Thursday, July 30, 2015
This new article, headlined "Indian tribes set to begin marijuana sales," reports on the plans and expectations of the first Native American tribe entering the marijuana industry. Here are the details:
Tourists soon may be able to go to a South Dakota Indian reservation, buy a cigarette-sized marijuana joint for $10 to $15 and try their luck at the nearby casino. In December, the Flandreau Santee Sioux expect to become the first tribe in the nation to grow and sell pot for recreational use, cashing in on the Obama administration’s offer to let all 566 federally recognized tribes enter the marijuana industry.
“The fact that we are first doesn’t scare us,” said tribal president Anthony “Tony” Reider, 38, who’s led the tribe for nearly five years. “The Department of Justice gave us the go-ahead, similar to what they did with the states, so we’re comfortable going with it.” The tribe plans to sell 60 strains of marijuana. Reider is hoping for a flock of visitors, predicting that sales could bring in as much as $2 million per month....
Other tribes have been much more hesitant. “Look at Washington state, where marijuana’s completely legal as a matter of state law everywhere, and you still have tribes adhering to their prohibition policies,” said Robert Odawi Porter, former president of the Seneca Nation of New York.
It comes as no surprise to Washington state Democratic Rep. Denny Heck, who says he works on tribal issues every day. “Not once has anybody ever brought up that they wanted to go down this track,” he said. Heck speculated on one possible reason: “We’re all aware of the painful history of alcoholism in Indian Country.”
Tribes won the approval to sell pot in December, when the Justice Department said it would advise U.S. attorneys not to prosecute if tribes do a good job policing themselves and make sure that marijuana doesn’t leave tribal lands. But federal prosecutors maintain the discretion to intervene, a worrisome prospect for many. “This administration is very pro-tribes, very supportive. What if the next one isn’t?” asked W. Ron Allen, chairman of the Jamestown S’Klallam Tribe in Washington state.
He said many of the state’s 29 tribes also want assurances from federal officials that they won’t lose millions of dollars in grants and contracts if they sell a drug banned by Congress. “We’re not getting definitive answers back,” Allen said. “There’s a number of tribes that are very aggressively looking into it and trying to sort through all the legal issues. The rest of us are just kind of on the sidelines watching.”
Many tribal officials took note earlier this month when federal authorities seized 12,000 marijuana plants and more than 100 pounds of processed marijuana on tribal land in Modoc County, Calif. Federal authorities said they raided the operation because the tribes planned to sell the pot on non-reservation land. “That’s a warning shot to Indian County that this isn’t carte blanche to do whatever you want, even in a place like California,” said Blake Trueblood, director of business development for the National Center for American Indian Enterprise Development, based in Arizona.
Trueblood said marijuana could give tribes an economic boost, much like gaming. He said tribes will have the best opportunities in states such as Florida and New York, where demand for pot is high but the drug has not been legalized for recreational use by state voters. “Ultimately, I think you’ll see legal marijuana in every state,” Trueblood said. “I think that’s fairly inevitable, even in very conservative places like Florida.”
Reider said his tribe plans to sell both medical and recreational marijuana. Minors will be allowed to consume pot if they have a recommendation from a doctor. Under a tribal ordinance passed in June, adults 21 and over will be able to buy one gram of marijuana at a time for recreational use, no more than twice a day. “We really don’t want the stuff getting out to the street,” Reider said. “So we’re going to have like a bar setting where they’ll be able to consume small amounts while on the property.”
Kevin Sabet, president of the anti-legalization group Smart Approaches to Marijuana, said the California raid shows that it’s still “an extremely risky venture” for any tribe to start selling marijuana. And he said pot sales would fuel more addiction. “If we think alcohol has had a negative effect on young people on tribal lands, we ain’t seen nothing yet,” Sabet said.
As part of his homework, Reider said, he traveled to Colorado, the first state to sell recreational pot last year. He said he does not smoke marijuana but has concluded that it’s safer than alcohol, citing the behavior he witnessed at the Cannabis Cup, a marijuana celebration held in Denver in April. “It was a peaceful environment,” he said. “Everybody was overly friendly, overly talkative to each other and respectful of each other. Where if you go to a concert where there’s a lot of alcohol, you typically see fights and arguments.”
Reider said the tribe plans to begin growing 6,000 marijuana plants in October and is renovating a bowling alley to house a new consumption lounge that will include four private rooms. He said the tribe may consider allowing marijuana consumption in its casino in the future. Reider acknowledged that it’s “kind of an awkward feeling” to start selling pot, but he figures the tribe is well-equipped.
“When we started looking into it, it’s comical at first, but then you realize it’s an amazing business,” he said. “It’s highly regulated, and we’re used to the regulation from operating our casino. We’ve got security and surveillance.” Reider said profits from pot sales will be used to help tribal members. He said that could include the construction of a facility for those addicted to alcohol, prescription drugs or methamphetamine.
Friday, July 3, 2015
The title of this post is the headline of this notable new NPR Morning Edition segment. Here is the piece's textual teaser:
The business of selling marijuana legally — for medical and recreational purposes — is expanding. But so are concerns that African-Americans are being shut out of this new industry.
Friday, June 19, 2015
The title of this post is the headline of this new Forbes column by Jacob Sullum. This piece reinforces my belief that family law and family lawyers need to be paying considerable attention to marijuana reform developments and realities. Here is an excerpt:
In Live Free or Die, a 2010 memoir recounting how cannabis oil saved her life, Shona Banda emphasizes the importance of “self-taught knowledge,” acquired by constantly asking questions and “looking at all of the angles of any information given.” Her son may have learned that lesson too well. Had he been less inquisitive, less prone to question authority, he might still be living with his mother, and she might not be facing criminal charges that could send her to prison for decades.
