Tuesday, December 10, 2013
The title of this post is the headline of this notable new piece in Time magazine. Here are excerpts:
Call it Black Wednesday. Recreational marijuana goes on sale legally in Colorado on Jan. 1, and Denver officials are worried that the city’s retail shops won’t be anywhere close to meeting demand.
At a city-council meeting Monday, lawmakers in Colorado’s largest city raised questions about licensing delays and the prospect of people queuing up for hours in what have been historically low temperatures. “If we have 10 stores open … we could have people camping out overnight with cash in their pocket,” said councilman Charlie Brown. “How is the industry, how is the police department going to work together?”
Though more than 100 stores are waiting to have applications approved by the city and state, a process that involves multiple inspections and a public hearing, a small fraction of that number are likely to be open by 8 a.m., Jan. 1, when legal sales for recreational marijuana begin. Employees from the city’s department of excise and licenses estimated that Denver will have around 12 legal retail outlets in operation.
City officials are worried about the ability of those stores to handle the expected crowds, which they said will be supplemented by marijuana tourists arriving on chartered buses. Security is also a concern, as marijuana can only be purchased with cash.
A representative from the medical-marijuana industry said he knows Denver is going to be under enormous scrutiny on New Year’s Day. “It’s very true that the whole world is watching,” said Michael Elliott, who noted that shoppers may be confused when they’re turned away from the vast majority of medical-marijuana dispensaries that aren’t licensed to sell recreational pot. “It’s very intense right now.”
After voters approved a measure to legalize marijuana in November 2012, Colorado spent the next six months developing regulations for consumption — dealing with advertising restrictions, childproof packaging, THC-limits and rules for driving while high. “Clearly we are charting new territory. Other states haven’t been through this process,” Colorado Governor John Hickenlooper said in May. “Recreational marijuana is really a completely new entity.”...
Among the measures the council approved Monday was one its president called a “seminal” piece of marijuana legislation outlining procedural nuts and bolts like making it illegal to consume weed on the city’s tourist-heavy 16th Street Mall and banning “pot giveaways” in public parks. Then they moved on to the next item before them: revamping zoning codes to deal with growing marijuana. After being approved by the council, bills must still be signed by the mayor.
“In 22 days, whether you like it or not, the image of our city will change,” Brown said. “And if we need to make adjustments we will. This is not the end. This is, frankly, the beginning.”
Monday, December 2, 2013
One oft-heard argument in support of ending marijuana prohibition concerns the economic and job creation developments expected to follow a regime of legalization and regulation. And, as highlighted in this AP article, headlined "Washington state will use minors in marijuana buying stings," the employment benefits will flow down to a few young workers in at least one state:
Charged with implementing the new law that allows adults over age 21 to possess an ounce of pot, the state Liquor Control Board already uses minors in "controlled buys" of alcohol at retail stores. The board's enforcement chief said using the same strategy with marijuana makes sense, especially because federal officials want to make sure Washington restricts minors' access to the drug.
"Of course the feds are looking at a tightly regulated market around youth access, and I think this shows we're being responsible," said Justin Nordhorn. The agency also will ask the Legislature to set penalties for minors who attempt to purchase legal pot and those who use or manufacture fake ID cards for that purpose.
Alison Holcomb, chief author of the new law voters approved last year, agreed that using minors in pot-buying stings would support the state and federal emphasis on limiting youth access. But as criminal-justice director for the ACLU of Washington, Holcomb does not believe that adding criminal laws for pot possession is a good idea. She said she would prefer a focus on other prevention strategies.
Nordhorn said there are currently no penalties for teenagers who try to buy legal pot. He'd like the offense to be a misdemeanor or gross misdemeanor, and likewise for making or using fake IDs to buy pot.
This Seattle Times article concerning the state's sting plans provides a bit more background on Washington's current activities concerning illegal alcohol sales to minors:
Stings appear to be warranted in alcohol enforcement. Data for the past 17 months show that alcohol retailers had an 85 percent compliance rate in youth stings. In other words, for every seven times minors working for the state tried to buy alcohol in stores, bars or restaurants, they succeeded once.
While Washington has licensed more than 20,000 locations to sell alcohol, the state plans to allow just 334 marijuana stores, making it easier, in theory, to enforce marijuana laws at them.
The pot stings would work similarly to the alcohol buys, Nordhorn said. The state now hires 18-, 19- and 20-year-olds across the state to use in alcohol stings, according to Nordhorn. About 30 minors, both men and women, work for the liquor board. They get paid about $10 an hour, Nordhorn said, and they tend to be students interested in law enforcement and substance-abuse prevention.
He declined to make any available for an interview. “We try to protect their identities because we don’t want anyone knocking on their door,” he said. Nordhorn plans to send minors into pot stores to try to purchase products. It’s the store clerks’ responsibility to make sure customers are 21. The law does not even allow minors in stores.
