Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Friday, March 24, 2017

Terrific Harvard School of Public Health panel on "Marijuana: The Latest Scientific Findings and Legalization"

Marijuana-web-missed-1-636x358Though other commitments prevented me from watching the event live, I am grateful to have been able to find (and find the time) to watch an hour-long panel discussion on marijuana research and reform today as part of as The Harvard T.H. Chan School of Public Health.  I watched the full video via this page at The Huffington Post, which provides this "preview":

Twenty-eight states and the nation’s capital allow for the legal use of medical marijuana.  The drug is legal for recreational use in eight states and Washington, D.C. But with a new administration in office signaling a crackdown on recreational use, including an attorney general personally opposed to the drug, states are gearing up for a marijuana war.

While medical marijuana has been scientifically proved to ease pain, but the jury is still out on the drug’s other health benefits. A recent study conducted by the National Academies of Sciences, Engineering and Medicine, led by Harvard T.H. Chan School of Public Health professor Marie McCormick, found as much.  Ryan Grim, Washington bureau chief for The Huffington Post, will be joined by McCormick and other policy and research experts for a panel discussion on marijuana’s health benefits and legalization. 

This page at the Harvard School of Public Health indicates that the video will be posted there soon as well, and it provides this additional summary of the event:

California, Massachusetts, Maine, and Nevada became the latest states to legalize recreational marijuana, bringing to 28 the number of states that have okayed the drug for medicinal use, recreational use, or both. Even more states have rules that allow certain kinds of cannabis extracts to be used for medical purposes. At the same time that state legalization is increasing, the Trump administration is signaling that it may ramp up enforcement of federal drug laws, even when they come into conflict with state laws allowing recreational marijuana use. State and local governments may find themselves on uncertain legal ground. Meanwhile, policymakers navigating this new landscape are also working largely without the benefit of a solid foundation of scientific evidence on the drug’s risks and benefits. In fact, a new National Academy of Medicine report describes notable gaps in scientific data on the short- and long-term health effects of marijuana. What do we know about the health impacts of marijuana, and what do we still need to learn? This Forum brought together researchers studying marijuana’s health impacts with policymakers who are working to implement new laws in ways that will benefit and protect public health.

March 24, 2017 in Medical community perspectives, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Science | Permalink | Comments (0)

Looking at marijuana reform in black and white

Though a number of folks in a number of ways have brought a critical race perspective to discussion of marijuana law, policy and reform, I still think this topic always merits even more extensive and thoughtful attention.  Thus, I am very pleased that a student in my Marijuana Law, Policy & Reform seminar is planned a presentation on racial issues surrounding marijuana reform.  And here are materials this student sent my way in preparation for the class presentation and discussion next week:

ACLU Report, "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests"

Seattle Times article, "Minorities, punished most by war on drugs, underrepresented in legal pot"

Huffington Post commentary, "A Big Shift Is Necessary to Successfully Market Cannabis to Minorities"

 

March 24, 2017 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, March 23, 2017

Legalization Lite: The Case for De-scheduling Marijuana

The title of this post is the title suggested by a student in my Marijuana Law, Policy & Reform seminar as a preview of his planned presentation to the class next week.  Here are the resources the student assembled as background on this topic to go with the great title (which leads to show my age by thinking "tastes great/less filling"):

1.  Sam Kamin, Legal Cannabis in the U.S.: Not Whether, But How?, 50 UC Davis L. Rev. 617 (2016).

2.  Jeffrey M. Jones, In U.S., 58% Back Legal Marijuana Use, Gallup (Oct. 21, 2015)

3.  Abigail Geiger, Support for Marijuana Legalization Continues to Rise, Pew Research Center, Oct. 12, 2016

4.  Kevin Loria, 11 Key Findings from One of the Most Comprehensive Reports Ever on the Health Effects of Marijuana, Business Insider, Jan. 12, 2017,

5.  Ryan Stoa, Is Big Marijuana Inevitable?, The New Republic, Aug. 19, 2016

6.  Debra Borchardt, Marijuana Sales Totaled $6.7 Billion in 2016, Forbes, Jan. 3, 2017

7.  Robert Benzie, Recreational Weed Could Be A $22.6 Billion Industry: Study, The Toronto Star, Oct. 27, 2016,

8.  Angela Dills, Sietse Goffard, & Jeffrey Miron, Dose of Reality: The Effect of State Marijuana Legalizations, The Cato Institute, Sep. 16, 2016,

9.  Jeffrey A. Miron & Katherine Waldock, The Budgetary Impact of Ending Drug Prohibition, The Cato Institute (2010)

10.  Beau Kilmer, Trump's Marijuana Options, The Hill (Jan. 17, 2017)

March 23, 2017 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, March 17, 2017

Examining marijuana reforms' impact on teachers, students and educational achievement

My Marijuana Law, Policy & Reform seminar students, after a well-deserved Spring Break, are back next week to continue making presentations based on their selected marijuana-related research issue. A student this coming week is looking at issues marijuana reform from an educator's perspective and he will be presenting results from some original survey research. Here are the resources the student assembled as background on this topic:

"Texas Teacher Shouldn’t Be Punished for Marijuana Use in Colorado, Judge Says"

NYT article on an administrative judge ruling that a Texas teacher should not face sanction for smoking marijuana legally in Colorado then testing positive for it in Texas.  Article is tangentially related to my subject, but an interesting case (the judge compares the teacher smoking marijuana in Colorado to a Texas teacher going to another state to gamble at a casino).

"Teen marijuana use in Colorado found lower than national average"

Reuters article summarizing the findings of Colorado Department of Public Health and Environment’s survey of Colorado high school students that found that marijuana consumption among teens actually dipped after legalization in the state. Report also found that the percent of Colorado teens using marijuana was below the national average.

