Friday, February 21, 2014
Last week, Rob posed an interesting question: should states reform marijuana laws through ballot measure or legislation. As his post notes, recent state medical marijuana laws have come mostly in the form of legislation. Earlier reforms were mostly by ballot measure.
Of course, the ballot measure model has been a matter of political necessity to a large degree. It took a string of ballot measure victories to begin to convince politicians that supporting medical marijuana might actually be a smart political move.
If marijuana legalization is going to follow a different path, with greater reliance on legislative reform, politicians will need to be quicker to embrace the issue than they were with medical marijuana.
This brings me to a notable development, noted by Toke of the Town today. It appears that all of the Democratic candidates for governor have come out (in some form or another) for marijuana law reform. Most interesting to me, the most recent candidate to do so cited his belief that legalization may now be inevitable in explaining his position:
Maryland Attorney General Doug Gansler this week told the Baltimore Sun that he feels the legalization of cannabis is going to happen, and that as governor he would ensure laws are implemented "the right way" if such a change were to happen while he is in office.
If this idea takes hold in the political world--that marijuana legalization is inevitable--I think we may start to see marijuana legalization by legislation happen much more quickly than we did for medical marijuana.
Of course, whether that is a good thing or not--Rob's question--is a different story. All things being equal in terms of substance, I think reform by legislation is better than by ballot measure for many of the reasons Rob points out.
The catch is that reforms by the legislature may tend to be much more cautious than by ballot measure. In the case of Maryland, the AG says he wants to make sure it is implemented "the right way." If I had to guess, I would imagine the Maryland AG's thinking about "the right way" would involve a much more restrictive law than what we see in Colorado and Washington.
Chris Christie said much the same thing about medical marijuana in New Jersey, for example. The result is a medical marijuana law that, at least some advocates say, doesn't seem to be really serving its purpose:
Patients in need of medical marijuana in more than half the state have a tough time getting the drug because the program is too bureaucratic, too expensive and few doctors are willing to participate, patient advocates and a dispensary owner told a state legislative committee today.
To be sure, it could be that some legislatures would enact reforms that are as good or better (in terms of substance) than what we would get from a ballot measure. And the flexibility that reform via the legislature provides is a big plus, as Rob discusses.
But, there is the possibility that (at least in some states) the question facing advocates going forward may be whether it is better to have very modest reform by legislation or more robust reform by ballot measure.
Wednesday, February 19, 2014
For some time, we have put mind-altering substances into one of three boxes: (1) acceptable for recreation (e.g., alcohol and tobacco), (2) acceptable for use as a medicine but for no other use (e.g., substances in Schedules II through V of the CSA) or (3) not acceptable for any use (e.g., all Schedule I substances.) Kimani Paul-Emile wrote an interesting article (PDF) discussing this, and advancing an alternative framework for thinking about drug control, a few years back.
There isn't a lot of modern precedent for a substance regulated under the law for both medicine and recreation. (Of course, there was medicinal alcohol during prohibition. But after repeal, interest in alcohol as a medicine faded pretty fast.)
With evidence of marijuana's value as a medicine only mounting as time goes on, it doesn't seem likely that interest in the medical use of marijuana will vanish anytime soon. And so, as marijuana legalization takes hold, regulating the medicinal and recreational uses of marijuana may pose difficult legal and policy challenges.
In Colorado, legalization left medical marijuana largely untouched (at least in terms of legal regulation). Recreational pot stores have one "menu" and set of prices for registered medical patients and a different "menu" for recreational buyers (with medical marijuana subject to less tax and, as a result, cheaper). Colorado already had a robust set of medical marijuana regulations, which may have helped the state implement this system. So far, Colorado medical marijuana patients seem to be OK with how things are going.
Washington is a different story. There, the State's pre-legalization medical marijuana law was much more open-ended. And, as a result, regulators and lawmakers have been struggling over what to do about medical marijuana now that they are implementing legalization.
Earlier this week, Washington state legislators passed a measure that would bring medical users into the recreational system. And so far, medical marijuana patients do not seem happy about the development.
Jacob Sullum has the story at Forbes:
Last night the Washington House of Representatives approved a bill that would abolish medical marijuana dispensaries, a.k.a. “collective gardens,” and impose new restrictions on patients who use cannabis for symptom relief. H.B. 2149, which passed by a vote of 67 to 29, would thereby eliminate some of the unregulated competition for the state-licensed pot stores that are expected to start opening this summer under I-502, the legalization initiative that Washington voters approved in November 2012. Supporters of the bill, which was introduced by Rep. Eileen Cody (D-West Seattle), hope that banning dispensaries will help maximize tax revenue and mollify the feds.
The bill requires patients to buy their cannabis from the same stores that serve recreational customers, which would be the only legal sellers of medical marijuana as of May 1, 2015, when the provision allowing collective gardens would be repealed. Patients could continue to grow marijuana for their own use, but the maximum number of plants would be reduced from 15 to six (three of them flowering). The ceiling on possession by patients would be cut from 24 ounces to three. The bill instructs the state Department of Health, together with the Washington State Liquor Control Board (which is charged with regulating marijuana growers, processors, and retailers), to produce a report by November 15, 2019, on the question of whether it is appropriate to continue allowing home cultivation.
Tuesday, February 18, 2014
As I noted Friday, the Treasury Department just issued new guidance designed to make it easier for banks to serve state-authorized marijuana businesses. In a less-noticed move, the DOJ also issued new guidance urging federal prosecutors not to pursue financial crimes charges against marijuana businesses outside of the circumstances outlined in its August 2013 memo regarding drug crimes. The Treasury guidance and new DOJ memo can be found here.
Banks have long refused to serve the marijuana industry, citing, among other reasons, federal statutes that criminalize financial transactions involving proceeds of illegal activity, including marijuana sales. Sam Kamin and Joel Warner discuss the banking issue here.
