Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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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. 

 

July 11, 2014 in Medical Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)

Thursday, July 10, 2014

Massachusetts SJC holds marijuana smell insufficient to justify car search

As reported in this Boston Globe article, the Massachusetts "Supreme Judicial Court Wednesday said that because voters decriminalized small amounts of marijuana in 2008, police officers in Massachusetts can no longer rely on the odor of unburnt marijuana to justify searching a person’s car." Here is more:

In two unanimous rulings, the state’s highest court said they had already decided in 2011 that the odor of smoked marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles people are riding in.

The court said in its 2011 ruling that it would be legally inconsistent to allow police to make warrantless searches after they smell burning marijuana when citizens had decided through a statewide referendum question that law enforcement should “focus their attention elsewhere."

The court said Wednesday it was now extending the same reasoning to cases where the owner has not yet started smoking it. Marijuana, the court acknowledged, generates a pungent aroma, but an odor by itself does not allow police to determine whether a person has more than an ounce with them. Possession of an ounce or less of marijuana is not a crime.

“The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations," Justice Barbara Lenk wrote for the unanimous court.

“We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile."...

The court also rejected the argument from law enforcement that local police can use the odor of marijuana to stop someone because possession of marijuana is still an offense under federal law. “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search," Lenk wrote.

The full rulings from the Massachusetts Supreme Judicial Court are available here and here.

July 10, 2014 in Court Rulings, Criminal justice developments and reforms | Permalink | Comments (1)

Wednesday, July 9, 2014

Seattle's City Attorney Makes an Opening Day Marijuana Purchase

Seattle's City Attorney Pete Holmes was a prominent, and early, backer of Washington's legalization.  Among other things, Holmes authored a 2012 op-ed in the Seattle Times making the case for legalization.  And yesterday, Holmes may have become the most prominent politician to buy now-legal--well, except under federal law--marijuana.  Holmes purchased two 2-gram bags of marijuana, saying he would keep one "for posterity" and use the other "for personal enjoyment at some point when it’s appropriate.”

Though his "personal enjoyment" quote has received the most media coverage so far, Holmes also took the opportunity to reiterate his reasons for supporting marijuana legalization:

“This can happen responsibly,” said Holmes.  “Driving this market this industry this amazingly demanded product into the shadows does not advance public safety.  The best way you can support law enforcement is to make this legal and regulate it and tax it and that’s the message here.”

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

Tuesday, July 8, 2014

Lines form to greet start legal recreation marijuana sales in Washington

WapotAs reported in this AP article, headlined "Line forms early, trucks deliver goods as Washington’s legal pot sales start," today officially kicks off legal recreational marijuana sales in a second US state. Here are the basics:

Marijuana growers loaded trucks with boxes of packaged pot on Tuesday as lines of customers grew outside a handful of stores poised to be the first to sell recreational cannabis legally in Washington state.

“I voted for it, and I’m just so excited to see it come to be in my lifetime,” said Deb Greene, a 65-year-old retiree who waited all night outside Cannabis City, the only licensed shop in Seattle. “I’m not a heavy user; I’m just proud of our state for giving this a try.”

Tuesday’s start of legal pot sales in Washington marks a major step that’s been 20 months in the making. Washington and Colorado stunned much of the world by voting in November 2012 to legalize marijuana for adults over 21, and to create state-licensed systems for growing, selling and taxing the pot. Sales began in Colorado on Jan. 1.

The final days before sales have been frenetic for growers and retailers alike throughout Washington. Cannabis City owner James Lathrop and his team hired an events company to provide crowd control, arranged for a food truck and free water for those who might spend hours waiting outside, and rented portable toilets to keep his customers from burdening nearby businesses with requests to use the restrooms.

Store openings are expected to be accompanied by high prices, shortages and celebration. As soon as the stores were notified Monday, they began working to place their orders with some of the state’s first licensed growers. Once the orders were received through state-approved software for tracking the bar-coded pot, the growers placed their products in a required 24-hour “quarantine” before shipping it Tuesday morning.