"Will legalization lead to more teens smoking pot?"

This CBS News article summarizes a report by the International Journal of Drug Policy that concluded in 2014 that about 10 percent of high school students that would otherwise be low risk to use marijuana would pick up the habit if it was legal. This hypothesis is based on nationwide survey data from 2007-2011.

"The Academic Opportunity Costs of Substance Use During College"

A study from the University of Maryland School of Public Health that analyzed a 10-year period to conclude that marijuana use contributed to college students skipping more classes, spending less time studying, earning lower grades, dropping out of college, and being unemployed after college. It also concluded that early chronic use can lead to a decrease in IQ.

March 17, 2017 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, March 15, 2017

More notable comments about marijuana and federal enforcement from AG Sessions in new speech and Q&A

Jeff-sessions-attorney-general-630x354Over at my Sentencing Law & Policy blog, I have this new post highlights various aspects of  this extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia.  Though covering various topics, these passages from the speech are sure to intrigue those following marijuana law, policy and reform:  

Our nation is in the throes of a heroin and opioid epidemic. Overdose deaths more than tripled between 2010 and 2014. According to the CDC, about 140 Americans on average now die from a drug overdose each day. That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks. Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery. We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention. Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product. One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital.  But treatment often comes too late to save people from addiction or death. So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use. But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store. And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

In addition to these prepared remarks, AG Sessions also apparently had some interesting things to say during a Q&A after his speech.  Tom Angell, in this new MassRoots posting, provides this report:

U.S. Attorney General Jeff Sessions is indicating that he might keep Obama-era marijuana enforcement guidelines in place, perhaps with some modifications. "The Cole Memorandum set up some policies under President Obama's Department of Justice about how cases should be selected in those states and what would be appropriate for federal prosecution, much of which I think is valid," he said in a question-and-answer session with reporters following a speech in Richmond, Virginia.

That memo, adopted in 2013, lays out guidelines for how states can avoid federal interference with their marijuana laws.

Sessions added that he "may have some different ideas myself in addition to that" but indicated that the federal government would not be able to enforce its remaining marijuana prohibition across the board in states with legalization. "Essentially we’re not able to go into a state and pick up the work that the police and sheriffs have been doing for decades," he said.

The attorney general also addressed medical cannabis, suggesting that it "has been hyped, maybe too much."

"It's possible that some dosages can be constructed in a way that might be beneficial," he said. "But if you ever just smoke marijuana for example where you have no idea how much THC you're getting it's probably not a good way to administer a medicinal amount. So, forgive me if I'm a bit dubious about that."

March 15, 2017 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"Tracking the Money That’s Legalizing Marijuana and Why it Matters"

The title of this post is the title of a notable new report issued by National Families in Action. The report can be downloaded at this link, and this press release about the report provides a summary of its themes and core contents:

A new report by National Families in Action (NFIA) uncovers and documents how three billionaires, who favor legal recreational marijuana, manipulated the ballot initiative process in 16 U.S. states for more than a decade, convincing voters to legalize medical marijuana.  NFIA is an Atlanta-based nonprofit organization, founded in 1977, that has been helping parents prevent children from using alcohol, tobacco, and other drugs.  NFIA researched and issued the paper to mark its 40th anniversary.

The NFIA study, Tracking the Money That’s Legalizing Marijuana and Why It Matters, exposes, for the first time, the money trail behind the marijuana legalization effort during a 13-year period.  The report lays bare the strategy to use medical marijuana as a runway to legalized recreational pot, describing how financier George Soros, insurance magnate Peter Lewis, and for-profit education baron John Sperling (and groups they and their families fund) systematically chipped away at resistance to marijuana while denying that full legalization was their goal.  The report documents state-by-state financial data, identifying the groups and the amount of money used either to fund or oppose ballot initiatives legalizing medical or recreational marijuana in 16 states.  The paper unearths how legalizers fleeced voters and outspent — sometimes by hundreds of times — the people who opposed marijuana.

Tracking the Money That’s Legalizing Marijuana and Why It Matters illustrates that legalizers lied about the health benefits of marijuana, preyed on the hopes of sick people, flouted scientific evidence and advice from the medical community and gutted consumer protections against unsafe, ineffective drugs.  And, it proves that once the billionaires achieved their goal of legalizing recreational marijuana (in Colorado and Washington in 2012), they virtually stopped financing medical pot ballot initiatives and switched to financing recreational pot.  In 2014 and 2016, they donated $44 million to legalize recreational pot in Alaska, Oregon, California, Arizona, Nevada, Massachusetts and Maine. Only Arizona defeated the onslaught (for recreational marijuana).

March 15, 2017 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, March 9, 2017

Terrific summary of terrific Pacific McGeorge School of Law symposium on "Regulating Marijuana at Home and Abroad"

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As detailed on this webpage, the University of the Pacific Law Review and Global Center held a symposium last week on "Regulating Marijuana at Home and Abroad."  The panels and panelists for the event were are terrific and timely, and the video of the event is available via the website.  In addition, Professor Michael Vitiello was instrumental in arranging for two terrific students to provide a detailed multi-page summary of the symposium. This summary is much too long (and much too thoughtful) to really fit in this space, so I have linked it before and I recommend it to all. Here is how the terrific summary gets started to whet appetites from the whole product:

The University of the Pacific Law Review and Global Center Annual Symposium: Regulating Marijuana at Home and Abroad

Friday, March 3rd, 2017 – McGeorge School of Law, Sacramento, CA

Summary by: Kendall Fisher and Rosemary Deck

The University of the Pacific, McGeorge School of Law hosted the “Regulating Marijuana at Home and Abroad Symposium” on Friday, March 3rd in Sacramento. Several notable speakers gave remarks regarding the progressing trend toward legalization. While the individual states are developing piecemeal legalization under our federalist framework, the national legalization of marijuana remains in conflict with UN drug control treaties.

