Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Friday, February 27, 2015

Learning so much already even in first few hours of first Tribal Marijuana Conference

ImagesI feel extraordinarily fortunate to have been invited to participate the nation’s first ever Tribal Marijuana Conference taking place as I write this post from a huge ballroom at the Tulalip Resort Casino, just North of Seattle.   This post from Canna Law Blog discusses the basics, and this agenda highlights all the informed speakers in the mix who are already making this an amazing event in which I am learning so much.  

For example, right now on the podium now are Thomas Carr, the Boulder City Attorney, and Pete Holmes, Seattle City Attorney, are providing an extraordinary set of insights about local enforcement of local laws in the first two recreational marijuana states. Carr also reported that, because Dunkin' Donuts does not have a store in Boulder, it is easier to get marijuana (and munchies) in Boulder than Dunkin' Donuts (and Munchkins) in some parts of Colorado. Of course, that should not worry public health advocates too much, given that there is good reason to believe Munchkins are perhaps much more addictive and harmful than marijuana.

1403002903506This local article, headlined "Indian tribes looks to marijuana as new moneymaker," highlights some reasons why there are hundreds of persons at this event:

After making hundreds of billions of dollars running casinos, American Indian tribes are getting a good whiff of another potential moneymaker: marijuana.

The first Tribal Marijuana Conference is set for Friday on the Tulalip Indian Reservation in Washington state as Indian Country gets ready to capitalize on the nation’s expanding pot industry. Organizers said representatives from more than 50 tribes in at least 20 states have registered, with total attendance expected to surpass 300....

Robert Odawi Porter, one of the conference organizers and the former president of the Seneca Nation of Indians in New York, said tribes have “a tremendous economic diversification opportunity to consider” with marijuana commerce. He said the event would bring together “trailblazers” in the industry who will help tribal leaders understand the complex issues involved.

While it’s unknown how many tribes ultimately will seek to take advantage of the change, one analyst warned that any tribe expecting to hit the jackpot might be in for a surprise, particularly as the supply of legal pot in the U.S. increases. “People keep forgetting it’s a competitive market,” said Mark Kleiman, a professor of public policy at the University of California, Los Angeles, who served as Washington state’s top pot consultant. “And it’s cheap to grow.”

In Washington state, where retail pot stores opened in July, Kleiman said pot growers who sold their product for $21 a gram only a few months ago are now getting $4 a gram. “The price of marijuana is the price of illegality,” he said.

But the issue is generating plenty of buzz among tribal leaders. On Monday, tribal officials at the National Congress of American Indians winter meeting in Washington, D.C., attended a closed breakout session with two U.S. attorneys to discuss the implications of legalized marijuana....

Even though the talks are in the early stages, many tribal officials are pleased that the Obama administration is giving them the power to proceed. “The position of the administration is a strong indication of their commitment and acknowledgment of tribes’ sovereignty, jurisdiction and governmental authority,” said W. Ron Allen, chairman and CEO of the Jamestown S’Klallam Tribe in Washington state.

Marijuana is a divisive issue among tribes, with many tribal officials worried about high rates of drug addiction among American Indians. Last year, the Yakama Nation decided to ban marijuana from its reservation in south central Washington state. The Tulalip Tribe, located just north of Seattle, voted to work with the Bureau of Indian Affairs and the Department of Justice to try to legalize medical marijuana.

Legalization opponents fear that more tribes will want to begin selling marijuana without understanding the risks. “I worry about this being a big expansion and I worry that the potential consequences – health, safety and legal – have not been properly communicated to them,” said Kevin Sabet, president of Smart Approaches to Marijuana, an anti-legalization group.

Regardless of what tribes decide to do, he warned that the situation could change with the election of a new president in 2016. “I don’t see this ending well for anyone, especially if a new administration decides to enforce federal law,” Sabet said. “The thing people should remember is that marijuana is still illegal – on tribal lands and otherwise – even if the law isn’t being equally enforced.”

Seattle City Attorney Pete Holmes, another of the planned speakers at Friday’s conference, said allowing tribes to legalize marijuana will move pot sales “into the light of day.” And he predicted there would be little change in the amount of pot sold on reservations. “Here’s the worst-case scenario: that a tribe just decides they want to be the epicenter of marijuana production, they want to undercut the state system, they want to be a mecca, if you will,” Holmes said. “I’ve heard no tribe say that. . . . We seem to be able to co-exist quite nicely.”

Kleiman said the tax issue would be one of the toughest to sort out as tribes ponder whether to join the industry. “It’s a big deal for people who are trying to make sense of marijuana policy, because if the tribes are exempt from state law, then the states can’t actually tax and regulate,” Kleiman said. “That would be catastrophic. It’s not a big deal for the tribes because there’s no money in it.”

February 27, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, 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 (0)

Thursday, February 26, 2015

Fascinating (federal? federalism?) fracas unfolding over DC marijuana reform inside the Beltway

Images (4)As reported in this local article, headlined "Washington DC Law Legalizing Marijuana Goes Into Effect," an interesting fight is developing among politicians over marijuana reform law and practices in the District of Columbia.  Here are the basics:

Washington Mayor Muriel Bowser defied congressional Republicans and implemented D.C.’s new local law allowing its residents to smoke marijuana. In implementing the new pot laws Thursday, Bowser has rebuffed two influential House Republicans who’d warned her that she’d be breaking federal law — and risking retribution.

“We would encourage the Congress to not be so concerned with overturning what 7-in-10 voters said should be the law in the District of Columbia,” Bowser said at a news conference Wednesday afternoon.

Bowser and Washington police implemented a measure approved by D.C. voters in November allowing Washington residents to possess up to two ounces of pot. The allowance applies only to those over 21. In addition, D.C. residents can grow up to six pot plants in their own yards. Buying and selling pot are still illegal, as is smoking in public places. But people can transfer up to one ounce to another person — just not for money.