Sea of Green Farms co-owner Bob Leeds got an early start Tuesday as he loaded about seven pounds of marijuana into boxes for a drive to Bellingham and delivery to the Top Shelf Cannabis store in time for its 8 a.m. opening. The pot was packaged in 1 gram plastic bags. An AP survey of licensees awarded by Washington state to store owners showed that only about six planned to open Tuesday, including two stores in Bellingham, one in Seattle, one in Spokane, one in Prosser and one in Kelso. Some were set to open later this week or next, while others said it could be a month or more before they could acquire marijuana to sell.

Officials eventually expect to have more than 300 recreational pot shops across the state. Pot prices were expected to reach $25 a gram or higher on the first day of sales — twice what people pay in the state’s unregulated medical marijuana dispensaries. That was largely due to the short supply of legally produced pot in the state. Although more than 2,600 people applied to become licensed growers, fewer than 100 have been approved — and only about a dozen were ready to harvest by early this month.

Nevertheless, John Evich, an investor in Bellingham’s Top Shelf Cannabis, said his shop wanted to thank the state’s residents for voting for the law by offering $10 grams of one cannabis strain to the first 50 or 100 customers. The other strains would be priced between $12 and $25, he said.

July 8, 2014 in Current Affairs, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Fantastic new Americans for Safe Access report on state medical marijuana laws

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.

July 8, 2014 in Medical Marijuana State Laws and Reforms | Permalink | Comments (1)

Sunday, July 6, 2014

Connecticut Makes Life Easier for Lawyers

Our rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal." So, how does this apply to advising clients who seek to operate or are operating cannabusinesses legal under state but criminal  conduct under federal law? [Here's a recent ABA journal article on this topic.]

No attorney has ever been disciplined for this type of activity [correct me if I'm wrong] but that doesn't mean it couldn't happen.  Doug and Alex have written about efforts by Colorado and Nevada to ease the legitimate fears of lawyers and to clarify how their version of this rule applies to attorneys representing clients in their states. As the East Coast correspondent, I am pleased to say that Connecticut judges at their annual meeting tweaked their ethics rules as they put it "ever so slightly" to add a sentence after the sentence quoted above which states 

                        a lawyer may now "counsel or assist a client regarding conduct expressly permitted by Connecticut law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the clients' proposed course of conduct."

Here's a link to the article from the Connecticut Law Tribune discussing this change which is similar to what they did in Colorado. 

Hey, I'm no ethics expert but since the Connecticut MMJ industry is still in its infancy, let's give them proactivity points for straightening this out sooner rather than later. NY lawyers [Cuomo should be signing the NY law next week]-take note

July 6, 2014 | Permalink | Comments (1)

Thursday, July 3, 2014

Pot's latest business maven: former Gov and Prez candidate Gary Johnson

US News & World Report has this notable new article about a notable new player in the marijuana industry.  The piece is headlined "Former GOP Governor Looks to Build the 'Microsoft of Marijuana': Gary Johnson is now CEO of a firm that puts 'clean-your-house marijuana' in lozenges," and here are excerpts:

He founded a successful business, served two terms as a Republican governor of New Mexico and climbed Mount Everest. Now, Gary Johnson has set his sights on marijuana.

Nevada-based startup Cannabis Sativa Inc. announced Johnson as its new president and CEO on Tuesday, and he sees the potential for explosive nationwide growth. “I don't know if I’m the Bill Gates of marijuana, but we might be the Microsoft of marijuana,” he says. "The whole country is going to legalize marijuana in 10 years, and then so goes the world."

The company’s first product is a marijuana-infused lozenge, which Johnson says he’s tried several times. “It’s very, very pleasant,” Johnson says. “Rather than a go-to-sleep marijuana, it’s a clean-your-house marijuana.”

The company has sold some of the lozenges – for which it developed special marijuana strains – in California, where medical marijuana is legal. It is preparing a marketing campaign and working to develop local partners to produce the candy across the country....

Residents in Alaska, Oregon and the District of Columbia – with the possible addition of Oklahoma – appear poised to vote on legalization in November. And Florida voters are considering a relatively lax medical marijuana initiative.