Now, I doubt this new guidance will convince many banks to serve the marijuana industry. Among other things, and as I explained in a paper critical of the DOJ’s first marijuana enforcement guidelines (the 2009 Ogden memorandum), such guidance does not shield banks from all of the relevant federal sanctions that serving marijuana businesses might trigger.
But if banks DO end up serving marijuana businesses, it might give a boost to state and federal efforts to police the marijuana industry. In particular, banks could help government officials determine whether the marijuana industry is violating state law and / or engaging in behavior that would justify federal legal action under those 2013 DOJ enforcement guidelines (e.g., selling to minors).
Here’s how. Federal law requires banks to monitor and report on the financial transactions of their clients. Under federal law, for example, banks are required to file “Suspicious Activity Reports” anytime they know, suspect, or have reason to suspect a client is engaging in a financial transaction involving proceeds of illegal activity. The government then uses these SARs to investigate and prosecute federal crimes committed by the clients.
Importantly, the bulk of the new Treasury guidance is actually devoted to reaffirming and clarifying the duty of banks to file SARs on clients engaged in the marijuana industry. It makes abundantly clear that a “financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) . . . if, consistent with FinCEN regulations, the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution . . . involves funds derived from illegal activity.” (emphasis added)
To be sure, the reporting requirement could simply overwhelm government agents, since every transaction involving a marijuana business might trigger a new report. Indeed, federal agents are already deluged with SARs; in 2009, for example, banks submitted more than 700,000 SARs (banks in Colorado and Washington submitted more than 17,000 SARs), far too many for the government to investigate them all.
But the new Treasury guidance instructs banks to distinguish between good and bad marijuana businesses. Namely, if a bank believes a marijuana business is abiding state law and avoiding activities the federal government considers objectionable (e.g., selling across state lines), the bank may file an abbreviated SAR, simply by writing “MARIJUANA LIMITED” in the notations section of the report. But if the bank believes the business is flouting state law or engaging in one of those objectionable activities, it is supposed to file more detailed SAR, writing “MARIJUANA PRIORITY” in the notations section and explaining why the bank believes the business deserves closer scrutiny.
The information provided on these SARs could greatly enhance the efforts of federal and state enforcement agencies to police the marijuana industry. Banks won’t necessarily have perfect information about their clients, but they will often possess information that government agencies cannot realistically gather on their own. Indeed, as I’ve discussed at length elsewhere, governments commonly use private parties to gather information they need to enforce their regulations; e.g., without the W-2s filed by employers, the IRS would struggle (mightily) to collect individual income taxes. And requiring banks to further distinguish between law-abiding and law-shirking marijuana business greatly enhances the utility of this information for government agencies.
Knowing that banks will share information with the federal government could have a powerful deterrent effect on marijuana businesses. These businesses need bank services – try operating any business without a checking account, for example. But if they misbehave, banks will shun them, or worse yet, report their misbehavior to the feds. To be sure, some misbehaving businesses will simply avoid the banks altogether. But those businesses will be put at a serious competitive disadvantage vis a vis their more law abiding rivals.
In sum, if the guidance works (a big if), marijuana businesses will get access to banking services; banks will expand their market; and government agencies will get a new watchdog to help police the marijuana industry. Looks like a win win win.
February 18, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
The question in the title of this post might be a bit of foolish wishful thinking on my part, but these passages from this notable new New York Times article provides the foundation for my (undue?) optimism:
[S]cience’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public. “Our goal is to put out the science and have it used for evidence-based drug policy,” said Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse. “But I think it’s a mishmash.”
A 2007 study found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking. (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.) Six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability. Some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.
“We’ve done phone surveys, and we’re hearing that a lot of people think D.U.I. laws don’t apply to marijuana,” said Glenn Davis, highway safety manager at the Department of Transportation in Colorado, where recreational marijuana use became legal on Jan. 1. “And there’s always somebody who says, ‘I drive better while high.’ ”
Evidence suggests that is not the case. But it also suggests that we may not have as much to fear from stoned driving as from drunken driving. Some researchers say that limited resources are better applied to continuing to reduce drunken driving. Stoned driving, they say, is simply less dangerous.
Still, it is clear that marijuana use causes deficits that affect driving ability, Dr. Huestis said. She noted that several researchers, working independently of one another, have come up with the same estimate: a twofold increase in the risk of an accident if there is any measurable amount of THC in the bloodstream....
The estimate is low, however, compared with the dangers of drunken driving. A recent study of federal crash data found that 20-year-old drivers with a blood-alcohol content of 0.08 percent — the legal limit for driving — had an almost 20-fold increase in the risk of a fatal accident compared with sober drivers. For older adults, up to age 34, the increase was ninefold.
The study’s lead author, Eduardo Romano, a senior research scientist at the Pacific Institute for Research and Evaluation, said that once he adjusted for demographics and the presence of alcohol, marijuana did not statistically increase the risk of a crash. “Despite our results, I still think that marijuana contributes to crash risk,” he said, “only that its contribution is not as important as it was expected.”
The difference in risk between marijuana and alcohol can probably be explained by two things, Dr. Huestis and Dr. Romano both say. First, stoned drivers drive differently from drunken ones, and they have different deficits. Drunken drivers tend to drive faster than normal and to overestimate their skills, studies have shown; the opposite is true for stoned drivers. “The joke with that is Cheech and Chong being arrested for doing 20 on the freeway,” said Mark A. R. Kleiman, a professor of public policy at the U.C.L.A. School of Public Affairs....
Another factor is location. A lot of drinking is done in bars and clubs, away from home, with patrons driving to get there and then leaving by car. By contrast, marijuana smokers tend to get high at home....