House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah, and Rep. Mark Meadows, R-North Carolina, said in a letter Tuesday that the city would be violating a spate of federal laws if it went forward with Bowser’s plan to implement the new pro-pot measure.

“We strongly suggest you reconsider your position,” the two wrote to Bowser — while, in a thinly veiled suggestion that there would be consequences for ignoring them, pointing to House rules that give Chaffetz’s panel broad investigative authority.

Bowser, though, brushed Chaffetz and Meadows back on Wednesday, saying they should worry about bigger problems — like funding the Department of Homeland Security, which is set to shut down at week’s end if Congress doesn’t act.

And she took a shot at Republicans who have suggested she could wind up in jail for breaking federal law — even though Congress has no powers to prosecute her. “A lot of reasonable people have a different view of this issue,” she said. “I have a lot of things to do here in the District of Columbia, and me being in jail wouldn’t be a good thing.”

It’s the latest example of the strain between a heavily Democratic city that is ultimately controlled by a Republican-dominated Congress — which couldn’t stop similar marijuana legalization pushes in Colorado and Washington state, but is trying to use its power of the purse to do so this time.

Chaffetz and Meadows pointed to a provision included in a massive spending bill approved by Congress in December that prohibited Washington from legalizing marijuana, or cutting any drug possession penalties.

Bowser has insisted that the district’s measure was enacted before that December vote. But the two Republicans noted that any bill in Washington can’t become local law until it’s been through a 30-day layover period before Congress. Until that happens, they said, the measure can’t be considered enacted — which in this case means it “was not enacted prior to the language in the continuing resolution preventing it from moving forward.”

“If you decide to move forward tomorrow with the legalization of marijuana in the District, you will be doing so in knowing and willful violation of the law,” Chaffetz and Meadows wrote.

February 26, 2015 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, February 25, 2015

Newest (and most interesting?) laboratory experiment with marijuana reform officially underway in Alaska

DownloadAs detailed in this lengthy AP piece, headlined "No street parties, no citations: Alaska quietly ushers in legalized marijuana," the state nicknamed The Last Frontier is now an important and especially interesting new frontier in the state-level laboratories of democracy experimenting with recreational marijuana reforms. Here are the basics:

Alaska on Tuesday became the third U.S. state to legalize marijuana. But the historic day passed with little public acknowledgement in a state with a savvy marijuana culture that has seen varying degrees of legal acceptance of the drug for 40 years.

Supporters said the day was a milestone, comparing it to the end of Prohibition. But unlike in Colorado and Washington state, there were no street parties and public smoking displays in Alaska's biggest cities.

Dolly Fleck-Phelps, a Kenai resident with an ancillary marijuana business, said she thought people would look back on the day as a turning point for Alaska. "Absolutely this is history in the making," Fleck-Phelps said. "This is the opening of the door. Now it's time for the real work to begin."

Legalization marked the end of a 43-year political battle for Bill Parker, 70. The Anchorage man, who was listed as a sponsor of the initiative, first banded together with a group of young Democrats elected to the state House of Representatives to introduce a legalization bill in 1972. "Gee, there weren't enough votes to worry about," the retired deputy commissioner of corrections said.

Parker's hopes for legal weed dwindled as he saw Alaska become more Republican and more conservative over the years. He said perhaps the marijuana vote marks the end of that pendulum swing. Now that pot is legal, Parker is ready to take a pause to enjoy the moment, but he said he won't stop fighting. "Well, it makes me feel good. It's not over, of course. The initiative passed by between 5 and 6 percent, so 40 some percent of the people voted against it. Not all of them are ready to lay down and go along," Parker said....

Alaska has had a complicated history with marijuana over the years. The Alaska Supreme Court in 1975 said personal marijuana possession was protected under the state constitution's right-to-privacy clause. In 1998, voters legalized medicinal marijuana. But over the years, state lawmakers twice criminalized any possession, creating an odd legal limbo, and never created rules for medical marijuana dispensaries to operate.

Placing Alaska in the same category as Washington state and Colorado with legal marijuana was the goal of the pro-pot coalition that included libertarians, rugged individualists and small-government Republicans who prize the privacy rights enshrined in the Alaska state constitution....

As of Tuesday, adult Alaskans can not only keep and use pot, they can transport, grow it and give it away. A second phase, creating a regulated and taxed marijuana market, won't start until 2016 at the earliest. That's about the same timeline for Oregon, where voters approved legalizing marijuana the same day as Alaska did. But the law there doesn't go into effect until July 1.

Police throughout Alaska were prepared to hand out $100 citations for anyone caught smoking pot in public, but departments stretching more than 1,100 miles from Nome on the state's western coast to Juneau in the southeast panhandle hadn't issued a ticket during the day. "We haven't even received a call or complaint about anybody doing it," said Steve Goetz, deputy chief for the University of Alaska Fairbanks police department....

Others remained concerned on Tuesday about the details not yet worked out regarding legalization. When the public voted last November to legalize marijuana use by adults in private places, voters left many of the details to lawmakers and regulators to sort out. Elisabeth Schafer, a Sitka resident visiting Juneau for work, said she was worried about the state developing a workable system of regulations. "I just wish we had waited longer as a state," Schafer said. "I don't want to blaze the way for other states."

Among the questions remaining on Tuesday were what public places consumption was prohibited in, and how the regulations for a new commercial industry would look. The initiative bans smoking in public, but it doesn't define what that means, and lawmakers left the question to the alcohol regulatory board. There were missteps even as the board decided pot can't be smoked in places generally accessible to the public, like parks, schools or on the street in Alaska.

Board members met via a teleconference Tuesday, but it started late because organizers gave out the wrong telephone number. The call originated from the board's Anchorage office. However, a locked gate blocked access to the meeting site.