Friday, November 29, 2013
The title of this post is the headline of this new AP article which highlights that Massachusetts is another state to watch closely for modern marijuana reform developments. Here are the details:
Pro-marijuana activists in Massachusetts have already succeeded in paving the way for dozens of medical marijuana dispensaries and decriminalizing possession of small amounts of the drug. Now many of those same activists have set their sights on the full legalization of marijuana for adults, effectively putting the drug on a par with alcohol and cigarettes. And those activists — as they have in the past — are again hoping to make their case directly to voters.
The group Bay State Repeal says it’s planning to put the proposal on the state’s 2016 ballot. The group is first planning to test different versions of the measure by placing nonbinding referendum questions on next year’s ballot in about a dozen state representative districts. Those nonbinding questions are intended to gauge voter support for possible variations of the final, binding question.
Bill Downing, a member of Bay State Repeal, said the state should legalize marijuana for many reasons, especially since the use of marijuana no longer carries the stigma it once did and many people smoke the drug despite laws against it. "That’s the problem with the marijuana laws," Downing said. "There’s no moral impact anymore because the laws don’t reflect our common values."...
In 2008, Massachusetts voters approved a ballot question decriminalizing possession of up to an ounce of pot, making it instead a civil offense punishable by a $100 fine. Some Massachusetts towns have given up trying to enforce the law, however, saying it has too many loopholes.
Not everyone thinks legalizing marijuana is a good idea. Essex County District Attorney Jonathan Blodgett says marijuana use can lead young people to harder drugs and other harmful behaviors. "I'm not saying everyone who tries marijuana becomes a heroin addict, but the medical information is irrefutable that kids who start smoking marijuana are more likely to have substance abuse problems as adults," said Blodgett, who also serves as president of the Massachusetts District Attorneys Association.
Blodgett said one unintended consequence of the decriminalization law in Massachusetts is that it’s harder to get young people into treatment and diversion programs because they can’t be arrested for possession of the drug. He said many private health insurance plans don’t cover drug treatment. "Unless and until we have treatment-on-demand, we shouldn’t be talking about legalizing marijuana or any other drugs," Blodgett said.
Downing rejected the notion that marijuana is a gateway to harder drugs and said the ballot question would restrict the sale of marijuana to adults. "This isn’t about getting pot for kids," he said. "No one on my side says we are getting marijuana for kids."...
Last year, Massachusetts overwhelmingly approved a ballot question allowing for up to 35 medical marijuana dispensaries around the state. State health officials last week released a list of the 100 applicants that are seeking dispensary licenses. They said they hope to award the licenses early next year.
Saturday, November 16, 2013
The title of this post is the headline of this amusing new NPR story highlighting one possible nasal echo effect of Colorado's brave new world of legalized marijuana. Here are excerpts:
Recreational marijuana is legal in Colorado. But that doesn't mean residents want the air to smell like a pot rally. Denver is getting more calls to enforce an odor ordinance that can impose a buzz-killing fine on violators. To find them, the city relies on a device called the Nasal Ranger.
And that's where licensed smell investigator Ben Siller comes in. A member of Denver's Department of Environmental Health, he's trained to use an olfactometer to determine if people are breaking laws that protect the purity of Denver's air. Siller responds to citizens' odor complaints — an increasing number of which are tied to the rise of odiferous marijuana grow facilities. A recent Denver Post story about him began this way: "Ben Siller looked ridiculous on a recent afternoon, standing on a downtown Denver street corner with a giant device clamped to his face sniffing the air for odorous evidence of marijuana."
The Nasal Ranger is a cone-shaped device resembling a megaphone that's made by St. Croix Sensory, a company based in Minnesota. It samples the air to help an operator detect the presence and strength of odors. As others have noted, the device looks like a scaled-down and streamlined version of the Smell-O-Scope created by Professor Farnsworth on the TV series Futurama.
In Denver, the scent of marijuana would have to be very strong — exceeding a level of detection when one volume of the scented air is combined with seven volumes of clean air — to trigger a formal response and possible fine. Siller tells the Post that it's been nearly 20 years since anyone broke that threshold. A violation could bring a fine of up to $2,000, Denver's reported this summer.
Many expect Siller and his colleagues to get more calls as Colorado's pot industry continues to mature. The state's first stores selling marijuana for recreational use are scheduled to open in January. As that date approaches, the city is tweaking its rules to curtail "open and public" marijuana use, as reported Tuesday. That's when the City Council backed away from a rules proposal that could have exposed people to fines for smoking marijuana in their front yard, or for having the scent escape a window.
