Tuesday, March 31, 2020
The title of this post is the headline of this new Forbes piece by Tom Angell highlighting one way that the COVID-19 crisis seems certain to slow the drug law reform momentum heading into November. Here are the details:
Marijuana and drug policy reform advocates came into 2020 believing it would be a big — and perhaps unprecedented — year for legalization and decriminalization measures on state ballots. From California to Missouri to Oregon, they had high hopes for placing far-reaching initiatives before voters in November.
But many of those efforts have been severely impeded by the coronavirus pandemic, which has made mass signature gathering to qualify ballot measures all but impossible as public health and government officials have urged social distancing measures.
Here’s a look at the growing list of ballot initiatives on cannabis and broader drug reforms that have been effectively halted by the COVID-19 outbreak.
Separate campaigns to amend California’s legal marijuana program and legalize psilocybin mushrooms are calling on officials to allow them to collect ballot signatures digitally instead of in-person due to the health risks of the the latter traditional route amid the pandemic. So far those requests seem to have been ignored.
Activists in Missouri announced that they have “no practical way” of collecting enough signatures to place a marijuana legalization measure before voters amid the pandemic and are now considering shifting their focus to the 2022 election.
A campaign working to qualify a medical cannabis measure for the November ballot is temporarily suspending signature gathering efforts during the coronavirus outbreak “out of an abundance of caution.”
Activists behind a measure to decriminalize possession of all drugs and expand treatment services using current marijuana tax revenue has halted in-person signature collection efforts. That said, the campaign says it has almost enough to qualify and so is urging supporters to download, print, sign and mail petitions to help. Also in Oregon, a separate team of advocates working to legalize the therapeutic use of psilocybin mushrooms has also suspended mass signature collection efforts despite similarly having almost enough to ensure ballot access. They are asking people who want to sign to fill out an online form so that petitions can be mailed to them.
Activists in the nation’s capital were hoping to give voters a chance to decide on a measure to effectively decriminalize a wide range of psychedelics—including psilocybin, ayahuasca and ibogaine — in November. But they, like their colleagues in states across the country, have acknowledged that the COVID-19 pandemic makes in-person signature collection virtually impossible. They’ve asked for a change in the law to allow for electronic petition signing, but officials have demurred, and so the campaign is now exploring a plan to mail petitions to supporters who would then collect signatures from their immediate family members and close friends.
Beyond the ballot, the coronavirus outbreak has also impeded efforts to advance marijuana reform bills through state legislatures in place like Connecticut, New York and Vermont as sessions have been largely halted due to health concerns.
But ... in South Dakota, separate measures to legalize marijuana and allow medical cannabis have already qualified for the state’s November ballot.... In Mississippi, the state certified that advocates collected a sufficient number of signatures to place a medical marijuana legalization question before voters.... In New Jersey, the legislature voted late last year to place a marijuana legalization referendum on the November ballot. And in Arizona, activists announced last week that they have already collected more signatures than needed to qualify a marijuana legalization measure for the ballot — though they have not yet been submitted to and verified by the state.
This accounting leave out Ohio, where a campaign for full legalization of marijuana was just getting launched when COVID-19 started shutting down the state. I suspect still other states and localities may have had similar nascent efforts shut down as well.
Starting student presentations with "Better Branding on the Big Screen: How the Marijuana Industry Can Use Product Placement to Build Increase Support"
As long-time readers know, students in my Marijuana Law, Policy & Reform seminar typically "take over" my class after Spring Break week through in-class presentations on the research topics of their choice. This year, of course, the COVID-19 crisis has disrupted our usual plans by disrupting usual schedules and precluding in-person gatherings. But, I am pleased and proud to now be able to report that my resilient students are still hard at work on their projects and will be presenting to the class online.
As long-time readers also should know, before presentations, students are expected to provide in this space a little background on their topic and links to some readings or relevant materials. The first of our presentations taking place this week will focus on marijuana and media, as the title of this post highlights, and here is how my student has described his topic along with the background readings he has provided for his classmates (and the rest of us):
Reefer Madness is often credited for spreading anti-marijuana sentiment across the country. Could modern movies depicting marijuana have the opposite effect? This paper asks whether film can influence our opinions on marijuana use and legalization. While evidence regarding marijuana specifically is sparse, other data shows that movies can affect the viewer’s opinion on a given topic.
If movies do have a persuasive effect, how can the marijuana industry harness this effect to build public support? Luckily, a mechanism for doing so already exists: product placement. Many different companies (including tobacco companies) use already use product placement to produce a positive view of their products among consumers, subsequently leading to higher sales. The marijuana industry can use “generic” product placement not to increase sales of a specific product, but to build a positive image of marijuana more generally.
My paper discusses legal and industry barriers that could prevent or minimize the industry’s ability to engage in product placement. Taking these barriers into account, the industry must place its products strategically. However, if done correctly, product placement would be a viable persuasive tool.
Marijuana Product Placement, Branding on the Rise as Marketing Execs Reimagine Legal Ganja: An article covering the recent trend of marijuana product placement in an attempt to portray marijuana use in more positive light. The basis of my paper and presentation is that this type of product placement can be used to help push public opinion to support for marijuana use.
Changing Real-World Beliefs with Controversial Movies: An article discussing how film effectively influences viewers’ attitudes and beliefs on a given topic and an analysis of a study attempting to quantify this effect.
Here’s Smoking At You, Kid: Has Tobacco Product Placement in the Movies Really Stopped?: Written just before the turn of the century, this law review article discusses the history of tobacco product placement in movies and possible ways to prohibit the practice.