I think Alsaka is an especially interesting state to watch closely in the months and years ahead because it is such a unique state in so many ways: its size, small population, history of libertarian/conservative values and its relative isolation from the rest of the US. Also, Alaska as part of the second set of jurisdictions legalization recreational marijuana, can and should be able to draw some regulatory lessons from Colorado and Washington as it creates a new regulatory structure for a commercial marijuana industry. And, especially as debate over federal marijuana reform begins to heat up in Congress in the months and years ahead, Alaska's two GOP senators might provide to be especially important national players within the establishment of the political party that has been recently most resistant to reform of federal criminal drug laws.

February 25, 2015 in Current Affairs, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Poll shows, after a few years of experience, Colorado citizens still strongly support legalization

As reported in this Politico piece, headlined "Poll: Colorado residents still back legal marijuana," a new poll suggests significant experience with a marijuana legalization regime has strengthened in-state support for this major marijuana reforms. Here are the details:

More than two years after Coloradans voted to allow recreational marijuana use, the state’s residents continue to stand firmly behind keeping the drug legal, a new poll found.  The survey, commissioned by Quinnipiac University, found that 58 percent of Colorado voters support keeping pot legal, while only 38 percent are against it.

The result featured significant gender and age disparities.  Voters ages 18 to 34 favored it overwhelmingly, 82-16 percent, while 50 percent of those ages 55 and older were against it, with only 46 percent in support.  Likewise, men supported the measure by a margin of 63-33, while women only favored it 53-44....

Thus far, the Obama administration has decided not to intervene in states that have legalized or decriminalized marijuana, despite federal regulations outlawing the drug. Colorado’s marijuana legalization is currently being challenged in federal court by neighboring states that claim a legal pot industry next door has rendered them unable to enforce their drug laws at home.

The Quinnipiac survey was taken between Feb. 5-15 among 1,049 Colorado voters. Its margin of error is plus or minus 3 percentage points.

February 25, 2015 in Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, February 20, 2015

Near Irvine, CA? Stop by the Critical Perspectives on the Drug War symposium at UCI tomorrow

If you're in southern California and looking for a way to kill some time on Saturday (and earn CLE), consider dropping by the Critical Perspectives on the Drug War symposium at University of California Irvine School of Law.  

The event goes from 9:00 am to 5:30 pm and features panels on a range of issues, including alternatives to incarceration and, of course, marijuana.  I'll be moderating a 2:00 pm panel on marijuana legalization efforts that will feature speakers talking about the latest news in Colorado, Oregon, and California.  The full conference schedule is here

February 20, 2015 in Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, February 17, 2015

Remarkable Ohio developments as four groups compete to get reform proposals to the ballot

Serious talk about full marijuana legalization in two Northeastern states

Today's news about marijuana reform includes these two stories about serious efforts to bring major marijuana reform to two states in the Northeast:

From New Jersey, "Prosecutors, ACLU and NAACP join to legalize marijuana":

Representatives of diverse organizations on Wednesday plan to launch a consortium aimed at legalizing marijuana in New Jersey....

A news conference is planned in Newark to announce the consortium. Among the groups to be represented at the news conference are the New Jersey Municipal Prosecutor's Association, which last year came out in favor of legalizing marijuana, and the New Jersey chapters of the American Civil Liberties Union and the National Association for the Advancement of Colored People. A media advisory said the various groups are joining forces "in a broad-based campaign to legalize, tax and regulate marijuana, ending thousands of arrests per year in New Jersey."

From Vermont, "Marijuana Legalization Bills to Be Introduced in Vt. Legislature":

A pair of bills expected to be introduced this week in the Vermont Statehouse in Montpelier would legalize small amounts of recreational marijuana, and pave the way for authorized stores and lounges to sell pot.

The Senate bill, to be introduced by Sen. David Zuckerman, P/D-Chittenden County, would permit Vermont residents 21-years-old and older to possess up to one ounce of marijuana, two mature marijuana plants, seven immature plants, and marijuana produced by those plants in a secure, indoor facility. An essentially identical bill is expected to be introduced in the House of Representatives by Rep. Chris Pearson, P-Burlington....

Key players at the Statehouse expect to take their time. Zuckerman acknowledged there are no plans to hold hearings this legislative session on legalizing marijuana. He said he wants to submit the bill this week so that the pieces can be put in place to really make serious progress on the issue starting in January of 2016.

February 17, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

"The Uneasy Case for Marijuana as Chemical Impairment

 Under a Science-Based Jurisprudence of Dangerousness "[rest of title] 

The relationship between new medical and recreational marijuana laws and "drugged driving" is a hot and vexing one. Doug has previously posted an article discussing this topic;  this article by Andrea L. Roth available via SSRN   examines  and rejects the analogy between drunk driving and drugged driving by looking at the history of drunk driving laws specifically their scientific underpinning. .

Here's the abstract:

   As the marijuana legalization movement lurches forward, states face a jurisprudential dilemma in addressing the burgeoning public health issue of “drugged driving.” Zero-tolerance laws targeting driving with any illegal drug in one’s system, justified under a “jurisprudence of prohibition” based on the blameworthiness of the drug itself, are no longer a good fit. Instead, states have attempted to treat marijuana like alcohol, and have imported drunk driving’s “jurisprudence of dangerousness,” by enacting “per se” driving-under-the-influence-of (DUI)marijuana laws redefining DUI as driving with a certain amount of THC, marijuana’s main psychoactive compound, in one’s blood. These laws are legitimate, we are told, because they are analogous to “per se” .08% blood-alcohol concentration (BAC) impairment laws. What lawmakers have forgotten, and what legal scholars have largely neglected, is the buried and colorful history of drunk driving’s jurisprudence of dangerousness, and the scientific framework established by the country’s first “traffic czar,” William Haddon Jr., for proving the link between specific BACs and crash risk. Under this framework – which focuses first and foremost on fatal single-car crashes and case-control studies with a randomly selected control group – the illegitimacy of the new wave of DUI marijuana laws is painfully obvious. In fact, the few single-car crash and case-control studies that have been conducted have found no relationship between THC blood levels and increased relative risk of crash. Properly understood, the history of drunk driving offers what is still the only valid scientific framework for using the criminal law as an instrument of public safety.

