Thursday, March 31, 2016
The question in the title of this post is posed by one of my seminar students who will be presenting on this topic to the rest of the class this afternoon. Here is introduction for his colleagues and others interested in this engaging query:
Many players are pushing towards open marijuana policies because of the potential health benefits of marijuana use. Players argue that they can be taking marijuana instead of other synthetic pain killers to keep them on the field or court. The players arguments generally fall on deaf ears, the league doesn't want to have any of it.
Here’s why; The league is concerned about its image. In the code of every sports league is the phrase, “integrity of the game.” In other words, the league has the responsibility to uphold the integrity of the game. This applies to players conduct both on and off the field.
For conduct on the field, the league is concerned that marijuana use will effect players ability to play the game. The players abilities may become diminished by the use of marijuana which in turn would diminish the competitive integrity of the game. What if marijuana use improved players ability to play the game – would the league ban it similar to steroids or would the league embrace it because it makes the game more exciting? (Marijuana does not have the negative consequences typically associated with steroids, an argument for allowing its use.)
For conduct off the field, the league is concerned about its image. Every league has “body image issues.”
- NFL – Ray Rice, Adrian Peterson, Josh Gordon
- NBA – Donald Sterling…
- Olympics – Michael Phelps
The list goes on and on. The leagues want to keep a sterling image and the concern is that allowing marijuana use will taint their image. They are unlikely to move until marijuana use is more accepted. Its just good to keep things how they are for business purposes. They don't want to alienate fans.
On the other hand, leagues have incredible ability to shape policy. The leagues may even pave the way for legalization and normalization of marijuana use to treat pain if they would embrace the players requests. The more medical discovery regarding concussions and other ailments and its treatment of marijuana the more likely the leagues will become a factor in this arena.
Maybe even some leagues will fund a study?
Other interesting articles:
- "High Time For Hockey"
March 31, 2016 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Sports | Permalink | Comments (0)
Wednesday, March 30, 2016
The question in the title of this post is drawn from the headline of this new Washington Post piece headlined "How Vermont could change the marijuana legalization game," and which serves as a fitting as a fitting follow-up to my student's recent class presentation, Looking closely at how Vermont legislature is looking closely at marijuana legalization. Here are excerpts from the Post piece:
Over the past four years, marijuana legalization has come to the United States at a relatively fast pace, thanks to overwhelming support for it among young adults. But up until now, change has mostly come from the voters -- sometimes in spite of lawmakers' wishes.
That balance could be shifting toward legislators, at least in one state: Vermont. In the next few weeks, Vermont could become the first state legislature to legalize marijuana. At Gov. Peter Shumlin's (D) urging, a bill to make Vermont the fifth state to legalize recreational marijuana passed the state Senate in February and is currently being debated in the state House.
Its passage is not a given, but marijuana advocates are optimistic, both about the bill's chances and Vermont's ability to inject the marijuana legalization debate into even more state legislatures. For some marijuana advocates, the statehouse is yet one more path to legalization....
In 2004, Vermont was one of the first states to legalize medical marijuana through its state legislature. Since then, another one-fifth of the country has followed suit....
If Shumlin signs the bill this summer, Vermont residents won't be able to buy marijuana legally until January 2018. For the first few years, the state will also limit the number of marijuana licenses for selling and growing marijuana. In addition, public schools in Vermont would receive state-mandated drug education programs about marijuana a full semester before it's legal.
The slow, methodical approach to legalization is the main difference between Vermont and other states that legalized it via ballot initiatives, said Matt Simon, the New England head of the Marijuana Policy Project, which is lobbying for the bill's passage. Lawmakers will give themselves and state agencies plenty of time to prepare, train staff and come up with new regulations.
There are a few other ways Vermont's bill stands out: After watching Colorado struggle with how to regulate edibles, Vermont won't be legalizing those at all. Lawmakers also resisted marijuana advocates' lobbying to allow people to grow marijuana plants in their own homes. And if you want to invest in one of Vermont's marijuana stores, you'll have to move to the state and become a resident; no out-of-state funding is allowed.
Overall, Simon's group is happy with the bill and just as happy that Vermont is the first serious attempt to legalize marijuana via lawmakers and not voters. (At least one other state, Rhode Island, is considering a bill to legalize marijuana, but it's too early to tell whether that bill has a shot. New Hampshire's state House became the first chamber of any state legislature to vote on legalization when it narrowly passed a bill in 2014 but it died in the state Senate. Advocates tried again this February; it was defeated.)...
Ballot initiatives are the go-to method for marijuana legalization advocates for a reason. For one thing, advocates can shape the policy they want instead of trying to lobby lawmakers. And they've been pretty successful when it comes to marijuana. Outside of the outlier of Ohio, advocates' only notable defeat by ballot was in Oregon in 2012 -- and voters there legalized marijuana two years later.
There is also the simple fact that lawmakers with jobs on the line are less apt to get ahead of social change. Should the nascent recreational marijuana experiment go sideways, lawmakers would rather not have that vote on their records. Take same-sex marriage, for example. Most of the state legislatures that approved same-sex marriage didn't do so until around 2013, when polls showed more than half the country supported it....
Putting legalization to a vote is especially popular in a presidential year, when advocates can piggyback on the higher turnout and more intense media coverage. This year, Arizona, California, Nevada, Ohio, Maine and Massachusetts are all expected to have some kind of legalization question on their ballot, whether medical or recreational.
But ... researchers have argued that ballot initiatives risk glossing over boring-but-important details, which so happen to be the very same information lawmakers spend countless hours chewing over. "Ballot initiatives are a terrible way to make policy changes when the technical details matter," wrote drug policy expert Mark Kleiman in 2014. Kleiman ran Washington's regulation team after voters there legalized it in 2012. Without lawmakers' input at both the state and federal level, Kleiman envisioned a not-too-distant future where the cannabis industry has an undue amount of power to shape legalization. And that, he says, is reason for even reluctant lawmakers to get off the sidelines on legalization....
