Marijuana Law, Policy & Reform

"Why Republicans are slowly embracing marijuana"

The title of this post is the headline of this recent Los Angeles Times article, which includes these excerpts:

Marijuana is a political conundrum for the GOP, traditionally the stridently anti-drug, law and order party. More than half the voters in the country now live in states where medical marijuana is legal, in many cases as a result of ballot measures. The most recent poll by the Pew Research Center found most Americans think pot should be legal, a major shift from just a decade ago when voters opposed legalization by a 2-to-1 margin.

Most GOP stalwarts, of course, continue to rail against liberalization of the laws. Rep. Andy Harris of Maryland, a physician, declared during floor debate that medical marijuana is a sham. Real medicine, he said, “is not two joints a day, not a brownie here, a biscuit there. That is not modern medicine.”

But in a sign of how the times are changing, he found himself challenged by a colleague from his own caucus who is also a doctor. Rep. Paul Broun (R-Ga.) spoke passionately in favor of the bill. “It has very valid medical uses under direction of a doctor,” he said. “It is actually less dangerous than some narcotics prescribed by doctors all over the country.” Georgia is among the many states experimenting with medical marijuana. A state program there allows its limited use to treat children with severe epileptic seizures.

The rise of the tea party, meanwhile, has given an unforeseen boost to the legalization movement. Some of its more prominent members see the marijuana component of the War on Drugs as an overreach by the federal government, and a violation of the rights of more than two dozen states that have legalized cannabis or specific components of it for medical use.

Pro-marijuana groups have lately taken to boosting the campaigns of such Republicans, even those running against Democrats. A notable case is in the Sacramento region, where the Marijuana Policy Project recently announced it was endorsing Igor Birman, a tea partier seeking to knock out Democrat Ami Berra in a swing congressional district.

House votes to block the DOJ from spending money on medical marijuana investigations

Between grading exams and traveling last weekend, I haven't had the chance to post since last week.  Though I'm still playing catch-up on some items at work, I could not resist writing something up on last night's big marijuana law news: the House of Representatives passed an appropriations amendment that would ban the DOJ from spending money to interfere with state medical marijuana laws.

The vote is a true political game changer.  A majority of House members are now on record in opposition to federal interference with state medical marijuana laws.  As Tom Angell of Marijuana Majority put it in the HuffPo article linked above: "This historic vote shows just how quickly marijuana reform has become a mainstream issue."

Whether the amendment will take effect remains to be seen.  The Senate needs to pass its own criminal justice appropriations bill and then the two will need to be reconciled. 

If that happens, what exactly would the amendment do? 

The full text is here:

Offered By: Mr. Rohrabacher

    Amendment No. 25: At the end of the bill (before the short title), insert the following:

    Sec. __. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Legally, I'm not sure how much (if any) protection the amendment would actually provide.  Putting aside the question of how to ensure compliance with the restriction, the measure only stops the DOJ from using funds to "prevent" states from "implementing their own" medical marijuana laws.  It's far from clear that medical marijuana raids and prosecutions would be covered by this language.  After all, prosecuting a medical marijuana dispensary operator in San Diego doesn't mean that California has been directly prevented from implementing any of its state laws.  

But, in this case, I think getting lost in the legal language would be to miss the true impact of this development.  The amendment is not meant to change federal drug laws.  It is a signal (and a strong one) to the DEA and DOJ that Congress is unhappy about federal interference with state medical marijuana laws.  

As this recent article about corporate regulation discusses, "in a divided government where few bills are signed into law, the real action is the tug of war between Congress and the agencies that write rules and implement laws."  That observation doesn't exactly track this situation.  But I think the broader point applies. 

If this amendment survives the Senate and takes effect, federal prosecutors and DEA operatives will need to think long and hard before they bring another medical marijuana defendant into court or conduct another raid. 

Regardless of the technical language, I suspect the forces in Congress behind the amendment will not be very happy if the DOJ violates its spirit  And that means risking funding for the next year, getting yelled at in a Congressional hearing, etc.  Perhaps most of all, ignoring this signal would risk elevating the dispute to the point where Congress decides a spending restriction isn't enough and begins to more seriously explore the possibility of changing federal drug laws.  (Not to mention that the vote provides a great deal political cover--to the extent the Obama administration thinks it needs cover--for taking a hands-off approach when it comes to state medical marijuana laws.)

All this is to say that while the amendment might not necessarily provide a lot of legal protection if a medical marijuana defendant does end up in federal court, I think it would provide a great deal of practical insurance against that sort of thing continuing to happen. 

And, even if the amendment dies in the Senate, the fact that it passed the House is significant in its own right--both politically and as a warning signal to the DOJ.

Two other notes: First, this wasn't the only marijuana reform amendment to pass the House.  They also approved two amendments to restrict the use of funds to interfere with state Hemp research programs.

Last but not leas, I can't keep myself from congratulating the staff at Americans for Safe Access (on whose Board I serve) for all of their work to help make this happen.  To be sure, something like this doesn't happen without a number of different groups involved.  But ASA is the one organization dedicated to medical marijuana issues exclusively--groups like the Marijuana Policy Project focus on marijuana issues more broadly--and the vote is a huge win for ASA's constituency and its staff.  ASA's fantastic Executive Director, Steph Sherer, had this piece on HuffPo on the need for the amendment Wednesday.  Though the amendment has now passed, her article is still very much worth a read.

