Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Sunday, September 20, 2015

Highlighting that now you "can't spell POTUS without pot"

The quote in the title of this post is drawn from the first line of this notable new Denver Post article headlined "Welcome to the marijuana election, where Colorado is the star: More than prior elections, pot is becoming a prime time topic in the 2016 presidential race." Here are excerpts:

The 2016 campaign is spawning a new axiom in presidential politics: You can't spell POTUS without pot. For the first time, marijuana is becoming a significant policy issue for Republican and Democratic candidates — thanks in part to softening public attitudes toward the drug and Colorado's prominent place on the political map.

"(Marijuana) is a topic that 2016 presidential candidates will not be able to avoid or dismiss with a pithy talking point," said John Hudak, a fellow at the Brookings Institution, a think tank whose research has focused on the legalization push. "It is one that candidates will have to think about and engage."

In the Republican primary, the candidates are making marijuana an issue on their own. New Jersey Gov. Chris Christie said he would enforce federal laws to crack down on pot use in states such as Colorado. Kentucky Sen. Rand Paul became the first major candidate to attend a fundraiser with the weed industry in his recent Denver visit.

But pot politics hit prime time with an extended exchange in last week's GOP debate on CNN, which drew an audience of 23 million. The focus on the topic is likely to intensify as the campaign trail leads to Colorado for the next GOP debate, in October.

"It's a national debate that's occurring, and Colorado has led the way," said U.S. Sen. Cory Gardner, a Colorado Republican who opposed legalization. On the GOP side, he said, "I don't think you can talk about the states' rights issue without talking about the biggest states' rights issue of modern time."...

"In years past, marijuana was being brought up as sort of a gotcha question," Hudak said in an interview. The most recent debate "was really the first time in a presidential debate that marijuana was brought up as a public policy."

For Republicans, the issue remains a challenge, perplexing a number of candidates who have taken contradictory positions on the issue at different times. Josh Penry, a Colorado adviser to Republican candidate Marco Rubio, said it's an important issue that is here to stay.

"It becomes a proxy to argue, 'Are you consistent or are you not consistent on these issues?' " he said. "I think it will continue to percolate in the national election, in part because of the importance of Colorado."...

On the Democratic side, the legalization issue is a measure of liberalism, but so far the candidates are staking out middle ground. The Marijuana Policy Project recently issued a report card on the stances of the candidates and is watching the election closely as it seeks to educate and influence both parties, said Mason Tvert, the group's communications director.

A day after the debate, Democratic candidate Martin O'Malley visited Denver to meet with pot industry supporters and learn more about Colorado's system. "We should have this conversation and be informed by the true facts and the experience the people of Colorado are having on the ground here," he said of marijuana legalization.

O'Malley and rival Vermont Sen. Bernie Sanders support decriminalization moves and medical marijuana. But Democratic front-runner Hillary Clinton is more cautious. All say they are watching Colorado for guidance.

Eric Sondermann, a Denver-based political analyst, said this attention is "both good news and bad news." "On the plus side, Colorado continues to be at the epicenter of the political world," he said. "On the more problematic side, many leaders — starting with the governor and the economic development community — continue to be worried about pot being so increasingly central to the Colorado brand."

September 20, 2015 in Campaigns, elections and public officials concerning reforms, Who decides | Permalink | Comments (0)

Colorado tax revenues from marijuana now clearly exceeding those from alcohol

As highlighted by this recent Forbes article, headlined "Colorado Now Reaping More Tax Revenue From Pot Than From Alcohol," the Centennial State now seems to be reaping more public revenue benefits from the wicked weed than from the golden grape. Here are the details:

The tipping point has finally occurred in Colorado: The state is raising more revenue from marijuana taxes than from alcohol.

According to the Colorado Department of Revenue, the state has received nearly $70 million in tax revenue from marijuana from July 1, 2014 through June 30, 2015, easily beating the nearly $42 million in taxes on alcohol....

Colorado is having record recreational sales this summer. In June, recreational marijuana sales hit $50 million for the first time, then in July sales rose over $55 million. If you add in medical marijuana sales, the total comes to $96 million for July, also higher than June’s total of $85 million. The portion of these sales in July that is earmarked for school construction projects is $3 million....

“It’s crazy how much revenue our state used to flush down the drain by forcing marijuana sales into the underground market,” said [Mason] Tvert [of the Marijuana Policy Project] in a statement. “It’s even crazier that so many states are still doing it. Tax revenue is just one of many good reasons to replace marijuana prohibition with a system of regulation.”

September 20, 2015 in Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)

Friday, September 18, 2015

Ohio editorial highlights civic engagement that marijuana issues can produce

This new Toledo Blade editorial about a recent local marijuana decriminalization vote highlights a variety of themes that I am always drawn to when discussing the various benefits of robust debate over modern marijuana law and policy.  The subheadline of the editorial highlights its coverage: "Toledoans’ vote to decriminalize marijuana has implications for voter turnout,  campaigning, and public policy."   Here are excerpts: 

Toledo voters’ decision to decriminalize marijuana in the city, reducing penalties for the drug to the minimum allowed by state law and repealing penalties for possessing small amounts of marijuana, drove voter turnout in this week’s municipal primary to 9 percent. That may not sound like a lot, but it doubled the turnout from the comparable election four years ago. City and state officials should pay attention.

The marijuana measure drew votes from more than 11,000 Toledoans, compared with 4,700 who voted against the proposal. More residents voted for the measure than voted for all City Council candidates on the primary ballot combined.

The plan to decriminalize marijuana, called the Sensible Marihuana Ordinance to reflect the antiquated spelling in the municipal code, drew support from Mayor Paula Hicks-Hudson and most other mayoral candidates. City officials now say some parts of the new ordinance may be unenforceable because they conflict with state law.

Whatever the complications of the provision, though, its broad implications are clear. The proposal will, properly, abolish Toledo’s penalties for largely victimless crimes, such as possessing and selling marijuana paraphernalia and using small amounts of the drug. It will help spare nonviolent offenders needless fines, jail time, and criminal records that can keep them out of the work force and subject them to a cycle of crime and imprisonment....

Toledo’s vote creates a strong precedent for Ohioans to dismantle further the state’s marijuana penalties; although they already are among the most lenient in the nation, they are still tough enough to cause the arrests of tens of thousands of people for possessing the drug each year. Ohio voters will get that opportunity with a proposal on the statewide ballot in November.

Whether that initiative also would give a select group of marijuana growers an unacceptable advantage in the drug’s production is, or should be, a question for Ohioans to decide. Secretary of State Jon Husted has sought to tilt the campaign debate by including nonneutral descriptors such as “monopoly” in the language voters will consider. State officials should seek to embrace, not suppress, Ohioans’ desire to assert their own policy preferences through the political process.

More important at the moment, and worthy of celebration, is the level of civic participation that Sensible Toledo, the group behind the local marijuana decriminalization campaign, has activated to draw voters to the polls. On national political issues such as a living wage, racial justice, and now this one, grass-roots organizing has engaged ordinary citizens and forced once unheard-of ideas into the political arena.

When politics is about issues, not feuds or personalities, all citizens gain.


September 18, 2015 in Criminal justice developments and reforms, Initiative reforms in states, Political perspective on reforms, Who decides | Permalink | Comments (0)

Thursday, September 17, 2015

Did last night's GOP debate "open the door to legal marijuana"?

