medical marijuana is associated with an 8-to-11-percent drop in traffic fatalities, beyond what would be expected based on national trends.  Montana State University economist D. Mark Anderson and his colleagues found that the reduction in alcohol-related accidents was especially clear, as you would expect if loosening restrictions on marijuana led to less drinking. They also cite evidence that alcohol consumption declined in states with medical marijuana laws.

Anderson et al. caution that the drop in deadly crashes might be due to differences in the settings where marijuana and alcohol are consumed. If people are more likely to consume marijuana at home, that could mean less driving under the influence.  Hence “the negative relationship between legalization and alcohol-related fatalities does not necessarily imply that driving under the influence of marijuana is safer than driving under the influence of alcohol,” although that is what experiments with both drugs indicate.

Arrest data from Washington are consistent with the idea that marijuana legalization could result in less drunk driving. Last year drunk driving arrests by state troopers fell 11 percent. By comparison, the number of drunk driving arrests fell by 2 percent between 2009 and 2010, stayed about the same between 2010 and 2011, and fell by 6 percent between 2011 and 2012. The drop in drunk driving arrests after marijuana legalization looks unusually large, although it should be interpreted with caution, since the number of arrests is partly a function of enforcement levels, which depend on funding and staffing.

Two authors of the Journal of Law and Economics study, Anderson and University of Colorado at Denver economist Daniel Rees, broadened their analysis in a 2013 article published by the Journal of Policy Analysis and Management. Anderson and Rees argue that marijuana legalization is apt, on balance, to produce “public health benefits,” mainly because of a reduction in alcohol consumption. Their projection hinges on the premise that marijuana and alcohol are substitutes. If marijuana and alcohol are instead complements, meaning that more pot smoking is accompanied by more drinking, the benefits they predict would not materialize.  Anderson and Rees say “studies based on clearly defined natural experiments generally support the hypothesis that marijuana and alcohol are substitutes.”  But in the same issue of the Journal of Policy Analysis and Management, Rosalie Liccardo Pacula, co-director of the RAND Corporation’s Drug Policy Research Center, and University of South Carolina criminologist Eric Sevigny conclude that the evidence on this point “remains mixed.”

study published last month by the online journal PLOS One suggests that the substitution of marijuana for alcohol, assuming it happens, could affect crime rates as well as car crashes. Robert G. Morris and three other University of Texas at Dallas criminologists looked at trends in homicide, rape, robbery, assault, burglary, larceny, and auto theft in the 11 states that legalized marijuana for medical use between 1990 and 2006. While crime fell nationwide during this period, it fell more sharply in the medical marijuana states, even after the researchers adjusted for various other differences between states. Morris and his colleagues conclude that legalization of medical marijuana “may be related to reductions in rates of homicide and assault,” possibly because of a decline in drinking, although they caution that the extra drop in crime could be due to a variable they did not consider.

One needs to be very cautious, of course, drawing any firm conclusions based on any early research about impaired driving, car crashes, and marijuana reform. But let's imagine it does turn out generally true that legalizing medical marijuana helps produce a 10% drop in a jurisdiction's traffic fatalities. If extended nationwide throughout the US, where we have well over 30,000 traffic fatalities each and every year, this would mean we could potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. (One might contrast this number with debated research and claims made about the number of lives possibly saved by the death penalty: I do not believe I have seen any research from even ardent death penalty supporters to support the assertion that even much more robust use of the death penalty in the US would be likely to save even 1000 innocent lives each year.)

Obviously, many people can and many people surely would question and contest a claim that we could or would potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. But, for purposes of debate and discussion (and to know just how important additional research in this arena might be to on-going pot reform debates), I sincerely wonder if anyone would still actively oppose medical marijuana reform if (and when?) we continue to see compelling data that such reform might save over 50 innocent lives each and every week throughout the United States.