All of these facts lead experts like Dr. Romano and Dr. Kleiman to believe that public resources are better spent combating drunken driving. Stoned driving, they say, is best dealt with by discouraging people from mixing marijuana and alcohol — a combination that is even riskier than alcohol alone — and by policies that minimize marijuana’s risk on the road.
For instance, states that legalize recreational marijuana, Dr. Kleiman said, should ban establishments like pot bars that encourage people to smoke away from home. And Dr. Romano said that lowering the legal blood-alcohol concentration, or B.A.C., to 0.05 or even 0.02 percent would reduce risk far more effectively than any effort to curb stoned driving. “I’m not saying marijuana is safe,” he said. “But to me it’s clear that lowering the B.A.C. should be our top priority. That policy would save more lives.”
My supposition based on this article that marijuana reforms could end up making our roadways much safer is a result of two potential impacts of ending pot prohibition: (1) if marijuana reform leads a number of people who would generally go get drunk at a bar to instead now just get stoned at home, the net effect will be safer roads, and (2) if enduring concerns about the impact of marijuana reform leads more policy-makers to focus on highway harms, we might see a greater effort to get much tougher on the enduring public safety disaster that is drinking and driving.
I am not expecting that we will get strong evidence that marijuana reforms end up making our roadways much safer anytime soon, but I am hopeful that researchers like Dr. Romano and Dr. Kleiman continue to stress that our modern alcohol policies and practices now impact highway safety much more than any marijuana reforms are likely to do. And, as these related recent articles also highlight, the media so far is doing a pretty good job defusing the risk of misguided reefer madness when it comes to driving under the influence:
From the Denver Post: "Colorado marijuana legalization's impact on stoned driving unknown
A helpful colleague alerted me to this interesting article discussing why one Colorado doctor has become a vocal opponent of modern marijuana reforms:
A Libertarian pot advocate turned opponent, Dr. Christian Thurstone, is at ground zero in the marijuana legalization battle. The medical director of a large Colorado youth drug treatment clinic; an associate professor of psychiatry at the University of Colorado, Denver; and one of a small number of doctors board certified in general, child and adolescent and addictions psychiatry, he has unique insight into the marijuana momentum sweeping the nation.
Thurstone believes that marijuana legalization is a disaster in the making. He is not shy about saying so. His experience with Colorado toe-in-the-water legalization of marijuana for medical purposes was his epiphany.
He noticed back in 2009, when Colorado began providing "medical" marijuana for its residents, that his clinic's clientele tripled: 95% of his patients came for marijuana addiction. He learned from his teenage clients that "medical" marijuana was easy to score on the streets. But the potency was increasing from medical grade. Soon his young clients would tell him how marijuana was their preferred medicine for relieving stress and anxiety.
Eventually, these young addicts came in with "medical" marijuana licenses. It was at this point Thurstone felt he needed to act. He wrote a piece for the Denver Post criticizing medical marijuana laws in January 2010 titled "Smoke and Mirrors: Colorado Teenagers and Marijuana." Thurstone made some fighting points. "What Colorado has created is a backdoor way to legalize marijuana, and it has done so in a manner that makes a mockery of responsible medicine," he wrote....
Five years later Thurstone continues his crusade. During an interview on Denver's KUSA television station in January, Thurstone was quoted as saying, "We're seeing a lot more patients, a lot more youth coming to treatment for marijuana addiction....If somebody tries marijuana before the age of 18, one in six develops an addiction to the drug. If someone waits until after 18, the number is more like one in nine."
"We have good reason to believe from both animal and human studies that exposure to marijuana during this important time of brain development can permanently change the way the brain develops," he added. "We have good evidence showing that marijuana exposure in adolescents confers up to an eight-point drop in IQ from age 13 to 38. We know that youth who use marijuana are two times more likely to develop psychosis as young adults."
Predictably, the pro-pot people have skewered him. They have questioned his knowledge, his competence and just about everything else. But Thurstone's critics do make some salient points when they refer to studies by the CDC in 2012 and another by economists at the University of Colorado, Denver and Montana State University in 2011 that indicate marijuana use among teens declined in Colorado after the passage of the comprehensive medical marijuana laws.
Thurstone criticized the studies. Still they are strong evidence in opposition to him. The debate will continue to rage on, and Thurstone will continue his campaign. He is, after all, a convert who went from being in favor of legalizing pot to opposing it.
I find this article and Dr. Thurstone's perspective quite interesting for a number of reasons, especially because it highlights how one's distinct type of involvement with marijuana use and abuse can (unduly?) influence one's views on the benefits and costs of legal reform. I do not doubt Dr. Thurstone's representation that he has a lot more teenage clients seeking help for marijuana addiction, but I do wonder if that reality is evidence of greater teen use of marijuana or just greater willingness of teens (and their parents) to seek treatment for marijuana problems now that involvement with marijuana is not longer treated as a serious criminal justice concern by the state.
Relatedly, though I am not surprised to hear a doctor express concern about hearing teens say that marijuana has become a "preferred medicine for relieving stress and anxiety," I still wonder if there is obviously a better "medicine" for this purpose. Most adults use alcohol to relieve stress and anxiety, but I doubt society wants most kids to instead try that form of self-medication. In addition, big Pharma makes big money marketing to doctors and patients a bunch of prescription drugs to deal with stress and anxiety, but I am not aware of any strong evidence that the solutions to stress and anxiety peddled by big Pharma are ideal for teens, either.
I make these points not to assert that Dr. Thurstone is misguided to be concerns about teenage marijuana use, but rather just to encourage broader reflection on whether the problems and concerns he identifies have been made worse by marijuana reform or rather have just become more visible to him.