In addition to loving what the Nasal Ranger looks like, I am really enamored with the name of this device. I am also enjoying thinking about a possible super-hero move, with the name Nasal Ranger of course, which starts with a lab accident involving a scrawny guy who gets this devise permanently fused to his face and then fights crime using super smelling powers.
Friday, November 8, 2013
The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules." Here are a few excerpts from this article:
The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic. It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use. A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.
“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”
Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes. And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.
“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”
Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization. Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....
Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.
Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....
Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.
This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting. That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.
In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.
My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry. I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business. Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.
But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries. Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?
Thursday, November 7, 2013
The title of this post is the headline of this notable new report from the McClatchy Washington Bureau. Here are excerpts:
Buoyed by their success at the polls Tuesday, marijuana backers say they’ll now try to get the drug fully legalized in 13 more states by 2017. They’d join Colorado and Washington state, which voted last year to allow pot sales for recreational use.
The drive to legalize won considerable new momentum across the country on Election Day as voters in three states approved pro-pot measures. Portland, Maine, became the first East Coast City to legalize marijuana. Colorado approved a 25 percent tax on pot. Voters in the Michigan cities of Lansing, Jackson and Ferndale decided to remove all penalties for possession....
“Most Portlanders, like most Americans, are fed up with our nation’s failed marijuana laws,” said David Boyer, the Maine political director of the Marijuana Policy Project, a pro-legalization group.
While the measure won easily in Maine’s largest city, it may be more difficult for pro-pot forces to win across the state. Legalization backers hope to get the issue on the statewide ballot in 2016.
Officials with Project SAM (Smart Approaches to Marijuana), an opposition group led by former U.S. Rep. Patrick Kennedy, D-R.I., said they planned to launch a statewide affiliate to gear up for the vote. “Maine is on the brink of creating a massive marijuana industry that will inevitably target teens and other vulnerable populations,” Kennedy, the group’s national chairman, said in a statement. “Misconceptions about marijuana are becoming more and more prevalent.” Kennedy said it was time “to clear the smoke and get the facts out about this drug.”...
Maine is among the 13 states targeted for full-scale legalization by the Marijuana Policy Project. The group said it would try to get legalization on the ballot in seven states and work to get state legislatures to pass it in the other six.
If a petition drive succeeds, Alaska voters are expected to consider legalization first, in 2014. In 2016, the group will try to get the issue on the ballot in Arizona, California, Maine, Massachusetts, Montana and Nevada. They’ll try to get state legislators to do the job in Delaware, Hawaii, Maryland, New Hampshire, Rhode Island and Vermont.
Tuesday’s votes were the first ballot initiatives since last November, when Colorado and Washington state approved tax-and-regulate sales plans that will take effect next year.
In Colorado, voters gave the green light to a 25 percent pot tax that comprises a 15 percent excise tax to pay for school construction and a 10 percent tax to pay for enforcement. “Colorado is demonstrating to the rest of the nation that it is possible to end marijuana prohibition and successfully regulate marijuana like alcohol,” said Mason Tvert, the communications director for the Marijuana Policy Project in Denver....
Many cities in Colorado already are eyeing marijuana as a possible source of revenue and are considering ballot measures that would impose local taxes on retail pot sales.
So far, nine U.S. cities or towns have voted to legalize marijuana or to remove penalties for possession, according to the Marijuana Policy Project. In Michigan on Tuesday, voters in Lansing, Jackson and Ferndale joined Detroit and Flint, where residents decided last year to remove all penalties for adult possession....
To fight the efforts, Project SAM officials said they wanted to warn the public that legalization could create a “Big Marijuana” tobacco-style industry. They said it was time to have an “adult conversation” about health effects and the possibility of increased drug addiction among teens. That discussion is already underway in Maine. “This is not about demonizing or legalizing marijuana, but rather educating the public about the most misunderstood drug in the state,” said Scott Gagnon, who’ll serve as Maine’s coordinator for Project SAM.
Wednesday, November 6, 2013
Though it would be unwise jump to too many conclusions based on off-year election results, these headlines reporting on results concerning various marijuana initiative in various jurisdictions suggest a continuing affinity for responsible reform and sensible regulation of maijuana laws, policies and practices:
From Colorado here, "Colorado voters approve new taxes on recreational marijuana"
From Maine here, "Portland voters legalize marijuana; The ‘Yes’ vote wins in a landslide, claiming 67 percent of the tally with many of the precincts reporting"
From Michigan here, "Voters in three more Michigan cities pass marijuana decriminalization proposals"
Practically speaking, the Colorado vote is probably the most important and consequential, as it ensures a significant tax revenue stream now flowing from marijuana legalization in the Mile High state. But politically speaking, the voting outcomes in Maine and Michigan, though most symbolic, could still prove important if (and when?) more politicians on both side of the aisle in the northeast and upper midwest see that there could be political upsides in 2014 and beyond from supporting responsible reform and sensible regulation of maijuana laws, policies and practices.