February 17, 2015 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Science | Permalink | Comments (0)

Thursday, February 12, 2015

Does sensible marijuana legalization require allowing on-site consumption?

The question in the title of this post is prompted by this notable new commentary by Professor David Ball appearing in USA Today.  Here are excerpts:

In Colorado and Alaska, when the states legalized recreational marijuana use, voters were sold on the idea that we weren't simply legalizing the drug; we were regulating it like alcohol. That selling point is likely to be part of 2016 campaigns to do the same in states from California to Maine.

But there is one way in which marijuana regulations have, so far, not modeled themselves on alcohol regulations. They do not allow on-premises consumption in commercial establishments such as bars and restaurants. This is a mistake. The best way to limit diversion from the legal market to teens would be to shift all marijuana use, or at least as much as possible, to on-premises consumption.

Consider the alcohol market: We know that underage drinkers primarily get alcohol three ways, stealing from parents, at parties, and from asking older people to buy for them. Kids get alcohol from someone who bought it "to go" from a store. We could slash youth drinking by eliminating off-site consumption. If there were no liquor stores, no beer and wine in supermarkets, there would be a lot less diversion to teens. Only those with a license to serve alcohol could sell it, and consumption would take place in those establishments. Bars and restaurants risk losing liquor licenses and face criminal and civil penalties when they sell illegally.

Of course, it would be hard to ban to-go sales of alcohol now that millions of Americans are used to it. But marijuana is different. We are just now creating the pattern for legal marijuana use.

The most powerful objection to regulated recreational marijuana is the danger of teenagers getting access. This is of paramount importance — and not just because I'm a father of two. The prohibition we have now has proved to be a lousy way to keep marijuana out of anyone's hands.

In a regulated market where all marijuana is purchased to go, we'll have the same problems that we have with alcohol. But what if you could buy marijuana only for immediate consumption? Businesses that sold it would check ID and only the buyer could use it, just as bars avoid serving underage patrons today....

There are technical issues to be worked out. It is unclear whether states would need to change smoking laws or whether states would allow only vaporizers, drinks or edibles. Regardless, as states seek to regulate marijuana like alcohol, they need to learn the lessons of alcohol as well. Allowing off-site consumption of marijuana, as is the rule today, maximizes the potential for diversion to unauthorized users. It's the one alcohol regulation we shouldn't be copying.

David has some additional points to make on this topic in this post at his Drug Law & Policy blog.

February 12, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, February 11, 2015

Notable Colorado figures for marijuana tax revenues for 2014

This new AP article, headlined "Colorado collected about $76 million in recreational and marijuana pot revenue in 2014," reports on the latest official reporting of tax revenues collected on legal marijuana sales in Colorado for last year. Here are some of the details and some context for what they mean:

Marijuana makes money. But legalizing it doesn't eliminate the black market or solve a state's budget problems. Those are the lessons from Colorado's first full year of tax collections on recreational pot. The year-end report, released Tuesday, tallied about $44 million in new sales taxes and excise taxes from recreational pot.

Add fees and pre-existing taxes from medical pot, which has been legal since 2000, and Colorado's total 2014 pot haul was about $76 million....

Colorado started selling recreational weed on Jan. 1, 2014. But its first month of sales resulted in only $1.6 million for the state. By December, that figure was $5.4 million. The reason for the increase? Regulatory delays. Red tape meant stores opened slowly, with many municipalities waiting months before allowing pot shops to open....

But legal weed isn't an overnight flood of tax money. "Everyone who thinks Colorado's rollin' in the dough because of marijuana? That's not true," said state Sen. Pat Steadman, a Denver Democrat and one of the Legislature's main budget-writers....

Colorado's pot regulators have struggled to establish a wholesale pot price to collect excise taxes. "Taxing a percentage of price may simply not work," said Pat Oglesby, a former congressional tax staffer who now studies marijuana's tax potential at the Chapel Hill, N.C., Center for New Revenue. He pointed out that the two latest legal weed states -- Alaska and Oregon, both still working on retail regulations -- will tax marijuana by weight, similar to how tobacco is taxed.

Every state in the union, liberal to conservative, has a market for marijuana. And making pot legal doesn't guarantee those consumers will leave the black market and happily sign up to start paying taxes. In Washington state, medical marijuana isn't taxed. It is in Colorado, but all adults are allowed to grow up to six plants on their own. That means the states' new marijuana markets had legal competition from Day One. And that doesn't account for the black market, which of course is completely free of taxes and regulations.

Lawmakers in both Colorado and Washington are looking for ways to drive pot smokers out of the lower-taxed medical pot market and into the recreational one. But obstacles are stiff. "If there is untaxed medical pot, the taxes are voluntary. When you make it voluntary, people won't necessarily pay," Oglesby said.

The marijuana market is far from settled. Colorado benefited from first-in-the-nation curiosity and marijuana tourism. As more states legalize, Colorado and Washington will face competition. "Colorado is probably kind of a best-case scenario" for pot tax collections, said Jeffrey Miron, a Harvard University economist who studies the drug market. "If a number of other states legalize -- and two of them already have -- then bit by bit, Colorado revenue is likely to decline."

There's an even bigger uncertainty looming for states considering legal weed -- a new president in 2016. "The huge unknown is still federal policy," Miron said. "A new president can radically change state policies toward legalization."