High Art: The Subversive History of Stoner Comedies: An article discussing the marijuana-user community’s interactions with film, and how stoner comedies provided leading-role opportunities for minority actors even when the rest of Hollywood wouldn’t.
A Christmas Miracle: Washington Court Overturns Marijuana Sign Rules That Banned String Lights Spelling ‘Pot’: A Reason piece discussing a recent Washington state court decision concluding that marijuana advertising is “lawful activity” for the purposes of commercial speech. The case is relevant because commercial speech only receives First Amendment protection if it concerns lawful activity.
‘Easy Rider’ at 50: How the Rebellious Road Movie Shook Up the System: a look back at Easy Rider’s impact on the filmmaking industry.
Friday, March 27, 2020
Advocacy groups urge ceasing of cannabis arrests and release of cannabis offenders during COVID-19 outbreak
As detailed in this press release, the "Last Prisoner Project and other organizations are urging law enforcement officials to dramatically curtail arrests for non-violent crimes, including ceasing arrests for cannabis offenses. In addition to curtailing arrests, the organizations are calling for officials to release or grant clemency to those incarcerated for cannabis offenses along with dramatically reducing the number of incarcerated non-violent prisoners, whether sentenced or un-sentenced." Here is more:
The Marijuana Policy Project, Last Prisoner Project, Law Enforcement Action Partnership, Clergy for a New Drug Policy, Doctors for Cannabis Regulation, National Cannabis Industry Association, Students for Sensible Drug Policy, and National Organization for the Reform of Marijuana Laws (NORML) have sent a letter calling for these actions to the National District Attorneys Association, National Governors Association, National Sheriffs’ Association, National Association of Chiefs of Police, National Correctional Industries Association, American Correctional Association, and AFSCME.
The letter is available at this link, and here are excerpts:
[W]e are imploring you to curtail arrests for non-violent offenses, such as marijuana possession, cultivation, and sale until the country is better able to prevent the spread of the coronavirus. Similar actions have already been taken in Pennsylvania, Ohio, and nationally by U.S. Immigrations and Customs Enforcement.
Many jurisdictions give police broad discretion to choose infractions and summonsed misdemeanors as alternatives to serious charges and arrests. In addition, officers have wide discretion to merely provide warnings for minor offenses. We encourage broad use of this flexibility in the face of the COVID-19 outbreak.
In addition to curtailing arrests, we are urging you to release cannabis offenders, along with dramatically reducing the number of incarcerated non-violent prisoners, whether sentenced or un-sentenced. By significantly reducing the number of inmates in local jails and prisons, you can ultimately reduce the risk of the coronavirus being spread amongst inmates, staff, and the community. Guards return to their families and communities after their shifts, as do prisoners upon their release. The larger the number of individuals incarcerated, the greater the likelihood and possible scope of a related outbreak. This puts prisoners, guards, and the larger community at risk as the communities grapple with this public health crisis. Significantly reducing the number of inmates is a necessary step to ensuring public health in the face of this crisis.
Many localities — including Baltimore; Suffolk County, Massachusetts; Cuyahoga County, Ohio; New Jersey; Los Angeles; and New York City — and the Federal Bureau of Prisons have already begun to release inmates incarcerated for non-violent, drug-related offenses with the understanding that infections in prisons and jails are rampant, and releasing inmates could save the lives of not only inmates but also the custodial, medical, and safety staff that serve them.
The title of this post is the title of this notable new Politico piece. Here are excerpts:
Cannabis is turning out to be the one thing the coronavirus can’t destroy.
Marijuana sales are booming, with some states seeing 20 percent spikes in sales as anxious Americans prepare to be hunkered down in their homes potentially for months. Weed sellers are staffing up too, hiring laid-off workers from other industries to meet demand. And in the midst of a historic market meltdown, stock prices for cannabis companies have surged, in some cases doubling since the public health crisis began.
“We are hiring because we are having to shift our business a bit,” said Kim Rivers, CEO of Trulieve, which is valued at $1 billion. The company is staffing up its delivery fleet, retail workers, and people to handle increased inventory shipments. “Now is a great time [to apply], particularly if you’re in a business that has seen layoffs.”
Nearly all of the 33 states with legal medical or recreational markets have classified marijuana businesses as an essential service, allowing them to remain open even as vast swaths of the retail economy are shuttered. San Francisco and Denver initially announced plans to shut down dispensaries, but immediately backpedaled after a public furor.
Weed shops are essentially being treated the same as pharmacies, reflecting a dramatic shift in cultural perceptions about the drug over the last decade. “It is a recognition that it has taken on much greater significance around the country,” said Rep. Earl Blumenauer (D-Ore.), a longtime Capitol Hill champion for cannabis. “This is something that makes a huge difference to the lives of hundreds of thousands of people every day. I do think that this might be part of a turning point.“
Concerns about whether smoking pot is the smartest response to a pandemic that’s causing severe lung injuries in tens of thousands of Americans have been largely drowned out. "Public opinion has pushed lawmakers to think about cannabis — and particularly medical cannabis — in different ways than they used to," said John Hudak, a cannabis policy expert at the Brookings Institution, and author of Marijuana: A Short History. "A lot of state policymakers are trying to get this right and they obviously see the risk of shutting down a dispensary to be higher than the rewards of shutting down a dispensary."...
