Monday, July 28, 2014
As detailed via this report from the folks at Quinnipiac University, the latest polling numbers suggest Florida voters are keenly in support of marijuana reform. Here are the basics concerning a state seemingly poised to bring marijuana reform movement into the south:
Florida voters support legalized marijuana for medical use 88 - 10 percent, with support ranging from 83 - 14 percent among voters over 65 years old to 95 - 5 percent among voters 18 to 29 years old, according to a Quinnipiac University poll released today. The lowest level of support is 80 - 19 percent among Republicans, the independent Quinnipiac University poll finds.
Sunshine State voters also support 55 - 41 percent "allowing adults in Florida to legally possess small amounts of marijuana for personal use," or so-called "recreational marijuana." There is a wide gender gap and an even wider age gap: Men back recreational marijuana 61 - 36 percent while women back it by a narrow 49 - 45 percent. Voters 18 to 29 years old are ready to roll 72 - 25, while voters over 65 years old are opposed 59 - 36 percent. Support is 64 - 32 percent among Democrats and 55 - 40 percent among independent voters, with Republicans opposed 56 - 41 percent.
"Forget the stereotypes of stodgy old folks living out their golden years playing canasta and golf," said Peter Brown, assistant director of the Quinnipiac University poll. "Almost nine- in-ten Floridians favor legalizing medical marijuana and a small majority says adults should be able to possess small amounts of the drug for recreational purposes.
"Even though a proposal to legalize medical marijuana, on the ballot this November, must meet a 60 percent threshold, these numbers make a strong bet the referendum is likely to pass," said Peter Brown, assistant director of the Quinnipiac University poll....
If medical marijuana is legalized in Florida, voters say 71 - 26 percent they would support having a marijuana dispensary in the town or city where they live. Support ranges from 57 - 37 percent among voters over 65 years old to 79 - 21 percent among voters 18 to 29 years old.
July 28, 2014 in Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Friday, July 25, 2014
Rand Paul amendment to block certain federal prosecutions in medical marijuana states would raise interesting legal questions
Senator Rand Paul has filed an amendment to a jobs bill that would protect patients and physicians from federal prosecutions in states with medical marijuana laws. Unlike the spending amendment that passed the House earlier this year (which Paul and Cory Booker also introduced in the Senate), this proposal would have a very real legal impact. I think it would also raise some interesting legal questions, if it were to pass (which I suspect is unlikely.)
Paul's proposal provides (in relevant part):
(a) State Medical Marijuana Laws.--Notwithstanding section 708 of the Controlled Substances Act (21 U.S.C. 903) or any other provision of law (including regulations), a State may enact and implement a law that authorizes the use, distribution, possession, or cultivation of marijuana for medical use.(b) Prohibition on Certain Prosecutions.--No prosecution may be commenced or maintained against any physician or patient for a violation of any Federal law (including regulations) that prohibits the conduct described in subsection (a) if the State in which the violation occurred has in effect a law described in subsection (a) before, on, or after the date on which the violation occurred[.]
Tuesday, July 22, 2014
"Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination"
The title of this post is the title of this notable new student Note by Elizabeth Rodd now available via SSRN. Here is the abstract:
Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use — either recreational or medicinal — remains illegal under the Federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana.
To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state-sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.
Thursday, July 17, 2014
This Salon interview with Evan Nison of the New York Cannabis Alliance about the process of finally passing a law permitting the use of medical marijuana in New York state reminded me of that old saying about laws and sausage
Here's an excerpt to support that conclusion :
In terms of the negotiation and lobbying process, who in Albany did you work with, primarily — was it the Senate or the governor’s office or both?
Almost the entire time — the five-plus years I was working on the bill — was focused on the Senate. That’s because, for the majority of the time, it was run by the Republicans and then eventually the “independent” Democrats. The assembly was great throughout the whole process and passed the bill multiple times just this past year. The governor’s office was fairly silent on it, maybe even more of a hazard than anything throughout most of the process until the very tail end. Something else that was interesting to note was that we had the votes in the Senate for maybe a year and a half or two years before the vote was brought to the floor. And we had the votes in the Senate to pass the broader version before Cuomo amended it. It was really just a matter of the Senate leadership not bringing the vote to the floor, but the support was there in the legislature to pass this years ago.
When asked if New York could be characterized as a national leader, Nison stated that " New York is following rather than leading, at this point in time" but prefers a comparison to Prohibition rather than sausagemaking:
New York was a leader in repealing alcohol prohibition and I think, hopefully, we can do that again. But … we’re the 23rd state [to do this] and although we’re a landmark state, we’ve certainly haven’t been a leader on this issue yet.
