Marijuana Law, Policy & Reform

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Moritz College of Law

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Wednesday, November 5, 2014

Some first thougts on the 2014 election results

Alaska, Oregon, and the District of Columbia just voted to legalize recreational marijuana. In a sense, they broke no new ground -- Colorado and Washington already legalized recreational marijuana two years ago. But the passage of these measures is extraordinary in another sense: marijuana legalization no longer surprises anyone. Even the federal government, which continues to ban marijuana, seems unlikely to raise a fuss. Indeed, following similar votes in Colorado and Washington in 2012, the Department of Justice announced that it would refrain from prosecuting marijuana users and dealers who comply with state law, so long as they do not implicate a distinct federal interest (like stopping inter-state shipments of the drug).  As control of the Congress shifts to the Republican Party, it seems unlikely that the federal government will do anything but continue to sit on the sidelines for the next two years.

The votes on Tuesday are interesting for two other reasons as well. First, these votes arguably foretell how marijuana laws will evolve in the states over time. The four states and DC that were the first to legalize recreational marijuana were also among the first to legalize medical marijuana: Alaska, Oregon, and Washington legalized medical marijuana in 1998, Colorado did so in 2000, and DC first tried in 1999. This suggests that voters might be more comfortable taking the plunge (i.e., legalizing recreational marijuana) after dipping their toes in the pool first (i.e., legalizing medical marijuana). It also suggests that the next states to legalize recreational marijuana are likely to be ones with more mature medical marijuana programs, such as California (1996) and Maine (1999).

Second, the defeat of a medical marijuana initiative in Florida is as unsurprising as the passage of legalization elsewhere. The south has been resistant to marijuana reforms; it remains the only region of the country without a legalization state. To some extent, southern resistance might be due to public attitudes toward marijuana; but it also might stem from lawmaking procedures used in many southern (and some other states) that impede the adoption even of popular reforms. After all, over half (58%) of Florida voters actually supported legalization of medical marijuana; but that figure just was not enough to change state law – the constitutional initiative process requires 60% support, higher than the simple majority needed in many other states, like California. A vote to legalize marijuana elsewhere in the country might not be surprising anymore, but when it happens in the south it will be noteworthy.

November 5, 2014 in Criminal justice developments and reforms, Current Affairs, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, November 4, 2014

Senator Rand Paul says feds ought not preclude DC (or states) from making local marijuana policy

As reported in this Roll Call article, headlined "Rand Paul: Let D.C. Legalize Marijuana, If Voters Want," the Republican Senator currently in charge of federal oversight of Washington DC expressed a disinclination to have the feds get in the way of a local vote to legalize marijuana inside the Beltway. Here are the details:

As District of Columbia voters are seemingly poised to approve a ballot item to allow cultivation and possession of small quantities of marijuana for personal use, the Republican in charge of a subpanel with D.C. oversight says home rule should prevail.

“I think there should be a certain amount of discretion for both states and territories and the District, you know,” Sen. Rand Paul said outside his polling place at an elementary school here. “I think really that when we set up our country, we intended that most crime or not crime, things that we determined to be crime or not crimes, was really intended to be determined by localities.”

The Kentucky Republican is the ranking member of the Homeland Security and Governmental Affairs Subcommittee on Emergency Management, Intergovernmental Relations, and the District of Columbia. The unique status of the District gives Congress broad powers to negate local policies, but on the pot question, Paul is strongly on the side of federalism.

“I’m not for having the federal government get involved. I really haven’t taken a stand on … the actual legalization. I haven’t really taken a stand on that, but I’m against the federal government telling them they can’t,” Paul said.

It it isn’t clear that Paul would have the D.C. subcommittee gavel in the event Republicans claim the six seats needed to take the Senate majority. In fact, he indicated shortly before weighing in on the marijuana issue that he had his sights set on a different subcommittee.

November 4, 2014 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Oregon voters create a third state to fully legalize recreational marijuana

Though all the votes in Oregon have not been fully counted, it seems that enough votes are in to call the outcome in the Beaver State on Measure 91 to legalize marijuana.  And, by a margin of 54% to 46%, Oregon has joined Colorado and Washington as states that will have a fully legalized and regulated recreational marijuana marketplace.

November 4, 2014 in Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Early marijuana initiative votes have DC favoring legalization and Florida supporting but not passing medical marijuana

Alex does a wonderful job in this post linking to websites for marijuana initiative voting outcomes, and the early results from DC and Florida have already set up an interesting set of political and legal stories to follow in the months and years ahead.  

In DC, it appears that Initiative 71 legalizing marijuana has garnered nearly 70% of votes, and in Florida it appears that Amendment 2 legalizing medical marijuana has garnered 58% of votes.   But, under Florida's laws, an initiative needs 60% support for passage, so medical marijuana will not be happening in the Sunshine State yet.  And, in the weird federal enclave that is Washington DC, it is quite unclear whether and how the federal government can or will allow the local DC vote to change drug war policies or practices.  

Just some more on-going, ever-evolving marijuana reform stories for this blog to follow.

November 4, 2014 in Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Where to follow marijuana ballot measure results?

Election night is upon us.  I'm a little late in getting this posted as east coast results are already steadily coming in, but better late than never.  

Here are some resources for following the returns for marijuana related ballot measures.  This is not an exhaustive list and there may be better sources than the ones I've found.  This is just one quick attempt at a list of where to track relevant results.

Alaska -- Ballot Measure 2: Marijuana Legalization -- Alaska Division of Elections (scroll to measure 2)

DC -- Amendment 71: Marijuana Legalization -- DC Board of Elections page

Florida -- Amendment 2: Medical Marijuana -- Miami Herald's statewide returns page  

Oregon -- Measure 91: Marijuana Legalization -- Oregon Live

Other resources: 

Americans for Safe Access's twitter feed

Marijuana Majority's twitter feed

Kevin Sabet's twitter feed 

Smart Approaches to Marijuana's live blog

Some (not all) of the local ballot measures:

California: (h/t to ASA's Don Duncan) Medical marijuana related measures in Butte County, Encinitas, La Mesa, Santa Ana, Santa Cruz, and Shasta County (there are a couple of others I do not have links for) 

Colorado:  Local measures on whether to ban or allow marijuana stores in Lakewood (Adams County) and a number of towns in El Paso County (search for marijuana to see the relevant measures), as well as others I do not have links for.

