Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Wednesday, September 17, 2014

In new ad campaign, "Marijuana Industry Battling Stoner Stereotypes"

Crprintad_sep2014bThe title of this post is drawn from the headline of this notable new AP article.  Here are excerpts:

Tired of Cheech & Chong pot jokes and ominous anti-drug campaigns, the marijuana industry and activists are starting an ad blitz in Colorado aimed at promoting moderation and the safe consumption of pot. To get their message across, they are skewering some of the old Drug War-era ads that focused on the fears of marijuana, including the famous "This is your brain on drugs" fried-egg ad from the 1980s.

They are planning posters, brochures, billboards and magazine ads to caution consumers to use the drug responsibly and warn tourists and first-timers about the potential to get sick from accidentally eating too much medical-grade pot. "So far, every campaign designed to educate the public about marijuana has relied on fear-mongering and insulting marijuana users," said Mason Tvert, spokesman for the Marijuana Policy Project, the nation's biggest pot-policy advocacy group.

The MPP plans to unveil a billboard on Wednesday on a west Denver street where many pot shops are located that shows a woman slumped in a hotel room with the tagline: "Don't let a candy bar ruin your vacation." It's an allusion to Maureen Dowd, a New York Times columnist who got sick from eating one on a visit to write about pot.

The campaign is a direct response to the state's post-legalization marijuana-education efforts. One of them is intended to prevent stoned driving and shows men zoning out while trying to play basketball, light a grill or hang a television. Many in the industry said the ads showed stereotypical stoners instead of average adults.

Even more concerning to activists is a youth-education campaign that relies on a human-sized cage and the message, "Don't Be a Lab Rat," along with warnings about pot and developing brains. The cage in Denver has been repeatedly vandalized. At least one school district rejected the traveling exhibit, saying it was well-intentioned but inappropriate.

"To me, that's not really any different than Nancy Reagan saying 'Just Say No,'" said Tim Cullen, co-owner of four marijuana dispensaries and a critic of the "lab rat" campaign, referring to the former first lady's effort to combat drug use....

The advocacy ads tackle anti-drug messaging from year past. Inside pictures of old TV sets are images from historic ads. Along with the fried-egg one is an image from one ad of a father finding his son's drug stash and demanding to know who taught him to use it. The kid answers: "You, all right! I learned it by watching you!"

The print ad concludes, "Decades of fear-mongering and condescending anti-marijuana ads have not taught us anything about the substance or made anyone safer." It then directs viewers to consumeresposibly.org, which is patterned after the alcohol industry's "Drink Responsibly" campaign.

September 17, 2014 in Current Affairs, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Saturday, September 13, 2014

"Are cities being racially discriminatory in banning legal marijuana?"

Marijuana-map-620x410The title of this post is the headline of this very intriguing piece from the Seattle Times, which spotlights a very interesting new lawsuit filed in Washington concerning a local ban on marijuana sales.   Here are the details:

The growing number of cities and counties in Washington opting out of Washington’s marijuana legalization experiment is eating away at the foundation of Initiative 502, as a Seattle Times editorial in Thursday’s paper suggested. The lack of stores in widening swaths of the state perpetuates the black market and maintains underground access of youth.

A new lawsuit filed in Benton County Superior Court against Kennewick’s ban takes the argument further: Bans are also racially discriminatory. The suit, filed on behalf of a would-be marijuana company, suggests that Kennewick’s ban (as well as similar prohibitions in all three Tri-Cities and Franklin County) push the underground marijuana trade to poorer neighborhoods. Since marijuana is a cash cow for gangs, they’ll continue to battle for turf.

The lawsuit makes some broad assumptions, including that white marijuana users primarily buy from “friends,” and most transactions occur in private homes.... “Minorities and minority children, who reside in racially segregated, high poverty rate neighborhoods in Kennewick, where black market transactions do not occur in private between friends, but instead on the public streets, are therefore disproportionately subjected to violence as a product of the black market trade as compared to whites.”

Attorney Liz Hallock, who filed the suit on behalf of American Weed LLC, summed it up: “This is white people who don’t see the effect of a ban on their street corners.”

The case is scheduled for a hearing next week. Whether it is successful or not, the legality of these municipal bans is likely headed to the state Supreme Court, as another lawsuit, against Fife, is being directly appealed to the high court. These cases will hinge on a lack of specific authority in I-502 for cities and counties to opt out. Attorney General Bob Ferguson issued a non-binding opinion in January that they have an implied right under the state Constitution, which spurred jurisdictions queasy about marijuana to drop the curtain on I-502.

The ACLU’s Alison Holcomb, the architect of the initiative, believes the question about the bans falls to the Legislature: “Are we going to allow opt-out (from I-502), and under what circumstances?” State liquor laws, for example, require an alcohol ban to be put to voters. If state law now treats marijuana like liquor, shouldn’t voters get a say on pot bans?

The Legislative debate is likely to center on whether cities and counties get some of the 25 percent marijuana excise taxes in exchange for accepting state-licensed I-502 businesses. Holcomb said municipalities should have to justify their costs, because legalization, in theory at least, would lower criminal justice costs. “Cities and counties need to make the case and tie the request to the needs,” she said.