The Los Angeles Times reports this morning that the most prominent of the proposed California legalization ballot measures--backed by the Drug Policy Alliance--will not be going forward this year. As a result, it looks like Californians will have to wait until 2016 to vote again on marijuana legalization. Given the cost of running a ballot measure in California and the difficulty in getting younger voters out in mid-term elections, this decision is not surprising.
From the LA Times:
A coalition of investors and strategists, which played a key role in passing most of the legislation to reform drug laws nationwide since 1996, has decided not to put a pot initiative on the ballot in California this year but will wait to push for legalization until 2016.
Signature-gathering efforts for at least two additional pot measures are circulating, but they do not appear to have the high-profile financial backing needed. So the coalition's decision makes it less likely that marijuana will be legalized in California in the near future.
The group was instrumental in legalizing recreational pot in Washington and Colorado and medical marijuana in Massachusetts in 2012, and it is supporting efforts in November to pass a recreational pot measure in Oregon and a medical cannabis measure in Florida.
The coalition includes the Drug Policy Alliance, which has been involved in drug reform for nearly two decades and is supported by billionaire financier George Soros. It also is allied with the late philanthropist Peter Lewis, who spent $65 million over the last 15 years to change pot laws. Lewis died in November.
The decision not to go forward in 2014 was "very close" and "one that came down to the wire," said Graham Boyd, counsel to Lewis and a leader in working to legalize marijuana in California. "We see this as a trial run or a dress rehearsal for 2016."
Monday, February 17, 2014
As Doug has blogged about before, reforms and changing attitudes about marijuana laws raise the question of whether long sentences for small-time marijuana offenders may violate the Eighth Amendment.
Last Friday, a Lousiana appeals court considered this question, upholding a 13 1/3 year sentence for (.pdf) "possession of a small amount of marijuana."
The defendant's conviction was his fourth for marijuana possession, apparently warranting a mandatory minimum 13 1/3 year sentence under Louisiana's Habitual Offender Law. At first, the trial court departed from the mandatory minimum and imposed a (still very lengthy) five-year sentence. The intermediate appeals court upheld the sentence but the Lousiana Supreme Court reversed and vacated the five-year sentence. On remand, the trial court reluctantly sentenced the defendant to 13 1/3 years.
On appeal, the defendant argued that a 13 year sentence for marijuana possession was constitutionally excessive. The appeals court disagreed, seemingly finding itself constrained by the prior state Supreme Court ruling:
Although both trial judges clearly found that the mandatory minimum sentence in this case (thirteen and a half years) is grossly disproportionate to the crime in this case (possession of two marijuana cigarettes), particularly when compared to other jurisdictions,1 at the resentencing hearing the trial judge was unable to articulate additional reasons beyond those already found insufficient by the Louisiana Supreme Court to support a downward departure in this case.
The decision included a concurrence (.pdf), expressing concern about the long sentence:
The facts in this case are simple. The middle-aged defendant has no history of violence. He has an excellent work history and record of supporting his seven children. The trial judge reluctantly imposed the draconian (as it applies to this defendant and this offense) sentence mandated by the multiple offender statute. I point out (as did the trial judge at the resentencing hearing) that the per curiam issued in this case by the Louisiana Supreme Court implicitly ignored or overruled its own precedent in Dorthey, supra, thus leaving this court and the trial court without guidance as to what, if anything, remains of the discretionary authority of the trial and intermediate appellate courts to determine whether a sentence is constitutionally excessive as to a particular defendant or whether such judicial authority is now totally subsumed by the state’s discretionary authority to multiple bill a defendant.
This is not to say that I approve of the use or distribution of marijuana, but, like the majority notes, the crimes of which Mr. Noble has been convicted have been related to harm that he primarily and directly has caused to himself.
In my view, this is not the case that our courts should be using as the poster child for harsh sentencing.
Friday, February 14, 2014
Federal government issues new guidance to financial industry on how it should deal with the marijuana industry
The marijuana industry got a Valentine’s Day present from the federal government today. The Department of the Treasury Financial Crimes Enforcement Network (FinCEN) just issued guidance on how banks and other financial institutions should deal with the growing marijuana industry. This is a potentially important development, because on its face, federal law would seem to preclude marijuana growers / dealers from opening bank accounts, depositing cash, issuing checks, accepting credit card payments, etc.. The guidance, which can be found here, is obviously premised on the notion that marijuana growers can obtain financial services, notwithstanding federal regulations to the contrary.
I’m sure we’ll have more to say about this issue in the coming days, but here’s a taste of the guidance to whet your appetite:
In assessing the risk of providing services to a marijuana-related business, a financial institution should conduct customer due diligence that includes: (i) verifying with the appropriate state authorities whether the business is duly licensed and registered; (ii) reviewing the license application (and related documentation) submitted by the business for obtaining a state license to operate its marijuana-related business; (iii) requesting from state licensing and enforcement authorities available information about the business and related parties; (iv) developing an understanding of the normal and expected activity for the business, including the types ofproducts to be sold and the type of customers to be served (e.g., medical versus recreational customers); (v) ongoing monitoring of publicly available sources for adverse information about the business and related parties; (vi) ongoing monitoring for suspicious activity, including for any of the red flags described in this guidance; and (vii) refreshing information obtained as part of customer due diligence on a periodic basis and commensurate with the risk. With respect to information regarding state licensure obtained in connection with such customer due diligence, a financial institution may reasonably rely on the accuracy of information provided by state licensing authorities, where states make such information available.
As part of its customer due diligence, a financial institution should consider whether a marijuana-related business implicates one of the Cole Memo priorities or violates state law. This is a particularly important factor for a financial institution to consider when assessing the risk of providing financial services to a marijuana-related business. Considering this factor also enables the financial institution to provide information in BSA reports pertinent to law enforcement’s priorities. A financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) as described below.”
