Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

A Member of the Law Professor Blogs Network

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)

Wednesday, January 7, 2015

Oklahoma legislators urging state's AG to drop SCOTUS suit again Colorado marijuana reforms

"Oklahoma Republicans Want To Snuff Out Their State's Lawsuit Over Colorado Marijuana" is the headline of this fascinating report from The Huffington Post (which Rebecca Pressman helpfully flagged in the comments to this post).  Here are excerpts from the HuffPo piece:

Several Oklahoma lawmakers are calling for state Attorney General Scott Pruitt to drop his lawsuit against Colorado over its legalization of recreational marijuana, arguing that it's the "wrong way to deal with the issue."

In a letter sent to Pruitt's office last week, seven Republican state lawmakers, led by state Rep. Mike Ritze, expressed their concern that the case could significantly undermine states' rights, including Oklahoma's....

The Oklahoma lawmakers fear that a decision by the U.S. Supreme Court against Colorado -- lawsuits between states go directly to the high court -- could sweep far more broadly than cannabis laws.  "If the federal government can force Colorado to criminalize marijuana," the letter reads, "using the exact same arguments, it could also force Oklahoma to criminalize a wide range of goods and activities that would be an anathema to the citizens of Oklahoma that we are sworn to serve."

The lawmakers argue that the best move would be for Pruitt's office to "quietly drop the action against Colorado, and if necessary, defend [Colorado's] right to set its own policies as we would hope other states would defend our right to govern ourselves."

Were the Supreme Court to rule against Colorado, Oklahoma lawmakers said they also have "deep concern" over the potential implications for the "national sovereignty of [the] entire country."  They note that the lawsuit points to United Nations drug conventions that ban marijuana to strengthen its case -- an argument that the Oklahoma lawmakers said equates U.N. treaties with federal laws. "If the argument in the lawsuit were successful, the federal government could, in theory, adopt any UN treaty, then force the states, including Oklahoma, to help impose it," the letter reads.

The state lawmakers said that many of their constituents have already asked them to file a brief in defense of Colorado if the court hears the case -- not because these Oklahomans want legal access to recreational marijuana, but because they fear their state's rights would be "put in jeopardy."...

“This is not about marijuana at its core -- it is about the U.S. Constitution, the Tenth Amendment, and the right of states to govern themselves as they see fit,” said Rep. Ritze in a statement about the letter.  "Our Founding Fathers intended the states to be laboratories of self-government, free to tinker and experiment with different ideas. The founders, from Jefferson to Madison, were also strong proponents of states nullifying unconstitutional federal actions.  If the people of Colorado want to end prohibition of marijuana, while I may personally disagree with the decision, constitutionally speaking, they are entitled to do so."

Joining Ritze in signing the letter were Oklahoma state Reps. Lewis Moore, John Bennett, Mike Christian, Dan Fisher and state Sens. Ralph Shortey and Nathan Dahm, all Republicans.

The full letter is available at this link, and it makes for quite an interesting read.

Prior related posts:

January 7, 2015 in Court Rulings, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, December 24, 2014

Lots of commentary on states SCOTUS suit against Colorado marijuana reform

I am pleased to see that the notable lawsuit filed in the Supreme Court last week by Nebraska and Oklahoma (basics here; commentary here and here) has generated lots of commentary from all sort of perspectives.  Here are links to some of the commentary via various blogs:

December 24, 2014 in Current Affairs, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Friday, December 19, 2014

Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?

As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."  I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma.  And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court. 

This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug.  Here are passages from the filing to that end:

Congress has classified marijuana as a Schedule I drug.  21 U.S.C. § 812(c).  Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....

Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”

There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.

Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.

I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.

Recent related post:

December 19, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (3)

Thursday, December 18, 2014

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution."  Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Via the Denver Postthe 83-page SCOTUS filing can be found at this link.

December 18, 2014 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, December 17, 2014

Interesting debate in Anchorage over proposed (and now rejected) local marijuana sales ban

Images (5)The Alaska Dispatch News has this new and notable article about a local legislative hearing that took place earlier this week. The extended article is headlined "Assembly kills proposal to ban marijuana sales in Anchorage," and here are excerpts:

An ordinance that would have banned commercial marijuana in Anchorage failed after four hours of public testimony and debate in Assembly chambers Tuesday night.  The Assembly voted 9-2 just after 10 p.m. to kill the measure.  Only members Amy Demboski and Paul Honeman supported the measure.