Maine: Lewiston and Portland decriminalization of possession (search on the page for marijuana)

Michigan:  No links for results pages, but here is a list of the measures  

November 4, 2014 in Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, November 3, 2014

Election 2014 Buzz: could older voters in Florida get medical marijuana initiative to 60%?

While advocates for legalizing and regulating marijuana like alcohol may be most focused on initiative votes in Alaska, DC and Oregon, the medical marijuana initiative vote taking place in Florida is distinctly interesting for lots of distinct reasons.   This new CBS News piece, headlined "Seniors sway medical marijuana debate in Florida," highlights some of the unique Sunshine State dynamics:

The debate over legalizing medical marijuana in Florida constantly generates talk of young people potentially flooding the polls. But seniors are the most reliable voters and could be key to the outcome of the measure.

Though polling on Amendment 2 has been erratic, seniors have been showing a level of interest in the initiative that underscores the fact they may benefit most from its passage. "You get older, you get sick, you start getting diseases, your bones stop working as well as they used to and you're presented with this pharmacopoeia of different drugs that you have to take just to get through the day," said Ben Pollara, who leads United for Care, the pro-Amendment 2 campaign. "To the extent that seniors can use marijuana to supplement or replace any of those drugs I think is a good thing."

Similar arguments have been made by older people themselves, who have turned up at events across the state, even when they've been intended for more youthful crowds. Such was the case at a recent forum at Broward College: It was held at an on-campus theater, with a promise of pizza for the droves of young people who passed by. But inside, the audience was full of faces far older than expected....

In Florida and across the U.S., a greater percentage of seniors vote than any other age group, and their share of the total electorate is even more pronounced in years without a presidential contest. In the last midterm election in 2010, about 56 percent of Floridians 65 and older voted, far higher than any other age group. They represented nearly one-third of the total ballots cast....

A July survey by Quinnipiac University found 83 percent of Florida voters aged 65 and older supported medicinal marijuana. An October poll by the University of Florida found about 37 percent of voters 60 and older support Amendment 2. Experts agree seniors show less support than younger voters, and most observers believe senior support is somewhere in the middle of those two surveys.

"The seniors, to a degree, are being targeted in that this is a wonderful thing for them because they don't have to use opiates, etcetera, etcetera," said Jessica Spencer, who is leading the Vote No on 2 group, and who says seniors who read the amendment are becoming aware it is riddled with holes. "Seniors are, of course, interested in protecting our younger generations." Supporters of Amendment 2 have far outnumbered opponents at forums. But Spencer says she has found a sympathetic ear in seniors around the state who worry what its passage could mean.

Sandi Trusso, 73, of Ocala, has been opposed to marijuana for decades, since her 28-year-old brother was killed by a driver who was drunk and high. She believes many of Amendment 2's younger supporters see it as a gateway to legalized recreational marijuana, or that medical permits will be so easy to obtain anyone can get them. "If someone's severely ill and they could control that, to limit it to that, and we knew that they could control that, who would have a problem with that?" she asked.

As the title of this post highlights, another unique aspect of Florida's marijuana vote is the fact that initiatives in the state require 60% approval to become law. Given that reality, it seems unlikely that the Florida medical marijuana initiative will get the number of votes needed for passage absent receiving considerable support from older voters.

November 3, 2014 in Initiative reforms in states, Medical Marijuana State Laws and Reforms, Polling data and results, Who decides | Permalink | Comments (0)

Election 2014 Buzz: will second time be the charm for legalization in Oregon?

Images (2)As some may recall (and some may not), in 2012 Oregon had marijuana legalization on its ballot along with Colorado and Washington.  But, unlike in those other states, serious people seriously interested in marijuana reform were not serious backing the reform efforts in the Beaver state back in 2012.  But this election season, lots of serious folks are seriously invested in Oregon's revised initiative to follow Colorado and Washington into the legalization experiment.  And, as highlighted by this article, headlined "This State Will Legalize Marijuana Tuesday — If Young People Show Up to Vote," whether Oregon follows its neighbors will depend a lot of who gets around to voting:

Two opposing polls out of Oregon are making one thing very clear: If young people get out and vote on Election Day, the ballot initiative to legalize marijuana in the state will pass.

The more recent survey, conducted by the Oregonian and KGW, found that 46% of respondents opposed Measure 91 — which would allow adults to grow, hold and, for licensed individuals, sell weed — giving them a small lead over supporters, who clocked in at 44%. Support is strongest among younger voters — 56% of voters aged 18 to 34 express support for legalization, compared with 39% of those aged 65 and over. The result will depend on whether those younger voters actually show up to the polls....

"Support goes down as age goes up," said Stuart Elway, the pollster who found just 44% in favor of legalization. DHM Research pollster John Horvick, who set the model for the first survey, agrees, pointing to the initiative's overwhelming support with younger voters.

"For example, 18- to 34-year-olds, 70% plan to vote for Measure 91 for legalization," he told Oregon Public Broadcasting. "Sixty-eight percent of independents plan to. Now those are all groups who are the least likely to show up come Election Day. So if the marijuana campaign is able to get those voters out, it looks like it could pass, it'll be close, a squeaker."

Two polls, one very similar story. If Oregon is going to legalize marijuana, it will need dedicated young voters to turn out and bring their friends with them.

November 3, 2014 in Initiative reforms in states, Polling data and results, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Election 2014 Buzz: could Alaska be the best of all legalization laboratories?

