Marijuana Law, Policy & Reform

"Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States"

The title of this post is the title of this big new report released today by the Governors Highway Safety Association.  This press release about the report provides some highlights on its coverage and points of emphasis:

A new report from the Governors Highway Safety Association (GHSA) finds that in 2016, 44% of fatally-injured drivers with known results tested positive for drugs, up from 28% just 10 years prior.  More than half of these drivers had marijuana, opioids, or a combination of the two in their system.

Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States presents new research to examine the impact of marijuana and opioids on driving ability and provides recommendations on how best to address these emerging challenges.  Funded by the Foundation for Advancing Alcohol Responsibility (Responsibility.org), the report found that among drug-positive fatally-injured drivers in 2016, 38% tested positive for some form of marijuana, 16% tested positive for opioids, and 4% tested positive for both marijuana and opioids.

While alcohol-impaired driving remains a significant threat to traffic safety, presence of alcohol in fatally-injured drivers is slightly lower than it was a decade ago, decreasing from 41% in 2006 to 38% in 2016.  Some of the strategies that have been used to address alcohol-impaired driving can also be employed to deter drug-impaired driving, yet drug impairment presents several unique challenges.  For example, there is no nationally-accepted method for testing driver drug impairment; there are an unwieldy number of drugs to test for; and different drugs have different impairing effects in different drivers.

Report author Dr. Jim Hedlund, former senior NHTSA official and nationally-recognized issue expert, explained, “Drugs can impair, and drug-impaired drivers can crash. But it’s impossible to understand the full scope of the drugged driving problem because many drivers who are arrested or involved in crashes, even those who are killed, are not tested for drugs. Drivers who are drug-positive may not necessarily be impaired.”

Adding to these concerns is the frequency of poly-drug use, or the use of multiple potentially-impairing substances simultaneously.  In 2016, 51% of drug-positive fatally-injured drivers were found positive for two or more drugs.  Alcohol is often in the mix as well: 49% of drivers killed in crashes who tested positive for alcohol in 2016 also tested positive for drugs.

Canvassing the parameters of possible federal marijuana reforms

Rolling Stone has this new extended article headlined "Pot for All: How Congress Is Trying to Make Weed Legal," which has a subheadline that somewhat better describes its coverage: "From decriminalization to opening up the banking industry, both sides of Congress are preparing cannabis bills – but with much different approaches.  Here are excerpts from the piece:

Over the past decade, marijuana legalization has happened at break-neck speed at the state and local level. And yet, pot-related reforms have moved glacially at the federal level, especially since prohibitionist Jeff Sessions was confirmed as attorney general. But his staunch opposition and attempt to roll back Obama-era protections for local marijuana businesses has actually attracted new support to a flurry of marijuana related bills that have been picking up support in this Congress.

There are more than 40 cannabis-related bills floating around the House of Representatives alone in this Congress, along with countless others in the Senate. That's a hard map to navigate, so below is Rolling Stone's guide to the kinds of marijuana bills that have the most support from Democrats and Republicans alike.

Straight Decriminalization

Senate Minority Leader Chuck Schumer turned heads last month when he endorsed marijuana decriminalization, but he was slow to get to the party. Vermont's Bernie Sanders was there before him, along with most every Democratic senator floated as a potential 2020 presidential contender, including Sens. Cory Booker (NJ), Kamala Harris (CA) and Kirsten Gillibrand (NY). Still, the statement from Schumer – who has long vocally opposed recreational marijuana – was witnessed as a dramatic move and is expected to trickle down the ballot to people running for Congress across the nation....

Let the States Decide

In the coming weeks, a bipartisan group of senators plans to drop a bill that will give individual states the right to override the federal prohibition on marijuana, which they say simply codifies what President Trump has allegedly told Sen. Cory Gardner (R-CO) in private conversations – that the president's fine allowing each individual state to decide their own marijuana laws, which Gardner says is simple federalism....

Make the Focus Medical Testing

Potentially the best chance marijuana legislation has of passing under unified Republican control of Washington is with bipartisan legislative efforts to simply relax the barriers that have been erected around studying marijuana. There was already historic progress on that front when, earlier this month, the VA Medicinal Cannabis Research Act of 2018 became the first-ever standalone marijuana bill to make it through a congressional committee. It not only removes barriers to testing marijuana at the Department of Veterans Affairs but also forces officials there to send regular reports to Congress so lawmakers can track whether the VA is taking the testing legislation seriously. While the scope is narrow, pot proponents see the bill as a major breakthrough because, if tests show marijuana is good for veterans, then it could easily translate to the greater public....

Push for Access to Banks

Marijuana businesses are currently locked out of the banking sector, even in states where weed is either recreationally or medicinally legal, and the Small Business Administration recently moved to stop any company involved in this green revolution from receiving loans. Bipartisan efforts are picking up steam to at least make it so marijuana businesses don't have to be all cash, which comes with massive security risks. And without access to capital it's hard to be a player in a capitalistic economy. A slew of bills deal with this issue – some allow marijuana businesses to simply access the banking system, while others go farther, allowing them to get the same tax breaks enjoyed by non-marijuana related businesses.

Finally De-Scheduling Pot

Support is also slowly growing for an effort to completely remove marijuana from the list of controlled substances where it currently sits at Schedule I, alongside LSD and heroin. But the Marijuana Justice Act goes even further and takes aim at the racial disparity that marks American prisons by expunging the records of people convicted of federal marijuana crimes and investing money in communities left blighted by marijuana convictions.

Way back in Fall 2013, I had a knowledgeable and astute guest speaking in my Marijuana Law and Reform seminar predict that federal marijuana reform would happen sometime in the term of the president elected in 2020. I am inclined to still see that prediction as spot-on. (This speaker also in 2013 predicted that term would be the second term for a Prez Clinton, so he did not quite perfectly nail it.)

"PTSD & Pot: Veterans making Memorial Day push for legal marijuana"

The title of this post is the title of this lengthy new Fox News article. Regular readers know I have, since starting this blog more nearly five years ago, regularly blogged about a range of issues relating to veterans and their access to marijuana (a dozen of recent posts on this topic are linked below). As I have said before and will say again, I feel a genuine and deep debt to anyone and everyone who serves this nation through the armed forces, and I feel especially strongly on a day like Memorial Day that veterans should be able to have safe and legal access to any and every form of medicine that they and their doctors reasonably believe could help them with any ailments or conditions. Here is part of the start of the Fox News piece:

Veterans from across the country will be gathering in our nation's capital on Memorial Day this year to not only honor those who made the ultimate sacrifice, but to advocate for a cause that isn't typically associated with our nation's heroes -- the legalization of marijuana.

The veterans and advocates taking part in the Memorial Day Veterans Rally DC hope to change the stigma that surrounds cannabis, the preferred term for marijuana among advocates, by arguing that this alternative medicine is already helping some vets treat issues like PTSD, chronic pain and depression -- all without the use of dangerous & addictive prescription drugs like opioids. One of their rallying cries is "plants over pills," and they're not just coming from the usual legal pot hot-spots like Colorado....

Beyond a lack of access in all 50 states, advocates say one of the biggest problems is that veterans are forced to pay for this alternative treatment out of pocket, despite what they say are life-saving results. That's due to Department of Veterans Affairs regulations which stipulate VA doctors still cannot prescribe medicinal marijuana to patients, despite the fact that they are allowed to "discuss marijuana use with veterans as part of comprehensive care planning."