NYers-cross your fingers...
[Note-To comply with the US Supreme Court's fair use ruling in Harper & Row v Nation Enterprises, I am omitting the juicy discussion of Governor Cuomo's role in enacting the New York law].
Tuesday, July 15, 2014
The title of this post is the headline of this new Huffington Post piece. Here is how it starts:
The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.
The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."
Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.
July 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)
Friday, July 11, 2014
Mixed results for defendant in WA medical marijuana appeal involving recommendations on "non tamper resistant" paper
Though recreational marijuana stores opened in Washington this week, its medical marijuana laws are likely to be kicking around the courts for at least a little while longer. And a recent Washington appeals court decision (PDF) indicates that defendants who did not very carefully abide by the relevant legal requirements may be out of luck.
The case involves a college student providing medical marijuana to a series of patients by having each one temporarily designate him as their medical marijuana provider. Consistent with an earlier ruling, the appeals court held that this practice was permitted by the law. As a result, it overturned two of the defendant's convictions. It upheld three other convictions, however, where the defendant sold marijuana to an informant with a fake recommendation that was not on tamper resistent paper.
From the court's opinion:
The delivery charges relate to the sales to the confidential informant. Markwart does not dispute that the authorization the informant showed was not on tamper resistant paper. To establish the affirmative defense, a person must meet the criteria for status as a designated provider and present his "valid documentation" to any law enforcement official who questions him. Former RCW 69.51A.040 (LAWS OF 2007, ch. 371, § 5). Valid documentation required a statement signed by a health care professional "on tamper-resistant paper." Former RCW 69.51A.OI0(7)(a).
Tyler Markwart argues the trial court should have permitted him the opportunity to argue to the jury that providers may reasonably rely on documentation presented by a patient. We find no case that implies the medical marijuana provider 'may rely on the patient to present the obligatory documentation. We find no case that waives the requirement that a medical marijuana provider insure that the authorization be on special paper. Further, Markwart's argument conflicts with the statute. MUMA expresses an intent that the provider ascertain the qualifications of the patient. The citizens of Washington, when adopting MUMA, and the state legislature, when enacting amendments, necessarily considered tamper resistant paper critical in the delivery of medical marijuana. The citizens and legislators understood the ease by which authorizations could otherwise be forged. If Tyler Markwart did not know what constituted tamper resistant paper or was unable to detect the special form of paper, he should not have been in the business of selling medical marijuana. He should have educated himself, before making any sales.
Tuesday, July 8, 2014
Yesterday, Americans for Safe Access released this detailed new report (PDF) on state medical marijuana laws. Among its many helpful features is a chart with a comprehensive state-by-state comparison of the conditions for which a patient can obtain medical marijuana (on page 6.) It is sure to be helpful for legal researchers and medical marijuana patients alike.
From the report's introduction:
Until recently, counting medical cannabis states boiled down to a ”yes or no” analysis – either a state had some kind of medical cannabis law, or it did not. That simple analysis is no longer enough to understand the evolving landscape for medical cannabis in the United States. The laws are simply too different, and not all function as intended. At Americans for Safe Access (ASA), the nation’s leading medical cannabis patients’ advoca- cy organization, we have more than a dozen years of experience in state policy devel- opment and implementation. Our experience shows that not all medical cannabis laws are working equally for the patients they were designed to serve. We need a new way to talk about and evaluate state medical cannabis laws.
The report also gives each state a "grade," calculated by looking at a wide range of factors--from the extent to which the law protects patients from arrest to whether the state ensures consumer safety by requiring testing and labeling of medical marijuana. From the report:
After hosting scores of community forums across the U.S. to obtain input from patients on what issues are most important to them, ASA created a matrix to deconstruct med- ical cannabis laws in order to evaluate and grade each component based on patient needs.
So, which state has the best medical marijuana law (in ASA's estimation)? Maine comes out on top with a "B" (and a point score of 339). The only other state to get a "B" grade was Rhode Island, though California and Washington each get a "B-".
Disclosure: I currently serve on ASA's Board of Directors, though I was not involved in the writing of ASA's new report.
Tuesday, July 1, 2014
The question in the title of this post is prompted by this Denver Post article headlined "Lawmakers in 11 states approve low-THC medical marijuana bills." Here are excerpts:
Spurred by the stories of epileptic children being treated in Colorado with cannabis oil, lawmakers across the country this year have made a dramatic change in how they talk about marijuana.