Alaska-MarijuanaSupreme Court Justice Louis Brandeis famously described the virtues of federalism in terms of a state being able to, "if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Though we currently have lots of states now experimenting with marijuana legalization in various forms, many folks on the ground will report or assert that, when these state laboratories are located in the "lower 48," there is an inherent risk to other states' efforts to prohibit marijuana use. In Alaska, however, big spaces and big distances from other US states could perhaps make it the best of all isolate state laboratories to see how experiments with a legalized and regulated marijuana marketplace will work out.

For that reason (and others, of course), I think marijuana reform supporters and opponents ought to keep a close eye on the vote concerning Alaska's Ballot Measure 2 this week.  Helpfully, this lengthy article from the Alaska Dispatch News, headlined "With Alaska marijuana vote near, the result appears to be anyone's guess," provides all the northern news you need to get up to speed on all the marijuana reform buzz. Here are excerpts:

Independent Alaskans, known for their libertarian streak, were a key reason activists threw their support behind Alaska’s effort to legalize recreational marijuana in 2014. But with only days until the vote, it's anyone's guess whether those live-and-let-live folks will go to the polls and which way they'll vote.

Polls have been inconsistent, with wildly different results, in the weeks leading up to Nov. 4. Some show that support -- nationally and in Alaska -- has been above 50 percent. But whether that will mean success for the Campaign to Regulate Marijuana Like Alcohol in Alaska remains to be seen....

At its core, Ballot Measure 2 asks Alaskans to approve “an act to tax and regulate the production, sale and use of marijuana.” But there’s much more to it. Proponents of the measure say the eight-page initiative -- too short, according to opponents -- allows the state to set up a basic framework for regulating marijuana. They expect the rulemaking process and any amendments to the law following its passage to be strict.

The initiative, if passed, would legalize recreational use of marijuana for those 21 and older. Beyond the age range, there are similarities to how the state controls alcohol. The initiative would allow the state to set up a marijuana control board, similar to the Alcoholic Beverage Control Board currently housed under the Alaska Department of Commerce, Community and Economic Development. The initiative would also tax marijuana at $50 per ounce wholesale.

The initiative allows that board to take nine months to formulate regulations. Within that period it will set up a process for issuing growing and retail licenses, outline security requirements, labeling issues, restrictions on advertising, and health and safety regulations for marijuana products, among other things. It also allows a provision for communities to opt out of allowing commercial operations or retail stores....

The Yes campaign says Ballot Measure 2 would reconcile already confusing Alaska laws regarding marijuana. In 1975, the Alaska Supreme Court ruled in Ravin v. State that the right to privacy protects a small amount of marijuana in the home. However, per state statute, it is a misdemeanor to use or display a small amount of marijuana.

Also adding confusion is Alaska’s medical marijuana laws, approved by voters in 1998. Under those laws, patients registered with the state (or their proxy) can possess up to 1 ounce of marijuana and six plants, three of which can be mature. However, no system was ever set up for dispensing marijuana, and the only way patients can access the drug is by obtaining it through the black market....

The No campaign has run a fierce ground game in Alaska, pulling support from across the state. The No campaign points to a long list of organizations opposing the measure. Big help has come from Alaska Native leaders, law enforcement, Alaska mayors and political leaders on both sides of the aisle, among other groups. They championed that support by delivering their message across the state. The campaign has voiced numerous concerns over how the regulatory process will work....

The No campaign also argued that the measure goes beyond just allowing recreational marijuana, and that it would in effect create an entire commercial industry. Those concerns about commercialization tie into what they believe will be increases in youth use, public health and public safety problems, and fiscal irresponsibility.

They’ve often pointed to Colorado as a lesson on how not to do things, citing increases in stoned driving, hash oil explosions, concerns over potent marijuana concentrates and edible overdoses, and a lack of tax revenue, among others.

They’ve also sharply criticized the Yes side for its Outside funding sources, noting that their campaign is funded solely from Alaskans' donations. To date, the No campaign has received more than $148,000 in contributions, all from in-state. In comparison, the Yes campaign has received more than $866,000, with big donations coming from the Marijuana Policy Project and Drug Policy Alliance....

The Yes campaign has pointed to support from the 45,000 people who signed the petition to get it on the ballot, well over the 30,000 needed, as well as thousands of volunteers across the state. But they’ve courted few endorsements from public figures, in striking contrast to the opposition. With the exception of Forrest Dunbar, a Democrat running for U.S. Congress, all candidates for statewide office have opposed Ballot Measure 2....

For the most part, Alaska followed a similar path to legalization seen in other states, according to Erik Altieri, communication director for NORML, the National Organization for the Reform of Marijuana Laws. He said the arguments, on both sides, were not all that different from arguments presented in Colorado and Washington.

What surprised him was the lack of partisanship in the election. Typically the lines are split more closely, with Republicans against the measure and Democrats for it. But that didn’t happen in Alaska. Campaign spokesman Bickford has a long history in Republican politics, and the campaign focused some of its efforts on getting out the vote to conservatives. In contrast, Williams, with the No campaign, is the former head of the Alaska Democratic Party.

Ethan Nadelmann, executive director of the Drug Policy Alliance, which donated $100,000 to the Yes campaign in July, said marijuana wins in Alaska and Oregon will undoubtedly lead to wins in other, larger states during the 2016 election. Nadelmann said Thursday he wasn’t sure how Alaska would turn out. What had seemed an easy win earlier in the year was clearly in “roll the dice mode” now.

That’s happened in Oregon too, he said. While either a loss or win in Alaska will likely affect national momentum, Nadelmann said other states will still move forward in 2016, including California. The ultimate goal? To put pressure on the federal government to decriminalize the drug at the highest level.

If it loses, local activists could come back but Nadelmann said Alaskans shouldn't expect to see national organizations making the same donations they did before. “If either state loses by a small amount, and it’s because young people don’t turn out, two years from now it’ll be an easy win,” he said. “But enthusiasm will be less.”