The burgeoning industry does face some stiff financial headwinds: The massive stimulus package moving through Congress this week to help beleaguered businesses shuts out cannabis companies from taking advantage of its benefits, reflecting the continued federal illegality of marijuana. Prior to the recent boom in sales, the industry had been in financial turmoil, with many companies laying off workers and scuttling acquisitions as they ran short on cash. “I'm frustrated Senate Republicans refused to allow us to include them in this legislation, but we aren't giving up," Sen. Patty Murray (D-Wash.) said Wednesday.
In addition, some medical experts question the wisdom of allowing uninhibited access to marijuana during a massive public health crisis. They worry that customers flocking to pot shops could spread the virus, that stoned customers will engage in risky behavior and that smoking pot will worsen the lung damage for people who do become infected. “If you keep the pot stores open, you're just adding fuel to the fire,” said Karen Randall, an emergency room doctor in Colorado. “You're having a whole bunch of people who are trashing their lungs.”...
The federal government said Thursday that a staggering 3.3 million people applied for unemployment benefits last week. While the cannabis industry can’t do much to remedy that bloodletting, some companies are looking to hire people who have recently lost their jobs. Harborside — which operates three shops in the Bay Area — found itself suddenly understaffed as delivery requests increased by 45 percent and phone calls exploded from around 100 to 8,000 per day.... Harborside has hired 10 employees in the last few weeks — some of whom were directly laid off as a result of the coronavirus — and plans to hire at least six more. The largest increase was in their delivery fleet, going from four drivers to 10.
And they’re not alone. “Two and a half weeks ago, our sales just exploded,” said Zachary Pitts, CEO of California cannabis delivery service Ganja Goddess. “People are leaning on delivery more now … even though storefronts are still open in California.” Pitts estimated that he’s increased his workforce by about 15 percent in recent weeks, and is working on hiring more. The company has suspended normal vetting processes and is instead relying on trusted referrals....
As states move to declare marijuana an essential business, the gulf between state and federal policy has never been wider. Congress is poised to enact a $2 trillion stimulus package this week, but the cannabis industry will not see a cent. “In the same way that cocaine dealers in the United States who are suffering under Covid-19 are not going to be eligible for relief under the stimulus bill, cannabis companies won't either,” said Hudak of the Brookings Institution. “Illegal businesses do not access legal funding.”
The cannabis industry generated $15 billion in sales last year and employs 340,000 people. Employers and workers pay federal taxes, and are required to comply with other coronavirus-related measures such as paid sick leave coverage. But for cannabis companies to access assistance made available through the stimulus package, Congress or the administration would need to dictate their inclusion. A spokesperson for Sen. Jeff Merkley (D-Ore.) said he wants to include such a provision in a future coronavirus aid package. Similarly, Murray said she is “exploring what can be done in the upcoming appropriations process to help them through this crisis and beyond."
March 27, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, March 26, 2020
In a post-COVID economy, will job creation and tax revenue from marijuana reform become irresistible?
Even before we have a real handle on the public health tragedy created by the coronavirus in the US, the economic fallout is already profound as represented by just one headline this morning: "A record 3.3 million Americans filed for unemployment benefits as the coronavirus slams economy." The Chair of the Federal Reserve is now saying "We may well be in a recession,” and the Treasury Secretary has been talking about a possible 20% unemployment rate. Though I do not know how extreme will be our economic struggle in the weeks and month ahead, I do know that advocates for marijuana reform are likely to waste no time stressing the potential job creation and tax revenue benefits from marijuana reform. As this title of this post suggests, I cannot help but wonder if in many states, and maybe even at the federal level, an economic development argument for marijuana reform may start to become nearly irresistible.
I do not have the time right now to do a comprehensive review of pre-COVID press pieces and articles and reports making much of the varied potential economic benefits of marijuana reform. But this haphazard collection of titles and links provides a flavor for what I expect we will be hearing a lot from marijuana reform advocates in the weeks and months ahead:
UPDATE: I just saw this new Yahoo Finance article headlined "Coronavirus could accelerate US cannabis legalization." Here are excerpts:
DataTrek Research’s Jessica Rabe writes in a note, “there’s a simple and effective solution for states and cities to help cover their huge budget shortfalls after the COVID-19 pandemic subsides: legalize recreational sales of marijuana.”...
“We’ve been thinking a lot about how life will change post-virus, and one big difference will be that state and local governments are going to encounter large unexpected tax receipt shortages,” Rabe wrote. “That’s particularly true when it comes to sales and income taxes amid stressed consumer balance sheets and massive layoffs. And unlike the Federal government, states can’t print unlimited amounts of money.”
Legalization of cannabis for adults, Rabe points out, could be a really easy way to shore up tax basis without driving people out of state, as raising income tax might do. Already it has been successful at raising “hundreds of millions of dollars annually in states like Colorado,” she said.
March 26, 2020 in Employment and labor law issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Taxation information and issues , Who decides | Permalink | Comments (0)
Noticing post-reform pattern of federal marijuana prosecutions ... and realizing what it really tells us about the modern drug war
Over at my sentencing blog, I noted here that the US Sentencing Commission this week released its national yearly data on federal sentencing for Fiscal Year 2019. I am extremely pleased to see that Kyle Jaeger at Marijuana Moment has already drilled into this data in this post titled "Feds Prosecuted Even Fewer Marijuana Cases In 2019 As More States Legalize, New Data Shows." Here are excerpts:
Federal prosecutions for marijuana trafficking declined again in 2019, and drug possession cases overall saw an even more dramatic decline, according to a new report published by the U.S. Sentencing Commission on Monday.