Johnson sees the tide of change and hopes to position Cannabis Sativa as an industry leader. Before serving as governor of New Mexico from 1995 to 2003, Johnson was an entrepreneur. He worked construction jobs in his teens before founding Big J Enterprises, which he built into a 1,000-employee construction company. He sold the firm in 1999. He’s proud of that business experience, and hopes to recreate his earlier success.

Johnson has long been a supporter of liberalizing drug laws. In 1999, the Clinton administration’s drug czar, Barry McCaffrey, flew to New Mexico to chastise the governor, calling his positions an "embarrassment" and "uninformed” at a press conference, the Santa Fe New Mexican reported. "He ought to be ashamed of himself telling a bunch of college students that marijuana was wonderful,” McCaffrey said. “He's getting some of these sound bites out of Rolling Stone magazine.”

Johnson held a competing press conference in which he defended his opposition to the war on drugs and insisted on a taxed, regulated market.

July 3, 2014 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Eighth Circuit upholds 20 year sentence for marijuana grower

The federal government has been taking a hands-off approach in Colorado (at least, so far).  If that ever changes, however, Colorado operators are sure to be facing lengthy sentences.  A recent case from the Eighth Circuit serves as a good reminder of this fact.  

In the case, an Iowa man named Robert Meeks participated in a marijuana growing operation that netted between 300 and 500 marijuana plants annually.  He was convicted of conspiracy to manufacture 1,000 or more marijuana plants.  To make matters worse for Meeks, in 1987 he was convicted of aiding and abetting the distribution of cocaine.  As a result, Meeks was subject to a 20 year mandatory minimum sentence.  

On appeal, Meeks argued (among other things) that the sentence amounted to cruel and unusual punishment.  Not surprisingly for those familiar with the caselaw in this area, the appeals court rejected that argument:

The district court sentenced Meeks to the mandatory minimum sentence of 240 months’ imprisonment. This sentence was based on the jury’s special finding that the conspiracy involved 1,000 or more marijuana plants and on the fact that Meeks had previously been convicted of a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A), 851. We repeatedly have held that applying a mandatory minimum penalty for drug offenses does not violate the Eighth Amendment. United States v. Garcia, 521 F.3d 898, 901 (8th Cir. 2008) (collecting cases). Meeks argues, however, that the 20-year mandatory minimum sentence is grossly disproportionate to the underlying crime because (1) the conspiracy involved the manufacture and sale of marijuana rather than “harder-core” substances, such as cocaine; (2) the prior drug conviction which qualified Meeks for the mandatory minimum occurred twenty-six years ago; (3) the sentence results in a near-life sentence given Meeks’s age; and (4) the profit from the growing and sales operation was negligible. None of these arguments demonstrates that Meeks’s case is the extreme case that violates the Eighth Amendment. See United States v. Burton, 894 F.2d 188, 190, 192 (6th Cir. 1990) (holding that marijuana’s Schedule I classification is not irrational, and thus the resulting penalties do not violate the Eighth Amendment); United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982) (holding that marijuana’s Schedule I classification is not irrational); United States v. Gallegos, 553 F. App’x 527, 532-33 (6th Cir. 2014) (holding that 20-year mandatory minimum sentence for conspiring to distribute at least 1,000 kilograms of marijuana did not violate the Eighth Amendment); United States v. Hoffman, 710 F.3d 1228, 1232-33 (11th Cir. 2013) (rejecting argument that life sentence based on convictions that occurred approximately twenty-five years earlier when defendant was a juvenile constituted cruel and unusual punishment); United States v. Mathison, 157 F.3d 541, 551 (8th Cir. 1998) (holding that a sentence “although in excess of a defendant’s life expectancy, does not violate the Eighth Amendment”); Ewing, 538 U.S. at 28-30 (holding that the defendant’s sentence of 25 years’ to life imprisonment was not unconstitutionally disproportionate where the defendant stole three golf clubs worth about $1,200 and was a recidivist). Accordingly, we conclude that a term of 240 months’ imprisonment, imposed for Meeks’s offense of felony drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A), is not “grossly disproportionate,” Ewing, 538 U.S. at 30, and we affirm his sentence. 