Demboski introduced the proposal last month, hoping the city would take a “wait and see approach" as state lawmakers craft marijuana regulations.  But several Assembly members expressed concern that a ban would disconnect them from conversations regarding marijuana regulations at the state level.

“I’m fearful the message on ‘opt out’ will send key legislators in Anchorage to the sidelines,” said Assemblyman Bill Starr.  “That will make my work harder.”

Demboski said her goal in bringing the legislation forward was not to stifle pot in Anchorage, but to begin to move the conversation forward on big topics dealing with the substance, including potential issues at the federal level.  She noted it will especially be important to engage with Alaska’s congressional delegation on how to mitigate potential federal impacts. “It’s bringing the conversation forward,” Demboski said.

Bruce Schulte, with the Coalition for Responsible Cannabis Legislation, said he was surprised to see the Assembly kill the measure, noting that co-sponsor Dick Traini ultimately voted against it.  Still, he said, it was good to get the public talking about potential impacts of marijuana legalization. “The most resounding message is that we still have a lot of work ahead,” Schulte said.

In hours of testimony in the Assembly chambers at Z.J. Loussac Public Library, most people spoke in opposition to the ordinance.  Medical marijuana cardholders wept at the struggle of trying to get their medicine illegally.  Many worried about city finances and said the Assembly should not shy away from new revenue in the form of taxable marijuana sales.  Some mentioned distrust of officials for considering circumventing Alaska voters' wishes....

In November, Alaskans by a margin of 53 to 47 percent voted to approve Ballot Measure 2, an initiative legalizing recreational marijuana in the state. Just weeks after the measure passed, Assembly member and mayoral candidate Demboski introduced the ordinance that would allow Anchorage to take advantage of the “opt out” provision of the measure, which allows communities to ban commercial marijuana. Assembly members Traini and Paul Honeman also backed the measure....

Deborah Williams, who served as a spokesperson for the campaign opposing Ballot Measure 2, said in testimony Tuesday that she sensed hypocrisy in proponents of the measure, who emphasized the local option for communities but seemed to back away from it during the ordinance debate.  “There were lots of promises during the campaign,” she said, noting rhetoric about regulation of things like marijuana advertising, edibles and butane hash oil.  “This gives you bargaining power for the Legislature,” she said of the proposed city ban.

Jeff Jessee, who also worked on the campaign, worried that there’s so much unknown with regulations that it makes sense to stop marijuana before it gets going.  “We need to temper expectations that it will be open season for this industry in Anchorage,” Jessee testified.

But June Pittman-Unsworth, one of several medical marijuana patients who ended up in tears while testifying, said she has no legal way to get it and has no ability to grow it herself.  “The state failed me -- don’t let the city fail me,” Pittman-Unsworth said. “This ordinance is premature and open-ended. There’s no date on when to comply.  I want you to think about that.”

Rev. Michael Burke of Common Sense on Marijuana in Alaska, a group of business and faith leaders looking to have a voice in the regulatory process, asked the city to hold off on the ordinance, saying it did not pass the “red face” test and said he worries voters will be cynical of leaders because the ordinance is coming so soon after the initiative was passed.  Burke said his group and others would work to make sure that responsible regulation is enacted, including addressing issues with treatment, safety and keeping businesses small.  “There is a lot at stake here in getting the regulations right,” Burke said.

December 17, 2014 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, December 9, 2014

Political deal in works for Congress to deal with DC marijuana legalization issues

The Huffington Post has this notable new report on recent Capitol Hill activity to deal with the District of Columbia's recently-passed marijuana legalization initiative.  The piece is headlined "Congress Looking To Block D.C.'s Marijuana Legalization Initiative," and here are excerpts:

Congress is looking to stifle the District of Columbia's marijuana legalization initiative, multiple sources have told The Huffington Post.

According to those sources, congressional negotiators have struck a deal to interfere with D.C.'s marijuana legalization measure.  That's after nearly 70 percent of voters in the nation's capital approved Initiative 71, which was set to legalize possession of small amounts of marijuana for personal use while still banning sales.  The deal would allow the District to continue its marijuana decriminalization policy enacted by the D.C. Council, but would ban the city from using funds to enact legalization.