The question in the title of this post is prompted by this extended MSNBC article that seems to think the (relatively brief) discussion of marijuana policy during the latest GOP debate was something of a game-changer.  Here are excerpts from the piece:

Marijuana had a major moment at the Republican presidential debate on Wednesday night, taking center stage for the first time this election season. But rather than launch a new war on drugs, several candidates endorsed the right of states to make their own decision on marijuana, clearing the way for an explosion of new pro-pot ballot initiatives in 2016.

Speaking at the presidential library of drug warrior Ronald Reagan, the GOP vanguard might have been expected to double down on opposition to the drug, promising to stamp out marijuana in America. But the biggest cheers came for Kentucky Sen. Rand Paul, former Florida Gov. Jeb Bush and former Hewlett Packard executive Carly Fiorina – the three candidates who pledged to let local governments do what they want about pot.

They didn’t have a single soft word for marijuana itself, but they gave their ideological blessing to the four states where voters have already said “yes, please” to recreational markets. CNN moderator Jake Tapper set up the question with a reference to the sinking candidacy of New Jersey Gov. Chris Christie, a former federal prosecutor who believes federal drug law should be enforced on the state level. ...

“I don’t think that the federal government should override the states,” Paul answered. “I believe in the 10th Amendment and I really will say that the states are left to themselves.” The audience erupted in applause. And he wasn’t done. “I would let Colorado do what the Tenth Amendment says,” he continued, referring to the first state to legalize marijuana. “Colorado has made their decision. And I don’t want the federal government interfering and putting moms in jail, who are trying to get medicine for their kid.”

Paul also landed a racial and social critique of the status quo, which includes arresting hundreds of thousands of people for marijuana possession, most of them nonwhite, poor, and in for a world of collateral damage as a result of a bust. That forced Jeb Bush into the conversation, where he ratified the same idea of state rights.

“What goes on in Colorado, as far as I’m concerned, that should be a state decision,” he said. “I agree with Senator Paul. I agree with states’ rights,” added Fiorina.

But unfortunately the candidates also displayed an old fashioned and largely misguided understanding of marijuana’s dangers and its rank among more dangerous drugs. Paul took the softest approach, saying that marijuana’s “only victim” is the individual. But he still called pot use “a crime.”

Fiorina, Christie and Bush, meanwhile, made no distinction between marijuana and heroin. And to varying degrees they promoted the debunked idea that marijuana is a “gateway” to harder drugs just because it often comes first in a sequence.

Fiorina gave strongest voice to the anti-drug position, unveiling a painful personal story that could have been clipped from a Nancy Reagan “Just Say No” campaign from the 1980s. “I very much hope I am the only person on this stage who can say this, but I know there are millions of Americans out there who will say the same thing,” she said. “My husband Frank and I buried a child to drug addiction. So, we must invest more in the treatment of drugs.”...

What Fiorina said is certainly true. Drug addiction is a killer. But the culprit is not marijuana, according to the best available research. What America is experiencing is a great heroin relapse, with the death rate for overdoses quintupling since 2002, cutting through class and color lines. Heroin today is now as popular and deadly as crack cocaine was in the 1980s. Marijuana, meanwhile, remains incapable of delivering a fatal overdose.

Chris Christie and Jeb Bush also lumped marijuana and the harder drugs and no one tried to correct them. “Here’s the deal,” said Bush. “We have a serious epidemic of drugs that goes way beyond marijuana.” He referenced New Hampshire, one of the states hardest hit by heroin overdoses. “People’s families are being torn apart.”

Chris Christie went even further, deploying some of the oldest and least defensible arguments of the old war on drugs even as he claimed the drug war has been a failure. “That doesn’t mean we should be legalizing gate way drugs,” he said. “And if Senator Paul thinks that the only victim is the person, look at the decrease in productivity, look at the way people get used and move on to other drugs when they use marijuana as a gateway drug, it is not them that are the only victims. Their families are the victims too, their children are the victims too, and their employers are the victims also.”

That’s a scary speech for supporters of marijuana reform, but for now it’s also a moot position. As long as Republican support for “states rights” is stronger than their distaste for marijuana use, reformers have nothing to fear.

Though I found the discussion of marijuana policy by the GOP candidates to be interesting and somewhat significant, I really did not perceive it to be a true game-changer.  To his credit, Senator Paul seemed to try to get the discussion focused a bit more on medical marijuana, and I think sharp questions to the GOP about medical marijuana reform in the states (and at the federal level) could have produced something big.  But I did not come away from what actually transpired thinking all that much had changed politically.  But I welcome other perspective on this part of the GOP debate last night.

September 17, 2015 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, September 16, 2015

With GOP debate in California and CNN seeking a real debate, should we expect a question on marijuana reform?

The question in the title of this post is prompted in part by this notable new Washington Post piece, headlined "As California considers looser marijuana laws, Paul calls out Christie." Here are excerpts:

The 15 leading Republican candidates for president have arrived in California just as the state closes in on a fully legal regime for medical marijuana.

Californians have been buying marijuana with medical exception cards since it was legalized by a 1996 ballot measure, but only this month has the state's Democratic legislature passed comprehensive bills to regulate the industry. The state's Department of Food and Agriculture would oversee cultivation; the Department of Public Health would monitor quality. Come Election Day 2016, it's highly likely that Californians will vote on whether to legalize the drug, full stop.

The survival of that experiment could depend on who gets elected president that day. Earlier this month, in New Hampshire, Gov. Chris Christie (R-N.J.) told an audience that current experiments with legal marijuana were encouraging "lawlessness," and needed to end. "Marijuana’s illegal in the United States, yet the president allows Colorado and Washington state: Hey, get high! It’s okay! I’ll look the other way!" said Christie. "I won’t change the law, but I’ll look the other way."

A Christie administration would sprint in the other direction. As he described a friend's descent into opiate addiction -- a story he often tells to talk about New Jersey's treatment programs -- Christie said that his DEA would raid the legal pot industry in the West. "Seize their money," he said. "Seize their product. Close their stores."

In an interview here, Sen. Rand Paul (R-Ky.) -- Christie's most ready critic in the GOP field -- said that Christie's idea of raiding currently legal businesses puts him "on the wrong side of history," and wasn't even workable. "If he wants to put the parents of a kid who had 500 seizures a day away before he started moderating that with cannabinoid oil, he can say so," said Paul. "He can put someone with MS in jail. He can put someone who's just carrying a little marijuana in jail. Most Americans are not with him, and it's not going to sit well with a lot of conservatives and libertarians, I mean, is he going to send federal troops in to enforce medical marijuana laws?"

Marijuana's legal status, once dismissed as a fringe issue, has evolved after a series of quiet decisions from the Obama administration. The west's experiment with legalization -- so far, a major boost to Colorado's tax revenue -- has been treated with benign neglect. Just three months ago, the administration lifted a public health review requirement that had prevented some research into marijuana's medicinal properties. A new president could reverse all of that with a pen stroke. Only two potential presidents have said much about it.

Regular readers know I am very anxious to see marijuana laws and policies discussed on the Presidential debate stage.  The fact that Senator Paul is brining this up in advance of the debate, combined with the fact that CNN has been talking up its interest in highlighting issues concerning which the GOP candidates have distinct policy positions, has me know believing there is a real chance for a marijuana portion of tonight's big GOP event.