While drug cases still represent the second most common category of crimes in the federal criminal justice system, the data indicates that the bulk of those instances are related to methamphetamine trafficking, which has steadily increased over the past decade.
But for marijuana, a different kind of trend has emerged. As more states have moved to legalize cannabis, federal prosecutions have consistently declined since 2012. To illustrate the shift, marijuana trafficking cases represented the most common drug type that was pursued in 2012, with about 7,000 cases. As of fiscal year 2019, those cases are now the second least common, with fewer than 2,000 cases.
Notably, the year of that peak, 2012, was when Colorado and Washington State became the first to legalize for recreational purposes. Though the report doesn’t attempt to explain why cannabis cases are on the decline, advocates have postulated that state-level marijuana reform has helped curb illicit trafficking by creating a regulated market for consumers to obtain the products. “Twenty-five percent of the public now live in jurisdictions where the sale of marijuana to adults is legal,” Justin Strekal, political director of NORML, told Marijuana Moment. “Of course there will be a corresponding drop in the number of illegal sales.”
Another possibility is that evolving public opinion and state policies have contributed to a shift in perspective among prosecutors, who may no longer wish to prioritize enforcing cannabis prohibition in the era of legalization. While all marijuana sales — even in states with legalization laws — remain federally prohibited, the Trump administration has in practice continued the Obama-era approach of generally not interfering with the implementation of local policies even though then-U.S. Attorney General Jeff Sessions formally rescinded a memo on the topic from the prior administration.
In any case, the new U.S. Sentencing Commission report also shows a broader decline in drug possession cases in general. In fact, the most significant reduction in crime category for 2019 was drug possession, which fell from 777 federal cases the previous year down to 563 — a 28 percent drop.... While marijuana trafficking cases decreased, the average sentence for a conviction increased by two months, from 29 to 31. Overall, drug trafficking prosecutions did increase by about 1,000 cases in 2019, though again that’s largely attributable to an increase in methamphetamine-related prosecutions.
This discussion of new federal data — particularly the notion that state-level marijuana reforms "helped curb illicit trafficking by creating a regulated market for consumers to obtain the products — elides the important reality that ALL state-legal marijuana stores are stilled engaged in "illicit trafficking" under federal law. I stress this point because there are more than 10,000 federally-illegal (and state-licensed) marijuana businesses in just the states of California and Oklahoma alone. Save for limits in a spending rider (which Prez Trump has sought to disavow), the US Department of Justice could decide to prosecute many thousands of the out-in-the-open marijuana dealers (most of whom have given states all their marijuana dealing plans in writing in order to get a state license).
I make this point because I mean to stress that the major decline in federal marijuana prosecutions over the last decade does not demonstrate that there are fewer federal marijuana crimes taking place in the US. Rather, it seems clear that there are now many more, and many more obvious, federal marijuana crimes taking place in the US, and there is also reason to fear that "fully illicit" marijuana activity (dealing that does not even comply with state laws) may not be in decline in any way. And yet we see this marked decline in federal marijuana prosecutions simply because federal prosecutors, quite soundly in my view, simply believe it is an ever-less-good use of their time to be prosecuting all the marijuana offenders who continue to grow their drug-dealing businesses in plain view.
Wednesday, March 25, 2020
At Brookings, Makada Henry-Nickie and John Hudak have this interesting new brief as part of its "Policy 2020" series titled "It is time for a Cannabis Opportunity Agenda." Here is the paper's executive summary:
The 2020 election season will be a transformative time for cannabis policy in the United States, particularly as it relates to racial and social justice. Candidates for the White House and members of Congress have put forward ideas, policy proposals, and legislation that have changed the conversation around cannabis legalization. The present-day focus on cannabis reform highlights how the War on Drugs affected targeted communities and how reform could ameliorate some of those wrongs. The national conversation on cannabis stands at a pivotal inflection point that provides policymakers and legislators with an extraordinary opportunity to establish a policy context wherein inclusive economic opportunities can thrive in tandem with responsible investments to redress longstanding harms.
When Congress works to remedy a discriminatory past or to rectify decades of institutionalized bias, it has an obligation to thoroughly consider implicit and explicit hurdles to equity. Nowhere is this deliberation more critical than in drug policy reform. For decades, the criminalization of drugs led to foreclosed opportunities for people of color who were disproportionately victimized by unequal criminal enforcement. In 2013, police officers were 3.73 times more likely to arrest people of color for cannabis possession than whites. Arrest disparities were even more egregious in some communities where Blacks were 8.3 times more likely than whites to be arrested for possession. The racist roots of the War on Drugs inflicted significant collateral damage on minority groups, saddling young men and women of color with drug convictions — often before age 30 — and setting them on a course of institutionalized disadvantage because of the crippling, collateral consequences of criminal records.
Today, amidst a thriving state-legal cannabis industry, the same people hurt most by the drug war face the greatest barriers to participating in the emerging cannabis economy. As elected officials consider how to reform the nation’s cannabis laws and rectify these serious socioeconomic and racial issues, they must erase any ambiguity about the protections, corrective actions, and inclusive opportunities intended to reverse the generation-long ills of the War on Drugs. We argue that 2020 is an opportune moment to design a comprehensive pragmatic Cannabis Opportunity Agenda: a set of policies that addresses the social harms of marijuana prohibition and seeks to rehabilitate impacted communities with a focus on equity, opportunity, and inclusion.