Thus far, nine states have passed laws legalizing either the use of non-psychoactive marijuana extracts for medical treatment or the study of such products. The slate of states — Alabama, Florida, Iowa, Kentucky, Mississippi, South Carolina, Tennessee, Utah and Wisconsin — reads in part like a list of states previously most resistant to changes in marijuana laws. In another two states, Missouri and North Carolina, the legislatures have passed bills that need only a signature from the states' respective governor.
Advocates both for and against changes to marijuana policies continue to debate whether the laws will have any practical impact. But the new laws represent an ongoing rebellion of states from the federal government's current position that marijuana has no accepted medical use.
"I think it validates this as medicine," said Paige Figi, one of the founders of the Realm of Caring, which gained fame in a pair of CNN documentaries for producing non-psychoactive marijuana oil. Figi's daughter, Charlotte, suffers from severe epilepsy, but she has received relief by using an extract made from marijuana plants that is high in a chemical called CBD and low in the psychoactive component of marijuana, THC. The most famous variety of marijuana from which the oil is made, Charlotte's Web, is named after Charlotte Figi. "It's very important, these little baby steps with CBD bills," said Paige Figi, who has testified in support of several of the bills.
Conclusive research on the efficacy of CBD to treat epilepsy or other conditions is still in the works, but its potential has generated tremendous interest among parents whose children's seizures are not controlled by current medicines. Hundreds of families have moved to Colorado for the oil, which is currently available only through the state's medical marijuana system.
While all of the new laws across the country embrace the possible therapeutic use of CBD, they vary widely in the details. Laws in Florida and the pending bill in Missouri would allow CBD-rich marijuana to be grown in those states. Others legalize possession of CBD but don't specify a source. Some require universities to produce or supply CBD, while others — such as Alabama's — allow only research programs.
Those limitations mean traditional marijuana reformists have kept the laws at arm's length, worried about forestalling bigger changes while simultaneously supporting the sentiment behind the laws. "The bills are so limited and drafted in a way as to likely be practically and legally impossible to implement and therefore will be symbolic only," Tamar Todd, a senior staff attorney with the Drug Policy Alliance, wrote in an e-mail. Figi, who said she supports broader medical marijuana legalization, said the laws could be a "stepping-stone" to laws that would allow treatment for more conditions.
Those opposed to medical marijuana legalization have likewise approached the bills with ambivalence. Kevin Sabet, who works with the national group Smart Approaches to Marijuana, said no one wants to keep parents from accessing treatment that may help their children. But, he said, the new laws may offer false hope to patients and said the safer solution is for federal regulators to allow more controlled trials of marijuana-derived pharmaceuticals.
One such trial has about 300 patients across the country. A preliminary study of a handful of those patients suggested a CBD medicine could be effective in treating seizures — similar to other surveys that have found many, but not all, patients using CBD-rich marijuana like Charlotte's Web have seen a benefit. "Simply saying we can solve the issue by passing legislation allowing one to go to Colorado, buy CBD from who knows where, and come back to your home state is not a sustainable solution," Sabet wrote in an e-mail....
Figi said the need for high-CBD treatment is urgent, citing the more than 9,000 names on a wait list for Charlotte's Web. The Realm of Caring plans to produce more oil this year under the Colorado Department of Agriculture's hemp program. That's possible because the program defines hemp — the taxonomic twin of marijuana — only as low in THC.
I share Paige Figi's perspective that the CBD bills being passed in many states are an important first step toward broader reform. Moreover, given the significant (and potentially problematic) variation in CBD bills in all these states, I think marijuana reform advocacy groups would be wise to consider drafting and promoting a "best practices" low-THC reform bill that could be embraced by these states and others. Especially if one goal of reformers is to get the feds to take marijuana off Schedule 1 of the DEA's list of prohibited drugs, then getting more states to enact CBD bills ought to be an important means to that eventual end.
Friday, June 27, 2014
Oregon joins Alaska and Florida as states for marijuana reformers to watch extra closely in campaign 2014
As reported in this Christian Science Monitor article, headlined "Marijuana: Oregon and Alaska could be next to legalize recreational use," a submission of petition signatures yesterday in the Beaver State now seems to make likely that at least three states will have significant marijuana reform initiatives before voters in November 2014:
While the fight is heating up in Florida over a ballot measure to legalize medical marijuana, voters in Oregon and Alaska will decide whether to join Colorado and Washington in legalizing recreational use.
