Marijuana Law, Policy & Reform

Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation

A couple of big states on the east coast, New Jersey and New York, saw efforts this year to fully legalize marijuana via traditional legislation falter.  But it seems that the biggest midwestern state, Illinois, got this done this legislative session as reported in this local article:

A recreational marijuana legalization bill will soon land on Gov. J.B. Pritzker’s desk after the Illinois House on Friday voted to pass the comprehensive measure.

The Illinois House voted 66-47 after more than three hours of debate. The Illinois Senate on Wednesday cleared the measure. The governor issued a statement applauding the bill’s passage and pledging to sign it. “The state of Illinois just made history, legalizing adult-use cannabis with the most equity-centric approach in the nation,” Pritzker said. “This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance.”

While there are giant swaths of criminal justice and social equity reforms attached to the measure — including giving a second chance to thousands of people convicted of marijuana possession — practically speaking it will allow Illinois residents over 21 to buy cannabis from licensed dispensaries as soon as Jan. 1.

If signed into law, Illinois will become the first state to approve cannabis sales through the Legislature, instead of a ballot measure. There are laws regulating and taxing cannabis in nine states. In Vermont and Washington, D.C., cannabis possession and cultivation is legal but sales are not regulated.

The measure would also allow Illinoisans over 21 years old to possess 30 grams, or just over an ounce of cannabis flower, and 5 grams, or less than a quarter-ounce, of cannabis concentrates such as hash oil. Additionally, Illinoisans would be able to carry up to a half-gram of edible pot-infused products.

“It is time to hit the reset button on the war on drugs,” bill sponsor state Rep. Kelly Cassidy, D-Chicago, said during the debate. “What is before us is the first in the nation to approach this legislatively, deliberately, thoughtfully, with a eye toward repairing the harm and the war on drugs. We have an opportunity today to set the gold standard for a regulated market that centers on equity and repair.”...

Others weren’t convinced. State Rep. Mary Flowers, D-Chicago, said “the reset button is broken.” “The fact of the matter is nothing in this bill addresses the harm that’s been done to our community,” Flowers said. “Our community is still being used for people to make a profit and get rich and give nothing to the community.”

Amid opposition, some initiatives in the initial measure, which was filed in early May, were scaled back. A House committee this week approved changes that include allowing only medical marijuana patients to have up to five plants in a home. There were also changes made within the expungement provisions, which would have initially automatically expunged hundreds of thousands of marijuana possession convictions.

Now, convictions dealing with amounts of cannabis up to 30 grams will be dealt with through the governor’s clemency process, which does not require individuals to initiate the process. For amounts of 30 to 500 grams, the state’s attorney or an individual can petition the court to vacate the conviction.

The updated language means those with convictions for cannabis possession convictions under 30 grams can get pardoned by the governor. States attorneys would then be able to petition the court to expunge the record. A judge would direct law enforcement agencies and circuit court clerks to clear their record. This only applies to those convicted with no other violent crime associated with the charge. And it only applies for convictions that have taken place when the bill takes effect on Jan. 1....

Designed to address concerns about impaired driving, the measure would also add a DUI Task Force led by Illinois State Police to examine best practices. Those would include examining emergency technology and roadside testing.

Sales from recreational marijuana is expected to bring in $57 million in this year’s budget and $140 million next year, sponsors have said. It should eventually rise to $500 million a year once the program is fully running.

Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement

I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.)   In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I."  In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."  

In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief.  Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:

This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.).  The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health.  We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings.  Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.

Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:

The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses.  I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”).  The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.

Prior related posts:

• Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
• "Colorado girl suing U.S. attorney general to legalize medical marijuana nationwide"
• Could a high-profile lawsuit help end federal marijuana prohibition?
• Mixed messages from US District Judge hearing legal challenge to federal marijuana prohibition
• Federal judge dismisses high-profile suit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act

"An Argument Against Regulating Cannabis Like Alcohol"

The title of this post is the title of this paper recently posted to SSRN authored by Jonathan R. Elsner, who just recently graduated from The Ohio State University Moritz College of Law. This paper is now the fifth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first four papers in this series are linked below.)  Here is this latest paper's abstract:

As cannabis prohibition comes to an end in the United States, federal and state governments must decide how to regulate its cultivation, distribution, and sales.  One particular option, supported by some alcohol wholesalers and distributors, is a regulatory system based on that of the alcohol industry, whereby the government mandates a distribution system consisting of three mutually exclusive tiers: manufacturers, distributors, and retailers.  This paper, however, argues against creating a regulatory framework for the nascent adult-use cannabis industry modeled after the government-mandated, three-tier distribution system established for alcohol post-Prohibition as it inherently stifles innovation and quality.