Saturday, November 2, 2013
Colorado could have more than 100 recreational-marijuana stores open Jan. 1, according to newly released numbers from the state's Marijuana Enforcement Division. The division, which oversees Colorado's regulation of marijuana businesses, accepted 136 applications in October from people seeking to open recreational pot shops. The division also accepted 28 applications for recreational marijuana-infused-products businesses and 174 applications for recreational cultivation facilities.
The businesses that applied in October will have a decision made on their applications by the end of the year, said Julie Postlethwait, a spokeswoman for the Marijuana Enforcement Division. That means they are in line to open Jan. 1, the earliest date for recreational-marijuana sales in Colorado.
By law, all of the applications came from people currently operating medical-marijuana businesses in Colorado. But the tallies represent just a fraction of the state's medical-marijuana industry. Colorado has 517 medical-marijuana dispensaries, 138 medical-marijuana-infused products businesses and 736 medical-marijuana-cultivation facilities, according to the Marijuana Enforcement Division.
"It's expensive," Meg Collins, the executive director of the Cannabis Business Alliance, said in explaining why so few medical-marijuana businesses are seeking to add a recreational component. "In the discussions I've had with folks, I think that one of the things that possibly forestalled people from immediately jumping in is the financial consideration."
Application fees for new recreational-marijuana businesses start at $500 and licensing fees range from $2,750 to $14,000, depending on the type of business and other factors. Postlethwait said the division has not finished its accounting on how much money it collected in October, but estimated that application fees alone brought in around $179,000.
Only two of the businesses that have applied indicated they would make a full conversion to recreational sales, Postlethwait said. The rest intend to operate jointly as medical- and recreational-marijuana stores. In some cases, those businesses will have to divide the shops with a wall and give each shop a separate entrance.
Local bans and moratoriums on recreational pot sales — including in places such as Colorado Springs and Boulder, each of which has dozens of medical-marijuana dispensaries — have also kept recreational applications down, said Mike Elliott, the executive director of the Medical Marijuana Industry Group. Still, Elliott said more businesses are applying for recreational licenses this month and they, too, could receive permission to open shortly into the new year.
Wednesday, October 30, 2013
When televangelist Pat Robertson announced his support for legalizing marijuana last year, pot backers wasted no time in putting his picture on an electronic billboard in Colorado.
Marijuana billboards have popped up along busy freeways from Seattle to Florida. In September, one greeted fans going to Sports Authority Field at Mile High Stadium in Denver for the first NFL game of the season. In July, pot supporters tried to get a video ad on a jumbo screen outside a NASCAR event in Indianapolis, but objections forced them to pull it in the last minute.
In the latest twist, pro-pot billboards are emblazoned on city buses in Portland, Maine, aimed at winning votes for a Nov. 5 ballot measure that would make the city the first on the East Coast to legalize marijuana for recreational use.
Critics fear that the increased advertising is a sign of things to come as support for legalization continues to grow, reflected by a Gallup poll released last week that found backing from a record high 58 percent of Americans. They see the stepped-up promotion as a dangerous trend that will lead to more drug abuse among children.
While the Greater Portland Transit District has banned tobacco ads, it accepted $2,500 to display the marijuana billboards on the exterior of four of its 32 city buses and in two bus shelters. The ads, which debuted early this month, are set to run until Election Day.
In one ad, a bespectacled woman says: “I prefer marijuana over alcohol because it’s less toxic, so there’s no hangover.” Another features a smiling young man who says he prefers pot over booze “because it doesn’t make me rowdy or reckless.” Transit officials say the ads are constitutionally protected political speech since they also encourage a “yes” vote on a city ballot initiative.
“We’re allowing this message because it’s political speech. It’s designed to help change a law,” said Gregory Jordan, the general manager of the transit district. “It’s not the promotion of a commercial product. . . . We don’t have a position on the content of the advertising, just that it’s a political message and by its very nature it’s protected by the First Amendment.”
Opponents say the ads go well beyond endorsing a ballot measure, instead promoting an illegal product. They say the ads shouldn’t be allowed in places where they’re so easily viewed by youths, including high school students who ride city buses to school. “What we say and what we do is being watched by the kids in our communities, and they look to us for clues on what’s acceptable and what’s normal and how they should act,” said Jo Morrissey, the project manager for a substance abuse group called 21 Reasons, which asked the transit district to drop the ads....
Jordan said the transit line, which serves nearly 1.5 million riders a year, was on solid legal ground but that he understood the criticism: “I can certainly see how maybe it’s a fine distinction.”
David Boyer, the Maine political director for the Marijuana Policy Project, which bought the ads, said the backlash had surprised him. He defended the ads, saying it’s important that everyone, including kids, knows that marijuana is safer than alcohol....