One congressional source said the deal would actually allow the initiative to take effect, while preventing the D.C. Council from passing any new laws to set up a scheme for regulating retail sales of marijuana -- something D.C. Mayor-elect Muriel Bowser (D) has said she wanted the council to do before legalization takes effect.   Democrats are rumored to be cutting a deal with Republicans "where they can save face by claiming that they protected D.C.'s marijuana decriminalization law from elimination, even if they failed to protect legalization," according to Drug Policy Alliance.

"Democrats had the opportunity to protect the will of the voters in D.C. and they have decided to cut a deal in an effort to protect decriminalization.  However, 70 percent of voters support this [initiative]. It's incredibly problematic," Dr. Malik Burnett, policy manager at the Drug Policy Alliance and vice chairman of the D.C. Cannabis Campaign, told The Huffington Post.  "And in light of recent events in Ferguson and New York, it is particularly disturbing that Congress would choose to overturn the will of the voters in a majority black city. D.C. voters chose to reform their marijuana laws, which have a direct impact on how communities of color interact with police.  Congress is poised to undermine that."...

In November, D.C. voters approved Initiative 71, which would legalize adult marijuana use, possession of up to 2 ounces and home cultivation of up to six marijuana plants for personal use. Under the measure, the sale of marijuana would remain illegal, but the D.C. Council is considering a separate bill that would allow for the regulation and taxation of marijuana sales, similar to laws on the books in Colorado and Washington state.

The ballot measure built on several recent moves to remove restrictions on marijuana in Washington. The District legalized medical marijuana in 2010, and its first medical marijuana dispensary opened last year. Earlier this year, the D.C. Council decriminalized the possession of an ounce or less of marijuana.

While supporters praised the measure as a step toward resolving the racial disparity in the District's marijuana arrest rates, some Republicans had been working toward blocking the measure for months. Rep. Andy Harris (R-Md.) has vowed to put a stop to the progression of the bill in Congress....

Robert Capecchi, deputy director of state policies for the Marijuana Policy Project, a pro-legalization advocacy group, said it wasn't clear exactly how Congress would go about thwarting the legalization initiative.  Federal lawmakers oversee how the District spends money, but the initiative isn't expected to have a cost.  "The way I read I71 the District doesn't have to spend any money in order to implement it," Capecchi said.

As is true with all legislative issues and is especially true with marijuana reform, a lot of the devil here will be in the details. Especially because the DC Initiative did not directly call for the establishment of a full-scale regulated commercial marijuana industry, it would not be obviously disrespectful for Congress to merely put some limits on whether and how DC can set up a full-scale legal marijuana marketplace. But it would be troublesome if Congress were to somehow require local DC police to persist in making arrests and bringing prosecutions for small-scale marijuana cultivation, possession and use.

December 9, 2014 in Federal Marijuana Laws, Policies and Practices, Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, December 8, 2014

Notable new reporting about marijuana banking issues and developments in Colorado

Wednesday, December 3, 2014

"Marijuana Dining Still on Shaky Legal Ground"

The title of this post is the headline of this intriguing new AP article.  Here is how it gets started:

Acclaimed chef Chris Lanter is talking a crowd of eager foodies through a demo on cooking with marijuana. As he prepares steak au poivre, he describes how to deglaze the pan with pot-infused brandy. How to pair marijuana with fine foods. How to make marijuana's skunky tang work for a dish, not ruin it. One catch — there's no actual weed at his demonstration.

Marijuana aficionados paid $250 for a weekend-long celebration of marijuana and food, yet state and city regulations prohibit any "open and public" use of the drug, even at licensed businesses holding private events.

It's a strange dichotomy. The nascent marijuana industry in Colorado is moving well beyond just pot brownies. Dispensaries are doing a booming trade in cookbooks, savory pot foods and frozen takeout dishes that incorporate the drug. But for now, halting attempts at creating a marijuana dining scene have had mixed results.

Colorado may have legalized marijuana, but it still prohibits "on-site consumption," a caveat aimed at preventing Amsterdam-style coffee shops where pot can be purchased and consumed in the same place. Recreational or medical marijuana is now legal in 23 states and Washington, DC. ? though each state prohibits on-site consumption and pot sales in bars or restaurants.

As Colorado's recreational industry nears its first anniversary, authorities increasingly are cracking down on attempts to push the pot-dining envelope. The city of Denver, where the marijuana industry is concentrated, wrote 668 tickets for "open and public consumption" through September, up from 117 the year before, when marijuana was legal, but sales were not. And the county that includes Colorado Springs is trying to crack down on so-called "smoke-easys," or private clubs that allow marijuana use, sometimes paired with refreshments.

