Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, November 30, 2020

"Preventing Industry Abuse of Cannabis Equity Program"

The title of this post is the title of this paper authored by Daniel G. Orenstein recently posted to SSRN.  Here is its abstract:

Enforcement disparities have pervaded the history of U.S. drug control laws, particularly regarding cannabis.  These disparities have systemically disadvantaged persons of color and other communities.  Responding to these inequities, some state cannabis legalization campaigns have emphasized social justice goals, and states and localities have adopted cannabis social equity programs directed toward communities disproportionately impacted by the War on Drugs.  These programs encourage and assist individuals from target communities in entering the legal cannabis industry by offering access to grants, loans, and technical assistance and providing priority or preference in licensure, a significant advantage in a competitive industry. 

Equity programs serve laudable goals but must be structured to mitigate the risk of corporate abuses that threaten public health.  The history of tobacco control in particular offers cautionary examples of how for-profit industries can infiltrate communities by leveraging targeted marketing, building political relationships, and operating disproportionately in underprivileged areas.  Equity programs’ focus on disadvantaged communities may inadvertently allow this damaging history to repeat in the cannabis industry to the detriment of the communities equity programs seek to help.  This Article explores pathways that could lead to industry abuse, surveys possible restrictions within a for-profit market, and assesses options for alternative market structures, including government monopoly, mandatory nonprofit status, and mandatory public benefit company status.  Among these options, compulsory public benefit status offers the best combination of current legal feasibility and advancement of social equity goals. 

November 30, 2020 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, November 29, 2020

Diving into Oklahoma's experience as "Hottest Weed Market"

6a00d8341bfae553ef0240a4b9776b200b-800wiIn a handful of prior posts (linked below), I have flagged Oklahoma as a red state to watch closely as a vanguard of modern medical marijuana reforms.  And so now I am pleased, but not surprised, to see this lengthy Politico magazine profile of deveopments in the Sooner state.  The piece's full headline highlights its themes: "How One of the Reddest States Became the Nation’s Hottest Weed Market; Oklahoma entered the world of legal cannabis late, but its hands-off approach launched a boom and a new nickname: ‘Toke-lahoma.’"  I recommend a full read, and here are excerpts:

Oklahoma is now the biggest medical marijuana market in the country on a per capita basis.  More than 360,000 Oklahomans — nearly 10 percent of the state’s population — have acquired medical marijuana cards over the last two years.  By comparison, New Mexico has the country’s second most popular program, with about 5 percent of state residents obtaining medical cards.  Last month, sales since 2018 surpassed $1 billion.

To meet that demand, Oklahoma has more than 9,000 licensed marijuana businesses, including nearly 2,000 dispensaries and almost 6,000 grow operations.  In comparison, Colorado — the country’s oldest recreational marijuana market, with a population almost 50 percent larger than Oklahoma — has barely half as many licensed dispensaries and less than 20 percent as many grow operations.  In Ardmore, a town of 25,000 in the oil patch near the Texas border, there are 36 licensed dispensaries — roughly one for every 700 residents.  In neighboring Wilson (pop. 1,695), state officials have issued 32 cultivation licenses, meaning about one out of 50 residents can legally grow weed.

What is happening in Oklahoma is almost unprecedented among the 35 states that have legalized marijuana in some form since California voters backed medical marijuana in 1996.  Not only has the growth of its market outstripped other more established state programs but it is happening in a state that has long stood out for its opposition to drug use.  Oklahoma imprisons more people on a per-capita basis than just about any other state in the country, many of them non-violent drug offenders sentenced to lengthy terms behind bars.  But that state-sanctioned punitive streak has been overwhelmed by two other strands of American culture — a live-and-let-live attitude about drug use and an equally powerful preference for laissez-faire capitalism....

Oklahoma has established arguably the only free-market marijuana industry in the country.  Unlike almost every other state, there are no limits on how many business licenses can be issued and cities can’t ban marijuana businesses from operating within their borders.  In addition, the cost of entry is far lower than in most states: a license costs just $2,500.  In other words, anyone with a credit card and a dream can take a crack at becoming a marijuana millionaire....

The hands-off model extends to patients, as well.  There’s no set of qualifying conditions in order to obtain a medical card.  If a patient can persuade a doctor that he needs to smoke weed in order to soothe a stubbed toe, that’s just as legitimate as a dying cancer patient seeking to mitigate pain.  The cards are so easy to obtain — $60 and a five-minute consultation — that many consider Oklahoma to have a de facto recreational use program.

But lax as it might seem, Oklahoma’s program has generated a hefty amount of tax revenue while avoiding some of the pitfalls of more intensely regulated programs.  Through the first 10 months of this year, the industry generated more than $105 million in state and local taxes.  That’s more than the $73 million expected to be produced by the state lottery this fiscal year, though still a pittance in comparison to the overall state budget of nearly $8 billion.  In addition, Oklahoma has largely escaped the biggest problems that have plagued many other state markets: Illegal sales are relatively rare and the low cost to entry has made corruption all but unnecessary.