I believe that Colorado's official year-end accounting can be found in this link/document, and I notice that there appears to be no column for state (or federal) income taxes paid by persons now working legally in the state-legalized marijuana market. Though certainly direct taxes on marijuana manufacturing and sales is the most tangible and measurable consequences of marijuana reform, I tend to think the biggest long-term economic impact for a state comes from creating a (huge?) industry with collateral businesses all of which will provide lots of jobs for individuals who will pay (lots of?) income tax on what they make in this new industry.

February 11, 2015 in Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (2)

Tuesday, February 10, 2015

State marijuana reform developments from east to west, from A to V

Saturday, February 7, 2015

Are hundreds of tribal communities going to enter the marijuana business?

Images (1)The question in the title of this post is prompted by this recent Huffington Post piece headlined "More Than 100 Native American Tribes Consider Growing Marijuana." Here are excerpts:

More than 100 Native American tribes have reached out to FoxBarry Farms, a management firm building the nation's first marijuana facility on tribal land, over the past month to express interest in the cannabis industry.

FoxBarry CEO Barry Brautman, whose company also works with tribes to build and operate casinos, told The Huffington Post there has been a surge of interest since the Department of Justice's announcement late last year that tribes are free to grow and sell marijuana on their lands as long as they adhere to specific guidelines. "I really underestimated," Brautman said. "So many tribes are wanting to do this right now."

Brautman, along with the Denver-based United Cannabis Corp., recently inked a contract to build a giant medical marijuana growing operation on the Pinoleville Pomo Nation's ranch in Northern California. The $10 million, 2.5-acre facility will include spaces for cultivating, processing and selling products under the United Cannabis brand. Brautman said the operation plans to hire 50 to 100 employees, with preference to tribe members.

As more states legalize marijuana for both medical and recreational purposes, the burgeoning industry may provide an economic boon for tribes across the country, Brautman explained. He's currently in talks with three other California-based tribes, as well as groups in seven other states. He said he hopes to finalize new deals every few weeks in the coming months.

"Tribes want what any government wants for its people, and that's financial independence," Brautman said. "They want to earn their own money, provide education, health care and housing. This new industry allows them to be more economically independent."

A U.S. Department of Justice memo issued in December states that Native Americans are free to grow and sell marijuana as long as they adhere to the same federal guidelines that govern state-legal operations. While marijuana remains illegal under federal law, 23 states have legalized cannabis for medicinal purposes, and four states and the District of Columbia have laws that permit recreational use....

Following the Justice Department memo, some speculated that tribes would be reluctant to pursue marijuana-related business ventures. "Henceforward, Indian nations are exempt from the federal government’s rules on marijuana," reads a Daily Beast article from December titled, "Tribes to U.S. Government: Take Your Weed and Shove It" It continues: "But the feds missed an important point when they failed to consult with the 568 recognized tribes in America: they didn’t want to be."

Tribes that express hesitance argue that the federal memo's vague wording may leave them vulnerable to prosecution. "It’s like the medical marijuana clinics here in California," Ron Andrade, director of the Los Angeles City/County Native American Indian Commission, told LA Weekly, referring to the hundreds of medical marijuana operations that have been targeted by federal prosecutors throughout the state. “Yeah, you can have one, but we’ll still arrest you.”

FoxBarry, however, isn't the only company being contacted by tribes eager to pursue opportunities in marijuana. Chad Ruby, the CEO of United Cannabis, told HuffPost that "dozens" of tribes have reached out to him as well. "This is just the start of our business model," he said. "It is absolutely our plan to team up with tribes all over the country."

Brautman said that for now, he will only enter cannabis-related projects with tribes whose land lies within states that already permit medical or recreational use, even though tribes from non-marijuana states have contacted him. "If an individual visits a reservation, purchases a product, then leaves, they're now in possession of a controlled substance," he said. "Although [tribes] still have the ability to do this legally, I don't think it makes sense from a business perspective."...

Troy Dayton, the CEO of marijuana research firm ArcView, told HuffPost that the Pomo Nation operation likely marks a much bigger trend. "It makes a lot of sense," he said. "It's the right move that Native American lands have been opened up to the same freedoms that states have -- my hunch is that this is the beginning of something larger."

February 7, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Stressing home rule, federal drug czar expresses support for DC marijuana legalization

As reported in this Huffington Post piece, headlined "Drug Czar Michael Botticelli Supports DC's Ability To Legalize Marijuana," the top drug official in the Obama Administration this week had some notable things to say about Washington DC's marijuana legalization efforts. Here are the details:

U.S. drug czar Michael Botticelli, though banned from supporting marijuana legalization due to federal law, says that the nation's capital should be able to implement its own laws using its own funds, even if that does indeed mean legalizing marijuana.

“As a resident of the District, I might not agree about legalization, but I do agree with our own ability to spend our own money the way that we want to do that," said Botticelli, acting director of the White House Office of National Drug Control Policy (ONDCP), during an event at the Center for Strategic and International Studies on Friday. Botticelli was speaking in response to a question from Dan Riffle, federal policies director at the Marijuana Policy Project.

Botticelli, who did not endorse the legalization of medical or recreational marijuana at the event, added that President Barack Obama also supports D.C.'s ability to govern itself. “The president, as it relates to the District, was very clear that the District should stick to its home rule,” Botticelli said Friday....

In November, D.C. voters approved an initiative that legalized up to 2 ounces of recreational marijuana for personal use and up to six marijuana plants for home cultivation. While marijuana sales remain banned under the measure, there has been some discussion of implementing further legislation that would allow for sales and taxation of cannabis.

However, tucked into the federal spending bill Congress passed in December was a provision introduced by Rep. Andy Harris (R-Md.) that challenged D.C.'s ability to enact marijuana laws and aimed to block the city from spending funds to legalize or regulate the sale of marijuana.

