Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, April 28, 2016

"Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle"

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

This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws.  I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion.  I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes.

I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States.  I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine.  Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.

April 28, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, April 27, 2016

NY Times debates "Is Marijuana a Gateway Drug?"

The Room for Debate section of the New York Times yesterday had an interesting quartet of pieces discussing marijuana reform focused on the "gateway drug" notion. Here is the section's introductory set up:

The drive to marijuana legalization has grown more powerful as the crisis of heroin and opioid addiction has become more troubling. Now some officials say efforts to legalize marijuana should stop because, they say, greater availability would increase use and marijuana can be a gateway to the use of other drugs.

But is marijuana a gateway drug and, for that reason, should it remain illegal?

Here are the contribututions, with links via the commentary titles and the brief summaries provided by the Times:

April 27, 2016 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, April 22, 2016

"Blazing Billables: State Laws Expand Pro-Pot Legal Work"

The title of this post is the title of this recent lengthy American Lawyer article which in part explains why I think my novel marijuana law and policy law-school class may not be all that novel in the coming years.    Here is how the piece gets started:

On April 20, which each year marks the unofficial “420” holiday for marijuana enthusiasts worldwide, lawyers at big firms across the country spoke with The Am Law Daily about their work in the burgeoning field of semi-legal weed.

Though still not allowed under federal law, rapidly changing state regulations have created a relatively new industry worth roughly $5.7 billion. Clients looking to get involved in funding, growing or selling cannabis are calling upon lawyers to handle venture capital, finance, intellectual property, real estate, employment and regulatory work.

Am Law 200 firms have approached this industry with varying degrees of discretion. T hompson Coburn has a blog, Tracking Cannabis, Seyfarth Shaw has one too in The Blunt Truth and Dykema Gossett will also have one soon.  Fox Rothschild managing partner Mark Silow praised the cannabis work of the four-partner group his firm hired in Chicago from Nixon Peabody when the team was brought on last year.  

“I don’t think the firm’s ever been shy to put it out there that we’re entrepreneurial,” said Fox Rothschild partner Joshua Horn.  The co-chair of his firm’s securities industry practice, Philadelphia-based Horn is also a member of the National Cannabis Bar Association, which was formed last year.  On Sunday, Pennsylvania became the 24th U.S. state to legalize medicinal marijuana, so, as opposed to his partners in Illinois, Horn said he hasn’t put in much cannabis work near home.  The Pennsylvania Bar Association has yet to officially authorize an ethics rule change that would protect lawyers working in this industry, as noted this week by sibling publication The Legal Intelligencer.  But Horn said he is increasingly helping clients in other states raise capital to finance their cannabis ventures.

Baker & Hostetler corporate partner Randolf Katz is also doing marijuana finance work in California, where voters could approve the recreational use of marijuana in November. Katz said his clients are increasingly drawn to pot startups.  “One fund was pretty heavily in it,” he said, referring to a client. “Another fund, in the past year, has sent over probably six to eight different potential investments for us to take a look at that are marijuana-related companies.”

April 22, 2016 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, April 20, 2016

Lots of notable marijuana headlines on a day often associated with marijuana

The Huffington Post  has this piece explaining why today's date is considered special in the minds of many marijuana fans.  For me, what is special today is how many interesting marijuana policy and reform stories can be found in major (and not so major) media outlets.  Here is just a sample: 

  • From ABC News here, "Man's Jail Death Adds New Face to Debate on Marijuana Laws"

  • From the Canadian Broadcasting Corporation here, "Federal marijuana legislation to be introduced in spring 2017, Philpott says: Health minister in New York for UN talks to review global drug treaties"

  • From CBS News here, "Marijuana use and support for legal marijuana continue to climb"

  • From the Daily Caller here, "Support For Marijuana Legalization Soars To 56 Percent Nationally"

  • From a FOX affiliate in Denver here, "Marijuana money might have saved small Colorado town from 'abyss of nothingness'"

  • From the International Business Times here, "After Years Of Petitions And Protests, Marijuana Group DCMJ Says It's Meeting With Obama Staffers At The White House"

  • From the New York Times here, "Marijuana Legalization in New England Is Stalled by Opiate Crisis"

  • From Quartz here, "America's weed industry is going to be massive. Is Big Marijuana a good thing?"

  • From Rolling Stone here, "What Will Rescheduling Marijuana Mean for the Pot Industry?"