Prior related posts:

November 29, 2020 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, November 26, 2020

Might Prez Trump soon give federal marijuana prisoners something to be thankful for?

This new Marijuana Moment piece, headlined "Republican Lawmakers And Celebrities Push Trump To Free Marijuana Prisoners Before Leaving Office," prompts the question in the title of this post as it reports on a notable effort to get Prez Trump to use his clemency pen on behalf of a notable group of federal prisoners.  Here are the details:

A group of celebrities, Republican officials and civil rights advocates sent a letter to President Trump on Wednesday, urging him to pardon or commute the sentences of people in federal prison for nonviolent federal marijuana offenses. The letter, which organizers said they adapted from an earlier request after discussing the previous proposal with the office of Trump senior adviser and son-in-law Jared Kushner, states that the signatories “strongly believe that justice necessitates the exercise of executive clemency in these cases.”

Unlike the last version, the new letter comes with an attachment — at the request of Kushner’s office, advocates said — of a specific list of 24 people who are currently behind bars for cannabis offenses, including several who are serving life sentences.

Weldon Angelos, who himself was convicted over cannabis and handed a mandatory minimum sentence before a court cut his sentence and released him, personally delivered the first version of the letter to the White House in March. He told Marijuana Moment that Kushner’s office then reached out to his organization, Mission Green, to request that, in addition to redelivering the request, advocates include a list of incarcerated people who they feel are especially entitled to presidentially granted relief.

Those two dozen currently incarcerated individuals include people like Luke Scarmazzo, who was sentenced to 22 years in federal prison for operating a state-legal medical cannabis business in California. These inmates shouldn’t have to wait for Congress to get around to enacting federal policy change, and the president should use executive action to pardon them, the letter states.

“You have expressed support for the States’ right to implement their own cannabis laws, especially for medicinal purposes,” the signatories, including former NBA star Kevin Garnett, wrote. “And while 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.”...

Among the more than 50 signatories of the new letter is Alice Johnson, who appeared at the Republican National Convention and whose story was featured in Trump campaign ads after her drug sentence was commuted by the president.

Republican state lawmakers from Kansas, Maine and Missouri also signed on, as did a former U.S. attorney, actor Danny Trejo, the New Haven, Missouri police chief and former New Mexico governor and presidential candidate Gary Johnson. They were joined by representatives of groups like #cut50, Marijuana Policy Project and Law Enforcement Action Partnership....

It’s not clear how Trump will react to the request for a round of cannabis-specific clemency. His reelection campaign worked to frame him as the criminal justice reform candidate, but he hasn’t proactively championed marijuana reform, has made several anti-legalization administration hires and issued signing statements stipulating that he reserves the right to ignore long-standing congressional riders that prohibit the Justice Department from using its funds to interfere with state-legal medical cannabis programs. Also, despite his pledged support for medical marijuana and states’ rights, the president evidently holds some negative views toward cannabis consumption, as evidenced in a 2018 recording in which he said that using it makes people “lose IQ points.”

Prior related post:

November 26, 2020 in Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Monday, November 23, 2020

"Trends in Adolescent Treatment Admissions for Marijuana in the United States, 2008–2017"

126027997_3443829359064341_5275240354102147479_n-768x1005The title of this post is the title of this notable new publication from the CDC's Preventing Chronic Disease series authored by Jeremy Mennis.  (Hat tip Marijuana Moment.)  Here are the highlights and action sections that conclude the piece (with some sentences highlighted):

Highlights

The map, visually dominated by blue tones, clearly shows that adolescent treatment admissions for marijuana declined in most of states.  The mean annual admissions rate for all states declined over the study period by nearly half, from 60 (admissions per 10,000 adolescents) in 2008 to 31 in 2017, with state admissions rate slopes ranging from −0.42 to 0.19 (median = –0.28).  State admissions rates in 2008 ranged from fewer than 1 to 218 (median = 52); in 2017 they ranged from fewer than 1 to 167 (median = 21). Admissions rates increased over the study period in only 7 states, 6 of which (excepting North Dakota) have relatively low mean admissions rates (states colored lighter orange).  Low mean admissions rates tend to occur in a loose band extending from the Southwest through the South, Appalachia, and into parts of New England.  All 12 states in the high mean admissions rate class sustained admissions declines, with 10 of those states having declines in the steepest category (states colored darkest blue).  Consistent with prior research on medical marijuana and adolescent marijuana use (12), medical legalization status does not appear to correspond to treatment admission trends.  Notably, however, 7 of 8 states with recreational legalization during the study period fall into the class with the steepest level of admissions decline.

