Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, December 29, 2015

MPP Director provides Top 10 accounting of marijuana reform achievements in 2015

I noted in this post yesterday a Huffington Post commentary by Kevin Sabet, the President of Smart Approaches to Marijuana (SAM), headlined "Top 10 Anti-Marijuana Legalization Policy Victories of 2015."  Today I just realized that a similar (and yet very different) Huffington Post piece authored by Rob Kampia, Executive Director of Marijuana Policy Project, was published here last week under the headline "The Top 10 Marijuana Policy Victories of 2015. Here is how that piece starts and ends and the headings in-between:

In 2015, state legislators considered bills to legalize marijuana in 21 states, decriminalize marijuana possession in 17 states, and legalize medical marijuana in 19 states. Most of the action in 2015 was aimed at achieving substantial victories in 2016, which is slated to be the most successful year in the history of the movement to end marijuana prohibition.

With this in mind, the Marijuana Policy Project is hereby releasing its top 10 list for 2015. I'm excluding international and scientific developments, instead focusing on policy developments in the United States.

10. Local Decriminalization Measures: ...

9. Everything In Texas: ...

8. Medical Marijuana Expansion In Four States, D.C., and Puerto Rico: ...

7. Medical Marijuana In Pennsylvania, Nebraska and Utah: ...

6. Marijuana Decriminalization in Illinois: ...

5. Decriminalization in Delaware: ...

4. Legalization Ballot Initiatives in Five States: ...

3. U.S. House of Representatives: ...

2. U.S. Senate: ...

1. Presidential Candidates: ...

In 2015, the table was set in other ways that will lead to a healthy serving of marijuana policy reform in 2016.  For example, Alaska and Colorado appear poised to allow some form of on-site consumption of marijuana in private establishments (similar to alcohol bars), which would give these two jurisdictions the two best marijuana laws in the world.

December 29, 2015 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, December 28, 2015

SAM Prez provides Top 10 accounting of marijuana reform difficulties in 2015

Kevin Sabet, the President of Smart Approaches to Marijuana (SAM), has this notable new Huffington Post commentary headlined "Top 10 Anti-Marijuana Legalization Policy Victories of 2015." Here is how it starts and ends and the headings in-between:

2015 will be remembered as the year legalization hit bumps most supporters never anticipated. For pro-health advocates that oppose marijuana legalization, it was a year of fantastic victories! Here are the top 10:

10. Big Marijuana is Real -- and People are Writing About It....

9. Continuing Positive Press Coverage of Groups Opposing Legalization....

8. Several States Resisted Full-Blown Legalization....

7. Lawyering Up....

6. Marijuana Stores Banned in California, Washington, Colorado, Oregon, Michigan, and Elsewhere.

5. Legalizers Made No Gains in Congress This Year....

4. Continued Support from ONDCP, DEA, and NIDA....

3. Real Progress on Researching the Medical Components of Marijuana....

2. No States Legalized "Medical" Marijuana in 2015....

1. Ohio!...

Despite the nonstop talking point of "inevitability," we know that the 8% of Americans who use pot don't speak for 92% of Americans that don't want to see Big Tobacco 2.0, don't want to worry about another drug impairing drivers on the road, and don't want to think about keeping things like innocuous-looking "pot gummy bears" away from their kids.  We know that the pot lobby will work hard for things like not only full-blown legalization in several more states next year, but also things like on-site pot smoking "bars" (they are really proposing these in Alaska and Colorado as we speak) and an expansion of pot edibles.

In 2016, let's nip Big Marijuana in the bud.