March 25, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Advocacy groups urge governors to ensure "medical cannabis patients do not experience disrupted access to crucial medicine" during COVID crisis
I just saw that, earlier this week, an array of advocacy groups sent this short letter to the National Governors Association headed "Emergency Call To Action To Governors In States With Medical Cannabis Programs." Here is the heart of the letter (which also attaches a similar letter from last week from Americans for Safe Access):
In the midst of the COVID-19 pandemic, the undersigned national drug policy, HIV/AIDS, and public health organizations write to all U.S. governors and medical cannabis program directors to amplify a letter sent last week by the nation’s leading medical cannabis and patient advocacy group, Americans for Safe Access (ASA). We are joining their call for necessary, immediate actions and safeguards to ensure that medical cannabis patients do not experience disrupted access to crucial medicine.
Thirty-three states and the District of Columbia have medical cannabis laws enacted and, cumulatively, these states serve over three million patients. Medical cannabis patients often live with debilitating ailments, such as cancer, HIV/AIDS, and chronic pain that significantly affect quality of life. It is critical that policymakers and other decision makers who are working to address the current COVID-19 pandemic are also considering the public health consequences that will follow the decision to abruptly interrupt the legal supply chain for medical cannabis patients. We are especially worried about vulnerable patients being unintentionally pushed to the unregulated market, where there will not be access to lab-tested, tightly controlled products. This could endanger the health of those who rely on cannabis as medicine.
The undersigned organizations -- who support research and access to medical cannabis -- join ASA in calls for the recognition of medical cannabis as necessary medicine and for the recommendations below to be implemented to ensure that patients’ access to medicinal cannabis will continue.
Tuesday, March 24, 2020
I suspect regular readers have an inkling for why I have not blogged in this space for a few weeks. For this blogger, the new coronavirus world has meant a lot more time spent rescuing kids from shuttered colleges, gearing up for online classes, and lots of blogging at Sentencing Law & Policy about the impact of the virus on our criminal justice systems. Because a lot of organizations and journalists spend a lot of time covering marijuana news, I have not tried to keep up here with all the ways in which the COVID-19 is changing the marijuana reform world.
That all said, I think it useful to keep up with news in this space, if only to document how this historical moment is being captured in news stories and headlines. So, as social distancing turns into lockdowns and as stimulus package proposals get closer to becoming law, here is a sampling:
From CNN Business, "Cannabis advocates to governors: Our businesses are 'essential'"
From Marijuana Business Daily, "Coronavirus outbreak could delay marijuana legalization along East Coast, other states"
From Marijuana Business Daily, "Adult-use cannabis sales plunge after briefly hitting new heights on coronavirus concerns"
From Marijuana Moment, "Marijuana Industry Pleads For Access To Federal Coronavirus Business Relief"
From Marijuana Moment, "Nebraska Medical Marijuana Campaign Suspended Due To Coronavirus"
From Westworld, "Ask a Stoner: Quarantining Proves We Should Grow Our Own"
UPDATE: These topics made the New York Times this afternoon: "Is Marijuana an ‘Essential’ Like Milk or Bread? Some States Say Yes"
March 24, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Thursday, March 12, 2020
Regular readers know that I am always interested in marijuana reform impacts criminal justice systems, and that I am particularly interested in topics covered in my Federal Sentencing Reporter article, "Leveraging Marijuana Reform to Enhance Expungement Practices," regarding how marijuana reform efforts may be impacting criminal record expungement efforts. Consequently, I was terrifically excited to see this new post and resource from the terrific Collateral Consequences Resource Center authored by Deputy Director David Schlussel under the title "Legalizing marijuana and expunging records across the country."
Readers are urged to check out the full posting and materials, and this snippet from the start of the post provides a flavor of why:
As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda. Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in more than a dozen states. Most of these laws cover only very minor offenses involving small amounts of marijuana, and require individuals to file petitions in court to obtain relief. But a handful of states have authorized streamlined record reforms that will do away with petition requirements and cover more offenses. In the 2020 presidential race, Democratic candidates have called for wide-ranging and automatic relief for marijuana records.
Given these important developments that we expect will continue in the present legislative season, we have put together a chart providing a 50-state snapshot of:
(1) laws legalizing and decriminalizing marijuana; and
(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized.
We hope this tool will help people assess the current state of marijuana reform and work to develop more expansive, accessible, and effective record relief.
Wednesday, March 11, 2020
The title of this post is the title of this short piece just posted to SSRN authored by Heather Razook concerning a case currently pending before the California Supreme Court. Here is its abstract:
In 2019, the first and third California Appellate courts both decided cases examining the same issue: whether proposition 64 decriminalized marijuana possession in state correctional institutions. People v. Perry, from the first district, held that Prop 64 did not decriminalize and People v. Raybon, from the third district, held that Prop did decriminalize marijuana possession in correctional institutions. The cases presented two exceptionally similar arguments with opposite outcomes. This paper compares those arguments and predicts an outcome for People v. Raybon that is currently up for review in the California Supreme Court.
Tuesday, March 10, 2020
Coalition urges Prez Trump to "immediately being the process of granting clemency to those serving federal time for non-violent cannabis offenses"
As reported here by Marijuana Moment, a "coalition of criminal justice reform advocates — including several Republican officials and a major basketball star — recently delivered a letter to President Trump, imploring him to grant pardons or commutations to people serving time in federal prison for non-violent marijuana offenses." Here is more:
Weldon Angelos, who himself was convicted over cannabis and handed a mandatory minimum sentence before a court cut his sentence and released him, led the effort. He’s since become a reform advocate, and he rallied support for the new letter from a wide range of politicians, activists, entertainment figures and legal experts.