September 16, 2015 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Might Prez candidates Mike Huckabee and Ted Cruz come to defense of faith-driven marijuana user?

The question in the title of this post is  my cheeky reaction to this somewhat amusing (but still serious) story emerging from Minnesota.  The piece is headlined "Defendant cites membership in First Church of Cannabis for pot use: She says smoking doesn't violate her probation because of her 'sincerely held' religious beliefs," and here are the details:

A Golden Valley woman is asking the courts to allow her to smoke marijuana for religious reasons — because she belongs to the First Church of Cannabis.

Through her lawyer, 31-year-old Ashley Firnschild is arguing to the Hennepin County District Court that the weed’s illegality places an “undue burden” on her “sincerely held” religious beliefs as a member of the Indiana-based church established earlier this year.  The case is coming before the court because Firnschild is alleged to have smoked the weed in violation of a condition of her probation for a drug charge.

Firnschild’s use of marijuana is based on “guidance in the philosophies of her church” and her embrace of the church’s mission “establishes her dedication and sincerity to such ideologies,” the motion said.

Hennepin County Attorney Mike Freeman said in a statement that selling, possessing or smoking marijuana is not a First Amendment right.  “Other folks have argued this in the past, unsuccessfully,” he said. “We will continue to vigorously prosecute this case of possession of a large amount of marijuana.”

Oral arguments on Firnschild’s motion are scheduled for Oct. 1. Firnschild’s lawyer, Camille Bryant, is arguing her case under the Minnesota Constitution, which provides greater religious freedom protections than the federal Constitution.

Although Firnschild’s argument is uncommon, the legal analysis is complicated, according to one Twin Cities law professor who cited multiple state cases where individuals have been allowed to exercise their religious convictions even though they violated state laws.

In 2014, Firnschild pleaded guilty to fifth-degree drug possession and was sentenced to community service and probation.  The previous year, police had searched her home after Hennepin County Child Protection Services alerted them to a potential marijuana-growing operation in her basement.  Police found such operations in the basement and attic. Firnschild said the drug was for personal use.

Last summer, Firnschild’s probation officer alerted the court to a possible violation of her probation for smoking marijuana.  Rather than admit to a violation, Firnschild is arguing that her religious freedom is at stake.

The church’s mission statement calls cannabis “the healing plant” and a staple of sacrament.  Members are neither required nor requested to smoke the weed, but to “embrace cannabis and hemp for betterment of the world, including medical, industrial, fuel, oil and housing,” the motion said, quoting the church doctrine.  By prohibiting her from smoking marijuana, the motion said, “she cannot adhere to the principal ideologies of her church, namely the positivity cannabis provides to the world.”

Her lawyer argues the state can’t demonstrate a “compelling interest” in banning her use of marijuana. Firnschild’s use hasn’t created a danger to the “peace or safety of the public,” nor have there been complaints, the motion said.

Michael Steenson, a professor at William Mitchell College of Law in St. Paul, said the court will balance the state’s interest in controlling marijuana use with Firnschild’s individual right.

State courts have been reluctant to explore whether a religious belief is sincerely held. In a 1989 case, an Amish family was given traffic citations for refusing to use the brightly colored emblems signaling slow-moving vehicles because they weren’t willing to compromise their belief that the loud colors were worldly symbols. The state Supreme Court found that the family’s beliefs were sincerely held even though the Amish community as a whole wasn’t in agreement....

Steenson noted, as Firnschild’s memo did as well, that there is no alternative to smoking as a means to exercise her religion — either she can or can’t smoke marijuana. “You can see it isn’t all that simple,” he said.

Some prior related posts concerning the First Church of Cannabis:

September 16, 2015 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Religion, Who decides | Permalink | Comments (0)

Tuesday, September 15, 2015

"Legalized Pot Might Create Work Lawyers Fear Going After"

Images (1)The title of this post is the headline of this intriguing new article in Pennsylvania's legal newpaper The Legal Intelligencer.  Here are excerpts:

As Pennsylvania continues to debate how and whether to legalize medical marijuana usage, ethics concerns and client pushback are forcing many lawyers to sit back on what could be the biggest industry to come to the state since the legalization of gaming.

Lawyers and lobbyists in support of medical marijuana legalization in Pennsylvania say its passage is closer than ever, with the Senate on board and the House needing to work out some competing methods for structuring the industry. But some are more subdued in their optimism, noting the passage of a budget is probably higher on the General Assembly's priority list.

The question still seems to be when, not if, and that has caused the attorneys who are interested in representing marijuana companies to seek guidance and protection. Last week, the American Trade Association of Cannabis and Hemp called for any legislation passed in Pennsylvania to include protections for attorneys in the space.

"Lawyers representing cannabis businesses must be able to do so without fear of running afoul of the law or losing their license by representing members of the industry," said attorney Andrew B. Sacks, managing partner of Philadelphia-based Sacks Weston Millstein Diamond and a member of ATACH's Pennsylvania state-level coalition. Sacks is the first to acknowledge the request is purely symbolic given the Pennsylvania Supreme Court has sole power to outline attorney ethics rules.

"That whole area has been so hairy all across the country that ... to me, in my 31-year career, this is the biggest ethical issue that I have ever seen," Sacks said. "You have a federal law that says this is a crime and you have a state law that says we need you." A lawyer hauled before the state Disciplinary Board with only a symbolic legislative protection would have a major uphill battle, Sacks said. That is why he went to the Philadelphia Bar Association for an advisory opinion on the issue. As it turned out, the Pennsylvania Bar Association also had several similar inquiries. The two associations have been working together to issue an opinion.

According to former PBA President Thomas G. Wilkinson Jr., a joint formal ethics opinion concerning marijuana-related issues not limited to medical marijuana is under review by the PBA legal ethics and professional responsibility committee and the Philadelphia bar's professional guidance committee. "It is far along but we cannot provide a specific date when it will be finalized and issue[d]," Wilkinson said in a statement. "The PBA committee is next scheduled to meet on Sept. 30 in Pittsburgh." Sacks said the advisory opinion will be "crucial." He said he knows of a number of law firms that aren't going near the industry while the federal government still considers marijuana in the same class as heroin and cocaine.

Earlier this year, for example, Ballard Spahr reportedly withdrew from representing a marijuana dispensary in New Jersey over fears the attorneys' licenses could be put in jeopardy. And other firms with large clients in the medical and life sciences fields have been told those clients might not think too highly of marijuana-related companies on the firms' client rosters....

In the 23 other states that have some form of legalized marijuana usage, many of the states have amended attorney ethics rules to protect lawyers entering the industry. Clearfield said he would expect something similar would be needed in Pennsylvania and said there was some concern about how long that process could take and what lawyers would do in the interim....

"I think any time a new industry starts up there is a lot of work for lawyers and this is definitely going to be a new industry and state-specific," Clearfield said. Clearfield said likening the advent of the marijuana industry in the state to that of the gaming industry was an apt analogy. He said the cannabis industry will have state-specific rules and the regulatory process that will play out over years will require local lawyers with local ties. Other areas may not require locally based attorneys, such as financing and other business issues, Clearfield said.

