Marijuana Law, Policy & Reform

Congress rejects proposal to let VA doctors recommend medical marijuana

Tom Angell of marijuana majority alerted me to the news that Congress today rejected an amendment that would have let VA doctors recommend medical marijuana to patients in medical marijuana states.  The vote was 222 against, 195 in favor, with 14 not-voting.  

A few of the no votes caught my eye: Democrats Ann Kirkpatrick of Arizona (a medical marijuana state), Rick Larson of Washington (a legalization state), Sandy Levin of Michigan (a medical marijuana state) and last but not least DNC Chair Debbie Wasserman Schultz of Florida (a soon-to-be-medical marijuana state.)  

I imagine all four took votes that were both very much at odds with their districts generally and their core supporters in particular.  Of course, the Democratic party has quite a history of abandoning its base (usually to its own detriment in my opinion) in recent years, so I can't say I'm surprised to see there are still some tone-deaf Democrats in Congress on this issue.  

In fact, in many ways the vote is notworthy for coming as close as it did.  I believe the last House vote on a marijuana reform proposal was 163 to 262 in 2012 (though there may be a more recent vote I'm forgetting), so support for changing marijuana laws seems like it may be picking up.  

 

Federal appeals Judge cites shifting views on marijuana to question mandatory minimum marijuana prosecutions

 

Earlier this week, in a dissenting opinion, Eighth Circuit Judge Myron Birght raised the question of whether it makes sense for the federal government to pursue mandatory minimum sentences in marijuana cases in a world where a large number of people think the drug should be legal.  The legal quesiton in the case (PDF) involved application of the aggravating role enhancement for managers of drug opertions and may be of interest to those who follow federal sentencing law.  Judge Bright's comments on marijuana policy follow: 

I add an observation. In today’s world where several states in this country have legalized marijuana use for medical purposes and two states have even legalized its recreational use, a hard look should apply to marijuana prosecutions carrying mandatory minimum sentences as in this case. United States Attorney General Eric H. Holder, Jr. has concluded that a new approach must be taken in federal sentencing and that we must ensure that our criminal justice system is “[t]argeting the most serious offenses” and “prosecuting the most dangerous criminals.” . . . Randy Irlmeier’s conduct is not a “most serious” offense nor is he a “most dangerous” criminal. A five-year mandatory minimum sentence for his crime is far too long. I would remand to the district court to apply the safety valve and resentence Randy Irlmeier accordingly. 

New survey suggests that "medical community supports the use of medical marijuana"

In many discussions of modern marijuana reform over at my sentencing blog, frequent commentor Bill Otis was often very quick to highlight that the American Medical Assocation has expressed serious concerns and considerable reservations about the potential health impact of legalizing marijuana.  I largely agree with Bill that the medical community should have a significant role and voice in the on-going national marijuana reform debate, and thus I found notablethis new FOXBusiness article headlined "Survey: 53% of Doctors Support National Legalization of Medical Marijuana."  Here are the details:

Medical marijuana might be legal in 21 states, but it is still not widely prescribe by doctors across the country — despite the majority of doctors and patients supporting its use. According to a survey by online medical resource WebMD, 69% of doctors and 52% of patients polled say marijuana delivers benefits.

“Regardless of past restrictions, a majority of patients and doctors see marijuana as delivering real benefits to treat patients,” says Michael Smith, chief medical editor at WebMD in the research report. “Uncertainty is the next largest response, with 37% of patients unsure of marijuana’s benefits versus 20% of doctors.”

Among the nearly 1,500 doctors surveyed, 82% of the physicians in favor of medical marijuana were oncologists and hematologists. What’s more, a wide majority of respondents say medical marijuana should be an option for patients. However, the support of legalized marijuana has its limits, according to the survey: 53% of doctors and 51% of consumers oppose legalizing it nationally for recreational use.

WebMD and its Medscape unit polled 3,000 consumers along with 1,500 doctors for its report. Support for medicinal use of marijuana is strong even in states where it’s illegal. According to the survey, 50% of doctors practicing in states where it’s banned say it should be legalized, while 52% of doctors practicing in states that are considering legalizing it for medicinal use support the practice. Forty-nine percent of consumers living in states where it’s not legal support legalizing medical marijuana.

Smith says the findings of the survey indicate the medical community supports the use of medical marijuana, but more studies are needed to boost doctors’ confidence as to where medical marijuana can help and where it may not. “Despite more than 20 years of anecdotal evidence about the medicinal effects of marijuana, doctors and consumers remain in search of answers,” he said in a recent press release.

The press release referenced in this article is available at this link, and it provides some more details about the survey and its results.  I also now see WebMD has this entire special section of its website providing coverage of marijuana-related issues.

