Marijuana Law, Policy & Reform

Justice Thomas talks up reconsidering Raich, but has no compatriots (yet)

One of many interesting stories of modern marijuana reform has been the relative lack of Supreme Court engagement with the issue in modern times (which, of course, is partially a function of the relative lack significant federal reforms passed by Congress to date).  Against that backdrop, it was especially surprising and exciting that Justice Thomas today decided to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US,  in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law.  The whole statement is a must read, and here are just a few passages that I especially enjoyed (cites and footnotes removed):

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning.  Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.  This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....

though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana, Controlled Substances Act, the Government, post-Raich, has sent mixed signals on its views.  In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law.  In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.”  That policy has broad ramifications given that 36 States allow medicinal marijuana use and 18 of those States also allow recreational use.

Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.  One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.

Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment....

Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U. S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid.  A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Of course, Justice Thomas dissented in Raich, so perhaps it should not seem lke a big surprise that he would be inclined to talk up the possibility that it is no longer good precedent.  Still, I do not think the tax issue in Standing Akimbo directly called for considering Raich's standing and status.   And, of course, Justice Thomas "had me at hello," given that a mere eight months ago I was talking up in this post the prospects of "Raich 2.0" challenges to federal prohibition because so much has changed in the 16 years since the original Raich ruling.  (In my prior post, I suggested a number of new Justices might not only be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich, but also might be inclined to breathe some life into the Ninth and Tenth Amendments in this unique context.  And one could further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering Fifth and Eighth Amendment challenges to the modern functioning of federal marijuana prohibition.)

Disappointingly, none of Justice Thomas's fellow Justices joined his statement, and so it is unclear whether there could be others inclined to now reconsider Raich.  But I am hopeful that perhaps this statement by Justice Thomas alone could fuel some more lower court litigation and discussion, perhaps on a number of different grounds, concerning whether blanket federal marijuana prohibition now functions in constitutionally problematic ways.  I think it is only a matter of time before we start to see more Supreme Court engagement with marijuana reform issues, and broadside constitutional issues always make for an interesting place to start.

"Seeds of Change: Strategies to create an equitable cannabis industry"

The title of this post is the title of this notable new report authored by Janessa Bailey with Leafly.  I recommend the full report's explanation, accounting and scoring of various aspect of social equity in cannabis reform.  Here is how the report gets started:

Over the past decade, cannabis legalization has offered new economic opportunities to hundreds of thousands of people across the United States.  But those opportunities have not been extended to all Americans.

In the nine years since Colorado and Washington first legalized marijuana for all adults, we’ve learned that past inequities and current barriers aren’t erased by simply declaring cannabis legal.

The systems of discrimination built into 80 years of prohibition won’t be erased by hope and wishful thinking. Their dismantling requires proactive steps on the part of state and municipal policymakers.

Cannabis is the nation’s fastest-growing industry.  As of June 2021, 38 states have some form of legalized cannabis, with 19 states and Washington, DC, allowing legal use for all adults.  The $18.3 billion dollar industry now supports 321,000 full-time American jobs, and cannabis entrepreneurship and employment have exploded over the past five years.

But as legalization and the growing cannabis industry have expanded, it has become increasingly clear that opportunities in cannabis are not fairly accessible to all Americans.

Seeds of Change offers eight strategies to create a fair and equitable cannabis industry, assesses each legal adult-use state on its implementation of those strategies, and illuminates the often-hidden barriers that contribute to the current disparities in cannabis.

In other words: Here’s what’s needed, here’s how legal states are doing, and here’s why these strategies are necessary.

Red state marijuana reforms not yet leading to GOP Senator support for federal reform

Natalie Fertig of Politico has this effective new piece highlighting that Senate Republicans do not seem to be moving off their opposition to broad federal  marijuana reform even as more and more red states enact reform.  The piece is headlined "Republicans are watching their states back weed — and they’re not sold," and here are excerpts:

Marijuana’s popularity boom in red states isn’t breaking through with conservatives on Capitol Hill, pinching an already narrow path to federal legalization.

A growing number of Republican senators represent states that have legalized recreational or medical cannabis — six approved or expanded marijuana in some form just since November.  But without their support in Congress to make up for likely Democratic defectors, weed falls critically short of the 60 votes needed to advance legislation.

Montana’s Steve Daines and South Dakota’s Mike Rounds, both Republicans, said they don’t support comprehensive federal cannabis reform, no matter what voters back home voted for....