Until the Legislature, or the court, acts, the bans are here to stay.

September 13, 2014 in Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, September 4, 2014

"Legal pot, murky jobs: Marijuana laws put workers in tough spot"

The title of this post is the headline of this notable new USA Today article, which gets started this way:

Every time he goes to work, Harvard-trained lawyer Andrew Freedman faces federal prosecution thanks to the source of his paycheck: Colorado's burgeoning marijuana industry.

Freedman, the governor's chief marijuana adviser, faces prison time if federal prosecutors decide to step in.  That's because federal law still considers marijuana as dangerous as heroin or cocaine, and prosecutors could easily bring drug-trafficking charges if they choose. Freedman's salary is paid by the taxes collected on legal marijuana sales.  "I'm in murky territory every day," Freedman said.

He's not alone.  Tens of thousands of marijuana growers, bud tenders, edibles makers, store owners and couriers working in Colorado and Washington and any of the other 21 states and the District of Columbia that have legalized recreational or medical marijuana face the same penalties.

The risk is even greater for dozens of former cops and soldiers working as armed guards in the marijuana industry because federal drug-trafficking laws prescribe far stiffer penalties for anyone using a firearm while handling drugs and money.  Several of the guards interviewed by USA TODAY say they chose to work for Blue Line acknowledged the legal risks they're taking, but said it was safer than being shot at by insurgents or dealing with violent criminals daily.

So far federal prosecutors have held off bringing charges against security firms protecting and servicing the marijuana industry, even though they're aware of the flagrant violations.  USA TODAY in July published numerous photos of a Colorado-based security-firm workers carrying pot, cash and weapons -- photos federal agents and prosecutors confirm they saw.

The situation highlights the tenuous balance federal prosecutors strike as they monitor the sale of legalized marijuana.  Marijuana remains illegal at the federal level, even though voters in Colorado and Washington have allowed adults to possess and consume it for fun.  Federal officials say they're trying to balance state law while keeping pot out of the hands of kids and profits away from drug cartels.

Marijuana-industry workers acknowledge the risks they're taking, but say they're assuming federal prosecutors will leave them alone as long as they keep to the strictest interpretation of the state law.  "If you touch the product, then you're at risk for federal prosecution," said Michael Jerome, a spokesman for Blue Line Protection Group, which provides armed guards to transport marijuana and cash for pot-shop owners. "That's why we're trying to make it safe and legitimate and responsible, so we can respect the wishes of the voters of the state of Colorado and keep the federal government out of it."

September 4, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, September 1, 2014

Campaign over marijuana legalization heating up in Alaska

Images (2)This lengthy new local article, headlined "Alaska marijuana legalization initiative: Supporters, opponents rally," provides an effective review of the state of debate concerning marijuana reform in The Last Frontier:

With two months left to sway Alaska voters, the dueling groups in support and opposition of a ballot measure to legalize, tax and regulate recreational marijuana in Alaska are ramping up their campaigns, and Friday they offered glimpses of what’s to come in the weeks leading to the general election.

The group backing the initiative -- the Campaign to Regulate Marijuana Like Alcohol in Alaska -- gave insight into an upcoming advertising campaign and a new website to be unveiled in early September.

Meanwhile, opposition group “Big Marijuana. Big Mistake. Vote No on 2” said new constituency groups were in the formation stages, and touted recent endorsements by businesses and organizations.

The campaigns are setting their sights on Nov. 4, the day Alaskans will cast their votes on Ballot Measure 2. The initiative would legalize recreational use of marijuana for adults aged 21 and older and levy a tax of $50 per ounce of pot. Should it pass, the eight-page initiative would leave much of the regulation-making process in the hands of the state. The state would have nine months to craft these regulations, including labeling and health and safety guidelines and security requirements for marijuana businesses.

Summer polling shows Alaskans split on whether to legalize. Public Policy Polling data released in early August showed that of 673 voters polled, 44 percent were in favor of the initiative, 49 percent opposed and 8 percent unsure. Those numbers show a slight decrease in support since May, when PPP showed 48 percent in favor, 45 percent opposed, and 7 percent unsure.

Deborah Williams, deputy treasurer of Vote No on 2, said the August poll was evidence that public support for the initiative is wavering. Campaign to Regulate spokesperson Taylor Bickford disagreed. “We aren’t concerned at all. Our internal polling tells a different story,” he said....

A major component of the new campaign is a new website, TalkItUpAlaska.org. That website will provide supporters with a comprehensive resource database. It’s set to go live in early September, he said. The website will host an online phone bank pulled from the campaign’s database, allowing volunteers to call voters directly. Another section will compile information on canvassing, public and private events, and general volunteer opportunities. Downloadable fliers, campaign merchandise, and online fundraising tools will also be available, among other resources....

Vote No on 2 has criticized the group’s influx of money from the Marijuana Policy Project, saying that outsiders are pushing marijuana commercialization on the state. Bickford said Friday that such criticism was simply a distraction. Meanwhile, Vote No on 2 had filed $40,487 in contributions as of Friday, according to APOC. The largest donation, $25,000, came from Chenega Corp., an Alaska Native village corporation....