This is your brain on drugs: what a recent fMRI study can and can’t tell us about the effects of marijuana use

Two weeks ago (okay, I'm late to the party), news broke of a new study showing that the brains of casual marijuana users are different than those of non-users. The study was just published in the Journal of Neuroscience and can be found here.

The researchers used magnetic resonance imaging (MRI) to scan the brains of 40 young adults aged 18-25. 20 of those subjects were casual marijuana users and 20 were non-users. Controlling for other behaviors such as alcohol and tobacco use, the researchers found that marijuana use was correlated with changes to the shape, size, and density of particular areas of the brain. From the study:

“The results of this study indicate that in young, recreational marijuana users, structural abnormalities in gray matter density, volume, and shape of the nucleus accumbens and amygdala can be observed. Pending confirmation in other cohorts of marijuana users, the present findings suggest that further study of marijuana effects are needed to help inform discussion about the legalization of marijuana.”

The study generated a lot of media coverage, and, unfortunately, over-statements of the study’s actual implications for ongoing policy debates. For example, the Society for Neuroscience issued a press release for the study. The release, while titled with appropriate caution (“Brain Changes are Associated with Casual Marijuana Use in Young Adults”), relays unsupported claims from scientists regarding the ramifications of the study. One of the authors, Hans Breiter, is quoted as saying ““This study raises a strong challenge to the idea that casual marijuana use isn’t associated with bad consequences.” And Carl Lupica, a researcher from the National Institute on Drug Abuse who was not involved with the study, similarly suggests that “This study suggests that even light to moderate recreational marijuana use can cause changes in brain anatomy.”  

The problem is that the study doesn’t necessarily support such conclusions. The study’s findings, while intriguing and valuable, are still quite limited. For one thing, the study will need to be replicated. The subject pool of 40 is rather small. That’s not reason enough to dismiss the study -- much brain science research relies on small n studies, because MRIs are cumbersome and expensive, and one can find statistically significant results with small pools – but it is reason to be particularly cautious about the results pre-replication.

Second, correlation doesn’t equal causation. Law policymakers commonly ignore this important scientific concept, but even scientists sometimes get ahead of themselves and jump to conclusions not warranted by a study’s design. In this study, for example, it is quite possible that people who use marijuana have differently sized and shaped brains to begin with; for example, maybe their brains are simply wired to seek out more risky behaviors and that’s why they’ve decided to use an illicit substance. Since we don’t know the size and shapes of these brains before they started using marijuana, we can’t say which came first: the marijuana usage or “the structural abnormalities in gray matter density, volume, and shape of the nucleus accumbens and amygdala.”

Third, even if the study’s results could be replicated and even if they could (somehow) demonstrate a causal connection between marijuana use and brain structure, it’s not clear from this study anyway why we should care. To be sure, different areas of the brain are associated with different functions and I wouldn't want to tinker with the size, shape, or density of my brain. But the study’s author’s can’t yet say that the changes they observe in brain structure necessarily cause negative changes in behavior.  For example, some studies suggest that the nucleus accumbens might play a role in drug addiction. But it’s not clear whether that changes observed in this study are associated with (let alone cause) marijuana addiction or any other bad behavioral outcomes; indeed, the authors made a point of excluding “dependent” marijuana users from the subject pool.

Law and neuroscience is a very promising field. It is generating intriguing findings concerning important issues like culpability. But as the best in this nascent field know, there is still much to be learned about the brain. This study is an intriguing development and clearly worthy of more follow ups. I think research on the brain cold help us understand marijuana’s effects and put them in perspective with those of alcohol, tobacco, cocaine, etc. But for now, bold statements about the import of brain science for policy debates over marijuana seem premature.

Oregon Rep. Blumenauer releases campaign ad on marijuana reform

Via DrugWarRant, Portland Congressman Earl Bluemenauer has released a campaign ad highlighting his support of marijuana reform.  It was not that long ago that supporting marijuana legalization was considered a political death sentence.  Though Blumenauer is in a safe seat without much of a reelection challenge, his ad is the latest sign that politicians are starting to catch up to the changing politics on this issue.  

 

"Legalizing marijuana has been good for Colorado, voters in the state say 52 - 38 percent"

The title of this post is the first line of this notable press release discussing the results of a notable new Colorado poll.  Here is more from the press release:

Legalizing marijuana has been good for Colorado, voters in the state say 52 - 38 percent, but 52 percent of voters are less likely to vote for a candidate for office who smokes marijuana two or three days a week, according to a Quinnipiac University poll released today....

Legalized marijuana has been bad for the state, Republicans say 63 - 28 percent and voters over 65 years old say 62 - 28 percent. All other listed groups say it's good for the state....

"Colorado voters are generally good to go on grass, across the spectrum, from personal freedom to its taxpayer benefits to its positive impact on the criminal justice system," said Tim Malloy, assistant director of the Quinnipiac University poll. "But if you are a politician, think twice before smokin' them if you got 'em," Malloy added.

