Marijuana Law, Policy & Reform

Digging seriously in to "What Science Says About Marijuana"

The title of this post is drawn in part from the headline of this latest editorial in the New York Times series explaining its editorial judgment that marijuana prohibition should be ended (first noted here).  Here is an excerpt from this editorial:

As with other recreational substances, marijuana’s health effects depend on the frequency of use, the potency and amount of marijuana consumed, and the age of the consumer. Casual use by adults poses little or no risk for healthy people. Its effects are mostly euphoric and mild, whereas alcohol turns some drinkers into barroom brawlers, domestic abusers or maniacs behind the wheel.

An independent scientific committee in Britain compared 20 drugs in 2010 for the harms they caused to individual users and to society as a whole through crime, family breakdown, absenteeism, and other social ills. Adding up all the damage, the panel estimated that alcohol was the most harmful drug, followed by heroin and crack cocaine. Marijuana ranked eighth, having slightly more than one-fourth the harm of alcohol.

Federal scientists say that the damage caused by alcohol and tobacco is higher because they are legally available; if marijuana were legally and easily obtainable, they say, the number of people suffering harm would rise. However, a 1995 study for the World Health Organization concluded that even if usage of marijuana increased to the levels of alcohol and tobacco, it would be unlikely to produce public health effects approaching those of alcohol and tobacco in Western societies.

Most of the risks of marijuana use are “small to moderate in size,” the study said. “In aggregate, they are unlikely to produce public health problems comparable in scale to those currently produced by alcohol and tobacco.”

While tobacco causes cancer, and alcohol abuse can lead to cirrhosis, no clear causal connection between marijuana and a deadly disease has been made. Experts at the National Institute on Drug Abuse, the scientific arm of the federal anti-drug campaign, published a review of the adverse health effects of marijuana in June that pointed to a few disease risks but was remarkably frank in acknowledging widespread uncertainties. Though the authors believed that legalization would expose more people to health hazards, they said the link to lung cancer is “unclear,” and that it is lower than the risk of smoking tobacco....

The American Society of Addiction Medicine, the largest association of physicians specializing in addiction, issued a white paper in 2012 opposing legalization because “marijuana is not a safe and harmless substance” and marijuana addiction “is a significant health problem.”

Nonetheless, that health problem is far less significant than for other substances, legal and illegal. The Institute of Medicine, the health arm of the National Academy of Sciences, said in a 1999 study that 32 percent of tobacco users become dependent, as do 23 percent of heroin users, 17 percent of cocaine users, and 15 percent of alcohol drinkers. But only 9 percent of marijuana users develop a dependence. “Although few marijuana users develop dependence, some do,” according to the study. “But they appear to be less likely to do so than users of other drugs (including alcohol and nicotine), and marijuana dependence appears to be less severe than dependence on other drugs.”

There’s no need to ban a substance that has less than a third of the addictive potential of cigarettes, but state governments can discourage heavy use through taxes and education campaigns and help provide treatment for those who wish to quit.

One of the favorite arguments of legalization opponents is that marijuana is the pathway to more dangerous drugs. But a wide variety of researchers have found no causal factor pushing users up the ladder of harm. While 111 million Americans have tried marijuana, only a third of that number have tried cocaine, and only 4 percent heroin. People who try marijuana are more likely than the general population to try other drugs, but that doesn’t mean marijuana prompted them to do so.

Marijuana “does not appear to be a gateway drug to the extent that it is the cause or even that it is the most significant predictor of serious drug abuse,” the Institute of Medicine study said. The real gateway drugs are tobacco and alcohol, which young people turn to first before trying marijuana.

This NY Times piece is a potent and effective review about what we really know about marijuana's health and societal impact.  Even more powerful on the same front, though, is this remarkable new Wonkblog piece from the Washington Post that highlights all the problems with all the science claims by the federal government to justify marijuana prohibition.  The title of this piece, with is a must-read for anyone who really care about both the science and advocacy realities surrounding marijuana reform, is "The federal government’s incredibly poor, misleading argument for marijuana prohibition." Here is how it gets started:

The New York Times editorial board is making news with a week-long series advocating for the full legalization of marijuana in the United States. In response, the White House's Office of National Drug Control Policy (ONDCP) published a blog post Monday purporting to lay out the federal government's case against marijuana reform.

That case, as it turns out, it surprisingly weak. It's built on half-truths and radically decontextualized facts, curated from social science research that is otherwise quite solid. I've gone through the ONDCP's arguments, and the research behind them, below.

The irony here is that with the coming wave of deregulation and legalization, we really do need a sane national discussion of the costs and benefits of widespread marijuana use. But the ONDCP's ideological insistence on prohibition prevents them from taking part in that conversation.

Interesting history as New York Times highlights its "the Editorial Board's changing view of marijuana over six decades"

As part of its new editorial series in support of repealing marijuana prohibition (basics here), the New York Times has this fascinating page titled "Evolving on Marijuana," which provides key quotes from key editorials about marijuana law and policy over the last 50 years. Here are some of the highlights of this interesting history:

1966:  Experience has tragically demonstrated that marijuana is not "harmless."... For a considerable number of young people who try it, it is the first step down the fateful road to heroin.

1969:  The law should surely make a distinction between soft and hard drugs.... For the nation to lapse merely into a simplistic crack-down in reaction to the terribly complicated drug problem would only be, in its own way, to freak out."