Action

To our knowledge, this map is the first to illustrate state level trends in adolescent treatment admissions for marijuana, and the trends depicted can inform public health responses to changing marijuana laws.  Possible causes for the overall decline, and variations among states, in admissions trends include changes in attitudes toward marijuana, as well as differences among states in marijuana use and incidence of CUD, as well as in socioeconomic status, treatment availability, and health insurance (5).  Whatever the causes of the observed patterns, however, this research suggests that a precipitous national decline in adolescent treatment admissions, particularly in states legalizing recreational marijuana use, is occurring simultaneously with a period of increasing permissiveness, decreasing perception of harm, and increasing adult use, regarding marijuana (4,13).  These trends indicate the need for sustained vigilance in the prevention and treatment of youth CUD during this period of expanding marijuana legalization.

November 23, 2020 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Saturday, November 21, 2020

MIght Donald Trump have won a second term by championing marijuana reform?

Four years ago, I suggested in a post, titled "Voter math suggests a possible Hillary landslide IF she had championed marijuana reform, that Hillary Clinton's close loss in the 2016 Presidential election migtht have had a different outcome if she had been a vocal and consistent advocate for major marijuana reforms.  Among other points in that post, I noted that third-party candidates Gary Johnson and Jill Stein had both advocated for full marijuana legalization and that Clinton might have prevailed in key swing states like Florida, Michigan, Pennsylvania and Wisconsin simply by peeling off some of their support voa support for marijuana reforms.

I am reminded of this now long-ago post, and prompted to ask the question in the title of this post, by this new commentary by Don Murphy of Marijuana Policy Project over at Marijuana Moment.  The piece, titled "Did Trump’s Failure To Embrace Marijuana Legalization Cost Him Votes?," is worth a full read and here are snippets:

As a candidate [in 2016], Trump said he was in favor of medical marijuana… “100 percent.” He also said he knew sick people who use marijuana for medical purposes and that, “it really does help them.” I knew then that he was sympathetic to patients and to our cause. And he thought legalizing marijuana should be left up to the states. I was dealt a pretty good hand....

Knowing he agreed with the policy and could witness firsthand the value of the politics, I was just waiting for executive action.  In August, in anticipation of an ‘October Surprise,’ MPP hand-delivered to the administration a list of what Trump could do to bring this civil war to an end.  Yet they never acted.

When it was apparent that the Democratic nominee would be the author of the ‘94 crime bill, Joe Biden, the RNC and the Trump campaign were quick to juxtapose Trump’s criminal justice reform efforts with Biden’s “lock ‘em up” history.  But it was difficult to make the case that Biden was bad on cannabis when Trump wasn’t yet good on cannabis.  Trump’s vocal support of STATES was negated by his nomination of Jeff “good people don’t smoke pot” Sessions as Attorney General and Sessions’ subsequent repeal of the Cole Memo.

Finally in August, the president blamed marijuana ballot initiatives for the defeat of Wisconsin Governor Scott Walker for bringing “out like a million people that nobody ever knew were coming out.”  I knew then that Trump understood the benefit of being on the right side of reform.  Yet he never acted.

Maybe Trump is right, maybe not.  According to an analysis by Marijuana Moment, one thing is certain: sharing your ballot with cannabis will embarrass you.  In the red states, in the blue states and in the battleground states, pot is more popular than the pols.  This year, medical cannabis beat the president in South Dakota and Mississippi. Adult-use bested all the Senate, House and gubernatorial candidates in Montana and beat both Trump and Biden in New Jersey and Arizona.

If Trump is correct, there is a certain irony that, less than three months after his remarks to Walker, cannabis got 60 percent, Trump 49 percent in battleground Arizona. His margin was razor thin. In a race where everything mattered, marijuana votes mattered.  Did being on the wrong side of cannabis not only embarrass Trump (and McSally) in Arizona, but also cost him the state’s 11 electoral votes and maybe the White House?  Based on his comments in Wisconsin, Trump must think so.

November 21, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states | Permalink | Comments (0)

"Marijuana Legalization and Household Spending on Food and Alcohol"

The title of this post is the title of this interesting new paper recently posted to SSRN and authored by Thanh Lu. Here is its abstract:

Utilizing the Consumer Expenditure Interview Survey from 2005 to 2018, I study spending on food and alcohol following recreational marijuana legalization (RML).  Exploiting differences in the timing of the passage of RMLs and employing differences-in-differences methods, I find that households located in RML states increase their quarterly spending on food by $67.69, which is driven mainly by spending on food consumed away from home.  Legalization of recreational marijuana also leads to increased quarterly spending on alcohol by $11.23. These findings suggest a complementarity between food, alcohol, and marijuana.