Essentially, the three-tier distribution system creates an unnatural layer of government-mandated middlemen, distributors and wholesalers, who perpetuate market inefficiencies that benefit themselves, along with large corporations, to the detriment of consumers and small-to-medium-sized businesses.  The beer industry, now dominated by two breweries offering largely undifferentiated products, provides a cautionary tale regarding the effects of the three-tier distribution system to those developing the regulatory structure for the adult-use cannabis industry.

Prior student papers in this series:

• "The Canna(business) of Higher Education"
• "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
• "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
• "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"

Arizona Supreme Court clarifies that state medical marijuana law includes resins and hashish

Last year, an intermediate appellate court in Arizona ruled that a medical marijuana patient could still be criminal prosecuted for possession of hashish because, in the court's view, the Arizona Medical Marijuana Act retained a distinction between cannabis and marijuana and preserved the criminality of the former.  But yesterday, in Arizona v. Jones, No. CR-18-0370-PR (Ariz. May 28, 2019) (available here), the Arizona Supreme Court ruled unanimously that "AMMA’s definition of marijuana includes both its dried-leaf/flower form and extracted resin, including hashish."  Here is an excerpt from the tail end of the opinion:

AMMA appeared on the 2010 ballot as Proposition 203.  The accompanying ballot materials stated Proposition 203’s purpose was to “protect patients with debilitating medical conditions . . . from arrest and prosecution” for their “medical use of marijuana.” Ariz. Sec’y of State, 2010 Publicity Pamphlet 73 (2010).  Proposition 203 was intended to allow the use of marijuana in connection with a wide array of debilitating medical conditions, including “cancer, glaucoma, . . . amyotrophic lateral sclerosis, Crohn’s disease, [and] agitation of Alzheimer’s disease,” including “relief [from] nausea, vomiting and other side effects of drugs” used to treat debilitating conditions.  Id. It is implausible that voters intended to allow patients with these conditions to use marijuana only if they could consume it in dried-leaf/flower form.  Such an interpretation would preclude the use of marijuana as an option for those for whom smoking or consuming those parts of the marijuana plants would be ineffective or impossible. Consistent with voter intent, our interpretation enables patients to use medical marijuana to treat their debilitating medical conditions, in whatever form best suits them, so long as they do not possess more than the allowable amount....

We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA.  We reverse the trial court’s ruling denying Jones’s motion to dismiss, vacate the court of appeals’ opinion, and vacate Jones’s convictions and sentences.

Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization

Last week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs.  The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:

In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.

The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older.  The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.

The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress.  The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue.  Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.

This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."

"Half-Baked: The Science and Politics of Legal Pot"

The title of this post is the title of this new article authored by Joelle Anne Moreno and now available via SSRN. Here is its abstract:

Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter.  Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020.  Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.

Despite its growing acceptance and popularity, marijuana remains illegal under federal law.  Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.

So what is the truth about pot?  The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential.  Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method.  Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry.  This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data.  For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.

This Article treats marijuana as a significant contemporary science and law problem.  It focuses on the fundamental question of regulating a substance that has not been adequately researched.  The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics.  It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power.  Marijuana legalization has, thus far, been treated as a niche academic concern.  This approach is short-sighted and narrowminded.  Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.

