Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, April 27, 2016

Maine now officially back on the list of states likely to vote on marijuana legalization this November

As reported in this new AP piece, the "referendum proposal to legalize marijuana for recreational use in Maine has met the threshold to appear on the November ballot, Secretary of State Matthew Dunlap said Wednesday."  Here is more about what happens now and why this was not a certainty just a few months ago:

The announcement means the citizen initiative will be forwarded Friday to state lawmakers, who can either enact it now or put it before voters in the fall.

David Boyer from the Campaign to Regulate Marijuana Like Alcohol said he looks forward to educating Maine voters as to why ending marijuana prohibition makes sense.  "We think that regulation and controlling marijuana and putting it behind the counter is a far better approach than giving drug dealers a monopoly," Boyer said.

Scott Gagnon, who opposes marijuana legalization, said the effort would make Maine "the weed basket of the East" and bring along with it a variety of societal ills.  "We are confident that when Mainers see the full story of marijuana and what it would mean to have pot dispensaries in their community, they will rise up to reject the marijuana industry agenda, to protect the health of their communities and the futures of their children," he said.

The measure would legalize marijuana for recreational use for adults 21 and older, allowing them to possess up to an ounce. It also would regulate and tax marijuana. Maine already legalized marijuana for medical use in 1999....

The Campaign to Regulate Marijuana Like Alcohol originally submitted 99,229 signatures on Feb. 1, but only 51,543 of the signatures were deemed to be valid. A review was ordered after a judge set aside Dunlap's decision to reject thousands of signatures because the notary's signature didn't match the signature on file in Augusta.... Dunlap said Wednesday that seven circulators whose petitions containing 11,305 signatures were originally invalidated have sworn under oath that they signed their petitions in front of notary Stavros Mendros.

Maine will be one of several states considering marijuana legalization proposals. Colorado, Washington, Oregon, Alaska and Washington, D.C., already have made recreational use of marijuana legal for adults.

April 27, 2016 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, April 20, 2016

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

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

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

"Ohio voters support marijuana legalization, poll finds"

"Stoned Moms"

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

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

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

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

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

Friday, April 8, 2016

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

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

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

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

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

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

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

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

Monday, April 4, 2016

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

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

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

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

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

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

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

Wednesday, March 30, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 22, 2016

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

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

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

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

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

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

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

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

Monday, March 21, 2016

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

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

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

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

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

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

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

Cross-posted at Marijuana Law, Policy & Reform.

March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Friday, March 18, 2016

Oregon tax coffers already getting extra stuffed one month into recreational marijuana sales

Oregon-potAs reported in this local article, headlined "Oregon collects three times expected amount of recreational marijuana taxes in first month," Oregon voters' decision to embrace full marijuana legalization is already producing much-more-than-expected tax revenues for the state. Here are the details:

Oregon brought in more than three times the expected amount of recreational marijuana tax money in the first month it was collected from dispensaries, ­potentially moving up when the state distributes revenue to ­cities and counties. Officials estimated that January might bring in about $1 million in taxes, said Derrick ­Gasperini, communications manager for the state Department of ­Revenue. Figures released Wednesday by the department showed that the state collected $3.48 million in taxes for recreational marijuana sales in January. “It does exceed ­projections,” he said.

As part of a startup year for a recreational marijuana industry in Oregon, dispensaries selling medical marijuana that registered with the department were allowed to sell to recreational buyers. The state requires those dispensaries to charge a 25 percent tax on recreational sales. Medical marijuana sales in Oregon remain untaxed.

That could mean that the tax figures indicate that ­dispensaries around Oregon sold nearly $14 million worth of recreational marijuana in the first month of taxed sales, but Gasperini ­cautioned that the estimation could be incorrect. “The Department of Revenue is not going to make any statements on sales until we have some (tax) returns,” he said. The returns will be submitted by dispensaries later this year.

Dispensaries around the state that sell recreational marijuana collected the taxes in January and gave them into the state between Feb. 1 and March 4, according to the Department of Revenue. The department received 253 tax payments from the 309 registered to sell ­recreational marijuana that month in Oregon. Gasperini explained that not all those registered turned in tax payments because “they may not have made any (recreational) sales,” he said....

A better financial picture of marijuana sales in the state should come after the end of the quarter, the first three months of the year, when he said the department will have more precise figures. For now, he also did not have a breakdown of how much in recreational pot tax money was collected by each county....

Eventually, tax money brought in from recreational marijuana sales will be divided among a variety of accounts: 40 percent for the common school fund, 20 percent for mental health, 15 percent for state police, 10 percent for cities, 10 percent for counties, and 5 percent for the state Health Authority. But that is only after the cost of running the state recreational marijuana program is taken out of the tax revenue. Before even reaching the point of distributing the tax money, the Department of Revenue and the ­Oregon Liquor Control Commission first must recoup their costs of starting up the program Gasperini said....

More taxes coming in than expected could accelerate the state’s move to dolling out the money. Department officials had expected the first distributions to come in July 2017. Gasperini said now they very likely will come sooner.

The current tax model for recreational pot is only set to be in effect this year in Oregon. At the start of next year, retail outlets selling solely recreational marijuana can open. The state plans to tax them at 17 percent, with local governments able to add another 3 percent in taxes.

March 18, 2016 in Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Tuesday, March 8, 2016

Massachusetts special Senate Committee issues big report about marijuana legalization in Bay State

As reported in this local article, a special state Senate Committee in Massachusetts released today a big new report on what the state need to think about if (when?) voters this fall enact marijuana legalization by initiative.   The full report is available at this link, and it runs 100+ pages.  The local press article, headlined "7 takeaways from the special report on marijuana legalization in Massachusetts," provides these useful highlights:

A special state Senate committee, whose members recently traveled to Colorado to see the legal cannabis industry up close, issued its official report on Tuesday, sounding a skeptical note on legalization and hoping to promote a cautious approach.