Michael Vitiello, Distinguished Professor of Law at McGeorge, delivered the opening remarks. He set the stage for discussions to follow by outlining a brief history of marijuana prohibition and decriminalization, focusing particularly on changing attitudes towards marijuana – he noted that today’s younger voters grew up with movies and television shows like Pineapple Express and Workaholics that present marijuana use as socially acceptable. Professor Vitiello predicts that this generation’s more lenient attitude towards marijuana will continue the trend towards national legalization, which has already begun with eight states permitting recreational use and twenty-eight allowing some form of medical use. In addition to demographic changes in attitude, he pointed to the capital that investors are now pouring into the industry as a reason to believe a national solution is in the offing. Professor Vitiello also pointed out that, despite comments from members of the Trump Administration, namely White House Press Secretary Sean Spicer’s recent insinuation that the federal government may crack down on state-legal recreational use, some of these legalized states have already expressed a willingness to push back against any such federal enforcement.

Download Regulating at Home and Abroad

March 9, 2017 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, March 6, 2017

Pennsylvania's Auditor General suggests marijuana legalization could help state close budget deficit

Regulating Marijuana FINALA notable bean-counter is making a notable case for marijuana reform in the Keystone State. This official press release, headlined "Auditor General DePasquale Recommends Regulating, Taxing Marijuana as Right Move to Help Deal with Critical Issues: Result would bring in revenue, create jobs, reduce corrections costs," explains:

Auditor General Eugene DePasquale said today Pennsylvania should strongly consider regulating and taxing marijuana to benefit from a booming industry expected to be worth $20 billion and employ more than 280,000 in the next decade. “The regulation and taxation of the marijuana train has rumbled out of the station, and it is time to add a stop in the Commonwealth of Pennsylvania,” DePasquale said during a news conference at the state capitol.

“I make this recommendation because it is a more sane policy to deal with a critical issue facing the state. Other states are already taking advantage of the opportunity for massive job creation and savings from reduced arrests and criminal prosecutions. In addition, it would generate hundreds of millions of dollars each year that could help tackle Pennsylvania’s budget problems.”...

In 2012, Colorado voters approved legalizing, regulating and taxing marijuana. Last year, Colorado – which has less than half the population of Pennsylvania – brought in $129 million in tax revenue on $1 billion in marijuana sales from the new industry that had already created an estimated 18,000 jobs. “The revenue that could be generated would help address Pennsylvania’s revenue and spending issue. But there is more to this than simply tax dollars and jobs,” DePasquale said. “There is also social impact, specifically related to arrests, and the personal, emotional, and financial devastation that may result from such arrests.”

In Colorado’s experience, after regulation and taxation of marijuana, the total number of marijuana arrests decreased by nearly half between 2012 and 2014, from nearly 13,000 arrests to 7,000 arrests. Marijuana possession arrests, which make up the majority of all marijuana arrests, were nearly cut in half, down 47 percent, and marijuana sales arrests decreased by 24 percent. “All told, this decrease in arrest numbers represent thousands of people who would otherwise have blemished records that could prevent them from obtaining future employment or even housing,” DePasquale said. “Decriminalization also generates millions in savings from fewer arrests and prosecutions.”

DePasquale said Pennsylvania has already benefited by some cities decriminalizing marijuana. In Philadelphia, marijuana arrests went from 2,843 in 2014 to 969 in 2016. Based on a recent study, the RAND Corporation estimated the cost for each marijuana arrest and prosecution is approximately $2,200. Using those figures, that’s a savings of more than $4.1 million in one Pennsylvania city. Last year, York, Dauphin, Chester, Delaware, Bucks and Montgomery counties each had more arrests for small amounts of marijuana than Philadelphia. Those counties had between 800 and 1,400 arrests in 2015.

“Obviously, regulation and taxation of marijuana is not something that should be entered into lightly,” DePasquale said. “Should Pennsylvania join the growing number of states benefiting financially and socially from the taxation and regulation of marijuana; there are many things to consider, including details about age limits, regulatory oversight, licensing, grow policies, sale and use locations, and possession limitations.

“As I said earlier, the train has indeed left the station on the regulation and taxation of marijuana,” DePasquale said. “It is time for this commonwealth to seriously consider this opportunity to generate hundreds of millions of dollars in new revenue.”

March 6, 2017 in Business laws and regulatory issues, Criminal justice developments and reforms, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (0)

Friday, March 3, 2017

What are the possibilities and foundations supporting a constutional argument for access to marijuana?

The question in the title of this post is the question being raised by a student presentation in in my Marijuana Law, Policy & Reform seminar next week. (It is also a question that has become ever more timely in light of recent suggestions by members of the Trump Administration that we may soon be seeing "greater enforcement" of federal marijuana prohibition.) The student addressing this issue has assembled the following background reading:

State Supreme Court decision recognizing a constitutional right to use marijuana in the home: Ravin v. State, 537 P.2d 494 (Alaska 1975) (westlaw; public site)

U.S. Supreme Court Cases recognizing a right to privacy and autonomy:

Griswold v. Connecticut (1965)

Stanley v. Georgia (1969)

Obergefell v. Hodges (2015)

Brief summary of unenumerated rights found in the 14th amendment through the concept of personal autonomy

NORML Amicus Brief involving right to use marijuana

March 3, 2017 in Assembled readings on specific topics, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, March 2, 2017

"Can we make cannabis safer?"