New research suggests CBD can reduce craving and anxiety for those with heroin use disorder

Long-time readers know I have long been covering the (never-quite-clear) connection between modern marijuana reform and the modern opioid crisis.  (Just some of many, many prior posts on this front are linked below.)   Today brings notable research news on this front, which is already getting a lot of attention from the mainstream press in articles from CNN, from NBC News, from Newsweek, and from US News & World Report, among others.  All these stories are about a new study published in The American Journal of Psychiatry from multiple authors under this catchy title: "Cannabidiol for the Reduction of Cue-Induced Craving and Anxiety in Drug-Abstinent Individuals With Heroin Use Disorder: A Double-Blind Randomized Placebo-Controlled Trial."  Here is the study's abstract:

Objective:

Despite the staggering consequences of the opioid epidemic, limited nonopioid medication options have been developed to treat this medical and public health crisis. This study investigated the potential of cannabidiol (CBD), a nonintoxicating phytocannabinoid, to reduce cue-induced craving and anxiety, two critical features of addiction that often contribute to relapse and continued drug use, in drug-abstinent individuals with heroin use disorder.

Methods:

This exploratory double-blind randomized placebo-controlled trial assessed the acute (1 hour, 2 hours, and 24 hours), short-term (3 consecutive days), and protracted (7 days after the last of three consecutive daily administrations) effects of CBD administration (400 or 800 mg, once daily for 3 consecutive days) on drug cue–induced craving and anxiety in drug-abstinent individuals with heroin use disorder. Secondary measures assessed participants’ positive and negative affect, cognition, and physiological status.

Results:

Acute CBD administration, in contrast to placebo, significantly reduced both craving and anxiety induced by the presentation of salient drug cues compared with neutral cues. CBD also showed significant protracted effects on these measures 7 days after the final short-term (3-day) CBD exposure. In addition, CBD reduced the drug cue–induced physiological measures of heart rate and salivary cortisol levels. There were no significant effects on cognition, and there were no serious adverse effects.

Conclusions:

CBD’s potential to reduce cue-induced craving and anxiety provides a strong basis for further investigation of this phytocannabinoid as a treatment option for opioid use disorder.

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
• "Could medical marijuana help fight opioid abuse? It’s complicated"
• "Impact of Medical Marijuana Legalization on Opioid Use, Chronic Opioid Use, and High-risk Opioid Use"
• "Should Physicians Recommend Replacing Opioids With Cannabis?"
• "The Impact of Cannabis Access Laws on Opioid Prescribing"
• Speculating about impact on the opioid crisis as Ohio finally sees its first legal medical marijuana sale

NFL perhaps ready for new approach to marijuana as it agrees to explore use of drug for pain management

Though he graduated from law school earlier this month,  Lucian Lungu, a helpful student from my marijuana seminar this past semester, made sure that I did not miss this week's interest news emerging from the NFL.  Indeed, Lucian was kind enough to draft this guest post covering the news with some links:

The National Football League (NFL), widely regarded as the strictest on marijuana among the four major, professional sports leagues, has seemingly began to actually move toward, possibly, implementing a new marijuana policy.  On May 20, 2019, the NFL and NFL Players Association released a press release (available here) detailing the formation of two new committees concentrating on pain management  and mental health care.  The pain management news, as explained below, related to its marijuana policy.

The Joint Pain Management Committee will seemingly attempt to provide a solution for the widespread, dangerous, although legal, use of prescription drugs in the NFL by creating new league-wide regulations as well as a Prescription Drug Monitoring Program.  (The problematic use of prescription drugs should be a reason in itself for the NFL to soften its marijuana policy.)  In addition, this Committee will also engage in pain management and alternative therapy research, which includes “look[ing] at marijuana,” according to Allen Sills, NFL Chief Medical Officer.  Additionally, every team will have a Pain Management Specialist who will work with players based on their individualized needs.

If a new marijuana policy gets adopted, it will almost certainly occur during negotiations on the next collective bargaining agreement in 2021.  Nevertheless, this latest development is a great step forward for a league whose commissioner, just three years ago when asked about the NFL's restrictive policy, state that, “we believe it’s the correct policy, for now …”  It looks like the “for now” period has passed, and major changes could be coming to a league in dire need of an adjustment.