December 28, 2015 in Campaigns, elections and public officials concerning reforms, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Sunday, December 27, 2015

Lots of marijuana news of note even during a holiday week

Due to a combination of work and family commitments, I have not blogged in this space as much as usual in recent weeks.  Come January, I hope to make up for lost time with a lot more original postings (some of which may be part of an assignment I give to students taking my marijuana reform seminar).  In the meantime, I will catch up a bit by posting headlines and links to some of the marijauna headlines/stories that caught my eye in recent days:

December 27, 2015 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Saturday, December 19, 2015

More reform in Native lands: "Warm Springs tribes approve marijuana sales in historic vote"

Download (5)The title of this post is the headline of this recent article concerning a marijuana vote among a Native American tribal community in Oregon.  Here are the details:

Members of the Confederated Tribes of Warm Springs said yes to growing, processing and selling marijuana on the recreational market in a historic vote Thursday that drew record turnout, tribal officials said.

The referendum passed with 86 percent approval, said Don Sampson, CEO of Warm Springs Ventures, the tribes' economic development corporation, the group behind the proposal. Sampson said Friday that the election drew about 1,400 voters who "turned out even in a winter storm." Voter turnout among younger tribal members was especially strong.

Sampson called the vote "democracy in action" and said the tribes' marijuana enterprise will being "much needed jobs and revenue to the Warm Springs people." "Tribal citizens demonstrated the power of their vote," he said.

He said the tribe will develop a "model" of regulated cannabis for other tribes to follow nationwide.

Warm Springs is the latest Native American tribe to enter the regulated marijuana market. Legal experts estimate that no more than a dozen tribes nationwide have started up marijuana enterprises. The Warm Springs proposal calls for production and processing at a facility on the reservation with marijuana sales at three tribal run stores off the reservation. Marijuana possession, while legal in Oregon, remains illegal on the warm springs reservation.

Thursday's vote is the first step in the process of entering the market. The tribe will meet with officials in Gov. Kate Brown's office to hash out the conditions under which the enterprise will operate. Two tribes in Washington recently brokered historic agreements with the state to sell marijuana on the state's recreational market.

Regular readers know that I have given particular attention to marijuana reform efforts among Native American communities, in large part because I think these communities, if they become active in the legalized marijuana industry, are likely to further advance the need for the federal government to give up on marijuana prohibition sooner rather than later.

December 19, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, December 16, 2015

Mixed outcomes for marijuana reform efforts in latest omnibus spending bill from Congress

Though there are a number of federal marijuana reform bills kicking around Congress, it seems very unlikely any of these bills will be moving forward anytime soon. In the meantime, though, marijuana reform issues and proposals keep coming up in debates over government spending bills.  And, in the wee hours last night, Congress passed a big new spending bill that included (and failed to include) some notable marijuana reform provisions.

Representative Earl Blumenauer, a supporter of federal marijuana reforms, issued today this press release summarizing what appears and does not appear in the omnibus bill.  Here is part of the text of this release:

Representative Blumenauer is pleased to see the inclusion of the following provisions in the omnibus package:

  • The policy championed by Representatives Dana Rohrabacher (R-CA) and Sam Farr (D-CA) that prevents the Department of Justice from interfering in the ability of states to implement legal medical marijuana laws (Division B, Title V, Section 542)
  • Language that supports industrial hemp research allowed under Section 7606 of the 2014 Farm Bill (Division B, Title V, Section 543 and Division A, Title VII, Section 763)

Representative Blumenauer is disappointed, however, that the bill falls short by not including provisions that:

  • Make it easier for banks to do business with state-legal marijuana businesses
  • Allow Veterans Health Administration providers to recommend medical marijuana to their patients in accordance with state law, a provision he championed in the House

Representative Blumenauer is also disappointed to see the continuation of a rider that interferes with Washington, DC's ability to pass laws dealing with the sale of marijuana for adult use.

December 16, 2015 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

The Solicitor General just gave SCOTUS a good reason to punt Nebraska's lawsuit against Colorado

The Solicitor General today responded to the Nebraska / Oklahoma legal action against Colorado in the Supreme Court. Per its practice, SCOTUS had requested the SG’s input. The brief can be found via a link here. (To provide some background, the SG handles all litigation involving the United States before SCOTUS, and it also commonly files amicus briefs in SCOTUS cases in which the U.S. is not a party. The SG’s positions can be quite influential on the Court.) For earlier postings on this case, see here, here and here.