Banda, a 38-year-old massage therapist who appeared in criminal court for the first time on Tuesday, is free on a $50,000 bond while her case is pending. She was able to pay a bail bondsman the $5,000 fee necessary to stay out of jail thanks to donations from supporters across the country who were outraged by her situation. The case has drawn international attention partly because it features draconian penalties and a mother’s forcible separation from her 11-year-old son but also because of the way it started.
During a “drug education” program at his school in Garden City, Kansas, on March 24, Banda’s son heard some things about marijuana that did not jibe with what he had learned about the plant from his mother. So he spoke up, suggesting that cannabis was less dangerous and more beneficial than the counselors running the program were claiming. That outburst of skepticism precipitated a visit to the principal’s office, where the fifth-grader was interrogated about his mother’s cannabis consumption. School officials called Child Protective Services (CPS), which contacted police, who obtained a warrant to search Banda’s house based on what her son had said.
As translated by the Garden City Police Department, Banda’s son “reported to school officials that his mother and other adults in his residence were avid drug users and that there was a lot of drug use occurring in his residence.” From Banda’s perspective, what her son had observed was her consumption of a medicine that had “fixed” her Crohn’s disease, alleviated her pain, and restored her energy. “I had an autoimmune disease,” she says in a 2010 YouTube video during which she displays the scars left by multiple surgeries aimed at relieving her crippling gastrointestinal symptoms. “With Crohn’s disease, it’s like having a stomach flu that won’t go away.” But after she started swallowing capsules containing homemade cannabis oil, she says, her life was transformed. “I’m working for the first time in four years,” she says. “I’m hiking. I’m swimming. I’m able to play with my kids [two sons, one of whom is now 18]….Anything beats raising your kids from a couch and lying there in pain all day.” Banda’s personal experience aside, there is scientific evidence that cannabis is an effective treatment for the symptoms of Crohn’s disease.
As far as the police were concerned, none of that was relevant, since Kansas is not one of the 23 states that allow medical use of cannabis. In the cops’ view, what they found at Banda’s house — “approximately 1 ¼ pounds of suspected marijuana” — was contraband, not medicine. And when CPS caseworkers took Banda’s son away from her, they were protecting him, not kidnapping him. “The most important thing here is the child’s well-being,” Capt. Randy Ralston told the Associated Press. “That is why it is a priority for us, just because of the danger to the child.”
The precise nature of that danger remains mysterious. Ralston says “the items taken from the residence” — the marijuana, plus “a lab for manufacturing cannabis oil on the kitchen table and kitchen counters, drug paraphernalia and other items related to the packaging and ingestion of marijuana” — were “within easy reach of the child.” But police came to Banda’s house in the middle of the afternoon, so that detail is less alarming than it sounds. “She was producing oil during the day, while her son was in school,” says Sarah Swain, Banda’s criminal defense attorney.
So far Banda has been unsuccessful at regaining custody of her son, who is living for the time being with her husband, from whom she is separated. “He is in state custody and has been since the beginning of the case,” Swain says. “He is placed [temporarily] with the father.” A family court judge ultimately will decide whether it is in the boy’s best interest to be reunited with his mother.
But as Swain notes, that process will be “moot” if “Shona goes to prison.” The charges against her, which Finney County Attorney Susan Richmeier announced on June 5, include two misdemeanors—endangering a child and possession of drug paraphernalia—and three felonies: unlawful manufacture of a controlled substance, possession of equipment used to manufacture a controlled substance, and distribution or possession with intent to distribute a controlled substance within 1,000 feet of school property. The distribution charge, a “drug severity level 1 felony,” carries the longest maximum sentence: 17 years. Swain says Kansas law allows sentences for different offenses to be imposed consecutively as long as the total term does not exceed twice the longest maximum, which means Banda could be sent to prison for as long as 34 years. Richmeier, apparently based on the assumption that any sentences would be served concurrently, says the maximum term Banda faces is 17 years.
It seems unlikely that Banda, who has no criminal record, would receive a sentence as long as 34 or even 17 years. But a substantial prison sentence is a real possibility given the charges she faces. “When your cure is illegal,” says a caption at the beginning of Banda’s 2010 video, “you are forced to make the choice to live free or die.” If Richmeier has her way, living free will no longer be an option for Banda.
June 19, 2015 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Sunday, June 14, 2015
The title of this post is the headline of this notable new Newsweek article. Here are excerpts:
In New York City, misdemeanor marijuana possession arrests were dramatically lower between January and March 2015 than in the same period of 2014—2,960 compared to 7,110, respectively—but stark racial disparities persist among those arrested, new data obtained by Newsweek indicate.
During the first quarter of 2015, African-Americans were arrested for misdemeanor marijuana possession 1,494 times: That’s 50.47 percent of the total. Hispanics were arrested 1,130 times, or 38.18 percent, and together these two groups accounted for 88.65 percent of the total. Meanwhile, whites totaled 228 of these arrests (7.70 percent) and 79 (2.67 percent) of the arrestees listed as Asian/Indian, according to the state’s Division of Criminal Justice Services.
