Marijuana Law, Policy & Reform

"The heterogeneous effect of marijuana decriminalization policy on arrest rates in Philadelphia, Pennsylvania, 2009–2018"

The title of this post is the title of this new research to appear in the July 2020 issue of the journal Drug and Alcohol Dependence.  Here is the article's abstract:

Background

Marijuana decriminalization holds potential to reduce health inequities.  However, limited attention has focused on assessing the impact of decriminalization policies across different populations.  This study aims to determine the differential effect of a marijuana decriminalization policy change in Philadelphia, PA on marijuana arrests by demographic characteristics.

Methods

Using a comparative interrupted time series design, we assessed whether the onset of marijuana decriminalization in Philadelphia County was associated with reduction in arrests rates from 2009 to 2018 compared to Dauphin County.  Stratified models were used to describe the differential impact of decriminalization across different demographic populations.

Results

Compared to Dauphin, the mean arrest rate for all marijuana-related crimes in Philadelphia declined by 19.9 per 100,000 residents (34.9% reduction), 17.1 per 100,000 residents (43.1% reduction) for possession, and 2.8 per 100,000 resident (15.9% reduction) for sales/manufacturing.  Arrest rates also differed by demographic characteristics post-decriminalization.  Notably, African Americans had a greater absolute/relative reduction in possession-based arrests than Whites. However, relative reductions for sales/manufacturing-based arrests was nearly 3 times lower for African Americans.  Males had greater absolute/relative reduction for possession-based arrests, but lower relative reduction for sales/manufacturing-based arrests compared to females.  There were no substantial absolute differences by age; however, youths (vs. adults) experienced higher relative reduction in arrest rates.

Conclusions

Findings suggest an absolute/relative reduction for possession-based arrests post-decriminalization; however, relative disparities in sales/manufacturing-based arrests, specifically for African Americans, increased.  More consideration towards the heterogeneous effect of marijuana decriminalization are needed given the unintended harmful effects of arrest on already vulnerable populations.

Bipartisan coalition of state attorneys general urge Congress to include banking access for marijuana businesses in COVID relief bills

As reported in this press release from earlier this week from the Colorado Attorney General, "a bipartisan coalition of 34 state and territorial Attorneys General [on Tuesday urged]  Congress to pass as part of upcoming COVID-19 relief legislation the federal Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1595) or similar measures that would give legal marijuana-related businesses access to the federal banking system."  Here is more from the press release:

Under existing law, federal regulators prohibit financial institutions from providing services to marijuana businesses in states where medical or retail marijuana sales are legal. Forcing legal businesses to operate as cash-only operations poses serious safety threats, creating targets for violent and white-collar crime. The SAFE Banking Act permits marijuana-related businesses in states and territories with existing regulatory structures to access the federal banking system.

The SAFE Banking Act has widespread, bipartisan support with 206 cosponsors in the U.S. House of Representatives. The House passed the bill in September 2019. The HEROES Act relief legislation, which the House approved last week, also included the language of the SAFE Banking Act.

In their letter, the Attorneys General note that the COVID-19 pandemic has shed new light on problems that the SAFE Banking Act is intended to remediate, including health and safety concerns stemming from frequent and large cash exchanges.

The full text of the letter can be read here.

Also released with this letter ws this effective report from the Attorney General Alliance Cannabis Project titled "Solving An Untenable Situation: The Public Health and Safety Rationale Behind The Secure and Fair Enforcement Banking Act."