  • From the Sacramento Bee here, "On 4/20, marijuana legalization headed for California ballot"

  • From the Wall Street Journal here, "Mexican President Backs Legalizing Marijuana for Medical Use"

  • From Wired here, "A New Crop of Marijuana Geneticists Sets Out to Build Better Weed"

April 20, 2016 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Exploring how to impact the hearts and minds of bellwether Buckeye voters concerning marijuana reform

Perhaps fittingly, the final student presentation planned for my Ohio State College of Law marijuana reform seminar is focused on "efforts to change the hearts and minds of Ohio voters when it comes to marijuana reform."  Here is how the students have described their project and the materials they have assembled to this end:

Our project is focused on connecting with the average Ohioan who does not and has not used marijuana, in order to dispel any myths or prejudices that he or she might hold.  The goal is to inform the populace about the virtues of marijuana reform before they vote on another bill/initiative so that they are primed to vote yes on the merits. The articles include what the polls say about Ohio's desire for legal marijuana, a Vice video about moms returning to marijuana consumption after years rebuking it, and some materials concerning compelling organizational tactics for reformers including strategies used for legalization initiatives:

"Ohio voters support marijuana legalization, poll finds"

"Stoned Moms"

"How marijuana legalizers are winning the battle for hearts and minds"

"The Key To Rebranding Cannabis Is More Soccer Mom And Less Bob Marley"

"The inside story of how marijuana became legal in Colorado"

Summer 2014 Prospectus by The Strategy Network describing ResponsibleOhio's plans for "2015 Ohio Marijuana Legalization and Regulation"

April 20, 2016 in Assembled readings on specific topics, Initiative reforms in states, Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, April 18, 2016

Recurring themes from Day 1 of the Cannabis Science and Policy Summit

As noted in this prior post, we here have the pleasure and honor of having Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law,  provide reports and thoughts on-site from the The Cannabis Science and Policy Summit now going on in NYC.  Here is his dispatch after the end of the summit's first day:

Some recurring themes today:

* It's easier to heavily regulate marijuana at the outset and then loosen the rules over time than to do the reverse.  Loose regulations become entitlements and entrenched interests will fight like hell to keep them form disappearing.  Andrew Freedman made the great point that once you have marijuana businesses complying with regulation, they'll be your allies when others want them weakened (because they benefit under the extant rules).

* Taxation should start relatively low (to kill the black market) and then ratchet up (or titrate, one of the words of the day) as legal marijuana is able to compete on price with the black market.

* Big marijuana is on everyone's mind and is the official boogeyman of the festivities.  The 80/20 rule and its variants was invoked over and over.  How to fix it?  Government monopoly (at least on distribution), non-profit models, advertising bans, etc.

* A marijuana regulatory system should provide the amount of marijuana for which there is current demand; it shouldn't create new demand.

* We don't know much about interactions — with alcohol, with opiates, with tobacco — as we legalize marijuana. But those effects will be important if, as most people expect, legalization will lead to more marijuana usage.  If it leads to less usage of other drugs, the harms are lessened; if other usage goes up or stays flat, increased marijuana usage is much more problematic.

* There is lots of concern about increased potency and I'm not sure it's warranted. High potency is not bad in itself; it means less smoking and that's a boon for health rather than a threat. Also, if we're talking about marijuana concentrates, the production process is incredibly dangerous if done at home, and if there's demand for concentrates, it probably makes sense to service that demand through a regulated market.

Prior post:

Cannabis Science and Policy Summit: on-site reporting from the Vicente Sederberg Professor of Marijuana Law and Policy

April 18, 2016 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Sunday, April 17, 2016

Cannabis Science and Policy Summit: on-site reporting from the Vicente Sederberg Professor of Marijuana Law and Policy

Download (1)I invited Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, to provide some reports or thoughts about his experiences today and tomorrow as he is participating in NYC at the The Cannabis Science and Policy Summit. Here is the first of what I hope might be a few on-site report from a very informed participant in this event:

The morning started with a cautionary tone. Jonathan Caulkins gave a plenary talk on the dangers of a profit-driven marijuana market. His thesis was that 25 years from now, policy makers will look back on this period and wonder what on earth we were thinking.

* He showed that half of marijuana is consumed by those who use daily and that, as with any industry, there will be a push from industry to grow that group.

* He argued that Americans spend 40 billion hours per year stoned and that we could easily expect that to double post-legalization.

* He called marijuana a performance-degrading drug. There's a reason we don't test chess players for pot to be sure they're not cheating.

In the questions and discussions in the hallway afterward, talk focused on possible alternatives to a market-driven legal market. The most concrete was David Courtwright's invocation of Sweden's Gothenburg public house regulatory system (limited number of licenses, a limit on maximum profits, etc.) as a model for marijuana regulation that minimizes social harm.

A fascinating (to me) issue is whether there is room for legalization's opponents (groups like SAM and policy wonks like Caulkins) and the cannabis true believers who started all this (DPA, MPP, NORML, etc.) to join forces against Big Marijuana.  Talking to Dan Riffle, I compared this to the Never Trump movement.  No one (except the eventual winners, whoever they will be) wants corporate marijuana, which looks like the front-runner at the moment.  The question will be whether various opponents, coming at that place from different directions, can find sufficient common ground to organize against the juggernaut and whether they can do so before things become inevitable.

For the record and to be a bit of an iconoclast, I consider myself something of a supporter of "corporate marijuana" at least in the short term for a couple of reasons.  First and foremost, in the arena of medical marijuana, I think we will only get lots and lots of needed dynamic and aggressive research on the potential of the cannabis plant if there is a significant profit motive driving the research. Second and not to be overlooked, I think there can and should be more external benefits (like job growth and tax revenue) flowing from a commercial marijuana marketplace if (and this is a big if) government if focused mostly on aggressively regulating the marijuana industry rather than excessively seeking to control/hamper its innovative tendencies.