November 3, 2014 in Initiative reforms in states, Political perspective on reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, November 2, 2014

Election 2014 Buzz: looking forward to close votes in Alaska, Florida and Oregon (and DC?)

Th (1)Regular readers know that this election cycle has a number of significant marijuana reform initiatives on the ballot.  Helpfully, Jacob Sollum put together here at Reason.com's blog this helpful preview guide to all the action (with lots of links):

A week before Election Day, it looks like at least one of the four major marijuana initiatives will pass, while the other three races are too close to call. Here is a rundown of the latest polling, arranged by likelihood of passage:

 

Washington, D.C. Initiative 71, which would make it legal for adults 21 or older to possess up to two ounces of marijuana and grow up to six plants at home, enjoyed a 2-to-1 advantage in a Washington Post poll conducted last month, with only 2 percent undecided.  As I noted at the time, the initiative's prospects were boosted by a dramatic reversal of opinion among black voters in recent years, presumably driven by concerns about the racially disproportionate impact of marijuana prohibition.  Despite this groundswell of support, the fate of marijuana legalization in the nation's capital ultimately will be up to Congress, which can always override anything that D.C. voters approve.

 

Oregon. A new Oregonian poll puts support for Measure 91, which would legalize commercial production and distribution as well as possession and use, at 44 percent, with 46 percent opposed, 7 percent undecided, and 2 percent declining to say.  That two-point difference is within the poll's margin of error, so the results suggest a dead heat.  By comparison, a poll conducted earlier in October, commissioned by Oregon Public Broadcasting and the Fox station in Portland, put support at 52 percent, with 41 percent opposed and 7 percent undecided.  The sample in the latter poll was somewhat younger, based on different projections of who will vote.  Turnout by younger voters, who are consistently more likely to support legalization, could be crucial to the outcome.

 

Alaska. Surveys by Public Policy Polling put support for Measure 2, which like Oregon's initiative would create a legal marijuana industry, at 48 percent in May and 44 percent inAugust. A few weeks ago supporters and opponents of Measure 2 released dueling poll results showing the initiative winning by eight points and losing by 10 points, respectively. In a survey by pollster Ivan Moore, 57 percent of voters favored legalization, while 39 percent opposed it. A Dittman Research poll put support at 43 percent and opposition at 53 percent. Both showed 4 percent of voters undecided. The wording of the poll questions was somewhat different. The Ivan Moore survey mentioned the elimination of criminal penalties for possession of up to an ounce and noted that "constitutional protections allowing home cultivation would be preserved," a reference to the 1975 Alaska Supreme Court ruling that said the state constitution allows people to possess marijuana for personal use in the privacy of their homes.

 

Florida. Support for Amendment 2, which would make Florida the first Southern state to approve medical use of marijuana, seems to have plummeted since July, when a Quinnipiac University poll found that 88 percent of voters favored the measure. A Gravis Marketing poll conducted last week puts support at 50 percent. As a constitutional amendment, the initiative needs 60 percent to pass. "Medical marijuana is done," Gravis Marketing's managing partner told the Orlando Sentinel on Monday. "It will not pass." For those clinging to hope, United We Care, the Amendment 2 campaign, cites an Anzalone Liszt Grove poll it commissioned that puts support at 62 percent. The latter poll used the actual ballot language, while the Gravis Marketing poll used a summary.

November 2, 2014 in Initiative reforms in states, Medical Marijuana State Laws and Reforms, Polling data and results, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, October 30, 2014

"On Drug Policy Reform, a Dozen Republican Congressmen Get an A+ (and 136 Get an F)"

The title of this post is the headline of this new piece by Jacob Sullum over at Reason.com, which provides a helpful summary of the new voter guide put togethr by Drug Policy Action (DPA), the political arm of the Drug Policy Alliance.  Here is how this summary gets started:

What do Reps. Dana Rohrabacher (R-Calif.), Earl Blumenauer (D-Ore.), Thomas Massie (R-Ky.), and Jared Polis (D-Colo.) have in common?  If you follow drug policy, it probably won't surprise you to learn that they all rate A+ grades in a new voter guide that scores members of Congress based on their votes for reform.  A bit more surprising: So do 45 of their colleagues in the House, including 10 additional Republicans: David Schweikert (Ariz.), Duncan Hunter (Calif.), Paul Broun (Ga.), Justin Amash (Mich.), Kerry Bentivolio (Mich.), Walter Jones (N.C.), Mick Mulvaney (S.C.), Mark Sanford (S.C.), Steve Stockman (Texas) and Tom Petri (R-Wis.).

Drug Policy Action (DPA), the political arm of the Drug Policy Alliance, based its grades on seven votes (see list below) dealing with issues such as hemp cultivation, medical marijuana, and banking services for state-legal cannabusinesses.  To earn an A+, a representative had to vote in favor of reform all seven times. In addition to the 49 members who rated an A+, 116 got an A (six votes), 33 got a B+ (five votes), 14 got a B (four votes), 31 got a C (three votes), 23 got a D (two votes), and 141 got an F (one or zero votes). The rest did not have sufficient voting records to be graded.  The lowest-rated group consists almost entirely of Republicans, as you might expect, but there are also five Democrats who merited an F: Debbie Wasserman Schultz (Fla.), John Barrow (Ga.), Mike McIntyre (N.C.), Jim Matheson (Utah), and Nick Rahall (W.V.).

The failing congressmen include Andy Harris (R-Md.), John Fleming (R-La.), and Hal Rogers (R-Ky.), whom DPA describes as "drug war extremists." Harris distinguished himself by doggedly trying to prevent Washington, D.C., from decriminalizing marijuana possession. DPA describes Fleming as "a committed foe of marijuana reform efforts," known for "distorting and misrepresenting the facts about marijuana use in hearings, floor speeches and briefings" (here, for example) and for "taking to the floor to speak against floor amendments that would support states' rights to reform their marijuana laws, improve access to medical marijuana and improve the ability of states to regulate marijuana businesses."....