The Portland vote is the first ballot test for legalization backers since last November, when Washington state and Colorado approved plans to sell and tax the drug for recreational use beginning next year. If the measure passes, residents of Maine’s largest city who are 21 and older each will be allowed to possess up to 2.5 ounces of marijuana.
Sunday, October 20, 2013
This past week in my Marijuana Law, Policy and Reform seminar, two students did a wonderful job focusing the class readings (assembled here) and the class discussion on tax issues. I came away from the experience not only once again impressed by how effectively law students can deliver complicated legal content to fellow law students, but also truly fascinated by the array of tax policy issues and questions that legalized state marijuana regimes necessarily engender. Pat Oglesby (a former Congressional tax staffer) has put together this commentary for the Huffington Post, titled "Taxing Marijuana: Four Questions," which highlights just a few of the challenging policy issues that a legal marijuana industry is now creating:
Marijuana legalization brings tax questions: Whether to tax, how much, for whose benefit, and by what measure. None of the answers is obvious....
American consumers today reportedly spend around $30 billion a year for marijuana. That's a pot of gold. Where will that money go?.... Ganjapreneurs — producers and sellers of legal marijuana — are lining up to share in that $30 billion (or whatever the number turns out to be). But tempering the profit motive may go a long way toward building public support — and toward addressing concerns of worried parents. Colorado's successful 2012 initiative enticed voters with taxes for school construction; Washington's helped a laundry list of programs. Marijuana revenue could go into the general fund, or allow cuts of unpopular taxes. There will never be a "right" way to split up the money....
So far, taxes have been based on percentage of sales price. That's easy to calculate: It requires no weigh stations or product testing. But a percentage base is easy to get around. Free Joint Giveaways, like those designed to boost opposition to taxes in Colorado, would be tax free, since any percentage of zero is always zero. And how would anyone figure the tax on hotel stays bundled for one price with free marijuana? When the seller winks at the buyer when selling something for below its fair market price, it's hard for auditors to figure out its "real" price — that's how Google, Starbucks, GE, and other multinationals make a laughing stock of international tax rules.
Price-based taxes will swing wildly up and down as an industry starts up and prices find equilibrium. That's not good. If we look for analogies, price is not the base for any federal alcohol tax. Taxes on liquor and wine depend on alcohol content; beer taxes depend on volume.
Taxing marijuana by weight would solve some problems, but powerful ounces would be taxed the same as weak ounces. Still, the choice for marijuana plant material is either price or weight: Taxes based on content of psychoactive THC (tetrahydrocannabinol) won't work. Test results are not replicable because the material is not fungible enough — not consistent in THC content....
Still, percentage-based taxes don't require indexing for inflation. In real terms, unindexed Federal alcohol taxes have shrunk dramatically since the last increase, in 1991....
Taxing marijuana is no easy matter, but tax-free marijuana could cause a voter backlash -- or intervention from a federal government worried about leakage to other states and underage users.... A state monopoly would be the most cautious approach to legalization, but states have steered clear of selling through state stores, which would directly violate federal law. We are not even at the end of the beginning of figuring out the revenue issues -- and many more things -- around legalized marijuana.
This effective new Time magazine article highlights an important reality that was also stressed by my students in this week's class: there are significant differences in the tax rates and approaches being adopted in Colordo and Washington as they become the first two states with a legalized and regulated recreational marijuana marketplace. And though a range of factors are sure to impact the "success" of new pot policies in these states, there are good reasons to believe tax policies may be the legal factor that has the most tangible and consequential impact on how the marijuana marketplaces emerge and evolve.
Because I know very little about tax policy, especially at the state level, I am certain I will be unable to follow closely and with sophistication the tax policy debates and developments that will continue to unfold as marijuana laws get reformed and marijuana markets transform in the months and years ahead. But as the title of this post highlights, I think this is an important and fertile arena for the work of tax policy experts.
Thursday, October 17, 2013
Marijuana advocates took a step toward making California the third state to legalize the drug for adult recreational use Thursday when Lt. Gov. Gavin Newsom and the American Civil Liberties Union launched an 18-month campaign aimed at putting a ballot measure before voters in 2016.
Newsom, who came out in favor of legalization last year, will lead a panel of academics, drug policy experts, law enforcement authorities and officials from Colorado and Washington - the two states whose voters legalized recreational use last year.
The panel's goal: To answer legal and practical questions about the state-endorsed sale of marijuana before advocates move forward with a measure to tax and regulate the estimated $1.5 billion cannabis industry in California.
Backers intend to go to the voters in November 2016 - coinciding with the presidential election, when the electorate is likely to skew younger than average and thus more marijuana-friendly. Even older voters, however, are becoming more open to marijuana legalization,according to a pair of recent polls.