1969: Simple possession of LSD ... calls for a maximum sentence of only one year, as against ten for marijuana.... The discrepancy is as glaring as it is absurd. How will anyone know what the restriction on marijuana should be until there is the kind of objective, authoritative report that has been called for by Senator Moss of Utah and Representative Koch of New York?

1970: The nation deserves better answers to the questions about pot. Is it really harmful? Should the law continue to treat it in the same manner as heroin? ... Few substances have been so flatly banned and yet so widely used as marijuana, so much discussed and yet so little researched.

1971: Marijuana is not a “narcotic”... At the same time, it is a dangerous drug.... if marijuana is dangerous, the law must reflect this fact. The subcommittee’s report wisely suggests that both use and sale should remain criminal offenses, although punishable by reduced penalties, especially in the case of first-time offenders and experimenters.

1972:  ... the dangers inherent in smoking marijuana appear to be less than previously assumed. ... What is immediately called for is a sharp scaling down of marijuana penalties, elimination of criminal sanctions for its use or possession and reduction of penalties for its small-quantity sales. A failure of legislatures to base legal sanctions on the best medical evidence available can only undermine respect for the law.

1978:  Marijuana shows great, but not fully proven, potential as a therapeutic agent. ... Marijuana boosters want it legalized immediately for widespread medical use. That would be premature. The need now is for accelerated research to define its medical value. Yet progress has been greatly slowed by the drug's lingering notoriety.

1982:  The sweet-acrid scent of marijuana is everywhere these days... According to the National Institute of Drug Abuse, roughly 30 million Americans smoke it regularly. ... Like it or not, marijuana is here to stay. Some day, some way, a prohibition so unenforceable and so widely flouted must give way to reality.

1996:  It is difficult to dismiss the testimony from many seriously ill patients ... that marijuana can ease pain... ... It ought to be possible to regulate marijuana as a prescription drug if it is found to be of legitimate benefit for sick people.

2012:  Millions of people have been arrested under the policy for minor violations, like possession of small amounts of marijuana. And one thing is beyond dispute: this arrest-first policy has filled the courts to bursting with first-time, minor offenders who do not belong there and wreaked havoc with people's lives.

2013:  On marijuana policy, there’s a rift between the federal government and the states. … The Justice Department has taken a step toward figuring out this peculiar dance between the federal government and the states. If it wants its “trust but verify” approach to work, it will have to start filling in the details.

2013:  Assuming the argument that alcohol and marijuana are “substitutes” bears out, that could be good news, especially for road safety. Of the two substances, alcohol is far more hazardous. For the most part, marijuana-intoxicated drivers show only modest impairments on road tests. Several studies have suggested that drivers under the influence of marijuana actually overestimate their impairment.

2014:  On New Year’s Day, government-licensed recreational marijuana shops opened in Colorado ... Later in 2014, marijuana retailers will open in Washington State.  As public opinion shifts away from prohibition, these two states will serve as test cases for full-on legalization.

Colorado and Washington Senators press White House for clearer marijuana policy guidance

As detailed in this official press release, titled "WA, CO Senators push Obama Administration to set clear, consistent policies so states can implement marijuana laws," the four Senators representing the two states which have legalized recreational marijuana have sent a letter to the White House Chief of Staff and Attorney General Eric Holder urging more federal guidance about state marijuana activities.  The full letter is available at this link, and here is how it starts:

We write to request that the Administration provide guidance to departments and agencies ensuring a consistent and uniform application of federal laws that could affect licensed marijuana businesses, dispensaries, and growers in Washington state and Colorado.

As you know, our states are implementing regulatory and licensing schemes to ensure any production and sale of marijuana is in accord with state law, and is conducted in a manner that preserves public health and safety. In working toward this goal, in some instances, our states will have to react to new information and evolving circumstances as this process moves forward. We believe the federal government should support Colorado and Washington state’s effort to establish a successful regulatory framework in a way that achieves greater certainty for local officials, citizens, and business owners as they tackle this complicated and important task. At times, however, certain federal agencies have taken different approaches that seem to be at odds with one another and may undermine our states’ ability to regulate the industry adequately.

In order to provide more regulatory clarity, we believe that the Administration should provide consistent and uniform guidance to departments and agencies regarding the interpretation and application of the Controlled Substances Act (“CSA”) and other federal laws that could impact the marijuana industries in our states. Without such guidance, our states’ citizens face uncertainty and risk the inconsistent application of federal law in Colorado and Washington state, including the potential for selective enforcement actions and prosecution.

Latest Florida poll shows considerable support for both medical and recreational marijuana

As detailed via this report from the folks at Quinnipiac University, the latest polling numbers suggest Florida voters are keenly in support of marijuana reform. Here are the basics concerning a state seemingly poised to bring marijuana reform movement into the south:

Florida voters support legalized marijuana for medical use 88 - 10 percent, with support ranging from 83 - 14 percent among voters over 65 years old to 95 - 5 percent among voters 18 to 29 years old, according to a Quinnipiac University poll released today. The lowest level of support is 80 - 19 percent among Republicans, the independent Quinnipiac University poll finds.

