Friday, March 7, 2014
Colorado's Department of Transportation has released three new public service announcement ads on marijuana and driving. The ads aim to remind people that while using marijuana is now legal in the state, driving while high is still a crime. I think they're pretty effective, using humor to grab people's attention. (Of course, driving while impaired is no laughing matter, but the use of humor here seems like a good way of breaking through the clutter with these ads.)
Here's my favorite of the three:
Wednesday, March 5, 2014
From the Washington State Liquor Control Board comes news that it has issued its first marijuana producer and processor licenses:
Kouchlock Productions is licensed to produce and process recreational marijuana. It holds a restricted tier-three license to produce marijuana initially up to a maximum of 21,000 square feet. Kouchlock Productions is one of over 2,800 producer license applications that the WSLCB is currently processing. Licenses will be continuously issued as they are ready.
The WSLCB will update weekly its list of pending and active marijuana licenses on the frequently requested lists page of the public records section of its website.
Friday, February 28, 2014
The title of this post is drawn from the title of this recent published scholarly article that, on the surface and even in substance, seems be about a lot of topics other than marijuana law, policy and reform. But the title caught my eye, and I think all would-be marijuana reform advocates ought to check out the article, because I strongly believe the marijuana tax stories and regulations that that emerge in state and federal law and policies in the months and years ahead will be the most important predictor of whether pot prohibition eventually gets fully repealed or lives on and on in the United States.
The article is authored by Susannah Camic Tahk, it is published at 50 Harvard Journal of Legislation 67 (2013), and it is available here via SSRN. Here is its abstract:
In contrast to major legislative reform packages in the 20th century, the Affordable Care Act of 2010 took the form of a tax bill. Although this legislation is the first massive social and regulatory overhaul completed through the tax code, in the past twenty-five years the U.S. Congress and Presidential administrations have substantially increased their use of tax law for non-revenue-raising purposes. Growing reliance on the tax code represents a structural transformation of how Congress and Presidential administrations have come to approach lawmaking goals. This transformation defies the near-consensus of previous tax scholarship, which, following Stanley Surrey, disapproves of embedding programs in the tax code. However, that dominant view rests on assumptions that have become outdated. This Article analyzes the ongoing structural transformation by observing and explaining the advantages that accrue from pursuing social and regulatory objectives through the tax code. In particular, this Article identifies a number of legislative and normative advantages that tax-embedded policies offer.
Wednesday, February 26, 2014
The past few days have seen changes in marijuana tax estimates in Washington and Colorado. Pat Oglesby has some insightful thoughts on these developments, and the difficulty of estimating marijuana tax revenue generally, in this post for the Huffington Post today:
While marijuana revenue could be a promising new source of income for states, a wide range of expectations underscores how little we know so far about what mature markets will look like one day. Last week, early projections for marijuana revenue in the first two legalizing states gave way to new ones. In Colorado, expectations rose; in Washington, they collapsed. As projections zig-zag, other states considering legalization don't know what to expect.
In Colorado, the number jumped by 60 percent, from $67 million to $107 million. That's for the first fiscal full year of marijuana excise taxes. The old, lower number came from the Legislature last August; the new, higher one came from the Governor on February 18.
In Washington, the number collapsed from $1.6 billion to $129 million -- a drop of over 90 percent. Oops. Those numbers are for marijuana excises by the end of Fiscal 2017. The old, higher number came from a criticized 2012 legislative estimate; the new, lower, more plausible one came from the state's official Forecast Council on February 19.
That's confusing. But even comparing the official forecasts is confusing. The numbers above are just for excise taxes.
Tuesday, February 25, 2014
Following on Doug's post about the recent Ohio poll, Denver is one of the finalists for the 2016 Republican National Convention. One of the politicians leading the bid thinks Colorado's legalization law may help attract the gathering, since leaders from other states may want to learn more about how the policy is playing out.
"There's an easy political case to be made," former Rep. Bob Beauprez, a Republican and the chair of the bid committee, said.
Beauprez argued that even the state's recent legalization of recreational marijuana could be a plus because it shows how Colorado is on the political cutting edge. "Other governors and mayors will want to come here and see how it's working out," he said, noting that ballot measures to legalize the drug are anticipated in several other states.
Whether or not the RNC comes to Denver in 2016, Colorado's swing state status will make the presidential politics of marijuana legalization especially interesting to watch. If Denver does manage to get the convention, it will only add to the dyamic.
Friday, February 21, 2014
Last week, Rob posed an interesting question: should states reform marijuana laws through ballot measure or legislation. As his post notes, recent state medical marijuana laws have come mostly in the form of legislation. Earlier reforms were mostly by ballot measure.
Of course, the ballot measure model has been a matter of political necessity to a large degree. It took a string of ballot measure victories to begin to convince politicians that supporting medical marijuana might actually be a smart political move.
If marijuana legalization is going to follow a different path, with greater reliance on legislative reform, politicians will need to be quicker to embrace the issue than they were with medical marijuana.
This brings me to a notable development, noted by Toke of the Town today. It appears that all of the Democratic candidates for governor have come out (in some form or another) for marijuana law reform. Most interesting to me, the most recent candidate to do so cited his belief that legalization may now be inevitable in explaining his position:
Maryland Attorney General Doug Gansler this week told the Baltimore Sun that he feels the legalization of cannabis is going to happen, and that as governor he would ensure laws are implemented "the right way" if such a change were to happen while he is in office.