Thursday, February 13, 2014
Orrin Devinsky and Daniel Friedman, two physicians at the NYU Comprehensive Epilepsy Center, provide an informative and sober discussion of medical marijuana issues and research problems in this New York Times op-ed headlined "We Need Proof on Marijuana." Here are excerpts:
Many people have heard the story of Charlotte Figi, a young girl from Colorado with severe epilepsy. After her parents began giving her a marijuana strain rich in cannabidiol (CBD), the major nonpsychoactive ingredient in marijuana, Charlotte reportedly went from having hundreds of seizures per week to only two or three per month. Previously, her illness, Dravet Syndrome, was a daily torture despite multiple high doses of powerful anti-seizure drugs.
As news of Charlotte’s story moved from the Internet to a CNN story by Dr. Sanjay Gupta to Facebook pages, some families of children with similar disorders moved to Colorado, which recently legalized marijuana, to reap what they believe are the benefits of the drug.
Dozens of other anecdotes of miraculous responses to marijuana treatments in children with severe epilepsy are rife on Facebook and other social media, and these reports have aroused outsize hopes and urgent demands. Based on such reports, patients and parents are finding official and backdoor ways to give marijuana to their children.
But scientific studies have yet to bear out the hopes of these desperate families. The truth is we lack evidence not only for the efficacy of marijuana, but also for its safety. This concern is especially relevant in children, for whom there is good evidence that marijuana use can increase the risk of serious psychiatric disorders and long-term cognitive problems.
The recent wave of state legislatures considering and often approvingmedical marijuana raises significant concerns. By allowing marijuana therapy for patients with diseases such as difficult-to-control epilepsy, are state legislatures endorsing the medical benefits and safety of a broad range of marijuana species and strains before they have been carefully tested and vetted? Marijuana contains around 80 cannabinoids (THC is the major psychoactive cannabinoid, largely responsible for the high) and more than 400 other compounds. The chemical composition of two genetically identical plants can vary based on growing conditions, soil content, parasites and many other factors.
While the language of the legislation may be cautious, there is an implied endorsement of medical benefit for marijuana when a legislature passes a bill and a governor signs it into law, and the tremendous gaps in our knowledge are not effectively conveyed to the public....
Before more children are exposed to potential risks, before more desperate families uproot themselves and spend their life savings on unproven miracle marijuana cures, we need objective data from randomized placebo-controlled trials....
Paradoxically, however, as state governments increasingly make “medical” marijuana available to parents to give to their children, the federal government continues to label the nonpsychoactive CBD — as well as THC — as Schedule 1 drugs. Such drugs are said to have “no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.” This designation hamstrings doctors from performing controlled studies. While it is possible to study Schedule 1 drugs in a controlled laboratory setting, it is extremely difficult to study these substances in patients. For our study, we keep the CBD in a 1,200-pound safe in a locked room, in a building with an alarm system.
To foster research, we need to change compounds derived from marijuana from Schedule 1 to a less restrictive category. It is troubling that while few barriers exist for parents to give their children marijuana in Colorado, there are significant federal roadblocks preventing doctors from studying it in a rigorous scientific manner.
When patients have not been able to get successful medical treatment, and they live in a state where the law allows medical marijuana for children — we are not suggesting they smoke the drug — compassionate use is reasonable. But for the long-term health of Charlotte and other patients like her, we urgently need valid data.
Wednesday, February 12, 2014
The first states to legalize marijuana all did so via ballot initiative: California voters were the first to legalize medical marijuana (Proposition 215 in 1996), and Colorado and Washington voters share that distinction for recreational marijuana (Amendment 64 and I-502, both in 2012). Indeed, 8 out of the first 10 states to legalize medical marijuana did so via ballot initiative.
In these states, the ballot initiative may have been the only option for reformers. That’s because elected state officials have been leery of embracing the reform movement. But the politics of pot have arguably changed in the past decade. Very large majorities now favor legalizing marijuana for medical purposes, and a slim majority now favors legalizing the drug for recreational purposes as well. To be sure, there are still political risks involved in spearheading marijuana reforms, but it’s not a political third rail (assuming it ever was).
Growing popular support for marijuana reforms raises an interesting question about how states should pursue such reforms in the future. In particular, should they do so via ballot initiatives approved by the people, or via statutes approved by their elected representatives?
Here, I want to stake out a tentative case for pursuing reforms via statute rather than initiative. The post is inspired in part by a claim made by Colorado state leaders on Monday: they’re having more difficulty crafting sensible marijuana regulations than they would have had the state’s legislature (rather than its voters) legalized the drug.
There are a number of standard criticisms of the initiative process that should give state constituencies some pause: voters’ lack of information compared to (at least some) professional lawmakers; legal limitations on how initiatives may be drafted (single subject rules, etc.); and so on. But perhaps the most relevant problem—and the one that seemed to animate those Colorado officials—is the comparative difficulty of fixing “broken” initiatives.
This particular difficulty arises in two stages. The first is the lengthy period between certification (i.e., when proponents are allowed to gather signatures) and the election. To get an initiative on the ballot, proponents must first vet the proposal’s title, language, etc. with the state Secretary of State. This vetting process is primarily designed to clarify proposals, not to fix substantive problems with them. And once the language of an initiative has been certified under this process, it generally cannot be changed before the election. In Colorado, for example, it appears the language of Amendment 64 was settled on June 3, 2011 (the date it was submitted to the SOS), fully 17 months before voters actually approved the measure. It seems safe to assume that proponents and opponents alike might have sought changes, perhaps even major ones, had they been allowed to tinker with the proposal over that lengthy span. By contrast, statutes can be reworked up until the very moment legislators actually vote on them. To be sure, some states, including Colorado, give the state legislature the opportunity (two weeks) to comment upon proposals pre-certification; but such comments are advisory only (i.e., proponents can ignore it), and are received still months before the general election is held.