Deputy treasurer for Vote No on 2, Deborah Williams, said Friday “tremendous momentum” was building to defeat the ballot measure. Constituency groups working within Vote No on 2 are “in the formation stage,” Williams said. Those include “Attorneys Against Ballot Measure 2,” “Physicians Against Ballot Measure 2,” and “Athletes Against Ballot Measure 2,” the latter being spearheaded by Alaska Olympian Rosey Fletcher.

Karen Compton, a stay-at-home mother of two, is heading “Mothers Against Ballot Measure 2.” So far the group is comprised of a handful of “influential moms,” Compton said. The group isn’t trying to raise money, but would be using social media to get its message out and talking with various organizations about its position. As part of Vote No on 2, Compton said the group’s role is to help mothers identify with the campaign. “I think people identify (with a group) when they see people like them or people they know who have taken a stand,” she said.

Meanwhile, numerous organizations continue to come out against the initiative. The Alaska Republican Party passed a resolution in May opposing the ballot measure. The Alaska Chamber of Commerce issued a resolution in opposition in late August. The Alaska Conference of Mayors, Doyon Ltd., and Alaska Asthma Coalition are among the other groups that have come out in opposition of the measure.

Bickford said the Campaign to Regulate wasn’t surprised, or concerned, by the endorsements. “Ultimately, it won’t be politicians and business groups and organizations deciding this issue,” he said. He noted the ballot measure endorsements from the Alaska Libertarian Party and the Alaska Democratic nominee for U.S. House of Representatives, Forrest Dunbar, among others.

In the weeks ahead, Vote No on 2 will be “getting the word out through community forums, through one-on-one conversations, (and) through the debates that are coming up,” Williams said. Eight public hearings on the initiative will be held in the month of September, in Nome, Barrow, Juneau, Ketchikan, Anchorage, the Matanuska-Susitna Borough, Bethel and Fairbanks. The complete schedule is available on the lieutenant governor’s website.

September 1, 2014 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, August 28, 2014

Does an increase in marijuana seizures in Colorado mail mean more Coloradan's are mailing marijuana? Not necessarily.

There's a new law enforcement report out saying postal inspectors saw a big spike in marijuana seizures from Colorado mail headed to other states between 2010 and 2013. 

The amount of Colorado marijuana being seized en route to other states through the U.S. mail has more than quadrupled since 2010 and was destined for more states than before, according to a new report by a federally funded drug task force.

 

Postal inspectors seized more than 493 pounds of pot from packages in 2013, up from 57 pounds in 2010, the year after medical marijuana dispensaries proliferated in Colorado, according to the figures released this month by the Rocky Mountain High Intensity Drug Trafficking Area.

 

Just 15 packages were bound for 10 states in 2010, compared to the 207 parcels destined for 33 states in 2013. Top destinations were Florida, Maryland and Illinois, the report states.

Does this news mean Coloradans are actually sending more marijuana to other states than they used to?  No, not necessarily.  

The increase in seizures could just as easily be the result of more vigilant enforcement as the result of more Coloradans mailing marijuana to friends.  Perhaps inspectors have started to look more closely at Colorado packages in response to the state's marijuana reforms.  Similarly, it is not incoceivable that legalization opponents are pushing to up enforcement to try and boost numbers to give legalization a black eye (certainly, it seems like this HIDTA report was released with that in mind.)

On this point, it is worth recalling that marijuana arrests more than doubled between 1990 and 2002. Did marijuana use double during that same period?  Not at all.  The numbers were the result of increased law enforcement attention to small marijuana cases (broken windows, stop and frisk style enforcement, etc.).  

To be sure, the numbers could reflect a real increase in Coloradans sending marijuana out of state.  (Or, it could be a mixture of both causes.)

But the only thing this data tells us is that more marijuana is being seized, not what caused the jump in seizures.  

August 28, 2014 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, August 26, 2014

The local option for marijuana, Part II: the theory of local control

In my last two posts, I’ve highlighted the emerging struggle between state and local governments for control of marijuana policy. My latest article tries to provide some guidance on whether states should give local governments the option of banning marijuana sales.

This Part of the article discusses the theory of local control. It illuminates the competing considerations that help determine whether local control over marijuana (or any other issue) is normatively desirable. (I’ve eliminated the footnotes for this post, but they’ll be available once I post the completed draft on SSRN.)

A. The case for local control

Local control is supposed to promote economic efficiency. In particular, empowering local governments to tackle divisive issues is supposed to enable more people to get the policy they desire. The reason is that minorities in statewide contests sometimes comprise majorities in local communities; there are, after all, more than 3,000 counties and 15,000 municipalities sprinkled throughout the 50 states. These residents would be happier if they were allowed to pursue the policy they prefer through these local communities, rather than live under the policy the state as a whole would choose. Mobility of the population arguably enhances the efficiency of local control. The idea is that residents who are dissatisfied with the policy espoused by one local government can relocate to a community with a more appealing policy. To be sure, residents could also relocate from one state to another, but the comparatively large number of local governments increases the chances that dissatisfied residents will find more appealing matches and it also lowers the cost of relocation.

