Marijuana Law, Policy & Reform

Clemency for federal medical marijuana offenders?

As Doug has been following at Sentencing Law and Policy, earlier this week Deputy Attorney General James Cole called on attorneys to help bring more drug clemency applicaitons before the administration.  

The comments seem targeted primarily at federal inmates serving mandatory minimum drug sentences--particularly crack offenders sentenced before the 2010 Fair Sentencing Act.  But another area immediately comes to mind: federal medical marijuana inmates.  

Americans for Safe Access (on whose board I serve) has an online petition up urging the President to grant clemency to federal medical marijuana offenders--medical marijuana caregivers who were acting in compliance with their state's law but were subjected to federal prosecutions.  Hopefully the administration will give serious consideration to this group as it considers drug clemency applications.    

Local governments and marijuana policy

I'm late in joining the exchange between Doug and Rob on local control of marijuana policy.  A couple of years ago, I chaired a City of San Diego task force on local regulation of medical marijuana.  In California, there is very little state-wide regulation of medical marijuana (approaching zero.)  And, in the absence of state control, it has been up to localities to fill the void.  

The San Diego City Council established the task force on which I served in 2009 and we gave the City our recommendations in 2010.  Although the City Council passed an ordinance based in large part on our recommendations, it was rescinded after a backlash from dispensary owners (who used a quirky signature gathering procedure that we have to force Council's hand on the issue).  Today, San Diego has no medical marijuana ordinance and dispensaries operate in a gray area here (to the extent they are able to operate at all.)

My experience on the task force convinced me more than ever of the value in state-wide regulation when it comes to marijuana policy.  There are many aspects of marijuana policy that cities and counties are really not equipped to handle.  And plenty of others that can be addressed locally but are much more efficiently handled at the state level.  

That said, I do think there is real value in local control on some points.  I lean towards Doug's view that cities and counties should be permitted to ban retail sale of marijuana in Colorado and Washington, for example.  I think this sort of local control would be likely to help reform efforts overall, since residents in deeply prohibitionist counties and cities might be less concerned about statewide legalization if they can prevent "pot shops" from operating where they live.  (My position is much different when it comes medical marijuana, where I've found that the sickest patients with the greatest need are the ones who suffer most when they don't have access to local dispensaries.)    

When local control goes beyond land use and retail stores, however, then Rob's concern about the complexity of a dis-uniform regime becomes much more persuasive to me.  It is one thing for a city or country to be able to ban retail marijuana sales (or regulate hours of operation, zoning, outdoor signage, etc.)  It's quite another if cities can regulate, for example, the THC content in products that are sold.  Or, even more problematic, if a locality had the power to ban transportation of marijuana or to re-criminalize personal possession by adults.  For a state-wide regulatory scheme to function well, a marijuana manufacturer in one part of Washington needs to be be able to transport marijuana across the state without being subjected to a patchwork system of transportation regulations and outright transportation bans.

In California, an appeals court recently held that localities can ban all medical marijuana cultivation--even a single plant.  The ruling, if adopted by other appeals courts (or the California Supreme Court), could leave patients in many parts of the state without any legal way to access marijuana.  I think that is a serious problem and at-odds with the intent of California's Proposition 215.  

All this is to say, when it comes to localism, I think the devil is in the details.  On some points, like banning the retail sale of recreational marijuana, the benefits of local control may justify the costs.  But on other items, like THC content or product labeling, I think state-wide uniformity is critical.  

NFL not yet actively considering marijuana policy change

In the lead-up to the Super Bowl, the medical use of marijuana in the NFL has been getting a lot of attention.  A couple of weeks ago, league commissioner Roger Goodell said the NFL was open to the possibility of permitting its players to use marijuana for medical purposes (such as pain relief).  Today, ProFootballTalk reports that while the league is open to the idea, Goodell has clarified it is "not actively considering" changing its marijuana policy.  

It will be interesting to see if the issue continues to generate attention in the NFL off-season.  Considering stories like that of Seahawks' fullback Michael Robinson, I hope that it does:

Seahawks fullback Michael Robinson is also a supporter [of medical marijuana in the NFL], a view which may be informed by his experiences this season. Robinson suffered from kidney and liver failure due to a bad reaction to a prescription anti-inflammatory, missed much of the season while recovering and thinks that looking into alternative treatment options is a must for the league and the players.

“I think anything that can make our job a little easier without sacrificing our health at the same time is good for the league, it’s good for players,” Robinson said. “I’m all for alternative forms of recovery and all those types of things – hyperbaric chambers, o-zoning, whatever it may be. So, I’m all for it. Whatever can help the player, I’m for.”

 

"Football, Pain and Marijuana"

The title of this post is the headline of this notable new New York Times editorial.  Here are excerpts:

In the lead-up to the Super Bowl, in which it so happens both teams hail from states that recently legalized marijuana for recreational purposes, pressure is mounting on the [NFL] to reconsider its ban. A group called the Marijuana Policy Project has even bought space on five billboards in New Jersey, where the game will take place on Sunday, asking why the league disallows a substance that, the group says, is less harmful than alcohol.

It’s a fair question. Marijuana isn’t a performance-enhancing drug, for starters, and more than 20 states have legalized it for medical purposes. The league would merely be catching up to contemporary practice by creating a medical exception.

At a news conference on Jan. 7, the league commissioner, Roger Goodell, did not rule out a change in policy. “I don’t know what’s going to develop as far as the next opportunity for medicine to evolve and to help either deal with pain or help deal with injuries,” he said, “but we will continue to support the evolution of medicine.” On Jan. 23, he said the league would “follow medicine and if they determine this could be a proper usage in any context, we will consider that.” There is, in fact, a body of evidence indicating a “proper usage”: one of particular relevance to a hard-hitting, injury-riddled sport.