Lots of notable public health analyses of marijuana reforms in June 2020 issue of World Psychiatry

A number of notable new papers are now available online from the June 2020 issue of World Psychiatry. Here are titles and links to all the pieces (most of which are just a few pages and all of which seem worth checking out):

Assessing the public health impacts of legalizing recreational cannabis use: the US experience by Wayne Hall and Michael Lynskey

Considering the health and social welfare impacts of non‐medical cannabis legalization by Benedikt Fischer, Chris Bullen, Hinemoa Elder and Thiago M. Fidalgo

To legalize or not to legalize cannabis, that is the question! by Marta Di Forti

Mapping and mitigating the health risks of legalizing recreational cannabis use: a call for synergy between research and policy by Eva Hoch and Valentina Lorenzetti

Recreational cannabis legalization presents an opportunity to reduce the harms of the US medical cannabis industry by Keith Humphreys and Chelsea L. Shover

Cannabis and public health: a global experiment without control by Jürgen Rehm and Jakob Manthey

Being thoughtful about cannabis legalization and social equity by Beau Kilmer and Erin Kilmer Neel

The effects of recreational cannabis legalization might depend upon the policy model by Rosario Queirolo

Legalizing recreational cannabis use: a promising journey into the unknown by Jan C. van Ours

Assessing the public health effects of cannabis use: can legalization improve the evidence base? by Matthew Hickman, Lindsey A. Hines and Suzie H. Gage

"Too young for Cannabis? Choice of minimum legal age for legalized non-medical Cannabis in Canada"

The title of this post is the title of this interesting new research by multiple authors now appearing in the journal BMC Public Health.  Here is its abstract:

Background

Choice of minimum legal age (MLA) for cannabis use is a critical and contentious issue in legalization of non-medical cannabis.  In Canada where non-medical cannabis was recently legalized in October 2018, the federal government recommended age 18, the medical community argued for 21 or even 25, while public consultations led most Canadian provinces to adopt age 19.  However, no research has compared later life outcomes of first using cannabis at these different ages to assess their merits as MLAs.

Methods

We used doubly robust regression techniques and data from nationally representative Canadian surveys to compare educational attainment, cigarette smoking, self-reported general and mental health associated with different ages of first cannabis use.

Results

We found different MLAs for different outcomes: 21 for educational attainment, 19 for cigarette smoking and mental health and 18 for general health.  Assuming equal weight for these individual outcomes, the ‘overall’ MLA for cannabis use was estimated to be 19 years.  Our results were robust to various robustness checks.

Conclusion

Our study indicated that there is merit in setting 19 years as MLA for non-medical cannabis.

"The 'Free Market' for Marijuana: A Sober, Clear-Eyed Analysis of Marijuana Policy"

The title of this post is the title of this new paper recently posted to SSRN and authored by H. Justin Pace.  Here is its abstract:

Marijuana is prohibited at the federal level.  At the same time, states are not only decriminalizing marijuana but attempting to provide a regulatory apparatus for its sale. This has created a unique business environment.  In some ways there is a true “free market” for marijuana in states where it has been legalized — free, that is, of the legal and financial infrastructure available to fully licit businesses in America.

Contracts may not be enforceable because they lack a legal purpose.  Relief in bankruptcy court may not be available, either as a debtor or as a creditor.  Use of a legal entity to limit liability and take advantage of entity personhood may be impracticable.  Federal money laundering and other laws effectively restrict access to the banking system, forcing marijuana businesses to operate as purely cash businesses.  The USPTO refuses to register federal marks related to marijuana.  Marijuana businesses face challenges in obtaining competent legal counsel to guide them through a market free on one hand regulated on the other.

The odd legal posture has implications for considering marijuana policy through an economic lens.  Any analysis of marijuana externalities should consider any additional externalities created by that odd legal posture.  An analysis of policy options for mitigating negative externalities should also factor in the additional costs for marijuana businesses due to this “free market.”  The uncertainty, from a policy perspective, counsels in favor of applying heuristics when considering policy options: this paper offers three and applies each.

This is the first paper to use this situation to examine the value offered by our legal and financial infrastructure.  An inability to use it hurts marijuana businesses in very real ways.  But, at the same time, marijuana businesses are able to operate — to thrive even — nonetheless.  That infrastructure is both more and less valuable than is appreciated, and in surprising ways.  Ultimately, this paper advocates federal action that facilitates a continued incremental, state-by-state approach to marijuana reform.