Difficulty also arises in a second, post-adoption stage. Once an initiative is approved by the voters, it is, generally speaking, much harder to change compared to an ordinary statute approved by the legislature, at least when the initiative is couched as a constitutional amendment (like Amendment 64). To change (or repeal) Amendment 64, for example, the Colorado General Assembly would need to pass a new constitutional amendment by a two-thirds majority and still refer the measure to the voters for approval. In the alternative, the state’s voters could pass another initiative, but getting the new initiative certified would take time, and proponents would have to wait at least 2 years to make the changes because initiatives may only be considered at a general election, which is held only every other year. (Other states impose even more onerous hurdles for revising / repealing initiatives post-adoption.)
California’s experience with Proposition 215 illustrates the dangers of reform via initiative. While Prop 215 gave state residents a right to grow, possess, and consume marijuana for medical purposes, it failed to specify how (if at all) such cultivation, possession, and consumption would (or could) be regulated. And since it was passed nearly 20 years ago, the state legislature has struggled mightily to impose meaningful regulations on the drug. Indeed, California now lacks state-wide controls commonly found in other medical marijuana states, including patient registration requirements. To be sure, the state’s failure to impose such controls stems from a number of factors, but the constitutionally privileged status of Proposition 215 is at least partly to blame. In People v. Kelly, for example, a state appellate court invalidated on its face a very modest quantity limitation (8 ounces per patient) imposed by a 2003 state statute, because the limitation burdened the constitutional right created by Proposition 215. While the California Supreme Court later reversed the remedy (facial invalidation), it left open the door for future as-applied challenges to the (already quite generous) legislative limits.
Of course, some of what I’m describing as “pitfalls” of initiatives might be viewed as advantages by certain reform proponents. After all, the stickiness of initiatives makes it tougher for state legislatures to block or undo reforms approved by the people. And there is an always an argument to be made that reforms adopted directly by the people are more democratically legitimate.
But it will be interesting to see if state legislatures try to forestall resort to ballot initiatives by passing statutory reforms first. Indeed, there are signs the tide may be turning. Of the last 11 states to legalize medical marijuana, for example, 7 did so via statute, one by executive order, but only 3 by initiative.
The title of this post is the headline of this interesting new report on the latest notable legal frontier concerning marijuana law and reforms. Here are the basics:
The publisher of marijuana magazine High Times has sued the state of Colorado in federal court over the state’s rules preventing recreational cannabis businesses from advertising in most publications. High Times, along with local weekly magazine Westword, filed the lawsuit on Monday. It marks the first time anyone has challenged the restrictions in court.
The rules allow recreational marijuana businesses to advertise only in publications that are adult-oriented. According to the state’s rules, recreational marijuana stores can advertise only in a publication that “has reliable evidence that no more than 30 percent of the publication’s readership is reasonably expected to be under the age of 21.” There is no such restriction on medical marijuana businesses.
The lawsuit argues the rules, which also restrict television, radio and outdoor advertising, are an unconstitutional restriction of free speech. The magazines are “chilled from soliciting advertisements from prospective clients and prevented from making revenue from clients who wish to engage in advertising concerning marijuana-related products and services,” the lawsuit’s complaint states....
It is also unclear how the suit’s filing in federal court will impact the judge’s assessment of its claim that the ads concern “lawful activity,” since marijuana is illegal federally. But publications have previously had success in federal court in overturning another Colorado marijuana law — one that required marijuana-themed publications to be kept behind the counter at stores.
Tuesday, February 11, 2014
Though I think we may be nearing the point of inevitability when it comes to marijuana legalization, we aren't there yet. There's a chance that as things move forward, we will see a backlash that reverses the current trend.
If I had to pick issues that could potentially cause such a backlash, the risks of marijuana candies would be near the top of the list. And for good reason. Marijuana candies pose serious policy concerns.
Products that are packaged like and taste like candy can be easily mistaken as regular candy. And we all know who loves candy--kids. Perhaps just as important, many marijuana candies contain so much marijuana that the suggested serving size may be 1/4 or 1/10 of the candy. This is particularly odd when one considers that some of these candies come in the form of a single gummy bear or bon-bon style sweet. When most people see a single gummy bear or bon bon, they assume they should eat the whole thing. But if you were to eat an entire marijuana gummy in one serving, you could end up high out of your mind.
Two new New York Times pieces discuss this problem. In one, a mother recounts how her son had to go to the emergency room after eating a roommate's marijuana candy bar. In the other, the writer begins: "This is not what I thought marijuana looked like."
Those of us who favor marijuana legalization would be wise to take these concerns very seriously. There are real public health and safety risks that come from people--particularly children-- accidentally ingesting super-strong marijuana candies (or ingesting on purpose, but without realizing that one gummy is meant to be consumed in four servings.)
In terms of the politics, I think the "this is not what I thought marijuana looked like" sentiment is particularly noteworthy. I suspect that many voters who supported legalization in Colorado and Washington had no idea that it might result in the sale of sophisticated candies (or even that such candies were even possible.) And if enough of the folks in this group don't like what they see when they learn about marijuana candy, it is entirely possible they might sour on legalization generally.
To be sure, I don't think we are anywhere near seeing a political backlash because of this issue. But marijuana advocates would be foolish to ignore the possibility of one developing.
February 11, 2014 in Current Affairs, Food and Drink, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
I've always thought one of the strangest things about the DEA's insistence that marijuana has no currently accepted medical use is that one of the claimed medical uses is as an appetite stimulant. When I cover CSA scheduling of marijuana in my Controlled Substances class, I sometimes joke about whether we really need scientific studies to know that marijuana can make people hungry.