 

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

The Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

"Legalization Conflicts and Reliance Defenses"

The title of this post is the title of this notable new and timely paper by Mary Fan now available via SSRN.  Here is the abstract:

This article addresses an open question of pressing practical import – whether people and businesses operating in the shadow of a legalization conflict have a reliance defense.  A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime.  For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes and financial affairs around legalization laws and decrees.  If people take actions now in reliance, will they face sanctions later?  The question is of great import for many people and businesses, as well as the lawyers who advise them.

The article argues that reliance defenses should be available when governmental actors in charge of enforcing the criminal regime expressly acquiesce in the competing legalization.  In such cases, reliance is reasonable and estoppel is required lest people or businesses be lulled by the statements of actors charged with administering the law into a snare of sanctions.  Potential objections regarding privileging governmental lawlessness and the danger of giving people a normative choice of law that enables strategic gamesmanship are addressed.

Examining regulatory realities in Canada's new federal medical marijuana landscape

The front-page of the New York Times business section has this new lengthy article headlined "When Cannabis Goes Corporate." Here are excerpts:

Hershey stopped producing chocolate in Smiths Falls, Ontario, six years ago. The work went to Mexico, but the factory remains, along with reminders of the glory days: A sign that once directed school buses delivering children for tours.  A fading, theme-park-style entrance that marks what used to be the big attraction — a “Chocolate Shoppe” that sold about $4 million of broken candy and bulk bars a year.

The once ever-present sweet smell of chocolate is gone, too. In the high-ceilinged warehouse, where stacks of Hershey’s bars and Reese’s Peanut Butter Cups once awaited shipment, the nose now picks up a different odor: the woody, herbal aroma of 50,000 marijuana plants....

The new owner of this factory, at 1 Hershey Drive, is Tweed Marijuana.   It is one of about 20 companies officially licensed to grow medical marijuana in Canada.

A court ordered the government to make marijuana available for medicinal purposes in 2000, but the first system for doing so created havoc.  The government sold directly to approved consumers, but individuals were also permitted to grow for their own purposes or to turn over their growing to small operations.  The free-for-all approach prompted a flood of complaints from police and local governments.

So the Canadian government decided to create an extensive, heavily regulated system for growing and selling marijuana.  The new rules allow users with prescriptions to buy only from one of the approved, large-scale, profit-seeking producers like Tweed, a move intended to shut down the thousands of informal growing operations scattered across the country.

The requirements, which went into effect in April, are giving rise to what many are betting will be a lucrative new industry of legitimate producers. The government, which will collect taxes on the sales, estimates that the business could generate more than 3.1 billion Canadian dollars a year in sales within the next decade. “It’s just so rare that you have an industry that’s growing but which has a huge established market,” said Chuck Rifici, Tweed’s chief executive....

Canada’s across-the-board law ... provides a cohesive set of regulations, laying the groundwork for a group of companies to set up operations. “That was really important for us as investors,” said Brendan Kennedy, chief executive of Privateer Holdings, a marijuana private equity fund based in Seattle that started Tilray, one of Canada’s new legal growers. “People talk about the Colorado model; people talk about the Washington model. I think someday they’ll talk about the Canada model. By creating a tightly regulated federal system, by creating a federal license, by making it difficult to navigate in and capital-intensive, Canada has attracted a different kind of player into this industry.”...

[B]efore they could even submit applications, Tweed and other growers had to secure sites for their operations and obtain all local permissions. Applicants who passed the initial vetting then had to pass a final, two-day inspection. The requirements are significant. Growers must have sophisticated carbon filtration systems to prevent the smell of marijuana from wafting outside. They must maintain high-security measures like biometric thumbprint readers. Employees need to pass rigorous security checks, conducted by the Royal Canadian Mounted Police, which take four to six months. “If I knew how much regulatory overhead there would be from the beginning, I would have probably been just as excited about the industry,” Mr. Rifici said. “But I might have thought that I might not be able to get there....

Tweed is taking a subdued, almost artisanal, approach to its branding, avoiding the Cheech-and-Chong vibe of some rivals. Many of its marijuana strains are named after fusty fabrics like tweed, as well as people and places associated with such clothes. The Herringbone strain is supposed to help with depression. Bakerstreet is used to treat anxiety. Donegal is promoted as a pain reliever.

But the industry faces an uphill battle, as prominent doctors, researchers and even the Canadian Medical Association are advising against prescribing marijuana at all. Marijuana, they say, has not been through the testing and approval process required for other pharmaceuticals.

Dr. Mary-Ann Fitzcharles, a rheumatologist and professor of medicine at McGill University in Montreal, was the lead author of a widely publicized paper recommending that, without clinical evidence, marijuana should not be prescribed for rheumatoid arthritis. About 65 percent of users in Canada under the old system said they suffered from that condition. She compares the medical claims for marijuana to those once made for tobacco....

When Tweed shipped its first two orders directly to customers on May 5, about half of the company’s management watched, partly for ceremonial reasons but mostly to make sure that its elaborate, government-mandated inventory-tracking system worked. Employees weighed the total inventory before doling out the shipments onto smaller scales calibrated to 0.01 gram. The marijuana was dropped into boxes bearing Tweed’s logo and then, to meet government requirements, vacuum-packed into odor-blocking bags. Then came a final check on the scales before the two parcels left in standard courier pouches that did not bear Tweed’s name.