Even private events at restaurants aren't safe. Denver authorities are using permit codes and alcohol laws to fine and even press charges against people trying to throw private events at which pot foods are served.

The result has been that chefs interested in infusing foods with pot, or pairing regular dishes with certain strains thought to accent a particular flavor, are unable to try it outside catered events at private homes. Even chefs who will talk publicly about doing "medicated" catered house parties, like Lanter, are skittish about sharing details.

December 3, 2014 in Food and Drink, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, November 30, 2014

And The Next State(s) To Step Up Is...

 Ever since the election triumphs in Oregon, Alaska and DC,  interested parties have been asking where marijuana legalization will strike next.  Phil Smith editor and writer of the Drug War Chronicle  has just published The March Toward Marijuana Legalization: 2016 And Beyond" an excellent overview  of state wide legalization efforts which I recommend for readers like me who are trying to keep current.

Beginning with California, which he describes as the "big prize", Smith discusses legalization campaigns in Massachusetts, Maine and Missouri and the looking to the future work being done in Michigan.  Smith, who has been reporting on drug policy since 2000,  seems optimistic but he ends the article with two cautions.  First, as Ethan Nadelmann of the Drug Policy Alliance points out, there are dangers in a" sense of overconfidence, a feeling that marijuana will legalize itself" and "entrepreneurs trying to push the envelope[who]could push too far." Second, Smith's warning-"don’t forget federal pot prohibition." As he puts it, "if repealing federal pot prohibition is the Holy Grail, reformers still have a ways to go." When does Smith think federal change will happen? "Maybe when we have 24 legal marijuana states, not just four of them. "

 

 

November 30, 2014 in Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Monday, November 24, 2014

"Merry Marijuana: Pot Sellers Woo Holiday Shoppers"

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

From new marijuana strains for the holidays to gift sets and pot-and-pumpkin pies, the burgeoning marijuana industry in Colorado is scrambling to get a piece of the holiday shopping dollar.  Dispensaries in many states have been offering holiday specials for medical customers for years — but this first season of open-to-all-adults marijuana sales in some states means pot shops are using more of the tricks used by traditional retailers to attract holiday shoppers....

The Grass Station in Denver is selling an ounce of marijuana for $50 — about a fifth of the cost of the next-cheapest strain at the Colorado dispensary — to the first 16 customers in line Friday, Saturday and Sunday.  That works out to less than $1 a joint for the ambitious early-rising pot shopper.  Owner Ryan Fox says his Black Friday pot is decent quality, and says he's selling below cost to attract attention and pick up some new customers....

Sweets and marijuana seem to go together like hot chocolate and marshmallows. Many dispensaries this time of year resemble a Starbucks at the mall, with holiday spices and festive music in the air.  One of the state's largest edible-pot makers, Sweet Grass Kitchen, debuted a new miniature pumpkin pie that delivers about as much punch as a medium-sized joint.  The pie joins holiday-spiced teas, minty pot confections and cannabis-infused honey oil for those who want to bake their own pot goodies at home.

Even some edibles makers that specialize in savory foods, not sweets, are putting out some sugary items for the holidays. "It just tastes too good, we had to do it," Better Baked owner Deloise Vaden said of her company's holiday line of cannabis-infused sweet-potato and pumpkin pies....

Colorado Harvest and Evergreen Apothecary timed the release of some top-shelf strains of potent pot for the holiday season. Spokeswoman Ann Dickerson says they're "sort of like the best bourbon or Scotch that will be competing on quality, rather than price."...

For the shopper who wants to give pot but doesn't know how the recipient likes to get high, Colorado's 300 or so recreational dispensaries so far have been able to issue only handwritten gift certificates. That's because banking regulations prohibit major credit cards companies from being able to back marijuana-related gift cards the way they do for other retailers.

Just this month, a Colorado company started offering pot shops a branded gift card they can sell just like other retailers. The cards are in eight Denver dispensaries so far, and coming soon will be loyalty cards similar to grocery-store loyalty cards that track purchases and can be used to suggest sales or new products to frequent shoppers.

November 24, 2014 in Food and Drink, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, November 18, 2014

"Republicans may decide they love liberty and limited government more than they hate pot."