In terms of the racial breakdown, this isn’t all that different from the first quarter of 2014. Of those 7,110 misdemeanor marijuana arrests, 3,370 (47.4 percent) were African-American and 2,791 (39.25 percent) were Hispanic. So, these two group comprised 86.65 percent of misdemeanor marijuana arrests early in 2014, suggesting the racial disparity in these arrests has grown slightly this year. Whites were arrested 650 times (9.14 percent) and Asian/Indian were arrested 236 times (3.32 percent) during this period. (Some arrestees did not list race-ethnicity data.)
The year-over-year decrease in arrests follows the announcement in November by Mayor Bill de Blasio and Commissioner William Bratton that they would issue summonses for small amounts of marijuana rather than collar them. The rule applies to those caught with 25 grams or less of pot, “so long as there is no warrant for the individual’s arrest and the person has identification.” Police can arrest those in possession of 25 grams or less “if the marijuana is burning, if the type of possession indicates intent to sell, if the individual has an outstanding warrant, or if the individual is in a location with special consideration, like a school.”...
New York Police Department officers made 26,385 misdemeanor marijuana possession arrests in 2014. That was down from 28,954 in 2013. Both years, African-Americans and Hispanics comprised some 86 percent of these arrests. Asked about the numbers, a department official responds that these statistics do not reflect racially motivated policing, but result from data driven crime enforcement.
“The NYPD endeavors to assign its resources based, in considerable part, on an analysis of various conditions in different areas of the city. Among these conditions include level of crime, both major crime and lesser offenses. Another significant consideration relates to the nature and number of local citizen and community complaints in the various neighborhoods. This includes calls to 911, calls to 311 and complaints voiced by members of local precinct community groups,” the official says.
“Analysis has clearly shown that a significantly higher level of these conditions and complaints exist in those areas of New York City where there is also a high minority population. Based on these crime-related conditions, as well as complaints, the NYPD attempts to assign its resources to appropriately address these demands. A higher level of police presence in any particular area in which there is a greater level of offenses, in public, will often result in more enforcement activity.”
Tuesday, May 26, 2015
Regular readers likely already know that I find extra interesting and important the intersection of marijuana reform and civil rights and social justice issues. Consequently, I have been especially pleased to see that that NBC has been running a number of article under the banner "Black & Green, A Series About African Americans & the Marijuana Industry." This piece, headlined "Post-Legalization Many African Americans 'Just Say No' To Marijuana Industry," is the latest in the series, and it gets started this way:
It's not surprising that many African Americans are leery about cashing in on the legal cannabis industry. Numerous reports show that the black community continues to pay a high price for it in the criminal justice system even where marijuana is legal.
A 2013 ACLU report noted that on average, a black person is 3.73 times more likely to be arrested for marijuana possession than a white person," even though blacks and whites use marijuana at similar rates." Such racial disparities in marijuana possession arrests exist in all regions of the country, in counties large and small, urban and rural, wealthy and poor, and with large and small black populations, concluded the report, touted as the first to examine marijuana possession arrest rates by race for all 50 states (and the District of Columbia) and their respective counties from 2001 to 2010.
"There's more of a negative stigma surrounding this industry — the [cannabis] culture and religion [in the black community] plays a heavy factor," says Lakisha Jenkins, president of the California Cannabis Industry Association, which has been a part of the National Cannabis Industry Association (NCIA) since 2013. The Washington D.C.-based non-profit organization billed as the largest cannabis trade association in the U.S., has formed a committee focused on figuring out ways to draw more people of color to the industry. "Since we're the ones who've been incarcerated [the most for marijuana possession and use] it makes it rather difficult [for some people of color] to see it as a positive and viable industry," says Jenkins, a committee member.
Here are the other notable piece in the series so far:
Wednesday, May 20, 2015
The title of this post is the headline of this notable recent article via Philly.com. Here are excerpts:
There is a robust, national conversation about police and justice reform. And by decriminalizing marijuana, Philadelphia is getting a glimpse of what that entails.
Last October, Philly became America's largest city to make marijuana possession a civil, rather than a criminal, violation. The result has been a dramatic reduction in arrests.... They are down more than 70 percent.
For decades, Philly police put anyone caught with anything from a roach up to 30 grams into handcuffs and a holding cell. The city’s new decrim policy gives officers the option of issuing a Code Violation Notice: $25 for possession and $100 for smoking in public. The result has meant fewer interactions between cannabis consumers and police.
It’s also saving tens of thousands of hours of police time -- and a big chunk of tax dollars. The RAND Corporation this year released a that calculated a single custodial arrest costs $1,266. Using the RAND numbers, Philly may have already saved more than $1 million under the new policy from January to March this year compared to 2013. RAND estimated that the cost of issuing citations is a mere $20....
The shift in policy has allowed police to spend more time on other crimes. Cocaine and heroin possession arrests are combined in the same code in the Pennsylvania Uniform Crime Reporting System [and] while marijuana arrests have decreased there has been an uptick in arrests for harder drugs....
One of the most compelling reasons that City Council took on pot decriminalization was the disturbing racial disparity specifically in marijuana arrests. Unfortunately, that has not changed ... [as] Black residents are still 7 times more likely to be arrested for weed than white residents.
Some are quick to say that this disparity exists because police are heavily patrolling in neighborhoods of color. But that would mean other arrests, especially for other drugs, would have the same disparity. But that is not the case [as data shows] more white people got arrested for cocaine and heroin in Philly so far this year.
[T]there is no statistical or procedural reason that can explain the continued brunt of marijuana enforcement on black residents. It highlights part of a bigger problem with urban policing, one that will take more than legalizing marijuana to solve.