Brookings discovers "professional businesses that are innovative and scientific" in Colorado

I am pleased to learn from this new post on the Brookings Institution's blog that folks at this prestigious think tank "will be researching the new marijuana industry, not as advocates, but as social scientists, interested in how our federal system comes to terms with statewide decisions to legalize a substance that is illegal in the rest of the country, and how states implement those policy changes." And this new post authored by John Hudak, headlined "Dispatch from Colorado: The Interesting Case of Marijuana Entrepreneurs," already provides an interesting and exciting perspective on what the folks at Brookings are discovering as their research begins. Here are snippets: 

I spent last week in the Greater Denver area researching implementation of legalized cannabis. In the process, I found a remarkable situation: a robust entrepreneurialism around an industry that elsewhere lives in the shadows of society....

Regardless of one’s personal feelings on the issue, Colorado has determined (and within bounds, the federal government has allowed) the construction of a legal, recreational, and highly regulated market by which consumers can purchase a vast array of cannabis products. And business is booming....

The legal market in Colorado, from professional grow operations to medical dispensaries to recreational dispensaries, looks nothing like street corner drug operation. These are professional businesses that are innovative and scientific. They bring black market lessons to the new, white market, while using tools of agriculture, engineering, science, manufacturing, and business to advance an industrial effort.

Businesses function in a market — though highly regulated — competing with each other to produce the best product in the highest demand. Surely there are members of the industry — like in any industry — who try to skirt the rules or operate outside of the regulatory structures. However, my interaction with businesses involved talking with executives, operators, and employees who embodied professionalism and care for their craft. They reminded me at every turn that they were quite aware that playing by the rules was a necessary condition to avoid the ever-possible federal intervention. At the same time, they showed pride in their efforts, just as a brewmaster would at a microbrewery or a vintner at a winery.

And the operations were just as scientific. For example, at the grow operation I toured, I was led through a series of rooms, engineered specifically for the growing of cannabis. The process involved water purification, testing pH levels, temperature, and conductivity. There was a genetics room where employees ensure a strain of marijuana is consistent in each subsequent plant of that strain. Lights (as it was an indoor grow) were metered, colored properly for the correct stages of growth, measured the proper distance from plants, and were shut off for the necessary periods of time each day. Feeding and watering were timed and measured, and every plant pinned with the state-required seed-to-sale tracking system identifier tags. While in some ways similar to a greenhouse where one would buy roses or petunias, this space looked nothing like the neighborhood florist’s supply space. It was a warehouse filled with advanced agro-science and manufacturing.

In addition, my visits to dispensaries and a grow operation offered a peek into the emerging labor market within the industry: it employs demographic groups hit hardest by the recent recession. Most employees were young (appearing 30 or under). There were numerous females and individuals of color. Though I lack systematic industry employment data and cannot make broad claims about employment trends, my conversations with those who know the industry best suggested that those observations were more than just anecdotes and reflect real trends among cannabis businesses.

Is the industry perfect? No. Does it need regulatory and legislative solutions to operate in a more effective, safe, and consistent way? Absolutely. I will address these topics in a paper to be released in the coming months.

However, a deep look into Colorado’s industry shows a professionalized marketplace that contrasts starkly with caricatures or stereotypes about marijuana growers and sellers. In Colorado, the marijuana seller may not look or dress the same as the woman selling pharmaceuticals or the man selling insurance, but they’re driven by similar entrepreneurial energy and a willingness to play by the rules in a regulated marketplace. The emergence of that marketplace, the ability of the state to respond to the unprecedented and unique challenges it will present, and its adaptation to the broader federal system will be the topics of more research.

I am especially eager to see this report focus on the "emerging labor market" within the marijuana industry. I have long suspected and have been hoping that the labor force dynamics that can surround a legalized marijuana industry, especially if it is regulated in a manner that encourages job creation, could be very beneficial for many under-employed populations. I hope the folks at Brookings give particular attention to this issue in its coming research, in part because I have not seen any significant coverage of labor issues in other work to date in this field.

New Mexico Appeals Court holds medical marijuana expenses covered under state Workers' Comp law

 On Monday, a New Mexico appeals court upheld an order requiring an employer (and its insurance company) to pay for an employee's medical marijuana.  The decision involves a worker who was seriously injured on the job.  The employer did not dispute the employee's eligiblity for worker's compensation generally, but objected to coverage of medical marijuana.  In what, to my knowledge, is a first, the court held that medical marijuana is covered under the New Mexico Workers' Compensation Act.  

Here's an overview of the case, from the opinion's introduction (PDF):

We consider in this appeal whether, under the Workers' Compensation Act (theAct), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), an employer and insurer must reimburse an injured worker for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26-2B-1 to -7 (2007). The workers' compensation judge (WCJ) found that Worker Gregory Vialpando was qualified to participate in the State of New Mexico Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. The WCJ ordered Worker to pay for medical marijuana through the program and Employer and Insurer Ben's Automotive Services and Redwood Fire & Casualty (collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the WCJ erred because his order is illegal and unenforceable under federal law and also thereby contrary to public policy, and (2) the Act and regulations promulgated pursuant thereto do not recognize reimbursement for medical marijuana. Because we agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we affirm.

The outcome is a bit of a surprise since it seems the employer is being ordered to commit a federal crime.  The court's discussion on that point is perhaps the most interesting part of the opinion (though the whole thing is worth a read for those who follow marijuana law.)  It seems that sloppy lawyering on the part of the employer/insurer may have played a role in the outcome.  Though the employer raised the preemption issue generally, it apparently failed to cite to a specific federal statute it would be violating by paying for its employee's marijuana.  