Some recent prior related posts:

• New American Legion survey documents strong support among veteran households for medical marijuana
• "As Trump wages war on legal marijuana, military veterans side with pot"
• "More and More US Veterans are Smoking Weed to Treat Their PTSD"
• Examining pot's potential for treatment of veterans' PTSD problems
• Will Prez-Elect Donald Trump make it legal and easier for veterans to have access to medical marijuana?
• American Legion urges federal government to reschedule marijuana
• Veterans group gets attention when urging Trump team to seek to reschedule marijuana
• American Legion, the largest US vets' organization, pressing Trump Administration on medical marijuana reform
• "Study: Can marijuana improve PTSD symptoms for veterans?"
• "Make Pot Legal for Veterans With Traumatic Brain Injury"
• Interesting look at veterans getting involved in the marijuana industry
• Head of Veterans Affairs acknowledges marijuana may be "helpful" to veterans

"Could medical marijuana help fight opioid abuse? It’s complicated"

The title of this post is the thoughtful headline of this article from Illinois thoughtfully discussing the issues surrounding the relationship between opioid use and marijuana access.  Here are excerpts:

Tom Utley says medical marijuana allowed him to reduce his use of prescription painkillers by 98 percent over the past year and a half. “It has given me control of my life,” said Utley, 42, a Mason County resident whose chronic pain after a car crash 27 years ago used to require him to swallow Vicodin and OxyContin pills four times a day.  Now he takes prescription opioids only a few times each month.

Utley, who works part time running a gymnastics tumbling program, has found relief in marijuana-infused topical lotions and patches, as well as smokable cannabis, from Springfield’s HCI Alternatives dispensary. Unlike prescription opioids, marijuana doesn’t come with the unwanted side-effects of constipation, cravings and cloudy thinking, he said....

Utley is among those who see expanded access to medical marijuana for people in pain as one solution for the nationwide epidemic of addiction to legal opioid painkillers and illegal opioids such as heroin and fentanyl.  There were about 2,000 fatal and 14,000 nonfatal opioid overdoses in Illinois last year. “I think it would be a way-better alternative,” Utley said of medical cannabis....

The Illinois General Assembly is considering a bill that could vastly expand the number of people qualifying for the state’s medical marijuana pilot program.  Senate Bill 336 would allow people who have been or could be prescribed opioids to apply for acceptance into the program.  The science surrounding the therapeutic benefits of marijuana is far from conclusive. But those shades of gray are missing from descriptions of both the benefits of cannabis from supporters of SB 336, and the drawbacks cited by opponents.

“Public policy is light years ahead of the science right now,” said Ziva Cooper, a research scientist who is associate professor of clinical neurobiology in psychiatry at Columbia University in New York. “There seems to be this nationwide experiment on the effects of cannabis that is happening in the absence of rigorous studies.”

SB 336 passed the Illinois Senate on a 44-6 vote April 26.  The bill is expected to receive a vote from the full House by the end of the week....  A spokeswoman for Gov. Bruce Rauner, a Republican, didn’t respond when asked the likelihood that Rauner would sign the bill into law if it reaches his desk.

Supporters of the legislation cite studies that have documented a correlation between a reduction in opioid-related fatalities and opioid prescriptions in states that allow the use of marijuana for medical or recreational purposes.  “The science is generally supportive of the concept,” said state Sen. Don Harmon, D-Oak Park, the bill’s chief Senate sponsor. “People don’t die from cannabis. I don’t feel like we’re doing much harm.”

But those studies, as well as numerous anecdotal reports from patients, don’t necessarily prove that expanding medical marijuana use leads to positive outcomes for the general population, Cooper said.  Results also aren’t conclusive when it comes to the negative implications of cannabis use reported in other legitimate but non-definitive studies, she said.  Those studies, publicized by Springfield-based Illinois Church Action on Alcohol and Addiction Problems, suggest marijuana is associated with an increased risk of prescription opioid misuse and addiction, and actually may contribute to the opioid epidemic....

Cooper said, “There is correlational evidence on both sides of the argument.” ...  The studies do make a compelling argument that more and more-rigorous follow-up studies are needed, she said while declining to comment on SB 336. “It’s just going to take time for us to do the studies that will yield the actual data that support some of these things we’re hearing about in the media,” she said.

Cooper was a member of a committee convened by the National Academies of Sciences, Engineering and Medicine that issued a report in January 2017 on the current state of evidence surrounding the health effects from cannabis and chemicals in cannabis known as cannabinoids.  The report said there is “conclusive” or “substantial” evidence that cannabis or cannabinoids are effective for the treatment of chronic pain in adults. “But there are a couple of caveats,” she said.  For example, she said, the report didn’t say there’s conclusive evidence that cannabis is more effective than opioids in helping patients deal with pain....

Data from the state indicate that 3 million Illinoisans obtained an opioid prescription in 2016, according to Chris Stone, chief executive officer of HCI Alternatives.  Even if just 10 percent of those patients sought temporary access to the state’s medical marijuana program under the provisions of SB 336, up to 300,000 people would join a program currently serving 36,800 people, he said....

Illinois, unlike most states with medical marijuana programs, doesn’t allow a general diagnosis of pain to qualify patients for the program, Cassidy said.  The Illinois Department of Public Health is appealing a Cook County judge’s January ruling ordering the department to add “intractable pain” to the list of qualifying conditions for medical marijuana.

IDPH director Dr. Nirav Shah has said there was a lack of “high-quality data” to justify adding pain to the list of more than 30 conditions, which include cancer, AIDS, spinal cord injury, seizures and fibromyalgia. SB 336 isn’t designed to add pain patients to the program for the rest of their lives. “This is really about folks who are looking at a six-month period of time of needing these medications or a three-month time period — for those folks who are very much at risk of addiction,” Cassidy said.

Some (of many) prior related posts:

• Two new papers provide further evidence of marijuana reform aiding with opioid crisis
• "The Case for Pot in the Age of Opioids: Legalizing medical marijuana could save lives that may otherwise be lost to opioid addiction."
• "Can medical marijuana be used to treat heroin addiction?"
• Yet another study suggests link between medical marijuana availability and decreased opioid use
• "Legalize marijuana and reduce deaths from drug abuse"
• "Obama’s Opioid Offensive Again Ignores the Cannabis Solution"
• "Is marijuana a secret weapon against the opioid epidemic?"
• "Cannabis as a Substitute for Opioid-Based Pain Medication: Patient Self-Report"
• "The use of cannabis in response to the opioid crisis: A review of the literature"
• Still more talk, from notable conservative outlets, about possible benefits of marijuana reform amidst opioid crisis

Florida trial judge strikes down state legislature's prohibition on smoking medical marijuana

As reported in this local article, a "Leon County circuit court judge ruled Friday afternoon that the state’s ban on smoking medical marijuana is unconstitutional, setting up continued legal fights as the state appeals the decision." Here is more about the ruling:

In a 22-page order, Judge Karen Gievers said that the Legislature's ban on smoking medical cannabis conflicted with the intent of a constitutional amendment that had broadly legalized the drug for medical use after voters approved it in 2016.

She concurred with arguments made last Wednesday by Jon Mills, an attorney for the plaintiffs, contending the definition approved by voters included "all types of medical marijuana," including forms that can be smoked. Mills had also argued that the amendment implicitly recognized smoking in private by recognizing that there was no right to smoke it in public places.

Gievers, in striking down the ban, invoked both George Washington and Thomas Jefferson in her decision and highlighted Washington's characterization of the constitution as a "sacred obligation."