The DEA's position, of course, is that there isn't enough evidence to say that marijuana can stimulate the appetites of cancer and AIDS patients. (The synthetic-THC drug Marinol, on the other hand, has been officially determined to make people hungry.)
Though I don't think it will be enough to satisfy the DEA, today brings some new scientific evidence of (and explanation for) marijuana's effect as an appetite stimulant. The blog Toke of the Town reports:
In a new study published this week in Nature Neuroscience, European researchers claim to have proven that smoking weed does, in fact, give you the munchies. Beyond that, they appear to have isolated the specific region of the brain that is affected by THC consumption, and identified the process through which that desire to eat an entire box of Lucky Charms at 2am comes from.
Monday, February 10, 2014
Taking up Mark Kleiman's argument that marijuana rescheduling would be meaningless, Jacob Sullum has this excellent piece on Forbes.com, in which he notes:
From the perspective of people who believe marijuana should be legalized for medical or general use, the advantages of [rescheduling] are not as substantial as you might think. But neither are they, as UCLA drug policy expert Mark Kleiman claims, “identically zero.” Moving marijuana to a less restrictive legal category would have some significant practical effects, perhaps the most important of which would be to advance a more honest discussion of marijuana’s hazards and benefits.
The whole thing is well worth reading.
With so many medical marijuana state laws and a wave of new proposals, it can be difficult to follow them all. Luckily, last week saw the release of two guides to help you keep track.
The Marijuana Policy Project has released an update to its state-by-state guide to marijuana laws.
And, for the reforms on the horizon, John Ross of Reason.com has posted "a 50-state guide to legislation and ballot measures that are in the works thus far this year."
Sunday, February 9, 2014
The title of this post is the headline of this effective new Huffington Post commentary by former congressional tax staffer Pat Oglesby. Here are excerpts:
With marijuana legalization gaining steam, we might ask not just whether to legalize, but how. Here are three tax mistakes that California and other states can still avoid.
Mistake 1. Collecting late....
Mistake 2. Taxing manipulable price....
Mistake 3. Tying lawmakers' hands....
What about this year's crop of marijuana revenue proposals? Some ace the test, avoiding late retail collections, price manipulation, and rigidity. Bills in Maine, Maryland, New York, and Rhode Island — and an initiative in Alaska — tax at the wholesale level by weight, and don't tie lawmakers' hands. That's 3 for 3 right. But the most prominent California initiative, The Control, Regulate and Tax Marijuana Act, would tax only at retail by percentage of price, and would freeze taxes through 2022. That gets everything wrong: 0 for 3.
We are just figuring out how to legalize marijuana. Some legalization plans will work, but some won't. We can follow, adapt, or learn from models for tobacco and alcohol — which we've been forming and reforming since Colonial times. That way, we can at least avoid making the same old mistakes over and over. We'll be making plenty of new ones.
This new AP article, headlined "Medical marijuana gets traction in the Deep South," highlights that marijuana reform discussions are not confined only to northern and western regions of the United States. Here is how the piece starts:
Medical marijuana has been a non-starter in recent years in the Deep South, where many Republican lawmakers feared it could lead to widespread drug use and social ills. That now appears to be changing, with proposals to allow a form of medical marijuana gaining momentum in a handful of Southern states.
Twenty states and the District of Columbia have legalized medical marijuana, and this year powerful GOP lawmakers in Georgia and Alabama are putting their weight behind bills that would allow for the limited use of cannabis oil by those with specific medical conditions. Other Southern states are also weighing the issue with varying levels of support.
The key to swaying the hearts of conservative lawmakers has been the stories of children suffering up to 100 seizures a day whose parents say they could benefit from access to cannabidiol, which would be administered orally in a liquid form. And proponents argue the cannabis oil is low in tetrahydrocannabinol, or THC, the psychoactive compound in marijuana that makes users feel high.
"I'm an unlikely champion for this cause," said Georgia Rep. Allen Peake, a businessman from Macon who attended the evangelical Dallas Theological Seminary. "Once people realize it's not a 6-year-old smoking a joint, most folks realize this is the compassionate thing to do."
Peake's bill has already earned the backing of more than 80 state lawmakers, including several members of the House Republican leadership, who signed on as co-sponsors and the state's largest professional association of doctors. The bill would revive a long-dormant research program allowing academic institutions to distribute the medical cannabis and would be "limited in scope, tightly restricted, well regulated and managed by doctors," Peake said.
Alabama Rep. Mike Ball, a retired hostage negotiator for the State Patrol, is behind a bill that would allow people to possess the cannabis oil if they have certain medical conditions. It passed a key committee vote on Wednesday. "The public is starting to understand what this is," said Ball, who chairs a powerful House committee and is a prominent voice on law enforcement issues. "The political fear is shifting from what will happen if we pass it, to might what happen if we don't," Ball said.
The bills in Georgia and Alabama still have more vetting, and their ultimate prospects are not certain. But what is happening offers a strong signal of what's to come in other states.
In Louisiana, although a bill has yet to be introduced, a recent committee hearing at the Capitol on legalizing medical marijuana drew a standing-room-only crowd, and Gov. Bobby Jindal made comments last month indicating he was willing to consider it. "When it comes to medical marijuana ... if there is a legitimate medical need, I'd certainly be open to making it available under very strict supervision for patients that would benefit from that," Jindal said, according to a report in The Advocate.
Technically, both Georgia and Louisiana have laws on the books from the 1980s and 1990s that allow for the use of medical marijuana, but those programs essentially ended before they could start. Georgia's law established the academic research program for those diagnosed with glaucoma and cancer patients undergoing chemotherapy and radiation, but the program stalled when the federal government stopped delivery of legal cannabis. Louisiana's law allowed for glaucoma and cancer patients and those suffering from spastic quadriplegia to receive marijuana for therapeutic use but regulations to govern the program were never developed.