"States with recreational marijuana laws view the legislation as a success"

The title of this post is the title of this new article from YouGov discussing its survey that provides an interesting window into the positive impression that marijuana reform has made in states that have legalized adult-use. Here are the details:

States that have legalized recreational marijuana don’t seem likely to regret it.

YouGov asked more than 32,000 Americans whether they believe recreational marijuana legislation has been more of a success or failure in the states that have legalized it. In many states where recreational cannabis is legal, a plurality of citizens believes these laws have been more of a success than a failure overall.

That is a particularly strong belief in Colorado, where citizens were among the first-in-the-nation to vote in favor of recreational weed in 2012. Today, about a quarter (26%) of Coloradans say the state-level recreational cannabis laws have been a “success only” and another 45 percent say they have been “more of a success than a failure.” Fewer than one in five (17%) believe the laws have been “more of a failure.”...

While decriminalized marijuana and approvals for medical marijuana became popular in the 1970s and 1990s, recreational marijuana was not legalized anywhere in the United States until 2012. Now, recreational marijuana is legal in 11 states—Washington, Oregon, Nevada, California, Colorado, Michigan, Illinois, Massachusetts, Maine, Alaska, and Vermont—with more states considering the legislation this year.

About two-thirds of those in Oregon (69%) and Massachusetts (67%) believe that the laws have been more of a success. That remains the majority opinion among those who live in Washington (65%), Nevada (64%), California (59%), Illinois (59%), and Michigan (56%).

Michigan and Illinois are the only Midwestern states with legal recreational marijuana, and they are the most recent additions to the list. Michigan became the 10th state to legalize recreational marijuana after residents approved it during the 2018 Midterm elections. Illinois became the 11th after its state government approved recreational cannabis for adults over 21 during the 2019 legislative session. The state began selling recreational marijuana in January.

Maine is the only state surveyed where fewer than half (47%) view the laws as more of a success. About one in nine Mainers say the laws have been a “success only.” About one-third (37%) consider the laws more of a success than a failure. One in five (20%) believe the laws have generally been more of a failure, and one-third (33%) are uncertain.

The folks at YouGov did another interesting poll about marijuana back in April 2020, which is reported here under the headline "Is marijuana essential? Most Americans say yes"

"Weeding Out Injustice: Amnesty for Pot Offenders"

The title of this post is the title of this notable new article authored by Mitchell Crusto that I just came across and that was recently published in the Spring 2020 issue of the Hastings Constitutional Law Quarterly.  Here is its abstract:

There are a growing number of States that have legalized marijuana, challenging the view that marijuana is a dangerous drug.  These States are taking positions relative to both the retroactivity of the new laws and to amelioration of past offenses, which arguably contradict United States Supreme Court decisions on the retroactivity of changes in substantive criminal standards.  And, many States recognize that past marijuana laws have greatly contributed to the problems related to a broken criminal justice system, including mass incarceration and racial disparities, particularly to the devastation of communities of color.

In response to these legal developments, this Article advances the normative claim that past pot offenders are entitled to retroactive amelioration, in States that have legalized marijuana.  This Article argues that such retroactive amelioration has deep support in constitutional provisions and U.S. Supreme Court decisions.  Moreover, it suggests that, due to large numbers of offenders, over a long period of time, retroactive amelioration is best achieved through the use of amnesty.

"Reconsidering Federal Marijuana Regulation"

The title of this post is the title of this new article authored by Paul J. Larkin, Jr. available via SSRN.  Here is its abstract:

The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous.  In so doing, the CSA approached this problem from the wrong direction.  People use drugs for medical or recreational purposes, and each one requires a separate legal scheme.