For Sacks, he envisions legal work stemming from applications to get a medical marijuana license to zoning fights between counties regarding where the dispensaries will be located. "It will be a very large industry," Sacks said. The question is whether lawyers will feel comfortable taking a piece of that pie.

September 15, 2015 in Business laws and regulatory issues, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Rocky Mountain HIDTA releases third annual report on "impact" of marijuana legalization in Colorado

DownloadHigh Intensity Drug Trafficking Area Programs (HIDTAs) are, as explained here, a special kind of drug-enforcement task force that was "created by Congress with the Anti-Drug Abuse Act of 1988 [and] provides assistance to Federal, state, local, and tribal law enforcement agencies operating in areas determined to be critical drug-trafficking regions of the United States."  Usefully, the Rocky Mountain HIDTA has been especially focused on marijuana reform, and the last three years it has produced a annual report around this time under the title "The Legalization of Marijuana in Colorado: The Impact."  Volume Three of that report, which runs nearly 200 pages and was just release, can be accessed at this link.

Here is an excerpt from the report's executive summary highlighting its coverage:

Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA) is tracking the impact of marijuana legalization in the state of Colorado. This report will utilize, whenever possible, a comparison of three different eras in Colorado’s legalization history:

• 2006 – 2008: Early medical marijuana era

• 2009 – Present: Medical marijuana commercialization and expansion era

• 2013 – Present: Recreational marijuana era

Rocky Mountain HIDTA will collect and report comparative data in a variety of areas, including but not limited to:

• Impaired driving

• Youth marijuana use

• Adult marijuana use

• Emergency room admissions

• Marijuana-related exposure cases • Diversion of Colorado marijuana

This is the third annual report on the impact of legalized marijuana in Colorado. It is divided into eleven sections, each providing information on the impact of marijuana legalization. The sections are as follows:

Section 1 – Impaired Driving...

Section 2 – Youth Marijuana Use...

Section 3 – Adult Marijuana Use...

Section 4 – Emergency Room Marijuana and Hospital Marijuana-Related Admissions...

Section 5 – Marijuana-Related Exposure...

Section 6 – Treatment...

Section 7 – Diversion of Colorado Marijuana...

Section 8 – Diversion by Parcel...

Section 9 – THC Extraction Labs...

Section 10 – Related Data...

Section 11 – Related Material...

The nature and order of the sections in this big RMHIDTA "Impact" report help highlight that RMHIDTA is almost exclusively interested in emphasizing and lamenting any and all potential negative impacts from marijuana reform in Colorado and deemphasizing and mariginalizing any and all potential positive impacts.  

This bias toward emphasizing the negative and ignoring positive impacts is most obvious in terms of the report's (almost non-existant) discussion of the economic development and tax revenues resulting from legalization.  Jobs created by marijuana reform are not mentioned anywhere in the report, and a short discussion of tax revenues in the final sections of the report starts with this warning: "It will take years of data collection to complete an analysis of whether marijuana legalization is economically positive or an economic disaster."  

Similarly, changes in overall crime rates are only briefly discussed in the final "related data" section of the report, probably because the news seems pretty positive: property crime rates seem to be going down since marijuana reform throughout Colorado while violent crimes rates seem flat.  Of particular note, as this semi-official chart reveals, it appears Denver (which is sort-of ground-zero for marijuana reform relalities and likely impact) experienced a significant decrease in reported homicides, rapes and robbery in 2014 relative to 2013.   I suspect that this RMHIDTA report would have made much of Colorado and/or Denver homicide rates if they had gone up, but instead this "impact" goes undiscussed. 

Reporting biases notwithstanding, this is still an important report that assembles lots of data. And, perhaps in part because of its biases, this report now stands as the latest, greatest effort by the law enforcement community to make the case that marijuana reform in Colorado is a failed experiment. Any and all serious students of marijuana law and policy should take the time to review what this report says and how it is saying what it is saying.

September 15, 2015 in Criminal justice developments and reforms, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, September 14, 2015

"Why I Fight for Ohio Marijuana Legalization"

The title of this post is the title of this provocative new Huffington Post commentary authored by Russ Bellville.  Here are excerpts:

I'm somewhat of an outlier in the marijuana reform movement these days. Ohio has marijuana legalization on the ballot for 2015, and I'm one of the few high-profile (pardon the pun) legalization advocates pushing hard for its passage.  Most of my colleagues are in a hold-their-nose-and-backhandedly-support-it public stance, and some are assiduously attacking the measure and angling for its defeat.

That's because they don't understand the nature of this war.  This is not about marijuana and it is certainly not about entrepreneurship.  This is about freedom.

In 1971, the president of the United States declared war on people like me who use marijuana.  People don't think of it that way, but when you look at how our liberties have been shredded in the War on Drugs, they should.

This war, in a nutshell, is the ability for authorities of the state to abrogate my rights because the drug I choose to use is contraband.  The result is a society where my friends who choose to use alcohol, nicotine, and numerous prescription drugs that are far more harmful than my drug are afforded adult respect and accommodation, while my people are treated as criminals.

In 2014, I sat on the side of a Utah freeway while armed agents of the state rifled through my personal possessions and detained me for six hours until I could raise $1,200 because they detected marijuana.  For twelve months, I've had to diligently pay $100 a month to ensure I don't have a permanent criminal record, while being extra cautious to avoid encounters with law enforcement who'd quickly discover I have a current criminal drug record in Utah.  I take this shit personally.

So the way the war is won is by taking from the authorities, state by state, the ability to fuck with adults who use marijuana.  When marijuana is not contraband, the whole game changes.  We shift from being criminals seeking a high to consumers of a legal product seeking equal rights.  We get businesses and money and tax revenue and lobbyists and politicians on our side.

Then we fight for cultivation rights.  Then we fight to make the business model more equitable.  But we've got to get it legal first, period.

The reason so many of these stoners against legalization feel confident in "wait 'til next year" is most of them don't get busted.  There are 20 million-ish pot smokers, but 675,000-ish marijuana arrests.  It's like what, 1 in 30 of us are going to get busted? Then, in Ohio, it's a ticket and driver's license loss, no arrest, so some people don't fear the risk of remaining criminals.

Sometimes that's attributable to those people being white, or older, or both, and being far less likely to be busted if they're careful.  Why accept a less-than-perfect legalization, they'd think, when I've already got my hook-up; I smoke pretty much with impunity, and I am disgusted at the idea of know-nothing carpetbagger money guys who don't know their sativa from Shinola swooping in and stealing the industry from my pals who are cop-ducking risk-taking illicit marijuana growers who've kept me high all these years?

So, I get it.  I'm not ignorant to the shitiness of the business plan, the opportunistic capitalistic ignorant (really, a superhero bud?) asshole behind the measure, and the karmic turd sandwich voting for Issue 3 will be.

But to me, this is war. And it's not us against the corporations or us against the rich, it's us against the prohibition that keeps us second-class citizens.

To me, it's not just Ohio, it's every goddamn state that is so much further behind Ohio, wishing they had a shot at imperfect legalization.  States like Texas where women get raped in parking lots by cops who claim they smell marijuana in the women's vaginas. States like Missouri where a man serving life for pot finally gets released, but so many more men and women in so many more states are rotting behind bars.  States that only inch closer to freedom on the wave of other states' successes.