“Cannabinoids,” the Institute of Medicine reported in 1999, “can have a substantial analgesic effect.” N.F.L. medical experts obviously aren’t convinced, but N.F.L. players seem to be. HBO’s “Real Sports With Bryant Gumbel” estimated in January that 50 to 60 percent of players smoked marijuana, many to manage pain.

Players, of course, have access to other painkillers, including prescription drugs. Yet as former Surgeon General Joycelyn Elders has argued, “marijuana is less toxic than many of the drugs that physicians prescribe every day.” As public opinion and state laws move away from strict prohibition, it’s reasonable for the N.F.L. to do the same and let its players deal with their injuries as they — and their private doctors — see fit.

Fascinating factors in Florida's forthcoming medical marijuana debates

As reported in this AP piece, a "proposed constitutional amendment to allow the medical use of marijuana will go before Florida voters in November after the state Supreme Court narrowly approved the ballot language Monday."  That fact alone makes Florida a state to watch very closely in the months ahead for both proponents and opponents of modern marijuana reforms.  

But, as noted in this article headlined "Could medical marijuana turn Florida blue in 2014?", the intersection of this issue with the governor's race Florida is also an extra notable facet of this year's election cycle in the Sunshine State.  Moreover, as this Sun Sentinel editorial highlights, there are lots of other distinctive and distinctively important factors at play in Florida:

Legalizing medical marijuana in Florida will be decided by voters in November, thanks to a favorable state Supreme Court decision delivered this week.  To make it from pipe dream to reality, however, proponents still must meet a steep requirement: Convincing 60 percent of voters statewide to punch "yes" on the ballot.

But no matter what happens in the election nine months from now, Florida lawmakers should act to legalize a new form of pot that offers no drug-induced high, but plenty of relief for seriously ill children.  The time for medical marijuana, in one form or another, has come for Florida.

This is not about legalizing recreational pot.  Period.  This is not about Florida becoming the first state in the South to legalize medical marijuana.  And this is not about offering a backdoor for sprouting crops of pot dispensaries.  Nobody wants the California-cation of Florida, where anyone with a — wink, wink — allergy or other mild condition can apply and win a right-to-use medical card. Nobody wants to see rows of retail pot dispensaries lining our beachfronts or strip malls.

This is about taking advantage of best medical practices to provide real, in-reach relief for suffering patients.  And in Florida, this issue is about something called Charlotte's Web.  The strain of light weed is a miracle come true for families of truly ill children; it can help stop kids' seizures....

In Florida, pot medicine has a tough battle before it.  The Supreme Court decision was great news for proponents.  The justices approved the ballot language 4-3, after deciding it was clear and met legal requirements.

The losers include Gov. Rick Scott, House Speaker Will Weatherford, Attorney General Pam Bondi and others who have lined up against medical marijuana.  Bondi argued before the court that the ballot language was misleading and allows too much leeway for doctors to approve medical usage.

Winners include John Morgan, the Orlando attorney who spent $4 million on a marijuana petition drive.  And whose law firm employs Charlie Crist.  Other winners include gubernatorial candidates Crist and Nan Rich, who back medical marijuana. Political experts expect the ballot measure to draw large numbers of Democrats and others sympathetic with the cause.  Some believe those voters could cost Scott his re-election.

But the political calculus is cold, considering the stakes and impacts are much bigger here. Imagine your child's best chances at relieving pain that deprives them of comfort, peace and much-need rest was in medical marijuana.

It's tough to get 60 percent of voters to agree on anything.  The fate of Charlotte's Web — and buzz-free medical marijuana — shouldn't be tied to what happens in the next election.  Rep. Edwards is leading the way.  Her fellow lawmakers should jump on the wagon and legalize low-grade medical pot for children.

"Super Bowl Attracts a Marijuana Message"

The title of this post is the headline of this new New York Times piece, which includes these passages:

The Marijuana Policy Project, one of the main groups behind the push to legalize marijuana possession in Colorado, posted advertisements on billboards near Mile High Stadium before the first game of the Broncos’ season on Sept. 5.

Now the group has spent $5,000 to rent several 60-foot-wide billboards in New Jersey, within easy driving distance of MetLife Stadium, where the Broncos will play the Seattle Seahawks in Super Bowl XLVIII on Sunday....

The message is directed at the National Football League, just as it was in Denver, and is repeated in a petition the marijuana group plans to deliver to the N.F.L. on Wednesday. “Why are players punished for making the safer choice to use marijuana instead of alcohol?” asked Mason Tvert, a spokesman for the group. “In Colorado and Washington State, this is now a legal product, and the N.F.L. has no legitimate reason to be policing marijuana use by players.”...

N.F.L. commissioner, Roger Goodell, indicated last week that the league might reconsider its policy on marijuana for medicinal purposes, if research showed that it was a viable treatment for concussions.

There is also a lighter side to the discussion of marijuana and the Super Bowl. There have been many jokes about how Super Bowl XLVIII will be the “stoner bowl” because the Broncos and the Seahawks are from the two states that have moved to legalize marijuana. Bryan Weinman said that was the instigation for the website www.stonerbowl.org.

“It got hatched over a table of beers before the playoff games,” said Mr. Weinman, who has been a nightclub D.J. in Denver. He added that he and several friends “got to joking about what happens if Denver and Seattle ended up in the S.B., how many endless puns would be made by the average individual.”