One, which the nonpartisan Public Policy Institute of California released last month, found that 60 percent of likely voters overall backed legalization. A survey by San Francisco pollster Ben Tulchin, commissioned by the ACLU and released Thursday, found that 65 percent of 1,200 respondents considered likely to vote in 2016 would support a measure to tax and regulate marijuana. The state's voters rejected a legalization measure in 2010 by 53 to 47 percent.
"The fact is that the public's support for marijuana is increasing," Tulchin said. "The key, though, is that they want regulations and limits on this. And they want the revenue (from taxation) to fund essential services. They don't want to be able to go to Costco and buy it in bulk," Tulchin said.
At a San Francisco press conference Thursday, members of the ACLU-led panel acknowledged that voters will have many questions about what legalization would entail. Over the next year and a half, the group will travel around the state, holding town hall meetings and periodically issuing recommendations."People want to know what a DUI would be. Employers want to know what happens if their employee shows up stoned at work," said Craig Reinarman, a panel member and professor of sociology and legal studies at UC Santa Cruz who has written about drug policy for 30 years.
For answers, advocates will turn to officials and activists from Colorado and Washington, who have been wrestling with such issues since legalization measures passed in their states last fall. It wasn't until this week that Washington's Liquor Control Board adopted rules that will permit 334 retail marijuana stores to open statewide next year....
Other legalization groups are talking about going to the ballot in 2014. Hopper said the ACLU is not going to run any ballot measures or decide who should. "We want to make sure that whatever coalition ends up doing this has the data and the facts and the research to do it right," Hopper said.
Wednesday, October 16, 2013
[Mason] Tvert says several factors help explain why Coloradans decided it was time to treat pot smokers like consumers instead of criminals. Nationwide support for legalization has been rising more or less steadily since the 1980s, hitting 50 percent in the Gallup Poll for the first time in 2011. And unlike in 2006 [when a marijuana decriminalization initiative lost in COlorado], voters were picking a president in 2012. "We see much greater turnout in presidential election years," Tvert says, "and when there is more turnout, there is virtually always more support for making marijuana legal." He also credits six years of public persuasion emphasizing the theme reflected in the name of the group he co-founded in 2005, SAFER (Safer Alternative for Enjoyable Recreation), and the title of the 2009 book he co-wrote, Marijuana Is Safer. Tvert cites polling data indicating that people who accept that premise are much more likely to support legalization than people who don't. "Our strategy all along," he says, "was to bring that message and break people's fears of marijuana down to the point where they would go ahead and go with their gut feeling on making it legal."
Supporters of Amendment 64 had a big financial advantage in getting their message across (although not as big as the one enjoyed by legalizers in Washington, who outspent their opponents by 400 to 1). According to campaign finance reports, seven groups backing the initiative raised about $2.7 million, the vast majority of it from out-of-state donors, including the Marijuana Policy Project and the Drug Policy Alliance. The opposition, which consisted largely of law enforcement groups, raised about $560,000, half of it from out-of-state donors. The biggest backer of the No on 64 campaign was Save Our Society From Drugs, a Florida-based group co-founded by Mel Sembler, a Republican fundraiser and drug treatment entrepreneur who co-founded Straight Inc., the notorious (and now-defunct) chain of behavior modification centers for troubled teenagers.
Tvert argues that, contrary to what you might expect, the switch from merely decriminalizing use to legalizing the marijuana business improved Amendment 64's prospects, because it promised to eliminate the black market and addressed the question of where people would get the pot they were now allowed to smoke. Voters' familiarity with state-regulated medical marijuana centers also helped. "When you talk about legalizing marijuana in the abstract," says Rob Kampia, executive director of the Marijuana Policy Project, "people say, 'I don't understand. What does it look like?' The visual matters. The medical marijuana dispensaries have been regulated since 2010, and there were already hundreds of stores voters would walk past every day."
In addition to the cover story, Jacob Sollum has these companion pieces on related topics:
Sunday, October 13, 2013
From the AP in Chicago here, "Medical marijuana could bring new jobs, attitudes to Illinois
From the Denver Post here, "Denver floats new rules that could make even the odor of pot a crime"
From the Las Vegas Sun here, "Big money clamoring for a piece of Nevada’s medical marijuana pie"
From the Los Angeles Times here, "LA city attorney moves to shut down illegal marijuana dispensaries"
From the Maine Sunday Telegram here, "High hopes for legalizing marijuana in Maine"
From Medical News Today here, "Chemicals in marijuana 'protect nervous system' against MS"
From Michigan's WNLS here, "Oral Arguments Heard In Medical Marijuana Case"
Wednesday, October 2, 2013
When supporters and opponents of a statewide marijuana sales tax measure on the ballot this November look across the battle lines, they will notice a lot of familiar faces.