Cross-posted at Marijuana Law, Policy and Reform

April 4, 2014 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, March 27, 2014

New Hampshire House now rejects bill to legalize small quantities of marijuana

As reported in this local article, the "New Hampshire House voted against legalizing marijuana 192-140 yesterday, marking a significant shift after passing the bill by eight votes in January."  Here is more:

The Senate was nearly certain to block the bill, and Democratic Gov. Maggie Hassan had promised to veto any bill legalizing marijuana. Hassan signed a medical marijuana bill last year, and last month the House passed a bill to decriminalize possession of up to an ounce of marijuana.  Opponents of legalization said the state should take small steps when it comes to marijuana. Hassan has already said she’s unlikely to sign a decriminalization bill.  “Good public policy means taking one step at a time,” said Rep. Donna Schlachman, an Exeter Democrat.

A certain death didn’t stop supporters from making a passionate case for legalizing the drug.  Rep. Steve Vaillancourt, a Manchester Republican and the bill’s prime sponsor, spoke for 30 minutes about what he thinks are misconceptions about the drug and the revenue it could bring into New Hampshire.  A February poll by the UNH Survey Center showed 53 percent of people support legalizing marijuana for recreational use. Legalizing, regulating and taxing the drug is the best way to ensure safe use, Vaillancourt said.  “This is the only way to break the back of the black market,” he said.

Rep. Romeo Danais, a Nottingham Republican, encouraged his colleagues to challenge their own misperceptions about the drug.  Marijuana is not a gateway drug, he said, but people who buy it from drug dealers might be more easily exposed to harder drugs. Just as with alcohol, legalizing marijuana doesn’t mean people would be allowed to drive or show up to work under its influence, he said. “Just because it’s legal does not mean that anyone would use it,” Danais said....

But opponents of the bill said no state agency testified in favor of legalizing marijuana during a public hearing.  The system of regulation and taxation in the bill would have involved the departments of Revenue Administration, Safety, Health and Human Services, Agriculture and the Liquor Commission.  The Liquor Commission said it wouldn’t sell marijuana in state liquor stores, said Rep. Patrick Abrami, a Stratham Republican.

Furthermore, opponents said selling marijuana would be a cash-only business because banks would not accept money from marijuana transactions.  The bill also raised questions about people growing their own marijuana and making “edibles,” or marijuana baked into food.  Several opponents said New Hampshire should see how legalization pans out in Colorado and Washington state before moving forward with a similar plan.  “I don’t think New Hampshire wants to be known as the ‘East Coast pot state,’ ” said Rep. Mary Cooney, a Plymouth Democrat.

Among interesting aspects of this story is the apparent reality that at least a few Republicans were the most vocal advocates for legalization, while at least a few Democrats appeared most eager to get behind these reforms.  In addition, this story highlights yet again how the experiences in Colorado and Washington over the next few months and years seem certain to have a profound impact on how politicians and other policy-makers view various marijuana reform efforts.

March 27, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, March 21, 2014

Did Alabama just legalize medical marijuana?

Not really. But both houses of the state legislature did just pass a limited measure (called Carly’s Law) that is expected to be signed by the governor. The measure would ostensibly legalize a marijuana extract known as Cannabidiol (CBD) to treat epilepsy. CBD, like other forms of marijuana, is banned by federal law, though it contains none of the psychoactive content (THC) normally found in marijuana. For the story, see this Reuters report. Supporters of the law have a Facebook page as well.

The only reason this development is even worth noting is that it’s occurring in Alabama, the heart of the deep South, where the marijuana reform movement has yet to make any headway. But even in that context, the measure is a rather small victory for reformers. Vanishingly small. Indeed, I’m confident saying this would be the narrowest medical marijuana law any state has troubled to pass, and it might not even meet its quite limited ambitions.

The text of the house and senate versions of the bill can be found here. In a nutshell (it’s a big nut), the law creates an affirmative defense against prosecution for simple possession of CBD by someone who has been diagnosed by a University of Alabama,Birmingham employed physician, as suffering from a debilitating epileptic condition; and for whom a UAB employed physician has also prescribed CBD. Lastly, the UAB shall be the sole supplier of CBD for such persons (the law provides legal protections for UAB employees). Oh, and the law has a sunset provision—it expires in 5 years.