Lawmakers whose constituents have already approved some form of legal marijuana are seen as the most likely to support loosening federal restrictions, but so far Republican senators appear largely unmoved by the will of voters when it comes to weed.  In some states, such as Montana and South Dakota, marijuana did better on the ballot than their senators.

POLITICO spoke with a dozen GOP senators who represent medical or recreational cannabis markets in recent days. None committed to vote to remove cannabis from the Controlled Substances Act, but Sens. Lisa Murkowski of Alaska and Kevin Cramer of North Dakota said they were open to discussing ways to remove federal cannabis penalties.  Others, however, said they were not on board with any type of federal cannabis legislation.

Expanding how we think about social equity in the cannabis space

I flagged in this post the great Drug Enforcement and Policy Center (DEPC) event that took place earlier this month titled "Social Equity 2.0: Expanding Horizons."  Though I may be a bit biased, I think this 90-minute event was a terrifically interesting discussion of different ways to think about equity in the marijuana reform space  But do not take my word for it, and everyone can now watch the full event via the video link on this page.  In addition, Alyson Martin of Cannabis Wire authored this effective review of the panel discussion under the headline "What’s the Future of Cannabis Equity?"  Here is how the review gets started:

Today, there is no uniformity in how states with legal cannabis approach equity. In other words, within the state-by-state patchwork of cannabis laws, there exists an equity patchwork, though lessons learned are emerging. 

Last week, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law hosted regulators and policymakers to discuss how cannabis law reform and subsequent rules can be centered on equity and can “lift” communities harmed by the disproportionate enforcement of prohibition. Panelists discussed how regulators can achieve economic empowerment and restorative justice, and how best to reinvest in communities. 

Prior related posts on prior related events:

• DEPC event: "Social Equity 2.0: Lessons From Recent State Developments"
• DEPC event: "Social Equity 2.0: Expanding Horizons"
• Equity getting lots of attention, but still much work to do, as social justice becomes centered in marijuana reform efforts

"Changes in traffic crash rates after legalization of marijuana: results by crash severity"

The title of this post is the title of this new research authored by Charles Farmer, Samuel Monfort and Amber Woods and supported by the Insurance Institute for Highway Safety.  Here is its abstract:

Objective:  The objective of this study was to estimate the effects of marijuana legalization on injury and fatal traffic crash rates in the United States during the period 2009–2019.

Method:  State-by-state quarterly crash rates per mile of travel were modeled as a function of time, unemployment rate, maximum posted speed limit, seat belt use rate, alcohol use rate, and indicators of legalized recreational marijuana sales and use.

Results:  Legalization of the recreational use of marijuana was associated with a statistically significant 6.6% increase in injury crash rates and a nonsignificant 2.3% increase in fatal crash rates.  In contrast, the subsequent onset of retail marijuana sales ― 3 to 18 months later depending on the state ― did not elicit additional substantial increases to injury or fatal crash rates.  Thus, the combined effect of legalization and retail sales was a statistically significant 5.9% increase in injury crash rates and a nonsignificant 3.8% increase in fatal crash rates.  However, these estimates varied by state.  The effects of legal marijuana use and sales on injury crash rates ranged from a 7% decrease to an 18% increase.  The effects on fatal crash rates ranged from an 8% decrease to a 4% increase.

Conclusions:  The estimated increases in injury and fatal crash rates after marijuana legalization are consistent with earlier studies, but they were not always statistically significant, and the effects varied across states.  However, this is an early look at the time trends, and researchers and policymakers need to continue monitoring the data.  National, state, and local governments considering changes to their marijuana policies should be cautious, proceed slowly, and take note of the lessons learned from these initial experiences.

Connecticut on verge of becoming 18th state to fully legalize marijuana (and fifth state in 2021)

As reported in this local article, headlined "A bill legalizing marijuana cleared the Connecticut House of Representatives on Wednesday; the measure could receive final approval in the Senate on Thursday," it looks like the Nutmeg State is now getting very close to legalizing marijuana fully for adult use.  Here are the basics:

Following more than seven hours of debate, the Connecticut House of Representatives avoided a threatened gubernatorial veto and approved a revised bill that would legalize marijuana in the state.

The measure cleared the House by a largely party-line vote of 76 to 62. Twelve Democrats joined all but one Republican -- Rep. Rick Hayes of Putnam -- in voting no. The bill could come up for a final vote in the Senate as soon as Thursday.

“Connecticut’s time has finally come,” declared Rep. Steven Stafstrom, a Democrat from Bridgeport, who helped shepherd the bill through the House. “We take the next step as this chamber in recognizing the war on drugs has failed us and the criminalization of cannabis was the wrong course of action for our state and for our nation.”