 

New issue brief calls for "Using Marijuana Revenue to Create Jobs"

As detailed in this press release, yesterday "the Center for American Progress released a new issue brief calling for states and the federal government to use marijuana tax revenue to fund the creation of thousands of public sector jobs in low-income communities of color that have been historically deprived of economic opportunity due to discriminatory drug enforcement."  Here is more from the release:

The issue brief proposes a tangible way to pay for the creation of jobs in communities that have experienced the heaviest consequences of disparate criminal enforcement of marijuana.  The authors calculate that annual tax revenues from the regulated marijuana market in California and Washington state, for example, could create nearly 20,000 jobs.  This number is sure to increase as more and more Americans — 68 percent, according to a 2018 CAP/GBAO Strategies poll — favor marijuana legalization and more states consider legalizing the recreational use of marijuana as well as creating a regulated marijuana market.

The proposal is an outgrowth of CAP’s 2018 report, “Blueprint for the 21st Century: A Plan for Better Jobs and Stronger Communities,” which called for a massive investment in public sector  job creation and a jobs guarantee for highly distressed communities.

The brief further describes the need to ensure that any marijuana legalization effort leads with provisions that ensure racial equity and correct injustices that have resulted from the war on drugs.  Key recommendations include providing automatic and cost-free expungements of marijuana arrest and conviction records; reinvesting in essential services for communities most harmed by the war on drugs; and promoting equitable licensing systems and funding for minority-owned businesses.  These measures would greatly help people who face barriers to economic opportunity, employment, and other basic necessities due to the collateral consequences of a marijuana-related conviction.

The full eight-page issue brief is titled “Using Marijuana Revenue to Create Jobs” and is authored by Maritza Perez, Olugbenga Ajilore, and Ed Chung. Here is its conclusion:

Today, states are raking in billion-dollar profits for activity that sent millions of African American and Latinx individuals into the criminal justice system, trapping their families and communities in poverty for generations.  The movement to legalize marijuana presents an opportunity both to achieve justice for and to build economic opportunity in these communities.  Creating public sector jobs and other policies outlined in this issue brief acknowledge the economic impact that the war on drugs has had on low-income people of color.  With these policies, elected leaders can begin to address the structural barriers that states must rupture so that individuals from some of their most vulnerable communities have equal access to economic opportunity.

Encouraging research on "Medical Marijuana Laws and Suicide"

I just saw a report on this notable research reporting on the relationship between marijuana reform and suicide in California in the years before and after the legalization of medicial marijuana in 1996.  Just published in the Archives of Suicide Research, this article is titled " "Medical Marijuana Laws and Suicide," and is authored by Bradley J. Bartos, Charis E. Kubrin, Carol Newark & Richard McCleary.  Here is the article's abstract: 

Objective: To estimate the causal effect of a medical marijuana initiative on suicide risk.  In 1996, California legalized marijuana use for medical purposes. Implementation was abrupt and uniform, presenting a “natural experiment.”

Method:  Total, gun and non-gun suicides were aggregated by state for the years 1970-2004.  California’s control time series was constructed as a weighted combination of the 41 states that did not legalize marijuana during the time-frame.  Post-intervention differences for California and its constructed control time-series were interpreted as the effects of the medical marijuana law on suicide. Significance of the effects were assessed with permutation tests.

Results: The 1996 legalization resulted in mean annual reductions of 398.9 total suicides, 208 gun suicides, and 135 non-gun suicides.  The effect estimates for total and gun suicides were statistically significant (p<.05) but the effect estimate for non-gun suicides was not (p≥.488).

Conclusions: Since the effect for non-gun suicides was indistinguishable from chance, we infer that the overall causal effect was realized through gun suicides.  The mechanism could not be determined, however.  Participation in the medical marijuana program legally disqualifies participants from purchasing guns.  But since most suicides involve guns, it is possible the effect on total suicide is driven by gun suicide alone.

"Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"

The  title of this post is the title of this paper recently posted to SSRN authored by Tyler G. Aust, who just recently graduated from The Ohio State University Moritz College of Law.  This  paper is now the four of what will be an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first three papers in this series are linked below.) Here is this latest paper's abstract:

The proliferation of legal marijuana foretells an uncertain future for businesses that implement zero-tolerance drug policies.  In states where recreational marijuana is legal, businesses still have the power to enforce drug policies through employment contracts.  That changed in Maine, where state law prohibits employers from making adverse employment decisions based solely on an employee’s off-duty use of marijuana.  As legalization efforts sweep across the Midwest, it is unclear whether other states will follow Maine’s model.  Some businesses have already relaxed pre employment marijuana testing amid labor shortages.  To prepare for the future, employers should revise their drug policies to distinguish between on-duty and off-duty marijuana consumption and allow employees to use marijuana outside of the workplace.