In a nutshell, the SG argued that SCOTUS should refuse to exercise original jurisdiction over the action. Why? Perhaps most importantly, the SG suggested that the NE / OK suit didn’t fit the mold of cases over which SCOTUS had traditionally exercised original jurisdiction – namely, cases in which one state had directly harmed another. Importantly, the SG argued that CO hadn’t directly injured its neighboring states, e.g., by exporting marijuana or authorizing private citizens to do so. Rather, any injury NE / OK have suffered is more directly traceable to the actions of private parties who buy marijuana in CO and then take it outside the state.

Because it focused on SCOTUS practice, the SG did not need to weigh in on the merits of the underlying action. But I think the argument the SG makes favors CO, if SCOTUS (or another court) ever had to decide the matter. After all, if CO is not directly responsible for the injury to NE / OK’s regulatory interests, it’s hard to see why CO could be held responsible for any injury to federal regulatory interests. In other words, if CO isn’t responsible for people using marijuana in NE / OK, then it arguably isn’t responsible for people using marijuana in CO either.

As the SG itself notes, even if SCOTUS declines original jurisdiction over the suit, NE / OK could still file it in a federal district court. Of course, it would have to overcome some daunting procedural hurdles there as well (e.g. ,standing), as noted in the SG brief.

December 16, 2015 | Permalink | Comments (0)

Sunday, December 13, 2015

"Going to pot? Canada leads way in legalizing marijuana"

C24540ce42f399a040f0229561b41b51.774x437x1The title of this post is the headline of this recent article, which gets started this way: "Justin Trudeau raised eyebrows when he admitted to having dabbled in marijuana while a member of parliament, but his pledge as prime minister to legalize pot has been broadly cheered." Here is more:

He said in a policy speech on [last week] that his Liberal government would introduce legislation as early as 2016 to legalize marijuana, making Canada the first in the G7 bloc of industrialized nations to do so, although precise details remain sketchy.

Two in three Canadians support decriminalizing possession and use of the mind-altering weed, according to a recent Ipsos poll. Support is widespread and at its highest level in three decades, it said, even though cannabis use has fallen off.

Details of the Liberal plan haven't yet been released. However, it is expected to go much further by not only legalizing marijuana but also creating a regulated market for it, as Uruguay and a few US states have done. An estimated one million out of Canada's 35 million people regularly smoke marijuana, according to the latest survey taken in 2014.

Trudeau admitted in 2013 to having smoked pot five or six times in his life, including at a dinner party with friends since being elected to parliament. He has also said that his late brother Michel was facing marijuana possession charges for a "tiny amount" of pot before his death in an avalanche in 1998, and that this influenced his decision to propose legalizing cannabis. "I'm not someone who is particularly interested in altered states, but I certainly won't judge someone else for it," Trudeau said. "I think that the prohibition that is currently on marijuana is unjustified."

In 2014, there were just under 104,000 police-reported drug incidents in Canada. Of these, 66 percent were related to cannabis, primarily for possession, according to the official Statistics Canada. Police chiefs have urged legislative change allowing them to hand out fines for small amounts of pot possession instead of laying criminal charges to reduce policing and court costs, and to do away with such convictions affecting Canadians' travel, employment and citizenship....

The use of marijuana for medicinal purposes was effectively legalized in Canada in 1999, but subsequent efforts to soften Canada's pot laws went up in smoke with the election of Stephen Harper in 2006. Harper took a hard line against what he called a Beatles-era drug culture, saying cannabis was more dangerous for health than tobacco.

His former health minister Rona Ambrose, who succeeded Harper as Tory leader, warned that judicial rulings had chipped away at the 1923 cannabis prohibition before the drug could be shown in clinical trials to be safe to use. In June, she said she was "outraged" that the Supreme Court had expanded the definition of medical marijuana to allow users to bake it into cookies or brew pot leaves for tea instead of only smoking it.