Continue reading

August 26, 2014 in History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

"Washington's Marijuana Legalization Grows Knowledge, Not Just Pot"

The title of this post is the title of this terrific new Brookings research paper which takes a close look at Washington state’s early experience in legalization of recreational marijuana. Here is how the report is summarized on the Brookings website:

Voters in Washington state decided in November 2012 to legalize marijuana in their state, inspired by a campaign that emphasized minimizing the drug’s social costs and tightly controlling the legal recreational market. Joined to this drug policy experiment is a second innovative experiment that emphasizes knowledge: the state will fund and develop tools necessary to understand the impact of legalization on Washington’s law enforcement officials, communities, and public health.

This second reform, though less heralded than the attention-grabbing fact of legalization, is in many ways just as bold. Washington’s government is taking its role as a laboratory of democracy very seriously, tuning up its laboratory equipment and devoting resources to tracking its experiment in an unusually meticulous way, with lessons that extend well beyond drug policy.

Brookings’ Philip Wallach interviewed advocates, researchers, and government policymakers in Washington to learn about the state’s novel approach. In this report, he highlights several noteworthy features:

  • Building a funding source for research directly into the law: a portion of the excise tax revenues from marijuana sales will fund research on the reform’s effects and on how its social costs can be effectively mitigated.
  • Bringing to bear many perspectives on legalization by coordinating research efforts across multiple state agencies, including the Department of Social and Health Services, the Department of Health, and the Liquor Control Board.
  • Mandating a cost-benefit analysis by the state’s in-house think tank, which will be nearly unprecedented in its scope and duration.

Wallach makes a number of suggestions to ensure that Washington’s knowledge experiment can be made to work, including:

  • Ensure political independence for researchers, both by pressuring politicians to allow them to do their work and by encouraging the researchers themselves to refrain from making political recommendations
  • Gather and translate research into forms usable by policymakers
  • Counter misinformation with claims of confident uncertainty
  • Have realistic expectations about the timeline for empirical learning, which means cultivating patience over the next few years
  • Specify which reliable metrics would indicate success or failure of legalization

August 26, 2014 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Friday, August 22, 2014

"Come on vacation, leave on probation" says Idaho lawyer about state's pot policy

The quote in the title of this post is drawn from this new Businessweek article headlined "Marijuana Law Mayhem Splits U.S. as Travelers Get Busted."  Here is how the lengthy article gets started:

America is two nations when it comes to marijuana: in one it’s legal, in the other it’s not. The result is that people like B.J. Patel are going to jail.  The 34-year-old Arizona man may face a decade in prison and deportation following an arrest in 2012.  On a trip in a rented U-Haul to move his uncle from California to Ohio, he brought along some marijuana, which is legal for medicinal use in his home state.

Headed eastbound on I-44 through Oklahoma, Patel was stopped for failing to signal by Rogers County Deputy Quint Tucker, just outside Tulsa.  He was about to get off with a warning when Tucker spotted a medical marijuana card in his open wallet. “‘I see you have this card. Where’s the marijuana?’”  Patel recalled Tucker asking him. “I very politely and truthfully told him, ‘I’ll show you where it is.’”  That’s where things started to go bad for Patel.  He now faces trial next month on a felony charge.

Possessing pot for recreational use is legal in Washington and Colorado, and allowed for medicinal purposes in 23 states.  The other half of the country, which includes Oklahoma, largely prohibits any amount for any purpose.

While challenges may land the issue before the U.S. Supreme Court, what exists now is a legal checkerboard where unwitting motorists can change from law-abiding citizens to criminals as fast as they pass a state welcome sign.  The difference is especially clear in states like Idaho.  Surrounded on three sides by pot-friendly Washington, Oregon, Nevada and Montana, Idaho State Police seized three times as much marijuana this year as in all of 2011.

“The manner in which a person acquires the drug is not relevant,” Teresa Baker, an Idaho police spokeswoman, said.  “This is important to know for those who may purchase it legally elsewhere, believing that it will be overlooked.”  

James Siebe, a lawyer in Coeur d’Alene, put it another way: “Come on vacation, leave on probation.”

August 22, 2014 in Criminal justice developments and reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, August 20, 2014

Oregon legalization campaign will run at least $2.3 million in TV ads

The Oregonian reported Monday that proponents of ballot measure 91 will spend at least $2.3 million on television advertising this election cycle.  

Here's their current ad:

 

To my knowledge, there is not yet a formal opposition group to the measure  (and there does not appear to be a Project SAM affiliate in the state.)  

August 20, 2014 in Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

WA Attorney General files brief in case raising federal preemption

Although the Obama administration decided not to pursue a preemption challenge to Colorado and Washington's legalization laws, private parties and/or local officials can also raise the federal preemption issue in the right case.  In Washington, a local ban on marijuana stores has prompted a lawsuit that looks likely to do just that.

The Seattle Times provides a summary of the dispute:

In July, the city of Fife approved an outright ban on marijuana businesses. A prospective pot store is suing the city in Pierce County Superior Court and hopes to overturn the ban.

 

The case could cement Washington’s pot law or unravel it, depending on the success of arguments from the State Attorney General’s office and the ACLU, who have both intervened in the lawsuit.