Many of them worked together last year to pass marijuana legalization. Just 10 months removed from that historic campaign — in which Colorado voters approved a first-of-its kind recreational marijuana industry — cannabis advocates have fallen out over how much the industry should be taxed.
Two of the main advocates behind the legalization campaign, attorneys Brian Vicente and Christian Sederberg, are now leading the pro-tax campaign. They're joined by marijuana-industry trade groups but also by opponents of legalization — such as Colorado Attorney General John Suthers and the Denver Chamber of Commerce.
On the other side of the fight stands attorney Rob Corry, who helped write the marijuana-legalization measure. Along with him is the local branch of NORML, the National Organization for the Reform of Marijuana Laws. "The marijuana community is not a monolith," Corry said. "... We do have family disagreements within our own movement."
The tax fight is the latest cannabis community quarrel. Factions of marijuana activists have previously disagreed over medical-marijuana regulations and even over whether to support the marijuana-legalization measure. The annual 4/20 marijuana smoke-out is a constant source of tension.
The debates often focus on whether it is better to strive for political approval while accepting some continued restrictions on marijuana or to seek more freedoms while possibly tempting a backlash. And image, as much as policy, is frequently at issue.
Sunday, September 29, 2013
Did Louisiana really give Corey Ladd "20 years hard labor" for possessing less than an ounce of marijuana?
While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana.
Corey Ladd, 27, had prior drug convictions and was sentenced September 4, 2013 as a “multiple offender to 20 years hard labor at the Department of Corrections.”
Marijuana use still remains a ticket to jail in most of the country and prohibition is enforced in a highly racially discriminatory manner. A recent report of the ACLU, “The War on Marijuana in Black and White,” documents millions of arrests for marijuana and shows the “staggeringly disproportionate impact on African Americans.”...
Louisiana arrests about 13,000 people per year for marijuana, 60% of them African Americans. Over 84 percent were for possession only. While Louisiana’s population is 32 percent black, 60 percent of arrests for marijuana are African American making it the 9th most discriminatory state nationwide. In Tangipahoa Parish, blacks are 11.8 times more likely to be arrested for marijuana than whites and in St. Landry Parish the rate of black arrests for marijuana is 10.7 times as likely as whites, landing both parishes in the worst 15 in the country.
In Louisiana, a person can get up to six months in jail for first marijuana conviction, up to five years in prison for the second conviction and up to twenty years in prison for the third. In fact, the Louisiana Supreme Court recently overturned a sentence of five years as too lenient for a fourth possession of marijuana and ordered the person sentenced to at least 13 years....
Arrests and jail sentences continue even though public opinion has moved against it. National polling by the Pew Research Center show a majority of people support legalizing the use of marijuana. Even in Louisiana, a recent poll by Public Policy Polling found more than half support legalization and regulation of marijuana.
Karen O’Keefe, who lived in New Orleans for years and now works as Director of State Policies at the Marijuana Policy Project, said “A sentence of 20 years in prison for possessing a substance that is safer that alcohol is out of step with Louisiana voters, national trends, and basic fairness and justice. Limited prison space and prosecutors’ time should be spent on violent and serious crime, not on prosecuting and incarcerating people who use a substance that nearly half of all adults have used.”
Defense lawyers are appealing the twenty year sentence for Mr. Ladd, but the hundreds of thousands of marijuana arrests continue each year. This insanity must be stopped.
The Louisiana Supreme Court case referenced in this commentary is Louisiana v. Noble, No. 12-K-1923 (La. April 19, 2013) (available here), and the Noble court did in fact rule that Louisiana's Habitual Offender Law demanded imposition of a mandatory prison term of 13.3 years for a defendant who "was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine" and even though "defendant supports seven children, two of whom have significant medical problems, and ... all of the defendant’s offenses have been non-violent ... and all involved the possession of small quantities of narcotics."
The Noble case documents that at least some defendants are, despite claims by supporters of the modern drug war, that nobody really serves long terms of imprisonment merely for possessing marijuana. But the opinion in Noble does not reveal just how much much marijuana the defendant in that case possessed, and perhaps the possession offense there involved a significant quantity.
This case involving Corey Ladd surely also involves application of Louisiana's Habitual Offender Law because subsection 4(a) of that law provides a mandatory minimum of 20 years for the "fourth or subsequent felony." And I suspect the sentencing court felt obligated to give the 20-year term because the Noble court reversed another sentencing court for trying to go below the applicable mandatory minimum. But I am still gobsmacked that possessing such a small amount of marijuana in the Bayou could be a felony and in turn require the imposition of a 20-year prison term for a habitual offender.