It is encouraging that the "drug war extremists" in DPA's report are far outnumbered by the 10 "champions of reform" (including Rohrabacher, Blumenauer, Massie, and Polis) and the 23 legislators receiving "honorable mentions" for sponsoring or cosponsoring reform legislation as well as voting for it.

October 30, 2014 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, October 29, 2014

District court evidentiary hearing on the constitutionality of marijuana's Schedule I status is underway

Earlier this year, an Eastern District of California judge granted a very rare evidentiary hearing on the constitutionality of the federal government's treatment of marijuana.  That hearing is finally underway this week.  I'd recommend the Eastern District of California blog for following all of the news and developments.  

The EDCA blog has been linking to relevant news coverage, which so far has been sparse unfortunately.  

There have been some posts suggesting things aren't going very well for the federal government, but I'm not so sure how much stock to put in those reports.  

For example, the Leaf has this post up on some of the testimony of defense witnesses, reprting that "attempts by US Attorneys to paint [Dr. Carl] Hart – who teaches neuroscience at Columbia University and sits on an advisory board to the National Institute of Drug Abuse (NIDA) – as a researcher blinded by his personal biases blew up, at times embarrassingly, in their faces."  The anecdotes cited to support this seem focused more on cross examination drama sorts of points, however.  

Though it does sound like Hart had a few snappy and effective replies to questions on cross, I doubt that tells us much at all about how the hearing is actually going ias far as what the likely outcome will be.  (Even weirder, the Leaf's post comes with the click-driving headline "Federal Prosecutors Appear to Concede Cannabis' Medical Benefits" but there is absolutely nothing reported in the story that I see to back up that wild claim.)  

A rational basis challenge to marijuana's Schedule I status will be a tough claim to make out, as anyone familiar with the law in this area knows.  Whatever the result, news about the hearings will be interesting to continue to follow.

October 29, 2014 in Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Monday, October 27, 2014

Notable new Cato working paper examines "Marijuana Policy in Colorado"

Dr. Jeffrey Miron, who is director of economic studies at the Cato Institute and director of undergraduate studies in the Department of Economics at Harvard University, has just produced this significant new Cato working paper titled "Marijuana Policy in Colorado."  The paper is relatively short, though it includes lots of data, and here is its Executive Summary and its closing paragraphs:

In November 2012, voters in the states of Colorado and Washington approved ballot initiatives that legalized marijuana for recreational purposes.  Alaska, Oregon, and the District of Columbia are scheduled to consider similar measures in the fall of 2014, and other states may follow suit in the fall of 2016.

Supporters and opponents of such initiatives make numerous claims about state-level marijuana legalization.  Advocates believe legalization reduces crime, raises revenue, lowers criminal justice expenditure, improves public health, improves traffic safety, and stimulates the economy.  Critics believe legalization spurs marijuana use, increases crime, diminishes traffic safety, harms public health, and lowers teen educational achievement.  Systematic evaluation of these claims, however, has been absent.

This paper provides a preliminary assessment of marijuana legalization and related policies in Colorado.  It is the first part of a longer-term project that will monitor state marijuana legalizations in Colorado, Washington, and other states.

The conclusion from this initial evaluation is that changes in Colorado’s marijuana policy have had minimal impact on marijuana use and the outcomes sometimes associated with use.  Colorado has collected non-trivial tax revenue from legal marijuana, but so far less than anticipated by legalization advocates....

The evidence provided here suggests that marijuana policy changes in Colorado have had minimal impact on marijuana use and the outcomes sometimes associated with use.  This does not prove that other legalizing states will experience similar results, nor that the absence of major effects will continue.  Such conclusions must await additional evidence from Colorado, Washington, and future legalizing states, as well as more statistically robust analyses that use non-legalizing states as controls.

But the evidence here indicates that strong claims about Colorado’s legalization, whether by advocates or opponents, are so far devoid of empirical support.

October 27, 2014 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Lots of great new stuff at Cannabis Law Prof Blog

Friday, October 24, 2014

Taxing issues as marijuana reformers try to get tax issues right

Americans_for_Tax_Reform_ATR_--_Blue_LogoPatrick Gleason, who is the Director of State Affairs at Americans for Tax Reform, has this notable new commentary at Forbes headlined "Marijuana Taxes On The Ballot This November." Here are excerpts:

Voter approval of retail marijuana sales in Colorado and Washington State in 2012 presented lawmakers in those state capitals with a difficult task not faced before in the U.S.: how to tax and regulate legal recreational marijuana.  As Joe Henchman, Vice President at the non-partisan Tax Foundation has pointed out, “Because marijuana can be purchased as a cigarette, an edible, a liquid, or vapor, all with a wide variety of concentrations, a specific excise tax is untenable.”  Since then, Colorado and Washington State lawmakers have imposed onerous and excessive taxes on marijuana; but on Nov. 4, Washington State voters will have the opportunity to tell their representatives in the state legislature to reconsider.

During the 2014 session of the Washington legislature, state lawmakers passed Senate Bill 6505, which deemed the marijuana industry to be non-agricultural, thereby removing excise tax protections that apply to the state’s agriculture industry.  This redefining of the industry will permit, if allowed to stand, more than $24 million in higher taxes over the next decade than would’ve otherwise been the case.  On Nov. 4, Washington residents will vote on Advisory Question Number 8, a ballot measure that would urge the legislature to either maintain or repeal this reclassification of marijuana products as non-agricultural.

Washington State taxes marijuana with a 25 percent assessment on sales from producers to processors, a 25 percent tax on sales from processors to retailers, followed by another 25 percent tax on retail sales.  That’s not all.  Then there is the Evergreen State’s Business & Occupation gross receipts tax, a 6.5 percent state sales tax, along with local sales taxes. Altogether this brings the estimated effective tax rate on marijuana products to approximately 44 percent.  In light of the onerous tax treatment of marijuana products and companies tied to that industry, it would be a positive development for Washington voters to vote repeal on Advisory Question 8 and urge lawmakers in Olympia to reverse the non-agricultural reclassification that will beget such punitive taxation.