I tend not to put too much stock in a single poll, and a lot could change concerning public opinion regarding legalized marijuana in the weeks and months ahead. But the demographic breakdown of the results in this poll are quite interesting and reveal that, relatively to the general Colorado population, independents, women and persons under 50 all most strongly believe that legalizing marijuana has been good for the state. These numbers confirm my sense that supporting legalized marijuana may now help a politician attract key swing voters more than opposing it.

Federal trial judge finds police claim to have smelled marijuana implausible

Because possessing marijuana is a crime, its scent can provide the police with probable cause to search your car or to get a warrant for your home.  Though I'm sure most police officers honestly report the facts of their searches, I'm equally sure that there are some bad actors who justify bad searches by falsely testifying that they smelled marijuana.  It is very difficult for courts to pick the liars out from the truth tellers and so it is rare to see a decision dismissing an officer's claim to have smelled marijuana.  

Last week, however, a federal trial judge in Massachusetts found an officer's marijuana smell story implausible enough to hold against the government (PDF):

An odor of marijuana is often sufficient to justify the warrantless search of an automobile. See Staula, 80 F.3d at 602 (“The case law is consentient that when a law enforcement officer detects the odor of marijuana emanating from a confined area, such as the passenger compartment of a motor vehicle, that olfactory evidence furnishes the officer with probable cause to conduct a search of the confined area.”). I suspect that not only lawyers and judges know this, but police officers do, too.

 

After hearing the testimony of Trooper Morris, I do not credit his testimony that he “detected a faint odor of ... raw marijuana coming from the interior of the vehicle.” (Tr. at 18.) Trooper Morris’s testimony is telling as to his true reason for searching the car. 

 

Q. After searching the vehicle and not finding any marijuana, did you remain suspicious?

A. I did.

Q. Why is that?

A. Based on the inconsistencies in their story. And I was concerned that there were -- there was something in the car that I was missing or I wasn’t finding.

Q. And you remained concerned because you could still detect the odor?

A. Not just the odor, just -- like I said, their story was -- their stories weren’t consistent; they didn’t sort of make sense; they weren’t reasonable. So I believed there was something hidden in the car.

 

Perhaps Trooper Morris thought he smelled a faint odor of raw marijuana; perhaps the wish was father to the thought. On the evidence, I am not persuaded there was such an odor, and the government has failed in its burden on that factual issue.  

Justice Stevens says marijuana should be legal

My good friend Tom Angell of Marijuana Marjority just alerted me to some big news from an NPR interview today with retired Justice John Paul Stevens.  

Justice Stevens says he supports marijuana legalization: 

Retired Justice John Paul Stevens made some news in an interview with NPR's Scott Simon on Thursday.

 

Scott asked him if the federal government should legalize marijuana.

 

"Yes," Stevens replied. "I really think that that's another instance of public opinion [that's] changed. And recognize that the distinction between marijuana and alcoholic beverages is really not much of a distinction. Alcohol, the prohibition against selling and dispensing alcoholic beverages has I think been generally, there's a general consensus that it was not worth the cost. And I think really in time that will be the general consensus with respect to this particular drug."

Justice Stevens had a few notable opinions related to marijuana hile on the Court.  Perhaps most famously, Justice Stevens authored the majority opinion in Raich, a case upholding the federal government's power to prosecute minor marijuana cases.  Of course, that decision had everything to do with the commerce power and little to do with Stevens' view of marijuana policy.  

A somewhat lesser known case gave us hints of his policy views, however.  In Morse v. Frederick (aka the "Bong Hits for Jesus" student speech case), Justice Stevens wrote a dissent that concluded by linking marijuana and alcohol prohibition:

Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely. 

 

Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. Whitney, 274 U. S., at 377 (Brandeis, J., concurring); Abrams, 250 U. S., at 630 (Holmes, J., dissenting); Tinker, 393 U. S., at 512. In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment . Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.

 

I respectfully dissent.

Arizona Supreme Court holds driving with trace amounts of marijuana in the blood is not enough for a DUI conviction

The Arizona Supreme Court issued a decision today on marijuana and driving under the influence (hat tip to Elizabeth Joh for passing along the news).  

As most readers probably know, marijuana stays in a person's system long after they use it.  As a result, a positive blood test for marijuana doesn't mean they person is impaired at the time of the test.  Because there is currently no blood or breath (or spit or sweat, etc.) test to accurately measure marijuana impairment the way we do for alcohol, states have struggled over the legal standard for marijuana impairment.  

This is a problem that goes far beyond marijuana (it exists for all legal prescription medications, for example) and, I think, is only tangentially related to marijuana legalization (after all, plenty of people use marijuana illegally so marijuana and driving is a concern regardless of its legal status.)  Nevertheless, medical marijuana and legalization laws have shined a bit of a spotlight on the issue.

