Marijuana Law, Policy & Reform

"Weed, Dogs & Traffic Stops"

The title of this post is the title of this new article recently posted to SSRN and authored by Alex Carroll.  Here is its abstract:

The Supreme Court has long characterized a dog sniff as a binary investigative technique.  For nearly four decades, the Court has held that a dog sniff conducted during a routine traffic stop is not a Fourth Amendment “search” because it reveals only the location of an illegal substance.  Marijuana, however, is now legal in thirty-four states. Accordingly, this Article closely reexamines the Fourth Amendment’s treatment of dog sniffs.

In doing so, it makes three overarching arguments.  First, a dog sniff conducted during a routine traffic stop is a nonbinary type of investigative technique in states that have legalized recreational or medicinal marijuana.  Second, a dog sniff conducted during a routine traffic stop is a Fourth Amendment “search” in those same states.  Third, law enforcement agencies operating in those states must retrain or replace their drug-detection dogs.

Moving forward, the Article further demonstrates, law enforcement agencies will encounter significant challenges associated with retraining or replacing their drug-detection dogs.  It therefore concludes by providing law enforcement agencies with ways to mitigate those challenges.  At its core, this Article offers the judiciary and law enforcement profession with a constitutional path forward.

Massachusetts Supreme Judicial Court rules, based on state law, that workers' comp insurer not required to cover medical marijuana

The Supreme Judicial Court of Massachusetts issued a notable ruling yesterday in Daniel Wright's Case, No. SJC-12873 (Oct. 27 2020) (available here).  The full introduction of the opinion from the unanimous court nicely highlights the issue and its resolution:

In the instant case we are asked to determine whether an insurance company may be ordered to reimburse an employee for medical marijuana expenses pursuant to a general provision of the Massachusetts workers' compensation scheme that requires reimbursement of necessary and reasonable medical expenses.  The claimant, Daniel Wright, sought compensation for $24,267.86 of medical marijuana expenses to treat chronic pain stemming from two work-related injuries he sustained in 2010 and 2012.  His claim was denied by an administrative judge, and the denial was affirmed on appeal by the reviewing board of the Department of Industrial Accidents (department).  The reviewing board concluded that marijuana's status as a federally illicit substance preempted any State level authority to order a workers' compensation insurer to pay for Wright's medical marijuana expenses.  We likewise conclude that the workers' compensation insurer cannot be required to pay for medical marijuana expenses, but do so based on the medical marijuana act itself.

We recognize that the current legal landscape of medical marijuana law may, at best, be described as a hazy thicket. Marijuana is illegal at the Federal level and has been deemed under Federal law to have no medicinal purposes, but Massachusetts, as well as the majority of States, have legalized medical marijuana and created regulatory schemes for its administration and usage.  Complicating and confusing matters further, Congress has placed budgetary restrictions on the ability of the United States Department of Justice to prosecute individuals for marijuana usage in compliance with a State medical marijuana scheme, and the Department of Justice has issued, revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving in place no clear guidance.

The Commonwealth's original medical marijuana act, St. 2012, c. 369 (act or medical marijuana act), was carefully drafted by its sponsors to take into account this most difficult regulatory environment, with provisions specifically designed to avoid possible conflicts with the Federal government. One such provision of the law expressly states that "[n]othing in this law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana." St. 2012, c. 369, § 7 (B). See G. L. c. 94I, § 6 (i).  This provision recognizes that when medical marijuana patients seek to recover the costs of such use from third parties, including insurance companies engaged in interstate commerce, the regulatory environment becomes even more problematic.  Under the plain language of this provision, those insurers are not required to reimburse medical marijuana expenses for a substance that remains illegal under Federal law.