But it’s not just at the state level where the marijuana industry faces excessive and unfair taxation. It’s a basic principle of sound tax policy that the code should not pick winners and losers or disproportionately target certain industries or groups of taxpayers.  Yet unlike any other business, newly-legalized cannabis dispensaries are not allowed to deduct ordinary and necessary business expenses like equipment, rent, and wages from their federal taxable income....

Section 280E of the tax code denies ‘ordinary and necessary’ business expenses as a deduction against income derived from Schedule 1 substances.  Unfortunately, tax law does not make any distinction between illegal street drug sales and state-established, legal cannabis dispensaries.  These latter businesses comply fully with state law, pay all applicable taxes, and are vigorously regulated. There is no reason why the tax code should deny ordinary and necessary business expenses to legitimate businesses established under state law.  The result is an arbitrary and punitive situation where legal employers face very high average effective tax rates that Congress never sought to impose on businesses.

Colorado, like Washington State and the federal government, exorbitantly taxes marijuana.  Between the state’s 15 percent wholesale excise tax, a 10 percent state tax on marijuana retail sales, plus traditional state and local sales taxes, the effective rate on cannabis approaches 30 percent in the Rocky Mountain State.

It’s great to have 50 laboratories of democracy across the U.S., and the trials with legal marijuana taking place in Washington and Colorado will be instructive for other states and the federal government.  Yet, when such heavy and unreasonable taxation is imposed, it blunts the positive effects of legal cannabis – such as the eradication of black markets and drug cartels – and makes it impossible to fully learn from the experience.  Washington voters and members of Congress have the opportunity to help get it right, if they so choose.

October 24, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (1)

Thursday, October 23, 2014

Oregon Senator plans to vote in favor of marijuana legalization

In another sign of the changing politics on marijuana legalization, Oregon Senator Jeff Merkley told TalkingPointsMemo.com that he plans to vote for the marijuana legalization ballot measure in Oregon.  

"I lean in support of it," the Democratic senator told TPM in an interview on Wednesday.

...

 

A vote for it would make Merkley the first U.S. senator to support making marijuana legal in his state.

 

Merkley didn't point to a time when he came around to the view that pot should be legal, saying it has not been an issue in his reelection bid. He's in good shape to win, according to recent polls.

October 23, 2014 in Current Affairs, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, October 21, 2014

How To Run A Successful Legalization Campaign

 Talk about perfect timing!  Kenneth Leon and Ronald Weitzer's article, Legalizing Recreational Marijuana:  Comparing Ballot Outcomes in Four States, is available through the Social Science Research Network.

 Here's the abstract: 

 Medical marijuana is now available in 23 states, and its growing acceptance has paved the way for the legalization of recreational marijuana. This article examines four recent campaigns to legalize recreational marijuana – two failures and two successes. Using data from newspaper sources, interviews with key players, and other sources, we examine the factors that influence whether a ballot initiative succeeds or fails. We identify similarities and differences between the four measures, the social forces shaping the debate, their claims and counterclaims, and a set of factors that appear to increase the odds that a recreational marijuana ballot measure will be successful.

The factors are based on the successful Colorado and Washington campaigns and the unsuccessful Oregon and California campaigns. I don't want to ruin the suspense created in the abstract by telling you the complete set of factors, but here's one-"age distribution of voters."

October 21, 2014 in Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Dynamic Colorado debate over suggestion of near complete ban on marijuana edibles

This new Denver Post article, headlined "Proposed Colorado marijuana edibles ban shows lingering pot discord," documents the enduring challenges and debates over the best regulatory frameworks for states which have moved away from total marijuana prohibition. Here are excerpts:

Colorado's health department proposed an industry-spinning ban on the sales of nearly all forms of edible marijuana at recreational pot shops Monday but then quickly backed away from the plan amid an industry outcry and questions over legality.

After a heated, four-hour hearing, the public policy Tilt-A-Whirl ride ended where it began: with lawmakers, regulators and stakeholders still in disagreement — now more than 10 months after the start of recreational pot sales — on the best way to manage marijuana in Colorado. "This is by far the simplest recommendation," state Rep. Jonathan Singer, D-Longmont, said of the health department's proposal. "But I don't know if it gets us to where we want to be."

The aim of the state advisory group that met Monday to consider the health department's proposal and several others is to prevent people — mostly kids — from accidentally eating marijuana-infused products. Such accidental ingestions have sent children to the hospital, caused an increase in calls to poison-control hotlines and become one of the key measures lawmakers use in discussing whether legal marijuana sales can fit harmoniously in society.

Sales of infused edibles make up about 45 percent of the legal marijuana marketplace, said Dan Anglin, the chairman of the Colorado Cannabis Chamber of Commerce.

The health department's recommendation was one of 11 proposals the group considered Monday. Most suggested the state create clearer labels for marijuana-infused products or require producers to make edible marijuana items in a unique shape or dyed a unique color.

Many of those proposals, though, quickly met with a familiar back-and-forth. One side would offer the suggestion; the other side would bat it down. Stamp a symbol onto edibles denoting the products contain marijuana? Too easily rubbed off, edibles producers said. Improve labeling and require edibles to stay with their packages? Too easily ignored to spread unmarked edibles, groups concerned about marijuana said.

Require producers to dye their products a specific color or airbrush on a symbol? "You can't force a company to use an ingredient they don't want to," said advisory group member Julie Dooley, an owner of Julie & Kate Baked Goods, an edibles producer.

In the debate, there was talk of Sour Patch Kids and marijuana-infused sodas, discussion of the cost of chocolate molds, and these words: "I think soft candy is such a broad category."

Amid this atmosphere, Colorado health department official Jeff Lawrence presented the department's proposed ban on the sales of all edibles except hard candies and tinctures. Lawrence said the disagreement over more-nuanced regulations pushed the department to propose something more sweeping. "If it couldn't be achieved," he said, "we were looking at something that could be achieved."