 

There are two key issues in the case: whether Fife and other municipalities are allowed to ban marijuana businesses under Initiative 502, the state law that legalized pot, and whether federal law banning pot trumps state law on the issue.

Yesterday, the Washington AG filed a brief in the case (PDF), which appears to be at the summary judgment stage.  In it, the AG argues that Fife's ban on marijuana businesses is not preempted by the state's legalization law.  If the court agrees with the AG on that point, then it won't need to reach the question of federal preemption.  If it disagrees, however, then it will have to decide whether or not federal law preempts the state's law.  

Here is the beginning of the AG's argument on federal preemption:

Because Congress made clear that it only intended to preempt state laws that create a “positive conflict” with the CSA, id., Congress did not “occupy the field” of regulating controlled substances. Field preemption is thus inapplicable under the CSA. Express preemption also effectively becomes irrelevant because it overlaps completely with conflict preemption here, i.e., the statute expressly preempts only state laws that create a “positive conflict.” See, e.g., County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 476 (Cal. Ct. App. 2008) (“numerous courts have concluded[] that . . . 21 U.S.C. § 903[] demonstrates Congress intended to reject express and field preemption of state laws concerning controlled substances”) (copy attached). Moreover, as to conflict preemption, because the statute limits preemption to state laws where “there is a positive conflict between . . . [the CSA] and that State law so that the two cannot consistently stand together,” 21 U.S.C. § 903, many courts have held that obstacle preemption is irrelevant under the CSA, because the only form of conflict the CSA is concerned with “is a positive conflict,” id. See, e.g., San Diego NORML, 81 Cal. Rptr. 3d at 481; People v. Crouse, ___ P.3d ___, 2013 WL 6673708, at *4 (Colo. Ct. App. Dec. 19, 2013) (same) (copy attached). Indeed, other federal statutes specify that both impossibility and obstacle preemption apply, demonstrating that Congress knows how to write such a clause if that is its intent. See, e.g., 21 U.S.C. § 350e(e). 

I think the federal preemption argument is a weak one (I suspect that's a big part of why the federal government has never once brought a preemption lawsuit against a state medical marijuana law, even under Bush when there was no doubt about the DOJ's opposition to these laws.)  But, this will certainly be a case to watch closely. The ACLU's page monitoring the case is here.

August 20, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, August 19, 2014

The local option for marijuana, part I: Introduction

As promised, I’m going to dive into a new project evaluating the “local option” for marijuana: i.e., proposals to allow local governments (usually counties) to ban marijuana sales, notwithstanding state legalization of the drug.

I plan to post the project piecemeal. I'm still working on the language, ideas, and research, so I welcome feedback. I’ll start, naturally, with the Introduction (omitting footnotes) and follow with the Parts II and III to follow over the course of the next week. Here goes:

 

    The states have largely prevailed in their struggle against the federal government for control over marijuana policy. More than 20 states have already legalized marijuana under state law and the number is sure to grow. Though the federal government has not yet repealed its own marijuana prohibition, it has largely ceded control of the issue to the states. As I wrote nearly five years ago,

[M]edical marijuana use has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, though skirmishes will undoubtedly continue, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the victors in this struggle. Supremacy, in short, has its limits.

    But the states are now facing growing opposition from within. Citing concerns over marijuana’s perceived harms, many communities in marijuana legalization states are seeking to re-instate marijuana prohibition at the local level. In Colorado alone, for example, more than 150 municipalities have passed ordinances banning marijuana shops outright.

    These local ordinances raise one of the most important and unresolved questions surrounding marijuana law reforms: What power, if any, should states give local governments to regulate marijuana? How the states answer this question will determine just how quickly and broadly marijuana legalization spreads. The experience with alcohol control is instructive. Although national alcohol prohibition was repealed in 1933, and although Mississippi repealed the last statewide alcohol prohibition in 1966, hundreds of local communities – governing roughly 10% of the nation’s population -- continue to ban the sale of alcohol today, more than 80 years after the ratification of the 21st Amendment.

    Despite the importance of the local authority question, there has been surprisingly little attention paid to it. Most marijuana legalization states failed to address local authority in their marijuana reform legislation, sparking dozens of lawsuits challenging local ordinances. In many states, the issue of local control remains unsettled. And while many scholars have weighed in on the federalism issues surrounding marijuana law reforms, they have all but ignored the important power battles now flaring up within the states.

    This Article begins to fill the gap. It aims to provide lawmakers, jurists, scholars, and other interested parties insights into the desirability of enabling local communities to ban marijuana. It approaches this task in two ways. First, it discusses the theory of local control. The theory seeks to balance the interests of individual local governments against those of our broader society. On the one hand, local governments can tailor their policies to satisfy local tastes. What’s right for Last Vegas isn’t necessarily right for Reno. On the other hand, local policies can also affect outsiders who have no say over them. What happens in Vegas doesn’t necessarily stay there. The desirability of local control over any given issue hinges on the relative strength of these competing considerations.