Opponents to legalization argue the cannabis industry already has too much influence, no matter who legalizes marijuana. "My biggest concern is creating Big Marijuana -- sort of like Big Tobacco," Kevin Sabet, a former drug policy official with the Obama administration and president of Smart Approaches to Marijuana, or SAM, told Vox in March . SAM argues the same players that are active in ballot initiatives are funneling resources to shape Vermont's debate, so there's no real substantial difference in what Vermont lawmakers are considering to what Colorado or Washington voters decided. "It's a distinction without a difference," said Jeffrey Zinsmeister with SAM.
March 30, 2016 in Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
The title of this post is the notable headline of this notable Vanity Fair article, which serves as a very fitting follow-up to my students' recent class presentation on Women & Weed: Blazing A Trail Toward Nationwide Legalization. Here are the details:
Whoopi Goldberg has had it with cramps and had it with stoner jokes, and now she’s doing something about both. Goldberg announced Wednesday that she’s launching a medical-marijuana company with Maya Elisabeth, one of the leading “canna-businesswomen” in the field, with a line of products designed to provide relief from menstrual cramps.
The company, Maya & Whoopi, will offer cannabis edibles, tinctures, topical rubs, and a THC-infused bath soak that it describes as “profoundly relaxing.” Frankly that last one, even though your humble reporter is a man, sounds incredible.
In an interview with Vanity Fair, The View co-host said she wanted to create a product for women that was discreet, provided relief, and wouldn’t leave you glued to your couch. “For me, I feel like if you don’t want to get high high, this is a product specifically just to get rid of discomfort,” she says. “Smoking a joint is fine, but most people can’t smoke a joint and go to work.”
“This, you can put it in your purse,” Goldberg continues. “You can put the rub on your lower stomach and lower back at work, and then when you get home you can get in the tub for a soak or make tea, and it allows you to continue to work throughout the day.”
Goldberg has been outspoken about her medical-marijuana use in the past. In 2014, she wrote in The Cannabist about her love of her kush-filled vape pen, which she says gives her relief from glaucoma-related headaches without resorting to eating handfuls of Advil every day . “I started using the vape pen because I stopped smoking cigarettes about four years ago and discovered I couldn’t smoke a joint anymore,” she says. “The relief that I got with the vape pen was kind of different from what I got with smoking. I could control it much better.”
If it worked so well for headaches, surely it could be applied to other aches, so Goldberg got in touch with a couple of industry experts to see if there was already anything on the medical-marijuana market for cramps. They told her no, because it was seen as a niche. At this point in the interview, Goldberg stops to give an exasperated chuckle. “Hey, this niche is half the population on the earth,” she says. “This seems to be people flippantly blowing you off, which is what you get whenever you start talking about cramps. They weren’t thinking how do you target this? I have grown granddaughters who have severe cramps, so I said this is what I want to work on.”
Goldberg then got in touch with Elisabeth, the owner of the female-run medical-marijuana cannabis company Om Edibles in northern California, and the two were off to the races.... Goldberg stands by her product for the same reason she favors it over painkillers for headaches. She says you’ll be able to look at the ingredients on any Whoopi & Maya package and know exactly what’s in it. (Queen Victoria, by the way, supposedly used a marijuana tincture to relieve menstrual cramps, so it basically has the seal of approval from the British royalty.)
For those who don’t have much experience in the field, Whoopi & Maya will also include products with only cannabidiol (CBD), which lacks the euphoric effects commonly associated with marijuana. The whole line is scheduled to be available in April. For now, thanks to the patchwork of state medical-marijuana laws and the continuing federal ban on the substance, it will only be available in California.
Examining the modern intersection of the drug war and deportations (with a special focus on marijuana)
This week's presentation in my marijuana reform seminar is focused on immigration law and the "war on drugs." My student will be presenting, I believe, some original empirical research; as background reading he suggested this 2014 Huffington Post piece headlined "The Drug War = Mass Deportation: 250,000 Deported for Drug Offenses in Last 6 Years." Here is how this piece gets started (with links from the original):
The drug war has increasingly become a war against migrant communities. It fuels racial profiling, border militarization, violence against immigrants, intrusive government surveillance and, especially, widespread detentions and deportations.
Media and politicians have tried to convince us that everyone who gets deported is a violent criminal, a terrorist or a drug kingpin. But a newly released, first-of-its-kind report shatters that notion, showing instead that the majority (some two-thirds) of those deported last year were guilty of minor, nonviolent offenses — including thousands deported for nothing more than possessing small quantities of drugs, typically marijuana.
The report, an analysis of federal immigration data conducted by the Transactional Records Access Clearinghouse at Syracuse University, details how roughly 40,000 people have been deported for drug law violations every year since 2008. That means that nearly 250,000 — one-quarter of a million — people were deported for nonviolent drug offenses in just the past six years. A nonviolent drug offense was the cause of deportation for more than one in ten (11 percent of) people deported in 2013 for any reason — and nearly one in five (19 percent) of those who were deported because of a criminal conviction.
Much as the drug war drives mass incarceration, it also appears to be a major driver of mass deportation. Indeed, the report reveals that simple marijuana possession was the fourth most common cause of deportation for any crime, and the most common cause of deportation for crimes involving drugs. On average, more than 6,600 people were deported in each of the last two years just for personal marijuana possession, and overall, nearly 20,000 people were deported last year for simple possession of any drug or drug paraphernalia.