Prior student papers in this series:

• "The Canna(business) of Higher Education"
• "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
• "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"

Fitting headlines mark the many challenges of the next era of modern marijuana reforms

There is so much media coverage of so many marijuana related issues that I barely have time to keep up with my reading, let alone blog about all the interesting stories.  (E.g., I keep meaning to blog about the New York Times Magazine's CBD cover story.)  But in the last day, I saw three lengthy and connected stories that relate to the intersection of marijuana reform, politics and social justice that seems to have come now to define the realities and challenges of this space.  The headlines of the three pieces help capture the themes:

• From the AP, "Pot ‘legalization 2.0’: Social equity becomes a key question"

• From Politico, "How Democrats are failing on legalized marijuana"

• From the New York Daily News, "Let’s really talk about marijuana: I sold the stuff as a kid, and I’m proud to lead the push to decriminalize and end the stigma associated with pot records"

In addition to recommending all these pieces, I will seek to summarize them by just saying it has always been clear to me that effective and sound legal reform in this space is very, very hard and calls for lots and lots of folks working very, very hard to get it as right as possible from the outset and then continuing to work very, very hard to assess and refine reform regimes. 

Noting diverse employment law realities for medical marijuana users in diverse states

Governing has this effective new piece on employment law's intersection with marijuana reforms under the headline "Can Medical Marijuana Get You Fired? Depends on the State." The subheadline highlights a theme of the piece: "Less than half of the states where the drug treatment is legal protect patients from employment discrimination. Courts have generally sided with employers -- until recently." Here are excerpts:

In most states, you can use medical marijuana without getting arrested -- but it could still get you fired.  While 33 states have legalized cannabis for medicinal purposes, fewer than half of them protect patients from being fired or rejected for a job because of a positive cannabis test or simply because they're registered on a medical marijuana database.  This legal haziness has sparked lawsuits across the country.

Courts have generally sided with employers, says Peter Meyers, a law professor at George Washington University.  This was the case in 2006 in Oregon and in 2009 in Montana.  More recently, however, judges have shifted their verdicts in favor of employees.  In New Jersey last month, an appeals court ruled that medical marijuana use is covered under the state's ban on disability-based employment discrimination.  This case follows similar rulings in Connecticut, Massachusetts and Rhode Island. As more states legalize the drug treatment, the battle will continue in the workplace.

“The big problem is [marijuana] remains illegal federally except for narrow exceptions,” says Meyers, who has written about the constitutionality of drug testing. “There’s this conflict, and a lot of the court rulings have deferred to federal law. It’s a very confusing situation.”  The legal contradiction has left a lot of employers, and employees, uncertain about what rules to follow.

Bipartisan legislation to protect medical marijuana patients from employment discrimination has been introduced in Congress, but it only applies to federal workers and has yet to gain traction. With the federal government unlikely to change its marijuana policy any time soon, states are left to make their own rules.  In 14 of them, medical marijuana patients have explicit employment protections either through legislation or court rulings, according to the Marijuana Policy Project.

That leaves 19 states where people may have to choose between this treatment option and a job.  One of them is California, which was the first state to legalize medical marijuana, in 1996, but doesn't have explicit workplace protections.  The state Supreme Court ruled in 2008 that an employer could reject a job candidate with a positive cannabis test -- even if they had a prescription.  Bills seeking to override that decision have been tossed around without success.

Even where employment protections exist, they have limitations.  Arkansas law, for example, says an employer can't discriminate based on a person’s past or present status as a marijuana patient.  But companies can still ban employees from taking it at work.  In Oklahoma, employers can't penalize employees or applicants for a positive drug test -- unless failing to penalize someone would cause the employer to “imminently lose a monetary- or licensing-related benefit under federal law or regulation.”...