I never again want to see the prohibitionists win another battle in this war....  Win every battle.  Do not give the opponent any quarter.  Be as ruthless to our enemy as they have been to us.  They will all be hoping that Ohio defeats legalization in 2015. They want to keep making easy ticket money, busting down home growers' doors, seizing people's assets over marijuana.  They want to keep raking in cash for drug testing and prison and probation and parole.  Don't give them a victory.

September 14, 2015 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, September 13, 2015

"California Marijuana Legalization 2015: New Medical Marijuana Law Rankles Top Cannabis Industry Investor"

The title of this post is the headline of this new Internation Business Times article effectively reviewing the dynamics surrounding the notable legislative development in California this past week.  Here are excerpts:

California lawmakers quietly passed Friday the state’s most significant medical-marijuana legislation in almost two decades, but some leaders in the space worry that the law’s good intentions could get lost in the weeds . Paving the way for what supporters say is a much-needed regulatory framework for the state’s multibillion-dollar medical-cannabis industry, the California Senate and Assembly voted to approve the historic Medical Marijuana Regulation and Safety Act, which will require licenses for cannabis dispensaries and create a new state agency to oversee the industry.

Although California residents voted to approve medical marijuana back in 1996, a regulatory plan has until now eluded policymakers, who could not seem to agree on specifics.  Legislators finally reached a compromise on three bills, which have been sent for final approval to Gov. Jerry Brown, who is expected to sign them into law.  The legislation was approved as part of a comprehensive package pushed through on the final day of the 2015 session.

Despite the historic achievement, some leaders in the field expressed concerns about the implications of regulating an industry that has been unregulated for so long. Steve DeAngelo, co-founder of the ArcView Group, mammoth marijuana-investment firm, and the Harborside Health Center, a nonprofit dispensary in the state, said in a statement Saturday that the time pressures made it impossible for state legislators to adequately consider the impact the new law will have on patients who depend on medical cannabis.

“[S]ome of the language in the bill is unclear or may be in conflict with prior legislation,” said DeAngelo, also the health center’s executive director.  He added that the center hopes to work with lawmakers in the next session to address and resolve what he called “outstanding issues.”

[T]he legislation approved Friday would create -- in theory, at least -- a working template for how recreational marijuana might be regulated assuming it were to become legal.  The bills will also allow for the creation of a new Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs, which will oversee licenses.

September 13, 2015 in Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Is DC's gray marijuana market the best of all possible marijuana reform worlds?

31_panglossforwebWith apologies to Voltaire and Dr. Pangloss, the title of this post is my reaction to this notable new Washington Post article discussing how marijuana reform is playing out in the District of Columbia.  The piece is headlined "First legal harvest of marijuana fueling gray market for pot in U.S. capital," and here are some extended excerpts:

In upper Northwest Washington, marijuana buds the size of zucchinis hang drying in a room once reserved for yoga.  In the Shaw neighborhood, pot grown in a converted closet sits meticulously trimmed, weighed and sealed in jars.  Elsewhere, from Georgetown to Capitol Hill to Congress Heights, seven-leafed weeds are flowering in bedrooms, back yards and window boxes.  

Welcome to the first crop of legal pot in the nation’s capital — where residents may grow and possess marijuana but are still forbidden to sell it.

In recent weeks, a small army of mostly novice gardeners who took up growing when the District legalized marijuana in February have begun to roll, pack and smoke the joints, bongs and bowls of their labor.  By one estimate, they have collectively grown upward of 100 pounds with a street value north of a ­half-million dollars — far more than most of these amateur cultivators are likely to consume on their own.

All of which presents a thorny question for District leaders and police in a city where cultivation and possession are legal but sales are not: How the heck will all this pot get from those who have it to those who want it?

A fitness instructor who took up the hobby six months ago has amassed enough pot to make tens of thousands of dollars selling it.  Instead, he’s begun giving away a little bit to anyone who pays for a massage.  The instructor asked not to be named out of concern that he or his home, where he sometimes serves clients, could become targets for criminals.

A T-shirt vendor in Columbia Heights who declined to comment may be working in a similar gray area.  College students say the roving stand has become known to include a “gift” of a bag of marijuana inside a purchase for those who tip really well.  And recently, dozens of people paid $125 for a class in Northwest Washington to learn about cooking with cannabis from a home grower.  Free samples were included.

Andrew Paul House, 27, a recent law school graduate, may be the best early test case for whether home growers can find a way to make money from their extra pot.  House has started a corporation and a sleek Web site to order deliveries of homegrown marijuana to D.C. residents’ doorsteps — “free gifts” in exchange for donations to the company, akin to a coffee mug given to donors by a public radio station.

“I believe we are following the letter and the spirit of the law,” House said of the business he has named the Premium Club.  “There’s this gap period where there is no retail and there is no regulation.  My purpose is to step into that in-between time when there won’t be enough marijuana for adults to use recreationally and allow for the legal transfer under the initiative.”

None of this is what advocates for marijuana legalization who authored last year’s overwhelmingly successful ballot measure intended.  They anticipated that if endorsed by voters, the D.C. Council would go the way of Colorado and Washington state and set up a legal system of sales and taxation.

Instead, conservatives in Congress blocked the city from doing so using their federal oversight of the District’s affairs.  But Mayor Muriel E. Bowser (D) and Police Chief Cathy L. Lanier went forward with what the letter of the ballot measure allowed, legalizing everything but sales.  And they insisted in February that, despite the legal limbo, a gray market for marijuana would not be tolerated.

But a lot has happened since then, namely a 40 percent spike in homicides that has monopolized the attentions of both Bowser and Lanier and led to a reorganization of the city’s narcotics investigators to focus on major streams of drugs into the city.  That has left untouched a cottage industry taking root from the inside out, said Delroy Burton, head of the D.C. Police Union. Marijuana has become tolerated in the city so much that the D.C. State Fair added a marijuana-growing competition to its lineup of events Saturday.  The “Best Bud” category joined the fair’s growing list of competitions.

“People are disguising sales as thank-you gifts, but they are being smart about it, distributing in a way that they cannot be charged with distribution,” Burton said.

Lanier’s department directed questions to the Bowser administration. Kevin Donahue, the city’s deputy mayor for public safety, said the administration remains focused on those trying to push the envelope of the new law. Representatives of the city’s health and police departments, as well as its licensing and business agencies, have met every other week since February, but the group has yet to identify anyone operating outside the bounds of the law....

“Keep in mind that the spirit, intent and letter of the law is supposed to decriminalize a practice that can lead to over­policing and overincarceration,” Donahue added. Asked about the Premium Club, Donahue said it didn’t necessarily sound like strict “home grow, home use” — Bowser’s mantra for what’s allowable.  Despite a promise to do so, the administration has not yet launched a public awareness campaign around that message....

Under the ballot measure, District residents are allowed to “possess, grow, harvest or process, within the interior of a house or rental unit . . . no more than six cannabis plants, with three or fewer being mature, flowering plants.”  If more than one adult lives in the residence, the upper limits are twelve plants with six being mature at any one time. Those rules are among the most liberal in the nation; the District assigns, for example, no definition for the size of a full plant — as California and other states have....

Another grower who spoke on the condition of anonymity because of concerns about security has built an even more sophisticated growing room and expects a yield of medicinal-quality marijuana to “share” with friends suffering from a variety of ailments.  The grower went through a months-long process of applying for a city building permit and having contractors and electricians outfit a new $6,000 room constructed in his Adams Morgan home solely for growing pot....