In Mississippi, Republican state Sen. Josh Harkins of Brandon is sponsoring a cannabis oil bill similar to the ones in Alabama and Georgia. Harkins said one of his constituents has a 20-month-old daughter with Dravet syndrome, a form of pediatric epilepsy, and the oil can help reduce the number of seizures.
Elsewhere, both Kentucky and Tennessee have medical marijuana bills under consideration although they have yet to gain traction. Kentucky Senate President Rover Stivers, R-Manchester, has said he's not convinced marijuana has legitimate medical purposes and called it an area ripe for abuse.
In Florida, it's likely to become a campaign issue in the fall given that Gov. Rick Scott is up for re-election and a proposed constitutional amendment will be on the ballot that would allow for the medical use of marijuana as determined by a licensed physician. Former Republican Gov. Charlie Christ, now a Democrat seeking to challenge Scott, has called it "an issue of compassion, trusting doctors and trusting the people of Florida."
Friday, February 7, 2014
On Monday, I’ll have the honor of co-moderating (with Sam Kamin and Alex Kreit) a discussion of Colorado’s marijuana legalization program. The event is being held at the University of Denver Sturm College of Law and will run from 4:30-6:30 pm mountain time. Sam has invited several key state decision makers to serve as discussants, including: Barbara Brohl (co-chair of the Amendment 64 Implementation Task Force and head of Colorado’s Department of Revenue, which includes the state’s marijuana enforcement division); Jack Finlaw (counsel to Colorado Governor John Hickenlooper); Ron Kammerzell (also of the Department of Revenue); and Dan Pabon (one of Denver’s Representatives in the Colorado General Assembly).
There will be a live stream broadcast of the event, which you can access here. I hope you’ll join us. I expect to learn a great deal; alongside their counterparts in Washington state, these Colorado officials might know more about implementing marijuana legalization than anyone else in the world.
Pittsburgh Steeler Ryan Clark talked in some detail yesterday about marijuana use in the NFL on ESPN's First Take. First Take's hosts are (in my opinion) among the most annoying on ESPN and this segment is a good example of their grating personalities. But Clark's comments are well worth checking out.
In particular, he emphasizes that many players use marijuana as an alternative to more addictive and harmful pain medications. I think that this is a very powerful concept--both as a matter of politics and policy--that has not made its way into the public consciousness the way marijuana use by cancer patients has, for example.
Most people immediately grasp the dangers that conventional pain medications carry. And, because pain is largely in the eye of the person suffering from it (testing for pain is not like taking a person's temperature or giving them an x-ray), I think it is very difficult to discount self-reports from people who say it helps them. The more that athletes speak out about this, I think the more average folks will accept (with good reason in my view) that marijuana can be used to treat pain and that it might be a better option than other medications.
Here's Clark on the subject:
Clark, a 12-year veteran, discussed the topic of marijuana use and the league's testing system Thursday morning on ESPN's "First Take."
"I know guys on my team who smoke," Clark said. "And it's not a situation where you think, 'Oh, these are guys trying to be cool.' These are guys who want to do it recreationally.
"A lot of it is stress relief. A lot of it is pain and medication. Guys feel like, 'If I can do this, it keeps me away from maybe Vicodin, it keeps me away from pain prescription drugs and things that guys get addicted to.' Guys look at this as a more natural way to heal themselves, to stress relieve and also to medicate themselves for pain. Guys are still going to do it."
Thursday, February 6, 2014
Alex raises some great questions about how the DEA evaluates the costs of drugs, and in particular, how it defines “potential for abuse” when scheduling drugs like marijuana. But I think there’s a potentially deeper problem with the Controlled Substances Act scheduling criteria, at least as I understand them: while the statute considers a drug’s medical value, it gives no weight whatsoever to a drug’s recreational value. For example, the key difference between Schedule I and Schedules II-V is that a drug on Schedules II-V has a “currently accepted medical use in treatment in the United States” and a drug on Schedule I does not.
Should the CSA consider the recreational value of a drug? I recognize this question raises deeply philosophical questions that are tough to resolve. And I recognize that considering “recreational value” would pose practical difficulties as well, such as figuring out how to assess the value of fun (we have a comparably easy time assigning dollar figures to things like curing diseases). But it still strikes me as odd that the CSA privileges medical utility to the exclusion of all other types of utility.
It’s possible the CSA criteria work well enough for most drugs. After all, there are thousands of scheduled substances, and I would guess that the vast majority (nearly all?) of them were designed for use in some sort of medical treatment. For these drugs, the focus on medical value (and exclusion on all other types of value) makes perfect sense.
But this focus doesn’t make sense for every drug. Consider alcohol. If alcohol were subject to the scheduling process, it would probably land on Schedule I (where marijuana is now) or at the very least Schedule II. After all, it has a very high potential for abuse, as anyone would define that term, and it arguably has no accepted medical use in the United States. But the CSA exempts alcohol from the list of controlled substances, because 21 U.S.C. section 802(6) expressly excludes “distilled spirits, wine, malt beverages, or tobacco” from the definition of “controlled substance.” If the CSA doesn’t make sense for alcohol (or tobacco), does it make sense for marijuana?
To the extent states like Colorado and Washington want to treat marijuana like alcohol – i.e., as a recreational substance, not (just) a medicine, subjecting marijuana to the CSA’s scheduling process – and the regulations that flow from it – poses a problem. Namely, as I pointed out in an earlier post, even if the DEA were to reschedule marijuana, it would still be subject to federal regulations that are more befitting of medicines than of recreational drugs like alcohol (e.g, one would need a prescription to buy / sell the drug). The pharmacy is probably not the right place to buy alcohol (or tobacco, per CVS’s decision) – so why make it the place where people buy marijuana?