There has been some debate over whether D.C. can implement its recently passed law. While Harris argues that his provision already effectively blocks the marijuana law from being enacted, multiple congressional Democrats, including House Minority Leader Nancy Pelosi (D-Calif.), are in favor of allowing the law to move forward. D.C. Council Chairman Phil Mendelson (D) submitted the marijuana legalization initiative to Congress in January, ignoring the GOP's effort to block the measure.

And just this week, it was reported that Obama had made a minor language change in his budget proposal that could thwart congressional Republicans trying to block marijuana legalization in the district further, and would allow the city government to move ahead with local laws regulating and taxing recreational pot.

If Congress doesn't overturn D.C.'s current pot measure and Obama's wording remains in the final version of his budget, marijuana legalization in the city could go into effect as early as March. Further plans to regulate pot sales in the District could begin with legal retail marijuana stores, similar to those already open in Colorado and Washington state, arriving in D.C. by the end of the year.

Still, D.C. marijuana legalization faces some obstacles before it can become law. Congress has a mandatory 30 days to review the D.C. Council legislation, which is currently ongoing. Without congressional action, the measure will automatically become law. But that still leaves Obama's proposed budget -- and his plan will require approval by the Republican-controlled House and Senate.

"Even if he personally disagrees with ending prohibition, it's great to see the head of this office in particular saying that he thinks the federal government shouldn't stand in the way of the huge majority of D.C. voters who want a new direction for marijuana policy," said Tom Angell, chairman of the drug policy reform group Marijuana Majority, to The Huffington Post. "Now I just hope he thinks voters in the states should be afforded that same respect he wants to give Washington, D.C. residents."

February 7, 2015 in Federal Marijuana Laws, Policies and Practices, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, February 6, 2015

"Is marijuana making too much money for Colorado?"

The title of this post is the headline of this notable new article in the Christian Science Monitor.  Here are excerpts:

Recreational marijuana use has been legal for more than 13 months in Colorado.  In that time, sales have raised over $50 million for the state, according to Complex.com. Amendment 64, which legalized recreational marijuana in the state stipulated the first $40 million would be set aside to for schools.

However, according to Rolling Stone, the surplus tax revenue from the sale of marijuana is roughly $30 million.  Under state law this means that adult Coloradans are now entitled to a refund, which will be in the form of a check for a whopping $7.63.

The state of Colorado has a law on the books titled the Taxpayers' Bill of Rights, which was a voter-sponsored amendment that passed back in 1992, according to the state's treasurer's office.  The law mandates that the state treasurer's office must return excess tax revenue to the taxpayers if the amount exceeds a figure that is calculated with a formula that accounts for inflation and population growth.   The law has returned some $2.2 billion to the people of Colorado, according to the Associated Press.

Rolling Stone reports that state lawmakers are now left grasping for ways to put the excess tax revenue genie back in the bottle. This would include introducing a bill that would leave marijuana revenue exempt from taxpayer refunds. Back in 1992, few in the state would have expected Colorado would lead America’s pot revolution and therefore lawmakers left so-called sin tax revenue in the Taxpayers’ Bill of Rights....

Colorado’s windfall hasn't gone unnoticed by other states. After Colorado and Washington state, Oregon and Alaska became the next two states to legalize marijuana with ballot measures succeeding back on November 4, of last year. In Alaska the law goes into effect on February 24 and Oregonians can buy legal pot on July 15, according to the Marijuana Policy Project. Oregon stands to earn $50 to $100 million in annual tax revenue and Alaska could bring in up to $20 million, according to NerdWallet, who calculated what each state could potentially earn if they were to legalize marijuana.

February 6, 2015 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Thursday, January 29, 2015

"DeWine: Marijuana legalization a 'stupid idea'"

The title of this post is the headline of this local article from Ohio.  Here are excerpts:

Ohio's top cop was blunt about his opinion on legalizing marijuana in Ohio: "I think it's a stupid idea."

Ohio Attorney General Mike DeWine told a group at the Newark Rotary Club on Tuesday that efforts to legalize marijuana in the state would lead to increased use of the drug, more accidents and less healthy residents.  "The law is a teacher, and when the law says, 'Well, this is OK for adults,' people are going to use it," DeWine said.

DeWine also had few kind words for the recent proposal to legalize the drug.  "The proposal, by the way, that I saw is just a ludicrous proposal.  It's basically legalizing a monopoly in the state of Ohio among a few individuals or a few companies who will be able to make all the money from the sale of marijuana," he said.

ResponsibleOhio, a group that supports medical and personal use of marijuana, proposed legalizing marijuana for anyone older than 21 who can pass a criminal background check and taxing the drug at 15 percent.  The proposed ballot initiative would create a seven-member Marijuana Control Commission to oversee and regulate the manufacture and sale of marijuana....

"Even if you think selling marijuana is a great idea, I don't know why anyone would think just giving a few people who are going to put the money up to pass it on the ballot is a good idea to let them have that monopoly," DeWine said.

I sometimes think the seriousness and importance of any legal reform proposal can be gauged by the seriousness and importance of the individuals and groups that are quick to criticize the proposal.  By this metric, the fact that Ohio's Attorney General is already assailing marijuana reform proposals in Ohio shows that these proposals are already pretty serious and important.

January 29, 2015 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Monday, January 26, 2015

Is Colorado's Recreational Marijuana Law Creating A Nuisance?

   Yes, according to the authors of "Fear and Loathing in Colorado: Invoking the Supreme Court's Jurisdiction to Challenge The Marijuana-Legalization Experiment." Their proposed remedy? Similar to any other polluter, Colorado should pay damages to neighboring states to compensate them for "negative externalities."  