Here are some takeaways from the report:

  • The report recommends heavily taxing marijuana if it's legalized. The report calls for an excise tax of between 5 percent to 15 percent collected from growers, a marijuana-specific sales tax of 10 percent to 20 percent, and a local option sales tax of up to 5 percent.  That's just to start.
  • The committee's report wants "strict" limits on the marketing, advertising and promotion, including a prohibition of restriction on marijuana advertising on television, radio, print, billboards and other forms of media.  Health risks would have to be put on advertising and marketing, free samples and coupons would be banned.
  • No celebrity endorsements: The report wants a ban on those and brand sponsorships "that may increase appeal to youth."
  • The report wants a ban on "home growing" or at least a temporary prohibition, and also recommends aggregate limits on how much marijuana could be grown in the state each year.
  • The report estimates 885,000 Massachusetts residents used marijuana in the last year -- almost half of them youth and young adults under 25 years old -- consuming a total of 85 metric tons (or 3 million ounces) of marijuana.  That's compared to 3.1 billion servings of beer, wine and spirits in 2012, the report says.
  • One in four high schoolers used marijuana in the last year. One in five Massachusetts marijuana users smoke it daily.
  • Addiction hits one in nine users, the report claims.  The report calls marijuana overdoses "rare" and says it does not lead to death, qualifying it with it potentially leading to "psychotic events."  The report adds: "Pregnant women who use marijuana increase the risk of damage to the fetal brain."

If recreational marijuana is legalized by Massachusetts voters, "it will be critical to dedicate sufficient time, expertise, and resources to ensure as smooth an implementation as possible, which nevertheless is likely to be challenging," the report says.

State officials struggled to implement a medical marijuana program after Massachusetts voters approved it in 2012, the same year Colorado legalized recreational marijuana.  Four years after the approval of medical marijuana, there are six dispensaries are open across Massachusetts, as patient demand for products has surged.

March 8, 2016 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, March 7, 2016

Looking closely at how Vermont legislature is looking closely at marijuana legalization

As I mentioned in this prior post, the students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform are now starting to assemble readings on particular topics in preparation for an in-class presentation/discussion. This week, one of my students is taking a deep dive into Vermont Bill 241, the bill that sets out a framework for "personal possession and cultivation of cannabis and the regulation of commercial cannabis establishments." I have uploaded the full 40+ page text of Vermont Bill 241 below, and I thought it interest and notable that the bill begins this way:

The General Assembly finds that Vermont lawmakers recognize legitimate federal concerns about cannabis reform and seek through this legislation to provide better control of access and distribution of cannabis in a manner that prevents:

(1) distribution of cannabis to persons under 21 years of age;

(2) revenue from the sale of cannabis going to criminal enterprises;

(3) diversion of cannabis to states that do not permit possession of cannabis;

(4) State-authorized cannabis activity from being used as a cover or pretext for trafficking of other illegal drugs or activity;

(5) violence and the use of firearms in the cultivation and distribution of cannabis;

(6) drugged driving and the exacerbation of any other adverse public health consequences of cannabis use;

(7) growing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and

(8) possession or use of cannabis on federal property.

Download VERMONT legalization bill S-0241 As Introduced

March 7, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, March 2, 2016

Looks like Maine may no longer be a state to watch on the marijuana legalization initiative front in 2016

This local article, headlined "Maine marijuana legalization bid fails to qualify for ballot," reports that the folks seeking to put a marijuana legalization initiative on the ballot in the Pine Tree state seemed to have come up short in their efforts. Here is why and some context:

An effort to legalize recreational use of marijuana in Maine did not qualify for the November ballot, accoridng to state election officials. Secretary of State Matt Dunlap said in a statement that the proposal did not have enough valid signatures of Maine voters. The campaign needed 61,123 signatures. According to Dunlap’s office, the campaign only provided 51,543 valid signatures.

The Campaign to Regulate Marijuana Like Alcohol now has 10 days to appeal the decision. An appeal would be reviewed in Maine Superior Court. Campaign leader David Boyer said they were “very disappointed” with the Secretary of State office’s determination that 17,000 signatures apparently from a single notary did not match the signatures on file. “We will be exploring all legal avenues that are available to appeal this decision and sincerely hope that more than 17,000 Maine citizens will not be disenfranchised because of a handwriting technicality,” Boyer said.

The campaign turned in 99,229 signatures on Feb. 1. According to Maine election officials, over 31,000 signatures were deemed invalid because signatures on petitions swearing that the circulator witnessed signature collection did not match his or her signature on file. One circulator was listed as the public notary on 5,099 petitions containing 26,779 signatures. Other irregularities included 13,525 signatures that were invalid because they did not belong to a registered voter in the municipality where they were submitted.

The Campaign to Regulate Marijuana Like Alcohol backed the initiative, which would allow adults 21 and older to possess small amounts of marijuana for recreational use. The push for legalization began with two competing measures, including one backed by a group called Legalize Maine. But the campaigns united behind one proposal in October, after advocates became concerned that having two similar proposals on the ballot would create confusion among voters and split the vote.

The campaign faced opposition from a group formed to prevent legalization, and from parts of the medical marijuana community in Maine. When campaign supporters delivered petitions to the Secretary of State’s Office in Augusta in February, they were met by protesters who said that local medical marijuana growers and patients could be hurt if the referendum passed....

Maine has allowed medical marijuana since 1999 and the program has become increasingly popular in recent years. Last year, Mainers spent $23.6 million on medical marijuana from the state’s eight dispensaries, a 46 percent jump from the previous year. Those numbers don’t include sales to patients from the more than 2,200 caregivers licensed to grow and sell marijuana to patients.

The state cannot provide an exact number of patients because it does not keep a registry, but doctors have printed more than 35,000 certificates required under state regulations to certify patients. That number could include duplicates and replacement certificates and is likely higher than the actual number of patients, according to the Department of Health and Human Services, which oversees the medical marijuana program.

March 2, 2016 in Initiative reforms in states, Medical Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Is there really a chance Louisiana (!?!?!) is really considering marijuana legalization for economic reasons?

The question in the title of this post is prompted by this new Daily Beast piece headlined "Will Louisiana Be the First Southern State to Legalize Weed?".  Here are excerpts:

One of the harshest states on pot offenders is reportedly exploring the idea of a recreational marijuana program. Saddled with $850 million in state debts, experts say Louisiana’s move is less motivated by safety as it is by money.