November 21, 2020 in Recreational Marijuana Data and Research | Permalink | Comments (0)

Friday, November 20, 2020

DEPC call for proposals for new Marijuana Research Grants Program

2020-Marijuana-Research-Grant-Call-for-Proposals_for-social-and-web-1I am very excited that Ohio State's Drug Enforcement and Policy Center (DEPC) is starting a new research grant program to fund work specifically in the marijuana research/policy space.  Here is the basic overview of the call for proposals:

The Drug Enforcement and Policy Center (DEPC) invites researchers from universities and independent research centers in the United States to submit proposals for funded research focused on implementation and policy impacts of marijuana legalization.  We are specifically interested in research addressing questions related to public health, criminal justice and public safety, as well as their various intersections.  In selection for funding, we are likely to prioritize shorter-term research projects that can help inform the work of lawmakers, regulators and advocates eager to promote evidence-based best practices and policies in future reforms efforts.

In general, grant requests should not exceed $50,000. However, projects exceeding this amount are still encouraged to apply as additional funding could be appropriated.  The deadline for first-round submissions is January 11, 2021; a second round of funding may be announced in February 2021 after the first-round awards are announced.

The full call can be found here, and this document provides these additional details on topics of interest in this grant program:

Topics may include, but are not limited to, the following:

  • Impacts on law enforcement including resource allocation, changes to existing arrest/charging practices, use of fines and fees for enforcement, and broader effects on crime and community relations.
  • Impacts on the criminal justice system including arrests/incarceration rates, outcomes achieved by changes in criminal penalties with cannabis legalization and/or decriminalization, impacts on the juvenile justice system.
  • How federal law currently impacts state-level marijuana reforms and practices across a range of areas (e.g., banking, employment, housing, medical practice and research, tax), and what federal reforms might most effectively and efficiently improve state practices.
  • Changes in rates of diagnosis for cannabis-related substance use disorders; need, availability and efficacy of treatment programs and other counseling services for problematic cannabis use.
  • Impacts and attitudes toward cannabis reform in specific neighborhoods/communities defined both by geography, social-economic status, and demographics.
  • Cost-benefit analyses of marijuana legalization/decriminalization policies and the various budgetary impacts resulting from reforms such as law enforcement savings versus treatment costs.

November 20, 2020 in Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, November 18, 2020

"Weed Ballots and the Constitution"

Cover-legal-talk-today-384x384The title of this post is the title of this segment to which I contributed at the Legal Talk Network.  I was quite gratified when folks from the Network reached out to me after my post-election post here titled "After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?."  It was an abosulte joy to speak at length with Laurence Colletti, producer at Legal Talk Network, about my (crazy?) ideas concerning possible constitutional challenges to federal marijuana prohibition. Here is how the segment is set up:

Is it unconstitutional for the federal government to ban marijuana? In 2005, it wasn’t according to the U.S. Supreme Court in Gonzales v. Raich.  But with more states legalizing marijuana in the 2020 election, does that same analysis apply?
Professor Douglas Berman from The Ohio State University Moritz College of Law breaks it down.

Especially because I fear that legislative action to reform federal marijuana laws may still be a long time off, I continue to believe would-be reformers ought not forget litigation as a means to advance overdue reforms.

A few prior related posts:

November 18, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, November 11, 2020

Hoping this is the last Veterans Day in which veterans lack equal access to medical marijuana

Because the US Department of Veterans Affairs prohibits its doctors to recommend medical marijuana to patients, current federal law essentially puts veterans last, not first, when it comes to access to medical marijuana.  Regular readers know I have regularly blogged about a range of issues relating to veterans and their access to marijuana (many posts on this topic are linked below).  I feel a genuine and deep debt to anyone and everyone who serves this nation through the armed forces, and I feel strongly that veterans should be able to have safe and legal access to any and every form of medicine that they and their doctors reasonably believe could help them with any ailments or conditions.

Especially in the wake of a big election in which so many Americans voted to allow greater legal access to marijuana, I hope that Veterans Day 2020 will be the last one in which veterans do not get the services and respect that they deserve in this arena.  Even though there are many issues that divide this nation, I would hope we can all come together to support treating veterans at least as well as other Americans when it comes to access to the medicine of their choice.

Some recent prior related posts:

November 11, 2020 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

How might partisan perspectives on marijuana reform evolve as we enter a new political era?

Wee poll partisansIn this post four years ago, right after then Prez-elect Donald Trump had named then-Senator Jeff Sessions to be his first Attorney General, I highlighted various political and practical reasons why I did not expect AG Sessions or the broader Trump Administration to dramatically thwart the state-driven momentum toward marijuana reform.  I think that post has aged pretty well, as marijuana reform proved in the 2020 election cycle to be quite popular in blue, purple and red states.   Results in in Arizona, which voted on full legalization initiatives in both 2016 and 2020, is perhaps especially informative: marijuana legalization was voted down 51% to 49% in 2016, and then was approved 60% to 40% in 2020.