The title of this post is the title of this notable new piece from a group of doctors appearing in The Lancet Psychiatry.  Here is its summary:

Cannabis use and related problems are on the rise globally alongside an increase in the potency of cannabis sold on both black and legal markets.  Additionally, there has been a shift towards abandoning prohibition for a less punitive and more permissive legal stance on cannabis, such as decriminalisation and legalisation.  It is therefore crucial that we explore new and innovative ways to reduce harm.

Research has found cannabis with high concentrations of its main active ingredient, δ-9-tetrahydrocannabinol (THC), to be more harmful (in terms of causing the main risks associated with cannabis use, such as addiction, psychosis, and cognitive impairment) than cannabis with lower concentrations of THC.  By contrast, cannabidiol, which is a non-intoxicating and potentially therapeutic component of cannabis, has been found to reduce the negative effects of cannabis use.  Here, we briefly review findings from studies investigating various types of cannabis and discuss how future research can help to better understand and reduce the risks of cannabis use.

March 2, 2017 in Medical community perspectives, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, February 28, 2017

"Confusion mounts over Trump administration’s stance on marijuana"

The title of this post is the title of this new article in The Hill.  Here are excerpts:

The Trump administration is signaling a crackdown on federal drug laws, leaving apprehensive top officials in states that have legalized recreational marijuana searching for answers.

Senior Trump administration members have hinted in recent days that they plan to more strictly enforce drug laws, a reversal from the Obama administration, which largely tolerated legal marijuana industries in states where voters had given the go-ahead.

“I’m dubious about marijuana. I’m not sure we’re going to be a better, healthier nation if we have marijuana sold at every corner grocery store,” Attorney General Jeff Sessions told state attorneys general on Tuesday.... White House press secretary Sean Spicer said last week he believed the administration would push “greater enforcement” of federal drug laws, under which marijuana is still a banned substance.

Neither Sessions nor Spicer addressed the Cole Memo, the Obama-era legal guidance that de-prioritized marijuana enforcement in states where the drug is legal. Since establishing their recreational marijuana regimes, Colorado, Washington, Oregon and Alaska have followed that federal guidance.

“In an imperfect system, the Cole Memo has worked. States that have legalized marijuana I think have worked hard to adhere to the Cole Memo,” said Washington Attorney General Bob Ferguson (D)....

Along with the four states that have implemented legalized marijuana, four more — Massachusetts, Maine, Nevada and California — are setting up their own regulatory regimes, after voters passed legalization efforts in November.

Most elected officials opposed legalization efforts in their states. But once voters have spoken, those elected officials don’t want federal officials cracking down on a product that is legal under state law, though still illegal at the federal level. And the marijuana industry is a boon for state economies, with legal marijuana sales over $1 billion in Colorado last year.

“I took an oath to support the constitution of Colorado,” Gov. John Hickenlooper (D) said in an interview. Hickenlooper questioned whether the Trump administration “really want[s] to come down and be heavy-handed on entrepreneurs.”

“I don’t know what direction the Justice Department is going to go, but it is going to raise some legal issues,” Nevada Gov. Brian Sandoval (R) said. Both Hickenlooper and Sandoval opposed their state’s legalization initiatives.

State and federal officials from legalization states have asked the Justice Department for guidance but have received no clear answers. No Justice Department officials showed up at the National Governors Association’s annual winter meeting this weekend in Washington. Hickenlooper, Sandoval and a spokesman for Washington Gov. Jay Inslee (D) said they had not been able to speak with Trump administration officials about their predicaments.

Inslee and Ferguson wrote Sessions last week to ask for a meeting to discuss state pot laws, though they have received no reply. Hickenlooper said he too will request a meeting. “I’ll have to probably come back and talk to [Sessions]," Hickenlooper said. “I want to make sure that we have a discussion about it. I’ll come back, we’ll try to set a meeting up.”

But many officials, like Sandoval, predict legal clashes ahead if the federal government changes its approach. “States like Washington have legal tools to resist such an effort, in the same way we have legal tools to resist the executive travel ban,” said Ferguson, who led the lawsuit against the Trump administration’s executive order on refugees and immigrants from seven Muslim-majority nations.

February 28, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, February 27, 2017

Heritage Foundation expert provides road map for big government feds to crack down on marijuana enterprises

Stimson_Cully_0This webpage discussing the mission of the Heritage Foundation states at its outset that "free enterprise, limited government, individual freedom" are among the principles that that the group "fights for every single day." But when it comes to marijuana law and policy, it seems these principles become much less important given this new Daily Signal commentary authored by Charles “Cully” Stimson of The Heritage Foundation’s Center for Legal and Judicial Studies.  The piece is headlined "How Trump’s DOJ Can Start Enforcing Federal Marijuana Law," and in it Stimson provides a detailed road map for how the large federal government can try to crush free enterprise and individual freedom in marijuana legalization states. Here are the essentials of the piece (with links from the original):

Thorough scientific reviews by President Barack Obama’s Food and Drug Administration and Drug Enforcement Administration — as well as drug classification reviews by federal judges — have affirmed that marijuana should remain a Schedule 1 drug. Such drugs are defined as having “no currently accepted medical use and a high potential for abuse.”

As I have written here and here, the predictable consequences of marijuana legalization are beginning to emerge in states like Colorado and Washington.  Annual reports from the Rocky Mountain High Intensity Drug Trafficking Area, Smart Approaches to Marijuana, and the Colorado Department of Public Safety have analyzed the negative impact that marijuana legalization has had on health and public safety in Colorado.