April 17, 2016 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, April 15, 2016

New group, Doctors for Cannabis Regulation, with prominent physicians pushing to end pot prohibition

This notable new article from the Washington Post, headlined "More and more doctors want to make marijuana legal," reports on a notable new group starting to advocate for the ending of federal marijuana prohibition.  Here are the details and context:

A group of more than 50 physicians, including a former surgeon general and faculty members at some of the nation's leading medical schools, has formed the first national organization of doctors to call on states and the federal government to legalize and regulate the use of marijuana in the interest of public health.

The group — which is announcing its formation Monday, under the name Doctors for Cannabis Regulation (DFCR) — is endorsing the legalization of marijuana for adult recreational use, a break from the position of the American Medical Association, the largest organization of doctors in the country. DFCR argues that the prohibition and criminalization of marijuana use does more harm to the public than good. Citing hundreds of thousands of annual marijuana arrests, racial and economic disparities in marijuana enforcement, and the role of prohibition in keeping marijuana prices high and lucrative to violent drug dealers, the physicians say that creating a legal and regulated marijuana market is the best way to ensure public safety, combat the illicit drug trade and roll back the negative consequences of strict enforcement policies on disadvantaged communities.

The emergence of the group comes at a crucial moment in the national debate over marijuana legalization. More than 60 percent of the public now says that it supports marijuana legalization. Support for allowing medical use of marijuana with doctors' supervision is closer to 90 percent. Over 35 million Americans use marijuana recreationally each year, according to the latest federal statistics. Research organizations, medical groups and even many national lawmakers have called on federal authorities to revisit policies toward marijuana that have remained essentially unchanged for nearly 50 years.

"You don't have to be pro-marijuana to be opposed to its prohibition," DFCR founder and board president David L. Nathan said in an interview. Nathan is an associate professor at Robert Wood Johnson Medical School at Rutgers University and a distinguished fellow of the American Psychiatric Association. He's quick to point out that his group does not advocate for the use of marijuana: While researchers generally agree that marijuana use is less harmful to individuals and society than the use of other common drugs, like alcohol and tobacco, about 9 percent of people who begin using as adults become dependent on the drug, and heavy use can be especially harmful to the developing brains of adolescents.

Rather, Nathan says, the best way to manage those risks is to bring use of the drug, as well as the associated commerce in it, out into the open via regulation. "Doctors should affirmatively support this," he said. "If you’re going to make something against the law, the health consequences of that use have to be so bad to make it worth creating criminal consequences. That was never true of marijuana. It was banned in 1937 over the objections of the American Medical Association (AMA)."

Indeed, in 1937, the AMA objected to the overly strict regulation of marijuana, as it was then used as a treatment for a number of medical conditions. The Association was worried that prohibition of marijuana would "deprive the public of the benefits of a drug that on further research may prove to be of substantial value."

After the passage of the "Marihuana Tax Act," marijuana "just wasn't that well-known among doctors," Nathan said. Many doctors were unaware that the drug essentially outlawed by the Marihuana Tax Act was the same substance they knew as "cannabis," which they used to treat a variety of ailments from corns to poor appetite. In subsequent years, physicians were just as susceptible to lurid media reports about the supposed dangers of marijuana use and the "Reefer Madness" era as anyone else.

Like most mainstream medical groups, the AMA is now opposed to the outright legalization of marijuana, calling it a "dangerous drug" and "a public health concern." But the group's stance has evolved in recent years. It recently added language to its position statements calling for "the modification of state and federal laws to emphasize public health based strategies," rather than punitive, incarceration-based measures. The group now encourages research into the drug, and has called on federal authorities to make it easier to do so....

Not all medical professionals are happy about relaxing attitudes toward what they see as a dangerous, addictive drug. The notion of doctors advocating for marijuana legalization is "totally idiotic," said Robert DuPont, who served as the first director of the National Institute on Drug Abuse and as the second White House drug czar, in an interview. "The idea that we cannot manage the health problems related to marijuana because it's illegal, that doctors are somehow inhibited from dealing with marijuana use and marijuana problems, is completely wrong."

"The idea that legalizing is going to stop the illegal market is equally stupid," he added. DuPont thinks that the current legal status of marijuana is sufficient to address the risks associated with marijuana use, and that punitive measures for drug sellers and users can be a powerful tool for helping at-risk people get treatment. "The criminal justice system is a wonderful vehicle for getting people into treatment and recovery," he said....

Much of the discussion around marijuana legalization, among doctors and the general public alike, hinges on different assessments of the same data showing the risks and benefits of changing marijuana laws. Groups like the AMA are concerned that legalization would lead to more widespread use of the drug, which would invariably mean greater prevalence of the negative health consequences associated with its use, like dependency and some mental illnesses that may be exacerbated by the drug's use.

But groups who favor legalization, like DFCR, point out that negative outcomes arise from the current system of prohibition, too. They say that the presence of a large black market, the stigmatization of individual users, and the potentially life-ruining effects of a marijuana conviction, are steep prices to pay for the nominal reduction in overall use that comes with prohibition.