Sunshine State voters also support 55 - 41 percent "allowing adults in Florida to legally possess small amounts of marijuana for personal use," or so-called "recreational marijuana." There is a wide gender gap and an even wider age gap: Men back recreational marijuana 61 - 36 percent while women back it by a narrow 49 - 45 percent. Voters 18 to 29 years old are ready to roll 72 - 25, while voters over 65 years old are opposed 59 - 36 percent. Support is 64 - 32 percent among Democrats and 55 - 40 percent among independent voters, with Republicans opposed 56 - 41 percent.

"Forget the stereotypes of stodgy old folks living out their golden years playing canasta and golf," said Peter Brown, assistant director of the Quinnipiac University poll. "Almost nine- in-ten Floridians favor legalizing medical marijuana and a small majority says adults should be able to possess small amounts of the drug for recreational purposes.

"Even though a proposal to legalize medical marijuana, on the ballot this November, must meet a 60 percent threshold, these numbers make a strong bet the referendum is likely to pass," said Peter Brown, assistant director of the Quinnipiac University poll....

If medical marijuana is legalized in Florida, voters say 71 - 26 percent they would support having a marijuana dispensary in the town or city where they live. Support ranges from 57 - 37 percent among voters over 65 years old to 79 - 21 percent among voters 18 to 29 years old.

New York Times now advocating: "Repeal Prohibition, Again"

The title of this post is the headline in this (historic?) new New York Times editorial calling for the legalization of marijuana.  Here are excerpts:

It took 13 years for the United States to come to its senses and end Prohibition, 13 years in which people kept drinking, otherwise law-abiding citizens became criminals and crime syndicates arose and flourished. It has been more than 40 years since Congress passed the current ban on marijuana, inflicting great harm on society just to prohibit a substance far less dangerous than alcohol.

The federal government should repeal the ban on marijuana.

We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.

There is honest debate among scientists about the health effects of marijuana, but we believe that the evidence is overwhelming that addiction and dependence are relatively minor problems, especially compared with alcohol and tobacco....

There are legitimate concerns about marijuana on the development of adolescent brains. For that reason, we advocate the prohibition of sales to people under 21.

Creating systems for regulating manufacture, sale and marketing will be complex. But those problems are solvable, and would have long been dealt with had we as a nation not clung to the decision to make marijuana production and use a federal crime.

In coming days, we will publish articles by members of the Editorial Board and supplementary material that will examine these questions. We invite readers to offer their ideas, and we will report back on their responses, pro and con.

We recognize that this Congress is as unlikely to take action on marijuana as it has been on other big issues. But it is long past time to repeal this version of Prohibition.

In addition, today's New York Times has these related signed editorial pieces to kick off its series of coverage:

• "The Public Lightens Up About Weed"

• "Let States Decide on Marijuana"

Rand Paul amendment to block certain federal prosecutions in medical marijuana states would raise interesting legal questions

Senator Rand Paul has filed an amendment to a jobs bill that would protect patients and physicians from federal prosecutions in states with medical marijuana laws.  Unlike the spending amendment that passed the House earlier this year (which Paul and Cory Booker also introduced in the Senate), this proposal would have a very real legal impact.  I think it would also raise some interesting legal questions, if it were to pass (which I suspect is unlikely.)

Paul's proposal provides (in relevant part):

(a) State Medical Marijuana Laws.--Notwithstanding section 708 of the Controlled Substances Act (21 U.S.C. 903) or any other provision of law (including regulations), a State may enact and implement a law that authorizes the use, distribution, possession, or cultivation of marijuana for medical use.

 

 

(b) Prohibition on Certain Prosecutions.--No prosecution may be commenced or maintained against any physician or patient for a violation of any Federal law (including regulations) that prohibits the conduct described in subsection (a) if the State in which the violation occurred has in effect a law described in subsection (a) before, on, or after the date on which the violation occurred[.]

 

At first blush, the amendment's protections seem somewhat limited.  They apply only to medical marijuana patients and physicians.  But most federal medical marijuana prosecutions have targeted providers--dispensary operators, growers, etc.  

 

When it comes to patients and physicians, however, the immunity this amendment would grant appears to be quite broad.  The law would prevent prosecutions "for a violation of any Federal law . . . that prohibits the conduct described in subsection (a)" in a medical marijuana state.  And what conduct does subsection (a) describe?  "[T]he use, distribution, possession, or cultivation of marijuana for medical use[.]"

 

As a result, I think Paul's amendment would almost certainly immunize from federal prosecution patients and physicians (but not others) who work in the medical marijuana industry.  In oher words, the federal government could not "commence[] or maintain[]" a prosecution against a patient or physician who ran a dispensary or a medical marijuana grow operation that was in compliance with state law.   

 

Now here is where I think interpreting Paul's proposal gets especially tricky: would it protect only physicians and patients who were acting in compliance with their state's law?  Or, would passage of a state medical marijuana law (even an incredibly restrictive one) trigger a broad-based protection for any and all patient and physician "use, distribution, possession, or cultivation of marijuana for medical use"?

 

Though I imagine the intent of the amendment is to make the federal protection coextensive with activity authorized under state law, I think its language is far from clear on the issue.  

 

Again, take a look back at subsection (a).  It says that "a State may enact and implement a law that authorizes the use, distribution, possession, or cultivation of marijuana for medical use."  Subsection (b), meanwhile, says the government cannot commence or maintain a prosecution "for a violation of any Federal law . . . that prohibits the conduct described in subsection (a)".