"Just as no person is above the law, the legislature must heed the constitutional rights Floridians placed in the Constitution in 2016," she wrote. "The conflicting, overreaching 2017 statute, while presumably adopted in good faith and with good intentions, cannot be allowed to overrule the authority of the people to protect rights in the Constitution."

Devin Galetta, a spokesman for the state Department of Health, said it would appeal the verdict, resulting in an automatic stay. The notice of the appeal was filed Friday night. "This ruling goes against what the legislature outlined when they wrote and approved Florida’s law to implement the constitutional amendment that was approved by an overwhelmingly bipartisan majority," he wrote.

About 71 percent of Florida voters had approved Amendment 2 in 2016, authorizing the use of marijuana as a medical treatment for people with debilitating conditions. But in a bill implementing the amendment the following year, lawmakers limited the scope of its use to only oils, sprays, tinctures, vaping and edibles. Lawmakers excluded smoking as a method for medical treatment, arguing that smoking would be a "backdoor attempt" at allowing recreational use.

Gievers heard arguments in a one-day trial last week for the case, which was brought against the state last July by John Morgan, an Orlando attorney who also financed the campaign behind the successful constitutional amendment. His suit, filed on behalf of two patients and two advocacy organizations, asked the court to invalidate the implementing law passed by the Florida Legislature and signed by Gov. Rick Scott.

Ben Pollara, who managed the political campaign that helped push the constitutional amendment, said the ruling was a victory both for Florida patients and for voters who supported the amendment.... "The voters of Florida wanted this," he said. "It was clear in the intent language and in the ballot language. ... Smoked marijuana is the most effective and quickest delivery system, period."

He cautioned that Scott, who is running for the U.S. Senate, should reconsider continuing to fight for the smoking ban. "What I would say to Rick Scott and [Attorney General] Pam Bondi is, 'If you decide to appeal this verdict, I think Rick Scott will lose the U.S. Senate race on this issue alone,' " he said.

The full ruling in this case is available at this link.

Some interesting holiday weekend reads on modern marijuana reform realities

As we head into a long weekend, I have noticed a few interesting reads about modern marijuana reform realities:

• From The Atlantic by Ronald Brownstein here, "Will Texas Follow Houston’s Lead on Drug-Policy Reform?: District Attorney Kim Ogg is rapidly implementing progressive policies in Harris County—and she intends to be a model for the rest of her state."

• From Forbes by Julie Weed here, "Advice To New Jersey, The Garden State, As It Expands Its Cannabis Market"

• From Slate by Alex Halperin here, "Why the Marijuana Industry Wants Friends Like John Boehner: And why the low-regulation future some growers crave is the wrong one."

• From the Washington Post by Judith Grisel here, "Pot Holes: Legalizing marijuana is fine. But don’t ignore the science on its dangers."

Noting the gray that surrounds the "enforceability of marijuana-related agreements"

This new article by Joshua Horn and Jesse M. Harris in the Legal Intelligencer provides a useful reminder of how much law (and well as policy) is unpredictable in the modern marijuana universe. The piece is headlined " Cannabis and Banks: What Qualifies as Illegal Activity? Many legal issues arise out of financing cannabis activities, not the least of which is whether a target property for a cannabis venture is mortgaged by a bank."  Here is how the piece starts and ends:

Many legal issues arise out of financing cannabis activities, not the least of which is whether a target property for a cannabis venture is mortgaged by a bank.  The standard institutional mortgage contains language that allows the mortgagee to “call” the loan if the property is being used to conduct “illegal activity.”  This language relates to federal lending guidelines and is usually nonnegotiable.  The question thus becomes: what qualifies as “illegal activity”?

As a general matter, a contract for an illegal purpose is unenforceable.  And while 29 states have passed some form of marijuana legislation, marijuana remains a controlled substance under federal law.  The interplay between state and federal law has left the status of the marijuana industry — and the rights of involved lenders and borrowers — unclear.  Several recent cases highlight this ambiguity....

At bottom, there are no black and white answers when it comes to the enforceability of marijuana-related agreements — only gray.  For this reason, most lenders outright refuse to enter into such agreements.  This is particularly true for mortgage loan originators who underwrite a new loan with the intention of immediately selling it to investors like FHA, Fannie Mae or Freddie Mac.  As government entities, such investors will not accept marijuana-related contracts.

Other lenders, often called “portfolio lenders,” keep a certain number of loans in their portfolio instead of selling to investors.  Portfolio lenders thus assume the risks associated with lending to marijuana-related business. And, because portfolio lenders assume the risk, they have greater discretion in deciding whether to extend credit to a cannabis-related entity.  Depending on the jurisdiction, sophisticated borrowers may have better luck in persuading these lenders to do just that.

"Cannabis supporters brace for lackadaisical launch of marijuana in Ohio"

The title of this post is the headline of this local article providing a partial update on the roll-out of medical marijuana in the Buckeye State.  I like the headline because it has a nice alliteration, "lackadaisical launch," which I am now inclined to steal when talking about what is afoot in Ohio.  Here are just some of the reasons reasons why this label is so fitting:

Kim Rupp is anxiously awaiting the day she can buy and consume medical marijuana in Ohio. "You're hoping that when this opens that it will change your life," Rupp said, referring to dispensaries where legal cannabis will be sold in the Buckeye State. Rupp said she's battled a debilitating bone disease for years, consuming countless pharmaceutical drugs along the way.

A big proponent of medical marijuana, Rupp is pessimistic that Ohio's new pot program will be fully up and running by Sept. 8th, as required by law. "We would be fortunate if we see anything happening by spring," Rupp said. "I mean, anything where people have access." Instead, Rupp thinks only a few dispensaries will be open by fall.

Ohio's Board of Pharmacy delayed Wednesday's scheduled announcement of who will get to operate the stores. That means nobody's started building what have to be fortified sites, because buying cannabis is typically an all-cash transaction. "I don't think you'll see everybody open on the same day," said Greg May. May is with Ohio Releaf III, a company that hopes to build a dispensary in Forest Park.

Missing only a few stores will likely have a major impact. The pharmacy board can award up to 60 dispensary licenses statewide, with just three dispensaries for all of Hamilton County. "My advice is get your recommendation now or as soon as possible," said Rob Ryan, executive director of the Ohio Patient Network. Even though he anticipates a slow rollout, Ryan urges anyone with a qualifying medical condition to talk to their doctor about marijuana now.

UPDATE:  The new AP article, headlined "Medical marijuana ramp-up in Ohio sees progress, questions," provides more details on Ohio's struggles to get is medical marijuana regime up and running.  Here is how it gets started:

The medical marijuana program Ohio's set to launch later this year has been beset by questions.

Will growing operations be able to ramp up in time to meet initial demand? Will legal and administrative challenges tangle the rollout in red tape? Will enough doctors obtain certificates to serve needy patients?

Still, much progress has been made since Ohio became the 25th state to legalize medical marijuana in 2016 and set Sept. 8 of this year as the launch date.

Mark Hamlin, the Ohio Department of Commerce's policy adviser on medical marijuana, acknowledges the process has been "bumpy." But he said he hopes the public recognizes this is not just a short-term project.

ANOTHER UPDATE: This new Columbus Dispatch article provides yet another account of these stories under the headline "Ohio in danger of missing Sept. 8 deadline for medical marijuana," which includes these excerpts:

The program must be “fully operational” by early September, according to the state’s Medical Marijuana Control Program website. But state officials say that means only that a minimal amount of some form of medical marijuana must be available by then. “I don’t think there is a lot of confidence in that Sept. 8 date. If there is not a seed in the ground right now, you can speed up the permit process and build 24 hours a day, but the only thing you can’t speed up is Mother Nature,” said Bob Bridges, the patient advocate on the state’s Medical Marijuana Advisory Committee.