Notably, as Attorney General, Jeff Sessions perhaps hoped to slow the state marijuana reform momentum by rescinding in early 2018 the Justice Department's "hands off" enforcement memos of the Obama era (basics here and here).  But that move, by triggering backlash of various sorts and not really amounting to much, may have actually helped the state-level reform cause.  And, of course, AG Sessions was fired before the end of the year, and the 2018 election cycle brought important initiative reforms in the midwest and western states of Michigan, Missouri, Oklahoma and Utah.  Whenever the definitive history of modern US marijuana reform gets written, it will be valuable to note that Prez Trump, by essentially ignoring the issue for his entire time in office, allowed bipartisan momentum for reform to continue growing at the state level.

I am ruminating about these realities in reaction to seeing this piece from Gallup earlier this week headlined "Support for Legal Marijuana Inches Up to New High of 68%."  Here are excerpts:  

Americans are more likely now than at any point in the past five decades to support the legalization of marijuana in the U.S. The 68% of U.S. adults who currently back the measure is not statistically different from last year's 66%; however, it is nominally Gallup's highest reading, exceeding the 64% to 66% range seen from 2017 to 2019....

The latest data are from a Sept. 30-Oct. 15 poll, conducted before the election that saw marijuana legalization proposals on the ballot in several states. Voters in all of these states -- Arizona, Montana, New Jersey, and South Dakota -- authorized the legal use of recreational marijuana in the Nov. 3 election.  They join 11 other states and the District of Columbia in legalizing pot for recreational purposes.  Additionally, voters in Mississippi and South Dakota join 33 states and the District of Columbia in passing laws legalizing or decriminalizing the use of marijuana for medicinal purposes....

Majorities of most demographic subgroups of Americans support legalizing marijuana, including by gender, age, education and household income.  Yet there is considerable variation in the extent of support within each group, as men, younger adults, college graduates and those in households with incomes of at least $100,000 are more likely than their counterparts to favor legalization....

Most politically left-leaning and middle-of-the-road Americans remain supportive of legalizing marijuana, while less than half of those who lean right favor it.  Over eight in 10 Democrats and liberals, and more than seven in 10 independents and moderates, back legalization, but just under half of Republicans and conservatives do.

Views of legalization also differ greatly depending on frequency of attendance at religious services.  A slim majority of those who say they attend weekly oppose legalization. Yet, about three in five of those who attend nearly weekly or monthly, and about four in five who attend less frequently, favor legalizing marijuana.

The 83% of Democrats and 72% of independents who prefer legalization are the highest readings in the trend for both groups, but Republicans' current 48% is down slightly from slim majorities in 2017, 2018 and 2019.

One could seek to draw lots of political lessons, past and future, from these data.  For now I am content to just capture this polling snapshot while also recalling that social and political views on marijuana have been quite variable over time throughout US history.  Anyone who thinks certain trends are inevitable, either short- or long-term, has not learned some of the key lessons from our history.

November 11, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Political perspective on reforms, Polling data and results, Who decides | Permalink | Comments (1)

"Potus and Pot: Why the President May Not (and Should Not) Legalize Marijuana Through Executive Action"

The title of this post is the title of this essay authored by Robert Mikos.  The essay was written and posted to SSRN months before the November election, but it is arguably even more timely today.   Here is the piece's abstract:

Could the President legalize marijuana, without waiting for Congress to act?  The 2020 Presidential Election has shown that this question is far from hypothetical.  Seeking to capitalize on frustration with the slow pace of federal legislative reform, several erstwhile presidential candidates promised they would bypass the logjam in Congress and legalize marijuana through executive action instead.  This Essay warns that such promises are both misguided and dangerous, because they ignore statutory and constitutional constraints on the President’s authority to effect legal change.  It explains why supporters of marijuana reform should be wary of legalizing the drug through executive action, even if that means having to wait for Congress to pass new legislation.  To be clear, this Essay is not a defense of our current federal marijuana policy.  That policy is a mess, regardless of one’s views towards legalization.  But proponents of reform need to recognize that Congress made this mess, and only Congress is capable of cleaning it up.

November 11, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Sunday, November 8, 2020

In what states (and how quickly) might we now see marijuana reform through the traditional legislative process?

I mentioned briefly in this post a few days ago that the big wins at the polls for marijuana reform in red and blue states nationwide will surely have all sorts of future reform echoes.  As the question in the title of this post flags, I am especially intrigued to watch, in the short term, developments in various states in which we might reasonably expect the traditional legislative process to now take up reform.

The most obvious answer to the question in the post title flows from the big win for full legalization reform in New Jersey.  That result, for reasons discussed a bit in this prior post, certainly should increase the likelihood of traditional legislative reforms neighboring New York and Pennsylvania and maybe even a few other mid-Atlantic and Northeast states.  I have also seen mentioned that New Mexico might be a lot more likely to move forward with reforms now that legalization prevailed in Arizona.  

But, of course, New Jersey ended up having a ballot initiative this election cycle because its legislature could not agree on a framework for legalization through the traditional legislative process.  New Jersey demonstrated in 2019 that even when a legislature has "the will" for marijuana reform, it might not always readily find "the way."  So even if legislatures in New York and other states now seriously commit themselves to full legalization, turning that kind of commitment into completed legislation can still prove challenging.