If marijuana advocates have their way, the number of states where recreational pot is legal could double this year. On the November ballot in Oregon and Alaska are measures allowing the sale of recreational marijuana to adults. If those initiatives pass, the two states would join Colorado and Washington in legalizing cannabis.
Meanwhile, Florida voters will decide on a constitutional amendment legalizing the use of marijuana for medical purposes. That would make it the 24th state, plus the District of Columbia, to legalize medical marijuana.
In Oregon Thursday, supporters of marijuana legalization turned in 145,000 signatures – far more than the 87,213 valid signatures of registered voters necessary to qualify as a ballot initiative. “The Control, Regulation and Taxation of Marijuana and Industrial Hemp Act strictly regulates marijuana sales and possession,” according to New Approach Oregon, the advocacy group that submitted signatures to the Oregon secretary of state. “It legalizes the use of marijuana by adults only and taxes marijuana and its products to generate money for education, public safety, drug treatment, and drug prevention.”
Initiative Petition 53, as the measure is also known, would allow adults to possess up to eight ounces of marijuana and up to four plants. Sales would be subject to a flat tax of $35 per ounce for marijuana flowers, $10 per ounce of marijuana leaves, and $5 per immature cannabis plant....
In Alaska, a November ballot measure would legalize the adult possession of up to one ounce of cannabis as well as the cultivation of up to six plants (three flowering) for personal consumption, according to “The Daily Chronic,” a newspaper produced by marijuana reform activists. It would also allow for the establishment of licensed, commercial cannabis production and retail sales of marijuana and marijuana-infused products to those over the age of 21....
Polls show a majority of Floridians support medical marijuana legalization, but constitutional amendments need a 60 percent majority in order to pass. Still, a Quinnipiac University poll last month showed 88 percent support for allowing adults to legally use marijuana for medical purposes, if a doctor prescribes it. By a smaller 53-42 percent majority, Florida voters support allowing adults to legally possess small amounts of marijuana for personal use, according to this poll.
While proponents of the referendum got a head start in fundraising, deep-pocketed Republicans have since jumped into the battle. The Drug Free Florida campaign, which opposes the amendment, has raised $2.7 million, including a $2.5 million contribution from Las Vegas casino magnate Sheldon Adelson, a major Republican donor. Earlier this month, the nonpartisan Florida Sheriffs Association began a separate “educational campaign” against the amendment....
The Florida amendment is also enmeshed in the hot race for governor. Republican Gov. Rick Scott opposes it, while former GOP Gov. Charlie Crist, who is seeking to return to the office as a Democrat, supports it.
Friday, June 20, 2014
As reported in this New York Times article, "Gov. Andrew M. Cuomo and legislative leaders announced an agreement on Thursday for a pilot program to provide access to marijuana to sick New Yorkers, making the state one of the largest to embrace the drug’s use as medicine." Here is more:
The announcement came after days of intense negotiations between the Legislature and Mr. Cuomo, a Democrat, who had proffered a more restrictive system earlier this year that was roundly criticized as unworkable for thousands of potential patients.
The new agreement included a major demand of the Cuomo administration: that no smoking of the drug would be permitted, though a variety of other options — including edibles and tinctures — would be. Patients would also be allowed to inhale if the drug was vaporized, similar to e-cigarettes.
“There are certainly significant medical benefits that can be garnered; at the same time, it’s a difficult issue because there are also risks that have to be averted,” Mr. Cuomo said, mentioning safety and law enforcement concerns. “We believe this bill strikes the right balance.”
The State Health Department would oversee the program, which would contain a provision to “pull the plug” on it at any time, Mr. Cuomo said. He called that necessary to protect public health and public safety, adding that it “increases my comfort level a great deal.”
A small number of diseases would qualify patients for medical use, including AIDS, cancer, epilepsy and several serious degenerative conditions.
A few weeks ago, the House passed an amendment to the Department of Justice's budget bill that would restrict it from using funds to prevent states from implementing their own medical marijuana laws. As I discussed at the time, I think the vote was incredibly significant politically, though the text of the amendment itself is actually quite narrow.
One of the key questions has been whether the amendment would gain any traction in the Senate. Yesterday, news came that Senator Rand Paul has introduced the amendment and Cory Booker will has signed on as a co-sponsor. It appears the vote will be coming soon (possibly today). It will be very interesting to see how it plays out.