Employer does not attempt to challenge the legality of the Compassionate Use Act. Instead, Employer asserts that, because marijuana remains a controlled substance under federal law, the order to reimburse Worker for money spent purchasing a course of medical marijuana “essentially requires” Employer to commit a federal crime. However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).

Also of note, the court's discussion of whether requiring an employer to pay for medical marijuana is at-odds with federal public policy:

Employer also argues that the order should be reversed because it is contrary to federal public policy as reflected in the CSA and Gonzales. Worker contends that federal public policy supports medical marijuana because the Department of Justice has announced a somewhat deferential enforcement policy. Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes. On one hand, the Department of Justice affirmed that marijuana remains illegal under the CSA and that federal prosecutors will continue to aggressively enforce the statute. But, on the other hand, and in the same documents, the Department of Justice identified eight areas of enforcement priority and indicated that outside of those priorities it would generally defer to state and local authorities. In addition, the Department of Justice stated that it informed the Governors of Washington and Colorado, two states that voted to legalize possession of marijuana and regulate its production and distribution, that it would defer its right to challenge those laws. We also observe that New Mexico public policy is clear. Our State Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” Section 26-2B-2. We decline to reverse the order on the basis of federal law or public policy. 

I'm not sure how much precedential value the opinion has.  If the employer's attorneys were more thorough, I don't think they would have had much trouble pointing to a federal statute that they would be forced to violate by paying for marijuana (21 USC 844, as an accomplice, comes to mind.)  But, because the employer didn't highlight a specific statute, the Court of Appeal was able to side-step the issue.  I suspect attorneys for employers/insurers in future cases will be careful not to make this same mistake.    

No Federal Water in Colorado and Washington for Marijuana Cultivation

Just when I/you thought progress was being made, "Feds won't allow water for pot growers" is the headline of the  story just released by McClatchy DC.

The US Bureau of Reclamation "delivers water to more than 31 million people and one out of every five Western farmers."  The agency announced today that Washington and Colorado marijuana growers cannot use its water for cultivation of marijuana  because of the agency's responsibility to be "consistent with the Controlled Substances Act."  The story states that "the decision could hit particularly hard in Washington state" because the US Bureau " controls the water supply for two-thirds of Washington state's irrigated land."  The US DOJ will decide how to handle violators.

As Tom Angell of Marijuana Majority.  stated in an earlier Huff Post story on the water ban, "this water issue highlights the urgent need to actually change federal law."  

NOTE: Could someone let me know the legal  authority for the Bureau's decision? Thanks!

"Could This Be the Year for a House Reversal on Medical Marijuana?"

The title of this post is the headline of this intriguing article from Roll Call.  Here are excerpts:

The last time Rep. Dana Rohrabacher offered an amendment on the House floor to protect states rights when it came to legalization of medical marijuana, it was defeated 163–262. Since that vote in 2012, four states — Illinois, Massachusetts, New Hampshire and Maryland — passed laws or regulations allowing for the use of medical marijuana, bringing the total to 21 states and the District of Columbia.

Now, supporters of medical marijuana anticipate the strongest vote yet on a states-rights amendment when the fiscal 2015 Commerce-Justice-Science appropriations measure (HR 4660) comes to the House floor in a few weeks, while lawmakers are weighing offering additional marijuana provisions on appropriations measures. Most, but not all, of the proposals lawmakers are considering bringing up are aimed at protecting state laws and programs on medical marijuana use.

The chief provision, which will be offered as an amendment to the appropriations bill funding the Commerce and Justice departments, would prohibit the federal government from prosecuting medical marijuana users and providers who are abiding by their state’s law. The House has voted on similar proposals six times since 2003, with about 150 to 160 members supporting it each time. But advocates expect that more lawmakers than ever will support the bipartisan proposal this year, which will likely be introduced by two California lawmakers, Rohrabacher, who is a Republican, and Democrat Sam Farr. Boosters expect to win new backers this year because of the increasingly high poll numbers supporting legalization....

That increasing support may lead lawmakers to hold additional marijuana policy votes on other appropriations bills. Rep. Ed Perlmutter, D-Colo., may consider offering an amendment to the Financial Services appropriations measure that would help marijuana businesses get access to banking by updating federal rules, according to his office. An aide for Colorado Democrat Jared Polis said he also may offer marijuana policy amendments, although he has not made a decision yet....

The backers of the Rohrabacher amendment are an unusual group of social liberals and conservatives who see legalization as a states’ rights issue. Lawmakers including Blumenauer, Michigan Republican Justin Amash and Texas Republican Steve Stockman have voted for it in the past.

Georgia Republican Paul Broun, a physician who supports the amendment, said in a statement that the provision makes sense “from both a medical perspective and a Constitutional perspective.” He added, “This amendment would ensure that medical marijuana patients adhering to their state’s laws would not be punished by an overreaching federal government.”

Minnesota about to become 22nd state to legalize medical marijuana

As reported in this local article, headlined "Medical marijuana on verge of Minn. law; it will be strictest in U.S.," the Land of 10,000 Lakes seems poised to join the collection of states to have legalized medical marijuana.  Here are the basic details:

Thousands of Minnesotans with cancer, HIV/AIDS, epilepsy and other conditions would be able to legally treat their symptoms with marijuana under a legislative deal struck Thursday.  The proposal will make Minnesota the 22nd U.S. state to grant some legal level of access to the drug for medicinal purposes, but also will be the most restrictive marijuana law in the country.  Minnesota will be the only medical marijuana state that would forbid smoking as a form of treatment and that would bar access to the drug in plant form.