The title of this post is the subheading of this notable commentary by Jacob Sullum at Reason.com.  Here are a few excerpts:

At a press conference last week, Eleanor Holmes Norton, the District of Columbia's congressional delegate, urged her colleagues to respect the will of the voters who overwhelmingly approved marijuana legalization in the nation's capital on November 4.  She was joined by three congressmen, including Dana Rohrabacher (R-Calif.), who said trying to block legalization in D.C. or in Alaska and Oregon, where voters also said no to marijuana prohibition this month, would flout "fundamental principles" that "Republicans have always talked about," including "individual liberties," "limited government," and "states' rights and the 10th Amendment."...

Initiative 71, which passed by a margin of more than 2 to 1, allows adults 21 or older to possess two ounces or less of marijuana, grow up to six plants at home, and transfer up to an ounce at a time to other adults "without remuneration."  It does not authorize commercial production or distribution, although the District of Columbia Council is considering legislation that would.  "I see no reason why we wouldn't follow a regime similar to how we regulate and tax alcohol," incoming Mayor Muriel Bowser said at a press conference after the election.

In theory, there are a couple of ways that Congress could try to stop all this from happening. It could pass a joint resolution disapproving Initiative 71, or it could bar the District from spending money to implement the measure.  But neither of these approaches looks very promising....

Strictly speaking, "states' rights" do not apply to the District of Columbia, which was created by Congress and is subject to much more extensive federal control than the states are.  But as Obama suggests, the arguments for federalism — in particular, the idea that political decisions should be made at the lowest feasible level to facilitate citizen influence, policy experimentation, and competition among jurisdictions — apply to D.C. as well as the states. Given the president's views on the subject, it seems reasonable to assume that he would take a dim view of attempts to nullify Initiative 71.

November 18, 2014 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

California AG suggests marijuana legalization in state has "a certain inevitability about it"

CamilaAs reported in this BuzzFeed piece, which is headlined "California’s Attorney General Thinks Legal Weed Is Inevitable," the top lawyer in California had a a lot of interesting and notable things to say recently about marijuana reform.  Here are the details:

California Attorney General Kamala Harris, a rising star in the Democratic Party, says she’s “not opposed” to her state legalizing marijuana.  The state was one of the first to legalize medical marijuana in 1996, but so far hasn’t legalized it for recreational use, like Colorado, Washington, and others.

“I am not opposed to the legalization of marijuana.  I’m the top cop, and so I have to look at it from a law enforcement perspective and a public safety perspective,” Harris told BuzzFeed News in an interview in Washington, D.C. “I think we are fortunate to have Colorado and Washington be in front of us on this and figuring out the details of what it looks like when it’s legalized.”

“We’re watching it happen right before our eyes in Colorado and Washington. I don’t think it’s gonna take too long to figure this out,” Harris said. “I think there’s a certain inevitability about it.”

Harris is one of the few state-level officials appearing at an event on Wednesday at the Center for American Progress, an influential left-wing think tank seen as a feeder institution for the Obama administration.  Talked up as a contender to replace Eric Holder as attorney general, Harris, who is one of the Democratic Party’s likely prospects for higher office in California, said that even with legalization it’s important that states have systems in place for regulating use of the drug.

“It would be easier for me to say, ‘Let’s legalize it, let’s move on,’ and everybody would be happy. I believe that would be irresponsible of me as the top cop,” Harris said.  “The detail of these things matters.  For example, what’s going on right now in Colorado is they’re figuring out you gotta have a very specific system for the edibles. Maureen Dowd famously did her piece on that…  There are real issues for law enforcement, [such as] how you will measure someone being under the influence in terms of impairment to drive.”

“We have seen in the history of this issue for California and other states, if we don’t figure out the details for how it’s going to be legalized the feds are gonna come in, and I don’t think that’s in anyone’s best interest,” Harris said....

“I don’t have any moral opposition to it or anything like that.  Half my family’s from Jamaica,” Harris said with a laugh.

UPDATE:  I just noticed that our Senior Superstar California Correspondent, Alex Kreit, also posted here about AG Harris's comments. His post, titled "Kamala Harris Coming Around on Marijuana Legalization," includes a lot of astute political observations about the importance of what AG Harris is now saying.

November 18, 2014 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Kamala Harris coming around on marijuana legalization

Yesterday, California Attorney General Kamala Harris said she was "not opposed to the legalization of marijuana."  

Recall that just a few months ago, Harris laughed off the issue when asked about it.  (Harris also refused to take a position on Prop. 47, a California ballot measure to recude a number of non-violent offenses from felonies to misdemeanors--including drug possession--that passed comfortably earlier this month.)  