    Second, the Article attempts to gauge the strength of these competing considerations for marijuana. Would local control advance local policy interests? Would it harm outsiders? It is, of course, far too early to gauge the impact of local marijuana regulations. But we do have more than one century worth of experience with local alcohol regulations. I argue that this experience holds some valuable lessons for debates over local marijuana control. In particular, I find our experience with local alcohol control should temper enthusiasm for giving local government similar control over marijuana. The research on local alcohol control suggests that local alcohol regulations have effects beyond the boundaries of the jurisdictions that adopt them. A wet county might thwart a neighboring dry county’s effort to curb alcohol consumption and the harms that go along with it. Likewise, a dry county might shift some of the harms of alcohol consumption onto a neighboring wet county. The sobering experience with local alcohol control suggests that the state or even national governments might be better suited to controlling that substance and, by extension, marijuana as well.

    The Article proceeds as follows. Part I discusses the current controversy over local marijuana regulation. Part II discusses the theoretical framework for evaluating the desirability of local control. Part III discusses the lessons of local alcohol control. Part IV then returns to draw some tentative conclusions about the desirability of local marijuana control.

August 19, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Wednesday, August 13, 2014

The Local Option for Marijuana

I haven’t blogged for a while, but I’ve been enjoying Doug’s and Alex’s and Rebecca’s posts over the summer.

After starting up several new projects over the summer, I’m finally able to begin blogging again. In my first few posts, I’m actually going to focus on one of the projects that consumed my summer time -- a symposium paper I’m writing tentatively called The Local Option for Marijuana. The paper asks whether states should allow local governments to ban marijuana sales, notwithstanding state legalization of the drug. Doug, Alex, and I have debated the merits of the local option before – see posts and comments here, here, and here. I think we identified most of the major arguments both for and against local control. But it also became clear to me that many of our arguments depended on contested assumptions about the effects of local control. For example, local control looks a lot less appealing if it simply displaces – rather than reduces – the harms associated with marijuana distribution (DUIs, etc.). But it’ll probably be decades before we can know with any certainty what happens when local communities ban vs. allow marijuana distribution. And that will simply be too late for most states, which must decide now whether to grant local governments the option of banning marijuana sales.   

Fortunately, we do have decades of experience with local control of alcohol that could prove instructive. Since the mid-to-late 1800s, states have delegated power to local governments to control – even ban -- the distribution of alcohol. Indeed, hundreds of counties inhabited by roughly 10% of the nation’s population remain “dry” today. Social scientists have exploited county-by -county variations to test the effects of various local controls on alcohol consumption, cirrhosis, traffic fatalities, etc.  In this article, I’m poring through that research for lessons about local control over marijuana. I have a few tentatively formed conclusions that I’ll share in the coming days. As always, I’m open to comments, critiques, and suggestions – sources, avenues of inquiry, etc.

August 13, 2014 in Current Affairs, History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Monday, August 11, 2014

Notable summer marijuana sales numbers in Colorado and Washington

As reported in this new AP article, "June was the best-selling month yet for recreational pot in Colorado, with $24.7 million in total sales, according to state tax collections reported Friday." Here is more:

Recreational pot sales were up more than 19 percent from June sales, an increase likely attributable to more stores opening. Since January, Colorado has reaped $29.8 million in taxes from marijuana, according to June collections reported by the state Department of Revenue. That figure includes taxes, licenses and fees from both medical and recreational pot.

Recreational pot is inching toward medical pot in total sales. In January, Colorado's statewide sales tax on medical pot produced nearly twice the taxes produced by recreational pot. By June, the statewide 2.9 percent sales tax from medical pot brought in less than 20 percent more than the same tax on recreational weed. Estimates for how much tax revenue legal weed would produce varied widely, with no preceding legal pot taxes on which to guess sales....

In Washington state, where recreational pot sales started last month, pot sales numbers were also released Friday. That state reported 18 stores selling about $3.8 million worth of marijuana in July — a higher number than Colorado's first month of recreational sales.

August 11, 2014 in Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Friday, August 1, 2014

"Colorado’s Rollout of Legal Marijuana Is Succeeding: A Report on the State’s Implementation of Legalization"

I highlighted and celebrated in this post a few months ago that The Brookings Institution was committed to "researching the new marijuana industry, not as advocates, but as social scientists, interested in how our federal system comes to terms with statewide decisions to legalize a substance that is illegal in the rest of the country, and how states implement those policy changes." The first significant report resulting from that research carries the title that is the title of this post. And here are excerpts from the start of this notable 35-page Brookings report:

In November 2012, Colorado voters decided to experiment with marijuana. Formally, they approved Amendment 64, modifying the state constitution.  This move was historic and did something which, to that point, no other state or modern foreign government had ever done: legalize retail (recreational) marijuana.  As part of the amendment, the state was required to construct legal, regulatory, and tax frameworks that would allow businesses to cultivate, process, and sell marijuana not simply to medical patients — as had been happening in Colorado for over a decade—but to anyone 21 and older.  This change came despite existing federal prohibition of marijuana and opposition from the governor, state attorney general, many mayors, and the law enforcement community.

At its heart, this report is about good government and takes no position on whether the legalization of retail marijuana was the correct decision.  Instead, it takes for granted that Amendment 64 and its progeny are the law and should be implemented successfully, per voters’ wishes.  The report examines what the state has done well and what it has not. It delves into why, and how, regulatory and administrative changes were made.  Finally, it offers an evaluation of how effective the implementation has been.