Rep. Juan Candelaria, a New Haven Democrat who has been advocating for the legalization of cannabis for years, said the bill has one of the nation’s strongest social equity provisions. “We’re able to repair the wrongs of the past and ensure that these communities who have been disproportionately impacted are made whole,’' Candelaria said.

The sweeping, 300-page bill, which would legalize cannabis for adults 21 and older, contains a number of provisions, from setting limits on THC content to funding programs to address addiction and mental health. But for many lawmakers, the most vexing part of the legislation is the equity section, which is designed to provide those hurt by the criminalization of cannabis would have an expedited opportunity to enter the potentially lucrative market.

Paul Mounds, Gov. Ned Lamont’s chief of staff, said an earlier version of the bill did “not meet the goals laid out during negotiations when it comes to equity and ensuring the wrongs of the past are righted.”

At a briefing before the debate began, House Speaker Matt Ritter said most members of the Democratic caucus are comfortable removing the language Lamont finds objectionable. After all, he said, it was not part of the original bill that lawmakers crafted in coordination with Lamont’s office.

The bill’s equity provision was a key sticking point, but it wasn’t the only issue some lawmakers found objectionable. Republicans expressed opposition to the very notion of a legal marijuana market, saying it would lead to a rise in crime, a spike in addiction and a host of other societal ills. Rep. Tom O’Dea, R-New Canaan, said his criticism of the measure is based on science. He cited a study by U.S. Department of Health and Human Services that found marijuana use among 12- to 17-year-olds rose in states that legalized cannabis. “Youth use will increase,’' he said.

Rep. Holly Cheeseman, R-East Lyme, noted that much of the marijuana debate focused on equity and the marijuana marketplace. “I know there are good people in this chamber,’' she said. “I know this is motivated by wanting to right the wrongs of the past ... please, this is not the way.”...

Not all of the opponents were Republicans. Rep. Jonathan Steinberg, a moderate Democrat from Westport, said he has long struggled with marijuana legalization. “This is a tough vote,’' Steinberg said. “Frankly no state to date has done well in their first pass in introducing marijuana. ... I’m still uncomfortable. I fully expect we will be back next year and the year after that making needed changes to ensure safety and reliability and equity.” Steinberg introduced and later pulled an amendment that would have barred “home grown” cannabis in Connecticut. He ultimately voted yes on the bill....

Debate over the question of social equity unfolded over the past few days, creating chaos at the Capitol and at one point, throwing the fate of legalization into question. The earlier version of the bill backed by Lamont contained a geographic definition of equity, giving preference to people from cities that have borne the brunt of the war on drugs. But late Tuesday, right before the Senate was scheduled to vote on the bill, the equity provision was changed to include people with prior marijuana convictions.

At a press conference Wednesday, Jason Rojas, the House majority leader who helped craft the legislation, said it makes sense to him that people who have been hurt by the criminalization of cannabis are among those who are first in line for a license. “I think it’s appropriate to consider someone’s criminal history in terms of defining an equity applicant,” Rojas said. Ritter, however, echoed some of Lamont’s concerns. “Do I think that you should get a leg up because you got pinched [for] marijuana at 19 at Wesleyan? No, I don’t,” he told reporters before the House session began.

The marijuana legalization effort has stalled for at least five years at the Capitol. But this year, it appeared to have fresh momentum and Lamont’s strong support. Despite that, the bill only came up for debate in the Senate for the first time last week. The Senate approved the bill but because time ran out before the House could vote, the legislature convened in a special session this week to take up the bill.

Another notable accounting of marijuana tax revenues

In this prior post, I flagged of this recent report and accounting from folks at the Marijuana Policy Project titled "Marijuana Tax Revenue in States that Regulate Marijuana for Adult Use."  While that report focused on cumulative tax revenue in various states, this recent MJBiz Daily article, headlined "Marijuana legalization efforts get boost from billions in MJ tax dollars," drills into some more tax specifics while also discussing the MPP report.  I recommend the piece in full, and here are excerpts:

Adult-use marijuana programs are generating billions of dollars in tax revenues for state governments each year – bolstering the economic and equity case for legalization in other markets across the country as well as at the federal level. The economic argument might particularly resonate among reluctant Republican lawmakers on Capitol Hill, experts say....