The idea to offset a colossal deficit with legal pot was allegedly born out of concern from lawmakers backing two bills that may cause budget cuts.  Combined with the news that Colorado raked in $900 million from its marijuana program in 2015, it may be enough to get conservative pot prohibitionists to change their tune.

“I think they’re looking at it strictly as a profit-driven, tax-based incentive,” Kevin Caldwell, executive director of Commonsense NOLA, a nonpartisan organization fighting for legalization, says of the rumblings about legalizing. Caldwell is excited about the legalization talk, and says New Orleans, which decriminalized it in 2010, has been paving the way.

But even Caldwell, who has devoted his life to the cause, isn’t getting his hopes up yet.  “I think it is more likely next session, once the politicians get the real blowback from the budget cuts,” he says. “Once the state sees cuts to things like social services and universities…I think that will reawaken some of the populism from our past, which, in this case, is a good thing.”

If the state does decide to move forward with the creation of a recreational marijuana program, it will be the most unlikely legalization story thus far.  In the four states where marijuana is legal recreationally — Colorado, Washington, Alaska, and Oregon — police had generally been turning a blind eye to marijuana for decades.

But Louisiana is a different story.  With the state’s exceptionally strict sentencing laws and a powerful anti-legalization sheriff’s association, it is one of the toughest places to get caught with pot.  Notorious for putting nonviolent marijuana offenders behind bars — it’s a war that Louisiana sheriffs wage primarily with minorities.

According to a report from the American Civil Liberties Union, in 2010, African Americans made up 64 percent of marijuana possession arrests in Louisiana — despite making up just 32 percent of the state population. By these numbers, blacks in the state are three times more likely to be arrested for pot than whites, despite studies showing they use at the same rates (or less).

A subsequent ACLU report on the harshness of sentencing found Louisiana to have the highest number of prisoners (429) serving life sentences for nonviolent crimes — many of them for minor marijuana offenses. Ninety-one percent of the 429 are black, and the vast majority of them are housed at the infamous Louisiana State Penitentiary, which Caldwell calls “America’s last plantation.” One is a previously homeless man who was caught dealing less than $20 worth of marijuana.

The lengths at which Louisiana goes to enforce marijuana prohibition go beyond laws.  Enforcing marijuana possession (combining police, judicial, and correctional fees) costs the state $46.4 million per year.  “All these draconian measures we put on people and we’re still one of the most violent states in the country,” Caldwell says of the marijuana arrests.  “Obviously the way we’re doing things doesn’t work.  Obviously it’s time to change our paradigm.”

While the concept of legalizing marijuana to save the state’s budget seems to have been met with relatively mild responses, suggestions of the same — when framed as a safety issue — invoke panic and rage. After activists floated the idea of legalization to a local sheriff whose officers had just fatally shot a marijuana dealer, he reportedly went into a “fit of rage.”

Long-time readers and all my students likely know that I view the potential short-term and long-term economic and tax benefits can be a power argument in favor of marijuana reform, and it would not surprise me if we start seeing a number of legislators in a number of states start rethinking whether blanket pot prohibition is a "game worth the candle."  But, in light of the historically tough approach to marijuana crimes in Louisiana, this story's suggestion that Louisiana could become the first full legalization state in the south strikes me as just very wishful thinking right now.

March 2, 2016 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, February 29, 2016

Head of marijuana legalization campaign in Arizona decribes himself as an "unapologetic conservative Republican"

Despite a cultural history and some political realities associating marijuana reform efforts with various liberal causes, I have personally long believed that a disaffinity for government-imposed pot prohibition resonates with various conservative principles.  Consequently, I am not entirely surprised to see this notable local article out of Arizona about a recent debate over marijuana legalization and the notable person leading up the marijuana reform campaign in the state.  The article is headlined "Tea Party stages debate on marijuana legalization," and here is how it gets started:

The face of the Campaign to Regulate Marijuana Like Alcohol initiative is not what one might expect, and it just might be the greatest foil for those who would prefer the plant to remain illegal for nonmedical use in Arizona.

Medical marijuana dispensary owner J.P. Holyoak debated Pinal County Attorney Lando Voyles over legalizing marijuana for recreational use at an event at Victory Theater, sponsored by the Graham County Tea Party and Graham County Republican Women Club, on Feb. 19.

Holyoak called himself an “unapologetic conservative Republican” who also happens to be the chairman of the Marijuana Policy Project-sponsored initiative to regulate marijuana like alcohol. Holyoak was previously against marijuana but, after seeing how the plant improved the quality of life for his ill daughter, Reese, he thrust himself into its advocacy.

“I was somebody that, once upon a time, was naïve enough to believe what the government told me, and I listened to that and I was anti-marijuana,” he said. “But I’m also someone who believes in individual rights and individual responsibilities, and I abhor nanny-state government . . . Its (prohibition has) proven to be an utter and complete total failure.”

While Voyles had little to say in response to Holyoak’s points about reasons why cannabis should be legalized — including an economic benefit to Arizona with the creation of 21,000 jobs and an estimated $100 million in tax revenue for education rather than money spent on purchasing marijuana going to foreign drug cartels — Holyoak seemingly had an answer based on official statistics to counter every argument Voyles had against legalization. In one instance, Voyles claimed that studies showed an increase of teen use in states where medical marijuana or recreational marijuana was legal, and Holyoak debunked that by referencing an article from Forbes Magazine that listed fewer teens using marijuana than 15 years ago and displaying Arizona’s own youth survey that showed teen use decreased after medical marijuana was legalized.

At one point in the evening, Holyoak told the crowd about his daughter, Reese, who has the rare disease Aicardi syndrome that caused her to have multiple seizures every day. As a parent desperate to find anything that could help his daughter, Holyoak turned to marijuana after the Arizona Medical Marijuana Act was passed.

“The difference between marijuana and no marijuana for her is literally the difference between life and death,” Holyoak said. “She went from 25 to 35 seizures a day and being nonresponsive — she still has an occasional seizure, about every five or six months she has one — but today she’s walking independently, almost running, being herself, getting into stuff, playing, laughing, smiling, and generally enjoying her very high quality of life. I find it offensive that the U.S. government says that marijuana is a Schedule 1 drug with no medicinal value. We know that’s not true. It’s inappropriate, and I find it even more offensive to try to defend the position of keeping it a Schedule 1 drug.”