One particularly controversial approach to the issue is to say that driving with any traces of marijuana in the blood is sufficient evidence for a DUI conviction.  Today's decision from Arizona's Supreme Court disapproves of this practice.  Unfortunately, the opinion page on the Court website is not loading so I haven't yet been able take a look at the decision and am unable to provide a link at the moment (update: the Supreme Court site is working again, opinion (PDF) is here).  

For now, this article has a good summary:

The case before the case involves a driver cited for a traffic violation who, when given a blood test, was found to have Carboxy-THC in his system and was charged with driving with an illegal drug or its metabolite in his body.

A trial judge threw out the charge, but the Court of Appeals said the laws on impaired driving “must be interpreted broadly.”

In arguments to the court, Susan Luder, a deputy Maricopa County attorney, acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. She did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.

But Luder told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver's license for a year.

Justice Robert Brutinel, writing the majority ruling, said that argument makes no sense.

“This interpretation would create criminal liability regardless of how long the metabolite remains in the driver's system or whether it has any impairing effect,” he wrote. Brutinel pointed out that Lunder admitted to the justices that, the way Arizona law is worded, “if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”

Update: Now that the opinion is up, the precise question addressed by the Court may frame the issue it decided a bit better than the above.  This is the first paragraph from the opinion linked above:

Arizona Revised Statutes § 28-1381(A)(3) makes it unlawful for a driver to be in actual physical control of a vehicle if there is “any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person’s body.” We are asked to determine whether the phrase “its metabolite” includes Carboxy-Tetrahydrocannabinol (“Carboxy-THC”), a non-impairing metabolite of Cannabis,1 a proscribed drug listed in § 13-3401. We conclude that it does not. 

Are medical marijuana regulations finally coming to California?

When it comes to manufacture and distribution, California's medical marijuana law is notoriously open-ended.  The state's medical marijuana dispensary system hinges almost entirely on a single Health and Safety Code provision that allows patients "collectively or cooperatively to cultivate marijuana for medical purposes." 

California's courts have, for the most part, interpreted this provision to permit retail medical marijuana collectives (though the state's Supreme Court has not yet weighed in.)  Though I think this interpretation is the right one, it has resulted in a system where retail medical marijuana sales are legal but--at the state level--almost entirely unregulated.  One of the very few statewide rules that does exist provides that retail outlets may not operate for profit.  But the law says nothing about what, exactly that means.  (Nor is there any clear policy rational--or precedent that I can think of--for a system in which selling an item is a crime unless it is done by a not-for-profit enterprise.)  

Though some legislators have tried to push for statewide regulation, so far none of the efforts have come close to becoming law.  There may be hope this year, however, as a number of law enforcement groups that have previously opposed proposals to regulate marijuana are now backing their own legislation.  

The law enforcement proposal is not without its flaws.  But it is reasonable in many respects and it could provide the foundation for a very good piece of legislation.  Most importantly, perhaps, it looks to have some early momentum in Sacramento as it made it out of a State Senate committee yesterday:  

Medical marijuana dispensaries in California would have to get state Public Health Department licenses, and doctors who recommend pot would face new standards for examining patients under legislation supported Monday by a state Senate panel.

 

The measure, supported by members of the Senate Business, Professions and Economic Development Committee, also clarifies the authority of cities and counties to prohibit pot shops within their borders.

Today, a California Assembly committee will be considering a competing proposal by Tom Ammiano.  If both proposals continue to move forward, it could set the stage for a compromise that might finally result in much-needed and long-overdue medical marijuana regulations in California.

New RAND paper considers what alcohol and tobacco regulations can teach us when it comes to marijuana legalization

From a RAND press release yesterday comes news of a very interesting looking article by Rosalie Liccardo Pacula, Beau Kilmer, and others.  Unfortunately, it also appears to be behind a paywall.  But for anyone with library or database access to the American Journal of Public Health, it should be well worth downloading and checking out.  From the press release:

As U.S. policymakers consider ways to ease prohibitions on marijuana, the public health approaches used to regulate alcohol and tobacco over the past century may provide valuable lessons, according to new RAND Corporation research.

 

Recent ballot initiatives that legalized marijuana in Colorado and Washington for recreational uses are unprecedented. The move raises important questions about how to best allow the production, sales and the use of marijuana while also working to reduce any related social ills.

 

A new study published online by the American Journal of Public Health outlines how regulations on alcohol and tobacco may provide guidance to policymakers concerned about the public health consequences of legalizing marijuana.