July 3, 2014 in Court Rulings, Federal court rulings | Permalink | Comments (0)

New rules for edible marijuana products are moving forward in Colorado

From Colorado comes news that updated regulations for edible marijuana products are moving forward.  The Denver Post reports the details:

Under a draft proposal, the state would essentially regulate out of existence bite-sized products that pack in 100 milligrams of active THC, the maximum allowed by state law.

 

The draft rules from the Department of Revenue would provide incentives for companies to produce 10 milligram products — the standardized serving size under state law — by putting greater burdens on manufacturers of products between 10 and 100 milligrams.

 

For example, a candy bar in that range would need to be divided into sections that can easily be broken off, with each section marked or stamped with its THC content. Edibles that don't lend themselves to such division — say, granola or potato chips — would need to come in packages with no more than 10 milligrams total.

As I wrote here a few weeks ago, I believe that permitting the sale of bite sized candies that contain 10 doses of marijuana is regulatory insanity.  It's good to see that Colorado is moving quickly to address the problem. 

July 3, 2014 in Food and Drink, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Wednesday, July 2, 2014

Another new chapter for marijuana legalization in Colorado and Washington getting underway

The second half of 2014 brings notable new developments in both Colorado and Washington, as detailed in these two notable press reports:

"Colorado recreational marijuana industry begins major transformation":

Only six months old, Colorado's recreational marijuana industry starts a transformation Tuesday that could add hundreds of new pot businesses to the state and reconfigure the market's architecture.

Previously, only owners of existing medical marijuana shops could apply to open recreational stores, and all businesses had to be generalists, growing the pot that they sold. The model matches what is required of medical marijuana dispensaries.

Starting Tuesday, newcomers to the industry can apply for recreational marijuana business licenses. What's more, when these new businesses begin opening in October, all recreational marijuana companies will be allowed to specialize — as wholesale growers without a storefront, for instance, or as stand-alone stores that don't grow their supply. The only requirement is that owners be Colorado residents.

"We are going into uncharted territory," said Sam Kamin, a University of Denver law professor who has tracked developments in Colorado's marijuana industry. "It's something that hasn't happened in medical (marijuana), and it hasn't happened in recreational."

"Bumpy road for marijuana legalization in Washington"

Pete O'Neil saw Washington's legalization of marijuana in 2012 as a path to retirement, or at least to his kids' college tuition. He's paid tens of thousands of dollars of rent on possible locations for a pot-shop chain, hired lawyers and picked out flooring. But now the nation's second legal recreational marijuana industry is about to start without him.

O'Neil struck out in Washington's lottery for coveted pot-shop licenses. He has unsuccessfully tried to buy companies that scored a lucky number. In frustration, he's turning what would have been his Seattle retail store into a medical marijuana dispensary. "Our company is bleeding money, and I haven't sold a single joint," O'Neil says.

As Washington plows toward the legalization of pot, it's finding that getting the cannabis market off the ground has been tougher than anyone imagined. Among the frustrated are growers who have been waiting months for permission to start raising their bar-coded plants; advocates who wish more public health messaging had been done by now; and would-be pot vendors like O'Neil who say bad luck, minor oversights on their applications or errors by state officials have torpedoed otherwise promising efforts.

Washington's Liquor Control Board expects to issue the first 15 to 20 marijuana retail licenses July 7, months later than first expected, but it's not clear how many of those shops are ready. Board staff members said last week only one shop in Seattle is prepared for its final inspection.

July 2, 2014 in History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, July 1, 2014

How should reform advocates respond to states enacting low-THC marijuana laws?

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.