If this idea takes hold in the political world--that marijuana legalization is inevitable--I think we may start to see marijuana legalization by legislation happen much more quickly than we did for medical marijuana.
Of course, whether that is a good thing or not--Rob's question--is a different story. All things being equal in terms of substance, I think reform by legislation is better than by ballot measure for many of the reasons Rob points out.
The catch is that reforms by the legislature may tend to be much more cautious than by ballot measure. In the case of Maryland, the AG says he wants to make sure it is implemented "the right way." If I had to guess, I would imagine the Maryland AG's thinking about "the right way" would involve a much more restrictive law than what we see in Colorado and Washington.
Chris Christie said much the same thing about medical marijuana in New Jersey, for example. The result is a medical marijuana law that, at least some advocates say, doesn't seem to be really serving its purpose:
Patients in need of medical marijuana in more than half the state have a tough time getting the drug because the program is too bureaucratic, too expensive and few doctors are willing to participate, patient advocates and a dispensary owner told a state legislative committee today.
To be sure, it could be that some legislatures would enact reforms that are as good or better (in terms of substance) than what we would get from a ballot measure. And the flexibility that reform via the legislature provides is a big plus, as Rob discusses.
But, there is the possibility that (at least in some states) the question facing advocates going forward may be whether it is better to have very modest reform by legislation or more robust reform by ballot measure.
Wednesday, February 19, 2014
For some time, we have put mind-altering substances into one of three boxes: (1) acceptable for recreation (e.g., alcohol and tobacco), (2) acceptable for use as a medicine but for no other use (e.g., substances in Schedules II through V of the CSA) or (3) not acceptable for any use (e.g., all Schedule I substances.) Kimani Paul-Emile wrote an interesting article (PDF) discussing this, and advancing an alternative framework for thinking about drug control, a few years back.
There isn't a lot of modern precedent for a substance regulated under the law for both medicine and recreation. (Of course, there was medicinal alcohol during prohibition. But after repeal, interest in alcohol as a medicine faded pretty fast.)
With evidence of marijuana's value as a medicine only mounting as time goes on, it doesn't seem likely that interest in the medical use of marijuana will vanish anytime soon. And so, as marijuana legalization takes hold, regulating the medicinal and recreational uses of marijuana may pose difficult legal and policy challenges.
In Colorado, legalization left medical marijuana largely untouched (at least in terms of legal regulation). Recreational pot stores have one "menu" and set of prices for registered medical patients and a different "menu" for recreational buyers (with medical marijuana subject to less tax and, as a result, cheaper). Colorado already had a robust set of medical marijuana regulations, which may have helped the state implement this system. So far, Colorado medical marijuana patients seem to be OK with how things are going.
Washington is a different story. There, the State's pre-legalization medical marijuana law was much more open-ended. And, as a result, regulators and lawmakers have been struggling over what to do about medical marijuana now that they are implementing legalization.
Earlier this week, Washington state legislators passed a measure that would bring medical users into the recreational system. And so far, medical marijuana patients do not seem happy about the development.
Jacob Sullum has the story at Forbes:
Last night the Washington House of Representatives approved a bill that would abolish medical marijuana dispensaries, a.k.a. “collective gardens,” and impose new restrictions on patients who use cannabis for symptom relief. H.B. 2149, which passed by a vote of 67 to 29, would thereby eliminate some of the unregulated competition for the state-licensed pot stores that are expected to start opening this summer under I-502, the legalization initiative that Washington voters approved in November 2012. Supporters of the bill, which was introduced by Rep. Eileen Cody (D-West Seattle), hope that banning dispensaries will help maximize tax revenue and mollify the feds.
The bill requires patients to buy their cannabis from the same stores that serve recreational customers, which would be the only legal sellers of medical marijuana as of May 1, 2015, when the provision allowing collective gardens would be repealed. Patients could continue to grow marijuana for their own use, but the maximum number of plants would be reduced from 15 to six (three of them flowering). The ceiling on possession by patients would be cut from 24 ounces to three. The bill instructs the state Department of Health, together with the Washington State Liquor Control Board (which is charged with regulating marijuana growers, processors, and retailers), to produce a report by November 15, 2019, on the question of whether it is appropriate to continue allowing home cultivation.
Tuesday, February 18, 2014
As I noted Friday, the Treasury Department just issued new guidance designed to make it easier for banks to serve state-authorized marijuana businesses. In a less-noticed move, the DOJ also issued new guidance urging federal prosecutors not to pursue financial crimes charges against marijuana businesses outside of the circumstances outlined in its August 2013 memo regarding drug crimes. The Treasury guidance and new DOJ memo can be found here.
Banks have long refused to serve the marijuana industry, citing, among other reasons, federal statutes that criminalize financial transactions involving proceeds of illegal activity, including marijuana sales. Sam Kamin and Joel Warner discuss the banking issue here.
Now, I doubt this new guidance will convince many banks to serve the marijuana industry. Among other things, and as I explained in a paper critical of the DOJ’s first marijuana enforcement guidelines (the 2009 Ogden memorandum), such guidance does not shield banks from all of the relevant federal sanctions that serving marijuana businesses might trigger.
But if banks DO end up serving marijuana businesses, it might give a boost to state and federal efforts to police the marijuana industry. In particular, banks could help government officials determine whether the marijuana industry is violating state law and / or engaging in behavior that would justify federal legal action under those 2013 DOJ enforcement guidelines (e.g., selling to minors).