By contrast, relatively few of those deported were drug traffickers, let alone violent ones. “Convictions for drug trafficking accounted for only one percent of deportees recorded as convicted of a crime,” the report’s authors note, “while marijuana possession was more than three times that level.”
March 30, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)
This new Washington Times article, headlined "Gary Johnson predicts Obama will reclassify marijuana on way out of office," reports on some interesting comments by one candidate aspiring to be in the Oval Office about what its current occupant will do before he leaves. Here are the details:nbsp;
Former New Mexico Gov. and 2016 Libertarian White House hopeful Gary Johnson says he thinks President Obama is going to remove marijuana from the government’s “Schedule I” list of narcotics considered particularly harmful and addictive on his way out of office.
“It’s going to be just like alcohol,” Mr. Johnson told The Washington Times Tuesday. “I’m going to predict that Obama, when he leaves office, is going to deschedule marijuana as a Class I narcotic. I wish he would have done that to this point, but I think he’s going to do that going out the door. That’s a positive.”...
Democratic presidential front-runner Hillary Clinton, among others, has suggested reclassifying the drug under Schedule or Class II. Those drugs include cocaine, but also certain painkillers like oxycodone that are available with a medical prescription.
Mr. Johnson’s campaign followed up by saying that the former governor would prefer that the president remove marijuana from the controlled substances list entirely, allowing states to legalize and regulate as they and their voters choose. But the campaign said most discussion and a more likely near-term step has centered around reclassifying it to Schedule II, which would remove a barrier to prescribed medical uses, though they said that either move would be a step in the right direction.
Mr. Obama has said that Congress can move on such a reclassification. “What is and isn’t a Schedule I narcotic is a job for Congress,” Mr. Obama said in a 2014 interview with CNN. “It’s not something by ourselves that we start changing … no, there are laws undergirding those determinations.”
Tom Angell, chairman of the advocacy group Marijuana Majority, said the attorney general and the secretary of Health and Human Services can move to get rescheduling done without further legislation under the Controlled Substances Act. “It’s tough to predict what the president will do on this issue before he leaves office, but if he’s willing to uphold his pledge to set policy based on science, and he listens to the majority of Americans who support marijuana reform, he will exercise his administrative authority for rescheduling,” Mr. Angell said.
Mr. Johnson pointed out that there are still some “dry counties” in the country with respect to alcohol and predicted marijuana would eventually be in that same category. “I think every municipality has to realize that all the planes to Denver every single weekend are filled up, and that they’re missing out, and Colorado is absolutely vibrant,” he said. “Is it due to marijuana? I think it’s a contributing factor.”
March 30, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Tuesday, March 29, 2016
Regular readers are accustomed to hearing me sing the praises of the work being done by the The Brookings Institution on the legal, political and social realities surrounding modern marijuana reform. The latest terrific Brookings publication in this arena is this long piece authored by John Hudak and titled "The Medical Marijuana Mess: A prescription for fixing a broken policy." The lengthy piece merits the time to read in full, and here are just a few snippets:
Takoma Wellness may be less than three years old, and its business an exotic novelty in the District of Columbia, but Rabbi Kahn is part of a long line of healers — some of them religious leaders like himself — who have been treating the sick with cannabis for millennia. During earlier eras, marijuana was much more commonly recommended for medical purposes than it is now. Five thousand years ago the Chinese, for example, were using cannabis as an appetite stimulant, pain reliever, and anesthetic. British physicians used cannabis for a variety of illnesses and disorders, even administering it to Her Majesty Queen Victoria for pain. As recently as the early 20th century, doctors in the United States, too, found medical applications for marijuana, using it as an anti‐convulsive drug, a pain reliever, and an anti‐inflammatory....
Under federal law, there are no conditions that allow a doctor to prescribe marijuana, a pharmacy to dispense it, or a patient to buy or use it. Marijuana is illegal. Period.
The reason for this is that according to federal law — the Controlled Substances Act — marijuana is classified as a “Schedule I” substance. As explained on the DEA’s website, federal law reserves the Schedule I classification for the “most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence” and with “no currently accepted medical use.” In addition to marijuana this category also includes drugs like heroin, LSD, and ecstasy.
The decision about what drugs should appear in each of the five “Schedules,” which range from the most dangerous and addictive to the least, with only Schedule I drugs ranked as having no medical value, was not made by anyone in the medical community, but by Congress. In 1970, Congress passed the Controlled Substances Act — a politically motivated law enacted at a time of national hysteria over drug abuse, and President Richard Nixon signed it into law. With the exception of a few relatively minor changes in the years since, the drug schedules included in the Controlled Substances Act have remained the same, including the Schedule I designation for marijuana.
The fact that marijuana’s therapeutic effects are real — as evidenced by what science says about its effects on the human body, and supported by hundreds, indeed thousands of years of effective treatments in places around the globe — has not sufficed to get it removed from that list. This is unfortunate, because the Schedule I designation has consequences that extend beyond the legal restrictions. It has created negative cultural norms — biases — that permeate much of society. Patients wanting to be treated with marijuana are often embarrassed and scared — even after a doctor has recommended that they use it, and they’ve gotten the approval of state authorities to do so. For some first‐time medical marijuana patients, a trip to the dispensary is not like a stroll to the pharmacy with a prescription for a drug like amphetamines, or oxycodone, or morphine, or compounds that include cocaine, all of them Schedule II drugs; it’s more like a teenager’s trip to the corner store for condoms.
That social stigma likely keeps many sick people from even considering marijuana as an option. For them, there will never be an opportunity for responsible dispensary owners like Rabbi Kahn to have the chance to calm their nerves and show them that purchasing pot is not shameful — and that using it can be helpful.