“We got the easy ones out of the way,” he continued, “and it evolved into somebody saying, ‘What would happen if we put some of this on a T-shirt?' ” And no, he said, they are not marijuana users themselves.

Some recent related posts:

• NFL Commissioner open to medical marijuana as the 2014 pot playoffs continue
• "Denver, Seattle rooting for Marijuana Bowl?"
• More on Marijuana and the NFL

Why local governments should NOT be allowed to opt out of legalization (or prohibition)

I’ve heard it said that if you like federalism, you’ll love localism. The idea is that some of the key benefits of devolving policy onto the states, such as the ability to tailor policies to fit geographic preferences, can be realized to an even greater degree by devolving policy onto localities. If control of marijuana policy is handed to the states, for example, then the people of Mississippi can ban the drug while the people of Colorado legalize it. More people are happy with this outcome than the same policy were foisted on both states. But if local communities within both states were allowed to opt out of the choice made by their respective state majorities, even more people would be happy with the outcome. What is more, since most of the costs and benefits of marijuana likely fall upon people who live near users and distributors (e.g., the cost of drugged driving accidents), such devolution would not present a collective action problem. Perhaps this is why Doug welcomes the idea of legalization states like Colorado giving local governments the ability to ban marijuana in their borders. Let the voters of each locality decide what to do because they’ll ultimately bear the costs and benefits of their choices.

I can see the upside of granting local control. But I think giving local governments a say over whether marijuana is legal has some overlooked costs, and these costs could outweigh the benefits of localism.

First, there is a cost to adding one more decision-maker into the mix. If localities are empowered to ban (or legalize) marijuana, policy advocates will now have to lobby three (or even more) different layers of government to secure their preferred policy outcome. The time and resources spent trying to persuade Congress, the Executive branch, 50 state legislatures (and electorates), 50 state governors, and literally thousands (if not tens of thousands) of localities about how best to regulate marijuana represents a significant cost. Perhaps it’s the price of democracy. But I suspect the arguments that would be made before local city councils would be (and are) largely a rehash of well-worn arguments already being heard on national and state stages: Is marijuana safe? Is prohibition effective? Is this mic on? and so on. I doubt the gains from granting every local government the ability to opt out of legalization (or prohibition) outweigh the costs of having to make the same basic decision again and again and again.

A second related cost stems from the complexity inherent in such a dis-uniform localist regime. This cost will be greater the more leeway local governments have in dealing with marijuana. Indeed, there could be endless variation in terms of how local governments choose to regulate the drug. And such variation wouldn’t necessarily reflect the unique and deep seated preferences of local voters, as opposed to what the different officials assigned to translate mandates into legal text had for lunch. But the variation would increase the costs of compliance, as businesses will have to spend more to understand differences in regulations across the jurisdictions in which they operate.

Third, the variation in local laws makes it more difficult to learn from the experiments now underway. Variation is, of course, inherent in any experiment. Indeed, other states could potentially learn a great deal from the novel policies now being crafted by Colorado and Washington: how much tax revenue can be raised, how much usage will rise, etc., in the wake of legalization. But it’s much tougher for other states to learn when the experiment is not carefully controlled. If the 64 counties comprising Colorado all adopt different marijuana regulations, we may never know whether state reforms have impacted usage rates, driving fatalities, crime rates, etc., especially since some data are simply available only on a state-wide level.

Fourth, the policy choices made by local governments can impose indirect externalities on other parts of the state. For example, if one county were to ban the sale of marijuana, its residents might flock to neighboring counties to buy the drug. To be sure, there’s an upside to this: counties that allow distribution would enjoy a tax windfall from marijuana tourism. But those counties might prefer not to be deluged with the added car traffic and its attendant costs. The problem is, there may be no legal or practical way for them to exclude non-residents from their borders.

Of course, similar problems arise when state governments break from federal policy, but the costs are likely to be much lower given the larger size and relatively small number of state governments. At bottom, I doubt there is a strong normative justification for allowing local governments to opt-out of marijuana prohibition or legalization. I suspect granting them this choice may simply reflect a political compromise, designed to lessen opposition to state legalization in more conservative parts of the states.

Shouldn't sensible reform advocates be pleased when localities just say no to marijuana?

The question in the title of this post is prompted by this new front-page New York Times article, which is headlined "Cannabis Legal, Localities Begin to Just Say No."  Here is how the article gets started:

The momentum toward legalized marijuana might seem like an inevitable tide, with states from Florida to New York considering easing laws for medical use, and a full-blown recreational industry rapidly emerging in Colorado and here in Washington State.

But across the country, resistance to legal marijuana is also rising, with an increasing number of towns and counties moving to ban legal sales. The efforts, still largely local, have been fueled by the opening, or imminent opening, of retail marijuana stores here and in Colorado, as well as by recent legal opinions that have supported such bans in some states.

At stake are hundreds of millions of dollars in tax revenues from marijuana sales — promised by legalization’s supporters and now eagerly anticipated by state governments — that could be sharply reduced if local efforts to ban such sales expand.

But the fight also signals a larger battle over the future of legal marijuana: whether it will be a national industry providing near-universal access, or a patchwork system with isolated islands of mainly urban sales. To some partisans, the debate has echoes to the post-Prohibition era, when “dry towns” emerged in some states in response to legalized alcohol. “At some point we have to put some boundaries,” said Rosetta Horne, a nondenominational Christian church minister here in Yakima, at a public hearing on Tuesday night where she urged the City Council to enact a permanent ban on marijuana businesses.