Prior related post:

August 1, 2014 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Tuesday, July 29, 2014

Colorado and Washington Senators press White House for clearer marijuana policy guidance

As detailed in this official press release, titled "WA, CO Senators push Obama Administration to set clear, consistent policies so states can implement marijuana laws," the four Senators representing the two states which have legalized recreational marijuana have sent a letter to the White House Chief of Staff and Attorney General Eric Holder urging more federal guidance about state marijuana activities.  The full letter is available at this link, and here is how it starts:

We write to request that the Administration provide guidance to departments and agencies ensuring a consistent and uniform application of federal laws that could affect licensed marijuana businesses, dispensaries, and growers in Washington state and Colorado.

As you know, our states are implementing regulatory and licensing schemes to ensure any production and sale of marijuana is in accord with state law, and is conducted in a manner that preserves public health and safety. In working toward this goal, in some instances, our states will have to react to new information and evolving circumstances as this process moves forward. We believe the federal government should support Colorado and Washington state’s effort to establish a successful regulatory framework in a way that achieves greater certainty for local officials, citizens, and business owners as they tackle this complicated and important task. At times, however, certain federal agencies have taken different approaches that seem to be at odds with one another and may undermine our states’ ability to regulate the industry adequately.

In order to provide more regulatory clarity, we believe that the Administration should provide consistent and uniform guidance to departments and agencies regarding the interpretation and application of the Controlled Substances Act (“CSA”) and other federal laws that could impact the marijuana industries in our states. Without such guidance, our states’ citizens face uncertainty and risk the inconsistent application of federal law in Colorado and Washington state, including the potential for selective enforcement actions and prosecution.

July 29, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, July 27, 2014

New York Times now advocating: "Repeal Prohibition, Again"

NYTThe title of this post is the headline in this (historic?) new New York Times editorial calling for the legalization of marijuana.  Here are excerpts:

It took 13 years for the United States to come to its senses and end Prohibition, 13 years in which people kept drinking, otherwise law-abiding citizens became criminals and crime syndicates arose and flourished. It has been more than 40 years since Congress passed the current ban on marijuana, inflicting great harm on society just to prohibit a substance far less dangerous than alcohol.

The federal government should repeal the ban on marijuana.

We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.

There is honest debate among scientists about the health effects of marijuana, but we believe that the evidence is overwhelming that addiction and dependence are relatively minor problems, especially compared with alcohol and tobacco....

There are legitimate concerns about marijuana on the development of adolescent brains. For that reason, we advocate the prohibition of sales to people under 21.

Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.

In coming days, we will publish articles by members of the Editorial Board and supplementary material that will examine these questions. We invite readers to offer their ideas, and we will report back on their responses, pro and con.

We recognize that this Congress is as unlikely to take action on marijuana as it has been on other big issues. But it is long past time to repeal this version of Prohibition.

In addition, today's New York Times has these related signed editorial pieces to kick off its series of coverage:

July 27, 2014 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, July 24, 2014

Analysts predict Oregon would generate $38.5 million in tax revenue in first year of pot legalization

OregonAs detailed in this lengthy new report, titled simply "Oregon Cannabis Tax Revenue Estimate," a prediction of marijuana usage is at the heart of economists' prediction of significant tax revenues is the citizens of Oregon legalize recreational marijuana this fall. Here is the report's Executive summary:

Oregonians are slated to vote on the “Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act” in November 2014. The measure would regulate, tax, and legalize marijuana for adults 21 and older with legal use beginning in July, 2015.

Economists at ECONorthwest conducted an independent study to estimate the amount of money that would be generated in the short term if the Act passes. The money generated in taxes would go to schools, state and local police, and programs for drug treatment, prevention, drug education, and mental health.

The key findings of this analysis are:

• $38.5 million in excise tax revenue would be generated during the first fiscal year of tax receipts;

• $78.7 million in excise tax revenue would be generated during the first full biennium of tax receipts.

The report does not look at the impact on courts, police, and jail operating costs due to legalization. The forecast is based on a comprehensive methodology that includes the following: the cost of production; price elasticity; the price of marijuana and its retail products; market demand; the short-term demand remaining in the gray market; accessibility of non-medical sales; new market entrants; home production; and non-resident demand.

The “Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act” legalizes the growth, processing, wholesaling, and retailing of marijuana for adult purposes. If enacted, retail sales in Oregon could begin July 1, 2016.

Petitioners for this Act asked ECONorthwest to forecast state government tax revenues that would arise in the first fiscal year of its implementation, presumed to be July 1, 2016 through June 30, 2017 (FY 2017). Similarly, they asked ECONorthwest to estimate tax revenues in the first full biennium, July 1, 2017 to June 30, 2019 (2017-19 biennium). This report summarizes ECONorthwest’s research and forecast.

July 24, 2014 in Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Tuesday, July 22, 2014

Could Vermont become the first state to legislatively legalize marijuana?

The question in the title in this post is prompted by news yesterday that Vermont has contracted with RAND to study the possible effects of legalizing marijuana in the state.  

A study like this could provide political momentum and support for a planned 2015 legalization bill.  Though, of course, its actual impact will depend in large part on what the study finds.  At the very least, however, it indicates that a critical mass of elected officials in Vermont have more than just a passing interest in legalization.  

