Marijuana Law, Policy & Reform

DOJ and Obama Administration (finally) announce plans concerning federal marijuana enforcement

As reported in this Washington Post piece, today the Obama administration "said it will not stand in the way of Colorado, Washington and other states where voters have supported legalizing marijuana either for medical or recreational use, as long as those states maintain strict rules involving distribution of the drug."  Here is more:

In a memo sent Thursday to U.S. attorneys in all 50 states [and available at this link], Deputy Attorney General James M. Cole detailed the administration’s new stance, even as he reiterated that marijuana remains illegal under federal law.

The memo directs federal prosecutors to focus their resources on eight specific areas of enforcement, rather than targeting individual marijuana users, which even President Obama has acknowledged is not the best use of federal manpower. Those areas include preventing distribution of marijuana to minors, preventing the sale of pot to cartels and gangs, preventing sales to other states where the drug remains illegal under state law, and stopping the growing of marijuana on public lands.

A Justice Department official said that Attorney General Eric H. Holder Jr. had called the governors of Colorado and Washington around noon Thursday to inform them of the administration’s stance.

The official said Holder also told them that federal prosecutors would be watching closely as the two states put in place a regulatory framework for marijuana in their states, and that prosecutors would be taking a “trust but verify” approach. The official said the Justice Department reserves the right to revisit the issue....

Until Thursday, the Justice Department and the White House Office of National Drug Control Policy had remained silent about those initiatives, despite repeated requests for guidance from state officials....

The issue has been percolating since Obama took office, and he has repeatedly faced questions about the tension between differing federal and state laws.

This (relatively short) official DOJ Press Release provides  this account of the decision:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute.  To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.   These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws.  This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.  These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.   But if any of the stated harms do materialize — either despite a strict regulatory scheme or because of the lack of one — federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

Cross-posted at Sentencing Law and Policy

Seeking views on important under-appreciated lessons from US history with alcohol Prohibition

As I explained via this post on one of my other blogs a few month ago, I thought it wise to devote at least a few early weeks in my Fall 2013 seminar on "Marijuana Law, Policy & Reform" to a review of the legal and social history of alcohol Prohibition.   I am doing so because (1) public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco, and (2) there are many legal and social themes and lessons from the US temperance movement and the years during and surrounding the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy.

I have kicked of my class activites by urging all my seminar students to watch with me the full wonderful 2011 Ken Burns' PBS documentary on Prohibition, as well as cruise around this terrific website from the History Department at Ohio State (which includes this especially interesting account with visuals concerning campaigns by the "drys" in Ohio).  I also have urged students to read parts of the terrific 1970 article by Richard Bonnie & Whitebread, Forbidden Fruit and the Tree of Knowledge - An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Virginia L. Rev. 971 (1970) (available here).

There are, of course, lots of important obvious lessons to take away from US history with temperance movements and alcohol Prohibition.  For example, in this page from the PBS website under the heading "Unintended Consequences," historian Michael Lerner concludes a lengthy discussion with these observations:

The greatest unintended consequence of Prohibition however, was the plainest to see. For over a decade, the law that was meant to foster temperance instead fostered intemperance and excess. The solution the United States had devised to address the problem of alcohol abuse had instead made the problem even worse. The statistics of the period are notoriously unreliable, but it is very clear that in many parts of the United States more people were drinking, and people were drinking more.

There is little doubt that Prohibition failed to achieve what it set out to do, and that its unintended consequences were far more far reaching than its few benefits. The ultimate lesson is two-fold. Watch out for solutions that end up worse than the problems they set out to solve, and remember that the Constitution is no place for experiments, noble or otherwise.

I suspect my students and others are quick to take away from the US history here that we should seek to avoid governmental cures that are worse than the disease and also avoid too much constitutional experimentation.  But, as the title of this post suggests, I am eager to explore (in this space and with my seminar students) what might be deemed important under-appreciated (or at least under-discussed) lessons from not just Prohibition itself, but also from the broader alcohol temperance movements that stretch back many centuries and arguably still have some enduring echoes and impacts today.

Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?

Perhaps like many others today, I have been thinking about (as well as listening again to) Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech from the famous March on Washington five centuries ago.   In so doing, I noticed this posting from The Crime Report, which is headlined "50th Anniversary March on Washington Will Emphasize Criminal Justice Issues" (and has links to the full speeches of August 1963 speeches of both MLK and John Lewis). Here is an excerpt from the post:

 

Half a century after Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech at the March on Washington for Jobs and Freedom, the often-parallel topics of racism and criminal justice have been thrust into the spotlight.

[Today] and on August 28 civil rights leaders will demand reforms to such racially-tinged criminal justice issues as police “Stop-and-Frisk” tactics, “Stand Your Ground” laws and mass incarceration at the Lincoln Memorial where King made his impassioned plea so many years before.

These policies, among others, have added to the increasingly heavy cost of incarceration of African-Americans effectively decimating the fabric of many communities. The numbers are startling: one in three black men can expect to be in jail during their lifetime. African-Americans are arrested at nearly six times more than whites and almost one million of the United States 2.3 million prison population are black.