MPP’s tax revenue report comes as the organization is involved in adult-use legalization advocacy efforts in Connecticut, Delaware and Rhode Island – and in the wake of successful recreational marijuana legalization across the country in the past few months from New York to New Mexico.  Maryland is on MPP’s radar for next year ... as are potentially several other states....

Social equity and racial justice issues have become critical pieces in adult-use legalization negotiations, and tax revenues are important because they help fund those programs.  In New York, state tax revenues will be directed toward community reinvestment grants (40%), public schools (20%) and drug-treatment and public-health programs (40%).

Other states also are using portions of the tax revenues for such areas as childcare services (California), conservation (Montana), environment (California), law enforcement (Oregon and Maine), mental-health services (Illinois), public transportation (Michigan) and reentry programs for those imprisoned with drug convictions (Alaska)....

The report doesn’t detail the hundreds of thousands of dollars of revenue generated for cities and towns from local cannabis taxes or the various economic development impacts such as job creation.  But other studies have.  The newly published MJBizFactbook, for example, estimates that the total U.S. economic impact from marijuana sales in 2021 is expected to reach $92 billion – up more than 30% from last year – and upwards of $160 billion in 2025.

"Data, Damn Lies, and Cannabis Policy: Reefer Madness and the Methodological Crimes of the New Prohibitionists"

The title of this post is the title of this article published earlier this year in the journal Critical Criminology and authored by Jon Heidt and Johannes Wheeldon.  Here is its abstract:

The rapid pace of cannabis legalization in North America has provoked a backlash that is predictable and discouraging.  The New Prohibitionists, distinct but related to their predecessors, the Old Prohibitionsists, have offered scholarship rife with conceptual errors, methodological flaws, and practical oversights.  While their advice would likely hasten that which they seek to decrease, they overlook the costs of returning to practices associated with prohibition.  To counter simplistic research interpretations and ill-considered policy, we present a critically informed research program on cannabis and crime based on previous scholarship.  Our work is designed to apply replacement discourse and refocus research to withstand the tendency for justice systems to subvert, rather than embrace, reform.  Cannabis legalization has been decades in the making and serious questions remain for proponents, opponents, and policymakers.  Society, however, will be far worse off if the mistakes of reefer madness are repeated.

"Achieving Social Equity in the Cannabis Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Samuel DeWitt, a student at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

As legal cannabis begins to infiltrate most American states and public support grows for federal legalization, the national discussion has shifted from if cannabis should be legalized to how it should be legalized.  A significant part of this debate has centered around the need to use cannabis legalization to address the lasting harm done to communities of color through federal prohibition.  A fair and just framework for the legal cannabis industry cannot be achieved without sufficient efforts to foster social equity within the industry and to right the wrongs done by decades of prohibition.  While most states with legal cannabis have recognized this issue and have taken some steps to address it, state action as a whole has been mostly ineffective and does not adequately reflect the scale of the problem.  This paper argues that broad federal action is needed to achieve true social equity in the cannabis industry, action that goes beyond recognizing the problems and works to change the stigma surrounding drug use and its historical relation to communities of color.

Array of marijuana reforms move forward in array of states

When I started this blog nearly eight years ago, it was often pretty big (and blogworthy) news whenever any single state would move forward with any kind of marijuana reform in the usual legislative process.  Back then, adult-use reform by traditional legislation was almost unthinkable and only a few state legislatures had enacted modest medical programs via standard legislation (as opposed to a ballot initiative).  But fast forward less than a decade, and here is a round-up of news accounts of notable legislative developments in just the first week of June 2021:

"Connecticut state Senate approves recreational marijuana bill in a 19-17 vote. House expected to take up bill before adjournment."

"Legalizing marijuana in Delaware: State lawmakers take another shot"

"Louisiana lawmakers pass bill to decriminalize marijuana"

"Mississippi Senate weighs in on medical cannabis legalization"

"Nevada Governor Signs Bill Legalizing Marijuana Consumption Lounges"

"N.C. bill to legalize medical marijuana picking up support"

"Medical marijuana law changes get through Pennsylvania House"

Of course, all this mid-year action comes on the heels of already historic legislative developments in the first part of 2021 with four states (New Mexico, New Jersey, New York and Virginia) legalizing adult-use of marijuana and one deep south state (Alabama) legalizing medical marijuana through the traditional legislative process.  

"Illegal drug market responses to state recreational cannabis laws"

The title of this post is the title of this notable research report recently published in the journal Addiction authored by Angélica Meinhofer and Adrian Rubli. Here is its abstract:

Background and Aims

In the United States, 15 states and the District of Columbia have implemented recreational cannabis laws (RCLs) legalizing recreational cannabis use. We aimed to estimate the association between RCLs and street prices, potency, quality and law enforcement seizures of illegal cannabis, methamphetamine, cocaine, heroin, oxycodone,hydrocodone, morphine, amphetamine and alprazolam.