Despite the widespread legalization of medical cannabis, there are a number of reasons employers pause when it comes to having people who use it on their staff.  Some aren't fully aware of their state's protections, and others might fear losing out on federal funding.  “A lot of people are concerned about whether marijuana users will be less productive [at] work or if there will be more workplace accidents,” says Karen O’Keefe, state policies director for the Marijuana Policy Project.

But unlike many other drugs, THC, the active ingredient in marijuana, can be detected for 30 days or longer after use, so workplace drug tests don't necessarily portray a person’s current level of impairment.  As medical marijuana becomes less taboo, more employers will likely change their drug policies.  Already, fewer employers -- particularly those facing staff shortages -- are requesting preemployment tests for marijuana.

"Harm Reduction in Domestic Violence: Does Marijuana Make Assaults Safer?"

The title of this post is the title of this interesting new paper now available via SSRN authored by Jacob Kaplan and Li Sian Goh.  Here is its abstract:

While all forms of domestic violence can be uniquely traumatizing, incidents resulting in serious injury can lead to lasting physical, mental, and financial consequences for the victim.  Hence, it is surprising that most literature on the effects of policy intervention on domestic violence treats such incidents as homogeneous rather than considering differing levels of victim injury.  This study provides evidence that decriminalization of marijuana leads to substantial declines in victim injury.  Among domestic violence assaults where the victim suffered a serious injury, there was a significant decline in incidents where the offender was under the influence of alcohol or used a weapon.

Interesting data on marijuana arrests in DC after 2014 legalization initiative

The American Civil Liberties Union of the District of Columbia has this notable new report titled "Racial Disparities In D.C. Policing: Descriptive Evidence From 2013–2017," which includes a section on marijuana arrests. Here is what this report reports (with some added emphasis):

Passed in 2014, Initiative 71 made it legal for people to possess, use, grow, and share small quantities of marijuana.  The law does not authorize individuals to consume marijuana in public or sell the drug to other people.  As a result, public consumption and distribution remains illegal.

The marijuana statute became effective in February 2015 and, that year, the overall number of arrests for marijuana-related offenses plummeted, from 1,747 arrests in 2014 to just 216 arrests in 2015.  The drop was largely driven by the reduction in arrests for marijuana possession.

However, while arrests for marijuana possession remained low, the number of arrests for public consumption of marijuana has been steadily increasing, particularly for Black people.  After marijuana legalization, consumption arrests briefly declined before starting to rise, increasing from 79 arrests in 2015 to 217 in 2017.  Arrests for that offense are racially skewed: even though white and Black D.C. residents use marijuana at similar rates, Black individuals comprised 80% of the individuals arrested for marijuana consumption from 2015–2017.

This disparity could stem from officers’ racial bias.  Alternatively, the disparity could be the result of another statute that makes it illegal to do in public what is legal to do in private — thereby penalizing those who have less access to private property.  These explanations could also work in tandem. No matter the cause, the consequence of the current marijuana regime is that Black people are ensnared in the criminal justice system at disproportionate rates for what the D.C. government agrees is a minor offense.

I understand the continued concern, as expressed here, that even after marijuana legalization "Black people are ensnared in the criminal justice system at disproportionate rates."  But I think the dramatic decline in the total number of marijuana arrests is the much bigger story and one that cannot be emphasized too much.  Because even the most minor of drug convictions or even just arrest can have profound impact on all sorts of future employment, schooling and housing opportunities, a yearly reduction of 1500 arrests means (somewhat invisible) yearly improvements in 1500 lives (and all those touched by those lives) thanks to marijuana reform.

Lots of notable green coverage in lots of sections of the Gray Lady

My east coast roots (and bias?) has long led me to look at the New York Times as the "paper of record" in so many ways (and that thinking led me to view as so important  the 2014 New York Times editorial calling for the legalization of marijuana).  But the biggest developments in the marijuana reform space have taken place in other regions, and so other papers, especially the Denver Post and the Boston Globe, have been much more at the forefront of marijuana coverage.