In 2011, the California Medical Association, which represents 40,000 doctors in the state, became the first doctors' group to call for the full legalization of marijuana. They recently went a step further, explicitly endorsing a measure to appear on the ballot this November that would legalize marijuana and create a commercial market for it in the state. "Medical marijuana should be strictly regulated like medicine to ensure safe and appropriate use by patients with legitimate health conditions and adult-use marijuana should be regulated like alcohol," the group's president said in a February statement.

DFCR hopes to make a similar case among doctors at the national level, and to win over skeptics like DuPont and Friedmann. "We want to build a group of physicians who are going to be out in the public making the case for marijuana legalization to physicians, medical associations and the public at large," Nathan said.

The website for the DFCR is already in operation and has some interesting content.  I especially liked this interesting page discussing the personal history and work of William Creighton Woodward, which includes this introduction:

In the 1937 hearings for the Marihuana Tax Act, Dr. Woodward defended the AMA’s position that cannabis should be regulated but not prohibited. In his lengthy testimony, he refuted the hyperbolic claims put forward by the proponents of marijuana prohibition, offering a prescient view of how our society should handle drug addiction in general, and marijuana in particular. There is much we can learn from this early, learned proponent of an evidence-based national cannabis policy, and extracts of his testimony are included below.

April 15, 2016 in Medical community perspectives, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, April 8, 2016

Public Policy Institute of California releases new report: "Regulating Marijuana in California"

Logo (1)The Public Policy Institute of California (PPIC), which describes itself as a "nonpartisan think tank ... dedicated to informing and improving public policy in California through independent, objective, nonpartisan research," has released this notable new report titled "Regulating Marijuana in California." Here is the heart of the report's summary:

This report does not consider the wisdom of marijuana legalization. Instead, it takes the view that, if recreational marijuana use becomes legally sanctioned, then the debate must turn to how to design regulations that reconcile important, but differing policy goals. These include, among others, limiting the impact of the illegal marijuana market, reducing harm to public health and safety, and raising revenue for the state.

The report explores the approach Washington and Colorado have taken to regulating recreational marijuana markets. These two states have histories of legal recreational marijuana that, though brief, are the longest in the nation.

What lessons can be gleaned from these experiments? Both states have designed mechanisms to track legal cultivation and production, thereby reducing the diversion of marijuana to the illegal market. They also tax marijuana transactions, collecting tens of millions of dollars in revenue. And it appears that neither overall use nor use by young people has risen dramatically. However, as in California, levels of use were already higher in those states than in the rest of the country.

To limit the impact on public safety, both Washington and Colorado established legal definitions of drugged driving. Since then, in both states, greater numbers of people have been charged with driving under the influence. Nonetheless, it is impossible to determine whether those increases mean drugged driving has become more prevalent or that law enforcement is more vigorous. In addition, the change in marijuana’s legal status challenges drug abuse prevention specialists to develop effective messages.

The short experience with legal recreational marijuana in Colorado and Washington and the lack of data on California’s marijuana market make it difficult to derive policy recommendations. However, from a governance perspective, it is possible to draw some general lessons for California. Three in particular stand out: (1) Both Colorado and Washington significantly adjusted marijuana regulation shortly after legalization. We suggest that California approach legalization with an eye toward flexibility. The regulatory process should be designed to facilitate needed changes. (2) Such an adaptable regulatory model will require a mechanism for collecting data on the marijuana market and evaluating the consequences of use. A strong and transparent reporting system will help ensure that future changes are based on solid research and analysis. (3) Finally, this is a venture into uncharted territory, and marijuana remains illegal under federal law. These considerations suggest that California should err on the side of caution and adopt a relatively restrictive regulatory model for both the recreational and medical markets. A tight, single market will make marijuana laws easier to enforce and to reduce diversion to other states and underage users. To be sure, a highly regulated legal market will undoubtedly be accompanied by a robust illegal market. From a political perspective though, it will be easier to loosen a tight market than to tighten a loose one.

April 8, 2016 in Initiative reforms in states, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, April 6, 2016

How does the legalization of marijuana in the US impact Mexican cartels?

The question in the title of this post is the query to be explored by an LL.M. student in my seminar this week. Here are the suggested background readings and materials she provided to set up this important topic:

Is the legalization of marijuana a better solution than a war on drugs?

My presentation focuses on the impact that the legalization of marijuana in the US is having in Mexico which is the biggest supplier of marijuana. Also, if the legalization of marijuana is a better solution that the drug war and how the US is supporting Mexico on this drug war. These are the articles I recommend my classmates to read:

U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond

Marijuana legalization is already making Mexican drug cartels poorer

Mexican marijuana farmers see profits tumble as U.S. loosens laws

April 6, 2016 in History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

How will marijuana legalization affect the Fourth Amendment and the agents who utilize it?

The question in the title of this post is posed by a student in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform as a preview to his in-class presentation/discussion on Fouth Amendment doctrines.   The student has authored this preview blurb to go along with links to assembled background reading:

Warrantless searches are per se unreasonable subject only to a few specifically established and well-delineated exceptions.  Over the last several decades, many of these exceptions to the protections of the Fourth Amendment have either revolved around or are tied to the presence of marijuana.   The “Plain Smell” or marijuana from an officer is firmly supported among circuit courts as sufficient for granting probable cause for a search.  The Supreme Court has upheld the use of drug detection dogs during traffic stops to generate probable cause to search a vehicle.  When there is marijuana in a location where marijuana is illegal, police officers have a justification for a warrantless search.