 Here's the abstract:

In this Article, we assert that States may invoke the Supreme Court’s original jurisdiction to challenge Colorado’s marijuana-legalization experiment; the most appropriate remedy is damages. The Constitution endows the Court with jurisdiction to adjudicate suits between States. Historically, such cases generally fall into three categories: conflicts over boundary lines, water-rights disputes, and cross-border nuisances. Suits challenging the marijuana-legalization experiment would implicate the last category. Such suits once comprised a relatively common part of the Court’s docket. The number of these actions fell dramatically in the late-1970s following Congress’s passage of the Clean Air and Water Acts, rendering the Court’s historic role of establishing and enforcing interstate environmental standards obsolete. Colorado’s introduction of recreational marijuana into the stream of interstate commerce has reawakened this long-dormant body of constitutional law. Like downstream pollution produced by industrial operations, the cross-border externalities resulting from Colorado’s introduction of marijuana into the stream of interstate commerce fall squarely within the ambit of the Court’s original jurisdiction. The exercise of this jurisdiction is most appropriately applied “to questions in which the sovereign and political powers of the respective states [are] in controversy” — and in particular, those involving a quarrel for which a “sovereign State could seek a remedy by negotiation, and, that failing, by force.” The current controversy presents just such a case. 

In such a controversy the Court should award damages to a prevailing state, using the Coase Theorem as its guide. The theorem states that if transaction costs are eliminated, “parties will negotiate the efficient solution to private nuisance problems.” Real-world application of the Coase Theorem is attained through the application of legal rules that best approximate the way disputes would be resolved in the absence of transaction costs. Such an outcome is best effectuated by a rule charging the nuisance with the damages it causes. As Coase observed, “when a damaging business has to pay for all damage caused” market forces will determine which of the competing enterprises should prevail, coercing the partisans to allocate their resources in the most economically efficient manner. If compelling a polluter to internalize the cost of his pollution drives him out of business, then his enterprise was not the most economically efficient use of the property and his interests should yield to that of his neighbors. In contrast, if the polluter assumes responsibility for all the costs of his venture and still realizes a sufficient profit to stay in business, then his use of the land is most efficient, and his neighbors should yield to his interest. If this remedy is applied, the market will determine the success or failure of Colorado’s marijuana legalization experiment and will serve as a guide to other states in deciding whether Colorado’s venture is worth emulating. This remedy respects the sovereignty of all States, leaving it to the market, not the Court, to decide which of the competing policies should prevail.

You may not agree with the authors' perspective [I didn't]; but the article provides some good background information on "original jurisdiction."

January 26, 2015 in Federal court rulings, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Can and should recent Rand report for Vermont inform all reform debates in all states?

As highlighted in this prior post, earlier this month the RAND Drug Policy Research Center released this big policy/research report on marijuana reform titled "Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions."  This report was produced in response to specific Vermont legislation and expressly "aims to inform the debate in Vermont."  Nevertheless, the report's summary ends by asserting that the report's "general themes should be useful to any jurisdiction considering alternatives to marijuana prohibition."  

I am certain policy-makers and advocates for and against reform will find this RAND report "useful" in various ways, and I have already required students in my Marijuana Law, Policy & Reform seminar to review the RAND report with an eye on how its analysis might impact consideration of various marijuana reform proposals emerging in Ohio.  But I continue to wonder if (and worry that) there is ultimately a strong disaffinity among most marijuana advocates to seriously engage with the kind of "wonkish" cost/benefit analysis that the RAND report represents.

 I sense that supporters of marijuana reform are often eager to deny that there are any significant costs likely to result from reform, and likewise that opponents of marijuana reform are often eager to deny that there are any significant benefits likely to result from reform.  Consequently, I suspect (and fear) that the most ardent participants in policy debates on both sides may not want something like the RAND report at the center of reform discussions because it presents a more nuanced account of costs and benefits than advocates may want to acknowledge.

January 26, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, January 18, 2015

Colorado trying to cope with unexpected cannabis combustion problems

The front-page of today's New York Times has this notable lengthy article about a notable problem increasing in Colorado since marijuana legalization. The piece is headlined "Odd Byproduct of Legal Marijuana: Homes That Blow Up," and here is how the article starts:

When Colorado legalized marijuana two years ago, nobody was quite ready for the problem of exploding houses. But that is exactly what firefighters, courts and lawmakers across the state are confronting these days: amateur marijuana alchemists who are turning their kitchens and basements into “Breaking Bad”­style laboratories, using flammable chemicals to extract potent drops of a marijuana concentrate commonly called hash oil, and sometimes accidentally blowing up their homes and lighting themselves on fire in the process.

The trend is not limited to Colorado — officials from Florida to Illinois to California have reported similar problems — but the blasts are creating a special headache for lawmakers and courts here, the state at the center of legal marijuana. Even as cities try to clamp down on homemade hash oil and lawmakers consider outlawing it, some enthusiasts argue for their right to make it safely without butane, and criminal defense lawyers say the practice can no longer be considered a crime under the 2012 constitutional amendment that made marijuana legal to grow, smoke, process and sell.

“This is uncharted territory,” said State Representative Mike Foote, a Democrat from northern Colorado who is grappling with how to address hashoil explosions. “These things come up for the first time, and no one’s dealt with them before.”

January 18, 2015 in Current Affairs, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Saturday, January 17, 2015

RAND produces big new policy report: "Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions"

Vermont275As reported in this local AP piece, headlined "RAND study: Marijuana legalization could be big bucks from sales, tourism," the RAND Drug Policy Research Center has just released a big new report on marijuana reform with a focus on Vermont.   The AP piece provides an effective summary of the basics of the RAND report and local political recaction in Vermont:

Vermont could reap hundreds of millions of dollars in tax revenue if it were to legalize marijuana, but only if nearby states didn't also jump on the bandwagon, according to a study released Friday.

The study comes as states across the country increasingly explore the potential budget boost from taxing an underground industry, even while the nascent legal pot business in Colorado and Washington experiences growing pains.