One final element to consider here are states that seem likely to have state legalization ballot initiatives in the works for 2022.  In states like Florida, Ohio, Oklahoma and a few others, I wonder if legislatures might have the wisdom and foresight to consider moving forward with reform through the (somewhat controllable) legislative process rather than just allowing reform to be defined by the (advocate controlled) ballot initiative process.  Interesting times.

November 8, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Noticing how marijuana reform contributes to regulator diversity even with much equity work ahead

Download (14)Because there has historically been a general lack of diversity in all sorts of government positions, I would guess that state administrators and regulators have not typically been an especially diverse bunch.  But, when Cat Packer in 2017 was appointed the first Executive Director of the Los Angeles Department of Cannabis Regulation, I started noticing the efforts in some quarters to try to ensure state and local marijuana regulators reflected more of the diversity of our great nation.  (Just some of a number of other notable regulators in this space include Toi Hutchinson in Illinois, Shaleen Title in Massachusetts, Marisa Rodriguez in San Francisco.)

These stories came to mind as I saw this story out of New Jersey from The Root, headlined "America Has Yet to Achieve Racial Equity in Cannabis Reform. New Jersey Is Hoping Dianna Houenou Can Change That."  I recommend the piece in full, and here are excerpts:

[A] third of Americans (more than 111 million total) now live in states where adults can legally purchase pot.  But although reform is sweeping the nation, with dispensaries popping up everywhere from Oakland and Denver to Baltimore and Chicago, America’s “green rush” has yet to substantially uplift the communities most harmed by the country’s devastating “war on drugs.”  Instead, white business-owners and large corporations have disproportionately benefited from cannabis reform, prompting fresh concerns about what the future of marijuana legalization holds for the Black and Latinx communities who suffered the most from America’s punitive drug policies.

New Jersey hopes to change that narrative.  On Friday morning, Gov. Phil Murphy appointed Dianna Houenou, a senior advisor with an extensive background in criminal justice reform, to lead the state’s Cannabis Regulatory Commission, which will be charged with shaping the state’s cannabis laws and ensuring that the communities devastated by the New Jersey’s drug policies reap the benefits of the burgeoning industry.

“Dianna has been a critical voice for social justice and equity on my team for the past year and a half after spending several years working on the fight to legalize marijuana with the ACLU,” Gov. Murphy told The Root in a statement. “Her commitment to doing what is right and to leaving no one behind has powered our criminal justice reform agenda, and I am immensely proud that she will be continuing that commitment as Chair of the Cannabis Regulatory Commission.”

“Since day one, we have said that the legalization of recreational marijuana must prioritize the communities marginalized and decimated by the failed War on Drugs,” Murphy added.  “I know that Dianna is the perfect person to lead our state’s effort to create a marketplace for recreational marijuana that is equitable, fair, and inclusive of all communities.”...

New Jersey is the most populous of all the states that legalized recreational marijuana this week, and the first state in the mid-Atlantic to do so — leading Pennsylvania and New York, where lawmakers have long discussed legalization but have disagreed on how to do so.  In New York, a major part of that disagreement has stemmed from questions around equity and accessibility.  Nationwide, Black and Latinx Americans aren’t leading cannabis operations in significant numbers, nor have they been leading regulation or law-making efforts....

Working to make cannabis reform equitable will be no small task for Houenou and the commission, particularly in a state like New Jersey, where, despite similar rates of marijuana usage, Black people are 3.45 times more likely to be arrested for cannabis possession than white people.  As recently as 2016, the Garden State spent $669.3 million to enforce restrictive drug policies, “despite the grave racial inequities in fuels,” writes Insider New Jersey.

Because the country has yet to really get equity in the cannabis industry right, Houenou will be leading New Jersey into uncharted territory.  But if successful, the state could very well be a model for the region and the country at large.

Houenou isn’t going it alone.  She has the full support of Gov. Murphy, who made marijuana legalization a signature part of his 2017 election campaign.  She also understands that making cannabis reform truly equitable will be a holistic process requiring education, advocacy and buy-in from a variety of stakeholders, from law enforcement to those who lost years of their lives to drug prohibition policies.  For her and the commission, equity won’t be an afterthought, as it has been in other places.  “We really are looking to make sure that equity is built into a regulated structure at the onset,” she said.

Houenou stresses that under her leadership, nothing would be off the table for the commission.  This includes policies already existing in other places, including prioritizing permits for those who live in neighborhoods impacted by harsh drug policies, as well as individuals who have been entangled in the court system specifically for cannabis offenses. But she’s also interested in exploring — and breaking down — other barriers to entry and ensuring that revenue from these burgeoning businesses goes back into Black communities.