“On behalf of cannabis offenders serving federal prison sentences, their loved ones, and supporters across the country, we strongly urge you to immediately being the process of granting clemency to those serving federal time for non-violent cannabis offenses,” the letter, signed by several Republican state lawmakers, a former federal prosecutor, Koch Industries and NBA champion Kevin Garnett, among others, states. “Our nation’s view of cannabis has evolved, and it is indefensible to incarcerate citizens based on the unduly harsh attitudes of past generations.”
The letter, which was delivered to a staffer at the White House late last month, notes that Trump has expressed support for states’ rights to enact their own marijuana programs and it appeals to the president’s desire to accomplish unilaterally what Congress has been unable to do. “We respectfully urge you to begin the process of identifying and granting clemency to those serving federal time for cannabis offenses, particularly those who were prosecuted in states where cannabis is now legal. We stand by to help in any way possible.”
“[W]hile there are a number of proposals being introduced in Congress to finally put an end to cannabis prohibition, they tend to lack any real avenue of relief for those who are serving time for selling cannabis,” it continues. “Given the timidity of this proposed legislation, the gridlock in Congress, and the imperative fo freedom, clemency is the right tool to fix this problem.”
Angelos, who launched the cannabis reform advocacy campaign Mission Green, told Marijuana Moment in a phone interview that while comprehensive cannabis reform is important, the “more urgent need is to at least free those who were following state law or are in states where it’s legal now.”
“I think those ones are a no-brainer and low-hanging fruits that I think the president could take care of immediately,” he said. “Then we can work with Congress to try to have broader solutions to the problems than just clemency. Clemency can only do so much.”
Among the more than 50 signatories are two individuals whose sentences Trump previously commuted, along with representatives of #cut50, the Marijuana Policy Project (MPP), Terra Tech Corp and Law Enforcement Action Partnership. Actor Danny Trejo and the New Haven police chief also signed the request.
Saturday, March 7, 2020
The title of this post is the title of this notable new research by multiple authors appearing in the American Journal of Preventive Medicine. Here is its abstract:
The objective of this study is to assess the changes in rates of juvenile cannabis criminal allegations and racial disparities in Oregon after legalization of cannabis (July 2015) for adults.
This study included all allegations for cannabis-related offenses that occurred from January 2012 to September 2018 in Oregon. Negative binomial regression models were used to examine monthly cannabis allegation rates over time, and tested differences between youth of color and white youth, adjusting for age, gender, and month the allegation occurred. Analysis was conducted in January–March 2019.
Cannabis allegation rates increased 28% among all youth and 32% among cannabis-using youth after legalization. Rates of allegations were highest for American Indian/Alaska Native and black youth. Rates for black youth were double that of whites before legalization, and this disparity decreased after legalization. For American Indian/Alaska Native youth, rates were higher than whites before legalization, and this disparity remained unchanged.
Adult cannabis legalization in Oregon was associated with increased juvenile cannabis allegations; increases are not explained by changes in underage cannabis use. Relative disparities decreased for black youth but remained unchanged for American Indian/Alaska Native youth. Changing regulations following adult cannabis legalization could have unintended negative impacts on youth.
The paper cites to this notable similar work published last year in JAMA Pediatrics titled "Youth and Adult Arrests for Cannabis Possession After Decriminalization and Legalization of Cannabis." That study, looking at arrest data through 2016, found that "arrest rates of youths significantly decreased in states that decriminalized cannabis possession for everyone but did not decrease in states that legalized adult use."
Importantly, these studies are looking at arrest data only to and through a few years after state marijuana reforms. I know Colorado experiences an interesting spike in juvenile marijuana arrests the year right after dispensaries opened, but then there was a notable decline in arrests thereafter. These are important numbers, but I think we really need to keep examining them over a greater time period before reaching any firm conclusions about enforcement patterns.
Friday, March 6, 2020
Eager to include discussion of notable tax allocation provision in new Ohio marijuana reform initiative as part of "A Fresh Take on Cannabis Regulation"
As highlighted in prior posts here and here, a serious effort to get a serious marijuana legalization initiative to Ohio voters in November 2020 is in the works. Though this Ohio 2020 ballot initiative, titled "An Amendment to Regulate Marijuana Like Alcohol," still has an uphill climb to even make it to the ballot, I will likely be discussing some of its mostinteresting provisions in a variety of fora in the months ahead. And today the forum will be at the University of Cincinnati where I have the honor of participating in the College of Law's Corporate Law Symposium titled "A Fresh Take on Cannabis Regulation."
On my panel today, I plan to discuss some of the topics I first covered in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," exploring ways that marijuana reform intersects with criminal justice concerns. In that article, among other points, I urge jurisdictions to earmark a portion of marijuana revenues to improving the criminal justice system and I specifically advocate for the creation of a new criminal justice institution, which I call a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to help remedy some of the harms of the war on drugs.
Against that backdrop, I was especially intrigued by an interesting provision for taxing and spending the tax revenue appearing in new Ohio marijuana legalization ballot initiative. Specifically, Section 12(E)(5) of the proposed Ohio constitutional amendment provides:
The General Assembly may enact a special sales tax to be levied upon marijuana and marijuana products sold at retail marijuana stores or other entities that may be authorized to sell marijuana or marijuana products to consumers and, if such a sales tax is enacted, shall direct the Department to establish procedures for the collection of all taxes levied. Provided, at least one-quarter of the revenue raised from any such sales tax shall be placed in a special fund and used to establish a Commission on Expungement, Criminal Justice, Community Investment, and Cannabis Industry Equity and Diversity, which shall provide recommendations regarding the allocation of the remaining revenue in the fund; at least one-half of the revenue raised from any such sales tax shall be allocated to the State Local Government Fund or any successor fund dedicated to a similar purpose; and at least one-tenth of the revenue raised from any such sales tax shall be returned to the municipal corporations or townships in which the retail sales occurred in proportional amounts based upon the sales taxes remitted.