But in the last month some strides have been giving leaders attending the march more urgency.

Perhaps at no time since King’s famed speech have the often-parallel topics of racism and criminal justice been so intertwined and in the spotlight. On August 12, Attorney General Eric Holder announced the "Smart on Crime" program, a sweeping initiative by the Justice Department that pivots away from decades of tough-on-crime anti-drug legislation. That same day, Judge Shira Scheindlin of U.S. Southern District Court in Manhattan, declared the New York Police Department’s use of “Stop-and-Frisk” unconstitutional. The tactic is used to search individuals — predominantly minorities — for drug paraphernalia and guns....

Among those speaking will be Congressman John Lewis, whose speech at the original March on Washington cited “the constant fear of a police state.”

"We are tired of being beat by policemen. We are tired of seeing our people locked up in jail over and over again,” Lewis said at the time. ...

The week of events will culminate on August 28, when President Barack Obama will give a speech in which he is expected to emphasize the “dreams” of King that remain unfulfilled.

I have long believed and long contended that Dr. Martin Luther King Jr., were he still alive today, would be a vocal proponent of criminal justice reform and that he would consider such advocacy a continuation of his civil rights work.  But, as the question in the title of this post suggests, I wonder if some folks (especially those working toward ending marijuana prohibition) think that MLK would be a vocal advocate for marijauana legalization were he alive today.  In other words, do folks think it is proper or at least plausible for advocates of marijuana reform to be considered civil rights activists?

Obviously, to the extent MLK stressed the theme of freedom in his famous Dream speech, it is relatively easy for marijuana reform advocates to contend they are working in the MLK tradition when advocating for all people to be able to freely and legally use marijuana.  But, as the graphic above notes, the March on Washington 50 years ago was for jobs and freedom. When I think of my own criminal justice reform advocacy, it has a lot to do with freedom but very little to do with jobs. Marijuana reform advocates, however, often can and sometimes do speak of the job-creation possibilities of a fully legalized and regulated marijuana industry. In this way, I do think marijuana reform advocates can arguably claim to be even more in harmony with the DC marchers 50 years ago than even today's criminal justice reform advocates.

What are the best statistics and strongest research/arguments to support marijuana prohibition and strict criminal enforcement? (Now updated with some...)

I posed the question in the title of this post toward the end of my first class session of the exciting new seminar I am teaching this Fall 2013 semester at OSU's Moritz College of Law.  Indeed, I challenged the terrific (and seemingly very insightful and knowledgeable) students taking the seminar to spend the next week looking for (and sending to me for posting here) the very best statistics and the strongest research and arguments they could find to support marijuana prohibition.

Helpfully, and to provide a running start on a question that I hope will generate some dialogue in the comments, there are more than a few anti-drug advocacy groups which have already marshalled materials in support of prohibition.  A research assistant helped me assemble links to these notable advocacy groups:

• Save Our Society from Drugs (S.O.S.)

• Smart Approaches to Marijuana (SAM)

• Citizens Against Legalizing Marijuana (CALM)

I am hoping that seminar students and other readers might help me cull through the materials on these sites and elsewhere to help provide a sophisticated and detailed answer to the question in the title of this post. 

UPDATE:  So far, three students from my seminar have sent me a bunch of materials and links concerning what they perceive to be the "best" ideas and arguments to support marijuana prohibition.  Here are a few highlights from these efforts:

The DEA in 2010 produced this impressive 81-page booket, titled Speaking Out Against Drug Legalization, which says it is "designed to cut through the current fog of misinformation with hard facts [by] present[ing] an accurate picture of America’s experience with drug use, the nature of the drug problem, and the potential for damage if the United States adopts a more permissive policy on drug abuse." Here are a few (of dozens) of the bullet points from this document discussing the health risks posed by marijuana:

• Harvard University researchers report that the risk of heart attack is five times higher than usual in the hour after smoking marijuana.
• The National Institute of Health found that a person who smokes five joints per week may be taking in as much tar and cancer-causing chemicals into their lungs as someone who smokes a pack of cigarettes every day.
• Smoking marijuana weakens the immune system, and raises the risk of lung infections. Other studies indicate that smoked marijuana causes cancer, respiratory problems, increased heart rate, loss of motor skills, and damage to the immune system.
• According to several recent studies, marijuana use has been linked with depression and suicidal thoughts, in addition to schizophrenia. These studies report that weekly marijuana use among teens doubles the risk of developing depression and triples the incidence of suicidal thoughts.

I have not sought to check or question the references cited for these statements, but I am inclined to take the claims at face value.  In addition, building largely on these sorts of medical claims while making a few other arguments, here are links to a couple notable and prominent commentaries making the case in favor of marijuana prohibition:

• Bob Enyart, "Why Marijuana Should be Illegal" appearing in the Huffington Post (dated 3/19/2012)
• Kevin A. Sabet, "The Price of Legalizing Pot is Too High" appearing in the Los Angeles Times (dated 6/7/2009)

Last but certainly not least, the Director of the Office of National Drug Control Policy, R. Gil Kerlikowske, gave this notable public statement to California Police Chiefs Association Conference in March 2010 titled "Why Marijuana Legalization Would Compromise Public Health and Public Safety." Here is how he summed up his main arguments against marijuana legalization at the start and tail end of this speech:

The concern with marijuana is not born out of any culture-war mentality, but out of what the science tells us about the drug’s effects. And the science, though still evolving, is clear: marijuana use is harmful. It is associated with dependence, respiratory and mental illness, poor motor performance, and cognitive impairment, among other negative effects....