Sunday, June 15, 2014
The question in the title of this post is my (only slightly) tounge-in-cheek response to this Christian Post article headlined "Oklahoma Senator Quotes Genesis 1:29 to Seek Marijuana Legalization." Here are excerpts:
Oklahoma state Sen. Constance Johnson announced the filing of a statewide initiative petition to legalize marijuana, telling supporters that the campaign is based on Genesis 1:29, which suggests that God created "this wonderful, miraculous plant."
"We're putting forth Genesis 1:29 as the basis of this campaign," KFOR.com quoted Sen. Johnson, a Democrat, as telling supporters at the State Capitol on Friday after filing the petition with the office of the Oklahoma secretary of state.
"God created this wonderful, miraculous plant and we know that it has been vilified for the last 100 years, and it's time to change that in Oklahoma," added the senator, who has led efforts, along with attorney David Slane, to legalize pot. The advocates of marijuana will require 160,000 signatures from registered voters within three months to get the proposal on a statewide ballot....
The petition states that up to one ounce of marijuana should be allowed for recreational use, and three ounces for medical reasons. The senator is of the opinion that resultant tax benefits would benefit the state.... Johnson also says that decriminalizing possession would ease the burden on prisons. "We're locking up non-violent, marijuana possessing people, giving them felonies and filling up our prisons."
"It's just the right thing to do. It's a plant. It's a God given plant and it could change the world," Fox 25 quoted a petition supporter, Pamela Street, as saying Friday....
Marijuana is different in nature from caffeine, Christian theologian John Piper wrote on the blog of his Desiring God ministry recently. While marijuana "temporarily impairs the reliable processing of surrounding reality," caffeine "ordinarily sharpens that processing," he said.
June 15, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Religion | Permalink | Comments (0)
Thursday, June 5, 2014
State AG backs corporation in notable Colorado case concerning fired quadriplegic medical-marijuana patient
As reported in this Denver Post piece, the Colorado "state attorney general's office says Coloradans do not have a right to use marijuana off the job, siding with a satellite television company in its firing of a medical-marijuana patient." This position is articulated in a brief filed in the Colorado Supreme Court in the notable case involving a quadriplegic medical-marijuana patient who was fired by Dish Network after testing positive for marijuana. Here is more of the context:
In a brief filed with the state Supreme Court last month, the Colorado attorney general's office argues that giving workers a right to use marijuana off duty "would have a profound and detrimental impact on employers in the state."
"Contrary to popular perception, Colorado has not simply legalized marijuana for medical and recreational purposes," state attorneys write in the brief. "Instead, its citizens have adopted narrowly drawn constitutional amendments that decriminalize small amounts of marijuana."
The Colorado Court of Appeals — the state's second-highest court — last year upheld Dish Network's firing of a quadriplegic medical-marijuana patient for a positive drug test. Although there is no allegation that Brandon Coats was stoned at work, the company said it has a zero-tolerance policy on marijuana.
Coats say his off-the-job marijuana use should be protected by Colorado's Lawful Off-Duty Activities Statute, which prevents companies from firing employees for doing things outside of work — like smoking cigarettes — that are legal. Dish Network argues that marijuana use can't be considered lawful while cannabis remains illegal federally.
In its brief supporting Dish Network, the state attorney general's office says zero-tolerance policies ensure that employees are able to perform their jobs competently. Requiring employers to prove that workers are stoned on the job before they can be fired would require companies to conduct "intrusive investigations into the personal life of an employee."
"Simply put, zero tolerance policies provide businesses with an efficient means of avoiding difficult employment decisions and even litigation," the attorney general's brief states.
Coats' case is the first time Colorado's highest court has taken up questions about the scope of marijuana legalization in the state, and it has drawn at least six outside groups filing briefs in support of Coats or Dish. The Colorado Mining Association, the Colorado Defense Lawyers Association and the Colorado Civil Justice League — which claims an allegiance with several businesses and groups including the Denver Metro Chamber of Commerce — have filed briefs on behalf of Dish. The Colorado Plaintiff Employment Lawyers Association and the Patient and Caregivers Rights Litigation Project have filed briefs supporting Coats.
The Supreme Court has not announced when it will hear the case.
Sunday, June 1, 2014
The local article, headlined "State profits $6.8 million from medical marijuana," highlights some of the economic realities surrounding medical marijuana in Michigan. Here are the basics:
The state of Michigan raked in $10.8 million during 2013 through the state medical marijuana program. With $4 million in expenses, medical marijuana provided a $6.8 million boost to the state finances, according to a Jan. 1, 2014 report on medical marijuana in Michigan filed to the state Licensing and Regulatory Affairs (LARA) department.
