ANALYSIS: Marijuana Justice Act (S. 1689, H.R. 4815)

Spearheaded by Senator Cory Booker (D-NJ) and California Rep. Barbara Lee, the Marijuana Justice Act is attempting to set the foundation, on a congressional level, for what equitable and progressive marijuana legalization should look like. 

The Senate Bill, S. 1689, was introduced by New Jersey Senator Cory Booker on August 1, 2017, during the 1st Session of the 115th United States Congress. In January of this year, an identical bill was presented to the House of Representatives during the 2d Session, titled H.R. 4815, by California Representative Barbara Lee. Although the proposals have not yet garnered traction within Congress, the bills mark a progressive attitude towards legalization.

Senate Bill 1689 and House Bill 4815, both named the "Marijuana Justice Act", are a pair of identical Congressional bills that center marijuana legalization around criminal justice reform, accountability, and community reinvestment, and they represent the first time that companion legislation has been introduced in both chambers of Congress to remove marijuana from the Controlled Substances Act (CSA).

Objectives

The Marijuana Justice Act, if enacted, would:

• Remove marijuana from the US Controlled Substances Act, thereby ending the federal criminalization of cannabis;
• Incentivize states to mitigate existing and ongoing racial disparities in state-level marijuana arrests by:

1.  Cutting federal funding for state law enforcement and prison construction if a state disproportionately arrests and/or incarcerates low-income individuals and/or people of color for marijuana offenses and;
2. Allowing entities to sue states that disproportionately arrest and/or incarcerate low-income individuals and/or people of color for marijuana offenses;

• Provide a process for expungement of federal convictions specific to marijuana possession;
• Allow individuals currently serving time in federal prison for marijuana-related violations the right to petition the court for resentencing;
• Create a community reinvestment fund to invest in communities most impacted by the failed War on Drugs.

The Text

A Bill to amend the Controlled Substances Act to provide for a new rule regarding the application of the Act to marihuana, and for other purposes.

The stated purpose of the Act is to de-schedule marijuana, apportion funds, and create a “Community Reinvestment Fund”.

Section 1. Short Title

Both bills began with their titles, with the Senate bill stating: This Act may be cited as the “Marijuana Justice Act of 2017”. The House bill has identical language, with the only amendment being the change of the date from 2017 to 2018 when the House bill was introduced.  

Section 2. De-Scheduling Marihuana

This section serves as the cornerstone for the legalization aspect of the Act.

For context, the Controlled Substances Act is the federal drug policy that places all regulated substances into one of five schedules based on the potential for abuse, current accepted medical use, and degree of physical or psychological dependence resulting from abuse of the drug. 

As quoted in the CSA, the finding for Schedule I drugs include that:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Section 2 (a) of the Marijuana Justice Act is titled "Marijuana Removed from Schedule of Controlled Substances." The purpose of this section is to de-schedule marijuana from the Controlled Substances Act (CSA) by striking the terms "marihuana" and "tetrahydrocannabinols", and re-designating subparagraphs within §202(c) of the Controlled Substances Act (21 U.S.C. 812). 21 U.S.C. 812 (c) (10) and 21 U.S.C. 812 (c) (17) force cannabis-related substances "marihuana" and "tetrahydrocannabinols," respectively, into schedule 1 regulated substances; therefore, by striking the terms as mentioned above, they would no longer be listed as schedule 1 substances under federal law.

Section 2 (b) of the Act, captioned “Removal of Prohibition on Import and Export”—§1010 (b) of the Controlled Substances Import and Export Act (21 U.S.C 960) strikes the language that penalizes:

Any person who -

• (1) …  knowingly or intentionally imports or exports a controlled substance,
• (2) …  knowingly or intentionally brings or possesses on board a vessel, aircraft, or vehicle a controlled substance, or
• (3) …  manufactures, possesses with intent to distribute, or distributes … a mixture or substance containing a detectable amount of marihuana. 

Additionally, the Act would conform the following amendments to the Controlled Substances Act by striking variations of the term "marihuana" and restructuring the designations of paragraphs and subparagraphs within:

21 U.S.C. 802 (44) – Definitions

21 U.S.C. 841 (b) – Prohibited Acts, penalties

21 U.S.C. 842 (c) (2) (B) – Prohibited Acts, penalties with prior convictions

21 U.S.C. 843 (d) (1) – Prohibited Acts, penalties and terms of imprisonment

21 U.S.C. 859 (a) – Distribution to persons under age twenty-one, first offense

21 U.S.C. 860 (a) – Distribution or manufacturing in or near schools and colleges, penalties

21 U.S.C. 863 (d) – “Drug Paraphernalia” defined

21 U.S.C. 886 (d) – Payments and advances, Drug Pollution Fund

The last measure of de-scheduling marijuana would amend the National Forest System Drug Control Act of 1986 by striking the terms "marijuana and other" and "marihuana" from the act.

Section 3. Ineligibility for Certain Funds

Although this section is titled, “Ineligibility for Certain Funds” the section also provides guidelines for expungement and sentencing review.

Section 3 (a) provides definitions for terms such as “covered state,” “disproportionate arrest rate,” “low-income individual,” and several other terms cited throughout the section.

Section 3 (b) details the considerations for distributing Federal funding to states. Under the Act, if a state is determined to have a disproportionate arrest or incarceration rate for marijuana offenses, they will be deemed ineligible to receive federal funds to staff or construct a prison or jail. However, covered states will not be subject to more than a 10% reduction of funds that would otherwise go to law enforcement assistance programs, block grants, and justice assistance grant programs. Additionally, any funds not awarded to covered states will be deposited into the Community Reinvestment Fund.

Section 3 (c) requires that each Federal court issue an expunction for marijuana use or possession offenses that resulted in a conviction. Subsection (d) provides for sentencing review and states that individuals who have been sentenced and imprisoned have the right to motion the court to conduct a sentencing hearing. Lastly, subsection (e) allows individuals who have been aggrieved by the disproportionate arrest or incarcerations rate the right to bring a civil action in appropriate district courts.

Section 4. Community Reinvestment Fund

The final section of the Marijuana Justice Act establishes a "Community Reinvestment Fund" within the United States Treasury. According to the bill, deposits to the Fund will consist of funds not awarded to covered states, states that have not enacted a statute legalizing marijuana, because they have disproportionate arrest and/or incarceration rates for marijuana offenses in addition to amounts otherwise appropriated to the Fund.

Section 4 (c) outlines the uses for the funds; making them available to the Secretary of Housing and Urban Development to reinvest in communities most affected by the war on drugs by funding job training, re-entry services, community centers, and other programs and opportunities. The Act concludes by authorizing $500,000,000 to be appropriated to the Fund for each fiscal year from 2018 – 2040.

Implications

The Marijuana Justice Act is rooted in social justice and community development. While the objectives of the Act are noble and progressive, perhaps the Act is attempting to tackle too many issues at once. There has been vocalized support for federal legalization, making Section 2 of the Act the most accessible.

Additionally, expunction efforts for marijuana-related crimes have been a topic of discussion on both the West and East coasts. However, there is a likelihood that courts will get overloaded by individuals who desire to bring civil suits. In regards to the Community Reinvestment Fund, the introduction of the fund would be groundbreaking; however, it is important to realistically consider the logistics and operations of the fund, as there would need to be continuous data-collections and attention to the appropriations on a federal level. If the Act were to be passed in its entirety, it would be a victory for communities impacted by the war on drugs and individuals who have been negatively affected by the implicitly discriminatory enforcement of current marijuana laws. 

--Gianna Redeemer