July 1, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, June 30, 2014

Bill Clinton on medical marijuana: "I think we should leave it to the states"

A couple of weeks ago, likely 2016 presidential candidate Hillary Clinton said medical marijuana should be available for some patients under appropriate circumstances.  Her husband, former president Bill Clinton, appears to have gone a bit further in support of marijuana law reform in these remarks on Meet the Press over the weekend:

 

"I think there's a lot of evidence to argue for the medical marijuana thing," Clinton said. "I think there are a lot of unresolved questions, but I think we should leave it to the states. This really is a time when there should be laboratories of democracy, because nobody really knows where this is going."

 

While Clinton stopped short of endorsing legalization at the federal level, he said he supports states' experimentation.

 

"There’s all these questions, and I think that I like where it is now," he said. "If the state wants to try it, they can. And then they’ll be able to see what happens.”

June 30, 2014 in Current Affairs | Permalink | Comments (0)

Friday, June 27, 2014

Oregon joins Alaska and Florida as states for marijuana reformers to watch extra closely in campaign 2014

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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.

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

Thursday, June 26, 2014

So far, no Colorado marijuana stores have been found to have sold to minors

The Denver Post reports today that police inspections have not found any incidents of Colorado marijuana stores selling to minors:

Police have so far sanctioned no recreational marijuana stores for selling to minors during underage compliance stings across the state, according to the Colorado Department of Revenue.

 

Authorities in Denver and Pueblo, working with regulators from the state Marijuana Enforcement Division, have conducted 20 undercover stings in which they see whether a store will sell pot to someone under 21. Sixteen of the compliance checks have occurred in Denver, home to most of the state's recreational marijuana stores.

 

So far, no store has sold to someone under 21 in the checks.

As the Toke of the Town blog notes, this compares very favorably to liquor stores, where Colorado authorities typically find a good number of violations every year.  

Of course, direct sales are not the only way that legal marijuana might make its way to underage users.    As with alcohol, an adult who legally buys from a marijuana store could share with a minor (or act as a straw purchaser for a minor.)  The extent to which this sort of thing is happening--and the extent to which it results in any increase in availability or use among teens--remains to be seen.  But for now, it is certainly good news for regulators that no marijuana stores have been found to be selling to minors. 

June 26, 2014 in Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, June 24, 2014

Article examines the impact of marijuana legalization on whether high school seniors plan to use marijuana

From the International Journal of Drug Policy comes this article with the catchy title "Correlates of intentions to use cannabis among US high school seniors in the case of cannabis legalization."  The article is behind a paywall and I haven't yet attempted to track it down through the library but the abstract indicates that high school seniors self-report that they would be slightly more likely to want to use marijuana if it were legal.  

Here are the basics from the abstract: 

This study examined intentions to use among US high school seniors if cannabis were to become legally available.

 

Ten percent of non-cannabis-using students reported intent to initiate use if legal and this would be consistent with a 5.6% absolute increase in lifetime prevalence of cannabis use in this age group from 45.6% (95% CI=44.6, 46.6) to 51.2% (95% CI=50.2, 52.2). Eighteen percent of lifetime users reported intent to use cannabis more often if it was legal. Odds for intention to use outcomes increased among groups already at high risk for use (e.g., males, whites, cigarette smokers) and odds were reduced when friends disapproved of use. However, large proportions of subgroups of students normally at low risk for use (e.g., non-cigarette-smokers, religious students, those with friends who disapprove of use) reported intention to use if legal. Recent use was also a risk factor for reporting intention to use as often or more often.

June 24, 2014 in Recreational Marijuana Data and Research | Permalink | Comments (0)

Cocaine smuggled by being baked into cookies

Though not a marijuana story, this BoingBoing post made me think back to an episodes of the classic TV sitcom Taxi and I could not resist posting a clip.  The BoingBoing headline: "$50k worth of cocaine baked into delicious cookies seized at US airport."  And here's a scene from the Taxi episode:

 

June 24, 2014 in Film, Food and Drink | Permalink | Comments (1)

Saturday, June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds' response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy.  But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Friday, June 20, 2014

New York pols work out deal to legalize only smoke-free medical marijuana

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.

June 20, 2014 in Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Senate to vote on medical marijuana spending amendment

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.