Tuesday, March 22, 2016
Ballot Initiative 71: The referendum that overwhelmingly passed after a vote by D.C. residents on On November 14, 2014, making it legal to posses up to two ounces of marijuana for medical use, to grow up to six cannabis plants, and to sell paraphernalia for drug use, but not to transfer marijuana for money.
DC's Marijuana Law: Explained: A brief video by the Washington Post that explains what "you need to know to smoke pot in DC" released after BI-71 became effective.
DC Council Warned Not to Regulate Marijuana: Detailing a letter from the District's AG to the DC Council warning that holding a hearing on regulating marijuana would be in violation of Congress' mandate that the Council not use any of its budget to regulate marijuana--an example of the tense cannabis standoff between Congress and D.C.'s self-governing body.
Weed is Legal in DC, so Why is No One Acting Like It?: New York Magazine article detailing the complex realities of marijuana laws in Washington, D.C. and their on-the-ground impact.
Marijuana Arrests Down 85% After One Year: According to data from the Metropolitan Police Department, "[o]verall, marijuana arrests [in D.C.] decreased by 85% from 2014 to 2015. Marijuana possession arrests fell from 1,840 in 2014 to just 32 in 2015."
Kush Gods Pleads Guilty: One of the first entrepreneurs to openly sell marijuana in the BI-71 created "gray market" pleads guilty on March 21, 2016 to two counts of selling marijuana to an undercover police officer.
March 22, 2016 in Assembled readings on specific topics, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
After a week off for Spring Break, the students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform are back to assembling readings on particular topics in preparation for an in-class presentation/discussion. One of the presentations scheduled for this week is to focus on bankrupcy laws and their general unavailability to marijuana businesses, and here are readings that my student has assembled on this front:
Monday, March 21, 2016
SCOTUS rejects original lawsuit brought by Nebraska and Oklahoma against Colorado over marijuana reform
Legal gurus closely following state-level marijuana reforms have been also closely following the lawsuit brought directly to the Supreme Court way back in December 2014 by Nebraska and Oklahoma complaining about how Colorado reformed its state marijuana laws. Today, via this order list, the Supreme Court finally officially denied the "motion for leave to file a bill of complaint" by Nebraska and Oklahoma against Colorado. This is huge news for state marijuana reform efforts, but not really all that surprising. (It would have been bigger news and surprising if the motion was granted.)
Notably, Justice Thomas authored an extended dissent to this denial, which was joined by Justice Alito. Here is how this dissent stats and ends:
Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint....
Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See Controlled Substances Act (CSA), 84 Stat. 1242, as amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846 (2012 ed. and Supp. II). Emphasizing the breadth of the CSA, this Court has stated that the statute establishes “a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Gonzales v. Raich, 545 U.S. 1, 12 (2005). Despite the CSA’s broad prohibitions, in 2012 the State of Colorado adopted Amendment 64, which amends the State Constitution to legalize, regulate, and facilitate the recreational use of marijuana. See Colo. Const., Art. XVIII, §16. Amendment 64 exempts from Colorado’s criminal prohibitions certain uses of marijuana. §§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an excise tax for sales of marijuana from cultivation facilities to manufacturing facilities and retail stores. §16(5)(d).
In December 2014, Nebraska and Oklahoma filed in this Court a motion seeking leave to file a complaint against Colorado. The plaintiff States — which share borders with Colorado — allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. See Complaint ¶¶54–65. They claim that Amendment 64 has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them to expend significant “law enforcement, judicial system, and penal system resources” to combat the increased trafficking and transportation of marijuana. Id., ¶58; Brief [for Nebraska and Oklahoma] in Support of Motion for Leave to File Complaint 11–16. The plaintiff States seek a declaratory judgment that the CSA pre-empts certain of Amendment 64’s licensing, regulation, and taxation provisions and an injunction barring their implementation. Complaint 28–29.
The complaint, on its face, presents a “controvers[y] between two or more States” that this Court alone has authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States’ claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation.
Cross-posted at Marijuana Law, Policy & Reform.
March 21, 2016 in Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)
Sunday, March 20, 2016
As regular readers of my Sentencing Law and Policy blog should know, careful and responsible researchers and advocates should be careful and cautious about making any bold assertion about which kinds of laws and legal reforms may or may not impact crime rates. Just about every pundit who ever asserts boldly that this reform or that reform certainly will (or certainly won't) reduce or increase crime is proven wrong at some point in some way. For that reason, I am generally disinclined to put too much stock in any assertions that marijuana reform definitely will or definitely won't lead to a change in serious crime rates in a jurisdiction.
That all said, I think it is very important to keep an eye on any notable corrections between reported crime rates is jurisdictions that have reformed its marijuana laws. And, I just came across a few recent postings by Sierra Rayne at the American Thinker website that present data showing significant crime spikes in key marijuana reform jurisdictions. Going through the author's posting archive, I found this array of posts that ought to be of interest to everyone following the impact of marijuana reforms:
As these post headlines perhaps reveal, the author of all these pieces seems quite interested in making the case that there is a causal link between marijuana reform and increases in crime. But even if these posts involve an effort to spin crime data to serve a particular agenda, the data assembled in these posts are disconcerting (and perhaps help explain why we are not hearing from marijuana reform advocates the claim that reform contributes to a decrease in crime).
Critically, lots of crime rates were up in lots of urban and suburban US regions throughout the end of 2014 and through all of 2015; spikes in crime rates in marijuana reform cities might ultimately reflect some broader national trends that have no direct link to marijuana laws and related practicalities. In addition, especially because marijuana reformers reasonably assert that legalization enables law enforcement to refocus energies on more serious crimes, I wonder if any crime spikes in reform cities might reflect, at least in part, the ability for cops on the beat to discover a greater percentage of serious crimes that we already happening but were going unreported before marijuana reform.