Here’s how. Federal law requires banks to monitor and report on the financial transactions of their clients. Under federal law, for example, banks are required to file “Suspicious Activity Reports” anytime they know, suspect, or have reason to suspect a client is engaging in a financial transaction involving proceeds of illegal activity. The government then uses these SARs to investigate and prosecute federal crimes committed by the clients.
Importantly, the bulk of the new Treasury guidance is actually devoted to reaffirming and clarifying the duty of banks to file SARs on clients engaged in the marijuana industry. It makes abundantly clear that a “financial institution that decides to provide financial services to a marijuana-related business would be required to file suspicious activity reports (“SARs”) . . . if, consistent with FinCEN regulations, the financial institution knows, suspects, or has reason to suspect that a transaction conducted or attempted by, at, or through the financial institution . . . involves funds derived from illegal activity.” (emphasis added)
To be sure, the reporting requirement could simply overwhelm government agents, since every transaction involving a marijuana business might trigger a new report. Indeed, federal agents are already deluged with SARs; in 2009, for example, banks submitted more than 700,000 SARs (banks in Colorado and Washington submitted more than 17,000 SARs), far too many for the government to investigate them all.
But the new Treasury guidance instructs banks to distinguish between good and bad marijuana businesses. Namely, if a bank believes a marijuana business is abiding state law and avoiding activities the federal government considers objectionable (e.g., selling across state lines), the bank may file an abbreviated SAR, simply by writing “MARIJUANA LIMITED” in the notations section of the report. But if the bank believes the business is flouting state law or engaging in one of those objectionable activities, it is supposed to file more detailed SAR, writing “MARIJUANA PRIORITY” in the notations section and explaining why the bank believes the business deserves closer scrutiny.
The information provided on these SARs could greatly enhance the efforts of federal and state enforcement agencies to police the marijuana industry. Banks won’t necessarily have perfect information about their clients, but they will often possess information that government agencies cannot realistically gather on their own. Indeed, as I’ve discussed at length elsewhere, governments commonly use private parties to gather information they need to enforce their regulations; e.g., without the W-2s filed by employers, the IRS would struggle (mightily) to collect individual income taxes. And requiring banks to further distinguish between law-abiding and law-shirking marijuana business greatly enhances the utility of this information for government agencies.
Knowing that banks will share information with the federal government could have a powerful deterrent effect on marijuana businesses. These businesses need bank services – try operating any business without a checking account, for example. But if they misbehave, banks will shun them, or worse yet, report their misbehavior to the feds. To be sure, some misbehaving businesses will simply avoid the banks altogether. But those businesses will be put at a serious competitive disadvantage vis a vis their more law abiding rivals.
In sum, if the guidance works (a big if), marijuana businesses will get access to banking services; banks will expand their market; and government agencies will get a new watchdog to help police the marijuana industry. Looks like a win win win.
February 18, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
The question in the title of this post might be a bit of foolish wishful thinking on my part, but these passages from this notable new New York Times article provides the foundation for my (undue?) optimism:
[S]cience’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public. “Our goal is to put out the science and have it used for evidence-based drug policy,” said Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse. “But I think it’s a mishmash.”
A 2007 study found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking. (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.) Six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability. Some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.
“We’ve done phone surveys, and we’re hearing that a lot of people think D.U.I. laws don’t apply to marijuana,” said Glenn Davis, highway safety manager at the Department of Transportation in Colorado, where recreational marijuana use became legal on Jan. 1. “And there’s always somebody who says, ‘I drive better while high.’ ”
Evidence suggests that is not the case. But it also suggests that we may not have as much to fear from stoned driving as from drunken driving. Some researchers say that limited resources are better applied to continuing to reduce drunken driving. Stoned driving, they say, is simply less dangerous.
Still, it is clear that marijuana use causes deficits that affect driving ability, Dr. Huestis said. She noted that several researchers, working independently of one another, have come up with the same estimate: a twofold increase in the risk of an accident if there is any measurable amount of THC in the bloodstream....
The estimate is low, however, compared with the dangers of drunken driving. A recent study of federal crash data found that 20-year-old drivers with a blood-alcohol content of 0.08 percent — the legal limit for driving — had an almost 20-fold increase in the risk of a fatal accident compared with sober drivers. For older adults, up to age 34, the increase was ninefold.
The study’s lead author, Eduardo Romano, a senior research scientist at the Pacific Institute for Research and Evaluation, said that once he adjusted for demographics and the presence of alcohol, marijuana did not statistically increase the risk of a crash. “Despite our results, I still think that marijuana contributes to crash risk,” he said, “only that its contribution is not as important as it was expected.”
The difference in risk between marijuana and alcohol can probably be explained by two things, Dr. Huestis and Dr. Romano both say. First, stoned drivers drive differently from drunken ones, and they have different deficits. Drunken drivers tend to drive faster than normal and to overestimate their skills, studies have shown; the opposite is true for stoned drivers. “The joke with that is Cheech and Chong being arrested for doing 20 on the freeway,” said Mark A. R. Kleiman, a professor of public policy at the U.C.L.A. School of Public Affairs....
Another factor is location. A lot of drinking is done in bars and clubs, away from home, with patrons driving to get there and then leaving by car. By contrast, marijuana smokers tend to get high at home....
All of these facts lead experts like Dr. Romano and Dr. Kleiman to believe that public resources are better spent combating drunken driving. Stoned driving, they say, is best dealt with by discouraging people from mixing marijuana and alcohol — a combination that is even riskier than alcohol alone — and by policies that minimize marijuana’s risk on the road.