For cultivators, the only way to speed up the process is to plant a cutting from an existing cannabis plant rather than starting with a seed. That short-cuts the germination process, but it still takes eight to 12 weeks to mature.

Bridges is one of 14 members of the committee, tasked with advising the three state agencies involved with the program, appointed with approval by Gov. John Kasich. “Patients are very, very concerned product won’t be ready,” Bridges said. “Overwhelming, the concern has been: ‘Is medicine going to be available Sept. 8?’”

"The Newest Allies for Pot Legalization: Conservatives"

The title of this post is the headline of this notable new piece from The Crime Report.  Here are excerpts:

Current president Donald Trump doesn’t seem to believe in anything more intoxicating than cola — his elder brother died of alcoholism-related causes — but he’s been of at least two minds about marijuana legalization. He appointed ferocious marijuana opponent Jeff Sessions as Attorney General, and Trump’s first Secretary of Health and Human Services, Tom Price, also opposed legalization in the strongest possible terms.

During the presidential campaign, however, Trump more-or-less stated he would let the states decide whether and how to legalize marijuana.  His choice of Sessions seemed to be a reversal, but lately, it seems as if he’s been holding Sessions back.  Last month he agreed, under pressure from Colorado’s Republican US Sen. Cory Gardner to not interfere with Colorado’s marijuana industry. (Gardner had vowed to block every Justice Department nominee until he received such a reassurance.).

Another politician who recently has reversed himself and now supports legalization — at least for medical use and study — is former House Speaker John Boehner. He has joined the board of Acreage Holdings, a cannabis company “with cultivation, processing and dispensing operations across 11 states.”  In 2011, Boehner wrote, “I am unalterably opposed to the legalization of marijuana or any other FDA Schedule I drug” because he was “concerned that legalization will result in increased abuse of all varieties of drugs, including alcohol.”

Now, Boehner says, “my thinking on cannabis has evolved. I’m convinced de-scheduling the drug is needed so we can do research, help our veterans, and reverse the opioid epidemic ravaging our communities”.  Cynics might say the money Boehner will no doubt receive was a motivating factor, but opponents of legalization face similar suspicions....

Other conservatives who have voiced some support for the relaxation of marijuana laws include Meghan McCain (daughter of Arizona Sen. John McCain), right-wing pundit Glenn Beck, former Alaskan mayor and vice presidential candidate Sarah Palin, Fox News host Sean Hannity and televangelist Pat Robertson....

Many Americans, including war veterans, believe marijuana helps them cope with their post-traumatic stress disorder or chronic pain. Marijuana can be harmful, but so can any legal product, most notably tobacco, alcohol and prescription opiate drugs.  Conservatives often espouse Henry David Thoreau’s belief “That government is best which governs least.”  Some are now concluding that should apply to marijuana, too.

Arizona Supreme Court strikes down state legislation prohibiting medical marijuana on college campus as inconsistent with voter initiative

The Arizona Supreme Court has issued a series of opinions giving broad effect to the Arizona Medical Marijuana Act, which was enacted by voters as Proposition 203 in 2010.   The latest example of such an opinion was handed down today in Arizona v. Maestas, No. CR-17-0193-PR (Az. May 23, 2018) (available here). Here is the first paragraph and key substantive paragraphs from the ruling:

The Arizona Medical Marijuana Act (“AMMA”), enacted by voters as Proposition 203 in 2010, generally permits qualified AMMA cardholders to possess a limited amount of marijuana and, with certain exceptions and limitations, immunizes their AMMA-compliant possession or use from “arrest, prosecution or penalty in any manner.” A.R.S. § 36-2811(B).  Among its limitations, the AMMA prohibits the possession or use of medical marijuana at certain specified locations.  A.R.S. § 36-2802(B). In 2012, the Arizona Legislature added another location by enacting a statute under which “a person, including [a qualified AMMA cardholder], may not lawfully possess or use marijuana on the campus of any public university, college, community college or postsecondary educational institution.” A.R.S. § 15-108(A). Because that statute violates Arizona’s Voter Protection Act (“VPA”) with respect to AMMA-compliant marijuana possession or use, we hold it unconstitutional as applied to the university student/cardholder in this case....

To comply with the VPA, the legislature may constitutionally amend a voter initiative only if “the amending legislation furthers the purposes of such measure and at least three-fourths of the members of each house of the legislature . . . vote to amend such measure.”  Ariz. Const. art. 4, pt. 1, § 1(6)(C) . Here, “at least three-fourths of the members of each house of the legislature” voted to enact § 15-108(A).  Id.  The dispositive question, therefore, is whether § 15-108(A) “furthers the purposes” of the AMMA. Id. It does not.

The AMMA “permits those who meet statutory conditions to [possess and] use medical marijuana.”  Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122 ¶ 7 (2015).  “Because marijuana possession and use are otherwise illegal in Arizona, . . . the drafters [of the AMMA] sought to ensure that those using marijuana pursuant to [the] AMMA would not be penalized for such use.”  Id.  Indeed, this purpose is made explicit in the AMMA’s voter initiative statements.  See Proposition 203 § 2(G) (2010) (stating that the purpose of the AMMA “is to protect patients with debilitating medical conditions . . . from arrest and prosecution, [and] criminal and other penalties . . . if such patients engage in the medical use of marijuana”).  Criminalizing AMMA-compliant marijuana possession or use on public college and university campuses plainly does not further the AMMA’s primary purpose as expressed in those statements supporting the voter initiative.  Section 15-108(A) does not “protect” qualifying AMMA cardholders from criminal penalties arising from AMMA-compliant marijuana possession or use on public college and university campuses, but rather subjects them to such penalties.  Therefore, because § 15-108(A) does not further the purpose of the AMMA, we hold that § 15-108(A) violates the VPA as applied to AMMA-compliant marijuana possession or use.

"Cities should restrict marijuana businesses to the same areas as junkyards and strip clubs"

The title of this post is the (catchy?) subheadline of this new provocative Bloomberg commentary authored by economist Tyler Cowen under the main headline "Legalize Pot, But Don’t Normalize It." Here are excerpts:

I think it is the proper province of government to regulate the use of public spaces in ways that encourage order and utility.  Private shopping malls won’t let you walk through the halls snorting heroin or smoking marijuana, and there is nothing outrageous about that decision.  The property owners have decided that they want a particular kind of experience and image for their venue, and they regulate its use and access accordingly.  Municipal governments should make and enforce comparable decisions.

Cities and towns already face these trade-offs when it comes to zoning.  Even if you believe, as I do, that most zoning regulations are far too restrictive, it’s legitimate for a local government to decide that a waste dump, an auto junkyard or a strip club cannot simply set up shop anywhere in a city, hang out a sign and attract attention.  We ought to treat marijuana the same way.

I propose that cities and suburbs restrict the sale and usage of marijuana to the same areas we use for garbage disposal and other “zoned out of sight” enterprises.  We needn’t throw anyone in jail: If people or businesses violate these strictures, keep hitting them with the equivalent of parking tickets or injunctions, much as you would for an out-of-place repair shop.  It should be possible to visit Colorado without knowing that marijuana is legal there.  If someone is determined to ingest it, they can either drive to an industrial zone or order it online, and smoke it at home or up away in the mountains.