Adam Eidinger, the face of last year’s Initiative 71 campaign, was among those with a meager harvest, but Eidinger has no shortage.  He has been gifted marijuana constantly as the harvest has come in.  Eidinger said he has found pot on his doorstep, joints rolled up in tin foil and left on his car and bags simply handed to him walking down the street. “I think it’s a sign that people feel good about themselves and what they were able to grow when they give to me,” he said....

House, who launched the Premium Club, declined to say how many home growers he is working with or how many donations or deliveries have been made since the Web site launched last month. He said “business is good — definitely better than expected,” and he is finalizing the launch of a mobile app with real-time information on deliveries.

Already in business for more than three weeks, House advertises that a portion of each $100 donation to the business will go to local charities.  He hasn’t given away any of the money yet, but he said in an interview that he will begin to later this month. Of the remaining half, he takes a cut of each donation as his salary.  Through a system he described only as “complicated and time consuming,” he said he directs the rest back to home growers.

I am not familiar with any traditional drug dealers who worry about "following the letter and the spirit of the law" or who makes plans to give a portion of his earnings to local charities. Similarly, I am unaware of any traditional drug dealers who plan to give away their product to "friends suffering from a variety of ailments." Thus, compared to the regular black market, the DC legalization initiative reform seems to be an improvement with respect to who is involved in marijuana dissemination.

In addition, unlike in Colorado and other full legalization jurisdictions where there concerns about the emergence of a "big Marijuana" industry that will actively promote marijuana products and profit from marijuana abuse and addition, the DC legalization initiative reform seems to be producing only "mom-and-pop" marijuana producers who should have limited ability to promote and profit considerably from their efforts. In this way for those most concerned about the potential harms of marijuana reform, perhaps the DC gray market is to be preferred to the "white markets" that continue to develop and grow in other legalization jurisdictions.

Like Voltaire, I am talking up the prospect of DC being the "best of all possible marijuana reform worlds" with my tongue planted somewhat in my cheek. Indeed, among hard-core pro-reform and anti-reform advocates on both side of the usual marijuana legalization debate, I suspect that the DC middle-ground seems like it could be among the worst of all possible world. But as the labratories of democracy keep experimenting with reform, I think it ultimately quite valuable that we are seeing many different marijuana reform worlds emerging so that we might be better able to assess effectively which are proving to be the best of the bunch.

September 13, 2015 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, September 11, 2015

"The Worst of Both Worlds: The Wild West of the 'Legal' Marijuana Industry"

The title of this post is the title of this notable new article by Luke Scheuer available via SSRN.  Here is the abstract:

As states have legalized marijuana, they have created a booming industry that operates in violation of the federal Controlled Substances Abuse Act.  Like the tobacco and alcohol industries, this new legal marijuana industry has the potential to do great harm to American consumers and communities if it is not disciplined and restrained in how it sells and develops its products.  Unfortunately the federal government has not yet stepped in to regulate the industry and state governments have imposed only limited controls.  In addition, because of the increased threat of criminal and civil liability hanging over the industry, it has been largely shut out from attracting professional stakeholders including banks, venture capital firms, and professional managers which could help impose market discipline.

In order to achieve the policy goals behind legalization of marijuana it is important that states do everything they can in the short term to regulate this industry so that it develops in a responsible manner. One of the things states can do is promote the integration of professional stakeholders into this industry. This essay explores what it means to be a “professional” in the marijuana industry and how more professionals could help mitigate some of the harm this industry poses to the public. 

September 11, 2015 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

If you build it (and make it legal), they will keep coming and coming....

With apologies to the Field of Dreams mantra, the title of this post was my first reaction to this news via The Cannabist headlined "Colorado pot sales spike in July, continue to set records; The latest monthly data for Colorado marijuana: more than $96 million sold in July, with recreational and medical each setting a new bar in the legal era." Here are the basic details:

Colorado pot sales — recreational and medical — were thriving in July 2015, the most recent month for which the Department of Revenue has released marijuana tax data.

After topping $50 million for the first time in June, recreational sales cleared the $55 million hurdle in July when sales totaled more than $56.4 million — a record for retail cannabis in Colorado.  Medical marijuana sales numbers in July were also at their highest in the recreational era’s 19 months of recorded data, reaching more than $39.8 million....

In total, more than $96 million of marijuana was sold in Colorado shops in July — up from $85 million in June.  For context, 2014’s most robust month of recreational and medical cannabis sales was August, when those sales totaled $67 million....

“Those numbers are showing that our pot tourism is surely increasing,” said Tyler Henson, president of the Colorado Cannabis Chamber of Commerce.  “People want to come here and try this out and tell their friends and family that they came to Colorado and tried some of the best cannabis the world has to offer and they had a great time.”

September 11, 2015 in Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, September 10, 2015

"What the Marijuana Lobby Could Offer Hillary Clinton"

The title of this post is the headline of this notable new Bloomberg Politics article, and here are excerpts:

Hillary Clinton says she has never smoked pot, not even as a bell-bottom-wearing undergraduate in the 1960s.  Her husband’s administration went nuclear in the War on Drugs.  During the 2008 campaign, she publicly opposed marijuana legalization.

But it’s now seven years later, and the marijuana industry isn’t selling baggies and answering beepers.  It’s a $2.7 billion business — the fastest-growing in the United States — and one that operates without any legal sanction in four states, is decriminalized in 16 others, and is permitted for medical use in a few more.

And now people that are selling, growing, and, in some cases, using marijuana have money to burn.  They want to give some of that green (not that, the other green) to politicians hungry for donations.  But they want some answers first.

At an August fundraiser at the home of Democratic consultant Win McCormick and Carol Butler in the exclusive Dunthorpe neighborhood of Portland, Oregon — a state that legalized marijuana in 2014 — nearly a dozen cannabis industry professionals paid $2,700 a head to get an audience with the Democratic front-runner and former secretary of state.  There, she mentioned working with Portland Representative Earl Blumenauer, one of Capitol Hill’s loudest advocates of pot legalization, on, among other items, “cannabis reform.”...

What did these pot industry professionals want?  Some clarity, for one thing.  The Obama administration has willfully turned its head away from the legalization experiment and the thorny interstate issues it has raised.  And even though the industry has boomed since marijuana was legalized in Colorado, Washington, Alaska, and Oregon over the last three years, the growing crop of pot entrepreneurs faces serious problems.  For one thing, marijuana remains a Schedule 1 drug, on par with heroin, quaaludes, and bath salts, a classification which limits the ability of researchers to study it, and forbids its use.  (A Schedule 2 drug, like codeine, is acknowledged to have some medical uses, and is available for research.)

Plus, they want access to the banking system.  For now, even legal marijuana businesses remain all-cash, since many banks won’t accept their money for fear of violating federal laws, and sellers and grow operations are unable to deduct their businesses expenses like other entities.

Few advocates want the federal government to impose legalization by diktat, but want states to continue to be able to pass new liberties as they see fit.  And so at a bare minimum, what the pot lobby wants from politicians this year and beyond is a commitment to let this state-by-state experiment that the Obama administration tacitly condones to continue to play itself out.  The thinking goes that, much like the gay marriage debate, once enough states legalize it, the federal government will have to adapt....