 With such research finally emerging, the Trump administration and the Department of Justice are in a strong position to enforce federal law and take appropriate and aggressive action in crafting a commonsense drug enforcement policy for marijuana. The Trump administration should consider the following actions:

  • Reaffirm support for the law....
  • Coordinate with lower-level officials....
  • Reassert America’s drug position on the world stage....
  • Up the profile of key drug enforcement personnel....
  • Rescind and replace the August 2013 memorandum from then-Deputy Attorney General James M. Cole—i.e. the “Cole Memo.”...
  • Select marijuana businesses to prosecute....
  • Rescind the Financial Crimes Enforcement Network’s guidance for banks and oppose efforts to expand banking services to the marijuana industry....
  • Support state attorneys general in nonlegalized states....
  • Prosecute those dealing in marijuana—which is illegal under federal law—using the Racketeer Influenced and Corrupt Organizations Act (RICO)....
  • Prosecute those who provide financing for marijuana operations....
  • Empower the FDA to take action to regulate marijuana in order to protect patients and the public....
None of these recommendations advocate criminal prosecution for simple possession of marijuana. Enforcing federal marijuana laws should not be about putting people in jail....

Thus, it has not been the case and should not be the case that people are criminally prosecuted and jailed for simple possession of small quantities of marijuana. However, the recommendations listed above provide a targeted approach to marijuana enforcement that focuses on protection, not punishment. These recommendations should be part of any commonsense approach that is consistent with an interest in public health and safety.

Recent comments by the White House press secretary (covered here) and also by the Attorney General (covered here) has me starting to think that the Trump Administration might be quite seriously considering many of Stimson's big government suggestions for the future of federal marijuana policies and practices.

A few prior related posts:

February 27, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

AG Sessions comments negatively on state marijuana reform

As detailed in this new AP article, headlined "Sessions: More violence around marijuana than ‘one would think’," the US Attorney General had a few not-so-nice things to say about state marijuana reforms today. Here are the details:

The Justice Department will try to adopt “responsible policies” for enforcement of federal anti-marijuana laws, Attorney General Jeff Sessions said Monday, adding that he believes violence surrounds sales and use of the drug in the U.S.

In a meeting with reporters, Sessions said the department was reviewing an Obama administration Justice Department memo that gave states flexibility in passing marijuana laws. “Experts are telling me there’s more violence around marijuana than one would think,” Sessions said....

Sessions stopped short of saying what he would do, but said he doesn’t think America will be a better place with “more people smoking pot.”

“I am definitely not a fan of expanded use of marijuana,” he said. “But states, they can pass the laws they choose. I would just say, it does remain a violation of federal law to distribute marijuana throughout any place in the United States, whether a state legalizes it or not.”...

Studies have found no correlation between legalization of marijuana and violent crime rates. But law enforcement officials in states such as Colorado say drug traffickers have taken advantage of lax marijuana laws to hide in plain sight, illegally growing and shipping the drug across state lines, where it can sell for much higher.

Pot advocates say the officials have exaggerated the problem. “You can’t sue somebody for a drug debt. The only way to get your money is through strong-arm tactics, and violence tends to follow that,” Sessions said.

Sessions said he met with Nebraska’s attorney general, who sued Colorado for allegedly not keeping marijuana within its borders. That lawsuit was dismissed by the U.S. Supreme Court, but neighboring states continue to gripe that Colorado and other pot-legal states have not done enough to keep the drug from crossing their borders.

February 27, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, February 25, 2017

"Recreational Cannabis — Minimizing the Health Risks from Legalization"

Nejmp1614783_f1The title of this post is the title of this notable new piece by RAND's Beau Kilmer appearing in the New England Journal of Medicine.  Here are excerpts from the start and end of a useful short commentary:

The cannabis-policy landscape is undergoing dramatic change. Although many jurisdictions have removed criminal penalties for possessing small amounts of cannabis and more than half of U.S. states allow physicians to recommend it to patients, legalizing the supply and possession of cannabis for nonmedical purposes is a very different public policy.  Since the November 2016 election, 20% of the U.S. population lives in states that have passed ballot initiatives to allow companies to sell cannabis for any reason and adults 21 or older to purchase it.  Although other states may move toward legalization, uncertainty abounds because of the federal prohibition on cannabis.  The Obama administration tolerated these state laws; it’s unclear what the Trump administration will do.

There is also tremendous uncertainty about the net effect of cannabis legalization on public health.  Most adults who occasionally use cannabis find it pleasurable and don’t experience substantial problems.  There is a growing body of research on the medical benefits of consuming cannabis flowers or extracts, and legalization should make it easier to study the therapeutic potential and allow access for patients who could benefit.

But cannabis use comes with important risks.  For example, cannabis intoxication impairs cognitive and psychomotor function, and there’s strong evidence that delta-9-tetrahydrocannabinol (THC), the main psychoactive chemical in cannabis, increases the risk of psychotic symptoms or panic attacks.  Approximately 9% of people who try cannabis meet criteria for cannabis dependence at some point.  The rate roughly doubles for those who initiate use before 17 years of age and is much higher for adolescents who use cannabis weekly or more often....

Jurisdictions considering legalizing cannabis for nonmedical purposes will have to make several decisions that could have profound consequences for public health.  For example, decision makers will have to determine how cannabis will be supplied (see diagram Continuum of Recreational Cannabis Supply Options.).  Allowing sales by for-profit companies is only one option.  Since daily and near-daily cannabis users account for the vast majority of cannabis expenditures, many businesses will target and attempt to expand the number of heavy users. Experiences with alcohol and tobacco suggest that profit-maximizing firms and their lobbyists will eventually fight to weaken regulations intended to protect health.

Even if states allow for-profit companies to produce cannabis, local governments could limit retail sales to nonprofit organizations or sell the drug through a government monopoly.  Jurisdictions less focused on generating tax revenue could simply permit home production and gifting (as Washington, D.C., does) or allow user cooperatives (an option offered in Uruguay).