You might wonder why we should be so worried about public marijuana use.  To put it bluntly, I see intelligence as one of the ultimate scarcities when it comes to making the world a better place, and smoking marijuana does not make people smarter.  Even if you think there is no long-term damage, right after smoking a person is less able to perform most IQ-intensive tasks (with improvisational jazz as a possible exception).  By having city streets filled with pot, pot stores and the odor of pot, we are sending a signal that our society isn’t so oriented toward the intellect or bourgeois values.  Even if that signal is reflecting a good bit of truth, it would be better not to acknowledge it too openly, just as most advocates of legalized prostitution don’t want to allow brothels on Main Street....

Marijuana advocates commonly counter that the drug is no worse or more dangerous than alcohol.  I agree, but you nonetheless might still believe that alcohol has acquired too prominent a place in the American public sphere, even if that state of affairs is no longer reversible.  There is no reason we should compound that mistake with marijuana.

New York Daily News says "End the war on pot"

For many reasons, New York is an important and interesting state to watch in the array of debates over marijuana reform.  And another notable voice chimed in yesterday in the form of the New York Daily News editorial board, which published this editorial headlined "End the war on pot: We welcome the push to legalize and regulate marijuana." Here are excerpts from an effective editorial:

After many decades of treating as a crime the personal possession and use of a drug that is a negligible threat to public safety, New York is awakening to the folly of — and racial disparities widened by — its approach.

We are part of this awakening, which is why we welcome the push to legalize and regulate marijuana. By every honest measure, the substance has more in common with alcohol and tobacco than it does harder drugs that are rightly illegal.

Which is not to say we endorse vaping or toking, or that government should. Legalization can coexist with stigmatization, especially for young people, for whom drug use and abuse is disastrous.

But continuing to turn the punitive gears of the criminal justice system against 50 people per day in the five boroughs for so much as touching a drug that countless adults use harmlessly in the privacy of their own homes does not serve New York.

It wasn't supposed to be this way. In 1977, New York decriminalized possession of 25 grams or less of marijuana, making it an infraction with a $100 fine. In the intervening 40 years, hundreds of thousands of people have been arrested. Police in the five boroughs continue to make some 17,000 arrests annually for pot possession. Though that's down 40% since 2013, due in large part to a rise in criminal summonses, it's still high.

And despite the fact that research shows marijuana is used in about equal numbers by whites, blacks and Latinos, blacks and Latinos make up 86% of arrestees. Those two groups account for just 51% of the city's overall population. Even the NYPD's chief of crime control strategies has said this gulf "should be troubling to anyone." While it's true that arrests are often driven by calls to 311 and 911, analysis by the Daily News this year showed the association to be far weaker than the city claims. The New York Times matched ethnically different neighborhoods with almost identical complaint levels — and found that the predominantly white and Asian neighborhoods generally saw orders of magnitude fewer arrests than the predominantly black and Latino ones.

This stubborn racial enforcement disparity points to a fundamental question: why it makes sense to treat marijuana use as a nail to be hit with the hammer of cuffs, cops and courts, saddling individuals with arrest records and sometimes, though infrequently, jail time for partaking....

Nine U.S. states, including Colorado, Massachusetts, California and Alaska, have fully legalized marijuana for recreational use. New Jersey is leaning strongly in the same direction.

Where the drug has been legalized, fears that taking sales out of the black market and into the open would lead to a surge in violent crime and drug use have not materialized. There are trends worth worrying about, and learning from, such as an apparent rise in pot-related DWIs. But the sky has not fallen, or even noticeably darkened, anywhere that marijuana has gone from being a criminally forbidden substance to a taxed and regulated one.

By the same token, it is crucial to make clear that legalization advocates oversell their product with the suggestion it will eliminate stubborn policing disparities. No state that allows small amounts of marijuana to be sold and held for personal use permits public smoking, which remains anything from a non-criminal ticket to a criminal misdemeanor. In other words, it is properly an offense to be enforced, and that enforcement may prove racially disparate, following differences in behavior. So, too, would black-market sales remain against the law.

One alternative to legalization is decriminalization. Manhattan DA Cy Vance and Brooklyn DA Eric Gonzalez call for declining to prosecute pot possession while keeping it illegal on the books. While tempting, this could create a patchwork of enforcement whereby the same offense is treated radically differently across New York jurisdictions. We've gained little, and lost plenty, in waging this misbegotten war. It's time to try another way.

US Attorney for Oregon issues detail memorandum to detail federal marijuana enforcement priorities in the state

As reported in this new pres article, there is interesting news out of Oregon concerning federal marijuana enforcement.  Here are the details (with my emphasis added):

Federal prosecutors will target the illicit marijuana market, organized crime, outlaw grows and operations that "pose a substantial risk of violence" under new guidelines for cannabis enforcement in Oregon made public Friday.

Billy Williams, the U.S. attorney for Oregon, issued the guidelines in response to U.S. Attorney General Jeff Sessions' decision earlier this year to scrap an Obama-era policy that largely tolerated marijuana in states where the drug is legal. The memo represents the first marijuana policy announcement by a U.S. attorney in a state that's home to a legal market since the Sessions' move.

Williams' enforcement priorities in some ways represent a continuation of the approach under President Obama, such an emphasis on overproduction and trafficking, protecting minors and going after organized crime.

After hearing from property owners across the state upset about the cannabis industry's drain on natural resources, Williams also singled out pesticide use on illegal growing operations and consumption of large amounts of water without "proper authorization" as additional priorities. Gov. Kate Brown has pressed Williams to pledge he won't go after legal marijuana businesses, but he said, "I will not make broad proclamations of blanket immunity from prosecution to those who violate federal law."

"I am not going to advise clients to shutter their businesses and I frankly don't think this will change anyone's view on investment," said Dave Kopilak, a Portland lawyer who advises cannabis businesses. "I don't think this will have a chilling effect on the investment side of things. It could have been worse," he added. "It could have been better, but this is definitely down the middle of the road and a continuation of what we have done for years."

Williams makes clear that he remains frustrated with the state's failure to contain production. He called for state regulators to collect "comprehensive and accurate data" on the scope of marijuana production and distribution and chided officials for not devoting enough resources to oversee and enforce their own regulations.

A state audit earlier this year found that the Oregon Liquor Control Commission, the agency charged with regulating legal marijuana, lacks "robust" monitoring and enforcement controls to track the $480 million industry, making illegal sales difficult to detect. An analysis done last year concluded that the state remains a top source for black market marijuana. That report, which the Oregon State Police and the governor later discredited as outdated, also found marijuana production in Oregon far outpaces demand.

Williams said he has pressed state officials ever since about the status of that report. "I have asked repeatedly, 'Will we see a final report?' and I have never gotten an answer," he said. "I had been told a year ago that there were multiple drafts of that report and then I just stopped hearing about it."

On Friday, State Police Superintendent Travis Hampton told The Oregonian/OregonLive that his agency does not plan to issue any analysis of marijuana data or trends. He said he expects that work to be completed by the federally funded regional High Intensity Drug Trafficking Area program. Williams said he also has told the governor's senior policy adviser on marijuana, Jeff Rhoades, that he'd like to see limits on licenses for marijuana producers and retailers. He said Rhoades has told him that officials want to encourage black market operators to enter the legal arena. "I don't understand that thinking," Williams said, "because that is not occurring."

Williams called the flood of cannabis out of state a top priority, saying large amounts of Oregon-grown marijuana have been seized in 30 states. "There can be no doubt that there is significant overproduction of marijuana in Oregon," Williams said in his memo. "As a result, a thriving black market is exporting marijuana across the country, including to states that have not legalized marijuana under their state laws." Williams said in addition to criminal prosecution, his office will use asset forfeiture, civil litigation and administrative enforcement to carry out his priorities.