I am hopeful (though not all that optimistic) that over time we will see more and more careful analyses of patterns of crime in the wake of local, state and national marijuana reforms. In the meantime, though, I want to complement Sierra Rayne for keeping an eye on this important issue, and I robustly encourage everyone else interested in marijuana reform to look closely at all the emerging data in this space.
March 20, 2016 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Friday, March 18, 2016
"One Toke Too Far: The Demise of the Dormant Commerce Clause's Extraterritoriality Doctrine Threatens the Marijuana-Legalization Experiment"
The title of this post is the title of this notable new and timely piece of legal scholarship authored by Chad DeVeaux now available via SSRN. Here is the abstract:
This Article argues that the pending feuds between neighboring states over marijuana decriminalization demonstrate the need for a strict doctrine limiting a state’s regulatory authority to its own borders. Precedent recognizes that the dormant Commerce Clause (DCC) “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state.” This prohibition protects “the autonomy of the individual States within their respective spheres” by dictating that “[n]o state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” But this principle was called into doubt last summer by the Tenth Circuit, which concluded that this “most dormant doctrine in [DCC] jurisprudence” had withered and died from nonuse.
The Tenth Circuit’s conclusion, which approved Colorado’s purported direct regulation of coal-fired power generation in Nebraska, ironically coincided Nebraska’s (and Oklahoma’s) attempt to enjoin Colorado’s pot-friendly laws. Nebraska contends that Colorado’s commercial pot market allows marijuana to “flow . . . into [Nebraska], undermining [its] own marijuana ban, draining [its] treasur[y], and placing stress on [its] criminal justice system.” While Colorado celebrated its new-found power to impose its legislative judgments on Nebraskans, the festivities might be short lived. Colorado failed to recognize the impact the extraterritorial doctrine’s apparent demise will have on its own marijuana-legalization experiment. If Colorado is empowered to regulate coal burning in Nebraska because of its effects in Colorado, what prevents Nebraska from projecting its own laws across the border to regulate Colorado marijuana transactions that affect a substantial number of Nebraskans?
As reported in this local article, headlined "Oregon collects three times expected amount of recreational marijuana taxes in first month," Oregon voters' decision to embrace full marijuana legalization is already producing much-more-than-expected tax revenues for the state. Here are the details:
Oregon brought in more than three times the expected amount of recreational marijuana tax money in the first month it was collected from dispensaries, potentially moving up when the state distributes revenue to cities and counties. Officials estimated that January might bring in about $1 million in taxes, said Derrick Gasperini, communications manager for the state Department of Revenue. Figures released Wednesday by the department showed that the state collected $3.48 million in taxes for recreational marijuana sales in January. “It does exceed projections,” he said.
As part of a startup year for a recreational marijuana industry in Oregon, dispensaries selling medical marijuana that registered with the department were allowed to sell to recreational buyers. The state requires those dispensaries to charge a 25 percent tax on recreational sales. Medical marijuana sales in Oregon remain untaxed.
That could mean that the tax figures indicate that dispensaries around Oregon sold nearly $14 million worth of recreational marijuana in the first month of taxed sales, but Gasperini cautioned that the estimation could be incorrect. “The Department of Revenue is not going to make any statements on sales until we have some (tax) returns,” he said. The returns will be submitted by dispensaries later this year.
Dispensaries around the state that sell recreational marijuana collected the taxes in January and gave them into the state between Feb. 1 and March 4, according to the Department of Revenue. The department received 253 tax payments from the 309 registered to sell recreational marijuana that month in Oregon. Gasperini explained that not all those registered turned in tax payments because “they may not have made any (recreational) sales,” he said....
A better financial picture of marijuana sales in the state should come after the end of the quarter, the first three months of the year, when he said the department will have more precise figures. For now, he also did not have a breakdown of how much in recreational pot tax money was collected by each county....
Eventually, tax money brought in from recreational marijuana sales will be divided among a variety of accounts: 40 percent for the common school fund, 20 percent for mental health, 15 percent for state police, 10 percent for cities, 10 percent for counties, and 5 percent for the state Health Authority. But that is only after the cost of running the state recreational marijuana program is taken out of the tax revenue. Before even reaching the point of distributing the tax money, the Department of Revenue and the Oregon Liquor Control Commission first must recoup their costs of starting up the program Gasperini said....
More taxes coming in than expected could accelerate the state’s move to dolling out the money. Department officials had expected the first distributions to come in July 2017. Gasperini said now they very likely will come sooner.
The current tax model for recreational pot is only set to be in effect this year in Oregon. At the start of next year, retail outlets selling solely recreational marijuana can open. The state plans to tax them at 17 percent, with local governments able to add another 3 percent in taxes.
Thursday, March 17, 2016
The title of this post is the headline of this terrific new BuzzFeed News piece authored by Amanda Chicago Lewis spotlighting how the marijuana industry has a notable look to it that ought to trouble progressives eager to see such an industry develop. Here are a few extended exceprts from the must-read (and lengthy) article:
When Colorado’s first medical marijuana dispensaries opened in 2009, Unique Henderson was psyched. He’d been smoking weed since he was 15, and he’d even learned how to grow, from his ex-girlfriend’s father. He spent $750 on classes about how to run a cannabis business, and then he and a friend both applied to work at a Denver pot shop.
Then only his friend was hired. Henderson was more than qualified, so why didn’t he get the gig? His friend asked the managers and came back with infuriating news: Henderson was not allowed to work in the legal cannabis industry because he had been caught twice with a joint’s worth of pot as a teenager back in Oklahoma, and as a result he has two drug possession felonies on his record.