With the current legalization of marijuana in many jurisdictions, these established exceptions and practices are being turned on their heads.  However, the movements away from these established practices are inconsistent and uncoordinated.  When dealing with drug detection dogs, some agencies are retiring established dogs and training new ones while some agencies are attempting to retrain their established dogs.  But the proper course of action is legally and procedurally uncertain.  To retire and retrain is expensive while it is unknown whether a drug detection dogs will remain effective upon retraining or if they can even be retrained.  Is it impossible to teach an old dog new tricks?

Two articles on what is happening to drug dogs in jurisdictions where marijuana has been legalized:

"What Good Is A Pot-Sniffing Dog When Pot Is Legal?"

"Vermont police dogs no longer trained to detect marijuana"

An article which further examines marijuana legalization on drug dogs and wades into the discussion of automobiles searchs on the basis of marijuana:

"Marijuana Legalization Regimes and the Evolving Fourth Amendment"

How medical marijuana legalization has affected the probable cause generating effect of marijuana odor in Arizona:

"Scent of Marijuana Alone Not Enough for Search Warrant, Appeals Court Rules"

April 6, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, April 5, 2016

Looking closely at the history of marijuana propaganda

As students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform continue assembling readings on particular topics in preparation for an in-class presentation/discussion, this week we have a student taking a deep dive into marijuana propaganda past and present.  Here are links to assembled resources and his summaries:

"Reefer Madness: Mid-Century Anti-Marijuana Propaganda In Movies And Books"

This article provides a good timeline of early Marijuana propaganda and identifies some of the common themes underlying public marijuana education through the 1950s.  It also discusses the themes of racism underlying early marijuana advertising.

"From the Devil’s Lettuce to the Dropout Drug: The Evolution of Reefer Madness Propaganda"

Identifying the changing themes of government propaganda over the years.  Beginning with violent crime, shifting to laziness, health concerns, gateway drugs, and eventually focusing on youth access to marijuana in the modern day.  This article showcases the ways that government sponsored marijuana education has changed over the years as public perception of the drug also changes.

"In Debate Over Legalizing Marijuana, Disagreement Over Drug’s Dangers"

A Pew Research study showcasing attitudes towards marijuana based on age. A correlation can be drawn between reasons that a certain age group opposes legalization and the messages presented during their time.  The Silent Generation who was coming of age during Reefer Madness opposes legalization because of the perceived violent nature of marijuana, while members of Gen X oppose legalization because of the perceived health risks presented by marijuana.  A relation to their exposure to the “Your Brain on Drugs” campaign during the ‘80s.

"Ten Nights in a Bar Room vs. Reefer Madness"

Finally, a video I edited to try and capture the essential themes and messages presented in both Reefer Madness and Ten Nights in a Bar Room.  The two films have been edited down to try and present only the biggest anti-marijuana/alcohol themes in the movies.  If fellow classmates would like a brief introduction to what marijuana education looked like in the ‘30s I would hope this properly captures and showcases the political climate at the time.

April 5, 2016 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

"Big Marijuana": The Next "Big Tobacco" in 21st Century Modern Media?

The question in the title of this post is the query that defines the work of one of my seminar students who will be presenting on this topic to the rest of the class this week. Here is his suggested background readings and materials to set up this important topic:

General Overview Material

SAM: Big Tobacco 2.0 – Big Marijuana

"Kennedy: Are We Ready For Big Tobacco-Style Marketing For Marijuana?"

 

Background on "Big Tobacco" Regulation

FDA v Brown and Williamson, 529 U.S. 120 (2000).

 

First Amendment / Online Marijuana Advertising/ Commercial Speech Doctrine 

"Does The First Amendment Protect Marijuana Ads?"

"Marijuana Ads Banned On Google, Facebook And Twitter"

"Minnesota marijuana company battles Google over rejected ads"

Brown v Entertainment Merchants Assn., 564 U.S. ___ (2011).

 

Marijuana Perspective on Video Game Advertising targeted toward Marijuana Users

"The History of Marijuana and Video Games"

"How the F.B.I. Made 'Winners Don't Use Drugs' the Arcade Motto of the '90s"

April 5, 2016 in Assembled readings on specific topics, Business laws and regulatory issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, April 4, 2016

Senators Grassley and Feinstein convening hearing on whether DOJ is "Adequately Protecting the Public" from state marijuana reforms

This recent press release from US Senate's Caucus on International Narcotics Control details that this caucus has a hearing scheduled to explore how the federal government is keeping an eye on state-level marijuana reforms. (Exactly what this has to do with international control is unclear, but big-government drug warriors on both sides of the political aisle like Senators Grassley and Feinstein have never really been too keen to worry about limiting government growth in this arena.)  Here are the basic details on what is prompting this hearing:

Sen. Chuck Grassley, Chairman of the Judiciary Committee and the Caucus on International Narcotics Control, and Sen. Dianne Feinstein, Co-chairman of the Caucus on International Narcotics Control, will hold a hearing entitled, “Is the Department of Justice Adequately Protecting the Public from the Impact of State Recreational Marijuana Legalization?”