If anything, Clinton is a laggard, if a slight one.  She has said that she wants to “wait and see” how legalization plays out in the states, but has also told a television interviewer that she doubts the efficacy of medical marijuana....

A congenitally cautious pol whose current platform differs not one iota from the standard Democratic playbook, Clinton seems unmoved even by a poll commissioned earlier this year by her own pollster, Joel Benenson, which showed that 61 percent of Americans favored legalization, with even larger majorities among exactly the kind of voters Clinton needs to excite in 2016 — young people, African-Americans, and Hispanics.

The Clinton campaign declined a donation from the National Cannabis Industry Association earlier this year, according to NCIA executive director Aaron Smith. And so at the industry’s annual trade show in June, it was Rand Paul, and not Clinton, who was invited to hold a fundraiser on the sidelines, where 40 industry professionals maxed out to his campaign.

September 10, 2015 in Campaigns, elections and public officials concerning reforms, Political perspective on reforms, Who decides | Permalink | Comments (0)

Two extended (and effective) reviews of Ohio's distinct marijuana reform dynamics

With election day 2015 now less than eight weeks away (and the start of early voting less than four weeks away), I am pleased to see that some national and local media are starting to engaging in deeper dives into the doctrines and debates surrounding the Ohio marijuana reform proposal now before Buckeye voters.  Of particular note are these two lengthy new pieces about what is now known in Ohio as Issue 3:

  • From the International Business Times here, "Marijuana Legalization 2015: Ohio’s Push To Legalize Pot Creates Rifts Within Pro-Pot Movement"

  • From the Cincinnati Enquirer here, "Parents of ill children question whether Issue 3 will meet medical marijuana needs"

September 10, 2015 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, September 9, 2015

"Life in prison for selling marijuana: Meet the people new pot laws forgot"

The title of this post is the headline of this recent MSNBC article, which includes these excerpts:

At least 67 people are in prison right now, sentenced to die there for selling marijuana, according to the best available data. Until last week, Jeff Mizanskey was one of them.

“Man, I feel great,” the great-grandfather told MSNBC, as he contemplated his first weekend as a free man in more than 20 years. His sentence was commuted in May from life without parole to simple life, and on Tuesday he walked out of a maximum security Missouri prison.  Someone helped him dial this wondrous new thing called a smart phone. “Do you have children?” he asked.  “The day a child is born – that’s what this feels like for me. I’ve finally made it to freedom.”

Mizanskey received his harsh sentence in 1996, after he was convicted for trying to distribute six pounds of Mexican marijuana.  There was no violence involved, no selling to kids.  But Mizanskey had two previous convictions for the possession and sale of pot totaling 10 ounces.  That qualified him as a “persistent” drug offender under Missouri law, subject to any punishment short of the death penalty.  That law has since been repealed, but similar policies continue to echo down the halls of American prisons, dividing families across the country.

Today, more than twenty states have legalized marijuana in one form or another, and with $22 billion in legitimate sales expected by 2020, pot has become a consumer product like any other.  But new laws have done nothing for people with past convictions, including some with sentences heavier than for rape or murder.

About 40,000 inmates of state and federal prison have a current conviction involving marijuana, according to research co-authored by UCLA professor Mark Kleiman. About half of them are in for marijuana offenses alone.  And all of them are, in one way or another, victims of the stupendous drug panic that swept America in the 1980s and 1990s....

The war on marijuana dealers began in the 1980s, but it did not end in that decade. Between 1996 and 2014, federal judges sentenced 54 people to life without parole for marijuana offenses, according to new work by The Clemency Report, a project of former USA Today reporter Dennis Cauchon.   The American Civil Liberties Union has found about a dozen more cases at the state level, and at least a dozen more are alleged by various advocacy groups.

Few if any of these lifers were kingpins, according to the ACLU. One man was busted for selling 32 grams of marijuana. Another conspired to sell 130 grams, the equivalent of less than a carton of cigarettes. Still others were nabbed in cases involving between two and 50 pounds of pot. They all got life in prison and, as far as can be known, that’s where they remain.

September 9, 2015 in Criminal justice developments and reforms | Permalink | Comments (0)

Monday, September 7, 2015

"Are 'Legal' Marijuana Contracts 'Illegal'?"

The title of this post is the title of this new paper by Luke Scheuer now available via SSRN. Here is the abstract:

America is currently in the midst of a “legal” marijuana business boom.  In states which have legalized marijuana thousands of businesses have been created and are being openly operated despite the continued prohibition on their main product by the federal Controlled Substances Abuse Act.  As a regular part of their business, these companies enter into contracts which violate the CSA, for example, every time they sell their main product.  

These businesses, and their stakeholders, rely upon the enforceability of these contracts in order to regulate their relationships.  However, under the “illegality” or public policy defense to the enforcement of contracts these contracts are arguably all void and unenforceable.   Under the traditional understanding of this defense not only will an illegal contract not be enforced but any consideration paid will not even be returned.  This defense is grounded in the public policy against encouraging illegal behavior and is a product of state law.  Should courts apply it to the marijuana industry which has been legalized also under state law when it clearly is not against the public policy of states which have legalized marijuana to allow for the sale of marijuana?

This article explores the effects of the conflict between federal and state marijuana laws on these businesses’ ability to enter into legally enforceable contracts.  This article argues that marijuana contracts do not in fact violate public policy and therefore should be enforced despite their illegality.  Nevertheless, courts should exercise restraint in enforcing these agreements, particularly in applying equitable remedies such as specific performance, so as to avoid forcing individuals to violate federal law.

September 7, 2015 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, September 4, 2015

"Why American Indian Tribes Are Getting Into the Marijuana Business"

The title of this post is the headline of this notable lengthy new Time article.  The piece highlights the economic interests that are driving tribal interest in the marijuana industry, and it also highlights the legal challenges that the first tribe moving forward is already facing.  Here are excerpts:

A federal memo late last year that cleared the way for American Indian tribes to legalize marijuana on tribal land — even if pot is still illegal in the surrounding state. The Flandreau Santee Sioux is one of the first Native American groups to take advantage of the decision.  [Tribal President Tony] Reider hopes to draw pot smokers from all over the state to visit the reservation, 40 miles (65 km) north of Sioux Falls, providing a new source of much-needed revenue for his people.

“There’s great economic advantages, and medicinal value,” said Reider, who also plans to have a quiet treatment center for medical marijuana patients. “Plus, with any business venture, the first to market can corner the market early.”

The Flandreau Santee Sioux tribe is not alone. Ever since the U.S. Department of Justice released a memo in December of 2014 that seemed to open the door for the 566 federally recognized American Indian tribes to begin growing and selling marijuana on their land, dozens of tribes across the country have explored the possibility. As tribal leaders seek to boost their economically struggling communities, they’ve had to weigh the potential financial boon of marijuana sales against the legal and social risks of getting into the drug business.

Last December’s memorandum essentially extended to Indian tribes the same marijuana policy that the federal government had previously applied to states: U.S. attorneys will generally turn a blind eye to marijuana sales in states that have legalized pot, as long as businesses selling the drug avoid eight violations, such as selling marijuana to minors. These rules, which currently apply to states that have legalized marijuana, like Colorado, “will guide the United States Attorney’s marijuana enforcement efforts in Indian Country,” the Department of Justice wrote in the December memo.