For most jobs, experience will help you get ahead. In the marijuana industry, it’s not that simple. Yes, investors and state governments are eager to hire and license people with expertise in how to cultivate, cure, trim, and process cannabis. But it can’t be someone who got caught. Which for the most part means it can’t be someone who is black.
Even though research shows people of all races are about equally likely to have broken the law by growing, smoking, or selling marijuana, black people are much more likely to have been arrested for it. Black people are much more likely to have ended up with a criminal record because of it. And every state that has legalized medical or recreational marijuana bans people with drug felonies from working at, owning, investing in, or sitting on the board of a cannabis business. After having borne the brunt of the “war on drugs,” black Americans are now largely missing out on the economic opportunities created by legalization.
Nobody keeps official statistics on race and cannabis business ownership. But based on more than 150 interviews with dispensary owners, industry insiders, and salespeople who interact with a lot of pot shops, it appears that fewer than three dozen of the 3,200 to 3,600 storefront marijuana dispensaries in the United States are owned by black people — about 1%.
At this rare and decisive moment in American history, state governments are literally handing control of a multibillion-dollar industry to a chosen few, creating wealth overnight. The pot trade has long been open to anyone with some seeds and some hustle, so there are more than enough cannabis experts out there to form a truly diverse industry — if only the laws weren’t systematically preventing thousands of qualified black people from participating....
Legalizing marijuana sounds revolutionary, but with every day that passes, the same class of rich white men that control all other industries are tightening their grip on this one, snatching up licenses and real estate and preparing for a windfall. First-mover advantage, they call it. That means that anyone who doesn’t make the risky leap to violate federal law and get involved now will miss out, forever. In a few years, when the land grab is over, the cannabis industry may become just another example in America’s never-ending cycle of racially motivated economic injustices....
Last year, Oregon made it easier to get past cannabis convictions expunged from people’s criminal records, partly with the goal of helping more people of color become eligible to participate in the recreational industry there. But attempts at giving anyone a leg up in the licensing process to account for past disparities have largely been unsuccessful. In Illinois, where people with drug felonies are not even allowed to be medical marijuana patients, the state gave a tiny boost to the licensing applications of minorities and women. But officials declined to say whether any of the applications that received the boost resulted in a license, as the records are not subject to disclosure laws. The Legislative Black Caucus of Maryland fought for a much more significant boost, but the state attorney general struck it from the law, saying it could be justified only in an existing industry with documented disparities.
The most promising legal attempts to acknowledge the disproportionate effects of marijuana prohibition are written into the 2016 recreational-use ballot initiatives in Massachusetts and California, which allow all cannabis felons to participate in the industry. In a groundbreaking turn, both initiatives also offer the closest thing possible to reparations for the war on drugs: earmarking tax dollars from the industry for job training and other programs in the communities that have been most affected by past narcotics policies — language designed to avoid the legal complications of explicitly mentioning race.
But even if California’s recreational-use initiative passes in November, the medical market there will still exclude most drug felons, a situation that frustrates California NAACP President Alice Huffman. “There are not many jobs out there for black folks,” she said. “There is an underground market for marijuana and a large part of our community participates in it. A lot of people in the inner city live on those drugs, and we don’t like to admit that.” Legalization, she said, “might be an opportunity for economic development for everyone in the community with a business mind.”
And yet many of the black people “with a business mind” who have tried to get involved in marijuana have already encountered the same racism and disproportionate policing as before pot became legal. BuzzFeed News spoke with over two dozen black cannabis entrepreneurs across the country and heard the same frustrations again and again: the secret decision-making that drives local politics, the unsavory euphemisms and selective application of existing law, and the maddening inability to distinguish bias from circumstance.
March 17, 2016 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)
As reported in this local article out of the Keystone State capital, the "House on Wednesday approved allowing the medical use of marijuana in Pennsylvania, sending the legislation to the Senate, which has approved medical cannabis bills in the past." Here is more:
The vote was 149-43, with all voting Democrats and more than half of Republicans in support. Advocates and Gov. Tom Wolf applauded the House vote, which followed emotional debate from supporters and opponents alike.
Julie Michaels, who has traveled to the state Capitol from her home in Fayette County to advocate for medical marijuana, said she felt a “huge sense of relief that we got through the House, which had been our biggest stumbling block to this point.”
“Hopefully everything will be smooth sailing from here, straight to the governor’s desk,” said Ms. Michaels, whose daughter Sydney, 6, has Dravet syndrome, a form of intractable epilepsy.
The Senate approved medical marijuana legislation in 2014 and again last year. For the proposal that passed the House on Wednesday to reach the governor’s desk, the Senate will have to agree with changes made by the House. Sen. Mike Folmer, R-Lebanon, a major proponent of medical marijuana in the Senate, says he has to review the House amendments, but added, “We want to get this done ASAP.”
On the House floor, Rep. Jeff Pyle, R-Armstrong, said that years ago he was diagnosed with renal cell carcinoma and underwent a lengthy surgery. He said he was told that his cancer is hereditary, and he told his fellow representatives that he has two daughters. “With the odds somewhat likely that they’ll deal with this, too, I want them to have access to comfort that I did not have,” he said, his voice sounding strained. “Please let my kids have access to this.”
House Health Committee Chairman Matt Baker, R-Tioga, warned that by authorizing medical marijuana, Pennsylvania would bypass the Food and Drug Administration approval process and go against the recommendations of medical associations. He pointed, for example, to opposition from the American Epilepsy Society. “I cannot remember when the last time this august body voted on a bill that was in direct violation of federal law,” Mr. Baker said.
The legislation that that passed the House would establish a system of growers and dispensaries to provide marijuana to patients with certain conditions — including cancer, epilepsy, HIV and AIDS and post-traumatic stress disorder — and who have been certified by a doctor. Patients would be allowed to use marijuana in the form of a pill or oil or through vaporization, among other methods, but they would not be allowed to smoke it.