Last year’s profits are slightly higher than 2012, when the state generated $6.2 million in revenue from medical marijuana. As part of the 2008 Michigan Medical Marihuana Act (MMA), a statistical report must be submitted to the state at the beginning of each year. The revenue is generated through licensing fees.
Between Oct. 1, 2012 through Sept. 30, 2013, 82,193 applications for a medical marijuana card were approved while 11,612 applications were denied. The state approved 36,175 applications for a renewed license and denied 8,672 patients with existing licenses....
Patients seeking a medical marijuana card must have a health condition to do so. Severe and chronic pain accounted for nearly 70 percent of claims, followed by severe and persistent muscle spasms, severe nausea and seizures.
This local article from Connecticut, headlined "Medical marijuana's first product, jobs," highlights some of the reasons I believe marijuana reform is going to garner a lot more adherents than opponents among those interesting in economic development. Here are excerpts:
Months before any cannabis-based products will reach patients, Connecticut's new medical-marijuana industry has already created hundreds of jobs -- in construction. Former factories are being reconfigured into secure pharmaceutical facilities for the growing, harvesting, curing and preparation of various strains of marijuana that should be delivered to the state's dispensaries by early fall.
Since the state awarded four marijuana producer licenses in January, an estimated $20 million has been committed to the West Haven, Watertown, Portland and Simsbury buildings that in a few weeks will begin growing thousands of pounds of pot....
In a West Haven industrial zone parallel to Interstate 95, David Lipton, managing partner of the Fairfield-based Advanced Grow Labs, is supervising the conversion of 26,000 square feet of space that will house sterile laboratories, heavily lighted grow areas and budding rooms that will promote marijuana flowers, the part of the plant with the highest concentration of active ingredients. During a tour of the sprawling, noisy one-story building last week, more than a dozen electricians, sheet-rock experts and other subcontractors worked to transform the space....
Advanced Grow Labs is one of a series of new projects that are bringing economic growth, said Joseph A. Riccio Jr., commissioner of development for West Haven. Last year, city building permits brought in $800,000 to the city, but in the first five months of this year, the total has already topped $1 million.
He said the medical marijuana industry is obviously fostering jobs while the region still recovers from the recession. "This is a good boost for tradesmen," he said during a phone interview last week. "Every job is a good job."
Lipton estimates his company has invested about $2.5 million in construction and equipment, employing dozens of workers at a time, from structural and mechanical engineers, to steel fabricators to sheetrock installers, tapers, masons, electricians and plumbers. Those workers are generating Worker's Compensation and payroll taxes for the state. "There's definitely a positive effect on the economy," he said, adding various building and work permits from West Haven generated revenue for the city and that once up and running, the company will also pay personal property taxes....
Thirty-two miles to the north, in a hilltop Watertown industrial park near Route 8, Ethan Ruby, CEO of Theraplant, is supervising a similar conversion to a 63,000-square-foot building, about half of which will be renovated for initial production. The operation will have a 900-square-foot safe for storing market-ready material.
Ruby, who heads the state growers' association, said his company has invested about $8 million, nearly half of the estimated $20 million the four producers have spent for the initial phases of operations. On a recent day, Ruby counted 73 workers on-site, including landscapers, sheetrock installers and electricians.
Monday, May 26, 2014
California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges
The Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California. The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts:
When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.
With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."
That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.
The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")
The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."
The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.
Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.
Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.
Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."
A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.
Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....
Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.
He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.
He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.
Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)
Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...
Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program. The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....
Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said. He has two. But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.
Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined. So "they should please leave us alone and let local enforcement tackle our own marijuana problems."
Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.
I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.
Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.
Wednesday, May 21, 2014
On Monday, a New Mexico appeals court upheld an order requiring an employer (and its insurance company) to pay for an employee's medical marijuana. The decision involves a worker who was seriously injured on the job. The employer did not dispute the employee's eligiblity for worker's compensation generally, but objected to coverage of medical marijuana. In what, to my knowledge, is a first, the court held that medical marijuana is covered under the New Mexico Workers' Compensation Act.
Here's an overview of the case, from the opinion's introduction (PDF):
We consider in this appeal whether, under the Workers' Compensation Act (theAct), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), an employer and insurer must reimburse an injured worker for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26-2B-1 to -7 (2007). The workers' compensation judge (WCJ) found that Worker Gregory Vialpando was qualified to participate in the State of New Mexico Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. The WCJ ordered Worker to pay for medical marijuana through the program and Employer and Insurer Ben's Automotive Services and Redwood Fire & Casualty (collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the WCJ erred because his order is illegal and unenforceable under federal law and also thereby contrary to public policy, and (2) the Act and regulations promulgated pursuant thereto do not recognize reimbursement for medical marijuana. Because we agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we affirm.