The morning after the Liberals swept to power in October, pot stocks doubled in price as investors bet on firms already producing marijuana for medical use being able to quickly scale up to serve recreational pot users too. Only six firms were initially licensed by Health Canada to grow and sell medical marijuana in 2014. The number of licensees has since shot up to 26. 

For a variety of reasons, I think the commitment of Canada's new ruling party to create a legalized marketplace for marijuana up north could be extremely consequential for the on-going debate over marijuana reform throughout the United States.  In particular, if Canada does get a functional legalizaed marijuana market up and running in 2016, I think it will prove especially difficult for northern states throughout the US to resist reform efforts.  Thus, to parrot a famous South Park riff, if marijuana reform gets a significant boost from the north, supporters of preserving pot prohibition my want to "Blame Canada.

December 13, 2015 in International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, December 11, 2015

Should Cannabis Disputes Be Arbitrated?

   The  topic of this post is raised by an International Business Times article announcing the formation of the Cannabis Dispute Resolution Institute "a Denver nonprofit that aims to be the world’s first arbitration organization focused on marijuana." Here are some excerpts from the article beginning with the dilemma  faced by marijuana business people:

 At the time, the lawsuit must have seemed like an open-and-shut case. In August 2010, Arizona entrepreneurs Mark Haile and Michele Hammer each loaned $250,000 to  Today's Health Care II, aka “THC,” a medical marijuana dispensary in Colorado Springs, Colorado. But in March 2011, THC defaulted on its loan, which meant that, according to the  contract, the dispensary had to repay the principal loan at a default interest rate of 21 percent. When THC didn’t do so, the two lenders sued the business in Arizona Superior  Court in order to enforce their agreement.

             That didn’t happen.

That April, Judge Michael McVey threw out the lawsuit. The dismissal wasn’t due to errors in the contract or mistakes made by Haile or Hammer. The problem was the loan was for a marijuana business. In his ruling, which he admitted was “harsh,” McVey noted: “The explicitly stated purpose of these loan agreements was to finance the sale and distribution of marijuana. This was in clear violation of the laws of the United States. As such, this contract is void and unenforceable." 

“The cannabis industry is in a weird position because a lot of issues that other industries might handle in the court system are a little more fraught in the marijuana industry because everything brings up federal oversight, federal illegality, conflicts between state and federal law,” says Taylor West, deputy director of the National Cannabis Industry Association. “There is just this added wild card any time you are looking into the court system.”

 The founders [of the Cannabis Dispute Resolution Institute] say they’ve hit upon the sort of legal protection and stability all of these other businesses desperately need. That’s because according to the Federal Arbitration Act and repeated court decisions, arbitration arrangements are legally binding -- even if the matters being arbitrated are potentially illegal in the eyes of the court.

In short, CDRA aims to use federal arbitration law to circumnavigate federal drug law.

“The industry is being denied access to justice,” says Michael Reilly, one of CDRI’s principal founders and chairman of its advisory board. “Through arbitration, we can end up with a legal resolution to a dispute. There is a chance to be on the leading edge of this whole process.”

As the readers of this blog surely know, arbitration has its fans and its foes. The founders of the Institute are aware of this:

Finally, while bringing a notoriously pro-corporation dispute-resolution mechanism into the cannabis industry might be cause for concern among those who are already afraid that big-money interests are taking over the marijuana movement, Wells insists that CDRI isn’t just about helping marijuana businesses. It’s also about fixing the arbitration industry so it benefits everyone, he says. Among other things, CDRI arbitrations will allow parties the right to discovery, which many arbitration proceedings now limit, meaning that relevant company records won't be able to be concealed as part of the process. And when one of the parties is a consumer or an employee, the company on the other side of the dispute will shoulder 70 percent of arbitration costs.

“Arbitration has gone completely overboard in America,” Wells says. “We are taking a very different approach. We are trying to push the pendulum back in the other direction. Instead of arbitration being seen as obtrusive to  the little guy, we at least want an equal playing filed and a fair fight.”

    This is all very interesting as  another example of the fascinatingly fractured relationship between federal and state marijuana law. Put me in the "fine for b2b disputes but still worried about individuals camp." Comments please. 