After recounting his daughter’s experience, Voyles chose that moment to tow the federal government’s line that marijuana has no medicinal value, a statement that garnered groans from the audience.

February 29, 2016 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, February 24, 2016

"Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law?"

Nebraska Attorney General Doug Peterson WebThe question in the title of this post is drawn from an interesting line in the midst of this notable new National Review commentary authored by Doug Peterson, the attorney general of Nebraska.  The piece is headlined "Colorado’s Marijuana Regime Is an Affront to Federalism and the Rule of Law," and here are excerpts:

In 1970, the Controlled Substances Act (the CSA) was passed with overwhelming majorities in Congress.  Its enactment represented, for the first time, the creation of an integrated, comprehensive national drug policy.  For nearly half a century, the CSA has stood as the law of the land, marking a consistent and collective recognition that the inherently interstate problem of drug trafficking can only effectively be addressed on a national scale.

The dismantling of this national legal framework by those charged with upholding it began in October of 2009, when President Obama’s deputy attorney general issued memoranda instructing U.S. attorneys to ostensibly ignore enforcement of marijuana laws.  The Justice Department’s deliberate inaction unlocked the door for state-sanctioned facilitation of the production, distribution, and retail sale of this illegal substance on a truly industrial scale.

Colorado has since incentivized the growth of a billion-dollar impairment industry that has proven efficient in producing a ubiquitous variety of marijuana products of a potency level that is globally without parallel.... Whatever may be said of the economic success of Colorado’s impairment industry, it is not a success for the rule of law. Nor has it been anything but harmful and expensive for Colorado’s neighbors, like Nebraska, who continue to interdict illegal marijuana consistent with their own laws and, lest we forget, the CSA.

Colorado’s regulatory scheme, coupled with federal inaction, effectively renders the CSA a nullity when it comes to marijuana.  How can Colorado’s state-facilitated billion-dollar marijuana industry not conflict with Congress’s nationwide prohibition on marijuana when it has been shown (by federal drug-trafficking reports) that Colorado marijuana reaches a substantial majority of states?  It can’t.  How can Colorado’s regulations even be said to implicate only purely intra-state activities when they have almost no protections against sales to non-Colorado buyers?  They don’t.  Did the Framers of the Constitution really intend for unelected bureaucrats to have the power to allow states to circumvent federal law?  No chance.

This is why Nebraska, joined by Oklahoma, is seeking a declaration from the United States Supreme Court that Colorado’s marijuana scheme violates the Constitution.  Our lawsuit, brought as an original action given its state-versus-state nature, tests whether individual states can effectively nullify federal law.  Resolution is needed in the Supreme Court, particularly since the administration — consistent with its actions in so many other areas ranging from environmental regulation to illegal immigration — has abdicated its obligations under the law.

To be sure, I am a fervent believer in the principles of federalism and recognize the Constitution’s reservation of power to the states.  I also believe that passage of the CSA was an appropriate exercise of Congress’s authority under the Constitution’s interstate commerce clause.  Ironically the Department of Justice also supported this same exercise of federal authority when it strenuously and successfully argued to the Supreme Court in Gonzales v. Raich in 2005 that the CSA’s prohibition on marijuana was a valid exercise of congressional power.  In light of these settled principles, Colorado’s actions must yield to another provision of the Constitution: the supremacy clause....

By bureaucratic memo, this administration has allowed the piecemeal nullification of Congress’s clear intent in enacting the CSA.  It is now time for the Court to state “what the law is” regarding marijuana and the mandates given by Congress in the CSA.   Should the Court decline to hear our case, Big Marijuana and the states with which it cooperates will take it as a sign that federal drug laws do not matter and that the supremacy clause can be selectively applied.   Such signals undermine not only the integrity of the rule of law, but also the sovereignty of states like Nebraska who recognize their obligation to refrain from deliberately obstructing Congress’s goal of protecting America and its children against the myriad societal ills posed by illicit drugs.

Perhaps unsurprisingly, the comments to this piece suggest that many readers of the National Review are not especially convinced by what Attorney General Peterson has to say.  Notably, the first stated conviction for the Nation Review listed here includes the assertion that the "growth of government (the dominant social feature of this century) must be fought relentlessly." When it comes to growth of marijuana, however, it seem Nebraska's Attorney General supports the growth of the federal government to relentlessly fight against individuals and states that are disinclined to see marijuana in the same light as the feds.

Though this commentary reveals Peterson to be a fair-weather federalist, it does an effective job at highlighting the arguments being made by Oklahoma and Nebraska concerning why the Supreme Court needs to consider ASAP its challenge to Colorado's marijuana reforms.  Especially after Justice Scalia's death and with a big national election now less than eight months away, I think it remains somewhat unlikely that the Justices will be eager to take up this state-on-state dispute now.  But, as I have long known about the actions of the Supreme Court, you never really know what the Justices will decide to do.

Some prior related posts:

February 24, 2016 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, February 22, 2016

An effective overview of life in Colorado a few year years after marijuana legalization

Massachusetts is one of a handful of states likely to vote on full legalization of marijuana this Fall, and already the Boston Globe is doing a nice job informing its readers about what the state might reasonably expect if it follows the path pioneered by Colorado.  Specifically, this new Globe article, headlined "In Colo., a look at life after marijuana legalization," provides an effective review of how reform realities have played out so far in the Centennial State.  Here is the start a balanced piece worth reading in full:

Nestled between a 7-Eleven and a store selling Broncos jerseys, the door to the generic-looking retail establishment is easy to miss. But once inside, the smell is unmistakable. At Euflora, tables are filled with glass containers of marijuana next to interactive tablets describing each strain (“sweet floral aroma,” “intoxicatingly potent”). An array of marijuana-infused products beckon behind locked cases: from energy shots to sour gummies, brownies to bacon brittle. And if you’re 21 or older, it’s all legal to buy.

This is Colorado, where a billion-dollar-a-year legal marijuana industry has emerged since January 2014. It offers an early look at what Massachusetts could face should voters greenlight an expected ballot question and legalize the drug this fall.