Though it seems strongest in more rural and conservative communities, the resistance has been surprisingly bipartisan. In states from Louisiana to Indiana that are discussing decriminalizing marijuana, Republican opponents of relaxing the drug laws are finding themselves loosely allied with Democratic skeptics. Voices in the Obama administration concerned about growing access have joined antidrug crusaders like Patrick J. Kennedy, a Democratic former United States representative from Rhode Island, who contends that the potential health risks of marijuana have not been adequately explored, especially for juveniles — and who has written and spoken widely about his own struggles with alcohol and prescription drugs.

“In some ways I think the best thing that could have happened to the anti-legalization movement was legalization, because I think it shows people the ugly side,” said Kevin A. Sabet, a former drug policy adviser to President Obama and the executive director and co-founder, with Mr. Kennedy, of Smart Approaches to Marijuana. The group, founded last year, supports removing criminal penalties for using marijuana, but opposes full legalization, and is working with local organizations around the nation to challenge legalization. “If legalization advocates just took a little bit more time and were not so obsessed with doing this at a thousand miles per hour,” he added, “it might be better. Instead, they are helping precipitate a backlash.”

In Washington, the Yakima County Commission has already said that it plans to ban marijuana businesses in the unincorporated areas outside Yakima city. Clark County, Washington, is considering a ban on recreational sales that would affect the huge marijuana market in Portland, Ore., just across the Columbia River. And the state’s second most populous county, Pierce, just south of Seattle, said last month it would bar recreational businesses from opening.

By my lights, I think everyone eager for the sound and sensible reform of modern marijuana laws and policies should be pleased if and when localities have authority and decide to preserve pot prohibition. If legalization ends up having all the benefits that reformers believe it will have, then over time localities are likely to ease any prohibitions they preserve now. And if local communities are initially inclined to assume the worst about the impact of reform, it would seem better that they get to continue to embrace pot prohibition as the modern reform experiment unfolds in more receptive communities.

As Super (pot) Bowl approaches, another weekend full of notable marijuana news and headlines

I am grateful for all the great commentary being added by the guest bloggers of late, especially because the traditional media continue now to do be doing a pretty good job of covering some of the major modern marijuana reform news.  Still, with another weekend bringing many new marijuana worthy of attention, I am going to once again set forth headlines and links those pieces that struck me as especially noteworthy:

• From the Christian Science Monitor here, "US marijuana policy edges toward acceptance"

• From Forbes  here, Until 100% Legal, Banks to Turn Away Marijuana Money Forbes"

• From FoxNews here "Marijuana export could pay off Hawaii’s debts, lawmaker says"

• From the Newark Star-Ledger here, "Legalize marijuana in NJ? One lawmaker says yes"

• From the Tamba Bay Times here, "Medical marijuana advocates meet Florida ballot goal"

• From USA Today here, "Texas Gov. Perry shocks some with comments on marijuana"

More politicians backing marijuana reform

This morning I appeared on Nevada public radio to talk about recent developments on medical marijuana in the state.  One of the other guests was Joe Brezny, a former Nevada state director for Mitt Romney and current head of the Nevada Cannabis Industry Association.  

Brezny had an interesting take about recent statements from President Obama and Senate Majority Leader Harry Reid about marijuana.  He said he thought Obama and Reid (in part) may have been trying to bait Republican politicians into coming out strongly on the other side.  Although Republican voters are much more prohibitionist than Democratic voters overall, a good chunk of the party's base favors legalization and--perhaps more importantly--a much larger percentage is skeptical of federal interference with state laws.  

I don't know if Brezny's theory is true.  But if it is, Republicans didn't take the bait this week.  In fact, the past few days have seen a number of prominent Republican politicians express support for easing marijuana laws.  Like Obama and Reid's statements, the comments have been tepid.  But it is a very interesting dynamic nonetheless.  

Indeed, this reaction might tell us more about the political state of marijuana policy than what Obama and Reid said themselves.  There was a time when any statement in support of marijuana law reform, however mild, would have generated a swift and certain backlash from political opponents (especially if the support was coming from a Democratic politician.)

But this week, instead of a backlash, we saw this:

Texas Gov. Rick Perry (R) said Thursday that he's open to marijuana decriminalization in the Lone Star state.

“As governor, I have begun to implement policies that start us toward a decriminalization," Perry said at a World Economic Forum panel on drug legalization in Davos, Switzerland, according to the San Antonio Express-News. He was referring to "drug courts" in the state that provide treatment and softer penalties for minor offenses.

A Perry spokeswoman confirmed to the Express-News that while Perry is opposed to legalization of the drug because of medical issues, the governor supports policies that lower punishments for marijuana use in order to keep smokers out of jail.

And this:

Gov. Bobby Jindal said Wednesday (Jan. 22) he would be open to the idea of medical marijuana use becoming legal in Louisiana, as long as patients were under the close supervision of a doctor and the drug's distribution was tightly controlled.

And this:

Governor Chris Christie today took the oath of office for a second term and delivered his inaugural address at the War Memorial in Trenton.  During his inaugural address he called for an end to the drug war and compassion for those suffering from drug addiction.

“We will end the failed war on drugs that believes that incarceration is the cure of every ill caused by drug abuse. We will make drug treatment available to as many of our non-violent offenders as we can and we will partner with our citizens to create a society that understands this simple truth:  every life has value and no life is disposable,” Christie said during his inaugural speech this morning.

By my count, that's three Republicans rumored to be considering 2016 presidential bids expressing support for easing drug laws.  Thinking about the politics of these issues 10, 5 or even 1 or 2 years ago, this trend is something to behold.    