Gov. Mark Dayton, who opposed legalization of medical marijuana for much of the session, pledged to sign the bill into law.  Under the compromise negotiated between the House and Senate, an estimated 5,000 patients could begin using the drug by July 1, 2015, picking up their supply at any one of eight distribution sites across the state....

To obtain the drug, patients will need to be certified as eligible by a doctor, physician assistant or advanced practice nurse.  They will get the drug in liquid, pill or by vaporized delivery method.  The state Department of Health will oversee manufacture of the drug at two sites and set up a distribution center in each of the state’s congressional districts....

The Minnesota Medical Association released a statement that stopped short of support, saying only that it would not oppose the bill.  “It may be the narrowest interpretation of medical marijuana in the country,” said Dr. Dave Thorson, the group’s board chairman.

The full list of conditions eligible for access to the drug are: Cancer associated with severe or chronic pain, nausea or severe vomiting, or severe wasting; glaucoma; HIV/AIDS; Tourette’s syndrome; ALS (Lou Gehrig’s disease); seizure-inducing epilepsy; severe and persistent muscle spasms brought on by multiple sclerosis; Crohn’s disease, and terminal illness with a life expectancy of less than a year or that causes severe pain, nausea, severe vomiting or wasting.  Left out of that equation are a wider group of chronic pain sufferers, as well as people diagnosed with post-traumatic stress disorder....

In a statement to the press, Dayton praised the efforts of the group of parents of ill children who want to treat their kids’ seizures with marijuana-based compounds. Earlier in the legislative session, Dayton angered many of those same parents with his firm insistence that law enforcement groups sign off on any medical marijuana law.... Dayton said Thursday his administration “will do everything possible to implement it as swiftly and successfully as is possible.”

New study on marijuana and driving in Colorado

Following up on yesterday's post about driving and marijuana legalization, the Cannabist reports that a new study has been released showing an increase in the number of Coloradans in fatal car crashes that tested positive for marijuana.  The study focused on the period from 2009-2011, when Colorado's commercial medical marijuana market came into being.  It does not include post-legalization data.  

Like other studies on marijuana and car fatalities, the study's tests cannot determine whether the drivers were actually impaired or whether they had smoked marijuana at some earlier date.  As a result, we don't know whether the positive tests are simply the result of increased use or indicative or an increase in impaired driving.  

Adding to the complexity, the story notes that traffic fatalities in Colorado decreased overall during the relevant time period.  If there had been a significant rise in marijuana-impaired drivers on the road (as opposed to a rise in people testing positive because of a general increase in use), we might imagine that it would have resulted in an overall increase in traffic fatilities.  Of course, it could be that marijuana impaired driving led to an increase in fatalities but that the increases were more than offset by other developments (e.g., innovations in car safety, effectiveness at deterring other forms of reckless driving, etc.). 

In any event, it will be interesting to see if any future studies are able to tease out whether (and to what extent) legalization is resulting in more marijuana impaired driving.  Here's the beginning of the Cannabist story:

One study shows that more drivers involved in fatal car accidents in Colorado are testing positive for marijuana — and that Colorado has a higher percentage of such drivers testing positive for marijuana than other states even when controlled for several variables. But the data the researchers use do not reveal whether those drivers were impaired at the time of the crash or whether they were at fault.

 

“[T]he primary result of this study may simply reflect a general increase in marijuana use during this … time period in Colorado,” the study’s authors write.

New Congressional effort underway to make it easier to research medical marijuana

Via Mike Liszewski at Americans for Safe Access (disclosure: I currently serve on ASA's Board) comes word of a new Congressional effort to remove a barrier to marijuana research.  In addition to all of the standard research restrictions restrictions for Schedule I substances, marijuana is subject to an additional Public Health Service review that has stalled some medical marijuana research efforts.  A group of Representatives is calling for the PHS review to be eliminated.  

Here's the story from ASA:

A bipartisan group of Members of Congress have drafted a letter seeking that the Secretary of Health and Human Services (HHS) remove a federal barrier to medical marijuana research that no other Schedule I substance is subjected to.

 

Representatives Earl Blumenauer (D-OR), Morgan Griffith (R-VA), Jan Schakowsky (D-IL), and Dana Rohrabacher, (R-CA) are currently seeking additional cosigners to the letter, which seeks to lift the current Public Health Service (PHS) review process that has preventing potentially groundbreaking medical marijuana research from taking place in the United States.

 

Established in May 1999, the PHS review process was the federal government's response to the 1998 Institute of Medicine report that called for more in depth scientific research to understand the medical value of marijuana. While the plain language of the PHS review protocol says that it is, "intended to facilitate the research needed to evaluate these pending public health questions by making research-grade marijuana available for well-designed studies," the review process has largely served to thwart research rather than facilitate it.

Drugged driving is a real concern, but it has little to do with marijuana legalization

Yesterday, Westword reported on the results of a weekend DUI checkpoint in Colorado.  The police caught 21 people driving under the influence of alcohol and none driving while high (or on other drugs.)  The cops did make one marijuana possession arrest, however: a minor in possession.  

Since these figures are from a single checkpoint, they can't be more broadly extrapolated; they qualify as anecdotal. But in this case, alcohol arrests led marijuana busts 21 to one -- and the single exception involved underage possession, not driving under the influence of cannabis.