So has legalization been a plus or a minus? “Yes,” Colorado Senate President Bill Cadman replied with a laugh.

The consensus among several top state officials — who emphasize that their job is to carry out the will of the voters rather than mull whether their constituents made the right choice — is that there have been no widely felt negative effects on the state since marijuana became legal, and a crop of retail stores, cultivation facilities, and manufacturers sprung up from Aurora to Telluride.

Legalization has ushered in thousands of new jobs in the burgeoning industry, brought $135 million into state coffers last year, and ended the prohibition of a widely used substance. But police say they struggle to enforce a patchwork of laws covering marijuana, including drugged driving. Officials fret about the industry becoming like big tobacco, dodging regulation and luring users with slick advertising. And this state, long a leader in cannabis use, has the highest youth rate of marijuana use in the nation, according to the most recent data available from a federal drug-use survey.

February 22, 2016 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, February 3, 2016

Big new public health analysis of marijuana legalization proposals in California

Download (2)As reported in this local piece out of California, "Researchers warn legal marijuana could be next Big Tobacco," a pair of public health scholars have produced this interesting new report examining marijuana reform proposals in Califronia from a public health persepctive.  Here is the start of the press account of the report and some reaction thereto:

A ballot proposal legalizing recreational marijuana would likely launch a new profit-driven industry similar to Big Tobacco that could impede public health efforts, according to researchers at the University of California, San Francisco.  The 66-page analysis, released Tuesday, is the first in-depth look at the state’s main effort to legalize recreational marijuana this year.

Researchers said they began with the premise that legalizing marijuana makes sense because its prohibition has put too many people behind bars and cost taxpayers too much money.  But they concluded the two potential initiatives they examined would replace a crime problem with a public health issue.

The authors, Rachel Barry and Stanton Glantz, of the UCSF Center for Tobacco Control Research and Education and Philip R. Lee Institute for Health Policy, said the measure most likely to qualify for the ballot establishes a regulatory system similar to the one used for alcohol.  They said it would have been better to pattern the guidelines after the state’s Tobacco Control Program, which they credited with reducing the health effects and costs related to tobacco.

“Evidence from tobacco and alcohol control demonstrates that without a strong public health framework, a wealthy and politically powerful marijuana industry will develop and use its political clout to manipulate regulatory frameworks and thwart public health efforts to reduce use and profits,” the report states.

In an interview, Glantz said treating marijuana like cigarettes could drive down its popularity.  “The goal (should be) to legalize it so that nobody gets thrown in jail, but create a legal product that nobody wants,” he said.

He worries that a new marijuana industry would spend large sums of money to curry favor with lawmakers.  “I think a corporate takeover of the market ... is very, very hard to stop,” he said, adding, “They are already a potent lobbyist in California.”

A spokesman for the legalization campaign noted the report was written by experts on tobacco, not marijuana, and said it makes broad assumptions unsupported by past research into the issue.  The measure is drafted in a way that takes public health into account, Jason Kinney said.  “This report inexplicably chooses to ignore the extensive public health protections and mandate included in our measure – as well as the child safeguards, the small-business and anti-monopoly provisions and the unprecedented investments in youth prevention, education and treatment,” Kinney said.

The leading measure seeks to legitimize possession of 1 ounce of marijuana and cultivation of six marijuana plants for adults 21 and over.  One of the proponents, Donald Lyman, a retired physician, helped write the California Medical Association’s 2011 policy calling for the legalization of marijuana.

The doctors’ lobby formally endorsed the main legalization measure on Monday, characterizing it as a “comprehensive and thoughtfully constructed measure.”  For years, some doctors have complained they have become gatekeepers for healthy people seeking weed recommendations via a flawed medical marijuana system.

Lyman, a former state public health official, said the notion that marijuana must be regulated exactly like tobacco “represents an awkward minority opinion not widely shared within the public health community.”  Lyman said it is widely accepted in the scientific community that marijuana has medical benefits, something that isn’t true of tobacco.

This notable new report is titled "A Public Health Analysis of Two Proposed Marijuana Legalization Initiatives for the 2016 California Ballot: Creating the New Tobacco Industry," and it is available at this link.

February 3, 2016 in Initiative reforms in states, Medical community perspectives, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Saturday, January 30, 2016

You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing

R_schmidt-262x272The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says."  Here are the basics (with my emphasis added):

Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana.  Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.

But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients.   He told police that "he was operating his business as a source of income," Distel said.

Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW.  Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants.  Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.

He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court....  Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing.  He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.

Schmidt is free on bond.  Kent County prosecutors will drop a second charge of manufacturing marijuana.

His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives.  After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party.  He had spent 16 years on a Grand Rapids City Commission on the West Side of town.

I am cross-posting this story on my Sentencing Law & Policy blog because this case raises interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significntly influence what criminal sentence he receives?    

But, of course, what really captured my attention in this case is the different ways this defendant's offense might be viewed by a sentencing judge.  His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who would often sell to underage college students.  But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.

Thoughts, dear readers?

January 30, 2016 in Criminal justice developments and reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Sunday, January 24, 2016

"Should Bernie Sanders’ Home State Embrace Socialized Cannabis?"

Vermont Seal TokeoftheTown2013-thumb-200x239-thumb-205x244The question in the title of this post is part of the headline of this effective new International Business Times article highlighting some interesting aspects of the the on-going debate over marijuana legalization in Vermont.  I recommend the article in full (especially for students in my marijuana reform seminar), and here are a few excerpts:

As one of Vermont’s approximately 2,500 official medical marijuana patients, Robert Gwynn is excited his state lawmakers are considering legalizing cannabis.  Born with neurofibromatosis type 1, a tumor disorder that has left him with debilitating nerve pain, limited appetite and ongoing fatigue, the 31-year-old has been part of the state’s medical marijuana program for the past two years.  Medical marijuana, he says, has helped him halve his 14-pill-a-day pharmaceutical regimen, which had left him so mentally disconnected from reality he was afraid to drive.  But he thinks a recreational market could encourage the sort of competition, proficiency and price constraints lacking in the state’s current system of four nonprofit dispensaries statewide.  Once a month, Gwynn drives to a dispensary in Brandon, a four-hour round-trip drive from where he lives in Brattleboro, since he says the medicine quality and patient care at the dispensary 10 minutes from his house are so poor, he won’t shop there.