Monday, May 11, 2015
This important Chicago Reader article by Mick Dumke spotlights issues at the intersection of marijuana reform and racial/social justice that I have been thinking about a lot lately. The piece is headlined "Will marijuana decriminalization end the racial grass gap?: As the politics of pot shift, questions of justice remain," and merits a full read for anyone interested in these issues. Here are excerpts:
Many cannabis enthusiasts saw it as another reason to light up: in a span of three days, the Cook County state's attorney and the Illinois house both took steps to reduce penalties for marijuana possession.
But in some parts of Chicago, people were still getting busted for pot. Police made at least 212 arrests for misdemeanor possession that week, a rate of 30 per day, according to Chicago police data. More than 90 percent were in predominantly black neighborhoods.
Amid a national debate on race and the criminal justice system, the politics of pot are clearly blowing in a new direction. Simply put, it's no longer wise for an elected official to call for cracking down on low-level drug offenses. But the shift has also created a jumble of laws and policies that continue to send some people to jail for the same behavior that's overlooked, laughed off, or even celebrated for others.
It's the latest incarnation of what the Reader calls the grass gap: while people smoke marijuana all over Chicago — and Illinois, and beyond — almost everyone busted for it is black.
Ending this racial imbalance has become a top goal of elected officials and policymakers who see it as emblematic of the failed war on drugs. "Anything that takes a meaningful step toward not trapping black and brown men like myself in a cycle of poverty and prison, I'm behind," says state representative Christian Mitchell, a chief sponsor of the house bill to loosen pot penalties.
So far, though, the gap has remained stubbornly in place. In 2011 my colleague Ben Joravsky and I reported that African-Americans accounted for 78 percent of those arrested, 89 percent of those convicted, and 92 percent of those jailed for misdemeanor marijuana possession in Chicago, leaving thousands with criminal records for doing something that routinely went unpunished in other parts of the city.
Citing those findings, the Chicago City Council passed an ordinance in 2012 to go easier on some pot possessors. Under the new rules, police officers were allowed to issue tickets to those caught with up to 15 grams (about half an ounce) instead of hauling them to the station to be booked and locked up.
The measure succeeded in reducing busts. In 2010, police made more than 22,000 arrests for misdemeanor possession. Last year the total fell to about 12,800, the lowest in two decades, according to police data. Yet the grass gap hardly budged. In 2014, 76 percent of those arrested for low-level pot possession were black, 19 percent were Hispanic, and 5 percent were white — almost exactly the same breakdown as before the new rules were enacted.
Disparities existed almost everywhere in the city, even in areas with relatively small black populations. African-Americans accounted for a majority of pot possession arrests in all but 97 of the city's 268 police beats. In contrast, though more whites live in Chicago, they made up the majority of arrests in only 13 beats — and in ten of those, fewer than ten people were arrested.
Marty Maloney, a spokesman for the Chicago Police Department, points to the drop in total arrests as a sign of the department's commitment to making enforcement "even more effective and fair." "The City's cannabis ticketing initiative has already kept thousands out of jail," he wrote in an e-mail. Unfortunately, thousands are still going there.
After being arrested, offenders are held in police lockup for hours. Many are then transferred to the county jail before they're given a court date and released. Most misdemeanor marijuana cases are eventually thrown out of court at the discretion of prosecutors and judges. Those that move forward usually involve repeat offenders, but not always. People who've spent a day or two behind bars often plead guilty in return for a sentence of the time they've already served.
All told, 1,263 misdemeanor marijuana cases resulted in jail time last year in Cook County, according to data from the circuit court clerk's office. In almost all of these cases — 84 percent — the defendants were African-American.
In short, while pot has essentially been decriminalized for some people, it still lands others behind bars. And in addition to being unfair, the system is expensive. These misdemeanor pot cases cost county taxpayers approximately $38 million in court and jail expenses in 2014....
Cops say the grass gap is the result of aggressive patrols in high-crime neighborhoods. Officers charged with reducing violence pull people aside for interviews — Chicago's version of stop and frisk. While arrests consume two to four hours of an officer's time, police say they can also be useful in leveraging drug sellers and gang members for information, or simply getting them off the street for awhile.
When low-level possession is decriminalized, police will probably issue more tickets — but even then African-Americans will bear the brunt of enforcement. That's what's happened in Chicago. As marijuana arrests fell, the number of cannabis citations shot up from 1,074 in 2013 to 4,032 in 2014, police data show. And the vast majority — 78 percent — were issued to African-Americans. Just 16 percent went to Hispanics and 5 percent to whites.
When possible, cops will arrest offenders on different charges — such as possessing more than 15 grams, or possessing with the intent to deliver, the formal charge for dealing. Police, prosecutors, and politicians acknowledge that decriminalization won't address the economic roots of the grass gap either. Many of those prosecuted in the last couple years are repeat offenders who appear to have been selling to make money, according to police reports and court records.
A few prior posts on racial justice and marijuana reform:
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- Is pot already really legal for middle-aged white folks?
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
- Race, marijuana enforcement and legalization
- Racial Disparities in Marijuana Enforcement
- NAACP advocating for full legalization of marijuana ASAP in Nevada
- "Are cities being racially discriminatory in banning legal marijuana?"