 

The only conduct that is deccribed in subsection (a) is the "use, distribution, possession, or cultivation of marijuana for medical use."  Period.  There is no express requirement that the conduct be done "in compliance with state law" in order to qualify for the protection.  On this reading, so long as a patient or physician's marijuana activity was "for medical use" and done in a state that had some sort of medical marijuana law, however narrow, the protection would kick in.  (As a result, for example, a patient in a state with a CBD-only law might claim protection from federal prosecution for selling marijuana to a veteran with PTSD.)  

 

To be sure, one could argue that Paul's provision implicitly limits the protected "conduct" to that which is "authorize[d]" by a state.  But I don't think this argument would be a slam dunk.  My inclination is that the statute is ambiguous on this point and would have to be litigated.  

 

All of the above is based on, admittedly, a very quick read and reaction to the language, so I may be off base.  (I'd love to hear any and all thoughts in the comments.)  But, at the very least, it seems to me that this amendment could be a bit clearer about exactly what conduct it protects and under what circumstances.

 

I should add that even if the language of the amendment does have some ambiguity, I suspect that it is being introduced for political effect more than anything else (both for Paul to generate media buzz for his position on the issue and in order to try to gain momentum for federal reform by raising the profile of the issue in the Senate).  Since the likelihood it will pass is slim to none, it is understandable that Paul's staff might not have committed a bunch of its time to finely tune the proposal's language.  

 

Last, details aside, Paul's amendment is another sign of the shifting politics on marijuana reform.  As Tom Angell of Marijuana Majority put it: "with five U.S. House floor votes in a row coming out favorably for cannabis policy reformers over the past few months, we expect to see more senators realizing that getting onto the winning side of this issue is a smart move."

Analysts predict Oregon would generate $38.5 million in tax revenue in first year of pot legalization

As detailed in this lengthy new report, titled simply "Oregon Cannabis Tax Revenue Estimate," a prediction of marijuana usage is at the heart of economists' prediction of significant tax revenues is the citizens of Oregon legalize recreational marijuana this fall. Here is the report's Executive summary:

Oregonians are slated to vote on the “Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act” in November 2014. The measure would regulate, tax, and legalize marijuana for adults 21 and older with legal use beginning in July, 2015.

Economists at ECONorthwest conducted an independent study to estimate the amount of money that would be generated in the short term if the Act passes. The money generated in taxes would go to schools, state and local police, and programs for drug treatment, prevention, drug education, and mental health.

The key findings of this analysis are:

• $38.5 million in excise tax revenue would be generated during the first fiscal year of tax receipts;

• $78.7 million in excise tax revenue would be generated during the first full biennium of tax receipts.

The report does not look at the impact on courts, police, and jail operating costs due to legalization. The forecast is based on a comprehensive methodology that includes the following: the cost of production; price elasticity; the price of marijuana and its retail products; market demand; the short-term demand remaining in the gray market; accessibility of non-medical sales; new market entrants; home production; and non-resident demand.

The “Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act” legalizes the growth, processing, wholesaling, and retailing of marijuana for adult purposes. If enacted, retail sales in Oregon could begin July 1, 2016.

Petitioners for this Act asked ECONorthwest to forecast state government tax revenues that would arise in the first fiscal year of its implementation, presumed to be July 1, 2016 through June 30, 2017 (FY 2017). Similarly, they asked ECONorthwest to estimate tax revenues in the first full biennium, July 1, 2017 to June 30, 2019 (2017-19 biennium). This report summarizes ECONorthwest’s research and forecast.

Highlighting the short bench of those crusading against marijuana reform

The Washington Post has this interesting article which highlights some reasons why I tend to think marijuana reform movements will continue to gain steam.   The article is headlined "The lonely lot of the anti-pot crusader," and here are excerpts:

Parents [against drug reforms], once heroes of the just-say-no 1980s, find themselves outgunned: The anti-marijuana movement has little funding or staff, little momentum and, it appears, little audience.

Decriminalization went into effect last week in the District, setting a $25 penalty for possession of up to an ounce of weed.  Earlier in July, pro-marijuana activists scored another victory, submitting 57,000 voter signatures, more than double the number required, to bring the ballot measure, which could add the District to the vanguard of legalization along with Colorado and Washington state....

“Interestingly, whenever we have a debate on TV, we hear the producer asking, ‘Who can we get to debate against marijuana?’ ” says Tony Newman, spokesman for the reformist Drug Policy Alliance.   The cable-show bookers’ “con” choices are indeed scant.

“It’s unbelievable what’s happened,” says Robert DuPont, a psychiatrist who was the first director of the National Institute on Drug Abuse in the 1970s.  “You can’t find anybody to speak on the other side. . . . The leaders in both parties have completely abandoned the issue.”

DuPont, an addiction specialist, could hold his own in any debate about drugs.  He and other experts point to research showing that 9 percent of marijuana users become addicted, a figure that rises to 16 percent when use begins in teen years.  In various studies, weed also is linked to lower academic performance and mental illness and other health problems.

The marijuana normalization movement bats back such findings by citing the devastating results of alcohol and tobacco dependency and abuse, for example, and the palliative effects of marijuana as medicine.  And they say the disproportionately higher rate of minorities’ arrests and incarceration for pot-related offenses have caused greater social harm — which became a major selling point for decriminalization in the District.

Backed by deep-pocketed funders, the legalizers deploy lobbyists, spokesmen and researchers from well-staffed organizations like the Marijuana Policy Project, the Drug Policy Alliance, Americans for Safe Access and the National Organization for the Reform of Marijuana Laws (NORML).  They even have their own business alliance: the National Cannabis Industry Association.