Great New Orleans Times-Picayune op-ed on Louisiana drug sentencing

As I've blogged about a few times here, Louisiana has one of the nation's most unforgiving drug sentencing regimes and is particularly out of step when it comes to marijuana.  This past Friday, the New Orleans Time-Picayune editorial board ran this op-ed highlighting the problem and calling for reform.  The first few paragraphs follow:

Someone caught in Louisiana for the second time with a small amount of marijuana faces up to five years in jail and the possibility of hard labor. On a third or subsequent offense, the sentence can be 20 years with hard labor. These sorts of harsh penalties for marijuana possession and other non-violent crimes are one reason the state has the highest incarceration rate in the world.

 

There's a simple change that could make a significant difference.

 

Senate Bill 323 by Sens. J.P. Morrell and Robert Adley would make the penalty for possession of marijuana a fine of up to $100 and six months in jail on all offenses. The legislation would eliminate the enhanced penalties in current law for second and subsequent pot possession convictions.

 

That is a sensible reform the coalition behind the Smart on Crime legislative agenda says would save the state "millions of dollars in supervision and incarceration costs." It also would bring tremendous relief to thousands of families across Louisiana.

How might (rare?) tragedies linked to legal marijuana use impact reform developments?

The question in the title of this post is prompted by this recent AP story from Colorado  headlined "2 Denver deaths tied to recreational marijuana use."  Here are excerpts:

This week, two Denver deaths were linked to marijuana use, and while some details of the deaths have yet to emerge, they are the first ones on record to be associated with a once-illegal drug that Colorado voters legalized for recreational use last year.  One man jumped to his death after consuming a large amount of marijuana contained in a cookie, and in the other case, a man allegedly shot and killed his wife after eating marijuana candy.

Wyoming college student Levy Thamba Pongi, 19, jumped to his death at a Denver hotel on March 11 after eating more of a marijuana cookie than was recommended by a seller, police records show - a finding that comes amid increased concern about the strength of popular pot edibles after Colorado became the first state to legalize recreational marijuana.  Pongi consumed more than one cookie purchased by a friend - even though a store clerk told the friend to cut each cookie into six pieces and to eat just one piece at a time, said the reports obtained Thursday.

Pongi began shaking, screaming and throwing things around a hotel room before he jumped over a fourth-floor railing into the hotel lobby March 11.  An autopsy report listed marijuana intoxication as a "significant contributing factor" in the death....

In a separate case, a Denver man, Richard Kirk, 47, is accused of killing his wife, Kristine Kirk, 44, on Monday while she was on the phone with a 911 dispatcher. Police say he ate marijuana-infused candy and possibly took prescription pain medication before the attack, according to a search warrant affidavit released Thursday. The affidavit states that Kristine Kirk told the dispatcher her husband had ingested marijuana candy and was hallucinating.

She pleaded with dispatchers to hurry and send officers because her husband had asked her to get a gun and shoot him. She said she was "scared of what he might do." Richard Kirk could be heard in the background of the 911 call talking about the candy he bought from a pot dispensary earlier that night, and surveillance footage from the shop captured the transaction, police said.

A detective who interviewed him after the killing noted that he appeared to be under the influence of controlled substances based on his speech and inability to focus, according to the warrants. Blood samples will be tested to see whether he was on any other drugs or medications....

The cannabis industry tries to educate consumers about the potency of marijuana-infused foods. But despite the warnings - including waiting for up to an hour to feel any effects - complaints by visitors and first-time users have been rampant.

Investigators believe Pongi, a native of the Republic of Congo, and three friends from Northwest College in Powell, Wyo., traveled to Colorado on spring break to try marijuana. At their hotel, the group of four friends followed the seller's instructions. But when Pongi felt nothing after about 30 minutes, he ate an entire cookie, police said. Within an hour, he began speaking erratically in French, shaking, screaming and throwing things around the hotel room. At one point he appeared to talk to a lamp....Pongi's friends tried to restrain him before he left the room and jumped to his death, police said.

One of his friends told investigators it may have been his first time using the drug - the only one toxicology tests found in his system. All three friends said they did not purchase or take any other drugs during their stay.

The marijuana concentration in Pongi's blood was 7.2 nanograms of active THC per milliliter of blood. Colorado law says juries can assume someone is driving while impaired if their blood contains more than 5 nanograms per milliliter.

In the days that followed the death of Pongi, Denver police confiscated the remaining cookies from the pot shop to test their levels of THC. The wrapper of the cookies bought by the students said each contained 65 mg of THC for 6 1/2 servings. Tests showed the cookies were within the required THC limits, police said. "The thing to realize is the THC that is present in edibles is a drug like any drug, and there's a spectrum of ways in which people respond," said Michael Kosnett, a medical toxicologist on the clinical faculty at the University of Colorado School of Medicine.