- Considering marijuana prohibition and reform through the lens of minority communities
Wednesday, April 8, 2015
As mentioned in prior posts here and here, students in my marijuana law school seminar spend the last few weeks of class presenting readings and leading discussions concerning the research topic(s) that are the focal point for their class project(s). This week, one group presentation will be focused on the impact of marijuana prohibition and of marijuana reform in minority communities, and students have highlighted these research findings and stories:
- Marijuana Business Daily article, Minorities Avoid Cannabis Industry as History of Arrests, Incarceration Drive Fears
Tuesday, March 17, 2015
As detailed in this new NPR story, headlined "Obama, 2016 Contenders Deal With Changing Attitudes On Marijuana," President Obama had occasion to talk about marijuana reform again in a new interview with Vice News. Here are the basics:
The divide between Republicans and Democrats on pot politics is narrowing, President Barack Obama said in an interview Monday. "What I'm encouraged by is you're starting to see not just liberal Democrats but also some very conservative Republicans recognize this doesn't make sense including sort-of the libertarian wing of the Republican Party," the president said in an interview with Vice News.
During the wide-ranging interview, Obama noted that the American criminal justice system is "so heavily skewed toward cracking down on nonviolent drug offenders" and has has had a disproportionate impact on communities of color, as well as taking a huge financial toll on states. But, Obama added, Republicans are beginning to see that cost.
"So we may be able to make some progress on the decriminalization side," Obama said. "At a certain point if enough states end up decriminalizing, then Congress may then reschedule marijuana."
Reclassifying marijuana as what's called a Schedule 2 drug, rather than a Schedule 1 drug is part of a bill being pushed by Kentucky Sen. Rand Paul, a Republican weighing a potential White House bid, as well as Democrats Cory Booker of New Jersey and Kirsten Gillibrand of New York.
The unlikely trio of lawmakers unveiled their bill, which would also remove federal prohibitions on medical marijuana in the more than a quarter of states where it's already legal, last week. "We, as a society, are changing our opinions on restricting people's choices as far as medical treatments," Paul, who has been a vocal critic of the so-called war on drugs, said last week. "There is every reason to try and give more ease to people in the states who want this — more freedom for states and individuals," Paul added.
Paul's emphasis on states' rights is in line with the Republican belief that the federal government should keep its hands out of local affairs. But this is also a political sweet spot as a majority of Americans back more liberal marijuana laws....
"Members of Congress tend to be between five to 10 years behind the public on this issue," Dan Riffle, the director of federal policies for the Marijuana Policy Project, said in an interview. "Medical marijuana is more popular in this country than baseball and apple pie, and it's certainly more popular than Congress. What this bill means, and what it shows, is Congress is finally catching up to the public on this issue and recognizes that this is a slam dunk."
Friday, February 20, 2015
Despite a New Year's resolution to resume regular posts to this blog, I have somehow managed not to write a single one until now. Hopefully I'll be able to pick things back up with regular contributions.
I'll start with this quick link to a guest blog post I wrote for the American Constitution Society's two-week blog symposium on racial inequalities in the criminal justice system. My post looks at some of the causes of the racial disparity in marijuana arrests and why the problem is so hard to correct. Here's how my post begins:
In their influential 1970 study of marijuana prohibition in the United States, Richard J. Bonnie and Charles H. Whitebread found that “racial prejudice” was the “most prominent” factor in the passage of early marijuana prohibition laws. When states began passing these laws in the first few decades of the 1900s, it was not uncommon to see legislatures expressly link marijuana prohibition with race.
Reporting on a1929 hearing on a marijuana prohibition bill in Montana, for example, the Montana Standard told readers:
“There was fun in the House Committee during the week when the Marihuana bill came up for consideration. Marihuana is Mexican opium, a plant used by Mexicans and cultivated by Indians. ‘When some beet field peon takes a few rares of this stuff,’ explained Dr. Fred Fulsher of Mineral County, ‘He thinks he has just been elected president of Mexico so he starts out to execute all his political enemies. I understand that over in Butte where the Mexicans often go for the winter they stage imaginary bullfights in the ‘Bower of Roses’ or put on tournaments for the favor of ‘Spanish Rose’ after a couple of whiffs of Marihuana.’ Everybody laughed and the bill was recommended for passage.”
It is rare to see anyone rely on anything approaching this sort of overt racism in the debate over marijuana laws today. Indeed, nearly everyone ― prohibitionists and legalization advocates alike ― agrees that racial disparities in marijuana enforcement (and drug enforcement more broadly) are undesirable. Most also acknowledge the issue is a cause for real concern and action.
And yet, disparities in marijuana enforcement persist.
Click over to the ACS blog for the rest.
Sunday, December 28, 2014
As reported in this local article, headlined "NAACP jumps into Nevada marijuana debate," a notable leader is making a notable pitch for marijuana legalization in a notable state. Here are the details:
Jeffery Blanck, the president of the Reno-Sparks chapter of the National Association for the Advancement of Colored People, has jumped into the legislative debate over the legalization of recreational marijuana in Nevada. Blanck has sent a letter to all legislators, urging them to legalize recreational use of marijuana during the 2015 Legislature.
Nevada lawmakers have the first 40 days of the 2015 Legislature to legalize recreational use. If that doesn't happen, the measure will be placed on the 2016 general-election ballot, since the Nevada Cannabis Industry Association has already collected enough signatures on a petition to do that.
In his letter, Blanck noted that the federal government has wasted millions of dollars on its "war on drugs." And when it comes to marijuana, that war in Nevada has been waged more against black citizens than white citizens. "The use of marijuana by blacks and whites is approximately the same," Blanck wrote in his letter to lawmakers. "Yet, if you are black and live in Nevada, you are four-and-a-half times more likely to be arrested for marijuana possession than if you are white.