We conclude that this specific language, and the Federal concerns it seeks to address and avoid, is controlling and not overridden by the general language in the workers' compensation laws requiring workers' compensation insurers to reimburse for reasonable medical expenses.  A contrary reading of this specific language, which states that health insurers and government agencies and authorities are not required to reimburse medical marijuana expenses, would have been completely misleading to those who voted on it.  It is one thing for a State statute to authorize those who want to use medical marijuana, or provide a patient with a written certification for medical marijuana, to do so and assume the potential risk of Federal prosecution; it is quite another for it to require unwilling third parties to pay for such use and risk such prosecution.  The drafters of the medical marijuana law recognized and respected this distinction

"Drug Reforms on the 2020 Ballot"

The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center.  The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle.  Here is introduction to the detailed state-by-state materials:

A closer look at drug policy reform decisions voters will make during the 2020 election

On election day 2020, voters will decide more than the next United States President.  Drug policy and enforcement reforms will appear on numerous state-level ballots.  Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market.  And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.

To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020.  Read on for a list of initiatives we will be watching this November in the areas of marijuana legalization, psychedelics, and criminal justice.

Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.

Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

Though I have noted a few times this recent call for papers over at my sentencing blog, I have been remiss by failing to flag on this blog the paper call relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  So, here is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses. And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment. Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.

ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at [email protected]. Accepted scholars will be notified by December 1, 2020

"Say 'No' to Discrimination, 'Yes' to Accommodation: Why States Should Prohibit Discrimination of Workers Who Use Cannabis for Medical Purposes"

The title of this post is the title of this notable new paper authored by Anne Marie Lofaso and Lakyn Cecil recently posted to SSRN. Here is its abstract:

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization likely hindered the medical development of cannabis for at least a century. American society’s negative perception of cannabis began to yield, however, as scientific evidence of cannabis’s healing capacity gained popularity. Increased demand for medicinal cannabis resulted in a clash of perceptions between marijuana, the demonic influencer of immoral or criminal behavior, and cannabis, the angelic healer. It is this cognitive dissidence that helps explain the strange result of Brandon’s case.

Part II surveys the role of employment law in protecting employees who use cannabis for medical purposes. We explore the public policy exception to at-will employment and various federal and state disability statutes. We conclude that judges can and should apply these measures to protect workers who may be vulnerable to discharge because of their cannabis use.

Democracies cannot and should not depend on judges to make important changes in public policies, even when those changes are to common law doctrines created by judges in the first place. Part III surveys two states’ statutes—those of Nevada and Oklahoma—that protect workers who use medical cannabis from employment termination. Applying the knowledge gained from Part II, we collated what we believed to be the best language from the statutes of those two states and rewrote Colorado’s constitution in a manner that would account for employees’ interests and employer’s legitimate concerns.

Part IV acknowledges that employers may be slow to change their medical cannabis policies. With this reality in mind, we review some best practices as to how employers can accommodate cannabis use among its workers, including appropriate exceptions to an accommodation policy that take into account employer’s legitimate business interests without cutting into the essential accommodations medical cannabis users need to become or remain productive members of the U.S. workforce.

Poll suggests New Jersey on verge of marijuana legalization (and massive marketplace)

This new press piece, headlined "Large majority favors New Jersey marijuana legalization, according to poll," reports on a notable new poll reinforcing expectations that the Garden State is on the verge of marijuana legalization by popular vote. Here are some details:

New Jersey voters intend to approve legalizing marijuana on Election Day by a ratio of 2 to 1, according to a poll released Friday by Fairleigh Dickinson University. A question on the Nov. 3 ballot asks voters: “Do you approve amending the Constitution to legalize a controlled form of marijuana called ‘cannabis’?”

Sixty-one percent of likely voters said they would vote or have already voted “yes.” About 29% said they will or have already voted “no.” The measure would allow adults 21 and over to use cannabis recreationally and permit the Garden State to set up a regulated market for the drug. New Jersey already has a medical marijuana program.

If adopted, it’s unlikely that marijuana will be available for sale any time soon. State legislators still will have to write regulations to govern the cannabis market, a process that could take up to two years....

Democrats are the biggest proponents of legalization with 71% of those surveyed giving it their support. Republicans gave the measure more tepid backing — 52% are for it, with 40% against....

Industry experts say that marijuana in New Jersey could become a $2 billion market by 2024 and generate about $126 million in tax revenue annually.