Holder is "cautiously optimistic" about legalization in Colorado and Washington

From the Huffington Post today, Attorney General Eric Holder makes some noteworthy commenst on marijuana legalization.  Holder said he was "cautiously optimistic" about the implementation of legalization in Colorado and Washington so far.  But, he noted, "we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."

Another interesting note, the article describes Holder's decision not to reschedule marijuana as a "political" one and quotes Holder as saying:

"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."

Though Holder's comments aren't much different from what the administration has said already, HuffPo's description of rescheduling as a "political" decision brings to mind the flexibility of the CSA.  The CSA purports to provide scientific criteria for classifying and regulating mind-altering substances.  But, as I've written  about elsewhere, the criteria are so open-ended that they don't do much to constrain administrative decision-making.  

Though I doubt Congress will take Holder up on the offer to work with the on rescheduling marijuana, if this issue does start to gain momentum in Washington, I hope that legislators will use the opportunity to rethink the CSA's classification scheme at a more fundamental level.  In its current incarnation, it is too malleable and incoherent to effectively guide administrators.    

Pat Oglesby's new paper: "The Ace in the Game: Revenue from Legalized Marijuana"

The title of this post is the title of Pat Oglesby's latest paper which, as always, is a must read for anyone who follows these issues.  The paper is part of the program for the upcoming International Society for the Study of Drug Policy conference in Rome (which looks fantastic and which I'm very sad I won't be able toattend.)

Ogleby's paper, available at his blog, serves as a great guide to a range of options and issues related to taxing marijuana.  Here is the abstract: 

After marijuana is legalized, the costs of producing and selling it will collapse. A windfall economic gain will be up for grabs. Policymakers might allow that gain to go to consumers (encouraging use) or to cannabusinesses (encouraging production). Or, through revenue measures, they might direct the gain to elsewhere, or to society as a whole. New revenue for government does not justify legalization of marijuana. New revenue may not cover the costs that legalization creates, and a revenue stream gives government a permanent stake in intoxication. Revenue is only one card in a large deck of drug policy options. But it is the most powerful card.

 

How to play it? The safest, correctable way to distribute an intoxicant is government monopoly, Uruguay style. Retail-only monopoly can match or beat bootleggers’ wares. But monopoly breeds cronyism and corruption, unless power is spread around and transparent. In the United States, states might need to tweak the monopoly model to keep state control over location and price while assigning sales concessions to businesses.

 

A riskier plan is taxed commercial distribution, Colorado and Washington style. In the inevitable price war, bootleggers will act in a New York minute; Legislatures will not. That is a handicap. And no tax is perfect. Taxing by THC potency is theoretically appealing, but unworkable. A price tax base has several pitfalls. Even a weight base is problematic.

 

Three other models are possible: auctioning licenses, collective farming, and sales by non- profits.

 

Since no one really knows how to legalize, flexibility to change course is of the utmost importance. 

420 Archive or The End of Marijuana Legalization History

The optimist in me is starting to think that someday the effort to legalize marijuana in the US will be a piece of [successful] history and a piece of history that should be preserved.

So, I was very happy to find out about the 420 Archive at the ASA [Americans for Safe Access] conference in DC lastweekend. The mission of the 420 Archive ,which is in the throes of becoming a 501(c)(3),is

 To research, collect and preserve for public enrichment the history, activism and culture of 20th and 21st century U. S. cannabis production and marijuana prohibition with an emphasis on California and the western United States.

The 420 Archive will seek out oral histories and documents related to this mission, help other organizations archive their collection and in 10 to 15 years or so hand over their collection to an institution that will maintain the material permanently and go out of business.

Oral histories from legal pioneers and legal materials should be part of this archive. But which legal pioneers? Keith Stroup from NORML is one of my nominations but what about the unknown public defenders and criminal defense attorneys who helped clients on possession charges?  California's Proposition 215 must be there but what will be the last legal document in the archive, the one just before "The End"? The fiftieth state's law allowing adult recreational use?  The federal law amending the Controlled Substances Act to remove marijuana from  Schedule I? 

What would you include in the 420 Archive? Looking forward to your comments. 

 

30 year sentence for a marijuana street dealer in Louisiana

Louisiana is home to some of the harshest drug sentencing laws in the country.  Another recent example is an appellate decision upholding a 30 year sentence for a street level marijuana dealer.  Granted, the defendant had five prior felonies.  But all of the priors except for one were drug offenses.  

The opinion (PDF) doesn't say exactly how much marijuana the defendant had, but it sounds like it was probably 9 nickle or dime bags:

On August 25, 2012, an off-duty police officer observed Price standing in front of a convenience store selling illegal drugs out of a trash can. Police arrived and detained Price. Thereafter, in the trash can, police found a brown paper bag containing nine plastic bags of marijuana and a small amount of cocaine. Price was arrested and charged with possession with intent to distribute marijuana and possession of cocaine. 