"This is the 11th-worst disparity in arrest rates for marijuana possession in the country," Blanck wrote. "This is nothing to be proud of, seeing how we have historically been referred to as the 'Mississippi of the West.' "
Blanck told lawmakers that prisons populations have sky-rocketed because of drug possession laws and that the current system of punishment for low-level drugs crimes disproportionally hits blacks harder than whites. "It is time to end the failed war on marijuana," Blanck wrote. "Nevada needs to legalize its use and our federal government needs to repeal its listing as a dangerous drug. We need to stop wasting our hard-earned tax dollars on a program that provides no benefit and disproportionately impacts our black residents."...
Washoe County District Attorney Dick Gammick, who is set to retire on Jan. 4, continues to see any form of legal marijuana – medical or recreational – as a bad thing....
Gammick was asked if it would be better for Nevada to wait on the legalization of recreational marijuana, and see how issues surrounding recreational marijuana are handled in Colorado and Washington....
Gammick replied: "I have in my office a 150-page report out of the Office of Justice on Colorado and all of the issues they are dealing with," Gammick said. "They are having children OD (overdose) on this stuff. They are having children steal it from their grandparents and they're taking it to school and selling it. They are having all kinds of problems, not to include all the robberies and all of the other stuff going on."
Gammick continues to oppose legal marijuana of any kind. "As far as I'm concerned, let's never do it (legalize it) because it is a dangerous drug," he said. "But you can't seem to get that across. Everybody seems to want to toke – not everybody – but there are enough people who want to toke up and sit around and be blown out of their brains…I keep asking folks, do you want that to be your pilot in an airplane?"
Tuesday, November 11, 2014
As reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:
Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.
Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.
The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.
“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”
For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.
But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....
As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...
At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....
Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.
In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.
Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.
Monday, September 15, 2014
This Wisconsin State Journal article, headlined "Police chief: Legalize marijuana, use tax revenue to fund drug treatment," reports on a local police chief's notable response to reports highlighting racial disparities on who gets arrested for marijuana offenses. Here are excerpts from the article:
Madison Police Chief Mike Koval endorsed the legalization of marijuana last week, saying the drug should be regulated and taxed, with revenues used to fund treatment programs for harder drugs.
The comments came during an interview with the State Journal Wednesday about data showing African-Americans in Madison were arrested or cited for marijuana offenses at about 12 times the rate of whites in the city.
Koval called efforts to enforce laws against marijuana an “abject failure,” and said the same about the broader war on drugs. “We’ve done such an abysmal job using marijuana as a centerpiece of drug enforcement, that it’s time to reorder and triage the necessities of what’s more important now,” Koval said.
Referring to the states of Washington and Colorado, which have legalized the drug for recreational use and sell it at state-regulated stores, he said it was time for Wisconsin to consider doing the same.
Koval said he would like to see the state “acknowledge the failure” of marijuana prohibition and instead focus on the “infinite amount of challenges” posed by drugs such as heroin. Taxes from the legal sale of marijuana, he said, would create state revenue that could then be used to fund drug treatment and expand the capacity of drug court programs that divert addicts from the criminal justice system....
The cause has not advanced as far in Wisconsin, though, where the drug remains completely illegal. State Rep. Melissa Sargent, D-Madison, introduced a bill to legalize marijuana earlier this year, but the legislation stands little chance of becoming law.
Saturday, September 13, 2014
The title of this post is the headline of this very intriguing piece from the Seattle Times, which spotlights a very interesting new lawsuit filed in Washington concerning a local ban on marijuana sales. Here are the details:
The growing number of cities and counties in Washington opting out of Washington’s marijuana legalization experiment is eating away at the foundation of Initiative 502, as a Seattle Times editorial in Thursday’s paper suggested. The lack of stores in widening swaths of the state perpetuates the black market and maintains underground access of youth.
A new lawsuit filed in Benton County Superior Court against Kennewick’s ban takes the argument further: Bans are also racially discriminatory. The suit, filed on behalf of a would-be marijuana company, suggests that Kennewick’s ban (as well as similar prohibitions in all three Tri-Cities and Franklin County) push the underground marijuana trade to poorer neighborhoods. Since marijuana is a cash cow for gangs, they’ll continue to battle for turf.
The lawsuit makes some broad assumptions, including that white marijuana users primarily buy from “friends,” and most transactions occur in private homes.... “Minorities and minority children, who reside in racially segregated, high poverty rate neighborhoods in Kennewick, where black market transactions do not occur in private between friends, but instead on the public streets, are therefore disproportionately subjected to violence as a product of the black market trade as compared to whites.”
Attorney Liz Hallock, who filed the suit on behalf of American Weed LLC, summed it up: “This is white people who don’t see the effect of a ban on their street corners.”
The case is scheduled for a hearing next week. Whether it is successful or not, the legality of these municipal bans is likely headed to the state Supreme Court, as another lawsuit, against Fife, is being directly appealed to the high court. These cases will hinge on a lack of specific authority in I-502 for cities and counties to opt out. Attorney General Bob Ferguson issued a non-binding opinion in January that they have an implied right under the state Constitution, which spurred jurisdictions queasy about marijuana to drop the curtain on I-502.
The ACLU’s Alison Holcomb, the architect of the initiative, believes the question about the bans falls to the Legislature: “Are we going to allow opt-out (from I-502), and under what circumstances?” State liquor laws, for example, require an alcohol ban to be put to voters. If state law now treats marijuana like liquor, shouldn’t voters get a say on pot bans?