The full four-page memo from US Attorney Williams is available at this link, and I share the view that this is a "down the middle of the road" approach being adopted for prosecution priorities that largely echoes many aspects of the now-repealed Cole Memo.  What I find especially notable and interesting is the seeming disinterest of some in Oregon concerning possible  tighter regulation of its legalized marijuana industry.  In some respects, it seems action by US Attorney Williams may be more a reaction to local concerns about local failing than a reflection of any particular policy direction coming from the Justice Department in DC.

Prior related posts:

• US Attorney for Oregon, expressing "significant concerns about the state's current regulatory framework," plans summit in response to new AG enforcement policy
• US Attorney for Oregon, apparently serving now as chief state regulator, conducts marijuana summit

Interesting report on new study of state of marijuana in state of California

This new Forbes article, headlined "New Study Highlights The Social Impacts Of Cannabis Legalization In California," details some highlights from an interesting new survey of Californians in the wake of the state's vote to legalize marijuana. Here are excerpts:

A recent study by BDS Analytics, a cannabis industry market trend and research group, suggests the impact of legalization has shifted Californians’ attitudes, opinions, motivations and actions in regards to cannabis. It also reveals an abundance of details about those who consume, accept and reject the plant, not only illustrating a shift in social culture, but also indicating — at least in the Golden State — cannabis’ archaic stigma is en route to extinction.

The survey assessed 1,001 California residents over 21-years-old in the first quarter of 2017, benchmarking public opinions and behaviors toward legal cannabis. Another group of 1,008 people was then evaluated in quarter one of 2018, examining the public's views toward cannabis laws, efficacy, and testing.

The survey yielded three clear groups. The "consumers,” whose average age is 39-years-old, and have used marijuana or products containing cannabinoids in the past six months. “Acceptors,” whose median age is 49-years-old, and haven’t used cannabis in the past six months, but would consider using it in the future. Lastly, “rejecters,” whose average age is 56-years-old, and haven’t consumed cannabis in the last six months and are not likely to consider future use.

According to the report, there’s been a significant increase in cannabis consumption among Californians' over the past year. Consumers currently account for 29 percent of adults in California, which is up from 23 percent in 2017. The number of acceptors, on the other hand, declined from 38 percent in 2017 to 33 percent in 2018, suggesting more people are currently using cannabis than they were a year ago. Additionally, the number of rejecters decreased from 40 percent in 2017 to 38 percent in 2018, implying the tolerance and acceptance of cannabis is becoming more common.

The reason acceptors and rejecters choose not to use cannabis, the study notes, is because they don't like how it makes them feel. Moreover, 25 percent of rejecters say pot makes them feel dysfunctional. Over a third of non-consumers say they'd be more inclined to use marijuana for the health benefits if they didn't have to endure its effects. In regards to compassionate-use, however, nearly 50 percent of rejecters say they'd want an ill loved-one to use cannabis if it eased their pain....

In 2017, BDS' data showed 63 percent of consumers lived in cities. According to Gilbert, that's where dispensaries have traditionally been located, making it easier for people to access and consume cannabis. Although 2018's survey results still show that most consumers live in cities, that number's dropped to 45 percent. In 2017, 31 percent of consumers lived in the suburbs, while only 4 percent of consumers lived in small towns. Those numbers jumped considerably in 2018. Now, 40 percent of consumers live in suburbs while 10 percent live in small towns....

The report also shows that next to the 68 percent of consumers who are Caucasian/white, nearly 45 percent of consumers are Hispanic-- quadrupling the percentage of consumers of other ethnicities. "This is one of the areas showing that cannabis use is becoming more aligned with how California looks generally," Gilbert says. "California is more likely to be Hispanic than anything else."

The data also found that only 32 percent of consumers are married, whereas 44 percent of both acceptors and rejecters are married. Interestingly, 58 percent of consumers have children. 44 percent of consumers have children over the age of 10 at home, while 28 percent of consumers have children under 10-years-old at home. In general, the stigma is deteriorating (in California). But it clings with fervor to specific groups of people, particularly parents—and even more so with mothers. Parents who use cannabis are often seen as irresponsible and incompetent caretakers. Thus, many often remain in the "green closet" and hide their use. But no judgment is passed for drinking wine....

The study also found, despite the lazy-stoner-stereotype, 53 percent of consumers work full-time jobs and have an average annual income of nearly $70,000. Only 44 percent of acceptors have full-time jobs, and 33 percent of rejecters work full-time. Although consumers are educated, only 10 percent of them have a master’s degree or higher. 21 percent of rejecters and 15 percent of acceptors have higher education degrees....

Although most of the report's findings provide evidence disproving the stigma, the study disclosed one confusing (read: alarming) revelation. According to the survey, consumers, who mostly identify as liberal, are less likely to believe it's important to vote in every election. Only 57 percent of consumers in 2018 think it’s important to vote, which is down from 71 percent in 2017. Rejecters, at 72 percent, and acceptors, at 67 percent, express a greater interest in social activism.

"Planting the seed for marijuana use: Changes in exposure to medical marijuana advertising and subsequent adolescent marijuana use, cognitions, and consequences over seven years"

The title of this post is the title of this notable new research now appearing in the journal Drug and Alcohol Dependence.  Here is its highlights and abstract:

Highlights

• Many adolescents are exposed to medical marijuana (MM) advertising.

• MM advertising exposure may contribute to increased marijuana use and consequences.

• Regulations for marijuana advertising are needed, similar to tobacco and alcohol.

Abstract

Background

Marijuana use during adolescence is associated with neurocognitive deficits and poorer functioning across several domains.  It is likely that more states will pass both medical and recreational marijuana legalization laws in the coming elections; therefore, we must begin to look more closely at the longitudinal effects of medical marijuana (MM) advertising on marijuana use among adolescents so that we can better understand effects that this advertising may have on their subsequent marijuana use and related outcomes.

Methods

We followed two cohorts of 7th and 8th graders (mean age 13) recruited from school districts in Southern California from 2010 until 2017 (mean age 19) to examine effects of MM advertising on adolescents’ marijuana use, cognitions, and consequences over seven years.  Latent growth models examined trajectories of self-reported exposure to medical marijuana ads in the past three months and trajectories of use, cognitions, and consequences.

Results

Higher average exposure to MM advertising was associated with higher average use, intentions to use, positive expectancies, and negative consequences.  Similarly, higher rates of change in MM advertising exposure were associated with higher rates of change in use, intentions, expectancies, and consequences over seven years.

Conclusions

Results suggest that exposure to MM advertising may not only play a significant role in shaping attitudes about marijuana, but may also contribute to increased marijuana use and related negative consequences throughout adolescence.  This highlights the importance of considering regulations for marijuana advertising, similar to regulations in place for the promotion of tobacco and alcohol in the U.S.

This RAND press release provides an account of the research behind this new article, and it begins this way:

Adolescents who view more advertising for medical marijuana are more likely to use marijuana, express intentions to use the drug and have more-positive expectations about the substance, according to a new RAND Corporation study.

The findings—from a study that tracked adolescents' viewing of medical marijuana ads over seven years—provides the best evidence to date that an increasing amount of advertising about marijuana may prompt young people to increase their use of the drug. The study was published by the journal Drug and Alcohol Dependence.

Key House committee votes (for the first time) to extend limits on Justice Department concerning medical marijuana prosecutions

As reported in this Forbes piece by Tom Angell, headlined "Congressional Committee Protects Medical Marijuana From Jeff Sessions," this afternoon brought some interesting developments out of Congress. Here are the details:

A powerful congressional panel voted on Thursday to continue shielding medical marijuana patients and providers who comply with state laws from prosecution by the federal government.