If Vermont legalizes marijuana, Gwynn figures it will look similar to programs up and running in Colorado, Washington state and Oregon, where for-profit businesses produce and sell marijuana.  He hasn’t noticed anyone proposing alternatives.  “I haven’t really heard it come up,” he says.  “When people talk about it, I don’t think it is something that comes to mind.”

Gwynn isn’t the only one who assumes legalized marijuana in Vermont, which could occur in coming months, will resemble cannabis markets elsewhere.  But drug policy experts say the state is perfectly positioned to go in a bold new direction, one that challenges widely held assumptions about the country’s mounting marijuana movement. Among those options could be a state-run system similar to how Vermont controls the sale of hard liquor within its borders.  Alternatives like this could limit the public health impacts of a marijuana market while still generating state revenue — that is, if lawmakers are willing to consider them.  And if Vermont isn’t willing to deviate from the path set by legalization efforts that came before it, does that mean the only realistic U.S. cannabis model moving forward is a free-market free-for-all?

With recent encouragement from both a former state attorney general and Gov. Peter Shumlin, Vermont lawmakers are actively considering becoming the fifth state (not counting Washington, D.C.) to legalize marijuana, building on a medical marijuana law the state passed in 2004 and a dispensary system it launched in 2011.  The state’s Senate Judiciary Committee is in the midst of three weeks of in-depth testimony and statewide public hearings on the issue, with the goal of voting Friday on whether to advance a legalization bill.  “I’m impressed,” says Matt Simon, New England political director for the Marijuana Policy Project, who’s based in Vermont.  “I’ve been studying this issue for 20 years, and here you have politicians sitting in rooms, asking the right questions and trying to understand it for the first time in my life.”

If such a bill passes in the near future, Vermont would become the first state in New England, much less the entire Northeast, to legalize marijuana.  While just 626,000 people live in Vermont, the second least populated state in the country, roughly 2.7 million regular marijuana users live within 200 miles of the state, including those in New York City.  That means whatever legalized marijuana system Vermont chooses could have financial and political impacts far beyond its modest borders.

Because Vermont does not have a ballot initiative system like many states, the only way it can legalize marijuana is through the legislative process.  And if it does so this legislative session, it will be the first time marijuana ever has been legalized by lawmakers, not voters.  According to some experts, this means Vermont has the option of considering legalization models not likely to be floated at the polls.  “The initiative process is going to be driven by folks who want something to happen, who want legalization,” says Pat Oglesby, a tax attorney who studies marijuana at the Center for New Revenue in North Carolina.  “The legislative process could result in a more moderate, middle-ground approach.”

It’s why last year a Rand Corp. legalization study commissioned by the state for $20,000 (the rest of the study’s $120,000 price tag was covered by the philanthropic foundation Good Ventures) urged lawmakers to consider “that marijuana policy should not be viewed as a binary choice between prohibition and the for-profit commercial model we see in Colorado and Washington.”  Instead, the report’s authors, a who’s who of drug policy authorities nationwide, laid out a series of alternatives, including a nonprofit-only system, a supply chain overseen by a public authority similarly to how the Vermont State Housing Authority manages affordable housing initiatives and a market only open to “benefit corporations,” or b-corporations, that have positive social impact.  But the report focused special attention on one option in particular: a government-run monopoly model where the state controls marijuana production and distribution.

According to experts, a state-run marijuana system could have several benefits.  For starters, government-run cannabis outlets wouldn’t have the same sort of financial incentive to promote excessive marijuana consumption similar to how alcohol companies market to heavy users.  Instead, government marijuana outlets could focus on the sort of social protections that are a top priority for Shumlin.  “You would like a system where nobody has an incentive to encourage overuse of a drug,” says New York University marijuana policy expert Mark Kleiman. “State-monopoly retailing could be a better option if the state officials involved didn’t have any incentive to encourage problematic drug use and even better if they had a responsibility to discourage it.”  Reviews of private versus state-run alcohol systems have found “strong evidence that privatization results in increased per capita alcohol consumption, a well-established proxy for excessive consumption and related harms.”...

But now, as Vermont lawmakers narrow possible legalization, there’s little indication the state will deviate significantly from legalization efforts that came before.  One of two legalization bills being considered by the state judiciary committee (it will likely end up voting on a hybrid bill containing elements of both) would provide licensing preferences to the sort of b-corporations detailed in the Rand report.  But the bill’s author, Democratic state Sen. David Zuckerman, says the other alternatives proposed in last year's report are likely political nonstarters.  “I think the extremes on both ends — straight unfettered capitalism and a government-run monopoly — are off the table,” says Zuckerman, adding, he believes the chances of a legalization bill passing this year “are a little better than 50-50.”

Some observers are disappointed. “It’s kind of surprising,” says Dan Rifle, Marijuana Policy Project’s former federal policy director, who left the organization over concerns industry interests were taking over the marijuana movement.  “If there’s any state where this should be happening, it’s Vermont.  They commissioned a report, and no one seems to have read it.”

But others say options like a state-controlled system aren’t being considered because they don’t make sense. Government-run programs such as this are prone to bureaucratic bloat, and, as MPP's Simon points out, anyone who’s seen the billboards just over New Hampshire's state lines advertising the Granite State's tax-free alcohol stores knows government-controlled outlets can still promote heavy use.  Plus, adds Simon, there’s no indication the legalization models already up and running are broken, so why bother fixing them?  “We could spend years discussing hypothetical models, but that would be missing the fact that Vermonters are spending hundreds of millions of dollars in the worst possible marijuana model right now,” he says.  “We want to move this from the illicit market, and Colorado and Oregon and Washington have already shown that can be done in a responsible fashion.”...

But likely the biggest reason of all options like a state-run program aren’t getting more attention is that many people worry having state workers sell marijuana would put Vermont on a collision course with the federal government.  “If you are thinking about this from a public-health perspective and are still trying to bring in state revenue, the approach that probably makes the most sense is the government monopoly,” says Beau Kilmer, co-director of Rand’s Drug Policy Research Center and co-author of the Vermont report.  “However, because of the government prohibition, most states aren’t really talking about this because they don’t want to put their employees at risk of arrest.”...