Though I think the the Commission on Expungement, Criminal Justice, Community Investment, and Cannabis Industry Equity and Diversity (CECJCICIED?) is a very clumsy name, I this it is a very good idea and I am quite excited to see a marijuana reform proposal that includes a means for building needed criminal justice infrastructure with the proceeds of marijuana taxes.
- Ballot initiative pursuing 2020 vote on full marijuana legalization in Ohio now in the works
- Ohio 2020 ballot initiative, "An Amendment to Regulate Marijuana Like Alcohol," officially filed
March 6, 2020 in Criminal justice developments and reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Wednesday, March 4, 2020
Noting how blanket federal prohibition serves to thwart continued progress of medical marijuana reforms
This new Roll Call article, headlined "States turn to unenforced federal law to slow medical marijuana legalization," effectively reviews how federal prohibition still serves to impact medical marijuana reforms efforts in a number of states. I recommend the lengthy article in full, and here are excerpts:
Since 2014, Congress has protected patients and cannabis programs from federal marijuana prosecutions in states that allow it for medical use. Medical marijuana’s unique legal status involves a little-known provision called the Rohrabacher-Farr amendment that Congress renews every year in spending laws. It says the Justice Department cannot use federal funds to prevent states from implementing their own medical marijuana laws.
Yet marijuana’s continued status as a Schedule I substance — the most severe drug category — remains fodder for those opposed to legalizing medical marijuana in other parts of the country.... In states considering the issue this year, including Alabama and Tennessee, opponents continue to cite the drug’s Schedule I status.
In Tennessee, House Speaker Cameron Sexton, a Republican, said in January that he won’t take up medical marijuana because “it’s against federal law.” A commission created by the Alabama Legislature to advise lawmakers on cannabis policy last year recommended that the state adopt a medical marijuana plan this session, and it published draft legislation to do so. But opponents on the commission said the top reason for their objections was “the fact that marijuana remains a Class I Controlled Substance under state and federal law.”
Alabama Attorney General Steve Marshall inflamed debate further in January when he wrote a letter in opposition to legislators. “State laws that allow any use of marijuana, medical or recreational, are in direct conflict with duly enacted and clearly constitutional law,” Marshall wrote. “Thus, state marijuana statutes enacted in violation of the law are damaging to the law itself.”...
Such arguments underscore why Congress is considering a number of bills to deschedule marijuana entirely or reschedule it in order to better study it. They face long odds in the Senate, which has yet to move on a House-passed bill that is limited to offering protections for banks that do business with marijuana companies.
But advocates for legalization say federal prohibition is a red herring, and that states shouldn’t have to comply with a federal drug law the Drug Enforcement Administration is barred from enforcing. “States are authorizing conduct that is prohibited under federal law, so at first blush, I can see how this could be confusing and surprising, but at this point, two-thirds of the country have implemented comprehensive medical marijuanalaws,” says Karen O’Keefe, state policy director for the Marijuana Policy Project, a pro-legalization advocacy group that lobbied for the Rohrabacher-Farr amendment. The rider halted most raids involving medical marijuana in states with legalization.
The patients and providers who cultivate, process and dispense the cannabis these patients rely on in these states for the treatment of debilitating illness do not have to fear federal charges as long as they are in compliance with state law, says Sean Khalepari, regulatory affairs coordinator for the pro-medical marijuana group Americans for Safe Access.
But the unusual nature of the provision is not well understood, some say.... Although the amendment serves as a shield against federal prosecution, “I think it can be misunderstood that this rider does not in and of itself legalize medicinal marijuana at the federal level,” says Jeffrey Vanderslice, who worked as an aide to Rohrabacher in 2014. Since the Justice Department technically retains the ability to prosecute medical marijuana — even in states that have legalized it, if a business or individual doesn’t comply with state law — advocates are hoping for more certainty on the federal level eventually.
Meanwhile, the Trump administration’s interpretations and actions have contributed to the confusion. In 2018, the administration rescinded guidance by the Obama administration known as the Cole memorandum, which directed Justice to deprioritize prosecuting state-legal marijuana businesses. Trump’s reversal stoked worry and confusion among supporters of legalization.
The office of the attorney general has since turned over from Jeff Sessions, a severe critic of marijuana, to William Barr. Barr said during a Senate hearing in 2019 that he operates under the Cole memo, but leaves significant discretion to U.S. attorneys in each state. Meanwhile, the White House has sought the repeal of Rohrabacher-Farr in each of its budgets, including in Trump’s fiscal 2021 budget proposal. Congress has always bucked that recommendation.
In the midst of broader discussions of issues surrounding the full legalization of marijuana in various states, I asked my students to give some particularized attention to tax issues. Tax issues in the marijuana space strike me as especially interesting because they present (a) value issues of what goals that tax here is designed to achieve (e.g., raise revenue vs. impact consumption patterns), (b) practical issues about how best to impose a tax (e.g., sales v. excise; weight v. potency of products), and (c) policy issues about whether and how to earmark tax revenues (e.g., for certain infrastructure, social equity, public health).