Second, jurisdictions will have to decide how cannabis should be priced.  The post-legalization retail price of cannabis will not only influence revenues and the size of the illicit market, it will also affect consumption. Legalizing cannabis can dramatically reduce production and distribution costs for at least three reasons: suppliers no longer have to be compensated for the risk of seizure and arrest; it allows producers to take advantage of economies of scale; and it makes it easier to incorporate new technologies into the production process.  Jurisdictions seeking to ensure that cannabis retail prices don’t drop precipitously have many options.  For example, they could limit production, impose costly regulations on suppliers, require a minimum price, or levy an excise tax.

Third, jurisdictions will need to decide whether to update their prevention messaging — and whether prevention campaigns will start before legal cannabis is available.  They could target young people with such messages to counter commercial promotion where it’s allowed and encourage adults to talk to them about the effects of cannabis, especially on driving.  Prevention also includes efforts to limit access and exposure to cannabis products. Policymakers can learn important lessons about prevention from research on alcohol and tobacco.

Fourth, given the dearth of information about the consequences associated with high-potency cannabis products and our inability to measure cannabis impairment, risk-averse policymakers may consider initially limiting access to certain types of products or imposing a cap on products’ THC content.  Another option, offered by Stanford social psychologist Robert MacCoun and others, is to tax cannabis according to THC content, thereby giving jurisdictions a lever to nudge users toward lower-potency products.

Finally, since each supply option has trade-offs, some jurisdictions may want to start with a middle-ground option before embracing a for-profit model (see diagram).  One strategy is to implement a sunset clause allowing policymakers to decide after a predetermined period whether to maintain the status quo or switch approaches. Since no one knows the best way to tax or regulate cannabis, creating flexible rules would make it easier to make midcourse corrections and incorporate new research and other insights into policies.

Although public health outcomes are clearly important, they aren’t the only considerations when setting cannabis policy.  The costs of enforcing prohibition, racial and ethnic disparities in cannabis arrests, the size of the illicit market, impact on public budgets, and nonmedical benefits of using cannabis (e.g., pleasure, stress relief) are just a few of the other issues that warrant discussion.  In addition, we should be skeptical of people who claim to know what the net effect of cannabis legalization on public health will be.  Much will depend on implementation decisions, but jurisdictions’ ability to minimize health risks will also depend on how they respond to new information and other sources of uncertainty.

February 25, 2017 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

California folks gearing up for possible fight with feds over marijuana law and policy

DownloadThis new lengthy Los Angeles Times article, headlined "California officials and the marijuana industry are ready to fight a federal crackdown," reports on what folks on the Left Coast are thinking and saying in the wake of  the recent comments from White House press secretary Sean Spicer suggesting the Trump Administration might be ramping up federal enforcement of blanket marijuana prohibition.  Here are excerpts:

Warned of a possible federal crackdown on marijuana, California elected officials and cannabis industry leaders said Friday they were preparing for a potential showdown in the courts and Congress to protect the legalization measure approved by state voters in November.

The flashpoint that set off a scramble in California was a news conference Thursday at which White House Press Secretary Sean Spicer told reporters that the administration had no plans to continue the Obama administration's permissive approach in states that have legalized marijuana for recreational use. "I do believe that you'll see greater enforcement,” he said, adding that the administration would continue to allow states to regulate the sale of marijuana for medical use.

The latest development could force California officials and marijuana industry leaders into an unusual alliance against the federal government, with billions of dollars in profits for businesses and taxes for state coffers at stake.

The state agency responsible for drafting regulations said Friday it was going ahead with its plans to start issuing licenses to growers and sellers in January. “Until we see any sort of formal plan from the federal government, it’s full speed ahead for us,” said Alex Traverso, a spokesman for the California Bureau of Medical Cannabis Regulation.

California Atty. Gen. Xavier Becerra says he is ready to safeguard the rights of the 56% of voters who approved Proposition 64, which allows California adults to possess, transport and buy up to an ounce of marijuana for recreational use. “I took an oath to enforce the laws that California has passed,” Becerra said in a statement Thursday after Spicer’s comments. “If there is action from the federal government on this subject, I will respond in an appropriate way to protect the interests of California.”

State lawmakers also say California should do what it can to preserve Proposition 64. “We will support and honor the laws that California voters have democratically enacted,” said Assemblyman Rob Bonta (D-Oakland), an author of legislation creating the licensing system for medical marijuana dispensaries.

Becerra would likely be joined in any defense of the state’s marijuana policy by attorneys general in other parts of the country. Recreational use has also been legalized in Washington state, Colorado, Oregon, Alaska, Maine, Massachusetts and Nevada, home to a combined 68 million Americans.

Washington Atty. Gen. Bob Ferguson, who has worked with Becerra on opposing President Trump’s travel ban, said he and Democratic Gov. Jay Inslee last week asked for a meeting with U.S. Atty. Gen. Jeff Sessions to discuss how the recreational marijuana use system is working in their state.

California Lt. Gov. Gavin Newsom, a leading supporter of Proposition 64, took a similar approach, sending a letter Friday to Trump urging him not to carry through with threats to launch a federal enforcement effort. “I urge you and your administration to work in partnership with California and the other … states that have legalized recreational marijuana for adult use in a way that will let us enforce our state laws that protect the public and our children, while targeting the bad actors,” the Democrat wrote.