NFL Commissioner asked again about marijuana

Following this week's excellent HBO Real Sport's piece on the use of medical marijuana by NFL players (if you haven't seen it and have access to HBO On Demand, I definitely recommend it), NFL Commissioner Roger Goodell was asked again about the league's marijuana policy.  

ProFootballTalk provides the details:

At a press conference to announce the first winners of the “Head Health Challenge” aimed at finding innovative techniques for treating and/or preventing brain injuries, Commissioner Roger Goodell acknowledged that, if marijuana can be proven to help players recover from concussions, the league could change its position.

“I’m not a medical expert.  We will obviously follow signs.  We will follow medicine and if they determine this could be a proper usage in any context, we will consider that,” Goodell said, via USA Today.  “Our medical experts are not saying that right now.”

In a recent interview with HBO’s Real Sports with Bryant Gumbel, NFL senior V.P. of labor law and policy Adolpho Birch told Andrea Kremer that the league would look at anything that could help its players.  An Isreali doctor has found via research on mice that marijuana can help in the recovery from traumatic brain injuries.

Many players already believe that marijuana helps manage pain, and they smoke it even though the league says they can’t.  For players not already in the substance-abuse program, there’s no chance of testing positive after the annual test to which every player is subjected during the offseason, in a window that opens (coincidentally) on 4/20.

If the federal government ever changes its position regarding marijuana, the NFL may have no choice but to revise its position.  The policy as written prohibits the “illegal use” of marijuana; if it’s ever fully legal in jurisdictions like Washington and Colorado, the league won’t have any way to take action against players who live or work there.

"How Colleges Are Preparing Students for a Country Where Pot Is Legal"

The title of this post is the headline of this notable new article appearing in The Atlantic.  I am pleased that my law school seminar, Marijuana Law, Policy and Reform, is discussed in the piece, and I am even more pleased to learn from the article that at least one other law school is now innovating in this interesting new legal space:

Professors who found an intersection between the cannabis issue and their own area of study are not the only ones pushing to introduce cannabis to higher education. Rehman Bhalesha, a South Texas College of Law student, approached the dean about wanting to establish a drug policy institute at the law school that concentrated on the legalization of cannabis. Instead, the school started a collaboration with Rice University's Baker Institute, which already focused on drug policy. The first class at South Texas College of Law, which covered cannabis legislation, was taught last spring semester. It is offered again this semester.

“Internally, the administration is really thrilled about it because it’s something innovative. And the students are excited because they get to feel like they’re putting their legal knowledge to use and to do something that might have a lasting impact in the real world. They’re not just taking exams and doing make-believe projects. We’re taking what they draft and turning it over to people who have been approached by state legislators asking for ideas,” said Dru Stevenson, the professor who teaches the legislation course.

Students in the legislation class have a range of personal feelings about cannabis. Some feel all drugs should be legalized, others think cannabis should be legalized for medical purposes only, while a few others think all drugs are bad. But Stevenson said even those who think no one should ever consume cannabis recognize the trend toward relaxing cannabis laws from a historical perspective.

“I teach a lot of courses, but I’ve never had one where people were emailing me months in advance wanting to make sure that I’m going to be offering the course and wishing they could reserve a seat ahead of time,” Stevenson said.

Alternatives to contract law in the marijuana industry

In an earlier post, I explained why courts won’t enforce some contracts between marijuana dealers and their investors, landlords, suppliers, etc. 

Without the state’s help in enforcing their bargains, the state-legalized marijuana industry will face higher costs of doing business compared to other industries. After all, contracting parties are more likely to engage in opportunistic behavior (e.g., refusing to repay a loan) when their partners have no legal recourse.

But the unavailability of legal remedies isn’t the “final nail in the coffin” of the marijuana industry because there are viable, albeit second-best alternatives to contract law. Indeed, black markets can flourish without lawful contracts (think Silk Road), and even lawful businesses sometimes prefer cheaper non-legal solutions to expensive legal ones.

Here I briefly tease out some non-legal strategies the marijuana industry and its partners might pursue in the wake of an Arizona court ruling holding their contracts unenforceable. (Note I purposely avoid illegal strategies, like, well, this.)

One, obvious solution is to limit the universe of contracting partners, namely, to persons who are known and can be trusted. Indeed, reputation plays a pivotal role in some industries (think Amazon, EBay, and their illicit cousin Silk Road). A good reputation is a valuable asset, one that vendors won’t sacrifice too readily (particularly when they hope to remain in the industry). For example, if a marijuana dealer like the one in my prior post thought it might need future financing, it would be less likely to walk away from $500,000 in obligations to its current lenders. Firms can even take this idea to the next level and integrate. Indeed, Colorado has required vertical integration of marijuana growers and sellers. Such integration creates its own problems, but a dealer which grows its own stock now at least doesn’t have to worry about enforcing deals with third-party suppliers.

A second strategy involves taking various forms of self-protection against breach. Think of a security deposit paid to a landlord. The deposit reduces the risk to the landlord that the tenant will just walk away from the lease. The payment of such a deposit should help marijuana dealers secure leases. And as long as tenants remain in possession of the property under lease, they have their own ways of protecting themselves against breach by landlords.

In short, there are alternative, albeit second best alternatives to contract law. Readers, I would be curious to know how people are now handling deals in the marijuana industry.

Kansas drug tax stamp law struck down

Early federal drug prohibition laws operated in a cumbersome manner.  At the time, courts took a restrictive view of the federal government's Commerce Clause power.  So Congress had to rely on its taxing power to enact federal drug prohibition.  