The outcome is a bit of a surprise since it seems the employer is being ordered to commit a federal crime. The court's discussion on that point is perhaps the most interesting part of the opinion (though the whole thing is worth a read for those who follow marijuana law.) It seems that sloppy lawyering on the part of the employer/insurer may have played a role in the outcome. Though the employer raised the preemption issue generally, it apparently failed to cite to a specific federal statute it would be violating by paying for its employee's marijuana.
Employer does not attempt to challenge the legality of the Compassionate Use Act. Instead, Employer asserts that, because marijuana remains a controlled substance under federal law, the order to reimburse Worker for money spent purchasing a course of medical marijuana “essentially requires” Employer to commit a federal crime. However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).
Also of note, the court's discussion of whether requiring an employer to pay for medical marijuana is at-odds with federal public policy:
Employer also argues that the order should be reversed because it is contrary to federal public policy as reflected in the CSA and Gonzales. Worker contends that federal public policy supports medical marijuana because the Department of Justice has announced a somewhat deferential enforcement policy. Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes. On one hand, the Department of Justice affirmed that marijuana remains illegal under the CSA and that federal prosecutors will continue to aggressively enforce the statute. But, on the other hand, and in the same documents, the Department of Justice identified eight areas of enforcement priority and indicated that outside of those priorities it would generally defer to state and local authorities. In addition, the Department of Justice stated that it informed the Governors of Washington and Colorado, two states that voted to legalize possession of marijuana and regulate its production and distribution, that it would defer its right to challenge those laws. We also observe that New Mexico public policy is clear. Our State Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” Section 26-2B-2. We decline to reverse the order on the basis of federal law or public policy.
I'm not sure how much precedential value the opinion has. If the employer's attorneys were more thorough, I don't think they would have had much trouble pointing to a federal statute that they would be forced to violate by paying for marijuana (21 USC 844, as an accomplice, comes to mind.) But, because the employer didn't highlight a specific statute, the Court of Appeal was able to side-step the issue. I suspect attorneys for employers/insurers in future cases will be careful not to make this same mistake.
Saturday, May 17, 2014
The title of this post is the headline of this intriguing article from Roll Call. Here are excerpts:
The last time Rep. Dana Rohrabacher offered an amendment on the House floor to protect states rights when it came to legalization of medical marijuana, it was defeated 163–262. Since that vote in 2012, four states — Illinois, Massachusetts, New Hampshire and Maryland — passed laws or regulations allowing for the use of medical marijuana, bringing the total to 21 states and the District of Columbia.
Now, supporters of medical marijuana anticipate the strongest vote yet on a states-rights amendment when the fiscal 2015 Commerce-Justice-Science appropriations measure (HR 4660) comes to the House floor in a few weeks, while lawmakers are weighing offering additional marijuana provisions on appropriations measures. Most, but not all, of the proposals lawmakers are considering bringing up are aimed at protecting state laws and programs on medical marijuana use.
The chief provision, which will be offered as an amendment to the appropriations bill funding the Commerce and Justice departments, would prohibit the federal government from prosecuting medical marijuana users and providers who are abiding by their state’s law. The House has voted on similar proposals six times since 2003, with about 150 to 160 members supporting it each time. But advocates expect that more lawmakers than ever will support the bipartisan proposal this year, which will likely be introduced by two California lawmakers, Rohrabacher, who is a Republican, and Democrat Sam Farr. Boosters expect to win new backers this year because of the increasingly high poll numbers supporting legalization....
That increasing support may lead lawmakers to hold additional marijuana policy votes on other appropriations bills. Rep. Ed Perlmutter, D-Colo., may consider offering an amendment to the Financial Services appropriations measure that would help marijuana businesses get access to banking by updating federal rules, according to his office. An aide for Colorado Democrat Jared Polis said he also may offer marijuana policy amendments, although he has not made a decision yet....
The backers of the Rohrabacher amendment are an unusual group of social liberals and conservatives who see legalization as a states’ rights issue. Lawmakers including Blumenauer, Michigan Republican Justin Amash and Texas Republican Steve Stockman have voted for it in the past.