Against the backdrop of these big issues, and as my students do some independent research on tax matters, I thought I might here round up some relatively newer resources on tax matters. These materials cover only a very small slice of important marijuana tax issues, but I hope it still might prove useful to readers as well as to my students:
From Illinois Policy in January 2020, "Among Nation’s Highest, Could Keep Black Market Thriving"
From the Federation of Tax Administrators from various sources in December 2019, "Status of State Taxation/Sales of Marijuana"
From Pew Trusts in August 2019, "Forecasts Hazy for State Marijuana Revenue"
From Tax Foundation in April 2019, "How High Are Taxes on Recreational Marijuana in Your State?"
From the Institute on Taxation & Economic Policy in January 2019, "Taxing Cannabis"
Tuesday, March 3, 2020
As noted in this post, last week news broke that there was in the works a serious attempt to bring a full marijuana legalization initiative to Ohio voters in 2020. This local press piece, headlined "Ohio 2020 recreational marijuana legalization measure filed: 5 things to know," report on that effort and (some of) what we all need to know. Here are excerpts:
The latest effort to legalize marijuana in Ohio stems from frustration with Ohio's nearly four-year-old medical marijuana law. Supporters of the measure include at least two medical marijuana businesses, a medical marijuana patient, a mother of twins with autism – a condition excluded from the program – and advocates for recommending cannabis in place of opioids.
Supporters of the Regulate Marijuana Like Alcohol Amendment turned in the petition summary language and an initial 1,000 signatures to the Ohio attorney general on Monday. This is the first step in a months-long process to qualify for the November ballot. The constitutional amendment would allow adults over age 21 to buy, possess, consume and grow limited amounts of marijuana....
Tom Haren, a Northeast Ohio attorney representing supporters, said there were several catalysts in the medical program that led to the new adult use measure. "If you're a patient in Ohio, it's hard to participate in Ohio's medical marijuana program," said Haren, who has also represented medical marijuana licensees. "We were promised a program that worked." Haren confirmed Pure Ohio Wellness, a cultivator and dispensary operator in Springfield and Dayton, and Galenas, a small-scale grower in Akron, are backing the measure. Haren said other medical marijuana businesses support it but declined to name them on Monday.
The Ohio Medical Cannabis Industry Association, which represents 14 Ohio companies, is not supporting the measure. “We’re focused on the medical program and at this time are not backing a recreational initiative,” association associate director Thomas Rosenberger said.
The purchase and possession limit in the amendment is 1 ounce, with no more than 8 grams of concentrate. Adults could grow up to six plants (limit of three flowering plants) in an enclosed area – home grow is not allowed in the medical marijuana program. The state's nascent medical marijuana program would remain in place, and state officials would have to ensure patients still have access to products.
The amendment wouldn't change laws against driving under the influence of marijuana or employers' rights to prohibit employee marijuana use....
The 118 medical marijuana licensees could operate as recreational businesses on July 1, 2021, according to the amendment. The Ohio Department of Commerce, which oversees medical marijuana growers, processors and testing labs, would also regulate the entire recreational marijuana program.
The agency could issue more licenses, but the number of licenses would be capped until 2026. Retail stores would be capped at about 200. Cultivation would be limited to a total of 1.5 million square feet of growing space among all licensees. For comparison, the state's 19 large-scale and 13 small-scale medical marijuana growers are licensed to cultivate 514,000 square feet.
Local governments could limit the number, location and business hours of marijuana businesses and could ban them altogether. Licenses would be awarded if the applications comply with the rules and regulations; Ohio's medical marijuana business licenses were awarded after a months-long application scoring process....
The amendment doesn't set a tax rate – that would likely violate an anti-monopoly amendment passed by voters in 2015 to block ResponsibleOhio's recreational marijuana measure. Lawmakers could set a special sales tax for recreational marijuana.
Revenue from marijuana would be split several ways:
- 25% to a special fund for a Commission on Expungement, Criminal Justice, Community Investment, and Cannabis Industry Equity and Diversity
- 50% allocated to the state's Local Government Fund
- At least 10% must be returned to municipalities where retail sales occurred, proportional to the amount of sales
Equity in legal cannabis programs refers to ensuring African-Americans and members of other traditionally marginalized groups participate in the industry. African-Americans are nearly four times more likely than whites to be arrested for marijuana possession, according to the ACLU.
Ohio's attempt at equity in the medical marijuana program – awarding 15% of all licenses to minority-owned businesses – was found unconstitutional. The amendment requires the Department of Commerce to conduct a study into whether there has been discrimination in awarding medical marijuana licenses.
The attorney general has 10 days to review the petition language to make sure it's "fair and truthful" summary of the amendment. Most initiatives don't pass the first time. A bipartisan legislative panel led by the Ohio secretary of state will then decide whether the measure is one or more ballot issues. Then, supporters will have to have to collect at least 442,958 valid signatures of Ohio voters, including a certain percent in 44 of Ohio's 88 counties.
To do that before July 1 – the deadline for the November ballot – supporters will likely need to hire paid signature collectors. Recent statewide ballot issue campaigns have spent upwards of $3 million to collect signatures. Haren declined to name investors or sources funding the campaign. "We expect it will be funded by a diverse set of folks including people with licenses as well as folks outside the licensing," Haren said.
The full text of the the ballot initiative, titled "An Amendment to Regulate Marijuana Like Alcohol," is available at this link. Once I get a chance to read the text in full, I suspect I will have a lot more to say about how this proposal seek to make marijuana fully legal in the Buckeye State.