Though they are rarely employed, a number of states still have drug tax stamp laws on the books (PDF).  The state drug tax stamp laws operate alongside state laws criminalizing drug possession and distribution as a way to impose additional punishment and, perhaps, collect a bit of money.  

Of states with these laws, Kansas is one of the few that seems to have employed them with any regularity.  It looks like that will change as the Kansas Supreme Court issued an opinion last week limiting the use of the Kansis drug tax stamp law:

A drug tax-stamp law that has been on the state’s books for more than 25 years lost some of its teeth last month when the Kansas Supreme Court ruled that a defendant who has been convicted of possession of marijuana can’t be convicted of possessing the same marijuana without a tax stamp.

The case, State v. Hensley, has prompted the dismissal of a handful of tax-stamp charges in Sedgwick County and is expected to prevent the future filing of such charges in routine drug cases.

“We’re just not going to file them unless there are some exceptional circumstances involved,” District Attorney Marc Bennett said.

The Supreme Court case involved a Saline County man, Michael Rae Hensley, who was charged with possession of marijuana with intent to sell after officers found 200 grams of marijuana in his freezer in 2007. Investigators also confiscated a baggie containing marijuana, a marijuana roach, some rolling paper and a pipe. Hensley was convicted of possession of marijuana, possession of marijuana with no tax stamp affixed and possession of drug paraphernalia. He was placed on probation but appealed the convictions.

Although the court rejected several points of Hensley’s appeal, it agreed that he should not have been convicted of both the possession and tax-stamp charges. 

The political significance of Obama's comments on marijuana policy

Following up on Rob's post, I think Obama's comments to the New Yorker about marijuana policy may be one of the most politically significant statements on the topic in the past few years (or even decades.)

On one level, his remarks weren't all that exceptional.  As far as substance, he doesn't say anything we didn't know already.  He acknowledges marijuana is no more dangerous than alcohol ("I don’t think it is more dangerous than alcohol.”); expresses concern about racial disparities i enforcement ("Middle-class kids don’t get locked up for smoking pot, and poor kids do."); and expresses support for the DOJ's memo advising prosecutors not to use resources to interefere with Colorado and Washington's legalization laws (saying of the laws, "it’s important for it to go forward[.]")

And, as Rob very effectively explains, Obama's power to unilaterally change federal marijuana policy is very limited.

But, in terms of the politics, I think Obama's statements are incredibly important.

First, they paint the DOJ's 2013 memo on Colorado and Washington's laws in a much different light that the DOJ's 2009 memo on medical marijuana.  Up until now, President Obama's comments on state marijuana policy has focused on the need to prioritize federal law enforcement resources.  The DOJ's 2009 memo turned out to have very little impact, in part because US Attorneys could tell local media that it was never really intended to do much more than advise on the use of resources.  What Obama told the New Yorker about Colorado and Washington is very different.  Instead of saying only that going after people in compliance with state law isn't a good use of resources, Obama said he thinks it is "important" for Colorado and Washington's laws "to go forward."  I think this may distinguish the 2013 memo--both politically and in terms of how prosecutors and DEA agents on the ground see it--from the DOJ's ineffective 2009 medical marijuana memo.  Obama's statement doesn't leave a lot of wiggle room for federal prosecutors and DEA operatives to go after people in compliance with Colorado and Washington's laws the way they did with medical marijuana.  Legally, there there is no difference.  But, politically, I think Obama's remarks will make it a lot more difficult for federal officials to go after people in compliance with state laws.

Second, I think Obama's comments indicate that he and his advisors may believe the issue is nearing a tipping point.  When Obama was asked about marijuana in 2009, he couldn't even be bothered to give a serious and substantive answer, treating the question as a joke.  To the New Yorker, Obama echoed support two key talking points from marijuana legalization advocates: that marijuana is no more dangerous than alcohol and that marijuana prohibition has racially disproportionate impacts.  Though he was also careful to express concerns about legalization, his comments seem like the first real indication (to me) that he may be on the political road to "evolving" on this issue.  

Finally, and closely related to point two, I think Obama's comments will go a long way toward establishing marijuana legalization as a serious political issue.  In 2009, Obama treated it as a joke.  In 2012, Mitt Romney wouldn't even answer questions about the topic, saying it wasn't an issue of real significance.  This is in keeping with the tendency of mainstream media and politicans to treat marijuana legalization as a joke.  Obama's treatment of the issue in the New Yorker is, I think, a preview of what is ahead in the 2016 campaign.  Politicians are going to find that they can't just laugh off marijuana legalization.  Voters are going to expect real answers on the topic.

Of course, these trends were already underway.  And, the bar is low when it comes to significant comments about marijuana from politicians.  All that said, it is hard for me to think of many statements on marijuana policy in the past years or decades that I think are more politically important than Obama's.

Can President Obama single-handedly legalize marijuana?

This question may not be as far-fetched as it initially sounds, in light of two important developments in the Obama Administration. The first is the President’s recent remarks regarding marijuana, detailed in this New Yorker piece. In a nutshell, the President said he believed that marijuana is no more (and perhaps even less) dangerous than alcohol. He also criticized racial disparities in the enforcement of marijuana prohibition and the damage that selective enforcement does to respect for the law. I want to be clear that President Obama stopped (far) short of endorsing legalization, but his remarks do demonstrate perhaps newfound respect for the idea.

The second development is the President’s success at bypassing Congress to pursue controversial policy initiatives. In the immigration domain, for example, President Obama has been able to implement some important components of his as yet unpassed Dream Act using no more than the Executive Branch’s (controversial) power to decline enforcement of extant immigration laws.