Georgia Republican Paul Broun, a physician who supports the amendment, said in a statement that the provision makes sense “from both a medical perspective and a Constitutional perspective.” He added, “This amendment would ensure that medical marijuana patients adhering to their state’s laws would not be punished by an overreaching federal government.”
Friday, May 16, 2014
As reported in this local article, headlined "Medical marijuana on verge of Minn. law; it will be strictest in U.S.," the Land of 10,000 Lakes seems poised to join the collection of states to have legalized medical marijuana. Here are the basic details:
Thousands of Minnesotans with cancer, HIV/AIDS, epilepsy and other conditions would be able to legally treat their symptoms with marijuana under a legislative deal struck Thursday. The proposal will make Minnesota the 22nd U.S. state to grant some legal level of access to the drug for medicinal purposes, but also will be the most restrictive marijuana law in the country. Minnesota will be the only medical marijuana state that would forbid smoking as a form of treatment and that would bar access to the drug in plant form.
Gov. Mark Dayton, who opposed legalization of medical marijuana for much of the session, pledged to sign the bill into law. Under the compromise negotiated between the House and Senate, an estimated 5,000 patients could begin using the drug by July 1, 2015, picking up their supply at any one of eight distribution sites across the state....
To obtain the drug, patients will need to be certified as eligible by a doctor, physician assistant or advanced practice nurse. They will get the drug in liquid, pill or by vaporized delivery method. The state Department of Health will oversee manufacture of the drug at two sites and set up a distribution center in each of the state’s congressional districts....
The Minnesota Medical Association released a statement that stopped short of support, saying only that it would not oppose the bill. “It may be the narrowest interpretation of medical marijuana in the country,” said Dr. Dave Thorson, the group’s board chairman.
The full list of conditions eligible for access to the drug are: Cancer associated with severe or chronic pain, nausea or severe vomiting, or severe wasting; glaucoma; HIV/AIDS; Tourette’s syndrome; ALS (Lou Gehrig’s disease); seizure-inducing epilepsy; severe and persistent muscle spasms brought on by multiple sclerosis; Crohn’s disease, and terminal illness with a life expectancy of less than a year or that causes severe pain, nausea, severe vomiting or wasting. Left out of that equation are a wider group of chronic pain sufferers, as well as people diagnosed with post-traumatic stress disorder....
In a statement to the press, Dayton praised the efforts of the group of parents of ill children who want to treat their kids’ seizures with marijuana-based compounds. Earlier in the legislative session, Dayton angered many of those same parents with his firm insistence that law enforcement groups sign off on any medical marijuana law.... Dayton said Thursday his administration “will do everything possible to implement it as swiftly and successfully as is possible.”
Sunday, May 11, 2014
The title of this post is the headline of this interesting Q&A from the Los Angeles Times highlighting an intriguing landlord-tenant law question, variations of which seems likely to arise in lots and lots of settings in lots of different locales. Here is how the discussion unfolds in this article:
Question: I manage an apartment complex and have a tenant, "James," who smokes marijuana inside his apartment and out on the balcony. Many of the other tenants in the complex complain about the marijuana smoke, including the mother of a boy with asthma. James says he has a medical marijuana card for chronic pain, and I believe him. Under the fair housing laws, do I have to let him smoke on the balcony or inside his apartment?
Answer: No, you do not have to let James smoke on the balcony or even in his apartment, even though James is disabled and even though it is legal to smoke marijuana under California law with a medical marijuana card.
Under the federal Fair Housing Act, housing providers are ordinarily obligated to provide reasonable accommodations for tenants with disabilities to ensure that they have the full use and enjoyment of their homes. So one might think that the housing provider in this case might be obliged to allow James to smoke marijuana as a reasonable accommodation, assuming James can show that marijuana is part of the medical treatment for his disability
However, the federal Fair Housing Act reasonable accommodation provisions exclude the current use of a "controlled substance" under federal law from protection. Even though medical marijuana is legal under California law, it is not legal under federal law. Because the Fair Housing Act is a federal statute, and it provides the source of the reasonable accommodation right that would entitle James to smoke medical marijuana as a reasonable accommodation, James is out of luck.
The California government has not stepped in to disagree with the federal government on this issue.
As an alternative to evicting James or banning him from using marijuana altogether, you might consider asking James if he can get the pain relief he seeks by eating the marijuana rather than smoking it. This way, he would not be bothering other tenants but would still get the medical benefits of the drug.
This area of law is still somewhat up in the air, though, so please check in with a private attorney or your local fair housing organization for any updates.