To explain how limited (and potentially ineffective) the measure is, consider that: (1) patients can still be charged with possession of CBD and they (rather than the prosecution) bear the burden of persuading a jury that their possession of the drug was in compliance with the law; (2) CBD isn’t for everybody, especially those who believe marijuana’s medical benefits stem from THC; (3) the provision only protects those suffering from serious epilepsy, and not the myriad other conditions for which other states have allowed treatment (wasting syndrome, PTSD, glaucoma, etc.); (4) patients must be under the care of a UAB employed physician, not just any state-licensed physician; (5) the law requires a physician prescription, which, as I explained in a earlier comment regarding NY’s proposed medical marijuana law, might be impossible to get; that’s because the DEA can take away a physician’s authority to prescribe any legal drug if the physician prescribes a Schedule I controlled substance like CBD; (6) patients must obtain their CBD from the UAB, but the UAB probably can’t supply CBD; as I’ve pointed out repeatedly, direct state supply of marijuana is preempted by federal law, and regardless of whether the DOJ would sue to stop UAB, many other people could probably do so, meaning that perhaps no one – not even sufferers of serious epileptic conditions being treated by UAB physicians who don’t mind putting their medical practices at risk – will get the drug.

March 21, 2014 in Current Affairs, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, March 18, 2014

Nevada to consider ethics rules for medical marijuana representation

Professional ethics rules has been a bit of a sleeper issue in the area of marijuana law reform.  To be sure, it hasn't been overlloked entirely.  A handful of states have issued opinions on the topic and Sam Kamin and Eli Wald wrote an excellent law review article considering the question.  But in most  states that have enacted reforms, there has been no official analysis of how the ethics rules might apply to medical marijuana lawyers.  

Nevada appears to be taking a more proactive approach:

Facing a conflict between state and federal law, attorneys in Nevada are asking the state Supreme Court to set rules to protect lawyers who advise clients on medical marijuana issues.

 

Nevada Bar Association President Alan Lefebvre said Thursday the request submitted seeking expedited state high court action comes with private and public attorneys unsure whether they can advise clients how to handle a medical marijuana law that takes effect April 1.

 

...

 

The state bar governing board submitted its petition Tuesday to the Nevada Supreme Court seeking an amendment to rules of professional conduct so lawyers can safely provide legal advice about medical marijuana.

 

The state high court is expected to hold a public hearing before making a decision.

March 18, 2014 in Medical Marijuana State Laws and Reforms | Permalink | Comments (1)

Saturday, March 15, 2014

Colorado appeals court: a doctor's recommendation after arrest is no defense

The retroactive application of Amendment 64 wasn't the only marijuana law issue before the Colorado appellate courts this week.  In a decision that affects a much narrower group of defendants than the Amendment 64 issue, an appeals court (PDF) held that a doctor's post-arrest assessment will not help medical marijuana patients who want to grow more than 6 plants:

Section 14(4)(b) (the 14(4)(b) defense) of the Medical Marijuana Amendment (Amendment), article XVIII of the Colorado Constitution, creates an affirmative defense to the offense of cultivating marijuana, where the plants are needed for medical use. Whether this defense can be asserted based on a physician’s assessment obtained after the offense has been committed presents a novel question. We conclude that the 14(4)(b) defense cannot be raised based on such an after-the-fact assessment. Therefore, we affirm the judgment of conviction of defendant, Stephen S. Fioco, entered on a jury verdict finding him guilty of cultivating more than six but fewer than thirty marijuana plants. 

March 15, 2014 in Court Rulings, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, March 14, 2014

Pot and parenting: is this a criminal justice, public health or family law issue?

Meet-The-Marijuana-Moms-From-Beverly-Hills-750x434In this recent post, I requested (and still seek) information about the intersection of state marijuana reform and traditional family law. For example, I am still wondering if there is any history in states with reformed marijuana of efforts to use (or any formal rejection of) arguments in custody disputes concerning one parent's legal use of marijuana.

Notably, CNN's on-going coverage of marijuana reform has brought these questions to the mainstream media via this new article headlined "Does medical marijuana equal bad parenting?". Here is an excerpt from the lengthy and effective article, which prompts the question in the title of this post:

For agencies enlisted to protect children, marijuana in the home has for decades been an invitation for serious speculation about a parent's fitness. But as the narrative of medical marijuana legalization unfolds across the country, so does a complicated parallel story of patients whose children are being removed to protective custody -- or worse, permanently removed -- ostensibly because of their legal marijuana use. Most medical marijuana legislation does not seem to account for this possibility.