“These guys are in a full-court press coming at you from every angle,” says DuPont, 78, who runs the small, Rockville-based Institute for Behavior and Health. He sounds exasperated. “They have a bench 1,000 people deep. . . . We’ve got Kevin Sabet.”

Sabet, 35, first testified before the Senate against drug legalization when he was 17 and now runs an anti-pot-legalization group called Smart Approaches to Marijuana (SAM). Last year he made No. 1 on Rolling Stone’s “Legalization’s Biggest Enemies” list.  “Do we want a stoned America?” asks Sabet, who has served drug czars in the Clinton, Bush and Obama administrations.  “Is that where we want to go at a time when America’s place in the world, in terms of academic and economic competitiveness, is greatly threatened? Good luck.”

Based in Cambridge, Mass., Sabet says he commits “100-plus hours a week” to raising the alarm and has help from SAM affiliates in 27 states.  People who still see grass as “a harmless giggle in our basement” are ignoring the “Wall Street sharks” hoping to profit from a nationwide cannabis industry as large and powerful as the booze or tobacco businesses, he says. Sabet predicts increases in buzzed driving and health problems.

But such arguments clearly have not stopped the other side’s momentum.  “Woeful Kevin” is what Allen St. Pierre, NORML’s executive director, calls Sabet.  “I feel blessed by someone like Kevin,” St. Pierre says.  “Since he has come on the scene we have prevailed, prevailed, prevailed. We could use 500 Kevins.”...

Promoting a message of compassion for the sick, medical marijuana advocates led the way in the 1990s to a more accepting public view toward recreational pot.  The number of pro-pot groups began to surge.  “It’s our fault,” Sabet admits, but he cites one mitigating factor.  “They have money and we don’t.”

Still, other forces explain why reform has caught on now, including supportive baby boomer voters; a lingering recession that dampened government revenue, making the taxation of marijuana tempting; and an overwhelming public view that alcohol prohibition was a “great failed experiment,” St. Pierre says.  In addition, the Obama administration decided not to challenge legalization in Washington and Colorado and to allow banks to do business with legal marijuana sellers.

“This is like gay marriage,” St. Pierre argues.  “Twenty years ago if you voted for it you were a loser; now 20 years later, if you vote against it you’re a loser.”  In the District, the legalizers are predicting success.  Sabet’s group decided against challenging the signatures gathered for the ballot initiative: “We are picking our battles,” he says.

"Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination"

The title of this post is the title of this notable new student Note by Elizabeth Rodd now available via SSRN.  Here is the abstract:

Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use — either recreational or medicinal — remains illegal under the Federal Controlled Substances Act.  Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana.

To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state-sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change.  This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.

Could Vermont become the first state to legislatively legalize marijuana?

The question in the title in this post is prompted by news yesterday that Vermont has contracted with RAND to study the possible effects of legalizing marijuana in the state.  

A study like this could provide political momentum and support for a planned 2015 legalization bill.  Though, of course, its actual impact will depend in large part on what the study finds.  At the very least, however, it indicates that a critical mass of elected officials in Vermont have more than just a passing interest in legalization.  

Also of note, Vermont's Governor, Peter Shumlin has been praised by NORML in the past for his support of reforming marijuana laws.  Shumlin is up for reelection this year.  Assuming he retains office, his presence would go a long way toward making legalization via legislation a real possibility.  (Some may recall that New Hampshire's legislative legalization efforts hit a road block earlier this year after opposition from their Governor.)

And, whatever the political outcome, I'm sure RAND's report will be interesting reading for all who follow this issue, especially since the news story indicates Beau Kilmer--whose work in this area is consistently must-read--will be meeting with Vermont officials next week to get the study going.

Here's some highlights from the story about the upcoming study:

Rand Corp. representatives will be in Vermont next week to begin work on a study of the effects that marijuana legalization might have on the state's economy, individual health and public safety.

 

The international, nonprofit research organization was chosen to conduct the study, which was mandated in a bill passed by the Legislature last session.

 

The state will pay $20,000 toward the study, which will be augmented by as much as $100,000 in private donations, officials said Friday.

 

Rand Corp. declined to comment on the research until the organization's senior policy analyst Beau Kilmer meets with Vermont officials next week. More details on the study would be released then, Rand spokesperson Warren Robak said.

 

"We were looking for someone who wasn't going to make a case that we legalize or not legalize," Spaulding said, adding that Rand is "very well-respected."

 

The report generated by Rand should give Vermont legislators the facts they need to have a well-informed debate next winter, one lawmaker says.

 

"I think the study will help with legislators and the public who inherently think it's a good idea but want evidence they can hold up to show people," said state Sen. David Zuckerman, P/D-Chittenden. Zuckerman said he will propose a marijuana regulation and legalization bill in the 2015 legislative session.

 

"It can work in other states," Zuckerman said. "We just have to make some changes."

Is anyone seriously tracking collateral industries and jobs created by marijuana reform?

The question in the title of this post was my first reaction to this notable new article, headlined "Next Gold Rush: Legal Marijuana Feeds Entrepreneurs’ Dreams, which appears on the front page of today's New York Times.  Here are excerpts from the article: 

Like the glint of gold or rumors of oil in ages past, the advent of legal, recreational marijuana is beginning to reshape economies in Colorado and Washington State.