But the proposal — word of which spread in an Associated Press report before the meeting — quickly met a buzz saw. Industry advocates questioned whether edibles could be banned under Amendment 64, Colorado's marijuana-legalization measure. Singer worried a ban would create a "marijuana Whac-A-Mole situation" where edibles production moved into the black market. Andrew Freedman, the state's marijuana policy coordinator, said the governor's office did not support a ban.

The health department later in the day put out a news release acknowledging that the department did not consider the proposal's constitutionality or ask the governor's office to review it. Instead, the proposal was put forward to generate discussion. "Considering only the public health perspective, however, edibles pose a definite risk to children, and that's why we recommended limiting marijuana-infused products to tinctures and lozenges," Larry Wolk, the executive director of the department, said in a statement.

The discussion seemed mostly over by the end of Monday's meeting, as talk returned to more incremental forms of edibles regulation. Any final proposals from the advisory group will be presented in a report to the legislature next year. The Department of Revenue, which regulates marijuana businesses, must adopt final rules on the topic by 2016.

October 21, 2014 in Food and Drink, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, October 20, 2014

Partial victory for 7th grade boy in disturbing marijuana strip search case

A few years ago, an assistant principle at a Georgia middle school strip searched a twelve-year old boy in front of a few of his classmates, hoping to find marijuana.  The school official did not find any marijuana and, I'm guessing, he is regretting having performed this sort of disturbing search.

The student now has a partial victory in a civil lawsuit, winning a summary judgment motion on one claim against the assistant principle (but losing on a failure to train claim against the school district.)  

In an opinion dated September 30th (but just now appearing on my LEXIS alert), Judge Amy Totenberg (herself, coincidentally, a former school board lawyer) describes the facts in some detail.  Unfortunately, the opinion does not appear to be available online yet.

D.H. was in his Language Arts class when Ratcliff came to the classroom and told him to bring his book bag and come with her.

 

...

 

Deputy Redding, McDowell, D.V., T.D., and R.C. were present in Deputy Redding's office when D.H. arrived with Ratcliff. (D.H. Dep. at 88-89.) Deputy Redding informed D.H. that drugs had been found at the school and he and McDowell wanted to know whether he had any drugs on him. (D.H. Dep. at 90.) D.H. denied having any drugs on him. (Id.) Redding asked him "are you sure because you are going to get searched," and D.H. responded that "yes," he was sure that he was not in possession of any drugs. (Id.)

 

...

McDowell informed D.H. that "because of the severity of the situation" he was going to have to search him "just to make sure" he did not have any drugs on him. (Id. at 114-115, 119.) McDowell then told D.H. to empty his book bag. (D.H. Dep. at 91.) McDowell looked through the pencil boxes, zippers, and pouches of D.H.'s book bag. (Id. at 92.)

 

Dowell then proceeded to search D.H.'s person. (D.H. Dep. at 92.) McDowell first told D.H. to take off his shoes. (Id. at 93; see also McDowell Dep. at 119 (stating that he asked D.H. to remove his shoes and socks).) Then he asked D.H. to empty his pockets. (D.H. Dep. at 94;see also McDowell Dep. at 119.) After D.H. emptied out his pockets, McDowell told him to take off his pants. (D.H. Dep. at 94; see also McDowell Dep. at 119 (stating that he asked D.H. to pull his pants down).) D.H. dropped his pants to the floor, stepped his legs out of them, and pushed them aside with his foot. (Id. at 95.) Underneath his pants, D.H. was wearing red and navy blue Tommy Hilfiger boxers — the kind with an elastic waist but that are loose around the thigh. (Id. at 94-95, 113.)

 

At some point, McDowell asked D.H. to remove his uniform polo-style shirt, which according to D.H. was the only shirt he was wearing that day. (D.H. Dep. at 99.) D.H. testified that he was not wearing an undershirt. (Id.) McDowell next told D.H. to flip his socks at the top to see if he was hiding anything under the band of the sock. (D.H. Dep. at 100.) McDowell then told D.H. to take off his socks. (D.H. Dep. at 100-101.) Finally, McDowell pointed at D.H.'s boxers and said "take those off." (D.H. Dep. at 102; see also McDowell Dep. at 120 (stating that he asked D.H. to "pull his underwear away from his body and in a down motion just in case if [sic] he had anything in his — on his person, it would fall to — fall to the ground").) D.H. asked McDowell "do I have to do this here," to which McDowell responded yes. (D.H. Dep. at 102.) D.H. complied by turning to the left (with his back to his classmates) and pulling his underwear down to his ankles. (D.H. Dep. at 103, 105, 107.) McDowell paused, bent over and observed D.H.'s genitalia. (D.H. Dep. at 108; McDowell Dep. at 120-121.) After [19] finding nothing hidden in D.H.'s underwear, McDowell asked him to put his clothes back on. (D.H. Dep. at 108; McDowell Dep. 120.) No marijuana or other illegal contraband was found on D.H. or in his belongings. (McDowell Dep. 124; Def.'s Resp. to PSMF ¶ 10.) Prior to requiring D.H. to strip down to his underwear to search him for marijuana, McDowell did not conduct a search of his locker, gym locker, desk, wastebasket, or classroom. (McDowell Dep. at 126-129.)

The student is being represented very well represented by Adam Wolf, who scored a win before the United States Supreme Court in the 2009 student strip search case Safford v. Redding.

October 20, 2014 in Court Rulings, Federal court rulings | Permalink | Comments (0)

Following the money and the polling surrounding Oregon's legalization initiative, Measure 91

This lengthy local article from Oregon provides a detailed look at the state of political debate in Oregon just a few weeks before final votes are cast concerning Measure 91 to legalize recreational marijuana in the state. The piece is headlined "High stakes in marijuana vote: Legalization measure draws nationwide attention," and here are some excerpts that caught my eye:

The flow of campaign cash from out-of-state donors has shifted south across the Columbia River in support of Measure 91. It has fueled an advertising blitz virtually absent two years ago. Meanwhile, opponents of legal recreational pot are struggling to fill a much smaller campaign war chest.