"The judges, the police, CPS (child protective services) have been fighting this war on drugs for so long," said Maria Green, a medical marijuana patient in Lansing, Michigan, whose infant daughter Bree was placed in foster care last year. "They just can't get it out of their minds that this is an 'evil' drug they have to fight against."

To be sure, each case has unique circumstances, and child welfare officials at both the state and local level do not comment about specific cases while they are in process, or even once they are closed. Further complicating the picture: While medical marijuana use is legal in 20 states and the District of Columbia, the federal Drug Enforcement Administration classifies the drug as a Schedule I substance with "no currently accepted medical use in the United States" and high potential for abuse.

In cases involving removal of children, medical marijuana found in the home would seem to be barely distinguishable from other Schedule I substances -- such as heroin or ecstasy. "CPS handles (cases) the same way regardless of what the drug ... is," said Michael Weston, deputy director of public affairs and outreach programs at the California Department of Social Services. "Everything is weighed in reference to, 'Is this a danger to the child? Is there a potential harm to the child? Is this showing signs of abuse or neglect?'"

There have been no substantive studies yet to determine how medical marijuana impacts parenting. There is early data, according to a researcher, suggesting a small increase in child poisonings among medical marijuana patients in states where it is legal. And early epidemiological data draws a link between medical cannabis use and increased corporal punishment and physical abuse -- but not neglect.

"We really don't know what's going on," said Bridget Freisthler, an associate professor in the department of social welfare at UCLA, who studies medical marijuana use among parents. "We don't know whether (medical marijuana) affects parenting or whether caseworkers need to be concerned when they find out this is happening in the home."

Parents fighting to maintain custody of their children say the mere presence of medical marijuana is an almost reflexive trigger for removal. They cite scores of anecdotes concentrated in states where medical cannabis is legal -- children removed from homes where cannabis is used or grown; babies testing positive for marijuana at birth and subsequently removed; children removed because mothers breastfed at the same time that they used medical marijuana.

"Marijuana use does not make someone a bad parent," said Sara Arnold, co-founder of the Family Law and Cannabis Alliance. "It should not be the primary or sole basis for any Child Protective Services investigation."

But simply having a medical marijuana card does not mean that that patient is acting responsibly with the medication; nor does the mere presence of marijuana imply lack of safety, according to experts. "Medical marijuana as a risk factor by itself doesn't mean the child isn't safe," said Michael Piraino, chief executive officer of National CASA for Children, an advocacy group for abused and neglected children. "Most kids have had risk factors but remain safe. "But how do you put together all these pieces of information, of evidence, that a child is or isn't safe?"

March 14, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (1)

Thursday, March 13, 2014

District court rejects challenge to federal gun restrictions on medical marijuana users

Federal law makes it a crime for anyone who is an "unlawful user of or addicted to any controlled substance" to possess a gun or ammunition.  It is also illegal to sell a gun to someone you know or have "reasonable cause to believe" is an unlawful user or addicted to a controlled substance.  

With the rise of medical marijuana laws and the Supreme Court's determination that the Second Amendment grants an individual right to possess a firearm, is there any problem applying these gun laws to state-recognized medical marijuana patients?  

Earlier this week, a Nevada District Court considered and rejected a challenge to these laws by a medical marijuana patient:

In September 2011, because of the growing number of states that permit the medicinal use of marijuana, the ATF issued an "Open Letter." Bureau of Alcohol, Tobacco, Firearms and Explosives, Open Letter, Open Letter to All Federal Firearms Licensees-The use ofmarijuana for medical purpose and its applicability to Federal firearms laws.  

 

Notably, this letter informed all individuals licensed to sell firearms ("Federal Firearms Licensees" or "FFLs") that "if [the seller is] aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have 'reasonable cause to believe' that the person is an unlawful user of a controlled substance." Id. Thus, the letter advised FFLs and provided them notice that the agency which issues their license (the BATFE) interpreted § 922 as not only criminalizing the possession of a firearm by a registry card holder, but also the sale of a firearm to a registry card holder.