For instance, states that legalize recreational marijuana, Dr. Kleiman said, should ban establishments like pot bars that encourage people to smoke away from home. And Dr. Romano said that lowering the legal blood-alcohol concentration, or B.A.C., to 0.05 or even 0.02 percent would reduce risk far more effectively than any effort to curb stoned driving. “I’m not saying marijuana is safe,” he said. “But to me it’s clear that lowering the B.A.C. should be our top priority. That policy would save more lives.”
My supposition based on this article that marijuana reforms could end up making our roadways much safer is a result of two potential impacts of ending pot prohibition: (1) if marijuana reform leads a number of people who would generally go get drunk at a bar to instead now just get stoned at home, the net effect will be safer roads, and (2) if enduring concerns about the impact of marijuana reform leads more policy-makers to focus on highway harms, we might see a greater effort to get much tougher on the enduring public safety disaster that is drinking and driving.
I am not expecting that we will get strong evidence that marijuana reforms end up making our roadways much safer anytime soon, but I am hopeful that researchers like Dr. Romano and Dr. Kleiman continue to stress that our modern alcohol policies and practices now impact highway safety much more than any marijuana reforms are likely to do. And, as these related recent articles also highlight, the media so far is doing a pretty good job defusing the risk of misguided reefer madness when it comes to driving under the influence:
From the Denver Post: "Colorado marijuana legalization's impact on stoned driving unknown
The Los Angeles Times reports this morning that the most prominent of the proposed California legalization ballot measures--backed by the Drug Policy Alliance--will not be going forward this year. As a result, it looks like Californians will have to wait until 2016 to vote again on marijuana legalization. Given the cost of running a ballot measure in California and the difficulty in getting younger voters out in mid-term elections, this decision is not surprising.
From the LA Times:
A coalition of investors and strategists, which played a key role in passing most of the legislation to reform drug laws nationwide since 1996, has decided not to put a pot initiative on the ballot in California this year but will wait to push for legalization until 2016.
Signature-gathering efforts for at least two additional pot measures are circulating, but they do not appear to have the high-profile financial backing needed. So the coalition's decision makes it less likely that marijuana will be legalized in California in the near future.
The group was instrumental in legalizing recreational pot in Washington and Colorado and medical marijuana in Massachusetts in 2012, and it is supporting efforts in November to pass a recreational pot measure in Oregon and a medical cannabis measure in Florida.
The coalition includes the Drug Policy Alliance, which has been involved in drug reform for nearly two decades and is supported by billionaire financier George Soros. It also is allied with the late philanthropist Peter Lewis, who spent $65 million over the last 15 years to change pot laws. Lewis died in November.
The decision not to go forward in 2014 was "very close" and "one that came down to the wire," said Graham Boyd, counsel to Lewis and a leader in working to legalize marijuana in California. "We see this as a trial run or a dress rehearsal for 2016."
Tuesday, February 11, 2014
Though I think we may be nearing the point of inevitability when it comes to marijuana legalization, we aren't there yet. There's a chance that as things move forward, we will see a backlash that reverses the current trend.
If I had to pick issues that could potentially cause such a backlash, the risks of marijuana candies would be near the top of the list. And for good reason. Marijuana candies pose serious policy concerns.
Products that are packaged like and taste like candy can be easily mistaken as regular candy. And we all know who loves candy--kids. Perhaps just as important, many marijuana candies contain so much marijuana that the suggested serving size may be 1/4 or 1/10 of the candy. This is particularly odd when one considers that some of these candies come in the form of a single gummy bear or bon-bon style sweet. When most people see a single gummy bear or bon bon, they assume they should eat the whole thing. But if you were to eat an entire marijuana gummy in one serving, you could end up high out of your mind.
Two new New York Times pieces discuss this problem. In one, a mother recounts how her son had to go to the emergency room after eating a roommate's marijuana candy bar. In the other, the writer begins: "This is not what I thought marijuana looked like."
Those of us who favor marijuana legalization would be wise to take these concerns very seriously. There are real public health and safety risks that come from people--particularly children-- accidentally ingesting super-strong marijuana candies (or ingesting on purpose, but without realizing that one gummy is meant to be consumed in four servings.)
In terms of the politics, I think the "this is not what I thought marijuana looked like" sentiment is particularly noteworthy. I suspect that many voters who supported legalization in Colorado and Washington had no idea that it might result in the sale of sophisticated candies (or even that such candies were even possible.) And if enough of the folks in this group don't like what they see when they learn about marijuana candy, it is entirely possible they might sour on legalization generally.
To be sure, I don't think we are anywhere near seeing a political backlash because of this issue. But marijuana advocates would be foolish to ignore the possibility of one developing.
February 11, 2014 in Current Affairs, Food and Drink, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, February 10, 2014
With so many medical marijuana state laws and a wave of new proposals, it can be difficult to follow them all. Luckily, last week saw the release of two guides to help you keep track.
The Marijuana Policy Project has released an update to its state-by-state guide to marijuana laws.
And, for the reforms on the horizon, John Ross of Reason.com has posted "a 50-state guide to legislation and ballot measures that are in the works thus far this year."
Sunday, February 9, 2014
The title of this post is the headline of this effective new Huffington Post commentary by former congressional tax staffer Pat Oglesby. Here are excerpts:
With marijuana legalization gaining steam, we might ask not just whether to legalize, but how. Here are three tax mistakes that California and other states can still avoid.