Wednesday, September 25, 2013
Medical-marijuana dispensary operators are apprehensive about plans by a powerful marijuana-advocacy group to campaign for full legalization of the drug in Arizona. The Marijuana Policy Project, a Washington, D.C.-based organization that advocates marijuana legalization and regulation, is a former ally of the dispensary owners, having played a key financial and public-relations role in passage of the state law that created the burgeoning medical-marijuana program.
Bolstered by the Obama administration’s announcement that it will not challenge such laws, the group intends to pursue full legalization in Arizona through a voter initiative in 2016 and in nine other states over the next two election cycles. The initiative will be modeled on a program in Colorado, which has legalized marijuana for recreational use.
But the group may have a tough time selling their plan to the state’s medical-marijuana dispensary operators, who are capitalizing on the growing market, have invested thousands of dollars to get up and running and say they favor the status quo — a system in which doctors must recommend cannabis for medical purposes. The program allows certain businesses and individuals to grow marijuana in large quantities, but home growers are fading away as dispensaries open across the state.
Uneasiness among some dispensary operators highlights the divide between medical-marijuana advocates and recreational proponents — a split that could complicate any effort to further loosen Arizona’s marijuana laws.
“I’m not so sure that, at this stage, we would be for immediate legalization,” Bill Myer, co-owner of Arizona Organix in Glendale, told The Arizona Republic. “We’ve still got some issues to work through with the laws we currently have. The program is still in it’s infancy. “I think Arizona should probably digest what’s going on here before we move forward with what’s going on in Washington and Colorado. Is it going to be a great program, or is it going to be a problem? We don’t know that.”
Myer and some other dispensary operators said they are concerned about their financial investments and question how legalizing recreational use, which could increase the number of dispensaries, would impact their bottom line. Other operators said they favor increased access to marijuana for adults but are remaining neutral on full legalization until they see initiative language from the Marijuana Policy Project. “There’s significant financial investments involved,” Myer said. “Dispensaries may not be able to recoup before other people are made available to do the same things with very little capital investments. It’s absolutely our concern.”
Monday, September 9, 2013
What questions should be central to Senate Judiciary Committee Hearing on "Conflicts between State and Federal Marijuana Laws"?
- The Honorable James Cole, Deputy Attorney General, U.S. Department of Justice
- The Honorable John Urquhart, Sheriff, King County [Washington] Sheriff’s Office
- Jack Finlaw, Chief Legal Counsel Office of [Colorado] Governor John W. Hickenlooper
- Kevin A. Sabet, Ph.D., Co-founder and Director, Project SAM Director, Drug Policy Institute, University of Florida
I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the next 24 hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it here at Marijuana Law, Policy and Reform).
Here at The Weed Blog one can see a whole bunch of very hard questions that might be asked of DAG James Cole concerning federal policies and practices, which were set forth in a letter sent by the pro-reform group California NORML to Senator Dianne Feinstein. I doubt many of these questions will be asked verbatim, but they provide an effective pro-reform perspective on various ways in which state and federal marijuana laws, policies and practices operate at cross-purposes.
As the title of this post suggests, I am eager for readers of this blog to indicate what kinds of questions they might be most eager to see addressed in tomorrow's scheduled Senate hearing.
Cross-posted at Sentencing Law & Policy
Thursday, August 29, 2013
In a memo sent Thursday to U.S. attorneys in all 50 states [and available at this link], Deputy Attorney General James M. Cole detailed the administration’s new stance, even as he reiterated that marijuana remains illegal under federal law.
The memo directs federal prosecutors to focus their resources on eight specific areas of enforcement, rather than targeting individual marijuana users, which even President Obama has acknowledged is not the best use of federal manpower. Those areas include preventing distribution of marijuana to minors, preventing the sale of pot to cartels and gangs, preventing sales to other states where the drug remains illegal under state law, and stopping the growing of marijuana on public lands.
A Justice Department official said that Attorney General Eric H. Holder Jr. had called the governors of Colorado and Washington around noon Thursday to inform them of the administration’s stance.
The official said Holder also told them that federal prosecutors would be watching closely as the two states put in place a regulatory framework for marijuana in their states, and that prosecutors would be taking a “trust but verify” approach. The official said the Justice Department reserves the right to revisit the issue....
Until Thursday, the Justice Department and the White House Office of National Drug Control Policy had remained silent about those initiatives, despite repeated requests for guidance from state officials....
The issue has been percolating since Obama took office, and he has repeatedly faced questions about the tension between differing federal and state laws.
This (relatively short) official DOJ Press Release provides this account of the decision:
Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.
In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute. To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize. These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.
Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws. This guidance continues that policy.
For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance. These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time. But if any of the stated harms do materialize — either despite a strict regulatory scheme or because of the lack of one — federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.
Cross-posted at Sentencing Law and Policy