Given these two developments, I want to ask whether President Obama could legalize marijuana, if he were so inclined. And since I seriously doubt Congress would pass any marijuana-related legislation in the near future, I want to focus here on what the President could do unilaterally without further congressional legislation.

I think the bottom line answer is that the President has options at his disposal, but they entail only very limited forms of legalization. Indeed, President Obama has already taken steps to legalize marijuana in a limited way. Back in August 2013, senior officials in the Department of Justice instructed federal law enforcement agents not to criminally prosecute marijuana dealers unless some reasonably well defined federal interest was implicated (e.g, they were selling across state lines). The DOJ’s guidance can be found here. The DOJ’s policy amounts to a sort of de-facto legalization: while the federal ban remains on the books, it will not be enforced as written.

Non-enforcement, of course, falls far short of de jure legalization. I scrutinized an earlier version of the DOJ non-enforcement policy here. The latest policy statement is tighter, but I think its impact remains limited. To begin, it still doesn’t stop other federal agencies outside the DOJ (e.g., the IRS, Veterans Affairs, Homeland Security) from enforcing their own sanctions on marijuana. The IRS, for example, continues to impose draconian tax rates on state licensed marijuana dealers.  In theory, these other agencies could follow the DOJ’s lead, but it will take time to work out the details of non-enforcement policies for tax, veteran’s health benefits, airport screening, and so on.  In any event, as my initial post noted, even if all federal agencies were on board, the Obama Administration could not stop private citizens and local officials from challenging state marijuana laws as preempted. The viability of such suits hinges on what Congress circa 1970 wanted, not what the DOJ is doing today.  Lastly, the promise of non-enforcement simply may not cut it for some firms and individuals. Consider banks. For a variety of reasons, banks will clearly wait until federal prohibition is repealed before they allow marijuana dealers to take out loans, open bank accounts, etc.

As I have described it elsewhere, the existence of so many regulations and enforcement actors makes marijuana prohibition a hydra. The DOJ’s non-enforcement policy, while important, cuts off but one of the heads of this hydra. It would take a far more powerful weapon—a change in federal and state law—to kill the hydra completely.

Interestingly, it’s possible that President Obama already has that weapon at his disposal. The Controlled Substances Act, 21 U.S.C. section 811 delegates authority to the Attorney General, working in consultation with the DEA and the Secretary of HHS, to reschedule marijuana or (possibly) even to remove it from the list of controlled substances altogether. Moving marijuana to schedule IV or V, or removing it from the list altogether, would make the drug legal under federal law.  There would be no more threat of criminal prosecution, of preemption, of tax penalties, of the loss of federal benefits, and so on.

It is important to note, however, that President Obama could not simply order the Attorney General to reschedule marijuana tomorrow. The CSA requires the Attorney General to follow certain, notoriously cumbersome procedures when rescheduling drugs (hold hearings, etc.), and it seems to require the Attorney General to adhere to any treaties governing the drug regardless of what those hearings might reveal. For these reasons, the President could probably order only limited legalization of marijuana (say, for certain medical purposes), and then, only after months if not years of formal hearings. And as Alex has pointed out in a great paper here, rescheduling would not change the content of state law; i.e., marijuana would remain illegal for all purposes in at least 30 states, even if somehow the President were to remove the drug from the list of federally controlled substances altogether.

In sum, the President’s comments have certainly stirred up conversation, but they do not necessarily portend any significant new legal developments. Hercules he is not.   

More on Louisiana and Marijuana Sentencing

Last Friday, I noted a Louisiana state court decision upholding a 14-year sentence for the sale of $40 worth of marijuana.  

I just came across this recent Reason Foundation post by Lauren Galik that provides some additional background on the state's harsh sentencing laws for drug offenders.  Galik reports that "offenders convicted of growing or selling any amount of marijuana in Louisiana—so, as little as one pot plant—are subject to serve a mandatory minimum of five years of hard labor in prison, as well as pay a fine of up to $50,000." 

She also highlights the stories of two people serving life without parole sentences for small marijuana offenses in Louisiana: "Anthony Kelly, sentenced to LWOP for possession of 32 grams of marijuana with intent to distribute in 1999, at age 25; and Fate Vincent Winslow, sentenced to LWOP for acting as a go-between in the sale of two small bags of marijuana, worth $10 in total, to an undercover police officer when he was homeless."

Many marijuana prohibitionists say they don't think marijuana offenders should be receiving long prison sentences.  I wonder if any would be willing to put aside their differences with legalization proponents (and vice versa) to lobby for reforms in states like Louisiana.  

MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition

In this post a few months ago on the 50th Anniversary of Dr. Martin Luther King Jr.’s famed "I Have A Dream" speech, I asked this question: Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?." Now, as a way to honor the special day in which we honor the legacy of Dr. King's work, I provide this abridged and tweaked version of famed "I Have A Dream" speech:

One score and four years ago, Congress enacted the Controlled Substances Act. This momentous decree came as a great prohibition to millions Americans who had been enjoying the flames of a plant. It came as a notable break to end the long American history of freedom to grow and use marijuana. Forty four years later, the American pot user still is not free. Forty four years later, the life of the American pot user is still sadly crippled by the manacles of marijuana prohibition and the chains of incarceration. Forty four years later, the American pot user lives on a peculiar island of marijuana prohibition in the midst of a vast ocean of alcohol and tobacco and prescription drug use and abuse. Forty four years later, the American pot user still languishes in the corners of American black markets and finds himself in exile in his own land....

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.