Mistake 1. Collecting late....
Mistake 2. Taxing manipulable price....
Mistake 3. Tying lawmakers' hands....
What about this year's crop of marijuana revenue proposals? Some ace the test, avoiding late retail collections, price manipulation, and rigidity. Bills in Maine, Maryland, New York, and Rhode Island — and an initiative in Alaska — tax at the wholesale level by weight, and don't tie lawmakers' hands. That's 3 for 3 right. But the most prominent California initiative, The Control, Regulate and Tax Marijuana Act, would tax only at retail by percentage of price, and would freeze taxes through 2022. That gets everything wrong: 0 for 3.
We are just figuring out how to legalize marijuana. Some legalization plans will work, but some won't. We can follow, adapt, or learn from models for tobacco and alcohol — which we've been forming and reforming since Colonial times. That way, we can at least avoid making the same old mistakes over and over. We'll be making plenty of new ones.
Wednesday, February 5, 2014
As reported in this lengthy local article, "Alaska moved one big step closer Tuesday to a public vote on legalizing marijuana." Here are the details:
On Tuesday, a ballot initiative campaign to decriminalize and regulate pot reached the signature threshold necessary under state election law to put the issue on the Aug. 19 primary ballot.
If the measure passes, Alaska would become the third state in the nation, after Colorado and Washington, to allow cannabis for recreational use. Backers modeled the proposed initiative after Colorado's new law, which regulates and taxes marijuana similarly to alcohol.
Alaska's Campaign to Regulate Marijuana reached the signature threshold on Tuesday morning, when totals posted on the Alaska Division of Elections' website showed that 31,593 valid voter signatures had been counted. State election law requires 30,000 signatures. Ballot initiative backers also met a requirement to gather signatures from voters in at least 30 of 40 House districts. "They have hit the magic numbers," said state elections director Gail Fenumiai....
Reaching the signature requirement was the last major hurdle to getting the question on the Aug. 19 primary election ballot. There, Alaskans will decide on legal pot along other big questions for the state, including a controversial oil-tax referendum, an initiative that would require legislative approval for future large-scale mines in the Bristol Bay region and potentially a boost to the minimum wage.
All that -- plus a contested U.S. Senate race primary -- could draw large numbers of voters, said Ivan Moore, an Anchorage pollster and campaign consultant. "The primary election is looking at being one of the highest turnout primaries we've had ever, I think," he said. It's not clear how that will play for the marijuana question....
In a 2004 Ivan Moore Research poll that asked if pot should be decriminalized, only 38 percent of Alaskans said yes. By 2010, the number jumped to 43 percent when Alaskans were asked if pot should be legalized. A 2013 poll by the North Carolina-based Public Policy Polling firm on behalf of the Marijuana Policy Project found that 54 percent of Alaskans polled would vote yes on a ballot initiative. "There has been phenomenal change," Moore said.
So far, the Campaign to Regulate Marijuana has mostly been funded by the Marijuana Policy Project, a Washington D.C.-based nonprofit that is the largest marijuana policy reform group in the country. The group has contributed $1,000 in cash and $3,757 in services and other in-kind donations, according to Alaska Public Offices Commission campaign disclosure reports. Four individual donors had contributed a total of $1,800 as of Jan. 11....
A national anti-legalization group headed by Patrick Kennedy has said it plans to campaign against the ballot initiative. Smart Approaches to Marijuana, like its opponent the Campaign to Regulate Marijuana, appears to be selling its side of the issue as the only approach compatible with the Alaskan value of independence.
"Smart Approaches to Marijuana has been approached by Alaskan activists who don't want to see the safety problems and burdensome government regulation that would come with legalization," wrote spokesman Kevin Sabet in an email Tuesdsay. Sabet wouldn't say who those Alaskan activists were. Plans will be announced later this spring, he wrote.
[Taylor Bickford, who works for Strategies 360] said that argument won't far. "I don't think Alaskans are going to have a member of the Kennedy family from the East Coast telling us how to live our lives," Bickford said.
Recent related post:
Friday, January 31, 2014
I'm late in joining the exchange between Doug and Rob on local control of marijuana policy. A couple of years ago, I chaired a City of San Diego task force on local regulation of medical marijuana. In California, there is very little state-wide regulation of medical marijuana (approaching zero.) And, in the absence of state control, it has been up to localities to fill the void.
The San Diego City Council established the task force on which I served in 2009 and we gave the City our recommendations in 2010. Although the City Council passed an ordinance based in large part on our recommendations, it was rescinded after a backlash from dispensary owners (who used a quirky signature gathering procedure that we have to force Council's hand on the issue). Today, San Diego has no medical marijuana ordinance and dispensaries operate in a gray area here (to the extent they are able to operate at all.)
My experience on the task force convinced me more than ever of the value in state-wide regulation when it comes to marijuana policy. There are many aspects of marijuana policy that cities and counties are really not equipped to handle. And plenty of others that can be addressed locally but are much more efficiently handled at the state level.
That said, I do think there is real value in local control on some points. I lean towards Doug's view that cities and counties should be permitted to ban retail sale of marijuana in Colorado and Washington, for example. I think this sort of local control would be likely to help reform efforts overall, since residents in deeply prohibitionist counties and cities might be less concerned about statewide legalization if they can prevent "pot shops" from operating where they live. (My position is much different when it comes medical marijuana, where I've found that the sickest patients with the greatest need are the ones who suffer most when they don't have access to local dispensaries.)