As Westword notes, data from a single checkpoint means very little.  But it did get me to thinking more about the connection between marijuana legalization and driving under the influence.  

It's always struck me as a bit odd that anytime a marijuana legalization law is proposed, driving under the influence is one of the first areas of concern.  This isn't because I think people should be driving while high.  Far from it.  

What is odd to me about the connection is that it seems to imply that drug imparied driving isn't a big problem already.  And I'm not just talking about marijuana.  I'm talking about all drugs.  

Breathalyzers test for only one mind-altering substance: alcohol.  But Americans use a range of other substances--legal and illegal--that could impair driving.  From prescription medications to cocaine to marijuana.  

Regardless of whether marijuana is legalized, we should be thinking a lot more about how to prevent impaired driving.  We should make sure more officers are trained in conducting road-side testing for impairment (which is currently the only way to catch people who are driving while high on anything other than alcohol.)  We should be putting more research dollars into developing impairment testing devices for prescription drugs, marijuana, etc.  

It shouldn't take a marijuana legalization ballot measure to get people concerned about drug impaired driving.  

The other thing I find odd about this part of the legalization debate is that it seems to assume legalization will result in a dramatic increase in marijuana-impaired driving.  I'm not so sure that legalization is likely to lead to much of an increase in stoned driving, however.  At least not the way it is currently being implemented.  

One of the reasons we have so many DUIs is that alcohol is so often consumed outside the home, in settings like sporting events, restaurants, family gatherings, etc.  We allow alcohol to be sold and publicly consumed in places that we know many people are driving to and from.  

By contrast, Colorado doesn't license "marijuana bars."  Users buy their marijuana to go.  

So, even if marijuana legalization significantly increases the total amount of marijuana use (something that itself remains to be seen), that doesn't mean driving while high will necessarily increase at the same rate.  If most new use incidents occur in the user's home--e.g., a person smoking a joint after work at home--then increases in use may not result in much of an increase in stoned driving at all.  

If states were to start licensing marijuana bars or selling marijuana at suburban sports stadiums, then it would be a different story.  But so long as marijuana is being sold exclusively on a "to go" basis, I'm not sure that legalization will result in noticeable increases in impaired driving.

Again, this doesn't mean stoned driving isn't an issue of concern.  I think we should all be more concerned about the dangers of impaired driving (including alcohol, an area where we can certainly still do far more than we are doing.)  But it shouldn't take a proposal to legalize marijuana to put drug impaired driving on the public policy agenda.

Dr. Mehmet Oz joins group of high-profile docs expressing support for medical marijuana

As reported in this recent Huffington Post piece, headlined "Dr. Oz Backs Medical Marijuana, Says It's 'Hugely Beneficial'," another prominent medical professional is expressing support for medical marijuana. Here are the details:

Medical marijuana just got another celebrity doctor's public support. During an interview Monday with Dr. Mehmet Oz on "Larry King Live", King asked Oz if he'd changed his views on marijuana.

"I have," Oz responded, and went on to explain just how far he's come from his early beliefs about the plant. "I grew up like most of my generation believing that marijuana was something Satan was throwing at Americans, a communist plot. But I think most of us have come around to the believe that marijuana is hugely beneficial when used correctly for medicinal purposes," Oz said.

Oz joins the ranks of other TV medical experts who have come out in support of medical marijuana in recent years, including CNN's chief medical correspondent Dr. Sanjay Gupta, who recently "doubled down" on his support, and ABC News' chief health and medical editor Dr. Richard Besser....

Oz -- who in addition to hosting his own show is a cardiothoracic surgeon, author, and teaching professor at Columbia University -- stopped short of supporting recreational marijuana, citing use by children as a main concern. "We pervert its use at times," Oz added. "I don't think it should be widely used, certainly by kids, because that creates a dependence that is unhealthy in any setting. But it absolutely should be widely available in America [for medical use]."

More on the NFL's marijuana testing plans

Mike Florio at ProFootballTalk has an interesting take on the news that the NFL is thinking of scaling back the punishment for players who test positive for marijuana.  Florio sees the news as a ploy to try and get the Players Association to strick a deal on HGH testing.  Perhaps most interesting, he argues that the players should use their leverage on HGH testing to demand the elimination of marijuana testing altogether:

Given that Commissioner Roger Goodell made a public push last week to finalize HGH testing, it’s not a stretch to believe that the source who leaked this new information about marijuana testing and discipline to ESPN.com wants the players to know that, if they merely agree to let Commissioner Goodell handle appeals of violations of the performance-enhancing drug policy that arise from something other than a positive test, marijuana will suddenly become less of a problem for players.

 

And if enough players figure this out and begin pushing the NFLPA to take that deal, the impasse regarding HGH testing may finally be broken.

 

It’s the right idea by the NFL, but it doesn’t go far enough.  Why not simply abandon marijuana testing, and punish only those players who are arrested and convicted of a marijuana-related violation?  It’s not a performance-enhancing substance (otherwise, it would fall under the steroids policy).  Why does the NFL continue to feel compelled to regulate what a player does on his own time away from work — and why does the NFLPA continue to let it happen?

 

Maybe the NFL wants HGH testing badly enough to drop the general ban on marijuana.  Because marijuana use does nothing to undermine the integrity of the game but HGH does, it should be a no-brainer.