Marijuana is beckoning thousands of entrepreneurs and workers, investors and hucksters from across the country, each looking to cash in on a rapidly changing industry that offers hefty portions of both promise and peril.

At convention centers and in hotel meeting rooms, start-up companies are floating sales pitches for marijuana delivery services or apps to name-tagged investors who sip red wine and munch on hempseed snacks. This year, hundreds of people seeking jobs lined up for blocks in downtown Denver, résumés in hand, for an industry-sponsored marijuana job fair....

Tourists have flocked to those stores, making up 44 percent of the customers at one Denver shop during a sample week this spring, according to the state’s first study of demand for marijuana. Tour companies and marijuana-friendly bed-and-breakfasts have sprung up to serve tourists, too.

In Washington State, where recreational sales kicked off last week, the retail industry is much smaller, with as few as eight stores open so far. But the ambitions are boundless, with more than 300 licenses under state review and an outdoor growing season — perfect for apples, wheat and grapes — that could make Washington a national powerhouse of production if legalization spreads.

Hundreds of other people have found work on the edges of the industry. They sell water systems, soil nutrients, lighting and accounting services, like the 19th-century merchants who profited by selling picks and shovels to gold miners. There are now dozens of marijuana-related mobile apps, marijuana-centric law firms and real estate agents, cannabis security experts (it is a risky, virtually all-cash trade) and marijuana-themed event promoters offering everything from luxury getaways to bus tours. Washington has a rule requiring bar-code tracking of every marijuana plant to ensure that only licensed, Washington-grown marijuana is sold in its stores. It has also created a niche for tech start-ups like Viridian Sciences, a software company aiming to help retailers prove the provenance of their product should a state inspector or customer ask....

[M]any are ready to gamble on marijuana’s success. After a decade in the military and a career working in security, Sy Alli, 53, moved to Colorado to become the director of corporate security for Dixie Brands, a company that makes marijuana-infused drinks and snacks. Zach Marburger, 28, visited in January to ski and check out the early days of legal use of recreational marijuana, and decided to relocate to Denver to develop software to connect customers and retailers.

And a few months ago, a 22-year-old mobile app developer named Isaac Dietrich and a friend were smoking marijuana in a Norfolk, Va., apartment when they realized: There could be money in this. They moved to Colorado, where they are working on an app called MassRoots, which lets marijuana enthusiasts privately post photos on an online platform out of sight of their parents or co-workers. They want it to be the Instagram for marijuana users. “We thought about relocating to Silicon Valley, but they haven’t backed a single marijuana company,” Mr. Dietrich said. “This is where everything’s happening. We didn’t want to be left out.”

Another notable House vote continues federal reform momentum

As reported in this AP piece, which is somewhat inaccurately headlined "House Votes to Allow Marijuana-Related Banking," last night brought another notable vote from the GOP-lead House of representatives concerning federal regulatory rules surrounding federal pot prohibition.  Here are the (somewhat complicated) details of the latest notable vote:

The House voted Wednesday in support of making it easier for banks to do business with legal pot shops and providers of medical marijuana. The 236-186 vote rejected a move by Rep. John Fleming, R-La., to block the Treasury Department from implementing guidance it issued in February telling banks how to report on their dealings with marijuana-related businesses without running afoul of federal money-laundering laws.

Marijuana dealing is still against federal law, so banks who do business with marijuana dispensaries could be accused of helping them launder their money. Federal money laundering convictions can mean decades in prison.

The Treasury guidance was intended to give banks confidence that they can deal with marijuana businesses in states where they're legal. Many banks are still reluctant to do so. That has forced many marijuana operations to stockpile cash, a situation that shop owners say is dangerous.

"They are operating just in cash, which creates its own potential for crime, robbery, assault and battery," said Rep. Ed Perlmutter, D-Colo., whose state has legalized recreational pot use. "You cannot track the money. There is skimming and tax evasion. So the guidance by the Justice Department and the guidance by the Treasury Department is to bring this out into the open."

The vote is largely symbolic since Treasury already had gone ahead with the guidance, but it demonstrates a loosening of anti-marijuana sentiment on Capitol Hill. "Whereas the federal government once stood in the way of marijuana reform at every opportunity, the changing politics of this issue are such that more politicians are now working to accommodate popular state laws so that they can be implemented effectively," said marijuana advocate Tom Angell.

A coalition of 46 mostly GOP moderates and libertarian-tilting Republicans joined with all but seven Democrats to beat back Fleming's attempt to block the Treasury guidance.

NY MMJ Law or Laws Are Like Sausage Making

This Salon interview with Evan Nison of the New York Cannabis Alliance about the process of finally passing a law permitting the use of medical marijuana in New York state reminded me of that old saying about laws and sausage

Here's an excerpt to support that conclusion :

In terms of the negotiation and lobbying process, who in Albany did you work with, primarily — was it the Senate or the governor’s office or both?

 Almost the entire time — the five-plus years I was working on the bill — was focused on the Senate. That’s because, for the majority of the time, it was run by the Republicans and then eventually the “independent” Democrats. The assembly was great throughout the whole process and passed the bill multiple times just this past year. The governor’s office was fairly silent on it, maybe even more of a hazard than anything throughout most of the process until the very tail end. Something else that was interesting to note was that we had the votes in the Senate for maybe a year and a half or two years before the vote was brought to the floor. And we had the votes in the Senate to pass the broader version before Cuomo amended it. It was really just a matter of the Senate leadership not bringing the vote to the floor, but the support was there in the legislature to pass this years ago.