The Legislative debate is likely to center on whether cities and counties get some of the 25 percent marijuana excise taxes in exchange for accepting state-licensed I-502 businesses. Holcomb said municipalities should have to justify their costs, because legalization, in theory at least, would lower criminal justice costs. “Cities and counties need to make the case and tie the request to the needs,” she said.
Until the Legislature, or the court, acts, the bans are here to stay.
Thursday, August 21, 2014
The title of this post is the title of this potent and provocative new Huffington Post piece by Jelani Hayes. The piece demands a full read, and here are excerpts:
Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control. Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.
Cannabis prohibition did all three. The [New York] Times editorial board dedicated an entire article to explaining this phenomenon. Part 3of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...
The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.
The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence. Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities. Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.
Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done. She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction. "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said. "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year. And I feel like, here we go again."
Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs. Therefore, our solution to it can't be either.
We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....
In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.
Friday, May 23, 2014
I am pleased to learn from this new post on the Brookings Institution's blog that folks at this prestigious think tank "will be researching the new marijuana industry, not as advocates, but as social scientists, interested in how our federal system comes to terms with statewide decisions to legalize a substance that is illegal in the rest of the country, and how states implement those policy changes." And this new post authored by John Hudak, headlined "Dispatch from Colorado: The Interesting Case of Marijuana Entrepreneurs," already provides an interesting and exciting perspective on what the folks at Brookings are discovering as their research begins. Here are snippets:
I spent last week in the Greater Denver area researching implementation of legalized cannabis. In the process, I found a remarkable situation: a robust entrepreneurialism around an industry that elsewhere lives in the shadows of society....
Regardless of one’s personal feelings on the issue, Colorado has determined (and within bounds, the federal government has allowed) the construction of a legal, recreational, and highly regulated market by which consumers can purchase a vast array of cannabis products. And business is booming....
The legal market in Colorado, from professional grow operations to medical dispensaries to recreational dispensaries, looks nothing like street corner drug operation. These are professional businesses that are innovative and scientific. They bring black market lessons to the new, white market, while using tools of agriculture, engineering, science, manufacturing, and business to advance an industrial effort.
Businesses function in a market — though highly regulated — competing with each other to produce the best product in the highest demand. Surely there are members of the industry — like in any industry — who try to skirt the rules or operate outside of the regulatory structures. However, my interaction with businesses involved talking with executives, operators, and employees who embodied professionalism and care for their craft. They reminded me at every turn that they were quite aware that playing by the rules was a necessary condition to avoid the ever-possible federal intervention. At the same time, they showed pride in their efforts, just as a brewmaster would at a microbrewery or a vintner at a winery.
And the operations were just as scientific. For example, at the grow operation I toured, I was led through a series of rooms, engineered specifically for the growing of cannabis. The process involved water purification, testing pH levels, temperature, and conductivity. There was a genetics room where employees ensure a strain of marijuana is consistent in each subsequent plant of that strain. Lights (as it was an indoor grow) were metered, colored properly for the correct stages of growth, measured the proper distance from plants, and were shut off for the necessary periods of time each day. Feeding and watering were timed and measured, and every plant pinned with the state-required seed-to-sale tracking system identifier tags. While in some ways similar to a greenhouse where one would buy roses or petunias, this space looked nothing like the neighborhood florist’s supply space. It was a warehouse filled with advanced agro-science and manufacturing.
In addition, my visits to dispensaries and a grow operation offered a peek into the emerging labor market within the industry: it employs demographic groups hit hardest by the recent recession. Most employees were young (appearing 30 or under). There were numerous females and individuals of color. Though I lack systematic industry employment data and cannot make broad claims about employment trends, my conversations with those who know the industry best suggested that those observations were more than just anecdotes and reflect real trends among cannabis businesses.
Is the industry perfect? No. Does it need regulatory and legislative solutions to operate in a more effective, safe, and consistent way? Absolutely. I will address these topics in a paper to be released in the coming months.
However, a deep look into Colorado’s industry shows a professionalized marketplace that contrasts starkly with caricatures or stereotypes about marijuana growers and sellers. In Colorado, the marijuana seller may not look or dress the same as the woman selling pharmaceuticals or the man selling insurance, but they’re driven by similar entrepreneurial energy and a willingness to play by the rules in a regulated marketplace. The emergence of that marketplace, the ability of the state to respond to the unprecedented and unique challenges it will present, and its adaptation to the broader federal system will be the topics of more research.
I am especially eager to see this report focus on the "emerging labor market" within the marijuana industry. I have long suspected and have been hoping that the labor force dynamics that can surround a legalized marijuana industry, especially if it is regulated in a manner that encourages job creation, could be very beneficial for many under-employed populations. I hope the folks at Brookings give particular attention to this issue in its coming research, in part because I have not seen any significant coverage of labor issues in other work to date in this field.
May 23, 2014 in Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Tuesday, March 18, 2014
In some parts of the country people are proudly announcing plans to get rich selling marijuana legally. But in Missouri, a man who ran a sophisticated illegal marijuana business was just sentenced to 30 years.
Not long ago, these sorts of stories were reported as big drug war wins. But the Riverfront Times ends its report on the case with this observation:
Incarcerating Henderson will cost taxpayers more than $800,000 at an average of about $27,000 per year.
Meanwhile, in Colorado, the state collected about $3.5 million in taxes from recreational marijuana sales in the month of January alone.