Design

We pooled crowd sourced data from 2010–19 Price of Weed and 2010–19 Street Rx, and administrative data from the 2006–19 System to Retrieve Information from DrugEvidence (STRIDE) and the 2007–19 National Forensic Laboratory Information System (NFLIS). We employed a difference-in-differences design that exploited the staggered implementation of RCLs to compare changes in outcomes between RCL and non-RCL states.

Setting and cases

Eleven RCL and 40 non-RCL US states.

Measures

The primary outcome was the natural log of prices per gram, overall and by self-reported quality. The primary policy was an indicator of RCL implementation, dened using effective dates.Findings The street price of cannabis decreased by 9.2%[β = 0.092; 95% confidence interval (CI) = 0.15–, –0.03] in RCL states after RCL implementation, with largest declines among low-quality purchases (β = 0.195; 95% CI = –0.282, –0.108). Price declines were accompanied by a 93%(β = 0.93; 95% CI = –1.51, –0.36) reduction in law enforcement seizures of cannabis in RCL states. Among illegal opioids, including heroin, oxycodone and hydrocodone, street prices increased and law enforcement seizures decreased in RCLstates.

Conclusions

Recreational cannabis laws in US states appear to be associated with illegal drug market responses in those states, including reductions in the street price of cannabis.  Changes in the street prices of illegal opioids analyzed may suggest that in states with recreational cannabis laws the markets for other illegal drugs are not independent of legal cannabis market regulation.

DEPC event: "Social Equity 2.0: Expanding Horizons"

I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event taking place next week titled "Social Equity 2.0: Expanding Horizons."  This is how this event, which is on June 9 at 1pm EDT, is described on this page (where you can register):

Despite enthusiasm from policymakers and hard work by government regulators, many feel that the promise of social equity in the cannabis industry remains elusive.  The obstacles are numerous, ranging from legal challenges, to difficulties with implementation, to weak policy provisions.  Is it time to rethink cannabis social equity?

Join the Drug Enforcement and Policy Center for a virtual event that brings together a panel of experts who are imagining a different framework to achieve the goal of healing the harms of past prohibition and lift communities affected by the War on Drugs.  Panelists will discuss ways to expand the horizons of how we achieve social equity.

 

Panelists:
Douglas A. Berman, executive director, Drug Enforcement and Policy Center
Amber Marks, lawyer and lecturer, Queen Mary University of London
Cat Packer, executive director, Department of Cannabis Regulation, City of Los Angeles
Dan Riffle, policy analyst on substance abuse treatment and prevention, District of Columbia Department of Behavioral Health

 

Moderator:
Shaleen Title, distinguished cannabis policy practitioner in residence, Drug Enforcement and Policy Center, and vice-chair, Cannabis Regulators of Color Coalition

Prior related posts on prior related event:

• DEPC event: "Social Equity 2.0: Lessons From Recent State Developments"
• Equity getting lots of attention, but still much work to do, as social justice becomes centered in marijuana reform efforts

Rounding up some recent marijuana news and reform notes as the calendar turns

The Memorial Day weekend serves as the unofficial start to summer and today is the official start of June, and so I figured it was a good time to catch up with a bunch of recent notable stories from major outlets that I have not found time to blog about recently.  So here goes:

From CNBC, "Uber and the delivery war could be headed to cannabis dispensaries"

From Forbes, "Republican Voter Suppression Is Canceling Marijuana Legalization"

From Pew Research Center, "Religious Americans are less likely to endorse legal marijuana for recreational use"

From Politico, "Why Covid rules on liquor, pot and telemedicine might last past the pandemic"

From the New York Times, "Why the Pandemic Was a Breakout Moment for the Cannabis Industry"

From the New York Times, "Yes, Pot Is Legal. But It’s Also in Short Supply."

From NPR, "After 50 Years, U.S. Opens The Door To More Cannabis Crops For Scientists"

From the Wall Street Journal, "Positive Marijuana Tests Are Up Among U.S. Workers"

 

Also, the always great Marijuana Moment has these two notable recent op-eds:

By Shaleen Title, "Congress Only Has One Chance To Legalize Marijuana The Right Way"

By Matthew Schweich, "The War On Ballot Initiatives Has Marijuana In The Crosshairs"