This note was a promise that all men, yes, men who like marijuana as well as men who like alcohol, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness....

It would be fatal for the nation to overlook the urgency of the moment. This exciting winter of legitimate marijuana sales will not pass until there is an invigorating autumn of freedom and equality. Twenty Fourteen is not an end, but a beginning. Those who hope that the American pot user needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the American pot user is granted his liberty and rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges....

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident; that all men are created equal."

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood with marijuana as well as with alcohol.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the intoxicant they responsibly enjoy but by the content of their character....

I have a dream that one day every valley shall be exhalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I will go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood.

With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God's children will be able to sing with new meaning, "My country 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrims' pride, from every mountainside, let freedom ring."

And if America is to be a great nation, this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snow-capped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that; let freedom ring from the Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! Free at last! Thank God Almighty, we are free at last!"

More on Marijuana and the NFL

As a bay area sports fan, I'll be rooting for the 49ers and against a marijuana bowl this afternoon.  But, marijuana bowl or no, it looks like we may be seeing more in the news about marijuana use in the NFL this coming week.  Via ProFootballTalk, HBO's Real Sports will be airing a segment on marijuana us in the NFL this Tuesday.  The segment will report that many NFL players prefer using marijuana to conventional pain medications for pain management:

But what about the players who don’t want to use prescription medication, given the potential for addiction and side effects?

“I wouldn’t know . . . how to respond to them other than to say that the NFL and the NFL Players Association have made a determination that marijuana is not a substance for which the exemptions for that type of use would be permitted,” Birch says.

Plenty of players don’t care.  Former Broncos tight end Nate Jackson, who smoked marijuana while playing for pain-management purposes, estimates that “maybe half” of the league’s players use marijuana.  (Former NFL tackle Lomas Brown previously has pegged marijuana use by the league’s players at 50 percent.)

“For me personally, very viable,” Jackson tells Kremer regarding the benefits of marijuana.  “I prefer it.   Marijuana was something that helped me, as the season wore on, my body would start to break down.  I was in a lot of pain.”

If marijuana is an effective pain medication (and there's good reason to think that it is), its hard to imagine that it wouldn't be a next public health positive for patients to use it in place of opiate-based medicines.  Pain is a tricky thing to treat and surely marijuana would not be effective for plenty of patients.  

But for those who find it is effective (a group which may include many NFL players from the sound of this story), why not let them use it?  Pain is more subjective than most medical problems.  To know if a broken bone is healed, you'll go to your doctor for an x-ray.  But to know if pain medication is working, physicians have to rely on what the patient says about how much pain they are experiencing.  So if a patient reports that marijuana effectively treats their pain, what additional evidence do we need to know that it's working?

Here's a short clip from the HBO special:

 

"Denver, Seattle rooting for Marijuana Bowl?"

The title of this post is the headline of this amusing, though still serious, new piece from Fox Sports, which picks up on some of the themes I mentioned in this prior post. Here are excerpts:

If all goes as oddsmakers have predicted, the Denver Broncos and Seattle Seahawks will win the conference championship games on Sunday and gear up for what will be a Super Bowl for the ages. Not because of the talents that will be going head to head, but the first ever Marijuana Bowl? That's something you don't hear every day. These two teams represent the major cities in Colorado and Washington, the only states that have legalized recreational marijuana.

Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws, said that if this ends up being the matchup for the Super Bowl, it will be featuring "the two most pro-cannabis-legalization cities in the US." He joked that the game should be renamed "The Super Oobie Doobie Bowl."

The legalization hasn't been a free-for-all among everyone though. When Jan. 1 came around and Colorado opened its pot shops, it was legal to buy and use the drug on the state level. However, it is still illegal for NFL players who live in the state to use marijuana because it violates the drug policy under the current collective bargaining agreement. The same will go for Washington when their pot doors open this spring.

The NFL is getting pressured by lobbyists to stop penalizing players for smoking pot, saying it could be helpful for getting through concussions and other injuries. The lobbyists are also calling attention to the fact the league is fond of the alcohol industry, such as their relationship with Anheuser-Busch. They pitch Bud Light as the "proud sponsor of the NFL" and even had some ads in rotation showing Budweiser and Bud Light bottles going head-to-head in what they called a "Bud Bowl" game.

Mason Tvert, spokesperson for the pro legalization Marijuana Policy Project in Denver thinks there are more important topics to be discussed instead of getting drowned out in all the beer ads. "Hopefully there will be a break in the beer commercials for some discussion about marijuana laws," he said.

A 48-foot-wide billboard was put up in September by the organization next to Denver's Sports Authority Field at Mile High, insisting that the NFL needs to "stop driving players to drink" and the "safer choice" for athletes was actually pot. A petition was launched by the group in efforts to get NFL commissioner Roger Goodell to change the league's marijuana policy.

Steve Fox, who works for a marijuana-industry law firm in Denver, wonders since the National Hockey League only tests for performing-enhancing drugs, why can't the NFL do the same? He could have a point since marijuana is not a drug that gives any player a physical edge. "It won't be long before it's unique to have two teams in the Super Bowl that haven't made marijuana legal," Tvert said.

For the states where marijuana is outlawed completely, they've actually had a difficult time in the postseason. The Carolina Panthers, Indianapolis Colts, Kansas City Chiefs, Green Bay Packers, Philadelphia Eagles, New Orleans Saints and Cincinnati Bengals all come from states that have not decriminalized pot. Go figure. "If you noticed, the more marijuana-friendly localities really kicked butt," Fox said. "I don't know what it really means in the grand scheme of things, but it's a nice bit of karma if nothing else."