Seeing this story also brought to mind an article from April Short at Salon last Friday, which is well worth a read: "Legal Weed's Race Problem: White Men Get Rich, Black Men Stay in Prison."
Saturday, March 8, 2014
The Drug Policy Alliance hosted a call with Michelle Alexander, author of the New Jim Crow earlier this week. With respect to marijuana enforcement and legalization, Alexander noted an interesting and unsettling dynamic: though the criminalization of marijuana has disproportionately impacted people of color, it seems the emerging marijuana industry is largely white.
“When I see images of people using marijuana and images of people who are now trying to run legitimate marijuana businesses, they’re almost all white," she said, noting she supports legalizing pot.
“After 40 years of impoverished black men getting prison time for selling weed, white men are planning to get rich doing the same things," she added. "So that’s why I think we have to start talking about reparations for the war on drugs. How do we repair the harms caused?"
You can listen to the call in its entirety here.
I'm not aware of any data on ethnicity and marijuana businesses. But I think this is an issue well worth tracking. I will be especially curious to see if data emerges on race and marijuana license applications and outcomes.
To the extent that marijuana legalization laws limit people with criminal records from obtaining a license, it may unintentionally cement racial disparity in the legal market. Though there are clear political and policy reasons for criminal history license exclusions, we know that people of color are far more likely to be arrested and prosecuted for drug crimes than whites. As a result, a white illegal marijuana grower or dealer may be less likely to have a record and more likely to be eligible to get a license (so he or she can move into the legitimate market) than a similarly situated person of color.
Of course, the impact depends on what sort of criminal history results in an exclusion. For example, Washington State's point system--which excludes anyone with a felony conviction within the past 10 years--seems likely apply to most drug sale convicts, since trafficking crimes like sale and possession for sale are usually classified as felonies. However, the regulation does state that if a person has a single prior conviction involving marijuana that may be considered "for mitigation on an individual basis" .
In any event, I think this dynamic is something drafters of reform laws and the regulators that implement them should be attuned to. If formerly illegal white dealers and growers are able to get licenses in legalization states (because they have avoided criminal convictions) while people of color are shut out, it is certainly a cause for concern.
Tuesday, February 4, 2014
The question in the title of this post is prompted by this interesting article from the Washington Post headlined "Faith leaders wrestle over growing support for marijuana." Here are excerpts:
Sunday’s Super Bowl was dubbed by some as the “pot bowl,” as the Denver Broncos and Seattle Seahawks hail from the two states where fans can soon get marijuana as easily as they can get pizza. As public opinion has shifted in support of legalized marijuana, religious leaders are wrestling over competing interests, including high prison rates and legislating morality.
According to a 2013 survey from the Public Religion Research Institute, 58 percent of white mainline Protestants and 54 percent of black Protestants favor legalizing the use of marijuana. On the other side, nearly seven-in-10 (69 percent) white evangelical Protestants oppose it.
Catholics appear to be the most divided Christian group, with 48 percent favoring legalization and 50 percent opposing it. Opinions on how states should handle those who possess or sell marijuana varies among Christian leaders.
Caught in the middle of the debate are pastors, theologians and other religious leaders, torn over how to uphold traditional understandings of sin and morality amid a rapidly changing tide of public opinion.
Mark DeMoss, a spokesman for several prominent evangelicals including Franklin Graham and Hobby Lobby founder Steve Green, admits he takes a view that might not be held by most Christian leaders. “When 50 percent of our prison beds are occupied by nonviolent offenders, we have prison overcrowding problems and violent offenders serving shortened sentences, I have a problem with incarceration for possession of marijuana,” he said. “None of that’s to say I favor free and rampant marijuana use. I don’t think it’s the most serious blight on America.”
Alcohol abuse, he said, is a much more serious issue. President Obama suggested something similar to The New Yorker recently when he said that marijuana is less dangerous than alcohol.
But don’t expect pastors to start preaching in line with DeMoss, who said he has not seen much comment from religious leaders on the issue. “If a pastor said some of what I said, there would be some who would feel the pastor was compromising on a moral issue,” he said. “No one wants to risk looking like they’re in favor of marijuana. I’m not in favor, but I think we should address how high of a priority it should be.”...
Laws on marijuana have disproportionately impacted minorities, said the Rev. Samuel Rodriguez, president of the National Hispanic Christian Leadership Conference. “There are community programs that can better engage young people than incarceration,” he said. “Many black and brown lives are destroyed because of incarceration.”...
Most Christians are still reluctant to favor legalization, Rodriguez said, since the effects of marijuana aren’t much different from getting drunk, which is a biblical no-no. “It has the ability of diluting reason, behavior, putting your guard down,” he said. “We are temples of God’s Holy Spirit, and it has the ability of hindering a clear thought process.”
Some who favor legalized marijuana liken the Christians who oppose it to be like the early 20th-century evangelicals and fundamentalists who supported a federal prohibition on alcohol. Part of a move in the Republican Party toward a loosening on marijuana legislation could be coming from people who also would sympathize with the Tea Party, said Russell Moore, head of the Southern Baptist Convention’s Ethics & Religious Liberty Commission.
“I definitely think there’s been a coalition of ‘leave us alone’ libertarians and Woodstock nation progressives on this issue of marijuana,” Moore said. “I do think there has been an effort to stigmatize those with concerns as Carrie Nations holding on to prohibition.”
Tuesday, January 21, 2014
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.
January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)