In August 2013, the Obama Administration decided to effectively suspend enforcement of federal law on marijuana in states that legalized it for recreational use. But to disguise its policy as prosecutorial discretion, the Administration also announced federal priorities that it claimed would guide its enforcement going forward. These priorities include preventing marijuana from being distributed to minors, stopping the diversion of marijuana into states that haven’t legalized it, and preventing adverse public health effects from marijuana use. At the time, the Justice Department warned that if state efforts weren’t enough to protect the public, then the federal government might step up its enforcement or even challenge the state laws themselves. This put the responsibility on the Department of Justice to monitor developments in these states, develop metrics to evaluate the effectiveness of its policy, and change course if developments warranted.

But a report from the Government Accountability Office that Grassley and Feinstein requested found that the Administration doesn’t have a documented plan to monitor the effects of state legalization on any of these priorities. Moreover, according to the report, officials at the Department could not even say how they make use of any information they receive related to these priorities. Grassley and Feinstein are convening this hearing to explore this problem.

What I find most notable and disconcerting about this hearing is that it claims to be exploring whether the big federal government bureaucrats inside the Beltway at DOJ who are very far removed from direct public accountability are "protecting the public" from state reforms in Alaska and Colorado and Oregon and Washington which were enacted directly by the public through voter initiatives.

April 4, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, March 31, 2016

How will legalization of marijuana effect sports leagues policies regarding marijuana use?

The question in the title of this post is posed by one of my seminar students who will be presenting on this topic to the rest of the class this afternoon.  Here is introduction for his colleagues and others interested in this engaging query:

Many players are pushing towards open marijuana policies because of the potential health benefits of marijuana use. Players argue that they can be taking marijuana instead of other synthetic pain killers to keep them on the field or court.  The players arguments generally fall on deaf ears, the league doesn't want to have any of it.  

Here’s why; The league is concerned about its image.  In the code of every sports league is the phrase, “integrity of the game.” In other words, the league has the responsibility to uphold the integrity of the game.  This applies to players conduct both on and off  the field.

For conduct on the field, the league is concerned that marijuana use will effect players ability to play the game.  The players abilities may become diminished by the use of marijuana which in turn would diminish the competitive integrity of the game.  What if marijuana use improved players ability to play the game – would the league ban it similar to steroids or would the league embrace it because it makes the game more exciting?  (Marijuana does not have the negative consequences typically associated with steroids, an argument for  allowing its use.)

For conduct off the field, the league is concerned about its image. Every league has “body image issues.”

  • NFL – Ray Rice, Adrian Peterson, Josh Gordon
  • NBA – Donald Sterling…
  • Olympics – Michael Phelps

The list goes on and on. The leagues want to keep a sterling image and the concern is that allowing marijuana use will taint their image. They are unlikely to move until marijuana use is more accepted. Its just good to keep things how they are for business purposes. They don't want to alienate fans.

On the other hand, leagues have  incredible ability to shape policy.  The leagues may even pave the way for legalization and normalization of marijuana use to treat pain if they would embrace the players requests. The more medical discovery regarding concussions and other ailments and its treatment of marijuana the more likely the leagues will become a factor in this arena.

Maybe even some leagues will fund a study?

Other interesting articles:

March 31, 2016 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Sports | Permalink | Comments (0)

Wednesday, March 30, 2016

Is Vermont about to "change the marijuana legalization game"?

The question in the title of this post is drawn from the headline of this new Washington Post piece headlined "How Vermont could change the marijuana legalization game," and which serves as a fitting as a fitting follow-up to my student's recent class presentation, Looking closely at how Vermont legislature is looking closely at marijuana legalization.  Here are excerpts from the Post piece:

Over the past four years, marijuana legalization has come to the United States at a relatively fast pace, thanks to overwhelming support for it among young adults.  But up until now, change has mostly come from the voters -- sometimes in spite of lawmakers' wishes.

That balance could be shifting toward legislators, at least in one state: Vermont.  In the next few weeks, Vermont could become the first state legislature to legalize marijuana. At Gov. Peter Shumlin's (D) urging, a bill to make Vermont the fifth state to legalize recreational marijuana passed the state Senate in February and is currently being debated in the state House.

Its passage is not a given, but marijuana advocates are optimistic, both about the bill's chances and Vermont's ability to inject the marijuana legalization debate into even more state legislatures. For some marijuana advocates, the statehouse is yet one more path to legalization....

In 2004, Vermont was one of the first states to legalize medical marijuana through its state legislature.  Since then, another one-fifth of the country has followed suit....

If Shumlin signs the bill this summer, Vermont residents won't be able to buy marijuana legally until January 2018.  For the first few years, the state will also limit the number of marijuana licenses for selling and growing marijuana.  In addition, public schools in Vermont would receive state-mandated drug education programs about marijuana a full semester before it's legal.