Also of note, Vermont's Governor, Peter Shumlin has been praised by NORML in the past for his support of reforming marijuana laws.  Shumlin is up for reelection this year.  Assuming he retains office, his presence would go a long way toward making legalization via legislation a real possibility.  (Some may recall that New Hampshire's legislative legalization efforts hit a road block earlier this year after opposition from their Governor.)

And, whatever the political outcome, I'm sure RAND's report will be interesting reading for all who follow this issue, especially since the news story indicates Beau Kilmer--whose work in this area is consistently must-read--will be meeting with Vermont officials next week to get the study going.

Here's some highlights from the story about the upcoming study:

Rand Corp. representatives will be in Vermont next week to begin work on a study of the effects that marijuana legalization might have on the state's economy, individual health and public safety.

 

The international, nonprofit research organization was chosen to conduct the study, which was mandated in a bill passed by the Legislature last session.

 

The state will pay $20,000 toward the study, which will be augmented by as much as $100,000 in private donations, officials said Friday.

 

Rand Corp. declined to comment on the research until the organization's senior policy analyst Beau Kilmer meets with Vermont officials next week. More details on the study would be released then, Rand spokesperson Warren Robak said.

 

"We were looking for someone who wasn't going to make a case that we legalize or not legalize," Spaulding said, adding that Rand is "very well-respected."

 

The report generated by Rand should give Vermont legislators the facts they need to have a well-informed debate next winter, one lawmaker says.

 

"I think the study will help with legislators and the public who inherently think it's a good idea but want evidence they can hold up to show people," said state Sen. David Zuckerman, P/D-Chittenden. Zuckerman said he will propose a marijuana regulation and legalization bill in the 2015 legislative session.

 

"It can work in other states," Zuckerman said. "We just have to make some changes."

July 22, 2014 in Current Affairs, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, July 15, 2014

Should marijuana home delivery be embraced or feared?

The question in the title of this post is prompted by this notable new AP article headlined "Next up for legal pot? Marijuana at your doorstep." Here are excerpts:

William “Jackrabbit” Large pulls his SUV onto the side of a downtown Seattle street, parking behind an Amazon Fresh delivery truck and carrying a product the online retailer doesn’t offer: marijuana.

The thin, bespectacled Large is a delivery man for Winterlife, a Seattle company that is among a group of new businesses pushing the limits of Washington state’s recreational pot industry by offering to bring marijuana to almost any doorstep. “It’s an opportunity that should not be missed,” Large says with the kind of fast-talking voice meant for radio.

While delivery services have existed for years to supply medical marijuana patients, the rise of similar businesses geared toward serving recreational users in Washington and Colorado highlights how the industry is outpacing the states’ pot laws.

Winterlife’s business model is a felony under Washington state law, which allows only the sale of pot grown by licensed producers at licensed retail shops. Lawmakers should consider changing that, said Alison Holcomb, the author of the 2012 voter initiative that legalized the recreational use of pot, because providing more ways to access marijuana will help push people to the legal pot market.

In Colorado, where marijuana regulations require sales to be done in licensed dispensaries, there’s a flourishing market online for marijuana deliveries made in exchange for donations. The law allows adults over 21 to give one another up to an ounce of marijuana, provided it is done “without remuneration.”

The only known case of criminal charges brought against a Colorado delivery service came last year, when the owner of a pot-for-donations service in the Colorado Springs area faced felony distribution charges. He committed suicide before trial.

In Washington, where the legal pot industry kicked off last week, companies like Winterlife jumped into fill demand from consumers for marijuana while the state spent the past 19 months building the regulations and licensing growers and retailers. Winterlife co-founder Evan Cox, a vegan and bicyclist enthusiast, began by advertising on Craigslist and made deliveries.

Now he has around 50 full and part-time employees, including 25 to 30 delivery personnel in cars and bicycles. Operators field between 400 and 600 calls a day. “We found a way to really fill the need that the Washington voter said that there is,” he says from his company’s headquarters, where workers busily sort, cut and package their different marijuana products into branded clear bags.

The Winterlife model is simple. They have a website that features their products – marijuana flowers, edibles and pipes. After making a call, the consumer’s phone is relayed to a driver, who then asks them where they want to meet.

Cox is fully aware of the shaky legal ground where he stands. All of the drivers operate under animal-inspired pseudonyms. There’s a jackrabbit, a wombat, a possum, among others. Cox is also mostly staying within Seattle, where police have tolerated the company’s presence and voters in the city made marijuana crimes a low priority for law enforcement years ago....

Sgt. Sean Whitcomb, a spokesman for the Seattle Police Department, said Winterlife is undermining the spirit of the legal marijuana law. So far, he said, the police department has bigger priorities. But he said the department could change its stance if it receives information about underage sales or other complaints. The department recently seized more than 2,200 plants from a medical marijuana grow that was bothering neighbors.

July 15, 2014 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

"White House Says Marijuana Policy Is States' Rights Issue"

The title of this post is the headline of this new Huffington Post piece.  Here is how it starts:

The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.

The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."

Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.

July 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (1)