In Vermont, the Rand Corporation found that revenue from marijuana consumers could generate between $20 million and $75 million a year for the state.  The larger figure could be reached through what the report calls "marijuana tourism and illicit exports."  It also found that nearly 40 times as many marijuana consumers live within 200 miles of Vermont than live in the state.

The preface to the report, which doesn't make a recommendation about whether the state should legalize marijuana, says it's meant to "inform the debate." While it was prepared for Vermont, it says its conclusions could be useful to other states considering marijuana legalization.

Such high revenue is by no means assured, the report said. "If the federal government intervened to stop such cross-border traffic or if another state in the Northeast decided to legalize marijuana and set lower tax rates, these potential revenues might not materialize," it said.

Vermont allows the use of medical marijuana, and the possession of small amounts of marijuana has been decriminalized. Democratic Gov. Peter Shumlin has said he believes the state will follow Washington and Colorado in legalizing it, but he wants to see how it plays out in other states before easing laws. "I continue to support moves to legalize marijuana in Vermont but have always said that we have to proceed with rigorous research and preparation before deciding whether to act," Shumlin said. "This report will help us do that."

The price of marijuana in Washington has plunged since the sky-high prices when pot shops opened six months ago, and now growers complain the state isn't properly regulating supply. Regulators in Colorado have capped production to deter weed from spilling into nearby states, but that has meant more demand than supply.

Last spring, the Vermont Legislature passed a law requiring Shumlin's administration to produce a report about the consequences of legalizing marijuana. No proposals to legalize marijuana have been introduced in the Legislature. After the Friday presentation by the report's authors, portions of it were recounted during a hearing of the House Ways and Means Committee. "It seems to me the big question is do we go forward with this," said Committee Chairwoman Janet Ancel, D-Calais. She said the question on how to tax it is complicated.

The report provided few hard answers. It said that many questions can't be answered in advance, such as whether easing marijuana laws would increase abuse and how to keep it from minors and out of other states. "There is no recipe for marijuana legalization," the report said, "nor are there working models of established fully legal marijuana markets."

Here are links to the full report and materials that RAND released with this report:

January 17, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Monday, January 12, 2015

Federalism issues and tensions with modern MJ reform becoming even harder for Congress and Prez to avoid in 2015

Download (2)This lengthy new Politico piece, headlined "The new clash over cannabis: Rising tensions between states over pot put pressure on Obama to act," spotlights just some of the new challenges facing federal officials and policymakers as marijuana reform continues to heat up in the new year. Here are excerpts:

The Obama administration and many congressional Republicans have been loath to go anywhere near the experiment with marijuana legalization in Colorado and other states. But pressure is mounting on Washington to take a stand on pot, and perhaps soon.

In a lawsuit filed last month with the U.S. Supreme Court, attorneys general of Nebraska and Oklahoma argue that Colorado’s marijuana initiative is spilling over into their neighboring, more conservative states. Marijuana arrests and prosecutions are up over the past year, they say, straining law enforcement budgets as more overtime is paid to handle the uptick in activity. And drugged driving is a growing problem, they contend.

But the neighbor states are also taking aim at a federal government that seems highly reluctant to tackle the issue. And with several more states considering legalizing recreational marijuana, the Justice Department and Congress may be forced to clarify what’s OK or not when it comes to marijuana, experts say....

The issue is emerging as a major test for attorney general nominee Loretta Lynch, who will have to decide whether to embrace the hands-off approach to marijuana in the states that the Justice Department has adopted under Eric Holder — or take more decisive action to regulate it.

Experts and advocates floated a range of options if Congress or DOJ were to act, some more far-reaching or politically feasible than others. Anti-legalization advocates want an about-face from the administration: Enforce the existing federal marijuana ban and crack down on legalization regimes in Colorado and elsewhere. That’s a pipe dream for the current White House but not inconceivable if a Republican is elected president in 2016.

Pro-legalization advocates want Congress or the Obama administration to reclassify marijuana under sentencing laws so that it would carry lesser or no criminal penalties. Marijuana is currently considered a “Schedule I” drug, a category that includes heroin and LSD. Even cocaine is deemed less dangerous than pot under federal law.

Other experts say Congress should pass legislation that would deem marijuana federally legal in states that enact legal cannabis laws, thus removing ambiguity in those states. And still others want the administration to establish a standardized regulatory framework throughout the states, as the federal government does with other “vice industries.”

The urgency is expected to grow as five states are preparing recreational pot initiatives for the 2016 ballot: Arizona, California, Maine, Massachusetts and Nevada. A trio of other states — Missouri, Montana and Florida — are considering similar ballot measures. Currently, recreational pot is legal in Colorado, Washington state, Alaska and Oregon; an initiative approved by Washington, D.C., voters in November is currently being challenged by some Republicans in Congress....

In many regards, Oklahoma and Nebraska’s lawsuit demonstrates a last-resort tactic for states that don’t see a willing partner in the federal government, but want to try to blunt the rising tide of legal marijuana in the U.S. But analysts are far from confident that a gridlocked Congress will summon the will to find common ground on such a divisive issue. Though some Republicans and much of the GOP base oppose legalization and would like to see the federal government step up its enforcement, others say more federal action would run counter to the party’s support of states’ rights....

Congress sent something of a mixed signal on marijuana in the $1.1 trillion spending bill passed last month. Anti-legalization hardliners, led by GOP Rep. Andy Harris of Maryland, earned a potential victory by including language that might invalidate D.C.’s Initiative 71. But the bill also included language to prohibit federal agents from raiding medical marijuana facilities in states where pot is legal, codifying the Obama administration’s de facto policy.

Without action from Congress or further clarification from DOJ, friction between the states will only increase, experts say. “[I]t is a useful reminder that the Constitution recognizes that having states go their own ways is not necessarily an unalloyed good,” said Brannon Denning, a law professor at Samford University. “In some cases, we want there to be a single, national rule governing conduct in all 50 states.”

January 12, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)