[B]etween such legal questions and the lack of political will around the issue, it’s easy to understand why a state-run marijuana system and other alternatives aren’t getting more airtime as Vermont moves ever closer to recreational marijuana.  Some experts say that’s too bad, since the state might offer one of the last best chances to take a hard look at what, exactly, legalized marijuana has to look like.  “It could matter enormously if Vermont does something that nobody else does,” says Kleiman.  “But if it doesn’t, and California goes the commercial marijuana route this year, as it probably will, then it might be too late.  When Congress gets around to legalizing cannabis, you won’t be able to consider models that aren’t focused on commercial production because the commercial interests involved will dominate the political process.”

I have suggested before that the big Rand report on Vermont's marijuana reform options (released around this time last year and blogged about here and here) is a must-read for any and all persons seriously considering different possible models for marijuana legalization.  However, I have long thought the report tended to over-emphasize the potential harms of a free-market approach to legalization, and also under-emphasized the potential harms of a government-run system.  In particular, my sense of government-run systems (I am thinking here about schools, prisons and health-care systems) is that they tend to move slowly in response to changing conditions, tend to have relatively high costs for the provision of even limited services, and also tend not to invest effectively in product innovations.  Especially in the marijuana space over the next few years, where legal and market realities keep changing, where elevated costs are likely will keep the black-market running, and where market innovation might be especially important as we move from black-to-grey-to-freer markets, I worry about a government-run system of full legalization potentially being the worst of all possible short-term solutions.

That all said, one key point about this debate in Vermont that is highlighted by this article is the reality that blanket marijuana prohibition at the federal level is impeding the opportunity for state labratories to seriously consider all possible experimental approaches to marijuana reform.  This is one of the many reasons I am hopeful that before too long Congress will have the good sense to recognize that blanket marijuana prohibition at the federal level is already having a significant and likely harmful impact on sensible state development of sound marijuana policies.

January 24, 2016 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Monday, January 18, 2016

Significant legislative (and initiative) developments now swirling around marijuana reform in Ohio

Vote_ohio_mmj_ballotI was supportive of the failed (and very far from ideal) marijuana reform initiative campaign in Ohio in 2015 in part because the Ohio General Assembly had never before shown any serious interest in even considering any serious marijuana reform in the Buckeye State.  But, as this local article highlights, the legislative times they are a-changing in 2016 already in Ohio.   And the article, headlined "Strange Bedfellows Are Part Of New Medical Marijuana Task Force," reports that some folks involved in the failed 2015 initiative are being included in the new year developments:

Ohio lawmakers who have been signaling they want to consider medical marijuana legalization have taken an unexpected step.  Republican House Speaker Cliff Rosenberger stood in front of an interesting group of people when he announced there will be a task force to study medical marijuana in Ohio.  “There’s a lot of groups that are going to have interest in this topic and what we have tried to do is put together a group of interested parties that can represent a broad swath of different interest groups throughout the state with different aspects and different varieties with an open mind to hear out this issue and talk about this issue before us in medical marijuana.”

That diverse group on this task force includes representatives from the Ohio State Medical Association, the Ohio Children’s Hospital’s Association, the Fraternal Order of Police, the Buckeye State Sheriffs' Association, the Ohio Chamber of Commerce and former Ohio Attorney General Betty Montgomery.  And there are two somewhat surprising members: Chris Stock and Jimmy Gould, former leaders of ResponsibleOhio, the group that brought forward the pot plan that voters overwhelmingly rejected last fall.  Gould says he's glad to be working with the groups that had fought against Issue 3 last fall.

“Ohio needs medical marijuana, first and foremost and needs it for everything….for chronic pain, for conditions, but it needs to be regulated properly.  It needs to be done the right way.  We went from probably zero to 250 miles an hour in a state that it is a little difficult to go from zero to 100.  I’m prepared to accept 100 right now and that is to pass a legislative action for medical marijuana.”

Gould says he’s agreed to put any effort to legalize marijuana on hold for now.  And he says the Fresh Start plan, the initiative that would allow people with past non-violent marijuana offenses to clear their records, is dead for now. “You can’t expunge without having legalization.  The voters knew that.  They knew exactly what they were doing when they voted the way they voted.  I had to hear them.  We spent $25 million, we got defeated.  And when you lose, you get back up on your feet and you take the best path that is available to you.  When we were approached by several people and I approached several people, you know we want a victory out of this thing and the victory we want is what is good for Ohio and we have always wanted that.”

Just last month, Ian James, the man who headed up the failed ResponsibleOhio campaign, said investors of it wanted to go back to the ballot this fall with another legalization plan.  The ResponsibleOhio campaign had been renamed Free Market Ohio and James said it was full speed ahead to collect petition signatures to put medical marijuana legalization on the ballot this fall.  But Gould says moving forward with that right now is not the answer. “We didn’t just lose 51 to 49.  We got beat.  And I come from a competitive sports family and world and we got beat. And when you get beat that way, you come back and figure out, ok, what’s the next best way? FreeMarket Ohio was not the answer."

Republican State Representative Kirk Shuring will head up the task force. And he says while it will meet several times between now and the end of March, there is no promise of specific legislation. He says this task force is an opportunity for different groups of people with different ideas on the subject of marijuana to get together to try to find some common ground. “We have a time out and we are going to have a conversation and we are optimistic that it will lead to something we can point to at the end of March.”

Meanwhile, Ohio Senators plan to approach the issue of medical marijuana differently.  Republican Senate Caucus Communications Director John Fortney says Republican Senator David Burke and Democratic Senator Kenny Yuko plan to hold a series of town hall meetings on medical marijuana in public forums throughout the state.  “The people of Ohio are not interested in seeing the pill mill equivalent of medical marijuana on every street corner in the state of Ohio.  That said, we understand that there is some support for what it can do for people who are suffering from chronic illness and I think that’s going to be part of the conversation from these public forums.”