Previous polls of New Jersey voters on the issue have been conducted by groups associated with the marijuana industry such as NORML or law firms that represent cannabis businesses. Fairleigh Dickinson’s is notable for its lack of industry ties. “Public opinion on this issue has evolved considerably," said Krista Jenkins, the poll director and professor of politics and government at Fairleigh Dickinson University in Madison, N.J. “It’s a pretty big jump.”

“Just a few years ago, in 2018, we asked about recreational marijuana legalization and found support that was well beneath a majority, let alone anything that approached the support we’re seeing today,” she said. “Back then, 42% supported what is being proposed today. The legislative maneuver to give voters the say looks like it will wind up with a decisive pro-pot outcome.”

This Marijuana Business Daily article, headlined "Adult-use marijuana legalization in New Jersey expected to ignite domino effect," discusses how legalization in the Garden State might lead legislatures in neighboring states to move forward with legalization plans.  But even if that does not happen right away, New Jersey could functionally serve as a huge legalization hub for massive cities like New York City and Philadelphia (and even smaller cities like Baltimore).  New Jersey alone would become the fourth largest legalization state by population (behind California, Illinois and Michigan), but the nearby big cities should serve to make the Garden State the second largest overall legal market behind only California (and it might become the most significant market given its proximity to the NYC media).

Prior recent related post:

• New poll suggests Jersey a near lock to legalize marijuana

Vermont now on path to be latest state allowing marijuana sales and also to automatically expunge past convictions

Roughly 32 months ago, as noted in this prior post from January 2018, the Green Mountain State became the first state to legalize the recreational use of marijuana through an act of a state legislature rather than by voter initiative (and Vermont was then the ninth state overall to legalize use).   But that original law contained no provisions for the commercial sale of marijuana, and it took until this fall for sales to be legalized and regulated in the state (and now Vermont is then the eleventh state overall to legalize sales).   This Marijuana Moment article, headlined "Vermont Governor Allows Marijuana Sales Legalization Bill To Take Effect Without His Signature," effectively provides the details on the latest reforms that also include another related criminal justice development (which I strongly believe should go hand-in-hand with any reforms):

The governor of Vermont announced on Wednesday that he will allow a bill to legalize marijuana sales in the state to take effect without his signature. He also signed separate legislation to automate expungements for prior cannabis convictions.

While Vermont legalized personal possession of up to one ounce and cultivation of two plants for adults in 2018, retails sales have remained prohibited. But now with Gov. Phil Scott’s (R) decision not to veto the new cannabis commercialization bill, a tax-and-regulate system will finally be implemented.

Differing versions of the marijuana sales proposal passed each chamber before being reconciled in a bicameral conference committee last month.  The legislature then approved the finalized proposal and sent it to Scott’s desk.  The governor had been noncommittal about his plans for the legislation — even up until the day before the signature deadline — and had hinted that he was even considering vetoing the bill.  But he ultimately gave legal cannabis supporters a win by deciding not to block the reform.

In the conference committee, legislators worked fastidiously to ensure that Scott’s stated concerns about the policy change were largely addressed.  Those issues primarily related to impaired driving, taxes and local control.  But after the legislature advanced a finalized form, Scott threw advocates for a loop, stating that while he appreciated the legislative process that the bill went through, certain racial justice groups had raised concerns with his office about the extent to which the proposal addressed social equity in the cannabis industry for communities historically targeted by the war on drugs.  There was some suspicion that the governor was using that pushback as an excuse to veto S. 54....

In the end, however, he stood out of the way and took no proactive action.  “However, there is still more work to be done to ensure the health and safety of our kids and the safety of our roadways—we should heed the public health and safety lessons of tobacco and alcohol,” Scott wrote in a letter to lawmakers announcing his decision. “Further, I believe we are at a pivotal moment in our nation’s history which requires us to address systemic racism in our governmental institutions. We must take additional steps to ensure equity is a foundational principle in a new market.”...