The memo kicked off months of feverish activity among tribal leaders and pot barons eager to see whether growing and selling pot in a whole new swath of American land was a real possibility. Though legal experts say the memo was issued in response to questions from tribes in Washington State, where marijuana is legal, it also sparked interest among tribes in states that are less friendly to pot, like South Dakota. Marijuana business consultants and boutique law firms hosted seminars for interested tribes, and in February, representatives from some 75 tribes attended a conference at the Tulalip resort and casino in Washington State to discuss marijuana legalization....

Though the memo suggests that the U.S. attorneys will not prioritize the prosecution of Indian tribes selling marijuana, as long as they follow the guidelines, the memo is not law. Individual U.S. attorneys can still set their own priorities, and state authorities can still enforce state laws in ways that might get Indian leaders in hot water. Alturus Indian Rancheria tribe and the Pit River Tribe in northern California were searched in July by state and federal agents — a raid that experts say has spooked other tribes. The U.S. attorney in the Eastern District of California said his office had targeted the operation because of its large size and possible ties to a foreign national, suggesting that the tribe intended to sell marijuana beyond its boundaries, which is prohibited.

And adding to tribes’ concerns, a month later, in early August, Senator James Lankford, a Republican from Oklahoma, introduced federal legislation, “Keeping out Illegal Drugs Act of 2015,” that would prohibit Indian tribes that “cultivate, manufacture, or distribute” marijuana on Indian land from receiving federal funding.

Getting on the wrong side of federal law enforcement and losing federal funding are exactly the kind of problems Native American tribes would most want to avoid, Williams said. Now “most tribes are cautious,” he said. “They are sitting back and seeing what happens to a couple tribes that jump on the barbed wire fence.”

In addition to the Flandreau Santee Sioux, the Menominee tribe is also moving ahead in Wisconsin, even though marijuana is banned there as well. On Aug. 19 and 20, the Menominee tribe held a referendum on the legalization of marijuana, and of the roughly 1,000 people who voted, 58% supported recreational marijuana and 77% supported medicinal. The next step is for the nine-person tribal council to research the costs and benefits and then potentially propose legislation to legalize pot. The tribal council is conducting its first discussions of the referendum this month.

Like many of the tribes that are considering legalizing marijuana, the Menominee’s primary motive is revenue. The county that the 360 sq. mi. reservation occupies is the poorest in the state, and anything that could help deserves a close look, said Gary Besaw, the Menominee tribal chairman. “Menominee doesn’t have the luxury to not research potential revenue sources,” Besaw said. “At the very least we had to take a look at this.”

Beyond finances, there are other reasons for the tribe to be interested in marijuana. Menominee tribal members, many of them veterans, suffer from high rates of PTSD, cancer and chronic pain — all conditions that marijuana may be able to ease. The Menominee also see marijuana as a less dangerous alternative to prescription painkillers, which can leave patients addicted to opiates.

But if the tribe moves forward with legalization, it may hit roadblocks from state law enforcement. Marijuana possession, cultivation and sale is illegal in Wisconsin. Though Wisconsin’s attorney general, Brad Schimel is sympathetic to the Menominee and reluctant to overact, he is also charged with enforcing Wisconsin’s law. “You add into this dynamic that the Menominee are the poorest tribe in the state and they are indigenous to Wisconsin, so you kind of want to be able to see them try it,” Schimel said, but he is concerned that it will be difficult to keep marijuana only on the reservation. While he has no specific plans to ramp up enforcement, he said police departments near the reservation may add more drug recognition experts charged with looking for drivers under the influence....

The Flandreau Santee Sioux in South Dakota ... will have to draw visitors to the reservation to buy it. Their planned grow facility will be able to produce 75 to 80 lbs. of marijuana a week—much more than the reservation’s 300-odd residents, or the 2,300-person population in the small city of Flandreua, could possibly ingest themselves. That means Reider is counting on people coming from farther afield, like Sioux Falls, a 35-minute drive away, or Minneapolis, which is a three-and-a-half-hour drive. “We hope people will come spend the weekend or spend a week,” Reider said.

But South Dakota’s attorney general, Marty Jackley, says the Flandreau Santee Sioux’s business model is not allowed in the state. In a news release in June after the tribe announced that it would pursue a marijuana business, Jackley wrote that it is illegal for “non-Indian persons” to possess or distribute marijuana anywhere in South Dakota, including on Indian reservations. He added than anyone, Indian or not, who smoked a joint on Indian country and drove back into South Dakota with marijuana in their system would be breaking state law.

Reider, the tribal chief, still plans to move ahead with a marijuana lounge. He said security guards would monitor exits so that people don’t leave with marijuana and aren’t too intoxicated to drive. While the plans are still being formulated, Reider believes it is important for his tribe to get ahead on a fledgling national marijuana industry that has already seen a tremendous amount of growth. The way he sees it, it isn’t fair to hold tribes back from a business that he believes will soon be booming everywhere. “We look at what happened in Washington where the state has legalized it,” he said, “the tribes are forced to either play catch up or wonder if they can even compete in that arena.” For Reider, the benefits of a lucrative business outweigh the risks.

Prior related posts:

September 4, 2015 in Who decides | Permalink | Comments (0)

Senator Elizabeth Warren "open" to full legalization and urges more marijuana research

As highlighted in this posting at Marijuana Politics, headlined "Progressive Icon Elizabeth Warren is Now Open to Marijuana Legalization," Massachusetts Senator Elizabeth Warren had a number of interesting things to say about marijuana reform and marijuana research during an interview this past week.  Here is the video:

September 4, 2015 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

"Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry"

The title of this post is the title of this notable new paper authored by Sam Kamin and Viva Moffat now available via SSRN.  Here is the abstract:

Marijuana law is changing rapidly in the United States today – since 1996, 23 states and the District of Columbia have legalized medical marijuana and five jurisdictions have made marijuana legal for all adults.  Because marijuana remains a prohibited substance under federal law, however, the states are significantly limited in their ability to control marijuana policy within their borders.  For example, because banking is regulated by the federal government, state-licensed marijuana businesses cannot gain full access to banking services; because bankruptcy is a federal benefit, it is unavailable to those involved in the business of violating federal law.

This article examines the implications for marijuana businesses of another area of federal regulation that has heretofore escaped academic commentary: federal intellectual property law.  The continuing federal marijuana prohibition means that the most relevant federal intellectual property protections – trademark and patent – are largely unavailable for most marijuana businesses.  While they are bound to comply with the dictates of trademark and patent law in their own affairs, marijuana businesses cannot acquire the rights and benefits of those laws or invoke those doctrines against others.

We discuss the ways in which these businesses attempt to circumvent the unavailability of patent and trademark rights, often through reliance on state law doctrines which generally prove insufficient to meet their needs.  We also discuss the unexpected natural experiment that the current conflict between state and federal law creates.  It is often asserted that intellectual property protections are necessary to foster creativity and investment.  Yet the marijuana industry has seen extraordinary innovation and capital formation, even as these ostensibly necessary protections have proven unavailable.  We conclude by discussing the implications of this observation for federal intellectual property law and policy more generally.

September 4, 2015 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Web/Tech | Permalink | Comments (0)