Price received 30 years on the marijuana conviction and a concurrent sentence of 5 years for cocaine possession.

On a related note, earlier this week I spoke on a drug policy panel in New Orleans hosted by the Tulane Law School chapter of the American Constitutional Society.  My co-panelists were all located in Louisiana--Stephen Singer (Loyola College of Law), Katherine Mattes (Tulane Law), and Anna VanCleave (Tulane Law).  It was eye opening to more about Louisiana's criminal justice system and the incentives that make reform there so much more difficult than in other states that might seem politically very similar (e.g., Texas).  I won't try to summarize their insights since I'm sure I wouldn't be able to do them justice.  Suffice it to say, I left the panel with the impression that we are likely to see lengthy drug sentences like the one Price received in Louisiana for some time to come.  On a brighter note, there are committed folks out there working hard for needed reform so all is not hopeless.

 

In Colorado, legalization of recreational marijuana sees an increase in sales of medical marijuana

Pat Oglesby reports on a surprising piece of data in Colorado.  Not only is medical marijuana outselling recreational marijuana, medical marijuana sales have (so far) increased under legalization:

In Colorado, recreational marijuana is making the news, but medical marijuana is dominating the market.  The state officially reports that in February, medical marijuana outsold newly legal recreational marijuana better than two to one.  And medical sales are growing more than twice as fast.

 

Taxes may explain the popularity of medical marijuana.  Medical marijuana bears only a 2.9 percent sales tax.  Recreational marijuana bears, along with that 2.9 percent sales tax, another 10-percent retail tax.  

 

...

 

Not only are sales of medical marijuana outpacing recreational sales, they are growing faster. Medical marijuana sales taxes in January were just $$31,500,655. February’s $35,247,448 in medical marijuana sales represents a 11.9 percent increase. Recreational sales grew by only 5.2 percent.  So the share of medical sales are growing faster than recreational sales — about 2.29 times as fast.

Given the different tax rates, it makes sense that Coloradans who had medical marijuana cards before legalization would continue to buy medical marijuana after legalization.  But why would legalizing recreational marijuana increase medical marijuana purchases?

After all, since getting a medical marijuana card in Colorado isn't all that difficult, we might imagine that most regular users (who account for the bulk of marijuana that is used) would have already had medical cards before legalization.  

My own guess (and it is entirely a guess) is that the increase in medical sales is likely being driven by the segment of regular users who had never gotten a card because it seemed like more trouble than it was worth (and/or they were worried that getting a card would put them on some sort of list that could become public.)  The sort of person I'm envisioning would have had a regular black market dealer and figured "why bother getting a card."  

After legalization, however, these folks started wandering into the newly established recreational stores for their purchases.  And when they did, they found two counters: the recreational counter and the medical counter, where the same products were much cheaper becuase of the tax difference.  Once they realized how much money they could save, getting a medical marijuana card suddenly seemed well worth the investment.  

Of course, my guess may be completely off-base.  It might turn out, for example, that the increase in medical marijuana sales is being driven primarily by existing medical marijuana consumers who've increased their consumption (e.g., a medical marijuana user who bought X grams/month before legalization, increasing their purchases to 2X grams/month after legalization.)  

In any event, if this trend continues, it is something that will be well worth studying closely.  

If it clearly cost thousands of innocent lives through heroin abuse, would most everyone oppose modern marijuana reforms?

I engendered an intriguing debate over research data, criminal drug reform and public safety concerns in my post at Sentencing Law & Policy last week titled "If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?".  I am hoping to engender a similar debate with the question in the title of this new post, which is my sincere inquiry, directed particularly to those most supportive of modern marijuana reform movements, as a follow-up to this notable new Washington Post article headlined "Tracing the U.S. heroin surge back south of the border as Mexican cannabis output falls."  Here are excerpts:

The surge of cheap heroin spreading in $4 hits across rural America can be traced back to the remote valleys of the northern Sierra Madre. With the wholesale price of marijuana falling — driven in part by decriminalization in sections of the United States — Mexican drug farmers are turning away from cannabis and filling their fields with opium poppies.

Mexican heroin is flooding north as U.S. authorities trying to contain an epidemic of prescription painkiller abuse have tightened controls on synthetic opiates such as hydrocodone and OxyContin. As the pills become more costly and difficult to obtain, Mexican trafficking organizations have found new markets for heroin in places such as Winchester, Va., and Brattleboro, Vt., where, until recently, needle use for narcotics was rare or unknown.

Farmers in the storied “Golden Triangle” region of Mexico’s Sinaloa state, which has produced the country’s most notorious gangsters and biggest marijuana harvests, say they are no longer planting the crop. Its wholesale price has collapsed in the past five years, from $100 per kilogram to less than $25. “It’s not worth it anymore,” said Rodrigo Silla, 50, a lifelong cannabis farmer who said he couldn’t remember the last time his family and others in their tiny hamlet gave up growing mota. “I wish the Americans would stop with this legalization.”