But the Gray Lady seems to be keeping pace with marijuana developments these days, and some headlines from distinct section of the paper this past week highlights all the angles the paper is now covering:

From the local section, "Marijuana Legalization Hits a Wall: First in New Jersey, Then in New York"

From the U.S. section,"Attorneys General From 33 States Urge Pot Banking Reform"

From the "Mind" section, "The Stoner as Gym Rat"

From the "Style" section, "Design’s New Leaf"

And, interestingly, the NYT is also now soliciting tales to tell via this "Reader Center" quesy: "How Has Colorado’s Legalization of Marijuana Affected You? Help us better understand how Coloradans are adapting to their state’s legalization of pot."

Of course, the Gray Lady has not quite yet turned into Marijuana Moment.  But it is still interesting to see the stories it is deciding to cover in this space, and encouraging that they are eager to inquire further.

Second installment of Ohio State Cannabiz Roundtable scheduled for May 16

As noted in this post, in January I had the opportunity to participate in an exciting cannabis industry panel discussion, co-sponsored by the Ohio State Drug Enforcement & Policy Center (DEPC), under the heading "Cannabiz Roundtable."   This coming week, on Thursday, May 16 and as detailed here, another set of cannabis industry participants are part of another DEPC discussion this time titled "Cannabiz Roundtable: Industry Diversity & Legislative Updates."

The event is described at this link, where one can find this event description:

About

The legal landscape of the cannabis industry continues to change both at the state and federal level, creating continuous challenges and opportunities for entrepreneurs in Ohio. At the same time, the cannabis industry is facing a challenge of ensuring that it reflects the diversity of our community and that communities that have been disproportionately affected by the War on Drugs benefit from opportunities in the legal industry. Please join us for our second Business of Cannabis Roundtable where we will host two panels discussing both issues.

Building Industry Diversity

As in many other states, the cannabis industry in Ohio is challenged with ensuring that it reflects the diversity of its community. Despite increased attention among the industry professionals and government entities alike, companies continue to struggle with recruiting, training and retaining a diverse workforce. Please join our panel of industry professionals as they discuss their own experience of entering this new industry, resources that are available for training and recruitment and strategies for building a diverse industry.

Legislative Updates

Our second panel will focus on legislative and regulatory updates in respect to Ohio’s medical marijuana program and Ohio’s treatment of hemp and CBD. Given the recent changes in the federal law, our panel of experts will discuss what changes are afoot in Ohio and how will these changes affect the cannabis industry.

Hosts

Center for Innovation Strategies

Drug Enforcement and Policy Center

Ohio Cannabis Chamber of Commerce

May 16th, 2019, starting at 4pm, at the Ohio Union round Meeting Room (3rd Floor)

Late votes lead to surprise passage of Denver's initiative to decriminalize psychedelic mushrooms

Despite early vote counts suggesting a close defeat of a Denver initiative to decriminalize hallucinogenic psilocybin mushrooms, the final vote count showed that the initiative squeaked out a victory.  This local article, headlined  "Denver first in U.S. to decriminalize psychedelic mushrooms," provides the details:

Denver is poised to become the first city in the nation to effectively decriminalize psychedelic mushrooms.

After closing an early vote deficit Tuesday night and early Wednesday, final unofficial results posted late in the afternoon showed a reversal of fortune — with Initiative 301 set to pass narrowly with 50.6 percent of the vote. The total stands at 89,320 votes in favor and 87,341 against, a margin of 1,979. The Denver Elections Division will continue accepting military and overseas ballots, but typically those numbers are small. Results will be certified May 16....

Denver’s vote has attracted national attention. While efforts are afoot to get psilocybin-related measures on the ballot in Oregon and California in 2020, Denver hosted the first-ever U.S. popular vote on the matter, according to organizers. An earlier effort in California last year failed to qualify for the ballot.

Though Initiative 301 attracted no organized opposition, critics of Colorado’s legalization of marijuana lamented the prospect of Denver blazing yet another trail they see as misguided and potentially harmful. The measure essentially tells police to look the other way on adult psilocybin use....

Supporters extolled emerging research showing potential health benefits with psychedelic mushrooms. The measure likely was put over the top by younger voters, who tend to cast their ballots closer to or on Election Day, even though all registered voters receive their ballots in the mail about three weeks earlier.