When local control goes beyond land use and retail stores, however, then Rob's concern about the complexity of a dis-uniform regime becomes much more persuasive to me. It is one thing for a city or country to be able to ban retail marijuana sales (or regulate hours of operation, zoning, outdoor signage, etc.) It's quite another if cities can regulate, for example, the THC content in products that are sold. Or, even more problematic, if a locality had the power to ban transportation of marijuana or to re-criminalize personal possession by adults. For a state-wide regulatory scheme to function well, a marijuana manufacturer in one part of Washington needs to be be able to transport marijuana across the state without being subjected to a patchwork system of transportation regulations and outright transportation bans.
In California, an appeals court recently held that localities can ban all medical marijuana cultivation--even a single plant. The ruling, if adopted by other appeals courts (or the California Supreme Court), could leave patients in many parts of the state without any legal way to access marijuana. I think that is a serious problem and at-odds with the intent of California's Proposition 215.
All this is to say, when it comes to localism, I think the devil is in the details. On some points, like banning the retail sale of recreational marijuana, the benefits of local control may justify the costs. But on other items, like THC content or product labeling, I think state-wide uniformity is critical.
January 31, 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 (3)
Monday, January 27, 2014
I’ve heard it said that if you like federalism, you’ll love localism. The idea is that some of the key benefits of devolving policy onto the states, such as the ability to tailor policies to fit geographic preferences, can be realized to an even greater degree by devolving policy onto localities. If control of marijuana policy is handed to the states, for example, then the people of Mississippi can ban the drug while the people of Colorado legalize it. More people are happy with this outcome than the same policy were foisted on both states. But if local communities within both states were allowed to opt out of the choice made by their respective state majorities, even more people would be happy with the outcome. What is more, since most of the costs and benefits of marijuana likely fall upon people who live near users and distributors (e.g., the cost of drugged driving accidents), such devolution would not present a collective action problem. Perhaps this is why Doug welcomes the idea of legalization states like Colorado giving local governments the ability to ban marijuana in their borders. Let the voters of each locality decide what to do because they’ll ultimately bear the costs and benefits of their choices.
I can see the upside of granting local control. But I think giving local governments a say over whether marijuana is legal has some overlooked costs, and these costs could outweigh the benefits of localism.
First, there is a cost to adding one more decision-maker into the mix. If localities are empowered to ban (or legalize) marijuana, policy advocates will now have to lobby three (or even more) different layers of government to secure their preferred policy outcome. The time and resources spent trying to persuade Congress, the Executive branch, 50 state legislatures (and electorates), 50 state governors, and literally thousands (if not tens of thousands) of localities about how best to regulate marijuana represents a significant cost. Perhaps it’s the price of democracy. But I suspect the arguments that would be made before local city councils would be (and are) largely a rehash of well-worn arguments already being heard on national and state stages: Is marijuana safe? Is prohibition effective? Is this mic on? and so on. I doubt the gains from granting every local government the ability to opt out of legalization (or prohibition) outweigh the costs of having to make the same basic decision again and again and again.
A second related cost stems from the complexity inherent in such a dis-uniform localist regime. This cost will be greater the more leeway local governments have in dealing with marijuana. Indeed, there could be endless variation in terms of how local governments choose to regulate the drug. And such variation wouldn’t necessarily reflect the unique and deep seated preferences of local voters, as opposed to what the different officials assigned to translate mandates into legal text had for lunch. But the variation would increase the costs of compliance, as businesses will have to spend more to understand differences in regulations across the jurisdictions in which they operate.
Third, the variation in local laws makes it more difficult to learn from the experiments now underway. Variation is, of course, inherent in any experiment. Indeed, other states could potentially learn a great deal from the novel policies now being crafted by Colorado and Washington: how much tax revenue can be raised, how much usage will rise, etc., in the wake of legalization. But it’s much tougher for other states to learn when the experiment is not carefully controlled. If the 64 counties comprising Colorado all adopt different marijuana regulations, we may never know whether state reforms have impacted usage rates, driving fatalities, crime rates, etc., especially since some data are simply available only on a state-wide level.
Fourth, the policy choices made by local governments can impose indirect externalities on other parts of the state. For example, if one county were to ban the sale of marijuana, its residents might flock to neighboring counties to buy the drug. To be sure, there’s an upside to this: counties that allow distribution would enjoy a tax windfall from marijuana tourism. But those counties might prefer not to be deluged with the added car traffic and its attendant costs. The problem is, there may be no legal or practical way for them to exclude non-residents from their borders.
Of course, similar problems arise when state governments break from federal policy, but the costs are likely to be much lower given the larger size and relatively small number of state governments. At bottom, I doubt there is a strong normative justification for allowing local governments to opt-out of marijuana prohibition or legalization. I suspect granting them this choice may simply reflect a political compromise, designed to lessen opposition to state legalization in more conservative parts of the states.
January 27, 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 (6)
Thursday, January 23, 2014
In an earlier post, I explained why courts won’t enforce some contracts between marijuana dealers and their investors, landlords, suppliers, etc.
Without the state’s help in enforcing their bargains, the state-legalized marijuana industry will face higher costs of doing business compared to other industries. After all, contracting parties are more likely to engage in opportunistic behavior (e.g., refusing to repay a loan) when their partners have no legal recourse.