I am encouraged (though not especially surprised) not only that (1) Ohio's elected officials now understand that they cannot and should no longer ignore the significant interest in marijuana reform amoung the citizenry, but also that (2) some state leaders are trying to co-opt into the effort persons who previously raised tens of millions of dollars to support reform in 2015. Thoughtout the 2015 reform effort in Ohio, I had an inkling that, even if the ResponsibleOhio's full legalization efforts went very badly (and it did), the conversations engendered and the monies raised through the reform effort would garner significant attention from significant public officials.

Notably, though, as this other local article details, the emergence of a medicial marijuana reform task force in Ohio is unlikely to completely quash interest and efforts for initiative-based reforms in the Buckeye state in the months ahead. The article is headlined "Ohio marijuana legalization supporters still push for 2016 ballot issues," and here are excerpts:

ResponsibleOhio won't be back with another marijuana legalization amendment this year, but marijuana advocates said Friday they will push forward with ballot measures for November as well as work with state lawmakers studying medical marijuana legalization.

Legalize Ohio 2016, also known as Ohioans to End Prohibition, plans to continue to try to collect the 305,591 signatures of registered Ohio voters necessary by July 6 to qualify its issue for the November ballot.  Its proposed constitutional amendment would legalize recreational and medical marijuana, as well as allow farmers to grow hemp.

Legalize Ohio 2016 President Sri Kavuru said his group will encourage its supporters to be involved in discussions at the Statehouse on the medical marijuana issue.... Kavuru said his group will encourage advocates to testify at the task force meetings and in town hall meetings state Senators plan to hold across the state.

Kavuru said he's hopeful the legislature will enact good legislation that establishes an industry and serves many types of patients. "At the end of the day, we do want reform for patients first," Kavuru said. "If they pass the right medical marijuana law, then it's not worth going through a ballot initiative.  If they don't or we hear they're passing something we don't like, we'll continue with the initiative.  The citizens' initiative process is there in case the government doesn't do what you want."

The group has collected about 80,000 signatures, Kavuru said, but many petition books are still in the field. Kavuru said the group, which has relied on volunteers thus far, will have the money to hire paid signature collectors. Legalize Ohio 2016 is the only recreational marijuana measure in motion....

Ohio Rights Group, which had been collecting signatures for a medical-only measure until it backed Issue 3, could still qualify for the November ballot.  ORG President Mary Jane Borden said the group does not have the money to pay signature collectors or run a campaign and instead will focus on educating lawmakers about the benefits of medical cannabis....

A new, medical-only measure was filed Thursday with the Ohio attorney general. The Ohio Medical Cannabis Amendment, backed by longtime marijuana advocates Tonya Davis and Carlis McDerment, would allow people with a qualifying condition such as glaucoma or multiple sclerosis to purchase and use marijuana.  If the proposed summary is cleared by the attorney general, the group will have to collect 305,591 signatures of registered Ohio voters to put the measure on the ballot.

Disconcertingly, while the folks involved with Legalize Ohio 2016 pushed for a no vote on full legalization proposed by ResponsibleOhio in 2015 with promises that they would bring much better reform to voters in 2016, it now sounds as though the Legalize Ohio 2016 folks are suggesting they would be content now with just medical marijuana reform. Moreover, with the challenges posed by collecting hundred of thousands of signatures and a new Ohio constitutional restriction on ballot access for initiative, my deep fear that the Legalize Ohio folks would face an uphill battle to give voters another chance to consider full legalization seem to be coming to fruition.

January 18, 2016 in Campaigns, elections and public officials concerning reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)

Thursday, January 14, 2016

Is opposing maijuana reform more important to conservatives than restricting federal power?

The question in the title of this post is prompted by this new Forbes commentary by Jacob Sullum headlined "Legalization Lawsuit Shows Conservative Constitutionalists Have Marijuana-Related Memory Loss."  Here is how it starts and ends (with links from the original):

Last week, two days before Mexican authorities recaptured Joaquín Guzmán Loera, a.k.a. El Chapo, Oklahoma Attorney General Scott Pruitt pointed to another drug lord, this one hiding in plain sight: John Hickenlooper, a.k.a. the governor of Colorado.  “The State of Colorado authorizes, oversees, protects, and profits from a sprawling $100-million-per-month marijuana growing, processing, and retailing organization that exported thousands of pounds of marijuana to some 36 States in 2014,” Pruitt writes in a Supreme Court brief joined by Nebraska Attorney General Douglas Peterson.  “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”

Hickenlooper actually was a drug dealer of sorts before he got into politics, having cofounded Wynkoop Brewing Company, a Denver brewpub, in 1988.  But he ended up running the drug trafficking organization described in Pruitt’s brief by accident.  He was elected governor two years before Colorado voters decided, against his advice, to legalize marijuana.  Pruitt and Peterson are trying to overturn that result, claiming that it hurt Oklahoma and Nebraska by encouraging an influx of Colorado cannabis.  Their argument shows how readily some conservative Republicans let their anti-pot prejudices override their federalist principles....

Last week Texas Gov. Greg Abbott showed what a more consistent federalism looks like.  Abbott proposed nine constitutional amendments aimed at restoring the balance of power between the states and the federal government.  Number one on his list was an amendment that would “prohibit Congress from regulating activity that occurs wholly within one State,” in line with the original understanding of the Commerce Clause.  In a position paper that draws on the work of libertarian law professor Randy Barnett, who represented the plaintiffs in Raich, Abbott argues that the power to regulate interstate commerce is limited to activities that are both interstate and commerce (meaning the trade or exchange of goods).  He criticizes Raich at length, asking, “What constitutional provision conceivably could allow federal agents to raid a home and destroy plants that were planted, grown, and consumed inside the borders of one State and in accordance with that State’s law?”

Although Abbott does not say so explicitly, the implication of his argument is that federal prohibition — not just of marijuana but of cocaine, heroin, LSD, lawn darts, “assault weapons,” or “partial birth” abortion — is unconstitutional insofar as it extends to purely intrastate activity.  In other words, even if Oklahoma and Nebraska were right that Colorado’s regulation of the marijuana industry violates the CSA, it should not matter, because the CSA itself is unconstitutional.  When it comes to the Constitution, not all conservatives suffer from marijuana-related memory loss.

January 14, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)