Last fall, the U.S. Food and Drug Administration granted psilocybin “breakthrough therapy” designation for its potential to help with treatment-resistant depression, a status that speeds up the development and review process for a medicine containing the substance.

As written, I-301 directs police via ordinance to treat enforcement of laws against possession of psilocybin mushrooms as their lowest priority.

It’s similar to decriminalization measures approved by Denver voters for marijuana years before Colorado’s Amendment 64 won statewide approval....

Psychedelic mushrooms still would remain illegal to buy, sell or possess, with the latter crime a felony that carries a potential punishment of up to a year in prison and a fine. But Initiative 301 backers hope to lower the risk users face of getting caught with mushrooms.

Past marijuana efforts are instructive, though. Denver voters signed off on decriminalization measures in 2005 and 2007, but that didn’t stop police from enforcing the law — though drug law-liberalization advocates say the public discussion prompted by the ballot initiatives helped pave the way for statewide legalization in 2012.

"Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"

The  title of this post is the title of this paper recently posted to SSRN authored by Amanda Maxfield, who is a student at The Ohio State University Moritz College of Law.  This is the third of what will be an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first paper in the series was authored by Shelby Slaven under the title "The Canna(business) of Higher Education, the second paper in the series was authored by Jordan Hoffman under the title "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'.").  Here is this latest paper's abstract:

Intellectual property is one of a company’s most valuable assets, at times deserving rigorous time and effort for proper protection.  Companies rely on patent, trade secret, trademark and copyright laws to protect their intellectual property.  For most businesses, this process is routine and a standard part of their ordinary course of business.  Cannabis companies, unfortunately, have many obstacles to overcome to use some of these same protections, as cannabis is considered federally illegal, yet legalized in many states to varying degrees. 

Cannabis companies must, therefore, be innovative and nuanced in their strategies for protecting their proprietary business information such as patentable subject matter through the use of patents and trade secrets.  The method of intellectual property protection is driven by the subject matter.  Cannabis growers target specific plant types based on cannabidiol (“CBD”) and delta-9-tetrohydrocannabinol (“THC”) ratios and desired characteristics using specific method of extraction, all of which are patentable if legal elements are met.  Unfortunately, while the cannabis industry is an emerging market with plenty of growth ahead of it, an ongoing Colorado court case involving liquids containing cannabinoids that could result in major negative ramifications for all involved in the cannabis industry.

Denver voters seem to reject initiative seeking to decriminalize "magic mushrooms"

As reported in this article, headlined "Denver Measure to Decrim Magic Mushrooms Trailing in Returns," it appears that voters in the Mil High City are not quite ready to pioneer a new front in the drug reform movement.  Here are the basics:

A Denver initiative that would have made it the first city in the country to decriminalize hallucinogenic psilocybin mushrooms was trailing in the polls as early results were announced Tuesday night. The measure was losing, 54% to 45%, in early election returns on Tuesday night. As of 8:30 p.m., Initiative 301 was down by 54% to 45%, a margin of more than 8,600 votes.

The measure would have decriminalized possession and use of the drug — which remains classified as a Schedule I substance by the U.S. government — within city limits, which advocates said would have opened up the potential health benefits of hallucinogenics.

Research from Johns Hopkins University found that psilocybin showed benefits for depression and anxiety; other research has shown that it showed benefits for addiction, cluster headaches and even post-traumatic stress disorder.

Kevin Matthews, a stay-at-home dad and campaign manager for Decriminalize Denver, the campaign for Initiative 301, spoke to supporters just after results poured in and offered an optimistic message. “This is not over yet,” he said. “We all know that this goes way beyond Denver,” he added. “Right now this thing is a coast-to-coast movement.”...

Attention will now turn to other progressive cities. Advocates in Oakland, CA, are working on their own psychedelic decriminalization ballot measure, and a campaign in Oregon seeks to put a magic mushroom measure before voters in the 2020 election.

Supporters were hopeful that Denver, which became the first city to decriminalize cannabis in 2005, could be the standard bearer for hallucinogenic legalization as well. The 2005 vote eventually led to the state legalizing recreational marijuana seven years later, setting off a wave of legalization across the country.