While the provision has been federal law since 2014, when it was first attached to legislation that funds the U.S. Department of Justice, its continuance has been in question because of recent efforts by Republican leadership to prevent votes on cannabis amendments.

But in a stunning bipartisan move, the House Appropriations Committee voted to add the provision as a rider to legislation funding U.S. Attorney General Jeff Session's department for Fiscal Year 2019. The amendment was offered by Rep. David Joyce (R-OH)....

Historically, the measure has been approved on the House floor but, because Rules Committee Chairman Pete Sessions (R-TX) has effectively blocked floor votes on cannabis amendments for the last several years -- most recently on Wednesday when his panel prevented three hemp measures from advancing -- supporters haven't gotten a chance to bring the medical marijuana measure before the full chamber since 2015, when it passed by a margin of 242-186. Since then, the provision has been extended, mostly by default, through large-scale omnibus bills or short-term continuing resolutions that have largely kept federal spending policy riders frozen in place for the last few budget cycles.

But legalization supporters circumvented their Pete Sessions problem on Thursday by inserting the marijuana language into the funding bill at the earlier Appropriations panel stage, a move they previously haven't risked because members of Congress are seen as more likely to avoid bucking party leadership at the committee level when bills are being crafted....

The growing number of states that are enacting medical cannabis laws in recent years means that far more members of Congress represent constituents who stand to be harmed by the spending riders' disappearance, however, so advocates felt comfortable placing the measure before the committee this year....

Attorney General Jeff Sessions, who has no familial relation to the Rules Committee chairman of the same last name, asked congressional leadership to discontinue the provision in a 2017 letter, but lawmakers then extended it anyway as part of large-scale budget deals for the rest of that fiscal year and into FY 2018....

Now, the protections for state medical marijuana laws and the people and businesses who rely on them are pace to continue through 2019 as well. The rider does not protect broader state laws allowing recreational marijuana use and businesses. The Senate Appropriations Committee is expected to take up its version of the Justice Department legislation next month. That panel has easily approved the medical cannabis rider -- and other marijuana provisions -- in recent fiscal years, and is expected to do so again.

By taking the House committee route, led by Joyce, marijuana reform supporters also avoided the measure's long association with Rep. Dana Rohrabacher (R-CA), who has been its chief sponsor for years and who isn't a member of the Appropriations panel. The reputation of Rohrabacher, who is seen as one of the most pro-Russia members of Congress, has been damaged amid revelations about that country's interference in the 2016 U.S. presidential race And his reelection this year, in a district that Hillary Clinton won, is uncertain.

Now, because the measure was successfully attached to the 2019 Justice Department bill by Joyce, it is the Ohio congressman's name -- and not Rohrabacher's -- that will likely appear at the top of congressional sign-on letters about it, probably making it more likely that fellow GOP members will more seriously consider supporting its extension....

Separately during the Appropriations Committee's markup of the Commerce, Justice Science spending bill, Rep. Andy Harris (R-MD), an opponent of legalization, successfully offered an amendment urging the U.S. Drug Enforcement Administration to quickly process pending applications to cultivate marijuana to be used in scientific research.

"Estimated Tax Revenues from Marijuana Legalization in New York"

The title of this post is the title of this notable new report released yesterday by New York City Comptroller Scott M. Stringer.  Here is how it gets started: 

In just the past six years, voters in eight states and the District of Columbia have passed ballot measures to legalize the adult use of marijuana.  At least seven more states may follow suit this fall.  In total, over half of states have legalized marijuana for medical purposes since California first did so in 1996.  This dramatic change in public attitudes is reflective of changes as measured by survey data, with 61% of Americans now supporting lifting the ban on marijuana.  More than just a change in attitudes toward marijuana itself, the growing movement for legalization also acknowledges the immeasurable harm done by the criminalization of marijuana use, especially among communities of color.

New York State’s 2014 Compassionate Care Act legalized marijuana for medical use. Legislation to legalize adult marijuana use, the Marijuana Regulation and Taxation Act, has been reintroduced in each subsequent legislative session.  In his Executive Budget for State Fiscal Year 2018-2019, Governor Cuomo proposed a study of the economic impacts of legalization and the implications of continuing to prohibit use while other nearby states move to legalize.  In this report, New York City Comptroller Scott M. Stringer provides an estimate of the fiscal impact of legalizing adult-use marijuana sales in New York.  This report estimates the legal, adult-use marijuana market at some $3.1 billion per year in New York State, about $1.1 billion of that in New York City.  In turn, the Comptroller’s Office estimates that this market could conservatively yield annual tax revenues of as much as $1.3 billion total at the State and City levels.  That assumes a combination of state and local sales and excise taxes in line with what other jurisdictions have passed that could yield up to $436 million in revenues for the State, $336 million for the City, and some $570 million for localities outside of the city.  Of course, the total revenues realized at the State and local levels would depend on the final outcome of any legalization effort.

Beyond the mere dollars that legalization could yield, decriminalization has clear human and societal benefits.  In states where adult marijuana use has been legalized, there have been declines in teenage usage of marijuana, and public health and safety concerns have been addressed.  Finally, misdemeanor marijuana arrests continue to fall most heavily on young Black and Latino New Yorkers, despite a higher reported usage rate among White youth. Erasing the harmful repercussions, including the stigma of a criminal record, would open doors that have been closed to too many for too long, yielding incalculable human, economic, and societal benefits.

Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program

As reported in this local article, headlined "San Francisco will use new technology to automatically reduce marijuana convictions under Prop. 64: 'It’s about leveling the playing field'," a notable player in the tech world is stepping up to aid expungement efforts in California in the wake of marijuana legalization. Here are the details:

When recreational marijuana use was legalized in California, it presented an opportunity to reduce or expunge convictions for possession crimes that made it harder for some people to get ahead in life. Since then, some counties have worked to address those convictions, taking on the lengthy bureaucratic process so that people would not have to wade through the legal world on their own.

San Francisco led the charge, announcing in January that the district attorney's office would retroactively apply the new marijuana law to prior convictions dating as far back as 1975. But for prosecutors, the chance to change those convictions also came with a challenge: It required a lot of resources to plow through thousands of cases.

On Tuesday, Dist. Atty. George Gascón announced what he believes to be the solution. San Francisco is working with a nonprofit organization to create a program that would automatically clear eligible convictions under California's new marijuana legalization law. The program, created by Code for America, will allow the district attorney's office to use new technology to determine eligibility for record clearance under state law, automatically fill out the required forms and generate a completed motion in PDF format. The district attorney's office can then file the completed motion with the court....

The new program will clear people's records of crimes that can be barriers to employment and housing, the district attorney said. Lack of access to employment and housing drive recidivism, Gascón said, adding that he hopes the partnership will inspire other prosecutors who have cited resource constraints to follow suit.

In February, Los Angeles County Dist. Atty. Jackie Lacey said petitioning through the courts would be faster for people seeking relief than waiting for her office to review the case files. The same month, the Los Angeles County Board of Supervisors approved a motion to develop a plan to help make it easier for people to reduce or clear minor pot convictions. The Los Angeles County district attorney's office estimates there have been 40,000 felony convictions involving pot-related offenses since 1993. It is unclear how many of those people are eligible for relief or how many have petitioned for it.