The slow, methodical approach to legalization is the main difference between Vermont and other states that legalized it via ballot initiatives, said Matt Simon, the New England head of the Marijuana Policy Project, which is lobbying for the bill's passage.  Lawmakers will give themselves and state agencies plenty of time to prepare, train staff and come up with new regulations.

There are a few other ways Vermont's bill stands out: After watching Colorado struggle with how to regulate edibles, Vermont won't be legalizing those at all. Lawmakers also resisted marijuana advocates' lobbying to allow people to grow marijuana plants in their own homes.  And if you want to invest in one of Vermont's marijuana stores, you'll have to move to the state and become a resident; no out-of-state funding is allowed.

Overall, Simon's group is happy with the bill and just as happy that Vermont is the first serious attempt to legalize marijuana via lawmakers and not voters.  (At least one other state, Rhode Island, is considering a bill to legalize marijuana, but it's too early to tell whether that bill has a shot.  New Hampshire's state House became the first chamber of any state legislature to vote on legalization when it narrowly passed a bill in 2014 but it died in the state Senate. Advocates tried again this February; it was defeated.)...

Ballot initiatives are the go-to method for marijuana legalization advocates for a reason.  For one thing, advocates can shape the policy they want instead of trying to lobby lawmakers.  And they've been pretty successful when it comes to marijuana.  Outside of the outlier of Ohio, advocates' only notable defeat by ballot was in Oregon in 2012 -- and voters there legalized marijuana two years later.

There is also the simple fact that lawmakers with jobs on the line are less apt to get ahead of social change.  Should the nascent recreational marijuana experiment go sideways, lawmakers would rather not have that vote on their records.  Take same-sex marriage, for example.  Most of the state legislatures that approved same-sex marriage didn't do so until around 2013, when polls showed more than half the country supported it....

Putting legalization to a vote is especially popular in a presidential year, when advocates can piggyback on the higher turnout and more intense media coverage.  This year, Arizona, California, Nevada, Ohio, Maine and Massachusetts are all expected to have some kind of legalization question on their ballot, whether medical or recreational. 

But ... researchers have argued that ballot initiatives risk glossing over boring-but-important details, which so happen to be the very same information lawmakers spend countless hours chewing over.   "Ballot initiatives are a terrible way to make policy changes when the technical details matter," wrote drug policy expert Mark Kleiman in 2014.  Kleiman ran Washington's regulation team after voters there legalized it in 2012.  Without lawmakers' input at both the state and federal level, Kleiman envisioned a not-too-distant future where the cannabis industry has an undue amount of power to shape legalization.  And that, he says, is reason for even reluctant lawmakers to get off the sidelines on legalization....

Opponents to legalization argue the cannabis industry already has too much influence, no matter who legalizes marijuana.  "My biggest concern is creating Big Marijuana -- sort of like Big Tobacco," Kevin Sabet, a former drug policy official with the Obama administration and president of Smart Approaches to Marijuana, or SAM, told Vox in March . SAM argues the same players that are active in ballot initiatives are funneling resources to shape Vermont's debate, so there's no real substantial difference in what Vermont lawmakers are considering to what Colorado or Washington voters decided.  "It's a distinction without a difference," said Jeffrey Zinsmeister with SAM.

March 30, 2016 in Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Libertarian Prez candidate Gary Johnson predicting Prez Obama will deschedule marijuana

This new Washington Times article, headlined "Gary Johnson predicts Obama will reclassify marijuana on way out of office," reports on some interesting comments by one candidate aspiring to be in the Oval Office about what its current occupant will do before he leaves. Here are the details:nbsp;

Former New Mexico Gov. and 2016 Libertarian White House hopeful Gary Johnson says he thinks President Obama is going to remove marijuana from the government’s “Schedule I” list of narcotics considered particularly harmful and addictive on his way out of office.

“It’s going to be just like alcohol,” Mr. Johnson told The Washington Times Tuesday. “I’m going to predict that Obama, when he leaves office, is going to deschedule marijuana as a Class I narcotic. I wish he would have done that to this point, but I think he’s going to do that going out the door. That’s a positive.”...

Democratic presidential front-runner Hillary Clinton, among others, has suggested reclassifying the drug under Schedule or Class II. Those drugs include cocaine, but also certain painkillers like oxycodone that are available with a medical prescription.

Mr. Johnson’s campaign followed up by saying that the former governor would prefer that the president remove marijuana from the controlled substances list entirely, allowing states to legalize and regulate as they and their voters choose. But the campaign said most discussion and a more likely near-term step has centered around reclassifying it to Schedule II, which would remove a barrier to prescribed medical uses, though they said that either move would be a step in the right direction.

Mr. Obama has said that Congress can move on such a reclassification. “What is and isn’t a Schedule I narcotic is a job for Congress,” Mr. Obama said in a 2014 interview with CNN. “It’s not something by ourselves that we start changing … no, there are laws undergirding those determinations.”

Tom Angell, chairman of the advocacy group Marijuana Majority, said the attorney general and the secretary of Health and Human Services can move to get rescheduling done without further legislation under the Controlled Substances Act. “It’s tough to predict what the president will do on this issue before he leaves office, but if he’s willing to uphold his pledge to set policy based on science, and he listens to the majority of Americans who support marijuana reform, he will exercise his administrative authority for rescheduling,” Mr. Angell said.