Legalizing marijuana would also saddle government with the dual burden of regulating a new legal market while continuing to pay for the negative side effects associated with an underground market whose providers have little economic incentive to disappear....

Legalization means the price comes down, the number of users goes up, the underground market adapts, and the revenue gained through a regulated market will never keep pace with the financial and social cost of making this drug more accessible.

PolitiFact Florida says claim that marijuana is "less toxic" than alcohol is "Mostly True"

The modern US debate over marijuana law, policy and reform has so many interesting parallels to and echoes from the US experiences with alcohol and its one-time prohibition.  For this reason and others, I found especially interesting this detailed discussion at PolitiFact Florida about a recent advertisement by the Marijuana Policy Project claiming that marijuana is "less toxic" than alcohol. Here are parts of this "fact-check" discussion:

[S]ome health professionals say it’s a matter of picking your poison. "It’s like trying to compare different weapons. Both have the potential to cause harm," said Dr. Scott Teitelbaum, professor and vice chairman of the Department of Psychiatry and chief of the Division of Addiction Medicine, at University of Florida. "I don’t know that there’s a clear answer."

For starters, the term toxic can be vague. Dr. Cynthia Lewis-Younger, medical director of the Florida Poison Information Center in Tampa, said toxic can be "anything that causes harm. It is possible to drink enough water to poison yourself. It’s more related to the dose than anything else."

The Marijuana Policy Project’s claim that marijuana is "less toxic" rankles some health professionals and anti-drug organizations who criticize the inference that using the drug is okay....

Our ruling

An ad from the Marijuana Policy Project claims marijuana is "less toxic" than alcohol. Our job as fact-checkers in this case is not to decide whether marijuana is good or harmful. We're focused on whether the drug in its natural form is "less toxic" than alcohol.

 

In that regard, science and statistics present a strong case:

• Deaths or even trips to the hospital are much more likely due to alcohol;
• Scientists could not find any documented deaths from smoking marijuana;
• A study found the safety ratio for marijuana (the number of doses to cause death) is much greater than compared to alcohol. Put another way, marijuana is 100 times less toxic than alcohol.

Overall, we rate this claim Mostly True.

 

Federal marijuana policies and practices the big dog not barking in AG Holder's big criminal justice speech

Attorney General Eric Holder's potent remarks to the ABA covered lots of ground and made the profound claim that our "criminal justice system ... is in too many respects broken." AG Holder unveiled a number concrete changes in how his Justice Department would approach a number of federal crime and punishment issues, and he more broadly called upon "every member of [the legal] profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system."

Given the profound and profoundly important debate over reform of modern marijuana laws engendered by recent changes in many states' laws, one might have well expected that AG Holder would address the seemingly "tired status quo" of federal marijuana prohibition and suggest possible "bold steps to reform" the uneasy relationship between federal and local pot laws.  But, quite notably, Holder said nothing directly addressing this pressing issues.

That said, AG Holder did take something of a swipe the general status quo on drug policies when he said "as the so-called 'war on drugs' enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective."  That comment alone should at least encourage marijuana reform advocates.

But, critically and somewhat problematically, the Obama administration has yet formally announce any stance on how it will approach marijuana markets and use in Washington state and Colorado after voters approved initiatives to permit recreational adult use back in November.  Nearly six months ago, Holder indicated that some specific federal response to these new state laws was "coming soon."  But, as these states and others continue to explore methods and mechanisms for allowing its citizens to have legal access to marijuana, its seems that AG Holder is still not yet ready to discuss these issues as part of his active reform agenda.

Introduction to a new class and blogging venture

Welcome to the launch of a new (ad)venture: this blog titled Marijuana Law, Policy & Reform. This title is drawn from the name of a new seminar I am to be teaching in the Fall 2013 semester at OSU's Moritz College of Law.

I hope that both the contents and very construct of this blog will inspire a new type of engagement with marijuana law and policy issues for both my students and anyone else who comes by this blog. I hope not only to have interesting content on this this blog serve as a focal point for on-going activities for my seminar, but also as an enduring locale for discussion and debate about marijuana law reforms.

As I gear up for my first few seminar sessions, my tentative plan is to be the main instructor and main blogger for time being. But I hope and expect that I will thereafter assign groups of students to select topics of interest for future classes, and they will be expected to post readings and class discussion ideas on this blog.

I am making this blog "open to the public" in order to encourage persons other than my students to engage with the blog and to use the comments to provide views on whether this new blog adventure seems like a good idea. If there is encouraging feedback from my students and others, I'll probably invest (too) much energy in this new project.

Posted by Professor Douglas Berman