The measure would let adults 21 years and older legally use, grow, produce and store marijuana and associated edibles and drinks at home within set limits. It would let adults provide marijuana as well as marijuana edibles and drinks within the limits to another adult, as long as no cash is exchanged. It also would direct the state to regulate the legal recreational marijuana industry, including growers, producers and retailers. And it projects the state would collect millions of dollars in pot tax revenue to be divided among schools, law enforcement and treatment programs.

The two sides of Measure 91 cite statistics that they say show Washington’s and Colorado’s laws are either failed or sound policy, to buttress their own chief arguments....

New Approach Oregon has raised nearly $3.3 million in cash and in-kind contributions, according to online campaign finance filings with the Oregon secretary of state’s office. New Approach Oregon sponsored the measure on the Nov. 4 ballot and is the main committee supporting its passage. The money has fueled a wave of statewide ads.

Out-of-state donors have put in big money. Drug Policy Action, the political arm of Drug Policy Alliance, has contributed $940,000. Billionaire investor George Soros is a major financier of the alliance, which has a stated aim of ending marijuana prohibition. New Approach PAC, a committee The Oregonian reported was formed by family members of the late billionaire insurance executive Peter Lewis, contributed $750,000. Lewis, who died in November, personally contributed $96,000....

In contrast, the No on 91 campaign has raised just $168,337, state data shows, with the Oregon State Sheriff’s Association and another statewide law enforcement association kicking in almost all the cash.

Clatsop County Sheriff Tom Bergin, past president of the sheriff’s association, acknowledged the campaign hasn’t raised a lot of money. He noted, however, the coffers for the respective campaigns would be similar if out-of-state money going to the pro-measure side were excluded. Bergin said the lack of money going into the No on 91 campaign isn’t apathy but a sign that Oregonians are still dealing with financial hardships. “We’ve got to keep mowing the yard and hope we keep the weeds out, no pun intended,” he said....

The most recent poll, conducted by Portland-based DHM Research on behalf of Oregon Public Broadcasting and a Portland television station, found 52 percent of likely voters supported Measure 91 and 41 percent opposed it, with a 4.3 percentage point margin of error.

John Horvick, DHM’s research director, said it has conducted four polls since last year either on marijuana legalization or the measure. The results have been close, with the percentage in favor running between 49 and 54 percent. He said the outcome could hinge on the youth vote, which is less likely to cast ballots during mid-term elections. “You just have to get over that hump,” he said.

Horvick said he doubts the outcomes in Colorado and Washington will influence how voters here cast their ballots. Rather, he said, the attitudes of voters and their friends and family members shaped by “real-life experiences” with marijuana will have more impact than two-year-old election results in The Highest and Evergreen states.

October 20, 2014 in Initiative reforms in states, Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Colorado marijuana bankruptcy denial put on hold pending appeal

As Doug blogged about previously here, last month a Colorado bankrupcty judge dsimissed a Denver marijuana business owner's bankrupcty petition.  The court reasonined that allowing the petition to go forward would put the bankrupcty trustee in the untenable position of administering assets that are being used to commit federal crimes.

As the story last month noted, the debtor was appealing the decision.  And, late last week, the bankruptcy judge granted the debtor's request to stay enforcement of the court's judgment pending appeal.  The decision does not seem to be available yet on the Colorado bankrupcty court's site (or, at least, it is not coming up in response to my searches.)  But, it is on Lexis at 2014 Bankr. LEXIS 4409.

This development will essentially put everything on hold in the case until the appeals court has weighed in.

Here are a few excerpts from the court's opinion: 

The Debtors' appeal raises important questions. As illustrated by this case, the intersection between the federal marijuana prohibition and state level liberalization of marijuana laws significantly complicates bankruptcy proceedings where those issues arise. For a trustee, taking custody of and administering assets that are used in the commission of a federal crime can involve a trustee in conduct that violates the federal criminal law. Because of those complications in this case, the Court found that bankruptcy relief was impossible to grant to these Debtors. 

 

The policy of The United States Department of Justice, with respect to state citizens who are acting in compliance with liberalized state marijuana laws, is to initiate enforcement actions under the CSA primarily where overriding federal concerns are implicated. The same Department of Justice, through the United States Trustee (the "UST"), moved to dismiss these Debtors' bankruptcy case on account of conduct which does not appear to implicate the type of federal concerns that would typically lead a United States Attorney to initiate a criminal prosecution or other enforcement action under the CSA.

 

...

 

The Court finds that the balance of the harms favors granting the stay. In the Court's Dismissal Order, after hearing evidence at the trial of the UST's motion to dismiss, the Court recognized that the denial of bankruptcy relief would be "devastating" to the Debtors. (Dismissal Order at p. 9). Also, in its response to the Debtors' Motion, the UST has not alleged that the creditors would suffer any harm if the Court's Dismissal Order is stayed and the UST asserted that it does not oppose the stay. Given that the UST is statutorily tasked with supervising "the administration of cases and trustees in cases under chapter 7 . . . ," 28 U.S.C. 586, and is the party that sought dismissal of the Debtors' case in the first instance, his lack of opposition to the Debtors' Motion is significant to the Court. Thus, the balance of the harms strongly favors granting a stay pending appeal.

 

...

 

The Court also believes that the Debtors' appeal presents novel and substantial questions of law that will benefit from appellate review. As a consequence of these factors, the Debtors have raised at least some uncertainty as to the merits of their appeal.

...

Even though the Court cannot assess the Debtors' likelihood of success as being great, because the balance of the harms supports granting the stay, the UST does not oppose granting such relief, and the Debtors' appeal raises important legal issues, a stay of the Court's Dismissal Order pending appeal is appropriate in this case. 

 

This appeal will certainly be worth watching closely.  

October 20, 2014 in Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)