In the fall of 2010, due to her struggle with severe dysmenorrhea, Plaintiff applied for and obtained a state marijuana registry card. Plaintiff subsequently applied to purchase a firearm at a gun store in Mound House, Nevada.  However, the store's proprietor prevented her from completing her application he knew she carried a state marijuana registry card.

 

As a result, Plaintiff filed this lawsuit in October 2011.  In her suit, Plaintiff challenges the constitutionality of the two provisions of the Gun Control Act that effectively criminalize the sale and possession of a firearm by the holder of a registry card: 18 U.S.C. §§ 922(d)(3) and (g)(3).  Plaintiff also challenges the constitutionality of one of the accompanying regulations, 27 C.F.R. § 478.11, that defines the term "unlawful user of or addicted to any controlled substance" as used in §§ 922(d)(3) and (g)(3). Finally, Plaintiff challenges the ATF policy that federal firearms licensees may not sell a firearm to persons they know are "in possession of a card authorizing the possession and use of marijuana under State law . . .." ATF Open Letter. Plaintiff claims that these provisions, along with the ATF policy, violate her Second Amendment right to "keep and bear Arms"; her First Amendment right to free speech; as well as her rights to substantive due process, procedural due process and equal protection as secured by the Fifth Amendment.

 

In response to Plaintiff's initiating this action, Defendant filed a Motion to Dismiss . . .  which, for the reasons discussed below, the Court grants.

A brief search did not turn up a publicly available version of the decision.  But it is up on lexis at Wilson v. Holder, 2014 U.S. Dist. LEXIS 31905.

March 13, 2014 in Court Rulings, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

California appeals court on medical marijuana laws and probable cause

A California appellate court issued a decision earlier this week considering "whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement."  

The defendant was a medical marijuana patient and among the issues in the case was whether California's medical marijuana laws impact this question.  As I posted yesterday, the Seventh Circuit recently issued some defense-friendly dicta on this question.  The California court, however, held squarely for the government.  

That appellant possessed a valid 215 card does not vitiate Deputy Griffin's probable cause to search the truck pursuant to the automobile exception.

 

...

 

That California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception. Here, Deputy Griffin was entitled to investigate to determine whether appellant possessed marijuanafor personal medical needs and to determine whether he adhered to the CUA's limits on possession. “Otherwise, every qualified patient would be free to violate the intent of the medicalmarijuana program expressed in section 11365.5, and deal marijuana from his car with complete freedom from any reasonable search.” (Strasburg, supra, 148 Cal.App.4th at p. 1060.) Deputy Griffin testified at the preliminary hearing that people often possess more marijuana than allowed under the CUA and “hide” additional quantities of marijuana in their vehicles.  It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities ofmarijuana might be found in the car.  (Dey, supra, 84 Cal.App.4th at p. 1322; Hunter, supra, 133 Cal.App.4th at p. 382 [“discovery of marijuana in the passenger area of defendant's car” did not foreclose possibility of additional “drugs being found in the trunk” and noting “marijuana is a drug that can be concealed in a variety of containers”].)

The full opinion is here (PDF).

March 13, 2014 in Court Rulings, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, March 7, 2014

The New York Times on medical and recreational marijuana in Washington

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.

March 7, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, March 6, 2014

Florida conservatives now talking up nuanced positions on marijuana reform

FloridaAs 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

March 6, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Science | Permalink | Comments (0)

Friday, February 21, 2014

Marijuana reform: ballot measures or the legislature?

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.  

February 21, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, February 19, 2014

Can medical and recreational marijuana legalization co-exist in Washington state?

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.

February 19, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)

Tuesday, February 18, 2014

Using Banks to Police the Marjiuana Industry

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)

"Inside the Anti-Pot Mindset" of one notable addiction doctor concerned with teenage marijuana use

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.

February 18, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (2)

Tuesday, February 11, 2014

Marijuana candies, dangerous for kids and for legalization

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

State-by-state: present and possible future state marijuana reforms

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."

February 10, 2014 in Criminal justice developments and reforms, Current Affairs, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, February 9, 2014

Interesting buzz about marijuana reform in southern states

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."

February 9, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, January 31, 2014

Local governments and marijuana policy

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)

Fascinating factors in Florida's forthcoming medical marijuana debates

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.

January 31, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)