If the Justice Department starts arresting licensed marijuana sellers, the multibillion-dollar industry would join forces with the states that issue permits to challenge the action in court, said Amy Margolis, an attorney whose law firm has more than 200 clients in the marijuana industry, including businesses in California. “This industry is so mature and it’s so far along that I have no doubt that if the Department of Justice started true enforcement actions against cannabis businesses, that they would go to court,” Margolis said. “I see joint actions between the states and the industry hoping to prevent those type of actions.”

Margolis would argue that it is a states’ rights issue. “The argument would be that this is a situation where the states have the right to regulate and tax an industry the way they want,” she said, adding that states are gaining tax revenue to pay for government programs....

However, the states may find their hands tied legally if they try to keep federal agents from raiding and shutting down marijuana growing and sales operations, according to Adam Winkler, a professor at UCLA School of Law. “I imagine that California will mount a legal challenge to any crackdown on recreational marijuana,” Winkler said. “Yet there is not much California can do. Federal law is supreme over conflicting state law. Federal agents are entitled to enforce federal law anywhere in the country, including California.” He said there are limits to federal power, but the courts have held that the federal government does have the authority to enforce federal drug laws.

Aaron Herzberg, an attorney for the industry, agreed that the state would face a tough fight. He cited the 2005 case Gonzales vs. Raich, in which the U.S. Supreme Court found that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown marijuana even if states approve its use for medical purposes. “Let's face it: If the federal government wants to shut down recreational marijuana they could quite easily accomplish it using federal law enforcement and taxation tools,” Herzberg said.

Others say one basis for legal action would be an argument that enforcing laws against marijuana would damage states that have put regulations in place and are depending on hundreds of millions of dollars in taxes to pay for government programs. States are too far down the path of regulating, licensing and taxing those who are making big investments in the sanctioned marijuana industry to pull the rug out now, said Richard Miadich, an attorney who co-wrote Proposition 64....

Because Spicer did not provide details on what an enforcement effort might look like, many in the industry hope it will focus on the illegal exporting of marijuana to other states, leaving alone state-licensed firms that grow and sell pot. “The biggest crackdown we may see is on the increase of cannabis being illegally exported out of recreational states,” said Nate Bradley, executive director of the California Cannabis Industry Assn.

Prior related post:

White House press secretary hints of "greater enforcement" by feds of marijuana prohibition in recreational marijuana states

February 25, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)

Thursday, February 23, 2017

White House press secretary hints of "greater enforcement" by feds of marijuana prohibition in recreational marijuana states

As reported in this Politico article, "White House press secretary Sean Spicer said Thursday that he expects states to see 'greater enforcement' of the federal law against marijuana use, a move that would be at odds with a growing number of states’ decisions to legalize it." Here is more:

Spicer, taking questions from reporters at the daily briefing, differentiated between the administration’s positions on medical marijuana and recreational marijuana. President Donald Trump “understands the pain and suffering that many people go through who are facing especially terminal diseases, and the comfort that some of these drugs, including medical marijuana, can bring to them,” he said, also noting previous action by Congress not to fund the Justice Department “go[ing] after those folks.”

As for “recreational marijuana, that’s a very, very different subject,” Spicer said.

Spicer suggested that the administration is opposed to encouraging recreational marijuana use and connected it with the crisis with opioid addiction in some areas. “When you see something like the opioid addiction crisis blossoming in so many states around this country, the last thing we should be doing is encouraging people,” he said.

The Department of Justice, Spicer said, will be “further looking into” the marijuana enforcement question, he said, punting questions about the specifics to the department. “I do believe that you'll see greater enforcement of it,” he said.

February 23, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

Wednesday, February 22, 2017

Reviewing ups-and-downs and defeat in 2015 of Ohio effort to legalize recreational marijuana via Issue 3

UntitledI am excited to remind readers (and also my students) that it is that time of year again:  students in my Ohio State University Moritz College of Law marijuana reform seminar are gearing up to begin in-class presentations.   This means, inter alia, that this blog space will be filled in coming weeks with links and materials provided by my students as a background/preview for their coming presentation.

The first of the scheduled presentations involves a review of this history (and epic fail) of Issue 3, the 2015 campaign in Ohio seeking passage of a state constitutional amendment that would have fully legalized marijuana in the Buckeye State and put the rights to grow marijuana in the hands of a small group of financial backers of the initiative campaign.  The student making this presentations has suggested the following reading for classmates (and any others interested in recalling this tale):

"Is Responsible Ohio's mascot Buddie 'the Joe Camel of marijuana'?"(Oct 21, 2015 press article)

"On Ballot, Ohio Grapples With Specter of Marijuana Monopoly" (Nov 1, 2015 press article)

Proposed Constitutional Amendment Issue 2: "Anti-monopoly amendment; protects the initiative process from being used for personal economic benefit"

Proposed Constitutional Amendment Issue 3: "Grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes"

"Ohioans reject legalizing marijuana" (Nov 4, 2015 press article)

UPDATE:  And here is one more: "Will Ohio's Marijuana Amendment Go up in Smoke" (Sept/Oct Ohio Lawyer article)

February 22, 2017 in Assembled readings on specific topics, Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

New report projects extraordinary job growth in US marijuana industry

This new Forbes article, headlined "Marijuana Industry Projected To Create More Jobs Than Manufacturing By 2020," highlights some of the economic development potential that is forecast by some in the marijuana arena. Here are the details:

Jobs. That is what the marijuana industry hopes will keep the Trump administration from cracking down on cannabis companies.

A new report from New Frontier data projects that by 2020, the legal cannabis market will create more than a quarter of a million jobs. This is more than the expected jobs from manufacturing, utilities or even government jobs, according to the Bureau of Labor Statistics. The BLS says that by 2024 manufacturing jobs are expected to decline by 814,000, utilities will lose 47,000 jobs and government jobs will decline by 383,000. This dovetails with data that suggests the fastest growing industries are all healthcare related.