But the unavailability of legal remedies isn’t the “final nail in the coffin” of the marijuana industry because there are viable, albeit second-best alternatives to contract law. Indeed, black markets can flourish without lawful contracts (think Silk Road), and even lawful businesses sometimes prefer cheaper non-legal solutions to expensive legal ones.
Here I briefly tease out some non-legal strategies the marijuana industry and its partners might pursue in the wake of an Arizona court ruling holding their contracts unenforceable. (Note I purposely avoid illegal strategies, like, well, this.)
One, obvious solution is to limit the universe of contracting partners, namely, to persons who are known and can be trusted. Indeed, reputation plays a pivotal role in some industries (think Amazon, EBay, and their illicit cousin Silk Road). A good reputation is a valuable asset, one that vendors won’t sacrifice too readily (particularly when they hope to remain in the industry). For example, if a marijuana dealer like the one in my prior post thought it might need future financing, it would be less likely to walk away from $500,000 in obligations to its current lenders. Firms can even take this idea to the next level and integrate. Indeed, Colorado has required vertical integration of marijuana growers and sellers. Such integration creates its own problems, but a dealer which grows its own stock now at least doesn’t have to worry about enforcing deals with third-party suppliers.
A second strategy involves taking various forms of self-protection against breach. Think of a security deposit paid to a landlord. The deposit reduces the risk to the landlord that the tenant will just walk away from the lease. The payment of such a deposit should help marijuana dealers secure leases. And as long as tenants remain in possession of the property under lease, they have their own ways of protecting themselves against breach by landlords.
In short, there are alternative, albeit second best alternatives to contract law. Readers, I would be curious to know how people are now handling deals in the marijuana industry.
Tuesday, January 21, 2014
Following up on Rob's post, I think Obama's comments to the New Yorker about marijuana policy may be one of the most politically significant statements on the topic in the past few years (or even decades.)
On one level, his remarks weren't all that exceptional. As far as substance, he doesn't say anything we didn't know already. He acknowledges marijuana is no more dangerous than alcohol ("I don’t think it is more dangerous than alcohol.”); expresses concern about racial disparities i enforcement ("Middle-class kids don’t get locked up for smoking pot, and poor kids do."); and expresses support for the DOJ's memo advising prosecutors not to use resources to interefere with Colorado and Washington's legalization laws (saying of the laws, "it’s important for it to go forward[.]")
And, as Rob very effectively explains, Obama's power to unilaterally change federal marijuana policy is very limited.
But, in terms of the politics, I think Obama's statements are incredibly important.
First, they paint the DOJ's 2013 memo on Colorado and Washington's laws in a much different light that the DOJ's 2009 memo on medical marijuana. Up until now, President Obama's comments on state marijuana policy has focused on the need to prioritize federal law enforcement resources. The DOJ's 2009 memo turned out to have very little impact, in part because US Attorneys could tell local media that it was never really intended to do much more than advise on the use of resources. What Obama told the New Yorker about Colorado and Washington is very different. Instead of saying only that going after people in compliance with state law isn't a good use of resources, Obama said he thinks it is "important" for Colorado and Washington's laws "to go forward." I think this may distinguish the 2013 memo--both politically and in terms of how prosecutors and DEA agents on the ground see it--from the DOJ's ineffective 2009 medical marijuana memo. Obama's statement doesn't leave a lot of wiggle room for federal prosecutors and DEA operatives to go after people in compliance with Colorado and Washington's laws the way they did with medical marijuana. Legally, there there is no difference. But, politically, I think Obama's remarks will make it a lot more difficult for federal officials to go after people in compliance with state laws.
Second, I think Obama's comments indicate that he and his advisors may believe the issue is nearing a tipping point. When Obama was asked about marijuana in 2009, he couldn't even be bothered to give a serious and substantive answer, treating the question as a joke. To the New Yorker, Obama echoed support two key talking points from marijuana legalization advocates: that marijuana is no more dangerous than alcohol and that marijuana prohibition has racially disproportionate impacts. Though he was also careful to express concerns about legalization, his comments seem like the first real indication (to me) that he may be on the political road to "evolving" on this issue.
Finally, and closely related to point two, I think Obama's comments will go a long way toward establishing marijuana legalization as a serious political issue. In 2009, Obama treated it as a joke. In 2012, Mitt Romney wouldn't even answer questions about the topic, saying it wasn't an issue of real significance. This is in keeping with the tendency of mainstream media and politicans to treat marijuana legalization as a joke. Obama's treatment of the issue in the New Yorker is, I think, a preview of what is ahead in the 2016 campaign. Politicians are going to find that they can't just laugh off marijuana legalization. Voters are going to expect real answers on the topic.
Of course, these trends were already underway. And, the bar is low when it comes to significant comments about marijuana from politicians. All that said, it is hard for me to think of many statements on marijuana policy in the past years or decades that I think are more politically important than Obama's.
This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.
The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.
Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.
I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.
Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers. In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on. In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today. Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.
As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.
Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law. There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.
It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.
In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.
January 21, 2014 in Criminal justice developments and reforms, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Thursday, January 16, 2014
The question in the title of this post, which I am now posting to all the blogs in which I now participate, is my sincere reaction to this new Washington Post article headlined "DEA operations chief decries legalization of marijuana at state level." Here is the context:
The chief of operations at the Drug Enforcement Administration on Wednesday called the legalization of marijuana at the state level “reckless and irresponsible,” warning that the movement to decriminalize the sale of pot in the United States will have severe consequences.