November 8, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, November 7, 2020

What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota

Talking to one of my favorite people about the greatness and unpredictability of democracy in the USA, I realized that it is worthwhile to put the amazingly consistent pro-reform marijuana election results of 2020 in a bit of historical context.  For now, I will leave it to true historians to write on a broader canvas, as I just want to highlight what a difference a decade makes. 

The first very significant and well-funded campaign for statewide marijuana legalization took place in deep blue California in 2010.  Then and there, California Proposition 19 lost pretty badly with 53.5% of California voters being against legalization, and only 46.5% being in favor.  Notably, among the folks in avowed opposition to this reform were US Senators Barbara Boxer and Dianne Feinstein, then-Democratic gubernatorial candidate Jerry Brown, then CA Gov Arnold Schwarzenegger, then-Democratic Attorney General Candidate Kamala Harris, and then-Prez Obama's Attorney General Eric Holder and his drug czar Gil Kerlikowske

Fast forward only 10 years, and we have seen extraordinary political, legal and social developments on so many fronts related to marijuana prohibition, and perhaps this is no more clear than the results in deep red South Dakota in 2020.  This year the voters in South Dakota considered both Initiated Measure 26 to legalize medical marijuana, which passed by a vote of 70% for and only 30% against, and a state constitutional amendment for full legalization, which passed by a vote of 54% for and only 46% against.  To my knowledge, there were precious few political figures who spoke out in avowed opposition to either of these reforms, and I am certain that Prez Trump's Attorney General did not weigh in on these state marijuana reform ballot measures.

This is a truly remarkable political and legal story, though perhaps even more remarkable is that we have seen no formal federal legislative reforms in this arena even over a decade of extraordinary change.  I will (not-so-boldly) predict that we will see some form of federal statutory reforms over the next decade, but I am not at all confident about just when or what these reforms might look like.  I will predict that 2010 CA Democratic Attorney General Candidate Kamala Harris, who is now in 2020 Vice President Elect Kamala Harris, might end up having a lot of impact on this matter.

November 7, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, November 4, 2020

After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?

Eighteen years ago, Angel Raich and her co-plaintiffs filed this complaint that argued that federal marijuana prohibition was unconstitutional on multiple theories.  She claimed not only that federal marijuana prohibition exceeded Congress's authority under the Commerce Clause, but also that it violated the Fifth, Ninth and Tenth Amendments.  A few years later, the Supreme Court took up and rejected only the Commerce Clause claim 6-3 in Gonzales v. Raich, 545 U.S. 1 (2005).  In light  of the remarkable and continuing nationwide citizen support for ending marijuana prohibition, I think it is time to consider a renewed constitutional attack on federal prohibition, a Raich 2.0, that renews these claims and adds one under the Eighth Amendment.

Notably, the Court's composition has changed dramatically since its ruling in Raich, with only Justice Breyer remaining from the Court's majority and only Justice Thomas remaining from the Raich dissent.  Among the new Justices, there is a reasonable basis to speculate that at least two Justices (Justices Gorsuch and Barrett) and perhaps as many as four Justices (add in Chief Justice Roberts and Justice Kavanuagh) might be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich.  

These same groups of Justices might likewise be inclined, perhaps, to breathe some life into the Ninth and Tenth Amendments in this context.  One might further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering a Fifth Amendment claim in this content.  And, given established precedent that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,"  Trop v. Dulles, 356 U.S. 86, 110 (1958), and that "the modern practices of the States ... are indicative of our 'evolving standards of decency'," Ford v. Wainwright, 477 U.S. 399, 419 (1986), I believe the dramatic modern state medical and recreational marijuana reform could make at least some enforcement of federal marijuana prohibition problematic under the Eighth Amendment.

I am not here seeking to assert that a federal constitutional challenge to federal marijuana prohibition will be sure to prevail on any of these fronts.  But a whole lot has changed quite dramatically since the ruling in Gonzales v. Raich, 545 U.S. 1 (2005), including a bunch of red state reforms via voters this election cycle.  All these  changes lead me to continue to wonder if and when we might soon see an effective effort to renew constitutional challenges to federal marijuana prohibitions. 

November 4, 2020 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

Ballot-map-type2-minAs of Wednesday morning after a very long 2020 Election Night, there is a lot which remains uncertain politically, but one matter is quite clear: marijuana reform is very popular all across the United States.  As noting in this post last night, marijuana reform ballot initiatives prevails by pretty large numbers in states as diverse as Arizona, Mississippi, Montana, New Jersey and South Dakota.   This Politico article, headlined "1 in 3 Americans now lives in a state where recreational marijuana is legal," provides some political context:

New Jersey and Arizona, with 8.9 million and 7.3 million residents, respectively, are the biggest wins for advocates this year.  Legalization in New Jersey is expected to create a domino effect for legalization in other large East Coast states, including Pennsylvania and New York.

South Dakota, Montana and Mississippi, while much smaller, are significant in another way: As red states, the passage of marijuana measures illustrates the shift in Republican sentiment toward marijuana.