It’s possible that there was some political calculus involved in the decision to let the bill go into law despite his concerns, as his reelection challenger, Lt. Gov. David Zuckerman (D), is a vocal advocate for legalization and has raised the issue in recent appearances.  Zuckerman stressed in a debate last week that while he agrees with the sentiment that more needs to be done to ensure racial justice, an imperfect bill can be improved upon, and the legislature has plenty of time to finesse the details before legal cannabis sales launch.  He also noted that separate legislation providing for automatic expungements of prior cannabis convictions, which Scott signed on Wednesday, would complement the restorative justice provisions of the tax-and-regulate bill.

A coalition of Vermont civil rights and criminal justice reform groups including the state’s ACLU chapter released a statement on Sunday that says while they shared concerns about the limitations of the social equity components of the marijuana commerce bill, they felt it could be built upon and wanted the governor to sign it, in addition to the expungements legislation....

Under the tax-and-regulate bill, a new Cannabis Control Commission will be responsible for issuing licenses for retailers, growers, manufacturers, wholesalers and labs. The body will also take over regulation of the state’s existing medical cannabis industry from the Department of Public Safety.  A 30 percent THC limit will be imposed on cannabis flower, while oils could contain up to 60 percent THC.  Flavored vape cartridges will be banned.  Local jurisdictions will have to proactively opt in to allow marijuana businesses to operate in their area. Municipalities will also be able to establish their own regulations and municipal licensing requirements....

The separate expungements bill would make it so those with convictions for marijuana possession of up to two ounces, four mature plants and eight immature plants prior to January 2021 would have their records automatically cleared.  Those who receive expungements would be notified by mail.

Noting a notable decline in marijuana arrests in 2019 according to FBI data

As always, the folks at Marijuana Moment have lots of great timely coverage about lots of timely marijuana reform topics.  But as one especially interested in the intersection of criminal justice and marijuana reform issues, I found this piece from a few days ago especially worth noting:

Marijuana arrests in the U.S. declined in 2019 for the first time in four years, a new federal report shows.  While many expected the state-level legalization movement to reduce cannabis arrests as more markets went online, that wasn’t the case in 2016, 2017 or 2018, which each saw slight upticks in marijuana busts year-over-year.  But last year there was a notable dip, the data published this week shows.

There were a total of 545,601 marijuana arrests in 2019 — representing 35 percent of all drug arrests — according to FBI’s Uniform Crime Reporting program.  That’s down from 663,367 the prior year and 659,700 in 2017.  Put another way, police across the country made a cannabis bust every 58 seconds on average last year.  Of those arrests, 500,394 (92 percent) were for possession alone.

“A decline in cannabis related arrests is better than seeing an increase for a fourth year in a row, but the amount of these arrests is still abhorrent,” Marijuana Policy Project Executive Director Steve Hawkins told Marijuana Moment.  “There is no reason to continue punishing adults for consuming a substance that is less harmful than alcohol. Arresting adult cannabis consumers has a dramatically disproportionate impact on communities of color, is a massive waste of law enforcement officials’ time and resources and does nothing to improve public health or safety.”...

“At a time when a super-majority of Americans support marijuana legalization, law enforcement continues to harass otherwise law abiding citizens at an alarming rate,” NORML Political Director Justin Strekal told Marijuana Moment.  “Now is the time for the public to collectively demand that enough is enough: end prohibition and expunge the criminal records to no longer hold people back from achieving their potential.”

While there’s no solitary factor that can explain the recent downward trend in cannabis cases, there are one-off trends that could inform the data.  For example, marijuana possession arrests fell almost 30 percent in Texas from 2018 to 2019, and that seems to be connected to the legalization of hemp and resulting difficulties police have had in differentiating the still-illegal version of the cannabis crop from its newly legal non-intoxicating cousin.

At the federal level, prosecutions for marijuana trafficking declined in 2019, and drug possession cases overall saw an even more dramatic decline, according to a report published by the U.S. Sentencing Commission in March.  Federal prosecutions of drug-related crimes increased in 2019, but cases involving marijuana dropped by more than a quarter, according to an end-of-year report released by Supreme Court Chief Justice John Roberts in December.