The legal cannabis market was worth an estimated $7.2 billion in 2016 and is projected to grow at a compound annual growth rate of 17%. Medical marijuana sales are projected to grow from $4.7 billion in 2016 to $13.3 billion in 2020. Adult recreational sales are estimated to jump from $2.6 billion in 2016 to $11.2 billion by 2020. New Frontier bases these projections on the markets that have already passed such legal initiatives and don't include additional states that could come on board by 2020....

“These numbers confirm that cannabis is a major economic driver and job creation engine for the U.S. economy,” said Giadha Aguirre De Carcer, Founder and CEO of New Frontier Data. “While we see a potential drop in total number of U.S. jobs created in 2017, as reported by Kiplinger, as well as an overall expected drop in GDP growth, the cannabis industry continues to be a positive contributing factor to growth at a time of potential decline. We expect the cannabis industry’s growth to be slowed down to some degree in the next three to five years, however with a projected total market sales to exceed $24 billion by 2025, and the possibility of almost 300,000 jobs by 2020, it remains a positive economic force in the U.S.”

New Frontier based its projections on analysis from the Marijuana Policy Group which was hired by Colorado for an economic analysis. According to annual surveys of cannabis professionals by the Marijuana Business Daily, the industry already employs 100,000 to 150,000 workers and nearly 90,000 are in plant-touching companies....

Many employees in the industry seem thankful for their jobs and are genuinely happy with their employment. The alternative culture appeals to many who have no interest in cubicle jobs or working for a big corporate giant. It is increasingly pulling professionals from more traditional industries who are looking for new challenges and different work environments. “The governments and the programs that they've instilled into these (legalized) states have created great job opportunities and excellent business opportunities for entrepreneurs,” said Mark Lustig, Chief Executive Officer of CannaRoyalty. “They've created the right competition.”

February 22, 2017 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)

Tuesday, February 7, 2017

Notable commentators making notable arguments against marijuana legalization

2014_0128_hudson_headshots_2356The Weekly Standard has this notable new commentary authored by John Walters (pictured here), David Murray and Brian Blake under the headline "The Risky Business of Commercial Marijuana."  The authors are notable because they all served in the Office of National Drug Control Policy during the George W. Bush administration, and because there is some talk of Walters serving as the "Drug Czar" in the Trump Administration.  The commentary is notable for a few curious arguments made against marijuana reform, although the piece is styled as a warning to those who might be inclined to invest in the marijuana industry.  Here are the excerpts that I found curious:

[L]egalization advocates have pointed to surging support for legal, recreational marijuana as found in public polling—reaching 60 percent positive, according to recent opinion results.

Beyond concerns over the reliability of polling projections, positive opinion polls on marijuana are of recent vintage, occurring in the midst of an eight-year period where our nation was led by an Administration that downplayed marijuana's threat, tacitly approved of its state-level legalization, and made no effort to enforce federal law.

Greater acceptance of legal marijuana has also been sustained, if not propelled, by irresponsible cheerleading in the press. Most importantly, this support has been built on assertions that are clearly not true....

As the key arguments for legal marijuana collapse, the public will increasingly confront a much darker reality as escalating reports of harms become inescapable.

There is already evidence that support for legal marijuana is much softer than the advocates assert. Candidates in the last election cycle expecting political support from libertarian conservatives or hoped-for hordes of pro-marijuana college youth, found that they failed to materialize in sufficient numbers to prevent defeat, a lesson that proved costly for the Democratic party....

Investors seeking hot prospects may be better served by ignoring the flashy market assessments issued by investment firms, who really should know better. The position is worsening as more bad news comes in from legalizer states....

All of the dangers have been known for some time — visible to anyone who ignored the hype and paid attention to the drug-dealing facts. Certainly adding to these concerns is the new uncertainty regarding marijuana enforcement in the sharply altered political landscape created by the most recent election. Investors beware.

Elsewhere in the commentary, these authors make reasonable (though debatable) arguments that marijuana legalization does not really address mass incarceration or eliminate the black market to prevent youth access as reformers promise. But the notion of a "darker reality [with] escalating reports of harm" as "more bad news comes in" seems more than a bit too dystopian in light of lots of positive reports emerging from Colorado and Washington. And pointing to the last election cycle to claim that "support for legal marijuana is much softer than the advocates assert" whistles past the critical reality that recreational marijuana prevailed in four out of five state in November 2016 (including California and Massachusetts) and that medical marijuana won big in four red states.

That all said, if the authors of this commentary have a central role in deciding federal policy in the new Administration, the final two sentences quoted above are very significant and the final word say it all: "beware."

February 7, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, February 6, 2017

"State Legalization of Marijuana and Our American System of Federalism: A Historio-Constitutional Primer"

The title of this post is the title of this notable new paper authored by Brian Blumenfeld now available via SSRN. Here is the abstract:

Federal law, pursuant to the Controlled Substances Act, maintains a strict criminal prohibition on marijuana use of any kind.  In states that have legalized marijuana, and in states proposing to do so, a fundamental conflict arises between federal powers and state sovereignty.  This conflict implicates some of the most vital aspects of the structural constitution: the Commerce Power, the Necessary and Proper Clause, the anti-commandeering doctrine, and Supremacy Clause preemption.

In recent years a healthy scholarship has emerged to wrestle with the subject, providing insightful commentary and argument, but missing in the literature is an unabbreviated account of the major features of federalism that frame the legalization controversy.  Also missing is a historical background situating the CSA's marijuana prohibition within the American political-legal tradition.

This article provides the reader with an extensive constitutional and historical foundation for understanding what is now recognized as "the most pressing and complex federalism issue of our time."

February 6, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)