December 11, 2015 | Permalink | Comments (0)

Wednesday, December 2, 2015

Interesting on-the-ground perspective on impact (or lack thereof) of marijuana reform from a Florida public defender

CBS News has this intriguing new first-person piece about marijuana reform authored by Kim Segal, who serves as a public defender in Broward County, Florida.  Here are excerpts:

A client called me to ask if I saw the news.  He was referring to the unanimous vote by the Broward County Commission that would allow law enforcement to issue a civil citation instead of filing a criminal misdemeanor charge against anyone caught with a small amount of marijuana.  The problem, I explained to my client, was that he was facing state charges. In the state of Florida marijuana is not only against the law but possession of a small amount is still punishable by a year in jail.  In case that punishment wasn't enough of a deterrent the state legislature included in the law that anyone adjudicated guilty on this charge will lose their driver's license for a year.

While it has been decided in our county that fines are appropriate for people caught with small amounts of marijuana there are still many people fighting the system.  They must fight to keep their license and to avoid a criminal charge on their record.

Take my client Drew Brown for example -- a young man who was getting ready to go to college to play football when he picked up a possession of cannabis 10 grams or less charge.  The state refused to drop the case. Considering the national climate on marijuana I thought Drew's case would be an easy one for the prosecutor to justify dropping.

Why?  This was a case of constructive possession as opposed to actual possession.  A basic explanation is the marijuana was not found on my client it was found in an area where other people had access to it.  Despite being adamant that the marijuana wasn't his, Drew had to go to trial if he wanted any chance of the charge going away. His record and his need for a driver's license while in college made the risky decision to go to trial easy for Drew.

As in all jury trials a panel of potential jurors was assembled.  After a couple hours of questioning the group of eighteen, we were left with six people who would decide whether Drew broke the law....  Drew told the jury he was walking to a friend's house when a guy he knew drove by and offered him a ride.  Drew was in the acquaintance's car for just a few minutes when he heard sirens and saw the lights from the police car behind them.  The car was being stopped for a traffic violation.  The driver continued a couple of blocks before stopping.  The driver said he was near a house where he knew people and he wanted to stop in a place where he would feel safe.  Once out of the vehicle the officers found marijuana under the passenger seat that Drew just vacated.  Drew told the jurors he had no idea the marijuana was there.

The officer didn't believe him so Drew was arrested for possession of marijuana.  Nary a bowl, pipe, wrapping papers or even a lighter was found on his person.  Drew faced a criminal charge for allegedly bending over while sitting in a car that had marijuana in a drawer under the passenger seat, that he unfortunately chose to sit in. Thankfully the jury had the good sense to find Drew not guilty.  This verdict only reinforced my thoughts on whether this case should have been pursued at all.

As headlines continue with stories about states and local governments decriminalizing the personal use of marijuana, the county court is still full of defendants facing this serious charge.  Just this week I have three possession of cannabis cases set for trial.  Until there's news that these criminal charges will be changed to civil infractions the court will be spending valuable time hearing about personal use of marijuana that often includes evidence of only residue and roaches.

December 2, 2015 in Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Tuesday, December 1, 2015

Lots of notable medical marijuana stories from various states during a holiday week

While on the road last week, I did not get a chance to blog about various interesting marijuana reform stories I noticed over the long holiday weekend.  Making up for the time away, here is a round up of some of the notable medical marijuana pieces from various states that emerged over the past week:

  • From Alabama here, "Epileptic mom who used marijuana raising funds to fight charges"

  • From Connecticut here, "One year later, patients swear by medical marijuana"

  • From Florida here, "Medical marijuana back in Florida political spotlight"

  • From North Dakota here, "Medical marijuana petitions to begin circulation in North Dakota"

  • From Wyoming here, "Medical marijuana proposal in peril as pro-pot group suffers from infighting in Wyoming"
  • From the AP here, "In Medical Marijuana States,' Pot Doctors' Push Boundaries"

December 1, 2015 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)