Although "drug use in this country has not been limited to people of color" in California, minorities — particularly African Americans and Latinos — have been arrested and jailed for marijuana offenses at much higher rates than white people, Gascón said. Many of those affected are poor, he added, or lack the resources needed to change their criminal records on their own. "It's about leveling the playing field," he said. "Justice is supposed to be about fairness and equity."...

The district attorney's office said Gascón and Code for America began exploring the possibility of automating the process in February, after recognizing how "resource intensive" it was to wipe out or reduce convictions. Some 962 motions to dismiss a misdemeanor marijuana conviction have been prepared, 528 have been submitted to the San Francisco Superior Court and 428 have been granted, the district attorney's office said, but felony convictions take longer because they require an analysis of rap sheets in order to determine eligibility.

Code for America plans to expand the pilot program to other California counties with the target of clearing 250,000 convictions by 2019. The organization has previously delved into the realm of criminal justice: In 2016, it created Clear My Record, an online application that connects people with lawyers to clear criminal records across California.

"By reimagining existing government systems through technology and user-centered design, we can help governments rethink incarceration, reduce recidivism, and restore opportunity," Code for America Executive Director Jennifer Pahlka said in a statement. The program, she said, will demonstrate that "our institutions can deliver on the promise voters intended when they passed propositions like Proposition 64."

Regular readers perhaps already know that I am eager to follow-up this story by plugging my new paper written for a forthcoming issue of the Federal Sentencing Reporter focused on the intersection of marijuana reform and ameliorating collateral consequences.  Among the themes of that paper is the opportunity that marijuana reform presents for building a more robust infrastructure for helping individuals access existing expungement remedies.  In my writing, I was thinking primarily about building up government infrastructures here, but this new development is a great indication of how technological infrastructure can develop to extend the benefits of marijuana reform in various ways.

Prior related post:

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The power of the pen: NYC mayor and prosecutors pledge to reduce marijuana arrests after new reports on racial disparity

As reported in this recent post, titled "NY Times highlights racialized realities of NYC marijuana arrests," the Gray Lady earlier this week ran a big story on the racially disparate patterns of arrests for marijuana offenses in New York City.  Though lots of other folks have tracked and reported on these racialized realities in the past, the New York Times can often capture attention like few others.  And proof of this reality comes from this follow-up New York Times article headlined "Mayor and Some Prosecutors Move to Curb Marijuana Arrests." Here are excerpts:

After years of halting steps, top prosecutors and elected officials in New York City on Tuesday made a sudden dash toward ending many of the marijuana arrests that for decades have entangled mostly black and Hispanic people.

The plans, still unwritten and under negotiation, will rise or fall on the type of conduct involving marijuana that officials decide should still warrant arrest and prosecution. The changes appear likely to create a patchwork of prosecution policies across the city’s five boroughs, and are unlikely to restrict police officers from stopping and searching people on suspicion of possessing a drug that is now legal in a number of states.

But with the city now conceding a wide racial gap in arrests and with the Police Department’s rationale for that gap collapsing under scrutiny, the plans represent a striking shift that could lead in some parts of the city to people generally facing no criminal penalties for smoking marijuana.

Mayor Bill de Blasio, who suggested only weeks ago that city policy would hold fast until New York State legalized the drug, directed the Police Department on Tuesday to have a plan within 30 days to “end unnecessary arrests.”

The Manhattan district attorney, Cyrus R. Vance Jr., said he would stop prosecuting marijuana possession and smoking arrests this summer, and he gave the Police Department until then to make a case for still charging limited categories of people. The Brooklyn district attorney, Eric Gonzalez, said that over the last three months his office had doubled the number of marijuana smoking cases it had stopped prosecuting and that it now planned to start throwing out more cases after the Police Department weighed in.

And the police commissioner, James P. O’Neill, said he would convene a working group to review marijuana enforcement tactics and conceded that at least some arrests “have no impact on public safety.”

A New York Times investigation published on Sunday showed that black people were arrested on low-level marijuana charges at eight times the rate of white people over the last three years, and that among neighborhoods where people called to complain about marijuana at the same rate, the police almost always made arrests at a significantly higher rate in the area with more black residents.

Defense lawyers and drug reform advocates, stung by years of piecemeal policy changes that have only reined in prosecution and arrest tactics bit by bit, said the plans did not yet offer any assurances that the decades-long era of mass enforcement of marijuana laws was over. Kassandra Frederique, the New York State director at the Drug Policy Alliance, which has long pushed for legalization and publicized the racial gap in arrests, faulted Mr. de Blasio for not acting sooner. In January, the mayor said the roughly 17,500 annual marijuana arrests represented “a normal level in the sense of what we were trying to achieve.”...

At the end of 2014, Mr. de Blasio said the police would largely give summonses instead of making arrests for carrying personal marijuana, and reserve arrests mainly for smoking in public. Arrests fell from about 26,000 people in 2014 to 17,500 people on average in the years since then, about 87 percent of them black or Hispanic. But still, thousands of people continued to miss work and school for court and face consequences in their searches for housing or jobs. Research has shown there is no good evidence that marijuana arrests are associated with reductions in serious crime in New York City.

In a report released Tuesday, Mr. Vance said he supported legalizing marijuana and had found no rationale for the New York City’s enforcement tactics: “These arrests waste an enormous amount of criminal justice resources for no punitive, rehabilitative, deterrent or other public safety benefit. And they do so in a racially disparate way that stigmatizes and disadvantages the arrestees,” the report said....

The district attorneys in Manhattan and Brooklyn left the door open to prosecuting people on marijuana charges if they had previous criminal records. Scott Hechinger, a senior staff lawyer and director of policy at Brooklyn Defender Services, said doing so would undermine a policy intended to reduce the impact of marijuana laws on black and Hispanic people: “The people that are going to have records are folks that live in neighborhoods that are overpoliced and targeted for enforcement,” he said....

The moves on Tuesday highlighted the discretion afforded the city to enforce the state’s marijuana law as police officials see fit. But defense lawyers and drug reform advocates said that so long as using marijuana was still a crime, police officers would continue to seize on the smell of marijuana to stop and search people and check for open warrants. “The odor of marijuana has become the new broken taillight,” Mr. Hechinger said. “It creates a pretext that’s quite difficult to disprove for officers to approach and search our clients in neighborhoods with a high police presence.”

Some (of many) prior related posts:

• NY Times highlights racialized realities of NYC marijuana arrests
• Examining the persistently significant number of marijuana arrest in New York City
• Lamenting "marijuana apartheid" amidst modern marijuana reform movement
• Notable new data on marijuana arrests in NYC

"Budding Torts: Forecasting Emerging Tort Liabilty in the Cannabis Industry"

The title of this post is the title of this notable new article authored by John Campbell now available via SSRN, Here is its abstract:

The marijuana industry is booming.  It is expanding into new states while it grows beyond the medical marijuana market into the recreational world.  What was once illicit profit is quickly becoming on-the-books gains.  As the industry matures, billions will be made, and companies once viewed suspiciously will become market giants.  But this growth will not be without consequences.

As marijuana use grows, and those who profit from it become established companies, the marijuana industry will become a target for tort claims that other industries have faced for decades.  These claims, ranging from product liability claims to vehicular injury to consumer class actions, will expose actors in the industry to potentially ruinous damages.  This is particularly true if the industry remains, as it is now, only partially prepared.  Particularly dangerous will be third-party claims (claims filed by people who did not purchase marijuana themselves).  In those claims, the illegal status of marijuana in federal law could make establishing liability against manufacturers, wholesalers, and sellers easier than it is for other products.  This Article chronicles the most likely claims to emerge en masse in courts and puts forth potential, viable industry responses.