Harris's tentative approach to marijuana legalization specifically (and criminal justice reform generally) stands in stark contrast to that of another rising-star politician in the state: Gavin Newsom. Newsom took a strong stance in favor of Prop. 47 and has emerged as a leader in the state on marijuana legalization.   

Many speculate that Newsom and Harris are "on a collision course for running for governor in 2018," so it would not surprise me if Harris's move on this issue is in part the result of a realization that running as the anti-legalization candidate in a Democratic primary against Newsom may not be a good look for her.  (On the other hand, more recent buzz has Harris lining up for a Senate run in 2016, leaving Newsom a clear path to the Governor's office in 2018.) 

Whether related to Newsom or not, Harris's comments are surely a sign that she (and her political advisers) believe opposing legalization (or laughing at the idea without taking a position) is bad politics for her.  As Attorney General she has been incredibly cautious.  And her remarks yesterday are no exception.  Though she says she thinks marijuana legalization is inevitable and that she has no moral objection to the idea, she does not go so far as to say she supports it.  

Specifically, Harris says: “It would be easier for me to say, ‘Let’s legalize it, let’s move on,’ and everybody would be happy. I believe that would be irresponsible of me as the top cop.”

Yes, it would be easier.  But, like too many Democratic politicians, Harris seems to be increasingly allergic to taking clear stands on political issues.

Her remarks seem like a very timid politician's way of saying: "I've come to realize that laughing at or opposing legalization is bad for me politically, so I need to find a way of implying that I probably support it.  But, as Attorney General, I don't want to say that I actually support it and upset the stuck-in-the-1980s law enforcement union lobby in the state.  After all, I'm not really in the habbit of standing up to them, as evidenced by my failures to take a stand on either Prop. 47 or 2012's death penalty repeal ballot measure (even though I'm on record as being opposed to the death penalty.)  So, I'll just try out the line 'I'm not opposed' for now."  

That said, the fact that she decided to go as far as she did in her comments (and to do so this far in advance of 2016) is very telling about where she thinks the conversation and political tone will be in 2016.  It suggests she is setting herself up to support a 2016 marijuana legalization ballot measure (or to remain agnostic on a specific proposal as the "top cop" while perhaps implying support in principle.)    

If California truly is the "make or break" state for legalization, Harris's comments give legalization supporters another reason to be optimistic.

November 18, 2014 in Current Affairs, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, November 13, 2014

"DC marijuana law gets support from bipartisan lawmakers"

The title of this post is the headline of this local Fox News report about an event on Capitol Hill today.  Here are details:

D.C. voted overwhelmingly to legalize marijuana but the fate of the city's pot law remains in the hands of Congress. On Thursday, the city is getting support for legalization from some Republican and Democratic lawmakers. The bi-partisan group vowed to block any attempt to overturn the city's pot law.

Initiative 71 legalized small amounts of marijuana for personal use in D.C. -- joining Washington, Colorado, Oregon and Alaska. "The underlying issue legalization and decriminalization of marijuana has caught fire throughout the country," said Delegate Eleanor Holmes Norton (D-DC).

She was joined by allies during a press conference on Capitol Hill, including Republican Rep. Dana Rohrbacher (R-CA) who has led the charge for marijuana reform and Democratic Rep. Earl Blumenauer (D-OR) and Rep. Jared Polis (D-CO) whose states have legalized marijuana. They urged Congress to butt out. “I think D.C. voters and their will ought to be respected just like the will of the voters of Colorado's been respected," said Polis.

Maryland Republican Congressman Andy Harris has yet to succeed, but has said he would do whatever he can to stop it. "The last thing you want to do is introduce a drug and encourage its use among youth when youth already have many issues in that jurisdiction," said Harris (R-MD) the day after the initiative passed.

D.C. voters approved the measure by more than a 2 to 1 margin. Antonio Bell voted for it. His even had marijuana leaves on his socks. "They are consenting adults,” said Bell. “I'm sure it will be regulated. It would be less back and forth to the courthouse for petty crimes and they can focus on real crime.”...

Lawmakers in support of D.C. said no one has died of a pot overdose, but they have of alcohol poisoning. "Wake up and see where the American people are," said Rohrbacher.

He says legalization goes hand in hand with GOP principals of individual liberty, states' rights and limited government. He hasn't seen any blowback in his district as a result of his support for marijuana reform and believes other Republicans won't either....