NFL reportedly plans to decrease punishments for marijuana use

Via ESPN, the NFL may be getting ready to decrease penalties for players who test positive for marijuana while also increasing the threshold for triggering a positive test:

It would be too late to help Josh Gordon, Will Hill or anyone else in danger of lengthy suspensions for violations of current rules. But when and if the NFL's new drug policy is finalized and announced, it will include changes specific to marijuana and other drugs of abuse.

A source told ESPN.com on Tuesday that the renegotiation of the drug policy, which has been going on since 2011 and includes testing for HGH, also will significantly increase the threshold for a positive marijuana test and reduce the punishments for violations involving that drug.

As alluded to in the article, the news comes just a few days after it was reported that Brown's receiver Josh Gordon is facing a year-long suspension for marijuana use.  (The Josh Gordon story generated an interesting discussion of marijuana use and the NFL on Pardon the Interruption yesterday (the segment begins at 11 minutes 30 seconds into the linked clip.)) 

On a related note, some readers may remember news coverage a few months ago of NFL players who use marijuana for pain relief, preferring it to more addictive pain killers.  Though the league's new policy would not directly address the medical use of marijuana among players, it may be a nod to that trend.  It will be interesting to see more about the policy--particularly what threshold the NFL sets for a positive test--if/when the details are released.

Louisiana appeals court overturns life sentence for marijuana possession (though the defendant still faces a minimum 20-year sentence on remand)

Louisiana may be one of the harshest states when it comes to marijuana sentencing, but a recent case indicates there may be some limits even there.  

Last week, a state appeals court overturned a life sentence for marijuana possession as excessive under state law.  (The defendant's excessiveness argument arose under Louisiana law; he did not make an Eighth Amendment argument.)  As a habitual felon, the defendant's marijuana possession conviction subjected him to a sentencing range of twenty years to life.  Though the court of appeals struck down the life sentence, the defendant still faces a minimum of twenty years for his marijuana conviction (and may very well receive a much longer sentence on remand.)  

Here is the heart of the court's decision (PDF):

While Defendant is a fifth-felony offender for sentencing purposes, and the trial court had discretion to impose a sentence between twenty years and life imprisonment, imposition of the maximum penalty within the sentencing range is excessive and disproportionate given the specific facts of this case. Defendant’s remaining conviction, possession of marijuana, second offense, is a relatively minor felony and only carries a penalty of a fine “not less than two hundred fifty dollars, nor more than two thousand dollars, [or imprisonment] with or without hard labor for not more than five years, or both.” La.R.S. 40:966(E)(2)(a). Furthermore, most of Defendant’s past crimes involved non-violent, drug-related offenses. While he was convicted of aggravated second degree battery when incarcerated as well as attempted possession of a firearm by a convicted felon, these isolated incidents do not indicate an extensive predisposition to violence, and the violent or non-violent nature of these past crimes alone cannot be the deciding factor in an excessive-sentence determination. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672.

 

The imposition of a life sentence for such a small underlying crime also poses a much greater harm than good for society, as such a sentence will only fuel Louisiana’s incarceration epidemic and lead to unnecessary economic and social burdens on inmates and taxpayers alike. See State v. Jackson, 11-923 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243, writ denied, 12-1540 (La. 1/18/13), 107 So.3d 626 (Thibodeaux, J., dissenting). While sentence enhancement deters recidivist tendencies and encourages rehabilitation, these goals become tarnished when offenses deserving of a mere slap on the wrist are instead subjected to a “lock-em-up and throw away the key” philosophy. If the applicable enhancement statute provides a range of sentences for the trial court to consider, then the maximum sentence of life without parole should not be levied unless carefully articulated findings and reasons for sentencing clearly justify its imposition. 

North Dakota Supreme Court rejects the use of an out-of-state medical marijuana recommendation as a defense

North Dakota does not have a medical marijuana law (at least, not yet).  But can someone with a medical marijuana recommendation from another state rely on that recommendation as a defense in North Dakota?

The North Dakota Supreme Court addressed the issue last week, holding that out-of-state medical marijuana recommendations are no defense to prosecutions in North Dakota.  

Perhaps more interesting, the Court also considered whether evidence of an out-of-state recommendation can be introduced for the  limited purpose of determining whether a defendant intended to distribute the marijuana she possessed.  In other words, could a defendant charged with possession of marijuana with the intent to distribute argue that her out-of-state recommendation is evidence that she possessed marijuana for her own use rather than to sell it?    

The Court did answer this second question directly because of the procedural posture of the case (the defendants were appealing from a conditional guilty plea).  The Court's decision seems to suggest, however, that a defendant with an out-of-state medical marijuana recommendation might be able to introduce evidence of it for purposes of determining whether she is guilty of possession with an intent to distribute or only of simple possession. 

The most relevant portions of the Court's opinion follow:

Larson and Kuruc argue the district court abused its discretion by refusing to admit their respective medical marijuana prescriptions from the State of Washington as a lawful defense under North Dakota's Uniform Controlled Substances Act. The district court denied Larson and Kuruc's motions in limine to include the prescriptions as a defense.

 

Larson and Kuruc argue the possession of a controlled substance pursuant to a prescription or order is a valid defense. Under Washington law, their prescriptions allow each party to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants. The prescriptions were issued by a licensed neuropathic doctor in Washington. Larson and Kuruc seek to use the prescriptions to contend they were in lawful possession and as a defense against the charge of possession with intent to deliver.