Medical Marijuana Use: For more than 50 years, Congress has entrusted to the Commissioner of Food and Drugs the decision whether a particular drug is “safe” and “effective” and therefore can be sold throughout the nation.  The reason is that those decisions require the scientific expertise of professionals in the fields of medicine, biochemistry, and the like, not the legal knowledge of Justice Department lawyers or the moral sensibilities of the electorate.  Congress should leave to the judgment of the FDA Commissioner the decision how federal law should regulate medical-use marijuana.

Recreational Marijuana Use: American society permits alcohol and tobacco to be sold under regulation.  For alcohol, the Twenty-First Amendment empowers states to decide whether and how to sell liquor without much room for supplementary federal regulation.  For tobacco, the Family Smoking Prevention and Tobacco Control Act of 2009 authorizes the FDA Commissioner to regulate the distribution of tobacco products.  Congress should consider whether to follow the same approach here.  There are various factors relevant to that decision.  For example, long-term marijuana use can lead some users to become dependent on, or addicted to, the drug, or to suffer serious mental disorders, such as psychosis.  Legalizing recreational marijuana use also will increase the number of roadway accidents attributable to cannabis intoxication. Whether the benefits of recreational marijuana use outweigh those harms is the question that Congress should answer.

Is anyone closely tracking state or national marijuana arrest data during this coronavirus era?

Though I have been thinking about the question in the title of this post for a few weeks now, this new Marijuana Moment article finally got me to work on this post.   The piece is titled "Thousands Of Constituents Urge Governors To Deprioritize Marijuana Enforcement Amid Coronavirus," and here are excerpts:

The marijuana reform group NORML is leading an effort to encourage states to deprioritize the enforcement of cannabis criminalization amid the coronavirus pandemic.  So far, more than 4,000 constituents across the country have participated in the organization’s action campaign launched on Wednesday by sending messages to their governors, urging them to take steps to minimize the spread of the virus by avoiding unnecessary marijuana arrests.

NORML created customized email blasts to supporters in all 39 states that have yet to legalize marijuana for adult use.  Each one contains a link to a suggested prewritten letter asking the governor to abide by the group’s public health recommendations during the COVID-19 outbreak.

Beyond deprioritizing marijuana enforcement, the organization said states should also drop existing charges for nonviolent cannabis violations “in order to reduce non-essential interactions,” review and release those currently incarcerated for marijuana convictions and waive pending probation requirements for cannabis-related cases.

Though I am unaware of any proclamations that formally call for police and prosecutors to deprioritize marijuana enforcement, it is my sense that functionally a lot of police and other law enforcement are deprioritizing all sorts of low-level criminal enforcement. For example, this local article on plummeting arrest rates notes:

In some places, police leaders have been frank about ordering officers to cease arresting for low-level crimes. In some places, prosecutors are refusing to pursue such cases. For example, Philadelphia police have been ordered to avoid arrests for crimes like drug offenses and burglaries. Instead, they are issuing warrants to be processed once the health crisis abates, according to reporting by the Associated Press.

Similarly, consider this local piece from Indiana: "The sheriff’s office is making fewer arrests to combat the spread of disease, [Jay County Sheriff] Ford said. For those charged with most non-violent misdemeanors and drug-related Level 6 felonies, court summons are being issued instead of them being arrested."  And this piece from Austin, Texas with some more specifics: "Austin posted the fewest number of arrests in the month of March for at least four years....  Some of the largest declines include a 75% drop in traffic warrant arrests, to 33 arrests this March from 132 arrests in March 2019.  A similar drop was also seen in the number of those arrested and charged with possession of marijuana."

I am not knocking NORML for seeking a  formal call for police and prosecutors to deprioritize marijuana enforcement, but I am really interest in seeing whatever data might be available concerning just how much enforcement is currently afoot.  My guess is relatively little, though still arguably a lot more than is healthy or just during these weird and uncertain times.

Eventually, but likely at least a few years from now, we will get official FBI arrest data for 2020 and we will all surely see a wide array of notable "COVID" craters.  I sure hope someone might be collecting and assessing the marijuana arrest data a lot sooner.