Opponents of legalization argue the drug will encourage more kids to use marijuana and that it is a gateway drug. But in Colorado Rep. Polis said the opposite has happened. "Underage marijuana use has decreased,” said Polis. “It's created additional jobs and helped driven drug dealers out of business." The regulated sale of the drug has also generated millions of dollars in state tax revenue.

Supporters of D.C.'s law believe they deserve a shot too. Holmes Norton isn't encouraging anyone to smoke pot and argues its widespread use has made it defacto legal. "We're talking about local affairs, we're talking about our local money, we're talking about nobody's business but the District's," she said.

If it comes down to a vote over D.C.'s pot law, Rep. Rohrbacher said they have the votes from Republicans and Democrats to defeat it. One prominent Republican, Sen. Rand Paul, has also gone on record saying he doesn't believe the federal government should interfere with the District's decision to legalize marijuana.

November 13, 2014 in Federal Marijuana Laws, Policies and Practices, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, November 11, 2014

New York City mayor announces new policy concerning marijuana enforcement

ImagesAs reported in this New York Times article, headlined "Concerns in Criminal Justice System as New York City Eases Marijuana Policy," the NYC's new mayor and old sherrif are bringing a new approach to marijuana enforcement to the Big Apple. Here are the basics:

Mayor Bill de Blasio, who took office promising to reform the Police Department and repair relations with black and Latino communities, on Monday unveiled his plan to change the way the police enforce the law on marijuana possession.

Arrests for low-level marijuana possession have had an especially harsh impact on minority communities, and under the change announced on Monday, people found with small amounts of marijuana will typically be given a ticket and cited for a violation instead of being arrested and charged with a crime.

The news, outlined by the mayor and his police commissioner, William J. Bratton, at Police Headquarters, marked the most significant criminal justice policy initiative by Mr. de Blasio since he was sworn in as mayor in January. While he stressed that he was not advocating the decriminalization of marijuana, Mr. de Blasio said the impact of enforcement on the people arrested and on the Police Department compelled him to rethink how the police handle low-level marijuana arrests.

“When an individual is arrested,” he said, “even for the smallest possession of marijuana, it hurts their chances to get a good job; it hurts their chances to get housing; it hurts their chances to qualify for a student loan. It can literally follow them for the rest of their lives and saddle young people with challenges that, for many, are very difficult to overcome.”

For a Police Department that has devoted enormous resources to tens of thousands of marijuana arrests a year, the shift in strategy should, the mayor said, allow officers to focus on more serious types of crime by freeing up people who would otherwise be occupied by the administrative tasks lashed to minor marijuana arrests.

But the change, detailed in a five-page Police Department “operations order” that is set to go into effect on Nov. 19, immediately raised questions and concerns in many corners of the criminal justice system. It directs officers who encounter people with 25 grams or less of marijuana, in public view, to issue a noncriminal violation in most instances, rather than arrest them for a misdemeanor....

As they headed into a meeting with departmental leaders to hear about the new policy, some police union leaders said the changes seemed to run counter to the “broken windows” strategy of policing, long championed by Mr. Bratton as a way to prevent serious crime by cracking down on low-level offenses. “I just see it as another step in giving the streets back to the criminals,” said Michael J. Palladino, the head of the city’s Detectives’ Endowment Association, the union representing police detectives. “And we keep inching closer and closer to that.”...

At the news conference, Mr. Bratton said officers would still have to use discretion. If marijuana was being burned or smoked, an arrest would be made, he said. If offenders had an “active warrant,” or were wanted, or could not produce proper identification, they would be taken to the station house, he said. Officials said violations would not constitute a criminal record. They said court appearances, within weeks of the violation, could lead to a fine of up to $100 for a first offense....

Critics have said the police and prosecutors have been improperly charging people with possession of marijuana in public view, often after officers ask them to empty their pockets during street stops.

In 2011, Raymond W. Kelly, then the police commissioner, issued an order reminding officers to refrain from such arrest practices. Mr. Bratton said such practices were not now in use and the problem had been fixed. By now, the number of marijuana arrests has decreased, roughly mirroring the drastic reduction in the frequency of police stop, question and frisk encounters.

Of the 394,539 arrests made last year, marijuana arrests totaled slightly more than 28,000, or a little less than 10 percent of all arrests made in the city. That is down from 50,000 a few years ago.

November 11, 2014 in Criminal justice developments and reforms, Race, Gender and Class Issues, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)