 

North Dakota's Uniform Controlled Substances Act contains a prescription exception that allows a person to possess a controlled substance if "the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice . . . ." N.D.C.C. § 19-03.1-23(7). Under the exception, this Court has stated, "A defendant may not be charged with possession of a controlled substance if he has 'a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice.'"

 

A "valid prescription" is defined as "a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a: (1) Practitioner who has conducted at least one in-person medical evaluation of the patient; or (2) Covering practitioner." N.D.C.C. § 19-03.1-22.4(1)(e); see alsoN.D.C.C. § 19-02.1-15.1(1)(f). A "practitioner" is defined as a "person licensed, registered, or otherwise permitted by the jurisdiction in which the individual is practicing to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research." N.D.C.C. § 19-03.1-01(25)(a).

 

Construing the Uniform Controlled Substances Act as a whole, and harmonizing the prescription exception with the schedule I language, we conclude the plain language of the act does not provide for a medical marijuana prescription defense. Under the authority of N.D.C.C. § 19-03.1-02, the North Dakota Board of Pharmacy has determined that marijuana has a high potential for abuse, and no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision; this determination had been codified by the legislature. N.D.C.C. § 19-03.1-04. In this context, it does not logically follow that there could be a valid prescription for a substance that has no medical use or lacks accepted safety. We do not believe the legislature enacted the Uniform Controlled Substances Act to put North Dakota in the perplexing position where it must recognize out-of-state marijuana prescriptions even though the same exact prescription cannot be made legal for its own citizens.

 

Larson and Kuruc also argue that their medical marijuana prescriptions can be used as a defense to negate the government's claim that the amount of marijuana possessed evidenced an "intent to deliver." According to the arrest synopsis, Larson and Kuruc were arrested with approximately 12.8 ounces of marijuana. Their respective prescriptions allowed them each to possess up to twenty-four ounces of usable cannabis and up to fifteen cannabis plants in Washington. The district court determined that the jury "will not be instructed a prescription from the State of Washington is a valid defense to either possession with intent to deliver or simple possession. Whether the same evidence may be admissible for some other purpose is a different question, which will be considered as future developments warrant."

 

Rule 11(a)(2), N.D.R.Crim.P., states "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion." Here, the court left open whether the prescription could be used for some other purpose. We surmise "some other purpose" for allowing the prescription into evidence could be a factual defense to show an amount of marijuana intended for personal use and not for distribution. Although the lower court did not make an affirmative ruling, there is no indication that the court would have prohibited Larson and Kuruc from arguing to the fact-finder that the amount was commensurate with a prescribed personal use and not indicative of an intent to deliver.

 

"College Students Working In The Marijuana Industry"

The title of this post is the title of this interesting new 14-page report produced by the Humboldt Institute for Interdisciplinary Marijuana Research.  Here is an excerpt from the close of the report following the discussion of the major findings from a relatively small student survey in California:

In sum, these results reveal that students who report marijuana related employment generally provide manual labor in the form of trimming — rather than ownership and operation — for the local marijuana economy. Compared to non­-marijuana-­related work, marijuana employment for our student respondents is harder to obtain and earns less annually.  Given that no prior research has sought to determine the extent and nature of college student employment in the marijuana industry, there is no baseline against which these results can be compared. Future research will 13 expand the sampling design to target college students on other CSU campuses.

Some prior related posts:

• "Current Trends and Job Creation in the Medical Marijuana Business"
• Great jobs for green lawyers in the new green ganja legal world(?)
• Great state government summer job for teens(?): trying to buy pot illegally in Washington

• Is anyone tracking closely and rigorously job creation (and related tax revenue) from marijuana reform?

"Must apartment manager let tenant smoke medical marijuana?"

The title of this post is the headline of this interesting Q&A from the Los Angeles Times highlighting an intriguing landlord-tenant law question, variations of which seems likely to arise in lots and lots of settings in lots of different locales.  Here is how the discussion unfolds in this article:

Question: I manage an apartment complex and have a tenant, "James," who smokes marijuana inside his apartment and out on the balcony. Many of the other tenants in the complex complain about the marijuana smoke, including the mother of a boy with asthma. James says he has a medical marijuana card for chronic pain, and I believe him. Under the fair housing laws, do I have to let him smoke on the balcony or inside his apartment?

Answer: No, you do not have to let James smoke on the balcony or even in his apartment, even though James is disabled and even though it is legal to smoke marijuana under California law with a medical marijuana card.

Under the federal Fair Housing Act, housing providers are ordinarily obligated to provide reasonable accommodations for tenants with disabilities to ensure that they have the full use and enjoyment of their homes. So one might think that the housing provider in this case might be obliged to allow James to smoke marijuana as a reasonable accommodation, assuming James can show that marijuana is part of the medical treatment for his disability

However, the federal Fair Housing Act reasonable accommodation provisions exclude the current use of a "controlled substance" under federal law from protection. Even though medical marijuana is legal under California law, it is not legal under federal law. Because the Fair Housing Act is a federal statute, and it provides the source of the reasonable accommodation right that would entitle James to smoke medical marijuana as a reasonable accommodation, James is out of luck.

The California government has not stepped in to disagree with the federal government on this issue.

As an alternative to evicting James or banning him from using marijuana altogether, you might consider asking James if he can get the pain relief he seeks by eating the marijuana rather than smoking it. This way, he would not be bothering other tenants but would still get the medical benefits of the drug.

This area of law is still somewhat up in the air, though, so please check in with a private attorney or your local fair housing organization for any updates.