June 20, 2014 in Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, June 18, 2014

What is "knowing" possession of synthetic marijuana?

To convict soeone of possessing a controlled substance, the government must prove the person knew what they had.  (With the possible exception of--where else?--Florida.)  In other words, if a person thinks has marijuana in their hand but they think it is oregano, they aren't guilty of possession of a controlled substance.  This does not mean the government needs to prove a person knew it was against the law to possess the drug.  Ignorance of the law is no excuse, so telling the police that you didn't know cocaine was illegal is not going to help you out.  But, if you genuinely thought that what you possessed was sugar and not cocaine, then you may have a defense.

This principle can present interesting legal challenges, particularly when it comes to newly criminalized drugs like synthetic marijuana.  Part of the problem is that what is sold as "synthetic marijuana" is not necessarily always the same chemical.  A person may buy something marketed as "synthetic marijuana" without knowing what the intoxicant in it is or whether or not it has been made criminal.  

In these cases, what, exactly, does the government need to prove knowledge of?  Is enough to say that a person knew what they possessed has an intoxicating effect?  (If so, what about legal intoxicants like alcohol, tobacco or even caffeine?)  Is it sufficient to prove a person knew they were buying "synthetic marijuana," even if they didn't know what chemical was in it?  (Would the answer change if 1/2 of the chemicals marketed as "synthetic marijuana" were still legal to possess and sell while the other 1/2 had been criminalized?)

Yesterday, a Missouri appeals court addressed some of these issues in rejecting a challenge to a conviction for possession of synthetic marijuana.

Here are the facts:

Paul presented testimony at trial that she hosted a "card party" at her home on November 17, 2011. When Paul left her party briefly "for a beer run," her guests called her and asked if they could burn "K2" or "Mr. Happy" — both brand names for synthetic marijuana. One of Paul's guests had purchased the "Mr. Happy" at a gas station. Paul testified that she instructed her guests to wait until she got home because she was not familiar with the product.

 

When Paul returned home, she inspected the package. Paul testified that the substance's label warned that its contents were "not for human consumption," and that the label stated "probably three times" that its contents were "one hundred percent legal." After reading the "Mr. Happy" package, Paul allowed the cigarette to be burned in the ashtray "like . . . incense." Paul testified that no one actually smoked the substance. 

In rejecting Paul's appeal, the court held that "the State is required to prove that the defendant had knowledge of the general character of the substance — "i.e., that the substance was a drug of some sort, and not just baking power" — the State is not required to prove that the defendant knew the substance was illicit."

To the extent Paul is arguing that there was insufficient evidence to prove that she had knowledge of the substance's general character, that argument also fails. While there was testimony at trial supporting Paul's position, when properly viewing the record in the light most favorable to the verdict, the evidence is sufficient to prove beyond a reasonable doubt that Paul had knowledge of the general nature of the substance found in her kitchen. When Chief Garton found the substance in Paul's home, it was in an ashtray and was rolled up in a paper in a manner commonly used to smoke marijuana. Additionally, Paul testified that the "Mr. Happy" package referred to its contents as "hash"— a common slang term for marijuana and the short form of "hashish," which is the resin extract of the cannabis plant. See State v. Reiley, 476 S.W.2d 473, 473 (Mo. banc 1972). Finally, the substance's label made multiple statements regarding its legality. Based on this evidence, the circuit court could reasonably infer that Paul was not under the impression that the "Mr. Happy" product was simply incense and that she was aware of the substance's drug-like nature. Accordingly, the court did not err in failing to sustain Paul's motion for judgment of acquittal. The point on appeal is denied. 

While there may be a sound basis for the court's decision, I think its cursory discussion of Paul's arguments is problematic.  To be sure, the government does not need to prove Paul knew that possession of synthetic marijuana was illegal.  But it did need to prove she knowingly possessed the substance.  If all Paul knew was that the substance was named "Mr. Happy" and might be an intoxicant, however, I'm not sure that necessarily tells us she knowingly possessed a controlled substance.  

June 18, 2014 | Permalink | Comments (4)