When asked if New York could be characterized as a national leader, Nison stated that " New York is following rather than leading, at this point in time" but prefers a comparison to Prohibition rather than sausagemaking:

 New York was a leader in repealing alcohol prohibition and I think, hopefully, we can do that again. But … we’re the 23rd state [to do this] and although we’re a landmark state, we’ve certainly haven’t been a leader on this issue yet.

NYers-cross your fingers...

[Note-To comply with the US Supreme Court's fair use ruling in Harper & Row v Nation Enterprises, I am omitting the juicy discussion of Governor Cuomo's role in enacting the New York law]. 

 

 

Latest polling shows rich, white, midwestern guys aged 30-44 most likely to favor pot legalization

As this press release details, the "latest research from YouGov shows that most Americans (51%) support legalizing marijuana, while 37% oppose it."  And, as the title of this post highlights, I find especially interesting the demographics of which groups of persons are most in favor of legalization as reflected in these detailed breakdowns:

Male: 54% to 36%

Age 30-44: 60% to 28%

Democrat: 62% to 27%

White: 52% to 37%

Income $100+: 57% to 32%

Midwest: 55% to 31%

Should marijuana home delivery be embraced or feared?

The question in the title of this post is prompted by this notable new AP article headlined "Next up for legal pot? Marijuana at your doorstep." Here are excerpts:

William “Jackrabbit” Large pulls his SUV onto the side of a downtown Seattle street, parking behind an Amazon Fresh delivery truck and carrying a product the online retailer doesn’t offer: marijuana.

The thin, bespectacled Large is a delivery man for Winterlife, a Seattle company that is among a group of new businesses pushing the limits of Washington state’s recreational pot industry by offering to bring marijuana to almost any doorstep. “It’s an opportunity that should not be missed,” Large says with the kind of fast-talking voice meant for radio.

While delivery services have existed for years to supply medical marijuana patients, the rise of similar businesses geared toward serving recreational users in Washington and Colorado highlights how the industry is outpacing the states’ pot laws.

Winterlife’s business model is a felony under Washington state law, which allows only the sale of pot grown by licensed producers at licensed retail shops. Lawmakers should consider changing that, said Alison Holcomb, the author of the 2012 voter initiative that legalized the recreational use of pot, because providing more ways to access marijuana will help push people to the legal pot market.

In Colorado, where marijuana regulations require sales to be done in licensed dispensaries, there’s a flourishing market online for marijuana deliveries made in exchange for donations. The law allows adults over 21 to give one another up to an ounce of marijuana, provided it is done “without remuneration.”

The only known case of criminal charges brought against a Colorado delivery service came last year, when the owner of a pot-for-donations service in the Colorado Springs area faced felony distribution charges. He committed suicide before trial.

In Washington, where the legal pot industry kicked off last week, companies like Winterlife jumped into fill demand from consumers for marijuana while the state spent the past 19 months building the regulations and licensing growers and retailers. Winterlife co-founder Evan Cox, a vegan and bicyclist enthusiast, began by advertising on Craigslist and made deliveries.

Now he has around 50 full and part-time employees, including 25 to 30 delivery personnel in cars and bicycles. Operators field between 400 and 600 calls a day. “We found a way to really fill the need that the Washington voter said that there is,” he says from his company’s headquarters, where workers busily sort, cut and package their different marijuana products into branded clear bags.

The Winterlife model is simple. They have a website that features their products – marijuana flowers, edibles and pipes. After making a call, the consumer’s phone is relayed to a driver, who then asks them where they want to meet.

Cox is fully aware of the shaky legal ground where he stands. All of the drivers operate under animal-inspired pseudonyms. There’s a jackrabbit, a wombat, a possum, among others. Cox is also mostly staying within Seattle, where police have tolerated the company’s presence and voters in the city made marijuana crimes a low priority for law enforcement years ago....

Sgt. Sean Whitcomb, a spokesman for the Seattle Police Department, said Winterlife is undermining the spirit of the legal marijuana law. So far, he said, the police department has bigger priorities. But he said the department could change its stance if it receives information about underage sales or other complaints. The department recently seized more than 2,200 plants from a medical marijuana grow that was bothering neighbors.

"White House Says Marijuana Policy Is States' Rights Issue"

The title of this post is the headline of this new Huffington Post piece.  Here is how it starts:

The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.

The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."

Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.

New "Marijuana Today" podcast on marijuana business, policy and politics

My good friend Kris Lotlikar has started a new podcast called "Marijuana Today," releasing the first episode yesterday.  I just listened to it and can't recommend it enough.  Anyone interested in marijuana law and policy who wants something to help pass the time while working out or commuting will definitely enjoy it.  

Kris has a long history in drug policy, having served as the first executive director of Students for Sensible Drug Policy.  He's now in business, as co-founder and president of an alternative energy company, Renewable Choice Energy.  Kris has also continued his involvement in drug policy and he is affiliated with the Arcview Group. 

Unlike other marijuana-related podcasts, which seem to be targeted at users, Marijuana Today takes a serious look at marijuana policy and features experts in business, law, politics, and more. 