Mr. Johnson pointed out that there are still some “dry counties” in the country with respect to alcohol and predicted marijuana would eventually be in that same category. “I think every municipality has to realize that all the planes to Denver every single weekend are filled up, and that they’re missing out, and Colorado is absolutely vibrant,” he said. “Is it due to marijuana? I think it’s a contributing factor.”

March 30, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, March 22, 2016

"District of Cannabis: Evaluating the Cannabis Legalization Regime in the Nation's Capital"

The title of this post is the title my student developed for his coming in-class discussion of the status of marijuana reform in Washington DC.  And here are the reading the student has assembled:
  • Ballot Initiative 71: The referendum that overwhelmingly passed after a vote by D.C. residents on On November 14, 2014, making it legal to posses up to two ounces of marijuana for medical use, to grow up to six cannabis plants, and to sell paraphernalia for drug use, but not to transfer marijuana for money.

  • DC's Marijuana Law: Explained: A brief video by the Washington Post that explains what "you need to know to smoke pot in DC" released after BI-71 became effective.

  • DC Council Warned Not to Regulate Marijuana: Detailing a letter from the District's AG to the DC Council warning that holding a hearing on regulating marijuana would be in violation of Congress' mandate that the Council not use any of its budget to regulate marijuana--an example of the tense cannabis standoff between Congress and D.C.'s self-governing body.

  • Weed is Legal in DC, so Why is No One Acting Like It?: New York Magazine article detailing the complex realities of marijuana laws in Washington, D.C. and their on-the-ground impact.

  • Marijuana Arrests Down 85% After One Year: According to data from the Metropolitan Police Department, "[o]verall, marijuana arrests [in D.C.] decreased by 85% from 2014 to 2015. Marijuana possession arrests fell from 1,840 in 2014 to just 32 in 2015."

  • Kush Gods Pleads Guilty: One of the first entrepreneurs to openly sell marijuana in the BI-71 created "gray market" pleads guilty on March 21, 2016 to two counts of selling marijuana to an undercover police officer.

March 22, 2016 in Assembled readings on specific topics, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Monday, March 21, 2016

SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform

Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws.  Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado.  This is huge news for state marijuana reform efforts, but not really all that surprising.  (It would have been bigger news and surprising if the motion was granted.)

Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito.  Here is how this dissent stats and ends:

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado.  I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....

Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana.  See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II).  Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.”  Gonzales v. Raich, 545 U.S. 1, 12 (2005).  Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana.  See Colo. Const., Art. XVIII, §16.  Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015).  Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a).  And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).

In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado.  The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws.  See Complaint ¶¶54–65.  They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana.  Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16.  The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.

The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a).  The plaintiff States have alleged significant harms to their sovereign interests caused by another State.  Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.

Cross-posted at Marijuana Law, Policy & Reform.

March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, 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 (1)

Sunday, March 20, 2016

Assembling disconcerting data showing crime spikes after marijuana reform

At-logoAs regular readers of my Sentencing Law and Policy blog should know, careful and responsible researchers and advocates should be careful and cautious about making any bold assertion about which kinds of laws and legal reforms may or may not impact crime rates.  Just about every pundit who ever asserts boldly that this reform or that reform certainly will (or certainly won't) reduce or increase crime is proven wrong at some point in some way.  For that reason, I am generally disinclined to put too much stock in any assertions that marijuana reform definitely will or definitely won't lead to a change in serious crime rates in a jurisdiction.

That all said, I think it is very important to keep an eye on any notable corrections between reported crime rates is jurisdictions that have reformed its marijuana laws. And, I just came across a few recent postings by Sierra Rayne at the American Thinker website that present data showing significant crime spikes in key marijuana reform jurisdictions.  Going through the author's posting archive, I found this array of posts  that ought to be of interest to everyone following the impact of marijuana reforms:

As these post headlines perhaps reveal, the author of all these pieces seems quite interested in making the case that there is a causal link between marijuana reform and increases in crime. But even if these posts involve an effort to spin crime data to serve a particular agenda, the data assembled in these posts are disconcerting (and perhaps help explain why we are not hearing from marijuana reform advocates the claim that reform contributes to a decrease in crime).

Critically, lots of crime rates were up in lots of urban and suburban US regions throughout the end of 2014 and through all of 2015; spikes in crime rates in marijuana reform cities might ultimately reflect some broader national trends that have no direct link to marijuana laws and related practicalities.  In addition, especially because marijuana reformers reasonably assert that legalization enables law enforcement to refocus energies on more serious crimes, I wonder if any crime spikes in reform cities might reflect, at least in part, the ability for cops on the beat to discover a greater percentage of serious crimes that we already happening but were going unreported before marijuana reform.

I am hopeful (though not all that optimistic) that over time we will see more and more careful analyses of patterns of crime in the wake of local, state and national marijuana reforms.  In the meantime, though, I want to complement Sierra Rayne for keeping an eye on this important issue, and I robustly encourage everyone else interested in marijuana reform to look closely at all the emerging data in this space.

March 20, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)