Sales from growers and processors to dispensaries would be taxed at 5 percent, with the money paying for Department of Health operations related to the program, for law enforcement and drug abuse services and for research about medical marijuana.
Gov. Tom Wolf, who has urged the General Assembly to pass the legislation, said in a statement that he looks forward to the Senate sending him the bill. “We will finally provide the essential help needed by patients suffering from seizures, cancer and other illnesses,” Mr. Wolf said.
Tuesday, March 15, 2016
The title of this post is the headline of this notable new Atlantic magazine story. Here is how it gets started:
In the summer of 2014, The New York Times published its first-ever marijuana ad. The occasion was the enactment of New York’s Compassionate Care Act, which legalized pot for some medical uses. The ad, a congratulatory note from a Seattle start-up, depicted a well-dressed, newspaper-toting man standing on his stoop while a young woman jogged past. Both wore determined expressions; the man, according to the text, consumed marijuana “to relieve his MS symptoms,” and the woman used it “while fighting cancer.” The ad made sense for its time and place. Earlier that year, Colorado and Washington State had begun allowing the sale of recreational pot, and critics were warning that as more states followed suit, profit-motivated corporations could start marketing a lot of pot to a lot of people. Savvy marijuana businesses, worried about confirming this suspicion, stuck to depictions of their most sympathetic users.
Pot’s image problem has since begun to fade, especially in states like Washington and Colorado. Two more states, Oregon and Alaska, have legalized the recreational use of marijuana, and several others may soon have the opportunity to join them. But the people who sell the drug are facing a predicament. In a legal market, cannabis — the plant from which pot is derived — comes to resemble many other farmed products: One grower’s plant looks and tastes a lot like his neighbor’s. (Some pot connoisseurs with sensitive palates can differentiate among strains of cannabis — and even among brands — but they’re as rare as the coffee drinker who can guess his beans’ origins.) John Kagia, the director of industry analytics at New Frontier, which studies the marijuana business, is convinced that pot is becoming commoditized. In Colorado, the supply of marijuana flower is going up, and its cost down, partly because of technological advancements and larger, more efficient operations — just the kind of forces that have turned other products into commodities.
Pot businesses are, above all, businesses, and they’re responding as businesses do: with marketing aimed at convincing longtime pot users that their brand is better than the others—and, just as important, at increasing demand by encouraging curious nonusers to try their product first. In other words, marijuana companies would like to sell a lot of pot to a lot of people. “Now that marijuana has been legalized, we have the opportunity to market it to a mainstream audience,” Olivia Mannix, a co-founder of a marketing agency called Cannabrand, told me. But making good on that opportunity has required changing the way people think about the drug. In this regard, the early associations between pot and medicine—and hence harmlessness, even wellness—were helpful. Since then, the tactics have gotten more sophisticated.
Early on, Mannix and her business partner, Jennifer DeFalco, decided to avoid certain slang associated with old-school stoner culture—ganja, weed, pot, even getting high. Instead, in conversations with journalists and in ads for their clients, they use the pleasant-sounding cannabis. One dispensary chain they advised swapped out the off-putting metal safety bars on its windows for frosted glass. When Mannix and DeFalco design ads or logos for clients, they use a lot of white space and replace bright-green color schemes with cool grays and blues. “A lot of clients come to us saying they want to look like Apple,” Mannix told me.
Tuesday, March 8, 2016
As reported in this local article, a special state Senate Committee in Massachusetts released today a big new report on what the state need to think about if (when?) voters this fall enact marijuana legalization by initiative. The full report is available at this link, and it runs 100+ pages. The local press article, headlined "7 takeaways from the special report on marijuana legalization in Massachusetts," provides these useful highlights:
A special state Senate committee, whose members recently traveled to Colorado to see the legal cannabis industry up close, issued its official report on Tuesday, sounding a skeptical note on legalization and hoping to promote a cautious approach.
Here are some takeaways from the report:
- The report recommends heavily taxing marijuana if it's legalized. The report calls for an excise tax of between 5 percent to 15 percent collected from growers, a marijuana-specific sales tax of 10 percent to 20 percent, and a local option sales tax of up to 5 percent. That's just to start.
- The committee's report wants "strict" limits on the marketing, advertising and promotion, including a prohibition of restriction on marijuana advertising on television, radio, print, billboards and other forms of media. Health risks would have to be put on advertising and marketing, free samples and coupons would be banned.
- No celebrity endorsements: The report wants a ban on those and brand sponsorships "that may increase appeal to youth."
- The report wants a ban on "home growing" or at least a temporary prohibition, and also recommends aggregate limits on how much marijuana could be grown in the state each year.
- The report estimates 885,000 Massachusetts residents used marijuana in the last year -- almost half of them youth and young adults under 25 years old -- consuming a total of 85 metric tons (or 3 million ounces) of marijuana. That's compared to 3.1 billion servings of beer, wine and spirits in 2012, the report says.
- One in four high schoolers used marijuana in the last year. One in five Massachusetts marijuana users smoke it daily.
- Addiction hits one in nine users, the report claims. The report calls marijuana overdoses "rare" and says it does not lead to death, qualifying it with it potentially leading to "psychotic events." The report adds: "Pregnant women who use marijuana increase the risk of damage to the fetal brain."
If recreational marijuana is legalized by Massachusetts voters, "it will be critical to dedicate sufficient time, expertise, and resources to ensure as smooth an implementation as possible, which nevertheless is likely to be challenging," the report says.
State officials struggled to implement a medical marijuana program after Massachusetts voters approved it in 2012, the same year Colorado legalized recreational marijuana. Four years after the approval of medical marijuana, there are six dispensaries are open across Massachusetts, as patient demand for products has surged.