The first episode includes (among other things) an insightful discussion on the differences between Colorado and Washington's legalization laws, a discussion about the flaws and features of New York's new medical marijuana law, and some interesting news about the status of medical marijuana licenses in Massachusetts.  Joining Kris Lotlikar on the episode are: Kris Krane, Managing Partner of the marijuana dispensary consulting firm 4Front Advisors; community organizer Dan Goldman; and Oregon political mover Adam Smith.  

I've been in touch with Kris about appearing on a future episode myself and hope to do so as soon as scheduling permits.

You can listen to it at the link above or via iTunes (just search for "Marijuana Today" in Podcasts). 

Seattle's only marijuana store out of product, the DEA losing ground on legalization, Cuomo's medical marijuana problem, and more

This weekend saw a number of noteworthy posts and articles on marijuana law issues.  Among them:

• The Los Angeles Times reports that the "DEA may be losing the war on marijuana politics."  As the story explains, "the Drug Enforcement Administration has found itself under attack in Congress as it holds its ground against marijuana legalization while the resolve of longtime political allies — and the White House and Justice Department to which it reports — rapidly fades."
• Seattle's only recreational marijuana shop is already out of product and it doesn't expect to reopen until July 21.   
• At Balloon Juice, mistermix argues that New York Governor Andrew Cuomo should not be considered a progressive, citing his involvement in watering down the state's new medical marijuana law: "Cuomo is the governor of one of the most liberal states in the nation. His deal with the progressive Working Families Party makes him a lock for re-election. Medical marijuana is fairly popular (here’s a recent poll showing 78% approval). Yet after considering all that, he still didn’t have the guts to let an already hobbled law pass without further restrictions.
• Marijuana Business Daily reports on a recent Nevada Gaming Control Board ruling that "shows that the casinos are taking a hard line against any connections to cannabis."
• The Cannabist (via Denver Post) reports on yet another tax issue facing marijuana businesses.  The IRS requires a 10 % penalty when employee withholding taxes are not paid through the Electronic Federal Tax Payment System.  But "pot shops in Colorado often have little choice but to pay employee withholding taxes in cash since banks won’t take their business."  Colorado Senator Michael Bennet and Rep. Ed Perlmutter have written a letter to the IRS asking the agency to waive the penalty.

Sixth Circuit dissenter highlights state marijuana reforms in case of marijuana defendant sentenced to 20-years

Last week, the Sixth Circuit issued a notable opinion (PDF) on whether the U.S. Supreme Court's 2013 decision in Alleyne v. US means the government must now prove drug defendants knew the type and quantity of drugs involved to trigger an applicable mandatory minimum sentence.  

I'll return to the legal issue in a moment, but of particular interest to the topic of this blog is the conclusion of Judge Merritt's dissenting opinion, in which he questions the wisdom of a 20 year marijuana sentence in light of legalization laws:

In addition, I note in passing that the defendant was sentenced to an absurdly long mandatory sentence of 20 years imprisonment for growing marijuana plants. In a legal system that has historically strongly disfavored criminal strict liability and has favored requiring mens rea or knowledge of the crime, we should not hesitate to insist that the prosecutor prove a defendant's knowledge of the scope of the conspiracy. We should take into account that a number of states have now legalized growing marijuana plants for both medicinal and recreational use. This change in attitude toward the crime should lead us to try to avoid such excessive sentences that have now filled the jails of the country with drug offenders, particularly the federal prisons. If the criminal division of the Department of Justice cannot desist from asking for such long sentences, and continues its policy of insisting on excessive drug sentences, the courts should at least follow a consistent policy of requiring knowledge of the elements of the crime.

Though Merritt's discussion of marijuana reforms is noteworthy, those who follow federal sentencing will almost certainlty be more interested in the Alleyne issue in the case.  

For the uninitiated, the issue is a tricky one to summarize, but it centers around the fact that federal mandatory minimum drug sentences are based primarily on the type and quantity of drugs involved in the offense.  For some time, courts have held that the government only needs to prove a defendant knowingly possessed drugs to get a conviction and to trigger a mandatory minimum sentence.  Whether the defendant knew the type or quantity of drugs is immaterial.  

To get a sense of how this works, imagine a drug courier who agrees to transport a car across the border.  The courtier is told the car has marijuana in an amount that would trigger a 5-year minimum sentence.  But the car actually has methamphetamine in an amount that would trigger a 10-year minimum.  If the courier is convicted, she'll receive the 10-year mandatory minimum based on the type and quantity of drugs in the car.  The fact that she thought she was transporting X amount of marijuana is irrelevant.  So long as the government can prove she knew she had a controlled substance of some kind, she'll be sentenced based on what she actually had (Y amount of methamphetamine.)

As summarized by SCOTUS Blog, Alleyne held that "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' of the crime that must be submitted to the jury."

Does this holding also mean that the government must now prove drug defendants knew the type and quantity of drugs involved to trigger a relevant minimum sentence?  The Sixth Circuit held that it does not.  Judge Merritt, in dissent, says it should.  

I'll avoid trying to summarize the competiting points and, instead, recommend that anyone who is interested in the Alleyne issue take a look at the opinion and dissent which are both well worth reading.  

Rodd on workplace discrimination and medical marijuana

Elizabeth Rodd has posted a Note to SSRN on workplace discrimination and medical marijuana titled: "Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination".

Here is the abstract:

Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use—either recreational or medicinal—remains illegal under the Federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana. To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.