Growers from this area and as far afield as Central America are sowing their plots with opium poppies, and large-scale operations are turning up in places where authorities have never seen them....

The needle habit in the United States has made a strong comeback as heroin rushes into the country. Use of the drug in the United States increased 79 percent between 2007 and 2012, according to federal data, triggering a wave of overdose deaths and an “urgent and growing public health crisis,” Attorney General Eric H. Holder Jr. warned last month.

Although prescription painkillers remain more widely abused and account for far more fatal overdoses, heroin has been “moving all over the country and popping up in areas you didn’t see before,” said Carl Pike, a senior official in the Special Operations Division of the Drug Enforcement Administration.

With its low price and easy portability, heroin has reached beyond New York, Chicago and other places where it has long been available. Rural areas of New England, Appalachia and the Midwest are being hit especially hard, with cities such as Portland, Maine; St. Louis; and Oklahoma City struggling to cope with a new generation of addicts. Pike and other DEA officials say the spread is the result of a shrewd marketing strategy developed by Mexican traffickers. They have targeted areas with the worst prescription pill abuse, sending heroin pushers to “set up right outside the methadone clinics,” one DEA agent said.

Some new heroin users begin by snorting the drug. But like addicts of synthetic painkillers who go from swallowing the pills to crushing and snorting them, they eventually turn to intravenous injection of heroin for a more powerful high. By then, experts say, they have crossed a psychological threshold — overcoming the stigma of needle use. At the same time, they face diminishing satisfaction from prescription pills that can cost $80 each on the street and whose effects wear off after four to six hours. Those addicts are especially susceptible to high-grade heroin offered for as little as $4 a dose but with a narcotic payload that can top anything from a pharmacy.

Unlike marijuana, which cartel peons usually carry across the border in backpacks, heroin (like cocaine) is typically smuggled inside fake vehicle panels or concealed in shipments of legitimate commercial goods and is more difficult to detect. By the time it reaches northern U.S. cities, a kilo may be worth $60,000 to $80,000, prior to being diluted or “cut” with fillers such as lactose and powdered milk. The increased demand for heroin in the United States appears to be keeping wholesale prices high, even with abundant supply.

The Mexican mountain folk in hamlets such as this one do not think of themselves as drug producers. They also plant corn, beans and other subsistence crops but say they could never earn a living from their small food plots. And, increasingly, they’re unable to compete with U.S. marijuana growers. With cannabis legalized or allowed for medical use in 20 U.S. states and the District of Columbia, more and more of the American market is supplied with highly potent marijuana grown in American garages and converted warehouses — some licensed, others not.  Mexican trafficking groups have also set up vast outdoor plantations on public land, especially in California, contributing to the fall in marijuana prices.

“When you have a product losing value, you diversify, and that’s true of any farmer,” said David Shirk, a Mexico researcher at the University of California at San Diego. “The wave of opium poppies we’re seeing is at least partially driven by changes we’re making in marijuana drug policy.”

I find this article fascinating in part because it highlight one (or surely many dozen) serious unintended consequences of modern marijuana reforms in the United States. I also find it fascinating because, just as my prior post explored some possible public safety benefits of consumers switching from alcohol use to marijuana use, this article spotlights some possible public safety harms of producers switching from marijuana farming to opium farming.

Some recent related posts:

• If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?
• As heroin concerns grow, so do proposals to increase sentences
• "Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."
• Should the feds reallocate all drug war resources away from marijuana to heroin now?

Maryland set to decriminalize marijuana

The Maryland legislature has passed a law to decriminalize the possession of small amounts of marijuana (up to 10 grams or about 1/3 of an ounce.)  And Maryland's Governor, Martin O'Malley (whose marijuana politics I blogged about a few weeks ago), is set to sign it:

Possession of small amounts of marijuana will no longer be a crime in Maryland under a law passed Monday and sent to Gov. Martin O'Malley for his expected signature.

Adults caught with less than 10 grams of pot will get a citation that will be treated like traffic ticket and pay a fine, but they could no longer be sent to jail. O'Malley said he plans to sign the law, a reversal from views he held as he gained prominence as Baltimore's tough-on-crime mayor.

"As a young prosecutor, I once thought that decriminalizing the possession of marijuana might undermine the public will necessary to combat drug violence and improve public safety," O'Malley said in a statement. "I now think that decriminalizing possession of marijuana is an acknowledgment of the low priority that our courts, our prosecutors, our police, and the vast majority of citizens already attach to this transgression of public order and public health. Such an acknowledgment in law might even lead to a greater focus on far more serious threats to public safety and the lives of our citizens.”