As I mentioned in this prior post, the students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform are now assembling readings on particular topics in preparation for an in-class presentation/discussion. The last of three presentations scheduled for this week is going to focus on marijuana as a treatment for mental disorders, and here are the readings (with brief summaries) that my student has assembled on this front:
This article discusses many popular strains of Cannabis and explains how these strains stabilize the mood of the smoker. According to this article, not all Cannabis is created equal. Certain strains can be smoked to treat different elements of certain mood disorders.
Cannabis is used to treat PTSD. It is also used to treat Depression. Research on rats found that stress reduces the production of endocannabinoids, which affect cognition, emotion, and behavior. Since Cannabis contains cannabinoids, it replenishes the stressed smoker’s depleting endocannabinoids. This helps treat the smoker’s mood disorders.
This article states that most Cannabis users, use Cannabis as a way of self-medicating.
This article states the same conclusion as the other three articles. It also discusses Israel’s decision to provide its soldiers with marijuana to help combat PTSD and Depression.
This article discusses depression, symptoms of depression, and how it affects cognition. It then discusses how cannabis decreases these symptoms by altering brain chemistry.
This article looks at the Pros and Cons of smoking marijuana.
Monday, March 7, 2016
As I mentioned in this prior post, the students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform are now starting to assemble readings on particular topics in preparation for an in-class presentation/discussion. This week, one of my students is taking a deep dive into Vermont Bill 241, the bill that sets out a framework for "personal possession and cultivation of cannabis and the regulation of commercial cannabis establishments." I have uploaded the full 40+ page text of Vermont Bill 241 below, and I thought it interest and notable that the bill begins this way:
The General Assembly finds that Vermont lawmakers recognize legitimate federal concerns about cannabis reform and seek through this legislation to provide better control of access and distribution of cannabis in a manner that prevents:
(1) distribution of cannabis to persons under 21 years of age;
(2) revenue from the sale of cannabis going to criminal enterprises;
(3) diversion of cannabis to states that do not permit possession of cannabis;
(4) State-authorized cannabis activity from being used as a cover or pretext for trafficking of other illegal drugs or activity;
(5) violence and the use of firearms in the cultivation and distribution of cannabis;
(6) drugged driving and the exacerbation of any other adverse public health consequences of cannabis use;
(7) growing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and
(8) possession or use of cannabis on federal property.
Thursday, March 3, 2016
As long time readers know, a central part of my semester-long OSU Moritz College of Law seminar on marijuana laws and reform is the requirement that students assemble readings on a particular topic for their fellow classmates followed by an in-class presentation/discussion. The first such student effort this semester, as this post title suggests, provides a gendered perspective on marijuana reform, and here are the pre-class materials sent my way by the students focused on this topic:
Women in the Marijuana Industry:
Women As Voters and Advocates for Marijuana Reform:
Skype Speaker Bios:
Wednesday, March 2, 2016
Looks like Maine may no longer be a state to watch on the marijuana legalization initiative front in 2016
This local article, headlined "Maine marijuana legalization bid fails to qualify for ballot," reports that the folks seeking to put a marijuana legalization initiative on the ballot in the Pine Tree state seemed to have come up short in their efforts. Here is why and some context:
An effort to legalize recreational use of marijuana in Maine did not qualify for the November ballot, accoridng to state election officials. Secretary of State Matt Dunlap said in a statement that the proposal did not have enough valid signatures of Maine voters. The campaign needed 61,123 signatures. According to Dunlap’s office, the campaign only provided 51,543 valid signatures.
The Campaign to Regulate Marijuana Like Alcohol now has 10 days to appeal the decision. An appeal would be reviewed in Maine Superior Court. Campaign leader David Boyer said they were “very disappointed” with the Secretary of State office’s determination that 17,000 signatures apparently from a single notary did not match the signatures on file. “We will be exploring all legal avenues that are available to appeal this decision and sincerely hope that more than 17,000 Maine citizens will not be disenfranchised because of a handwriting technicality,” Boyer said.
The campaign turned in 99,229 signatures on Feb. 1. According to Maine election officials, over 31,000 signatures were deemed invalid because signatures on petitions swearing that the circulator witnessed signature collection did not match his or her signature on file. One circulator was listed as the public notary on 5,099 petitions containing 26,779 signatures. Other irregularities included 13,525 signatures that were invalid because they did not belong to a registered voter in the municipality where they were submitted.
The Campaign to Regulate Marijuana Like Alcohol backed the initiative, which would allow adults 21 and older to possess small amounts of marijuana for recreational use. The push for legalization began with two competing measures, including one backed by a group called Legalize Maine. But the campaigns united behind one proposal in October, after advocates became concerned that having two similar proposals on the ballot would create confusion among voters and split the vote.
The campaign faced opposition from a group formed to prevent legalization, and from parts of the medical marijuana community in Maine. When campaign supporters delivered petitions to the Secretary of State’s Office in Augusta in February, they were met by protesters who said that local medical marijuana growers and patients could be hurt if the referendum passed....
Maine has allowed medical marijuana since 1999 and the program has become increasingly popular in recent years. Last year, Mainers spent $23.6 million on medical marijuana from the state’s eight dispensaries, a 46 percent jump from the previous year. Those numbers don’t include sales to patients from the more than 2,200 caregivers licensed to grow and sell marijuana to patients.
The state cannot provide an exact number of patients because it does not keep a registry, but doctors have printed more than 35,000 certificates required under state regulations to certify patients. That number could include duplicates and replacement certificates and is likely higher than the actual number of patients, according to the Department of Health and Human Services, which oversees the medical marijuana program.