The impact of these ballot measures will be felt in Congress, especially if Democrats regain control of the Senate.  If all the measures ultimately pass, a third of House members will represent states where marijuana is legal, as will a fourth of the Senate.  If Democrats end up in control of both chambers next year, expect those legal state lawmakers to be called upon to vote on significant changes to federal marijuana policy — including removing all federal penalties for using it.

As of this writing, it is still unclear who will be in the White House for the next four years, but it seems increasing clear that Democrats will not be in control of the Senate.  This reality leads me to speculate that, despite the big 2020 state ballot wins, it will still be quite challenging for Congress to move forward with any significant federal statutory marijuana reforms.  Whether to pursue a modest or major form of federal reform already divides Democratic lawmakers in various ways, and I doubt that Republican leadership in the Senate will be eager to prioritize or even advance various bills on this topic.  If the person in the White House decides he wants to focus on this issue, these political realities could surely change.  But, at this moment, it seems to me unlikely that a large number of lawmakers at the federal level will be keen to prioritize these matters in the short term.

But continued non-action at the federal level could actually make even more space for state-level reforms to continue apace.  As the Politico excerpt highlights, the outcome in New Jersey should increase the likelihood of traditional legislative reforms in states like New York and Pennsylvania and maybe other northeast states.  Also, the big ballot wins in red states in 2020 also makes even more likely that there will be ballot initiatives for full legalization or medical marijuana reform in a half-dozen or more states in the coming years.  Just off the top of my head, I count Arkansas, Florida, Idaho, Missouri, Nebraska, North Dakota, Ohio and Oklahoma as all real possibilities for state initiatives perhaps as early as 2022.

November 4, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, November 3, 2020

Marijuana and other drug reforms have a big night across the nation

Though it may be a bit too early to declare all the ballot initiatives winners, as of this writing just before the end of Election Day 2020, it seems as though every marijuana reform initiative and all the other drug reform initiatives on ballots today are going to pass.  Specifically, as now reported on this Marijuana Moment tracking page, here is what I am seeing:

Full marijuana legalization:

Arizona: 60% in favor

Montana: 60% in favor

New Jersey:  67% in favor

South Dakota: 53% in favor

 

Medical marijuana legalization:

Mississippi: 69% in favor

South Dakota: 69% in favor

 

Psychedelic decriminalization/legalization:

Oregon: 55% in favor

Washington DC: 77% in favor

 

Drug Decriminalization:

Oregon: 59 % in favor

November 3, 2020 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

"From Medical to Recreational Marijuana: Lessons for States in Transition"

The title of this post is the title of this exciting and timely new report authored by Dexter Ridgway and Jana Hrdinova of The Ohio State University's Drug Enforcement and Policy Center.  (The full glossy version of the report is at this link, an SSRN version can be found at this link.)  Here is the report's abstract:

As of October 2020, eleven states and the District of Columbia have undergone a transition from medical to adult-use marijuana regimes navigating the creation of a new industry within a complex and incongruous legal framework.  The collective experience of these states has created a wealth of lessons for other states that might legalize adult-use marijuana in the future.  Yet not much has been written about the process of transition and how states managed the creation and implementation of the regulatory framework for an emerging industry.

This report, which draws on interviews with current and former government officials, aims to fill this gap by documenting lessons learned and decision-making behind the policies that shaped the recreational landscape in four states: Colorado, Michigan, Nevada, and Oregon.  The purpose of this research is to provide actionable and concrete advice to states that are transitioning, or are planning for a transition, from a medical marijuana regime to an adult-use or recreational framework.  The report highlights major decision points states face in their transitions and the pros and cons of each choice, lessons learned gathered from the participants in our study, and a short discussion of major challenges each state had to face with their respective programs.y 

November 3, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

One place to watch for results on all the marijuana and drug policy ballot initiatives

Download (13)I am pleased to see that the folks at Marijuana Moment have created this webpage to serve as a single tracking tool to follow all the marijuana and drug reform ballot initiatives that voters are considering today around the country.  Here is how they set up the page I will be refreshing through the evening.  

Marijuana Moment is tracking 11 separate cannabis and drug policy reform measures on ballots in seven states. Stay tuned to this page for results as votes are counted.

Make sure to follow Marijuana Moment and our editors Tom Angell and Kyle Jaeger on Twitter for live news and analysis, and check our homepage for individual articles about each ballot measure as races are called.

Thanks to support from ETFMG | MJ, we have a single tracker tool below that lets you cycle through all of the key measures as well as separate standalone tools for each initiative.

Interestingly, though votes in New Jersey and Washington DC should be coming in relatively early in the night, some of the votes I will be watching most closely are in the mountain west and west in Arizona, Montana, South Dakota and Oregon.  So I expect to be up late, and look forward to blogging here about any especially interesting developments.

And do not forget about this great 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.  

November 3, 2020 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states | Permalink | Comments (0)