“It scares us,” James L. Capra said, responding to a question from a senator during a hearing focused on drug cultivation in Afghanistan. “Every part of the world where this has been tried, it has failed time and time again.”
Capra’s comments marked the DEA’s most public and pointed criticism of the movement toward decriminalization in several states, where local officials see it as an opportunity to generate tax revenue and boost tourism....
Capra said agents have watched the early days of legal marijuana sales in Colorado with dismay. “There are more dispensaries in Denver than there are Starbucks,” he said. “The idea somehow people in our country have that this is somehow good for us as a nation is wrong. It’s a bad thing.”
Capra said that senior DEA officials have faced uncomfortable questions from law enforcement partners abroad. During a recent global summit on counter-narcotics in Moscow, he said, he and the head of the DEA were at a loss to explain the loosening drug laws. “Almost everyone looked at us and said: Why are you doing this [while] pointing a finger to us as a source state?” he said. “I don’t have an answer for them.”...
Capra said he worries about the long-term consequences of the national mood on marijuana, which law enforcement experts call a gateway to more dangerous drugs. “This is a bad experiment,” he said. “It’s going to cost us in terms of social costs.”
Let me begin by saying I respect all those who work in the DEA and other law enforcement agencies dealing with illegal drug issues, and I am certain all those who do this work have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But it is for that very reason that I ask this question about exactly what has DEA officials "scared": I sincerely want a much better understanding of what "social costs" of reform are being referenced here so that I can better assess for myself how I think these potential "social costs" of state-level marijuana reform stack up to the existing "social costs" I see due to current pot prohibition laws and norms.
That said, I think I might be able to help DEA officials avoid "being at a loss" to explain loosening drug laws in the US to their international friends in Moscow or elsewhere. Here is what I suggest DEA officials say: "The United States of American is an exceptional nation that, in President Lincoln's words, was "conceived in Liberty" and its citizens recently have become ever more skeptical about the growth of government's coercive powers and ever more concerned about paying high taxes for government programming perceived to be ineffectual. Thus, just as the people of America were the first to experiment seriously with a constitutional democracy (which has worked out pretty well), now some of the people of America are eager to experiment seriously with a regime of marijuana regulation rather than blanket prohibition."
This account of why polls show ever greater support for marijuana legalization is my sincere understanding of why so much drug reform activity is going on now in the United States. The current "Obama era" is defined by a period of relatively tight budgets, relatively low crime, and yet still record-high taxing-and-spending in service to criminal justice programming. These realities, especially in the wake of the Tea Party movement and other notable libertarian responses to the enormous modern growth of state and federal governments, have more and more Americans thinking we should be open to experimenting with a regime of marijuana legalization and regulation rather than blanket prohibition.
It is quite possible, as the DEA official suggests, that "this is a bad experiment." But even if it is, the experiment does not "scare" me, in part because I have a hard time fully understanding what potential increased social costs should make me or others truly "scared." More importantly, I have enormous confidence that, if the social costs of marijuana reform prove to be significant, the American people will realize pot reform is "a bad experiment" and will again change its laws accordingly. Indeed, this is precisely the experiences we have seen with our legal experiments with other drugs throughout American history:
roughly 100 years ago, we experimented with national alcohol Prohibition, but thereafter discovered this was bad experiment due to a variety of social costs, and then went back to a regulatory regime for this drug, and have in more recent times kept tightening our regulatory schemes (e.g., raising the drinking age from 18 to 21), as drunk driving and other tangible social costs of alcohol misuse have become ever more evident;
roughly 50 years ago, we experimented with nearly everyone have easy access to, and smoking, tobacco nearly everywhere, but thereafter discovered this was bad experiment due mostly to health costs, and then have been on a steady path toward ever tighter regulation and localized prohibition (e.g., The Ohio State University just became a tobacco-free campus), as lung cancer and other health costs of tobacco use have become ever more evident.
I emphasize these historic examples of American drug experimentation because it is certainly possible to lament the harms produced along the way or the enduring "social costs" of having tobacco and/or alcohol still legal. But it is also possible to conclude, as I do, that what makes America both great and special — dare I say exceptional — is that we persistently maintained our fundamental commitments to freedom, democratic self-rule and the rule of law throughout these experiments. Consequently, this modern era's new round of American drug experimentation has me excited and intrigued to watch unfold the next chapter of the American experience, and I am not "scared" by the marijuana reform movement because they it strikes me as a further vindication of our people's fundamental commitments to freedom, democratic self-rule and the rule of law.
But maybe I am just way too high on the idea of American exceptionalism to have a sensible and sober understanding off all the potential harms and "social costs" that are apparently scaring DEA officials. And, as I said above, I readily acknowledge that all those who work on the front lines of the drug war have much more first-hand knowledge of the myriad harmful social costs of drug use and abuse than I ever will. But, again, that it why the question in the title of this post is sincere: I genuinely and really want to have a much better understanding of what has DEA officials "scared" so that I can sensibly temper my excitement and optimism about modern marijuana reforms.
I fear that responses to this post could become snarky or ad hominem real quickly, but I hope all readers will tap into the spirit of my inquiry and really try to help me understand just what potential social costs of modern marijuana reform could lead those in the know to be "scared" as the quote above suggests. And I am posting this query in all five blogs I work on these days because I am eager to get wide input and as many diverse insights on this question as possible.
January 16, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (2)